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House of Assembly - Fifty-First Parliament, Second Session (51-2)
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SERIOUS AND ORGANISED CRIME (CONTROL) BILL

Committee Stage

In committee.

(Continued from 13 February 2008. Page 2079.)

Clause 4.

Mrs REDMOND: I ask the Attorney why it is that the legislation is worded without reference to the so-called outlaw motorcycle gangs. We know from statements by the Attorney-General in this house, and other places, and we know from the Police Commissioner and the Assistant Police Commissioner that the police in this state clearly know the bikie gangs to whom we are seeking to address this particular legislation. I understand why you would not want to make the legislation so tight that you do not have the opportunity to get at other organisations—if there was a Mafia-type organisation, or a triad, or whatever it might be—but would it not be sensible to word the objects so that you do at least make clear that particular organisations are the target, as well as others potentially?

The Hon. M.J. ATKINSON: We have no wish to cast any legal disabilities on people because they like motorcycles, like riding them, and like riding in formation. Contrary to what bikie spokesman and bikie academic Dr Arthur Veno says in this morning's Advertiser, we are not interested in catching the Longriders motorcycle club, which consists of Christians who say their mission is to evangelise on the doorstep of the gates of hell. I have met the Longriders in my Welland electorate office, and I have talked through this with them. I am sorry if they have been subject to what they think is harsh police attention. I know one of their number well, a Church of Christ clergyman who used to live only a block from me, and I believe there is no criminal intent whatever in their gang. It is similar with the Ulysses motorcycle club and the Vietnam Veterans motorcycle club. What we are trying to do by this proposed law is give effect to the expression 'outlaw motorcycle gang'.

We know who they are. The opposition knows who they are. If we framed the legislation in a way that applied only to outlaw motorcycle gangs, then the opposition and members of the public would criticise us because they would say the bill is a privilegium or bill of attainder which does not operate generally. If we broadened it , as we have a little, to apply to crime gangs, they would say, 'Why don't you focus it on motorcycle gangs? That's what you've been talking about.' We are damned if we do and damned if we don't.

Mrs REDMOND: I fully appreciate what the Attorney is saying, and I think we are at one on the idea that we are not trying to target in any way the Ulysses motorcycle gang or any of those who are not formed for criminal purposes. However, we know, and they know, that the Hell's Angels, the Finks, the Gipsy Jokers, and so on, as the Attorney says, are the people we are trying to target. Why would it not then be reasonable to explicitly refer to those groups and then to then add on 'and any other organisation' that fits within a certain description? I do not understand why we are not specifically naming the groups we know we want to target—the Finks, the Gypsy Jokers, the Hell's Angels and so on—more explicitly under the objects clause.

The Hon. M.J. ATKINSON: The proposed law authorises the Police Commissioner to apply to me as Attorney-General to have these criminal organisations declared. We will do it case by case. If we were to name the gangs in the bill, it would have the nature of a bill of attainder and, in my school of jurisprudence, that would raise constitutional issues, so I am not in favour of going down that track. Obviously the powers of a state are different from the powers of the commonwealth. It is arguable that a state does have the constitutional power to legislate a bill of attainder.

I refer the member for Heysen to the Communist Party dissolution case before the High Court, where a majority of the High Court ruled that the commonwealth did not have authority to do that. I am not interested in being bogged down in a jurisprudential argument in the High Court. I would rather do it the way we are doing it and remove even the whiff of constitutional risk.

Mrs REDMOND: I would have thought that there was some case law that said that you cannot achieve indirectly what you cannot achieve constitutionally directly either, so I would expect the gangs will still try to take the same constitutional point, but that aside I move on to subsection (2) of the objects relating to the statement that it is not the intention of the parliament that the powers in this act be used in a way that would diminish freedom of persons in this state to participate in advocacy, protest, dissent or industrial action.

Whilst I understand where I think the Attorney is trying to go with that, can he explain for the record who makes the decision in practice as to what groups may or may not be able to participate in advocacy, protest, dissent or industrial action, and what assurance can he give those who have expressed concern on behalf of unions or other organisations that this act will not be used to prevent their freedom of association, advocacy, protest, dissent and industrial action?

The Hon. M.J. ATKINSON: The person who applies this subclause is me, as Attorney-General, and I give this promise to the house that I will not be declaring organisations whose principal purpose is to participate in advocacy, protest, dissent or industrial action.

Mr HANNA: My question is about organisations where a minority of individuals within the group might be involved in serious offences. At what point do you say that the organisation is involved in serious criminal offences when, in fact, it may be a handful of individuals who are giving the rest of the group a bad name?

The Hon. M.J. ATKINSON: In answer both to that question and the previous one, it is worth bearing in mind that this legislation (should it come into effect) will be reviewed annually by a retired judge, so that is but one protection against the misuse of this proposed law. If you turn to clause 10, it is clear from that that organisations that are declared must be organisations where people associate for the purposes of crime. That is a very high bar to get over. It is not just a matter of a few bad apples in an otherwise worthy organisation. If that were so, imagine what would happen to some of our political parties. The test is a rigorous one. The association must be for the purposes of crime.

The Hon. G.M. GUNN: The objectives we are dealing with are clearly to deal with criminal activity, organised crime and various courses of action which most members of the public would be absolutely opposed to. I do not have any problem with that. My real concern is—and it follows on from what the member for Mitchell said—if ordinary law-abiding citizens get caught up in this, they are at grave disadvantage, and I raised this point with the Attorney when we last discussed this matter. He referred me to a number of clauses of this bill which I do not think answer the matter which I put forward, and he was a bit condescending towards me. My concern in these matters is purely this: I have seen in this place well-meaning ministers, some misguided, bring forward legislation—

The Hon. M.J. Atkinson interjecting:

The Hon. G.M. GUNN: I'm a charitable character and normally a man of few words.

The Hon. M.J. Atkinson: If I'm here long enough, if I make 20 years, you'll be even kinder.

The Hon. G.M. GUNN: There is one thing about the Attorney-General: I can come back here again if I want to and there is nothing he, his henchmen or the shop assistants union can do about it.

The Hon. M.J. Atkinson: We haven't finished yet

The Hon. G.M. GUNN: I haven't finished yet with the Labor Party up in my area either. Make no mistake about that.

The Hon. M.J. Atkinson: Where's Brokenshire these days?

The Hon. G.M. GUNN: He is going to be your friend. Anyway, getting back to this matter. My concern is that ordinary people are going to get caught up in this. They are not going to be aware of their rights. We have seen what happens with on-the-spot fines. On-the-spot fines were brought in for all sorts of good reasons, and now they have become nothing more than a revenue measure for the Treasury.

The Hon. M.J. Atkinson: They started about the time you were born.

The Hon. G.M. GUNN: I do not care when they started or who the architect of them was, but I am saying to the Attorney-General that too many of them are handed out and ordinary law-abiding citizens are getting unreasonably penalised, and if that is your attitude, I will start naming some people. Make no mistake about that. We will really turn the ratchet up in this place, because they are being misused and handed out in some cases like confetti.

The Hon. M.J. Atkinson: And it continued during eight years of Liberal government and you achieved nothing.

Mr Pengilly interjecting:

The Hon. G.M. GUNN: Yes, but let me say this to the Attorney-General. He does not have an answer to the criticism. He resorts to making half-silly threats about courses of action which took place in the past. What I am saying to him is that this parliament now has before it a piece of legislation which is wide-ranging in its effect and it will affect people. I have no problem with dealing with criminals and all the sorts of activities they are engaged in. Can I say to you, Madam Chair, I know there are magistrates who are members of the Ulysses motorcycle club. We do not want some of those people caught up in activities. I gave the Attorney-General, when we were debating another piece of legislation, a clear example of where the hoon driving legislation had been misused. Absolutely misused.

The Hon. M.J. Atkinson: You were absolutely wrong about that.

The Hon. G.M. GUNN: I was not wrong.

The Hon. M.J. Atkinson: You were completely wrong.

The Hon. G.M. GUNN: I was not wrong and let me say to you now, I have correspondence from the people who were affected—

The Hon. M.J. Atkinson: Stirling North.

The CHAIR: Order!

The Hon. G.M. GUNN: —disputing every bit of the answer. I will bring it to this house and I will read it into Hansard, if that is what the Attorney wants.

The Hon. M.J. Atkinson: Do it again.

The Hon. G.M. GUNN: I will. I will read the response in if that is what you want, and it is going to cast a few aspersions on some people which I would have sooner not done, but you have started it, I will now finish it.

The Hon. M.J. Atkinson: You were condoning hoon driving.

The Hon. G.M. GUNN: I was not—and there are plenty of witnesses.

The CHAIR: Order!

The Hon. M.J. Atkinson: You weren't there.

The CHAIR: Order! Interjections across the chamber will cease. We will have an orderly discussion of this difficult topic.

The Hon. G.M. GUNN: Thank you, Madam Chair. The Attorney-General has nearly put me off my train of thought and upset me completely, and I would like to start again, if I may. My concern is that the objectives of this legislation do not adequately explain or provide any reasonable redress for a person who is caught up in it. That is my concern. The Attorney-General will say that they can go to the Supreme Court. I say to the Attorney, 'Go out onto North Terrace and ask an ordinary citizen how you go to the Supreme Court.'

Mr Hanna: What is the filing fee: $400 or $500?

The Hon. G.M. GUNN: So, to defend your rights you have to pay $400 or $500. That is really a democratic process, is it not? To defend yourself against an improper action you have to pay hundreds of dollars. Then if you had to engage one of Her Majesty's QCs, I hate to think what the cost would be. The cost of getting justice is getting more expensive. I ask the Attorney just to explain to us—and I am indebted to my good friend the member for Mitchell in relation to the cost—what other steps a person has to take to ensure that the worthy objectives of this bill are not misused and to defend themselves against unwise action by those enforcing this legislation.

The Hon. M.J. ATKINSON: Well, I wish the Liberal opposition would show more faith in our judiciary. To address concerns about the impact of the legislation on civil liberties and to ensure that the new powers are used only to target offending by criminal organisations, these measures have been incorporated in the bill. I will enumerate them for the member for Stuart, who I know is a civil libertarian.

The objects of the legislation are clearly set out in the objects clause. These are to disrupt and restrict the activities of organisations engaged in serious crime and the members and associates of such organisations—and the Liberal spokesman concedes that we know who they are—and to protect members of the public from violence associated with these criminal organisations (and I do not think we have to look very hard to find that violence). When the house last sat a man was riddled with bullets at Paskeville, and we reasonably suspect the Gypsy Jokers of having done the job. That is just one example. They have killed each other on the streets of Adelaide, and they have bombed each other's headquarters and set another one alight.

The legislation makes it clear that it is not the intention of parliament that the new powers be used in a manner that would diminish the freedom of people in this state to participate in advocacy, protest, dissent or industrial action. After the 11 years of the Howard government, I will place Labor's record on protecting advocacy, protest, dissent or industrial action against the Liberal Party's any day. Further, the Attorney-General may only issue a declaration—

Mr Pisoni interjecting:

The Hon. M.J. ATKINSON: Will the man who has been sacked as the multicultural spokesperson for the opposition just allow me to be heard in silence.

Mr Pisoni interjecting:

The CHAIR: Order, the member for Unley! The chair has not recognised you, nor are you on your feet, so please maintain your silence.

The Hon. M.J. ATKINSON: The Attorney-General may issue a declaration against an organisation only when satisfied that its members associate for the purpose of organising, planning, supporting, facilitating or engaging in serious criminal activity and where the organisation represents a risk to public safety and order. Further, a court may issue control orders only against members of declared organisations or people reasonably suspected of engaging in serious criminal activity who regularly associate with members of declared organisations or others who engage in serious criminal activity.

Mr Pisoni interjecting:

The CHAIR: Order, the member for Unley!

The Hon. M.J. ATKINSON: The member for Unley says that the CFMEU is such a criminal organisation; he claims that. I will leave that to members of the public to determine whether that is a fair comment. What we know, though, is that, when he was multicultural spokesman, he was a square peg in a round hole, and he had to be taken out—

Mr Pisoni interjecting:

The CHAIR: Order, the member for Unley!

The Hon. M.J. ATKINSON: Further, public safety orders may be issued only where a senior police officer believes the presence of the person or members of the group pose a serious risk to public safety or security. When determining this risk, the senior officer will be required to have regard to the nature of the group and any history of behaviour that previously gave rise to a serious risk to public safety or property. A public safety order may not be issued to prevent non-violent protest, advocacy or dissent, and may not be issued against members of legitimate protest or advocacy groups to prevent them from attending protests, rallies or demonstrations. A court order is required to extend a public safety order beyond seven days.

Sitting opposite me is the Liberal Party, whose leader said during the last sitting week that this bill did not go far enough; that bikies were running rampant on the streets of Adelaide; that they controlled every roadway in South Australia; that they peppered schoolchildren with bullets; and that we are at risk from outlaw motorcycle gangs if we send our children to school. I love the exquisite contrast between what the member for Heysen says about this bill and what the Leader of the Opposition says about it, and television and radio journalists picked it up.

Mr Hanna interjecting:

The Hon. M.J. ATKINSON: Well, they are, as a matter of fact; we are. Of course, The Advertiser—which made the current Leader of the Opposition—noticed that he had a bad week and so decided not to report parliament. Further, the new offence of criminal association—

Mr Pengilly interjecting:

The Hon. M.J. ATKINSON: No, our parliament page disappeared for the first time since any of us can remember. When was the last time there was no parliament page? Further, the new offence of criminal association applies only where a person associates on six or more occasions in 12 months with a member of a declared organisation, or another who is subject to a control order, or to associations between certain types of convicted criminals. Some associations—for example, those occurring at work—are excluded, and a defence of reasonable excuse applies, except where the defendant is a member of a declared organisation, is subject to a control order or has a criminal conviction of a prescribed kind.

The members for Mitchell and Heysen know that it is a canon of statutory interpretation that a penal statute is interpreted strictly; it is interpreted against the Crown and in favour of the citizen. So, not only are there those safeguards: there is a whole canon and history of statutory interpretation in favour of the liberty of the subject—that is our British and common law heritage.

Further, the bill requires the Attorney-General to appoint a retired Supreme or District Court judge to conduct an annual review on whether the powers under the legislation have been used appropriately, having regard to the object of the act. The Attorney-General must table a copy of the review report in both houses of parliament. Further, the bill requires the Attorney-General to review the operation and effectiveness of the legislation after five years, to prepare a report based on this review and to table a copy of the report in both houses of parliament. And, who knows, wonders may never cease: that might be the member for Heysen. Finally, there is a 10-year sunset clause. Let me make this prediction: if the member for Heysen is in charge of this bill in 10 years' time, I will lay any amount of money that she does not sunset it.

Members interjecting:

The Hon. M.J. ATKINSON: No, but I did get you to say that in the house.

An honourable member interjecting:

The Hon. M.J. ATKINSON: Touché!

Members interjecting:

The Hon. M.J. ATKINSON: Law-abiding members of the public have nothing to fear from these laws. The new powers are appropriately limited, and there are checks and balances in place to ensure that the government, the police and the courts use their authority for the intended purpose of disrupting the illegal activities of outlaw motorcycle gangs and other criminal groups in South Australia.

Mr HANNA: Does subclause (4) of clause 10 not undercut the Attorney's answer to my previous question? In a situation where a handful of members of an organisation might be miscreants, does not that subclause make it clear that it could just be a handful of members who associate for criminal purposes among a much greater majority of innocent members of an organisation who associate for other purposes?

The CHAIR: Will the member for Mitchell explain why a question about clause 10 should be dealt with now, when we are looking at clause 4?

Mr HANNA: Because I am directly scrutinising the Attorney's answer to my previous question on clause 4.

The CHAIR: Okay. The Attorney.

The Hon. M.J. ATKINSON: Clause 10, to which the member for Mitchell refers, ought to be looked at in its entirety. Subclause (4) ought to be looked at in the context of the rest of the clause and, when he does that, he will have his answer. There is balance.

Clause passed.

Clause 5.

Mrs REDMOND: To some extent this may seem like a bit of a Dorothy Dixer but, in any event, I want the Attorney to put on the record—for my satisfaction and for the satisfaction of those who have expressed concern—the effect of this clause which deals with the burden of proof. As I understand it, that clause will provide that, if someone is charged with an offence under section 22 (which is the section that provides that it is an offence to breach a control order); section 32 (which is the section that provides that it is an offence to breach a public safety order); or the offences set out in section 35 (which are offences relating to criminal associations by various people); or if it is an offence under either of the amendments to the Criminal Law Consolidation Act (those being the offences regarding threats or reprisals relating to persons involved in criminal investigations or judicial proceedings, or threats or reprisals against public officers), in those cases I have listed, they will still be dealt with on a normal basis as a normal criminal offence, with a criminal burden of proof beyond reasonable doubt. Anything else, such as an appeal against a control order being made, will be dealt with on the civil balance of probabilities burden of proof. I just want to clarify that that is the correct interpretation of clause 5.

Clause passed.

Clause 6.

Mrs REDMOND: I am curious if the Attorney could explain what is the full extent of the extraterritorial legislative capacity of the parliament.

The Hon. M.J. ATKINSON: The member for Heysen has asked and now I shall tell her. The relevant provision is part 1A of the Criminal Law Consolidation Act 1935. I think the relevant section is 5G, and it provides:

(1) An offence against a law of this state is committed if—

(a) all elements necessary to constitute the offence (disregarding territorial considerations) exist; and

(b) the necessary territorial nexus exists.

(2) The necessary territorial nexus exists if—

(a) a relevant act occurred wholly or partly in this state; or

(b) it is not possible to establish whether any of the relevant acts giving rise to the alleged offence occurred within or outside this state but the alleged offence caused harm or a threat of harm in this state; or

(c) although no relevant act occurred in this state—

(i) the alleged offence caused harm or a threat of harm in this state and the relevant acts that gave rise to the alleged offence also gave rise to an offence against the law of a jurisdiction in which the relevant acts, or at least one of them, occurred; or

(ii) the alleged offence caused harm or a threat of harm in this state and the harm, or the threat, is sufficiently serious to justify the imposition of a criminal penalty under the law of this state; or

(iii) the relevant acts that gave rise to the alleged offence also gave rise to an offence against the law of a jurisdiction in which the relevant acts, or at least one of them, occurred and the alleged offender was in this state when the relevant acts, or at least one of them, occurred...

Clause passed.

Clause 7.

Mrs REDMOND: Again, my question is, in a way, a Dorothy Dixer, just to clarify and put on the record my understanding of the intention of the delegation provision, which seems to be worded in the negative but which seems to say that the Commissioner can delegate every function that the Commissioner has under this act to someone who holds at least the rank of inspector, except the function of classifying information as criminal intelligence, which he can only delegate to a deputy commissioner or assistant commissioner. I want to confirm that that reading is correct.

The Hon. M.J. ATKINSON: The member for Heysen is correct.

Clause passed.

Clause 8.

Mrs REDMOND: I have a couple of questions on this clause. Subclause (2)(b) provides:

(b) identify the organisation in respect of which the declaration is sought...

I assume that the intention is that the organisation will indeed at that point be named. So, whether it is the Hell's Angels, the Finks, the Gypsy Jokers, or whoever, the name of the organisation will be on the application made by the Commissioner.

The Hon. M.J. ATKINSON: I refer the member for Heysen to subclause (3), which provides:

(3) The application may identify the organisation by specifying the name of the organisation or the name by which the organisation is commonly known or by providing other particulars about the organisation.

Mrs REDMOND: If the organisation is not named, will the Attorney then give some idea of what other particulars would be used to identify the organisation?

The Hon. M.J. ATKINSON: Where the organisation hangs out and the names of some members of the organisation. This is just giving the law enforcement authorities a modest flexibility. In every case I can contemplate, the organisation will be named, whether it is the Hell's Angels, the Rebels, the Bandidos, the Descendants, the Gypsy Jokers, the Finks, the Red Devils, or the Mob Shitters.

Mrs REDMOND: I have two more questions on this clause, but I do not have any on clause 9, if that is of any comfort. In relation to the response the Attorney has just given, I accept what he is saying, but I do not understand this. If you cannot name the organisation, what is the point of declaring it, inasmuch as how do you then enforce a control order that tells someone that they are not to be a member of the organisation?

The Hon. M.J. ATKINSON: One would issue a declaration only if one could define the organisation reasonably specifically. If the application cannot define the organisation, the overwhelming likelihood is that it will fail, given the canons of statutory interpretation applying to penal laws.

Mrs REDMOND: I have another question on this provision, and it relates to the wording in clause 8(2)(f). Clause 8 provides that the Commissioner may apply to the Attorney-General for a declaration and sets out some things about that application—that it must be in writing, and it has to identify the organisation and set out the grounds. I am curious about paragraph (f) because it requires that the application be supported by a statutory declaration from the Commissioner, or statutory declarations from other senior police officers, verifying the contents of the application. What puzzles me is why we have restricted the other affidavits or declarations to senior police officers. It seems to me that, in practice, the people out on the ground who actually have the knowledge upon which the application is based are unlikely to be of the level of inspector or above; they may be ordinary members of the organised crime task force, or whatever it is. It seems to me to be inappropriate to set up a system whereby someone seeks to verify, by affidavit, information they can know only by virtual hearsay. It would be more appropriate, therefore, for the affidavit in support to be from someone with direct knowledge, rather than stipulating that it has to be a police officer of or above the rank of inspector.

The Hon. M.J. ATKINSON: We think the best way to proceed is for there to be one affidavit, or a small number of affidavits; and they may be composite. What we do not want is dozens of affidavits from junior police officers; we want the material to have been vetted by senior officers in the police command.

Mrs REDMOND: Then the evidence contained in the affidavit will, inevitably, be hearsay.

The Hon. M.J. ATKINSON: It is important to get down to the level of the officers who have operational command when dealing with outlaw motorcycle gangs; so, on the contrary, far from it being hearsay evidence we will be trying to get first-hand evidence. However, that evidence, before it is presented for the purpose of the provision, must be reviewed by very senior officers.

Clause passed.

Clause 9 passed.

Clause 10.

Mrs REDMOND: At this stage I have just one question on this clause, and it relates to subclause (1), where the Attorney may make a declaration if he is satisfied that 'members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity', and that 'the organisation represents a risk to public safety and order'.

I guess it is probably one question in two parts. First, why do we use the word 'and' between paragraphs (a) and (b)? Why, for the purposes of making an order, would it not be sufficient for the Attorney to simply be satisfied that the members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity without actually being a risk to public safety and order'

Secondly, if the Attorney is satisfied on both those counts, why is it not essential for the Attorney to make the order; why is it not a compulsion? When we get to the provision of control orders, for instance, there is a compulsion on the court, if it is satisfied that the person is a member of the organisation, that it must make a control order in certain terms—in terms of not associating with the organisation, and so on. Yet, if the Attorney is satisfied as to paragraphs (a) and (b), there is no compulsion on him to make the declaration. Why does the Attorney need both elements and, if he is satisfied on those elements, why does he not have to make a declaration?

The Hon. M.J. ATKINSON: The thinking of the Rann government is that a senior member of the government—namely, the Attorney-General—ought to exercise his judgment on the material presented to him. And so, if it was mandatory for the Attorney-General to issue the declaration, the member for Heysen would be asking us: 'Well, why have the Attorney-General at all? Why not have the Police Commissioner just do it?'

Mrs Redmond: You have to be satisfied as to those two elements.

The Hon. M.J. ATKINSON: That is right; I have to be satisfied. I have to exercise an independent judgment as an elected official, as a member of the responsible government, whether it is right, whether it is within jurisdiction and whether it is indicated by the facts that such a declaration should be issued. It is about someone who is responsible to parliament making that declaration. I put it to the committee that, if it were (as the member for Heysen hypothesises) that the Attorney-General just had to do what the Police Commissioner said, she and the opposition would be most upset that there was no value adding by a responsible minister, that declaring an organisation and subjecting its members to legal disabilities was just a matter for the Police Commissioner without reference to anyone responsible to parliament. I suggest the member for Heysen's question answers itself.

Mrs REDMOND: In response to that, I think the Attorney-General misunderstands what I am saying, because the section already clearly sets out that, after the application is received from the Commissioner, the Attorney-General has to be satisfied as to those two elements. I am not suggesting that he remove that. Indeed, I am not suggesting that he remove the discretion, I am just asking why it is worded in that way. At the moment, there is a necessity for the application to be made based on all the things set out in clause 8 above, and then the Attorney-General has to consider all that and be satisfied as to the two elements set out in clause 10(1), and then the order is made.

The point of my question is that I am curious about circumstances which the Attorney could envisage where the Attorney-General, having received the application in the appropriate form and supported by the appropriate documentation, examines all the relevant criteria set out under the act, is satisfied both as to paragraphs (a) and (b); that is, the people are together for the purpose of organising, planning, facilitating criminal activity and that there is a risk to public safety and order. In what circumstances, given all those factors, would the Attorney-General then not declare an organisation because the 'may' presupposes the possibility that he might not?

The Hon. M.J. ATKINSON: This is when I might be satisfied but not declare: where the Police Commissioner has previously satisfied me that an organisation needed to be declared and, over time, many of the criminal members of that organisation scuttled out of the organisation and merged with others to form a new organisation, and I believed that it was overkill to declare the alleged new organisation when the target members already had control orders applied to them by dint of their membership of an already declared organisation.

Mrs REDMOND: I want some clarity on the other part of the question that I originally asked; that is, why it is necessary to have both paragraphs (a) and (b)? It seems to me that there could be circumstances, particularly with some of the criminal activities that may not be so public and physically threatening, where an organisation warrants declaring where the members associate 'for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity'. That factor of itself would justify declaring the organisation, but the wording of the section requires that, in addition, the Attorney has to be satisfied that there is a risk to public safety and order. Is it the case that the Attorney is simply going to interpret 'public safety and order' so broadly that it will become an irrelevant consideration and that (a) will be the key consideration?

The Hon. M.J. ATKINSON: Paragraph (b) is not redundant, and it is not redundant for this reason: the Rann government is aiming at high-level crime; we are aiming at big outfits. We are not aiming at a few crooks plotting over a table, where there is no real risk to public safety or order.

We are trying to confine this power in a way I think the member for Heysen wants us to confine it, although the Leader of the Opposition does not. To give you an example: there is—maybe, was; I think it still exists—a cafe over the road from my electorate that had a very bad reputation and most undesirable people gathered there and then went forth from there and committed crime. Indeed, someone who was shot dead by former associates on the pavement in my electorate was an habitué of that cafe. There is no doubt at all that the police kept watch on that cafe. But to say that the patrons of that cafe were, collectively, a risk to public safety and order would be highly conjectural.

We want the organisations we are targeting to fulfil both legs of the definition; otherwise, there is a risk that the authority may be applied to too many organisations and associations. We are putting the bar up high, as I think the member for Heysen would want us to do.

Clause passed.

Clause 11.

Mrs REDMOND: The declaration having been made and not being subject to any appeal process and there being provisions later on about the service of notices and so on, I am curious about why we have this notice appearing in the Government Gazette. What is the intention in putting a notice in the Government Gazette of a declaration that the Attorney makes and against which there is no appeal, in any event?

The Hon. M.J. ATKINSON: It is the bounden duty of the Attorney-General to publicise his making this declaration, which may have harrowing consequences for the members and associates of the organisation. They legitimately expect to be told. In our society everyone is presumed to know the law (of course, that is sometimes a fiction), but we try to construct our criminal law so that people have due notice that their conduct could breach the criminal law. That is why we do not normally make criminal law retrospective, because the people who breach retrospectively made criminal law would not at the time they engaged in the conduct have been able to know that it was criminal, for the reason that it was not, until parliament subsequently projected the criminality back onto their conduct. For the same reason, we give even outlaw motorcycle gangs notice through the Government Gazette that henceforth it will be a declared organisation and that its members and associates are now at risk of having the legal disabilities in this bill applied to them. It is common courtesy. It is fair play in a rule of law society. I will not declare organisations clandestinely.

Mrs REDMOND: I am interested in the Attorney's being so concerned about fair play in a rule of law society, given some of his comments, particularly on matters in relation to this area. In his response to my original question, the Attorney talks about the 'harrowing consequences' of a declaration being made under these sections. In fact, in his second reading explanation, the Attorney points out that the consequence of declaring an organisation is virtually nil: it is the ability to make other orders which must be separately notified, anyway, and that before the Attorney makes the declaration in the first place we absolutely understand why we are putting the notice into the public notices, and so on, about the intention and the fact that it is being considered so that people have the right to make submissions.

The Attorney then makes a decision which is not reviewable; and, given his care about fair play and the rule of law, one would have thought he would then want to have (in accordance with normal administrative law principles, natural justice, fair play and the rule of law) a review of his decision. However, given that there is no review of his decision, I still put to the Attorney that there is no point in publishing in the gazette. You have received an application from the Commissioner and, in the process of considering that, you have published a notice so that people who are likely to be affected by it have the opportunity to make decisions.

Indeed, there is a provision to say that you cannot make your decision until a certain time has elapsed after you have given notice of your intention to consider doing that. You then make your decision and it is not reviewable. I still say: what then is the point of putting a notice in the gazette to say that the organisation has been declared?

The Hon. M.J. ATKINSON: The member for Heysen in her ideological purity so often reaches daft positions. I am trying to avoid making the declaration decision reviewable, because we know that the lawyers for the outlaw motorcycle gangs will use that as a signal to throttle the process in its infancy and hold it up for months, if not years. The member for Heysen knows that, and if she were in my position she would be doing as I am doing. Indeed, should she attain this office just watch her do the same and worse.

We have had 11 years of the Howard Government and many years of Philip Maxwell Ruddock, as minister for immigration and attorney-general, to illustrate the Liberal Party's attachment to the pure position the member for Heysen offers us on radio this morning and again in committee today. As our former prime minister Gough Whitlam said, 'The impotent are pure.'

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: The member for Heysen grieves me with that remark—

Mr Koutsantonis interjecting:

The Hon. M.J. ATKINSON: —and the member for West Torrens says it would thereby make him impure. As I said before, I am simply not going to declare organisations clandestinely. One of the disabilities is the criminal association provisions. Members of the public who have reason to associate with members of declared organisations ought to be given official notice that the organisation is declared. That is just fair play.

On Saturday afternoon I took my dog, Gus, for a walk along Cedar Avenue down to the park so he could run around and a group of Sudanese children could throw the ball for him because they enjoy his company enormously.

Mr Venning interjecting:

The Hon. M.J. ATKINSON: Actually he prefers me to throw the ball because I give him a clear go at chasing it and leaping upon it at the final instant, whereas the Sudanese children (the Dinka children) all run after him and are almost as quick to the ball as he is and put him off his game. On the way home from the park I passed the residence of the Kasumovic family, some of whose members are notoriously full members of the Finks outlaw motorcycle gang, and I greeted one of them and he greeted me.

Mr Venning: Comrade.

The Hon. M.J. ATKINSON: They are from the former socialist republic of Montenegro, but they don't normally refer to me as 'comrade'. I think I ought to have notice and he ought to have notice that henceforth he is a member of a declared organisation. It is just common sense.

Clause passed.

Clause 12 passed.

Clause 13.

Mrs REDMOND: This clause relates to the circumstances in which criminal intelligence—which is separately defined—can or cannot be disclosed. Part 1 says that if the Attorney-General declares an organisation he does not have to provide any reasons other than to a person conducting a review under part 6 if that person so requests.

I turn to part 6, the annual review, which is to be conducted by a retired judicial officer. It is not a review of the decision to declare; part 6 is the annual review to be conducted by a judicial officer. The Attorney-General receives information and he does not have to tell anyone the basis upon which he has made his decision, but if the person conducting the annual review (to ensure that the act is being administered appropriately and that the powers under the act are being used appropriately) makes a request then he may issue it.

The first part of my question is: if that person conducting the review requests that the information be disclosed, is the Attorney obliged to do so? The measure simply seems to say that he is not required to give out any reasons unless it is requested, but it does not seem to answer this question: if it is requested, is he then obliged to provide that information to the person conducting the review?

The Hon. M.J. ATKINSON: I am obliged to give my reasoning to the retired judge conducting the review, but not to anyone else. I think that is plain.

Mrs REDMOND: With respect, I do not think it is plain. What it says is that the Attorney is not required to provide the reasons to anyone else, but I do not think that, implicit in an ordinary reading of that sentence as it appears in subclause (1), it is necessarily the case that he is obliged to provide the information to the judicial officer who is conducting the review. I would like to be very clear about what that is.

The Hon. M.J. ATKINSON: The retired judge conducting the review is the exception to the rule, as stated in the clause. If I were to refuse the retired judge reviewer's request for my reasons, I would run the very great risk of adverse commentary in the annual review, and a normal Attorney-General would not want to run that risk.

As the member for Heysen knows, if the Attorney, contrary to this clause, gave reasons for declaring an organisation, the bikie lawyers, such as Michael Abbott QC and Harry Patsouris, would crack out the champagne, because they would be in to the courts to review the reasons and hold up the whole process for as long as possible; that is, to throttle the process in its infancy. If members of the Liberal opposition want to invite me to publish reasons abroad for the declaration, they know the consequences of that. They know that it is to defeat the purpose of the legislation. They would only advocate that for tactical reasons, and such advocacy should be seen for what it is.

Mrs REDMOND: My understanding of the response of the Attorney to my earlier questions and the provision of subclause (2) of clause 13 is that the person conducting the review—the retired judge who does an annual review—is entitled to insist on the Attorney's providing the grounds or reasons for his decision in declaring an organisation, and is also entitled to insist on the information upon which that was based, even if that information is so-called criminal intelligence.

The Hon. M.J. ATKINSON: Yes, to both questions, but the reviewer has a duty laid out later in the bill to protect the confidentiality of the information.

Mr HANNA: I move:

Page 7, lines 32 to 35—delete subclause (1)

I want to explain to members how this amendment relates to the other amendments on the page of amendments which I have arranged to be filed. I take this as a test case for amendments Nos 1, 2, 3 and 5. All those amendments deal with judicial review. In a sense the critical provision is clause 41 whereby I will be opposing the government's decision to keep judicial review out of the bill and to keep decisions of the executive out of the courts. In fact, amendments Nos 1, 2 and 3 are consequential upon that move that I would like to make. I will speak to the principle and we can vote on amendment No. 1. In fact, I will not be moving amendments Nos 2, 3 and 5 if I am unsuccessful.

I am putting forward the proposition that we should allow judges to ensure that proper decisions are made based on reasonable and honest criminal intelligence or other material. Whether it be the Attorney-General or the police, we need that check in the system. The decision to exclude judicial review should be undertaken with the utmost seriousness because it keeps citizens out of our courts.

It is always very easy when we talk about legislation such as this to talk about it in terms of bikies having access to the courts, or whatever undesirable element in our society having access to the courts, but, in fact, that prejudges the citizen who is going to the court for redress. We actually do not know whether the decision to brand them has been done improperly, whether or not they are innocent, until it is assessed judicially. We do have a good, sound judiciary in South Australia and I would trust them more than the government to make decisions about people's liberty. I have moved the amendment because members know what principle is at stake.

Mrs REDMOND: The Liberal Party has considered this issue at length. We have considerable sympathy with the view being expressed by the member for Mitchell. Indeed, had I had a chance to speak to parliamentary counsel this morning, we would be moving our own amendment in relation to the issue of judicial review. It is an important principle and it is not something to be thrown away lightly. I indicate to the committee that our intention is to move only one amendment when it is drawn up; and, hopefully, we can have it filed and dealt with in this place in this debate but, if not, in the other house, simply because of the haste with which things are proceeding.

Our proposal, I guess, takes something of a half-way position between the Attorney's bill and the proposal of the member for Mitchell, with which, as I have said, we have considerable sympathy. We propose that, in the case of the declarations under the provisions that we have just been dealing with, there should be a right of independent review but that when that occurs the onus should be on the organisation seeking the review to establish that a declaration should not have been made. We think that would offer some degree of protection against an inappropriate use of a power which otherwise is unreviewable.

I must say I am always uncomfortable about legislation that does not provide people with provisions for review. I know that in other areas as broad as the natural resources management legislation, and so on, we have instituted arrangements where people can have decisions made about which they have no recourse to a court or any other appeal against the decision, yet it can have profound influences on their wellbeing, rights, entitlements and ability to lead their lives uninterrupted by government. So, while we have some sympathy, I am afraid that unfortunately we are not in a position to support the amendment of the member for Mitchell, but we will seek to redress, at least in part, some of his concerns in relation to this legislation.

The Hon. M.J. ATKINSON: During the last sitting week the Leader of the Opposition (the member for Waite) stood exactly where the member for Heysen is sitting and said, 'This government is weak on bikies; it is not doing enough; this legislation does not go far enough.' His staff (John Lewis and Kevin Naughton) arranged for the cameras to come into the gallery before lunch and film the Leader of the Opposition saying that so it would be telecast on the news service. It all went pear-shaped for another reason—to do with the leader momentarily forgetting that Andamooka is in South Australia. But the intention was to have the leader talking to the people of South Australia through those television cameras saying that the Rann government is not doing enough, it is not as good as its word and this legislation needs to go further.

Today, in exactly that same little piece of the universe immediately opposite me (the Leader of the Opposition's very chair and bench), we have the member for Heysen saying that this bill needs to be subject to judicial review. Well, Yin and Yang, black and white! Of course, while the member for Heysen speaks thus, the television cameras are not invited, because they do not want the public to know what their real position is when the cameras are not here. They want to play both sides of the street. As my good friend the former member for Unley (Mark Brindal) said in this place years ago—I can recall him saying it during the Bannon government when I was interjecting, from a lot further back—'I tell the member for Spence that it is the prerogative of the opposition to have two bob each way.' Yes, and today we are having a little flutter. We have one story in the last sitting week from the leader for the cameras, and we have another story from the member for Heysen. Oh, what a joy it would be to be in opposition!

Mr Venning interjecting:

The Hon. M.J. ATKINSON: As the member for Schubert interjects in one of his last utterances before he retires, flexibility is what the opposition needs, and that is what the opposition has got. It has got the contortionist sitting in front us today. Clause 13(1) protects from disclosure the Attorney-General's grounds and reasons for making or not making a declaration or decision under part 2 of the act. The government understands that this amendment is a precursor to the member for Mitchell's opposition to clause 41, the privative clause. I think the member for Mitchell has graciously accepted that this amendment be treated as a test amendment for amendments Nos 2 and 3 that are also related to clause 41 and to any amendments to delete clause 41 itself.

Clause 41 of the bill is a privative clause and is intended to exclude judicial review of any decision, determination, declaration, proceedings, act or omission made under the act (or purportedly under the act) or in the exercise (or purported exercise) of powers or functions under the act. Clause 41 also prevents control orders and public safety orders being challenged in other proceedings, specifically criminal proceedings for breach of control orders and public safety orders, and for the new offence of criminal association.

Relevantly, clause 41, and the provisions such as clause 13(1) that support it, are necessary to ensure that, once the Attorney-General makes a declaration, the operation of the legislation, including control order applications and prosecution for offences under the act, cannot be undermined by members of the organisation challenging the validity of the declaration, either through judicial review of the declaration itself or in the course of other proceedings. To allow such challenges would undermine the operation of the legislation.

I have some sympathy with the member for Heysen because, no matter how clearly she lays it on the line for the Leader of the Opposition, he just does not understand. You cannot get it through to him, however diligently you try to tutor him, because, first, he cannot understand and, secondly, he does not want to understand.

Mr VENNING: On a point of order, the Attorney is casting aspersions on a member who is not here.

The CHAIR: The Attorney is not addressing the chair and I ask him to do so.

The Hon. M.J. ATKINSON: The member for Heysen said herself that the members of criminal organisations who are targeted by this legislation are well funded. They have access to the best legal advice and representation. Without the privative clause we know what will happen. Legal challenges to the validity of declarations, control orders and public safety orders would frustrate the effectiveness of the act, grinding applications for control orders, applications to extend public safety orders and prosecutions for offences under the act to a halt. The government assumes that this amendment is aimed at exposing the Attorney-General's decision to scrutiny—a decision, by the way, that the member for Heysen thought unnecessary to give notice of in the Government Gazette. We will leave that.

What is proposed in the amendment is unnecessary. Clause 37 of the bill requires the Attorney-General to appoint a retired Supreme or District Court judge to conduct an annual review on whether the powers under the legislation have been used appropriately, having regard to the objects of the act. This includes the Attorney-General's powers under part 2 of the legislation, namely the declaration provisions. Clause 13(1) expressly provides that the judicial officer appointed to conduct the review may request the Attorney-General's reasons and grounds for decision under clause 13(2) and clause 37 to ensure he or she will have access to all other information necessary to conduct the review properly, including information classified as criminal intelligence. I refer the committee to the Gypsy Jokers case just decided by the High Court. Read, mark and inwardly digest. That is what I suggest members of the committee who quibble with the government's position on this do.

Parliamentary scrutiny of the use of the powers is ensured by clause 37(5) that requires the Attorney-General to cause a copy of the review report to be tabled in both houses of parliament. That is how responsible government operates. The government believes—

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: The member for Heysen interjects about cherry picking. One cherry that the member for Heysen believes we never should have picked—we should have left him free and at large, according to her—is the case of Paul Habib Nemer. Contrary to what she says on Radio FIVEaa—and it is the complete opposite of what she says on ABC 891, because she knows they are different audiences—the member for Heysen believes Paul Habib Nemer should never have spent one day in gaol. That is her position. It has been stated in her newsletter to her electorate. It has been stated in this house.

Mr VENNING: A point of order, Madam Chair, on relevance: this has nothing to do with the matter at hand.

The CHAIR: I think once again the member for Schubert has not picked on the relevant point of order. The relevant point of order is that debate is happening across the floor. Once again, I ask participants to direct their remarks through the chair.

The Hon. M.J. ATKINSON: Madam Chair, it is my fervent wish that the member for Heysen ask me a question in today's question time about the matter of Mr Dundovic. However, I think I shall be disappointed. The government believes the annual review process is an appropriate safeguard that will ensure proper scrutiny of the Attorney-General's exercise of the declaration power without undermining the effective operation of the legislation. Let the government govern according to law and let us do what the Liberal Party leader says we need to do about outlaw motorcycle gangs. Don't do one thing in the house one week and another when the cameras are not here.

Amendment negatived.

Progress reported; committee to sit again.

[Sitting suspended from 12:59 to 14:00]

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