Ministerial Statement

ORGANISED CRIME LEGISLATION

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice, Minister for Urban Development, Planning and the City of Adelaide, Minister for Tourism, Minister for Food Marketing) (14:12): I seek leave to make a ministerial statement.

Leave granted.

The Hon. J.R. RAU: Organised criminals who are celebrating the decision of the High Court today are living in a fools' paradise. The government's unrelenting fight against organised gangsters, standover merchants and thugs is about to step up a notch. We place you all on notice: life is about to get a lot more difficult.

Ms Chapman interjecting:

The SPEAKER: Order!

The Hon. J.R. RAU: The High Court today published its long-awaited decision in the case of Wainohu v State of New South Wales. The plaintiff in this case, Mr Derek Wainohu, was a member of an unincorporated association known as the Hell's Angels Motorcycle Club in New South Wales.

Ms Chapman interjecting:

The SPEAKER: Order!

The Hon. J.R. RAU: He had been a member of that club since November 1989, served in various roles and regularly associated with other members and supporters of that club. Mr Wainohu sought a declaration that the Crimes (Criminal Organisation Control) Act 2009 of New South Wales was invalid.

This act generally corresponds to—and I emphasise 'generally'—but in important particulars differs from the South Australian Serious and Organised Crime (Control) Act. In particular, the New South Wales legislation sought to use a mechanism similar to that in our act to declare 'certain organisations', with certain consequences to flow from that declaration, including the ability to obtain control orders over members of a declared organisation.

Importantly, the New South Wales legislation provided for an 'eligible judge' of the Supreme Court of New South Wales to make a declaration without being obliged to provide reasons for his or her decision. The case revolved around whether the principle outlined in a number of cases but, in particular, the case of Kable v The Director of Public Prosecutions, had been offended.

For those opposite, in simple terms, the Kable principle, derived from chapter III of the Constitution, prevents the parliament of a state conferring a function upon a court of a state in which federal judicial power is vested, as in the case of all of our criminal courts, and impairs the institutional integrity of the court—and these are important words here—

Members interjecting:

The SPEAKER: Order!

The Hon. J.R. RAU: I will read that again because I do not want them to miss that.

Members interjecting:

The SPEAKER: Order! There is too much background noise.

The Hon. J.R. RAU: Impairs the institutional integrity of the court such that it ceases to be a fit repository of federal judicial power—that is the point. It is difficult to predict the outcome of the application of this principle in advance of a court reviewing a state law. As the members of the High Court have recognised—

Ms Chapman interjecting:

The SPEAKER: Order, the member for Bragg! Attorney.

The Hon. J.R. RAU: Yes, thank you, Madam Speaker. I think she wants me to read that again. It impairs the institutional integrity of the court such that it ceases to be a fit repository of federal judicial power—that is the bit.

The Hon. P.F. Conlon: And he has dumbed that down for you.

The Hon. J.R. RAU: Anyway—

The SPEAKER: Order, members on my right also!

The Hon. J.R. RAU: It is difficult to predict the outcome of the application of this principle in advance of a court reviewing a state law. As members of the High Court have recognised, what amounts to the impairment of the institutional integrity of a court is not susceptible to definition in terms which necessarily dictate future outcomes—and those are their words, not mine.

This decision, when taken in conjunction with the decision in Totani, presents a complex but, I believe, not insoluble constitutional problem. I have asked the Solicitor-General to give urgent attention to closely considering these judgements and recommending to me a course of action which will enable us to repair the Serious and Organised Crime (Control) Act to overcome the problems exposed in Totani in a way that will not be constitutionally flawed.

The government has no intention of giving up on providing the police with the appropriate legislation to protect the community from organised crime. Organised crime in general, and outlaw motorcycle gangs in particular, are a cancer on this society and pose a clear and imminent threat to law-abiding citizens. I have no intention of giving any ground in the fight to disrupt and frustrate them. In fact, I will soon be presenting a package of measures to attack organised crime in ways which go beyond—

Ms Chapman interjecting:

The SPEAKER: Order!

The Hon. J.R. RAU: —the matters considered by the High Court, member for Bragg. I also note—

Members interjecting:

The SPEAKER: Order!

The Hon. J.R. RAU: I also note that, in the months since the Totani decision, a number of uninformed and foolish remarks have been made urging me to 'fix up' the Serious and Organised Crime (Control) Act. Had the government taken this advice, we could well now be confronting another constitutional challenge rather than being in a position to enact constitutionally valid laws to protect our community. It is my intention that we do this job once, and we do it properly. I intend to be—

Members interjecting:

The SPEAKER: Order!

The Hon. J.R. RAU: I think I should read that again. It is my intention that we should do this job once—that is, repair the legislation—and do it properly; not enact bits every time you over there call for, 'Fix it up, fix it up.' I intend to be in a position to recommend appropriate amendments to the South Australian act in the near future and to bring them to parliament as a matter of urgency.

I call upon all members of the parliament, whether in this house or in the other place, to treat this issue with the gravity it deserves and to commit to supporting this legislation with a speedy passage.

Members interjecting:

The SPEAKER: Order! We had a late night last night and most people are feeling tired, so I would ask you to behave today, or someone will go out.