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House of Assembly - Fifty-Second Parliament, First Session (52-1)
2011-11-09 Daily Xml
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Parliamentary Committees

LEGISLATIVE REVIEW COMMITTEE: CRIMINAL INTELLIGENCE

Mr SIBBONS (Mitchell) (11:04): I move:

That the report of the committee, into criminal intelligence, be noted.

On 9 March 2011, the Legislative Council resolved to refer an inquiry into criminal intelligence to the Legislative Review Committee. Criminal intelligence is a legislative class of information that can be used against a person but not disclosed to them if the information would tend to prejudice criminal investigations, identify a source or put a person's safety at risk.

There are several pieces of legislation which use the concept of criminal intelligence, which can be used as a basis to deny a person certain rights and privileges, such as the granting of a gaming machines licence, a licence to use a firearm or operate as a security agent. It can also be used as a basis for making a declaration or granting a control order against groups engaged in serious and organised criminal activities, under the Serious and Organised Crimes (Control) Act 2008 (or SOCCA, as it is most commonly known).

The criminal intelligence is disclosed only to the Commissioner of Police or his or delegate and relevant decision-makers. There are strict legislative provisions which provide that any court hearing of a matter involving criminal intelligence must maintain the confidentiality of that information, including taking steps to receive evidence and hearing arguments in private. Neither a person against whom criminal intelligence is used nor their legal representative is privy to the information.

The motion calling for the inquiry was introduced in the Legislative Council by Greens MLC the Hon. Mark Parnell in response to concerns that the concept of criminal intelligence was not used consistently across all legislation. There were also concerns that the use of criminal intelligence offended natural justice principles, such as the right of a person to know and respond to allegations made against them.

Legislation that uses criminal intelligence has been the subject of several High Court challenges. The first was in the High Court's decision of K-Generation v Liquor Licensing Court, which considered whether the use of criminal intelligence to deny an application for a liquor and entertainment licence under the South Australian Liquor Licensing Act was valid. The High Court found that the criminal intelligence provision contained in the act was constitutionally valid and did not infringe upon the court's integrity or independence.

The High Court again had the opportunity to consider criminal intelligence in State of South Australia v Totani, this time in the context of SOCCA legislation and the issuing of a declaration against the Finks Motorcycle Club and several control orders against its members. The High Court found that section 14(1) of the act, which required the court to issue a control order against an organisation declared by the Attorney-General, was constitutionally invalid. Just seven months later, the High Court again considered the issue in the case of Wainohu v The State of New South Wales, when they found the New South Wales Crimes (Criminal Organisations Control) Act to be invalid.

The Legislative Review Committee inquiry took place against the background of these High Court challenges, the debate as to the proper use of criminal intelligence and whether or not criminal intelligence provisions should be utilised in legislation at all. There was concern that the term 'criminal intelligence' was not used consistently across all legislation. In the course of its inquiry, the committee heard evidence from witnesses who were of the view that legislation such as SOCCA, and others containing criminal intelligence provisions, offended basic principles of natural justice and fairness in refusing to let a person know the allegations against them.

The committee also heard very extensive and compelling evidence from South Australia Police. They outlined the important role of criminal intelligence provisions in protecting police informants and eliminating criminal elements from legitimate business. They also gave evidence about the deterrent effect of the SOCCA legislation in dissuading the threatening and violent criminal behaviour of outlaw motorcycle clubs in South Australia. They outlined the process and method of collation and classification of criminal intelligence and the safeguards in place against the use of incorrect or unsubstantiated information.

In light of all the evidence, the committee recommended that the South Australian legislation should continue to contain criminal intelligence provisions. Criminal intelligence is warranted, given the very serious risks posed to the community by the activities of those involved in serious and organised criminal activity.

The committee is satisfied that criminal intelligence is rarely, if ever, the only source of information used against a person, and that SAPOL has robust classification policies and procedures in place to make sure that this information is used carefully, sparingly and appropriately. Further, the committee is satisfied that decision-makers under the various pieces of legislation have ample legislative discretion as to what weight, if any, they will give to criminal intelligence in assessing an application.

The committee recommended that the Serious and Organised Crime (Control) Act 2008 be reviewed as a result of the High Court decision in Totani, and that it should be amended in order to reflect the High Court's findings and to better withstand constitutional challenge in the future. The committee was also concerned about the multiple versions of criminal intelligence provisions contained in the various pieces of legislation. It therefore recommended that there be one definition implemented consistently and uniformly across all legislation. This will ensure certainty for decision-makers and uniformity with the High Court's determination in K-Generation v Liquor Licensing Court of South Australia.

Further, the committee recommended that a review mechanism be included in all legislation that uses the concept of criminal intelligence. Under the current SOCCA legislation, an annual review is undertaken by a retired judge as to the number of times criminal intelligence is used, how it is classified and whether the Attorney-General and other decision-makers have acted within their legislative powers. The mandatory reviews of the use of powers under the SOCCA legislation have been undertaken by retired District Court judge, Alan Moss. These reviews provide a comprehensive report of the use of criminal intelligence provisions each year, and their consideration by the courts. The committee is of the view that this process would be worthwhile in ensuring that criminal intelligence is used appropriately in other legislation.

Submissions and evidence to the committee also outlined several alternative legislative models which have been implemented in overseas jurisdictions aimed at dealing with the issue of serious and organised crime. The Netherlands has introduced legislation whereby authorities who issue licences and permits and consider tenders for public contracts are given powers to screen and monitor applicants and access secure sources of information from police, tax and customs administration.

Evidence also outlined a successful program implemented in Japan to curtail the infiltration of indigenous crime gangs known as the Yakuza, including the issuing of administrative orders to prevent the Yakuza from making unjust and violent demands and from recruiting juveniles to join the gangs. Evidence also outlined laws introduced in New Zealand which banned the wearing of gang patches, emblems and insignia. The committee recommended that the Attorney-General consider some of these approaches to tackling organised crime, with a view to implementing them in South Australia.

On behalf of the committee, I would like to thank all those who made submissions and gave evidence to the inquiry. I would like to acknowledge the contribution of current and former members of the committee (in this place and the other place), who heard evidence and considered the report. I would also like to thank the committee staff, Carren Walker, Leslie Guy and Adam Crichton, for their work in relation to the report. I commend the report to the house.

Mr GARDNER (Morialta) (11:15): In rising to speak on this motion that the house note the report of the Legislative Review Committee into criminal intelligence, I particularly draw members' notice to the minority report signed by me and the Hon. Stephen Wade from the other house, and I will get to the reasons why the minority report was put in with the five separate recommendations in due course.

I would like to agree with the previous speaker in commending the work of the secretariat of the committee who do fantastic work; however, I do not feel that this report demonstrated the committee system of the parliament working at its best, as may be seen by the fact that the recommendations produced by the majority could have been written in the talking points of the member for Croydon when he was attorney-general before the election.

I do not feel that we had a situation where the evidence was taken into account and the committee deliberated free from partisan consideration in producing its recommendations. We had evidence from a number of very learned people—all the evidence, of course, and the submissions are listed—from people like Dr Steven Churches of the University of South Australia (a senior lecturer) and the Law Society, the police association and the assistant police commissioner.

We had an academic fly in from Canberra to assist the committee, yet the evidence suggested and proffered by many of those notables was, I don't know, perhaps considered as some sort of highfalutin legal terminology and not used in the recommendations.

The difference between secret police intelligence and criminal intelligence is key to an understanding of what was produced here. Of course, the opposition supports the work of police and recognises the importance of them keeping the identity of informants secret, and so forth. Secret police intelligence is vital to an effective investigative process, but when we talk about criminal intelligence in the context of this review (which is not always clear throughout the report), we are talking about criminal intelligence as specifically defined in the Firearms Act, the Liquor Licensing Act, the Gaming Machines Act, the Security and Investigation Agents Act, the Casino Act, the Hydroponics Industry Control Act, and, of course, the SOCCA Act, as was described before.

This is where intelligence can be used without the opportunity of the person who the intelligence is used against to know what the intelligence is, to know the nature of the intelligence and, perhaps, even to know of its existence. The minority report, I think, is compelling in arguing that state law should make clear that the courts retain unfettered control over judicial proceedings, to protect the rights of all parties to a fair proceeding and to protect the administration of justice.

Courts should be explicitly authorised to view any evidence, to engage the affected parties and their legal representatives, to make inquiries to test the veracity of the intelligence and to decide the admissibility of the evidence on the basis of justice. In particular, relevant legislation should provide statutory enunciation of the High Court's expectations in the K-Generation case and should draw on the processes of the commonwealth's intelligence legislation, national security information and the Criminal and Civil Proceedings Act 2004. This legislation protects law enforcement interests amongst other classes of information.

The opposition is not proposing anything radical in this. We are suggesting that, in fact, we should be looking at the commonwealth's anti-terrorism type legislation. The commonwealth has not felt the need to go down the path that we are going down, and I think that is instructive. The second recommendation of the minority report was that state laws should provide comparable legal processes on the use of secret police evidence for administrative, regulatory, criminal or civil proceedings, and I think that is sensible. The third recommendation is that police intelligence should be required, whether by statute or police procedures, to meet threshold levels of reliability under internationally-recognised police intelligence classification systems before it can be classified as criminal intelligence.

That is the process that is undertaken at the moment, we are given to understand by the assistant police commissioner, but, from time to time, they do amend the indices upon which police intelligence is rated and graded, and I think we need to have clarity about that, and I think statute is preferable. As a general rule, it is a good idea for this parliament to have strong control over the processes where we are looking to take something so far out of the realm of what has been established—institutional rights, such as the presumption of innocence before the law and the basis that, when claims are made against one in a court of law or in a statutory proceeding, they may be tested and one may be able to defend oneself. If we are going to step away from that, it is only reasonable that the parliament should be required to set the threshold levels in statute.

The fourth recommendation of the minority report is that police should establish clear guidelines to ensure that discredited intelligence is marked as such within police systems, with appropriate audit arrangements. The committee heard evidence suggesting that that was not currently the process. It seems eminently reasonable that, once intelligence has been discredited, it is not enough to say that we have excellent police—which we do. If we did not, if there were individuals not acting in good faith who were in decision-making positions, the fact of the intelligence being on the system could potentially create a situation where outcomes occurred that were not ideal.

The fifth recommendation of the minority report is that police should establish clear recording of the use of secret police evidence and provide regular reports to the public and the parliament. Again, we felt that it was important for the parliament to have oversight of this.

Evidence was given suggesting that the use of the term 'criminal intelligence' as opposed to 'police intelligence' was confused. In the natural course of speech, you might use the term 'criminal intelligence' in a way that is not described in those acts as being specifically police intelligence that has been rated as significant enough to go forward and be used in courts as classified criminal intelligence. When witnesses used the term 'criminal intelligence' in a more general sense—that being intelligence kept by police—I think it would have been better if the report had reflected that, because, unfortunately, we now have apples compared with oranges. It is not described so in the report.

As the Hon. Stephen Wade said, 'We do think that there is a place for criminal intelligence, but not at the expense of due process, not at the expense of systems that will withstand scrutiny, not without a rigorous process to protect justice.' This is not some sort of bleeding heart thing. It is not tough on crime to put laws into place that cannot stand the scrutiny of the High Court. Far from it. In fact, the fact that something might be knocked off by the High Court just goes to show the danger of pursuing such a reckless approach.

I particularly draw members' attention to the evidence provided by Dr Steven Churches, whereby sometimes police informants or informants to authorities can act in bad faith. Dr Steven Churches particularly outlined the case of Tadic, which was heard in the International Tribunal for the former Yugoslavia in 1995. In that case a person gave evidence on oath:

[T]hat he had seen 30 of his countrymen slaughtered, including his father. The defence counsel, having discovered his identity, went and did a lot of hunting around in Yugoslavia and discovered dad was very alive and very well. Then they confronted him with this and he said, 'Yes, well I was coached. That is what I was told to say'.

In its evidence, the Law Society advocated at length that a person should know what is alleged against them and be given an opportunity to answer in an open and transparent manner. This does not just relate to things that are going to potentially cause criminal sentences to be passed against somebody. It is also rights that, in our society, we have seen refused, revoked or limited—things that could affect somebody's ability to earn a living, hold a gaming licence, be granted a security agent's licence, or be present on the premises of the casino, and so forth.

In the member for Mitchell's contribution, he pointed out that criminal intelligence is rarely, if ever, the only source of information used, and that is certainly the case. I think there were some eight cases the police presented where criminal intelligence had been used in any way. If, as the member for Mitchell says, criminal intelligence is rarely, if ever, the only source of information used, I do not find it a compelling argument that we must have the ability to use it in this way. It is reliant entirely upon the police being the sort of police that we currently have. I am comfortable with the idea that Assistant Commissioner Harrison, for one, might be able to make these determinations, but we must make laws for the worst-case scenario.

Ms THOMPSON (Reynell) (11:25): I want to speak briefly in support of the majority report into criminal intelligence and recognise that the members of the committee gave extensive consideration to the issues raised in the minority report but at the same time considered that it is necessary for the law to move on. The matters that we are talking about relate to whether criminal intelligence can be used in the deprivation of a privilege. It is not relating to the deprivation of liberty. We considered that there are different tests that should be used in those two differing situations.

Whether somebody is allowed to have a firearms licence or a security guard licence is a different situation from whether a person should be gaoled for terrorism or gaoled in relation to other offences. The tests have to be different. We recognise the passion of a number of witnesses who see the law as their sacred trust to protect; however, we also saw that other people who are charged with protecting the public see that the law does not always enable them to do that.

The majority of the committee was aware of a number of situations where the law has not well served the least powerful in our community, and I think the best example we have is the issue relating to children in state care. Even at the moment, despite many attempts to reform for instance the law in relation to rape, the conviction rate in relation to rape being something like 2 per cent of estimated cases of rape indicates that the law is not always working in the interests of people who are less powerful in the community; therefore, we have to challenge some of these traditional concepts in relation to the sacredness of the law that has served some people in the community well. It has served privileged men very well; it has not served women and children.

One of the situations that we considered in relation to the application of the laws that was the subject of the inquiry was a situation where, for instance, the police have strong reasons to believe that a person has been responsible for a series of rapes in a nightclub. This is not beyond the realms of fantasy, it is the situation in Western Australia. The police have not been able to get sufficient evidence to prosecute this person but they have strong reasons to believe that this person is the offender. Should such a person apply for a security licence to work in a nightclub, I want to be confident that the police are able to use that information in a way that prevents that person getting such a security licence. I see that the amendments proposed by the minority would prevent that happening.

There are times when we are not talking about deprivation of liberty, we are talking about the granting of a privilege where we must respect that the processes that are involved are sufficiently rigorous within the police force and respect the integrity of our decision-makers sufficient to say that, yes, at times on specific occasions, the concept of a person having a right to know all the evidence held against them just is not in the best interests of our community, particularly the most vulnerable members of our community. Hence, I strongly stand by the majority report recommendations.

Motion carried.

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