Criminal Law Consolidation (Criminal Organisations) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 2 August 2017.)

The Hon. M.C. PARNELL (17:21): The right of a defendant to put the prosecution to its proof in relation to each and every element of a criminal charge is a fundamental provision of our legal system. As we hear on an almost daily basis in this chamber, people are deemed to be innocent until they have been found to be guilty. The burden of proof rests with the prosecution. The prosecution must prove beyond reasonable doubt each and every element of the offence. All I have done is state the obvious: they are principles that we all know.

This bill, however, turns that principle on its head. Effectively, what the bill says is that there are certain defences which, of their nature, are putting the prosecution to its proof. There are certain defences that cannot be raised. Removing the ability of a defendant to put the prosecution to its proof is bad legal process in my view. For example, if you have been charged with being a member of an outlaw organisation and having attended a hotel whilst being a member of that outlaw or criminal organisation, then at present you are entitled to put the prosecution to proof that the organisation that you are alleged to belong to is, in fact, a criminal organisation that is engaged in criminal activity.

The government says, 'Well, no, you shouldn't be able to claim that because the proof of whether an organisation is a criminal organisation is to be found in the statute books, in the Government Gazette, the government says you're a criminal organisation, therefore you are, and no correspondence will be entered into.' That is the government's position. The government says, 'We've declared you to be a criminal organisation and no further discussion can be had in court and certainly you cannot raise as a defence the fact that you claim your organisation is not a criminal organisation.' What the government does not want is for the courts to be second-guessing the wisdom of the executive arm of government.

The government goes further and says, 'It's not just that they do not want the courts second-guessing the executive, they do not want the court second-guessing the parliament.' The reason they say that is because, if members recall, the original lists of declared organisations were contained in a schedule to a bill that we debated here in parliament. However, if members cast their minds back, they might recall that that very extensive list lasted less than 24 hours before it was found to be in some cases completely wrong and in most cases it was ill-conceived to put some of these groups on the list.

Part of the debate that I remember is, having received the bill before parliament, it took me about 15 minutes of Googling to find out that one of these declared organisations was a group of middle-aged men up at Mallala who liked to race motorcycles around a track—and the government had just got that very wrong.

The government is claiming that they do not want the courts second-guessing the wisdom of parliament, because the original lists of outlaw organisations were included in a bill, but it hardly fills us with confidence to find that the bill before us denies people the right to second-guess parliament. The view of the Greens is that given that the criminal nature of the organisations is at the heart of the offence that people are charged with, such as going into a hotel or wearing certain insignia, if a defendant wants to claim that the government has got that terribly wrong and in fact their organisation is not criminal, they should be able to run that in court. They should be able to test that proposition.

I asked the government whether it was a live issue; in other words, were there bikies, for example, who had escaped the charges because they had successfully run such a defence? The answer of course was that no-one had. The best the government could do was provide two current cases where they feared the defendant might run these defences. One case involved the Hells Angels and another case involved the Comancheros.

I have to say I would be very surprised if a defence was raised saying, 'These are not criminal organisations' and the judge accepted that. I say I would be surprised, but the information I have to go on is really just one side of it. I have heard from the police; they are adamant that these are criminal organisations. I have read in the newspapers that there are some pretty bad people associated with these organisations. In all likelihood they are probably right, but that is not to say that a defendant should not be able to go to the court and say, 'No, no, the parliament and the executive got this terribly wrong. These aren't criminal organisations', and they can run that.

I reckon they will get one go at it. They very likely will fail, and that means that in subsequent cases, when further Hells Angels or Comancheros come before the courts and claim that it has all been a terrible mistake, that these are not criminal organisations, I would be very surprised if they lasted very long in court. I think there is one shot in the magazine and it will probably go off with a fizz.

I hope, however, that some of these people do raise these defences, and I hope that the courts seriously consider them, because that will give us some comfort in this parliament that the government has in fact got it right. I would be quite comforted to hear that a court has looked at the evidence of these organisations—what they do, what their members get up to—and has thrown one of these defences out, because that will give us, I think, comfort that the executive may have got this right. But to put in legislation a provision which says, 'You are not even allowed to run the argument. You are not allowed to raise the defence,' I think is getting this terribly wrong.

In conclusion, I would say that I do not expect these defences, in relation to the two cases that have been put to me—the Comancheros and Hells Angels—are likely to get very far, but that is not to say that the defendant should not be entitled to raise them. So, consistent with the position I have taken in relation to these bills—and we have had many of them over the past 10 years, and I have opposed the excesses of executive government—I would oppose it again now.

I think these defences should remain available to defendants. I will be very surprised if they succeed, but that is not to say that they should not be entitled to their day in court. That is what the justice system is about. It might be expensive, and it might be time consuming, but it is about getting justice and allowing people to put the prosecution to its proof.

The Hon. K.L. VINCENT (17:29): I do not intend to speak for very long, mostly because the Dignity Party has taken views exactly the same as we will be taking on this one on a number of very similar matters in the past. We certainly are concerned about the government's insistence on its tough on crime rhetoric at the expense of civil liberties, which the legal system should be there to protect wherever possible and not to take away unnecessarily. For those reasons, we do not support the bill.

Debate adjourned on motion of Hon. T.T. Ngo.