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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-05-17 Daily Xml
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STATUTES AMENDMENT (CRIMINAL INTELLIGENCE) BILL

Final Stages

Consideration in committee of the House of Assembly's message.

The Hon. G.E. GAGO: I move:

That the Legislative Council no longer insist on its amendments but make the following amendments in lieu thereof:

Amendments Nos 1 to 19—

New Part, page 4, after line 23—After clause 9 insert:

Part 5A—Amendment of Police Act 1998

9A—Insertion of section 74A

After section 74 insert:

74A—Special provisions relating to criminal intelligence

(1) The Commissioner must establish guidelines in relation to the assessment of information that is being considered for classification as criminal intelligence and the management of criminal intelligence.

(2) The Commissioner must ensure that records are kept in relation to the use of criminal intelligence.

(3) The Commissioner must ensure that records referred to in subsection (2) would enable the following information to be determined for each period in relation to which a review is conducted under this section:

(a) the number of matters in relation to which criminal intelligence was used during the period;

(b) the number of individual pieces of criminal intelligence used in relation to each such matter;

(c) the relevant statutory provision for each such matter.

(4) The Attorney General must, before 1 July in each year (other than the calendar year in which this section comes into operation), appoint a retired judicial officer to conduct a review on—

(a) the effectiveness of the guidelines established under subsection (1); and

(b) the use of criminal intelligence,

during the period of 12 months preceding that 1 July.

(5) The Commissioner must ensure that a person appointed to conduct a review is provided with such information as he or she may require for the purpose of conducting the review.

(6) A person conducting a review has, in so doing, the powers of a commission of inquiry under the Royal Commissions Act 1917 (and any obligations under an Act to maintain the confidentiality of information do not apply with respect to the provision of such information to the person conducting the review).

(7) A person conducting a review must maintain the confidentiality of criminal intelligence provided to the person.

(8) A report on a review must be presented to the Attorney General on or before 30 September in each year.

(9) The Attorney General must, within 12 sitting days after receipt of a report under this section, cause copies of the report to be laid before each House of Parliament.

(10) In this section—

criminal intelligence means information classified by the Commissioner, in accordance with the provisions of any other Act, as criminal intelligence;

judicial officer means a person appointed as a judge of the Supreme Court or the District Court or a person appointed as judge of another State or Territory or of the Commonwealth.

Amendment No 2—

Long title—After 'Liquor Licensing Act 1997;' insert:

the Police Act 1998;

The government introduced the criminal intelligence bill with the simple aim of ensuring that all criminal intelligence provisions on our statute books conform with the criminal intelligence provision endorsed by the High Court in K-Generation.

This is considered necessary to ensure that all South Australians are treated equally and fairly before the law and to avoid expensive High Court litigation challenging the criminal intelligence provisions in the Firearms Act 1977, the Liquor Licensing Act 1997 and the Casino Act 1997 which currently do not conform.

The opposition moved amendments to the government's bill which the police believe are flawed and unworkable and which have the effect of watering down the bill to the benefit of criminals. For months, the opposition ignored the pleas of our senior police to stop trying to water down this legislation. Now, finally, the opposition has conceded its folly and has agreed to pass the government's bill with amendments which keep the government's bill completely intact and which simply enhance it in areas where the government believes it can safely compromise. The government makes no apologies for that.

The amendments provide additional safeguards in relation to the use of criminal intelligence under any act by introducing a section in the Police Act 1998 that requires the Commissioner of Police to establish guidelines in relation to the assessment and management of criminal intelligence and to keep records in relation to the use of criminal intelligence by police; and provides for an annual review by a retired judge of the effectiveness of the commissioner's guidelines and of the use of criminal intelligence by police.

The retired judge conducting the review has the powers of a royal commissioner, which includes power to compel the production of documents and the provision of information by a person. In closing, I say that that the government is delighted that, after holding this state to ransom, the opposition has seen the light. It will make South Australia a safer place.

The Hon. S.G. WADE: The message, of course, advises the Legislative Council that the House of Assembly has rejected amendments that were passed by the Legislative Council on 29 March. The fact that it took six sitting days and six calendar weeks for the government in the House of Assembly to respond to the message from the council makes a mockery of the government's claims of urgency on this bill. This delay was all about politics. The Weatherill government, like the Rann government before it, continues to play politics with public safety.

In relation to this bill, the Liberal Party has consistently supported the use of secret police evidence, provided it has the checks and balances the law requires and the community expects. In early 2011, on the motion of the Hon. Mark Parnell, the Legislative Review Committee considered the use of criminal intelligence. The committee recommended an annual independent review of the use of criminal intelligence. It is hard to imagine an effective review process without effective recording and reporting, yet the House of Assembly objected to the council amendments to the bill to that end.

The other area of contention has been safeguards. The Liberal opposition supported standardisation, following the K-Generation case, but sought greater clarity on the basic process requirements the High Court expects to be implemented to protect justice and to protect constitutional compliance. The opposition proposed safeguards based on commonwealth laws, which protect similar interests. The commonwealth laws might call them 'law enforcement interests', whereas our state law calls them 'criminal intelligence'.

The government has steadfastly refused to discuss safeguards. In fact, the government has persistently misrepresented our position. We saw that again tonight in the minister's comments. For example, the Attorney-General asserted that the Liberal amendments would threaten intelligence sharing with South Australia. If that were true, the states would have already stopped sharing intelligence with the commonwealth, in light of the fact that the provisions are very similar to those in commonwealth law.

The Attorney-General claimed that the amendments would see intelligence being handed over to criminals when the amendments specifically say that the authorities could withdraw information. The safeguards are no higher than are available to bikies under section 22G of the Serious and Organised Crime (Control) Act, which this house passed recently. The government is willing to provide stronger safeguards to criminals than to ordinary citizens—citizens who are simply trying to run an honest business, citizens who are trying to make an honest living, citizens who the government wants to treat with the same suspicion as organised criminals but without the safeguards.

On Monday, the Attorney-General wrote to me and other members offering to support an amendment which incorporates most of the Liberal Party's proposed changes to the Statutes Amendment (Criminal Intelligence) Bill 2010. Having resisted Liberal Party calls to amend the bill for 19 months, the government has accepted the need for serious oversight. The amendment addressed three key elements. First of all, quality assurance: the Commissioner of Police will be required to establish guidelines for the assessment of information being considered for classification as criminal intelligence. Secondly, there will be record keeping. Prior to the questioning by the Liberal Party on this bill, the government was not able to tell us the number of times criminal intelligence was used and in what circumstances. This bill will now require that.

Thirdly, the bill as amended will require annual reporting. The Attorney-General will now be required to appoint a retired judge to investigate the use of criminal intelligence and report on the use of criminal intelligence and ensure compliance with commissioners' guidelines. As an aside, I mention that the Liberal Party has also specifically advocated for a parliamentary oversight committee to be established to oversee the ICAC and organised crime legislation, and we see that including criminal intelligence. Having originally opposed parliamentary oversight, the government has included a crime and corruption committee in the ICAC bill currently before the House of Assembly.

The Liberal opposition welcomes the fact that the Attorney-General has recognised the need for accountability, oversight and review and that the amendments before us provide that to the extent I have explained. I am disappointed the government had not agreed to some form of court-based safeguards, but the Liberal amendments have given South Australia a better, more accountable set of laws.

I take the opportunity to thank crossbench members of this committee who supported the amendments for their support throughout the passage of this bill. Their commitment to quality law making has ensured that South Australians have what the Attorney-General describes as 'a better bill'. I am disappointed that the government insisted on moving the amendments, rather than giving me the opportunity to do so, but the opposition will support them.

Motion carried.


At 18:08 the council adjourned until Tuesday 29 May 2012 at 14:15.


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