SERIOUS AND ORGANISED CRIME (CONTROL) (DECLARED ORGANISATIONS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 23 July 2013.)

The Hon. S.G. WADE (20:59): I rise on behalf of the Liberal Party to indicate our support for this legislation. Organised crime is a plague on South Australian society. In recent years, South Australians have had to endure shootings between outlaw motorcycle gangs and escalating violence in the Adelaide city and suburbs, particularly as outlaw gangs clashed with each other. All this occurred years after the government's solution was meant to be in place. The violence not only continued, it increased. Rather than crippling the gangs, the government's legal frolics emboldened them and the violence spread out onto the streets.

Information provided by the former police commissioner Mr Hyde in January 2012 showed that, after the government enacted its criminal organisations laws in 2008, outlaw gang membership actually increased by 10 per cent. The data also showed there were more gangs and research suggested they were becoming even less controlled in their aggressive behaviour than in the past. South Australians have become somewhat used to the government claiming to have finally worked out how to beat organised crime gangs because the government has had to repeatedly introduce legislation to fix up their mistakes.

In five years, the government has introduced three bills to deliver what they promised they would deliver in 2007. In 2008, the government enacted the Serious and Organised Crime (Control) Act as part of its response to outlaw motorcycle gangs. That bill contained provisions that empowered the Attorney-General to declare an organisation as an outlaw gang; however, key provisions of the 2008 act were struck down by a 6-1 decision in the High Court in the Totani case in November 2010.

In 2011, the High Court invalidated the New South Wales equivalent of that legislation in the Wainohu case. The South Australian government was very slow to respond in terms of introducing amended legislation. The second bill—the Serious and Organised Crime (Control) (Miscellaneous) Amendment Bill 2012—was tabled on 15 February 2012. The 2012 bill was similar to the anti-association bills tabled by the Western Australian government on 23 November 2011 and a New South Wales government bill tabled on 16 February 2012—the day after the South Australian legislation was tabled.

The South Australian bill aimed to repair the control act in the context of both the Totani and Wainohu judgements. It also expanded the range of offences. The bill introduced a revised model for declarations whereby an eligible judge appointed by the Attorney-General would decide whether an organisation would be declared. In his second reading debate on the 2012 bill, the Attorney-General said:

...the redraft was to be based on the Western Australian bill when in doubt on the presumption that the states would stand together on the basic issue so far as possible...

This is the first reference to a recurring theme of my contribution tonight. The government was working on the assumption, and states are increasingly working on the assumption, that there is value in having convergence of bills of similar legislation in different jurisdictions. The general view is that it would be valuable in allowing jurisdictions to work together to protect their legislation and also, I presume, that jurisdictions could more easily understand High Court judgements in relation to legislation if the similarities between the legislation are greater than the differences.

However, while the 2012 bill was similar to the Western Australian bill, the South Australian bill was significantly broader than the other two bills. For example, the South Australian bill made it an offence for any person to associate with a member of a declared organisation or a person subject to a control order, or for two people with a criminal history to associate. The other bills only made it an offence for members and associates of criminal organisations and/or people subject to orders to associate with one another.

The bill defined serious criminal activity as any offence which would lead to imprisonment. Western Australia and New South Wales require that the bill be five years' imprisonment or more. The bill included mandatory elements of orders, which may represent a constitutional risk. The bill applied fully to and made no allowances for minors. The relevance of these differences in the context of a general convergence approach is that, as I said before, the greater the differences the greater the risk of distinctives causing one jurisdiction's legislation to fall foul of constitutional principles.

It is noteworthy that no applications have been made to declare an organisation since the 2012 bill was enacted. The 2012 bill was amended by the government in this place so that the Attorney-General would no longer choose the eligible judge who was to consider the application for a declaration; rather, the judge would be appointed by the Chief Justice. So, in a way, that was the third version of the declaration process.

On 14 March 2013, the High Court delivered its judgment in another constitutional challenge, in a case called Assistant Commissioner Condon v Pompano Pty Ltd and another. The High Court rejected the Finks' challenge to the provisions in question. This was a historic judgment, perhaps first and foremost because it was the first occasion in which the High Court has found a piece of legislation of this kind in Australia to have withstood constitutional challenge.

That judgment was delivered on 14 March. Seven days later, on 21 March 2013, the New South Wales parliament received a bill to amend their legislation in response. The New South Wales Attorney-General, Greg Smith, said:

The Crimes (Criminal Organisations Control) Amendment Bill 2013 proposes to adopt those aspects of the Queensland model which were considered and upheld by the High Court.

That is an example of the New South Wales government and New South Wales parliament pursuing this convergence approach. The New South Wales parliament decided that, if matters had been considered and upheld by the High Court, it would strengthen the constitutional robustness of its legislation if it were to reflect them.

The first element that the New South Wales government and parliament identified is in relation to the declaration process. Under the New South Wales bill, the act is amended so that the declaration of a criminal organisation is now to be made by the Supreme Court of New South Wales itself rather than by an eligible judge of the Supreme Court.

The second aspect of the Queensland model which was taken up by the New South Wales parliament was the declaration test. The test to obtain a declaration of an organisation as a criminal organisation was modified so that amongst other things, the test now requires that the continued existence of the organisation involves an unacceptable risk to the safety, welfare or order of the community. The New South Wales Attorney-General said:

This test represents a hybrid of the test proposed by the 2012 [New South Wales] bill, as well as adopting the 'unacceptable risk' test used in Queensland and approved by the High Court.

The third aspect of the Queensland model picked up in New South Wales was the detailed criminal intelligence mechanism. The New South Wales police commissioner will now make a declaration to the Supreme Court to have material declared to be criminal intelligence. As Attorney-General Smith put it:

The New South Wales legislation will now be brought in line with Queensland provisions which have withstood challenge in the High Court.

Fourthly, the New South Wales bill establishes a criminal intelligence monitor. Mr Smith said:

While the High Court's decision on the Queensland legislation did not focus on the existence of the [monitor]...the monitor's role was described as one aspect which tended to support the validity of the Act.

Following the High Court judgement in March and the actions of the New South Wales government and parliament to align its legislation with the Queensland legislation nearly seven days after the High Court judgement, what did the Weatherill Labor government do here? Basically nothing. I waited with bated breath for the government to react, and yet months passed.

The first time the Liberal opposition was made aware that the government did indeed intend to act was in mid-June. The judgement was handed down in March, and the government first made contact with the opposition in mid-June. No detail of the issue was provided at the time, despite an assurance being sought by the government that a bill would be given quick passage through this parliament.

It was weeks later before my leader, deputy leader and I received an initial briefing on the bill, on 3 July 2013, from the Attorney-General, the Solicitor-General, and senior police. A subsequent briefing occurred on 10 July with the Attorney's advisers, the Solicitor-General and SAPOL. I thank the Attorney and all of the officers involved for sharing their time and their expertise.

At the briefing of 3 July, the Attorney indicated that he was intending to give notice on Thursday 4 July and to table the bill in the House of Assembly yesterday, Tuesday 23 July. The opposition representatives immediately urged the government to table the bill on 4 July so that the bill could be considered in the intervening weeks before parliamentary consideration. To facilitate the tabling, the opposition indicated that it would support the suspension of standing orders.

I am deeply suspicious that the government's timing of the tabling of the bill was a tactic from a government which is embarrassed that its constitutionally risky approach to criminal organisations laws has yet again been exposed as being flawed; in particular, the Attorney-General's florid comments about criminal intelligence in the past are in stark contrast to the fact that both the Queensland and New South Wales parliaments now have court-based criminal intelligence management and an independent criminal intelligence monitor.

While New South Wales had acted on the Pompano decision within seven days, the South Australian government took months to respond and then was expecting this parliament to pass a major bill within two days of tabling it, not through one house of the parliament but through both. As I understand it, the Attorney was intending that we not have access to the bill until yesterday and that we should pass it by tomorrow. Thankfully, the opposition's offer was accepted, and the bill was tabled on 4 July. That was still almost four months after the High Court judgement. In his second reading explanation, the Attorney-General made comments in support of what I have described as a convergence approach. He said:

It is clear beyond argument from this discussion that the constitutionally safe course is to replace 'eligible judges' with the Supreme Court and to make consequential amendments to the Act.

Later, he said:

The trend is clear. South Australia must now stand with the others, and with that legislative model that has been definitely ruled to be valid.

This bill now proposes a fourth form of the declaration process. This bill proposes that the Supreme Court, rather than an eligible judge, makes the declaration. It is the government's fourth attempt to get it right, yet they still have not learnt its lesson, in our view. They have not learnt the lesson from their own mistakes or the experience of other states. In our view, the government is continuing to build constitutional vulnerabilities into South Australian legislation.

Let me reiterate: the opposition supports the government and other governments and parliaments in what I have described as convergence. We do believe that it is wise that, when in doubt, Australian criminal organisations laws reflect each other. One of the reasons for this is that it increases the constitutional robustness of our regime.

As I indicated earlier, it gives jurisdictions an opportunity to more easily apply High Court and other judicial determinations to their legislation. In a practical sense, it increases the likelihood that other states will support South Australia in defending any constitutional challenge and, thirdly, it avoids South Australia maintaining a legislative regime which is seen as more vulnerable constitutionally and thereby risks making our scheme a target for those who seek to challenge the laws.

Unfortunately, our view is that the South Australian bill provides limited convergence and still leaves consistent vulnerabilities. Specifically, it does not adopt the last three elements of the New South Wales bill that I outlined above. The opposition was advised that the government did not seek legal advice on those elements. The criminal intelligence processes, in particular, are a clear divergence between the Queensland and New South Wales schemes on the one hand and the South Australian bill on the other.

Honourable members would recall that criminal intelligence is secret police evidence not available to the respondent. Criminal intelligence per se is a key divergence from the normal operations of the adversarial system of justice. Since K-Generation, the High Court has upheld the use of criminal intelligence and, again, in Pompano, the High Court upheld the validity of criminal intelligence. This is an excerpt from the High Court judgement summary:

The Court held that while the provisions may depart from the usual incidents of procedure and judicial process, the Supreme Court nonetheless retains its capacity to act fairly and impartially. The Court held that the provisions do not impair the essential characteristics of the Supreme Court, or its continued institutional integrity.

The majority judgement itself stated:

…if an adversarial system is followed, that system assumes, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. As the trade secrets cases show, however, the general rule is not absolute. There are circumstances in which competing interests compel some qualification to its application. And, if legislation provides for novel procedures which depart from the general rule described, the question is whether, taken as a whole, the court's procedures for resolving the dispute accord both parties procedural fairness and avoid 'practical injustice'.

The majority considered that in the context of the court's inherent powers the court can protect procedural fairness, and the legislation's procedures for criminal intelligence were therefore not invalid.

Queensland and New South Wales now require the police commissioner to make an application to the Supreme Court to have material declared to be criminal intelligence. This contrasts with the previous situation where the police commissioner could make that determination. Under the South Australian legislation, even after this bill is passed, South Australia will continue to have the police commissioner making that declaration rather than the court.

Involving the Supreme Court in a criminal intelligence declaration increases the capacity of the Supreme Court to maintain procedural fairness, both in the declaration under criminal intelligence itself and in any proceedings receiving that evidence. They could be proceedings to have a criminal organisation declared or related proceedings to impose a control order.

Further, Queensland and New South Wales provide for a criminal intelligence monitor whose function is to monitor each criminal intelligence application, as well as declaration and control order proceedings. While Pompano does not explicitly insist on the three elements, there is value, in the opposition's view, in having convergence, and the three elements are likely to make our law less likely to offend constitutional law, in that they support procedural fairness and reduce the risk of practical injustice—phrases used in the High Court judgement.

I had a detailed briefing on the bill from the Solicitor-General and the South Australian police, and I was advised that the Solicitor-General had not been asked to advise on the New South Wales elements not reflected in the South Australian bill. On 15 July 2013, the shadow cabinet of the Liberal Party resolved that I write to the Attorney-General to seek an explanation from the government as to why these three key elements of the Queensland law, which were adopted by New South Wales in its legislative response to the High Court judgement in Pompano, are not reflected in the South Australian bill. The Attorney-General kindly responded. This is my letter to him:

Dear Attorney,

Thank you for agreeing at our 3 July meeting to suspend Standing Orders and table the Serious and Organised Crime (Control) (Declared Organisations) Amendment Bill 2013 the following day. This enabled the Opposition to be briefed before parliamentary debate.

The Opposition supports the Government's strategy to align our declared criminal organisations law with the laws of comparable jurisdictions following the Pompano case. As you put it in your second reading speech on the Bill, 'South Australia must now stand with the others, and with that legislative model that has been definitively ruled to be valid.'

On 21 March 2013, speaking on the second reading of the New South Wales bill, the Attorney-General said that the bill 'proposes to adopt those aspects of the Queensland model which were considered and upheld by the High Court'. At this point of the letter I noted the four elements that I had outlined earlier in the speech. The letter continued:

I understand that the South Australian bill does not adopt the last three elements of the NSW bill outlined above. These elements would make our laws less likely to offend the constitution in that they support procedural fairness and reduce the risk of practical injustice.

To facilitate consideration of our position on the bill, the opposition seeks justification from the government as to why these elements of the Queensland law which were adopted by New South Wales in its legislative response to Pompano are not reflected in the South Australian bill. Accordingly, your early response would be appreciated.

Even though the bill had been highlighted as a priority bill, I did not receive a response to that letter until Monday morning. On the Monday, with a letter dated the same day, the Attorney responded:

Thank you for your letter dated 15 July [2013] regarding the above bill. The letter asks why the bill does not include the following elements:

an amendment to section 11 of the act so that a court may only make a declaration in relation to an organisation if satisfied that the organisation represents an 'unacceptable' risk to public safety and order in South Australia; and

adoption of the criminal intelligence provisions included in the Queensland and New South Wales legislation, including the adoption of a 'criminal intelligence monitor'.

I pause there to make the point that whilst I was referring to three elements, the Attorney referred to only two elements because in his second element he incorporated both the criminal intelligence processes with the criminal intelligence monitor. The letter continued:

I am advised that the inclusion of these elements are not necessary to safeguard validity. The Solicitor-General was asked to advise me on the amendments that ought to be made to the act in light of the Pompano judgment. The bill before parliament implements the advice I received.

With regard to your questions about the criminal intelligence provisions I invite you to consider K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501.

I appreciate the cooperation the opposition has provided to ensure that this bill may be passed through parliament by 25 July 2013. The bill will be listed for debate as the government's first priority on Tuesday 23 July [2013]. I am proceeding on the basis that there will be brief debate (if any) on this bill and no amendment.

I will not labour the point that that promise was breached; the government decided that a higher priority for 23 July was, in fact, the fines enforcement legislation. Today is the second day of the first occasion in which it is being considered in this house. The other point I will make is that I did not respond to the comment about a brief debate. I made no undertakings to speak briefly, but I shall not test the patience of the council.

With that letter in hand the Liberal party room met last Monday afternoon. Given that the bill was tabled on the last sitting day, it was the first opportunity for the full Liberal Party party room to consider the bill. The party room was extremely concerned that the government was, yet again, putting South Australia at constitutional risk. The government was risking further legal challenges, further cost and further delay.

Given the short time frame, the Liberal Party had not received any submissions on the bill from stakeholders at the time of the party meeting last Monday afternoon; that is, two days ago. Late Monday evening we received the joint submission of the Law Society of South Australia and the Australian Lawyers Alliance to the bill (which I will refer to as the joint submission). This joint submission made four recommendations. The first recommendation is that:

the SOCCA should expressly provide for the applications for a declaration and revocation of a declaration to be filed in the Supreme Court (refer sub-ss9(4) and 14(4));

The joint submission recommends that the act should not be silent as to where the respective applications should be lodged. It recommends that in lieu of repealing the provisions they be amended to provide for the lodgement or filing of the applications in the Supreme Court. The second recommendation of the joint submission is that:

the rank of police officer required to verify an application for a declaration should remain as superintendent or above: s9(2)(g);

The bill amends SOCCA by requiring an affidavit in lieu of a statutory declaration in relation to clause 7(2) and by deleting the requirement that the police officer be of or above the rank of superintendent (refer clause 7(3)). The joint submission not only opposes the amendment but suggests another. It says:

The integrity of the verification process will be undermined if the police officer is not independent in the sense that he/she was not otherwise involved in the investigation and preparation of the application. We therefore recommend that s9(2)(g) be amended to require the high ranking police officer not to have had any involvement in the application process other than the verification of matters.

The third recommendation of the joint submission is that:

s18 should be repealed and not be amended as proposed in the Bill. The rules of evidence should apply to all proceedings under the SOCCA...

The recommendation says:

We confirm adherence to our previously stated position that, independently of the risk of invalidity, rules of evidence should apply to proceedings in which findings against an organisation and its members can have such major adverse significance. We refer in particular to the exposure to significant restrictions upon liberties, including the freedom of association and to engage in lawful vocations.

Quite apart from the SOCCA being unjust, we are of the view that the proposed s18 threatens the validity of the legislation. Whilst we agree with the deletion of s18, we oppose its proposed amendment.

The proposed s18 relevantly provides that the rules of evidence do not apply before the eligible judge. Clause 14 seeks to amend s18 by replacing the eligible judge concept with the Supreme Court but otherwise maintaining the status quo concerning the rules of evidence (with respect to declaration proceedings). The proposed s18 provides that in proceedings under Part 2 of the SOCCA, the Supreme Court:

(a) is not bound by the rules of evidence but may inform itself of any matter as it thinks fit; and

(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

Our concern is that, subject to an unlimited qualification, the rules of evidence should apply. To the extent that they do not, there is a grave risk that the declaration process will compromise the institutional integrity of the Supreme Court.

The joint submission goes on:

The New South Wales equivalent to the SOCCA is the Crimes (Criminal Organisations Control) Act 2012 ("the NSW Act 2012"). This Act, and the Queensland Act, contains a number of provisions dealing with criminal intelligence (Part 3B NSW Act 2012 and s32A / Part 6 of Queensland Act and s107). The SOCCA does not.

Both of these Acts provide for all proceedings to be before a Court and for the rules of evidence to apply. In that event, there is a clear requirement to address the question of admissibility of hearsay (criminal intelligence) evidence.

Whilst we oppose the approach the Government has taken to criminal intelligence generally, we recommend that the SOCCA repeal any provisions abrogating the requirement for the applicability of the rules of evidence and the inclusion of provisions detailing the fair and proper use of criminal intelligence, including its reception into evidence after an appropriate balancing exercise to determine whether its admission will outweigh any unfairness to a respondent (eg s72(2) Queensland Act / s28M(2) NSW Act 2012).

In so recommending we draw attention to the importance for the validity of legislation for it not to impair the Supreme Court's capacity to act fairly and impartially: Pampona at [167] per Hayne, Crennan, Kiefel and Bell JJ.

The joint submission strongly raises concerns about the validity of the South Australian legislation. The letter goes on to give detailed consideration of the way High Court cases have handled the issue of evidence. The parliament is indebted to the Society and the alliance for the work that they have done on these issues. In relation to Wainohu v New South Wales, the submission states:

It was not in dispute that the declaration proceedings before the eligible judge were administrative rather than judicial. The control order proceedings, however, were considered judicial.

In respect of the control order proceedings, the rules of evidence did apply. This distinction between declaration and control order proceedings is also made in the SOCCA. That the declaration proceedings were before the eligible judge (and considered administrative) may well have impacted on the question of validity on the ground that the rules of evidence do not apply. This is commented upon by Heyden J in dissent. As appears from Condon v Pompano, we expect the position to be different in proceedings before a Court. That is, that legislation providing that a Court (in judicial proceedings) is not bound by the rules of evidence may be invalid.

In this regard it is of some relevance that the rules of evidence do apply in Queensland and now in New South Wales.

Later in the submission it states:

In 2012, New South Wales passed the NSW Act 2012. It is now similar to the Queensland Act in that it uses the Court model for all proceedings, provides that the rules of evidence do apply to all proceedings, and separately provides for the fair admission of criminal intelligence into evidence.

We expect that the New South Wales government, in so legislating, was concerned to ensure validity (and fairness) of its legislation. Importantly, the fundamental principle that the rules of evidence should apply to a judicial proceeding was abrogated only to the extent that hearsay (criminal intelligence) could be received as evidence provided that it was relevant and the usual safeguards operated governing its admission.

In relation to Condon and Pompano, the joint submission goes on and states:

Unlike the SOCCA, and the NSW Act 2009, all proceedings under the Queensland Act are before the Supreme Court and are subject to the application of the rules of evidence.

The High Court in Pompano considered the declaration proceedings were judicial, not administrative: [22] per French CJ. In holding that the Queensland Act was valid, it was apparent that considerable weight was placed on the fact that the rules of evidence applied: (see esp [38] and [87] per French CJ; [144]—[148] and [167]—[168] per Hayne, Crennan, Kiefel and Bell JJ.

It is in everyone's interest to avoid the further waste of taxpayers' funds in Court challenges by taking the safe option of following a model which has been approved by the High Court.

In his second reading speech, the Attorney-General, himself, said [and the submission quotes] "The trend is clear. South Australia must now stand with the others, and with that [Queensland] legislative model that has been definitively ruled to be valid."

To stand with the others, the rules of evidence must apply. It is therefore appropriate for the amendment we recommend.

Let me stress that last statement was not the statement of a Liberal politician: it was a statement of The Law Society and the Australian Lawyers Alliance. Let me reaffirm those words:

It is in everybody's interests to avoid the further waste of taxpayers' funds in Court challenges by taking the safe option of following a model which has been approved by the High Court.

The fourth recommendation of the joint submission is that the proposed amendment to the Serious and Organised Crime (Unexplained Wealth) Act 2009 should not be made. In conclusion, the government, the opposition, The Law Society and the Australian Lawyer's Alliance all agree. We all agree that there is benefit in convergence, but the government's bill fails to deliver convergence; it only delivers on one of the four elements.

So, again, The Law Society, and the Australian Lawyer's Alliance raise concerns about validity. The validity of this legislation is called into question by leading legal stakeholders. We again face the situation where our law enforcement agencies and the community are being left with laws which are constitutionally vulnerable and liable to be targets for challenge. South Australians deserve to be safe and they deserve laws that are constitutionally and operationally robust. This government again, and consistently, fails to deliver either.

The Hon. K.L. VINCENT (21:34): I will speak briefly tonight to support the second reading and passage of this bill. I would like to thank Kim Eldridge from the Attorney-General's office for arranging a comprehensive briefing for crossbenchers that included the Solicitor-General and senior SA police. I appreciate that the Attorney-General would like this legislation passed rapidly, but I have to say that I am a little tired of having to suspend standing orders to pass emergency legislation for this government. We could surely approach lawmaking in this state in a more organised fashion.

While I have previously opposed much of the serious and organised crime legislation in this place, on this occasion I will be supporting the bill to improve the standing of previous legislation that this parliament has already passed. Finding ourselves having bikie lawyers in the High Court challenging the constitutionality of South Australian laws is not a good situation for this state to find itself in, and that is what we could see if the current laws remain unamended. So, at this point, I am happy to support the passage of this legislation.

The Hon. J.S.L. DAWKINS: Madam Acting President, I draw your attention to the state of the council.

A quorum having been formed:

The Hon. D.G.E. HOOD (21:37): I indicate that Family First has considered the reasons given by the government as to why the Serious and Organised Crime (Control) (Declared Organisations) Amendment Bill is necessary and Family First, by and large, accepts those reasons and therefore supports the bill. The need for this bill is largely a matter of technical law. It does not raise political issues necessarily, although, of course, we can always extrapolate into that area.

If there is a possibility of a legal loophole in existing legislation, as there well may be, Family First agrees that it should be closed. It is important that the government of the day is given the support in any endeavours to crack down on organised crime, as I am sure all members of this chamber would agree.

As I see it, this is not just one bill in isolation: it is part of a scheme to tackle organised crime in this state. Indeed, the legislation targeting organised crime is just one aspect of addressing the wider problems of crime in our society.

In this speech I intend to take a little time to explain my views on the need for such laws, as they are presented in this bill, and to explain why it is so important that we ensure that not only our criminal laws are adequate to combat crime but that all supporting laws and procedures are also sufficient. It is pointless having strong laws such as this bill if it is not part of a wider scheme that provides a foundation to deter those considering entering into criminal enterprise or behaviour.

Let us look at one example of crime, namely drug trafficking and sale. We all know that drugs are manufactured or grown and then distributed and sold either by organised crime or individuals who, in many instances, have some dealings with organised crime figures. Many, but not all, of those involved in these activities have commercial links with organised crime. At the very least, their activities give financial support to organised crime gangs that rely upon this source of finance.

We also know what a serious problem drugs are in our community today. I am not just talking about the death of addicts particularly, although of course I include them: I am talking about careers lost and lives ruined through mental harm caused to many individuals by drugs. I am also talking about families destroyed through the imprisonment of one member, who has taken up a life of crime to support an addiction.

Statistics show that about half of the prisoners who enter prison have used cannabis in the past 12 months. Many prisoners are addicted to opioids. Of all prisoners in South Australian prisons, 14 per cent are undergoing methadone or other treatment for opioid addiction. There is a very strong link between illicit drugs, organised crime and imprisonment. Illicit drugs are one of the main ways that the operations of criminal gangs are financed. Drugs are also one of the main reasons people end up in prison.

Whilst eliminating illicit drugs from our community seems like a distant dream and, indeed, is probably impossible, imagine what a difference this would make to crime rates and imprisonment rates. There will always be those who say that drug use and addiction is a medical problem and it should be dealt with by treatment and understanding, but drug use and, even more so, drug manufacturing and trafficking in particular are issues for the criminal law, in my view.

Any reduction in the availability of illicit drugs is a benefit to society. Any dealer put in prison and put out of business means that less harm will be caused to people in our community, and that brings me to the next very important point. When parliament has the collective will to legislate to prescribe heavy penalties for criminal offences such as drug trafficking, this is only half of the story. Indeed, this parliament has passed many very severe penalties for drug trafficking over the time that I have been a member of this place. It is still necessary for the courts to apply the policy of such legislation, however.

I have conducted a survey of South Australian court sentences over six months, from April to September 2012, and found that, of the 152 offenders convicted of serious drug offences such as trafficking, importing, manufacturing or cultivating drugs, 62 per cent were given wholly suspended sentences. These cases do not include any case of simple possession; they are at the more serious end. These are the dealers who hope to and presumably do make substantial profits from trading in drugs. The maximum penalty for these offences is from 10 years to life imprisonment, or fines of up to $500,000 for some of these offences or, in fact, both in some cases.

To give an example from the period of the survey, there was one case in September 2012 where the offender's house was used as a methylamphetamine laboratory. Scales were found, indicating that the drug was being sold. By this offence, the offender breached three bonds of good behaviour imposed for previous offences where suspended sentences were imposed. Such a breach is supposed to result in immediate imprisonment, but the breaches of those bonds were excused again and the offender was given a fourth suspended sentence.

Another offender in May 2012 was convicted of trafficking a large commercial quantity of cannabis—and I stress the word 'large'. The police found vacuum sealed bags of cannabis, scales, chemicals and hydroponic equipment. This was a serious ongoing commercial operation to sell cannabis for a profit. The cannabis in the possession of the offender at the time of the police search had a sale value of between $24,000 and $30,000. We can only speculate as to how long this enterprise had been operating and how long it took to turn over that amount of cannabis.

The maximum penalty prescribed by parliament—by this parliament—for this offence is life imprisonment and a fine of $500,000, or both, yet this offender was given, yes, you guessed it: a suspended sentence. In another case in May 2012, an offender was charged with trafficking methylamphetamine for which the maximum penalty is a fine of $50,000, or 10 years imprisonment, or both. He also had 21 other counts—21 other counts—dealt with, including possessing offensive weapons, namely a crossbow and an extendable baton.

The same maximum penalty also applied for one of the weapons offences. He had a long list of previous convictions, including drug convictions. He was a user of cannabis and methylamphetamine, yet he was given a suspended sentence for the trafficking and also for the major unlicensed and offensive weapons offences together with one fine of $1,000 for seven of the less serious weapons offences.

I have also compiled some notes on a few recent cases about violence. I would have thought that it is axiomatic that if an offender commits an armed hold-up and threatens anyone with a gun or a knife he would expect a lengthy prison term, but apparently this is not how it is seen by the courts in some cases. In one case in June 2013—last month—an offender walked into a petrol station at Victor Harbor and pointed a 10-inch knife at the sole female attendant. He demanded money, which she gave him. He then left and spent the money on poker machines. The attendant suffered post-traumatic stress disorder, with long-term effects, apparently.

The offender had previous convictions. He had been shown leniency by courts on those three previous occasions; in fact, just two days before the offence that I am outlining, he had been convicted of disorderly behaviour and released on a bond, which was obviously broken by this subsequent offence. The judge noted on the day of the offending that the offender had a fight with his girlfriend. Since then, he had offered to apologise to the victim but, not surprisingly, she did not want to have anything to do with him. They both lived in the same town. The maximum penalty for aggravated robbery, of course, is life imprisonment. I was stunned to read that the offender was given a suspended sentence with yet another bond.

I can understand why victims of violent crimes often feel like they are forgotten. Being threatened with a 10-inch knife should not be accepted as an occupational hazard of working in a petrol station. Being threatened with a knife did cause post-traumatic stress disorder in this case and in determining the penalty there seemed to be little regard to the effect of the crime on the victim. We do not know whether the victim was able to resume work as a petrol station attendant again; it is too early to determine that for sure.

In another case in June 2013, again, just a month or so ago, an offender pleaded guilty to trafficking the drug ecstasy, aggravated serious criminal trespass (which is commonly known as home invasion, of course) and assault causing harm. The maximum penalty for home invasion is life imprisonment. Text messages assessed by police confirmed that the offender had made arrangements for the sale of ecstasy tablets to buyers. The profits from the sale of ecstasy had been used to fund the drug habit of the offender. The home invasion occurred when he was on bail for a drug trafficking offence.

At night-time, when the occupants were asleep, the offender and a companion broke into a house in order to steal cannabis which they believed was kept there. The occupants of the home were awoken by the activity. The offender had a knife which was visible to the occupants. He punched two occupants of the house. Also in the house were two young sons of the owner of the home. They were very distressed by the events, as you can imagine. The offender had a previous conviction for assault causing harm for which he had received a 12 month suspended sentence—we are seeing a trend. After noting that the offender had produced letters indicating that he had seen the error of his ways and was making efforts to turn his life around, the judge imposed yet another suspended sentence.

Someone once commented to me that if an offender is not able to provide favourable letters about himself from others, then the reason can only be that he does not have any friends. The point I make from these examples is that in all of these cases parliament has prescribed a heavy maximum penalty because the community quite rightly regards the types of offending as serious and should not be tolerated, but these penalties are not being applied in individual cases by the courts.

I agree that there is a place for suspended sentences, but where crimes of violence or drug trafficking for profit are concerned, suspended sentences should be very few and far between. Currently, they simply are not.

In respect of the same six month period from April 2012, I have also surveyed how the courts deal with those who have been given prison sentences suspended on condition that they enter a bond to be of good behaviour for perhaps two or three years. What happens when they breach that bond, usually by committing another offence? When a suspended sentence is first imposed, offenders are normally given a very stern warning by the judge that if they breach the bond they will have to serve the sentence that has been suspended. Indeed, that is what a bond is and that is what it says.

What I found by this survey, unfortunately, did not surprise me, but did disappoint me. Of 81 cases in that six-month period—and that is all of them—where the question for the court was whether to enforce a sentence that had been suspended due to a breach of the bond, in two-thirds of those cases the prison sentence was not enforced despite the breach.

One has to ask: what is the point in having suspended sentences and bonds as a final warning if, in a majority of cases, yet another final warning is given again? Frankly, there is no point and it completely misunderstands the use of the term final warning.

In a recent newspaper article by a retired detective, the author explained his frustrations as a detective who often went to great lengths to identify and apprehend serious criminals. He said that, inevitably, the sentencing judge would speak of the horrible nature of the crime and the need for the community to be protected before devoting much of the sentencing summation to the need to rehabilitate the prisoner and give the prisoner another chance.

He said that in almost all cases he sat through, no person, be the judge, defence lawyer or court-appointed psychologist or psychiatrist, spoke much of the victim. It was as though the victim no longer existed in the eyes of the court or even society in that matter, in his words. No-one ever asked him for his opinion—this is the police officer—about the prospects of rehabilitation even though he had sat opposite the offender for many hours when the offender had not been schooled up on what to say by other prisoners or clever lawyers. He felt that he had a glimpse into the mind of the offender that few experts could hope to get. Just for members' interest, that was actually published in The Australian on 12 July by a gentleman of the name of Tim Priest.

I have read a good number of sentencing remarks, and I must say that I can well understand why the retired detective feels that way. The police go to great lengths and sometimes risk their safety to obtain evidence to convict criminals. It must be very discouraging when, after a great deal of effort in having identified an offender who has committed a serious crime, they see him or her released with a suspended sentence that will probably never be enforced, even if they offend again.

One reason why there are so many suspended sentences for serious crimes is that the courts are not made accountable for the sentences they impose and when I say accountable, I mean statistically. There can only be a limited number of appeals, of course. The public only hear about a handful of cases. In the period up to 2007, there were very good statistics published as to sentences imposed by courts for particular types of offences such as drug trafficking or home invasion but no similar statistics have been made available to the public since 2007. Perhaps there has been a policy decision somewhere that meaningful sentencing statistics should not be made public; perhaps staff are no longer allocated to the task of publication. I do not know the precise reason.

Whilst I have made the effort to compile my own statistics for some limited types of offences, this is a very time-consuming exercise indeed. It is only if the public has access to statistics to see what penalties are being imposed, that the courts can be monitored. I intend to remedy this problem by proposing a legislative requirement that reasonable statistics for sentences be published—but today is not the occasion to seek this change and nor is this bill the vehicle for that outcome.

The decision of a court as to whether to impose a hard or soft penalty is a difficult one, and I acknowledge that. There are many considerations to balance and certainly it is not an easy task. We know that if an offender is sent to prison there is an increased risk that he or she will come out more hardened than when they entered. However, on the other hand, if it becomes known—as appears to be the case in some of the cases I have outlined and many others I could have outlined—that for a first offence of drug trafficking, for example, a suspended sentence will often be given to anyone who shows remorse, then a public perception comes about that this offence is not particularly serious and should be tolerated.

Those tempted to commit the offence do not see it as a serious transgression if it is not handled as a serious transgression, despite heavy penalties prescribed by the parliament. Those intending to profit from such an offence are, in fact, encouraged to do it. It is obvious to me that criminals talk amongst themselves and are well aware of the sorts of penalties that are imposed by the courts.

We should not live in an unrealistic world where we accept that all criminals can turn over a new leaf with 'psychological counselling'. We know from the murder of Jill Meagher by a serial rapist out on parole that this is not so, as we can see from many other examples. We need to make it widely known that anyone who commits aggravated robbery or drug trafficking, or other equally serious offences, will go to prison unless there are very exceptional circumstances.

In my view the biggest challenge that we in parliament have in the field of criminal law is to enact laws that allow the courts to set penalties in individual cases but also enable parliament to prescribe the general level of punishment. With drug offences particularly the penalties prescribed by parliament are often referred to by a sentencing judge as a kind of threat to the offender, but then the severity of the sentence actually imposed seems to have no relationship to the prescribed penalty.

I am conscious that the topics I have covered are wider than the issues raised directly by this bill, but I see this bill as part of a number of bills that are required to enable parliament to ensure that the courts are able to play their part in the general deterrence of crime, particularly by organised crime gangs. My view is that the criminal law needs to deal with the ways that criminals operate, especially criminals in gangs. We need to pass better laws on confiscating the assets of serious criminals.

My view is that it is just basic common sense that if a person has persistently engaged in serious and profitable criminal enterprises, such as drug trafficking, and is found to be wealthy, there is every likelihood that the wealth must have come from those criminal enterprises and, therefore, should be confiscated with certain safeguards. It should not matter that there is no proof that the wealth came from particular identifiable crimes.

I am very concerned at the results of my surveys that indicate there are too many suspended sentences and those that are imposed are not enforced when they should be. This was not a random survey; these were quite exhaustive analyses of the data available as published on the courts' websites. The comments that I have made about the need for a more rigorous application of the criminal law particularly apply to bills that restrict the availability of suspended sentences.

I have introduced bills to prevent suspended sentences being imposed for subsequent serious offences and will support the government's Criminal Law (Sentencing) (Suspended Sentences) Amendment Bill which, in a different way, restricts the availability of suspended sentences. The bill now before this house currently has Family First support and we see it as a step in right direction.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (21:53): I rise to close the debate. I would like to thank honourable members who have contributed to this discussion this evening and particularly for their indications of support. I am particularly grateful to the Hon. Mr Wade for his detailed and learned exposition of the merits of the government's legislation and his happy support for the bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: Perhaps I should correct the record straightaway. I made a comment in my speech that, in spite of the government's indication that this bill would be the first order of priority, here we are on the second day and it is here. Of course, I forgot about the other place. It was the first order of priority in the other place, but they so often are forgotten.

Could I ask some questions in relation to the letter that the Attorney sent me on Monday, which I thank him for. In responding to the opposition's query as to why the three elements of the four elements in the New South Wales bill were not reflected in the South Australian bill, the key sentence, in my view, is his statement that, 'I am advised that the inclusion of these elements are not necessary to safeguard validity.'

I would ask: does the Attorney's statement 'are not necessary to safeguard validity' mean that the Solicitor-General's advice is the change in the legislation is sufficient, perhaps barely sufficient, to preserve the law? I suppose the point I am making there is that, if the inclusion of the other three elements would actually strengthen the law and take us beyond bare sufficiency, why would we not take that opportunity?

The Hon. I.K. HUNTER: To answer that question I will read the two sentences that follow the one that was referenced by Mr Wade, and that is:

The Solicitor-General has asked me to advise him on the amendments that ought to be to the act in light of the Pompano judgment. The bill before parliament implements the advice I have received.

The Hon. S.G. WADE: I hope the minister was not suggesting I was selectively reading. I was certainly not excluding that for any purpose; in fact, I think my question still stands in spite of it. Was the Solicitor-General suggesting that the 'ought' is that 'ought' is sufficient for bare sufficiency to preserve the law, or is it 'ought' in terms of this is the most secure piece of legislation we can get?

The point is that the opposition is persistently concerned that this government is willing to take constitutional risks—unnecessary constitutional risks—rather than ensure that legislation is well within the constitutional bounds. The New South Wales government, the New South Wales parliament, supported by the Labor Party explicitly, said that they thought it was worth putting in the other three elements to strengthen their legislation. Why do we not agree?

The Hon. I.K. HUNTER: Suffice to say, I hope, that we could only, as a government, rely on the expert advice of the Solicitor-General for our proceedings.

The Hon. S.G. WADE: I note that the government is refusing to answer that question. I move now to the joint submission of the Law Society and the Australian Lawyers Alliance. They made four recommendations; I would specifically like to ask the government its view on three of them. The submission recommended that the SOCCA should expressly provide for the applications for declaration and the revocation to be filed in the Supreme Court. The joint submission recommends the action not be silent as to where the respective application should be lodged, and in that context it suggests that it should explicitly refer to applications being in the Supreme Court.

The Hon. I.K. HUNTER: My advice is that I can only refer the Hon. Mr Wade to clause 7(1), which is phrased 'to the court'.

The Hon. S.G. WADE: The Law Society and the Lawyers Alliance's second recommendation is that the rank of police officer required to verify an application for declaration should remain as superintendant or above. Later in the advice they suggest that:

The integrity of the verification process will be undermined if the police officer is not independent in the sense that he or she was not otherwise involved in the investigation and preparation of the application.

I seek the government's view on that recommendation.

The Hon. I.K. HUNTER: My advice is that the independence of the process is guaranteed by the new requirement of the application of judicial discretion in the Supreme Court.

The Hon. S.G. WADE: In the past, the parliament has received briefings from the serious and organised crime legal unit, which I understand was a unit within the police force distinctly different from normal outsourced units from the Crown Solicitor's Office. Is that unit continuing to operate within the police?

The Hon. I.K. HUNTER: My answer cannot be definitive but on the advice at hand to me at the moment my understanding is, no, but the process has changed to the point where the Solicitor-General is taking a more active role.

The Hon. S.G. WADE: If I can be so rude as to pick up a point the Hon. Dennis Hood raised. Is the government aware of changes in the arrangements for the provision of criminal sentencing statistics at or about 2007 such that those statistics are not as readily available as they previously were?

The Hon. I.K. HUNTER: We do not think that could be right, but just to be on the safe side we will have to take that on notice and bring back a response.

Clause passed.

Remaining clauses (2 to 22), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (22:04): I move:

That this bill be now read a third time.

Bill read a third time and passed.