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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 (resumed on motion).

(Continued from page 2157.)

Clause 13.

Mrs REDMOND: Over the break, hopefully I have managed not only to have had drafted but also to have had filed a further amendment which involves clause 13. I do not know whether that is before the committee at the moment but, it should be at any moment. By way of explanation, I will just refer to the comments made before the lunch break when we adjourned the consideration of this clause. The committee will recall that the member for Mitchell had proposed an amendment whereby he would insert into each relevant provision in the legislation a provision for judicial review. I indicated in response to that proposal that it was our intention to move an amendment which, whilst we had sympathy with the member for Mitchell, we thought might better address the particular problem at hand, that is, not putting judicial review in for everything.

Members will see in the amendments as proposed that, in fact, the main part of our proposal appears as amendment No. 5, that is, basically, if an organisation is declared, there will be an option for judicial review of that declaration and the organisation has the onus of establishing the validity, invalidity or illegality.

I am addressing that in part now simply because consequential to that amendment (were it to get up) there is a need to amend clause 13, and that is where we are at the moment. My intention is, as the member for Mitchell did, to test the issue at clause 13, and then that will probably indicate how we will go. Although I may move other amendments, in due course I expect that we will not divide on them.

The Hon. M.J. Atkinson: Of course you will not divide on them.

The CHAIR: Order!

Mrs REDMOND: In trying to address this matter I would appreciate it if the Attorney would let me have the opportunity to speak unaided by his interjections, given that I allowed him to rant on before the break about things which were quite erroneous. The Attorney kept insisting that there is some disparity between the position of the Leader of the Opposition and me over this bill. I have made clear on numerous occasions that there is no problem between the Attorney and me. We are at one, or ad idem as the Premier—

The Hon. M.J. Atkinson: You and the leader, not you and the Attorney.

Mrs REDMOND: Sorry: the leader and I are at one on this bill. The comments of the Leader of the Opposition are in no way inconsistent with the comments that I have made in relation to this bill. The Leader of the Opposition has been indicating, quite vigorously at times, that, in his view, we may need to go further against the particular organisations that we are out to get, that is, the particular outlaw motorcycle gangs that we are trying to target.

Indeed, he has suggested that we should consider eventually—if these provisions do not work—some other things, such as simply outlawing those motorcycle gangs, and so on, whereas this process goes through a slightly circuitous route of saying, 'We will declare certain organisations outlawed or declared and then we will impose consequences on members of the organisation.'

What I have been saying at the same time as the Leader of the Opposition has been putting forward that view—with my blessing—is that, at the time that we are making these laws, which are clearly directed towards a specific group within the community who both the government and the opposition understand and recognise need to be dealt with firmly and in ways that we would not normally use our legal processes to address, we need to be careful that we do not inadvertently catch anyone else in the net.

That is the prime statement that I have been making. So, there is no discrepancy at all between the Leader of the Opposition's saying, 'We need to go perhaps further and faster against the particular organisations,' and me saying at the same time, 'We need to be quite careful that we do not go outside the range of the people we are trying to get.' We do not want what happened in Queensland to Dr Haneef to happen to some innocent person here. It is possible.

I accept that the Attorney, the Commissioner of Police and the various people who will be authorised under this act are well intentioned. However, that does not prevent the unthinkable happening. One only has to look at what happened to Dr Haneef in Queensland. An innocent man had his life just pulled out from under him by an overzealous departmental operation, which was compounded and compounded and compounded, and that could all happen because of the nature of the legislation without the checks and balances. So, there is good reason to pause and ask: 'Well, how do we put the checks and balances into the system to make sure, so far as we can, that we do not capture the wrong people; that we do not infringe on the liberties of innocent people in our attempts to address the problem of outlaw motorcycle gangs?'

I have no difficulty with the idea that we need to take some fairly drastic action, and actions that are not necessarily in keeping with the way in which our legal system has usually operated. I said in my second reading contribution that the legal system has always operated on the basis that we were controlling individual rather than group behaviour for almost all of it, and we were dealing with things after the event of a criminal act. So, we were dealing with how to punish and how to prevent for the future, but we were not trying, as a matter of course, to interfere before things occurred. The Attorney is quite wrong to paint on the record of the parliament this erroneous picture, which suits his political purposes, of there being some disquiet about this legislation between me and the Leader of the Opposition. There is none whatsoever.

The only reason I am going over this and labouring the point somewhat is that the Attorney spent so long putting on the Hansard record information which was not accurate and which was designed to give a completely erroneous impression about the situation. For that reason, it is important for me to put on the record quite clearly and quite certainly that there is not a problem. There is no difference between the Leader of the Opposition's position on this and my position. We simply think that there should be enough protections in the system to ensure that we can protect the innocent in our legislation.

As I said, the amendment that I am proposing simply includes into the exception the words 'a court'. Where we are talking about what information can be disclosed, at the moment clause 13 refers to the Attorney's making a decision and not being required to provide the grounds or reasons for his decision, and the exception is that the person who is appointed to undertake an annual review is authorised to obtain the information from the Attorney-General. What we are inserting by the amendment I propose is simply that, in addition to that, a court could be authorised to obtain the information as well.

As I said, it is really an ancillary amendment to the major amendment, which is No. 5 of those that I will be proposing, but rather than wait until then I will test the issue on the proposed amendment to clause 13. You will see that there is also a further amendment to clause 13 and I will move both those amendments at the same time so that there is no unnecessary delay of the committee, because whilst I do not expect to win it I think it is important to put on the record that we are intent on trying to ensure, so far as we can, that we support the government in what it is attempting to do and that also we ensure that innocent people do not accidentally get caught by the situation.

To that end we believe in a level of judicial review, minor though it may well be, and it is quite minor, to allow an organisation, which is declared, the right to get judicial review, on the basis that they have to establish—it is their onus—that that declaration should not have been made. We do not think that is terribly onerous in terms of what the government should be prepared to look at. That said, Madam Chair, I will move the amendments Nos 1 and 2 standing in my name to clause 13 of the bill:

Page 7—

Line 38, after 'Part 6' insert ', a court'

After line 39 insert:

(3) In any proceedings relating to the making of a declaration under this Part, the court determining the proceedings—

(a) must, on the application of the Commissioner, take steps to maintain the confidentiality of information properly classified by the Commissioner as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives; and

(b) may take evidence consisting of, or relating to, information that is so classified by the Commissioner by way of affidavit of a police officer of or above the rank of superintendent.

The Hon. M.J. ATKINSON: Dr Haneef was cast into prison. His case is not comparable with the case of making a declaration, because no-one is cast into prison by the making of a declaration. They may subsequently be cast into prison by other provisions in the act. So if we are going to look at—

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: That's right; but if we look at the need for judicial review that would be more appropriate to the other provisions than this one. I have said it before, and I will say it again: the member for Heysen and the Leader of the Opposition are playing both sides of the street on the issue of bikie gangs. The member for Heysen gives the game away by saying that she will not require the house to divide on this amendment—

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: Well, I will be very interested to see a division on judicial review and to see the Leader of the Opposition voting for an amendment which would throttle this bill at its beginning, and open up to—in what will almost certainly be a series of judicial reviews—a declaration of let us say, for example, the Gypsy Jokers, as a declared organisation. We all know that the Leader of the Opposition tries to sound tougher and more draconian than the Premier on the question of outlaw motorcycle gangs. That is why he stood in the house in the last sitting week to address us on a bill about which he in fact knows very little, because with the responsibilities he has taken on he has not had time to look at it.

So we got from the Leader of the Opposition tough rhetoric. He sat down. The lead speaker was the member for Heysen. She stood and began both in the letter and the tone to say the complete opposite of what the Leader of the Opposition had said.

Mrs Redmond: You know you are talking through your hat—peculiar hat that it is.

The Hon. M.J. ATKINSON: The member for Heysen says my hat is peculiar. She perhaps should have come out on the steps of Parliament House today and told that to the East Turkistani people. I think it is a very fine hat. All the television journalists who were invited to the gallery before lunchtime that sitting day by the Leader of the Opposition's staff reported the tension—to put it at its least—between what the member for Heysen said and what the Leader of the Opposition said, because they did in front of all four television networks in this place. It has nothing to do with, as the member for Heysen claims, my pulling strings: it is what they saw. They reported parliament as they saw it. And, further, the ABC has run the same story again today, because it can see the discrepancy between what the member for Heysen is telling us in this chamber and what the Leader of the Opposition is telling the public outside. There is a discrepancy because it is, as Mark Brindal used to say, the prerogative of the opposition to have two bob each way. Sometimes I do look back on opposition with fondness.

Mr Pederick: Soon you will be heading back.

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: The member for—

Mrs Redmond: —Heysen asked whether you are too thick to understand. And the answer is?

The Hon. M.J. ATKINSON: The member for Hammond says that we will soon be back in opposition. And, the member for Heysen, in her usually polite way, says that I am too thick to understand. Well, I saw and I heard what each of the television journalists reporting parliament saw and heard in the last sitting week. I will be very interested to see the Leader of the Opposition come into this chamber and vote for judicial review of a declaration of a criminal gang, because, if he does, it will set at nought what he said in the last sitting week.

Mrs REDMOND: I have to respond, and it is my motion, so I think I have the opportunity to respond. Once again, I say to the Attorney and the chamber that there is no discrepancy between an opposition leader wanting to go further and harder against the gangs and an Attorney-General wanting to narrow the scope to ensure that we are not capturing other people. That is the intention of judicial review—to make sure that we are getting at the right people. We are not here to just willy-nilly pass laws that enable you as the Attorney-General of this state to declare organisations with no accountability whatsoever, no judicial review. Why shouldn't there be judicial review of the Attorney's decisions? That is quite a fundamental question, except that it is my amendment, and I am closing the debate on the amendment by speaking again, I think, Madam Chair.

The CHAIR: It is not the way it applies in committee.

Mrs REDMOND: In any event, suffice to say that I will get up and respond as often as the Attorney wants to make this unfounded allegation and I will correct the record. The Attorney has a habit of coming into this place, and he thinks that, by stating things onto the record of the Hansard,when he knows interjections from the other side will not be recorded on Hansard, he will somehow make true assertions that he makes in this place which have no basis in fact.

The reality is that the Attorney is unaware, but the opposition leader and I spoke at length about this before the opposition leader's speech the week before, and I was well aware of what he was about to say. I indicated to him that I was comfortable with it because we are at one; we both agree that extraordinary measures need to be taken against outlaw motorcycle gangs. My concern, as the shadow attorney-general, is to ensure that we do not broaden this legislation beyond where it needs to go so that its scope is limited to outlaw motorcycle gangs and maybe some other organisations such as triads or mafia-type organisations, but we do not want to capture innocent people.

The Hon. M.J. ATKINSON: The reason that I think the declaration should not be subject to judicial review, apart from it introducing motorcycle gang filibustering of the whole process, is that I am a minister in the government, and I am responsible to parliament under the principles of responsible government. That is the proper review. And on top of that, we have review annually by a retired judge who reports to parliament. That is the accountability. The more I listen to the member for Heysen, the more I wonder why we bother to have elections and parliaments. Why don't we just let a few judicial activists legislate for the entire country? Why go through the charade?

Mrs Redmond: Why do we have judges if the Attorney-General is going to judge every case in the media?

The Hon. M.J. ATKINSON: That is a very good point. Notice in question time that there was no question from the member for Heysen about the case of Denis Vlado Dundovic. She shrugs her shoulders—not important to her. Just leave that to the experts; do not have the public commenting on it; they did not sit in on the trial; they do not know all the facts; they do not know the law, so why should they have a say through their elected government and the Attorney-General, who is responsible to the elected parliament?

The member for Heysen has been on the record again and again in this place, in her electorate newsletter, saying she does not agree with instructing the DPP to appeal against a manifestly inadequate sentence. That is his job.

Mrs Redmond: That's not true; take it back. Another untruth from the Attorney-General.

The Hon. M.J. ATKINSON: That is his job. The last time the member for Heysen was accusing me of mistruths, members might recall it was the closing hour of the Domestic Relationships Bill. She went so far as to move to set up a privileges committee against me, but then she went back and read what she actually said in Hansard and it was quietly dropped.

Mrs REDMOND: Madam Chair, the Attorney is at it again. He asserts that, because I move at all in response to his comment, somehow he is entitled to assert, on my behalf, my view of anything that is before the public, the courts or before this chamber. He said, 'She shrugs her shoulders. It's not important to her.' How can he dare make such an assertion? I can shrug my shoulders, sneeze, scratch, and do whatever I want; it does not give the Attorney the right to put onto the record assertions which are patently and blatantly untrue. The Attorney asserts again and again that I am in some way at loggerheads with the Leader of the Opposition. I am not.

We have thought about this bill quite carefully. In the case of control orders, public orders, and so on, there is a provision for people to have some recourse, to have a review in some way, to object to an order being made, to go to the Supreme Court. In the case of declarations, there is no such provision. All we are trying to do is insert a minimalist approach to that to allow organisations which are declared the right to have that reviewed in a judicial way, with the onus still being on them to show that it was unfounded and should not have been made.

I am sick of the Attorney asserting things about my stance on issues. I have never said in my newsletter that Nemer should not have gone to gaol. What I have said in my newsletter is that the Attorney, in fact, answered three questions in this chamber shortly after I became the shadow attorney-general. The first question was: does he review every case in this state for which there is a written finding? The Attorney's answer was, 'I think the house would be surprised if I were to do that.' So, in other words, no, he does not.

My second question related to how he chose which cases he would look at, which cases he would read and which cases he would make statements about. He did not really give an answer to that question. My third question was: did the Attorney appreciate that, by choosing to concentrate on some cases and not others, and by interfering in some cases but not others, he was thereby creating a situation in which the people in this state could not be sure that they would all be treated equally because, after all, if Mr Nemer gets a further hearing via the Attorney-General and the Premier, why shouldn't everyone's case have that same further consideration via the Attorney-General and the Premier? That was the thrust of my questions and that has been the thrust of my comments in my newsletter. It had nothing to do with Mr Nemer. I think that Mr Nemer's situation is irrelevant.

The Hon. M.J. Atkinson: It's on the record.

Mrs REDMOND: Now the Attorney changes what he is saying. He is now accusing me of saying it in here. I have never backed away from the fact that I have a particular position in relation to whether it was appropriate for the Attorney-General to direct the DPP. I was not the shadow attorney-general at the time; I was the member for Heysen.

The Hon. M.J. Atkinson interjecting:

The CHAIR: Order! This debate has been ranging very widely and it sometimes seems, at best, tangential to the subject under consideration. I ask both parties to confine their remarks to the subject of the debate. However, given the breadth of the Attorney's last comments, I will continue to allow the member for Heysen some breadth here but, after this, no latitude.

Mrs REDMOND: Thank you, Madam Chair, and I appreciate your indulgence in allowing me to respond. It is clear that, as the member for Heysen, not as the shadow attorney-general, I took a particular view, which I still think is a valid view, that—

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: If I had been the Attorney-General at the time, there is no doubt that I would not have directed the DPP to appeal that decision. That said, that does not at all sit inconsistently with the fact that, notwithstanding my views, the matter went to the High Court and it came down in favour of the Attorney's view. The Attorney seems to have some difficulty with the fact that, as lawyers, every day we are confronted with issues where the finding of the court may fly in the face of what we would have believed to be the correct interpretation of the law. There is no problem for any lawyer in accepting that. If we can move on—

Mr Goldsworthy: He's only been in court as a witness, not as a lawyer.

Mrs REDMOND: He has spent much more time in court as a witness than he ever has as a practitioner; none as a practitioner. That is why he is not a normal Attorney-General, as he said himself before the break. Having been given that indulgence, Madam Chair, I will not delay the committee any further. I do, however, object to the Attorney continually getting up in this place and asserting things about my comments and views on things, which are not my views. I do not want to take up the time of the house by having to constantly stop to give personal explanations to correct the record which the Attorney-General is mischievously creating in this place. That said, I ask that the amendment which I have be put.

The CHAIR: Attorney, third and final go.

The Hon. M.J. ATKINSON: I understand that the Liberal opposition wants to introduce judicial review into the bill to protect the civil rights of members of outlaw motorcycle gangs. I understand that. What I do not understand is why it is introducing judicial review into the bill for the benefit of gangs and not individuals. This amendment is a bill of rights for the Hell's Angels. Let the Liberals vote for it if they wish.

Mrs REDMOND: What the Attorney is putting is just a nonsense. The Liberal opposition is not trying to protect the civil rights of members of outlaw motorcycle gangs. We are trying to protect the civil rights of another organisation that the Attorney could, on the basis of this legislation, simply declare without any need to disclose the information upon which he bases his decision, and that could be a union, for instance. The Attorney asserts that it will not be but, if it were a union—just take the example that the Attorney decided that he was now suddenly at war with the Shop Distributive and Allied Trades—

Mr Goldsworthy: No, not that one.

Mrs REDMOND: One of those good unions.

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: No, I think the SDA is the ideal union to use as an example. If the Attorney-General suddenly found that the worm turned and started to go back on him, and he decided that, by way of retribution, he would declare them, why would it not be reasonable to allow that organisation to have judicial review of that decision? That is all we are trying to do—to insert a provision to allow judicial review of an improper exercise of the power.

For the Attorney-General to stand there and say that this is somehow an agenda of the Liberal Party to protect the civil rights of outlaw motorcycle gangs is mischievous in the extreme, particularly given the debate that has already occurred. All it will do is delay the house. Every time he gets up to do it, I will get up to respond because I am sick of the Attorney putting on the record things that are blatantly untrue and mischievous in the extreme.

The committee divided on the amendments:

AYES (15)

Evans, I.F. Goldsworthy, M.R. Griffiths, S.P.
Gunn, G.M. Hamilton-Smith, M.L.J. Hanna, K.
Kerin, R.G. McFetridge, D. Pederick, A.S.
Penfold, E.M. Pengilly, M. Pisoni, D.G.
Redmond, I.M. (teller) Venning, I.H. Williams, M.R.

NOES (28)

Atkinson, M.J. (teller) Bedford, F.E. Bignell, L.W.
Breuer, L.R. Caica, P. Ciccarello, V.
Conlon, P.F. Foley, K.O. Fox, C.C.
Geraghty, R.K. Hill, J.D. Kenyon, T.R.
Key, S.W. Koutsantonis, T. Lomax-Smith, J.D.
Maywald, K.A. McEwen, R.J. O'Brien, M.F.
Portolesi, G. Rankine, J.M. Rann, M.D.
Rau, J.R. Simmons, L.A. Snelling, J.J.
Stevens, L. Weatherill, J.W. White, P.L.
Wright, M.J.

PAIRS (2)

Chapman, V.A. Piccolo, T.


Majority of 13 for the noes.

Amendments thus negatived; clause passed.

Clause 14.

Mrs REDMOND: I have a question in relation to the difference between subclause (1) and subclause (2). I note on the one hand that, if the court is satisfied that a defendant is a member of a declared organisation, the court must make a control order against the person. I am quite comfortable about that. I am just a little confused about why then in the second set of circumstances which are set out, it does not also appear as 'must' and it is only that the court 'may' make a control order.

It seems to me that if the court is satisfied that the defendant has been a member of a declared organisation or engages or has engaged in serious criminal activity and regularly associates with members of a declared organisation, that would be just as serious as saying that the defendant is a member of a declared organisation. I am curious as to why there is the difference between 'must' in subclause (1) and 'may' in subclause (2).

The Hon. M.J. ATKINSON: The difference is that the government thinks that if it is accepted that a person is a member of a declared organisation then the control order should follow. If a person is not a member but is in the second class, then the court has a discretion. Since the member for Heysen is looking for discretion from our judges in applying this law, I would have thought she would welcome this approach. That is the difference. I understand the point the member for Heysen makes.

Mrs REDMOND: I have a question on subclause (6), which provides that in considering whether or not to make a control order the court must have regard to certain things which are set out in subparagraphs (a) to (e). The first of those is 'whether the defendant's behaviour, or history of behaviour, suggests that there is a risk that the defendant will engage in serious criminal activity.'

That seems to be an extremely low threshold: 'that the defendant's behaviour, or history of behaviour, suggests that there is a risk that the defendant will engage in serious criminal activity'. I accept that that is 'will' not 'could', but can the Attorney give some indication of what the government has in mind in terms of how that will be used in practice?

The Hon. M.J. ATKINSON: The point the member for Heysen makes is a fair one. I would have thought that, if the defendant has engaged in serious criminal activity before, that would meet the threshold or exceed it. We are doing the best we can to guide the court. I do not know that I can be any more specific in trying to clarify subclause (6) than what is printed on the page. We are trying to guide the court, and I am sure our courts will apply it in good faith. We have not mandated the declaration for people in subclause (2) as was discussed previously.

I am advised that this provision is drafted in a similar way to the apprehended violence order provisions and the paedophile restraining order provisions. The judicial officer would look at the purpose of the law, that is, to stop criminals getting together to plan more crime. If that is the purpose then the defendant's behaviour or history of behaviour, the risk that the defendant will engage in serious criminal activity, is a relevant consideration.

Mr HANNA: I would like to put a couple of scenarios to the Attorney-General to gauge how broad the provision is meant to be. One example I give is of a person who, in the past, has committed serious criminal offences and is a drinking mate of someone who is a member of a declared organisation. It may be that a person with a history of offending, even though they have no current intention to offend, drinks at their local pub and that pub is also frequented by bikies perhaps. Looking at the criteria for the imposition of a control order, the fact that a person has that criminal history puts them very much in hot water, and the only balancing factor is really the fact that they have a legitimate reason to be there having a quiet beer. Is it conceivable that a control order may be sought and obtained in respect of such a person to stop them going to those premises because they may be mixing with the wrong crowd?

Taking that a step further; what if there is an email list, because the association can be by electronic means. If people are part of a group that regularly email each other and one of them has a serious criminal offending history (albeit a long time in the past) and the other one is a member of a declared organisation, is it contemplated that in those situations there might be an order sought and obtained to stop a person being a member of a certain email community?

The Hon. M.J. ATKINSON: The answer to the second question is yes, the Commissioner may make an application to the court for a control order and, given the purpose of the law, it is then for the court to decide whether or not a control order is appropriate. That is if, of course, there is not a reasonable explanation for the contact. It is a pretty broad exception, and that is if the contact is not owing to work or commerce or family. If you get past all those exceptions and all those exceptions are ruled out and there is contact either via email or at the pub six times or more in 12 months, then yes, that is possible.

However, as the member for Mitchell knows, our criminal law is not applied to even a fraction of the cases to which it could be applied. If all our criminal law (the criminal law we have now or the criminal law we had 50 years ago) were enforced to the letter by the police we would be living a totalitarian nightmare. I think Geoffrey Walker, my former law lecturer, in his book about, essentially, jurisprudence makes the point that most law is designed to be applied only in exceptional circumstances. We know that the way this will operate is that the vast majority of people who could be caught by these provisions will not be caught by these provisions. In those cases where the police do decide to apply to the court for a control order there will be the judicial review that the member for Mitchell seeks.

I am advised that the way the police would handle this is that once the six contacts were up the chances are that one party would be approached—particularly the person who was not a member of a declared organisation or did not have a criminal history—and given a warning. I know with the hoon driving legislation I was out letterboxing and I reported someone who was laying rubber on the road at the corner of Second Street and Coglin Street, Brompton. I got the numberplate; the police came around to see me and said 'Yes, we'll write them a letter and we'll go around and see them.' I cannot imagine that they were prosecuted.

That is the sensible way to operate and I am sure that is how this legislation will be applied, but the member for Mitchell makes the point that, under a different government, in a different era, in a different society, the law can be misused. There can be malicious prosecutions. The law can be applied unfairly, and that has happened at times in our history when there has been very little statutory criminal law. I have been a member of parliament now for almost 19 years and I know people who have criminal records. I got a message from a mate of mine, Dave Granger, who wants me to come around and see him; have a cup of tea with him. Well, Dave has form, so I am aware—

Mr Goldsworthy interjecting:

The Hon. M.J. ATKINSON: He did, but we all know that Jack Cahill sent him out to do it. He said as much. It was the 1982 preliminary final. I was there. He came straight out of the coach's box, straight from Jack Cahill's side, and punched Cornsey in the side of the head. And, you know, Port Adelaide were goals and goals behind at the time—got back to within one point; still lost. I am sorry; I have been distracted.

Mr Hanna interjecting:

The Hon. M.J. ATKINSON: It was a very wet day at Football Park.

Mrs REDMOND: Subclause (1) allows that, if the defendant is a member of a declared organisation, there must be the control order, and then the other circumstances, which are quite serious. They are set out, and the Attorney has already addressed why this next clause uses the word 'may'. However, we must bear in mind that subclause (2) provides:

...on application by the Commissioner, make a control order against a person...if the court is satisfied that—

(a) [that person]—

(i) has been a member of a declared organisation or engages, or has engaged, in serious criminal activity; and.

(ii) Regularly associates with members of a declared organisation;

(b) the defendant engages, or has engaged, in serious criminal activity and regularly associates with other persons who engage, or have engaged, in serious criminal activity.

So, we have a fairly serious set of circumstances that would lead a court to make that order. I am just a little curious then about subclause (5). I note that, if the control order is against a person who is a member of a declared organisation, the control order must prohibit the defendant from possessing a dangerous article or a prohibited weapon within the meaning of section 15 of the Summary Offences Act. Above that, paragraph (a) of subclause (5) provides that a control order may prohibit the defendant from possessing a specified article or articles of a specified class. A plain reading of that would therefore indicate that, if you have a member of a declared organisation and a control order made against them, the control order must prohibit them from basically having a gun. If you have this other classification of person, who obviously has fairly serious engagement in criminal activity, and so on, but who is not a member of a declared organisation, why would it not be sensible nevertheless to require, just as with the person who is a member, that they be prohibited from owning or possessing a gun or one of the other specified articles?

The Hon. M.J. ATKINSON: Firearms will be dealt with by other legislation, which is on its way. We know that the members of outlaw motorcycle gangs use violence. Violence is very much part of their ethic and culture, as the member for Heysen says, and so dangerous articles and prohibited weapons in their hand are well on their way to being used on other people. I think the second class of person who has a record of serious crime may not be violent. That kind of person could be an old fraudster, not necessarily someone who is violent. Whenever the coppers turn over a bikie joint they find the most interesting dangerous articles and prohibited weapons, and I think that does distinguish bikie gangs from most of the rest of society. One of their signatures is owning these things.

The person who comes into the second class, not a member but having a serious criminal history, may not be such a risk. I am advised that a person who is not a member of an outlaw motorcycle gang would nevertheless be subject to the general law on dangerous articles and prohibited weapons, but they would have access to the range of defences in that law; whereas under this, the members of outlaw motorcycle gangs would not have the defences—we would just list under this law their dangerous articles and prohibited weapons.

Clause passed.

Clause 15.

Mrs REDMOND: I have a question about subclause (4). Basically, the clause provides that a control order must contain certain information and, in particular, that a copy of the affidavit verifying the grounds on which the application was made must be attached. So, the person receiving the control order, who subsequently has a right of objection (and there is even a provision of an appeal to the Supreme Court, so I am quite comfortable about that), will normally get the information upon which the application was based. However, subclause (4) refers to information that cannot be disclosed because it is criminal intelligence (and there is a fairly long provision in section 21 later on). If it cannot be disclosed because it is in breach of section 21, an edited copy of the affidavit is to be attached to the order.

I assume that, at its most far-reaching impact, subsection (4) will mean that one could have an affidavit which basically disclosed no information as to the real basis for the making of the order and, in fact, it might not even disclose the name of the person making the affidavit, in theory, if the identity of that person might be disclosed and it might place them in jeopardy, or anything like that.

I just want to confirm that that is, in fact, how things could happen under this provision. I understand that, for the most part, provided it is not based on criminal intelligence, as defined, an affidavit will be attached stating on what basis the control order has been applied for, so that the person seeking a review of it has the opportunity to understand the basis upon which the order has been sought and made. However, is it the case that, in fact, the broadest reading of section 15(4) will be that there could be an affidavit attached that is so edited that it contains no information of substance whatsoever?

The Hon. M.J. ATKINSON: I commend to the member for Heysen the recent High Court of Australia judgment in the Gypsy Jokers of Western Australia case. It will be in AustLII: look up Gypsy Jokers 2008, page 4. I am told that there are only about five decisions on the website. It is a long judgment, but it is rewarding to read, because it explains what the majority of the High Court thinks about this kind of legislation. The majority of the High Court takes the view that, if police provide all the information to the court, the court will read it, deliberate on it and decide whether it really is criminal intelligence and whether it can or cannot be released to the other side.

So, the member for Heysen is right. Yes; there could be an affidavit with hardly anything in it, but it would end up being in that form in the hands of the defence only if the court had read the whole affidavit, including the names, and satisfied itself that it was genuine criminal intelligence that needed to be withheld from the defendant. Nevertheless, the defendant would know the grounds on which the order was being made, but not all the evidence supporting those grounds.

The High Court has been clear on what we need to do to bring our legislation into conformity with its standards. We have tried to do that in this bill. There may be some other legislation that needs to be amended to come up to the High Court standard, as enunciated in the Gypsy Jokers case.

Clause passed.

Clause 16.

Mrs REDMOND: It looks to me as though the provisions for service on the defendant are really quite standard. I just wonder about subclause (3)(d), that is, the affixing to the premises, because if you have a bikie fortress I would imagine that affixing to the premises could be somewhat different. The normal affixing to the premises might be affixing to the front door of a premises but, assuming that whoever is given the delightful task of serving this order on a bikie (and, quite frankly, I think they should get danger money for attempting service) cannot locate the person (most of them know to say 'No' when they are asked whether they are the person who is being sought); and, assuming that there is no-one apparently over the age of 16, so they have to affix it to the premises, are any special provisions contemplated for somehow affixing a notice to a concrete wall with barbed wire, and so on? Has any thought been given to difficulties that might ensue in the service of a control order onto, for instance, a bikie fortress?

The Hon. M.J. ATKINSON: That is an operational matter for our police, but I would be happy to serve in that capacity, especially if it were in my electorate.

Mrs Redmond: You would have the opportunity to doorknock and say 'Vote for me' at the same time.

The Hon. M.J. ATKINSON: No; I do not think I would concertina the two. Martin Luther managed to give notice to the Catholic Church by nailing his theses to the door of the church. I am sure police can do likewise to the gate of the premises—which, contrary to what the member for Kavel claims, can sometimes have very high concrete tilt-up walls.

Clause passed.

Clause 17.

Mrs REDMOND: My question relates to subclause (2), the grounds of the objection. The requirement for the grounds to be stated fully and in detail in a notice of objection is reasonable, on the face of it, but I wonder how that sits with the Attorney's answer to my earlier question. If the control order is issued and, assuming that we have managed service, the person receiving the control order is confronted with a control order which has an affidavit attached which has virtually no information on it, on what basis does the Attorney contemplate that they can reasonably be expected to set out the grounds of their objection fully and in detail in the notice of objection that they then want to lodge?

The Hon. M.J. ATKINSON: The order from the police will refer to the grounds in the act. I mean, that will not be scrubbed out under the criminal intelligence masking. Presumably, the response, the notice of objection, will be: 'I am not and never have been a member of an outlaw motorcycle gang' or 'I have not engaged in serious crime.'

Clause passed.

Clause 18.

Mrs REDMOND: I want to confirm the procedure on hearing the notice of objection, particularly subclause (1), which provides that the court has to consider whether sufficient grounds existed for the making of the control order. Indeed, that is one of the circumstances where the balance of probabilities and not the criminal onus will apply.

The Hon. M.J. ATKINSON: Yes.

Clause passed.

Clause 19.

Mrs REDMOND: This is the appeal provision. There is an appeal as of right on a question of law and there is an appeal with the permission of the court on a question of fact. Again, that provision about the question of fact will be decided on the balance of probabilities. As I understand it, that is the case. If a matter does go to the Supreme Court on a question of fact, will there be a rehearing of the evidence to determine that fact or will it simply be based on the evidence heard in the lower court, which would normally be the case in an appeal to the Supreme Court?

The Hon. M.J. ATKINSON: It is not a de novo decision. It is a reconsideration of the papers of the trial, but the Supreme Court has the jurisdiction to hear more evidence.

Clause passed.

Clause 20 passed.

Clause 21.

Mrs REDMOND: I have a couple of questions in relation to the provisions relating to criminal intelligence—and we appreciate the reasons for having these provisions and the need to prevent disclosure of information which could prove highly dangerous to individuals involved in this most difficult work. Firstly, subclause (2) provides:

In any proceedings relating to the making, variation or revocation of a control order, the court determining the proceedings—

(a) must, on the application of the Commissioner, take steps to maintain the confidentiality of information properly classified by the Commissioner as criminal intelligence

My question relates to how broad the interpretation of the steps to maintain the confidentiality might be. For instance, it occurred to me that maybe we should have been looking at the need to have the ability to take evidence outside a courtroom—that is, somewhere discrete and away from a courtroom—for the protection of people involved in this sort of work, if it became necessary. I then tie that into the next part of the question which is that the court may take evidence by way of an affidavit of a police officer of or above the rank of superintendent. Again it seems to me that we are in a situation—and I think the rank of superintendent is less than that of inspector, and so we have come down the ladder maybe a peg—where we are still not getting the evidence directly from the people who are on the ground and who potentially (theoretically) are even infiltrating into the criminal gang.

I am curious about how we protect the people who are getting the evidence first-hand. However, at the same time, we accommodate the fact that, if you go higher than the people who are getting that evidence first-hand, then it still seems to me that you then have the problem of what is being put is hearsay, because it is simply relating what someone else has said and so the person giving the evidence is not getting it first-hand. The first part of the question is: how broad is the interpretation of the steps to maintain the confidentiality of information that could be taken by a court in determining the control order provisions and the criminal intelligence question on those control orders? Will it be broad enough to extend to taking the necessary steps to protect from where the information has come and those who may have provided it, whether it be the police officers involved or other people?

The Hon. M.J. ATKINSON: Yes; emphatically.

Mrs REDMOND: In terms of subclause (2)(b) can the Attorney explain the reasoning behind restricting the evidence that can be provided by way of affidavit to that of a police officer of or above the rank of superintendent, and why is it different from the clause relating to above the rank of inspector? Why that particular rank in that particular clause?

The Hon. M.J. ATKINSON: So much of our reasoning in this bill is derived from Crown practices on public interest immunity. The rank that is used in this clause is the same rank used where police are seeking public interest immunity orders.

Clause passed.

Clause 22.

Mrs REDMOND: The first question is simply in relation to the penalty, that failure to comply with a control order has a maximum penalty of imprisonment for five years. There is no monetary alternative put there. Is it the case that there is no monetary alternative, or is it the case that there is a monetary alternative which does not need to be expressed now, and, if it is, what is the amount of that monetary alternative?

The Hon. M.J. ATKINSON: I am advised that where there is a penalty of imprisonment and no other penalty is expressed to apply, section 18 of the Criminal Law Sentencing Act allows the court to impose a fine, and the fine is at its discretion.

Mrs REDMOND: The second part of section 22 basically provides a defence that occurs does not commit an offence unless the person knew that the act or omission constituted a contravention of or a failure to comply with the order, or was reckless as to that fact. It seems that there is implicit in that wording a potential difficulty in that the prosecution will have to prove that the accused knew that what they were doing contravened the act. If on each occasion they have contact with the member of a declared organisation, or whatever it is, then, clearly, if that is known and they are advised, 'You are not allowed to do that; that's a breach, blah, blah, blah', then that is one scenario and that is fairly straightforward. But what about the circumstance where they just assert that they did not know? How in practice will we be able to prove that they did in fact know, if we have the circumstance where there is a control order in place but the person simply asserts, à la Alan Bond, 'I don't remember; I didn't know'?

The Hon. M.J. ATKINSON: It is just a question of fact for the court to determine.

Mrs REDMOND: Maybe I can approach it from another angle; that is, is a person likely to be deemed to be reckless as to the fact that their action constituted a breach of a control order if they simply did not find out about it? Is the obligation on the accused to show that they knew that there was a control order that had certain provisions and did nothing about it? I am curious as to how that will be interpreted. There will always be a problem with imputing knowledge to an accused, but, if you look at it from the other side, what will constitute being reckless as to the fact of a control order?

The Hon. M.J. ATKINSON: Recklessness might include sitting down at a cafe with someone wearing Hell's Angels patches, and then claiming they did not know they were a member of a declared gang.

Clause passed.

Clause 23.

Mrs REDMOND: In relation to clause 23, this is probably one of the most difficult areas, I suspect, in terms of how the police will manage it, because they are able to make a public safety order if they are satisfied that the presence of a person or a group of persons at premises or at an event, or within an area, poses a risk to public safety and that the order is appropriate in the circumstances. No problem with that. There is a provision later on about the police officer—and it must be a senior police officer as defined—having to have regard to certain things, such as previous behaviour, whether they have been members of declared organisations. Paragraph (c) provides that the senior police officer has to have regard to 'if advocacy, protest, dissent or industrial action is the likely reason for the person or members of the class of persons being present at the relevant premises or event...the public interest in maintaining freedom to participate in such activities.' Is that a static concept or is it something that the senior police officer is going to have to determine on balance on each occasion of issuing a public control order?

The Hon. M.J. ATKINSON: That provision is a memo to police officers working with this bill that those things are in the public interest and that it is something that they should take into account when they are working with this bill and applying its provisions. I would have thought that the member for Heysen would be pleased to see that provision there; I know that my caucus colleagues are.

Mrs REDMOND: Over the page, there is a provision about the serious risk to public safety or security. Basically, it is defined as:

If there is a serious risk that the presence of the person or persons might result in the death of, or serious physical harm to, a person or serious damage to a property.

Further down, in subclause (9), there is a reference to injuring, wounding or killing an animal. I wonder whether this clause is one of those clauses where a further concept might need to be included; that is, the idea of threatening behaviour, because people can feel threatened, and animals, I believe, can be harmed with fear and threats. There might not necessarily be any actual serious physical harm to the person, or injuring, wounding or killing in the case of an animal, but I wonder whether the concept of threatening or frightening behaviour is going to be captured anywhere in the idea of a public control order.

The Hon. M.J. ATKINSON: The clause is about risk; it is about an assessment of harm. It is not about proof of actual harm. The member for Heysen is right: outlaw motorcycle gangs do operate in this way; it is their stock in trade. I think that is well within the spirit of the section, and I hope that it informs the police's application of the section.

Mrs REDMOND: Would it be fair to say, Attorney, that the intention of the legislation at large—not just this bill but, in fact, the Public Order Offences Bill—is to seek to address specifically that area of threat rather than actual harm?

The Hon. M.J. ATKINSON: Not exclusively. The other bill which is scheduled for debate later in the week and which is about riot and affray deals with threat and risk—with assault rather than battery, if you like.

Clause passed.

Clause 24 passed.

Clause 25.

Mrs REDMOND: I have one question. I understand the nature of the application that has been made: if we are going to vary an order by extending it beyond 72 hours and so on, and that there might be some need for urgency. As I read it, it struck me that there could be a possibility of mischievousness given that, under subclause (5), an application to the court may be made and dealt with by a magistrate by telephone. The applicant must inform the magistrate of the applicant's name and rank and if he or she is a senior police officer.

It does not take a great imagination to think of certain circumstances where, for instance, a member of one bikie gang might impersonate a member of another organisation altogether and say to a magistrate, 'Well, I am so and so of such and such a rank', because some of that information would be relatively readily available. Is the Attorney confident that this provision is as tight as it needs to be to prevent any abuse?

The Hon. M.J. ATKINSON: Every night of the week, and all weekends, we have members of the magistracy rostered to take telephone applications. They are practised in dealing with these applications. In almost six years as Attorney-General—yes, it has been that long—

Mrs Redmond: It seems longer.

The Hon. M.J. ATKINSON: Does it? I have not heard of a case of a magistrate's being gulled. Believe me, if it happened, it would be up and down Gouger Street, and I would have heard it in the cafés and bars of that street, so I do not think it has happened yet. I do not doubt that it might happen but, as the member for Heysen says, our magistrates have a pretty good nose.

Clause passed.

Clauses 26 to 30 passed.

Clause 31.

Mrs REDMOND: I want to clarify the operation of this clause. Under clause 30, we have provision for service and notification of a public safety order. Clause 31 commences:

(1) Despite section 30, if a police officer—

it does not state 'senior police officer', so I assume that it is any commissioned police officer—

is satisfied that a public safety order (as made or varied) should become binding on a person as a matter of urgency—

(a) the officer may communicate the contents of the order—

as varied to the person, and on the information being communicated to the person the order will at that point be binding on the person.

First, I want to clarify that that provision applies only where an original order has in some way been made or varied—and that it applies only once there is actually an order that has been made by someone more senior—and that what is happening here is that any commissioned police officer is able to say, 'You are now bound by that order', even though there has been no service of the order. The police officer may not necessarily but could (by phone or something) have the details of what is supposed to be in the order. I want to clarify what this clause is aimed at doing.

The Hon. M.J. ATKINSON: The answer is yes. It may be that two gangs are on their way towards each other and that a police officer feels, on good grounds, that there is a need to alter an existing order to stop the oncoming clash. This is a provision to allow him to act.

Mrs REDMOND: At its broadest, subclause (2) seems to me to allow, for instance, an officer to issue that sort of order verbally—

The Hon. M.J. Atkinson: It should be 'orally'.

Mrs REDMOND: I think you will find that 'verbally' is all right in that circumstance—on, say, a Friday morning but, if it came up in a couple of weeks' time when we have a public holiday, the person would not necessarily get a written copy of it until the following Tuesday. I take it that that is the intention: it can be issued and simply communicated orally—or verbally—and that they will not necessarily see a copy of it for some days afterwards.

The Hon. M.J. ATKINSON: Yes.

Clause passed.

Clause 32 passed.

Clause 33.

Mrs REDMOND: I have a question (and it may be a bit of a comment) about this clause. I am sorry that the member for Stuart is not present in the chamber, as I seem to remember that in the earlier part of this debate he informed the house of a wonderful experience he had had recently when he was pulled over by a young police officer while he was travelling around the countryside on, I think, Australia Day.

I am a bit concerned about the empowerment of the police to stop and search a vehicle. I have no difficulty with that, provided they suspect on reasonable grounds. The first part of the question is: I know that this is a similar sort of provision to what we have in other legislation, but is there any case law in this state about the police satisfying the court of their reasonable grounds?

For example, we seem to have a lot of drug labs that are accidentally found by the police because they happened to be passing by when they were off duty and they sniffed something in the air, had their suspicion aroused in that way, and uncovered a clandestine drug house. I wonder whether there is some case law about that provision. Perhaps the Attorney can answer that question first.

The Hon. M.J. ATKINSON: There is much case law. I cannot think of the name of any cases, but we shall collect some and send them to the member for Heysen's Stirling office.

Mrs REDMOND: The real concern I want to express is that, in terms of penalty, this seems to have a remarkably high maximum—imprisonment for five years—the same penalty as for breach of a control order. That just seems to me to be a little over the top given that the essence of this provision is really a stop and search of a car.

Given the case law, provided the officer can establish that they had reasonable grounds to stop and search, in respect of failure to cooperate—and I imagine that there could be members of the community who might fail to cooperate with police simply stopping them and telling them they had a suspicion and wanted to search their vehicle—it seems to me to be a very heavy maximum penalty for that particular offence where I think there is far more likelihood that mistakes could be made than would be reasonable when you compare it with other sorts of offences such as breach of a control order.

The Hon. M.J. ATKINSON: Our experience of the gangs is that, if the penalties were not uniform, they would go for the lowest penalty. In this case, it is obstructing a search. They would obstruct the search because that is the weakest point in the legislation and they would take two years rather than five. That is our experience of the gangs.

These are people who require of candidates for membership that they commit serious criminal offences to become a full member. They would choose the lowest penalty and that might be obstructing the search, so we are trying to make the penalties the same. The other thing to mention is that, given our backlog in the District Court and the workload of the Office of the Director of Public Prosecutions, we have said that, under this bill, these offences can be prosecuted as summary offences even if the term of imprisonment is higher than two years. Watch this space; this is a harbinger.

Clause passed.

Clause 34 passed.

Clause 35.

Mrs REDMOND: I have a question that concerns subclause (3) which provides that:

(3) A person who—

(a) has a criminal conviction (against the law of this state or another jurisdiction) of the kind prescribed by regulation; and—

presumably they will be fairly similar and reasonably serious offences—

(b) associates, on not less than 6 occasions during a period of 12 months, with another person who has such a criminal conviction,

is guilty of an offence.

Again my question is in two parts. First, how will we know the criminal records of the people? Is there already a database which enables us to know of every person who is in this state even temporarily what their criminal history is around the country? Secondly, how is the person who is being accused of that offence meant to know?

The Hon. M.J. ATKINSON: The so-called innocent or less culpable party would be required by this provision to know of the criminality of the other party. That is a requirement. As I said earlier in response to a question by the member for Mitchell the police would warn before they prosecute.

Mrs REDMOND: I am comforted by the fact that the police would warn before they prosecute, but it seems to me that there is, in this particular provision, a real risk (notwithstanding subclause (4)) that someone could associate and be found to have been reckless as to whether or not the person with whom they were associating had the requisite criminal past. I can well imagine that there could be people who would be nervous, to say the least, about inquiring as to the criminal history of the person with whom they were associating.

The Hon. M.J. ATKINSON: It would be an awfully difficult job for the police to prove unless they had some evidence that the person knew or could not but have known; for instance, that one party served time in prison with the other party. Unless there is proof, there will not be an offence.

Mrs REDMOND: I thank the Attorney for that answer, and I am quite satisfied that, in that sort of circumstance, that is where this is directed. However, what if you had, for instance, a relatively innocent person who was associating with someone who wore a Hell's Angels or Gypsy Jokers or Finks or whatever paraphernalia and jacket? It seems to me that an ordinary reading of subclause (4) would mean that if they did not make the inquiry—and they may well be nervous about making the inquiry—that they would then be found to be reckless as to the fact and could be caught by the provision. I want to be clear about just who potentially can be caught. We are all agreed about who the bad guys are whom we want to catch; it is whether we accidentally catch the innocent.

The Hon. M.J. ATKINSON: Yes, I agree, but in the example the member for Heysen cites of the gang member being in uniform, and bearing in mind all the exemptions of work, commerce, family, supply of services and reasonableness, it could be a matter of, once the warning is made, 'Do it again and you're in trouble.'

Mrs REDMOND: There are then some exemptions of the types of associations that can be disregarded such as associations between close family members and lawful business associates. Then there is a definition in subclause (11) of a person being a close family member of another person if they are a spouse or domestic partner, a parent, step-parent or grandparent; a child, stepchild or grandchild; a guardian or carer; or a brother, sister, step-brother or step-sister. I wonder whether any consideration was given to including someone recognised in indigenous communities as having a kinship relation, because in indigenous communities clearly the concept of family can be somewhat different from that which we would recognise but would nevertheless be recognised within their kinship groups as a close family member, while not necessarily falling within the provisions of subclause (11).

I just wonder whether that was contemplated in the drafting of the section? I am not aware of the indigenous community being at all involved with bikie gangs, recognising that their involvement in our criminal processes is largely unrelated to gang and organisational activities, but I wonder whether it is something that the Attorney would be minded to consider just because, in every other piece of legislation that we deal with, it appears that we do recognise kinship relationships rather than simply the legal relationships we are talking about in this section.

The Hon. M.J. ATKINSON: We believe in equality before the law.

Clause passed.

Clauses 36 and 37 passed.

Clause 38.

Mrs REDMOND: I move:

Page 23, line 12—Delete 'fifth' and substitute 'fourth'.

I will use this amendment as a test amendment. We felt it would be appropriate to bring the sunset clause back from 10 years to five years. In light of that, it would make no sense to have a review at the 5th anniversary if it is intended to expire the act at the 5th anniversary.

The Hon. M.J. ATKINSON: I think I predicted to Channel 7 that, given these powers, by the end of next year (2009) the police would make quite a lot of progress against the outlaw gangs and that the gangs may well be a shadow of themselves. Perhaps that is a bit optimistic—and, of course, we have more legislation to come—but I would like the act to operate for the longer period. It is only at the end of that longer period that I think we could confidently accept with equanimity its sunsetting. If we do it sooner, having cleared some of the gangs from South Australia and many of their troops and frightened others out of the gangs owing to the consequences, it would seem a pity to let them back in after only five years.

Amendment negatived; clause passed.

Clause 39.

Mrs REDMOND: I move:

Page 23, line 23—Delete '10 years' and substitute '5 years'.

Amendment negatived; clause passed.

Clause 40 passed.

Clause 41.

Mrs REDMOND: I have already spoken on this topic. We canvassed it comprehensively when we dealt with clause 13 when we resumed this debate this afternoon. I do not intend to speak to it again. I simply move:

Page 24—

After line 4—After subclause (1) insert:

(1a) Proceedings may be instituted by a member of a declared organisation for judicial review of the declaration made under Part 2 in relation to the organisation (and in any invalidity or illegality of the declaration).

Line 5—Delete 'The' and substitute:

Except as provided in subsection (1a), the

These amendments to clause 41 seek to put in some judicial review provision.

Amendments negatived; clause passed.

Clauses 42 and 43 passed.

Schedule 1.

Mrs REDMOND: This is the only further comment I want to make on the bill during committee. Whilst I appreciate the intention of the provisions of sections 248 and 250 of the legislation, it always seemed to me when I dealt with orders in terms of Family Court and people getting police to issue orders against husbands who might have their wives living in fear, and so on, that little bits of paper do very little to control behaviour. I just wonder to what extent the Attorney is confident that the new sections will have any real effect on the behaviour of members of, for instance, an outlaw motorcycle gang who do take it into their minds to seek physical reprisal against public officers or judicial officers?

The Hon. M.J. ATKINSON: It is an attempted preventive approach to give judges, coppers and, more importantly, people (laymen) who participate as witnesses or jurors confidence to participate in the justice system. We are doing what we can, and I know that the Police Association in particular requested this kind of provision.

Schedule passed.

Clause 39—reconsidered.

Mr HANNA: I move:

Page 23, line 23—Delete '10 years after the date on which this section' and substitute:

two years after the date on which Part 1

Mr HANNA: I thank the Attorney-General for his cooperation in this matter and the opportunity to move the amendment standing in my name to clause 39. As a result of the concerns that have been outlined by the Liberal opposition and by me in relation to the rights of innocent people and this legislation, I believe that an appropriate safeguard would be for a sunset clause to have this bill expire after just two years. It seems to me that, because the legislation has been some time in formulation and it has been publicly available to the police and others for some months now, the police should be ready to respond swiftly once the legislation is through parliament. It seems to me then that within two years the good work of the bill, to the extent that it achieves its objectives, should be achieved. I put that proposition that the sunset provision should allow for expiry after two years.

Mrs REDMOND: Again, I indicate that the opposition took a great deal of time considering the proposal by the member for Mitchell; and, to some extent, we were minded to accept his proposal because, as he knows, we moved an amendment seeking a five-year sunset clause. We thought about it long and hard and discussed it at considerable length because there is, I think, a good deal of merit in having a shorter than a 10-year sunset provision, if you are going to have a sunset provision at all. Ultimately, we felt that two years probably was not quite long enough to assess whether the impact of this bill has been sufficient, well targeted enough and achieving its outcomes. We decided that, in fact, we needed to have a little longer than the suggestion of the member for Mitchell. Unfortunately, we will not be supporting the amendment.

The Hon. M.J. ATKINSON: I concur.

Amendment negatived; clause passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs) (17:45): I move:

That this bill be now read a third time.

I thank the policy and legislation people from the Attorney-General's Department. I thank parliamentary counsel. I thank the police and all who have worked on this bill, and I thank the members for Heysen and Mitchell who have given this bill the scrutiny it deserved clause by clause. I acknowledge that the members for Heysen and Mitchell do that without the secretarial support that I have, and I commend them for their diligence.

Bill read a third time and passed.


At 17:46 the house adjourned until Wednesday 27 February 2008 at 11:00.

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