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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-02-19 Daily Xml
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CRIMINAL INVESTIGATION (COVERT OPERATIONS) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 18 February 2009. Page 1337.)

The Hon. R.D. LAWSON (15:24): I wish to make a brief contribution on the second reading of this bill, which has been some time in the making. It arises out of discussions that have been ongoing for a number of years in the Standing Committee of Attorneys-General and the Australian Police Ministers Council.

A joint working group, which was established by those bodies, produced a discussion paper in February 2003 and a final report in November that year. The report deals with the four general topics mentioned in the minister's second reading explanation. From my point of view, the two important issues in the bill relate to the subject of assumed identities and the witness protection scheme; and in respect of both subjects there is currently no South Australian legislation.

Dealing first with assumed identities, an assumed identity is, as the minister said, a false identity used by a law enforcement authority for a limited period for the purpose of criminal investigation or the gathering of criminal intelligence. The Wood Royal Commission into the New South Wales Police Service found that the lack of legislation in this particular area in that state led to uncertainty and a lack of accountability. There was no specific legislation and, in order to introduce some certainty, legislation was proposed.

It is noted that legislation of this kind has been passed in differing forms in other jurisdictions. The bill deals with a number of aspects, including the procedures for applying for an assumed identity authority, the grounds for issuing an authority for an assumed identity, the contents of that authority, the period for which the authority remains in force, the agencies or bodies from which false identity documents can be obtained and whether the issuing of those documents is mandatory or voluntary, the scope of protection from criminal liability, and the provision of civil indemnity for people using authorised false identities and the people who have issued them. Also, it provides for sanctions for the misuse of false identities and, importantly, for cross-border recognition of authorities, and the participation in this scheme of false identities of persons who are not law enforcement officers. It also contains miscellaneous provisions for record keeping, auditing and reporting.

It is appropriate, in my view, and in the view of members of the Liberal Party—as, indeed, it is the view of the government—that the regime relating to assumed identities ought to be laid down in statute so that, where it is appropriate to use an assumed identity, the person using the identity, the authorities authorising it, those who are encouraging the person to assume the identity and those who are asked to provide evidence in the form of certificates, and so on, know where they stand. It is entirely appropriate that the uncertainty that exists at the present time about these matters be resolved and be set out clearly.

I move to the second aspect of the bill, that is, witness protection. Once again, there is no legislation in South Australia regarding witness protection schemes. Everyone would accept that there are occasions when a witness giving evidence in court proceedings ought to have protected their true identity and information about their address and family, and so on.

It is a notorious fact that there will be cases where a witness may suffer in consequence of having given evidence in court that is contrary to the interests of a particular offender or accused person. The government is fond of pointing the finger at bikie gangs, and it is undoubtedly true if one reads the information about the activities of outlaw motorcycle gangs that there are cases where there is intimidation, threats and the like against witnesses. Indeed, in the outlaw motorcycle context, as indeed in the context of the Mafia, witnesses simply will not testify, for fear of repercussions. The advantage of having a legislative scheme for the protection of witnesses is that the witness will, one hopes, be prepared to come forward and testify if they can be assured that their anonymity will be preserved.

There is already legal authority that the identity of a witness can be concealed even in the absence of any statutory protection. Cases decided on common law principles have established this fact, including cases in our own state. The effect of those decisions, some of which are referred to in the minister's second reading explanation, is that there is a judicial discretion to allow undercover operatives to give evidence without revealing their true identity. However, when a matter is left to judicial discretion, the potential witness can only be advised as follows: 'Well, there is no certainty that your identity will be preserved and the information about you and your family will be preserved. We will be asking the court to do it and we are confident that the court will make an order and the judge will exercise the judicial discretion in favour of our application.'

In those circumstances one cannot be entirely sure, and a witness may well say, 'Well, if it is all left to judicial discretion, I'm not prepared to embark on the exercise, because the discretion might be exercised against me.' Accordingly, it is appropriate that this rule be placed in legislation so that the witness and the adviser can be assured by looking at the act itself that the advice is correct and the identity will be preserved.

The government suggests that legislation of this kind serves a number of public interests. First, it protects the personal safety of the witness, which of course is the primary objective, but also it means that the witness can continue to operate as a useful undercover officer; in other words, the witness's cover is not blown by giving evidence in a particular case but they can continue to operate. I think the government also makes the point, which I think is a good point, that concealing an undercover operative's true identity will have the effect of encouraging police officers and others to actually participate in undercover operations, because it will give them confidence that if necessary their safety and identity will be protected. So, by removing the uncertainty about the status of witnesses and officers who give evidence under a witness protection program, we should improve our system of criminal justice.

The legislation sets out a scheme for the obtaining of witness protection, and it provides that the Commissioner of Police (or, by delegation, a deputy commissioner) must be personally satisfied that disclosing the person's true identity will endanger them or someone else or will prejudice current or future investigation of a criminal offence. The decision-maker has to actually complete a formal certificate which outlines a wide range of information, including:

the assumed name of the person;

the period during which the operative was involved in the operation;

the name of the agency;

the date of the certificate;

the grounds for giving the certificate;

whether the operative has been found guilty of an offence and, if so, particulars of each instance;

whether charges are pending or outstanding and, if so, particulars of each instance;

whether a court has made adverse findings about the credibility of the operative, and the particulars of each such instance;

whether the operative has made a false representation where the truth was required, and particulars of each instance; and

anything else known which is relevant to the credibility of the operative.

This certificate will be made available not only to the court before whom the witness is appearing but will also be made available to the defence. Its effect is that the defence is restricted in its ability to cross-examine in relation to the credibility of the witness, as only the information in the certificate will be available. That raises a number of issues. For example, one of the matters that will be disclosed in the certificate is whether a court has made adverse findings about the credibility of the operative. It may well be that an operative has given evidence on one, or more than one, occasion previously in a jury trial and the evidence has simply not been accepted by the jury. There is no finding to that effect, of course; it is not as if it were a trial by judge alone, where the judge has to say, 'I don't accept the evidence of a particular witness.' In the case of a jury trial it may well be that the jury does not believe a word of what the officer has said on a prior occasion, but that cannot be recorded on a certificate.

Another matter to be disclosed is whether the operative has made a false representation when the truth was required, and particulars of each instance. I imagine that provision, whilst it sounds fair enough, is actually a dead letter. Clearly if the Commissioner, or a deputy commissioner, is aware of false representations being made where truth is required, they simply will not put forward that operative as a witness of truth.

There is also the general provision that the certificate must disclose anything else relevant to the credibility of the operative. However, it does not specifically say (as one would expect it to) whether, for example, the witness has been promised or offered some financial reward or other benefit—which is often a matter of great interest to defence counsel in attacking the credibility of witnesses.

So I ask the minister to indicate, in his second reading response, the considerations that went to the inclusion of matters such as whether a court has made adverse findings about the credibility of the operative, as well as in relation to the false representation provisions.

The Criminal Law Committee of the Law Society of South Australia, in a submission to the Attorney-General dated 12 November 2008, made a number of points in relation to this bill. I think it is truly deplorable that, when the shadow attorney-general in another place referred to the Criminal Law Committee of the Law Society, the Attorney—in parliament and on the record—described them as 'enemies of the people' and 'the usual suspects'.

These are disgraceful comments by the first law officer and reveal the shallow and unprincipled approach of this government to the criminal justice system. The Premier, always ably supported by the Attorney-General, is keen to paint the legal profession as scapegoats because they deem it in their political interests to do so.

My view is that the Law Society's comments are invariably helpful and thoughtful and worthy of consideration. One might not agree with them. It may be true that they generally take a civil libertarian approach to criminal justice matters, but they are legitimate opinions which ought to be expressed and, more importantly, ought to be heard.

For the Attorney-General to describe their authors as 'enemies of the people' and dismiss them as 'the usual suspects' is, as I say, absolutely deplorable. The letter from the Criminal Law Committee states:

Dear Mr Attorney

Criminal Investigation(Covert Operations) Bill 2008

The Society's Criminal Law Committee has considered the above Bill. Accordingly, the Society provides the following comments.

The Bill has a range of purposes. It provides for undercover operations and assumed identities of certain persons. The policy behind the Bill is worth while.

I interpose that I think that that is absolutely fair comment: the policy is worthwhile. The letter continues:

However, there are a number of provisions to do with the protection of the identity of a witness that are of concern. These provisions in Part 4 represent a substantial departure from the common law position and therefore considerable care needs to be taken in the implementation of such legislative proposal. The explanatory remarks indicate that such a departure should only occur in exceptional circumstances. That policy has most recently been recognised by the House of Lords decision in R v Davis (2008) UKHL 36 delivered on 18 June 2008.

Of course, the House of Lords, sitting in its judicial capacity, is the highest court of appeal in the United Kingdom and a court to which it is always appropriate in Australian jurisprudence to have due regard. The Law Society's letter continues:

Those fundamental principles are worth re-stating and include the following:

It is a long established principle of the common law that a defendant in a criminal trial should be confronted by his accusers so that he/she may cross-examine them and challenge their evidence. The principle originated in ancient Rome and has been recognised throughout history and even in cases where the problem of witness intimidation has been extreme.

That right is recognised in the United States as a constitutional right. It is as an essential and fundamental requirement of a fair trial.

It is an important right that has been recognised in New Zealand, Canada, Australia, South Africa and elsewhere.

The right to confront a witness is basic to any civilised nation of a fair trial.

The letter actually said 'nation' but I am sure that that is a typographical error—'notion' of a fair trial. It continues:

That right includes the right for an accused person to ascertain the true identity of a witness where questions of credibility are in issue.

Protective measures for witnesses are recognised, such as with a closed court, suppression orders and other current provisions in the Evidence Act for giving of evidence by closed circuit television or other ways that protect a witness.

It is not a new problem and hence demonstrates how such processes have historically been recognised as infringing fundamental rights.

Such protective measures were recognised by that House of Lords decision as hampering the conduct of the defence in a manner and to an extent which was unlawful and rendered the trial unfair.

The question is whether the legislation goes too far or whether it achieves the correct balance. The trial process will require consideration of the witness identity protection certificate which is disclosed to the parties and which is to include certain information. The nature and quality of that information may not be as sound and comprehensive as is required. The certificate seeks to identify matters that go to the credibility of the protected witness. However, those matters may not be sufficiently, accurately or comprehensively identified.

I interpose here the comment which I made earlier relating to the certificate and whether or not some inducements or other benefits might have been offered to the witness. The Law Society continues:

It is likely that there will be matters outside the contents of a certificate which may be discovered, disclosed or uncovered which goes to the credibility of the witness. Therefore, the breadth of the certificates should include any information as to whether the protected witness has been the subject of an allegation of the commission of an offence (as distinct from being convicted or found guilty of the same because an allegation may be sufficient to attack the witness's credibility). Section 33(1) should include reference to that type of information.

Section 33(1)(k) is unduly restricted to the information known to the person giving the certificate that may affect the protected witness's credibility. That provision should include any information that is known, comes to the attention of or has been reported to the law enforcement agency about the credibility of the witness.

Clearly, that is a valid point because the commissioner or deputy commissioner issuing the certificate may have no personal knowledge or understanding of the record or past history of the protected witness, that is, personal knowledge. The Law Society continues:

Furthermore, there are many other indicators of credibility issues which include behavioural matters, conduct, financial matters, other statements attributed to the protected witness which would ordinarily be the subject of cross-examination as to credibility.

The provision that directly effects the established concept of a fair trial in South Australia is in section 40 requiring that a party must seek the court's permission to ask questions of a protected witness that may lead to the disclosure of the operative's identity or where the operative lives and only if there is evidence that if accepted would substantially call into question the operative's credibility. The provisions of section 40(3) are unduly restrictive—

in the opinion of the Law Society—

Section 40 is not consonant with the other legislative provisions referred to in the explanatory notes to do with protecting the identity of certain witnesses.

Section 15XT of the Commonwealth Crimes Act 1914 and section 14 of the Law Enforcement and National Security (Assumed Identities) Act 1998 and section 25 of the Royal Commission (Police) Act 2002 (WA) do not erode the fundamental principle of a fair trial. In that legislation the protection of the identity of the witness is preserved by having a closed court and suppression orders.

I ask the minister to comment on whether the government agrees with that assertion or not and, if it does agree with the assertion of the Law Society, I ask why the model adopted in those jurisdictions was not adopted here.

The Law Society mentions the Queensland, Tasmanian and New South Wales legislation. I will not read all of those comments, other than to say that the Law Society believes that the New Zealand model is better than the provisions of section 40(3)(a) of this bill. The Law Society goes on to state:

It is to be noted that the statutory declaration to be provided by the witness for the purposes of providing the witness identity protection certificate is not to be disclosed in any proceedings other than proceedings for perjury in respect of falsity of the statutory declarations; disciplinary proceedings against the law enforcement officer; or investigations or enquiries into the conduct of a law enforcement officer.

The statutory declaration [so say the Law Society] should be produced in all proceedings. It does not serve the balancing exercise to exclude disclosure in court proceedings other than those referred to in section 31(4) as to do so erodes the concepts of a fair trial. If the statutory declaration should be disclosed for the purposes of the proceedings referred to in sub-section (4) then it should be capable of being disclosed in all types of court proceedings and in particular criminal proceedings. Given that the statutory declaration is the foundation for the content of the witness identity protection certificate then excluding the statutory declaration from the obligation of disclosure is incompatible. Furthermore, the statutory declaration ought to be disclosed because it contains relevant material as the primary evidence or the best evidence of the very issues of credibility to be potentially agitated at trial.

I ask the minister to indicate the government's response to that and other assertions in the letter that are critical of the bill. I believe that the parliament, as well as the Law Society, deserve an appropriate response to the matters raised by the society, rather than an abusive response simply describing the messengers as enemies of the people and the usual suspects.

I look forward to the minister's response. If it is intended to proceed with this matter through the committee stage today, before the minister has had an opportunity to be thoroughly briefed by officers on the appropriate response to the matters I have raised, I would appreciate, as I am sure the Law Society would appreciate, a formal response, by way of letter, to the matters raised.

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (15:53): I thank honourable members for their contribution to the debate. First, I will refer to the matters raised by the Hon. Mr Parnell. I do not know why the honourable member referred to the concept of 'criminal intelligence' which has found a place in a number of bills which have been brought before parliament. This bill does not employ the concept of 'criminal intelligence'.

The honourable member wanted to know what the government's response is to the issues raised by the Law Society about clause 33(1)(k) and clause 40(3)(a). The response is that clause 33 deals with a form of the witness identity protection certificate. The criticism of the Law Society is that clause 33(1)(k) should include any information that is known that comes to the attention of or has been reported to the law enforcement agency about the credibility of the witness. The government's answer is that it plainly does just that. Clause 33(1)(k) provides:

If there is anything else known to the person giving the certificate that may be relevant to the local operative's credibility, particulars of the thing.

It is difficult to see how that could be broader. The Law Society does not suggest an alternative wording. In any event, the fact that any one or more particular matters are not listed in the certificate for any reason does not prevent defence counsel from asking the question. The only prohibition is in asking a question that will reveal the person's true identity, which is at it should be. There is no room for criticism here.

Clause 40 is a lengthy provision dealing with applications made to disclose a witness's identity. Clause 40(3) provides the criteria that the court should take into consideration. The Law Society criticism is merely that it thinks the criteria unduly restrictive. The government does not agree. The provision accords with the nationally agreed model enacted in Victoria, Tasmania and Queensland. Other jurisdictions give the court a statutory or common law discretion, without giving that discretion any structure at all. For example, the Law Society cites the New South Wales equivalent provisions. It simply says:

In particular the court, tribunal, royal commission or other commission of inquiry—

(a) may allow an officer in respect of whom an assumed identity approval is or was in force to appear before it under the assumed name or under a code name or code number.

There is no further guidance. By contrast, the proposed clause is far more open and transparent, and provides guidance on the exercise of the discretion. The government does not agree that the New Zealand formula is better and notes that the Law Society does not explain why it is thought to be better.

For the sake of completeness, I add that the Law Society made a third criticism of the bill. The application for a certificate from the chief officer is governed by clause 31 and must be verified in the first instance by statutory declaration by the operative himself or herself. The Law Society thinks that the statutory declaration that forms the basis of the certificate should be disclosed at trial. The government does not agree. The requirement for a formal statutory declaration was not in the nationally agreed model but was in the version enacted by Victoria. We agreed that it provided an additional safeguard in providing a basis for the appropriate prosecution of a person who gives false information as a basis for an application. That is its function. It is not part of its function to provide additional disclosure. Any relevant substantive content in the statutory declaration that does not risk disclosure of the identity of the operative will be in the certificate made public. To require the disclosure, the statutory declaration would render the whole process nugatory.

I turn now to the questions asked by the Hon. Mr Brokenshire. First, he asked whether we are the first state to enact the model provisions. The answer is no: Victoria, Queensland and Tasmania have enacted the full measures and parts of it are to be found in New South Wales and Western Australia. The commonwealth bill to the same effect lapsed at the last election and has not been introduced, but there are elements of the scheme in the commonwealth Crimes Act 1914. Secondly, the honourable member raised concerns about the retrospectivity provision in clause 5. I assure him that he should harbour no fears: clause 5 applies only to the approval of undercover operations. It is a re-enactment of precisely the same clause in the Criminal Law (Undercover Operations) Act 1995 and that has existed since 1995. There is no change here.

Thirdly, the honourable member wanted an indication of the number of approvals granted. This is the subject of an annual report tabled in both houses in about September of each year. The total number of approvals given for 2007-08 was 27, and the total number of renewals given for 2007-08 was 12. The classes of offence for which approvals were given were: offences against the Controlled Substances Act, 17; deception, three; child pornography, one; murder, one; assault, blackmail and attempt to pervert the course of justice, one; soliciting murder, one; unlawful sexual intercourse and procuring, one; providing child sexual services, one; and, threatening harm, one.

Fourthly, the honourable member wanted to know whether the existing powers have been used against the prostitution industry. The data I have given shows that they have, albeit not many times. If the honourable member wants a briefing from the Commissioner of Police, I am sure something can be arranged.

The Hon. Mr Lawson also raised some issues. It is true that the certificate does not mention financial consideration, but that does not prevent defence counsel from asking and the court in the normal way requiring an answer. Like the rest of the legislation, these considerations are based faithfully on the carefully considered report of senior officers and police officers who reported to the Standing Committee of Attorneys-General and enacted in a number of Australian jurisdictions.

I also draw the attention of the honourable member to clause 31(5), which obliges the chief officer to undertake all reasonable inquiries to ensure that all required information is in the certificate. That includes anything else known to the local operative that may be relevant to his or her credibility. It is true that the House of Lords declined to extend the common law, but the law lords also said quite clearly that there was a serious problem to be addressed and that it was for parliament to address. Here, the parliament is addressing it.

I again thank honourable members for their contribution to this bill. If members wish to explore that matter further, perhaps we can do so during the committee stage. I commend the bill to the council.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.D. LAWSON: The Law Society referred in the letter to the recent House of Lords case R v Davis, and in his second reading response the minister referred to the comments of their lordships. Can the minister outline to the committee the substance of that case, the nature of the issue and the context in which the comments to which he referred were made?

The Hon. P. HOLLOWAY: In the matter before the House of Lords, I am advised that they were considering whether there should be a more generous allowance for witness anonymity at common law, and the finding was that there should not. Lord Rodger said as follows:

It is for the Government and Parliament to take notice if there are indeed areas of the country where intimidation of witnesses is rife and to decide what should be done to deal with the conditions which allow it to flourish. Tackling those conditions would be the best way of tackling the problem which lies behind this appeal. Any change in the law on the way that witnesses give their evidence to allow for those conditions would only be second best. But Parliament is the proper body both to decide whether such a change is now required, and, if so, to devise an appropriate system which still ensures a fair trial.

The Hon. R.D. LAWSON: Does the government propose to make any regulations pursuant to the regulation making power in this bill, and when is it envisaged that the legislation will come into operation? More specifically, is it intended to delay for any particular period the commencement of the operation of this bill? Is any other legislation or regulation required to be considered before it comes into operation?

The Hon. P. HOLLOWAY: I am advised that it is not proposed that there be regulations in relation to the commencement of the bill. I am advised that the government will take advice from the Commissioner of Police as to when he is ready for the bill to come into effect.

The Hon. R.D. LAWSON: Did the government consider whether or not arson or lighting bushfire offences ought to be included in the list of offences in respect of which this legislation operates?

The Hon. P. HOLLOWAY: Perhaps the honourable member could be more specific about which clauses he is referring to. The definition of serious criminal behaviour means behaviour involving the commission of an indictable offence, and other offences are listed. Arson and lighting bushfires are probably indictable offences.

Clause passed.

Clauses 2 to 32 passed.

Clause 33.

The Hon. S.G. WADE: I want to clarify the minister's response to the Hon. Mr Lawson's question in relation to financial inducements. I understood the point that the minister was making that counsel could ask about financial inducements, but I am not sure whether he was suggesting that paragraph (k) would mean that there was a duty on the law enforcement agency to reveal whether any financial inducements or similar had been given.

The Hon. P. HOLLOWAY: My advice is that clause 33(1)(k) would require that disclosure. I am advised to clarify an answer I gave in relation to an earlier question asked by the Hon. Mr Lawson. He asked about regulations. We will need regulations to declare corresponding law. Eventually we will need regulations for that purpose.

Clause passed.

Remaining clauses (34 to 48), schedule and title passed.

Bill reported without amendment.

Third Reading

Bill read a third time and passed.

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