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House of Assembly - Fifty-First Parliament, Third Session (51-3)
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CRIMINAL INVESTIGATION (COVERT OPERATIONS) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 14 October 2008. Page 366.)

Mrs REDMOND (Heysen) (15:55): It is my pleasure to be the lead speaker on behalf of the opposition in relation to the Criminal Investigation (Covert Operations) Bill. I start by thanking the Attorney and advisers for the two briefings that I was able to have in relation to this bill. In particular, I make special mention of Assistant Commissioner Tony Harrison, who has a deep understanding of the practical aspects of the matters that arise under this bill, and also Matthew Goode, who is unfailingly polite and helpful, and provided me very promptly with some information that I had sought in relation to the bill.

The bill covers a range of things, most notably, undercover operations, although that largely is replacing something we already have in the Criminal Law (Undercover Operations) Act 1995, that is, assumed identities, witness identity protection and mutual recognition. I will come back to each of those in due course.

I indicate to the house that the opposition at this stage is lending its support to this bill, although it does so on the basis that we are still awaiting some responses in relation to inquiries that we have made. In particular, I wrote to the Law Society, the Bar Association, the Office of Consumer and Business Affairs and the Registrar of Births, Deaths and Marriages (for reasons which will become obvious), and at this stage I have received only one response, and that I received just this afternoon. So I have to confess that I have not really had time to get my head around the detail of it. The Law Society has responded. It referred the matter to its Criminal Law Committee.

The Hon. M.J. Atkinson: The usual suspects.

Mrs REDMOND: —and they have written quite an extensive letter.

The Hon. M.J. Atkinson: Enemies of the people.

Mrs REDMOND: I note that the Attorney calls out that he considers the Criminal Law Committee to be 'the usual suspects' and 'enemies of the people', but, indeed, they are very well versed in the practice of the criminal law and, therefore, I am inclined to want to consider quite deeply the advice that they offer on topics such as this. I would be disinclined to simply disregard their advice when they have gone to the bother of making an extensive submission expressing some concerns.

That having been said, as I indicated, the opposition has the view that we should support the legislation. Certainly we support the principle of the legislation, and it may be that although it passes through this house we might want to explore in more depth some of the issues that might arise either from the criminal law section of the Law Society or from other responses that we may receive in relation to the matter.

As I said, I think the bill divides fairly neatly into four main areas. The first of those is that of undercover operations, and in the first instance in relation to undercover operations it repeals the provisions of the undercover operations act which was known as the Criminal Law (Undercover Operations) Act 1995. That legislation, as I understand it, and, indeed, I think it is stated in the second reading, has operated quite well since its inception. It is clear that, in order to really address problems of organised crime, and in particular bikie gangs and so on, it is necessary for us either to infiltrate those organisations or to have people who are genuine members of those organisations basically turn themselves over to the side of light and goodness and give evidence against the organisation.

I think I have mentioned in this chamber before that I read a book (which is available in the library or it certainly was available through the library) called Angels of Death. Having read that book, it is quite an insightful exposition of the development of the Hells Angels as a particular group, arising as they did in the US post 1945, essentially. There was no doubt in my mind when I read that book that these organisations are nothing if not good at what they do and they are extremely careful about allowing people into the organisation. No doubt, it is an issue of potentially sudden death if someone were known to be infiltrating the organisation.

Indeed, when I read the book, I thought you would almost have to start at kindergarten to build up enough of a background to satisfy a group such as the Hells Angels, or any of the other numerous bikie gangs that are involved largely in serious criminal activity, you would have to start so far back. It is not just a matter of setting up a flat and saying, 'Well, here I am, this is my background and I can now set myself up to become a member' (whichever organisation it might be) because these people have tentacles reaching into all sorts of organisations. They will know more about you than you know yourself within a very short time in terms of being able to check on people's background, their tax affairs, their family and everything else.

Indeed, in my opening comments, I indicate that I absolutely take my hat off to any of our police force who undertake this type of work, because it seems to me to be fraught with significant personal risk and risk to family potentially, and it also seems to me to be an area where they are genuinely putting their lives on the line daily in the course of trying to disrupt this serious criminal activity which is so detrimental to all of us and they are the ones out there doing the front line work. I do take my hat off to them.

When I read this book Angels of Death, it made me think, 'Boy, why do I want to get up in here and speak out against these people,' because I have no doubt that they operate under a completely different regime as to what is right and wrong and so on. As I said, I take my hat off to the people who do that. Undercover operations, as I said, are basically repealing but reinstating in this new piece of legislation what we already have in the Criminal Law (Undercover Operations) Act that has been in place since 1995. I believe that the second reading speech did indicate that there have not been any particular difficulties with that legislation and, indeed, there have been no complaints from the judiciary, the defence bar, the police, or other sources about whether that legislation was operating. It appears to all intents and purposes to be operating perfectly well.

In order to undertake undercover operations, it is then necessary to have assumed identities, because, as I said in relation to the organisations which we are trying to infiltrate with undercover operations—and not all undercover operations involve infiltration of organisations, but a significant number of them do—it is necessary to have an assumed identity. For me, therein lies the biggest dilemma of this bill.

Basically, an assumed identity (as the name would suggest and as people probably know from watching television) allows an undercover operative to infiltrate organised criminal groups and potentially engage in controlled operations to uncover criminal activity, and that virtually necessitates the use of false identity documents, such as driver's licences, birth certificates, credit cards and so on. The problem this bill seeks to overcome is that there is currently no law in South Australia which enables the lawful use of documents like that.

I turn for a moment to what I find the most difficult aspect of the bill, which is found in clause 12. Clause 12(1) provides:

The Supreme Court may order the Registrar of Births, Deaths and Marriages to make an entry in the register under the Births, Deaths and Marriages Registration Act in relation to the acquisition of an assumed identity under an authority or corresponding authority.

The order has to be made only on application by the chief officer of a law enforcement agency (for most purposes, the head of our police) or the chief officer of a law enforcement agency under a corresponding law, and I will get onto the mutual recognition provisions and so on in due course. The court can also order only if satisfied that the order is justified, having regard to the nature of the activities undertaken or to be undertaken by the officer or person under the authority or corresponding authority.

What that contemplates, in essence, is that the police commissioner can request the court to have a hearing in closed court (and the provisions allow for the matter to be heard in closed court), and they can make a decision that it is reasonably necessary for the purposes of these undercover operations for someone to have an assumed identity and, to that end, it is necessary for them to have some sort of false document created.

My dilemma in this, and the issue I have been exploring most fully in the briefings I have had, has been that it seems to me that, if you have court sanctioning of the falsifying of entries in your Births, Deaths and Marriages Register, you have then lost the validity of your whole Births, Deaths and Marriages Register. I still have some degree of dilemma about that. However, I am somewhat comforted by the fact that Matthew Goode, following the second briefing I had, was able to supply me with copies of legislation from the various other states, and they all seemed to allow the same thing to occur, although in some cases they do not even require the court to make the decision; they seem to allow the police commissioner to make the request direct to the Registrar of Births, Deaths and Marriages.

However, I do have some difficulty with that idea, notwithstanding that it appears in all these other jurisdictions, that is, once you have the state authorising the issuing of false documents, does that in any way diminish the veracity of the whole register, in essence. As I have said, I still have a question about that, but I understand the purpose of the legislation and I understand the need for assumed identities to undertake these undercover operations.

I also understand the need for this to be done so thoroughly. As I have said, having read the book Angels of Death, if you turned up with anything but a genuine birth certificate and they were not able to check it against the actual register, that could put someone's life at risk. If they had a document which purported to be a birth certificate but which, when checked against an actual register, turned out not to be actually registered there, that could put someone's life at risk, and I have no wish to do that. It is clear that these organisations do go to that level in their checking.

There is a range of issues which arise from that, which I hope to explore more fully in committee. I indicate to the Attorney that I do not intend to propose any amendments, at least in this house, especially given that we have not had responses to the other inquiries we have made and given, as I said, that I have not had time to read in detail the Law Society's full response, although I will probably read a fair bit of it onto the record.

There is a range of practical aspects of the application of this that I want to explore in committee. For instance, a police officer may have a false birth certificate which has the seal of the state. The legislation allows for all that to be removed in due course when that person ceases to operate as an undercover operative and ceases to use the assumed identity. However, that police officer could go bad and take copies of the documents which have been certified.

I do not know about the Attorney-General's Office, but every day my office would certify many copies of birth certificates, which have been certified by a JP, quite genuinely, apparently, reflecting the truth of the situation that they are certified copies of genuine birth certificates, and the extent to which that can become problematical is an issue which I will explore in the committee stage.

The main purpose of the bill regarding assumed identities is to legitimise and make lawful the use of false identity documents. As I understand it, similar legislation was enacted by New South Wales in 1998, Queensland in 2000, Western Australia in 2002, Victoria in 2004 and by the commonwealth in 2001. So, we are certainly not on our own in approaching this matter.

The regime for obtaining and using a false identity is set out in the bill. It encompasses quite a range of things. It is only available, as I already said, on the request of the chief officer, which will usually be the Police Commissioner, although that can be delegated to a certain level. It can authorise an officer of the agency or another person who is to be under the supervision of an officer to be the person given the false identity documents.

I think it is reasonably obvious when you think about the nature of the work that these people do that sometimes it will be better to put someone other than a police officer into the situation of using an assumed identity for an undercover operation, but there must be a reason why someone other than a police officer is to be authorised.

The court has to be provided with details of the reasons why the assumed identity is required and the extent to which it will be used, and there must also be details of the issuing agency. So, it might not be just restricted to births, deaths and marriages, there might be a driver's licence issued and so on.

The details of any order made under section 12, which deals with the Office of Births, Deaths and Marriages, must be recorded, and the chief officer must be satisfied that the proposed assumed identity is necessary, that the risk of abuse of the assumed identity is minimal, and where it is going to be taken by someone other than a police officer that it would be impossible or impracticable for an officer to assume the identity.

In the case of someone other than a police officer, an assumed identity will only stay in force for a maximum of three months, although I gather—and again it is something I will explore in committee—that that can be extended. In the case of an officer it remains in force until cancelled. The effect, essentially, is that the Police Commissioner can compel the creation and supply of false documents from people such as the Registrar of Motor Vehicles, but if he wants to get a false birth certificate, death certificate or marriage certificate (and I can imagine circumstances where any one of those certificates might be necessary for the creation of an assumed identity) he must go via a closed session of the Supreme Court.

The assumed identity once issued must be used in accordance with its authorisation, and there are also provisions for breaching the confidentiality of this. I think I raised during the briefing sessions that even in a closed court a certain number of people have to be in the loop so that there is not just the judge and the Police Commissioner. It will probably, in fact, not be the Police Commissioner in person: it will probably be someone to whom he has delegated the authority in accordance with the act. The judge does not just get to walk into court. Someone must be contacted. A registrar will be involved; a listing officer will be involved; a court reporter will be involved (not a court reporter in the sense of TheAdvertiser's court reporter, or something, but the people who actually take the notes of what is said in the courts); and a judge's associate will be involved—all sorts of people will be involved.

The act does provide for some degree of protection in the sense that penalties are imposed for breaching the confidentiality, basically, of the assumed identity. Again, I was able to question Assistant Commissioner Harrison in relation to this aspect in the second briefing, and he indicated that he felt that the penalties imposed in the bill were generally satisfactory. I expressed some concern as to whether they were heavy enough. There is also a provision requiring that agencies issuing false documents be indemnified by the police, and, again, it is an area I will want to explore in committee.

I indicate also that I particularly want to explore clauses 19, 20 and 21 of the bill in relation to the various indemnifications that are offered, and so on. However, I go back to the general thrust of the bill first. As members will recall, I indicated that the first section is 'undercover operations', which is basically replacing what we already have with a new format but without any significant change to it except for one thing, which I will come to in a moment. There is then the 'assumed identities' and then 'witness identity protection'. That is not witness protection in the sense of our Witness Protection Act. The Witness Protection Act that exists in this state deals with people who are to be placed permanently into a witness protection program which provides more or less the mechanism to enable them permanently taking on a new identity or life.

Generally, because of the evidence they have given, it is for someone whose life is likely to be at risk or that of their family members. We already have the Witness Protection Act 1996, and that sets up that witness protection program. What we are talking about in witness identity protection is different from that: it is about giving legal recognition to allow a witness in court proceedings to give their evidence without disclosing their true identity.

In other words, the undercover operation takes place and the person is doing their work in that undercover operation under an assumed identity, and the provisions of this bill enable that person to give their evidence about what they have observed, become aware of, and so on, without having to disclose the fact that they were using an assumed identity.

Sometimes they will be able to continue to use their assumed identity for other purposes, but mostly it is a protective thing. The measures that the bill includes are: holding part of the proceedings relating to identity in private; suppressing publication of evidence relating to identity; excusing the witness from disclosing identifying details; and enabling the person to use a false name or a code during court proceedings. It will be obvious to most people that it would be simple to dismantle the veracity of someone's evidence if the first thing they could be asked was a question about their true identity and their true identity be disclosed in evidence. First, it would dismantle the veracity of what they would then say, if they had not told the truth in swearing an oath, but, secondly, it could place them at extreme risk once their true identity is known and, if the relevant organisation duped by them finds out about it, they could be at risk.

I now turn to what the Law Society is saying about this bill. I had a brief glance at its letter this afternoon. It starts out by saying that the policy behind the bill is worthwhile. It recognises—as do we—that there is a worthwhile basis for the intention of the bill. The letter states:

However, there are a number of provisions to do with protection of the identity of a witness that are of concern. These provisions in part 4 represent a substantial departure from the common law position and therefore considerable care needs to be taken in the implementation of such legislative proposal…such a departure should only occur in exceptional circumstances. That policy has most recently been recognised by the House of Lords decision in R v Davis (2008) UKHL 36 delivered on 18 June 2008.

Those fundamental principles are worth restating and include the following:-

It is a long established principle of the common law that a defendant in a criminal trial should be confronted by his accusers so that he/she may cross-examine them and challenge their evidence. The principle originated in Ancient Rome and has been recognised throughout history and even in cases where the problem of witness intimidation has been extreme.

The letter does not elucidate further on that statement. It continues:

That right is recognised in the United States as a constitutional right. It is an essential and fundamental requirement for a fair trial.

It is an important right that has been recognised in New Zealand, Canada, Australia and South Africa and elsewhere.

I think there might be a typo in the next dot point:

The right to confront a witness is basic to any civilised nation of a fair trial.

I think it should be 'any civilised notion of a fair trial'. It continues:

That right includes the right for an accused person to ascertain the true identity of a witness where questions of credibility are in issue.

That is the question mark I have over this matter. Up until that point, I would say nothing in the bill actually obviates the right of an accused to confront and cross-examine the person, whether or not they are giving their evidence under assumed identity. The letter continues:

Protective measures for witnesses are recognised, such as with a closed court, suppression orders and other current provisions in the Evidence Act for giving of evidence by CCTV or other ways that protect a witness.

It is not a new problem and hence demonstrates how such processes have historically been recognised as infringing fundamental rights.

Such protective measures were recognised by the House of Lords decision as hampering the conduct of the defence in a manner and to an extent which was unlawful and rendered the trial unfair.

I have yet to read the House of Lords case of R v Davis, but I will do so—hopefully, before this bill is passed in the other place. They do, however go on to state:

The question is whether the legislation goes too far or whether it achieves the correct balance. The trial process will require consideration of the witness identity protection certificate which is disclosed to the parties and which is to include certain information. The nature and quality of that information may not be as sound and comprehensive as is required. The certificate seeks to identify matters that go to the credibility of the protected witness. However, those matters may not be sufficiently, accurately or comprehensively identified.

It is likely that there will be matters outside the contents of the certificate, which may be discovered, disclosed or uncovered which go to the credibility of the witness. Therefore, the breadth of the certificates should include any information as to whether the protected witness has been the subject of an allegation of the commission of an offence—

And they go on to say—

(as distinct from being convicted or found guilty of the same because an allegation may be sufficient to attack the witness' credibility).

I am not going to read the rest of their letter, because they go on to specify various aspects of particular parts of the bill, and I think it is probably better if I go through those in the committee stage. But they do make a fairly strong argument as to what alternatives might be looked at, and, indeed, we will consider more fully, before the matter gets to the other place, just what they have to say about all of that.

Moving on to the last aspect of this bill, and this is probably its most important aspect: mutual recognition or cross-border recognition. Of course, our state police, our state courts and our state Registrar of Births, Deaths and Marriages, and so on, do not have extraterritorial operation; but, those undertaking significant criminal enterprises frequently operate beyond any one state's borders. So, it is self-evident that we need a scheme of mutual recognition among the various states and territories.

If someone is operating in South Australia under an assumed identity and is, for instance, infiltrated into a bikie gang, which then goes interstate and has that person go with them, or requires that person to go interstate, clearly, it then is necessary for that person to maintain their assumed identity. It is just bureaucratically cumbersome to have to constantly go through a process of trying to get that assumed identity recognised interstate. In fact, as I understand it, there is not really provision for that to occur at the moment.

Indeed, one of the main thrusts of this legislation is to make it clear that people, such as our police officers, who do this incredibly difficult work of going undercover and undertaking these covert operations in order to catch criminals, do need to have that false identity recognised wherever they might go in Australia. Again, in committee I indicate that I will probably want to explore issues of: what if they have to go overseas?

As I understand it, within this bill we do not have any mutual recognition with the commonwealth. Therefore, one wonders, once you have a false birth certificate, whether you get a false passport, and so on; so there are all sorts of other issues that arise from it. But it does seem that allowing law enforcement authorities, using a false identity validly obtained under this legislation here, to use that identity elsewhere within the other states and territories will be a sensible and helpful step forward.

As I indicated, the main section that I personally have any concern with is clause 12, that is, the issue of the Registrar of Births, Deaths and Marriages, in relation to the issuing of false certificates. I recognise that the other states and territories appear already to operate under that system. Quite frankly, I cannot think of an alternative way to manage it.

I want to consider further the issues raised by the Law Society in its response and, in due course, the issues, if any, raised by the Bar Association, the Registrar's Office and the Office of Consumer and Business Affairs. That said, like the Law Society, we endorse the principle of the bill. So, pending responses and consideration of the response that we have already received from the Criminal Law Committee of the Law Society, I indicate to the house that the Liberal opposition will support the bill.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

Mrs REDMOND: I note that the definition of 'chief officer' includes, as I suggested in my second reading contribution, the Commissioner of Police, and no doubt that will be the most common one. I was a little puzzled about why the Australian Crime Commission warrants a mention. My understanding was that this legislation will not have a federal mutuality provision. On the other hand, for the purposes of this state legislation, we will recognise the Chief Executive Officer of the Australian Crime Commission, yet we will not, for instance, recognise the Commissioner of the Australian Federal Police. I was curious about why the CEO of the Australian Crime Commission makes it into the definition.

The Hon. M.J. ATKINSON: The answer is: because the Australian Crime Commission conducts investigations on behalf of South Australia Police.

Mrs REDMOND: The definition of 'corresponding authority' states that it is an authority under a corresponding law and so on. The next definition refers to 'corresponding law', which means 'a law of another jurisdiction declared by the regulations to correspond to this act'. Having had the benefit of the information supplied by your office in relation to the corresponding law, they are obviously not all identically worded and, as I indicated, there are differences. In some cases, for instance, the Commissioner of Police can directly order the creation of a false birth certificate, death certificate or whatever in certain circumstances in other states.

Is it intended that all the other states and territories will be declared to correspond to this act and thereby all the laws in those other jurisdictions will be considered corresponding laws? They are not identical, as they would usually be, when we are doing legislation where everyone is doing the same thing at the same time. These are not legislatively identical, but is it the intention that they all automatically will be prescribed to be included?

The Hon. M.J. ATKINSON: There are two aspects to this. The first is that, if the interstate (or even foreign) law is included in the regulations, legally it is deemed to be a corresponding law, whether or not it is similar. The second aspect is to say that, so far as the issuing authorities are concerned, we would talk to them about whether it would be a good idea to deem the laws or systems of other jurisdictions.

Mrs REDMOND: I notice that further down there is another definition called 'participating jurisdiction'. I am curious as to why it is called a participating jurisdiction, because that definition makes reference to corresponding law. So we have corresponding approval, corresponding authority and corresponding law. Is there any reason for its being called a participating jurisdiction rather than a corresponding jurisdiction?

The Hon. M.J. ATKINSON: The member for Heysen is a stickler for correct terms, and to describe New South Wales or Victoria as a corresponding jurisdiction would not really be the correct description. It is better to call them a participating jurisdiction. It may be a corresponding law, but it is a participating jurisdiction. The jurisdiction does not correspond with South Australia.

Mrs REDMOND: It is just that the term 'participating jurisdiction' in some way presupposes an overarching legislative framework in which everyone is participating in some way, and I am not entirely persuaded that that is what we have here. Nevertheless, I will accept the Attorney's answer and move on.

Clause passed.

Clause 4.

Mrs REDMOND: As I understand it, and I do not have a copy of the previous act in front of me, undercover operations under this legislation are virtually identical to undercover operations under the Criminal Law (Undercover Operations) Act 1995 but with the addition of mutual recognition into other jurisdictions. First, can the Attorney confirm that my understanding of that is correct?

The Hon. M.J. ATKINSON: Yes.

Mrs REDMOND: It seems much shorter than the Undercover Operations Act 1995. Is there anything not actually repeated in here?

The Hon. M.J. ATKINSON: The absence of the formal clauses in the 1995 act from this bill accounts for its being thinner, otherwise it is almost identical.

Mrs REDMOND: My question is about clause 4(2)(d). First, clause 4(1) provides:

A senior police officer—

and that is later defined as being someone above or beyond the rank of superintendent—

may approve undercover operations for the purpose of gathering evidence of serious criminal behaviour.

Subclause (2)(d) provides:

An approval may not be given unless the senior police officer—

(d) is satisfied on reasonable grounds that the undercover operations are properly designed to provide persons who have engaged, or are engaging or are about to engage, in serious criminal behaviour an opportunity—

(i) to manifest that behaviour; or

(ii) to provide other evidence of that behaviour,

without undue risk that persons without a predisposition to serious criminal behaviour will be encouraged into serious criminal behaviour that they would otherwise have avoided.

I take it that what that is intending to talk about is that the idea is not to entrap people. There could be a question in a court, for instance, about entrapment arising from these sorts of provisions. I want to explore how that works in practice. For example, how can anyone with the rank of superintendent be satisfied that a person might be about to engage in serious criminal conduct, presuming that they have not yet engaged in and are not currently engaging in serious criminal conduct? There is no evidence they have done anything yet; there is no evidence they are doing anything currently, but for some reason the superintendent has an expectation that they might. How is it assessed that someone can then be infiltrated into that circumstance without creating the likelihood that this person, who has not done anything yet, will allege entrapment, or is that not something that actually happens in practice?

The Hon. M.J. ATKINSON: These operations are not organised out of the blue. The police must have intelligence that something is going down; they must have some idea about how the criminal intent is to be put into effect. So, there must be some substratum of fact there before the superintendent embarks on one of these operations.

The key phrase there is 'persons without a predisposition to serious criminal behaviour'. I do not think the member mentioned that collection of words in the main body of her question, and I think they are the key words which explain what that clause is about.

Mrs REDMOND: I apologise if I did not, but I thought I did. Subclause (4) provides that the approval has to be in writing; it has to be signed by the senior police officer; and it has to specify when it takes effect—it has to be forward in time; it cannot be post fact—and who is approved to authorise. Subclause (4)(iii) provides:

The nature of the conduct in which the participants are authorised to engage;

I wonder how specific it is intended that that will be. More importantly, I want to explore this issue in placitum (iv), which provides:

A period (not exceeding three months) for which the approval is given.

I note that subclause (5) provides:

A senior police officer may renew, from time to time, an approval for one or more further periods.

So, although the period set out in placitum (iv) is quite specifically not exceeding three months, it appears from the next provision that it could nevertheless be renewed ad infinitum three monthly. I want to confirm whether that is the case.

The Hon. M.J. ATKINSON: The answer to the latter question is yes.

Mrs REDMOND: Then what is the purpose of putting in 'not exceeding three months'? Why would you not say 'for a period for which the approval is given'. Rather than putting in three months and then specifying that it has to be renewed every three months, I would have thought, for instance, that it might be known on some occasions that it is going to take at least six or 12 months, or whatever, to do a particular job. I am just a bit curious because, on the one hand, it sounds as though there is an intention to restrict it to a relatively short time; and then, on the other hand, the very next clause seems to completely override that.

The Hon. M.J. ATKINSON: Some operations will require more than three months, some will not. The requirement for three-monthly renewal is to goad the officer into reviewing every three months whether it is necessary to apply to renew. I think it is better that the police be goaded by this law into contemplating the need for renewal, rather than just letting the authority stay indefinitely, even though it is not being used. I think an indefinite authority would be more likely to be abused. We will be keeping statistics on renewals, so the member can monitor the matter by asking us the question.

Clause passed.

Clause 5.

Mrs REDMOND: I have two questions on clause 5. Firstly, I want to be clear about exactly what it is that subclause (1) is saying, that is:

Despite any other law, an authorised participant in approved undercover operations incurs no criminal liability by taking part in undercover operations in accordance with the terms of the approval.

So, if, for instance, someone gets an assumed identity and they join a particular outlaw motorcycle gang, and as part of that gang they are then required to participate in all sorts of activities, some of which may be relatively harmless, such as riding their motorcycle without a helmet, which is against the law but is more likely to kill them rather than anyone else. It could be anything from that to—

The Hon. M.J. Atkinson: Murder.

Mrs REDMOND: —something very serious. As the Attorney says: murder. Does the section intend that in that circumstance a person who is in the situation of using an assumed identity and taking part in undercover operations, and their instructions have been: 'Infiltrate this organisation. We want to get these people and prove that they are really involved in drug running, prostitution or whatever it is.' To what extent are they actually covered by the protection supposedly given by clause 5?

The Hon. M.J. ATKINSON: The key words in the subclause are 'in accordance with the terms of the approval' and that refers to the previous clause:

(4) The approval must—

(a) be in writing; and

(b) be signed by the senior police officer giving the approval; and

(c) specify...

(iii) the nature of the conduct in which the participants are authorised to engage;

Mrs REDMOND: My problem is that the nature of the conduct is a fairly generic thing, I would have thought. The nature of the conduct, I would have thought, would not be very specific in terms of writing the authority. Now, I may be wrong about that, but it seems to me that the nature of the conduct would be more along the lines of becoming a member of the Bandidos, or whatever organisation it is they are going to infiltrate, and so on. To what extent is an officer protected? Everything has been done properly. He has the false identity properly and he has been authorised to infiltrate the gang. To what extent is he actually protected from criminal liability if he is told to murder someone, to take the Attorney's example?

The Hon. M.J. ATKINSON: I think that if a superintendent of SAPOL wrote an authorisation, which included authority to murder, he would be out of the force quickly. To get the protection of the section, police officers will have to act in accordance with the terms of the approval, and the approval must be quite specific, because clause 4(4)(c) says 'specify', and that is what the superintendent will have to do.

Mrs REDMOND: What I am concerned with, really, is the protection of the officer. I am not trying to dismantle it all: I am concerned with what happens if an officer has gone undercover and the approval they have got is either generic in setting out the nature of what they are to do, or it simply does not address the specific issue which confronts them. However, that officer, it seems to me, could easily be in a situation where he says, 'If I do not do what I am being told to do now, I face significant risk myself because they will realise that I am a plant and their form of justice will come down heavily upon me instantly,' or 'I do what I have been told to do.' If an officer is confronted with that circumstance whilst undercover, will this clause protect the officer? That is the issue I am trying to get at.

The Hon. M.J. ATKINSON: If it is not specified in the authorisation, the legal answer is no.

Mrs REDMOND: I have one other question on clause 5 and that relates to subclause (2), which provides:

This section operates both prospectively and retrospectively.

Not surprisingly the word 'retrospectively' sprang out at me. Why is it necessary for this section to operate retrospectively? If we already have in place a Criminal Law (Undercover Operations) Act which is operating successfully and which will be abandoned only when this comes into place, why do we need anything under this legislation to operate retrospectively?

The Hon. M.J. ATKINSON: Retrospective protection is included in the 1995 act. If the member for Heysen goes back to the interpretations clause, Clause 3 provides:

approved undercover operations means—

...

(b) undercover operations approved—

(ii) by a law enforcement authority before the commencement of the repealed act that are of a type that could reasonably have been approved under the repealed act if the repealed act had been in force when the operations commenced;

It seems to me that it is a transitional provision.

Mrs REDMOND: I am still a little confused as to why we need a transitional provision when one will replace the other. I am happy for this clause to be dealt with.

Clause passed.

Clause 6.

Mrs REDMOND: I am probably showing how I lack imagination, but subclause (1) provides:

[For a law enforcement officer to apply for a person] to do either or both of the following:

(a) acquire an assumed identity;

(b) use an assumed identity.

I am unable to conjure in my mind in what way or in what circumstance anyone would ever need to acquire an assumed identity without using it.

The Hon. M.J. ATKINSON: Adelaide being a small place, someone working undercover has one assumed identity. The person first applies for authority to acquire the assumed identity. The officer might then use it to infiltrate the Rebels motorcycle gang. He might finish that job and then work against a drug operation, say, operating amongst an ethnic group in Adelaide. He will then apply to use the assumed identity but in a different context.

Mrs REDMOND: Am I correct in understanding that the Attorney is actually agreeing with the question that I was asking; that is, you never actually acquire an assumed identity without using it? You might acquire it and use it in different ways, but, surely, the whole point of acquiring an assumed identity is that you are going to use it. There is just no point in acquiring an assumed identity even if the only thing you ever do with it is show your fake driver's licence. You still use it in that sense, but there is just no point in having a false identity unless you use it. So, when it states, 'do either or both of the following', it will always be that, if you acquire an assumed identity, you will in some way use that assumed identity.

The CHAIR: I think your knee is affecting your head. If you read clause 1 you will have your answer. We are being very indulgent here with liberties relating to three questions. We need to move on.

Mrs REDMOND: That is only my second question on clause 6, Madam Chair.

The CHAIR: I know; I counted. We have a few leftovers from clause 4, not to mention clause 3.

Mrs REDMOND: That is the only one that I am pursuing on clause 6.

The Hon. M.J. ATKINSON: We do not intend to have 'shelf' identities; you are right. If you ask the Deputy Leader of the Liberal Party, she will tell you that she eventually took 'Catch Tim' down off the shelf and used it.

Clause passed.

Clause 7.

Mrs REDMOND: I want to clarify that the process for the determination of the application set out in clause 7, which provides that the chief officer of a law enforcement agency receives the application and has to be satisfied that the assumed identity is necessary, and that (under subclause (2)(c)) it would be impossible or impractical for someone other than a police officer if the application is for someone other than a police officer to have the assumed identity.

Under clause 7(2)(b) the chief officer also has to be satisfied that the risk of abuse of the assumed identity by the authorised person is minimal. I am curious as to how the chief officer becomes satisfied about that. Is there any risk to the chief officer if it turns out that the person who takes the false identity does abuse it?

I accept that 99 per cent of the time there will be no reason for the chief officer to suspect that his or her officers applying for an assumed identity for covert operations will be anything other than good, appropriate and responsible people who do the right thing. But how will it be determined whether the risk of abuse by the authorised person is minimal, particularly, I suppose, in the case of people who are non-police officers taking on an assumed identity? Is there a risk that the chief officer could in some way become liable if the chief officer fails to make appropriate investigations to satisfy himself or herself that the risk of abuse is minimal?

The Hon. M.J. ATKINSON: I think the value of that paragraph in clause 7 is self-evident. As long as the chief officer acts honestly, he or she will be protected by the usual immunity provisions for public sector employees.

Mrs REDMOND: I refer to subclause (5) which provides:

An authority may also authorise any 1 or more of the following:

Subclause (3) provides:

If an authority is granted in respect of an authorised civilian...

So, we are talking about an authority that has been granted. The authority can also authorise 'an application for an order for an entry in a registrar of births, deaths or marriages under section 12 or a corresponding law'. Am I correct in my understanding that, when the decision has been made under clause 7, that is the time at which the chief officer has to receive the application under clause 6, take into account these things that are set out in subclause (2) and the other subclauses and then make a determination that they will apply under clause 12—and that is the application to the Supreme Court for the order for the register of births, deaths and marriages to be adjusted?

The Hon. M.J. ATKINSON: The answer is yes.

Clause passed.

Clauses 8 passed.

Clause 9.

Mrs REDMOND: My question relates to subclause (2), that is, that an authority for an authorised civilian cannot exceed three months. That appears to say that it actually cannot exceed three months no matter what. If it is an authorised civilian, it can never exceed three months. The only provision is that it can be cancelled sooner, so it may not extend to three months. But, as I read it, whilst the officer who has an authority can go three months, three months, three months ad infinitum, an authorised civilian cannot go any longer than three months under any circumstances. Am I reading that correctly?

The Hon. M.J. ATKINSON: With a civilian, SAPOL could go through the entire process again and renew the civilian's authority for undercover operations afresh. I think the reason that civilians are being treated differently from members of SAPOL is that you would normally not want to hang out a civilian in an undercover operation for more than three months, whereas you might renew an experienced officer any number of times.

Mrs REDMOND: I appreciate the Attorney's answer. Whilst I understand why you would not want to do that, it seems to me that there could again be some risk to an undercover operative if they are there for three months and they are suddenly pulled. As I understand the Attorney's answer, although it states that the authority for a civilian (as we will refer to the non-officer person) cannot exceed three months, in fact you could have consecutive three-month new appointments, whereas with an officer you would simply have renewals every three months.

The Hon. M.J. ATKINSON: The member for Heysen is correct.

Clause passed.

Clauses 10 and 11 passed.

Clause 12.

Mrs REDMOND: This is the clause about which, as I indicated, I have some misgivings. It seems to me that it is problematic, to say the least, to have state-endorsed making of false documents, although, as I indicated, I cannot think of an alternative way around the problem for false identities. I just wonder how it will work in practice, in the sense that it seems to me to set up a regime where the chief officer, the commissioner or the person authorised under the act to make the application, makes an application to the Supreme Court and the Supreme Court agrees, having found all the things in place that are set out for the making of the false entry.

I assume that the false entry is then just mixed in with all the other births, deaths and marriages. For the purpose of discussion, the most common one I think is likely to be a false birth certificate. That birth certificate, of its nature, has to look the same, be the same and be recorded in the same way as every other birth certificate but, presumably, somewhere there has to be a register to keep track of what we have issued as false birth certificates. Is that how it is going to operate?

The Hon. M.J. ATKINSON: I do not know for sure, but it seems sensible to me.

Mrs REDMOND: I worry about what will happen. Without wishing to impugn anyone's character, there would be, I suspect, a temptation occasionally for someone who has a false birth certificate—

The Hon. M.J. Atkinson: To engage in bigamy.

Mrs REDMOND: No, if they engage in bigamy they might have to pay spousal maintenance and all sorts of things. Perhaps they could take advantage of the possession of a false certificate to create certified copies of the false certificate which would enable them, well after the expiry of any period during which they were working as an undercover operative (and let us assume it is a civilian because I do not want to impugn our police), to set up all sorts of things with their false identity post having obtained it, even though, I assume, there is a provision for the eventual destruction of the original and the removal of that document or record of birth, or whatever it is.

Once you have a certified copy of a document, largely, that is accepted by banks, for instance, and all sorts of people. So you could, for instance, set up a false bank account and get false credit cards and all sorts of things, relying on a certified copy of a document which is no longer valid. I want to explore how that is going to work in practice and how you keep control over the process once you issue a state-endorsed document with the seal of the state on it saying that this is the birth certificate of this person.

The Hon. M.J. ATKINSON: If the undercover operative misuses certified copies and the false identity, he or she will be guilty of serious criminal offences under the identity theft provisions that this government put through parliament a few years ago and be subject to condign punishment in the normal way.

The second aspect is we could set down in the act how the Registrar of Births, Deaths and Marriages is going to cope with this law. We think it wiser not to do so. If she comes back to us and says she wants a system in legislative form, we can do it by regulation.

Mr HANNA: I would have thought that it would be essential for the registrar to have some record of alterations that are made in the register pursuant to this legislation, because when it does come time to cease the assumed identity, the registrar will need to have records of what was there before. It seems to me that it is absolutely essential to have something that matches up the old identity with the assumed identity so that the transformation can take place the other way, if need be. I only make that comment in support of the member for Heysen's concern.

The Hon. M.J. ATKINSON: The member for Mitchell is wrong.

Mrs REDMOND: I was happy until I heard the answer to the last question. My understanding is that there has to be some way of recording which of the false identities. There has to be a record of the false identities, otherwise, when you have finished using the false identity, how on earth can you find it again in the thousands of birth certificates that are registered in this state?

The Hon. M.J. ATKINSON: The member for Mitchell's assertion relies on a false assumption, and that is that, if a superintendent of police acting under this proposed law says, 'Create a false identity for Maurice Chevalier' and Maurice goes off and infiltrates a drug gang, and then at some stage the superintendent decides, 'No, we do not need Maurice Chevalier any more, let us get rid of that identity and do all the associated paperwork under the law,' that the real name of the man who played the role Maurice Chevalier is Bert Newton does not matter: it has nothing to do with Bert and his birth certificate. That is why the member for Mitchell is wrong.

Clause passed.

Clause 13.

Mrs REDMOND: This deals with the cancellation of authority affecting entry and register of births, deaths and marriages, and essentially sets out that, if the chief officer of a law enforcement agency cancels an authority for an assumed identity and there is an entry in the births, deaths and marriages register, then the chief officer has to apply to the Supreme Court for an order to cancel the entry. So, that is all a given. However, the word which puzzled me was at the beginning of subclause (1), that is, the clause applies 'if' that happens. I would have thought that it would always be 'when' that happens. There will never be a circumstance where the chief officer does not ultimately cancel the authority because no-one who will be working as an undercover operative under an assumed identity in this clause will stay under that permanently.

The Hon. M.J. ATKINSON: I am advised 'if' means 'when'.

Clause passed.

Clauses 14 to 18 passed.

Clause 19.

Mrs REDMOND: This clause refers to the legal immunity of authorised persons acting under authority. It provides:

Where an authorised person does something (whether in this state or elsewhere) that, apart from this section, would be an offence, the officer or person is not criminally responsible for the offence if—

(a) the act is done in the course of acquiring or using an assumed identity in accordance with an authority; and

(b) the act is done—

(i) in the case of an authorised officer—in the course of his or her duty; or

(ii) in the case of an authorised civilian—in accordance with any direction by his or her supervisor under the authority;

I understand all of that. I follow the first part of clause 19, until I get to paragraph (c), which provides:

(c) doing the act would not be an offence if the assumed identity were the person's real identity.

Mr Goode and I went through this in our briefing, but I am still confused by this paragraph. Basically, it seems to say, 'All right, you have an assumed identity. The person is not going to be responsible for the offence if they are doing something in the course of acquiring or using the assumed identity.' So, they have their false driver's licence or they are using, for instance, their false birth certificate to acquire a false driver's licence. I can understand everything down to paragraph (c). I just want an explanation on the record of what is the effect and use of paragraph (c).

The Hon. M.J. ATKINSON: We have moved on from part 2—Undercover operations to part 3—Assumed identities. So, the immunity we are talking about here is the immunity someone gets for using an assumed identity, not for undercover operations. So, if one has been given a false name and one swears a statutory declaration or affidavit using the false name, then one is in the clear. However, if one commits some other offence unrelated to the assumed name, one does not have immunity, by reason of clause 19.

Mrs REDMOND: I take it, from what the Attorney says—and I understand that we have moved on from undercover operations and we are using assumed identities—to take the Attorney's example, if a person using their assumed identity swears an affidavit that although swearing an affidavit under a false identity would normally be an offence, this section protects them from that, but it would not protect them, for instance, from the falseness of the statutory declaration if what they put in the statutory declaration was false.

The Hon. M.J. ATKINSON: That is correct.

Clause passed.

Clause 20.

Mrs REDMOND: Clauses 19, 20 and 21 are the main clauses I want to explore. The indemnity for authorised persons, clause 20, is an issue that I explored to some extent during the briefing. I want to get on the record what the intention of the legislation is. What clause 20 allows for is that, where someone is acting under this false identity authority, then the law enforcement agency must indemnify that person under the authority for any liability incurred by the person, including reasonable costs because of something done by the person, whether in this state or elsewhere, if it is done in the course of using their assumed identity and in the course of their duty, or what they have been authorised to do, if it is a civilian.

Following on from the Attorney's answer on the previous question, that suggests to me that all that is indemnifying them for is using the assumed identity. It is not indemnifying them for other things that they may do in the course of the undercover operation in which they are involved in using the assumed identity. This is limited to indemnifying them for something that they are doing using the assumed identity. Is that the case?

The Hon. M.J. ATKINSON: The member for Heysen is right again.

Mrs REDMOND: If someone set up a credit card using their assumed identity in the course of infiltrating an organisation and then used the card to acquire goods of whatever kind, be it a flash motorbike or whatever, is that sort of cost covered by this, or would that person have to look to other parts of the bill—and if so, where—to protect them from liability for what they may purchase?

The Hon. M.J. ATKINSON: It all turns on whether the act is done in the course of acquiring or using an assumed identity in accordance with the authority. If it is necessary to buy a Harley-Davidson on a credit card in the name of the assumed identity, the answer is yes.

Mrs REDMOND: I assume that the chief officer of the police would be the person who makes the assessment ultimately on recommendation from whoever actually authorised the identity as to whether something was a reasonable cost for the purposes of that section?

The Hon. M.J. ATKINSON: The answer is yes.

Mrs REDMOND: Clause 21 then provides:

Sections 19 and 20—

and they are the two sections about which I have just been asking questions—

do not apply to anything done by an authorised person if—

(a) a particular qualification is needed to do the thing; and

(b) the person does not have that qualification.

(2) This section applies whether or not the person has acquired as evidence of an assumed identity a document indicating that he or she has that qualification.

We can take a ridiculous example of qualifications, namely, theoretically someone might obtain an identity which qualifies them as a doctor of medicine, for instance. If that is part of the identity they have set up and clauses 19 and 20 (which are those offering legal immunity and indemnity) do not apply, what protection does a person have who has gone undercover with their assumed identity and their false qualification if they are then placed in a situation where they are expected to perform in accordance with their pretend qualification?

Probably being a qualified doctor of medicine is an unlikely example, but, for instance, if it were driving a B-double and they had a fake B-double licence but they really were not licensed to drive one of those, or to do some other thing, what protection is there for the officer who has to pretend to have particular qualifications, has the necessary documents, but who is then expected to act in accordance with that qualification if clauses 19 and 20 do not apply to give them any indemnity or immunity?

The Hon. M.J. ATKINSON: In the case the member for Heysen raises, clauses 19 and 20 do not apply.

Mrs REDMOND: I realise that clauses 19 and 20 do not apply, and I think I said so in the question. Clause 19 gives legal immunity and clause 20 gives indemnity for people acting in pursuance of their authority using their assumed identity.

The Hon. M.J. ATKINSON: I have mentioned this provision before—and I will mention it again. Section 65 of the Police Act provides:

(a) A member of SA Police does not incur any civil liability for an honest act or omission in the exercise or discharge, or purported exercise or discharge, of a power, function or duty conferred or imposed by or under this or another act or any law.

Clause passed.

Clauses 21 and 22 passed.

Clause 23.

Mrs REDMOND: The mutual recognition, which I indicated in my second reading contribution appears to be one of the main elements of this bill, allows officers of this state who are undertaking this hazardous work to go interstate. Clause 23 still requires the requesting of information. Subsection (1) provides:

The chief officer of a law enforcement agency granting an authority [presumably in South Australia] may, if the authority authorises a request under this section, request the chief officer of an issuing agency of a participating jurisdiction specified in the authority—

(a) to produce evidence of the assumed identity in accordance with the authority; and

(b) to give evidence of the assumed identity to the authorised person named in the authority.

I take it that means that our chief officer, when authorising someone to go undercover and have an assumed identity, at the time of making that authorisation must include the provision for requesting mutual recognition in another state. Is that the way in which it will work? Will it happen at the time of someone getting an assumed identity? I had envisaged that someone would go undercover and, if became necessary for them to go interstate, then they would make the application and get recognition of the false identity in the state to which they were travelling. It struck me that the intention is that from the outset, when someone sets up a false identity, it will go nationwide and that there would be some sort of automatic indication of a request for all the other jurisdictions to recognise that identity and allow that person to go freely wherever they need to go. I am curious as to how it is meant to be interpreted in practice.

The Hon. M.J. ATKINSON: Nationwide.

Mrs REDMOND: I have just one other question on clause 23. In relation to this whole regime, as I indicated, my understanding is that this will relate to the other jurisdictions, being the other states and, I assume, territories, but not necessarily the commonwealth and certainly not New Zealand. If I am correct, is there any intention to try to broaden the application so that there is recognition through other commonwealth territories and, potentially, across the Tasman because of the nature of the relationship between our two countries?

The Hon. M.J. ATKINSON: The bill is written in such a way that there is no impediment to including any jurisdiction in the world.

Clause passed.

Clause 24 passed.

Clause 25.

Mrs REDMOND: For the misuse of assumed identities, there seems to be a relatively minor penalty, being a maximum penalty of imprisonment for two years if someone intentionally misuses an assumed identity. The clause covers 'recklessly misusing', and so on, as well. I think it is a far cry from someone who recklessly misuses an assumed identity. For someone who intentionally misuses an identity, there does not appear to be any sort of recognition of any gradient higher than two years maximum imprisonment, regardless of whether someone recklessly misuses an identity or deliberately sets about to misuse an identity. Am I correct in my interpretation?

The Hon. M.J. ATKINSON: The member for Heysen is correct.

Clause passed.

Clause 26.

Mrs REDMOND: In terms of the disclosure of information about an assumed identity, I seem to recall two provisions. One is that the person is guilty of an offence if the person intentionally, knowingly or recklessly discloses information that the person knows about an assumed identity. It goes on to provide: 'in connection with the administration or execution of this act or a corresponding law' and so on. Again, the maximum penalty is imprisonment for two years.

I would like some clarity on the difference between subclauses (1) and (2). Subclause (1) basically provides that, if the person discloses information about someone with an assumed identity that could harm them, imprisonment for two years is the maximum penalty, but subclause (2) provides: 'the person intends to endanger the health or safety of another' or 'the person knows, or is reckless as to whether, the disclosure of the information endangers or will endanger the health or safety of another'.

I was just not clear on how one distinguishes between a person who intentionally, knowingly or recklessly discloses information that could have very significant consequences and a person who intends to endanger the health or safety of another person. I want the Attorney to put on the record how one determines the difference between subclause (1) and subclause (2). Subclause (2) clearly has a much more significant maximum penalty.

The Hon. M.J. ATKINSON: If the prosecution can prove that the accused intended the damage or was reckless as to the damage, then the much higher penalty applies.

Mrs REDMOND: That is how I initially read the clause but, when I reread it, it did not seem to me to be in any substantive way different from the beginning of subclause (1), that is, a person is guilty of an offence if a person intentionally, knowingly or recklessly discloses information. Is the essence of it the difference in consequence, in that it is possible for the assumed identity of someone to be revealed but there are no significant consequences? Is that how the difference between those two subclauses will be determined?

The Hon. M.J. ATKINSON: Yes.

Clause passed.

Clauses 27 to 32 passed.

Clause 33.

Mrs REDMOND: I will go back to the letter which, as I said, arrived this afternoon from the Criminal Law Committee of the Law Society. Clause 33 deals with the certificates, but I will refer briefly to clauses 30 and 31. Clause 30 is just an interpretation provision about witness identity protection. As I said, witness identity protection is not about setting people up permanently with an alternative identity because they have given evidence which places them at risk permanently and they become a new identity. It is about people being authorised to give evidence in a court of law using their assumed identity. Essentially, clause 30 sets out some definitions.

Clause 31 provides that the chief officer can give a witness identity protection certificate to a local operative. So, that person gets a certificate (known as a witness identity protection certificate), and that can then be used when they go to court to give evidence. Clause 32 says that a decision to give a witness an identity protection certificate is final and cannot be appealed against, reviewed, called into question, quashed or invalidated in any court. I attended a recent lecture about clauses such as that, which was very interesting.

I just wanted to cover what those clauses are about to get us to clause 33, which is the form of witness identity protection certificates. The Law Society states:

The certificate seeks to identify matters that go to the credibility of the protected witness. However, those matters may not be sufficiently, accurately or comprehensively identified.

It is likely that there will be matters outside the contents of a certificate which may be discovered, disclosed or uncovered which go to the credibility of the witness. Therefore, the breadth of the certificates should include any information as to whether the protected witness has been the subject of an allegation of the commission of an offence (as distinct from being convicted or found guilty of the same because an allegation may be sufficient to attack the witness's credibility)—

The Law Society's suggestion is that therefore clause 33(1) should include reference to that type of information.

Clause 33(1) sets out the form of the witness identity protection certificate and says that the chief officer of the law enforcement agency has to include certain information. It sets out the name of the law enforcement agency of which the person is the chief officer, the date on which the certificate is given and the grounds for giving the certificate. If the local operative is known to a party to the proceedings or a party's lawyer by a name other than the operative's real name, the certificate must state that assumed name or the local operative's court name for the proceedings (if they are not known by some other assumed name). The certificate must also state the period during which the local operative was involved in the investigation to which the proceedings relate; whether the local operative has ever been convicted or found guilty of an offence in this state or elsewhere and, if so, the particulars of each offence; and whether any charges against the local operative for an offence are pending or outstanding and, if so, the particulars of each charge.

I have not read all the provisions of the form of witness identity protection certificate, but the Law Society seems to be suggesting that, where a witness has been subject to the allegation of the commission of an offence, that should be included in the certificate. My question is: does the Attorney, at this stage (and I assume he has also received this letter, since it is marked that copies have been sent to him), have any view on the suggestion being made by the Law Society in relation to clause 33?

The Hon. M.J. ATKINSON: I am of the view that any old allegation will not do and, of course, it will be in the interests of those who are trying to crack the real identity of the operative to cast the net of allegations as widely as possible.

Progress reported; committee to sit again.


At 18:00 the house adjourned until Thursday 13 November 2008 at 10:30.


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