In Committee.
 Clauses 1 to 3 passed.
 Clause 4.
  The Hon. P. HOLLOWAY: I move:
 Page 1, lines 21 and 22óLeave out `amended by striking out from subsection (3) "beyond"' and all words in line 22 and insert:
 amendedó
  (a) by inserting after subsection (2) the following subsection:
     (2a) The Commissioner or person representing the Commissioner in proceedings before the Tribunal must, at the commencement of the proceedings, indicate to the Tribunal the punishment that the Commissioner considers would be appropriate if the Tribunal finds the member guilty of the breach of discipline.;
  (b) by striking out from subsection (3) `beyond reasonable doubt';
  (c) by inserting after subsection (3) the following subsection:
     (3a) The Tribunal must, when remitting proceed-ings to the Commissioner under subsection (3), indicate to the Commissioner whether or not the Tribunal was satisfied beyond reasonable doubt that the member committed the breach of discipline.;
  (d) by inserting after subsection (4) the following subsection:
     (5) When proceedings are remitted to the Commis-sioner under subsection (3), the Commissioner may not as punishment of the member terminate the member's appointment unless the Tribunal indicated that it was satisfied beyond reasonable doubt that the member committed the breach of discipline.
The purpose of this clause is to change the burden of proof in police disciplinary proceedings from beyond reasonable doubt to the balance of probabilities. The reason given in the explanation to this Bill is as follows:
 The change. . . is necessary to ensure that the disciplinary process is not thwarted because something cannot be proved beyond reasonable doubt. It is acknowledged that the outcome of disciplinary proceedings can be very serious for an officer but it is also a very serious matter for officers who should be disciplined, or even dismissed, to avoid any penalty because a matter cannot be proved beyond reasonable doubt.
The explanation goes on to talk about the Briginshaw case to which the Attorney has just referred. It is the view of the Opposition that we have been well enough served by the current provision which requires that, for any police officer to be disciplined, it has to be proved beyond reasonable doubt they have committed an offence. However, the thrust of our amendment would be to change the burden of proof in minor disciplinary matters to the balance of probabilities. The result of our amendment, if it were to pass, would mean that an officer could be dismissed only on the grounds that the charge against that officer had been proved beyond reasonable doubt. The Opposition believes that that should be a reasonable compromise in this matter.
 I know that it will be argued by the Attorney-General that the Briginshaw test, and this is referred to in the second reading speech, is such that the more serious the issue of discipline involved, the more demanding the process by which reasonable satisfaction is attained, as it is worded in the Bill. I suggest that the amendment, rather than leaving it to some principles set out in a High Court decision, simply establish that in law. When the most serious penalty is being considered by the Commissioneróthat is the dismissal of a police officeróthe case against that officer should be proved beyond reasonable doubt.
 By way of analogy, I ask what members of Parliament would think if they could lose a seat based on a conviction for an offence that was based on the balance of probabilities. I would think that most members of Parliament would argue that that would be an extremely unfair penalty. I make the point that the dismissal of a police officer based just on the balance of probability is an unduly harsh penalty. For those reasons, I ask the Committee to support this amendment.
 
The Hon. IAN GILFILLAN: I move:
 Page 1, line 21óAfter `amended' insert:
 (a) by inserting after subsection (2) the following subsection:
   (2a) The Commissioner or person representing the Commissioner in proceedings before the Tribunal must, at the commencement of the proceedings, indicate to the Tribunal which of the following categories of punishment the Commis-sioner considers would be appropriate if the Tribunal finds the member guilty of the breach of discipline:
   (a) category Aótermination or suspension of the member's appointment or reduction of the member's remuneration;
   (b) category Bótransfer of the member, reduction in the member's seniority or imposition of a fine;
   (c) category Cówithdrawal of specified rights or privi-leges, a recorded or unrecorded reprimand, counsel-ling, education or training or action of a kind pre-scribed by regulation.;
The amendments are different. The Democrats support the Government's move to have the balance of probabilities as the criterion which determines the result of hearings before the tribunal so, in that respect, there is no variation in our attitude and that of the Government. I spoke to that in my second reading speech and do not intend to go over that again. Suffice to say, we believe, as we have said several times, that the police is a unique area of service. There has to be, as far as one can get it, impeccable trust by fellow officers and the public of those serving as police officers.
 With that background, we are persuaded by the importance of the fact that the measure in the Bill is maintained and that it be decided on the balance of probabilities, and that should cover all likely punishments, including that of termination of employment. Whilst our amendment reflects the Briginshaw case, in that the tribunal will naturally exercise some sensitivity to the seriousness or gravity of the offence, and the likely consequences, it states in categories (a), (b) and (c) the actual possible penalties indicated to the tribunal from the charges laid by the Commissioner or the person representing the Commissioner.
 The Hon. K.T. GRIFFIN: Both amendments are opposed. If either of them is to be preferred, in a rather cautionary sense, I guess the Government would prefer to see the Hon. Mr Gilfillan's amendment rather than the Hon. Mr Holloway's amendment. However, as I say, we would prefer to see neither. I would hope in the course of consideration of the amendments, whether now or later, we would be able to demonstrate that the way in which the Hon. Mr Gilfillan wishes to go is quite impractical and unworkable.
 Both members are moving to insert a new subsection (2a). Both new subsections (2a) require the Commissioner to indicate to the tribunal, at the commencement of the proceed-ings, the punishment the Commissioner considers would be appropriate if the tribunal finds the member guilty of the breach of discipline. The Hon. Mr Gilfillan's amendment requires the Commissioner to indicate one of three categories of punishment. The Government has several problems with these amendments. It may be that what emerges at the hearing shows that the breach was more serious than the Commis-sioner thought. Is the Commissioner to be bound by his indicated punishment? If the Commissioner could not impose a higher penalty than the penalty he or she had indicated, serious misconduct could go inadequately pun-ished.
 To allow the Commissioner to impose a higher penalty than the one indicated could be regarded as unjust and leave his or her decision open to challenge. Any penalty imposed for a breach of discipline should be based on all the facts, including information provided by the person charged in mitigation.
 The Hon. Paul Holloway's amendments also amend section (3) and adds a new section (3a) and (5). The effect of these amendments is to prevent the Commis-sioner from terminating a member's appointment unless the tribunal had indicated that it was satisfied beyond reasonable doubt that the member committed the breach of discipline. Sub-clause (5) could have the effect of the tribunal finding on the balance of probabilities that a member was corrupt or criminal, yet the Commissioner would not be able to dismiss the member unless the tribunal indicated that it was satisfied beyond reasonable doubt. This is a solution that would leave most people full of disquiet and ignores the substantial public interest in having a police organisation which the community can trust. The effect on honest members of the police when they see criminal or corrupt members able to resist their removal through legal reasons also needs to be recognised.
 I have acknowledged that there can be no doubt that dismissal for misconduct is a severe consequence. However, the effect on the individual officer is not the only consider-ation; the substantial public interest in having a police organisation which the community can trust also needs to be recognised, as does the effect on honest members of the public when they see criminal or corrupt members able to resist their removal.
 I make one further observation in respect of the position of the tribunal. When the tribunal makes its finding it has to be aware of the consequences that may flow from its decisionóthat is, it will be aware of them in a broad sense when it will, in accordance with Briginshaw, have to take the consequences into account when deciding the strength of the evidence necessary to establish the fact or facts on the balance of probabilities. In my view and in my submission it does not matter that the tribunal does not know the exact consequences which may flow from its determination. It is aware of the range of consequences and will have reached its own conclusions on the seriousness of the breach of disci-pline.
 One other point I want to make is that the Commissioner, in opposing his or her punishment, cannot act capriciously. The Commissioner has `the obligation of any sentencing court to make the punishment fit the offence and the circum-stances of the offence as nearly as possible'. That was a decision of the South Australian Full Court in the Whickham v. Commissioner of Police case back on 6 May 1998. The judges were Matheson, Prior and Debelle. So there are powerful reasons for rejecting both amendments, which the Government now does.
 The Hon. P. HOLLOWAY: I am realistic enough to read the numbers in this place. If there are two competing amendments and only one can get up, the numbers are such that it will not be the amendment moved by the Opposition. I am disappointed about that. I think that police officers deserve the protection of the Parliament. It has been conceded by most people in this Council that police officers can be subject to malicious and vexatious complaintsóall sorts of complaintsóall the time. Given that, if you are deciding things on the balance of probability sooner or later an honest policeman will be dismissed by virtue of there being suffi-cient malicious complaints made against him or her.
 I am disappointed that the Opposition's amendment will not get up, but I guess that is the way the numbers fall. I will not divide on the amendment, but that should be taken in no way as a reflection on the Opposition's strength of view on this matter. We see the Gilfillan amendment as being the very minimum in relation to the protection that police officers deserve. If the Gilfillan amendment is carried any police officer facing charges will have some indication about the seriousness of the implications of the charge and can therefore, I guess, vote their case accordingly. At least it gives them a fighting chance, if I can put it that way, in terms of any disciplinary proceedings. Although we are disappoint-ed that our amendment will not get up I indicate that we will be supporting, as a fall-back position, the Gilfillan amendment.
 The Hon. K.T. GRIFFIN: No-one denies that police officers need to be protected from malicious complaints. It is not the Government's intention to deny that position. On the other hand, we have to ensure that there is a process in place according to the appropriate principles to ensure that if there are corrupt officers or those who have committed other criminal offences they do not remain a part of SA Police. I make the point that in no other jurisdiction is there proof beyond reasonable doubt required of the matters for which we now seek to amend the burden of proof. There do not appear to have been significant, if any, problems with the application of that in those jurisdictions. That gives the Government some comfort that this will not prove to be a source of alarm and concern to serving police officers who always act properly and in the interests of the public. The cause for concern created particularly by the Police Association I believe in the longer term will prove to be unfounded.
 The Hon. P. HOLLOWAY: I wish to make one final point. The Attorney-General says that in other States there is no concern about the way the clause operates. Perhaps we should ask whether there has been any concern about the way the existing provision has operated in South Australia. Does the Government or the Police Commissioner believe that the current provision, which requires proof beyond reasonable doubt, has failed in any particular cases?
 The Hon. K.T. GRIFFIN: The answer is `Yes.'
 The Hon. P. Holloway's amendment negatived; the Hon. I. Gilfillan's amendment carried; clause as amended passed.
 New clause 4A.
 The Hon. K.T. GRIFFIN: I move:
 Page 1, after line 22óInsert the following new clause:
 Amendment of s. 46óAppeal against decision of Tribunal or punishment for breach of discipline
 4A. Section 46 of the principal Act is amendedó
 (a) by striking out from subsections (1), (2), (4), (5), (6) and (7) `Supreme Court' (wherever occurring) and substituting, in each case, `Court';
 (b) by inserting after subsection (7) the following subsections:
   (8) No further appeal lies against a decision of the court made on an appeal under this section.
   (9) In this sectionó
    `Court' means the Administrative and Disciplinary Division of the District Court.
This amends section 46 to bring appeals from the Police Disciplinary Tribunal into line with the appeal provisions against dismissal for unsatisfactory performance in the Police Bill 1998. In that Bill the appeal will be from a tribunal constituted by a magistrate to the Administrative and Disciplinary Division of the District Court. Under the Police Complaints and Disciplinary Proceedings Act disciplinary charges are heard by the Police Disciplinary Tribunal constituted by a magistrate, and there is an appeal to the Supreme Court. This is not something that should go to the Supreme Court. The appeal to the Supreme Court was appropriate before the Administrative and Disciplinary Division of the District Court was created. Now that we have that division, it is the appropriate body to hear disciplinary appeals.
 The Hon. P. HOLLOWAY: The Opposition does not oppose the amendment.
 New clause inserted.
 Clause 5 and title passed.
 Bill read a third time and passed.
 
 

 
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