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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-11-09 Daily Xml
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LEGISLATIVE REVIEW COMMITTEE: CRIMINAL INTELLIGENCE

Adjourned debate on motion of Hon. G.A. Kandelaars.

That the report of the committee, Inquiry into Criminal Intelligence, be noted.

(Continued from 19 October 2011.)

The Hon. M. PARNELL (17:24): As the mover of the motion to refer this matter to the Legislative Review Committee, I would like to make a few observations about the committee's report and the future use of criminal intelligence in South Australian statutes.

The majority report, not surprisingly, did not find anything particularly wrong with the use of criminal intelligence in South Australian law, and it makes a number of self-evident recommendations that the law should be fixed to prevent future successful legal challenges. However, the evidence presented to the committee does show some serious problems with the use of criminal intelligence.

In relation to criminal law proceedings, I think that everyone acknowledges that the use of criminal intelligence represents a trade-off between longstanding principles of natural justice and the need to respond to serious criminal offending.

One of the themes that came out in the many submissions is that the use of criminal intelligence can also lead to unjust outcomes in relation to administrative as well as criminal laws. The trend, as we have seen, is for the concept of criminal intelligence to be incorporated into a range of areas, including licensing regimes for firearms, security agents, liquor licensing and the like.

I wish to refer to a couple of the submissions that were made to the committee. I turn first to the submission made by the Law Society of South Australia. The report states:

Their strong submission was that criminal intelligence could be based on unfounded or unsubstantiated material, and that information should be properly tested.

The report goes on:

In relation to the SOCCA legislation, the fact that a person could be found guilty of associating with a person under a control order who was associating for an innocent purpose (such as a social gathering) also offended the rule of law.

The evidence of the Law Society to the committee was provided by Mr Bönig, the chairperson or president. He stated that the society objected strongly to the way in which criminal intelligence is used both in an administrative sense and in the serious and organised crime legislation. He referred the committee to a joint statement that was issued on behalf of the Law Society and the South Australian Bar Association in relation to the serious and organised crime legislation, which was as follows:

The presumption of innocence restricts or removes the right of silence, lacks proper procedural fairness, and removes access to the courts to challenge possibly biased, unfounded, or unreasonable decisions of the Attorney-General or Commissioner of Police.

That submission is one that I referred to when we were debating that legislation. It is interesting to see that a year or two later the Law Society has not changed its position and still opposes the use of criminal intelligence.

The second submission I refer to is that of the Australian Research Council Centre of Excellence in Policing and Security. In evidence, the centre said that it believed there was a clear tension between the nondisclosure of criminal intelligence and the rule of law, which included the principle of 'innocent until proven guilty' and the right of a person to contest the case against them. Both these principles are enshrined in the International Covenant on Civil and Political Rights, to which Australia is a signatory.

I make the point—as I think I have now done three or four times in my five years here—that South Australia is the only regime that has on its statute book a provision which says that no-one making administrative decisions in this state can be held to account for failure to comply with an international treaty. We are the only state that has that level of contempt, if you like, for international treaties. It does not mean that decision-makers cannot refer to them, but they cannot be held to account for not taking them into account.

The third submission I refer to is that of Dr Steven Churches. He submitted that the principles of the rule of law and a person's right to know the case against them were infringed by criminal intelligence. His evidence to the committee was:

If they don't know what the allegation is, they are completely stymied. They have no idea; they can't help themselves. But then, on top of that, since we do not have decision-makers equipped as investigating magistrates, they have got no capacity to go and find out either.

When he is talking about 'they', he is talking about defendants in criminal matters.

So, that was the evidence the committee heard. The Greens' view is that we do not support the use of criminal intelligence. We believe that the rules of natural justice, developed over centuries, should apply; that is, a person is entitled to know the case against them and to challenge that evidence in a court of law. By its very nature, criminal intelligence cannot be challenged. The evidence might be complete rubbish but, if it cannot be challenged, it has the potential to result in unjust outcomes. So, that is still the Greens' position. However, for others, the main debate is around identifying situations where it is appropriate to use criminal intelligence and the rules that should govern its use.

In relation to the report of the Legislative Review Committee, I note the minority report of Liberal members. I note that in that minority report the members are saying that they would restrict the use of criminal intelligence to criminal cases involving serious and organised crime. In fact, the minority report also says that the law should make it clear that courts retain unfettered control over judicial proceedings to protect the rights of all parties to a fair proceeding and to protect the administration of justice.

Whilst that does not go as far as the Greens would like, it certainly is preferable to the longer majority report which simply refuses to accept that there is a problem having taken evidence from people who know and whose views should have been given more attention. So, there is nothing in the report that moves us away from our initial position which is to oppose these criminal intelligence provisions wherever they arise in bills before the parliament and, if anything, the evidence before the committee has strengthened our resolve to continue to support the rule of law and the principles of natural justice.

Motion carried.

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