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.