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House of Assembly - Fifty-Second Parliament, First Session (52-1)
2010-11-10 Daily Xml
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STATUTES AMENDMENT (CRIMINAL INTELLIGENCE) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 9 November 2010.)

Ms CHAPMAN (Bragg) (16:50): I was outlining, at the conclusion of the debate on this matter, the process by which someone, who might be the subject of criminal intelligence being used against them, has access to the knowledge that an application is even being made. I am advised that, in respect of the Serious and Organised Crime (Control) Act, when an application is made any person who is to be the subject of a declaration can be invited by either themselves or their nominated council to attend an appointment to view the application to enable them to make a submission as to whether that application should be granted.

That is an important part of the process, because otherwise the secret information would be presented to the judicial or administrative authority and you would not even know that an application had been made. That does not mean that you can have access to the information itself, that is, the classified criminal intelligence, nor, as I am advised, can you walk off with copies of the application. You can go along and view it, you can presumably receive advice from your nominated counsel on it, you are allowed to make notes or audio recordings of information in respect of it, but you are not allowed to take a copy of it. That is my understanding of the process of this important piece of legislation, and the application of the criminal intelligence provisions continue to be supported by the opposition.

When we come to the licensing legislation, though, which allows for licensing regulation in various categories, the opportunity to be informed of an application for the admission of criminal intelligence is less formal and certainly less explicit, resulting in the person who might be affected adversely not knowing about these proceedings, particularly in some legislation where the wording simply provides that the judicial authority is not necessarily required to state why a licence is refused but is simply able to reject the licence with, for example, a statement that it is not in the public interest that that licence be granted.

So, it is less formal and less clear what obligation the licensing authority, for example, has to notify a person who might be adversely affected by such an application. It is acknowledged by the opposition that the consequences of someone being declared a member of an outlaw motorcycle gang, or in relation to confiscation of assets that have been acquired through criminal activity, or someone who has been in some way a participant in a serious and organised crime, are at a very different level of seriousness than the consequences of, perhaps, not having access to a licence, or the continuation of a licence, to either trade or hold a firearm, etc.

I just wish to make one other comment about the process, at an operational level, of information and how it is recorded and dealt with. There has certainly been some media statement in the last 24 hours that suggests there may be some deficiency in the operational action of the police department in dealing with these matters. Can I place on the record that we appreciate Assistant Commissioner Tony Harrison's briefing on the operational aspects of the implementation of criminal intelligence applications in relation to all this legislation and, indeed, the detail he provided us as to the standards they are keen to impose to ensure that the quality of the criminal intelligence that may be relied upon in any of these situations is of a high standard.

Certainly, it is a matter of concern to the opposition that we have processes that also ensure that there is adequate recording and reporting back to this parliament of instances when criminal intelligence is used. That brings me to a number of amendments proposed by the opposition. As I indicated, there has been a request to expedite the passage of this bill because of the 4 December date, which will require the enforcement of parts of the legislation and, for the reasons I have explained, we note that and recognise it. Although I still have not personally received the amendments from parliamentary counsel, I outline the following so that the Attorney-General can follow up these matters himself and, obviously, obtain such advice as may be necessary. We hope to support the amendments, but we fully accept at this stage that he has not had any opportunity to view them—and neither have we at this stage.

First, it is the opposition's view (and the amendments will include this) that there be a limitation on the use of criminal intelligence to cases in which people are involved in serious and organised crime but not necessarily proven members of declared organisations. So, the test for us is that, if this relates to serious and organised crime, the opportunity for criminal intelligence via this legislative formula is one which we will support, but not beyond that.

Secondly, to preserve the current formulation of criminal intelligence in all acts—that is, to avoid the proclamation, which is scheduled for 4 December 2010—for obvious reasons. Thirdly, to introduce a sunset clause for each criminal intelligence provision aligned with the sunset clause of the Serious and Organised Crime (Control) Act. As the minister would be aware, but I place on the record for the benefit of other members, one way to achieve this outcome is that all unproclaimed clauses be repealed and re-enacted once the government can manage their proclamation subject to the outcome in Totani.

Fourthly, we hope to achieve by the amendments (which we are yet to view) to provide: first, annual reports to parliament on the use of criminal intelligence under the acts; secondly, independent annual reviews of the use of criminal intelligence under the acts with the power of a royal commission that may be able to be integrated into the current SOCCA annual review; and, thirdly, reporting on the use of criminal intelligence as part of the SOCCA review scheduled for 2012. As members may recall, the SOCCA legislation was proclaimed on 4 September 2008. An annual review is due to the minister by 30 December 2010 and the review must be tabled within 12 sitting days. A four-year review is due to commence on 4 September 2012.

If the government is prepared to support those amendments, then we will consent to the bill's passage further. If not, then I regret to advise the Attorney that this will be opposed completely.

The Hon. J.R. RAU (Enfield—Attorney-General, Minister for Justice, Minister for Tourism) (17:00): Just a few comments about the honourable member's remarks. First of all, the view I have about the way that I should be discharging my responsibility is to organise for briefings for the honourable member and her colleague in the other place. I think that is useful and, hopefully, productive, and I intend to continue to do that. As far as the concerns that the honourable member raised about the obvious impact of this sort of criminal intelligence on civil liberties and the rule of law and so on, I obviously agree with her. It is clearly exceptional use of material that we are talking about here, not the general rule, and for all of the reasons that she said it is very dangerous for this sort of material to be used in a casual or not carefully thought out way. There is no argument between us about that matter.

The honourable member made some remarks about the codification of the common law, and I agree with her on that as well. Common law is something that I think, regrettably, is too often the subject of attempts at codification, and I certainly am not an enthusiast for that for its own sake. However, we do require, and the police in particular require, a safe and stable operational platform for the use of criminal intelligence. I think we need to be pretty clear about the sort of people we are dealing with here.

It is not satisfactory really to look at whether it is a licensing act, the Firearms Act or some other act. The question is not what act we are looking at (whether it is licensing, firearms or whatever), the question is: who are we dealing with? That is the question. I am advised, and if the honourable member was briefed by the police as I understand her to have been, she should be well and truly aware that the people we are dealing with here have taken themselves outside of civil society. They behave in ways that completely disregard the rights and privileges that an ordinary citizen in this country should be entitled to assume. These people are outlaws who thumb their noses at all the rules that the rest of us attempt, by and large, to observe. These people consciously, deliberately and without any qualms at all regard all these things as a joke.

One of the consequences of dealing with a person who has that view of the law and society is that they do not care if a person who is going to be giving evidence in a matter will be threatened by them in order to shut them up or that their families might be threatened in order to shut them up, or that people get bullet holes through the window as a sort of silent reminder (or perhaps not so silent reminder) that their behaviour in giving evidence may be visited with some sort of punishment to them or their families. These are the sort of people who in the Hollywood world put fish in people's letterboxes. We are not dealing with normal people and that is why exceptional provisions are required.

With respect, the fact that the opposition needs to grapple with between here and the other place is this: we either support SAPOL in doing what they can to combat these people or we do not. SAPOL have told us—and I am sure will tell members opposite if they ask—that they need these provisions in order to be able to deal with people who otherwise are very difficult to deal with. I will obviously look at the argument that the honourable member has raised today, because she has not shown me the provisions—that is not the honourable member's fault; she has not got them. So, I am not going to enter into a debate about what they may or may not say, because I do not know what they will say.

It may be that some elements of those provisions are constructive in terms of what we are trying to achieve, but I emphasise that what we are trying to achieve is to standardise an existing platform. We are not talking about introducing a new platform, in the sense of a new extended platform; we are trying to stabilise an existing platform. If what the honourable member and those in the upper house seek to do is to detract from the range of opportunities available to the police compared with the existing platform, I think that would be a very retrograde step.

We are not talking about introducing new measures for the first time; we are saying, 'These measures are already in existence—they are already there. We, however, want to stabilise them in a single uniform, identical platform. We are not creating a new situation.' If what the honourable member is trying to do is to detract from what is already there now, it might well be that we are better off copping what is there now and accepting the risks that are associated with it. I do not know, and I am not wishing to say that will necessarily be my view, because, I emphasise, I have not seen what amendments the honourable member might want to put up.

In general terms, if the idea is that there is some accountability for the use of these types of procedures, I am not in principle opposed to that; I think that is a sound general principle and it is one that I do not find terribly concerning, provided, of course, that the accounting does not go so far as to actually reveal the very material that we are trying to protect. That is a matter of detail that can be worked out, but I am not grossly troubled by that as a matter of principle. Perhaps I should stop here, because my remarks are all occurring in a vacuum; I have not seen the proposals. I say to the honourable member that, once I have seen them, I would welcome the opportunity to have a word with her and the Hon. Mr Wade in the other place, if that would be helpful, to see whether there are some points of agreement that can be reached between the houses. If that can be achieved, that would be good.

I indicate to the house and to the honourable member that I will be asking the Commissioner of Police to have a look at the amendments and to indicate whether he has trouble with those amendments because, if he does, obviously that is a matter that would be of significance—to me, anyway—in informing how we deal with whatever amendments might be brought forward.

With those few words, I thank the honourable member for her remarks. Happily, as usual, we are in agreement about the general principles. We both agree that, as a general principle, it is not good to have this untested material floating around and decisions about people's lives being made. We agree on that. We agree that the idea of codifying the common law for its own sake is not a good idea. In fact, I think in this place I have said even stronger words than that, and I continue to hold that view.

The fact is, though, that, whatever public interest immunity may or may not constitute at common law, these are existing provisions that have been put in by this parliament—some time ago in many cases. So, we are dealing not with a clean slate, in a sense, about the common law position having been modified by the intervention of this place. Anyway, that is something for another time. With those few words, I ask that we move on and wind up the debate on this matter.

Bill read a second time and taken through its remaining stages.


At 17:11 the house adjourned until Thursday 11 November 2010 at 14:00.


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