Statutes Amendment (Serious and Organised Crime) Bill

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No. 1. Clause 8, page 4, after line 6 [clause 8, inserted section 83GA(1)]—

Before the inserted definition of conviction insert:

Committee means the Crime and Public Integrity Policy Committee of the Parliament;

No. 2. Clause 8, page 5, after line 15 [Clause 8, inserted section 83GA]—After inserted subsection (1) insert:

(1a) Each regulation made under subsection (1) for the purposes of the definitions of criminal organisation, prescribed event or prescribed place and required to be laid before each House of Parliament in accordance with the Subordinate Legislation Act 1978 may only relate to 1 entity, 1 event or 1 place (as the case may require).

No. 3. Clause 8, page 5, after line 19 [clause 8, inserted section 83GA]—After inserted subsection (2) insert:

(2a) A recommendation of the Minister in relation to an entity for the purposes of subsection (2) may only be made—

(a) after the receipt of a report of the Committee in relation to the entity under section 83GAA (and, in such a case, the recommendation must include a statement as to the opinion of the Committee on whether or not the entity should be declared a criminal organisation for the purposes of this Division); or

(b) after the passage of 10 days after a referral in relation to the entity was made to the Committee by the Minister under section 83GAA(1).

No. 4. Clause 8, page 5, after line 21 [clause 8, inserted section 83GA(3)]—

Before inserted paragraph (a) insert:

(aa) if the Minister has received a report of the Committee in relation to the entity—the report of the Committee;

No. 5. Clause 8, page 5, after line 37 [clause 8, inserted section 83GA]—After inserted subsection (3) insert:

(3a) Section 10A of the Subordinate Legislation Act 1978 does not apply in relation to a regulation made under paragraph (c) of the definition of criminal organisation in subsection (1).

No. 6. Clause 8, page 6, after line 4—After inserted section 83GA insert:

83GAA—Report of Crime and Public Integrity Policy Committee

(1) The Minister may, by notice in writing, refer a proposal to declare an entity to be a criminal organisation by regulation under paragraph (c) of the definition of criminal organisation to the Committee.

(2) On receipt of a referral under subsection (1), the Committee must request the Commissioner of Police (the Commissioner) to provide to the Committee any information that the Commissioner thinks fit that may support the referral.

(3) The Committee must inquire into and consider a referral under subsection (1) along with any supporting information provided by the Commissioner under subsection (2) and must report to the Minister on whether or not the Committee is of the opinion that the entity should be declared a criminal organisation for the purposes of this Division.

(4) The Committee may include grounds for its opinion in a report under subsection (3).

No. 7. Clause 9, page 8, after line 20 [clause 9, inserted section 117B(1)]—

Before the inserted definition of declared criminal organisation insert:

Committee means the Crime and Public Integrity Policy Committee of the Parliament;

No. 8. Clause 9, page 8, after line 38 [Clause 9, inserted section 117B]—After inserted subsection (1) insert:

(1a) Each regulation made for the purposes of the definition of declared criminal organisation in subsection (1) and required to be laid before each House of Parliament in accordance with the Subordinate Legislation Act 1978 may only relate to 1 entity.

No. 9. Clause 9, page 8, after line 38 [clause 9, inserted section 117B]—After inserted subsection (1) insert:

(1b) The Governor may only make a regulation declaring an entity to be a declared criminal organisation for the purposes of the definition of declared criminal organisation in subsection (1) on the recommendation of the Minister.

(1c) A recommendation of the Minister in relation to an entity for the purposes of subsection (1a) may only be made—

(a) after the receipt of a report of the Committee in relation to the entity under section 117BA (and, in such a case, the recommendation must include a statement as to the opinion of the Committee on whether or not the entity should be declared a declared criminal organisation for the purposes of this Part); or

(b) after the passage of 10 days after a referral in relation to the entity was made to the Committee by the Minister under section 117BA(1).

(1d) The Minister may, in deciding whether to make recommendation for the purposes of subsection (1a), have regard to the following matters:

(a) if the Minister has received a report of the Committee in relation to the entity—the report of the Committee;

(b) any information suggesting a link exists between the entity and serious criminal activity;

(c) any convictions recorded in relation to—

(i) current or former participants in the entity; or

(ii) persons who associate, or have associated, with participants in the entity;

(d) any information suggesting current or former participants in the entity have been, or are, involved in serious criminal activity (whether directly or indirectly and whether or not the involvement has resulted in any convictions);

(e) any information suggesting participants in an interstate or overseas chapter or branch (however described) of the entity have as their purpose, or 1 of their purposes, organising, planning, facilitating, supporting or engaging in serious criminal activity;

(f) any other matter the Minister considers relevant.

(1e) Section 10A of the Subordinate Legislation Act 1978 does not apply in relation to a regulation declaring an entity to be a declared criminal organisation for the purposes of the definition of declared criminal organisation in subsection (1) .

No. 10. Clause 9, page 9, after line 12—After inserted section 117B insert:

117BA—Report of Crime and Public Integrity Policy Committee

(1) The Minister may, by notice in writing, refer a proposal to declare an entity to be a declared criminal organisation by regulation for the purposes of the definition of declared criminal organisation to the Committee.

(2) On receipt of a referral under subsection (1), the Committee must request the Commissioner of Police (the Commissioner) to provide to the Committee any information that the Commissioner thinks fit that may support the referral.

(3) The Committee must inquire into and consider a referral under subsection (1) along with any supporting information provided by the Commissioner under subsection (2) and must report to the Minister on whether or not the Committee is of the opinion that the entity should be declared a declared criminal organisation for the purposes of this Part.

(4) The Committee may include grounds for its opinion in a report under subsection (3).

No. 11. Schedule 1, page 13, lines 1 and 2 [Schedule 1, clauses 2(b) and (c)]—

Delete paragraphs (b) and (c)

No. 12. Schedule 1, page 13, line 3 [Schedule 1, clause 2(d)]—

Delete 'Commancheros' and substitute 'Comanchero'

No. 13. Schedule 1, page 13, lines 6 to 7 [Schedule 1, clauses 2(g) and (h)]—

Delete paragraphs (g) and (h)

No. 14. Schedule 1, page 13, line 8 [Schedule 1, clause 2(i)]—

Delete 'Gypsy Jokers' and substitute 'Gypsy Joker (also known as the Gypsy Jokers)'

No. 15. Schedule 1, page 13, lines 10 to 14 [Schedule 1, clauses 2(k), (l), (m), (n) and (o)]—

Delete paragraphs (k), (l), (m), (n) and (o)

No. 16. Schedule 1, page 13, line 16 [Schedule 1, clause 2(q)]—

Delete paragraph (q)

No. 17. Schedule 1, page 13, lines 18 to 22 [Schedule 1, clauses 2(s), (t), (u), (v) and (w)]—

Delete paragraphs (s), (t), (u), (v) and (w)

No. 18. Schedule 1, page 13, lines 25 to 26 [Schedule 1, clauses 2(z) and (za)]—

Delete paragraphs (z) and (za)

No. 19. Schedule 1, page 13 line 27 to page 14 line 7 [Schedule 1, clause 3]—Delete clause 3 and substitute:

3—Places declared to be prescribed places—section 83GA

(1) For the purposes of the definition of prescribed place in section 83GA(1) of the Act, the whole of the land contained in each certificate of title listed in the first column of the table below, under the heading 'Prescribed place', is declared to be a prescribed place.

(2) Text set out in italic type in the second column of the table below, under the heading 'Description', is a description for convenience purposes only which may relate to the whole or part of the prescribed place and is not to be taken to define the prescribed place.

No. 20. Schedule 2, page 14, lines 17 and 18 [Schedule 2, clauses 2(b) and (c)]—

Delete paragraphs (b) and (c)

No. 21. Schedule 2, page 14, line 19 [Schedule 2, clause 2(d)]—

Delete 'Commancheros' and substitute 'Comanchero'

No. 22. Schedule 2, page 14, lines 22 and 23 [Schedule 2, clauses 2(g) and (h)]—

Delete paragraphs (g) and (h)

No. 23. Schedule 2, page 14, line 24 [Schedule 2, clause 2(i)]—

Delete 'Gypsy Jokers' and substitute 'Gypsy Joker (also known as the Gypsy Jokers)'

No. 24. Schedule 2, page 14, lines 26 to 30 [Schedule 2, clauses 2(k), (l), (m), (n) and (o)]—

Delete paragraphs (k), (l), (m), (n) and (o)

No. 25. Schedule 2, page 14, line 32 [Schedule 2, clause 2(q)]—

Delete paragraph (q)

No. 26. Schedule 2, page 14 line 34 to page 15 line 4 [Schedule 2, clauses 2(s), (t), (u), (v) and (w)]—

Delete paragraphs (s), (t), (u), (v) and (w)

No. 27. Schedule 2, page 15, lines 7 and 8 [Schedule 2, clauses 2(z) and (za)]—

Delete paragraphs (z) and (za)

Consideration in committee.

The Hon. J.J. SNELLING: I rise to indicate that the government will be supporting the amendments that have been moved in the other place, that is, the amendment moved by the Hon. Mr Brokenshire and the two sets of government amendments. In addition, I indicate to the house that the Crime and Public Integrity Policy Committee will be consulted with at an early stage in the future when the government seeks to advance further reforms on serious and organised crime legislation.

Can I thank, in particular, the Leader of the Opposition for his personal support for this important legislation. It is not often in this place that I would be seeking to compliment the Leader of the Opposition, but he has shown enormous political courage in making sure that this legislation had the swift passage that is required of it. I know that this for the Liberal Party is a somewhat divisive issue, but I do note that the Leader of the Opposition has gone to lengths to ensure that this bill had, relatively speaking, bipartisan support and that it had swift passage, and I acknowledge the part he has played in ensuring that that has happened. I move:

That the Legislative Council's amendments be agreed to.

The CHAIR: Do we have an indication which amendment you would like to speak on, member for Heysen?

Ms REDMOND: Thank you, Madam Chair. I think it is probably easiest if I speak to amendments Nos 1 and 2. I had a different speech written originally, which was probably somewhat more esoteric, regarding the separation of powers and other things. When discussing issues around the law, it is sometimes difficult for the general public to understand the implications of the discussion, so I thought it might be helpful if I provided a personal perspective, in the hope that it will assist some understanding and particularly that it may help other members of this place or the general public to understand why the issues of the Statutes Amendment (Serious and Organised Crime) Bill are so important.

One of my sons, Noah, is a criminal defence lawyer, and I know that he has defended and will in future defend, people whom I and all law-abiding citizens would find contemptible. There is every chance that in the course of his career he will defend individuals who have done something illegal and who should, in a completely just society, be punished.

But I also know that if he is doing his job to the best of his ability he will provide every client with the best defence possible. He is bound to do so. He will do so within the constraints that he is first and foremost an officer of the court. Since the day I had the honour of moving his admission, he has been bound by an oath that as an officer of the court, he will not mislead the court but, subject to that overriding constraint, he is bound to provide the best defence he can for any accused.

I did not generally practise in the criminal law. I found that I did not have the necessary patience or empathy. Most of the petty criminals with whom I dealt were not too bright (that is how come they were caught), not too honest and not too bothered when they rocked up the week after I had got them off having been arrested again for the same or something pretty similar in the way of the offence.

But I always understood that the role of the criminal defence lawyer was and is of fundamental importance. Our legal system relies on committed lawyers who are prepared to take on unpopular defendants and who, no matter what the alleged offence, are prepared to give them the best possible defence available within the constraints of our legal system, subject to the procedures of the court, the rules of evidence and that overriding obligation never to mislead the court.

I am sure that we have all watched TV shows where the hero lawyer takes on the seemingly impossible case of the innocent wrongly accused and convicted person and fights for justice to be done, often successfully. We all feel a certain satisfaction in the rightness of the outcome in this fictional world, where good triumphs over evil and where we as the informed observers know with absolute certainty that justice has been done. I am equally sure that we have all read headlines or watched news items where we are convinced of someone's guilt on the basis of the partial information given to us or even, heaven forbid, because, 'He looks guilty.'

Indeed, many wonder about the criminal lawyer representing the accused. How can he defend such a person? The answer is as simple as it is complex. Under our system of laws and their administration, every accused is innocent until proven guilty in a court of law, where the evidence will be tested according to strict rules, where every accused will have the right to know the case against them and to test the evidence upon which that case is based, usually with the aid of someone trained and highly skilled in those areas, where an independent judge will listen carefully to the evidence so presented and tested and reach a verdict based only upon the evidence, putting aside any extraneous considerations such as gender, ethnicity, social status, wealth or anything other than the proven facts.

In serious criminal cases, rather than the judge being the arbiter of the facts, that may be left to a jury of the person's peers, with the judge merely providing guidance to them where necessary. It is very easy to sit in judgement from one's armchair and determine guilt from a distance without having heard any of the evidence and decide that someone should be locked up, perhaps throwing away the key.

But it is surely true that were any of us to be suddenly and unexpectedly charged with a serious criminal offence we would take comfort from knowing that under our system we are entitled to the presumption of innocence until proven guilty beyond reasonable doubt, to know the details of the case against us and the evidence upon which it is base, to test that evidence in a court of law; to have someone who is learned in the law assist us, and to have an impartial judge and/or jury listen to the evidence and come to a decision based solely upon the facts as found and without fear that our lack of social status, our skin colour, our gender or any other irrelevant considerations will be counted against us.

No, the system is not perfect. It can result in a wrong outcome. Clearly, there are times when the system fails us, and sometimes that that even means that guilty people go free when they should be behind bars. Madam Chair, consider the alternative of removing the safeguards built up over generations. It would leave us open to control by the whim of whoever holds power, and that is unthinkable. In my strongly held view, the current bill proposes an unacceptable infringement of these rights, rights that should not be thrown away because of political expediency; in fact, I believe the current debate is not even about the political expediency of being seen to address the bikie menace but is rather an attempt to wedge the opposition at the next election.

The Statute Amendment (Serious and Organised Crime) Bill, known as the bikie bill, offends these safeguards in many ways. For a start, the bill allows the declaration of certain organisations named in the schedule, that is, named by the parliament or, in this case, really, by the Attorney-General. No one would suggest that these organisations or their members are nice people. They may not even be law-abiding people, but to deprive even them of the due process is an affront to the very thing we should be trying hardest to protect. Further, under this bill they—that is, the people affected—are not even given the benefit of the presumption of innocence nor even to know the details of the evidence upon which they have been dealt with without any trial or testing.

Perhaps most offensive of all is the fact that Attorney-General, the first law officer of this state but nevertheless an elected member of this house, gets to decide who should be subject to these declarations, which will allow him to decide who is declared, where they can go, with whom they may associate and even what they can or cannot wear. No amendment that broadens that decision from just one elected member, the Attorney-General, to a number of elected members, who happen to be members of the committee of this parliament, is any less offensive. In my view, as the first law officer of the state, the Attorney-General should be deeply ashamed that he is sponsoring and promoting such an appalling affront to the rule of law. He should be at the forefront of those protecting it.

If I were to support this bill, no matter how it has been amended, how could I ever again look my son in the eye with any hope that he could respect me? How can I justify to him that I was prepared to throw away these fundamental principles, and to what end and for what political expediency, in the hope that by so doing my side of the political divide might have a better chance of winning an election in 2018. There are some who believe that in politics you must be prepared to do whatever it takes to gain government. After all, until you get into government you can have very little impact, very little chance to make a difference, and that, after all, is why we go into politics, generally in the hope of making a difference, in some way improving the lives of those we represent.

Maybe I am therefore simply unsuited to politics, because I have never been prepared to do whatever it takes. I am prepared to do whatever I can reasonably can, within the constraints of what I believe to be right, moral and ethical, but I cannot put aside my most core beliefs in order to achieve power. Even if you said to me, Madam Chair, 'Put aside your objections, deny what you believe just for one day, and we'll guarantee that you'll be in government tomorrow,' I could not do it, not even with the promise that you could undo the wrong that you have done. It is quite simply a price too high for me to pay, my self-respect and the respect of my son the lawyer.

Ms CHAPMAN: I thank the member for Heysen for her contribution in representing what I think is a pure and principled position. I have high regard for her and that position. In doing so, I acknowledge the Minister for Health's commendation of the Leader of the Opposition in working with the government to reach a resolution of how we might deal with a scourge in our community and in particular the operation of organised crime via outlaw motorcycle gangs, as they are known, 10 of which will with the passage of this bill automatically be declared criminal organisations.

The Liberal Party may well have members who have publicly confirmed their opposition to the passage of the bill for reasons similar to those that the member for Heysen outlined. On the information we have, members in the Australian Labor Party in this parliament have struggled and wrestled with the proposed legislation because it blurs at best the separation of powers principle and impinges on that important principle.

However, can I say that, generally, the proposition of the prosecution and enforcement of laws by the judiciary has been recognised and will continue to prevail, even in this legislation. That is not to say it is the right way to go. The government and opposition have worked cooperatively to identify 10 groups in our community which we are satisfied, on the information that has been provided not just to the Attorney but has been made available for inspection and perusal by the opposition, have a membership with a history of activity and conviction of a criminal nature and with which there is an association with organised crime.

We are satisfied on that basis that the parliament determined that those 10 groups, out of the 27 originally nominated, ought to be declared a criminal organisation, and that 10 places, out of the original 15 identified as places of attendance and meeting of such organisations (otherwise known as 'bikie fortresses'), ought to be registered as places where there is to be a prohibition against the meeting of such personnel. We are comforted also, and more importantly, by the fact that the prosecution of a person who offends the new and extended laws of association and participation will be dealt with by courts.

This is not a list of persons who have been identified as having undertaken some illegal conduct. It is a list of a description of organisations that are being declared in a certain manner, and the breach, investigation and prosecution in respect of offences that flow from an association or attempt to encourage membership of those organisations will remain vested with the police, the DPP and the courts.

Can I also say that, whilst the government have originally sought to press the early passage of this bill in the parliament, that was resisted by the opposition successfully and, indeed, as a result of that, exposed a number of defects in the original bill, which I am pleased to say the government have accepted. In fact, even before we first debated this bill in this chamber, amendments were forthcoming to deal with that.

There are two other matters I wish to place on the record. One is we accept the minister's statement on behalf of the South Australian government that there will be reference to future law reform in respect of serious and organised crime to the Crime and Public Integrity Policy Committee. That is the current law. I am pleased that we have had an indication of commitment to do that, because in this instance this bill was not presented to the Crime and Public Integrity Policy Committee for their perusal and/or advice or to investigate and report on.

Furthermore, their current investigation into serious and organised crime was met with a rejection by the Attorney-General to even put a submission before them in consideration of serious and organised crime and its operation in this state. That has been traversed in the debates. It was very concerning to us that the first law officer of the state, the Attorney-General, would even consider refusing to put a submission to this committee when the law says that this committee is to have an ongoing role in assessing and reviewing law in respect of serious and organised crime in this state. So, I welcome the Minister for Health's statement today and an indication on behalf of the government that future consideration of amendments to our serious and organised crime laws in this state will have the opportunity to be reviewed by that committee.

I would urge any members of the parliament, government sponsored or otherwise, who wish to move amendments or new laws in respect of this area of the law to be reminded of the charter and legal responsibility of this committee, which includes the continued review of serious and organised crime laws. If they have a bill or they have an idea, they should present it to this committee for consideration.

That committee, I should say, has a number of roles as set out in section 150 of the Parliamentary Committees Act 1991. Under the amended bill that is being presented to us for approval, it is going to have another role. Hereinafter, future considerations by the Attorney-General of an application to have an entity declared a criminal organisation will, by virtue of the amendments now incorporated, undertake a process where he will be prohibited from making such recommendation to the Governor until he has received a report from the committee or the expiration of 10 days, which will enable that committee to review the material.

There has been some discussion about whether it is necessary for us make an amendment to the Parliamentary Committees Act to further expand the new role of this committee, and in particular its capacity to receive criminal intelligence. In short, this is because the Attorney in the first instance and the committee upon review will need to consider the criminal intelligence that is presented by the Commissioner of Police or his delegate under the act.

It is well known to members of the house that the sensitivity of some of the material in criminal intelligence necessarily must remain confidential. That has been a request of the police commissioner, and I think all parties concerned agree with that. It appears, on the advice received to the government to date, that the current legislation is sufficiently broad, 'to be tolerably clear' that that will be acceptable. I hope that is right; if it is not, we will need to deal with that at another time.

Finally, can I say that on this legislation the Attorney-General has provided in correspondence some information in respect of the charge and prosecution rates of legislation in Queensland and New South Wales, as had been sought in this place during committee. I thank him for that. What is evident is that there has been quite a significant number of charges. What is also evident is that there has been a much lesser rate of conviction.

Some of this has not been completed in these jurisdictions, because the novelty of the sum of this legislation, both in association laws in New South Wales and in participation laws consistent with the same formula that we are proposing here as part of the Queensland regime, is only relatively new. In Queensland in particular, there are also some pending reviews.

I think it is important to note that, at the national level, our law enforcement and attorneys-general have been meeting to deal with this as a national matter. I refer to the participation of various groups and entities, as we have identified, that are involved in serious and organised crime, and they are operating in a number of states. They are mobile, and they have exhibited a capacity to be even more mobile. The introduction of legislation in some states, without that being uniform across the country, is likely to result in a migration of this type of activity into other jurisdictions.

In saying that, I want to be clear that it has always been the opposition's view that it is important that this matter be dealt with at a national level, otherwise we are simply transferring the problem from South Australia to Victoria, or Tasmania, or Western Australia and that, in my view, adds to a level of irresponsibility in simply saying, 'We don't want this in our backyard.' That is a selfish approach. We are concerned about the fact that it will require some further consideration in other jurisdictions as a result of what we are doing today, but as best we can we will continue to work with the government and, indeed, governments in other jurisdictions to address a national approach and resolution to this issue.

With those remarks, I indicate that we will accept the amendments and trust that there will be some dent on the activity of organised crime in this state. I leave the committee with one statistic: that the then commissioner-elect, now commissioner, advised during the course of our consultations with police that, of some 24 murders last year, only one of them was committed by a bikie, and that was of another bikie. That does not necessarily mean that that is acceptable behaviour. I make the point though that of the others, these were serious crimes committed by non-members of motorcycle organisations. I make that point because it is incumbent upon us as a parliament, the government and the enforcement agencies such as the police to make sure we deal with serious and organised crime in our state and not abandon that.

I am pleased that there will be passage of this bill, and I hope it will have a clear road for enforcement. I think that both the Attorney and I agree that it is likely to face some challenge at a court level. That may be so, but our interests are in trying to arrest that portion of organised crime which is in the purview of groups in our community that are unacceptable to us and a danger to our fellow South Australians.

The Hon. J.J. SNELLING: I thank the Deputy Leader of the Opposition for her support. I will just respond to a couple of things. Firstly, the assertion by the member for Heysen that the reason for this legislation is entirely out of political motivation is one that the government completely and utterly rejects. The reason we proceeded with this legislation is on advice from the police about their frustrations in dealing with what is a menace—the bikie menace—and that special legislation needed to be created to enable police to effectively deal with this menace.

The Deputy Leader of the Opposition asserted that, of the 26-odd murders that were committed, only one was a bikie performed on another bikie, but that is really only part of the issue because, of course, these bikies are involved in the manufacture of dangerous drugs which are peddled to our kids. And I can assure the house that I am pretty sure it would be far more than 26 people who have died from drug overdoses or had their lives destroyed because of involvement in drugs that are manufactured and sold on the street and peddled by outlaw motorcycle gangs. This is a very important issue, and the government has thought very carefully about what the police have asked for and have acted on the advice of police at all times.

Once again, I thank particularly the Leader of the Opposition. I know this is a very, very difficult issue for the Liberal Party as we have seen by the very emotional contribution from the member for Heysen. I understand that the Leader of the Opposition certainly has had to assert his authority in the Liberal Party party room to ensure that this legislation basically had bipartisan support, and I pay tribute. I know that leadership can be a very lonely place, and I pay tribute to the role the Leader of the Opposition played in making sure that this legislation had significant bipartisan support.

Motion carried.