Criminal Law Consolidation (Criminal Organisations) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 21 June 2017.)

Mr TARZIA (Hartley) (16:09): I rise today to speak to the Criminal Law Consolidation (Criminal Organisations) Amendment Bill 2017, and I indicate that I will be the lead speaker on this side of the chamber. The bill in question was introduced by the Attorney-General on 21 June this year to amend the Criminal Law Consolidation Act 1935 (CLCA). I can advise that it is the opposition's intention not to oppose the bill in this house. However, we will require further consideration to either amend the bill or block the bill, and we ask for that consideration to be had between the houses and also upon consultation with several stakeholders.

The Hon. J.R. Rau: Bikie groups?

Mr TARZIA: No, definitely not bikie groups. Attorney, we definitely will not consult bikie groups, but other groups who perhaps have a vested interest, such as the Law Society and other legal groups.

The government claims that the bill will strengthen our anti-organised crime laws. Under the Serious and Organised Crime (Control) Act 2008, obviously the capacity to have a court declare an organisation for the purposes of restricting their activity in association within it or to it was established. In 2015, new serious and organised crime laws were passed that prohibited persons associating with members of criminal organisations, that is, bikie gangs. These laws prescribed places and also groups, and they were identified and then declared by the parliament to be criminal organisations. This particular law defines a 'criminal organisation' in three ways:

1. Three or more persons meeting with at least one of their purposes is to plan, engage in serious criminal activity and their association represents an unacceptable risk.

2. A declared organisation as set out above by a court.

3. As touched on, an entity declared by the parliament, as above, with powers to amend by regulation.

We know that SAPOL and also the DPP have confirmed that it is much easier for them to try to prosecute under the third definition by parliament or regulation, as was introduced in 2015. Incidentally, there have been no cases of a court declaration under the 2008 act or any prosecutions, of which I am aware, of persons using the definition of 'three or more persons with intent to commit' as stated above.

Under the 2015 legislation regulations, 10 criminal organisations have been declared, and a number of places identified by their address, prohibiting a meeting of the gangs at those places. Currently, it is a defence for the defendant to prove that the criminal organisation alleged to have been associated with does not have as one of its purposes to engage in or to conspire in criminal activity, and you only have to look at section 83GC(2) of the Criminal Law Consolidation Act.

The government has made claims via the Attorney-General's representative that SAPOL and the DPP say that the 'no criminal purpose' defence has the opportunity to be somewhat problematic. In particular, if it is raised then perhaps the prosecution would be required to adduce complex evidence to prove the purpose of the criminal organisation. There is also an argument out there that the DPP should not have to do this when the parliament has already declared that organisation as such. This bill deletes the 'no criminal purpose' defence, and the government claims there would be no common law or statutory defences still available to an accused.

I am not aware of any formal submissions that have been provided to us at this stage. I understand that the government has consulted with SAPOL, and I am informed also of a conversation with the DPP. That is all that I am aware of; I am informed they are the only stakeholders who have been formally contacted. We understand that the Attorney is very keen to press this reform with SAPOL to try to maintain the public perception that they are combating organised crime and illicit bikie gangs.

Any time we would try to help make the law better in this area, or any time we might seek to challenge or question some of these measures, whilst we do not want to be accused of anything, I think we are well entitled to give very careful consideration to such laws and consult with relevant stakeholders to make sure that if and when the bill does become a law it has gone through a rigorous process. We certainly will not hold it up in this house, but we do reserve the right to seek changes to the bill between the houses once we have had some clarification on certain matters.

I am informed from a letter from the Attorney to the shadow attorney that there are a number of matters before the courts that potentially touch on such a bill where these sorts of sections of the law can come into question. I have been informed that there are two relevant matters before the Adelaide Magistrates Court at the moment. Obviously I will not go into them in detail, but that has been brought to our attention.

I want to clarify a couple of issues about the onus of proof and standard of proof applying to the defence. Section 83GC(2) provides:

It is a defence to a charge of an offence against subsection (1) for the defendant to prove that the criminal organisation in which it is alleged that the defendant is a participant is not an organisation that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity.

We have asked for some clarity around who bears the onus of proof in respect of the defence and the relevant standard of proof. We have received some answers to that.

We have been informed that the defence in section 83GC(2) is unusual in that it places the onus on the accused to prove a negative, namely, that the criminal organisation does not have a criminal purpose. We have also been informed that under section 83GC(2) the onus is on the accused to prove the defence on the balance of probability. However, the prosecution is responsible for negativing the defence. In practice, we have been informed that almost certainly this requires that the prosecution would have to present cogent evidence as to the criminal purpose of the organisation.

Obviously, when an organisation has already been declared to be a criminal organisation, there is an argument that that declaration is not, of itself, evidence of that organisation's criminal purpose. The nature of the evidence that the prosecution would need to advance in order to disprove the proposition that the criminal organisation does not have a criminal purpose would, of course, include evidence about the rules of the organisation and include minutes of a meeting, as well as proof of the general operations and activities of that organisation.

There was an article published by The Advertiser in late June which states: 'Move to close off bikie law loophole'. Despite this Labor government being in power for many years and despite this Attorney being the state's number one legal officer for many years, unfortunately we still need to close off these loopholes. If, once we have heard from some of these other stakeholders, the advice is that this needs to happen and it will result in getting bikies off the street and making our streets safer and protecting South Australians, then we should obviously support it. As I alluded to earlier, we will be seeking consultation with other stakeholders, but we will support the bill in this house. I commend the bill to this house.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (16:18): I thank the member for Hartley for his contribution. I am pleased that the opposition will not be raising any issues about this matter here. That said, can I make a couple of points. The first one is that if the parliament has determined that a certain group is a criminal organisation, there is something illogical about a member of that group then being able to go to court to have the court, in effect, declare the parliament is wrong. I think that is a bit weird. Having been presented with the reality that that is what the law might mean, it is my duty to fix it.

The second point I would make is that the member for Hartley says they are going to talk to stakeholders. I do not like that word very much. I call them interest groups because I think that is a closer English approximation for what we are talking about. I can guess what the main interest groups will be: our friends in the Law Society in particular and the Bar Association, who will adopt their normal contrary stance. They will crank up the word processor with a predetermined letter in it, which says, 'We disagree with everything you have done,' insert a small amount of text, and then they will sign and send it off to the opposition, who will then say, 'The sky is falling! The Law Society'—surprise surprise—'don't like us getting tough on criminals.' Well, goodness me, that is breathtaking.

I know this is going to shock the member for Hartley and possibly others, but the Law Society primarily represents the interests of lawyers, and there is nothing wrong with that; in fact, some of my best friends are lawyers. There is nothing wrong with them having an industrial group that represents them. They have the same right that plumbers do, but please let us not get to the point where we think that because it is called the Law Society it is somehow some sort of ethereal body that does not operate out of self-interest but constantly thinks of others. This is not the Dalai Lama running the show. They are not there as an altruistic organisation of seers and visionaries, there to lead the community to the sunlit uplands all the time.

Mr Bell: Are you saying we should not consult with them?

The DEPUTY SPEAKER: The member for Mount Gambier is not in his place.

The Hon. J.R. RAU: I can save the member for Mount Gambier the time—

The DEPUTY SPEAKER: Order! It is unparliamentary to interject, especially out of your place, and you do not respond.

The Hon. J.R. RAU: I am trying to save the member for Mount Gambier and the member for Hartley the expense of a stamp and the printing of several pages of paper. What I am trying to say is that I know what they are going to tell you. It will start off with 'this is outrageous' and so on and so forth, and it will probably end with 'this is outrageous' and so on and so forth. The bottom line is pretty simple: given that is what they are going to say, and given that I do not criticise them for saying that, because they are looking after their members, who hope to be able to do some work defending these characters, that is fine, no problem, but let's not dress it up as being anything more than it is, and let's come back to the real point.

The real point is this: are we trying to help declared criminal organisations' members escape prosecution or not? That is it. It is a pretty simple question. All you have to do is tick the box. If the answer is, 'Yes, we would love them to avoid prosecution,' oppose the bill. If the answer is, 'No, we think the fact the parliament has decided these people are members of a criminal organisation,' that is pretty good, it does not happen very often. If we were in Canberra and this was being done to Al Qaeda or Jemaah Islamiyah, we would not be letting magistrates ask Hambali or somebody the question: are you really part of a naughty group?

I think we would accept the fact that parliament said, 'Hello, these groups aren't too good,' and once the person is a member of the group the prosecution does not have to then prove all over again what happened on 11 September in the US. You would not have to call all that evidence. That would be taken for granted. That is our position on this. The parliament has declared these outfits criminal organisations on the basis that SAPOL has advised us about what these people do.

As far as we are concerned, the parliament has spoken. All we are saying is: let the parliament's determination stand, and these people can be a member of that group or not. We do not care; it is up to them. But if they choose to be a member, they should not come to the court later on and say, 'Oh I'm a member, but I thought all they did was make toys for kids'—because that is where it is heading—'All we do is have a fun run every year.' I digress. I am delighted that the member for Hartley is supporting this, albeit with some reservations; I did hear that bit. I commend the bill to the house.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (16:25): I move:

That this bill be now read a third time.

Bill read a third time and passed.