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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-02-05 Daily Xml
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MOTORCYCLE GANGS

The Hon. P.L. WHITE (Taylor) (14:23): Can the Attorney-General inform the house about a recent High Court decision and its implications for the Rann government's attack on criminal motorcycle gangs?

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (14:24): I can. On Monday, the full bench of the High Court unanimously (seven-nil) dismissed an appeal by K-Generation Pty Ltd from the Supreme Court of South Australia. K-Generation had argued that it is not constitutional for legislation to require a court to consider criminal intelligence without disclosing it to all parties to the matter.

Criminal intelligence is defined to mean 'information relating to actual or suspected criminal activity, whether in this state or elsewhere, the disclosure of which could reasonably be expected to prejudice criminal investigations or to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement'.

Ms Chapman: When are you going to outlaw the Finks?

The Hon. M.J. ATKINSON: The member for Bragg interjects: 'Have you outlawed the Finks yet?'

An honourable member: When are you?

The Hon. M.J. ATKINSON: No, she interjects: 'Have you outlawed the Finks yet?'

An honourable member: No, she didn't; she said 'when'.

The Hon. M.J. ATKINSON: It would be peculiar—

Ms Chapman interjecting:

The SPEAKER: Order!

The Hon. M.J. ATKINSON: It would be peculiar if I had moved to declare the Finks before the period for them to respond to the police's case against them.

Ms Chapman: They would love to do it!

The Hon. M.J. ATKINSON: The member for Bragg interjects 'rubbish'. This morning we heard from the Liberal opposition, in particular from the member for MacKillop, how the government should consult properly.

Mr PENGILLY: I take a point of order, sir.

Members interjecting:

The SPEAKER: A point of order, the member for Finniss.

Mr PENGILLY: The question is relevance to the question that was asked.

The SPEAKER: Order! The question was about outlaw motorcycle gangs, and the Attorney-General seems to be addressing that very topic.

The Hon. M.J. ATKINSON: The member for MacKillop wants a proper consultation and congratulates me during my ministerial statement for a proper consultation. In accordance with natural justice—

Members interjecting:

The SPEAKER: Order!

The Hon. M.J. ATKINSON: In accordance with natural justice and the rule of law and incumbent on me as the first law officer of the state, I have had the Crown Solicitor's Office write to the Finks and put to them directly the allegations made about them by the police. Here is the member for Bragg, as spokesman on this legal matter for the parliamentary Liberal Party, saying, 'Declare them; outlaw them', before they have even had time to respond. The provision in dispute is section 28A of the Liquor Licensing Act.

Ms Chapman interjecting:

The SPEAKER: The Deputy Leader of the Opposition is warned.

The Hon. M.J. ATKINSON: Relevantly, subsection (1) of that section provides:

No information provided by the Commissioner of Police to the commissioner [and there the law means Liquor and Gambling Commissioner] may be disclosed to any person except the minister, a court or a person to whom the Commissioner of Police authorises its disclosure if the information is classified by the Commissioner of Police as criminal intelligence.

In October 2005, K-Generation Pty Ltd applied to the SA Liquor and Gambling Commissioner for an entertainment venue licence for a proposed karaoke club on King William Street to be called Sky Lounge KTV. The Police Commissioner intervened, making submissions about whether the applicants, Mr Genargi Krasnov and his partner, Ms Adeline Tay, were fit and proper persons to hold the licence.

The Police Commissioner's submissions included criminal intelligence material, and this material (some of it) was not disclosed to K-Generation. K-Generation argued that the submission of criminal intelligence material stripped the Licensing Court of the reality and appearance of a court of open justice. K-Generation also argued that, by concealing criminal intelligence from it, it was not afforded procedural fairness. That is an argument in the public domain which is embraced by the Democrats, the Greens and the member for Mitchell.

The High Court found that the requirement for South Australian courts to maintain confidentiality of criminal intelligence about an applicant for a liquor licence does not diminish the courts' institutional integrity, impartiality or independence. That is the argument of the member for Mitchell and others shot down in flames.

Mr Hanna interjecting:

The Hon. M.J. ATKINSON: The member for Mitchell, annoyed by the result in the High Court, says that I would not know, but seven justices of the High Court do know and they have ruled against him.

The use of criminal intelligence in judicial proceedings is vital to the delivery of justice and the protection of the public from criminal elements in our society. It is nonsensical to argue that the confidentiality of the criminal intelligence ought to be compromised by requiring it be revealed to the very persons whom it concerns.

The decision in K-Generation and Genargi Krasnov v Liquor Licensing Court and Commissioner of South Australia Police is an important one for the government as it also tends to support similar provisions allowing the use of confidential criminal intelligence evidence before the state's courts in other areas. In particular, the judgment supports other similar provisions in our tough new laws combating serious and organised crime and outlaw motorcycle gang infiltration of the ranks of doormen, bouncers or crowd controllers—call them what you will—at nightclubs.

This High Court case reinforces an important tool in the government's task of securing public safety. There was sensationalist speculation from some small sections of the media—very small in circulation—that an adverse decision in this case would somehow bring the government's strategy crashing down. That frequent publisher of information recklessly indifferent to whether it is true or not—I refer to Mr Hendrik Gout of the so-called Independent Weekly—wrote on 30 May last year:

The enormous implications mean SA's new Serious and Organised Crime Act—the notorious Bikies Bill—could be heading for a shredding.

The article also posed the likelihood that an adverse result in the High Court would diminish the nation's anti-terror laws. The Rann government has never believed that an adverse result would have such a dramatic effect as that suggested in the advocacy writing of Hendrik Gout. We have always been, and remain, quietly confident that our laws would withstand legal challenge.

The High Court—much to Mr Gout's disappointment, I am sure—has instead delivered the opposite result to that forecast by the so-called Independent Weekly: a seven-nil judgment—a unanimous judgment including Justice Michael Kirby supporting the Rann government's case. The High Court decision reinforces the legitimacy of the Rann government's tough stance and the groundbreaking measures that we are employing to deal with this menace to society.

Ms Chapman interjecting:

The Hon. M.J. ATKINSON: I'm sorry, I didn't quite catch the member for Bragg, whose previous interjections have included that Bevan Spencer von Einem should not be DNA tested. Mr Gout also wrote in that same article that:

SA's punitive Serious Crime Act also forces courts to try people who don't know what evidence is real or has been fabricated against them. Innocent people can be subject to draconian control orders enforced by the courts and organisations effectively outlawed on spurious grounds.

The Rann government does not apologise for the tough and—as described by some commentators—draconian laws we have established for dealing with serious and organised crime. However, we will fulfil our legal obligations and give natural justice even to the Finks, despite the member for Bragg—in complete contradiction of the member for Heysen yesterday—telling us that we should adjudicate this matter without even considering the Finks' reply, that we should make a decision before the period for consultation has closed.

To go so far as Hendrik Gout does and accuse the police of corruption or fabricating evidence, or say that courts will fail to fulfil the rule of law by issuing orders on spurious grounds without a substratum of fact, is nothing more than muckraking. One must always prepare for reading one of Mr Gout's articles by a period of sober reflection: one's consciousness should not be impaired. I would urge Mr Gout and all those interested in this matter to read the judgment of the High Court, which can be accessed from the High Court website at www.highcourt.gov.au. They will find there a fascinating story in this judgment and that is one of reassurance to the South Australian public that the state can take and is taking measures to protect its citizens from dangerous criminal threats.

But, you know, I am not expecting The Independent Weekly to run anything about the K-Generation case. I imagine they will treat it rather as Pravda did certain events in Russia. I am pleased with the High Court's decision. The Solicitor-General, Martin Hinton QC, intervened in the case on my behalf as Attorney-General to support the parliament's law. I congratulate the Solicitor-General on his first major success in his new role. South Australia is fortunate to continue to have individuals of the highest calibre in the role of Solicitor-General. The attorneys-general—

Members interjecting:

The SPEAKER: Order!

Mr PISONI: Mr Speaker, I rise on a point of order. Members of the government are laughing at the Attorney-General. I find it offensive.

The SPEAKER: There is no point of order.

Mr PISONI: We like to laugh at him from this side, sir.

The SPEAKER: Order! The member for Unley will take his seat. There is no point of order.

The Hon. M.J. ATKINSON: I don't want to be put off by the field marshal of Frome. The attorneys-general of Western Australia, New South Wales, Victoria, Queensland and the commonwealth also intervened, recognising the importance of ensuring decision-makers are able to access criminal intelligence in appropriate circumstances to those about whom the intelligence is submitted. The full case can be accessed from the High Court website, and I note that this judgment was delivered on Justice Kirby's last day on the bench and I wish him well in retirement.

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