STATUTES AMENDMENT (CRIMINAL INTELLIGENCE) BILL

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: Considering that it has been restored to the Notice Paper and perhaps, unusually, it is a bill that has not actually been before this chamber since 2010, I thought it might be of assistance to the council if I reiterated not only the key points of the opposition's position but also provide an update on what has happened since 2010. There have been a number of developments and changes to the Liberal approach. In that context there will be two sets of amendments, and I will guide members as we go through committee as to which amendments I will put in the current Liberal position.

Over its term the Rann/Atkinson, Weatherill/Rau Labor government has introduced a range of bills that have allowed police to use secret evidence without making the evidence available to other parties, including the affected party. This is a fundamental divergence from the rule of law principle that a party has the right to know the case against them and be given a fair opportunity to rebut the case. The Weatherill/Rau government has followed in the footsteps of the previous Rann/Atkinson government in continually providing laws that challenge the rule of law.

In my view, they are driven more by public relations needs rather than delivering outcomes on the ground. The government calls secret police evidence 'criminal intelligence'. In my view that is misleading in that this bill is not about whether or not authorities should be able to use police intelligence against criminals: of course they should, of course they do, and of course they will continue to do so. What is at issue is whether the government needs to respect basic principles of the rule of law, basic principles of justice, the most relevant being that a person should know the case against them. The government wants to be able to use secret evidence without observing the normal rules of natural justice, due process and evidence.

Most of the uses of secret evidence have been in administrative and regulatory processes, but the bill seeks to preserve the confidentiality of material, including within court proceedings which constitute an appeal within administrative and regulatory processes. In 2008, provision was made for the use of secret evidence in relation to the Serious and Organised Crime (Control) Act, and that act can lead to criminal sanctions.

On 25 October 2010, the government introduced a bill to standardise the range of provisions in the light of the High Court judgement in K-Generation. This bill, which is the bill that is before us today, was last considered in committee in the Legislative Council on 25 November 2010. On 9 March, the Legislative Council referred the issues of criminal intelligence and other matters to the Legislative Review Committee for inquiry. The committee reported on 18 October 2011.

The majority report, supported by government members and the Hon. John Darley, endorsed the government's criminal intelligence model but, in doing so, recommended that all acts containing criminal intelligence provisions be amended to provide for an annual independent review and report on its use. Now, almost 6 months later, the government has restored the bill to the Notice Paper and insists that the bill be passed unamended.

This government considers that government bills are infallible and cannot be improved—that is indicative of the general arrogance of the government—but this is a particularly arrogant stance when the reason that this bill was necessary in the first place is because the government needs to remove provisions that the High Court is likely to find invalid. That fact alone shows that government bills can be improved.

Further, the fact that the government's own members in the Legislative Review Committee recommended that the bill be amended shows that government bills can be improved; yet this government did not take the opportunity, in restoring the bill to the Notice Paper, to provide amendments reflecting the recommendations of their own members in the Legislative Review Committee. The opposition, in contrast, has consistently shown an open and constructive approach to improving this legislation.

I would remind the committee that our original 2010 amendments sought to focus the use of criminal intelligence on serious and organised crime. The government said that the amendments were unworkable. In 2010, we repeatedly indicated to the government our willingness to consider alternative amendments. On two occasions, we understood that the government was going to do so. On both occasions, no amendments were forthcoming.

The opposition showed that it was genuinely constructive through the Legislative Review Committee process. The minority report of the Legislative Review Committee was supported by opposition members and found that, with safeguards, there was scope for criminal intelligence to be used beyond serious and organised crimes. In other words, there was a significant shift in the position that we had put to this house in November 2010.

The minority report suggests that we allow a broad use of criminal intelligence but within a framework of standards and accountability. In spite of the best efforts of police, police intelligence can be unreliable or even fabricated. Lack of scrutiny undermines reliability, increases the risks of miscarriages of justice and undermines public trust in the police and the justice system as a whole.

The minority report suggests that we draw on commonwealth anti-terrorism court procedures contained within the National Security Information (Criminal and Civil Proceedings) Act 2004. The constitutionality of the commonwealth act was confirmed in R v Faheem Khalid Lodhi. The commonwealth act balances the need to protect sensitive information of the commonwealth while providing for due process. The sensitive information may be national security information as we would normally know it or it may relate to law enforcement interests—the sorts of values that are protected by criminal intelligence.

The opposition position is that we will support the bill and allow continued use of secret police evidence but only if the use is subject to enhanced reporting and accountability and similar safeguards that apply under commonwealth national security laws. It is our view that, if these protections are appropriately offered to terrorists, we cannot see why it is not appropriate to provide them to ordinary South Australians.

In our view, our amendments are as much about protecting the police as about protecting our citizens. The police are vulnerable to unreliable information which may be provided vexatiously. It is important for the integrity and reputation of the police and the integrity and reputation of the whole justice system that there are safeguards in place to maintain standards.

The opposition amendments confirm the scope of criminal intelligence. We propose that police should be able to classify intelligence as criminal intelligence where the disclosure of the information could be reasonably expected to prejudice criminal investigations, enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement, or endanger a person's life or physical safety. We understand that that scope is the same scope that the government proposes.

Once police have decided that they want to present criminal intelligence, the government's legal representative would be required, at the earliest opportunity, to identify that classified criminal intelligence would be tendered in proceedings. The court would be able to do a range of things, including view any information, hold a pre-trial conference, hold a closed hearing, and involve the affected parties and/or their legal representatives.

We want to be explicit about the quality threshold levels of reliability under internationally recognised police intelligence classification systems before intelligence should be able to be used as classified criminal intelligence. I should foreshadow that when we say that, we do not actually specify which system they would be or what would be sufficiently reliable. Those matters are left to the judgement of the police, but I think it is an indication from this parliament that we look forward to quality being preserved through measures such as that.

In terms of reporting and reviewing, the opposition considers that police should maintain records on how often criminal intelligence is used and how many people are affected. This data should identify the use of criminal intelligence in relation to each act which permits the use of criminal intelligence. Reporting enhances continuous improvement within the police and accountability to the parliament and the community.

In addition, each year we consider that a retired judge should undertake an independent review on use of criminal intelligence and report to parliament. The report should include a review of the operation of police processes to ensure that discredited intelligence is marked as such within police systems, with appropriate audit arrangements.

That last element, particularly in terms of how police handle discredited intelligence, was a matter that was discussed at length in the Legislative Review Committee so it was not surprising that those last two elements, recording and reporting and the review process, were recommended by the Legislative Review Committee. As I said, the government did not see fit to include that in the reintroduced bill or table amendments to that effect. The opposition has done so.

To maintain due process and reflect similar processes to those under the commonwealth act, the courts could be required to assess whether the classified criminal intelligence is properly classified and whether it is sufficiently reliable and of such probative value that it is the interests of justice to be admitted. It is the opposition's view that the courts should retain overarching control of judicial proceedings to protect the rights of all parties to a fair process and to protect the administration of justice. The court should maintain a discretion as to the disclosure or nondisclosure of information properly classified as criminal intelligence but, if the court proposes to disclose, the government's legal representative should be entitled to withdraw the information.

We consulted a range of legal stakeholders in developing these amendments, and of course we engaged parliamentary counsel. In terms of the views of the legal community, it would be fair to say that it had significant concerns with any use of secret police evidence. but generally the advice we got back was that it was supportive, at least of providing safeguards.

The government has repeatedly claimed that this and other bills related to serious and organised crime are urgent, but I remind the committee that this council last considered this bill in November 2009, and the Legislative Review Committee report was tabled in October 2011. Almost six months later the government is now reintroducing a bill without any amendments, not even amendments suggested by government members.

I think it is important for the parliament to stay alert as to how laws are being used and, in that context, assess the government's request for new legislation in the light of its understanding of how the legislation had been used in the past. In that regard issues were raised earlier this year in relation to the use of criminal intelligence and firearm prohibition orders. Firearm prohibition orders were enacted in 2008 as a tool against organised crime, but there has been a low take-up of those orders. For example, in relation to the 274 members of outlaw motorcycle gangs, less than 10 per cent of them have a firearms prohibition order on them.

One of the arguments put forward for such low numbers is that the police needed to use criminal intelligence and this bill had not been settled. Personally, I find that argument unconvincing. First, criminal intelligence has not proven to be widely used in relation to firearms proceedings. On the government's own figures, criminal intelligence had not been used in relation to the Firearms Act between 2003, when it was enacted, until 2010. Secondly, the government's own firearms prohibition orders legislation included what the government now considers to be a faulty criminal intelligence scheme and, indeed, laid unproclaimed without any attempt to amend it for 23 months. I look forward to the committee stage of the bill.

The Hon. G.E. GAGO: The government rises to oppose this amendment and, in fact—

The Hon. S.G. WADE: Point of order, Mr Chairman. That was a clause 1 comment; I was not moving anything.

The Hon. G.E. GAGO: I beg your pardon.

The Hon. M. PARNELL: It may assist the committee if I put the Greens' position in relation to these amendments and this bill on the record now. The first thing is, and it will come as no surprise because it is a consistent position that we have taken over the last six years in this place, that the Greens do not like this increased use of criminal intelligence. We think that, as it has been legislated and is proposed to be legislated further, it has the capacity, the potential to be misused and, certainly, I think we are seeing signs of it being overused.

I moved for the Legislative Review Committee to look at criminal intelligence, as it did, but I disagree with the majority government findings. I am not convinced that the bill as drafted is an appropriate use of this fairly serious infringement on what is a basic legal principle: the right of people to know about allegations made against them and to respond to those allegations. I remind the committee that we debated criminal intelligence, obviously, in the serious and organised crime legislation. I was one of only two members of parliament out of 69 who voted against that legislation. We voted against it because we knew that the government was overstepping the mark in relation to basic legal principles. The High Court agreed with us.

Anyway, the government is trying again, and there has been a range of cases that have called into question different aspects of criminal intelligence. The government is holding its ground and it is not backing away from the use of this principle. The use of criminal intelligence in serious criminal matters is one side of the debate, but its use in what are essentially civil and administrative jurisdictions is another thing entirely.

We last debated this back in 2010, as the Hon. Stephen Wade has outlined. The Greens, at that stage, supported the Liberal amendments not because we thought they were perfect but because we thought that they made a bad situation better. They provided for more transparency and more accountability. Our support for the opposition amendments, which is ongoing, needs to be seen in that context. The Hon. Stephen Wade uses the word 'enhanced' reporting and accountability, and we accept that that is better than the status quo that is in the bill.

However, we do not like the bill and we do not believe that it is necessary. We think that the government has got the balance entirely wrong when it comes to the administrative convenience, if you like, when compared with sacrificing fundamental legal protections that have been developed over centuries. As I say, we think that the right of people to know and respond to allegations that are made against them, whether it is in a criminal jurisdiction or a civil jurisdiction or a licensing jurisdiction, is a fundamental principle that should be enshrined and continue to be enshrined in both common law and statute law.

In summary, the Greens will be supporting the Liberal amendments, but we will be voting against the third reading of this bill, regardless of whether or not the amendments are successful. That is the position that we took back in 2010, and we have not been convinced by anything that has been said since.

The Hon. G.E. GAGO: The government would like to make a clause 1 contribution and outline its position, which may help expedite then the clause by clause considerations. The Hon. Stephen Wade is proposing to move an extensive range of amendments to this bill. The effect of those amendments is to delete all the government's bill and replace it with a new and unworkable scheme of the opposition's devising. The bill and its original purpose have been completely hijacked by the opposition and these amendments.

This is not improving the bill by a house of review at all. It is a private member's bill under another name. I think it is also worth noting here that both SAPOL and the Police Association support the government's bill and they both oppose the opposition's amendments, so I have been advised. In the light of all this, there is obviously little point in debating the opposition's amendments one by one. They stand and fall as a package. The debate should take place, I believe, on the first of them, and the government will be rejecting all of them.

I think that it is important to begin by reminding honourable members about exactly where this bill is now and how it got here. The bill was introduced into parliament on 27 October 2010. The object of the bill was breathtakingly simple. There are a number of acts on the statute book which deal with criminal intelligence and authorise its use in certain proceedings. There are three versions of the criminal intelligence provision already passed by this parliament in the statute book. The Statutes Amendment (Criminal Intelligence) Bill does not propose to add a single new criminal intelligence provision.

Let's be really clear about that. It is not adding one more criminal intelligence provision to our statute book—not one. It is simply designed to make the existing provisions uniform and, more importantly, to adopt the terminology which was expressly approved by the High Court, no less, a decision by K-Generation Pty Ltd v. Liquor Licensing Court (2009). The case dealt with the provisions in the South Australian Liquor Licensing Act. This bill before us is overtly and quite clearly simply tidying up a bill.

The bill passed in another place on 10 November 2010. It was introduced into this place the same day, then debate proceeded in a fairly leisurely way. We reached the committee stages by 8 March. In 2011, the opposition filed quite a lengthy series of amendments (not quite as lengthy as this lot). The government opposed them. It was clear that the government did not have the numbers, and the first of the opposition's amendments passed. Progress was reported and the rest, as they say, is history; here we are today.

In the meantime, the Hon. Mark Parnell had moved that the matter of criminal intelligence generally be referred to the Legislative Review Committee. That was done on 9 March 2011. The matter proceeded, again in a fairly leisurely way. The matter returned to the council on 19 October 2011. That report was generally in favour of the government's position. The opposition put in a dissenting report and indicated that it was adamant in continuing to amend the government's bill—the Greens agree with that—and there the matter rests.

It is now March 2012, and 16 months have passed. I think it is an absolute disgrace. Now we are faced with a raft of different amendments which, as I have indicated, are not really amendments at all. The government will be opposing them. The government will drop the bill rather than accede. If the High Court invalidates one of these criminal intelligence provisions, or a member of an organised crime group obtains a firearms licence because the Registrar was reluctant to rely on the existing criminal intelligence provisions, the blame will squarely rest where it belongs, and that is on the shoulders of the opposition. The blood will be on their hands. The opposition is using the opening of this legislation as an opportunity to hamper the efforts of police to disrupt organised crime. For whose benefit? The criminals?

A key question is the operation of the proposed amendments to the Evidence Act that deal with how criminal intelligence information is to be handled. The proposed section 67L evidences a complete lack of understanding on the part of the opposition about how appellate proceedings work. Except in the rare case of fresh or further evidence, an appellate court determines an appeal on material upon which the matter was decided in the first place. Requiring the Crown to give notice of its intentions in an appeal and determining whether the material can be relied upon before embarking on an appeal is novel, to say the least. The opposition should not attempt to change what they do not clearly understand.

In those instances where the Crown sought to adduce criminal intelligence evidence before a court at first instance, I am advised that, incredibly, the proposed amendments would have a significant negative impact on the operation of those acts that directly target organised criminal, namely, the Serious and Organised Crime (Control) Act 2008, as it relates to control orders and public safety orders, the Serious and Organised Crime (Unexplained Wealth) Act 2009, and the Summaries Offences Act 1953, as it relates to applications to remove bikie fortifications, by making it harder for police to introduce criminal intelligence evidence.

Under the existing arrangements, which the government's bill does not alter, the court is not required to embark upon an inquiry to determine whether it will receive the criminal intelligence. The court receives it and decides what use, if any, it will make of the criminal intelligence. In the case of Tamasebi v the Commissioner for Consumer Affairs is a testament to the fact that this process is working. That particular case did not rely on criminal intelligence, so why is the opposition intent on trying to change a system which works and which has been quite clearly unequivocally endorsed by the High Court? Under the government's bill, the courts retain control.

Significantly, proposed section 67L of the Evidence Act requires a court to assess whether evidence is sufficiently reliable twice—once when determining whether the information is properly classified as criminal intelligence and then again when determining its reliability. This is untenable. Similarly, the criminal intelligence provisions proposed by the Hon. Mr Wade do not provide any evidentiary aid to enable criminal intelligence, which is usually hearsay (that is, it is from an informant) to be admitted in the first instance. I stress that, under the proposed amendment by the Hon. Mr Wade, it will not provide evidentiary aid to enable criminal intelligence to be admitted in the first instance. The practical effect is to render the criminal intelligence provisions largely useless.

However, the greatest insight into the opposition's complete lack of understanding about criminal intelligence is evidenced by the fact that their proposed amendments contemplate that the Crown would seek to adduce classified criminal intelligence evidence in criminal proceedings, when in fact none of the acts that provide for the use of criminal intelligence currently contemplate this.

There can be no doubt that use of criminal intelligence allows for the making of informed decisions. The ability to classify information as criminal intelligence allows members of the community to be protected whilst providing relevant information to decision-making authorities and without impeding the flow of that information to the police. SAPOL is aware that classification of information as criminal intelligence invokes a tension with an aggrieved party that results from the breach of procedural fairness.

Since the introduction of criminal intelligence provisions, SAPOL has been diligent in the proper classification and use of criminal intelligence and has done so sparingly and only when absolutely necessary. This information is used by police to fully inform appropriate decision-makers with information that might impact on their decision. Sometimes police have been required to provide information that might place persons at risk. As decision-makers can give the criminal intelligence no weight in their determinations, SAPOL is of the view that the current processes achieve the right balance between protection of the community and the rights of the individual.

Without the harmonisation of legislation as proposed within the bill, there is a real risk that the capacity to use certified criminal intelligence in appropriate circumstances will be prevented on a permanent basis. SAPOL is currently being frustrated in its ability to rely on the use of certified criminal intelligence with respect to the Firearms Act.

The opposition has taken great delight in reminding the government and the community that it had concerns about the constitutional validity of the Serious and Organised Crime (Control) Act 2008 before it was passed. Ever since the High Court declared sections of that act to be invalid the opposition has regularly reminded us with, 'I told you so.' How ironic then that now, when the government seeks to introduce amendments to ensure the constitutional validity of provisions in other pieces of legislation, the opposition opposes that course of action. As I have said, the government will be opposing all of these amendments and I urge honourable members to support the government's position.

The Hon. D.G.E. HOOD: I would like to make a brief contribution on clause 1. I think members are very familiar with this suite—if I can put it that way—of legislation before us. We have had various forms of it dating back for several years now, and as members would be aware there has been a High Court ruling, etc. I think it is fair to say that this is a suite of legislation that members are perhaps more familiar with than almost any other legislation we have dealt with in this place in my time; that is, six years in this place.

I have a few brief comments to outline Family First's position. I think it is fair to say that we have been consistent in our support of this legislation for that period of time in its various forms; that is, the various number of bills that have been presented to us. I state today for the record that Family First maintains that position. We are strong supporters of this legislation. While the detail of such legislation will always be subject to criticism, and I am not suggesting that is a bad thing, that is, after all, what a Legislative Council seeks to do, I think the principle and the objectives of the legislation are spot on.

I would like to take this opportunity to thank the Attorney-General and the shadow attorney-general for the more than generous provision of their time in the consultation of these bills over the last few years. I think we come to this debate, as I am sure all members do, very well informed and with a very clear understanding of exactly what the issues are.

I guess that gets to the meat of what I wanted to contribute. In very brief terms, I will mention what I have outlined in my quite extensive second reading contribution over the last few years on these issues—particularly, on the last one I gave a few weeks ago, which was an attempt to address all of these bills in one speech, albeit in brief form. The bottom line for us is that in our current environment in our society there are times when we need what would have historically been considered extraordinary measures. There is no doubting that these bills, including the one we are focussing on now, contain what are considered extraordinary measures. Nonetheless, we believe that the circumstance warrants their support.

By way of emphasis on that, I am sure members received a copy of the letter from the Police Association, and communication and consultation from the police force directly regarding their position on this bill. Any member who reads this letter carefully—and I am sure we all have—would have taken note of a number of phrases in that letter, for instance, that a weakening of the bill would put public safety at risk. That is one of the phrases in the bill. I know that is not the intention of anyone in this chamber—I am sure it is not. Nobody in this chamber would be actively seeking to do that, but when you have the Police Association and the police making the claim that that is the effect, then I think that gives us pause as members to carefully consider the implications of what we do on this and other bills.

We have had extensive consultation. I say for the record that our position remains unchanged. We support this suite of legislation, including this bill. We are also unlikely to support amendments. We will, of course, listen to the amendments as they are debated; that is the democratic process which we strongly support and we will be mindful of that. I indicate at the outset that that is the likely outcome for our party. I think I will leave it at that. I look forward to the further committee stage.

Clause passed.

Clauses 2 and 3 passed.

New clauses 3A and 3B.

The Hon. S.G. WADE: I move:

Page 3, after line 1—Insert:

3A—Amendment of section 3—Interpretation

(1) Section 3(1)—after the definition of child insert:

classified criminal intelligence means information determined by the Commissioner of Police to be classified criminal intelligence under Part 9A of the Police Act 1998;

(2) Section 3(1), definition of criminal intelligence—delete the definition

3B—Amendment of section 45A—Commissioner of Police's power to bar

Section 45A(3)—delete 'information that is classified by the Commissioner of Police as' and substitute 'classified'

My comments on clause 1 have given an overview of the amendments we intend to move. I welcome the government's indication at clause 1 that they were giving an overview of their position on all of their amendments and, likewise in my comments on this amendment, because they are interrelated and intermixed, I will make one contribution which will speak for all of them and, by implication, this will be a test clause for the council's attitude to them.

The amendments seek to do three things: first of all, to ensure that courts retain an awareness of their responsibilities to manage classified criminal intelligence presented in proceedings before them; to enhance police classification, recording and reporting of criminal intelligence; and to provide for regular reviews of the use of criminal intelligence. The overarching concern expressed and reiterated by the minister this morning is to standardise the criminal intelligence provisions to ensure their constitutionality.

We, too, in the opposition share that concern. It has been expressed to us repeatedly that with the shifting attitudes of the High Court, the K-Generation principles on which the government's model is based may be in jeopardy. What I am saying there is that the High Court since K-Generation has had two substantial cases—Totani and Wainohu—which have shown what you would call a strengthening of the court's assertion of the independence of the courts.

In that context, having said that, the opposition amendments are designed to enumerate the principles of the role of the court that was affirmed within K-Generation, and we think that that sort of reiteration or enumeration is wise in the context of the evolving court. The French court, as this parliament is very well aware, has had a strengthening attitude to independence. That is shown by the fact that the government, after the K Generation case was settled, legislated in relation to soccer, believed it had a constitutionally robust regime, and in Totani section 14(1) was found to be invalid.

Again the government was of the view, although a new South Wales statute, that it was robust, and in that case the whole act was found to be invalid. As the opposition we want to ensure that law enforcement powers have longevity and will maintain their constitutional integrity and are future proof. We believe these amendments would actually strengthen the constitutional robustness of the legislation and therefore assist the police.

In our view it is important that the police get access to secret police evidence. We have significantly changed our position from November 2010. At that stage we were wanting the use of this intelligence to be limited to serious organised crime as that is what the government said it needed it for, but in dialogue with the government about the impact of those amendments we withdrew that approach, particularly through the Legislative Review Committee process.

We believe we owe it to the police to give them laws that are robust and will stand the test of time. We owe it to victims to make sure justice is done and seen to be done. We also owe it to the accused that the allegations against them can be tested and that proof beyond reasonable doubt can be promoted.

Turning to the amendments in particular, [Wade-4] No. 2 would benchmark the commissioner's classification of criminal intelligence against international standards. Another thing apparent during consideration of the debate on the bill over the last 18 months was the stark lack of information around the use of secret police evidence, so in the same amendment we propose that information be collected by the commissioner about the number of times classified criminal intelligence is used and the number of persons affected. We are certainly not proposing that secret evidence be exposed or reported publicly, but we think that when extraordinary powers are used there should be checks and balances, including accountability.

Consistent with this we propose that annual reviews are undertaken to monitor the use and classification of criminal intelligence. Since the restoration of the bill and the time we filed the [Wade-3] amendments, we appreciated the opportunity to meet with one of the government's legal advisers about our proposed amendments, and we acknowledge that they raised a number of issues with us in relation to the amendments and, in particular, their concern about the proposed public interest monitor.

Having considered the issues and sought advice, we are satisfied that a judge considering a matter through such procedures can seek by affidavit information that we envisaged might more readily be available under a public interest monitor scheme. Our focus is to ensure the court retains the right to test the veracity of the evidence, but we have been persuaded that a public interest monitor is not necessary.

I notice that Queensland and Victoria are using public interest monitors in different ways and, to be frank, it is a concept that I believe the parliament should consider in other contexts and it may well in due course have relevance in the context of criminal intelligence. In relation to the issues raised with us, and the advice we received, we will not proceed with the public interest monitor elements of the scheme. Again we believe that indicates a constructive approach from the opposition and I stress that we do not see that as stopping today. I will come back to that at the end of my comments.

Another concern raised with us was the difference in wording between section 67L(2)(b) and section 63B in relation to 'sufficiently reliable' versus 'reasonably reliable'. Again, we accepted that it is appropriate to have consistency between the provisions and [Wade-4] reflects a change in the amendments accordingly. We also received advice that, 'on the balance of probabilities' and 'likely to' were problematic terms in relation to the threshold of the classification of criminal intelligence proposed in section 63B. Again, we have tried to accommodate this concern and we have gone to the original wording which is 'reasonably expected to'.

As I said, the opposition has consistently sought to be constructive with amendments and has consistently invited the government to offer alternatives. In that regard, I suppose I would summarise my understanding of the government's position in relation to these amendments in relation to three points. First of all, I understand the government would argue that the amendments are unnecessary and that K-Generation is sufficiently understood by the courts and being used appropriately such that the amendments are not needed.

The consultation that we have had with the legal community, reflected also in the evidence before the Legislative Review Committee, is that there is not sufficient clarity and that it would be beneficial to reflect constitutionally recognised principles in a process in an act. Secondly, it is put to us that it is unworkable. I would indicate to the minister, the Leader of the Government, that, just as we have shown ourselves amenable to amending our amendments to make them more workable, I will continue to do so.

The third point is, as I understand the government's advice to me, they do not think that my amendments achieve what I want to achieve. Let me restate the key goal: the key goal is to improve safeguards. I would indicate today that, if the government was willing to offer a set of amendments which put in place safeguards, I would be happy to work with them on that. There is nothing sacred about our draft. As I think I have said on a number of occasions when the council has needed to divide on these issues, we urge the council to support the amendments, not because they are perfect, not because they will be final, but they are at least an opportunity to work through these issues.

In relation to the minister's comments that the government is threatening to drop the bill, we certainly do not welcome those comments. As I have stated again and again in my contribution this morning, we want police to have access to secret police evidence. In contrast to our position in November 2010, we want police to have access to secret police evidence across all defendants. I know the police will not be using secret police evidence lightly. The information we received at the end of 2010 is that it is not used heavily even now but, as I have indicated to the government in relation to this matter and other matters, that does not mean that we should treat this legislation lightly.

The fact is that the current members of the South Australian police and the current members of other elements in the justice system may well be using a set of powers appropriately. That does not mean that we should put in place legislation that does not give due regard to balancing the interests. With those comments, I would urge the council to support the amendment standing in my name. As I said that this would be a test clause, I would stress again that, if the council does support the amendments, the opposition stands ready to work with the government to look at the best way to ensure that this bill reflects safeguards.

The Hon. G.E. GAGO: The government has already put forward its substantial arguments for the opposition of this amendment and the following amendments, so I do not want to go over those arguments too much. I do want to put on the record that we accept this first amendment as a test amendment to the rest of the Hon. Stephen Wade's amendments. I think that is a sensible thing to do. The only thing I want to say is that I want to remind honourable members that the bill before us does not add any new criminal intelligence provisions; there are no new provisions to be added. It simply makes uniform the criminal intelligence provisions that currently exist in our statutes. It provides consistency.

The model we are proposing is in line with the High Court decision, and we know that SAPOL has made it very clear that it believes that without this consistency and guarantee it could potentially lead to a risk to public safety. SAPOL and the Police Association support this bill as it stands. SAPOL and the Police Association do not support the amendments of the opposition.

In relation to a couple of comments made by the Hon. Stephen Wade, I have been advised that the High Court has endorsed its decision of the K-Generation, in its decision of Totani, and there is absolutely no indication whatsoever that the High Court would move away from that. In fact, it has already endorsed its own decision quite clearly in the courts. To suggest, as the Hon. Stephen Wade has, that it may be moving away is quite misleading to this chamber.

I also want to remind honourable members, given some of the comments that the Hon. Stephen Wade made in his second reading contribution, that the Tamasebi case demonstrates quite clearly that the model the government is proposing does work; it is living proof that what we have before us today actually does work within our system. It is also important to clarify, given some of the comments and innuendo of the Hon. Stephen Wade, that SAPOL does in fact support the government in dropping the whole bill in its entirety if the Hon. Stephen Wade's amendments were to be successful. So its view is that they would be completely unacceptable, the bill would be completely unacceptable, and it supports our dropping the whole thing. That is what I have been advised.

The Hon. S.G. WADE: I have no doubt that South Australia Police and the Police Association fully support the legislation; that has been very clear to me. The brief comment I want to make is that I accept that the Police Association and the police would rather legislation not proceed than it be amended in its current form, but I would like to put the question to the government in a different way. Is it conceivable that there would be a set of safeguards that the government, the police and the Police Association could find acceptable? If that is the case, I believe it is worth continuing work on this bill because it is certainly the opposition's strong view that, in terms of balancing the interests, it would be useful to have more clearly enumerated safeguards in the legislation.

The Hon. G.E. GAGO: Yes, there is indeed the possibility of reaching consensus on a set of safeguards. They are before us in this bill. That consensus has already been arrived at, and it is delivered here in this bill before us. We believe this bill delivers the right balance and has the degree of safeguards necessary. I can only reiterate: this does not introduce one single new provision of criminal intelligence—not one. All it does is simply make consistent the provisions that already exist in our statute books.

The Hon. D.G.E. HOOD: I would like to clarify a statement made by the minister. Was I correct in hearing the minister say that both SAPOL and the Police Association would prefer that they have no bill rather than an amended bill? Is that is their formal position?

The Hon. G.E. GAGO: I have been advised that SAPOL has clearly indicated that position.

The Hon. D.G.E. HOOD: Our position is unchanged; we will not be supporting the amendment. Just for clarification, we are supporting the bill.

The committee divided on the new clauses:

Majority of 1 for the ayes.

New clauses thus inserted.

The Hon. R.L. BROKENSHIRE: Mr Chairman, I wish to offer an explanation. The bells were not able to be heard in one of the MP's adviser's rooms in the lower basement, which is where I was. They were not working at all and were very quiet in the hallway. I just want to report that to the chamber.

The CHAIR: Fair enough.

Progress reported; committee to sit again.