SERIOUS AND ORGANISED CRIME (CONTROL) (MISCELLANEOUS) AMENDMENT BILL

Introduction and First Reading

The Hon. DAVID WINDERLICH (16:26): Obtained leave and introduced a bill for an act to amend the Serious and Organised Crime (Control) Act 2008. Read a first time.

Second Reading

The Hon. DAVID WINDERLICH (16:27): I move:

That this bill be now read a second time.

This is a consolidated version of an earlier bill which I introduced, the Serious and Organised Crime (Control) (Close Personal Associates) Amendment Bill. This bill replaces that bill and adds to it other categories of association and protection of association, including the provision of association on the grounds of community or church volunteering as a defence, and limits the operation of association to a member of an outlawed gang or a declared organisation (which under the current act applies that indefinitely—anyone who has ever been a member of a declared organisation could be subject to the provisions of the Serious and Organised Crime (Control) Act)—to a two year limit.

In May last year, the government's Serious and Organised Crime (Control) Act was passed. All of you would be aware of my strong opposition to these laws. Among other things, they remove the presumption of innocence by putting the onus of proof on the defendant, remove judicial discretion and undermine the rule of law by categorical discrimination. This act has been condemned for its human rights violations and as a flawed attempt at fighting crime by former police commissioner Christine Nixon; the Victorian Attorney-General, Rob Hulls; the Australian Capital Territory's Human Rights Commissioner, Helen Watchirs; the ACT Attorney-General, Simon Corbell, and the United Nations Regional Centre for East Asia and the Pacific Office on Drugs and Crime.

These are just a few of the international agencies that have come to believe that South Australia's so-called 'tough on crime' approach (as exemplified by this act) does little to address criminal behaviour and is wholly unjust. At a more practical level, there was opposition to this bill from the very beginning and concern since its implementation from groups such as the Longriders Christian Motorcycle Club and workers in church community organisations.

Although I would dearly like to see this draconian legislation removed in its entirety, for now I am focused on amending just one aspect of it, that is, the provisions which inhibit freedom of association. The Serious and Organised Crime (Control) Act bans association between the general public and anyone who is a member of a declared organisation or those under a control order. In fact, the law strictly bans the public from associating with people who are former members of a declared organisation and may have had no involvement with the organisation for 30 or 40 years or more.

Just as concerning are restrictions on what most people would call close family members associating with a person who is a member of a declared organisation or has a control order against them. It is currently an offence for cousins, uncles, aunties and even some partners to see their loved ones six or more times a year if one or the other is a member of a declared organisation or the subject of a control order. This effectively forbids Christmas family get-togethers, family fishing trips and the celebration of birthdays with family members.

Furthermore, the current law makes it an offence for volunteers to have any contact with someone who is a former member of a declared organisation or the subject of a control order. It makes sitting in church at least six or more times a year with a former Fink or another person who is the subject of these laws an offence. It makes it a potentially criminal act to serve a person subject to these laws at a soup kitchen.

Volunteers at a homeless shelter, fundraising barbecue, school fete or Rotary Club event, or collecting for the Red Cross Appeal or some other charity event, are currently engaging in criminal activity if they associate six or more times a year with someone who is a member or a former member of a declared organisation or the subject of a control order. In fact, by having any interaction with a person who is subject to these laws, an innocent person becomes potentially subject to criminal sanctions.

While at first glance these laws might appear to be making former members of declared organisations or people who are the subject of a control order outcasts, there are no provisions which penalise them from associating with the public. Instead, community and family members who engage with them are subject to penalties—which could mean they are liable for up to five years' imprisonment. Prosecutors need no evidence of criminal behaviour: it is up to these community and family members to prove their innocence.

The government has complained loudly that motorcycle clubs have been a law unto themselves and that they have tried to establish themselves outside society—and, indeed, that is true of a number of them—but its own laws are actually helping to further that distancing from society by cutting off members of motorcycle organisations from the rest of society, including their loved ones and support networks to which they would otherwise turn in order to turn around their life, if they are so inclined, such as religious and community organisations.

Further, it uses a broad brush to socially alienate people who have turned away from organised violence decades earlier in the same way it penalises those who police suspect still engage in criminal activity. It makes no distinction. There is little incentive to try to reintegrate with society, even for those members of motorcycle gangs who want to do so.

My amendments would only scratch the surface of correcting the vast array of unethical and discriminatory legislative provisions within the Serious and Organised Crime (Control) Act. The first part of the bill provides a clearer definition of membership in order to limit it to those who have been involved in one way or another with an organisation for two years prior to the application for its listing as a declared organisation. No doubt, this begins what will be a long process to address just one of the numerous concerns that the United Nations Office on Drugs and Crime has with the legislation.

The second focus of my amendment bill is to provide greater protection to volunteers involved in community and religious service delivery, who otherwise may inadvertently be penalised for what the government deems to be criminal activity, such as the seditious soup kitchen, cupcakes at a fete, asking for donations for a charitable cause or going to church.

The actual criminality of the actions is irrelevant to the government's thinking; the possibility of criminal activity is all that matters. My proposed changes add 'associations occurring in the course of gatherings of a religious or spiritual nature or gatherings of individuals who share membership of a group that is religious or spiritual in nature' and 'associations occurring in the course of voluntary work in the community' to the list of reasonable associations.

I understand that the government actively and consciously excluded church services from acceptable associations when creating this legislation, fearing that churches could be a haven of serious and organised criminal activity. This overturns a long Christian tradition of welcoming the outcasts. On one level it is a restriction of religious liberty and, on another level, it is a surprising lack of faith in faith by a parliament with many Christian members, including the Attorney-General who is a committed Christian.

As I have said before, I come from a Christian tradition, being the son of a Lutheran minister. The operating theory in my circles is that exposure to the word of God is good for people. We would actively go out to the dispossessed and outcast to expose them to the word of God and we would welcome them into church services. The strange thing about this act is that it completely overturns that tradition in that only respectable people may apply to participate in religious activity. I think that is a strange inversion of the Christian ethos.

The third focus of my bill is to include what most people would think is common sense. The exclusion of these common sense measures is, unfortunately, unsurprising, considering the other provisions contained in the act. However, my amendments would add—and this was the subject of my previous bill—cousins, uncles, aunts and intimate relationships to the list of reasonable associations.

The effect of this change would mean that these close family members are not automatically found to be guilty of criminal association, and the prosecution would have to prove the association was of a criminal nature. By the way, until recently this used to be par for the course in our legal system and our general culture, our understanding of how the law operated and our rights under the law.

I realise that the notion of proving something wrong took place before convicting someone of a charge is a novel concept to the government, but I assure members it is very much needed in this case and in the other scenarios mentioned previously. I look forward to members' support in this first step towards bringing back the presumption of innocence, the rule of law and freedom of association.

Debate adjourned on motion of Hon. T.J. Stephens.