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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-02-18 Daily Xml
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CRIMINAL INVESTIGATION (COVERT OPERATIONS) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 3 February 2009. Page 1219.)

The Hon. S.G. WADE (21:15): I rise to indicate opposition support for this bill. The bill formalises arrangements for covert operations conducted by law-enforcement agencies and is, I understand, the product of the joint working group established by the Standing Committee of Attorneys-General.

The opposition recognises the value of covert operations in addressing crime in our state, particularly organised crime, whether it be in relation to a specific crime or for more general intelligence-gathering purposes. The opposition also recognises the serious risk that law enforcement officers take on when they engage in covert operations, a risk not only to the officers themselves but also to the family and friends of such officers. On behalf of the opposition I pay tribute to these men and women and to the service they render the people of this state, as well as the contribution they make to the peace and order of this community. I am informed that South Australia Police does not have any difficulty in obtaining volunteers willing to undertake covert operations, and I believe that fact reflects highly on the force.

We need to honour the service of these men and women by putting in place laws that protect their rights and identities, and the first and foremost purpose of this bill is to formalise arrangements relating to covert operations. Currently, the provisions for the conduct of covert operations are enshrined in the Criminal Law (Covert Operations) Act 1995. These provisions have been sufficient for covert operations in South Australia, and I understand that they have worked very well, with approximately 15 to 20 covert operations being conducted on annual basis.

However, organised crime does not respect jurisdictional boundaries and there are many situations where law enforcement officers may be required to go interstate during the course of a covert operation. When operations are conducted across jurisdictional boundaries some uncertainty has arisen, particularly in the following areas: first, the legality and legal liability relating to the operations; secondly, acts committed during such operations; and, thirdly, evidence obtained through such operations. It was this uncertainty that led to the establishment of a joint working group to address the issues. The outcome of the work of the group is legislation in each state establishing generally consistent provisions, with legal recognition of covert operations operating across jurisdictional boundaries.

The bill before us does not substantially change the way in which covert operations are conducted; its primary effect is to enable operations to cross jurisdictional boundaries without impediment from concerns as to the legality of the operation. The opposition supports this bill as it believes it is essential that our police and other law enforcement officers are protected and permitted to continue appropriate covert operations, including those which require them to travel beyond South Australia. They should be able to do so with confidence that they will not be prosecuted or put in danger merely for doing their duty.

The second purpose of the bill follows as a necessity in relation to covert operations, because in the course of covert operations it is often necessary for an officer to assume a new identity. This could be to prevent the officer being identified as an officer of the law or it could be in order to protect the officer or the officer's family from any retribution which may follow the officer's involvement in an organised gang. If an officer infiltrates a criminal organisation to gain intelligence, that officer could be placing himself or herself in serious danger. Violent retribution is a hallmark of organised criminal gangs.

Not only is the officer engaged in the operation at risk, but anyone associated with them—friends, family or associates—may also be at risk. Criminal gangs have a history of harming individuals, either directly or by inflicting harm on persons close to individuals. In order to maximise the protection of our law enforcement officers and their associates we need to enable officers to assume identities so that they can conduct their operations with some safety. However, establishing such an entity can be quite complex; it is not merely the act of taking on another name. The ability of organised criminal gangs to access information and obtain backgrounds on individuals, including through government agencies, means that in many cases an officer engaged in covert operations under an assumed identity will need false documents to support that assumed identity—for example, a driver's licence, birth certificate or passport.

South Australia does not currently have any provisions allowing the creation and use of false legal documents, leaving uncertainty as to the legal consequences of the person using the documents and uncertainty as to the legality of any evidence obtained through the use of false documents. It is therefore considered prudent to create legislative provisions for the creation and use of assumed identities to provide proper legal support for covert operations. However, in allowing the creation and use of false documents we, as a community, need to be careful to make sure that such documents are not too easily available and are used only when necessary.

In the opposition's view, the bill before us creates an appropriate system to control the creation, issue and use of false documents for the purposes of covert operations. The system requires that false documentation can be made available only on request from the Commissioner of Police, and any such application must provide details as to why such documents are necessary, the purpose of the documents, and the nature of the documents required. The use of an assumed identity can remain in force for a maximum period of three months, although it can be renewed for further periods of three months each. We understand this provision is due to the serious nature of officially sanctioned false identities, and is intended to force law enforcement agencies to regularly review any use of assumed identities.

An assumed identity must also be used only in accordance with the authorisation made, thus minimising the potential for assumed identities to be misused. While the opposition acknowledges that we must be careful in the creation of such identities, we are also mindful of the grave danger in which officers of the law place themselves when they engage in covert operations and believe the regime for assumed identities is appropriate. We consider that the bill has struck an appropriate balance.

To place oneself in such danger in order to uphold the law is a significant risk which our police and other enforcement officers take on. Whilst we must be vigilant to prevent abuse, we must also provide our police with the tools they need. This brings me to the final purpose of the bill, which is perhaps its most controversial element—the protection of the identity of witnesses using assumed identities. The necessity of protecting the identity of a witness using an assumed identity is obvious: if the identity is revealed, the witness or the witness' family is vulnerable to retribution from organised criminal gangs. There would be little point giving a person an assumed identity during an operation only to reveal their true identity during the court proceedings.

However, this consideration must be balanced with the basic longstanding right under English common law of the accused to have a fair trial. As part of a fair trial it is a common practice to question and determine the reliability of a witness, yet if a witness's true identity is not known it may be impossible to determine factors which may prove that that witness is unreliable.

This bill, therefore, presents us with the task of finding the correct balance between protecting the identity of the witness and ensuring that the accused is given a fair trial. The bill before us attempts to achieve this balance by establishing a process whereby any information deemed relevant to determine the credibility and reliability of a witness must be presented to the court and the defence in the form of a certificate, thus providing relevant information while protecting the true identity of the witness.

I understand that there are some concerns, particularly from the Law Society of South Australia, in relation to these provisions and that the information provided may not be as sufficient or as comprehensive as is necessary. It is possible that the certificate presented to the court may inadvertently omit facts which could be relevant to the credibility of the witness.

The opposition at this stage considers that the provisions of the bill, as suggested by the joint working group of the Standing Committee of Attorneys-General, are appropriate in striking a balance between maintaining the right of an accused to a fair trial and protecting the identity of a witness who is under an assumed identity. In this context we are mindful of the provisions of the act for a court to require a witness's identity to be revealed where the court considers that doing so could call the witness's credibility into question and it is in the interests of justice to provide a safeguard to ensure that the protection of a witness's identity does not override an accused's right to a fair trial.

Equally, these provisions protect the identity of a witness by providing that, where a court orders that the witness's identity be revealed, the prosecution can withdraw the witness rather than reveal the witness's identity. We are of the view that this strikes a reasonable balance between the rights of the accused and the safety of the witness.

As I said at the outset, the opposition recognises the valuable contribution and, indeed, the sacrifice made by many law enforcement agency officers engaged in covert operations. We owe a great debt to their courage in tackling organised and other crime, and we recognise the importance of providing these officers with the protection and security of the law to ensure that they, and those they care about, are not targets of retribution or intimidation. On behalf of the opposition, I indicate our support for this bill.

The Hon. R.L. BROKENSHIRE (21:28): I rise on behalf of Family First to support the second reading of this bill. I have never apologised, and never will apologise, for the fact that I personally am a great supporter of the work of SAPOL. As a former minister I was incredibly privileged to learn a lot about the inner workings of SAPOL. I was fortunate enough to have the experience in that portfolio to get a unique insight into SAPOL's work, and for that reason I am happy to support this bill.

Covert operations are often the most dangerous operations, but also some of the most important operations. I commend the government for moving these amendments, because we must look at supporting and protecting police as they go about this most difficult part of police work.

I support the assumed identities reforms. These are welcome changes to clear up the common legal uncertainty of undercover operations where, arguably, officers are committing offences in order to detect other offending. The provisions need to be watertight, not only to fend off legal challenges from defence lawyers but also to ensure that there is no room for corrupt or other inappropriate behaviour.

With respect to the cross-border element and, indeed, on the other fronts of this bill, I ask whether South Australia—and I do not expect the minister to give a response tonight, but I will put it on the record so the minister and his staff can look at it and answer it during the committee stage—is first, last or somewhere in between in legislating states moving these amendments. In the second reading explanation, I get the impression that South Australia may be the first.

Be that as it may, it is important to remove legal ambiguities with false identities used to investigate cross-border crime. More often than not these days, we are advised of situations where there are problems across borders. Recently, it was brought to my attention that, due to different pseudoephedrine laws in South Australia and Victoria, pseudoephedrine smuggling from Victoria into South Australia is rife. Likewise, we know that, historically, South Australia has been the cannabis capital. Time and again, people have put cannabis into the eastern states and brought back heroin and other heavy illicit drugs. It is important that there be cross-border strengthening of opportunities for covert operations, referrals to police and good working relationships between police.

In relation to witness protection or informers' immunity, I agree with the government about the need to protect identity by legislative provision rather than relying on the common law, as we do at present. For instance, I am aware of cases of drug stings where a false name, such as Mr Y, was used in the case to protect the police witness—and that is actually very effective. A good false name can be used again to build credibility within criminal networks in order to achieve more arrests, because criminal networks do get savvy very quickly—and incredibly so—on how to flush out informants.

I agree with the government that it is important to provide these sorts of provisions in order to encourage more officers to engage in undercover operations. That is paramount. It is a difficult and dangerous part of policing, and the parliament and the government need to ensure that we protect and support police officers during this work at every opportunity.

I look forward to seeing informative reports from the Commissioner on the use of the witness protection certificates. I can recall that in some areas the reports to parliament for specific legislative provisions, such as a statute-required report to parliament on suppression orders, is sometimes so ridiculously brief as to be uninformative to parliament, which raises the question whether legislation in practice is meeting parliament's intention. The Hon. Ann Bressington raised some concerning matters and made a good case for an independent commission against corruption. I do not think we need to retrace the debate on an ICAC because I suspect there will be ample time to do so in the near future, with both houses now having bills either introduced or notice of introduction given.

I think that the powers in this bill ought to assist police in their role of not only dealing with corruption and organised crime. I share the Hon. Ann Bressington's concern about potentially rubber-stamping corrupt conduct. That is a concern. On the face of the second reading, one would think we are only talking about rubber-stamping the issuing of supporting documentation for false identity. However—and this is of concern—the wording of clause 5 is quite wide. It is a retrospective provision, and that is something I hope all colleagues have seen, because all of us are always concerned when retrospectivity comes into any legislation. Under that provision, a past authorised participant in undercover operations will now effectively have a rubber stamp of legal immunity upon his or her conduct.

I looked at this carefully and, at first, I thought clause 5 related only to the supporting documentation for a falsified name. However, this bill repeals the previous act and, thus, it is a global clause for all past, present and future approvals of undercover activities—and I think the parliament needs to be aware that that is how it is drafted, as we read it, and we have looked at it carefully. I therefore ask the minister to indicate to me the rationale for proposing that retrospective element, and I ask him to advise us of that during his summing up of the second reading debate.

If the minister would be so kind, could he speculate with us about what effect this might have upon an investigation that an independent commission against corruption would conduct in the future; or, if the minister prefers, perhaps he can look at it as a question about a future prosecution by the anti-corruption task force. If this provision retrospectively approves anything any undercover operative did in the past, does that eliminate the possibility of prosecuting that person for corruption? These are things we need to know about before we vote on the third reading.

I want to be clear upon that. I have said that I am not suggesting there is anything wrong. I have a proud record of strongly batting for and supporting police, but we need to be careful as legislators when we start to get into these sensitive areas. We want to keep our South Australian police force the best in the world. We do not want a situation such as that in New South Wales, or Queensland, for that matter, and, probably arguably now, even Victoria.

I support the second reading but I want to hear all the debate, particularly from the minister on behalf of the government, before the third reading. It seems to me that there is the potential with one swish of the brush to legitimise any potentially past corrupt conduct.

I also ask the minister handling this bill for the Minister for Police for some indication of the current number of approvals by senior police officers of undercover operations. I am happy to receive this in confidence, if that is appropriate, and I have a bit of experience of that with other members in the past when I was in that portfolio. I would be happy with confidentiality, but I still need to know the current number of approvals. If they do not want to tell the parliament, I would like to be briefed in confidence so I can feel comfortable about this.

It is often useful to have some idea, as legislators on behalf of the people of South Australia, of the frequency of use of legislation. If the figure was incredibly high or low, we might have reason to ask questions of the minister as to why that was so. For instance, if it was quite low, there might be a case in proposed clause 4 of this bill for only the Commissioner to have power to approve operations as a form of insulation against potential corruption—and I would feel pretty comfortable with that. I think we need to flesh that out. All members, or those who have concerns, could be briefed in confidence.

The final question I have is whether the existing powers have been used for stings in the prostitution industry. I am aware of the considerable problems officers have in infiltrating that industry. I had to go through the exercise of four bills before the parliament to try to get some sort of proper framework for policing. The bottom line was that nothing happened. After all the work and effort, we still have the same unworkable laws and police officers put into circumstances they should not have to be in.

I am aware of the considerable problems that officers have had in infiltrating that industry, and I believe the government should be looking at reforms in that respect. I am also aware of the organised crime links that relate to prostitution. Almost without exception, the organised crime involved in prostitution in this state is amazing. It creates great wealth to the detriment of innocent young women, in particular.

It is something I am particularly interested in because, when a constituent tells me that a brothel is operating, I am very happy to report that to the police, as I did recently when alerted to a brothel operating, unbelievably, alongside a child-care centre in suburban Adelaide. I congratulate the police, who took the matter seriously and acted immediately. I had a phone call out of normal business hours for some more information, and I am pleased to say that SAPOL was successful in locating that and dealing with it appropriately. We do not need brothels alongside child-care centres in South Australia. If the existing covert operations powers are assisting in eliminating brothels, that is a good thing for families in South Australia.

In conclusion, I await answers from the minister on my questions when he concludes the second reading debate. With those comments, I congratulate the government for these amendments and I support the second reading.

Debate adjourned on motion of Hon. J.M. Gazzola.

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