CRIMINAL INTELLIGENCE

Adjourned debate on motion of the Hon. M.C. Parnell

That noting the recent decision of the High Court in the case of State of South Australia v Totani and Another, the Legislative Council refers the following matters to the Legislative Review Committee for inquiry and report:

1. The extent to which South Australian legislation includes the concepts of criminal intelligence, declared organisations or control orders;

2. Any concerns about the constitutional validity of such provisions;

3. The consistency of such provisions with established legal principles;

4. The impact of such provisions on the civil liberties of South Australians;

5. The effectiveness of such provisions;

6. The desirability or otherwise of expanding or contracting the use of such provisions in legislation;

7. Whether any amendments to any Acts are necessary or desirable; and

8. Any other relevant matter.

(Continued from 23 February 2011.)

The Hon. S.G. WADE (17:27): Criminal intelligence is a substantial departure from the principles of evidence under our legal system. As Steven Churches, a senior lecturer in law at the University of South Australia, put it, 'Our legal system is based on a 700-year tradition that the parties get to test the evidence, but how can you when you don't know what it is?' He was referring to criminal intelligence. Criminal intelligence is secret evidence in the sense that it is not available to the parties to the proceedings. The Attorney-General in the other place acknowledged that in referring to criminal intelligence as a breach of procedural fairness and natural justice.

The government has asserted that the opposition should accept statutes in relation to criminal intelligence without amendment because the police seek the opportunity to use secret evidence and do not want the bill amended. I certainly have no doubt that the leadership of the South Australia Police and the Police Association do support criminal intelligence. Both parties have made that very clear to me.

The opposition has accepted the advice of the police and the Police Association that lawlessness amongst serious and organised crime groups is so severe in our community that special powers are needed to protect the administration of justice and that secret evidence is necessary against serious and organised crime groups. But we consider that the case is yet to be made as to why, after 700 years of legal experience, ordinary citizens and ordinary criminals can no longer be dealt with in the normal rules of investigation of evidence.

Ordinary citizens and ordinary criminals who do not take part in the particular lawlessness of serious and organised crime, we believe, should be treated to the normal standards of procedural fairness and natural justice. Now the motion from the Hon. Mark Parnell that is before us does give us an opportunity to look at the issue afresh. I make it clear on behalf of the opposition that we are open to being persuaded, and that is why we will be supporting this motion. The Legislative Review Committee inquiry proposed by the honourable member's motion will enable the police, lawyers and a range of other people with relevant perspectives on the need for criminal intelligence to make a case to the committee so that the community and the parliament can be better informed.

The opposition holds that we need to be very cautious in this area, we need to have a considered and balanced approach to law and policy, and we particularly assert that being true friends of the police means taking a cautious, considered and balanced approach to these proposals.

I would like to briefly state why I believe that to be the case. I believe that criminal intelligence increases the risks of miscarriage of justice and I believe that no friend of the police would lightly allow for an increase in the risk of a miscarriage. Criminal intelligence can be highly relevant and highly prejudicial, but untested it could be completely wrong and prove to be the basis for a miscarriage of justice. The raison d'être of our police, the reason they exist, is to deliver justice. Undermining the reliability of evidence undermines the police.

Criminal intelligence, secondly, increases the risk of corruption, and no friend of the police would lightly allow for an increased risk in corruption. We have a highly reputable police force in South Australia but corruption can also occur in the private sector. It is not hard to imagine a scenario where, say, a liquor licence holder is faced with the prospect of a person applying for a licence in their area. Concerned about their commercial viability, they concoct a false story and claim fear of intimidation so that this false story can be treated as criminal intelligence and, therefore, not be subject to rebutting through the normal processes.

Thirdly, I assert that criminal intelligence undermines standards of police investigation, and no friend of the police would lightly reduce investigation standards. It is conceivable that police will rely on criminal intelligence and it may undermine the quality of evidence. For example, a witness may, in good faith even, give information about a person having been seen in the company of a known gang member. It may in fact be a case of mistaken identity but, without the opportunity for the other party to know the claim that is being made against them, the police are in no position to be able to test the veracity of the evidence and the police position is undermined.

Fourthly, I assert that criminal intelligence undermines public trust in the justice system. No friend of the police would take lightly the risk of undermining trust. The fact of the matter is that a lack of transparency and accountability in any public institution is the seed of doubt as to whether people are being treated fairly. We believe that open courts, open evidence and open processes of justice are vital and we, therefore, are very concerned that any diminution of those rules of evidence is limited to the extent necessary.

After nine years it will not take members long to know what the government position will be when it takes the opportunity to respond to this. I am sure we will get a sermon about being tough on crime, we will get a sermon on police, but we will also get a sermon about urgency. On the point of urgency, I remind the council that the central case which is causing us to focus on criminal intelligence was a judgment of the High Court in February 2009 (two years ago). The government had two years to bring this in as a matter of urgency. It has not.

The House of Assembly was offered criminal intelligence legislation in October last year. I was told in a briefing that it was both routine and urgent—it had to be in by 4 December last year—yet this government last brought this matter to the consideration of the house on 26 November 2010; that is three months when it has not apparently been urgent enough to bring before the house. Still, anticipating the government's response, the opposition wants to underscore the fact that this should be a focused, expeditious inquiry. Therefore, I move the following amendment to the motion standing in the name of the Hon. Mark Parnell:

After 'refers the following matters to the Legislative Review Committee for inquiry and report' insert the words 'within two calendar months'

Amendment carried.

The Hon. D.G.E. HOOD (17:36): Although this motion is about referring the bill, not about the bill itself as such, our position, and I think it is fair to say the position of other members, comes down to a philosophical decision on whether or not people agree with police having these quite extraordinary powers.

The Family First position is that we do reluctantly agree with police having what are indeed extraordinary powers, and we acknowledge that. It is not desirable that a police force in a modern society has such powers, but we do not live in a perfect world. We are concerned about the sorts of measures that are being sought but, on balance, we think that there is a need for them. The police should be given the benefit of the doubt in seeking those extraordinary powers.

As the Hon. Mr Wade has said, we have had communications from Mark Carroll, President of the Police Association, and most of us would have had meetings with Assistant Commissioner Tony Harrison and, in our view, they have put their case to us persuasively enough for us to fall on their side of the argument in this case. I must say that I do so with some concern; these are extraordinary powers. As the Deputy Premier himself has said, this is not an ideal situation, but the reality is that we are not dealing with an ideal situation, and for that we need to bring ourselves to a situation where we make distasteful decisions, and that is where we stand at this time. That gives our general position.

In turning to the specific motion before us, the mover of the motion said that criminal intelligence laws are a 'dog's breakfast of inconsistent measures' and that some of the measures are legally invalid. The motion refers to the High Court case, which has been outlined by a number of members and which quite famously resulted in several aspects of our serious and organised crime act being struck down.

I note that Family First was and remains disappointed at the messy implementation of this law. Taxpayers spent vast sums of money defending the initial law and ended up having to pay costs to the Finks motorcycle gang as a result. It certainly would have been a quicker and cheaper route simply to amend the law appropriately when the wording was first brought into question by our Supreme Court. That being said—and this is a significant point—the K-Generation case has provided us with wording and a scheme that we now know is constitutionally sound.

Despite the various cases and discussions, now over several years, regarding criminal intelligence, the honourable member, in his introductory speech, said that now was the opportunity for 'a thorough analysis of the pros and cons of criminal intelligence in all its forms', with the opportunity for groups such as the Law Society and the Bar Association to give evidence and answer questions before a committee.

I am certainly not opposed to reviewing matters, but in this particular case there really is no question about what the Law Society's position is on this bill. In fact, we all have a letter from the Law Society, which outlines its position in some detail. To put it in very simple terms, I think the horse has already bolted on this issue, and that is really what it comes down to in many ways.

In fact, there are already 10 acts of parliament that use the concept of criminal intelligence. For the record, they are the Serious and Organised Crime (Unexplained Wealth ) Act 2009, the Serious and Organised Crime (Control) Act 2008, the Security and Investigation Agents Act 1995, Liquor Licensing Act 1997, the Hydroponics Industry Control Act 2009, the Gaming Machines Act 1992, the Freedom of Information Act 1991, the Firearms Act 1977, the Criminal Investigation (Covert Operations) Act 2009 and the Casino Act 1997. It is true: there are various interpretations of the term within those acts but, nonetheless, the principle applies in each of those acts.

Perhaps the most appropriate time for an inquiry along the lines proposed today would have been when those bills were being considered or introduced. Further, the Statutes Amendment (Criminal Intelligence) Bill is currently before us, and I suspect that it will pass this council, albeit possibly amended, in the near future. The bill will modify the definition of criminal intelligence in a number of bills following extensive consultation with police and other stakeholders.

The committee stage of that particular bill, in my view, is the appropriate time to discuss many of the issues that this motion seeks to move, if you like, to the Legislative Review Committee. I am not criticising the member for seeking to do that; he has every right to seek that, however, I disagree with the intention.

As I said, I have met with the Assistant Police Commissioner about this issue and have discussed it with him in some depth as has, I am sure, almost every member in this place. The police—and this is very important—were very clear to me that they particularly want certainty, they want a criminal intelligence regime that is solid, and they want a definition that is certain to hold up against a court challenge, as the new proposed definition already has (in the K-Generation case).

Further uncertainty and confusion regarding the concept of criminal intelligence is the last thing that our hardworking police need. Family First supports the work of our police force in reining in organised crime. I am not suggesting that other members in this place do not.

I am sure that other members would be aware that there were shots fired at a Salisbury home just this morning in what seems to be an increasingly common event that is regularly linked with bikie gangs and organised crime centred on drugs and other illegal activity in our state.

I certainly do not want to argue that we must always give police every single thing that they request. We should not. I want to be clear about that. Our job, of course, is to weigh those requests against the important need to maintain personal liberty and also community safety. However, the issue to Family First is a clear one: police do need power to tackle the very sophisticated manner in which crimes are committed in our current day and age, but they do not need those powers clouded or made uncertain by an unnecessary inquiry that, in my view, is too late in coming, given that these principles apply in other legislation.

Family First will not support this motion. We will continue—as I am sure other members will agree—to support our police in the fine work they do in this state.

The Hon. K.L. VINCENT (17:43): I wish to place on the record that I will be supporting the motion of the Hon. Mr Parnell. I believe that it makes sense for the Legislative Review Committee to inquire into the effectiveness, validity, impact and desirability of the criminal intelligence provisions which are currently on our statute books.

The concept of criminal intelligence does not sit well with me generally. I believe that it is an affront to the concept of procedural fairness, which is—or at least was once—at the heart of our legal system. I believe that we, as citizens, have a right to know what evidence has been presented against us when decisions are being made. I therefore consider that we, as a society, must be very wary about the use of criminal intelligence.

I understand that we in South Australia use criminal intelligence more widely than any other state in Australia, and this is of great concern to me. So, I am very interested to know about the effectiveness of such provisions and how they impact on our civil liberties. There is also the issue of the constitutional validity of such provisions. Let's face it, it is pretty important for us to get them right, or the laws mean nothing.

At the moment, we have two bills on our parliamentary agenda which deal with criminal intelligence in seven different acts. I believe that we, as responsible parliamentarians, have a duty to get this right, and the inquiry proposed by the Hon. Mr Parnell provides us with the opportunity to do so. Such an inquiry will provide an open forum in which interested parties can make submissions so that we as a parliament can give informed and proper consideration to this issue. It therefore seems timely for our Legislative Review Committee to enquire into this important issue before any further debate on the aforementioned bills.

The Hon. B.V. FINNIGAN (Minister for Industrial Relations, Minister for State/Local Government Relations, Minister for Gambling) (17:45): This motion before the house this afternoon illustrates very clearly the problem that we have with the approach that a lot of honourable members here take to legislation generally, and particularly to the criminal intelligence legislation. That is, whenever any item comes before the chamber on any topic, honourable members seem to then try to cast the net so much wider and look at a whole range of issues which were not under consideration in the context of the bill that is being moved.

There are so many examples where the government puts forward a fairly sensible and reasonable piece of legislation, and then honourable members opposite or on the crossbenches decide, while we're about it, let's start doing a whole range of other things that really weren't conceived of or taken into account in what that bill is all about. It is a bit like having a MasterChef episode with all the chefs and only one dish, because everybody wants to take part in it.

I do not dispute that we are here to legislate. People have a right to move amendments, to consider what the government is putting forward and to pass amendments if they believe that that will make the legislation better. This is yet another example where, if the government puts forward the Blue Sky Bill, a range of members in this place would say, 'Well, now that you mention "skies", there are 12 other related issues that we want to talk about right now.'

The idea that, because we put forward a bill that is about criminal intelligence in one context, we should stop and look at criminal intelligence in a wholly different context (that is, in the context of a High Court decision while there are other High Court decisions pending) and to turn that whole thing into an examination of the question more broadly rather than even dealing with the bill that is before the house is an extraordinary approach to legislating. It basically says that, rather than dealing with the legislation before us and rather than dealing with the committee stage as we do, that we should stop all that and just step back and take a look at the whole question and a lot of unrelated matters that are not relevant to the bill that is actually before us. That is what has happened on this occasion.

There is a very material difference between the provisions being proposed in the bill the honourable members have referred to and the serious and organised crime legislation which is referred to in this motion. One is about asking the government for a licensing of some sort, as opposed to the context of control orders being placed on them. So one is a person asking the state for a privilege—asking the state to give them something—as opposed to their losing a simple right, that of their civil liberties and, potentially, the right to free association and so on.

As there is in many areas of the law, there is a vast difference. Different thresholds apply in different circumstances, and there is a vast difference between people who are asking for some sort of licensing from the state and people whose liberties are being infringed because they are considered to be involved in serious and organised crime. So there is really no link between the Totani decision and serious and organised crime, and the provisions of the bill which were before the house and which members are now saying they cannot deal with.

We know that we are awaiting a decision from the High Court regarding a New South Wales case that is dealing with similar issues. I acknowledge that the Hon. Mr Hood has mentioned the K-Generation, and there have been other decisions which are relevant, but there is particularly a New South Wales case that is similar to the Totani matter. The oral argument is being heard, so a decision is expected fairly soon on that. When we have taken that decision into consideration, as well as the Totani decision, we will be able to provide an appropriate response (which the government will do) in relation to the decision the High Court has made in the Totani case.

This is really about restricting criminal intelligence in bringing matters in relation to matters that restrict civil liberties. That is a vastly different proposition to the criminal intelligence legislation, which we were dealing with yesterday. It is simply not comparing apples to apples. I understand the Hon. Mr Parnell is opposed to the use of criminal intelligence in relation to serious and organised crime. It is his right to take that point of view, but to link that, as a lot of honourable members have done, to the criminal intelligence legislation, suggesting that that is what is actually at issue here and that is what we need to look at, I think simply confuses the legislation entirely.

The shadow attorney-general, the Hon. Mr Wade, has continually said that the government will not talk, will not negotiate. It appears that his notion of negotiation is capitulation, that unless the government agrees to what he wants in the form he wants it then there is nothing to talk about. That is not negotiation: that is simply holding to ransom, and that is what the Hon. Mr Wade seeks to do.

The reason we have not agreed to the Hon. Mr Wade's amendments is that we do not agree with the policy perspective that he is coming from. We have seen in the Liberal Party, the Liberal opposition, that the wet faction is reigning supreme at the moment when it comes to law and order issues. We have the Hon. Mr Wade and Mrs Redmond, the Leader of the Opposition in the other place, very much taking a small 'l' liberal approach to law and order issues which distrusts the police, calls into question their integrity and does not listen to what they have to say. We are seeing that played out very clearly here.

We notice the Leader of the Opposition is not here, because he knows he has to go back to the police, he has to go back to the Police Association, and justify why his party, which purports to want to be the government of this state, is running away from the fight against organised crime. Members of the Liberal Party—and we have seen this in the past with Mrs Redmond—are nailing their colours to the mast when it comes to crime issues and law and order.

They are saying they do not trust the police. They are making snide remarks about the police's integrity and suggesting that they are politically motivated or that they are not following the standards of integrity and probity we would expect. Here they are saying that the police have no judgement when it relates to the criminal intelligence legislation. That is the approach that the Liberal Party is now taking.

The Hon. Mr Ridgway knows—he is smart enough to know—that you cannot go to an election being soft on crime and expect the people of South Australia to put at risk their safety by voting for him. That is the approach that the Hon. Mr Wade and the Leader of the Opposition in the other place want to take: to surrender in the fight against organised crime. That really is an extraordinary position for an opposition that wants to govern this state to take.

We do not agree with that perspective. That is why we are not negotiating on the Hon. Mr Wade's amendments. It is not because we do not want to negotiate or we do not want to talk. He is saying, 'Here it is; take it or leave it.' We do not agree with what he is proposing. The government opposes this motion, because there has been a complete confluence of these issues. We have here a motion about the Totani decision, which in itself we contend is premature, given that the High Court has not handed down its New South Wales decision.

When that happens we will need to look at the New South Wales decision; we will need to look at the Totani decision, the K-generation and all the relevant decisions; and we will need to weigh up how we are going to respond in relation to serious and organised crime legislation. That will be a serious and open debate, one that will require quite a bit of discussion with all the honourable members here and in the community more generally and with legal experts and so on.

No-one is suggesting that we should just ignore the Totani decision. Of course we need to review our response to fighting serious and organised crime, and that is what we should do once the New South Wales decision has come down. However, to then confuse the whole matter of Totani and the organised crime legislation with what the government was proposing in relation to the criminal intelligence bill is a complete confusion of the issues.

A bill which seeks to address the government licensing, giving some sort of privilege to people, is not the same as the government trying to stop people from exercising their liberty because they are believed to be involved in serious and organised crime; they are very different things. To simply say that because the words 'criminal intelligence' are used, let's lump them all into a basket, halt the legislative process, not have the committee stage of the bill, and instead throw it off to the Leg Review Committee and just let everything else wait until that is determined is not a sound approach to legislation.

It confuses the two issues; one is responding to the Totani decision, looking at our serious and organised crime legislation, and the other is the criminal intelligence legislation that we had before the house. To confuse those issues—to put them together, to halt the whole legislative process, to send it off to a parliamentary committee—is not, in my view, the appropriate approach to legislation.

I understand that the Hon. Mr Parnell wants to examine the Totani decision and what implications it has, and that will certainly be done. There will be a significant debate on that, most properly after the New South Wales related case in the High Court comes down. Then we will have before us, as much as possible, a clearer Idea of what the High Court is thinking across a range of cases in this area and we can move forward from there.

What we do not agree with is confusing that with the criminal intelligence legislation we had before the house and insisting that that legislation has to stop stone dead while this process takes place. So, for those reasons, we oppose the motion.

The Hon. M. PARNELL (17:56): In summing up, I would like to first of all thank the Hon. Stephen Wade, the Hon. Dennis Wood, the Hon. Kelly Vincent and the Hon. Bernard Finnigan for their contribution. I want to make some brief reflections on some of those contributions. I particularly thank the Hon. Stephen Wade for his thoughtful contribution, when he made the point very clearly, as I tried to do earlier, that this is not about whether you are a friend of the police or not. It is not about whether you are tough on crime or soft on crime.

We all agree that we want our police force to have adequate resources and the appropriate tools to do their job, and they are going to do that job in the context of the civil society that is South Australia. It is inevitable that they will never get every power that they want. I do not criticise the police for asking for wide-ranging powers, but our job as legislators is to make sure that the powers that we do give the police are appropriate, that they acknowledge civil liberties, that they acknowledge human rights and that we give our police every back-up, in particular in relation to resources, but we are not going to give a legislative blank cheque to law enforcement officers.

Criminal intelligence, as I see it, is a trend that has developed over a number of years and will continue to develop. It will develop in the absence of a proper and reasoned debate because we look at it on a case-by-case basis and with a piecemeal approach as each bill comes before parliament. I might just say at the outset that the Hon. Stephen Wade predicted that we would get the 'soft on crime' attack if members supported this—and we got that. That is not the way to look at this—if members are starting to think that by supporting this motion they will somehow be soft on crime.

I will acknowledge now, in case I forget later, that the Greens support the honourable member's amendment, which is that this committee inquire with all haste and, in particular, within two months. The Hon. Dennis Hood's contribution included a reference to the fact that the Family First party is not opposed to reviewing matters but feels that the horse has already bolted. That might well be the case, but it has never held much weight with me as a reason for not looking into something. Because we have done something in the past and because a practice has developed that somehow it makes it immune from further inquiry and debate does not work with me.

The honourable member said that we should have looked at this earlier. Well, we should have looked at it earlier. I do not doubt that. I have done what I could ever since I have been here, whether it was in relation to the serious and organised crime bill or even some of the civil measures that have come before us. I have tried to get the debate happening. We all know that debates in this place are inadequate compared to the type of debate that we can have in a parliamentary committee, because there is no opportunity for varying points of view from experts directly to be presented to us. You can do that in a parliamentary committee.

I would want the police to attend and give evidence to the Legislative Review Committee. I would expect that the Law Society and the Bar Association would do so as well, and we would get on the public record of this state a thorough range of arguments for and against. But to suggest that somehow we have been doing this for a few years now and it is therefore too late to look at it, I do not accept. I understand that the police want certainty, but I do not agree that having an inquiry into something equals a lack of certainty.

In fact, one of the purposes behind this motion—and members can read it in the terms of reference—is the fact that current measures are inconsistent. If anything, a successful inquiry by the Legislative Review Committee would lead to more certainty, not less. The Hon. Bernard Finnigan's response on behalf of the government I found somewhat confusing. He makes a great deal of the fact that legislation dealing with the rights of liberty of the individual are very different from some of the other pieces of legislation where criminal intelligence is used.

I do not see that they are that different, because the concept that binds them all is this concept of evidence that can be used to your disadvantage will be held against you with no right for you to even know what it is, let alone respond to it. Now, sure, the consequences are different. Maybe in criminal and organised crime you go to gaol.

[Sitting suspended from 18:02 to 19:45]

The Hon. M. PARNELL: Before the break I started to talk about the Hon. Bernard Finnigan's contribution. He said that he felt that the two uses of criminal intelligence—namely, in the criminal law with criminal sanctions and in other types of laws, such as licensing laws—were so fundamentally different that it was improper, if you like, to confuse the two. I reject that analysis.

We know that where criminal intelligence is used in a criminal law context then, certainly, the outcome can be the deprivation of someone's liberty, or it could be restrictions on a person's movements or freedoms of association. The use of those laws in licensing arrangements may well be equally serious for an individual. It may be that a person is denied their livelihood—for example, the livelihood of someone working in the liquor industry who requires a licence to work, or someone who works in the security industry who requires a licence to work. So I do not accept that the two situations are so fundamentally different that it somehow invalidates an inquiry into the overall topic of criminal intelligence. The minister says that we are confusing the issues: I do not think that is a reason not to look at it in detail.

The minister also referred to his disappointment about what we in the Legislative Council describe as negotiation and wanting to have a thorough debate on an issue; somehow he translates that as capitulation, that it is 'my way or the highway'. He used the words that we would be 'holding the government to ransom'. I think that the Legislative Council, in fact, gives the government possibly far more rope than it needs in terms of legislation. We often do not inquire thoroughly into legislation; there are so many bills that we could—and I think we should—have referred either to select or standing committees, but instead we allow an inadequate, incomplete debate, and we pass the legislation.

I think the Legislative Council does its job best when it picks fundamental issues of importance to the community and, in this case, fundamental legal issues, fundamental infringements of civil liberties that have been developed over centuries. I think it is most appropriate that this topic be referred to the Legislative Review Committee.

Much of the contributions to date have been around the reference of particular bills to this committee. When I first put this motion on the Notice Paper,it was shortly after the Totani decision, last year. I formally moved the motion last month, but when I originally put it on the Notice Paper it was not with any particular bill in mind; in fact, it was in relation to the fact that generally, as a parliament, we were considering more and more criminal intelligence in more and more pieces of legislation. I just put that historical aspect on the record.

I would urge all honourable members to support this motion. The Hon. Stephen Wade's amendment, as I have said, which the Greens do support, provides that it will be a timely inquiry. It is not designed to be time wasting but is designed to make sure that this parliament does its duty properly and has a thorough inquiry, albeit a short one, into an issue that we have not properly debated on any of the occasions that it has been brought before this chamber.

Amendment carried.

The council divided on the motion:

Majority of 1 for the ayes.

Motion as amended thus carried.