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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-11-25 Daily Xml
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LIQUOR LICENSING (POWER TO BAR) AMENDMENT BILL

Committee Stage

In committee.

Clause 1.

The Hon. G.E. GAGO: I move:

Page 2, line 3—

Delete 'Liquor Licensing (Power to Bar) Amendment' and substitute: Statutes Amendment (Power to Bar)

This is an amendment to the short title of the bill. I understand that it is consequential upon the government's amendment No. 5.

Amendment carried; clause as amended passed.

Clauses 2 to 4 passed.

Clause 5.

The Hon. M. PARNELL: I move:

Page 3, lines 17 to 21 (inclusive)—

Delete subsection (5)

Page 5, lines 24 to 37 (inclusive) and page 6, lines 1 to 9 (inclusive)

Delete section 125A

My two amendments relate to the same issue, that is, the issue of criminal intelligence being used by the police to bar persons from licensed premises. In my second reading contribution I explained that this was the only part of the bill I was objecting to. I objected to it on the same grounds that I objected to previous incarnations of criminal intelligence, most recently in the serious and organised crime bill; that is, when the state, through its various organs, is proposing to interfere with a person's rights, natural justice should step in and should enable a person to know the claims, allegations or charges against them and give them the ability to challenge those.

The bill proposes to give the police for the first time the power to bar, and I support that. The only part I do not support is the use of criminal intelligence. The Hon. Robert Lawson in his contribution said that he will be listening very carefully to my argument in favour of this amendment, but he knows full well, having read the Law Society's submission (and he read large chunks of that into Hansard), that very important legal principles are at stake here. My question would be: where does this use of criminal intelligence on the South Australian statute books stop? We have it in relation to serious and organised crime, and the bulk of members in this house thought that was appropriate because we were dealing with very serious criminal charges.

I understand that the concept is already in this legislation in relation to who is a fit and proper person to be able to hold a licence under this legislation, but we are now talking about something much lower down the scale, that is, the power to say to someone, 'You can't enter or remain in a licensed premises.' It is the right to have a drink in a pub, if you like; and, for criminal intelligence to be used in that situation, I think, is taking it too far. The question would be: where does it go next? Can we use criminal intelligence to prevent people from getting drivers' licences? Can we use criminal intelligence to prevent people getting some other benefit, reward, certificate or some other favour that the state can bestow on people? Where does it stop?

I say that it should stop with this legislation and that we do not need the power to use criminal intelligence. People might say, 'Well, there is the ability for someone to go to court and to challenge it', but the point still remains that while a judge might look at the information and say, 'Yes, I agree it's criminal intelligence', there is no way for anyone to rigorously look at that evidence in terms of its veracity.

Members will recall when we debated the serious and organised crime bill that it came hot on the tail of a government announcement that it was going to use non-police officers for surveillance. We were talking about Dad's Army with binoculars through venetian blinds at the Flinders Medical Centre, for example, looking at whether people were breaking into cars. If you put the combination of inexperienced, non-official informers together with the concept of criminal intelligence, what you will find is that suboptimal evidence—evidence that could be challenged, if there were an opportunity to do so—will become influential and bear much more weight than it possibly deserves. Both my amendments—one is a test for the other—relate to the same issue and that is to say, yes, let's give the police the power to bar people from hotels, but let's not include the right to do so based on criminal intelligence.

The Hon. G.E. GAGO: This amendment deletes proposed subsection (5) of section 28A of the Liquor Licensing Act. Proposed subsection (5) provides that, where the Commissioner of Police issues a barring order against a person because of information classified by the Commissioner to be criminal intelligence, the order need only state that it would be contrary to the public interest if the person were not so barred. This protects information certified as criminal intelligence from disclosure to the barred person. The government understands that this amendment and Mr Parnell's second amendment are both intended to prevent the Commissioner of Police issuing a barring order that can be based on information classified as criminal intelligence. The government opposes most strongly both these amendments.

Criminal intelligence may take the form of information from police informants or undercover officers, from covert surveillance, including electronic surveillance, or from victims of crime and other witnesses. The government believes that it is appropriate that a barring order be based on this type of information in appropriate cases. As honourable members would be aware, securing convictions against members of criminal gangs—in particular, criminal motorcycle gangs—has proved extremely difficult owing to the propensity of gang members and their associates to use violence and threats of violence to prevent witnesses testifying against them.

For safety reasons or to protect the interests of people, we have defined criminal intelligence in a very narrow way. The only information that can be classified as criminal intelligence is information relating to actual or suspected criminal activity, the disclosure of which could reasonably be expected to prejudice criminal investigations, enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement, or endanger the personal life or physical safety of someone.

As I advised members in my summary of the second reading debate on this bill, the use of information in the nature of criminal intelligence by decision makers is already provided in a number of South Australian and interstate acts. Statutory provisions protecting criminal intelligence from disclosure have been upheld as valid by the High Court and claims for public interest immunity against disclosure of information of the kind that would meet the definition of criminal intelligence have been a feature of our legal system for some time.

The government's position is that the use of criminal intelligence to support barring orders is appropriate and that such material (narrowly defined as it is) should not be disclosed to people to whom it relates. I reiterate: in terms of the sorts of protections to ensure that this is appropriately applied, there is a narrow definition of criminal intelligence. We have required the highest level of authority to deem these particular cases—it has to be deputy commissioner or above—and there is a right of appeal. We believe that we have enshrined in the legislation adequate protections to uphold individuals' rights, at the same time, balancing our need to be able to protect citizens from organised criminal activity.

The Hon. M. PARNELL: I want to test this with the minister. Let us say a person says to the police, 'I suspect that Mr X is a drug dealer. I saw him selling drugs in the hotel.' Let us say that is sensational evidence, but it is plain wrong. Let us say it is just wrong: the person has made it up but they are convincing. They are saying, 'I reckon they are a drug dealer. I saw them selling drugs and I'm scared if they find out that I know.' What redress does a person who has been barred from licensed premises have against those accusations? Under what circumstances could they even find out the allegations made against them?

The Hon. G.E. GAGO: Criminal intelligence is something that is defined and considered very carefully by the Commissioner of Police and Deputy Commissioner of Police. For material to be considered criminal intelligence, for instance, it would need to come from a credible source. Obviously it would need to be of significant severity. It may also include things such as information held by other jurisdictions, including the Australian Crime Commission. This is information that is not just hearsay that has been passed on by some Joe Blow off the street. Criminal intelligence is very carefully considered material.

It is material which is deemed to be incredibly sensitive. I have already put on record the sorts of things that it would be reasonably expected to do if divulged: prejudice criminal investigations; enable discovery of the existing identity of a confidential source of information relevant to law enforcement; or endanger the person's life or physical safety. Obviously it is material of a particularly sensitive nature. If other material is involved in that information that is not deemed to be of criminal intelligence—that is, open source information—then the person who is barred would have access to that. They would not have access to the information deemed to be criminal intelligence, which comes under that, because it would be considered to be unsafe and inappropriate. As I said, it is not some hearsay off the street from some Joe Blow—that is most unlikely to make it into the categorisation of criminal intelligence.

The Hon. R.D. LAWSON: I am glad to hear what the minister is saying; unfortunately, that is not what the legislation says. Criminal intelligence is defined as:

...information—

it does not say it has to be credible or verified or anything else about it—

relating to...suspected criminal activity...the disclosure of which could reasonably be expected to prejudice criminal investigations, or to enable the...existence or identity of a confidential source...

In the example given by the honourable member—namely, a false or malicious report—clearly, if that information were false or malicious, it would very much be to the detriment of the person who made the false complaint. He would be at risk, and I think it is one of the weaknesses of this and other measures that the standard is not as high as the minister is suggesting. It does not have to be credible information; it can be information of any kind about actual or suspected criminal activity. Frankly, I am not comforted by the minister's assurances.

However, in relation to this matter, I ought to go back to basic principles. In the past the Liberal Party and I have supported criminal intelligence provisions. We supported them in relation to security agents on the basis that that legislation contained a mechanism for judicial determination. Clearly, if a person's licence is taken away or refused (a licence to conduct a livelihood) they have an incentive to make an application to the court and have the issue determined before a court. We believe these things ought to be determined by a court. But, in the case of a barring order, which does not have serious economic consequences for any individual, it is rather a social inconvenience to be barred from particular licensed premises.

It would be a very rare occurrence where anyone would take an application or appeal against a barring order of that kind. You would have to be a particular sort of individual and not particularly concerned by it. So, what is important to us, namely judicial protection, is illusory in relation to barring orders because nobody is actually going to make an application to the court to have the barring order removed because of the cost, the inconvenience, the prospect of success and the value of the fruits of success. People would simply not do it.

So, whilst we have said in relation to security agents, organised crime and terrorists, there is judicial protection, the individual has a substantial interest and has an opportunity to have the criminal intelligence tested before an independent judicial authority and, notwithstanding the fact that the individual does not have access to the criminal intelligence, the court will. We take the view that, if an independently appointed court has that information, that is sufficient protection in ordinary circumstances. However, where you take it down to the level of barring orders in licensed premises, as I said, the protection is illusory and that is why I, personally, have severe reservations about this measure.

The Hon. Mr Parnell mentioned that this is the thin end of the wedge. I am not usually convinced by arguments of that kind, but he is absolutely right here because we see introduced into this legislation by way of an amendment from the government earlier this month—notwithstanding the fact that the bill was first introduced in March of this year—a new amendment to introduce these barring orders into the casino as well. So, here it is; it is, in fact, the thin edge of the wedge. We get the licensed premises; now we get the casino. What next will it be? I think the honourable member is quite right to point to the fact that what we see here is the government finding this notion of imposing civil penalties or impositions on people on the basis of criminal intelligence being extended.

There might be someone, for example, in relation to the casino (an amendment that is yet to be debated) who might regard their attendance at the casino as something that is in their own economic interests. They might actually pursue some sort of a claim if they are a professional gambler, for instance. However, in relation to the ordinary case of a barring order of licensed premises, I do not believe there is really sufficient protection. I am ambivalent about it. As the shadow minister has indicated, I know the Liberal Party will be supporting the government's proposal; I personally do not support it.

The Hon. SANDRA KANCK: I will be supporting the amendments. When I gave my second reading speech, I said that the issue of criminal intelligence was for me the point on which I would decide whether I would support the legislation at the third reading. Similar to the Hon. Mr Lawson, I do not believe it is appropriate. Unlike the Hon. Mr Lawson, I did not think it was appropriate in the Serious and Organised Crime (Control) Bill, and in other legislation this government has introduced. But in this case it really is going over the top. You cannot equate people who have been a problem (and I do not deny that their are problems) to a terrorist, and it would be foolish for us to do so. I feel very strongly about supporting these amendments, or certainly this first one as a test amendment.

The Hon. G.E. GAGO: I can only reiterate that I believe we have put in a range of protections, which include the narrow definition of 'criminal intelligence'. The fact is that only the executive of South Australia Police is able to make a decision in relation to criminal intelligence. So, I am not too sure what the Hon. Robert Lawson and the Hon. Sandra Kanck and, for that matter, the Hon. Mark Parnell are saying. If they are saying that they do not trust the Assistant Commissioner, the Deputy Commissioner or the Commissioner of Police to make appropriate decisions about what is and what is not criminal intelligence, I found that astounding.

We have ensured that only the executive of our police force, our most senior police officers, officers holding the highest authority, are able to make that decision, and I think that is a pretty solid safeguard. It is certainly solid enough for me. There are also, of course, appeal rights. I think it is outrageous to suggest that adding in the casino is the thin edge of the wedge. The casino is just like any other licensed venue, and it should be included.

The Hon. SANDRA KANCK: I do not consider that to be any sort of insult to those people in our police force. I just give the member the example of Dr Mohammad Haneef. It went all the way up to the head of the Australian Federal Police, Mick Keelty, and he got it wrong. Simply having seniority does not mean that you will get these things right.

The Hon. M. PARNELL: I was not going to engage again, but I will in response to what the minister said. The issue for me is that the easiest call of all for these executive members of the police force to make is that something is criminal intelligence. Someone just has to say that it is a serious allegation, and I am fearful that, if they found out that it was me who dobbed them in, I would be in big trouble. That is a very easy call for the police to make.

The problem I have is that, if they are wrong, there is no way that we will ever find out that they were wrong, and an injustice will have been committed. It is not about a blatant lack of trust in the police officers. It is about the legal process being able to test the veracity of evidence and, in this bill, we are saying that there is some evidence that we are just going to accept and we are not going to let its veracity be tested. That is why I am proposing this amendment.

The Hon. G.E. GAGO: Veracity can be tested through an appeal process which is a part of due process. They can appeal.

The Hon. M. PARNELL: With respect, the veracity cannot be tested because you will not find out what the evidence was because it was criminal intelligence. That is the whole point. You will never find out what it was that was said against you.

The Hon. G.E. Gago: The judge will know.

The Hon. M. PARNELL: The judge will know, but the judge is not going to cross-examine the same way that you would cross-examine because the judge was not there: you were—or not.

The Hon. R.D. LAWSON: I think it is mischievous at best for the minister to suggest that those who support the honourable member's amendment do not trust the senior members of our police force. It is not a question of trusting or not trusting members of the police force. I happen to trust and respect members of the police force. They make mistakes. We have to lay down laws.

For a member of the Labor Party, especially a member of the left wing of the Labor Party, to suggest that, if we do not support this, we do not trust senior members of the police force is absolute nonsense. It is not a question of trust. It is a question of whether or not the legislative framework within which the police have to work is one that adequately protects the public, and I say that this one does not.

Amendments negatived.

The Hon. J.M.A. LENSINK: There have been three sets of amendments tabled by the minister in relation to this bill, and I understand that sets Nos 1 and 2 are redundant. I am advised that it is only the third set that we ought to pay heed to. I did cross-reference all these. I did my homework to no avail, but, for the sake of just trying to clarify this issue, in relation to the second set, the minister's amendment No. 3 of the second set substantially changed the language of clause 5(2) in relation to barring.

The original wording, which I understand is not to be altered now by the minister's amendment, read thus: 'If the Commissioner of Police bars a person from entering or remaining on licensed premises', etc., and that was then changed to 'If a person is barred from entering or remaining on licensed premises'. I seek clarification as to why the government decided not to proceed with that particular amendment.

The Hon. G.E. GAGO: We took parliamentary counsel advice on this, which was that what is before you, what we are proposing, actually makes clearer that it involves only the Commissioner of Police or a senior police officer. So, it was on the advice of parliamentary counsel that this provided a greater level of clarity.

Clause passed.

Clauses 6 and 7 passed.

Clause 8.

The Hon. G.E. GAGO: I move:

Page 5, lines 32 to 34 [new section 125A(1)]—

Delete 'if the Commissioner of Police is satisfied, based on criminal intelligence, that it is in the public interest to do so' and substitute:

on any reasonable ground

Clause 8 inserts new sections 125A and 125B into the act. Section 125A provides the Commissioner of Police with the power to bar while section 125B provides a police officer with the power to bar on the authorisation of a senior police officer. Whereas the power to bar under section 125B may be exercised on welfare grounds where the barred person commits an offence or behaves in an offensive or disorderly manner, or on any other reasonable ground—grounds that mirror the licensee's power to bar under section 125—section 125A restricts the Commissioner of Police's power to bar to where he is satisfied, based on criminal intelligence, that it is in the public's interest to do so. I repeat what I have said before that criminal intelligence is narrowly defined; I believe I have already dealt with the rest of it.

The Hon. J.M.A. LENSINK: Again, this is similar to the previous questions in that there were other versions of this proposed by the government which were, I think, quite different. My first question is: does this amendment to the bill broaden the grounds on which the Commissioner of Police can bar an individual?

The Hon. G.E. GAGO: I am advised that the answer to that is no.

The Hon. J.M.A. LENSINK: There was a previous version where the original wording referred to criminal intelligence. The minister's first set of amendments also retained the language of 'criminal intelligence', whereas this amendment will, in effect, delete that and replace it with 'on any reasonable ground'. Will the minister provide an explanation as to why the government has sought to amend the clause in this way?

The Hon. G.E. GAGO: I have been advised that, again, it was on the advice of parliamentary counsel that the broader grounds (in terms of 'reasonable ground') was inserted into 125A, whereas the specific reference to 'criminal intelligence' is still maintained in section 28A(5).

Amendment carried.

The Hon. SANDRA KANCK: I move:

Page 9, after line 20 [inserted section 125E(5)]—

After paragraph (d) insert:

and

(e) the person's gender and race.

In my second reading speech I raised a concern about the possibility that we could find people being targeted particularly on the basis of race—not so much gender but particularly race. What this amendment does, as far as gathering information, is to ensure that we have effectively, I suppose, a database that shows the practices of those administering the barring orders. So that, if there is a preponderance of people of a particular racial background, it will show up and we will eventually become aware of it. That will then put pressure back on the police, for instance, to look to themselves as to what they are doing and why they are targeting a particular group. That is the purpose of this amendment.

The Hon. G.E. GAGO: We oppose the amendment proposed by the Hon. Sandra Kanck. The power for licensees to bar on welfare grounds came into operation on 1 September 2000. The Liquor and Gambling Commissioner has advised that in the past five years to date he has received around 20 advices of barring under section 125(6) of the act. The Commissioner has also advised that he has never received an application for review of a welfare barring.

I turn to new section 128A(1)(a)(ii). The power for licensees to bar a person under section 125(1)(a) and (b) has been in the act since it was introduced in 1997. A barred person has the right to apply to the Commissioner for a review of such a barring, and I am satisfied that this protects the rights of the barred person. To require the Commissioner to analyse the grounds for all such barrings would impose a significant resource burden on his office, when resources could be more appropriately directed to areas such as compliance with legislation.

I do not believe that the reporting process, as proposed by the Hon. Sandra Kanck, would add to the integrity of the barring regime. Proposed new section 128A(b) would require the Liquor and Gambling Commissioner to report on matters in which he is not involved. The Commissioner of Police is not required to provide the Liquor and Gambling Commissioner with a copy of police barrings. Therefore, the Liquor and Gambling Commissioner will not know the location, period, age, gender, race, or residential postcode, etc., as required.

I believe that it is unreasonable and impractical to require the Liquor and Gambling Commissioner to report on such matters. As I said, it is data over which he has very little control, particularly in terms of the way it is collected, collated and broken down. I believe that it places a significant impost both on the Liquor and Gambling Commissioner and on the police, who, after all, have to collect, collate and provide this data. For these reasons we oppose the amendment.

The Hon. SANDRA KANCK: In terms of the appeal provision that she mentioned, could the minister advise how this operates? When someone is barred is something given to the person in writing that sets out their rights?

The Hon. G.E. GAGO: I have been advised that, yes, there is.

The Hon. J.M.A. LENSINK: I have been attempting to consult with my colleagues on these issues so that we get a most thoroughly examined piece of legislation. I rise to express opposition to this amendment not because of its intent, which I think is to gain as much information about trends as possible, which I think is very worth while, but in relation to not so much gender, because that is fairly unambiguous most of the time, but in terms of race.

I think if you ask somebody what race they are, you might get a few raised eyebrows from a lot of people; if you ask what nationality they are, then you will get a fairly straight answer. I understand that the honourable member is trying to get some understanding of what trends might be occurring in the community and, therefore, how we might address them, but I think that trying to ascertain somebody's race is a very difficult thing, indeed. In fact, in media reports we often hear about a particular offender of Caucasian or Aboriginal appearance. Some people might think that that language is politically correct, but I think it is used because one cannot always tell. If I use myself as an example, my heritage is northern European, but nobody ever guesses that; they think I am southern European.

Race is very difficult for anyone to ascertain, and if one were to ask a policeman or policewoman, in particular, in a position of authority, to ask somebody to identify their race, I think it might be a cause of some conflict purely because it is not something that is clear or anything I think most people in our community necessarily identify with. Indeed, if one is to be a genetic purist, some geneticists say that we are all one race and that there is no such thing. I think it is difficult to support this for reasons of practicality.

The Hon. R.D. LAWSON: In relation to the matter just raised by my colleague, I point out that the corrections department, for example, is quite able to say what number of indigenous prisoners there are. The Office of Crime Statistics is able to publish very detailed statistics about the elements of Aboriginal offending in our community, so I am not entirely sure that the comment she makes is necessarily decisive against the honourable member's proposal. If the minister is saying that it is beyond the wit of government to provide statistics of this kind, I suppose that is a different issue.

The Hon. G.E. GAGO: In an effort to produce the best legislation possible, I propose that we postpone the consideration of this clause until we have considered all other clauses.

Consideration of clause 8 deferred.

Clauses 9 and 10 passed.

New clause 11.

The Hon. SANDRA KANCK: I move:

New clause, page 10, after line 22—

After clause 10 insert:

11—Insertion of section 128A

After section 128 insert:

128A—Report to Minister on barring orders

(1) The Commissioner must, on or before 30 September in each year (other than the calendar year in which this section comes into operation), provide a report to the Minister specifying the following information in relation to the financial year ending on the preceding 30 June:

(a) in relation to an order made under Subdivision 2 barring a person from licensed premises for an indefinite period or a period exceeding 6 months—

(i) in the case of orders made under section 125(1)(aa) (a welfare order)—

(A) the number of welfare orders made; and

(B) the location of the licensed premises from which the persons were barred;

(ii) in any other case—

(A) the number of orders made; and

(B) statistical information about the type of conduct giving rise to the orders; and

(C) the location of the licensed premises from which the persons were barred;

(b) in relation to an order made under Subdivision 3—

(i) in the case of orders made because of information classified by the Commissioner of Police as criminal intelligence—

(A) the number of orders made; and

(B) the location of the licensed premises from which the persons were barred; and

(C) statistical information about—

the period for which the orders have effect; and

the age, gender, race and residential postcode of the persons barred;

(ii) in the case of orders made under section 125B(1)(e) (a welfare order)—

(A) the number of welfare orders made; and

(B) the location of the licensed premises from which the persons were barred; and

(C) statistical information about—

the period for which the orders have effect; and

the age, gender, race and residential postcode of the persons barred;

(iii) in any other case—

(A) the number of orders made; and

(B) statistical information about the type of conduct giving rise to the orders; and

(C) the location of the licensed premises from which the persons were barred; and

(D) statistical information about—

the period for which the orders have effect; and

the age, gender, race and residential postcode of the persons barred;

(c) the number of reviews of orders conducted under section 128 and the outcome of any such review.

(2) The Minister must, within 12 sitting days after receipt of a report under this section, cause copies of the report to be laid before each House of Parliament.

I move the amendment standing in my name, particularly now as we know that we have the criminal intelligence provisions that will be operating in this bill when it becomes law. I think there is a need for a reporting mechanism, and that is what this effectively does. I might leave it at the moment until parliamentary counsel comes back, because I need to speak with them too.

The Hon. G.E. GAGO: Perhaps at this point I might place my intention on the record. As I have said, and for the reasons I have outlined, the government does not support the amendments that the Hon. Ms Kanck is putting forward relating to reporting. What we are looking at—and parliamentary counsel is providing us with some assistance on this—is to put forward an amendment where reporting is required but only on those orders that are deemed to involve criminal intelligence. All other orders, such as those under the 72-hour and less barrings—the three months, six months, indefinite—would not be required to be part of this reporting audit, but all barring orders that did fall under the provision of criminal intelligence would have reporting requirements.

The Hon. J.M.A. LENSINK: We will debate this in more detail later this evening, but I would just like to commend the honourable member for bringing forward a proposal such as this, because I think criminal intelligence is at the pointy end of the legislation that is exercising all of our concerns. Therefore, we will be supporting some version of reporting to parliament in order to ensure that there is as much transparency as possible in this provision.

The Hon. G.E. GAGO: I move:

Inserted section 128A(1)(b)

Delete paragraph (b) and substitute:

(b) In relation to an order made under Subdivision 3 because of information classified by the Commissioner of Police as criminal intelligence—

(i) the number of orders made; and

(ii) the location of the licensed premises from which the persons were barred; and

(iii) statistical information about—

(A) the period for which the orders have effect; and

(B) the age, gender, race and residential postcode of the persons barred;

The effect of this amendment on the Hon. Sandra Kanck's amendment is to delete paragraph (b) of her amendment, which has the effect of requiring the reporting on police barring orders and replaces it with a new paragraph (b), which requires the reporting on those barring orders that pertain to—

The ACTING CHAIRMAN (Hon. J.S.L. Dawkins): My advice is that we will proceed with the minister's amendment to the Hon. Sandra Kanck's amendment, but when we have dealt with that we need to go back to the amendment to clause 8.

The Hon. G.E. GAGO: We are deleting the Hon. Sandra Kanck's paragraph (b) and replacing it with a new paragraph (b), which will have the effect of requiring reporting, but only on those matters that are deemed to be matters pertaining to criminal intelligence. All the reporting requirements outlined in the Hon. Sandra Kanck's amendment will still exist but will only pertain to those criminal intelligence orders. Clear as?

The Hon. J.M.A. LENSINK: Not quite clear as. The preceding amendment from the Hon. Sandra Kanck was to include in clause 8 of the bill the personal details that could be collected. The substantive bill included full name, date of birth, residential address and business address. The Hon. Sandra Kanck sought to include gender and race, which I understand was not supported by the government or the Liberal opposition. However, the words 'race' and 'gender' appear in this amendment, and I thought we had not included that previously. For the reasons that I have expressed already, I do not have any problem with recording of gender but I think that race is problematic. I wonder whether that is a drafting issue that needs to be redressed.

The Hon. M. PARNELL: I also noticed that the reporting mechanism included age, gender, race and residential postcode. But I am happy for it to be in here because it is not the same as it was before, which was that you had to ask the person their gender and race. This is a report by government, effectively, as to the operation of a provision and, in the same way that the Hon. Robert Lawson said our law enforcement authorities are able to identify by race people involved in the criminal justice system, it should not be very difficult to incorporate information about race if it is available. If it is not available, so be it; but, if it is, it might provide useful information to assist in the administration of these laws. So I am happy for those provisions to remain and I do not think they need to be deleted.

The Hon. G.E. GAGO: I understand we will sort this out when the bill goes to the lower house, so I think we are going to proceed.

The Hon. SANDRA KANCK: I indicate support for the amendment in its amended form. My main aim was to get some sort of reporting procedure, which we now have, and my main concern was about criminal intelligence and this now addresses that, so I am happy to support the amendment to my amendment.

The Hon. J.M.A. LENSINK: I am quite satisfied after the contribution of the Hon. Mark Parnell that this is a mechanism by which to collect information. It will not be one by which police officers will be demanding it from individuals, so I do not really have any objection to that issue in principle. I am quite happy for that to go by the by, or for the government to address that matter between the houses if it sees fit.

Amendment carried; new clause as amended inserted.

Clause 8.

The ACTING CHAIRMAN: We now return to clause 8. Before the chair is the Hon. Sandra Kanck's amendment to page 9, after line 20.

The Hon. SANDRA KANCK: I think we have argued out this issue and probably all we need to do is vote on it now.

The ACTING CHAIRMAN: Does the minister wish to comment?

The Hon. G.E. GAGO: I have already spoken on this. We are not supporting it. It is not needed.

The Hon. S.M. Kanck's amendment negatived; clause as amended passed.

New clauses 12 to16.

The Hon. G.E. GAGO: I move:

New Part, page 10, after line 22—

After clause 10 insert:

Part 3—Amendment of Casino Act 1997

12—Amendment of section 3—Interpretation

Section 3(1)—after the definition of compliance notice insert:

criminal intelligence means 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, enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or endanger a person's life or physical safety;

13—Insertion of section 45A

After section 45 insert:

45A—Commissioner of Police's power to bar

(1) The Commissioner of Police may, by written order, bar a person (the excluded person) from the casino for a period specified in the order or for an unlimited period on any reasonable ground.

(2) The order must—

(a) subject to subsection (3), state the grounds on which the order is made; and

(b) set out the rights of the excluded person to have the order reviewed by the Authority; and

(c) be given to the person against whom it is made personally or by sending it by post addressed to the person at the last known postal address.

(3) If a person is barred from the casino by order under this section because of information that is classified by the Commissioner of Police as criminal intelligence, the order need only state that it would be contrary to the public interest if the person were not so barred.

(4) If a person has been barred from the casino by order under this section, the licensee must, within 14 days of the service of the order, be provided with—

(a) a copy of the order; and

(b) information that identifies the person,

(but a failure to comply with this subsection does not affect the operation of the order).

(5) An excluded person who enters or remains in the casino while an order remains in force under this section is guilty of an offence.

Maximum penalty: $2,500.

(6) If an excluded person is allowed to enter or remain in the casino while an order remains in force under this section, the licensee is guilty of an offence.

Maximum penalty: $10,000.

(7) An agent or employee of the licensee or a police officer may exercise reasonable force—

(a) to prevent a person from entering the casino contrary to an order under this section; or

(b) to remove a person who is in the casino contrary to an order under this section.

(8) The Commissioner of Police may at any time revoke an order under this section.

(9) The Commissioner of Police may not delegate his or her power under this section except to a Deputy Commissioner or Assistant Commissioner of Police.

(10) A delegation under this section—

(a) must be by instrument in writing; and

(b) may be absolute or conditional; and

(c) does not derogate from the power of the Commissioner of Police to act in any matter; and

(d) is revocable at will by the Commissioner of Police.

14—Amendment of section 65—Review of decisions

(1) Section 65(2)—delete subsection (2) and substitute:

(2) A person aggrieved by a decision of the Commissioner of Police to bar the person from the casino by order under section 45A may, within 14 days after being given a copy of the order, apply to the Authority for a review of the decision.

(2) Section 65—after subsection (3) insert:

(4) In this section—

decision of the Commissioner includes, for example, the refusal of an application or the revocation of an approval.

15—Insertion of section 66A

After section 66 insert:

66A—Procedure in relation to criminal intelligence

(1) In any proceedings under this Part to be determined by the Authority, the Authority must maintain the confidentiality of information classified by the Commissioner of Police as criminal intelligence.

(2) In any proceedings under this Part to be determined by the Supreme Court, the Commissioner of Police may apply to the Court for a determination that information classified by the Commissioner of Police as criminal intelligence is criminal intelligence.

(3) The Supreme Court must maintain the confidentiality of information that is the subject of an application under subsection (2).

(4) If, on an application under subsection (2), the Supreme Court proposes to determine that the information is not criminal intelligence, the applicant must be informed of the proposed determination and given the opportunity to withdraw the information from the proceedings.

(5) If the Supreme Court determines that the information is criminal intelligence or the information is withdrawn, the Court must continue to maintain the confidentiality of the information.

(6) The confidentiality of information is maintained only if—

(a) the information is not used except for the purposes of the proceedings; and

(b) the information is not disclosed to any parties to the proceedings or their representatives (other than the Commissioner of Police and representatives of the Commissioner of Police) or to any member of the public; and

(c) evidence and submissions about the information are received and heard in private in the absence of any parties to the proceedings and their representatives (other than the Commissioner of Police and representatives of the Commissioner of Police) and are not disclosed to any member of the public; and

(d) the information is not disclosed in any reasons for decision.

(7) The Authority or the Supreme Court may take any steps it considers appropriate to maintain the confidentiality of the information.

(8) The duties imposed by this section on the Supreme Court apply to any court dealing with information that has been determined to be criminal intelligence or with the question of whether information classified by the Commissioner of Police as criminal intelligence is criminal intelligence.

16—Substitution of section 69

Section 69—delete the section and substitute:

69—Confidentiality of criminal intelligence and other information provided by Commissioner of Police

(1) Information provided by the Commissioner of Police under this Act to the Authority or the Commissioner may not be disclosed to any person other than the Minister, a court or a person to whom the Commissioner of Police authorises its disclosure, if the Commissioner of Police asks for the information to be kept confidential on the ground that its disclosure might create a risk of loss, harm or undue distress.

(2) Information that is classified by the Commissioner of Police as criminal intelligence for the purposes of this Act may not be disclosed to any person other than the Authority, the Commissioner, the Minister, a court or a person to whom the Commissioner of Police authorises its disclosure.

(3) The Commissioner of Police may not delegate the function of classifying information as criminal intelligence for the purposes of this Act except to a Deputy Commissioner or Assistant Commissioner of Police.

(4) A delegation under this section—

(a) must be by instrument in writing; and

(b) may be absolute or conditional; and

(c) does not derogate from the power of the Commissioner of Police to act in any matter; and

(d) is revocable at will by the Commissioner of Police.

Under section 44 of the Casino Act, the licensee can bar a person from the casino for a period specified in the order or on any reasonable ground. The barring order may be made for a period of up to three months unless made by agreement with the excluded person, in which case it can be for the agreed period or for an unlimited period.

Barring orders made by the licensee of the casino are subject to review by the Liquor and Gambling Commissioner, who may confirm, vary or revoke the barring order. The following barring mechanisms also exist in respect of the casino: voluntary barring by the Independent Gambling Authority under section 15B of the Independent Gambling Authority Act 1995; barring by the Liquor and Gambling Commissioner under section 45 of the Casino Act; and barring by the casino operator under section 125 of the Liquor Licensing Act 1997.

The Commissioner of Police casino barring orders were first discussed at the meeting of the Ministerial Council for Police and Emergency Management in late 2001, at which time a national system was proposed for sharing information with police in other jurisdictions to enable the Commissioner of Police to bar a person from the Adelaide Casino based on information provided by police from other jurisdictions.

In contrast to the position in other jurisdictions in Australia, the Commissioner of Police does not currently have the power under the Casino Act to initiate a person's exclusion from the casino. This is despite the fact that the Commissioner of Police is better placed than either the casino operator or the Industry Regulator to make an informed decision about barring orders that target criminal activities, particularly money laundering.

The existing casino barring provisions are focused on problem gamblers and not preventing criminal activity. Government amendment No. 5 inserts a new section 45A and part 4, division 7, of the Casino Act. New section 45A gives the Commissioner of Police the power to bar a person from the casino by written order for a period specified in the order on any reasonable ground. Subject to nondisclosure of criminal intelligence, a barring order must set out the grounds on which the order is made and the barred person's right to have the order reviewed. A copy of that order must be served on the barred person and on the licensee, along with information that identifies the barred person. A barred person who enters or remains in the casino while a barring order is in force is guilty of an offence. Reasonable force may be used to eject a barred person from the casino.

The Commissioner of Police may delegate his power under section 45, but only to a deputy commissioner or assistant commissioner of police. Amendments to section 65 of the Casino Act will ensure that a barred person has the right of appeal to the Independent Gambling Authority for the review of a barring order made by the Commissioner of Police. As with the power to bar under the Liquor Licensing Act, the Commissioner of Police will be able to rely upon criminal intelligence when determining whether to make a barring order in relation to these matters. Criminal intelligence will be protected from disclosure in the same way as it is protected under the Liquor Licensing Act provisions.

The Hon. J.M.A. LENSINK: Will the minister confirm the advice I have received from the government that South Australia is the only jurisdiction not to have these provisions? Will the minister confirm whether all other states and territories already have this in force under their casino legislation?

The Hon. G.E. GAGO: I am advised that we are the only jurisdiction without these provisions.

The Hon. J.M.A. LENSINK: Will the minister confirm that these provisions are identical to or a duplication of the Liquor Licensing Act as amended by us?

The Hon. G.E. GAGO: I am advised that substantially they are the same. Obviously, the appeal provision is slightly different because the appeal goes to the IGA, not the Liquor and Gambling Commissioner.

New clauses inserted.

Long title.

The Hon. G.E. GAGO: I move:

Long title—

After 'Liquor Licensing Act 1997' insert:

; and the Casino Act 1997.

I am on record about this matter. I do not think I need to repeat any of what I said earlier.

Amendment carried; long title as amended passed.

Bill reported with amendments.

Third Reading

Bill read a third time and passed.

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