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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-11-10 Daily Xml
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STATUTES AMENDMENT (CRIMINAL INTELLIGENCE) BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Industrial Relations, Minister Assisting the Premier in Public Sector Management) (21:39): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

When the Government began the process of drafting that led to the enactment of the Serious and Organised Crime (Control) Act 2008, it became clear that that Act would have to deal with the situation where the Commissioner of Police was in possession of certain information critical to a decision and that information could not otherwise be made public or, in particular, disclosed to the individual to whom it related. This kind of information is called 'criminal intelligence'.

Criminal intelligence is evidence that suggests that a person is or has been involved in crime but which, if disclosed, could 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.

This is not a concept new to the law. The common law had long recognised such a category of information and subsumed it under the name of ‘public interest immunity'. But the common law did not deal with it well, or sufficiently, and it was not clear that public interest immunity applied to some administrative (as opposed to judicial) proceedings.

The concept of criminal intelligence had been the subject of specific legislation in other Acts that dealt with this kind of situation. As it turned out, the most significant of these was in the Liquor Licensing Act 1997.

The development of criminal intelligence provisions in a number of Acts directed to the disruption of the activities of organised crime has meant that there are now three versions on the statute book. One of them has been upheld as constitutional by the High Court. It is highly desirable and in the public interest that all these provisions conform to the constitutional model.

Criminal intelligence provisions are controversial. They operate by denying a person, for example, an applicant for a licence or a party to legal proceedings, the right to know of and respond to evidence that is prejudicial to their application or to their case. This is a breach of procedural fairness and denial of natural justice.

Because of this, criminal intelligence provisions have been the subject of constitutional challenge. There have been two such challenges to South Australian provisions;

an applicant for a liquor licence challenged the constitutional validity of former section 28A of the Liquor Licensing Act 1977. This provision was held to be constitutionally valid by the High Court (K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4);

an owner of premises that were the subject of a fortification removal order unsuccessfully challenged the constitutional validity of section 74BB of the Summary Offences Act 1953. This provision was held to be valid by the Full Bench of the Supreme Court (Osenkowski & Anor V Magistrates Court Of South Australia & Anor [2006] SASC 345).

The case before the High Court in K-Generation was being argued right at the time that the Serious and Organised Crime (Control) Bill 2008 was being drafted. The Solicitor-General of the day (Mr C Kourakis QC) was apprehensive that the Court would strike down the particular version of the criminal intelligence provision before it. He advised the drafters that some modifications should be made to criminal intelligence provisions generally to make them more amenable to High Court approval. This was done in some cases (including in the Liquor Licensing Act itself).

As it turned out, the High Court upheld the validity of the criminal intelligence provision in the Liquor Licensing Act 1977. The result was that the statute book then had (and has) on it two versions of the criminal intelligence provision. One is the one, the validity of which was upheld by the High Court. One is not.

But that is not all. The criminal intelligence provision in section 74BB of the Summary Offences Act 1953 upheld as valid by the Full bench of the Supreme Court is different yet again. So there are three versions on the statute book.

This is not a defensible position. Experience shows directly that there are those affected by criminal intelligence provisions who are willing and able to litigate the constitutionality of the provision to the High Court. This is not only very expensive for the State but, literally, takes years, during which time the operation of the provision and the legislation that depends upon it are placed in limbo. the State cannot afford the needless expense and the disruption to the operation of its policies as expressed in legislation.

If action is not taken now and quickly, these unproclaimed provisions will eventually come into force of their own effect because of the two year rule in s 7(5) of the Acts Interpretation Act 1914. For example, the one in the Liquor Licensing Act 1997 will come into effect on 4 December 2010.

All criminal intelligence provisions, including the old one in the Summary Offences Act 1953 should conform to the model upheld as constitutionally valid by the High Court in the K-Generation case. The Acts that must be amended are:

the Casino Act 1997;

the Firearms Act 1977;

the Gaming Machines Act 1992;

the Summary Offences Act 1953;

the Liquor Licensing Act 1997; and

the Security and Investigation Agents Act 1995.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

Operation of the measure will commence on a day to be fixed by proclamation.

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Casino Act 1997

4—Substitution of section 66A

Section 66A of the Casino Act 1997, which deals with the confidentiality of information classified by the Commissioner of Police as criminal intelligence, is to be repealed. A new section that is consistent in its terms with criminal intelligence provisions in other legislation is to be substituted. The new section provides that in any proceedings under Part 8 of the Act (Review and appeal), the Independent Gambling Authority or the Supreme Court must, on the application of the Commissioner of Police, take steps to maintain the confidentiality of information classified by the Commissioner of Police as criminal intelligence. Steps are to be taken to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives. The provision also provides that the Authority or Court may take evidence consisting of or relating to information that is classified as criminal intelligence by way of affidavit of a police officer of or above the rank of superintendent.

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

Section 69(4) is to be repealed by this clause. The subsection, which imposes certain requirements in relation to delegation of the function of classifying information as criminal intelligence, is unnecessary because section 19 of the Police Act 1998 deals with delegations by the Commissioner of Police.

Part 3—Amendment of Firearms Act 1977

6—Amendment of section 5—Interpretation

This clause amends the definition of criminal intelligence in the interpretation provision of the Firearms Act 1977. The purpose of the amendment is to ensure that the term is defined consistently in the State's legislation.

7—Amendment of section 26C—Right of appeal to District Court

This clause amends section 26C by substituting new provisions relating to the confidentiality of criminal intelligence. The section as amended will provide that, on an appeal to the District Court, the Court—

must, on the application of the Registrar, take steps to maintain the confidentiality of information classified by the Registrar as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives; and

may take evidence consisting of or relating to information so classified by the Registrar by way of affidavit of a police officer of or above the rank of superintendent.

Part 4—Amendment of Gaming Machines Act 1992

8—Amendment of section 3—Interpretation

The definition of criminal intelligence that applies for the purposes of the Gaming Machines Act 1992 is amended by this clause so that it is consistent with other definitions of the term. As a result of the amendment, the term will include information relating to actual or suspected criminal activity (whether in South Australia or elsewhere) the disclosure of which could reasonably be expected to endanger a person's life or physical safety.

Part 5—Amendment of Liquor Licensing Act 1997

9—Amendment of section 28A—Criminal intelligence

This clause amends section 28A of the Liquor Licensing Act 1997, which provides for the confidentiality of information classified by the Commissioner of Police as criminal intelligence. The purpose of the amendment is to make the section consistent with similar provisions in other Acts. The section as amended will provide that in proceedings under the Act, the Liquor and Gambling Commissioner, the Licensing Court of South Australia and the Supreme Court are to take steps to maintain the confidentiality of information classified by the Commissioner of Police as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives. The provision also provides that evidence consisting of or relating to information so classified by the Commissioner of Police may be taken by the Commissioner or Court by way of affidavit of a police officer of or above the rank of superintendent.

Part 6—Amendment of Security and Investigation Agents Act 1995

10—Amendment of section 3—Interpretation

This is a further amendment made for the purpose of ensuring that criminal intelligence is defined consistently in each of the Acts in which the term is used. Currently, the definition does not refer to the disclosure of information that might endanger a person's life or physical safety.

Part 7—Amendment of Summary Offences Act 1953

11—Amendment of section 74BA—Interpretation

This clause amends section 74BA to insert a definition of criminal intelligence that is consistent with the definitions in other Acts.

12—Amendment of section 74BB—Fortification removal order

This clause deletes the current provisions which protect sensitive material by reference to the principle of public interest immunity.

13—Amendment of section 74BC—Content of fortification removal order

This clause amends section 74BC to ensure that information included in, and attached to, a fortification removal order made by the Court does not include information the disclosure of which would be inconsistent with a decision of the Court under proposed new section 74BGA.

14—Insertion of section 74BGA

This clause inserts a new section relating to criminal intelligence that is consistent in its terms with criminal intelligence provisions in other legislation.

Debate adjourned on motion of Hon. D.W. Ridgway.


At 21:40 the council adjourned until Thursday 11 November 2010 at 14:15.


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