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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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STATUTES AMENDMENT (CRIMINAL INTELLIGENCE) BILL

Final Stages

Consideration in committee of the Legislative Council's amendments.

(Continued from 3 April 2012.)

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments be disagreed to.

This legislation has had a fairly eventful career. It is fairly plain from the message that the bill has been substantially amended, although I think to use the term 'substantially amended' is an understatement. A marked up version of the bill indicates that the formal clauses 1 to 3 were unamended and after that only one clause—in fact, a single line—remained intact. Pages and pages of amendments were inserted and, of course, the long title was amended. It would be pointless to argue these through again.

In another place, it was quite clear that the opposition and its friends were entirely impervious to argument on the floor of the place or to advice from the government's legal advisers. Rehearsing it all again would be a complete waste of time in this house. Reference may be made to Hansard. It is enough to point out that the honourable shadow attorney-general is prepared to concede in a half-hearted way that he has it wrong. Here is what he said:

I would just like to briefly reiterate the opposition's willingness to receive alternative amendments.

Not the actual provisions that were put up there in the first place but alternative amendments. I will quote from my contribution. He goes on to quote himself and I quote him quoting himself:

...I would put the question to the government in a different way. Is it conceivable that there would be a set of safeguards that the government, the police and the Police Association could find acceptable? If that is the case, I believe it is worth continuing the work on this bill because it is certainly the opposition's strong view that, in terms of balancing the interests, it would be useful to have more clearly enumerated safeguards in the legislation.

So Mr Wade, the opposition spokesman, has concerns and his amendments are wrong but it is up to the government to come up with something that will satisfy him without him giving an inch. He did not move the amendments suggested by the select committee. Just on that point, can I say that when these provisions originally went up there to the upper house, they were cul-de-sac'd into a select committee. The select committee came to a conclusion and, Mr Acting Chair, you are going to be shocked at the conclusion of the select committee. I am pleased you are sitting down. The select committee recommended support for the government bill.

Ms Chapman interjecting:

The Hon. J.R. RAU: There is more. The Hon. Mr Wade contented himself with criticising the government. The government's Statutes Amendment (Criminal Intelligence) Bill did not propose to add a single new criminal intelligence provision—not one. It was simply designed to make the existing provisions uniform—and just to underline that a little for the honourable gentleman in the other place, 'existing' means already there—and, more importantly, because the opposition says it is concerned about the legality of things, to adopt the terminology that was expressly approved of by the High Court in the decision of K-Generation Pty Ltd v Liquor Licensing Court. That case dealt with the provisions in the South Australian Liquor Licensing Act.

This is overtly and clearly a bill designed to save the state time, money and aggravation by insulating the state as far as possible from another High Court challenge on this point. In other words, if that is not clear enough, we have an array of criminal intelligence provisions. We know that one of them is okay according to the High Court, at least in as much as anyone can know that. We know that, and we are seeking to replicate that known successful formula from the Liquor Licensing Act in other acts. That is all we are trying to do. We are not trying to extend the operation of criminal intelligence one iota. This has been turned by the opposition into a free-for-all and a circus.

SAPOL, in a fairly rare public pronouncement, has made it clear that this uncertainty is hampering its operations and running the risk of allowing people of dubious or dangerous repute to get access, for example, to licences they should not have. We include here liquor licences, firearms licences and of course the notoriously troubled security industry. We are looking to regulate those areas. Recently, the South Australian Police Association, which again does not jump into print on issues like this at the drop of a hat, was very forthright, and I would like to quote the President of the association, Mr Mark Carroll, who said:

...serious shortcomings in the Redmond Opposition's approach to law and order...threatened and continue to threaten public safety...

That is not me talking, that is an independent person who represents the thin blue line that protects us from these individuals. Let me go on. He says:

Isobel Redmond's Liberals moved amendments...which would have made the use of criminal intelligence almost redundant...The Liberals' proposed 2010 amendments defied belief...It is a matter of fact that, as a direct result of the failure to pass this legislation—

Note—matter of fact, not opinion.

Ms Chapman: He is not in government yet.

The CHAIR: The member for Bragg will have a chance to comment in a moment. If she interrupts once more, she will not have a chance.

The Hon. J.R. RAU: Mr Carroll continues:

...that, as a direct result of the failure to pass this legislation, some serious and organised criminals have enjoyed freedom from firearms prohibition orders—

This is something for which the government has been criticised repeatedly by Mr Wade. He gets on the telephone and says, 'Why hasn't this chap got an order against him? Why hasn't this other fellow?' He names names and says 'Why haven't they got orders on them?' This is the most audacious form of defence but usually—I guess, from Mr Wade's point of view, hopefully the most effective—you criticise the government for not doing something that you are preventing it from doing. That is pretty good, isn't it? You stop them doing it, and then you criticise them for not doing it. How good is that? I am continuing to quote here from Mr Carroll:

Isobel Redmond must now show the leadership required of a political head and agree to pass the criminal intelligence bill. Further delays make the difficult task of effectively policing serious and organised crime in South Australia.

Can it get any clearer than that? So, the bill was introduced into the parliament on 27 October 2010. The bill passed the house on 10 November 2010. It was introduced to another place the same day. Then, debate proceeded in a leisurely way, as it does in the more genteel environs of the red house, and the committee stage was reached by 8 March 2011. The opposition had filed quite a lengthy series of amendments, but not quite so lengthy as the current lot. The government opposed them. It was clear the government did not have the numbers, and the first of the opposition amendments was passed. Progress was reported; and there it stopped.

In the meantime, the Hon. Mr Parnell had moved the matter of criminal intelligence generally be referred to the Legislative Review Committee. That was done on 9 March 2011. Just so people have got this in mind, we started this long march on 27 October 2010. We are now in May 2012, and we are still trying to progress this, and the same people are still getting in the way. Anyway, back to the story.

Off to the Legislative Review Committee on 9 March 2011. The matter proceeded again in a leisurely way, and the matter returned to another place on 19 October 2011. That report was generally in favour of the government's position, as I have said. The opposition put in a dissenting report and indicated it was adamant in continuing to amend the government's bill. The Greens agreed with that. Having voted for a committee review, they refused to abide by the committee's result. That's interesting, isn't it? The people who set the committee up were not happy with the outcome, and then decide, 'Well, we didn't like it so we are not going to go ahead with that.'

So now we are in May 2012—18 months have passed. This is a disgrace and it is an abuse of the parliament. There is a raft of different amendments which are not amendments at all but a private member's bill in another form. The government will oppose these. It will drop the bill rather than accede to these amendments. If the High Court invalidates one of these criminal intelligence provisions—just one—it will be plain to everyone upon whom the responsibility rests, and it will not be the government. Now, can I add that over the course of the last 18 months the Hon. Stephen Wade has been visited by many people.

Mr Odenwalder interjecting:

The Hon. J.R. RAU: I'm not sure about that, but he has been visited by many people. I have been one of them. I visited him a number of times, and we have had very courteous conversations. During those conversations he has nodded and made other gestures indicating some comprehension and recognition of the matters that were raised. Both with me and independently of me I have arranged on multiple occasions for staff from the Attorney-General's Department, particularly the policy and legislation people, to brief Mr Wade, and I think the honourable member for a Bragg as well on occasions. I should not leave her out of this, because she has been present at these. Although, I have to say, Mr Deputy Speaker, I think that the extensive practical legal experience of the member for Bragg, were she the person with whom we had to deal, may perhaps have achieved a slightly better outcome; but let's not go down that path, that's speculation.

There were multiple occasions with lawyers from the Attorney-General's Department. Again lots of nodding, lots of apparent comprehension. Mr Tony Harrison, a very senior officer from SAPOL, well respected—eminent, one might say—probably knows more about this area than anybody. I do not know how many interviews he had with Mr Wade. He has had this sort of revolving door of people imploring him, 'Please, please, please pass this.' And all of those people are not me, and all of those people have explained to him that this does not represent an extension of anything. This represents an attempt to prevent a constitutional challenge succeeding against existing provisions in existing pieces of state legislation.

Anyway, all of those have fallen on deaf ears. So, you have the government urging this for 18 months. You have senior lawyers who advise the government urging things for 18 months. You have very senior officers of SAPOL privately urging these things, in desperation, probably frustration—I am not sure whether there is a word above that but, if there is one, I am sure Mr Carroll must have got there for him to actually have said anything in public. You have PASA coming out and saying something about it.

Then the person who I do not think anyone in the chamber would assert to have been the government's closest friend over a number years—certainly not somebody anyone suggests has ever been in the government's pocket—Mr Stephen Pallaras QC, DPP, accused those who blocked the criminal intelligence bill of being 'galactically ignorant'. I am sure that Mr Pallaras chose his words carefully and, can I say, how fairly he chose them, too. He said that they were 'galactically ignorant' and that the law aimed simply to enshrine a practice already carried out by a judge. He said that the opposition is making life easier for criminals. They are his words, not mine. He said:

I have difficulty understanding what the objection is, particularly as we know that these criminal intelligence powers have been around for many years and exist in other legislation, so what's the problem?

Now we have somebody else lining up to plead with the opposition to get real and to assist SAPOL to do the job that we as South Australians expect it to do. So, we have senior police, senior government lawyers, the government, the police force generally, PASA, the Director of Public Prosecutions. One man stands out like an island—

An honourable member: Gilligan?

The Hon. J.R. RAU: No, it's not Gilligan. One man, and the party has allowed him to continue to be its spokesman and to continue to push this line in the upper house, knowing that it is preventing the passage of this legislation, and that is, obviously, the Hon. Stephen Wade, the shadow attorney.

We are in this position. The shadow attorney would say that all he is done is import what he calls 'safeguards' from the national anti-terrorism laws and put them into our criminal intelligence provisions in South Australia. What is wrong with this? Why is this betraying a complete misapprehension, or lack of comprehension, about what we are talking about here? I have explained this before, but I will explain it again. A person who is to be affected by the anti-terrorism laws will, by reason of those laws, have their ordinary civil liberties taken away from them, and it is in that context that criminal intelligence that might be used to stop one from enjoying the ordinary civil liberties all of us expect to enjoy is to be measured. That is why those provisions are as they are: they seek to take something away that all of us enjoy as a birthright.

So far as I know, it is not a constitutional right of every Australian, certainly every South Australian, to own a firearm. It is not a constitutional right of every South Australian to operate a licensed premise. It is not the constitutional right of every South Australian to run a firm of bouncers. These are privileges the community regards as being so significant in terms of their risk of mismanagement that we have a legislative scheme around the circumstances by which a person will obtain what we call a licence. It is in the context of the granting of a licence that the government, the police, the director of public prosecutions and SAPOL are saying: it is not unreasonable for criminal intelligence to be used when a person is making a decision about whether someone is a fit and proper person. That is it; that is the bottom line, that is what it is all about.

There have been more developments on this. Three weeks ago, I went to a meeting in Canberra with the state, territory and national attorneys-general. At that meeting, it was resolved that organised crime was a serious problem within Australia. All governments agreed that we had to be more cooperative about our approach to organised crime, and one of the explicit agreements at that meeting was that all jurisdictions should do their best to share—and here are the words that need to be underlined and in bold—and protect—criminal intelligence.

This is where it becomes very important because we are not only talking here about intelligence SAPOL might have collected in South Australia which is relevant to determining whether a person is a fit and proper person here. It might well be that SAPOL has information from New South Wales, Queensland, the commonwealth, or anywhere else, which may be relevant to answering that question. Let's follow that path back, and I will give you a hypothetical example.

You have an individual who appears to be a cleanskin. They have no obvious criminal record, and there is no obvious reason why the person should be a suspect. They apply for a firearms licence, a liquor licence, or to be a crowd controller, and the licensing authority is advised by SAPOL, 'We have intelligence that the person who sits in front of you is in fact good mates with a whole string of very unsavoury people, and we know that the connection that person has with these unsavoury people is that he is basically their frontman. We have all sorts of access to things like telephone intercepts, or we might have been bugging some premises, or we might even have some person who is part and parcel of that outfit who is actually giving us information.'

What the Hon. Mr Wade wants us to do when refusing the licence, or in the context of considering it, is to say to that frontman, 'We've got concerns about you because there's criminal intelligence about you,' and then give that person an opportunity, through their lawyers, to delve around into what that intelligence might be and where it might have come from. Just think that one through. You have a serious criminal outfit, and you might have a person who is actually in that outfit who is giving information on the quiet to the police. How comfortable do you reckon their life is going to be once the mob they are in works out what is going on? Not very, I suspect.

What is going to happen to behaviour about using particular telephone lines, or behaviour about meeting in certain premises, if these people have reason to suspect that those things are the subject of surveillance? Again, you do not have to be a genius to work that out. What is even more concerning about this is: why would New South Wales, Queensland, Victoria or any other jurisdiction share their criminal intelligence with us if they know that our courts could be used to extract information about how the New South Wales police got their criminal intelligence? You do not have to be a rocket scientist to work out how that would work.

You have some criminal outfit in New South Wales, for example, and we have information from New South Wales about some association with a person applying for a licence. They know they can test, to some degree, how the intelligent was derived, what it is and so forth here. That then opens a window for them in Adelaide into intelligence-gathering activities in New South Wales. How well regarded by other jurisdictions do you think that is going to be? I suggest not very well regarded at all. Of course there is an alternative in Mr Wade's proposal. The alternative is that police say, 'Okay, if that's what it's going to be we won't use it and they can back off and their intelligence is protected.' Sure, it's protected—and it's useless because nobody can use it. If they are not going to put it forward, who is?

In every one of these cases SAPOL has to make the choice: 'Do you want to risk blowing your cover in terms of where this intelligence is coming from or are you just going to hold it back?' That is what these amendments require. How anyone thinks that is in the interests of the administration of justice or how that in any way serves the public interest in South Australia completely defies my imagination.

For all of those reasons the government cannot accept these amendments. With all due respect it is not Mr Wade's position to sit in a big chair like an Oriental potentate and say to us, 'Sorry, not good enough. Go away and have another crack at it.' That is not the way it works. It is not our job to tell him how he can muck up our legislation, he is capable of doing that by himself. We don't need to help him, he is actually very good at it, and we are not going to try because he is wrong—it is simple—just wrong.

As you might have gathered from the general tone we do not accept the amendments. For that reason I assume that this will inevitably wind up in a deadlock and what happens thereafter is difficult to say. However, I do say this: the writing is on the wall as far as this matter is concerned. If any of the existing criminal intelligence provisions are subject to attack, and any prosecution or other process fails by reason of a constitutional challenge, let us make no mistake where the responsibility for that will lie.

Secondly, in the event of some criminal behaviour going on over the next couple of years where criminal intelligence could have been brought to bear to frustrate or stop that behaviour and someone suffers as a consequence, the actions of those who block this legislation will inevitably invite responses from the police and others that they are being frustrated in doing their duty, and those responses will continue every time that frustration occurs.

For my part, in my electorate at least, I am going to notify all the people in my electorate about this issue. I am going to let them know exactly what is going on. I am going to quote Mr Pallaras, SAPOL and Mr Carroll, and I will invite my constituents to make their own judgement about which of the major parties in this parliament is actually serious about supporting our police in the important work they do, and which is not. I have my own view about that but I am content for my constituents to work it out for themselves. That is where we stand: we do not accept the amendments and we cannot agree to the amendments proposed.

Ms CHAPMAN: The opposition supports the amendments, and we thank the Legislative Council for its careful and wise deliberation of this bill, in particular addressing some aspects which we think are fundamental and important to the whole legal process. Although the Attorney has outlined the presentation of amendments as though they were some wholly owned subsidiary of the Hon. Stephen Wade, it seems that he has overlooked that the Legislative Council comprises 22 members, and the majority, in their wisdom, have confirmed that these are valuable amendments which will assist in the application of the bill, if and when it ever becomes law; although I did note the Attorney's threat that unless this bill went through on his terms it would be pulled. That will be on his head.

Let me say this at the outset: although the advance of this bill has been at the glacial pace as determined by the government, the opposition has been at all times, and remains, willing to resolve this so that we have an amendment to our legal processes which allows for the proper application and use of criminal intelligence for the benefit of the people of South Australia. That remains our position and I place it on the record.

The Attorney may take the view that his bill, without these amendments, is perfect and that it needs no amendment. In fact, he said quite clearly that it is not going to have any amendment according to what the Legislative Council says. It is going to go through on his terms or not at all. In some way he has the complete panacea of answer as to how this should progress, because he has had the wise counsel of several learned members, and some very experienced, in the law enforcement arena.

Of course, he has been on Leon Byner's FIVEaa program and he has protested his objections to the unfair and unreasonable proposals presented by the opposition and indeed other members of the Legislative Council, that they are in some way impeding the proper course of justice, and that in some way the Legislative Council is protecting this group of 'fiendish people' in the community who deserve no credit or protection.

In reality, the opposition, not only the Hon. Stephen Wade, but other members of the opposition, including our leader, and other Independent members in the Legislative Council, have made it clear that they want to protect the people of South Australia. That is what they want to protect. That is a priority for them and that will remain so.

In any event, the Attorney-General thinks his legislation, as was presented to the Legislative Council, should be accepted, and he will not tolerate any change. Of course, he is always right. Wouldn't that be wonderful if he was always right! Let me give you just one example of where he is not right. In fact, he has had to back down and he has had to eat humble pie, I suppose, and accept that the information that he has relied on has not necessarily translated to something that would be effective.

One of those is the other bill that is before us, and is out there in deadlock, in respect of correctional services, and to provide powers, to give the chief executive of the corrections department and/or senior police officers the power to effectively issue warrants for people who are suspected of breach of parole.

The Hon. Jennifer Rankine is the current Minister for Police and the Minister for Correctional Services. With respect to that bill, members would be well aware that the former attorney had championed the need to amend legislation to protect against a circumstance that had resulted in the death of one Shane Robinson, but, in the meantime, an assault against a police officer and the appalling conduct towards a senior female member in the outback of South Australia. The former attorney-general said how important it was that we amend the law—

The Hon. J.R. RAU: Point of order.

The CHAIR: Order! A point of order has been called. Do you have a point of order, Attorney?

The Hon. J.R. RAU: Even if any of the information that the parliament were receiving from the honourable member was demonstrative of a failure to perform adequately on my part, its relevance to the topic before the chamber would be remote. However, given that neither the bill nor the former attorney-general are matters for which I have any particular ongoing responsibility—and I do not recall in respect of the correctional services bill making a particular contribution on it at all, because I am not the minister for corrections—how I have had to go out and 'eat my words', I think was the expression, baffles me. Can we please, Mr Chairman, address the bill before us and be focused on that.

The CHAIR: I would ask the member for Bragg to concentrate on the bill, but I would also remind the Deputy Premier that he did go a bit wide himself in some of his comments. The member for Bragg.

Ms CHAPMAN: Why this is so important, Mr Chairman, is because the government has heavily relied on the advice in that instance of the police commissioner as to the importance of understanding how the legislation that the government had proposed—and it still proposes—needs to be carefully drawn so that it is effective. In fact, what it had presented to the parliament as having the endorsement in that instance of the police commissioner was subsequently found to have not been something that could be practically applied.

Certain aspects of the legislation on the face of it had everyone's support (including the police commissioner; all been signed off with that endorsement) but the practical application of that bill, and in particular the circumstances in which a parolee could be arrested and—

The CHAIR: Member for Bragg, you have made your point. You need to get back to how that point is relevant to the clauses in the bill.

Ms CHAPMAN: Absolutely, and the reason is this—

The CHAIR: Can we take the direct route rather than the scenic route?

Ms CHAPMAN: Well, let me say this: that is an example where the police commissioner has made an assessment, it has been relied upon by the government, it is then found to have been not actually the correct position and the police commissioner has had to come out and say, 'Look, I know this is what the government demanded, and if it had proceeded that legislation would not have been used by the police.'

Here we have in this case a situation where the government is relying on the advice of the law enforcement agencies, namely, the police (a very important stakeholder in this; we do not disagree), but they are not always right, and neither is the Attorney and neither are ministers. If it was a perfect world and everything that the government or the Attorney-General espoused from his lips was so perfect we would not need to have any process of amendment.

The CHAIR: Member for Bragg, I keep hearing the same words. You need to bring your comments back relevant to the bill. You need to refer to the clauses or I will ask you to sit down.

Ms CHAPMAN: Thank you, Mr Chairman. I do not know that my friend, the Attorney-General, referred to one clause throughout his 40-minute tirade but, nevertheless, if you like, I will start on clause 1.

The CHAIR: I am happy for you to address the clauses. You have not got to the clauses yet; that is what concerns me.

Ms CHAPMAN: No. Can I say this: for all the grandstanding of the Attorney-General about how perfect his bill is and how insistent he is that it go through on his terms, he and his government make mistakes, even on very senior advice that they have received or where they have ultimately misinformed the other stakeholders as to the reliability of that advice and we find out later that that is not the case. We need to have a checking system and that is what we have. He has grandstanded around, he has paraded around about how perfect this is, but let us just identify the three issues that are left. I am going to go to the easy ones first.

The Liberal Party set out three sets of amendments to the bill: firstly, to do with the recording and reporting of the use of criminal intelligence. This is not rocket science. This is a very simple proposal that, when you are amending the law, there be a reporting process that is able to provide some, I suppose, comfort to the application of a new law that there will be some level of accountability as to the use, misuse or abuse of a certain new tool that is available in a law enforcement activity.

Criminal intelligence itself is not new, but it is new in this area. The opposition says the reporting of that and the review of it is something that is not unreasonable, and we are not alone in that. Not only did other members of the Legislative Council recommend this but the Legislative Review Committee, a government-controlled parliamentary committee, also recommended this. So, it is not just us singing from some wilderness, some lone voice, but the Legislative Review Committee, the government-controlled parliamentary committee, has recommended this.

The other thing that seems to have escaped the Attorney's attention today is that he also promised in October last year in a letter to Legislative Councillors that that would be something that is accepted. So, it is rather baffling to us that, given the correspondence from last year in which there had been a promise to amend the criminal intelligence bill to provide for the annual reviews, he has failed to put any promised amendments and the government is now opposing the amendments from the opposition.

I just find that absolutely bizarre. Here we have a situation where we are asking for a level of accountability. The Legislative Council had been informed in a letter from the government, from the Attorney-General himself, that they were going to do that. The Legislative Review Committee said that was the right process to go through. He said he was going to do it, he did not do it, so they amended that and now we come back here and he says, 'I don't want to agree to that.'

I mean, what is going on here? This is not lawmaking: this is an obstinate refusal to accept something that has been exposed, something that has been confirmed by the proper processes to be the right course and consistent with his own presentation. He still refuses to do it. Now, that is the spit the dummy tantrum, toddler behaviour that I expect of a two year old, not the Attorney-General.

They are the two matters that I think are pretty straightforward. The Attorney-General has even signed up to them himself, there it is in black and white, and now he wants to recant it. The other issue which is fundamental—

The CHAIR: Point of order.

The Hon. J.R. RAU: It is really a point of clarification as much as anything else. If that is all the member for Bragg is after and that is game set and match, we can talk turkey.

The CHAIR: Okay.

Mr Pisoni: That was just interruption, not a point of order.

The CHAIR: And the member for Unley, so was yours.

Ms CHAPMAN: The second and, I suppose, the most significant area of difference is the question of giving to the judicial officers the testing role of the reliability of the secret police evidence. We have heard examples from the Attorney again today of where it is important and why it is important that we use criminal intelligence in certain cases. We know, I think from very long debates in this house, why it is wrong fundamentally to rely on secret evidence as a matter of course, but I think it is reasonable in the context of what we are going to be identifying today for the benefit of the house to say that, in short, criminal intelligence is evidence which can be used, and should be used, in certain circumstances and it certainly should be available to be used when we are dealing with bikies and legislation such as terrorism legislation. We all accept that. However, there is no question that its use does increase the risk of miscarriage of justice; it does increase the risk of corruption; it does increase the risk of political misuse; it does undermine the standards of police investigation; and it can certainly undermine public trust in the justice system.

I repeat those not because they are in issue but, remember, this is to be used in the exceptional circumstances rather than the norm because of those weaknesses. That is pretty obvious. It is why we have special rules to allow cross-examination of witnesses and why we insist that, as a fundamental principle, when people are charged with an offence they need to know what they have been charged with and there needs to be full disclosure of the circumstances and details of the offence. These are all rules that have been established over hundreds of years.

We all agree here—I think, both major parties at least—that there are certain circumstances when you have to go beyond that and say, 'In these special circumstances we need to lower the threshold. We need to be able to get in secret intelligence,' for reasons that have been again recounted today, but they include the fear of witnesses coming forward, the intimidation of evidence, and so on. We all agree with that, but here is where the difference is between our two major parties.

We say that if you have court-tested evidence as a safeguard, which is how we have described it, you should allow the judicial oversight of three things—whether the information is properly determined by the Commissioner of Police to be classified as criminal intelligence; whether the information is sufficiently reliable and of such probative value that it is in the interests of justice to allow the crown authority to educe or rely on it; and the steps that should be taken to maintain the confidentiality of the information whilst ensuring as far as reasonably possible that other parties to the proceedings are not unduly prejudiced by the lack of disclosure.

I think this has come as a bit of a light bulb moment to the Attorney-General because it seems to have been an impediment to his advance of this, or at least some of the people who have been advising him about this concern. I think this has certainly come through senior members of the police department who have felt they may be restricted in their capacity to be able to withdraw this criminal intelligence if they had placed it and then, under review, it was not allowed to be admitted. Certainly, during the course of briefings, the concern was raised that, once in the court situation, even if the court said, 'No, I am not going to allow it to be relied on: I make that determination,' that somehow they could not pull it out and put it back into a secret envelope and keep it secret.

From the comments made today, I think the Attorney-General at least understands this point, even if some of the police do not, that is, if the court determines that the material is not to be admitted without being disclosed, the police can certainly withdraw that material and it maintains its confidentiality. I think it is important that we place that on the record because that has been a fear that has permeated parts of the presentations put to us by senior police officers, that is, in some way the confidentiality of that material will be lost as a result of that process. In those circumstances, if that were the case, they would have a reasonable concern to be validated, but I think from the comments made by the Attorney today he at least accepts, as of today, that that is not the case and that it can clearly be withdrawn and that remains protected.

This is what I want to bring to the parliament's attention about the fundamental difference between them and us. For all of the government's protestations and the Attorney-General's strutting around today out there in radio land and here today about how the Liberal Party are there protecting bikies and that the Labor Party are there to protect us, let me say this: it is the government that has provided bikies with these very same legal safeguards that we say are important for law-abiding citizens.

I repeat that. I am going to identify legislation in a moment where the government has required provisions in bills to protect bikies in relation to evidence, which they refuse—and consistently here again today are prepared to dump their own bill in spite of the Legislative Council's position that they are there protecting law-abiding citizens.

The government is willing to sacrifice the good intention of the legislation rather than provide these safeguards, which they are willing to give to bikies. Let me refer to the government's repair bill on the anti-gangs law. We are about to finally pass it through the parliament when some further amendments have come down from the other place. I do not know where it is.

The Hon. J.R. Rau: There are more amendments, are there?

Ms CHAPMAN: On the judicial amendments that Chief Justice Doyle—

The Hon. J.R. Rau: That is done.

Ms CHAPMAN: I thought it had been done, but it is listed.

The Hon. J.R. Rau: I thought it had been done.

Ms CHAPMAN: I thought we had done it, too. Whether it has been done or not, it was dealt with in the Legislative Council on 3 April. Whether it is an act or still a bill, I am not sure, but for some reason it is listed here today. If we have to fix that up, that is fine. Let me refer to section 22G. Remember that this is the legislation that the government introduced after the High Court had thrown out the previous lot of legislation, which was about anti-association laws. It is new legislation and, with some amendments, it has come to be fixed up and, largely, we have all agreed on it. It is somewhere in the system, either on its way to Government House or somewhere else.

Last month the bill came back from the Legislative Council and it still had in it—and I want to refer to it—section 22G of that act/bill. This relates to bikies in anti-gang laws and the evidence that can be used against them in the anti-association laws. Section 22G subsection (4) provides:

Evidence, a document or other material will not be admitted in evidence under subsection (1) or (2) if the Court is of the opinion—

(a) that the person by whom, or at whose direction, the evidence, document or material was prepared can and should be called by the party tendering the evidence, document or material to give evidence of the matters contained in the evidence, document or material; or

(b) that the evidentiary weight of the evidence, document or material is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the evidence, document or material in evidence; or

(c) that it would be otherwise contrary to the interests of justice to admit the evidence, document or material in evidence.

There we have it. That is almost word for word what we are asking be part of this bill to protect the law-abiding citizens of South Australia, which the government has put in their bill to protect bikies.


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


Ms CHAPMAN: Having identified the very protections in relation to the use of evidence that the government has insisted in their bill that bikies should have, I think you will understand that we should firstly be applauded for ensuring that this same protection is available for law-abiding citizens.

The government says that bikies are entitled to that level of protection, in allowing evidence which, for many reasons, can be unreliable and should not be relied on, but can in certain circumstances be used. The bikies themselves can stand up and say, 'I refer to subsection (4) and I insist that there be some consideration given to the evidentiary weight, to the breach of the interests of justice and for the outweighing of the prejudice principles.'

If a bikie can demand that—and the government has given it to them in this bill in relation to the control orders—then the government must answer this question: why cannot law-abiding citizens have exactly the same protection? He needs to answer that. He can fool people who listen to FIVEaa. He can even fool Leon Byner on this if he likes, but that is a reality.

This government has come into this parliament and written down in black and white the very protections that we are asking for on behalf of law-abiding citizens in this state—the same protections that the government has given bikies. That is all we are asking, and I will just give you one example of why that is so important—just one.

Let us look at licence applications, whether they be for guns or hotels. Next year it might be cafes or hairdressing salons. I am told that wherever cash is, bikies might prevail in gangs. Tattoo parlours—you name it; they will come up. Let me give you one example and that relates to malicious complaints. For example, a disgruntled neighbour—and I think you might appreciate this, Mr Deputy Speaker—might provide information that is clearly incorrect against a neighbouring farmer who wants to get a gun to manage pests, for example, on their property. That is just a pretty small, low-level area, but he says, 'Look, he's got a shocking temper; I'm scared for my wife. We don't want to be reporting this. We need to have this information presented for protection.'

We are just simply saying that there are certain circumstances—even when neither farmer is or may have been a bikie or a terrorist or even a suspected terrorist—where they are able to satisfy someone that there has perhaps been some level of intimidation between these neighbours that would justify the protection of evidence and that would be allowed to go in.

The judge in those circumstances would weigh that up and say whether there would be any injustice that would prevail as a result of that information coming before the court, where the applicant for the gun licence is not allowed to be privy to that information. If they said, 'Yes, it outweighs it,' we understand that and if the judge says, 'That's okay,' then that is all we are asking.

The second situation is what we see in the competitive world of liquor outlets. With firearms, a drug or alcohol, we have licensing processes which set out various standards—usually that the applicant has to be a fit and proper person and that they do not have a criminal record, etc. That is all for good reason because, whether they are dealing with prescription drugs within a chemist shop or the sale and service of alcohol as a refreshment or whether they are managing gunpowder, these are all things that need to be properly managed, so we have these rules.

Understand this: there is competition out there in the real world, and people will make allegations against others in an attempt to have the competitive edge. That is the reality of the business world and that is why we have protections. That is why it is necessary to have judicial oversight over when we use secret evidence.

A well-meaning police officer may come forward with information that they have received, genuinely believing it to come from a bona fide source, not understanding the intricacies of the dispute and/or the rivalry and the competition in the competitive market. That is the real world, and that is why we have this protection. That is all we are asking for.

Now that it has been exposed that the government itself has decided in its own bikie legislation that even bikies are entitled to that standard of protection, that judicial oversight, the Attorney and the government that sits around him need to understand and appreciate—even if the Attorney-General is too ignorant or too precious to admit that he has got it wrong in this regard—the importance of getting legislation through to protect the general community with safeguards. We are asking no more than what the government is already providing to bikies in other legislation which has gone through this parliament. That is all we are asking.

I think it is important that the Attorney-General gets off his high horse, understands the significance and the importance of this legislation, as we do, and progresses it appropriately. He needs to accept and take it on the chin that he has been caught out on this. He needs to say to the people of South Australia, 'I'm sorry for holding up this legislation for so long. I accept that the upper house has had a really good look at this. I now understand that it is, in fact, quite absurd for me to keep standing here trying to claim that this is an unnecessary obligation to add on, that it is inconsistent with my advice from the police'—blah, blah, blah—'when, in fact, I have already asked the parliament to accept it for bikies.' He has been caught out, and it is a disgrace in my view.

The Attorney should not only apologise but he should also say to the people of South Australia, 'This having been identified, I will now accept it.' Or, in the alternative, 'Let's go into deadlock; let's have a conference.' I understand that the Hon. Stephen Wade wrote to the Attorney this morning hoping that this matter could be progressed. We are keen to get on with it. If the government wants to pull the pin and spit the dummy and stamp off like some two-year old, then there is nothing we can do about it, but that will rest on the head of the Attorney.

I am asking his colleagues in cabinet and the people who sit behind him in this parliament to point out to him that they will not tolerate that childish, short-sighted, immature behaviour when the safety of all South Australians is potentially at risk.

The Hon. J.R. RAU: I am just recovering from that. It will just take me a moment. I will just say a couple of things about this. The honourable member spoke for a little while and traversed a bit of space. I have made some notes, and I am able to condense it down to basically three points. Point number one: I made an offer by letter, which I have indicated today we do not wish to proceed with at the present time. I am happy to explain that to everybody here. The context of that is that I was trying to offer—

Ms CHAPMAN: Point of order. My understanding is that the bill has been returned with amendments. It is open to anyone in the parliament to identify whether or not they agree with the amendments, but it is not a matter for further debate. It is not an amendment that has been presented by the government on which they have a right of reply. Each party has presented their position. We could go on arguing the point like this, but in my view it would not be consistent with the standing orders because it is open for the government to identify whether it is going to withdraw the bill or whether it is prepared to go into deadlock. I think he has already indicated that unless these amendments are removed, there is no point in having a deadlock. I think it is reasonable for him to clarify to you, sir, as to whether or not his government is prepared to nominate people to go into deadlock but to have a right of reply is not within the standing orders.

The ACTING CHAIR (Hon. M.J. Wright): I am sure the Attorney is going to do that.

The Hon. J.R. RAU: Very much so. In the context of that, can I make it plain because there appears to be some ambiguity about this? It was offered by way of a compromise that the matter to which the honourable member referred, namely the additional recommendation about some reporting suggested by the select committee—it was offered as an attempt to resolve the matter as a compromised position. That was rejected because it was not enough. When the compromise is rejected, the parties go back to where they start and then we see what happens after that. That is point one. Point number two: the honourable member—

Ms CHAPMAN: Mr Acting Chairman, this is a rebuttal speech. Either we are going through committee or we are not.

The ACTING CHAIR (Hon. M.J. Wright): I did give you a very wide arching debate when you spoke, and I am sure the Attorney is going to address the matters that are of concern to you. I am listening carefully to what he says but I think he is in order at this stage.

Ms CHAPMAN: Can I just clarify this as to your ruling on this? I appreciate that you may not have been immediately alert to all of the subject matter that was presented by the Attorney. Of course, I am sure you would have been listening to the debate when it started at about 4 o'clock in his response to the Legislative Council amendments, not mine but the Legislative Council's amendments. You might have been more carefully listening to mine, but both were quite lengthy in response to what the Legislative Council had put up. What is the course of action here is not a debate between the Attorney and me or any other member of the house about what we think of each other's position or statements that we have made, it is consistent to identify what we are going to do about the Legislative Council's position.

The ACTING CHAIR (Hon. M.J. Wright): I think—

Ms CHAPMAN: And the minister is now getting into a debate about submissions that I have put on the Legislative Council amendments. If he wants to go to deadlock, that is fine. I am simply indicating from our point of view that we are happy to go into deadlock and let's get on with it. We need to hear from the Attorney.

The ACTING CHAIR (Hon. M.J. Wright): I think we will get on with it if you allow the Attorney to contribute and finish what he is saying. Your point of order has been changing from one sentence to another, and I do not think there is a point of order. Attorney.

The Hon. J.R. RAU: Thank you very much, Mr Acting Chair. I will be very brief because I am not attempting to reagitate the whole matter. The second point is this: an apple is round and red, an orange is orange and orange.

Ms CHAPMAN: Mr Acting Chairman, I am not looking for an apprenticeship to be a greengrocer.

The ACTING CHAIR (Hon. M.J. Wright): What's your point of order?

Ms CHAPMAN: This is nonsense. At the very least, if you are going to let him go into rebuttal—

Mr Pisoni interjecting:

The ACTING CHAIR (Hon. M.J. Wright): The member for Unley does not need to add to what is happening.

Ms CHAPMAN: —he does not get to introduce new issues. If you are going to allow him to do rebuttal at all, and I have heard your decision on that, then introducing new assertions—in this case something about apples and oranges. For goodness sake, we are dealing with criminal intelligence here, not pips.

The ACTING CHAIR (Hon. M.J. Wright): I am sure the Attorney is coming to the conclusion of his remarks and he deserves the right to be able to do so.

The Hon. J.R. RAU: My point is that to compare the criminal intelligence provisions in relation to the SOCCA legislation as if it is a revelation that here we are, we are doing it—and as I explained before, one is in relation to taking away a civil liberty, the other is in relation to granting an indulgence. It is like comparing an apple with an orange. They are not the same thing, okay?

The last point about being caught out: look, we are not caught out, for the reasons I just explained. What the honourable member is talking about and what the Legislative Council is talking about is ignoring the advice of eminent legal persons, the Director of Public Prosecutions, SAPOL and PASA and various others and saying that they know better. I do not want to avoid the opportunity of resolving this matter and I am hopeful that even at this late stage in the piece, if we take the thing to deadlock there will be an opportunity for those who have opposed the critical provisions of the bill to review their position. If, as I indicated before, and I want to give some encouragement to this deadlock process, the resolution through deadlock can be achieved through the matters referred to in my correspondence of October of last year, then I think we can do business. For that reason, I think the resolution of this matter lies in the deadlock.

Motion carried.

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