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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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EVIDENCE (IDENTIFICATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 9 March 2011.)

Ms SANDERSON (Adelaide) (16:21): Although I will not be lead speaker on this bill—

Ms CHAPMAN: Point of order, Madam Deputy Speaker. It might assist if I raise a point of order which you might overrule but I think my colleague the member for Adelaide is going to indicate to you that she will not be the lead speaker on this bill, but she does wish to speak on it.

The DEPUTY SPEAKER: Absolutely. There is no point of order. She can definitely go ahead with that. Carry on, member for Adelaide.

Ms SANDERSON: I wish to speak on this bill, in part because of my experience in the acting and modelling industry, working a lot with photos and video footage and recognising the difference between that and seeing the person in real life. While I have never been in a line-up or seen one in person, there are a few things that I am interested in to see how they work at the moment.

For example, in the notes here it says that it can take up to 60 hours and 10 staff to organise the seven people, yet I know in the industry that I am in that we have a big database of people. We work with a lot of government departments that often require 20 or 30 people within three hours and we manage, as a small business, to pull that together. I realise that with criminals it may not be so easy, but certainly there would be ways of having a good database. I believe it is FileMaker Pro that has a database where you can pull up photos based on categories. So you could say, 'Males, dark hair, Caucasian' and get a full listing very quickly with photo references. I am looking into whether you could have video footage on there.

In the industry I have worked in for a long time, generally you go from photos first—so, you might have a series of photos—however, for anything important like a television commercial or something worth a significant amount of money, they will always request to see the person in real life because from a photo you cannot pick up mannerisms or any inherent characteristics of that person because they can really only be seen in 3-D and in person. If it is too difficult to organise a line-up, voice video recordings and 3-D might be possible.

For overseas engagements we often have to take a series of photos—profile both sides, close-up face, hair off face, from behind—and you need that full series in order to identify a person. Even with models, a lot of clients from a photo cannot determine their age and, as most men would know and anyone who goes to nightclubs, it is pretty hard to determine somebody's age unless you have seen them in real life or spoken to them and had a chance to pick that up. I am just concerned that, if seeing a person in real life is not given more weight than judging them from a photo, that that would be inappropriate. I also just question the amount of time that you are saying and the amount of staff it takes to do it; if there would not be a better database or some system of doing that. So they were pretty well my main points.

Mr PEGLER (Mount Gambier) (16:25): I would just like to speak against this bill, from the aspect that I look at my photos that were taken about six months ago, with about three months in between each one, for my firearms licence and my driver's licence. As the member for Bragg said to me, I appear quite ugly in one and very ugly in the other. What I am basically saying is that I could not condone just having photos for a line-up. I think that you actually need the person in place so that there is no doubt about the identification of that person. With photos, the photo itself is not always a true image of what the person actually looks like in real life, so I speak against this bill.

The DEPUTY SPEAKER: Thank you, member for Mount Gambier, and I am sure we do not all share the views of the member for Bragg. Does anybody else wish to speak? Member for Bragg.

Ms CHAPMAN (Bragg) (16:26): Madam Deputy Speaker, I indicate that I will be speaking on the Evidence (Identification) Amendment Bill 2011 as lead speaker for the opposition. I indicate that, notwithstanding all the promises of great reform and revision in the new era—the Rau era—of attorneys-general, and despite his great speeches during the parliament's question time today about how he is the great man of consultation, this bill demonstrates how inaccurate that assertion is.

How disappointing it is for the opposition, in the embryonic months of his appointment to the position of Deputy Premier and Attorney-General, to see all those promises evaporate. For some nine years in this state we had the Atkinson era of law reform and administration. We had that famous era, under the Atkinson administration in the Rann government, of law reform and announcement by press release. I can hardly remember, in that time, occasions when I came into this parliament to deal with legislation for law reform that was of a non-criminal nature. Almost exclusively—

The Hon. M.J. Atkinson: Same-sex relationships.

Ms CHAPMAN: I'll come to those. We are dealing with de facto relationships in a moment. That is actually a bill before the house, so I have to be a bit careful about what I say on that, but I will give you some credit for it. We had significant reform, mostly on the expansion of penalties. Who could forget that amazing piece of legislation that was introduced within months of the Rann government being elected in May 2002, when we had, I think post the first Christmas period, the announcement by the Premier that we were going have 20-year imprisonment for people who lit a bushfire. Everyone remember that?

The Hon. M.J. Atkinson: Yes, very well; that was a good one.

Ms CHAPMAN: That was a magnificent early announcement which was to hunt down those who would light bushfires. The whole of the parliament and the whole of the public know how dangerous, destructive and lethal they are—that is, the bushfires—and the people who light them, either deliberately or recklessly, should attract the most serious penalty of 20 years' imprisonment. Of course, at that time we already had a law which gave you life imprisonment for arson. So, all of the—

The Hon. M.J. Atkinson interjecting:

The DEPUTY SPEAKER: Order! Excuse me, member for Bragg. Member for Croydon, we were very peaceful, indeed some might say somnolent, before you arrived. It is lovely to hear your contribution to this debate but, as I said yesterday, what you can now contribute is silence.

Ms CHAPMAN: Thank you, Madam Deputy Speaker. We had these grand announcements about law reform that was going to be tough on law and order, that was going to crack down on these criminals and we were going to lock these people up for 20 years' imprisonment when we already had a life sentence. Of course, the answer from the government was, 'Yes, but arson is different to bushfire lighting.' Arson requires that you have to have caused, I think, more than $30,000 in property damage to actually be convicted. There was a financial amount, it might have been $50,000—

The Hon. M.J. Atkinson: That was the old law.

Ms CHAPMAN: —or $30,000 under the old law, and under arson laws at the time that was a precondition for conviction. So you had to light the fire, it had to be done, obviously, with the intent of causing damage or threat to life, or recklessly done. I think there was at least at that time some criminal negligence provision—I may be wrong on that—and you had to actually cause property damage over a certain threshold.

The Hon. M.J. Atkinson: You knocked it out.

Ms CHAPMAN: Well, it may not have applied at that time was what I was referring to. So, that was a threshold. I am sure other members of the house, as have I, have witnessed lots of bushfires and/or read reports about them in our lifetime, and let me say that one of the things that is painfully obvious about them is that unless they are arrested and put out straightaway—

The Hon. M.J. Atkinson: Which sometimes they are.

Ms CHAPMAN: Sometimes they are. We have lightning strikes, we have people who deliberately light fires, and so on; but when they are by lightning strikes there is a reasonable chance that the CFS and others are alert to the fact that we are in for a bit of stormy weather and that under certain conditions there are likely to be multiple strikes which could start bushfires, so people are on alert. With someone who goes to deliberately start a fire, one of the practical problems is always being able to detect them.

We were advised by people of the CFS at the time that they have a number of people out on alert during bushfire season to keep a monitor on the usual suspects, if I can put them in that category. Sometimes they go out and knock on the door of someone who is known to be an arsonist and say, 'Look, sir, we are letting you know, we are coming into the bushfire season and we are watching you. We are concerned about your history, so we just want to remind you that we are keeping an eye on you.'

Sometimes it is a little less obvious. In our briefing we were advised that sometimes they hide in a wheelie bin and presumably look through a hole and check the household to see whether the person is leaving the house at any one time, follow them, keep them under surveillance, make sure that they keep away from matches and generally any conduct that would indicate that they are about to light a fire.

The Hon. J.R. RAU: On a point of order: I am as interested as I am sure the rest of the members are in taking a trip down memory lane on the subject of arson, which is in itself a fascinating topic. I know many of us on this side are very keen to have that topic explored in some detail, at some point, but we are actually not here about arson. We are here about whether we should be able to use photographs to assist police with getting witnesses to help them identify who are suspects in criminal cases.

The DEPUTY SPEAKER: So, are you asking, Attorney, that perhaps the member for Bragg come back to her particular—

The Hon. J.R. RAU: There is nothing in here about relevance, as the member for Elder keeps telling me, but there is certainly something here about substance of the matter, and this seems not to be within any conceivable definition of that.

The DEPUTY SPEAKER: It is true, member for Bragg, that the relevance of your discussion does not seem to be continually perceptible to me. Maybe that says more about me than about you—who can say. Perhaps if you could come back to the issue, and I believe we are talking about photo identification. Is that correct, Attorney?

The Hon. J.R. RAU: As I understand it, the debate is whether one is to have the option of using photographs to assist a witness in identifying a potential felon or whether one is required to have a line-up. I have to say it is to the great credit of the member for Adelaide, who was much more succinct in her remarks, that all of them were directed specifically to the matter in issue.

The DEPUTY SPEAKER: I am sure the member for Bragg will now rein herself in.

The Hon. M.J. Atkinson interjecting:

Ms CHAPMAN: One of the—

The DEPUTY SPEAKER: Excuse me member for Bragg, I'm really sorry. I might point out, generally to the house, member for Croydon, that one of the reasons the member for Bragg has been drawn away slightly from her subject is that one of us (not me) keeps interjecting, and she responds to those interjections. So, perhaps if the member for Croydon did not interject so much the member for Bragg would be able to carry on doing what she wants to do, which is, of course, just to talk about photo identification.

Ms CHAPMAN: Thank you, Madam Deputy Speaker. Of the 50 or so people that are currently identified for the purposes of keeping them under surveillance as people who might potentially light fires and be in breach of an offence, they keep a record of these people. As I say, they keep them under surveillance and, if a new person is put forward, presumably they will keep a photographic record of that person, for the purpose of ensuring that, if there are further suspects, they will follow those up, and thus minimise the opportunity for the person to light a fire in the first place.

That is one aspect of criminal law reform that was brought to the parliament not only to be tough on law and order or demonstrate the importance of that under the previous regime but also to save costs. This is another aspect that is important, and I think a core issue relating to this bill, and I will be referring to a number of aspects of that.

Under other legislation, we have also looked at the question of saving costs. Some, of course, do not seem to have any financial value. I am not quite sure, for example, how we ever got to the legislation that said that we could not eat dog or cat meat, but that was a piece of legislation that came before the house. Before I get into photographs of dogs or cats, I will come back to it in a moment. However, there is a cost component here.

The Hon. M.J. Atkinson interjecting:

Ms CHAPMAN: That was a magnificent piece of legislation, which was rushed into the parliament after an announcement by the Premier on a morning radio show that he needed to crack down on this and he was going to introduce a bill. When it was identified as to why this was necessary, he had actually heard that somebody in Victoria had raised the possibility that someone could eat dog meat in a restaurant—or it could have been cat meat; I am not sure—and that we needed to crack down on that. I am not sure about the cost of that.

The Hon. M.J. Atkinson interjecting:

The DEPUTY SPEAKER: Order! Member for Bragg, I would not respond to his interjections. Member for Croydon, we have spoken about this now three times in this place and I am minded almost—because I have never done it before—just to warn you a little bit, like a 0.5 warning.

An honourable member interjecting:

The DEPUTY SPEAKER: Shall I give him a whole warning? No, seriously, we are nearly near one of those.

The Hon. J.R. RAU: Deputy Speaker, I am grateful for your intervention. I know that you have been concentrating very hard on what has been going on, but the member for Bragg is now traversing one of the most successful legislative reforms ever undertaken by the member for Croydon in his former role. Such a success it was that it has completely stamped out the practice of companion animals being consumed. It is interesting, and one day will be a testament to the innovative reform zeal that the member for Croydon has, and continues to have, but it does not assist us in relation to photographs of criminals being used instead of line-ups.

The DEPUTY SPEAKER: I think the Attorney-General has a very valid point of order, so I think we will move away from the dead possum consuming and back to photo ID.

Ms CHAPMAN: We could talk on the parks and wildlife act in relation to dead possums if you like, but I was actually on dogs and cats.

The DEPUTY SPEAKER: Okay, dogs, cats, possums—any furry creatures. We are not talking about them: we are talking about photo ID.

Ms CHAPMAN: People who are actually charged with or convicted of offences often have to be identified and that relates to all offences whether or not they eat cat meat or dog meat under that new legislation, or whether they breach any other offence in the Criminal Law Consolidation Act, the Summary Offences Act or the Road Traffic Act. From time to time, the identification of the alleged offender is in dispute and they need to be identified.

I will finish by saying that, under the previous regime, one of the important aspects that was considered in a number of those bills that were brought before the house was the question of cost, not just of the identification and apprehension of the alleged offender but also of the penalties and fines he or she would pay and the revenue that would be generated from that.

I will foreshadow, so that the Attorney-General knows, a number of questions about who is going to pay for each of the stages of this procedure that would come into practice if this bill were to pass. The Attorney-General is right that he has introduced a bill to remove the judicial system's current practice and preference for line-ups—that is, in-person identification of suspects in criminal investigations—over identification by photo boards, videos or the like.

The member for Adelaide has pointed out, in her experience, which has been very extensive in dealing directly with people, the importance of seeing someone in person to present a much better, clearer, more accurate opportunity to identify and presumably assess whether that person is going to be good for her modelling or acting purposes. She wants them in person, her clients want them in person and it is for good reason.

We have heard from the member for Mount Gambier, and I can say to the house that I have viewed the photographs on his driver's licence and his gun licence. It is a bit of a worry that he has a gun licence, but, in any event, he tells me that they were taken within a very short time of each other. I would have described one of them as handsome and the other one as very handsome, but I have to say to the house, having viewed them, that they look like two different people entirely. The lighting alone in the photographs and the colour of the complexion (which is lovely in both) is very different, and it would mean that I would hardly recognise the two as being the same person.

In any event, I digress. I even acknowledge that myself. The important thing here is that the bill that has been introduced says to the judiciary, 'You are no longer to have this preference for this mode of identification,' and the way that the bill does that essentially is to instruct the jury (or in this case to not instruct the jury) that photographs or video evidence being used for identification are less reliable than a line-up. The way it happens at the moment is that, if evidence is used on a photographic basis, the judge advises the jury and cautions them as to the weight and reliability of that relative to line-up evidence. That will no longer be the case. That is the way that that is going to be affected.

What is interesting is that the second reading explanation and, indeed, statements made by the Attorney-General at and around the time of the introduction of this bill, suggest that a key feature of this reform is that it would potentially free up police time and resources, that these line-ups are quite expensive procedures and that, relative to a photograph model and the opportunity to use those, they are quicker, cheaper and just as good.

I understand from some of the information collated today for the opposition that participants in the line-ups are paid up to $50 each, and I assume on the face of it that that cost would be avoided—provided of course they already had photographs and, provided of course, there were not any costs incurred in paying somebody to correct the photograph or to touch up or air brush. I am not quite sure. The member for Adelaide is here and she can tell us what you would call it other than doctoring or corrupting a document—that is what I see it as—she may have a different form of wording for how you make the photograph look a bit different, and sometimes that can be for good reason.

I am told the sort of situation in which you might doctor a photograph is if you have 10 suspects in line-up, all who have been found to look about the same, and the alleged offender, the person who has been arrested, has a tattoo on his right cheek. So, to try and make the assessment fair and reliable from the point of view of evidence, the photographs might have the same cross or the same tattoo on the right cheek superimposed onto the photographs of the others. That is what I am told. I have never seen that happen but that is what I am told. It may be that there is a bit of air brushing happening to these photographs already, or additions added for, on the face of it very good reason, and that that practice is already being undertaken.

The government through the Attorney-General has told us that the reason that it is bringing in this bill specifically is to honour a 2010 election promise. That was this time last year. It is 24 March today and I think it was 18 March in the election before, and 20 March last year. So, within a few days, it is the 12th month of the government's re-election, and we have the introduction of this bill.

It is reasonable that if a government says that it is going to do something—that it is going to announce a new policy, especially I think at an election—that they honour that promise, that is not an issue. Alternatively the government comes before the parliament, which is a representative body of the people, and explains why it is not going to proceed with it. Sometimes there is a very valid reason for not proceeding with it, that is, they find that in the full flight of an election campaign, and what seems like a brilliant idea at the time, that it needs to be buried down the track because it is impractical, it is very expensive, or it is simply not going to be a very good idea any more, and they explain to the parliament why they are not going to proceed, and if it falls into a category that has some substance, then of course, reasonably, it would be withdrawn.

I could highlight some absolute pearlers that have been announced by the previous attorney-general as to promises that have been made and then the delivery has been a bit deficient. One of them, of course, ended up in the High Court, which was an absolute winner.

The Hon. M.J. Atkinson: It was wrongly decided.

Ms CHAPMAN: Wrongly decided by the High Court! What, was there one dissenting judgement?

The Hon. M.J. Atkinson interjecting:

Ms CHAPMAN: Well, of course, there was an opportunity in that instance—and, in fact, an invitation to the then attorney-general to bring the matter back before the parliament, in December 2009, so that we might remedy it, if that was remediable legislatively, and that we could tidy it up. But oh no, no, the former attorney wanted to take it up to the High Court and have a big fight.

The Hon. J.R. RAU: I rise on a point of order. Again, the almost classroom reunion atmosphere that is developing here between the member for Bragg and the member for Croydon is both touching and extending a warm glow around the chamber but it is not really advancing this particular matter too far. If I am apprehending what the honourable member is saying correctly when she is actually on topic, I guess we will get a lot more done when we are in committee than we will by labouring the second reading explanation further.

The DEPUTY SPEAKER: I think, from what I can gather, that the member for Bragg has—

Ms Chapman: Are you trying to gag me?

The DEPUTY SPEAKER: Sorry, are you making an accusation? Did you want to make a point of order? No. So, have you nearly finished speaking, member for Bragg?

Ms CHAPMAN: I want to put it on the record, Madam Deputy Speaker. It does concern me, on the allegation of relevance, that, in the course of arguing that—which is a legitimate aspect to argue—the minister looks to instruct me as to whether I give my contribution in my second reading contribution or whether I wait until we get into committee. I might do it in both, at the rate we are going.

The DEPUTY SPEAKER: No, there is no point of order. I was actually listening to what the Attorney-General said—

The Hon. J.R. Rau interjecting:

The DEPUTY SPEAKER: Excuse me, Attorney-General, I am still speaking. I do not think that anyone was trying to gag you. In fact, I cannot imagine anybody being that daring. I suspect that we are just trying to move back to the substance of the debate, and I was quite convinced that you had almost finished, member for Bragg, is that correct, because you did use the word 'finally' at some point?

Ms CHAPMAN: I am a long way from being finished, but the point I was making is that, in the second reading explanation of the Attorney-General, he made it clear to the parliament—in fact, I think it was about the opening sentence—that this was being presented to the parliament to fulfil a 2010 election promise that was ALP policy. It was on the website at the time and announced with great fanfare during the election campaign, I think by the Premier and former attorney-general. But, in any event, that is exactly what this is, according to the assessment.

We have had a look at the changes. I think, specifically, the election policy said that the proposed changes that they would introduce would allow the use of PowerPoint presentations or mobile data terminals located within vehicles to present images to victims and witnesses. This was a big election announcement, and I was pointing out that was a year ago.

The DEPUTY SPEAKER: Yes, I understood that.

Ms CHAPMAN: The reason it is very important is not that we expect, when election promises are made, the successful party will rush in in the first week of the parliament to introduce everything they said they were going to do. We accept that, even with the best will in the world, that would be impossible, and it would be very difficult for our parliamentary draftsmen to achieve. The other reason is this: sometimes they need time to realise that some of the promises they have made are stupid ideas, are not achievable or should be dumped. So we accept that 12 months' delay.

What is important is that, having announced this election policy, on 9 March this year they introduced a bill, telling the parliament, as the Attorney-General has done, that this is to fulfil an election promise. The next day, 10 March 2011, they advised the Law Society of South Australia of their bill and I think, presumably, forwarded a copy of the second reading speech to them for their consideration. Then, according to the Attorney-General's office itself, they advised that they were contacting other stakeholders for feedback by Wednesday 16 March 2011. On that day, in fact, at 9.30am at the briefing in the Attorney-General's office, the government advised the Hon. Stephen Wade and me that it would not be progressing the bill—and there were other bills as well—in this week's sitting.

None of this would be surprising to members that, even though it had taken them 12 months to bring this into the parliament and even though they had sent out material to the stakeholders (indeed, especially the stakeholders) to get advice on it, at the briefing they would say, 'Well, of course, we won't be advancing that because we have only just sent it out to the stakeholders and we need to get their advice back.' We agree with that, as we need to consult, bearing in mind that our first notice of this is on 9 March. Sure, we heard all of these grand promises from the government at the election, but whether they come to fruition is another matter. Did you have something that you wanted to interrupt with?

The DEPUTY SPEAKER: Thank you for predicting that. I think the Attorney-General has mentioned standing order 128, and that is in relation to relevance. I do not wish to offend anyone but I am in the chair at this point in time and I feel that we are now going over and over the same ground, and that it is not relevant to the legislation in question that we are discussing. I would like the member for Bragg to take that into account, please.

Ms CHAPMAN: I am up to 9 March 2011, which is—

The DEPUTY SPEAKER: Not that long ago.

Ms CHAPMAN: Indeed. The advice is given at that point that these bills will not be progressed because it is going out for consultation. Later that day, in fact still in the morning, the Attorney-General's office then advised that we would be progressing this bill, amongst others, this week. Apart from the Law Society, which had notice from Mr Wade's office and with which I had some informal discussions in the immediate time after 9 March, suffice to say that not only have we not had responses back from those who we wish to consult with and commence that process, we have not had, even with a further briefing offered this morning by the assistant commissioner on answering some questions as to the process that currently occurs with photographic line-ups and personal line-ups, that information back.

Yet, early this afternoon we heard the Attorney-General say, to paraphrase him and to give him in a positive light of himself, what a pillar of consultation he was. Indeed, he listed off to the parliament, I think, that he had 14 reviews that were current and one was coming to conclusion, on tattooing, I think—

The Hon. J.R. Rau: Graffiti.

Ms CHAPMAN: Graffiti; that's right—and that this was something that was a trademark and/or feature of his administration, that he was going to be a man of consultation, and this is why it was so important. I went through that list, and it is a very impressive list: fines, payments, the law profession, practitioners acts, the security industry trainers, cyber bullying, food donor protection, strata title—graffiti has been fixed; I heard that this morning—discount for early pleas, tattoos, propensity evidence, the list goes on.


[Sitting extended beyond 17:00 on motion of Hon J.R. Rau]


Ms CHAPMAN: Anything that is too hard, too controversial or left over from the last administration—I will add that one in—what do you do? I did not see 18+ classifications, did I? That is one that was left off. Are we going to have a review on that? Who knows. Anything that is too hard, too difficult or a bit too testy, what do you do? You shove it out to review. Cyber bullying is too hard. It might sound like a great idea at the time, so we will whack out this great new national first of an initiative to make it an offence, I think, to transmit a photograph or video, of a line-up or anywhere, for that matter, but if it indicates some bullying, some offence, some assault, some intimidation, some behaviour that is unacceptable, that you might cause offence or humiliation to the victim on the screen, there will be some new offence that you will introduce for that.

I might remind the Attorney-General that that shocking case here in South Australia of the boy who had been brutally assaulted in one of our high schools was not even referred to the police by the school or department of education. That transmission, apparently by another child, exposed the cover-up of what was going on with that incident and it got to the police and the relevant authorities for it to be dealt with.

In a rather curious twist, this is the very example he uses to justify making offences to try and stop them. It would otherwise be an aspirational and perhaps very good objective; that is, to protect people from the humiliation of unfair and, in fact, quite extensive transmission and publication of pictures that are offensive to them. In that instance, the very case he uses was a great asset in being able to expose what the parents ultimately insisted should happen, and that is that there be some action.

I do not understand that review, except that, it seems to me, it was a good idea at the time. It was like a light bulb in the Attorney's mind that this would be happening. He announced it and there seemed to be a tirade of response from the general public and others to say that this could incur a whole lot of problems. The way to deflect that is to say, 'Well, I am just putting it out for review.'

We will see whether that ever sees the light of day, but I simply make the point that, after again saying here in the parliament that he is the epitome of consultation, he asks us here on 24 March to deal with a piece of legislation that we have had mere days to get advice on. I do not know why attorneys-general, even former attorneys-general, think that the opposition can deal with a bill by simply whacking some covering letters with copies of bills out for consultation, getting back their written consideration, which they might do quite promptly, and then we will suddenly all be ready to be able to deal with the matter.

He has taken a year to even introduce the bill, let alone expect that there would be any consultation on it. He has even admitted that it has not been out for consultation, other—I will come to the police in a minute—that this was an idea born somewhere in the police department and that this has come on their strong advice. It may be good advice; I will come to that in a moment.

Apart from the police department, there is a professor, Neil Brewer, of Flinders University, who apparently thinks that this is a great idea because, in his view, photographic evidence is as good as people in person for identification purposes. On the basis of some work that he has done and publications on his view on that, it is as though this is the leading and only authority, that the academic world is all at one on this, that there is no controversy, no dissent, no diversity of view. We cannot even have time to deal with that. That is the second aspect of consultation.

The DEPUTY SPEAKER: Excuse me, member for Bragg. Point of order from the member for Torrens.

Mrs GERAGHTY: I have heard on a number of occasions the member for Bragg insinuate that they have not had enough time to look at the bill. We had confirmation from your whip's office that you were ready to deal with the bill. You cannot have it both ways. You guys get mixed messages going on between you and you do not know what you are doing amongst yourselves. We operate on the information that we are given. We were told you were ready to deal with the bill. The bill is here and we are dealing with the bill. You are obviously doing your best not to deal with it and to deal with something else.

The DEPUTY SPEAKER: Thank you, member for Torrens. I have just been passing my time reading the 23rd edition of Erskine May. It says that you can have a general discussion of the bill but that debate should not be extended to a general criticism of the administration, and you have definitely been wandering down that—

Ms Chapman interjecting:

The DEPUTY SPEAKER: No, you have been wandering down that path, according to me. Now it would appear—and I actually understood this—that you feel that you were not given time to prepare for this bill, but I now hear that you were ready to do the bill. Would you like that not to be the case?

Ms CHAPMAN: It was a rather curious objection.

The DEPUTY SPEAKER: No, I am not saying that at all. I think it was quite relevant because I would like to know whether you are genuinely prepared to do this or not.

Ms CHAPMAN: Madam Deputy Speaker, the Government Whip has announced to you that, firstly, the opposition (in particular, myself) are ready to debate the bill this afternoon. May I remind the house that it is the government that sets the agenda of the bills that are to be dealt with. Several things have happened on this bill. Firstly, as I have explained, late last week a list of bills to be discussed was published; the government set that. We do not actually have a choice. We can indicate if there is an aspect of concern to us. The offer of a briefing this morning by the Assistant Commissioner came in between this because there had been a request last week. This bill was actually first identified for listing yesterday for reasons of other important business of the house that did not happen. So for the whip to come in and say, 'Are you ready to proceed with this bill this afternoon?' after we have dealt with the Safe Drinking Water Bill—

The Hon. J.R. RAU: Madam Deputy Speaker—

Ms CHAPMAN: I am dealing with an objection, Madam Deputy Speaker.

The DEPUTY SPEAKER: At this point I have to say that the member for Bragg is responding to a point of order which was made and when she has finished responding, you can respond to her response.

Ms CHAPMAN: So the point of order has been made that I should not be able to identify areas of criticism, of lack of consultation, afforded by the progress of this bill through the house on the basis, as the Government Whip identified, that there had been an indication from the opposition of the preparedness to proceed with this bill this afternoon. We do not have a choice on that. Let's make that absolutely clear. What we do is that we are invited to say that, if we are going to jumble around the terms of the legislation for the week or if we want to add in one because the government has run out of government business, we get invited to make a comment on that. I have to say in fairness often that is acknowledged, respected and listened to, but this is a situation where the bill has already been listed from last week (from Tuesday), it has been held over until today, and I want to complete by saying that I am perfectly at liberty to deal with it.

The DEPUTY SPEAKER: Order! I do not think there is an actual point of order because I cannot find one in the standing orders. I think there is perhaps a misunderstanding here. The whip advises, and I have no reason not to believe her, that she understood you were ready to do this. You are telling me that the timetable is one that is imposed upon you and that the choices are few. I understand that. The reality is that we are here and we will just have to carry on doing it as we were before. I noticed that earlier on the Attorney-General had indicated that he wished to say something on this particular point. If he still does, he may do so; if he does not, perhaps we could just carry on listening to the member for Bragg. But it would appear that the Attorney has something to say.

The Hon. J.R. RAU: I just wanted to say that it is, for me, a little regrettable that this tangent has been taken because it would be useful, I think, for the parliament to have a discussion about the actual substance of the bill. However, given that I understand the member to have been suggesting that there was not an agreement between the parties that this matter be dealt with today—and, therefore, some form of unfairness had been visited upon the opposition and perhaps the member herself in particular—I would just like to read from an email from a lady called Helen Dwyer who in the email is described as the assistant to Mr Pederick who is the Opposition Whip.

The DEPUTY SPEAKER: Attorney, could I just stop you there for one moment? Were they your final comments on this matter? Is this a response to the point of order taken by the member for Torrens?

The Hon. J.R. RAU: I am concerned that we are going off in some bizarre direction—

The DEPUTY SPEAKER: We are.

The Hon. J.R. RAU: But, having said that; I think it is important. If what the honourable member is putting to the parliament is that there was no agreement between the parties for this matter to be debated this week or today, on the basis of the evidence I have in front of me, that is an inaccurate statement to the chamber, and should be dealt with accordingly.

The DEPUTY SPEAKER: Attorney-General, I am interested here in procedural matters, and the member for Torrens has made a point of order; I do not agree with that point of order. The member for Bragg responded to the point of order and, as far as I am concerned, there it rests. The reality is that, if you now speak, you close this debate, and I think that the member for Bragg was just finishing.

Ms Chapman: Just starting.

The DEPUTY SPEAKER: I see. Now, I must say, before you do begin again, member for Bragg, I do agree with the suggestion of the Attorney that we get back to the general point of this debate. It has been floating off in other directions. Perhaps we could return to the point? I think that would benefit the parliament, member for Bragg.

Ms CHAPMAN: Thank you for your advice on that, Madam Deputy Speaker. May I say that I do not anticipate that I will be speaking for 7½ hours, which I did on the affordability bill, but let me say that, even though that bill was pushed through the parliament by the then government (the Rann government but slightly differently constituted), I am here today as testament to the fact that what I said in that bill is still right, as it was then. In fact, it has proven what a hopeless piece of legislation it was. So, if it takes me 7½ or 10½ minutes or hours to debate a bill, I will put that on the record.

The DEPUTY SPEAKER: Member for Bragg, the issue here, as you well know, is not about the time. I am very well aware of how much time you are allowed, and that is indefinite. What I was asking you to respect was the nature of the legislation that we are discussing; that is all. If you wish to speak for 10½ hours, I am not going to stop you.

The Hon. J.R. Rau: As long as it is on the bill.

The DEPUTY SPEAKER: Yes, as long as it is on the bill.

Ms CHAPMAN: So as I said, I am just starting, and I will start with the information that came to hand upon the public announcement of the government—that is, apart from the election last year—of what it proposed to do in introducing this bill.

On 10 March 2011, which is the day after the bill was introduced, Lindy Powell QC was interviewed by ABC journalist Mr Ian Henschke. She may have done other interviews, but in this instance she was asked about the government's proposal which, for the purposes of what I am about to repeat, was described as the 'police line-up proposal'. That is essentially the same as in this bill—to identify suspects by photograph rather than in a police line-up.

Ms Powell is not only a Queen's Counsel but also experienced in criminal defence work (not specifically, but she has a broad area of experience), and when Mr Henschke asked about there being a police line-up, he described his own personal experience in some Costa Rican event which, for those who were listening at the time, was interesting, but I will not bore the house with it today. He identified that. He then went on to ask to Ms Powell about what she thought was the best way to identify a suspect and whether that should be through the traditional line-up. She said:

Yes, I do. I think looking at a real person in three dimensions is always preferable to looking at a photograph.

Mr Henschke asked why. She responded:

It makes the identification more reliable. I think that people looking at photos are more likely to look for someone who looks like the person they're trying to identify than actually look for the person whom they're seeking to identify.

Mr Henschke asked, 'Why do you think the government is changing this view then?' She responded:

I think the reason that they might be changing the view is just for efficiency and ease of investigative purposes.

Mr Henschke said:

Well, John Rau—

he was referring to the Attorney-General—

says that it would free up police resources and remove red tape. Do you think that is a good enough reason?

She responded:

I don't think it really is. The courts have recognised over decades that an identification in person by way of the line-up process is usually more reliable than the photo board because there's the temptation of a person looking at a photo board of 12 photos to simply look for the person who looks like the person they're trying to identify rather than actually being capable of saying 'That is the person'.

Mr Henschke said, 'It has been done before, though.' She responded:

It's always done where a suspect exercises their right to refuse to go into a line-up, then of course the police are obliged to resort to a photo board identification. It's also being done, for example, in the war crimes, where witnesses were looking at photographs from many years ago. I think there's also a difference, Ian, between recognition and identification. Where you're simply looking for someone you know then you are likely to be able to do that out of photographs—different when you're trying to identify a stranger whom you might only have seen for a split second.

Mr Henschke asked:

Well, that's an interesting point, because one of the reasons that John Rau says that he'd like to move to this is because 'suspects can often, and they do, sabotage the identification process by a number of methods, including changing their appearance'. Have you heard or seen that happen?

She responded:

No. I imagine it might happen, but I have not experienced that. I would have thought that if a suspect did that and there was evidence that they had looked different at the time of the alleged offending, it wouldn't look very good for them in court.

Mr Henschke asked:

But what about the case where someone has committed a crime and then they very quickly go and, for example, cut their hair or grow a moustache?

She responded:

Their next-door neighbour was called to say, 'As at 15 March 2011 he had blonde hair and was clean shaven and now I'm looking at him in the dock and he's dyed his hair and grown a moustache.' It could look a bit like you've had something to hide, couldn't it?

Mr Henschke asked:

Well, why do you think this is being done? Is it possible that this is a budgetary measure, a cost-saving measure?

She responded:

I can't think of any other reason...to assemble a line-up of people who look like suspects…takes some time and effort…it'd be much quicker to put 12 photographs on a board. There's another problem with photos. If police use photos which they have in their possession of the suspect, it will always be a danger that the jury will have a lingering doubt. 'Where did the police get the photographs from?' There might be an inference drawn by the jurors: 'Oh, he must have had a criminal history, because the police have a photograph of him.' That's another problem which has been associated with photo boards which the line-ups get rid of.

Mr Henschke then observed:

You were saying earlier, Lindy Powell, that a suspect can refuse to take part in a line-up and then it would go to photographic identification means, so surely if that's already happening at the moment it wouldn't be a great change.

She responded:

No...a lot of people refuse to participate in line-ups...they might do so for a whole range of reasons...they might consider that whoever has identified them might have been contaminated already. There'd be lots of reasons why they might do that...I'm not suggesting that a photo board identification is not an acceptable way of identification, obviously the courts accept them time and again, but I still maintain that a line-up is the best way.

Mr Henschke thanked Ms Powell and indicated that he was going to try to talk to Professor Neil Brewer, who was the academic expert referred to the day before in this parliament, when the Attorney-General introduced the bill, on the premise that personal line-ups are no longer to be viewed as inferior in their reliability to photographic identifications.

There were other issues raised in the media at that time, including by Mr George Mancini, who I think is fairly well known for his passionate protection of civil liberties and any laws or regulations that might transgress those. He is pretty ready to be out there like a shot to put the case as to why that proposed legislation or regulation should not be imposed and/or introduced.

I see that a very valuable contribution was made by the Hon. Stephen Wade, the opposition's shadow attorney-general and spokesperson on these issues. I noted that it was a very good contribution by him when I listened to it and re-read his transcript. It was succinct, straight to the point and deadly in its response. I am disappointed to note the Attorney-General has not taken a scrap of notice of it, because he is pressing ahead with this bill. Nevertheless, it was a magnificent contribution, which I am sure will be enhanced if and when this bill ever gets to the other house.

Of course, it may be that, as a result of my speaking on the bill, the Attorney might be persuaded to withdraw it or put it out for consultation, as he has done with all the other things he has put out for consultation and review. It might be wishful thinking, but one is ever hopeful that reason will prevail and a good approach to this—

Mr Gardner: To enhance his consulting credentials.

Ms CHAPMAN: To enhance those consulting credentials, as the member for Morialta points out.

The Hon. J.R. Rau: I feel a bit of enhancement coming on.

Ms CHAPMAN: Good. We might just ensure that you have plenty of time to do it. Lindy Powell QC raises a number of things, but what is very interesting is that there is no indication in here that she has had any advice of this, unless of course she listened attentively during the election campaign to what the government was announcing. She might have been reading with interest ideas about propensity evidence and following through on photographic line-ups, and any other ideas—some of them a bit hair-brained but, nevertheless, ideas that the government threw out at the time of the election campaign.

If she had been following that very carefully, she might have been alert to the fact that this was an idea that they were proposing. She might have been alerted if there had been a judgement in the Supreme Court in South Australia where the court, or particularly the Chief Justice, had either made a determination or overturned another judgement. She might have been alerted if the Chief Justice had made the observation that it is time that we drew the line in the sand and that we listened to the brilliant orations and read the in-depth academic contributions of Professor Brewer, and that he would suggest that that is commensurate with the body of world thought on this issue at the time, and to put it in a judgement. She might have been alerted by that.

If she or any other senior counsel had thought that this might be a good idea in the interesting and informative debates that they have at the South Australian Bar Association meetings, or any of the further education programs which are very good and which are offered by the Bar Association to provide further education for counsel in South Australia, particularly members of the association, she might have picked up there that this would be a good idea and she might be alert to the opportunity for it to be introduced, and if she had put her mind to any of those sources, she might have done one of a number of things.

She might have reported it to her own association, she might have written a letter to the attorney-general—either the former one or the new one—and say, 'I think that's a brilliant idea.' With the opportunity of this great body of academic weight that has come in via Prof. Brewer, this is something you should jump onto Mr Attorney, and this is something that needs to be implemented for the course of justice in South Australia and, of course, for the economic balancing of the finances and resources of the police department.

She may have made a public statement. She may have urged the chair of the Bar Association or The Law Society or The Law Council to make a statement to the effect that it is time that we got onto this, it is a great idea and we need to do something. But she called up the day after the Attorney-General made this announcement—cold case—and was asked her opinion about whether this was a good idea, even why, possibly, it has been raised, and she told South Australians a number of things—and I am sure that the Attorney-General either listened to or read what she had to say.

She said we already use photographs and there are certain circumstances where that is appropriate. She said that the traditional line-up is preferred, and for good reason, and she further made the point that the court has maintained that view.

The Attorney-General can say, well, for any other reason I am going to change that law. I am going to say to the judges, end of the line, I am on the right side here, I am the one who is going to be innovative and I am going to impose this on you by ensuring that you no longer give this direction to the juries. You are entitled to do that, but do not expect that people are going to run around to endorse this, whether they are counsel or the judiciary, or anyone else who might have an interest in this matter, especially organisations such as the Bar Association or The Law Society or The Law Council, when nothing has happened to justify it.

If a case had been presented as a reason why we needed to change the law on this, that is, there had been some event that had meant there had been some dreadful circumstance of someone failing to have received justice in this state—and sometimes that has happened. The Attorney-General knows, even under the previous regime, that the government has brought in legislation here for us to remedy something that had come to light by a certain lot of circumstances in a case that had come before the courts. Unintended by the legislators at the time, an injustice had been inflicted on a person or persons and we have needed to remedy it here in the legislature.

But where is that? Where is there a case that has happened here in South Australia that needs either the government to announce there is some need to remedy at the election campaign (and there are other instances where they have offered that in the past) or, indeed, to come in here to the parliament? There is nothing. I do not know of anything.

We have only had a week to go out there and find some of these things and see whether there might be something interstate. It is just like the dog and cat eating bill. The Premier might have picked up some caller to a radio station in Victoria and say, 'Aha, I hear that in Victoria some poor lady is worried she might go into a restaurant and eat dog or cat meat, so we will make sure that does not happen.' We have not even had an opportunity to check whether that has happened.

Members may remember—but may have their memories refreshed on this; and for the benefit of new members—that the Premier acknowledged at the time that there had never been any cases that he knew of in South Australia, or any complaint, threat of it, attempt to do it, attempt to eat it, or even the idea of it happening.

What was so peculiar at that time, was that, apart from it jumping out of the radio waves from Victoria that a lady suspected that might happen, we already had a law here that said you cannot sell it, serve it in a restaurant or kill it for the purpose of eating it, so he wanted to introduce a new law about eating it. We have not been able to check in this area whether, in fact, there are instances of events, or conduct of others or judges, that would alert us to the need to deal with this and to ensure that no longer would there be some act of injustice or potential injustice that should be remedied to make sure that does not happen again.

Not least, the Attorney-General has only been able to produce in support of his bringing of the case the High Court determination in Alexander's case (1981) 145 CLR 395 where he quotes Justice Gibbs at the time in relation to that legislation (which actually goes against the merits of this bill), who said:

The safest and most satisfactory way of ensuring that a witness makes an accurate identification is by arranging for the witness to pick out from a group the person whom he saw on the occasion relevant to the crime.

That is from the High Court. The best that the Attorney-General can come up with in his contribution is to say that identification by means of a parade or line-up was traditionally preferred over photographs but, in the case of Deering (1986) 43 SASR 252, Chief Justice King (who would be well known to the Attorney and, of course, was a very good chief justice and former attorney-general of this parliament) said:

Where there is a clear and definite suspect or where an arrest has been made, the proper procedure to be followed is for the police to arrange an identification parade if the suspect or arrested person is prepared to participate in such a parade. If that procedure is not followed, it gives rise to a discretion in the trial judge to exclude the evidence of identification by other means and that discretion will be exercised having regard to all relevant factors including, of course, the public interest in ensuring that persons who have committed crimes are convicted and punished for those crimes. It may be necessary to present photographs to an alleged victim of a crime at a stage of the investigation at which no person has been arrested or for which there is no definite suspect in order to provide an opportunity for the victim to pick out the offender.

Notwithstanding Alexander's case, the Attorney-General then says that a Western Australian Court of Appeal in 2007, in Western Australia v Winmar, considered the available research and 'firmly rejected' any suggestion that the identification from a photo board, which is typically used in South Australia, was inherently inferior to identification from a line-up. The court observed:

The court should not, as some past authority may tend to suggest, attempt to discourage the use of the digiboard—

that is the Western Australian term for a photo board—

for identification, either by requiring trial judges to warn juries specifically about the dangers of that process as compared to an identification parade, or by requiring trial judges to suggest...that the process is inherently flawed, or by suggesting that trial judges should be readier, in the exercise of their discretion, to exclude digiboard identification than they might be to exclude evidence of identification by other means.

I suggest to the parliament that the assertion that this Court of Appeal decision, which does not override the High Court, but nevertheless is a significant body of law, can be used to dismiss that there is any difference between these two would be a false assertion.

What they are saying is that, it is a question of not so much the weight or reliability, but that in identifying that the photograph identification option is being used, the fact that it is less strong in its reliability does not mean that it is inherently unsafe or that it should be excluded. I think they are in there to fight for the fact to say, 'Look, photographic evidence can be a useful tool and it shouldn't be excluded from evidence.' I have not read the full decision because we have not had a lot of time to, but nevertheless I am happy to go back and have a look at it.

What I will say is that it is one thing to say that one is better than the other or more reliable than the other, it is another thing to say that just because the photographic model is less than the personal line-up does not mean that you can then say that it is so unreliable that it should not be used at all, it should be excluded. That is a different argument.

I am sure there would be circumstances where even if the personal line-up was available and it had not been used, it is still reasonable, under the current High Court authority, to give the warning that this is not the strongest way of doing it but that we can use this other evidence, or if the trial judge, on a different set of parameters, was to take the view that the standard or quality of the photographs, or the opportunity of being able to have a number of people of similar presentation, there might be a number of reasons why it would be dangerous to allow the photographic model identification process result to be used.

Not the least of which is that—and I think the member for Adelaide would understand this—you can have a photograph which is very unclear and which may be too old. It may be, as I say, that you do not have 12 people who are of a similar view, or you cannot find a chap who has red hair with freckles who looks like the member for Morialta, and then find 11 others who look a bit like him.

An honourable member interjecting:

Ms CHAPMAN: Very handsome, so that would be a rare treat. Nevertheless, there are good reasons sometimes why that would be rejected. It may be that a judge takes the view that even personal line-up evidence has been corrupted in some way and that too is excluded from the evidence. That is what we have judges for, amongst other things. When they are doing jury trials, they make sure that the jury gets what is fair in assessing all the rules. If they are dealing with it themselves to make the determination of guilt or innocence, they take into account, in their minds, the evidence that is reliable and admissible.

Sometimes, I could see situations where even the personal line-up for some reason goes wrong and it is quite clear on the face of it that the other people used in the line-up, for example, did not fit the appropriate criteria and protocols and the whole thing gets thrown out. So, there are plenty of situations one can imagine, where judges hearing the case themselves or giving advice to a jury on the question of guilt or innocence, would reject the evidence, no matter which one they used.

All the superior courts have done to date is to say, on this question of identification—and, of course, it is usually relevant to the accused for the purposes of ensuring a critical element for their conviction in criminal cases—if you are going to use identification evidence, then the line-up is the safest. The line-up is the most reliable.

I have to say that, having reread the Attorney-General's second reading contribution, I am still at a loss as to why, apart from the fact that he is obliged to follow up an election promise, this has been proceeded with. It is possible that the Sustainable Budget Commission has picked up on this idea. I did not see that in the leaked report of the Sustainable Budget Commission. I did not see them jump to this. I did not see it as one of the areas of reform that they suggested would be a budget saving.

Perhaps it was not a high priority. Perhaps they thought it was not going to save much money, which, of course, raises another question: if it is going to save police resources and money—and, of course, time is money when it comes to professional people such as the police—why didn't they pick it up? Why wasn't it there as a very good item of efficiency that merited this bill, such as it is, being brought to the parliament and dealt with? It is a very good question. I don't know, perhaps there is another leaked budget report. I have the one that was leaked and it is a very interesting read, actually. Anyway, there was no mention of this in it.

Yet, I suppose what is equally puzzling about that is that this idea, apparently, has been around for four or five years, according to the information that has been given at the briefings we have had to date. This is not a new idea, this is not something that the assistant police commissioner dreamt up in the two weeks before the election campaign of 2010, it has actually been around for a number of years.

One might think that, whether or not it had come to the attention of the current Sustainable Budget Commission, it is possible that they missed out on it. Well, had it been to the previous budget committee that former treasurer Foley had after the 2009 budget, when we had gone through the GFC and all this financial crisis and had to cut the budget?

He had another committee, you might remember, I just cannot remember the name of it, but the chair of it, in fact, left that committee and came onto the sustainable budget committee which then operated during 2009-10. She actually came there, but she and her previous committee may have considered it. I do not know but, in all that time, it had not actually come up in previous budgets. Perhaps the previous attorney-general, the previous cabinet or the previous police minister had received it and rejected it as a good idea. I do not know. Who would know? How do we know? What we do know is that suddenly it turned up in the election campaign of 2010.

You read through the Attorney-General's contribution and think, 'There is no case law here to justify this,' so let's move on to what might be a staggering revelation that we had not understood before that would justify bringing this to the attention of the house and seeking this alternative position.

That is when we come to the justification being supported by the research. This is what they often call in the scientific world 'the body of knowledge'. It is an interesting concept but it is one which usually is not born overnight, especially when things are a little controversial. In this instance, we have had this preference notice given to juries for a long time, and it is purportedly on the basis of a very good position.

Academics have considered this in lots of law reforms over the years, but it seems that the Attorney-General has been dazzled by the work of Professor Neil Brewer at Flinders University. The Attorney-General said:

There has also been research, notably by Professor Neil Brewer at Flinders University, that highlights that traditional line ups are not as reliable as was commonly supposed.

I interpose to highlight the fact that he does not say it is not more reliable than photographic evidence; the Attorney-General said that it is not as reliable as was commonly supposed. So the Attorney-General is now asserting that Professor Brewer tells us that it is a bit suspect, notwithstanding the fact that—as I have already outlined and I will not repeat, as you would be pleased to know—any piece of evidence can always be challenged to admissibility if it has been corrupted or contaminated in some way. So it can be knocked out for good reason, and we have already been through that, and I will not highlight all the reasons for doing it but there are good reasons for it.

The Attorney-General went on to say on this profound piece of academic literature and learned reading that:

It has been found that witnesses have a tendency to compare the appearance of each person in the line up to each other.

That is a stunning revelation. He continued:

They adopt this strategy as part of a strategy to find the person who most closely resembles the culprit. The process of comparison means that a witness is likely to make an identification, although not necessarily the correct one. A further problem that arises is that the 'simultaneous' format (where the witness views everyone at once) associated with traditional line ups has been found to increase the risk of false identification. Professor Brewer and others have found that a sequential form of identification (where the witness views the images one at a time) produces a substantially reduced rate of wrong identification.

That is the contribution of the Attorney-General; that is not Professor Brewer saying this. This is what the Attorney-General summarises as the position of Professor Brewer in those assessments.

Again, I make the point that this is not a question of saying whether a personal line up is a superior format for reliability for identification on a photograph board. What this says is quite different. This says there can be circumstances where the line-up can be defective, and there may be good reason, on the basis of that, again to knock out that evidence.

I am told that what can occur, for example, is that perhaps the victim or the witness who is brought in for identification purposes makes the presumption in their mind that, when they are shown the people in the line-up, the alleged person is present and therefore one of them must be the guilty party.

As I understand from reading Professor Brewer's assessment and the example that I was given, they believe they have to pick someone from that line-up. They might go back and forth in the line-up thinking, 'Well, he has to be here, so I have to find somebody; one of these must be the person,' because they have had the seed planted in their mind that the guilty person must be there, even if they are not, and, in fact, could be quite remote from the line-up at the time.

I say to the Attorney-General that the important aspect is to recognise that, even if the summary of what the Attorney-General has told us about Professor Brewer's concept is correct—and I have no reason to suggest otherwise, although I have not had the chance to read all of Professor Brewer's publications because we have only had this for a week, but, nevertheless, possibly during the adjournment of this debate, I will be able to get to them, not to mention all the other academics we will have to look at—unfortunately, the Attorney-General has not mentioned anyone else and, quite obviously, as I am sure will be obvious to everyone, he is not the only one out there. There is a body of knowledge out there that is as fat as you can imagine and I am sure, when I get to the website, there will be another tranche of ideas about this issue.

Nevertheless, I do not take issue with the summary of information that the Attorney-General has presented of Professor Neil Brewer's concept of looking at whether, in fact, there can be corruption of personal line-ups. I am sure there are instances where it is quite valid to say, 'Look, these aren't foolproof,' and that is why judges have the opportunity to reject that, even though it might be a format that is used for identification purposes that is usually more reliable than others.

The Attorney-General asserts that, in the case of Alexander (which was the decision of the High Court in 1981), that decision was made when black and white photographs were still routinely used. Photographic identification has become more sophisticated and effective in replicating real life. Although photographic identification is not without its difficulties, it is now arguable that photographic evidence is as reliable, if not more so, than identification for a line-up.

Now, that is an assertion that we simply do not accept, for a number of reasons. It may be that photographic and digital enhancing and everything else is much more sophisticated. It may be that you can get a clearer and cleaner image, but I in no way accept that that makes it arguable that photographic evidence is as reliable. It is a quantum leap for that to be asserted.

I will go into the aspects of what the police, as I understand it, propose to do to avoid this issue of having a line-up; that is, it will be comparable, in some ways, to having 12 photographs all on the one page, so that, rather than flicking over the 12 photographs, you actually see all 12 at once. I understand what currently happens with a line-up is you can look back and forth. You do not just have one person move along—front, side, side and then move on—they are all there together, and that there is going to be a new process offered by the police for photographs. I seek leave to conclude my remarks.

Leave granted; debated adjourned.

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