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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-10-19 Daily Xml
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LEGISLATIVE REVIEW COMMITTEE: CRIMINAL INTELLIGENCE

The Hon. G.A. KANDELAARS (17:18): I move:

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

On 9 March 2011, the Legislative Council resolved to refer an inquiry into criminal intelligence to the Legislative Review Committee. Criminal intelligence is a legislative class of information that can be used against a person but not disclosed to them if the information would tend to prejudice criminal investigations, identify a source or put a person's safety at risk.

There are several pieces of legislation that use the concept of criminal intelligence. It can be used as a basis to deny a person certain rights and privileges, such as the grant of a liquor or gaming machines licence, a licence to use a firearm or to operate as a security agent. It can also be used as a basis for making a declaration or granting a control order against a group engaged in serious organised crime activities under the Serious and Organised Crime (Control) Act 2008 (or SOCCA, as it is commonly known).

Criminal intelligence is only disclosed to the Commissioner of Police or his or her delegate and relevant decision-maker. There are strict legislative provisions, which provide that any court hearing a matter involving criminal intelligence must maintain the confidentiality of that information, including taking steps to receive evidence and hear arguments in private. Neither a person against whom the criminal intelligence is used nor their legal representatives is privy to the information.

The motion calling for the inquiry was introduced into the Legislative Council by Greens MLC, the Hon. Mark Parnell, in response to concerns that the concept of criminal intelligence was not used consistently across all legislation. There were also concerns that the use of criminal intelligence offended natural justice principles, such as the right of a person to know and respond to allegations against them.

Legislation which uses criminal intelligence has been subject to several High Court challenges. The first was in the High Court decision of K-Generation v Liquor Licensing Court, which considered whether the use of criminal intelligence to deny an application for a liquor and entertainment licence, under the South Australian Liquor and Licensing Act, was valid. The High Court found that the criminal intelligence provision contained in the act was constitutionally valid and did not infringe upon the court's integrity or independence.

The High Court again had the opportunity to consider criminal intelligence in the State of South Australia v Totani—this time in the context of SOCCA legislation and the issue of the declaration against the Finks Motorcycle Club and several control orders against its members. The High Court found that section 14(1) of the act, which requires the court to issue a control order against an organisation declared by the Attorney-General, was constitutionally invalid. Just seven months later, the High Court again considered this issue in the case of Wainohu v The State of New South Wales, when they found the New South Wales Crime (Criminal Organisation) Control Act to be invalid.

The Legislative Review Committee inquiry took place against the background of these High Court challenges and the debate as to the proper use of criminal intelligence and whether or not criminal intelligence provisions should be utilised in legislation at all. In the course of the inquiry, the committee heard evidence from witnesses who were of the view that legislation such as SOCCA and others containing criminal intelligence provisions offended the basic principle of natural justice and fairness in refusing to let a person know the allegations against them.

The committee also heard extensive and compelling evidence from South Australia Police. They outlined the important role of criminal intelligence in the provision of protecting police informants and eliminating criminal elements from legitimate businesses. They also gave evidence about the deterrent effect of the SOCCA legislation in dissuading the threatening and violent criminal behaviour of outlaw motorcycle gangs in South Australia. They outlined the process and the method of collation and classification of criminal intelligence and the safeguards in place against the use of incorrect and unsubstantiated information.

In the light of all the evidence, the committee recommended that the South Australian legislation should continue to contain criminal intelligence provisions. Criminal intelligence is warranted given the very serious risks posed to the community by the activities of those involved in serious and organised criminal activity. The committee is satisfied that criminal intelligence is rarely, if ever, the only source of information used against a person; and that SAPOL has robust classification policies and procedures in place to make sure that the information is used carefully, sparingly and appropriately.

Further, the committee is satisfied that decision-makers under the various pieces of legislation have ample legislative discretion as to what weight, if any, they will give to criminal intelligence in assessing an application. The committee recommends that the Serious and Organised Crime (Control) Act 2008 be reviewed as a result of the High Court decision in Totani. It should be amended in order to reflect the High Court's finding and to better withstand constitutional challenge in the future.

The committee is also concerned about the multiple versions of criminal intelligence provisions contained in various pieces of legislation. It therefore recommends that there be one definition implemented consistently and uniformly across all legislation. This will ensure certainty for decision-makers and uniformity with the High Court's decision in K-Generation v Liquor Licensing Court of South Australia.

Further, the committee recommended that a review mechanism be included in all legislation that uses the concept of criminal intelligence. Under the current SOCCA legislation, an annual review is undertaken by a retired judge as to the number of times criminal intelligence is used, how it is classified and whether the Attorney-General and other decision-makers have acted within the legislative powers.

The mandatory review of the use of powers under the SOCCA legislation has been undertaken by the retired District Court judge, Alan Moss. These reviews provide a comprehensive report of the use of criminal intelligence provisions each year and their consideration by the courts. The committee is of the view that this process would be worthwhile in ensuring that criminal intelligence is used appropriately in other legislation.

Submissions and evidence to the committee also outlined several alternative legislative models, which have been implemented in overseas jurisdictions, aimed at dealing with the issue of serious and organised crime. The Netherlands, for instance, have introduced legislation whereby authorities who issue licences and permits and consider tenders for public contracts are given the power to screen and monitor applicants and have access to secured sources of information from the police, tax and customs administration.

Evidence also outlined the successful program implemented in Japan to curtail the infiltration of the Indigenous crime gang known as the Yakuza, including the issuing of administrative orders to prevent the Yakuza from making unjust and violent demands and recruiting juveniles to join the gang. Evidence also outlined laws introduced in New Zealand that banned the wearing of gang patches, emblems and insignia. The committee recommended that the Attorney-General consider some of these approaches to tackling organised crime, with a view to implementing them in the South Australian context.

On behalf of the committee, I thank all those who made submissions and gave evidence to the inquiry. I also acknowledge the contribution of former presiding members of the committee, the Hon. Russell Wortley and the Hon. Paul Holloway, as well as members of the current committee who heard evidence and considered the report. I also thank the committee staff for their work in relation to the report, and I commend the report to the house.

The Hon. S.G. WADE (17:28): I rise to support the motion to note the report of the Legislative Review Committee in relation to its inquiry on criminal intelligence. In doing so, I draw members' attention to the minority recommendations, which are the recommendations that I support. Criminal intelligence has been part of the Rann government's media assault. Labor has been willing to trash many of the protections of our legal system so that they can proclaim themselves tough on law and order.

The government may enjoy beating their chests, but the facts condemn them. After nine years, the facts proclaim the failure of the Rann government to address serious ongoing crime in South Australia. Crimes against the person are up, and it is commonly agreed that in recent years the number of active members of outlaw motorcycle gangs has actually increased in South Australia.

The reference to the Legislative Review Committee was initiated through a motion by the Greens into one aspect of the government's campaign: the increasing use of secret police evidence in administrative and regulatory proceedings where that evidence is not available to the other party. In my view, the use of secret police evidence shows the government's lack of regard for due process and a lack of openness to common-sense checks and balances. The government's approach lacks fairness, rigour and balance.

Some say that police should be able to use whatever tactics they like to convict criminals, including by withholding evidence from the defence. Some say that criminal intelligence or secret police evidence is such an affront to justice that it should never be used. We think that the best practice lies somewhere between.

We think there is a place for criminal intelligence but not at the expense of due process, not at the expense of systems that will withstand scrutiny and not without a rigorous process to protect justice. The best form of such systems are a matter on which sensible people can differ, and it is arrogant to assume that you always have it right, but that is exactly what this government has done in this area. The Statutes Amendment (Criminal Intelligence) Bill 2010 was introduced in the House of Assembly on 27 October 2010.

Even though Attorney-General Rau referred to the criminal intelligence provisions as a breach of procedural fairness and natural justice, the Rann government failed to put in place checks and balances. The opposition put up a series of amendments to try to focus the use of criminal intelligence. Initially, the government suggested that it would come back with alternative amendments. Instead, it put up the shutters and arrogantly asserted that the laws are perfect and could not be improved upon.

The government does not listen. After nine years it has shown itself incapable of governing with balance or legislating with humility. Instead, it has left it to the Liberal opposition and other members of the crossbenches to do the heavy lifting to try to strike the right balance on criminal intelligence. We are humble enough to have substantially revised our position in the period of this committee and in the face of the evidence brought before it.

Even now, we may not have got the balance right, but we urge the council to stay engaged, to build on the good work that has been done and to make sure that we do everything we can to insist that the government puts in place an appropriate balance, that it does not merely entrench itself in what even the government itself calls those draconian laws.

The police have asked for the tools to fight organised crime. What the police got were significant variations from our legal norms which allow a person to be tried in court on evidence that may not otherwise withstand scrutiny; reforms that undermine procedural fairness and natural justice, that deny a person the chance to hear the allegations against them.

What the police need are laws that will withstand scrutiny and can be relied upon; laws which reward their hard work with robust, reliable judgements; laws that preserve and protect the public's confidence in our police, our processes and our justice system. Current criminal intelligence laws allow evidence to be little more than hearsay. Without proper checks and balances they may be enough for a person to lose their livelihood or the right to associate with whom they choose.

The law gives less protection to ordinary South Australians than terrorists receive under federal anti-terrorism legislation. That is a sobering fact. The laws introduced to fight al-Qaeda have been adapted for use in South Australia against publicans applying for a liquor licence. Either the federal government is being generous to suspected terrorists or the practice of using criminal intelligence in South Australia lacks safeguards. We consider that the law can be improved in the interests of justice. We expect that those circumstances will involve criminal intelligence overwhelmingly related to serious and organised crime.

The use of criminal intelligence should not become the norm. I fear that the government does not want to focus these laws because it wants these exceptional powers to be available against every South Australian suspected of any crime. As it stands, secret police evidence can be used against individuals who have no link to organised crime. Neither the defendant, their counsel or the judicial body hearing the evidence would be any the wiser. They simply cannot scrutinise the evidence to say otherwise.

To protect justice, the use of criminal intelligence, we believe, should be subjected to a fundamental rethink. A rethink is needed both during and after the use of criminal intelligence. During proceedings that use criminal intelligence, courts should be able to scrutinise evidence and consider all the facts when evidence is presented. If evidence cannot withstand scrutiny it should not be admitted in the interests of justice. Judicial oversight at the time of proceedings may address many of our concerns.

The process also needs transparency. The community cannot be confident that criminal intelligence is being used appropriately if it continues to be cloaked in the same veil of secrecy and the same lack of reporting and accountability. As legislators, we need to know the extent to which criminal intelligence is being used. We must know whether it is being abused.

The select committee heard that criminal intelligence powers are used sparingly. We hope that remains the case. Criminal intelligence should not be used as a substitute for the standard judicial processes unless there are strong policy reasons. Rigorous standards must be in place for this to be a credible process that maintains public confidence, confidence that this government and this Attorney-General are failing to deliver.

What a disappointment this Attorney-General has become. Many in the legal fraternity hoped that Attorney-General Rau would be the long-awaited saviour of the rule of law, but the only noticeable change has been cosmetic; we have seen a change in the tone of the rhetoric. The government continues to introduce legislation which undermines fundamental legal rights. The Legislative Review Committee heard from a variety of witnesses making a range of contributions, yet the majority report is basically for no change. Once again, it has been up to the opposition to try to find the balance.

In closing, I reflect on the events of the past week in a neighbouring jurisdiction—that of Victoria. There we see the collection of police intelligence taken to a whole new level. Sir Ken Jones, the former deputy commissioner of Victoria Police, was bugged by the Office of Police Integrity in relation to an alleged leaking of information. The covert operation that followed uncovered a number of shortcomings in Victoria's current and proposed anti-corruption models. While the ombudsman investigation did not uncover any wrongdoing by the OPI, it did serve to highlight the need for a public interest monitor to guard against the abuse of telephone interception powers.

The Victorian government listened to that advice and is now moving to establish a public interest monitor, one that will be truly independent. The contrast between the Victorian Liberal government and our state Labor government is stark. Victoria has listened and acted to protect the integrity of its justice system: South Australian Labor has not.

Special powers deserves special attention. There can be no balance without the additional scrutiny that additional powers deserve. If we are serious about protecting the rights of individuals, of the innocent, of the integrity of our judicial process, we owe it to South Australia to get the balance right. Queensland has already gone down a similar path to Victoria. The Police Powers and Responsibilities Act 2000 established the Queensland Public Interest Monitor to oversee the Crime and Misconduct Commission's use of intercepts and covert surveillance and surveillance warrants.

The Queensland PIM is an independent barrister who performs an important role in making sure that the state's special powers in relation to surveillance are not abused. They do this by testing surveillance applications against the statutory criteria, cross-examining witnesses and, where necessary, making submissions to the judge. Throughout the whole process, an independent investigator and an independent judiciary maintains its important role in this process. This is a worthy model that we consider warrants further consideration.

It should be noted that the Queensland PIM's role was not originally created to oversee telephone tapping as that power was not available to the CMC until relatively recently. However, even here, it is further acknowledged by other state governments that an increase in power necessitates an increase in checks and balances. We should not be under any illusions that somehow South Australia is immune from the abuse of powers that other states have experienced. The government has had its head in the sand for almost a decade in this regard.

Lord Acton's well-known adage, 'Absolute power corrupts absolutely,' should be at the forefront of our minds when we consider significant divergences from our established legal tradition. The use of power to protect needs to be accompanied by the appropriate protections against the misuse of that power.

I also note that the committee's evidence and deliberations highlighted that criminal intelligence can also be a corrupting influence without any mala fides from any police officer. In fact, the misuse may come from vexatious complainants or simple human error within the processes. I urge members of this place to consider the balance when relevant legislation comes before us. More than 15 per cent of today's Notice Paper comprises legislation that contains the use of secret police evidence. It is doubtful whether that proportion will decrease over time. The government seems determined to place it in any possible bill.

We as the Liberal members of the Legislative Review Committee would urge the members of this council to consider the report. It is our duty as representatives, as legislators and as South Australians to consider the rights of others and our responsibilities to them. It is our duty to weigh up these tripartite responsibilities and get the balance right.

I join the chair in thanking particularly the staff for their diligent work in supporting the committee in both its research and its preparation of the report. In that context I would stress that the minority report is an alternative statement of findings and recommendations. We as members of the minority report group broadly associate ourselves with the body of the report.

Debate adjourned on motion of Hon. Carmel Zollo.

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