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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-02-23 Daily Xml
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CRIMINAL INTELLIGENCE

The Hon. M. PARNELL (17:54): I move:

That noting the recent decision of the High Court in the case of State of South Australia v Totani and Another, the Legislative Council refers the following matters to the Legislative Review Committee for inquiry and report:

1. The extent to which South Australian legislation includes the concepts of criminal intelligence, declared organisations or control orders;

2. Any concerns about the constitutional validity of such provisions;

3. The consistency of such provisions with established legal principles;

4. The impact of such provisions on the civil liberties of South Australians;

5. The effectiveness of such provisions;

6. The desirability or otherwise of expanding or contracting the use of such provisions in legislation;

7. Whether any amendments to any acts are necessary or desirable; and

8. Any other relevant matter.

This motion calls for the issue of criminal intelligence to be referred to the Legislative Review for inquiry. The use of criminal intelligence in South Australia is a dog's breakfast of inconsistent measures; some of these measures are legally invalid. This motion refers to the High Court case in the state of South Australia against Totani and another and, as members would know, this was in relation to the Serious and Organised Crime Act, which was passed by this parliament in 2008. The Greens did not support that bill and our opposition to it was vindicated by the High Court.

As well as the use of criminal intelligence in criminal cases, we also find the concept in use in a range of administrative laws such as licensing. I do not propose to debate any other items on the Notice Paper now, but I just point out to members that we have two government bills—one dealing with licensing and the other with knife crime—that incorporate criminal intelligence, and we are likely to see at least one or two other bills in the near future. We have not yet seen the government's proposed bill to fix the problems with the serious and organised crime act.

What is missing from the current debate is the opportunity for a thorough analysis of the pros and cons of criminal intelligence in all its forms. Debating the issue bill by bill in parliament is not the best way to get all the information out. We have all received detailed submissions from groups such as the Law Society and the Bar Association, yet those groups do not have the opportunity to front before parliament, give evidence and answer questions. That is why we need to refer this matter to a committee. I have proposed a legislative review committee. That seems to me to be the appropriate forum but it could just as well be a select committee, and I am open to other suggestions on that.

I want to put on the record the Greens' support for our police and the job they do. We want the police to have appropriate powers and resources to be able to do their job according to law, but we do not want to throw out centuries of civil rights, including the fundamental right to know and respond to allegations made against you, whether in criminal trials or in administrative cases, such as licensing matters. That is why the Greens have opposed criminal intelligence in the past and, unless it is substantially reformed, we will be opposing it in the future.

I would like to put on the record my appreciation of the briefings I have received from the police, both recently and over the past few years, as these bills incorporating criminal intelligence have come before us. The police have described a number of situations where bad outcomes would have resulted if criminal intelligence could not be used. The police point to cases of violence, intimidation and death threats that never find their way into admissible evidence because of the fear of retribution against those who assist the police. However, the question is whether the use of untested criminal intelligence is the only solution. I do not think it is, but that is what I would like to see this committee investigate.

What are the alternatives? How else can we assist the police in gathering admissible evidence? Is it a question of more resources to give the police greater capacity to gather evidence? Maybe it is. Another question we need to ask ourselves is: what is the price we pay for protecting civil liberties? Is the price that some crimes will go unsolved? Will the price be that some inappropriate people manage to get licences for various activities? Is that the price we pay? Well, perhaps it is.

By analogy, quite rightly we do not allow torture of suspects, even though we know it would probably help solve crimes, it would probably prevent crimes and it may even save lives, including mass murder and terrorism, but we do not allow torture of suspects because it is wrong. The debate, I suggest, should not be about scrapping human rights to ensure maximum conviction rates or to allow dubious intelligence to achieve the status of fact, which is what can happen with criminal intelligence.

In conclusion, while the government keeps presenting bills to us that infringe civil liberties, the Greens will insist on the most thorough debate. I urge all members to support this motion. Let 's open the doors of this place to a proper debate. We want to hear from the Law Society, the Bar Association, the police, victims' groups and the public, and our democracy will be better for it.

Debate adjourned on motion of Hon. I.K. Hunter.

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