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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-02-17 Daily Xml
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CRIMINAL INVESTIGATION (COVERT OPERATIONS) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 5 February 2009. Page 1219.)

The Hon. M. PARNELL (21:37): I have received only one submission from the public in relation to this bill, but it is an important submission because it is critical of some aspects of it and suggests some changes that might be beneficial. The submission is from the Law Society of South Australia and it describes this bill, in particular the provisions dealing with the protection of the identity of witnesses, as being of concern.

When we debate law and order bills in this place, one feature that we have talked about a fair bit is the concept of criminal intelligence—the idea that a person can have used against them evidence of which they are not made aware, that is, they are not told what the evidence is or who it is from and, effectively, they have no way of challenging it. The type of evidence referred to in this bill is not exactly of that class, but it does involve keeping information from defendants in criminal cases that they would normally be entitled to access.

The provisions of this bill relate to evidence particularly in relation to the ability of the court to hide the identity and address of informants. Those types of provisions are not unique—most jurisdictions have some arrangement where that can take place—but it is important for us to remember that the basic principle of criminal justice we should be striving for is that a defendant in a criminal trial has the right to be confronted by his or her accusers and to be able to cross-examine them and to challenge their evidence. That principle is at the heart of our legal system and many others, and it goes back to ancient Rome. It is regarded as a basic right in any civilised nation in connection with a fair trial, and that right includes not just knowing the evidence against you but also the true identity of a witness, particularly where issues of credibility are raised.

However, having said that, I agree with the Law Society when it states that the question is whether this legislation goes too far in hiding the identity of some witnesses or whether it actually achieves the correct balance. At the conclusion of the second reading, I would like the government to address the principal concerns of the Law Society as they relate to clause 33(1)(k) and also clause 40(3)(a). The Law Society points out that it thinks we have not quite got it right in relation to those two clauses, and it has proposed an alternative way forward, and I am very interested to hear what the government has to say about that.

The Law Society states that clause 33(1) is unduly restricted to the information known to the person giving the certificate, and these are the certificates that allow for the identity of witnesses to be suppressed. The Law Society does not believe that clause 40(3) is as good as other options; in particular, it refers to the model based on the New Zealand legislation. So, before we get to the detailed consideration of the bill, I put both those matters on the record and invite the government to respond to the Law Society's objections.

Debate adjourned on motion of Hon. B.V. Finnigan.

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