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

Second Reading

Adjourned debate on second reading.

(Continued from 14 March 2012.)

The Hon. S.G. WADE (12:47): The government introduced two bills in the House of Assembly on 15 February 2012 to repair its anti-bikie laws and to deal with serious and organised crime. The bill that we are debating now, the Serious and Organised Crime (Control) (Miscellaneous) Amendment Bill 2012, is what I refer to as the control bill. Another bill on the notice paper, the Statutes Amendment (Serious and Organised Crime) Bill 2012, is what I refer to as the offences bill.

Whilst they are quite separate bills with quite separate provisions, they are part of a pair. I certainly do not believe in the government's rhetoric in terms of every bill that has some relevance to the justice system somehow becomes part of its integrated package to deal with serious and organised crime, but it is clear that these two pieces of legislation are a set. On that basis, and to facilitate the consideration of the council, my second reading contribution on this bill will be my only second reading contribution on these two bills. That is my expectation anyway, unless I am provoked into further contributions on another occasion. I suspect that we will not get to the second reading stage of the statutes amendment bill today nonetheless.

As I have indicated in the past, the Liberal Party gave in principle support for these bills in February. In reiterating that support today, I will also indicate our significant concerns with the bills. The control bill seeks to amend the anti-association regime that was introduced by the 2008 Serious and Organised Crime (Control) Act, particularly in response to the High Court decisions in Totani and Wainohu. Those decisions were in 2010 and 2011 respectively.

In the House of Assembly the Liberal opposition sought to amend the control bill to allow for a review. The government accepted our amendment, and I welcome that. The Liberal Party's first concern is in relation to enhancing the prospect of the bills being effective in controlling serious and organised crime. I believe we have every reason to approach this legislation with scepticism, given Labor's appalling record of controlling gangs over the 10 years it has been in power. Over the 10 years that Labor has been in government, outlaw motorcycle gangs have, in fact, grown and become more dangerous.

At the 2010 election, Labor promised its legislation would help 'disrupt and dismantle serious and organised crime gangs.' Yet in January 2012, Commissioner Hyde advised that, since the government first enacted its anti-association law in 2008, outlaw motorcycle gang membership had actually gone up 10 per cent to, at that stage, 274. The only organisation declared under the legislation to this point is the Finks Motorcycle Club. In spite of the presence of the laws, only nine of the 52 Finks members are currently in prison.

Labor has indeed disrupted the gangs but, in my view, it has disrupted them in a way which has emboldened them. Labor has succeeded in fostering new gangs. Let me put it this way: in the period that these laws have been in place, new gangs have emerged. The New Boys street gang, for example, has been transformed into the Comancheros Outlaw Motorcycle Gang. The behaviour of the gangs is also becoming, in my view, less controlled, more public and more of a risk to public safety.

The Labor Party also promised in 2002 that it would deal with fear in the community. Before the 2002 state election, Mike Rann, then opposition leader, promised that he would 'focus not only on minimising crime, but on ending the fear of crime that terrorises many in our community, especially older South Australians'. Labor has failed to deliver on that promise. South Australians walking locally at night, according to a report on government services statistics, feel the least safe of citizens of any other state. In 2009-10, 43 per cent of South Australians walking locally at night felt unsafe and, as I said, that was the least safe record throughout the federation. In contrast, 2001-02, South Australians felt the safest of any state.

The Labor Party also argues that crime reduction was a goal of its policies. Labor claims that its approach to serious and organised crime has reduced crime. In the Attorney-General's discussion paper on serious and organised crime, the government asserted that there had been a cut in crime by 35 per cent. Reductions in crime in South Australia, in fact, merely reflect national trends and a higher general prosperity over the decade and other factors such as higher use of immobilisers in motor vehicles. The homicide rate is the equal highest rate of any state. In 2009-10, it was 1.3 per 100,000. In 2002, South Australia, South Australia was the second highest state.

In terms of that review on the outcomes of 10 years of Labor, I am reminded of the comments by Mr Pallaras and the need to focus on outcomes in this area. On radio, Mr Pallaras said:

....the phrase 'get tough' means absolutely nothing, it means making a lot of noise. What we need to do is get effective and have effective legal constraints on this sort of behaviour.

The opposition supports the view of the DPP that we need to be focusing on outcomes, and this legislation will be putting outcomes at the forefront.

The Liberal opposition is strongly of the view that crime networks are a cancer which need a customised targeted response. The worsening situation under Labor shows that its strategy is not the right one for South Australia. There is also concern in the criminological community relating to anti-association laws. With their focus on a definable organisation with members and associates, there is a concern that they are unlikely to be effective as they fail to allow for the dynamic decentralised nature of modern criminal business networks. Outlaw motorcycle gang members often run their criminal activities in association with non-outlaw motorcycle gang members. In any event, a significant proportion of criminals in South Australia are not related to outlaw motorcycle gangs.

In terms of academic concern about the anti-association approach, I thought it was most relevant to quote from a contribution by Professor Roderic Broadhurst and Ms Julie Ayling. They are members of the Australian Research Council Centre of Excellence in Policing and Security, Regulatory Institutions Network, Australian National University. I will quote from part of their evidence before the Legislative Review Committee in relation to its inquiry into criminal intelligence. They took it upon themselves, and I welcomed the fact, to comment on criminal intelligence in the context of the anti-association approach. They said:

There are other reasons, too, why we might consider that applying a bandaid solution to the criminal intelligence problem of the South Australian Serious and Organised Crime (Control) Act 2008 is not the best way to proceed. These are that the Act itself has inherent problems. Two suggest themselves as particularly important. First, Justice Hayne in the High Court case of Totani stated, in relation to the Act's application to an [outlaw motorcycle gang] member, that 'the freedom of association of a defendant may be restricted where neither the executive nor the judicial branch has made any determination about what he or she has done, intends to do, or is likely to do in connection with "serious criminal activity"'...

Many commentators, including eminent lawyers, have argued that what this and other similar laws in fact do is allow the state to take pre-emptive action (through declarations and control orders) against those it suspects, but perhaps cannot prove, of involvement in serious crime, on the basis of their identities rather than their actions. In other words, it introduces 'status offences'. The principle that there should be 'no punishment without law' (nulla poena sine lege)—that is, that one cannot be punished for doing something that is not prohibited by the law at that time—underpins our legal system and status offences, in their focus on criminal type rather than criminal conduct, offend this principle. In our submission, status offences are inappropriate in a society such as ours that claims to be human rights compliant and to respect the rule of law.

That is the end of the first point. In the second point the submission goes on to state:

Second, the legislation brings within its ambit all members (defined broadly) of a declared organisation rather than targeting only the criminal elements within it. It disregards functions that such organisations play in the life of their members other than as incubators of criminality and includes in its scope any members who are not involved in criminal activity, as well as associates of members. This lack of appropriate targeting of laws is clearly regarded as unreasonable, even draconian, by those targeted, as the formation of the SA United Motorcycle Council and various public protests by motorcycle club members attest. Even if we put aside those objections as self-interested, we should note that inappropriate targeting can do society at large a disservice by bringing laws into disrepute and diminishing the legitimacy of law's agents. The counterproductive results may be more difficulty in securing general compliance with the law and reductions in police efficiency.

In terms of the concerns that have been expressed in relation to the anti-association approach, which this bill reflects, they have also been expressed by the Australian Crime Commission and Victoria Police. In 2008, the Australian Crime Commission warned that the impact of anti-association legislation may be reduced over time as these groups adapt their practices to overcome legislative impediments. They also express concern that there may be a displacement effect, which makes members of these groups more difficult for law enforcement to monitor or target.

Victoria Police in the same year also warned that such laws may merely drive the visible appearance of outlaw motorcycle gangs underground. They suggested it may be more cost effective to deploy the surveillance resources used for monitoring associations to investigating and prosecuting general criminal activity.

The opposition is also concerned that we need to make sure that we do not infringe constitutional principles. In that context, I think it is fair to note that we are dealing with a riskier environment in 2012 than we did in 2008 in constitutional terms. The state government chose to go to the High Court to defend this legislation. I seek leave to conclude my remarks.

Leave granted; debate adjourned.

[Sitting suspended from 13:01 to 14:18]