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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-03-08 Daily Xml
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STATUTES AMENDMENT (CRIMINAL INTELLIGENCE) BILL

Committee Stage

In committee.

(Continued from 25 November 2010.)

Clause 6.

The Hon. S.G. WADE: I move:

Page 3, lines 21 to 27—Delete clause 6 and substitute:

6—Amendment of section 5—Interpretation

(1) Section 5(1), definition of criminal intelligence—delete the definition and substitute:

criminal intelligence means information relating to actual or suspected serious and organised criminal activity (whether in this State or elsewhere) the disclosure of which could reasonably be expected to prejudice criminal investigations, to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or to endanger a person's life or physical safety;

(2) Section 5(1)—after the definition of to sell insert:

serious and organised criminal activity means criminal activity involving 2 or more persons who are reasonably suspected of associating for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity (within the meaning of the Serious and Organised Crime (Control) Act 2008);

Mr President, this clause, as you just reminded the committee, seeks to amend section 5(1) of the Firearms Act 1977 to provide a new definition of criminal intelligence. As the government indicated in the minister's second reading explanation, the Firearms Act is one of a number of acts with a range of models of criminal intelligence which had developed over the years as part of the government's effort to deal with serious and organised crime.

When one such model was deemed to be valid in the K-Generation case, the government decided to standardise all the acts around the K-Generation definition. So, clause 6 amends the definition of criminal intelligence in the Firearms Act to make it, shall I say, K-Generation friendly. Even though the K-Generation case was brought down in February 2009, this bill was not introduced until late 2010. We were told that it was routine but urgent and had to be passed by 4 December 2010.

Clause 6 proposes to amend the definition of criminal intelligence by inserting the words 'to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or to endanger a person's life or physical safety'.

The opposition is concerned about the vagueness of the provisions. There is no focus. Given the risks to the justice system and to policing from the use of criminal intelligence, the opposition suggests that we need to enhance the accountability and review provisions and to focus the use of criminal intelligence. We believe that the government's expressed focus on serious and organised crime should be reflected in the statutes.

This is not the first amendment to clause 6 I have had on file. The first amendment that I had drafted to amend this clause drew on the government's own Serious and Organised Crime (Control) Act with definitions of members, criminal activity and organisations. We sought to engage the government. On 9 and 10 November, the member for Bragg in the other place foreshadowed these amendments, and the Attorney-General in response said:

As far as the concerns that the honourable member raised about the obvious impact of this sort of criminal intelligence on civil liberties and the rule of law and so on, I obviously agree with her. It is clearly exceptional use of material that we are talking about here, not the general rule, and for all of the reasons that she said it is very dangerous for this sort of material to be used in a casual or not carefully thought out way. There is no argument between us about that matter.

On 19 February, I met with the Attorney-General and provided our proposed amendments, including amendments to clause 6. The Attorney-General kindly arranged for the member for Bragg and myself to be briefed by senior police and their legal advisers and we did so twice.

The police expressed their concern about the original form of the amendments. They suggested that they would be unworkable. We differed in our interpretation of how the clause would operate but we indicated our willingness to receive alternative amendments from the government. I reiterate that the opposition stands ready to develop our amendments, to evolve them. We are committed to the need to focus these special powers on serious and organised crime. We are open to changing the form of our amendments but, to ensure that we are not driving in the dark, we need the government to engage.

On Wednesday 24 November I met with the Attorney-General, and I understood that we had an undertaking from the government that it would come back with an alternative set of words. On Thursday 25 November 2010 we were advised that the government was not intending to do so. Since 8 February, I understand that all crossbench members have received briefings from senior police and a legal adviser to the police, and I understand that the Attorney has also met with a number of crossbench MLCs. I received a briefing last Thursday. However, even to that date, the government has not been engaging in a collaborative approach to legislating in relation to clause 6 or, for that matter, any other part of the bill.

What has become clear is that the government's lack of engagement on alternative amendments is founded on a determination to ensure that criminal intelligence should be available to the police in any case; that is, even where there is no suggestion of the involvement of serious and organised crime. The government does not want us to get the amendments right so that we get the focus right because the government does not want any amendments because the government does not want any focus.

So, a clear focus has emerged for this committee: is the community and this committee comfortable with secret evidence becoming a standard tool in regulatory and licensing proceedings (that is the government's position), or is criminal intelligence a special tool that should be reserved for cases with some relationship to serious and organised crime (that is the opposition's position)? The government is effectively trying to pressure the parliament not to address the policy issues. So, where does that leave us? Tomorrow, the council will consider a motion to refer the issue of criminal intelligence to the Legislative Review Committee. I consider that that proposal (a proposal to refer to a committee with government control) would be a valuable initiative, and I will speak on that tomorrow.

The government tells us that the bill will not be workable but refuses to engage this committee in developing the bill. In my view, there is therefore no point in this committee continuing its consideration, and I move:

That the committee report progress.

The committee divided on the motion:

AYES (12)
Bressington, A. Darley, J.A. Dawkins, J.S.L.
Franks, T.A. Lee, J.S. Lensink, J.M.A.
Lucas, R.I. Parnell, M. Ridgway, D.W.
Stephens, T.J. Vincent, K.L. Wade, S.G. (teller)
NOES (9)
Brokenshire, R.L. Finnigan, B.V. (teller) Gago, G.E.
Gazzola, J.M. Holloway, P. Hood, D.G.E.
Hunter, I.K. Wortley, R.P. Zollo, C.

Majority of 3 for the ayes.

Motion thus carried.

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