Adjourned debate on second reading.
(Continued from 3 June 2015.)
Ms CHAPMAN ( Bragg—Deputy Leader of the Opposition) (11:09): I rise to speak on the Statutes Amendment (Serious and Organised Crime) Bill 2015 and indicate to the house that the opposition, consistent with supporting the government in ensuring that we do deal with organised crime, will support the passage of this bill through this house.
Let me say, as lead speaker, that we note this morning that amendments are foreshadowed on this bill already before we even commence the debate on this bill in respect of some of the novel approaches to be adopted if the passage of this bill is successful in the parliament as a whole. It illustrates to us exactly why it is necessary that there be adequate and proper consideration of this bill and, indeed, that there be a thorough examination of its application, both intended and unintended. We will do that.
We will work with the government to ensure that we deal with organised crime in this state, but we will make sure that, after 10 years of failed attempts at this objective, this time it works and that we do not end up in the High Court spending taxpayers' money yet again on a failed formula. That is not acceptable to us. We know it is not acceptable to the public of South Australia and it ought not be acceptable to the government. We will thoroughly examine this and we commenced that process since the introduction of this bill only 13 days ago on 3 June 2015.
May I also point out that we are considering and being asked by the government to consider and debate this bill at a time when we celebrate the 800th birthday of the Magna Carta, a charter first published in 1215 in England. Under the pressure of dissenting barons, King John signed a document curbing his own power and importantly providing protection to free men.
Its rocky road of application resulted in changed content, but by 1297 it had prevailed and provided the basis of English law. Many countries, including Australia, have benefited from its noble intention of justice and liberty for all and it has now enshrined in our own Australian constitution—in particular for today's purposes—the establishment and fearless independence of the High Court and judiciary.
It provides the foundation on which our legal system, executive power, responsible government and our parliament's democracy is balanced. Doctrines of the rule of law and separation of power permeate the basis on which we proudly promote the principles of justice. Many clauses in the Magna Carta are arguably dated, as we would expect, and discriminatory by today's standards.
But one enduring clause remains: no man shall be arrested or imprisoned except by the judgement of his equals. To no-one would we sell and to no-one will we deny or delay the right of justice. Fundamental to ensuring that justice is available to all, the law applies equally to all, and those in authority may only exercise their power according to the law. Justice must be available, the law applies to all, no-one is above the law, and there is a curbing of executive power. It is the separation—the role of the parliament ,the government and the judiciary—which supports this.
Today we have before us a bill, part of which at best challenges this separation of power, and at worst grossly offends these doctrines. For me, as a member of the legal profession, it is disturbing and confronting. As a Liberal, I am certainly concerned and conflicted. However, as a legislator, I ask 10 questions:
1.What are we being asked to do?
2.What is the ill that we aim to cure?
3.Has our current law failed?
4.Why has it failed?
5.Is the government justified in asking us to progress the bill's passage in haste?
6.Should the public have a say or, indeed, members of the judiciary and legal profession?
7.Is the model proposed the best way forward?
8.Will it achieve those objectives?
9.If defective, can it be salvaged with amendment?
10.Should it be abandoned?
Let me start by making it absolutely clear that the government's request that we push this through the parliament is offensive and without merit. We on this side of the house acknowledge that serious and organised crime is with us, that it is destructive and dangerous to the safety and wellbeing of our people, and that it is undertaken, in part, by members of outlaw motor vehicle gangs. That is a given.
The government claimed that the security of members of parliament or staff, or, indeed, their advisers, may be at risk if we do not act quickly. That assertion is wholly rejected. I have not been the subject of any threats or intimidation during the last 10 years of law reform debates to curtail serious and organised crime in this state. I know of no colleagues who have been victims of the same, nor has any evidence been presented to us that those in New South Wales and Queensland introducing the advanced reforms that we are now considering have been placed in that position. The police commissioner has reassuringly confirmed to us that the risk of that is low. That is in direct contrast to what we have been presented by the government.
It is not as though we have not been asked to deal with the swift passage of legislation. Back in 2012, when we were debating major reforms after a High Court challenge in the case of Totani and other matters in the High Court arising out of hearings and appeals in other states, we were also asked by Premier Weatherill to deal with the matter so swiftly that we were asked to suspend standing orders for the passage of comprehensive reforms in this area, not just addressing the issues in the High Court, but adding on four new tranches of law reform—all of which we supported—but, because there had been an incident involving allegations of violence by members of an outlawed motor vehicle organisation, the government said that we must act post haste.
Our position is very clear: we will not be bullied into submission to the requests of the government—and shame on them for even attempting to incite fear of such intimidation to achieve their objective. In a week during which the government plans to present their next financial plan for the financial security of the state, we would have to consider the real reason why the government are asking us to debate this in an environment where they have utterly failed the fiscal financial security of our state and management of its affairs. It does not surprise me that they make that attempt, but it is shameful that they ask us to do so with such novel and challenging reforms that they are asking us to deal with in this parliament. We will not be bullied.
Furthermore, if there was such urgency, why did the government not commence this legislative process last year? Last year—as soon as they were asked by the police to do so; as soon as the High Court handed down its judgement in Kuczborski v State of Queensland? They did not, and they did not in 2012. It took them two years to bring a tranche of reform after the High Court challenges, after Totani and the decisions made arising out of New South Wales. Two years. That is how urgent it was for them then. But we supported them, we agreed to consider the matter in haste, and we were given reassuring promises by the then Premier on how important it was that they be advanced quickly and that they would be effective. In fact, he said on 14 February 2012:
Community safety is the government's highest priority. Organised crime is a threat to the community. Anyone listening to the radio or watching television recently would understand the length which organisations are willing to go to and their propensity to reoffend. The government is now proceeding with a suite of measures directed towards organised crime gangs in South Australia. These measures do not stand alone; they are part of a picture that, when taken together, will undermine and disrupt these criminal gangs. Starting on this first day of parliament, we will restore and reintroduce three bills that have now been held up in another place.
That was his promise to South Australia three years ago, and we will be canvassing during this debate what has happened to that, and why it has utterly failed. However, may I say that, although novel legislation, pioneering legislation, ground-breaking legislation, is not new, and although the management of organised crime forms the basis for justifying a new and novel approach, it is not exclusive to this state government.
I acknowledge that this government is not alone in attempting to provide protection to its citizens against the illegal or offensive conduct of others. In fact, as we speak, the Australian government is proposing reforms, arguably novel as they are, by introducing legislation to deal with terrorists and those who threaten our civilised and peaceful existence, specifically proposing ministerial power to strip citizenship from those in question, arguably, equally offensive to some, and, in particular, to the doctrine that we are so fiercely defending, and celebrating its document of origin, the Magna Carta.
But, we are yet to see the detail of that bill, and in particular whether their bill will include judicial review and specific provision for the appellant role, at least to remain with judicial officers. There the public, the legal fraternity, the political groups, the academic world, are all debating those matters. It is in the public arena, and that debate continues, as it should.
In South Australia, let us consider what has happened so far in this war against organised crime. In 2008 the government progressed, and really initiated the first serious legislation in respect of organised crime, and in progressing what they described as their 'bikie gang' legislation in the Serious and Organised Crime (Control) Act of 2008. It dealt with criminal organisation laws. As we now know, those initial attempts to declare organisations illegal pursuant to that legislation were rejected by the High Court.
It is not necessary to traverse why: suffice to say that in the debates we had around that legislation concerns were raised—legitimate concerns—that it would not survive the High Court. The model presented did have weaknesses, and there could be a failure of application as a result of a successful challenge. Nevertheless, the government and the opposition worked to support its passage, and we traversed the issues comprehensively.
The Finks motorcycle club was the first club to be declared an illegal organisation in May 2009. However, the Full Court on appeal rejected our 2008 laws for reasons that are now well known. The government appealed to the High Court and in November 2010 that challenge was thrown out. There was much embarrassment to the government, remembering the failure in that process had two very real consequences. One is that the taxpayers of South Australia were asked to fund a very expensive exercise through multiple levels of court to our highest court in the nation. Secondly, the public were left, notwithstanding the grand promises of the government, without the protections that that legislation purported to provide.
In June 2012, amendments to the Serious and Organised Crime (Control) Act 2008 were passed ultimately and, by 2013, the police were preparing applications for the Finks, Hells Angels and Rebels motorcycle clubs—three long-standing motorcycle clubs I am advised in South Australia—to be declared. In July 2013, there were the further amendments to the SOCCA legislation, plus the further measures, which I have indicated the Premier was so quick to tell us about, to disrupt the activity of motorcycle gangs were passed. New offences were created to criminalise participation, either knowingly or recklessly, and this included recruitment. The detail of that legislation has been comprehensively repeated in the Attorney's second reading explanation and I will not repeat it.
In October 2013, plans to declare the Finks motorcycle club a criminal organisation were met with the club's change of name to the Mongols, arguably thwarting the attempt to have them declared and potentially of course thwarting the police's effort to present a case against them that was likely to be successful. It is clear—we read about it in the newspapers on a regular basis—that the police have charged and convicted persons who are members or were formerly members of outlaw motorcycle gangs. We understand that, of over 300 members of outlaw motorcycle gangs in South Australia, the police have been successful, no doubt with the DPP, in investigating, prosecuting and pursuing still through the courts at least a third of those. That is good.
The current law, in respect of criminal behaviour and the usual process of investigation, prosecution, trial and conviction, appears to have been working to some degree. Unfortunately, from my observation, it is usually arising out of criminal conduct where one member of an outlaw
motorcycle gang is causing harm, injury, pain or death to another member of an outlaw motorcycle gang. Clearly, however, we know that there has been a failure to progress any successful application seeking a declaration before the courts, of which we had gone through such a painful gestation of delivering the law to deal with organised crime in that manner.
I do not doubt for one moment the experience of the government in pursuing legislation of which they were on notice was going to be challenged, and indeed was, and the failure of it. The resultant rejoicing of members of bikie gangs in South Australia caused much humiliation to the government. It was a demonstrable failure in the public arena, and it was humiliating. It was embarrassing. I felt humiliated and embarrassed that our government, which I did not choose to put there but which is there and is supposed to be acting responsibly, had pursued a course without more careful consideration. They of course will say that it is up to the parliament to tease that out, to make amendments, to look at improvements and to work with us if they are genuinely committed to the objective, and that is true, which is even more a reason why it is necessary for us to properly examine this legislation—and we will.
Let us consider the current law which, for the purpose of this debate, I will quickly summarise, as we see it. There are three areas which are going to be progressed with significant amendment. One is the law in respect of consorting. We dealt with this in the Summary Offences Act 1953 in 2012. We had the threshold debate about whether anti-association laws were really going to work in respect of outlaw motorcycle gangs, and we accepted that we would give it a try.
I am old enough to remember some of the public and academic debates surrounding antiassociation laws in the 1970s. I was in law school at that time, and it was a time of considerable fracas over the attempt to introduce this. I think it is fair to say, especially as we have matured in respect of our understanding and embracing of those who have same-sex relationships today, that one can look back at the 1970s and those laws as scandalous. Looking through the lens of hindsight is not always fair to those who were debating it at the time, but I make the point that it was hardly effective back in those days.
However, we gave it a go and presently our law says that a person must not, without reasonable excuse, habitually consort with a prescribed person or persons. The police can issue consorting prohibition notices against a person who is subject to a control order under our SOCCA legislation or who have been convicted or suspected in respect of certain offences.
I understand that the practical application of that includes that six notices need to be issued within a 12-month period to trigger the effectiveness of it and to allow for there then to be a charge. Ultimately, someone who is found to have breached that requirement can be imprisoned for a period of up to two years. Briefly, there are various exceptions: family members, meeting for political purposes, if they are in gaol, there is a court order requiring them to be in the same room, or attending rehabilitation, counselling and the like—the usual expected exceptions. That is the current position.
Secondly, our Serious and Organised Crime (Control) Act 2008, which of course has been substantially amended and expanded since then, provides for the declaration of organisations, control orders and other measures. After the High Court judgements and amendments in the parliament, the law provides for a court to declare an outlaw motorcycle gang to be a criminal organisation. There is then a series of offences relating to a person who participates in an activity of the organisation, either knowingly or recklessly. Penalties are severe, and we understand why. There are aggravated versions of a number of offences which, as you would appreciate, attract greater penalties.
There is a provision for the protection of persons to facilitate them coming forward; for example, allowing a frightened witness to be able to give evidence away from a court precinct. There is a special procedure for direct indictment to the Supreme Court, which obviates the need to go through a preliminary process, and a number of other measures, which, as I have said, have prevailed but which have not been actioned in the area of declaration by a court. However, there has been some activity in some other areas of reform in that tranche of legislation.
The third area that we are being asked to tamper with and/or improve, whichever way you want to view it, is our Liquor Licensing Act 1997 requirements as they relate to licensed premises. This is our hotels, restaurants, cafes, the Adelaide Oval, anyone who has a licensed premises. There are currently laws restricting persons entering or remaining in licensed premises—obviously certain persons. Displaying bikie colours may identify a person, but I am advised that enforcement generally has been problematic.
We on this side of the house acknowledge—which is why we have supported the protection of people who work in licensed premises—that other patrons who frequent licensed premises need protection, as this is a place where there has been a documented series of conduct and continuing threatening behaviour and/or criminal behaviour carried out by certain outlaw motorcycle gangs. We accept that there has been bad, violent and/or criminal behaviour in and around licensed premises, so we have supported the development of protective legislation as a result.
I have been provided with notice of an amendment by the government that addresses the Australian Hotels Association's concern that, under the current laws, they are protected—and certainly their workplace members and patrons are protected—by an obligation of the police to attend when called upon in the event of a disturbance on their premises. It was identified by the Hotels Association (the AHA) that this did not require the police to attend when the person behind the bar telephoned the police and said, 'I've got a member of an outlaw motorcycle gang here in my front bar.'
The silence on that in the legislation apparently was going to leave them exposed to the fact that staff would be expected to deal with that situation and, if they did not deal with it, under this bill, they would face prosecution themselves for failing to deal with a person who was identified, for the purposes of this legislation, as a person who was required to leave or at least be prevented from entering. So the Hotels Association expressed concern. No doubt other representatives, if they had an opportunity to even know what was happening with this legislation, would also express concern.
In any event, I understand from the government's announcement this morning that it will move to remedy that defect and ensure that if a person from a licensed premises contacts the police, there will be an obligation on the police to attend for the purposes of providing their assistance in regard to enforcement, which is after all what we charge them and pay them to do. The government claims, and I quote:
This bill represents another step forward in the fight against organised crime. There can be no doubt that the legislation found valid by the High Court has the bikies in Queensland and New South Wales running scared. The government is determined to give the police the weapons they need to get to the same result here.
The words of our Attorney-General in his second reading contribution on 3 June.
Considering the promises that have been made on previous reforms, I have little doubt that the rhetoric is likely to far exceed reality, but that does not mean that we do not carefully examine what initiatives in this reform are acceptable and how we might progress them, what may be defective but remediable with some amendment and, if necessary, what should be excised and voted down, and we are continuing that process.
The bill essentially proposes new offences to make it harder for members, or aspirants, to meet or operate as bikie gangs (to use the government's slang) either at their headquarters, at hotels or, indeed, in public places. It also specifies particular gangs that are already operating in SA and other states and their meeting places, and that law follows current law that operates in Queensland. Additionally, the bill includes modification of our consorting laws. It certainly strengthens them and makes them more punitive if they are breached. This model follows that which currently operates under New South Wales law.
The Attorney-General sets out the details of South Australia's current consorting laws compared to New South Wales and that the latter has withstood High Court scrutiny. The history of the serious and organised crime legislation is also discussed and the recent development of laws in Queensland. The Queensland laws were challenged in the High Court in the case of Kuczborski v State of Queensland and there has been some material outlined as to the application of law as it stemmed from Queensland.
The Attorney quite rightly points out that—although he omits through that contribution to discuss a number of other areas that have not as yet been dealt with by any findings of the High Court with respect to that Queensland legislation—it is correct, however, to accept that the High Court, in ruling that Mr Kuczborski, who had not been charged with anything, had no standing to be in the High Court, did rule that the criminal code legislation in Queensland and the liquor licensing law in Queensland was valid.
Further, and I think this is very important, in the absence of there being constitutional assessments on all of the laws, they did find that the device of defining a criminal organisation by regulation is constitutionally valid for the purposes of these offences. So, to the extent that the High Court provided a green light to the continuation of that portion of Queensland's law reform we can take some comfort if we are in any way concerned about the constitutional validity of that process. However, as I will address shortly, there are other limitations.
Let us look at what is in the bill and how our current position, in light of this recent history, is being proposed to be amended. Firstly, the Summary Offences Act 1953 is proposed to substitute a whole new section on consorting that is to be in line with New South Wales. It creates a new offence for a person who habitually consorts with convicted offenders after receiving an official warning by police not to do so, with a penalty of up to two years in prison. We do not need six notices in 12 months anymore; we need one notice, and, if a person is caught in those circumstances, then they can face prosecution, conviction, and up to two years' imprisonment.
It is certainly a model which is suggested, in the police briefings and by senior police—and I will refer to them again a little later—to have been effective in New South Wales, for the reasons that have been identified. It has survived the High Court and ought to have our favourable consideration.
We then have the amendments to the Liquor Licensing Act 1997. As I have indicated, the effect of this bill is to widen the operation of that act. The regulations that are made in respect of declarations to be made, in this instance, against certain clothing, jewellery or accessories being worn by a person, are also claimed to be unreviewable. That is what raises some concern to us.
In essence, let us consider the amendments: it will allow the Attorney-General to declare certain clothes, jewellery or accessories worn by any person to be a prohibited item. It will then create an offence to enter and/or remain in a licensed premises while wearing a prohibited item. The penalties here are severe: a fine of up to $25,000 for the first offence, up to $50,000 or six months' imprisonment for the second, and up to $100,000 or 18 months' imprisonment for the third.
It also creates an offence for a licensee, or responsible person (which is a person defined under the act), and/or an employee to knowingly allow a person with a prohibited item to enter and/or remain in a licensed premises. The fine is up to $10,000. Of course, the government's claim is that this is to provide extra safety for patrons and workers. I do not doubt for one moment that is an easy assertion to make, in a climate of saying, 'Your patrons and workers are much more safe if you don't have members of outlaw motorcycle clubs in your hotel.'
Doubtless, there could be other members of the community who would be equally unsavoury to enter or remain in a public place; however, given the history, we are sympathetic to the government's approach in tightening this, and, again, this has had some support in its scrutiny through the High Court, via the New South Wales legislation.
The concerns for us, in the short time we have had to consider this, are: firstly, as to whether it would apply to areas outside of the hotel proper (that is, the drive-in bottle shop or accommodation rooms, for example), and how that could possibly be policed; and secondly, whether licensees, or indeed members of staff, etc., could be penalised for inadvertent breaches.
We are advised by the Australian Hotels Association that they have had a number of discussions with SAPOL. They have received a letter of comfort from a senior member of SAPOL to confirm that they do not see their and our concerns to be a problem in those areas, and, in fact, that there would only be the potential of staff being in breach, or committing an offence and being charged in relation to this, if they had not taken reasonable steps to allow the person to enter or remain in the licensed premises and if they had not knowingly permitted access. That may be a letter of cold comfort if it is not enough in subsequent court action.
It is a little concerning that there could be employees caught up in this inadvertently, remembering that at present, under our armoury of laws relating to criminal gang behaviour, we have a number of tools and they include public safety orders, firearm protection orders, barring orders (barring people from licensed premises), changing the Bail Act presumptions and protection to support greater victim reporting.
In the context of that environment, in particular the barring orders to licensed premises, it appears that there has been some success, but we are told it is difficult to keep a current list of all those who are the subject of a barring law. I do not know, but I think there is at least 100 or so of these people in a photographic line-up list that are published and updated on a regular basis. Staff have to be briefed, have to be conscious of the fact that if there is a change in the photograph that turns up they keep themselves informed and have to be able to ensure that they are going to be now subject to scrutiny themselves if they allow them to enter or remain in the premises.
I now turn to probably what is the most controversial of the legislative reforms proposed and that is our amendments to the Criminal Law Consolidation Act 1935. Essentially, as I indicated, we already have anti-participation laws in this state and there are criminal sanctions that go with them; however, this legislation takes the unprecedented step of allowing the parliament to determine by sanctioning a process through the Attorney-General's assessment by regulation in both those categories removing that assessment role and determination role from the courts.
The bill will allow the Attorney-General to declare any group a criminal organisation based on any information the Attorney-General may choose to act on that is presented to him from the police and is only confined pursuant to the factors he can consider as outlined in the act, but they are extremely broad. It will also allow the Attorney-General to declare any venue to be a prescribed place.
The other part of the legislation apart from using the regulatory power of the Attorney-General's assessments and by regulation is to start with a list of 27 motorcycle clubs that we, as a parliament, are going to be asked to sanction and list, and 15 addresses in South Australia that we, as a parliament, are going to be asked to list on the basis that we rely on the fact that the police have told us that they have provided information to the Attorney-General perhaps three categories of information.
One is information, including sensitive material, in respect of nine outlaw motorcycle gangs that are known to operate in South Australia and a further 10 because, although there are nine listed in South Australia one of them appears to be treated as a subset of another, so that there are essentially 10 named clubs in the list that operate in South Australia; and, secondly, again on what the police tell us, that the balance of 16 are ones that operate in Queensland. That is corroborated, of course, by the fact that the Queensland legislation has listed those same 16 in its list of criminal organisations.
The government's claim here is that the list, once it becomes law, will be unreviewable. It is not being done by the regulation power deliberately in an attempt to ensure that there is no possibility of challenge against any of these groups.
The second group, which is any future organisations or any future places on which the Attorney is satisfied using the regulation power, is reviewable to the extent that it is challengeable under our Subordinate Legislation Act; so, additional clubs and addresses can be disallowed by the parliament. There is an implicit indication here that the determination by the Attorney-General is not reviewable.
I just want to place on the record a matter which I suggest should have been in the Attorney's contribution and probably needs to be considered in how we might deal with future management of what role any court might have in this type of legislation. At present, even though ministers can promulgate regulation and it is challengeable in the parliament (particularly in places like Queensland where there is no upper house), they do not effectively have a scrutiny which can protect against ill-conceived regulation.
We do, however, have a series of legal cases which do protect against, if I could say, the improper but certainly too far-reaching conduct or inaccurate assessment by an Attorney-General in these
circumstances, and so there is potentially still judicial review for any jurisdictional error and that is constitutionally protected.
The case of Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, again, makes that clear. So, there is always some scope for judicial review. When I say that I think it is disappointing at least that this issue has not been traversed in the second reading contribution, I point out that, although they were prepared to present at Kuczborski's High Court case as a basis upon which other similar laws had survived scrutiny, they had not pointed out that there had been consideration of whether or not the declaration power should be narrowly interpreted.
I am advised that if the High Court adopted a narrower interpretation of the declaration of power as suggested by justices Crennan, Kiefel, Gageler and Keane in Kuczborski's case, this may mean that the government may only declare organisations according to roughly the same criteria that the court applies under SOCCA, and paragraph (a) of the definition of 'criminal organisation'. This was left unclear in Kuczborski's case and we are yet to see how it might play out in practice.
It is important for two reasons that we deal with this and one is, to be upfront about it, because we do not want to raise this as some sort of indication to the bikie world that they are going to have an escape clause here. We want to get it right, and we want to make sure that the legislation we put through is not going to be the basis of more argument in the High Court. We do not want further embarrassment at an unsuccessful attempt to have an organisation declared, and we do not want them joyous in any government's attempt that fails, and we certainly do not want taxpayers' money caught up any further.
But, again, if ultimately there is a narrower reading of an interpretation of a declaration of power then it follows that in cases such as this there may be a basis for jurisdictional error if the declared organisation is not sufficiently criminal. So if in fact the application to review the regulation is on the basis that the Attorney-General received information which may be only very scant and which suggested that there was a group that had had multiple members, that most of those members had criminal convictions in their histories, that there was no evidence of any current criminal activity, and that there was no support for suggesting that their coming together was to commit crime or plan the commission of crime, then it may fail and we need to sort this issue out.
We need to be clear about making sure that, when we do have the information presented to the Attorney-General, we as a parliament and the public have confidence that all of the appropriate information is before whoever is going to make the decision, whether it is a judge or an attorneygeneral with the blessing parliament, and that they actually get it right. In many cases, until somebody comes up against the law and is threatened with some restriction on their own liberty or independence, they do not really take a lot of notice as to who makes these decisions, and probably academic and legal discourse in the public arena about whether the executive makes a decision or a judge makes a decision is of no real moment to the average person, but it becomes pressingly so when they face prosecution. That is when they look for the protection of the law and its process.
So the parliament is saying to us, 'We are giving a fixed list of 27 motorcycle clubs and 15 addresses and we want those in the statute, we want them unappealable, we want them absolutely clear.' We are being asked there to consider and accept on trust, in terms of the information that is given to us, that the Attorney-General has received adequate information, that he has had proper advice, that he has read them all—or viewed them, of course, if they are electronic—and that he is satisfied, and we should be satisfied, that it has been given adequate consideration.
'Trust us' is really the inherent underlying expectation, and on those matters there will be no appeal; 'trust us' as a process in respect of future clubs or addresses because, again, we have the advice of the police, and this is such a scourge that in dealing with organised crime this is the way we need to do it. Furthermore, the capacity for judicial review of that is elusive, and the government has been silent on that.
I mention this because one of the options for us to consider is whether we require all the 27 motorcycle clubs, all the 15 addresses, to actually be put into the regulatory power and not into the statute. It is one of the things we are working through at the moment, because we are satisfied that if there is at least a regulatory process, and let us assume it is one that withstands scrutiny and is supported by the parliament—I am not saying it will be, at this point, but let us assume that it may—then we would want to have a very good look at the judicial review process. The review of the parliament in its disallowance process and the review process by any judicial group—whether that is under administrative law, through SACAT or other forums—we have to get that right, and we need to have considerable answers to that before we progress.
In short, the new offences that are created in this bill, which are now all indictable offences, criminalise a participant who is in contact with a criminal organisation and subject to criminal sanction if they are knowingly present in a public place with two or more others in that criminal organisation, if that participant enters or attempts to enter a prescribed place or attend a prescribed event of a criminal organisation—obviously that is headquarters or a specific social or business event of that group—or a participant recruits or attempts to recruit another person to become a participant. All these cases, which are covered in sections 83GB, GC and GD respectively, have a penalty of up to three years' imprisonment.
The legislation very much expands what we call the participant law of the 2012 amendments, or what became the 2013 amendments to our SOCCA legislation. The definition of participant is broad and includes a person who seeks to be a member of or is associated with a criminal organisation, and there is a very much stronger approach in respect of sentencing. The government rejected the mandatory minimum penalty approach, and I agree that that is not appropriate. We are not great supporters of mandatory minimum penalties for all the reasons we have previously discussed here, but the proposed new sentencing regime will be very prescriptive. Essentially, it will require that a judge must order imprisonment. Suspended sentences really are not the order of the day, and nonparole periods are to be fixed. There are to be minimum periods of these except in exceptional circumstances. In that event, the judge is expected to publish reasons; in fact, the judge will be required to do so.
That has also raised some questions about how we manage some conflicting sentencing aspects. In particular, the one I think of is the capacity for judges to provide a significant reduction in the sentence of a criminal where they have squealed on another, so to speak—the famous supergrass approach. In that regard, information that may have been given to police, that assists them in their inquiries and successful prosecution of another criminal person or group, perhaps in a drug dealing matter, for example, is very helpful. We have reflected the invitation to assist police in this way, which is rewarded by a reduction in their penalty of someone who faces criminal sanction if they do so. It is one which inevitably involves sensitive material being provided and which, in the very act of the person being known to have assisted police, may prejudice that person's safety. So, how do we marry that against this proposed legislation when a judge must publish reasons?
If he or she has been asked to provide a significant reduction in sentence for good reason, in those circumstances that I have said, and wants to do so in the crucible of this environment, that is, where someone has been convicted of offending sections 83GB, GC or GD, it raises some conflict. We will ask some questions about how that is going to be managed. Suffice to say, we supported the government in having the capacity for sentencing reform and to use it not just as a stick but as a carrot. It had our blessing, and we are keen for that not to be undermined. I will say that I am still waiting on a briefing from the about to be former police commissioner on a case in that regard, in relation to sentencing, but I know that he is about to depart. We have notice of the new commissioner's appointment. In any event, we will be raising that in committee.
If I can summarise them, the concerns are as follows: firstly, the executive, in this case through the Attorney-General and then purportedly strengthened by the approval of parliament both in the statutory listing of groups and places and then overseeing the regulatory framework of future clubs and addresses, takes over the role of judges, and that of course sits uncomfortably at best and profoundly breaches the doctrine of separation of powers.
Secondly, the whole process relies on information from the police, and the Attorney-General is expected to make an assessment on all or part of that alone. Obviously, for anyone considering how these matters work, it means that decisions made by the Attorney-General and allowed to proceed by the parliament are based on information that is selective, untested, in secret and by persons without qualification or, largely, from any advice or input from others, let alone the opportunity to challenge by others, even the person who may be subject to the legislation as a result of them being a member or participant of a criminal organisation.
The classic demonstration of how that whole process can go wrong was highlighted by the South Australian amateur motorcycle club, the Phoenix Motorcycle Club. It demonstrates, first, the law's
potential to overreach what it was intended to do and, secondly, the danger of not being able to review an executive declaration. So there are serious criminal consequences to attaching to the identification of criminal organisations; it is difficult.
There is no question that that assessment needs to be done, and this morning SAPOL offered us an opportunity to review some of the material on the first 27 clubs that are listed in the bill. The material is that which had been presented to the Attorney, but it is only part of what had been presented to him. There is more sensitive and detailed material in SAPOL's possession, and I indicate they have provided to us an assurance that, in the event that it is appropriate for that sensitive material to be presented to a parliamentary committee then, on the basis that its contents are kept in confidence, they would make it available. I will have something to say about SAPOL shortly but, in respect of this aspect, some of us had an opportunity this morning to have a look at the general material. In this regard, I would put what we have been provided with into two categories. One is the group of 10 organisations that operate in South Australia. That provides quite a bit of substantial material as to membership and operation, conviction levels and the like.
What is presented for the other 16, I would have to say is scant. I am not saying that that is necessarily something that is any criticism of the police, but it was presented to the Attorney on the basis that this is the name of the organisation. From our inquiry, these all operate in Queensland, which is all in the second reading contribution. Furthermore, the Queensland parliament has listed them as criminal organisations under their legislation, the crimes act.
That is it, so what the Attorney is left with, obviously, is that the act of the Queensland parliament, having declared these organisations, is really sufficient to satisfy him that they are deserving of being declared a criminal organisation and that South Australia needs the protection against them, and thereby they are in the list. Remember that Queensland does not have an upper house. I am not going to get into a long debate about how important it is that we have an upper house, that we have a place of legislative review, that we have some structure in our parliaments that curtails the excesses of ministers and governments that are out of control. I would love to; I think it is a fascinating topic. Suffice to say that I am a strong advocate of houses of review.
My colleagues in the Legislative Council are always pleased to hear me endorse the merits of their existence and their value to South Australians. I might have another career in another place one day; you never know, I might come back to haunt you, Attorney. Not you, Madam Deputy Speaker; I have enjoyed thoroughly my time with you. What danger I could inflict in another place.
Could I just say that the people of Queensland do not even have a chance. I can say this, because it was someone of our political flavour—a bit right wing for me, but nevertheless—the Campbell Newman administration, the Liberal National Party of Queensland, which promoted this legislation, passed it, whacked it through their parliament, with no upper house of scrutiny.
Frankly, a regulatory power up there is gold; they can do what they like. They do not have anybody to have numbers to say, 'We're going to disallow this and we're serious; we think it's a problem.' Unless it is tattooed—that is not a good word for this debate, I suppose—unless it is enshrined in some royal commission of inquiry for some corruption in Queensland, it does not get a lot of attention. It would have to have a very high threshold before I would be satisfied. The standards of Queensland in their scrutiny of executive control or conduct that is out of control are a long way short of what I would accept as comforting.
Let's get back to the poor old Phoenix Motorcycle Club, then, in South Australia. This highlights, before we even have the legislation in place, how at least inadvertently, people can get accidentally caught up. It was announced publicly that this club had the same name as a person who is in the list in the legislation, that they were potentially caught up in this through having the same name as the outlawed motorcycle Phoenix operation in New South Wales. It must have been incredibly alarming, at the very least, for a member to pick up the paper and think, 'Goodness, we have members of our executive and group in a media report suggesting that our club is being listed in legislation.' Then, right at the bottom, there is reassurance from the police, with a comment to the effect that it was not going to be caught and it was not their intention that it be caught.
I just want to place on the record the comment about that because I found it rather curious that the Attorney-General was not jumping up onto a podium to give reassurance—as he does from
time to time—to various people who might be inadvertently exposed to the deficiencies of legislation. It just says:
SAPOL told InDaily [the media outlet] in a statement the so-called 'one-percenter' outlaw gang known as 'Phoenix' originates 'out of New South Wales (and) is a club with white suprem ac ist views'.
That is all we have; we do not have an apology. We have a statement from SAPOL that states:
The local club is a community based club—it is clearly not a 1% club.
Clubs that have no identified association with OMCG (Outlaw M otorcycle Gang) clubs are in no way impacted.
A spokeswoman said police would contact the local club 'to ensure any concerns they have are allayed'.
Frankly, that is a bit late. It is not good enough to have a situation where we are being asked to rubberstamp the assessment of the Attorney without review to declare these first 27 criminal organisations. At first blush, the first time it comes before the parliament, before we even get to debate it, we have highlighted the existence of a club that has been caught up in it. I do not doubt for one moment that there was any intention by the police to go down and raid the racing club at Mallala—this innocent amateur motorcycle club—and try to press charges against them, ultimately, if their members were to, in some way, meet with two or more persons. I do not doubt that at all—but that is not the point.
One of the great concerns about progressing through any process which is secret or without review, etc., is that people make mistakes. In this case I can think of two things that could have been done: one is for the police, in presenting a file to the Attorney for his review, to say, 'This is an illegal club in Queensland and operates in New South Wales and has a propensity to be involved in and supporting white supremacist views and generally ugly people (in a generic sense) and that they are and should be on our list.'
However, would you not think that they would have done a check to see if there was any other group that might have a similar name? Would you not think that when the Attorney looked at it, and the brief that he was given by the police, that he would say to the police, 'Look, before we progress this, can you go and check whether there are any other groups or clubs that might inadvertently be caught up in this?'
Would you not think that would be a basic form of inquiry? I do. It highlights to me that the government has been—'reckless' is probably too harsh a word, but certainly without concern about what potential damage could be done if these things are not properly investigated and the inadvertent harm that could be caused to innocents. That just demonstrates to me that, yes, the government is in a hurry but, yes, they cut corners and we are yet to see, of course, whether there are other organisations.
Remember, the public do not really know about this legislation yet. They might have read a few articles in the paper since March this year when the government announced that they were going to progress it, but they have no idea what the details are about. The bill came into this place 13 days ago. There has not been public discussion about this here. There has not been consultation with the usual suspects of the legal profession and the like. I find that an area of concern. I will leave it there.
I want to say that my next area of concern is the definition of 'participant'. It is very much expanded. It includes someone who seeks to be associated. All I can say is: do not have a cup of coffee with two people wearing bikie colours. If there ever was an example of where we end up potentially capturing the wrong people it would be the case of Sally Kuether who was the first and, to my knowledge, only woman charged under the Queensland legislation.
In late 2013, this 40-year-old lady met with two men who were wearing club colours at the Dayboro Hotel, north-west of Brisbane. They were alleged associates of the Life and Death Motorcycle Club, which is one of the groups on our list.
The first thing that caught the attention of the people up in Queensland about this was that she was a woman, a librarian and had three little children. It came directly to their attention because of this presumption against bail, and we have a similar provision here. It makes it harder for people to achieve bail because it reverses the obligation on the accused to show cause why they should have bail, rather than it being presumed that they would have it unless otherwise established that they should not. It is the reversal of onus.
I should make the point it was not done without good reason. It was done to ensure that we help to protect other witnesses coming forward in the knowledge that they could help with the successful prosecution of somebody once they had known that the accused was in protection; that is, that they were protected against them as they were held in jail. The person who had given evidence, or other witnesses who came forward, would be safer knowing that they were in jail, that they could not hurt them and that there could not be any retaliation, and that was why the presumption for being eligible for bail was reversed.
But poor Ms Kuether had come before the courts and she had to go through a process of establishing the equivalent of their exceptional circumstances type scenario to be granted bail. It should be noted that Ms Kuether claimed that she had a personal friendship with one of the people, that she had worn a leather patch with the words 'Life And Death' on it which read 'Property of Crow', and that she knew he was a member of a motorcycle gang. She claimed she had never sought to be one, she had never attended a meeting and could not have been a member because, of course, women were not allowed.
Nevertheless, she had sat in a public place—in this case a hotel—with a person who was a member of a criminal organisation. Interestingly, he had no substantial criminal history—and I am not here to advocate his cause, that is for sure—but there had been a drink-driving charge back in 1986 for which he was convicted. In fact, he had served in the army for 22 years and the Queensland corrective services as a prison officer for 15 years before retiring on medical grounds. Whatever his involvement in the Life and Death motorcycle gang or criminal organisation, as it was defined, it seems he had some other redeeming features.
In any event, the upshot of this case was that, ultimately, in April this year the charges against her were dropped alongside of the two co-accused. For the sake of completeness on this particular case, she set out that she had made some other contribution to the community which should be considered: she was a mother of three, she was a library assistant, and she received the lord mayor's award for work after the 2011 floods. It certainly appeared that she had some good community attributes, and she had some very important parental responsibilities.
Ms Kuether ultimately received a fine of $155 for breaching the Liquor Act by wearing a bikie vest into licensed premises. Apparently, there was no conviction recorded but, in any event, it was not as though she was not able to be dealt with under different legislation. I would have to say that if we are talking about really dealing with the crux of what we are trying to stop here—that is, stopping people from displaying and emblazoning a material which is worn to identify a linkage between a brotherhood within motorcycle gangs which is to have an intimidatory effect—then, frankly, her offence, and getting $150 fine, was probably pretty fair. But should she have been caught up in this participation law? Probably not, and it is evident that the government withdrew it.
There is another case, I am told, in Queensland where a charge was laid against a person who was allegedly a member of a bikie gang himself—not just someone who was meeting with someone— and that case has also recently been dropped. So it seems to me that there is a bit of unravelling going on in respect of the process of actually getting successful prosecutions against people who offend this new participants law in Queensland. There appear to have been some other benefits, and I will come to them in a moment—I do not want to minimise those—in respect of other benefits to the community that are being asserted, but in this instance the definition of 'participant' is very wide.
The fifth area of concern is the whole process of assessing the first 27 clubs to be declared, and the future clubs, in secret and without judicial review, and I have made my comments on that in the course of this debate; we need to do some more work on that. In relation to the sixth area of concern, there is no provision of the police information to enable the parliament to assess whether it should disallow a future regulation, and this comes back to the significance of the information being secret.
In South Australia, we do have a Legislative Council; we do have an upper house. The regulation procedure is an important one for the administration of allowing flexible and updated support to our statutes, but with protections. Queensland does not have that, as I have said. So, doing their whole process under regulation could still be as autocratic as it clearly was intended to be under the Newman government. Here we do have one, but how on earth is the Legislative Review Committee, which is the current body that has scrutiny of our regulations in the first instance, able to make some assessment about whether it should disallow something in the 14-day window that it has to do so, when it is completely in the dark? There is no judgement to read and no minutes of a meeting; that is not always available.
It assumes that the Legislative Review Committee has that role in any event to look in behind and make a determination about whether the correct administrative processes have taken place, particularly as to the jurisdictional limits a minister might have in exercising their role as the assessor.
The Hon. J.R. Rau interjecting:
Ms CHAPMAN: Coming to that, coming to that. The other concern I have is consultation on the draft bill. Obviously, the haste of this introduction to the parliament, and the expectation that we would all fall into line, is illustrative of the fact that the government really does not give a toss about what other people think. The police have asked for this—they consulted with the police about it—and they have apparently consulted with the Solicitor-General about it, and we would expect that. What we do not expect is that any responsible government would otherwise progress legislation without talking to its community, without giving any opportunity to advance or work to improve the model being presented.
Let me illustrate how objectionable this approach is to us. We learned that the Crime and Public Integrity Policy Committee of our parliament, a committee established under our ICAC legislation a year or so ago, is currently conducting an inquiry into serious and organised crime. Not only has the government decided to progress this legislation in the absence of any review it might publish but it has refused even to put a submission to the Crime and Public Integrity Policy Committee: that is how much they think of the parliament and how much they care and respect the structures of this parliament.
They were party to the establishment of it and understood what the charter included, and they are now conducting an inquiry on this very issue. Why would they not say, 'Look, we've had a decision from the High Court, the police are on our back about trying to give them some extra powers and a way forward to deal with some of these difficult parts of our criminal cohorts, so we want you to consider this information. We're going to give you some data about what we have learnt and what is happening in other states. This is a draft bill, have a look at it and let us know as quickly as possible'? Would you not do that? Would that not be the logical approach if you really had any respectful consideration of the structures of parliament? But, no, it gets bypassed completely, and it is of completely no consequence to the Attorney whether it be included.
The other matter I find particularly concerning is that the government has decided to progress this reform, that is, the Queensland participation offences reform, in the full knowledge that an existing inquiry by Michael Byrne QC is underway in Queensland to report by October this year, it having been appointed on 27 March this year. So, even at a time when the government, through the Attorney, made a public statement to say in March this year that they would be looking at new legislation, they knew this inquiry was going on.
In fact, our police in South Australia, I am told, have been working quite effectively with their Queensland equivalents, as they should—and I am pleased to hear this—to ensure that they have up-to-date reassurance of the effectiveness of the regime and how this new system is working. They are working together on this. Indeed, they are working at a national level, which again I will refer to shortly, but on this area they are working on it and they are expecting their equivalents to be presenting evidence to that inquiry, if they have not already done so. Why is that so important? Because one of the questions I have listed which we need to ask ourselves and which I have certainly asked myself is: has it worked?
The situation is that the new Labor government in Queensland have published announcements that they would be modifying other aspects of their serious and organised crime law, and that relates to tattoo parlours and their VLAD legislation and the like. That is academic for our purposes and I
do not want to confuse it with that, but I make this point: first, they initiated this inquiry as soon as they got into government, including a review of the current legislation that we are being asked to copy here today and, secondly, just last week they announced a task force to follow through on recommendations in other areas of reform.
Again, the government, in full knowledge that this is going on, has not followed up on that inquiry. We are now seized of the matter, so I am not asking the government to wait to see what they say. There could even be some argument that we do not have to wait and see what the Crime and Public Integrity Policy Committee says because, if the government is right, they will come through and say, 'Here are our current laws. These aspects on barring orders, firearm prevention orders, or protection of witnesses to be able to give evidence away from courts are all working—tick—but these other areas, including our declaration procedures for criminal organisations through our court structure, have not worked,' and they give us a synopsis which is consistent with what the government and particularly the police tell us—that is, some of this has worked, but a lot of it has not, and we need a lot more.
That is an argument for not waiting for the Crime and Public Integrity Policy Committee to complete their review. It just seems bizarre to me that the government are coming in here to ask us to approve a Queensland model—uniquely in Queensland, which is the operating jurisdiction in this area—and adhere to that formula when they themselves are reviewing this and we have really only been able to have anecdotal material (and this, again, is no reflection on the police) and information they have been able to glean about what is happening in Queensland. I think that is very concerning.
We should consider how we answer some of the questions I outlined in the beginning—that is, even if there was a capacity for this legislation to survive a successful challenge from a court, is what we are doing able to be improved upon, are there aspects of it that we should support and are there aspects that we should reject?
It seems pretty clear to me— and I will read the Crime and Public Integrity Policy Committee's report in due course—on all the information provided that, even with all the powers to seek declarations, control orders, court processes, covert surveillance, task force, special units, firearm prohibition orders and barring orders, no bikie fortress has been bulldozed and the number of bikies in South Australia has increased. Now, apparently, the number persons known to be bikies in South Australia is up to 308. I can recall speaking on a number of occasions in respect of outlaw motorcycle gangs in this place. Back on 15 February 2012, I made a statement to the parliament, and I quote:
Over the last 10 years the government's response to protect South Australians against organised crime has been manifestly inadequate. Indeed, notwithstanding all of Labor's rhetoric and poor strategy, we actually have a situation that is much worse. There are now more members of outlaw gangs. In the last three years since legislation, that is, the original Serious and Organised Crime Act, outlaw motorcycle gangs' membership is up 10 per cent from 250 to 274. We have more gangs. The New Boyz street gang has transformed into the Comancheros. We have no fewer bikie fortresses. The situation out on the streets is more dangerous, where the internal controls have been weakened. There is more fear in the community, where South Australians walking locally at night feel the least safe of any…
The crime rate follows the national trend for South Australian homicide riders equal highest of any state. Yesterday, however, the Premier theatrically delivered an impassioned ministerial statement calling for a range of legislative measures relating to organised crime to be passed. The hypocrisy of the Premier in his statement is astounding. In that statement he named three pieces of legislation…
That was only three years ago. Membership had already jumped from 250 to 274. We now have over 300, yet the government come in yet again and insist that their model of resolution to this is going to save us. In fact, it is not only just going to improve the situation, according to the Attorney, whose quote in the second reading I have already referred to, it is obviously going to be some panacea for remedying this position. Well, we will see.
It is pretty clear that overall, notwithstanding all efforts, the government's formulas to date have comprehensively failed. I think it is also clear that the public remain concerned about the role of outlaw motorcycle gangs involved in serious and organised crime, especially with the lucrative methamphetamine, ice and other drug dealings.
I was interested to hear one statistic that has been provided, though. Of the average of now about 24 murders a year in South Australia, I am advised that, on average, about one of those a year— so it might be none one year, two another year and one another year—is conducted by someone who is an outlaw motorcycle gang member.
Perhaps they have a huge number of attempts and other serious violent offences and other criminal activity that enables us to comfortably say that they deserve to have the mantle of being some of the worst criminals in our state; however, it is very telling to me that on that statistic alone the claim that resolution of the outlaw motorcycle gang component of serious and organised crime is exaggerated. When they do it, it is very, very bad, but relative to the whole of the level of the criminal conduct that is undertaken in this state, if we are to use the most serious offence as an example, the overwhelming majority is done in a circumstance outside of the motorcycle gang environment.
We know that in murders, sadly, a lot of those are domestic. They are by the partner or the former personal partner of a victim. However, when we are dealing with this sort of war on serious and organised crime and our focus on outlaw motorcycle gangs, I think we need to keep in perspective that there is a whole myriad of other people out there who are known criminals or are known by the police to be involved in the commission of offences or in the preparation to commit offences outside of motorcycle gangs.
It is not enough to say to the public that action in respect of outlaw motorcycle gangs is going to provide some shield of protection to the ordinary person in South Australia. This is a much bigger issue. It is important that the government give appropriate warnings, but it is mischievous of a government if it tries to present its action in respect of one little slither of the problem as being some blanket protection. I think that is mischievous, disingenuous and certainly unproductive when it comes to protecting our people.
The public is concerned generally about crime and how insidious it is when it is within organised gangs or really bad families. As we have had this in the public arena, I do not mind saying that the Focarelli family, to my knowledge, are not members of any outlaw motorcycle gang; they are bad people, on the face of it. I am not one to usually come in here and give somebody some broad brush, but I use them as an example. If there is a member of the Focarelli family out there who is sitting innocently at home and not in any way involved in that criminal behaviour, I apologise.
What I say is this: we are not so silly in here as to think that all of the serious and organised crime is within the repository of outlaw motorcycle gangs, and we will not let the government get away with trying to say to the people of South Australia, 'We're going to fix this, we're going to lock these people up, we're going to crush their operations, we're going to interfere with their capacity to be able to meet, we are going to destroy them,' and then use that as some badge of protection, which is not only fragile but insincere. I seek leave to continue my remarks.
Leave granted; debate adjourned.
Sitting suspended from 12:58 to 14:00.