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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-10-13 Daily Xml
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Ministerial Statement

SERIOUS AND ORGANISED CRIME (CONTROL) ACT REVIEW

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (12:59): I seek leave to make a ministerial statement.

Leave granted.

The Hon. M.J. ATKINSON: Today I table the Independent Review on the Operation of the Serious and Organised Crime (Control) Act 2008. On Thursday, 14 May I announced in this place that I declared the Finks Motorcycle Club under the Rann government's Serious and Organised Crime (Control) Act, because I had formed the view, after considering the evidence put before me by South Australia Police, that members of the Finks 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 in this state.

On Thursday 18 June, I announced in this place that retired District Court judge Mr Alan Moss would conduct the review of the exercise of powers under the Serious and Organised Crime (Control) Act 2008, as per the requirements of part 6 of the act. I have now received this review and I feel it is important to provide the house with a detailed summary of it before laying this report on the table in this and the other place. In his report, Mr Moss states:

I consider that that conclusion was open to him upon the material which was properly before him.

In his report, Mr Moss made eight findings, which state:

There was only one application made by the Police Commissioner during the review of 4 September 2008 to 30 June 2009 and that was for the Finks Motorcycle Club operating in South Australia.

That application was based upon information that was generally reliable, although assessment of the weight of evidence might vary.

Random checks showed that the Assistant Commissioner's various declarations and the Commissioner's submission were consistent with material contained in the files of individual members.

The Commissioner's classification of criminal intelligence was in accordance with accepted standards. Adequate reasons were given for all such classifications.

Random checks of source criminal intelligence material showed consistency with the reasons for classification.

The Attorney-General approached his decision making...in a manner befitting an administrator faced with an important decision potentially affecting the rights of individual citizens, in that he approached the task fairly and responsibly, was not biased, correctly interpreted and applied the law, only relied upon material that was properly before him and made a decision that was reasonably open upon the evidence and material before him.

Twelve control orders were applied for in the period in review; and

The exercise of discretion in deciding to apply for those control orders was within the limits contemplated by the act.

In his report, Mr Moss comments on the 'unashamedly tough' laws, but he states:

Obviously the situation offends the rules of natural justice, which require that a person be informed of the allegations against him and have the opportunity to refute those allegations. The answer, for the purpose of the review, is that that is what parliament intended and the purpose of this review is to ameliorate any potential injustices.

Speaking about the potential bias, Mr Moss said:

This built-in bias is inherent in the construct of the act and cannot be avoided.

However, further in his report, Mr Moss states:

During my interview with the Attorney-General, I raised with him the question of bias. The Attorney-General asserted that he was not actually biased and I accept that to be the case. He did however agree that his political public utterances might give rise to an appearance of apparent bias such that, if they had been made by a judicial officer, then that person would be disqualified from hearing the matter. On the issue of apparent bias the Attorney-General made the following observations:

Before the application he had no idea which, if any, group might be the subject of an application under the act and he had no particular knowledge, or preconception, about any particular group.

The information supporting the application was completely new to him and he had not previously been aware of any particular allegation.

His conscientious consideration of the application militates against any suggestion of bias; witness his approach to the question of classification and public interest immunity.

He wished to make any decision in a way that would withstand judicial review.

He was aware he was administering 'draconian' legislation and wished the process to be seen to be as fair and impartial as possible so that the community might have confidence in it. He had relied upon the advice of the Solicitor-General, who is an independent statutory officer, while on the other hand he had deliberately avoided advice from the Crown Solicitor's Serious and Organised Crime Unit, which he considered to have the role of advising the Commissioner.

In his report Mr Moss also discusses the extent of the review process, saying:

The review process is quite a powerful tool. It needs to be because it stands in substitution for the judicial process, which would normally determine proceedings of this kind. Not that the review is in any sense a judicial process.

Coming to one of the most important aspects of the review, which is discussion about my reasoning, Mr Moss states:

In his publication process the Attorney-General actually went much further than required by the act.

He goes on to say:

I essentially undertook the same process and would have reached the same conclusion. The Attorney-General did not, as I did, make a check against the original source material. While I considered it was important for me, as the reviewer, to do that, it was not necessary for the Attorney-General to do so. In the absence of some powerful indication to the contrary, he was entitled to rely upon the sworn declarations of the Assistant Commissioner.

I would like to thank Mr Moss for his extensive review of the execution of powers under the Serious and Organised Crime (Control) Act 2008. It is pleasing that a retired judge has analysed this process. The house would be aware that on 25 September 2009 a majority of the full court of the Supreme Court of South Australia handed down its position in the matter of Totani & Another v The State of South Australia, wherein the constitutional validity of sections of the Serious and Organised Crime (Control) Act 2008 were challenged. The judgment of justices Bleby and Kelly in this manner, with Justice White dissenting, invalidated section 14(1) of the act.

I have sought advice from the Solicitor-General about the full court's finding in this matter. Based on that advice, I have now decided to appeal the full court's decision in the matter of Totani to our country's highest court, the High Court of Australia. I have instructed the Solicitor-General to proceed with an application for special leave to appeal this matter in the High Court.

It is a certainty that, had the Finks lost the Supreme Court appeal, they would have appealed to the High Court, and it is possible that, pending that appeal, the magistrates would have suspended the operation of the control orders. The state of South Australia is not much worse off for losing the first appeal. Indeed, the courts can still make control orders under section 14(2) of the Serious and Organised Crime (Control) Act 2008. I am advised by the Solicitor-General that, with section 14(2) still valid, it is open for the Commissioner of Police to continue to seek control orders, and it is a matter for the courts to decide whether to make them.

The Solicitor-General has advised me that an appeal to the High Court would have reasonable prospects of success. The majority judgment in Totani rendered invalid only one subsection of the Serious and Organised Crime (Control) Act 2008. With the rest of the act intact and with Mr Moss's positive independent review of the operation of the declaration process that I carried out for the declaration of the Finks motorcycle gang, I remain steadfast in my conviction that this legislation is necessary and appropriate for the curbing of organised crime in South Australia.


[Sitting suspended from 13:09 to 14:00]


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