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

Committee Stage

In committee.

(Continued from 12 November 2008. Page 926.)

Clause 33.

Mrs REDMOND: I have a question on this clause 33, concerning the form of the witness identity protection certificate, which sets out a whole range of things. I had already covered yesterday, I think, the first part of what was mentioned in the letter from the Criminal Law Committee of the Law Society, who are the group of people that the Attorney referred to yesterday as the 'usual suspects' and 'enemies of the people'.

We have already dealt with the issue raised about matters which might not come within the contents of the certificate as set out in clause 33 but which, in the committee's opinion, might nevertheless be relevant to the—

The Hon. M.J. Atkinson: Such as allegations.

Mrs REDMOND: —credibility of the witness using the assumed identity. And, as the Attorney correctly indicates across the chamber, matters such as allegations, where those allegations have not necessarily been tested by a court.

The next point that the Law Society's Criminal Law Committee makes in its letter is that it considers that clause 33(1)(k) is 'unduly restricted to the information known to the person giving the certificate that may affect the protected witness's credibility'. If one looks at clause 33(1)(k), it certainly does indicate whether there is anything known to the person giving the certificate. What the Law Society's committee generally suggests is that, in fact, it should be broadened to anything that is 'known, comes to the attention of or has been reported to' not just the person making the certificate but the law enforcement agency with which that person is engaged.

I think there is some validity to that in as much as it could be that the certificate was being given, for instance, by the Police Commissioner, who might not necessarily know everything about the person to whom the certificate is being provided, but there could be other persons within the organisation who do know relevant things that might affect the credibility of the witness.

The essence of the clause is, after all, to try to ensure the credibility of the witness by placing some information before the court to assure that, in spite of the fact that a person is giving their evidence under their assumed identity, they are still going to be a credible and reliable witness. I wonder whether the Attorney has given any thought to the suggestion made by the Law Society's committee in relation to clause 33(1)(k) and, if he has, what his thoughts are in relation to it.

The Hon. M.J. ATKINSON: I refer the member for Heysen to clause 31(5) where it is recited that the chief officer must make all reasonable inquiries to enable him or her to ascertain the information required to be included in the certificate under this part. So, the chief officer has a legal obligation to inquire and, when that is read together with clause 33(1)(k), I think it eliminates paragraph (k).

Mrs REDMOND: I thank the Attorney for that. I have just one other question on that clause. Is it the Attorney's view that subclause (5) of clause 31 is sufficiently broad to encompass the other indicators of credibility which are referred to by the committee of the Law Society in its letter at the very bottom of page 2, where it states:

...other indicators of credibility issues which include behavioural matters, conduct, financial matters, other statements attributed to the protected witness, which would ordinarily be the subject of cross-examination as to credibility.

Would the inquiries be sufficiently broad?

The Hon. M.J. ATKINSON: Paragraph (k) requires anything else known to the person; so, the chief officer is expected to make inquiries and satisfactorily ground his sworn statement.

Clause passed.

Clause 34 passed.

Clause 35.

Mrs REDMOND: I have a question, and it is probably due to my inability to read lengthy sentences, but I want to clarify what is intended by clause 35(1) which is a fairly long single sentence. It seems to me to say that, where the chief officer has given a witness identity protection certificate for one of these undercover operatives, if the chief officer considers it appropriate for information that might disclose that person's identity or where they live to be let out as information otherwise than in proceedings, then the chief officer can give written permission to a person to give the information.

For ease of reference, let's call the chief officer the Commissioner of Police. So, he has given a witness identity protection certificate. He then becomes satisfied that it is necessary or appropriate for information that discloses, or may disclose, the undercover person's identity or where they live to be disclosed outside of proceedings, then the chief officer actually gives a written permission to another senior police officer presumably or something like that. I am struggling to understand what the purpose is of that. Perhaps if I can be given an indication as to when it might be otherwise than in proceedings that it would be contemplated that the chief officer would be thinking it is appropriate to provide anyone with information that discloses an undercover operative's identity.

The Hon. M.J. ATKINSON: The member for Heysen is correct in thinking that it is principally regarding transactions within the police force and it would be used operationally rather than in proceedings.

Mrs REDMOND: I have a further question arising from that answer. Does that mean that the Commissioner of Police, or a superintendent or whoever, gives permission which has to be in writing but thereafter there is no requirement for any permission to be in writing? Once it spreads beyond the initial written permission given to whoever the person is to disclose the information, then nothing else has to be in writing.

The Hon. M.J. ATKINSON: The disclosure offence will apply unless the chief officer gives permission in writing.

Clause passed.

Clause 36.

Mrs REDMOND: I would like an explanation of the meaning of subclause (2). In subclause (1) we are talking about the use of identity protection certificates in proceedings. So, an identity protection certificate has been issued; someone is going to be giving evidence in court, and their identity is protected by means of the various matters that are set out in the bill and subclause (1) clearly provides that this applies to proceedings in this state in which an operative is, or may be, required to give evidence as an operative. That is nice and clear. However, I do not understand what is the effect of the preservation of the common law provided in subclause (2).

The Hon. M.J. ATKINSON: It is what it appears to be, and the common law applying is in the second reading speech.

Mrs REDMOND: I am still a little confused regarding why we need to put that in there, given that this section deals with the use of witness identity protection certificates in proceedings. I read the words in the second line of subclause (2), 'the identity of a person who is not an operative', to mean that they will therefore never be covered by a witness identity protection certificate. Therefore, I do not understand why subclause (2) even appears there.

Clause passed.

The CHAIR: Member for Heysen, it has just been drawn to my attention that we did not record your incapacity to allow you to sit. Would you like to make that request?

Mrs REDMOND: I am sorry, Madam Chair; I seek leave to remain seated.

The CHAIR: Leave granted, due to the knee incapacity of the member for Heysen. The member does not have to stand.

Clause 37.

Mrs REDMOND: This clause essentially provides that a witness protection certificate has to be filed in the court and that, basically, when it is filed it has to be provided to each party to the proceedings at least 14 days before the day on which the evidence will be given. There is also a provision that the court can then order it to be given not just to parties to the proceedings but also to other persons. It is served, and then it goes on to provide that the operative can give evidence under the assumed name and that a question cannot be asked to disclose the operative's true identity or where that person lives. That is the essence of the effect of the certificate.

In subclause (5) we get to a fairly lengthy list—(a) to (f)—of the definitions of a person involved in proceedings. The only reference I can see to a person involved in proceedings is in clause 37(3)(d)(iii). So, that extensive definition says that a question must not be asked of a witness that might lead to the disclosure of the person's true identity, and that a witness cannot be required to, and must not, answer a question that might lead to the disclosure of someone's true identity.

I was curious about that last bit—that a person involved in the proceedings must not make a statement that discloses or might lead to the true identity. Why does the definition of 'a person involved in proceedings'—which encompasses the court, lawyers, persons given permission to be heard and so on—not also apply, for instance, to the provision that a question must not be asked of a witness?

I would have thought that, given the breadth of that definition of a person involved in proceedings—the court and the person on the bench, for instance, would commonly ask people questions, and a person who is given permission to be heard or make submissions may seek to ask questions—it would be simpler to use the definition of a person involved in proceedings for all the aspects. I wonder whether there is an explanation for why it has been narrowed to just 'a person involved in the proceedings must not make a statement that discloses, or may lead to the disclosure of, the operative's identity'.

The Hon. M.J. ATKINSON: If one goes through the placita, one sees that one is in the nominative case and the other is in the accusative case.

Mrs REDMOND: That is an answer which I would only ever expect from the Attorney-General. I have no further questions, just to satisfy the Attorney-General, on clause 37.

Clause passed.

Clauses 38 and 39 passed.


[Sitting extended beyond 18:00 on motion of Hon. M.J. Atkinson]


Clause 40.

Mrs REDMOND: Again I refer to the letter of the Criminal Law Committee of the Law Society at the very top of page 3 where they say—although they use 'effects' instead of 'affects'—

The Hon. M.J. Atkinson: That is indicative of the brain power they have applied to this matter.

Mrs REDMOND: The letter states:

The provision that directly effects the established concept of a fair trial in South Australia is in section 40 requiring that a party must seek the court's permission to ask questions of a protected witness that may lead to the disclosure of the operative's identity or where the operative lives.

They consider that the provisions of clause 40(3) are unduly restrictive. I thought the provisions of clause 40 probably were reasonable but I did have a question in terms of the form of what happens, and I want to run through it quickly to get to a question which is really directed at subclause (4) rather than subclause (3).

Subclause (1) provides that a party can apply for permission to ask a question of a witness that might lead to the disclosure of someone who has been undercover and using an assumed identity. Essentially, they can ask for permission to do that, and they can also apply to the court for an order requiring a witness, including an undercover operative, to answer a question, give evidence or provide information that might lead to the disclosure of the person's undercover identity.

The application under this clause must be heard in the absence of the jury, if there is one. Subclause (3) provides, 'The court may give permission if (and only if) the court is satisfied', and sets out the three things about which it must be satisfied, as follows:

(a) there is evidence that, if accepted, would substantially call into question the operative's credibility; and

(b) it would be impractical to test properly the credibility of the operative without risking the disclosure of, or disclosing, the operative's identity or where the operative lives; and

(c) it is in the interests of justice that the operative's credibility be tested.

In spite of what the Criminal Law Committee suggests about those provisions being unduly restrictive, I think that they are probably reasonable in terms of the way I anticipate this will operate in practice. Subclause (4) provides, 'Each party to the proceedings must be informed of any proposal by the court to give permission', and so on. It seems to me that, rather than it being the case I had envisaged up to that point, we have a witness identity protection certificate for an assumed identity.

If the defence says that, on the voir dire, it established a basis for saying why it should be able to question the credibility of the witness, and it has satisfied those three paragraphs I read out, I would have thought that at that point there would be a whole lot of discussion about it and that there would be a comprehensive debate within the voir dire about whether that permission should be given.

However, the way subclause (4) is worded suggests to me that in fact the next part comes into play only if, having heard from the defence, without necessarily hearing from the prosecution, for instance, and the people who are presumably trying to keep the protected identity protected, the court is disposed to make that order to give permission. It is only at that point when subclause (4) comes into play. I want to clarify whether in fact it is intended that it will operate in that way.

It seems to me that it would have been more appropriate to deal with all the things set out in subclause (4)—that is, whether to pull the witness or have them warned and so on—come to some sort of conclusion and then proceed, rather than wait until the court decides that it will allow the witness to have their identity disclosed before the option in subclause (4)(a) particularly is put.

The Hon. M.J. ATKINSON: What is contemplated is a full voir dire in which the prosecution would get to argue its end of the argument, and the judge would then indicate how he or she was minded to rule. In nearly every case, I would think that, if the judge was going to make an order for disclosure, the prosecution and the police would fold their tent and give up.

Mrs REDMOND: In terms of the wording—and it may be semantics—that 'each party to the proceedings must be informed of any proposal by the court to give permission', we are really talking about a consideration by the court of a proposal to give permission. I understand why we would shorten it. The 'proposal by the court to give permission' suggests that it has reached the decision that it will give that permission.

The Hon. M.J. ATKINSON: Subclause (4) is after we have had a full-bottle voir dire and the court has reached its conclusion. I would think that the prosecution and the police would at all costs protect their witness and, therefore, withdraw that witness from the case. The whole idea is to ensure that the prosecution and police do not find themselves in the position where the identity of their witness has been disclosed. They get the choice to fold on that witness.

Mrs REDMOND: I refer to subclause (4)(b), where the witness has already given evidence, in which case the damage might already be done.

The Hon. M.J. ATKINSON: The member for Heysen in her latter remark is correct.

Clause passed.

Clause 41.

Mrs REDMOND: I think this is common to some earlier penalty provisions. Essentially, this clause provides that if a person lets the cat out of the bag, as it were, and gives out information which might identify someone (which in this clause is the 'disclosure action'), there is a maximum penalty of imprisonment for two years. That is an absolute offence if the person knows or is reckless as to whether the disclosure is something which is forbidden by the act. Subclause (2) provides that if a person has already committed the offence in terms of subclause (1) and they have done so either intending to endanger the health or safety of a person or is reckless as to whether the disclosure action will endanger a person or prejudice an investigation, then it is the higher offence.

I want to confirm the intention. It seems to me that if someone recklessly discloses information, then at the minimum they will be subject to the penalty under subclause (1) of imprisonment for two years; and if that information, whether deliberately or recklessly disclosed, is likely to be either severely prejudicial to a court case or place a person at risk, then they will expose themselves not just to a maximum penalty of two years under subclause (1) but, rather, a maximum penalty of 10 years under subclause (2).

The Hon. M.J. ATKINSON: For the 10 year maximum penalty to apply, namely, the second leg of the punishment, it must not be merely likely to be known but must be known to be likely.

Clause passed.

Clauses 42 to 45 passed.

Clause 46.

Mrs REDMOND: I understand why you would not want to disclose things under the Freedom of Information Act. I did not have time to look up the State Records Act; therefore, I just wanted to have on the record what it is in the State Records Act that requires the non-disclosure of information. It states that the State Records Act does not apply to information obtained under this act.

The Hon. M.J. ATKINSON: I think it could be argued that the controlled operations records are state records, and we do not want them to be.

Clause passed.

Clause 47.

Mrs REDMOND: I have a question about the annual report. It relates back to the things we were just talking about with the voir dire applications and so on. It is probably under clause 47(1)(c), that is, the report to the minister that gets made after June each year. Part 4 deals with the number of witness identity protection certificates given, and so on, but there did not seem to be any information included about those things which are covered under clause 40 of the bill. I wonder whether it was intended whether you as Attorney-General, and me in due course as attorney-general, get to see how many such situations might arise in a court during a year.

The Hon. M.J. ATKINSON: I know that in opposition one always wants statistics kept on everything so you can beat the government of the day with them, but we do not keep statistics on voir dire results now, and I do not know why we would start doing it because of the passage of this bill. I am sure that, should the member for Heysen become the attorney one day, she will see the sense in that.

Mrs REDMOND: 'When' the shadow attorney becomes the attorney one day. I am not so interested in the statistics as the operation of the section, because it is a section which seems to be potentially one of some interest. So it is not a matter of asking about every voir dire that occurs, but more the degree to which people who are giving evidence under an assumed identity have had that disrupted. That was the essence of why I would be interested in what was going on there. It does not appear to be within the section.

The Hon. M.J. ATKINSON: Yes, I agree. The member for Heysen is correct about that. The member for Heysen's immediate contribution just then was an illustration of the reverse proposition from yesterday: it is when when means if.

Mrs REDMOND: Thank you, Madam Chair. Now that I know that when means if and if means when, I can tell you that I have no other questions in the committee stage of this bill.

Clause passed.

Clause 48, schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (18:10): I move:

That this bill be now read a third time.

I commend the member for Heysen on her thorough scrutiny of this bill and so many bills before the house. I think it is an outstanding effort from the member opposite where most of the effort has been her own. I think even the rogues of the Criminal Law Committee of the Law Society would be impressed by her thorough scrutiny—clause by clause—of the bill. Not that it will make them any happier. This is parliament operating as it should. We rarely see this kind of scrutiny in the commonwealth parliament. This kind of scrutiny is confined to state parliaments, and long may the member for Heysen continue to put her efforts, as the shadow, into this kind of work.

Bill read a third time and passed.

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