Page 5149 - Week 12 - Thursday, 27 October 2011
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the offence of guilt by association which the Assembly discussed during 2009. At the time I said that this alternative path was risky because it quickly and blindly legislated without thinking through all the consequences; it risked driving serious organised crime further underground and actually making the situation worse.
The argument was made in 2009 by the opposition that the government needed to create the power to declare organisations to be criminal gangs and to ban their members from meeting. It was also argued that the ACT would be swamped by outlaw motorcycle gangs if we failed to create such a crime. During the debate in 2009 the Greens were clear that our position was that guilt should be determined by the offence you commit, not the group you belong to.
Of course since 2009 we have also had the High Court ruling to invalidate the approach adopted in New South Wales of crime by association. What the 2011 High Court case found was that the New South Wales laws were repugnant to the concept of judicial independence under the Australian Constitution; that is, it conferred a non-judicial function on the courts and went a step too far. The bill today is consistent with that approach that we Greens prefer because it allows for better investigation powers for police to enforce existing criminal law which is adequate.
The bill will allow for better investigation of crime because it gives operatives more certainty that their personal name and address information will not get into the wrong hands. The bill enables the Chief Police Officer to issue a certificate to an operative that allows them to appear in court and give evidence under an assumed identity. The certificate will only be issued where having the true name or address of the operative on the court record would jeopardise the safety of the operative or the continued viability of the operation.
Allowing the Chief Police Officer to issue the certificate at the start of a court hearing will give the operative greater certainty that they will be safe. Currently the law allows for an application to be made to the court for the judge to agree to the use of an assumed name. This process is not certain and ironically requires the police to spell out the reasons in open court why it is dangerous to have the name and address of the operative disclosed. This has the potential to give more information to the very people who may endanger the operative after the trial.
It is also important to note that the bill provides the ability for the court to overrule the certificate and allow for the operative to be examined about their private identity. This will be an option open to the court where evidence of the private identity of the operative is relevant to their credibility as a witness and the case requires that that credibility be examined.
One interesting development that has happened in the UK recently and which is related to this type of scheme is the one Mrs Dunne referred to. I would like to thank her for bringing it to my attention. As was reported in the Guardian newspaper last week, there have been a number of bizarre uses of assumed identities in the United Kingdom. There are reported instances of undercover operatives being embedded in the Reclaim the Streets movement for five years and going as far as starting families with the activists they were investigating. Based on the reports I have read I would
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