CRIMINAL LAW (SENTENCING) (SUPERGRASS) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 28 November 2012.)

Clause 1.

The Hon. G.E. GAGO: There are a few comments and questions that were asked during the second reading contributions that I would like to take this opportunity to deal with now at clause 1. I thank those members who have contributed to this debate. Though it may strike some as unpalatable that criminals can escape with a lesser sentence in return for providing valuable assistance to authorities, without such cooperation it is impossible to bring criminals involved in serious and organised crime to justice.

Such cooperation, for example, in the Melbourne underbelly gangland killings proved vital in bringing many of the perpetrators to justice. The Hon. Stephen Wade has also helpfully highlighted the strong benefits to law enforcement of supergrasses overseas in Canada, and especially England.

The Hon. Ann Bressington has asked for clarification of what may be covered by the expression 'exceptional cooperation' in the bill. I am reluctant to go beyond what is already defined in the bill and explained in the second reading explanation, but the existing law will continue to govern any discount for what might be termed 'normal cooperation'. The bill is deliberately confined to exceptional cooperation.

If I could give one example, it would be ludicrous if an offender could receive a large discount in sentence for simply telling the police that their next door neighbour is growing marijuana or claiming Centrelink payments when really working. That is an example of normal cooperation that plainly would fall outside of the bill. Exceptional cooperation is by its very nature exceptional; it covers the factors identified in the bill.

The use of the term 'supergrass' in the name of this bill has been raised by the Hon. Stephen Wade. He asks whether the government is proposing a significant shift in South Australian practice in investigation and prosecution. The answer, I am advised, is no. The term 'supergrass' in the bill simply refers to the type of exceptional cooperation that is covered by the bill—it does not signify anything else.

Any logistical or other arrangements for the sentencing of offenders who may fall within the bill will be entirely an issue for the relevant court and parties to the proceedings. The discount for exceptional cooperation in the bill will be an issue for the judge. I would not contemplate it typically exceeding existing practice—namely 60 per cent or perhaps 66 per cent—but, ultimately, it will be an issue for the court in an individual case.

The Hon. Stephen Wade has also asked for clarification about what kind of discounts will now be available for normal cooperation with authorities under the common law and whether the discount is likely to be affected by the codification of other discounts. Normal cooperation should be unaffected. The bill is confined to exceptional cooperation. Any discount in sentence for normal cooperation will continue to be regulated by the common law and section 10 of the Criminal Law (Sentencing) Act 1988.

The existing discounts for normal cooperation and pleading guilty should continue to apply. Such discounts are typically in the range of 20 per cent to 40 per cent. It is certainly not intended that the changes in the bill will allow greater discounts than currently provided for under the existing sentencing regime for normal cooperation.

Clause passed.

Clauses 2 to 6 passed.

New clause 7.

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

Page 4, after line 31—After clause 6 insert:

7—Amendment of Schedule 1—Review of reduction of sentences

(1) Schedule 1, clause 1(1)(a)—after 'as amended by the Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012' insert:

and the Criminal Law (Sentencing) (Supergrass) Amendment Act 2012

(2) Schedule 1, clause 1—after subclause (2) insert:

(3) Nothing in this clause requires a person conducting an inquiry to disclose information in the report that identifies, or could tend to identify, a person if, in the opinion of the person conducting the inquiry, disclosure of the information would put at risk the safety of any person or would otherwise not be in the public interest.

I understand the government finds this amendment acceptable, but if I could speak briefly so that the record might have a context for it. In my second reading speech I conveyed the advice that I had received that this bill, in spite of its naming as a supergrass bill, does not represent a significant shift in South Australian practice, and I thank the minister for reiterating that in her summing up remarks.

Overseas experience does indicate that we need to be aware of the importance of maintaining accountability to maintain confidence in the justice system. I would like to cite a United Kingdom case which highlights that point. In April 2012 it was revealed that convicted terrorist Saajid Badat had had his sentence slashed both at trial and then by a further two years after he agreed to give evidence against his Al Qaeda bosses.

The agreement between Badat and the prosecutors was under the UK legislation, which is comparable to this legislation. The agreement was signed in secret and approved during an extraordinary private court hearing in November 2009. Officials from the US Department of Justice were allowed in the courtroom to hear the ruling, but members of the British press and public were barred. After his sentence was cut, Badat was fast tracked through the parole board process and released in March 2010.

Details of the release may never have been made public but for the fact that there was a trial in New York in April 2012 where Badat gave evidence by video link against US terrorist Adis Medunjanin. In response to the public furore that ensued at the revelation, the Crown Prosecution Service of the United Kingdom felt the need to make a public commitment to ongoing accountability. A CPS spokesperson at the time was told:

It would be inappropriate to discuss publicly detail of SOCPA agreements as there are very real risks to the safety of some of those who have signed the agreements to provide intelligence or evidence against their allegedly criminal acquaintances. Therefore, the CPS will provide updated figures each year on the agreements, in a way that we are satisfied does not put any individual at risk of harm.

In a similar way, my amendment builds on the commitment that the government has given to review the guilty pleas legislation to add on to that a supergrass review element and in recognition of the government's legitimate concerns to make sure that nothing should be seen to undermine the confidentiality of human sources.

The proposed subclause 3 reiterates that nothing in the review process should threaten the confidentiality of human sources. I am sure that the DPP, the police, the Courts Administration Authority and others can work together to provide relevant information to review and provide reassurance to the community that the interests of justice are being protected through these processes.

The Hon. G.E. GAGO: The government supports this amendment. We are willing to support it in order to secure the passage of the bill through parliament today. However, I wish to place on record the government's reservations about the ability for the reviewer to conduct a review of the operations of this act. The very subject matter of this act means that information from the courts may not be readily available, and for very good reason.

The reviewer will not be entitled to include any information in his or her report that may tend to identify any person who may be put at risk through the disclosure of the information, and this non-disclosure is absolutely critical to the purposes of this act. With those qualifying words, the government supports this amendment.

The Hon. S.G. WADE: Being ever so brief, I again point to the UK, and even early this year figures were released about the number of times such deals have been done: 158 deals with prosecutors and informants, 26 prisoners went back and had their sentences cut, and in 114 cases they pleaded guilty. These figures are being provided in other jurisdictions, and I do not believe it is beyond the wit of a South Australian reviewer to provide some information to the community to provide reassurance. I thank the government for their support. I am a bit more hopeful.

New clause inserted.

Schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (16:01): I move:

That this bill be read a third time.

Bill read a third time and passed.