Secret evidence angers SA lawyers

Independent Weekly, Page: 8. Friday, 8 August, 2008

SA lawyers and MPs have hit out at government legislation which removes a citizen’s right to hear evidence against them, this time on firearm licences.
“It’s offensive and unfair legislation,” said senior barrister George Mancini, chair of the state Civil Liberties Council.
“It stigmatises people on the basis of possibly false information.”
Under the new law, South Australians may be denied a firearms licence because of “criminal intelligence” which will be kept secret from the applicant.
Under several SA laws a person is not allowed to hear allegations or read secret documents used against them in court. People therefore cannot defend the allegations.
“Often people who supply criminal intelligence are criminals. They can use and abuse it. You can never find out who said it or seek to challenge it,” Mr Mancini said.
Innocent people can now also be caught up in the police net in SA not because of what they’ve done but because of who they know, Mr Mancini said.
South Australians can be classified as not being a “fit and proper person” because of their association with a person who has a criminal record.
“A board member of a business, club or association could have a criminal record but be a decent, rehabilitated person,” he said.
“The law could say you’re not a fit and proper person when you’ve done nothing but associate with that member.
Even the relatives or members of perfectly legal, non-criminal associations can be affected,” Mr Mancini said.
Family First MLC Dennis Hood says the law can also target people just because they’re not liked for some reason.
“But there is no definition in the law as to what constitutes a fit and proper person,” Mr Hood said.
“It seems to be very vague and is largely at the discretion of the police commissioner in his capacity as the registrar of firearms,” he said.
The new law also catches people who have had a domestic violence order issued against them, irrespective of how long ago.
This would include a middle-aged farmer or primary producer involved in a messy marriage separation in their 20s.
The government legislation passed parliament on the votes of Liberal and Labor; although the Opposition, Greens, Family First and the Australian Democrats raised major objections.
“The law even catches people who’ve been found guilty of an offence but not convicted. That’s a brand new provision,” Mr Hood said.
The changes also mean that a person subject to a firearms prohibition order cannot reside at the same premises on which there is a firearm or ammunition.
“What does this mean for spouses, relatives and farm employees who might be under such an order?” Democrat Sandra Kanck asked. “Does it mean that they would have to be turned off a farm?
“You can imagine the potential implications of a farmer dropping in on another farm where one of the household is under a firearms prohibition order; or even one person meeting another to go out and shoot some rabbits.
It certainly does have a lot of implications,” Ms Kanck said.
The Liberal Party moved some amendments to the government Bill, although it supported the overall concept. “I think that if you had the wrong people administering this legislation with a vendetta against law-abiding firearms owners and users, there could be some circumstances whereby people are captured as a result of over-zealous application of this Bill,” Upper House Liberal leader David Ridgway conceded.
Meanwhile, the onus of proof has shifted from the police to the individual with changes to the Controlled Substances Act, which parliament passed with the support of the Liberal and Labor parties.
It means householders have to prove they have a lawful reason ‘ for owning carbon filters, lamps and lamp mounts, or face two years ‘ jail or a $10,000 fine.
This is because the items can be used by other people to grow indoor marijuana.
Traditionally the prosecution has to prove beyond reasonable doubt that a person was using the equipment for hydroponics.
South Australians now have to prove themselves not guilty, rather than the other way around, and can go to jail it they don’t succeed.
A court hearing which will test the validity of this and other legislation may commence as early as next month, the High Court said yesterday.
SA’s Liquor Licensing Act is one of those laws which says an applicant for a new licence must be a “fit and proper person”.
Company director Genargy Krasnov was denied a liquor licence on the basis of police “criminal intelligence”, but Mr Krasnov is not allowed to know what allegations were used against him.
Mr Krasnov’s lawyer Steven Churches has been granted leave to appear before the High Court to argue that this is a denial of natural justice, and therefore unconstitutional.