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

Introduction and First Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (15:57): Obtained leave and introduced a bill for an act to authorise the use of undercover operations and assumed identities for the purposes of criminal investigation and the gathering of criminal intelligence within and outside the state; to establish a certification scheme for the protection of the identity of certain witnesses; to provide for cross-border recognition of undercover operations, assumed identities and the certification scheme; to repeal the Criminal Law (Undercover Operations) Act 1995; and for other purposes. Read a first time.

Second Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (16:00): I move:

That this bill be now read a second time.

As part of the attack on the activities of outlaw motorcycle gangs, the Premier has called for a national approach to the problems posed by bikies. Cooperative criminal investigation powers are a good example of the national approach. The bill will enable cooperative arrangements to be made with other Australian jurisdictions in the areas of criminal investigation dealt with.

This bill deals with three of those areas. Reform of the law dealing with electronic surveillance is a more difficult and controversial subject and will be addressed later. A task force known as the national Joint Working Group (JWG) established by the Standing Committee of Attorneys-General and the Australian Police Ministers Council published a discussion paper in February 2003 that discussed and presented draft legislation on four topics: controlled operations, assumed identities, electronic surveillance and witness anonymity and received 19 submissions.

This report arose from developments in the Council of Australian Governments meetings in the previous year. A final report was published in November 2003. The report of the JWG dealt with four areas of criminal investigation law. They were:

(a) assumed identities of informers and undercover operatives;

(b) the protection of the identity of some witnesses in court;

(c) undercover operations; and

(d) electronic surveillance.

I seek leave to have the remainder of the second reading explanation inserted in Hansard without my reading it.

Leave granted.

Assumed Identities

An assumed identity is a false identity used by a law enforcement authority for a limited period for the purpose of criminal investigation or the gathering of criminal intelligence. An assumed identity provides cover for an undercover operative engaging in a controlled operation to uncover criminal activity or to infiltrate organised criminal groups. It is important that the undercover operative be able to verify the false identity with such common identity documents as a driver's licence, birth certificate, passport and credit card. South Australia has no legislation that deals with this area of law. As the Wood Royal Commission into the NSW Police Service found in 1997, that lack means that the assumption of false identities for law enforcement purposes may be ad hoc, uncertain in legality and lacking in accountability. Therefore, the principal purpose of this legislation is to regularise the creation of false identities by government agencies and to legalise expressly the use of authorised false identity documents by officers of law enforcement agencies.

The lack of an explicit legislative regime means that law enforcement officers are exposed to the risk that they commit criminal offences in acquiring and using an assumed identity, such as the general offences of making and using false documents and specific offences aimed squarely at identity theft. In addition, the lack of a legislative base means that there may be inadequate provision for internal and external accountability mechanisms. The Wood Royal Commission into the NSW Police Service recommended that there be a legislative regime for assumed identities in NSW (see the Law Enforcement and National Security (Assumed Identities) Act 1998 of NSW). The Commonwealth Government enacted legislation in 2001, now provided for in sections 15XA-15XW of Part 1AC of the Crimes Act 1914. Those provisions were to be supplemented by the provisions of the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006. That Bill, however, lapsed with the last General Election. Victoria has enacted the model in the Crimes (Assumed Identities) Act 2004; the Queensland version is to be found in the Police Powers and Responsibilities Act 2000; and the Western Australian version in the Royal Commission (Police) Act 2002.

The cross border element of the proposed legislation is particularly significant. It is notorious that criminal behaviour, particularly serious and organised criminal behaviour, does not respect State borders—indeed, may seek to profit from them. Jurisdictional differences and policing areas within Australia create opportunities for crime to flourish. Differing legislative requirements in each Australian jurisdiction about assumed identities create operational uncertainty and delay for law enforcement in cross border criminal investigations. It is proposed that the mutual recognition provisions in the Bill will provide for a scheme that will allow law enforcement authorities using a false identity validly obtained in South Australia under the South Australian Act to use that identity elsewhere in Australia. In addition, the mutual recognition provisions contemplate that law enforcement authorities using a false identity validly obtained in South Australia under the South Australian Act can lawfully acquire evidence of that false identity from an identity issuing authority in another jurisdiction.

The Bill deals with these general issues that comprise the structure of the legislative scheme:

the procedure for applying for an assumed identity authority;

the grounds for issuing an authority for an assumed identity;

the contents of the authority;

the period for which the authority remains in force;

the agencies or bodies from which false identity documents can be obtained and whether the issuing of these documents is mandatory or voluntary;

the scope of the protection from criminal liability and the provision of civil indemnity for people using the authorised false identities and the people who have issued them;

sanctions for the misuse of false identities;

cross border recognition of authorities;

the participation of people who are not law enforcement officers; and

record-keeping, auditing and reporting requirements.

Witness Protection

Occasionally it is necessary to allow a witness in court proceedings to give evidence without disclosing his or her true identity, to protect the personal safety of the witness or his or her family. Several Australian jurisdictions provide specific measures to protect the true identity of covert operatives who give evidence in court. These measures include, holding the part of the court proceedings relating to the person's identity in private; suppressing the publication of evidence relating to the person's identity; excusing the witness from disclosing identifying details; and enabling the person to use a false name or code name during court proceedings.

The law on protecting the identity of undercover police witnesses varies between jurisdictions. In some jurisdictions, legislation has been enacted, while other jurisdictions leave the issue to the common law. South Australia has no such legislation. It should. Further, in line with the aim of the cross border investigation package, it is desirable to put in place a consistent system in each Australian jurisdiction for cross border investigations. For example, if a South Australia police officer participates in a controlled operation that extends into the Northern Territory, the officer needs to be assured that his or her identity can, if necessary, be protected in any proceedings in the Northern Territory (conforming to proceedings in South Australia). Such consistent protection is necessary to facilitate and encourage cross border investigation and to protect the safety of covert operatives.

Concealing the true identity of undercover operatives in this situation can achieve two purposes that are in the public interest. The first is protecting the personal safety of the witness (or other persons connected to the witness, such as his or her family). The second is enhancing the efficacy of undercover operations. By protecting the true identity of the witness, he or she is preserved as a useful undercover officer, an important tool in fighting organised crime. Concealing an undercover operative's true identity may also be necessary to encourage police officers and non-police informers to participate in undercover operations, confident that, if necessary, their identity and safety will be protected.

But these factors do not always prevail. There is also a strong and contrary public interest in the right of an accused to be tried fairly. Measures that conceal the true identity of a witness may detract from the right of an accused to be tried fairly, to the extent that they may impinge on the defendant's ability to test the credibility of the witness properly, or at all, in a crucial matter. The kinds of issues that are important are: the witness's general honesty, expertise or standing; the witness's motive to lie; the consistency, or inconsistency, of the witness's evidence with previous statements made by the witness; and the witness's capacity for accurate observation and recollection.

The true identity of the witness will not always be required for credibility to be tested. Issues such as the witness's motive to lie or capacity for accurate recollection will not usually hinge on the actual name or address of the witness. But concealing the true identity of a witness's identity should only be available in exceptional circumstances and subject to strict criteria. A model legislative system for protection of witness identity for covert operatives has the advantage of providing transparency and certainty as to when identity will be concealed. It will also provide consistency for law enforcement agencies and operatives who operate in cross border investigations.

It is not true that a statutory regime to this effect will destroy an inalienable common law right for there is good authority that the identity of a witness can be concealed at common law. Although there is an early case denying the judicial authority to suppress the identity of a witness (R v Stipendiary Magistrate at Southport ex parte Gibson [1993] 2 QdR 687), the major effect of that decision was to lead the Parliament of Queensland to enact a statutory scheme that, in effect, overruled that decision. The leading authority now is the later decision in Jarvie v The Magistrates' Court of Victoria [1995] 1 VR 84. That decision said that there was a judicial discretion to allow undercover operatives to give evidence without revealing their true identity. Leave to appeal to the High Court was refused. The judicial discretion was based on the doctrine of public interest immunity. That doctrine, sometimes known as the 'informer's immunity', has a long lineage. The most common use of the doctrine is to prevent disclosure of documents or to prevent cross-examination of an identified witness if either course would result in the identification of a police informer. There is no doubt that public interest immunity and the informer's privilege is accepted in South Australia (R v Mason (2000) 74 SASR 105; R v McKelliff (2004) 87 SASR 476; Haydon v Magistrates Court and Rofe (2001) 87 SASR 448; R v Haydon (No 2) [2005] SASC 16). In Mason and McKelliff, the Full Court quoted with approval from Jarvie. On the other hand, it did not specifically apply the informers' immunity to a witness giving evidence in court because that was not the situation before it in either case—nor in the Haydon decisions.

Legislation allowing the use of a witness in court under conditions of anonymity exists in the Commonwealth (Crimes Act 1914, section 15XT), New South Wales (Law Enforcement and National Security (Assumed Identities) Act 1998), Queensland (Evidence (Witness Anonymity) Amendment Act 2000), Western Australia (Royal Commission (Police) Act 2002, section 25), New Zealand (Evidence Act 1908 sections 13A-13J). Tasmania has enacted the Witness (Identity Protection) Act 2006 but it is not yet in force.

The Government proposes to put the ability to present a witness in court with a false identity on a firm statutory footing. The proposed scheme will differ from the position at common law. The reasons for putting forward the legislation are clarity, transparency and improvement.

In outline, the proposed scheme is that the chief officer of a law enforcement or intelligence agency is able to give a witness an identity protection certificate that enables a witness to give evidence under a pseudonym without disclosing his or her true identity, to protect the personal safety of the witness or his or her family. The chief officer may delegate the decision making authority to a Deputy Commissioner. The decision-maker must be satisfied that disclosing the person's true identity would endanger them, or somebody else, or would prejudice current or future investigation of a criminal offence. The decision-maker must complete a formal certificate containing the following information:

the assumed name for the purposes of the proceeding;

the period during which the operative was involved in the operation to which the proceeding relates;

the name of the agency;

the date of the certificate;

the grounds for giving the certificate;

whether the operative has been found guilty of an offence, and if so, particulars of each instance;

whether charges are pending or outstanding, and if so, particulars of each instance;

where the operative is a law enforcement officer, whether he has been found guilty, or been accused of, misconduct, or there are charges outstanding or pending and the particulars of each instance;

whether a court has made adverse findings about the credibility of the operative, and the particulars of each instance;

whether the operative has made a false representation where the truth was required, and particulars of each instance; and

anything else known relevant to the credibility of the operative

The witness will appear in person to give evidence, be cross-examined and have his demeanour assessed by the court. However, the real name and address will be withheld from the court as well as the defence. Details relating to the credibility of the witness will appear on a certificate of protection issued by the decision-maker, and made available to the court and defence. This will mean that the defence is restricted in its ability to question the credibility of the witness, as only those details revealed on the certificate will be available.

The decision to protect the identity of a witness is final, and cannot be appealed against or otherwise challenged in any court. However, the court at which the protected witness appears will have the authority to give leave or make an order that may lead to the disclosure of the operative's true identity or address. An application for leave must be made in closed court. However, the court may only make such an order or give leave if it is satisfied that:

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

it would be impractical to properly test the credibility of the operative without allowing for possible disclosure of their identity or address; and

it is in the interests of justice for the operative's credibility to be tested

If the order to disclose is made, the court must adjourn proceedings for sufficient time so that the prosecution can decide whether to proceed with the witness or not. If the prosecution decides not to call the witness, the order for disclosure must lapse. The provisions for granting leave do not require the court to 'balance' the competing public interests in a fair and open trial (which may require disclosure) against the protection of the identity of a witness. Rather, the competing interests are taken into account by being considered separately by the law enforcement agency (which would consider the need for protection) and the court (which would consider the necessity for disclosure of identity to ensure a fair trial). The application of these provisions will mean a departure from the common law approach, where courts 'balance' these competing interests.

There are offences of disclosure of information dealing with a protected operative. Where a protection certificate is current, and a person engages in conduct that results in a real identity being revealed, a maximum penalty of two years' imprisonment is applicable. Where a person is also reckless about whether his conduct will endanger the health and safety of a person, or will prejudice the effective conduct of an investigation, the maximum penalty is 10 years imprisonment.

The Commissioner of Police is required to provide annual reports to the Minister, which must be tabled in Parliament, containing details of the issuing and use of witness protection certificates.

Undercover or Controlled Operations

The substantive South Australian provisions were enacted in 1995 and have worked well. They are more than adequate by themselves for intrastate operations. I do not intend to open up the substantive provisions of the current law. There has been no objection to the way the current law works from the judiciary, the prosecution, the police or the defence bar. Things are best left alone in such circumstances.

The JWG recommended a model Bill covering the whole of the substantive law on what it called controlled operations for interstate operations. The general purpose of the model was to be that there would be one system for intrastate investigations and another for interstate investigations. It is not conducive to good and efficient criminal investigation for there to be parallel systems regulating undercover operations. It is possible that any one given investigation will require two sets of authorities and two sets of procedures. This can lead only to confusion. It is therefore proposed to enact cross-border provisions within the substantive provisions that South Australia has now. Once the cross border provision is enacted, South Australia can apply for the corresponding recognition of its process in other enacting jurisdictions.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

The parameters of this measure are established in the Long Title. The Long Title provides that this measure is enacted to authorise the use of undercover operations and assumed identities for the purposes of criminal investigation and the gathering of criminal intelligence within and outside of South Australia; to establish a certification scheme for the protection of the identity of certain witnesses; to provide for multi jurisdictional recognition of undercover operations, assumed identities and the certification scheme; and for other purposes. Clause 3 contains definitions of words and phrases used in the measure, including definitions of an approved undercover operation, an assumed identity, assumed name and witness identity protection certificate.

Part 2—Undercover operations

4—Approval of undercover operations

This clause provides that a police officer of or above the rank of Superintendent may, if satisfied as to various criteria, approve undercover operations for the purpose of gathering evidence of serious criminal behaviour. Such approval must be in writing and must specify (among other matters) who is authorised to participate in the operations, the nature of the operations and the period for which the approval is given. A copy of the instrument of approval must be provided to the Attorney-General.

5—Legal immunity of persons taking part in approved undercover operations

This clause (which operates both prospectively and retrospectively) provides that, 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.

Part 3—Assumed identities

Division 1—Authority to acquire or use assumed identity

6—Application for authority

This clause makes provision for the making of an application by a law enforcement officer to the chief officer of the law enforcement agency for an authority to—

acquire an assumed identity; and/or

use an assumed identity.

Such an application must be in writing and must contain certain information, including the name of the person authorised to acquire or use an assumed identity and the reasons for the need of the assumed identity.

7—Determination of applications

This clause provides that the chief officer may grant an authority applied for under clause 6 subject to such conditions as the chief officer thinks fit if the chief officer is satisfied as to the criteria set out in the clause. If the authority is granted in respect of a person who is not a law enforcement officer (that is, an authorised civilian), the chief officer must also appoint a law enforcement officer to supervise the acquisition and/or use of the assumed identity by the authorised civilian.

8—Form of authority

This clause sets out the requirements for the form of the authority.

9—Period of authority

This clause provides that an authority granted to a law enforcement officer (an authorised officer) remains in force until cancelled, while an authority for an authorised civilian remains in force until the end of the period specified in the authority (which may not exceed 3 months) unless cancelled sooner.

10—Variation or cancellation of authority

This clause provides that the chief officer who grants an authority may vary or cancel the authority at any time and must cancel the authority if satisfied that any of the grounds for the granting of the authority no longer exist.

11—Yearly review of authority

Each authority granted by a chief officer of a law enforcement agency must, at least once a year, be reviewed by the chief officer (or his or her delegate) to determine whether the grounds for the granting of the authority still exist.

12—Making entries in register of births, deaths and marriages

The Supreme Court may, on application by the relevant chief officer, order the Registrar of Births, Deaths and Marriages to make an entry in the Register under the Births, Deaths and Marriages Registration Act 1996 in relation to the acquisition of an assumed identity under an authority or corresponding authority.

Such an application must be heard in closed court.

13—Cancellation of authority affecting entry in register of births, deaths and marriages

If a chief officer cancels an authority for an assumed identity for which there is an entry in the Births, Deaths and Marriages Register, the chief officer must apply to the Supreme Court for an order cancelling the entry and the Registrar of Births, Deaths and Marriages must give effect to any such order of the Court.

Division 2—Evidence of assumed identity

14—Request for evidence of assumed identity

The chief officer of a law enforcement agency who grants an authority under proposed Division 1 may also request the chief officer of an issuing agency to produce evidence of an assumed identity and provide the relevant authorised person with that evidence.

15—Cancellation of evidence of assumed identity

The chief officer of an issuing agency must cancel evidence of an assumed identity if directed to do so by the chief officer of the law enforcement agency who requested the production of the evidence.

16—Legal immunity of officers of issuing agencies

This clause provides that the officer of an issuing agency who does something that, apart from this proposed clause, would constitute an offence, is not criminally responsible for the action if the action is done to comply with a request under this Division.

17—Indemnity for issuing agencies and officers

This clause provides that the relevant law enforcement agency must indemnify an issuing agency or agency officer for any liability incurred by the agency or officer if the liability is incurred because of something done by the agency or officer in complying with a request or direction in the course of duty and the agency or officer have met any prescribed requirements.

Division 3—Effect of authority

18—Assumed identity may be acquired and used

Assumed authorities may be acquired and used by an authorised person in accordance with the authority and—

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

in the case of an authorised civilian—in accordance with any direction by the person's supervisor under the authority.

19—Legal immunity of authorised persons acting under authority

This clause provides for immunity under the law for an authorised person acting properly under an assumed identity in accordance with the authority and if doing the act would not be an offence if the assumed identity were the person's real identity.

20—Indemnity for authorised persons

Where the chief officer of a law enforcement agency grants an authority, the law enforcement agency must indemnify the authorised person under the authority for any liability incurred by the person if—

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

the act is done—

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

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

the requirements (if any) prescribed by the regulations have been met.

21—Particular qualifications

Proposed clauses 19 and 20 do not apply to anything done by an authorised person if a particular qualification is required to do something and the authorised person does not have that qualification (even if the person purports to have the qualification under the assumed identity).

22—Effect of being unaware of variation or cancellation of authority

This proposed Division continues to apply to an authorised person whose authority has been varied or cancelled for so long as the person is unaware of the variation or cancellation and is not reckless about the variation or cancellation.

Division 4—Mutual recognition

23—Requests to participating jurisdiction for evidence of assumed identity

If an authority authorises a request under this clause, the chief officer of a law enforcement agency granting the authority may request the chief officer of an issuing agency of a participating jurisdiction stated in the authority—

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

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

24—Requests from participating jurisdiction for evidence of assumed identity

This clause authorises the chief officer of an issuing agency in SA to produce and give evidence of an assumed identity in SA under a request under a corresponding law.

Division 5—Compliance and monitoring

25—Misuse of assumed identity

This clause makes it an offence for an authorised person to acquire evidence of an assumed identity not in accordance with the authority or to misuse an assumed identity. The penalty for such an offence is imprisonment for 2 years.

26—Disclosing information about assumed identity

This clause provides that it is an offence for a person to intentionally, knowingly or recklessly disclose information that reveals that an assumed identity acquired or used by a person is not the person's real identity in circumstances where the disclosure is not made in connection with the administration or execution of this measure or a corresponding law, for the purpose of legal proceedings or in accordance with a requirement imposed by law. The penalty for such an offence is imprisonment for 2 years.

The penalty for a wrongful disclosure is imprisonment for 10 years in circumstances in which the person—

intends to endanger the health or safety of any person or prejudice the effective conduct of an investigation or intelligence-gathering in relation to criminal activity; or

knows that, or is reckless as to whether, the disclosure of the information—

endangers or will endanger the health or safety of any person; or

prejudices or will prejudice the effective conduct of an investigation or intelligence gathering in relation to criminal activity.

27—Record keeping

This clause requires the chief officer of a law enforcement agency to keep appropriate records containing the information set out in the provision about the operation of this proposed Part.

28—Audit of records

This clause requires that the records referred to above kept in relation to an authority be audited at least once every 6 months while the authority is in force and at least once in the 6 months following the cancellation or expiry of an authority.

Division 6—Delegation

29—Delegation

This clause makes provision for the chief officer to delegate his or her functions under proposed Part 3.

Part 4—Witness identity protection

Division 1—Interpretation

30—Interpretation

This clause assists in the interpretation of this proposed Part.

Division 2—Witness identity protection certificates for local operatives

31—Chief officer may give witness identity protection certificate to local operative

This clause provides that the chief officer of a law enforcement agency may give a witness identity protection certificate in respect of a local operative of the agency in relation to proceedings if—

the operative is or may be required to give evidence in the proceedings; and

the chief officer is satisfied on reasonable grounds that the disclosure in the proceedings of the operative's identity or where the local operative lives is likely—

to endanger the safety of the operative or someone else; or

to prejudice any investigation.

The chief officer must be satisfied as to certain information (to be verified by statutory declaration) before giving any such certificate.

32—Protection of decision to give witness identity protection certificate

A decision to give a witness identity protection certificate is final and cannot be appealed against, reviewed, called into question, quashed or invalidated in any court.

However, that does not prevent a decision to give a witness identity protection certificate from being called into question in the course of any proceedings of a disciplinary nature against the person who made the decision.

33—Form of witness identity protection certificate

This clause sets out the requirements for a witness identity protection certificate.

34—Cancellation of witness identity protection certificate

This clause provides that a witness identity protection certificate must be cancelled if the chief officer of a law enforcement agency considers that it is no longer necessary or appropriate to be in place.

35—Permission to give information disclosing operative's identity etc

If the chief officer of a law enforcement agency gives a witness identity protection certificate in respect of a local operative of the agency in relation to proceedings, the chief officer may, if he or she considers it necessary or appropriate for information that discloses, or may lead to the disclosure of, the local operative's identity or where the local operative lives to be given (otherwise than in the proceedings), give written permission to a person to give the information.

Division 3—Use of witness identity protection certificate in proceedings

36—Application and interpretation of Division

This clause provides that this proposed Division applies to proceedings in SA in which an operative is, or may be, required to give evidence obtained as an operative.

For the purposes of this Division, a witness identity protection certificate is—

a witness identity protection certificate given in respect of a local operative; or

an interstate witness identity protection certificate,

as the case requires.

37—Filing and effect of filing of witness identity protection certificate in court

A witness identity protection certificate for an operative in relation to proceedings in SA must be filed in the court before the operative gives evidence in the proceedings and a copy must be given to each party to the proceedings before the operative is to give evidence.

If these procedures are followed, the operative in respect of whom the certificate has been filed may give evidence under the assumed name or court name stated in the certificate and his or her identity or residence cannot be revealed in the proceedings.

The presiding officer in proceedings in a court in which a witness identity protection certificate is filed may require the operative—

to disclose his or her true identity to the presiding officer; and

to provide the presiding officer with photographic evidence of that identity.

38—Orders to protect operative's identity etc

The court in which a witness identity protection certificate is filed may give such orders as it considers necessary or desirable to protect the identity of the operative and prevent disclosure of where the operative lives. The penalty for contravening any such order is imprisonment for 2 years.

39—Directions to jury

If an operative in respect of whom a witness identity protection certificate is filed in a court in relation to proceedings gives evidence in the proceedings, the court must (unless it considers it inappropriate) direct the jury not to give the operative's evidence any more or less weight, or draw any adverse inferences against the defendant or another party to the proceedings because the certificate has been filed or the court has made an order. This clause is subject to proposed clause 40.

40—Application for disclosure of operative's identity etc in proceedings

Under this clause, a party to proceedings may apply to the court for permission to ask a question of a witness or for a witness to make a statement that may lead to the disclosure of an operative's identity or where the operative lives if (and only if) the court is satisfied as to each of the following:

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

it would be impractical to test properly the credibility of the operative without allowing the risk of disclosure of, or disclosing, the operative's identity or where the operative lives;

it is in the interests of justice for the operative's credibility to be able to be tested.

Unless the court considers that the interests of justice require otherwise, the court must be closed when an application under this clause is made or when any question is asked, evidence given, information provided or statement made.

The court must make an order suppressing the publication of anything said when an application under this clause is made and when any question is asked, evidence given, information provided or statement made. The penalty for breaching such an order is imprisonment for 2 years.

41—Offences

A person commits an offence (the penalty for which is imprisonment for 2 years) if—

a witness identity protection certificate in respect of an operative has been given; and

the person knows that, or is reckless as to whether, the certificate has been given; and

he person intentionally, knowingly or recklessly does something (the disclosure action) that discloses, or is likely to lead to the disclosure of, the operative's identity or where the operative lives; and

the person knows that, or is reckless as to whether, the certificate had not been cancelled (whether under this measure or a corresponding law) before the person does the disclosure action; and

the person knows that, or is reckless as to whether the disclosure action is not permitted under this measure or authorised under a corresponding law.

If a person commits any such offence in circumstances in which the person—

intends to endanger the health or safety of any person or prejudice the effective conduct of an investigation; or

knows that, or is reckless as to whether, the disclosure action endangers or will endanger the health or safety of any person or prejudices or will prejudice the effective conduct of an investigation,

the person will be liable to imprisonment for 10 years.

Division 4—Delegation

42—Delegation

This clause makes provision for the chief officer to delegate any of his or her functions under this proposed Part.

Part 5—Application of Act to approvals, authorities or certificates under corresponding laws

43—Application of Act to approvals under corresponding laws

This clause applies specified provisions of this measure to anything done in SA in relation to a corresponding approval granted under a corresponding law as if it were an approval granted under proposed Part 2 of this measure.

44—Application of Act to authorities under corresponding laws

This clause applies specified provisions of this measure to anything done in SA in relation to a corresponding authority granted under a corresponding law as if it were an authority granted under proposed Part 3 of this measure.

45—Application of Act to witness identity protection certificates under corresponding laws

This clause applies specified provisions of this measure to anything done in SA in relation to a corresponding witness identity protection certificate granted under a corresponding law as if it were a witness identity protection certificate granted under Part 4 of this measure.

Part 6—Miscellaneous

46—State Records Act 1997 and Freedom of Information Act 1991 not to apply

This clause provides that neither the State Records Act 1997 nor the Freedom of Information Act 1991 apply to information obtained under this Act.

47—Annual report

This clause makes provision for an annual report to be submitted to the Minister that includes information relating to Part 2, Part 3 and Part 4 of the measure, for the exclusion of certain information to be excluded from the report and for the tabling of the report in Parliament.

48—Regulations

This clause provides that the Governor may make such regulations as are necessary or expedient for the purposes of this measure.

Schedule 1—Repeal and transitional provisions

The Schedule makes provision for the repeal of the Criminal Law (Undercover Operations) Act 1995 and for transitional arrangements consequent on the repeal of that Act and the enactment of this measure.

Debate adjourned on motion of Mr Williams.

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