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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-05-01 Daily Xml
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FIREARMS (FIREARMS PROHIBITION ORDERS) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 29 April 2008. Page 2477.)

Clause 27.

The Hon. D.W. RIDGWAY: I move:

Page 18, after line 37 [Clause 27, inserted section 26B(1)]—

After paragraph (l) insert:

(m) to issue a firearms prohibition order,

For the benefit of members present, this is in relation to the review by the Firearms Consultative Committee, and that committee includes some reasonably well-equipped people. Part 2, division 2, section 7(2) of the Firearms Act provides:

The consultative committee consists of six members, appointed by the Governor, of whom—

(a) one must be a legal practitioner of at least seven years standing; and

(b) one must be a person nominated by the Commissioner of Police; and

(c) one must be a person who has, in the opinion of the Governor, wide experience in the use and control of firearms; and

(d) one must be a medical practitioner; and

(e) one must be a person who carries on the business of primary production and uses a firearm or firearms for the purposes of that business; and

(f) one must be a person who has experience in the administration of, or in participating in, a competitive discipline using firearms being a discipline in which shooters compete at the Olympic Games or the Commonwealth Games.

That gives members present an indication of the breadth of that review committee. In all the consultations that I have had—and I indicated this on Monday when we were dealing with this legislation—the law-abiding firearms owners (I called them LAFOs because it was easy to use that acronym) are concerned that they could be subject to a prohibition order, if the ability to impose firearms prohibition orders is abused in any way. We are not alleging or suggesting that it would be, but, if it is, as a result of an overzealous application of it or a law-abiding firearms owner just doing something that is slightly outside what a police officer might see as being a fit and proper procedure, they could be subject to a prohibition order.

If a person is aggrieved by the decision of the Registrar to issue a firearms prohibition order, this is the first of a number of amendments which gives the Firearms Review Committee the opportunity to reject the decision made by the Registrar. In the debate we had earlier in the week, the minister put on the record that, in the past five years (I think he said) only nine decisions were overturned by that review committee.

What this amendment is doing is putting the administrators of this legislation (and, I guess, the police force) on notice, in a sense, because we expect that there will be very few occasions where they will get it wrong. In fact, the review committee has said that, in the last five years, it has got it wrong only nine times.

However, if they get it wrong, a law-abiding firearms owner has an avenue to appeal at zero cost. As the bill is set up now, if somebody wishes to appeal a decision of the Registrar they have to go to the District Court. In 99.9 per cent of cases, when they are the undesirable elements in the community, then we all support this legislation being used effectively to control illegal use of firearms and it is an appropriate course of action for people to have to go to the District Court. However, if somebody has inadvertently been captured by this piece of legislation it seems an unreasonable impost to expect them to have to go to the District Court with all of the costs, without going to the review committee, given its breadth of experience.

I see Mr Bistrovich sitting in the gallery; it is not as if the committee has four or five ministerial advisers on it. With all due respect to Mr Bistrovich, there are much more skilful and highly trained individuals on the committee than he. It is a competent body of people who are appointed by the government to carry out a whole range of functions. These include:

to refuse an application for licence or renewal of a licence;

to impose or vary a licence;

to vary a firearms licence by restricting the class of firearms to which a licence relates;

to vary or revoke for the purpose of an endorsed licence;

to suspend or cancel a licence;

to refuse or revoke suspension of a licence;

to refuse an application for a permit to acquire ammunition;

to refuse an application for registration of a firearm;

to cancel a registration of a firearm;

to refuse to approve the grounds of a recognised firearms club, or a recognised paintball operator, or revoke such approval;

to impose conditions on approval of grounds of a recognised firearms club, or recognised paintball operator or to vary such conditions;

to refuse to approve the range of recognised commercial range operators or to evoke such an approval; and

to impose conditions of approval on a range of recognised commercial range operators or to vary such conditions.

As we can see, the review committee has quite a deal of latitude in what it can and cannot do. It is a group of people who are well trained in their particular fields and have wide experience, whether it be legal, medical, or from a farming background. The Commissioner of Police has a representative and, of course, there are Olympic shooters or Commonwealth Games shooters.

It seems to us, from the opposition point of view, a very reasonable case to argue that, if a law-abiding firearms owner feels as though they have been harshly dealt with, this gives them one opportunity to go to that Firearms Review Committee and say, 'Look; this is what has happened.' I know that the Registrar will provide the same information that he has used to make the decision on imposing a prohibition order. He will then make that same information available to the committee, and I suspect that in 99.9 per cent of the cases it will uphold the decision of the Registrar. I suspect that, on very rare occasions, a mistake will be made. However, it seems reasonable that these groups have raised these matters with us because they are concerned about being inadvertently captured by this legislation.

I have had a number of briefings with Sergeant Les Buckley, who is sitting opposite us here. He has made it very clear that that will not be the police's policy and that the target will be the undesirable elements in the community. I had the good fortune to have a briefing with the Firearms Branch at police headquarters only last week. We discussed a range of issues but not this particular legislation and the review of the act. The branch made it very clear that its policy was that this legislation is aimed at bikies and undesirable elements in the community. It was certainly not aimed at a primary producer who, inadvertently, might leave one round of ammunition in his pocket which he then puts in the glove box of the ute, or on the parcel shelf or tray, which then rolls out onto the floor.

We understand that SAPOL's intention and the government's intention is to pursue the people that this legislation is targeted at. However, we also understand the concerns of the law-abiding firearms owners in our community. It seems reasonable to us to allow this particular amendment to be passed. I almost expect that the government will not support this, unlike the other amendments that I have moved, but I think it seems reasonable to have support for this to allow people one avenue of appeal. If the review committee agrees with the Registrar then that is two strikes and, by all means, go to the District Court and argue your case there. However, this gives people that one opportunity.

In one sense this is a test case because all the other amendments I have are consequential, or certainly relate to it (other than, perhaps, my amendment No. 8). With those few words I urge members to support the amendment.

The Hon. P. HOLLOWAY: I urge members to oppose the amendment. The government did accept the previous three amendments moved by the Hon. David Ridgway, because it agreed with him that, really, this legislation is not about legitimate firearms owners, but there is a very important principle at stake here. The Firearms Review Committee is appointed, incidentally, by the minister, so it is not independent in that sense, as the court is.

With the appointments, historically (and I have included the president), the people we put on it are the sort of people who are familiar with and a part of, in most cases, the legitimate firearm-owning community and they understand those issues. Their expertise is there to assess issues related to the registration and licensing of firearms. That is their role. However, here we are specifically talking about firearms prohibition orders. We are talking about people on whom there is criminal intelligence, that they may have committed serious crimes or are about to commit a crime and should not have a firearm.

If we were to put these people through the firearms committee first, it would mean that the only way that body could consider these matters would be to have access to criminal intelligence, and there would be no control to prevent the release of that information. Suppose some information became available to police that someone had taken out a contract to kill somebody. In that sort of situation, should you have a firearms review committee whose role is to look at licensing and ensure that people have not been denied, through the ordinary licensing and registration process, access to a firearm?

We know that in the vast majority of those cases the Registrar's decision is upheld. However, if we are talking about that sort of serious criminal intelligence, where life might be at stake, do we really want a body which in most cases does not have any legal expertise and which is not open to the public? Do we really want such a body to have access to this information, particularly when there is no control over it?

It is generally accepted that in relation to matters of criminal intelligence legal expertise is required, and that is why, with respect to firearms prohibition orders, the provision is there that it should go to the administrative division of the District Court, which is the appropriate body. It has the expertise and one can trust the court, with its experience, not to release that criminal intelligence, which could be very damaging and put safety at risk.

Another issue is that, if the committee were involved in these sorts of decisions, its safety could very well be at risk. If it became known (as it often does in these criminal circles) that the review committee was considering a firearms prohibition order, we know that it is not beyond some of the groups of people from whom we are trying to keep firearms away to make threats, directly or through third parties, to overturn the issue. Do we really want to put the committee at risk? This is really just a lay committee appointed to ensure that the operation of the registration and licensing of firearms is done properly.

The final matter is: do we really want the standard of what is appropriate for a firearms prohibition order to be set by six people on the Firearms Review Committee, rather than an independently constituted court that has the proper legal expertise? There is a principle in our community that those sorts of important decisions should be made by the court, rather than by the six members of the Firearms Review Committee, who, incidentally, are appointed by the minister.

So, for all those reasons I think that it is imperative that we reject this amendment. I do not think that any government could really allow a situation where the sort of information that relates to some of the most potentially dangerous people in our community goes to a committee where there is no control over its release and where it may even put the safety of the committee at risk. The appropriate place for that consideration to be made is the administrative division of the District Court, and that is why it is specifically in this legislation. That is the appropriate body, and that is why I urge members to oppose the amendment.

The Hon. SANDRA KANCK: I indicate that the Democrats will be supporting this amendment and those that follow so that I do not have to make the same remarks again. We are doing so on the basis of what this legislation is about. It imposes a higher standard in terms of being able to possess firearms and, hence, the title of the bill is the Firearms (Firearms Prohibition Orders) Amendment Bill. We are putting in firearms prohibition orders, and we have never had them before.

When we discussed this matter on Tuesday, I went through some of the unintended effects and impacts that these firearms prohibition orders might have, particularly for people in regional and remote areas. It is because of those effects that I feel we need to maximise the opportunities to ensure that any unfairness is properly dealt with.

This amendment would refer the matter to the Firearms Review Committee. It does not mean that the committee will overturn the order; it simply means that it will review it. If, as the minister suggests, there is criminal intelligence that the person under consideration has a contract out on someone who is about to be shot, the Firearms Review Committee will obviously listen to what it is told by the police and will say that it upholds the original decision.

The committee will comprise intelligent people, and the Hon. David Ridgway has gone through the list of the qualities and experience of it members. For example, there will be a legal practitioner, someone nominated by the Commissioner of Police, a medical practitioner, and so on. These are not lightweights in any sense of the word, and they will make a sensible decision.

Surely the government has made certain that the people who are on this committee in the first instance are people who will have the capacity to undertake the review, so I see no difficulty in supporting this amendment. I think that it is important as part of the fairness procedure, and it is important because of the unintended impacts of firearms prohibition orders.

The Hon. P. HOLLOWAY: I will address one issue. The honourable member talks about the expertise of the committee. If this amendment were to get up, when I as minister were considering appointing a committee, I would have to take into consideration the fact that, as I said, its safety could be placed at serious risk.

If this committee is to become a pseudo tribunal rather than just an advisory body in relation to the review of registration and licensing, and is to become an assessor of criminal intelligence, the whole role of this body would change. As minister I would have to consider who to appoint. If it requires legal expertise, you would have to change the whole membership of the committee away from the lay people who we believe make a great contribution in relation to licensing and registration issues and change it to a pseudo tribunal because it would have completely different powers.

These are serious issues. It is nonsense, as we are not talking about somebody who has had a registration knocked back because they did not lock up their guns properly, but about someone who might have a contract out to kill somebody. You are talking about all sorts of issues that put the role of the committee way beyond what is ever envisaged and we would therefore have to consider the nature and type of the committee. You cannot just lump this committee with those sorts of tasks, and that is why I appeal to members to reject it. If this gets up and the review committee is to have these sorts of roles, it would be negligent of me as minister if I did not consider the issues of protections and other things we need to consider. We would have to completely change the nature of the committee.

The Hon. Sandra Kanck says that these were the sorts of people who were on there. It would no longer apply, and you could no longer appoint those sorts of people. You would have to set up a tribunal and alter the whole legislation. If people do not want the bill, this is a good way of doing it.

The Hon. D.W. Ridgway: We want the bill.

The Hon. P. HOLLOWAY: You don't really, because you must know. One of these days you could be minister for police. Are you going to have a situation where you want information about potential criminal actions in the hands of a group of lay people, ordinary firearms owners, who are there to assist the administration of the Firearms Act, to ensure people are not knocked back unfairly for licensing or registration? They are not there to interpret whether or not somebody is a dangerous criminal: it is far better that the courts do that.

To give an example of the decisions we might need to make, we had the shooting in Wright Street six or seven years ago and the Tonic Nightclub incident with firearms. We are introducing this bill to try to keep firearms out of the hands of those people. It is not about legitimate firearms owners being unfairly knocked back for registration or licensing because of a technicality. Also there was a shooting on Eyre Peninsula. There have been a number of cases where the police need to act quickly and dramatically in relation to firearms and to take those sorts of decisions where you have information, as in the Tonic Nightclub.

I would like to keep the membership of that lay committee, because they do a good job and understand the problems ordinary legitimate firearms owners face. As minister I have tried to ensure that the act moves towards getting firearms away from the hands of people who should not have them, while ensuring that the ordinary law-abiding firearm owner (LAFOs, as the shadow minister put it) is not unnecessarily inconvenienced and should have protection. The whole thrust of the bill is to say that, rather than focusing on the legitimate firearms owner, let us look at the people who use firearms.

Increasingly the firearms used to commit crimes are either stolen from various sources or illegally manufactured or imported, and that is where I want our police attention to go. I want as many police as possible to focus on those criminals not getting guns and not on registration and licensing issues, and that is why we made the changes the other day. We do not want to unnecessarily burden the ordinary firearms owner who goes to clubs and sporting shooters associations. We do not want to inconvenience them. We want police to focus on illegal firearms where the real problem is, and that is why there needs to be a difference and why I would argue for police being able to act quickly with serious criminals to make firearms prohibition orders. The accountability for that should be to the court, which is the expert body to ensure that accountability takes place.

The Hon. A. BRESSINGTON: I will not support the amendment. The comments the Hon. Paul Holloway just made are very legitimate. We have to understand that this bill has been put before us to deal with the criminal element. It is not about interfering with licences of legitimate firearms owners. We have a raft of other legislation before this parliament that targets organised crime and other areas, and I imagine that this is just one piece of the jigsaw puzzle we are debating. It is an unfair responsibility to put on members of the committee, who are doctors and psychiatrists, to have to wear the burden of the information that they would need to know if this amendment and the other two go through. We have to keep a clear understanding of how people in organised crime work. They use intimidation, threats and harassment and, if they want something badly enough, they do not blink at killing somebody.

We need to be careful about placing that sort of burden on normal, average citizens who are basically there carrying out a civic duty to make sure that the licensing process can go through easily. I think we need to be very careful about interfering with this legislation to the degree that we will burden everyday citizens with that information and responsibility.

The Hon. M. PARNELL: The Greens support the amendment. We believe that it is an important and worthwhile additional check and balance over—let's face it—weapons that kill. I am not convinced that the minister is right in saying that the system will be unworkable. I think we need to apply the greatest level of scrutiny to all aspects of firearms ownership and use, and I believe that this amendment is a sensible addition to the regime.

The Hon. D.G.E. HOOD: Family First opposes the amendment. We have supported a number of the opposition amendments, because I think they were good additions. However, in this case we are dealing with people who have firearms prohibition orders against them, which is a very serious matter, indeed, and they are not issued lightly. I have listened to the arguments of the Leader of the Government about the intelligence required to make an informed decision on this matter for a committee which is an advisory body, and which I believe should have some powers (which we discussed the other day), but I think this crosses over the line to dealing with very serious criminals. On that issue, I do not think the police should in any way be restricted in doing the job that they need to do. For that reason, we oppose the amendment.

The Hon. D.W. RIDGWAY: In relation to the role of the committee as set out in the bill, when a person is aggrieved by the decision of the Registrar—and I cite, for example, new section 26B(1)(a), to refuse an application or a licence, or the renewal of a licence or an application for a permit authorising the acquisition of a firearm—what information does the Registrar provide to the review committee for that group of people to be in a position to review that decision?

The Hon. P. HOLLOWAY: If one looks at what has happened with the existing committee, I am advised that, in the first instance, the committee would just be provided with the short grounds, such as whether it was in the public interest, fit and proper, and so on. I understand that there is a recent case where there was some criticism of the Registrar in relation to the amount of information provided, and I am advised that, as a result of that criticism from the committee, the Registrar is now providing fuller information in relation to that matter. Obviously, we would expect that to continue. But, of course, that is the right thing, where the review committee can request that sort of information, and that is why it is important to have them, to ensure that the legitimate grounds are given.

The Hon. D.W. RIDGWAY: If a person made an application for a licence renewal or a permit authorising the acquisition of a firearm, and some criminal intelligence existed that identified that person as being not fit and proper, or that they were the contractor who was going to undertake a job to shoot someone, that would be information that the Registrar would have and, quite rightly, use to refuse that permit. If that person then went to the review committee, in what form would that information be given to the committee?

The Hon. P. HOLLOWAY: That is a quite different approach. If there was a case where the police became aware of information that the person was a danger to people or to themselves and it was necessary to issue a firearms prohibition order, any existing licence and the registration would automatically be cancelled.

The Hon. D.W. Ridgway: What if they were just coming to apply for a licence?

The Hon. P. HOLLOWAY: Does the member mean someone for which—

The Hon. D.W. Ridgway: Maybe I can ask the question properly, rather than—

The Hon. P. HOLLOWAY: If they have a firearm prohibition order issued against them, obviously, the application would be rejected, and that is when they would be able to apply to the court. If they already had a licence, I think that is the only situation where this would come into play. If the firearms prohibition order is issued, obviously, they cannot have a licence, they cannot have firearms and that is what is covered.

I am not quite sure that I understand where the honourable member is coming from in relation to the question. Once a firearms prohibition order is issued, the matter of registration and licensing does not really come in. It is a matter of whether that person decides to challenge the fact that there is a firearms prohibition order; and, as we have just argued, we believe that the court is the appropriate body for doing that.

The Hon. D.W. RIDGWAY: I think the minister may have misunderstood. In its current structure in the bill, clause 26B(1)(a) provides:

(1) A person aggrieved by a decision of the Registrar—

(a) to refuse an application for a licence, or renewal of a licence or an application for a permit authorising the acquisition of a firearm;

This was the section that I was amending by inserting a firearms prohibition order, so it is the existing legislation. Two comments ago the minister said that the committee would be given information by the Registrar to support the Registrar's decision that he did not issue a permit for this person to acquire a firearm for the following reasons. My question was: if one of those reasons was that there was some criminal intelligence that suggested this person was not fit and proper—so actually it has nothing to do with a prohibition order; it is about the function and role of the committee—what information in relation to the criminal intelligence, if that exists, would the Registrar give to the committee to review the decision to apply to purchase a firearm?

The Hon. P. HOLLOWAY: I think what the honourable member is asking is: under the current system and the new system, has criminal intelligence ever been part of the assessment process? The advice I have is no. I think that is essentially what the member is asking, that normally if a person is not considered a fit and proper person because of their criminal record and/or history, then they would be refused an application for a licence.

The Hon. D.W. RIDGWAY: Yes, but if they then go to the review committee and appeal that refusal, what information does the Registrar give to the committee to say they are not fit and proper, and for these reasons?

The Hon. P. HOLLOWAY: I am advised that the committee would get a full brief of the facts, basically the same as the Registrar does. So, for example, if someone who had a murder conviction applied to get a firearms licence, all that information would be supplied to the Firearms Review Committee. So, it would get that brief, but that would not include criminal intelligence, and I am advised that it never has done so.

The Hon. D.W. RIDGWAY: So, if the person who has been refused was refused on the basis that the Registrar believed, because of their associates, behaviour, past record, etc. that they were not fit and proper and if it was of a criminal intelligence nature, am I right in assuming that the only information that would be provided to the committee would be that there is sufficient criminal intelligence for the Registrar to recommend that this person does not get a permit?

The Hon. P. HOLLOWAY: I refer the honourable member to new section 26B(3) which provides:

If a decision was made because of information that is classified by the Registrar as criminal intelligence, the only reason required to be given is that the decision was made on public interest grounds.

I believe the provision in the existing act is essentially the same.

The Hon. D.W. RIDGWAY: So, in effect, in amending this clause and giving the role to the Firearms Review Committee to review a decision to issue a firearms prohibition order, the argument the minister mounted earlier was that it would be inappropriate for that criminal intelligence to be given to the committee, but subsection (3) clearly provides:

If a decision was made because of information that is classified by the Registrar as criminal intelligence, the only reason required to be given is that the decision was made on public interest grounds.

Surely that would cover the situation where you have inappropriate information of perhaps a risk to public safety being given to the review committee.

The Hon. P. HOLLOWAY: But when that happens the review committee does not have to agree with the decision. If the only information it is provided with is the case now and the case in the future under subsection (3) and that the decision is on public interest grounds, it does not have to agree with it. What we are saying is that firearms prohibition orders should go to the court, because that is where the matter should properly be determined and that is the right body to consider criminal intelligence. That is essentially the situation now. The judge would be the one who would review the criminal intelligence. That is what we are saying; that is where it should be done. So, really, it is not that different from what we have now.

The Hon. D.W. RIDGWAY: I am a little unclear, because it seems that now, if the Registrar refuses a permit to acquire a firearm and the person then appeals to the review committee, if the information that the Registrar used to refuse a permit to purchase was of a criminal intelligence nature, all the Registrar has to do is say to the review committee that the only reason required to be given in that decision is that it was made on public interest grounds.

The Registrar would go to the committee and say, 'As a result of criminal intelligence, and in the best public interest, this person should not be given a permit to purchase a firearm.' I would have thought that that pretty reasonable group of people—a legal practitioner; a person nominated by the Commissioner of Police; a person who, in the opinion of the Governor, has wide experience in the use of firearms; a medical practitioner; a primary producer; and a competitive shooter—could say, 'Okay, there is criminal intelligence that says that this person should not have a permit to buy a gun, and that is why we have imposed a firearms prohibition order.' I would have thought that that reasonable group of people—well-educated and well-equipped to make a decision—would uphold the decision of the Registrar.

The Hon. A. BRESSINGTON: Could the minister clarify this, because I am very confused? The review committee is there to examine licences—just normal old farmers and whoever else, range shooters, for example. They go to the review committee to get a licence. The prohibition orders are put in place separate to that. If someone appealed that, the matter would be reviewed by the District Court—not by the review committee because it is a prohibition order. It is very different to a gun licence. We have this in two bits now: licences and prohibition. The prohibition order is very different, the process is very different, and the reasons are very different, and therefore would they be appealing to the District Court rather than to the review committee just for being knocked back on a licence?

The Hon. P. HOLLOWAY: Yes. I think that the Hon. Ann Bressington has summed it up pretty well. Because the Leader of the Opposition started to raise a number of other questions about clause 7, he tried to confuse the two things. The leader's amendment was to bring the firearms prohibition order in under this section, but this section, really, is all about licensing. The firearms prohibition orders are in a separate—

The Hon. D.W. Ridgway interjecting:

The Hon. P. HOLLOWAY: Yes, but the leader is trying to change the function. They are in a separate section of the act, and that is why I think there is some confusion. We will try to keep the two separate because they are separate things with different objectives.

The Hon. D.W. RIDGWAY: I will make one last comment. It seems strange where you have someone who wants to purchase a firearm, and the Registrar can refuse that application to purchase a firearm on a range of grounds, one of which is criminal intelligence. If a person who has a prohibition order imposed upon them goes to the review committee and the review committee wants the information and if the Registrar comes to the review committee and says, 'These are the reasons why, and one reason is that we have intelligence which indicates that this person is not a fit and proper person and it is not in the public interest to allow them to have a firearm', they will not get a firearm. I explained this very early in my contribution, but I am concerned about the very small percentage of people who may be accidentally trapped.

We support wholeheartedly the intentions of this legislation, but someone may be accidentally captured as a result of some negligence, I guess, on their behalf. They have a prohibition order imposed upon them and they must then go to the District Court because it has been administered poorly; a wrong decision has been made. This gives them that one opportunity, in our view, to go to the review committee and say, 'Look, I think this is inappropriate.' The Registrar can put his or her case, and I would be certain that, in 99.9 per cent of the cases, the Registrar's decision would be upheld. As the minister said earlier in the week, in the past five years only nine decisions have been overturned by the committee in relation to licensing and all the other functions of the review committee.

I do not want to prolong the debate any further, but it is important for members to be aware that it is only a very small percentage of people who potentially could get captured by this legislation. I know that the policy of SAPOL is not to pursue those people—they are after the bad eggs in our community. We all support that, but I am trying to offer a small level of comfort and protection for the law-abiding firearm owners (LAFOs) in our community.

The Hon. P. HOLLOWAY: If someone is a risk, they will have their licence taken off them. That is the point. If they wish to challenge that, the way to do that through the firearms prohibition order provisions is to challenge it in the courts. The courts can then assess the criminal intelligence. At present and in future we propose that the Firearms Review Committee would not have access to that. If someone is knocked back and it is there, people have other means of challenging it. In that sense, we are really not changing the situation at all. This new bill is all about the introduction of firearms prohibition orders, and there are separate provisions for that. If someone is a risk, they would have their licence cancelled. If they want to challenge that they will do it in the courts, and so they should.

Amendment negatived.

The Hon. D.W. RIDGWAY: I quickly glanced at parliamentary counsel. That was a test amendment. If it had been supported, we would have had to deal with the others because, if we did not pass the other amendments, it would not be fit and proper legislation. I will not proceed with those further amendments.

The Hon. SANDRA KANCK: I move:

Page 20, lines 7 to 21 [Clause 27, inserted section 26C(5) to (10)]—Delete subsections (5) to (10) (inclusive)

This amendment is about criminal intelligence. To my mind, one of the unfortunate things we are seeing in this government is that it is very keen to have the courts making decisions on the basis of secret evidence. The consequence of that, of course, is that the results the courts will give will be based on law, but certainly there is no guarantee that they will be based on justice. We have seen this with a number of different bills that the government has introduced in recent times, including the Serious and Organised Crime (Control) Bill and the Liquor Licensing (Power to Bar) Amendment Bill, as well as, of course, this bill.

Under proposed new section 10B(5), the Registrar can issue a prohibition order on the basis of criminal intelligence. The only reason that needs to be given is that it is in the public interest. Anyone aggrieved by a final decision of the Registrar can ask for the decision to be reviewed by the Firearms Review Committee, but the wording of section 26B does not actually explain how the Firearms Review Committee would be able to deal with a matter of criminal intelligence. I do not know whether it would get told the same thing, that it was made in the public interest, or whether it would be given extra information. If the committee is simply told that it is in the public interest, does it have to trust that the Registrar has it right?

If the Firearms Review Committee upholds the Registrar's decision there is a further right of appeal to the District Court, which is enshrined in proposed new section 26C before us. I am moving to strike out subsections (5) to (10) of this new provision. The reason I am doing this is, first, that I think we have to be very wary of decision-making based on secret evidence; and, secondly, that the courts have the ability to hear matters in camera under public interest immunity. That is very important for members to consider when they are looking at the bill in its current form. Under those circumstances, I cannot see any reason to apply the provisions in subsections (5) to (10), given that the court can hear such matters in camera.

If we allow the bill to go forward in this particular form, I believe the gains in convictions, which effectively come from legal shortcuts, will be offset by a lack of confidence in our justice system. The bill would give the Registrar the right to apply for secrecy on the basis of criminal intelligence and, if that was refused, to withdraw the information. Now, it is possible that the Registrar might get it wrong, and I remind members of how criminal intelligence was used in the Haneef case by the Australian Federal Police. Quite clearly, in that example, the police got it wrong, the criminal intelligence was wrong. We need to look at examples like that to see the miscarriages of justice that occur.

The court ought to be in a position to sort this out; the government (I assume) appoints our best and brightest people to be the judges in our courts precisely so that they can look at things like this and sort them out. My amendment allows the District Court to decide whether or not information should have public interest immunity, and I think that is about giving the discretion to the court where it traditionally—and rightfully—belongs.

The Hon. P. HOLLOWAY: The government opposes the amendment. Criminal intelligence is defined in section 5 of the act to mean:

...information relating to actual or suspected criminal activity (whether in this state or elsewhere), the disclosure of which could reasonably be expected to prejudice criminal investigations, or to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement—

or endangers a person's life or physical safety. For obvious reasons, criminal intelligence cannot be disclosed to the people about whom it relates.

Subsections 26C(5) to (10), which the Hon. Sandra Kanck seeks to remove, ensure that information the court has determined to be criminal intelligence, as per the definition in section 5 of the act, must be kept confidential. That means that the information must not be used except for the purposes of the proceedings, and must be disclosed to the appellant, the appellant's representative, or any members of the public. Evidence and submissions about the information must be received and heard in private in the absence of the appellant and his or her representative and not be disclosed to the public, and the information is not disclosed in the court's reasons for decisions.

These provisions are important; without them information relevant to proceedings under proposed part 4A will be unable to be put before the court, as to do so would risk disclosure of the information to the people about whom it relates. Clauses protecting information—

The Hon. Sandra Kanck: They would know, it is about them.

The Hon. P. HOLLOWAY: They may not know the details of it; it could manifestly change it. However, sections protecting information that would meet the definition of criminal intelligence in the act are by no means unique. Information in the nature of criminal intelligence that is tendered as evidence in court proceedings is protected from disclosure under a number of South Australian acts, including the Security and Investigation Agents Act, the Liquor Licensing Act, and the anti-fortifications provisions of the Summary Offences Act.

South Australia is not alone in recognising the need to protect highly sensitive information from disclosure in court proceedings. Section 76(2) of the Western Australian Crime and Corruption Act 2003, for example, protects from disclosure criminal intelligence tendered in review proceedings under that state's anti-fortifications provisions. I note that this provision has recently been upheld as constitutionally valid by the High Court in the Gypsy Jokers Motorcycle Club Incorporated v the Commissioner of Police (that would be the Western Australian commissioner, of course).

Subsections 26C(5) to (10) make clear that it is the court, not the Registrar, that determines whether information tendered to the court is criminal intelligence as defined in section 5. I think it is important to note that it is the court that makes that determination, not the Registrar. The government's position is that information that could prejudice criminal investigations, disclose a confidential source of information, or place a person's life or physical safety at risk should not be disclosed to people about whom it relates. For this reason the government opposes this amendment.

Of course, the courts will have full access to that information and they will, essentially, determine what is criminal intelligence—in other words, what can be released. The Hon. Sandra Kanck referred to the Haneef case. All I can say about that is that the new commonwealth government is reviewing that case—and appropriately so—so let us see what is the outcome of that. I think the message will well and truly be that, if there are errors in relation to that, they will ultimately be disclosed. I think the public processes we will see through that review will demonstrate that that protection is there ultimately for the public.

The Hon. R.D. LAWSON: I rise briefly to indicate that the Liberal Party had serious concerns about the use of criminal intelligence. This issue arose originally in relation to the security investigation agents legislation which was debated a couple of years ago. Our concerns were allayed by the fact that, in relation to that legislation, judicial oversight exists over the question of whether or not criminal intelligence is being used and being used appropriately.

Absent that judicial oversight, we would not have supported the unregulated use of criminal intelligence, but there is no doubt that today much information that police rely upon comes from sources that police have by way of informants, and it is in the public interest to encourage informants to provide information to police. However, if the personal safety of informants is risked by their being identified to the people about whom they are informing, clearly that sort of information will dry up to our law enforcement officers. It is important that the police have continued and increased access to that source of information.

We would not support the unregulated use of criminal intelligence to affect the lives of citizens. If there is a mechanism for judicial oversight or judicial discretion, we are satisfied that is appropriate; that is what led us eventually to the view in relation to the earlier legislation dealing with the security investigation agents to support, with an amendment, the proposals that the government was then introducing. For the same reasons, I believe that in relation to this bill we should support the government's position and not support the amendment proposed by the Hon. Sandra Kanck.

Amendment negatived; clause passed.

Remaining clauses (28 to 38), schedules and title passed.

Bill reported with amendments.

Third Reading

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (12:04): I move:

That this bill be now read a third time.

I thank the assistants from the Attorney-General's Department for their advice on this bill and I thank the council for its support.

Bill read a third time and passed.

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