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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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STATUTES AMENDMENT (CRIMINAL INTELLIGENCE) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 27 October 2010.)

Mr PEDERICK: Madam Deputy Speaker, I draw your attention to the state of the house.

A quorum having been formed:

Ms CHAPMAN (Bragg) (12:22): I advise that I am the lead speaker on behalf of the opposition on the Statutes Amendment (Criminal Intelligence) Bill 2010, which was introduced in the House of Assembly on 27 October 2010 by the Attorney-General. I say in opening my remarks that the opposition has been ably assisted in its deliberations on the assessment of this matter for the purposes of its progression by Mr Matthew Goode, who in briefings provided some elaboration of the history of this matter, and further by Assistant Commissioner Tony Harrison of SAPOL, who provided an excellent briefing as well as some follow-up information regarding the operational aspects of the processes relating to criminal intelligence, which are the substantial subject of this bill, and in particular its implementation and a number of other pieces of legislation.

Our position is that, unless there is significant amendment (and I will foreshadow those amendments shortly), this bill will be opposed. To put it in a more positive light, in the event that the government indicates its agreement to certain amendments, the opposition will support the passage of the bill with those amendments.

However, matters have been brought to our attention regarding the government's haste in dealing with this matter. Some of these are persuasive and some are not, but they have been raised. The opposition is not in any way attempting to delay the passage of this bill or deal with it other than expeditiously, so I indicate that we will consent to the expected passage of the bill in this place today and that the amendments that are currently being drafted will be tabled in another place. Copies of those amendments will be presented to the Attorney-General as soon as they are available so that he may give them due consideration. We hope that he will consider them favourably, particularly if he is keen to see the passage of this bill through both houses of parliament, to pass generally and be implemented in the expeditious manner that he specifically wants.

With that, may I outline some history of the bill that is now before us. In 2003, the government enacted a series of bills, directed to 'the disruption of the activities of organised crime'—that is the wording used by the Attorney-General in his second reading contribution. A recurring feature of these bills has been to admit evidence that cannot be challenged in judicial or administrative proceedings, commonly referred to as criminal intelligence. Broadly, criminal intelligence is information which is critical to a decision but which cannot be made public or, in particular, disclosed to the individual to whom it related because to do so: (1) could prejudice the criminal investigations; (2) would enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement; and (3) would endanger a person's life or physical safety.

Once the information has been declared to be criminal intelligence, it is accepted then as evidence in a proceeding, without being first made available to the other parties to the proceedings to be able to test the reliability of evidence. A person applying for a licence, or a party to legal proceedings, is denied the right to know of, and respond to, evidence that is prejudicial to their application or their case. I think the government accepts, hence the more sparing application of the use of criminal intelligence in this manner, that it is generally in breach of procedural fairness and natural justice.

It is important to note that, on the applications under the acts to which criminal intelligence currently applies in this general 'codified manner', the party and/or their legal representatives—in different ways under these acts, but at least in general principle—usually have access to and the right of appearance at the time of argument before the judicial or administrative body on the application to even use criminal intelligence. That is where a significant amount of procedure varies, but I think it is important to note that.

I think it is also important to note that, while the use of criminal intelligence has been allowed by the courts, in the absence of reporting and assessment, it is difficult to establish how useful it has been over and above the public interest immunity—which I will refer to shortly—and what impact it is having on the rights of parties. I think it is important to remember here—and I place it on the record as I have in previous presentations on this issue—that when criminal intelligence is used it significantly adversely affects a number of important principles, potentially in a manner which tips the scale of justice.

Firstly, it can increase the risk of a miscarriage of justice. Secondly, it can increase the risk of corruption. Thirdly, it can increase the risk of political misuse. Fourthly, it undermines the standards of police investigation. Fifthly, it can undermine public trust in the judicial system. That is why it is very important that we understand that these are the principles that we put at risk in the circumstances when criminal intelligence is used. It does not mean that it results in these things, but it increases the risk, as I have outlined.

The other matter I want to just briefly traverse is what happens under our common law system, independent of the tranche of the statutory codification and implementation that we have had of criminal intelligence in the bills that were currently under consideration. Under the common law, similar untested evidence is protected from disclosure under the public interest immunity. The government asserts that the common law does not deal with it well or sufficiently and that it is not clear that public interest immunity applied to some administrative, as opposed to judicial, proceedings. However, it is important to remember that the public interest immunity is still available and is used in South Australia.

In fact, Mr Goode gave us an excellent example during the course of his presentation to us. That example related to where a police officer may attend a public place where alcohol might be being consumed, be advised by a person that another person present on the premises is involved with drugs, the police approach that other person, they find drugs in their possession and charges are laid. In many ways it is completely irrelevant to the prosecution of the case that the first person is the person who notified or alerted the police to the likelihood that this person was breaking the law.

If there were no threat to that person's life, they might come along and give evidence about what has occurred and what they told the police, but there are certain circumstances where that person's physical wellbeing may be at risk and it is reasonable that they remain anonymous for the purpose of the exercise. An application can be made to the court to not disclose the informant's name or identity and to proceed to prosecute the matter in the absence of that. That is the remedy that is available in circumstances where, as I have said, we want to do a number of things, including ensuring that a person's life or physical safety is not endangered and not prejudicing investigations and the like.

The old argument of attempting to codify something that will result in something better, more adequate and more appropriate in its administration by putting it into statute, as distinct from relying on common law, is a bit of a chestnut and I do not propose to go into that in a lot of detail. Nevertheless, it is important to remember, as the background to the debate on this matter, that there is a common law immunity protection, and it sits there irrespective of what we are doing down here. Anyone who is interested in this debate is reminded that that is an umbrella of protection that remains.

The provision of criminal intelligence in the statutory form has been in the criminal area in the Serious and Organised Crime (Control) Act 2008; the Serious and Organised Crime (Unexplained Wealth) Act 2009; and the Summary Offences Act 1953, in particular, part 16 in respect of anti-fortification. There is another tranche of law in the licensing and regulation, and that is under the Casino Act 1997, the Firearms Act 1977, the Gaming Machines Act 1992, the Hydroponics Industry Control Act 2009, the Liquor Licensing Act 1997 and the Security and Investigation Agents Act 1995.

Of all this legislation, only the provisions in the fortification division of the Summary Offences Act in the criminal law and all of those licensing acts, except the hydroponics industry, are the subject of this bill. I think it is fair to say that, in essence, we are here today because the government is asking us to fix up what is a bit of a mess. We have ended up with three different procedures and three different lots of definition. Some have been tested in the courts; some have not; some are still being tested, and we need to tidy it up. That is a meritorious argument: when you end up with a bit of a dog's breakfast, sometimes it is important to fix it up. The request to do it in a hurry, I think, has some merit, but shortly I want to identify some other ways we might go ahead with that.

It is also important to note that in 2009 the government introduced the Second-hand Goods Bill 2009. In that bill, there was a proposal to have a codified process for the introduction of criminal intelligence on their applications, but that was withdrawn and not proceeded with. However, we do have the Summary Offences (Weapons) Amendment Bill 2010, which is currently before this house and to be debated later this week. That also proposes criminal intelligence as part of its significant raft of not just offences but in particular orders that can be issued under the application of the Commissioner of Police.

It touches quite a few areas, and what has happened is that, as these bills have become law, we have now ended up with three different models or, as some have described, three generations of provisions. The first is what we will describe for the purpose of this debate as the original, which was used in the Summary Offences Act. That is the fortification legislation, and that sets out in many ways a codification of the public interest immunity. Personally I think it actually did quite a good job, and it was probably early days for a lot of this legislation.

I think it is worth noting here that a fortification removal order, which as members would be aware provides for the right to bulldoze the fence down, can be made only by application of the Commissioner of Police to a court if, firstly, the premises in question are fortified and then a number of other requirements are met. The fortifications have to have been created in contravention of the Development Act 1993, which means that they have proceeded against the wishes, usually, of a council determination—that is, a local government determination.

There have to be reasonable grounds that the premises are being, have been, or are likely to be used in connection with the commission of a serious criminal offence, or to conceal evidence relating to a serious criminal offence, or to keep proceeds of a serious criminal offence, or that the premises are owned by a declared organisation, and that procedure for declaration is of course outlined in our serious and organised crime legislation.

Even then there is a whole series of requirements that need to be complied with before the removal order can be implemented. Obviously, there is the usual provision as to who receives and is served with such applications, and there is an opportunity to keep confidential information whose disclosure might:

(a) prejudice the investigation of a contravention or possible contravention of the law; or

(b) enable the existence or identity of a confidential source of information to be ascertained; or

(c) endanger a person's life or physical safety.

The act goes on to provide that, if the court is satisfied (having regard to the principle of public interest immunity) that the information should be protected, the court must order that that information is not disclosed, etc.

It is quite a tidy example of the whole process and, again, in the same procedure, there are very severe penalties, including up to three years' imprisonment or a $60,000 fine in respect of disclosing the information that is the subject of an order under these procedures. I think, on balance, a pretty well thought out process existed at the time of the advancing of the fortification provisions (commonly known as the anti-fortification provisions).

We then have the second generation of the codification. This was evident in what we call the K-Generation case, which has been the subject of the High Court's consideration. It was a model which was upheld by the High Court. It related to a liquor licensing court application. In essence, my understanding of the facts of that case is that criminal intelligence had been used. The applicant for a liquor licence challenged the constitutional validity of what was then section 28A of the Liquor Licensing Act 1977. So that stood its test, I suppose. As we cannot go to the Privy Council anymore, the High Court is about as high as you can get and it stood the high threshold test to survive.

There was a lot of nervousness around at the time as to how these codifications were going to stand up, stack up or survive challenges in superior courts, and so, at that stage, the government decided that it wanted to reduce the risk of future challenges and protect itself against what could sometimes be seen as fairly embarrassing when things go wrong and very inadequate given the seriousness of the level of the crime. For example, from a public point of view, when such people are facing prosecution, it can be very embarrassing publicly, humiliating even, if the government gets it wrong, or there is a stuff-up (if I can be as frank as that) and bad people get away with things.

I accept, given the seriousness of the matters which we are dealing with, that it was probably reasonable for the government to get some advice about making sure that what it was presenting to the parliament for enactment was going to stack up and stand up, and be able to be relied on. It got some advice, and just in case there was going to be a further challenge, the bills were drafted to reflect a third generation model which had been prepared by the then solicitor-general, Mr Kourakis QC (now judge). He advised the government to revise the formulation of criminal intelligence and to try to predict what would be more amenable to the High Court to make sure that these things were not challenged in the future.

What has happened overlapping this—it is a bit of pre-emptive strike, I suppose—is that the K-Generation case model was upheld, and so the government effectively dealt with some of the new third generation models by simply not proclaiming parts of the acts, in particular the Liquor Licensing Act 1977 and the Casino Act 1977, so that they would not come into effect. In other words, we had a model that was upheld in the High Court. We introduced new laws—but we did not need them in the end—and the way to deal with not having them implemented was just simply to leave some paragraphs out at the time of proclamation so that they did not come into effect.

The problem with all this is that another lot of law is sitting alongside this under the Acts Interpretation Act 1914, which prescribes, pursuant to section 7(5), that where the proclamation is delayed it will automatically be proclaimed after two years has expired since they were enacted. So we have a time frame that needs to be accommodated.

I think, from memory, 4 December is when these unproclaimed sections will come into effect. The government clearly does not want that to occur and, hence, they are asking us to expedite the matter. It is worth noting that all the other aspects of those bills as amended have already been fully proclaimed and are operational.

I want to briefly mention the K-Generation principle, in light of the fact that there is now another case before the High Court, and how it affects what we are dealing with today. The Serious and Organised Crime Act 2008 (SOCA) is legislation that relates to dealing with serious and organised crime. It has a number of declaration procedures to outlaw criminal gangs and the like, and it uses criminal intelligence provisions with the capacity to be able to use them in those applications.

I think it is fair to say that South Australia took a leading role in making sure that this type of legislation came to fruition, and it did so with the support of the opposition. Subsequently, some other states have followed suit and introduced similar legislation to enable the use of criminal intelligence. It is interesting to note that it appears, on the information we have received, that no other state has followed this procedure or the codification of this principle into registration and licensing legislation. We seem to be unique in that regard. We have gone from bending the rules, I suppose, for good reason in serious and organised crime matters, to allowing it to be applied in legislation for licensing—and in an ever-expanding way, as I note that there is still some legislation on foot.

I might say, as an aside, that I do not doubt that, as with other legislation that will transfer a whole lot of consumer protection rules (another COAG initiative) to the commonwealth (I think that is another bill which is in the course of being passed through this parliament), there will be much left for OCBA to do in South Australia. I am starting to wonder what it is going to be occupied with, whether it might meet some demise. Will people be redirected into other jobs and what will happen with the residual jobs—will they stay with the Office of Consumer and Business Affairs or be transferred to the police or some other body? Who knows?

However, it seems as though other states have not followed the South Australian initiative of bringing in provisions to use criminal intelligence in legislation for registration and licensing purposes. I will go back to these cases so that we place this on the record. At present, as I think would be well known to members, the Serious and Organised Crime Act 2008 is currently being defended by the government in the case of Totani in the High Court. It is always hard to say what the High Court is going to do with these cases, but if they dismiss the appeal, at least in part, this is likely to trigger the need for the government to revisit the act, and we will obviously have to do that.

I am advised today that judgement in the Totani case is proposed to be handed down on Thursday this week. The expectation of that judgement being handed down is because in New South Wales there has been a challenge to its bikie law. The High Court is scheduled to commence hearing that case, known as Wainohu, later this month on, I think, 30 November. The general prediction, at least, is that the High Court would want to deliver its judgement in Totani before it commences that case.

I do not know why we have had such a delay in the introduction of this legislation—because we are still being asked to deal with it on the basis of the proclamation date of 4 December—and why we could not have been briefed on it. I suppose it raises some questions which may ultimately be embarrassing, that is, whether, in fact, the High Court in Totani is going to in some way change its view from the determination it made in the K-Generation case. Who knows?

Every indication that we have had from the government is that this is unlikely, but we also have every reason to believe that it could well be the case. We do not know what the High Court will do because, irrespective of what submissions have been put to it, it may take the view that it is all a complete red herring and that it does not need to deal with it at all.

It is all conjecture. If the judgement were to be handed down later this week and we could tidy up everything together, that would be one option, but the government seems to be insisting that it progress before we get that judgement. If there is anything in that judgement which is embarrassing to the government, ultimately, by determination of the High Court, it is going to be public anyway.

I also place on the record that, so far, the application of these laws has been very limited from the briefings that we have had. I mention that because the government has said that it's principal reason is: 'We don't want to have a situation where 4 December comes and goes and these provisions come into effect, because we then may receive challenges which we could otherwise avoid if we pass this legislation.'

Therefore, the Hon. Stephen Wade in another place and I sought and received advice from Assistant Commissioner Tony Harrison as to how often these provisions have even been used. Certainly, the Assistant Commissioner was very helpful in providing some data and explanation of that. I will not be indicating a good bit of the information that he provided, because I think it is important for the purposes of operational matters that it is not made public, and I will not be doing so. However, in the number of applications he confirmed that, under the use of criminal intelligence files since 2008 and K-Generation, five criminal intelligence reports in total had been prepared in relation to liquor licensing and three relating to security investigation and the investigation agents act. I am assuming they have all been on the basis of supporting the contention that the applicant should not be either given a licence to a hotel or public place or be able to become a private detective.

There have been only two applications at the criminal level under the Serious and Organised Crime (Control) Act. One has been completed, and was successful in respect of declaring an organisation, namely the Finks Motorcycle Club (made on 14 May this year), and there is a current application before the Attorney-General in respect of the Rebels Motorcycle Club (submitted on 9 December last year).

I think it is fair to say that, on the information provided, of all the applications that are made, particularly in relation to registration licensing, this would have to be seen as minimal. We do note that the successful applications were in K-Generation, which I have referred to. There were three applications all of which were successful; two were security based criminal investigation reports and one was a security criminal investigation report.

The other aspect which we received a briefing on, but which I will not be particularising, was to be able to identify the standards of the classification and management of intelligence. It is important that we at least be satisfied that if we allow for the collating and presentation of criminal investigation reports by the Commissioner of Police, or anyone else for that matter, we are sure that they are of a high standard.

In brief, we have been provided with confirmation that the South Australian police have relied on an international standard that was commonly used in other commonwealth jurisdictions, which has now been replaced by a new process. I am not sure that this new process has been applied to the preparation of any reports that have been presented for inclusion, but it is a new UK model, which is apparently of a very high standard. We certainly hope it is, because we need to maintain a high standard. Certainly, I appreciate the information that has been provided.

I think it is also important to note the level at which access to information is given. The question was raised—and I think it is a very legitimate one—of how you know, if you are the applicant or legal representative of an applicant, whether a criminal intelligence report is even being used or is going to be presented. How do you even know that that application is going to be presented and what opportunity do you or your nominated counsel have to put in a submission in relation to that? With that, I seek leave to continue my remarks.

Leave granted; debate adjourned.


[Sitting suspended from 13:00 to 14:01]


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