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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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SERIOUS AND ORGANISED CRIME (CONTROL) (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

The SPEAKER: Member for Bragg, the floor is yours again.

Ms CHAPMAN (Bragg) (16:00): Always accommodating of the Premier, of course. As I was saying, the Liberal opposition has established an anti-gang task force which commenced operation yesterday. It comprises the shadow attorney-general, Hon. Stephen Wade of another place, the member for Morphett, who is our shadow minister for police, and myself as the spokesperson in the House of Assembly on law and order matters. Yesterday we took some evidence—as I said yesterday, 'evidence' is probably a little high, there is nothing on oath—we took submissions from the first witness to present, and it is proposed that there will be a continuation of the hearing early next week.

The establishment of this is to do a number of things. One is for the opposition to consult as widely as we can in the limited time that we have. Again, I think for the sake of the record in this debate, it is a repeat from yesterday's bill, and that is because we have committed to the passage of this bill through this place. We do not wish to hold up the legislation in this place. We accept that, given the truncation of the approach of the government and its application that this be dealt with urgently, and we have acceded to that so we will not hold up the debate in this place. We will undertake our own investigations during the adjournment before it comes to the other place and, so, for that reason, we have established this as quickly as possible.

I said yesterday and I repeat, the disclosure by the government on its website of the submissions presented on this bill, together with the bill we dealt with yesterday, is welcomed. It is a fine standard. It is a new and good precedent which I hope the government continues, because clearly it is important that there be full transparency on this legislation, not only for the opposition but also for other members of parliament to be able to view and comment on, and to aid them in their deliberations here in parliament.

It is also important for the public. They must also have an opportunity to be fully apprised of the issues. The issues in this case are complex. There are legal constitutional aspects. There are very significant human rights and civil rights issues, and there are certainly aspects that have captured the attention of the High Court already in relation to these models or strategies of approach legislatively dealing with organised crime. The public are entitled to have as much information as possible, especially from those who are vested with the responsibility as spokespersons in the law and order area.

Again, I confirm my disappointment, however, that we have not had an opportunity to view the crown law advice and the full legal advice that the government has relied on. The minister has previously indicated that he has not just relied on specific advice of the Solicitor-General or the Crown Solicitor's Office or the Director of Public Prosecutions. I think as he described it, in taking advice on this matter, it also took the form of long meetings.

In fact, there seemed to be a number of long meetings in which, clause by clause, the matters were discussed with a variety of these legal advisers. There were questioned raised, including questions of whether they would stand up in the High Court; that is, the scrutiny of constitutional challenge, the effectiveness, etc. It is through this process, as I understand the Attorney's answers yesterday, that at least he was satisfied, in the end, that what we have before us would stand up to scrutiny, to the extent that he was able to.

In fact, it seems that so confident is he that is the case that he implored the opposition to not try to tamper with the document; that is, not try to tinker around the edges (I think was his description), not try to cherrypick out amendments that might unravel that position. The consultation had been thorough, the advice had been extensive and the deliberation had been very careful, and on that basis the Attorney was asking us not to cause any difficulty with this by amending it. On the latter aspect, I cannot say that the opposition is prepared to simply take his word for that. We have a responsibility to look into this. We have committed to the government to support the prompt passage of this bill but we will not abrogate our responsibility in any way. We will do the best we can to ensure the integrity of the legislation.

I will say that the purpose (particularly) of considering any amendment of this bill, noting all of the research and work that has been undertaken by the Attorney and his advisers, our objective is to do three things. One, which is the obvious, is to enhance the prospect of the bill being effective in controlling serious and organised crime. In that regard, given the answers we received yesterday, it is a bit of a hopeful expectation that that might be the case. It seems as though there is not much data around about whether this type of legislation works, and I will raise that in the committee stage. We are prepared to give this a go, but we want to be assured that is going to be an outcome.

We also want to ensure that the legislation is targeted to criminal organisations and does not unnecessarily impact on law-abiding South Australians. This is something that I raised in the previous bill; that is, that if there is sloppy drafting to the extent of too broad definitions and the like, then we do not wish what is a pretty draconian set of new rules, which may well be justified for hardened criminals in organised crime, to capture ordinary people who, for whatever reason, breach the law and of whom we have given considered determination here in the laws as to what is appropriate in the rules to which they are prosecuted and of which they are tried and, further, the sentencing that applies if they are guilty.

We will not simply allow legislation to go through that we would see would unreasonably capture those people and place an onus on them to have to go into the expensive court arena to protect their ordinary civil rights. We simply will not stand by and allow that. We want to make sure that as best as possible the definitions are clear, confined and effective.

The third thing is to minimise the risk that the legislation is unconstitutional, so that the litigation does not impair the implementation of the scheme and the taxpayer is not then put to unnecessary legal costs. It is probably in the knowledge of the Attorney—I would be surprised if he was not informed of this, given the enormous amount of publicity surrounding members of organised crime gangs—who celebrated openly and publicly after the handing down of the Totani judgement.

It was quite obvious that they were overjoyed that they had had a victory against us all here in the parliament, but against the government in particular, who had pressed ahead with not just the legislation but also with the declaration of one of the members of a particular organised motorcycle gang.

The air of celebration in the community of criminals in this state was palpable; it was humiliating, and we cannot revisit that. They have had their great day, they have gone out and celebrated, they have mocked the parliamentary determination, and they have rubbed the government's nose—and particularly the nose of the then attorney-general—in the judgment.

Whilst the former attorney-general came out, as I recall, in a rather poor attempt—nevertheless it was quite courageous to come out—to espouse all the benefits, attributes and wisdom that was published in the dissenting judge's determination, the reality was that the other six were not with them. The other six judges made it quite clear that the government got it wrong, and that the application would therefore fail.

It was a really dark day, I think, in the parliamentary process, but particularly embarrassing given the government's insistence that it proceed. So, we are keen to make sure that, as much as possible, and with what resources we have, we do not give them another chance to rub the face of the law in this state in the ground as a result of that.

Coming to what would have no doubt escaped the attention of the Attorney, and that was the assertion of the time—I think it was by representatives of the person declared to be a member—that not only had they won this High Court appeal on that issue, but that they had other issues on that legislation that they were ready to argue on.

That in itself is a concern, because sometimes what happens, as members would know, is that when superior courts (particularly appeal courts) hear cases, they obviously have a responsibility to make a determination on the facts of the case before them, but they have the opportunity to make other statements about their view or interpretation of pieces of legislation or common law which may apply more generally or in another aspect which is not directly before them for consideration. This is what lawyers refer to as obiter dicta.

That is often very helpful to us here as legislators, and obviously to other persons advising on other cases, where that particular issue may not come up, but you have an opportunity to consider other aspects—the judge of the full court does that, and it gives some clarity for those who are working in both law enforcement and advice in the judiciary and subsequent cases.

We are mindful of the fact that, in the Totani case, the High Court chose—as they are entitled to do, of course—to really just deal with the issues pertinent to the application before it, and if there were other areas of which the legal advisers to members of organised crime gangs are ready to run on, then that is of concern to us, because we may have to go through more and more court cases before we ever get the effectiveness known, hopefully positively, of this type of legislation.

I mentioned earlier that contemporaneous with South Australia dealing with this bill has been the introduction and consideration by Western Australia and New South Wales of what they are doing. The bills in those other jurisdictions are similar in that they are anti-association legislation, but the South Australian bill is significantly broader than the other bills, and we would suggest, in fact, that there is much significant potential there to affect the law-abiding citizens and infringe constitutional provisions.

If we are right, then we are much more vulnerable to come under attack down the track in the High Court or some other forum. The Western Australian and New South Wales' bills, for example, only make it an offence for members and associates of a criminal organisation and/or people subject to orders to associate with one another. The South Australian act as amended would make it an offence for any person to associate with a member of a declared organisation or a person the subject of a control order, or for two people with a criminal history to associate.

The South Australian model, which we have now before us, is much more expansive, is much broader, than the other two models in the other jurisdictions. There are some other distinctive aspects, and I will come to those in a minute. Can I say this: yesterday when we dealt with what we called the 'offences' bill that passed with our support, I said that I was concerned about the delay in the implementation of this package by the government.

I think it is fair to say that the government's explanation is twofold: one is that if it had rushed into the arena—back in here—to introduce new legislation post Totani's case, it would not have had the benefit of being able to deal with the New South Wales' decision which dealt with another aspect of this type of legislation, namely, the need to publish reasons by the determining party—in this case a judge—of whether a declaration was made, and there is some merit to that. That did not come through until, I think, mid 2011.

After that they wanted to make absolutely sure that they were going to get it right, and one way of doing that was to ensure that they would meet with other colleagues around the country who are also grappling with the best way to deal with this, and that, as much as possible, they would be in harmony with each other so that they would make sure they got it right. This was one of the key explanations of the Attorney as to the delay of progressing this, that is, 'Let's just make sure that we're all going to be working on this together across the country; that we all get it right and that we have some harmonisation about what we're going to proceed with.' Well, what rubbish!

The reality is that South Australia has gone off on its own. South Australia's model is different from the other two models—markedly different from the other two models. Are we worried in the opposition about this kind of attempt to be out there as bigger and better and first and world beating? The usual puffing of the chest that happened in the previous administration under former premier Rann is just being perpetuated, and that leaves us vulnerable again. Instead of actually coming to a landing with others around the country so that they can confidently move forward with some kind of agreed position, oh, no, sure enough, here we are again, out at the front.

Apparently this is going to be better. This is going to be a new approach and they are going to be stronger and better and more effective, and so on, but they risk further challenge and they risk capturing people who should not be caught under this legislation. That is the reality of it.

What concerns the opposition is that they come in with excuses about why they are delayed, because of harmony and of having some kind of model that will work, yet what we have is something very different from New South Wales and Western Australia. We do not have to be the same as New South Wales. We could be more conservative in the approach we take on it if we wanted to be, but the Attorney-General cannot come in here and use this as an excuse and then present to us a model which is clearly very different from those other states.

There are other differences in South Australia, the first being that, here, the definition of serious criminal activity is any offence which would lead to imprisonment, that is, assault. Western Australia and New South Wales require that the penalty be five years' imprisonment or more. There may be a good case for not having the five-year imprisonment threshold in this jurisdiction, but even the person who has no contact at all with the criminal world or criminal justice in this state would understand that there is a very significant number of offences that we have that are above the five years and a lot more that are under the five years.

The reason for that is pretty obvious: if we have significant incarceration of people as a penalty, it is for the more serious offences such as bushfire lighting, murders and robberies. Everything that is serious, that we treat seriously, we obviously have very significant maximum imprisonment terms. So, when we are talking about serious criminal activity, we are not talking about the other states where the penalty is less than five years. They have set that as their threshold. We do not have any at all. We do not have that requirement of years of imprisonment.

The second significant difference is the inclusion of the mandatory elements of orders which may represent some constitutional risk. I have canvassed some of these in the other debate as well but, where you remove discretion, where you remove what would be seen as the normal rights and procedures for trials for the defendant, you are open to risk. That same requirement is not in the New South Wales or Western Australia legislation. Some of these do not feature at all there. It concerns us that we place ourselves at risk because of that.

The other aspect which is quite interesting—and it tells you, I think, a lot about the priorities of this government—is that the legislation here will fully apply to, and have absolutely no allowances for, minors, that is, children. The Attorney-General might take the view that if a 14-year old is tied up in organised crime, he or she has to be dealt with in exactly the same manner as anyone else.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: Well, the Attorney talks about the association that a minor might have with some of these gangs but let's be in the real world here: there are children of the hardened group that we are trying to approach. They have children, partners, husbands and wives, and we also have another pool of children in the community who do not have, for whatever reason, the support and protection of an upbringing or a family environment or even, indeed, a school environment, and that leads to them being on the streets or otherwise vulnerable to becoming involved in these types of groups.

Let us be in the real world about this. If a minor is a member of one of these gangs, that is an indictment, in my view, on the community. I am not going to give a long treatise today about the inadequacies of our school system. The management of bullying alone, and the lack of reporting, is worrying to me. We had another case here this week, when weeks passed before the minister even did anything about a bullying incident in one of our significant public high schools in the state.

I am not going to go on about the dereliction of duty, responsibility, or capacity that we find in some parents in their upbringing of children, but hardly a week goes by these days when we do not have a police report, a Families and Communities report or a Housing SA report of children who for one reason or another are taken into care or custody and exposed to appalling circumstances in their family arrangements.

Of course, we end up with children on the streets. I have sat on juvenile justice inquiries with the member for Fisher and our leader in this parliament, and it is quite clear that a number of our children are out there on the streets vulnerable to being picked up by these sorts of groups and enticed, induced, seduced into activity when they have not had the protection of the upbringing that so many of our other children enjoy in this state.

It does concern me that the government, rather than understanding this and acting, as they were strongly advised by the late Ted Mullighan QC, who was the commissioner of an inquiry into wards of the state, about the dangers of leaving these children on the street, I would be very pleased if the Attorney, as a relatively new Attorney, came into this place and told me about what he was going to do to ensure that minors do not get into these circumstances; but, no, we have not seen this.

However, what I will put on the record is my concern and also despair at the government's insistence on proceeding with higher offences for minors, contrary to United Nations recommendations and inconsistent with any other jurisdiction in Australia, that they introduced in this parliament previously.

Judge Peggy Hora, who came here as a Thinker in Residence, obviously set out her recommendations about what we should be doing with juvenile offenders, and one was not that we absolutely load them up with higher penalties to keep them incarcerated for longer periods. That was not her recommendation. She put some good recommendations, including the vigilant supervision of children who offend, particularly those who are on bail or parole, and the requirement for them to come back before a judicial officer, not just a social worker or a parole officer. She made some great recommendations. We still do not hear a lot about that.

It concerns me that here we are dealing with very serious changes to the law to deal with a very serious problem to manage 274 people who we know of out there in the community, who are in a circumstance where we want to be able to shut them down, or at least shut down their operations. That does concern me. I finally say on that aspect that it is not acceptable for the government to come in here and say, 'Look, we had to properly consider this. We wanted to confer with our other colleagues, and we have done that, but it took some time and we want to be consistent,' because that clearly is not the case.

Another aspect that is concerning to the opposition is that we already have some very significant laws which cover a number of these people. I am at a complete loss still as to why some of these have not been effected, implemented, applied.

Let me just start with the public safety orders. We have, under section 23 of the current legislation, power to prohibit a group from a specified area. In the two years since the operation of that act, only twice has that been used—only twice! That was an important tool in the tool pack that was going to be available for the management of these issues. Public safety orders, I would have thought, were a no-brainer. I cannot understand why we do not have 274 of them out there that list prohibitions in certain areas for all those we already know are members of gangs in this state.

Then we have the firearms prohibition orders. Under the Firearms Act, we have the amendments that passed a few years ago—again, back in 2008—for the power to issue firearms prohibition orders. I note that the amendments on the Firearms Act at that time required there to be a review of that legislation after two years and the two-year anniversary of that was November 2010. Today we finally received from the Minister for Police a copy of the firearms prohibition orders report that her government was actually obliged to—

The Hon. J.R. RAU: Point of order, Madam Speaker. This has gone on for quite a while. We have had dissertations about youth which are actually not relevant to the legislation because there are provisions there that actually talk about this which have been basically glossed over or ignored. We are now off on firearms.

I realise it is part of a package but we did cover this turf pretty well yesterday, and this is the control bill. This is the one about having declared organisations. I am interested to know what, if anything, the opposition has by way of constructive criticism of it. I am wanting to listen to that. If they are supporting it, I am interested in that, but most of what we have been going through for the last half an hour or so has little to do with this, and it is just not on point.

We might be better off in committee. If there are particular questions that need to be asked, let us deal with them there. A discourse about firearms, for example, is not really advancing us anywhere.

The SPEAKER: Yes, Deputy Premier, I think you do have a point of order there that I will uphold. Member for Bragg, can you get back to the substance of the legislation. You have been going for quite some time.

Ms CHAPMAN: I intend to go for a lot longer, Madam Speaker. I am not dissenting from your ruling about the firearms orders. What I will say is this: organised gangs, motorcycle groups, whatever you want to call them, use guns and my point is this—

The Hon. J.R. Rau: They use toothbrushes as well.

Ms CHAPMAN: Well, they may. Remember, it is the minister who has publicly and in here said repeatedly, 'This is a big package. We don't want you to tinker with it. We want all these things.' My point is this: we complied three years ago now with the former attorney's amendments to the Firearms Act and we supported the government in having firearms prohibition orders.

I will not go on about the process about what was to happen because you ruled on that, Madam Speaker, but what I say is this: they still use these guns and there has been an opportunity in those last two years for the government, through their law enforcement agencies—in this case, through the police—to actually issue these orders.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: No, no; it is to do with this because we are dealing the most serious crime, we are dealing with breaking down these gangs by anti-association law. What concerns me is that the thing that triggered this great response and coming into the parliament with this legislation this year was the shooting we saw here in January.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: We had statements by the Attorney-General at that stage about what action they were going to take. We had the police coming out saying that they had plenty of resources. We had—

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: Well, we had the DPP coming out saying that 'get tough' is not what it is about, it is 'get effective'. What we are saying is that we are happy to support this type of legislation, but we want you to act on it. So, if we give you powers over firearms prohibition orders, it is quite reasonable for us to ask the question: why have you not used it against the very people who are there?

What we do know now is that, over all of that time we have had, in that two years, we have had only 35 prohibition orders against outlaw motorcycle gang members. We have had a number of others; I do not know whether they are against fishermen using them, I do not know who have had them made against them. How can there be dozens of others who are more serious criminals in this state who have firearm prohibition orders against them, yet we have had hundreds of other members of the motorcycle gangs out there?

The Hon. J.R. RAU: Point of order, Madam Speaker. The honourable member was quite courteous yesterday and stuck to the point most of the time. Today, she is persisting in talking about a piece of legislation that is not before the parliament and is not a piece of legislation that is committed to me anyway. It is called the Firearms Act, and the relevant minister is the Minister for Police. I am not the minister for police.

Ms Chapman interjecting:

The Hon. J.R. RAU: You have been invited to go out there and do something about it. It might help the rest of her contribution: I am not a policeman, either.

The SPEAKER: I would also invite the member for Bragg to take up the Deputy Premier's offer, but perhaps some of this could be asked during the committee stage.

Ms CHAPMAN: I thank the Attorney for his indication of that. I had not acknowledged his invitation to do that. I think that, as a matter of process in parliament, I am entitled to do that, anyway, and I will be—and I will have a number of questions during the committee stage. But I make the point—

The SPEAKER: Can I refer you back to the substance of the legislation, please, member for Bragg.

Ms CHAPMAN: I will conclude on the issue by making sure that we are passing this legislation with the government having effect of it, the Attorney-General is the first law officer of the state. He may have other people who sit next to him in this parliament who are responsible individually for other aspects of that, but he is the number one person in charge of this, and to simply say, 'I'm not a police officer; I can't do this,' is below you, John; far below you.

Let me go to the submissions. The minister will be pleased to hear that I will not repeat a number of the aspects raised by the Legal Services Commission yesterday because they apply on cost and delay to the Legal Services Commission some of the aspects here. As the Attorney quite rightly pointed out, on the control legislation, they are unlikely, if we do not capture innocent people, to be called on for their services to be used in any of those cases, so I am not going to dwell on that. But I will say that I noted the submissions by the Hon. Simon Power, who is the Minister for Justice in New Zealand, who had received a copy of the package.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: Well you sent the submission to them, and they sent back a response. I say in respect of that that they also had given advice during the course of the consultation here. More specifically, though, the Minister for Justice and the Attorney-General from the Northern Territory really just indicated that they were not proposing to take any further amendments along the lines proposed in the legislation here in South Australia. So, it seems as though they have not come on board. The Attorney-General's Office in Western Australia and—

The SPEAKER: Point of order.

The Hon. J.R. RAU: I think the letters that are being referred to may not be directed towards this bill.

Ms Chapman interjecting:

The Hon. J.R. RAU: Yes, but the package means the package. I do not understand.

An honourable member interjecting:

The Hon. J.R. RAU: The point I am trying to make is that I do not understand these people we are hearing about to have been passing judgement or offering comment on the operative provisions contained in the amendment bill to the Serious and Organised Crime (Control) Act, which is what we are talking about.

Ms CHAPMAN: I can specifically refer to them. I am on Western Australia, and the Hon. Christian Porter, who is the Attorney-General there, gave a comprehensive response to the package. I do not propose to deal with some of the aspects that were dealt with in the bill yesterday. I do propose to deal with the question of the control orders, on which he specifically says:

I note that you intend to retain the Magistrates' Court as the jurisdiction to hear and determine control orders. This was considered in Western Australia but rejected, essentially on three grounds: cumbersome process involving two different jurisdictions—

The Hon. J.R. RAU: Madam Speaker, again, if the honourable member wants to read this stuff, which is historical material, dropped in in the context of discussions, at least it should be relevant. The fact is, the legislation that we are debating today does not have the Magistrates Court as the relevant body.

The SPEAKER: Member for Bragg, considering the time and the time you have spent so far, and the fact that this is not considered relevant by the Attorney-General, I think you really need to look at what you are saying and try to move on.

Ms CHAPMAN: I would agree with the Attorney-General if I were to go on to assert that the current bill has the Magistrates Court aspect in it, but in this submission (and I will try to paraphrase it) it seems that after that presentation was made, and the submission that a superior judge should deal with it, there had been some amendment here. This was as late as November last year, after the material went out last year. I make the point that there had been some consultation with these others, and also the Hon. Robert McClelland, who was the commonwealth attorney, and the minister for justice in Tasmania were standing by.

I would particularly like to refer to the Law Society on the control aspect, and for the benefit of the Attorney-General I will try to be as quick as possible. But understand, Attorney, you might have read this thoroughly, but I cannot imagine that anyone else, apart from you and I in this chamber, has actually gone through this in detail, and it is unreasonable if we cannot deal with one of the biggest issues.

The Hon. J.R. RAU: I am not trying to interrupt the honourable member, but can we please deal with the bill that is in front of us. There is no contest about the fact that we have been working on this for a long time, and I said on the record yesterday umpteen times that we have been working through endless meetings with contributions from lots of people. The fact that it is not exactly the same now as the working draft was in November is not remarkable, it is not a revelation; I said that yesterday. All I am asking is that if you have issues with the current legislation as before the parliament, fine, I am happy to listen, but, quite frankly, we are not talking about what is in front of us.

The SPEAKER: I take note of what the Attorney is saying, and I think you should also, member for Bragg, and get back to what the Attorney is trying to get you to talk about. You have been going for some time.

Ms CHAPMAN: Well, can I say this. The Attorney may take the view that he does not want to hear of circumstances on which he has already been picked up on something that has not worked or which he has even in some circumstances acknowledged and done some variations, but he has not had it all yet, and he is not perfect. The whole purpose of having this legislation is to make sure we go through the issues of concern.

The SPEAKER: He has admitted, member for Bragg, that it is different from what happened in November, from what was placed before you in November. He has moved on from there, and I suggest that you move on also.

Ms CHAPMAN: In due course, I will place on the record some of the continuing concerns of the Law Society and the Bar Association, because they remain. Given your ruling, Madam Speaker, what I will do now is move on to the submission that was presented yesterday to our own task force. The witness called was Mr Michael O'Connell, who is the victims of crime commissioner—

The Hon. J.R. Rau: Did you say 'the witness called'?

Ms CHAPMAN: I have explained to you before about that material, about the task force and whether it is evidence or a witness. The person who presented to this forum was Mr Michael O'Connell. He voluntarily attended, at the invitation of the task force to present. As members would know, he is the Commissioner for Victims' Rights. Indeed, he is accountable to the Attorney-General in the government under the process. He has, like so many others, remained concerned about the approach being taken by the government. He states the following:

Thank you for your invitation to comment on the proposed bills to counter serious and organised crime in our State. Please note that I have commented on the bills as part of the Government's consultation and, as you would appreciate, I should respect convention regarding my dealings with a Government minister, namely the Attorney-General.

The following are my broad observations on organised crime and combating it. I am prepared to discuss specific matters as the need arises.

Characteristics of organised crime—

A conspiratorial arrangement

A hierarchy or structured organisation

Continuity

Strict discipline, including a code of silence

Bonding ritual

Sophisticated methods and techniques

Diverse illegal and legal activities

Predatory tactics, including intimidation, violence and corruption

To be organised crime, it is not necessary that a crime-gang exhibit all characteristics; however, organised crime usually exhibits all or most of these characteristics.

It is not uncommon for crime-gangs or groups of criminal to be described as organised crime by reference to a particular criminal activity/activities. Police frequently highlight crimes committed by persons associated with particular groups as evidence of organised crime.

Corruption is a core element of much organised crime. The perversion of public integrity and the illegal, or improper use of public authorities (such as police power) for personal gain are central ingredients of corruption.

Organised crime can also be explained in the context of the illegal markets in which the criminal gang/group operates. The focus then is on the illegal goods and services (e.g. intimidation/extortion, money laundering, drug production and distribution, human trafficking from the illegal sex industry and for labour exploitation, and illicit arms trafficking) supplied and the demand usually of ordinary citizens. In this supply-demand market there are financiers, organisers, employees, enforcers and consumers.

Organised crime is a serious crime. It is a threat to security but not necessarily a serious threat to development in Australia.

There are enormous differences, however, between the organised crime problems in Australia and those in other places. In Australia organised crime has proven to be a consistent but, in my view, not severe problem. Fluctuating political will has aggravated the problem. Likewise, impediments to national co-operation and co-ordination in our federal political system have constrained but not prevented efforts to curb organised crime.

A prime objective should be preventing and combating organised crime.

A fundamental question for those tasked to attain this objective is whether the law and other instruments support their every-day activities in tackling organised crime.

Organised crime—especially 'bikie gangs' in South Australia—has become the explicit justification for the proposed serious and organised crime law reform. There should be a link between the characteristics of organised crime and the construction of the legislation. The nature of organised crime necessitates a drastic and sophisticated legislative response.

Although this opens the door to legislation that sets aside a number of safeguards common in law and legal procedure, care should be exercised to avoid innocent citizens becoming victims of state oppression. There needs to be a focus on the real threats so that the responses are creative, sharp and properly targeted, otherwise vague and divergent assertions about the threat may justify nearly any policy decision, legal reform and procedural change. In other words, the cure should not be worse than the disease.

It seems to me that the exceptions to the normal legal and procedural rules are both acceptable and necessary to combat organised crime, thus reduce (hopefully prevent) loss, injury and other harm. Overseas experiences indicate that there are overwhelming obstacles to dismantle organised crime. Furthermore, reforms should not weaken unnecessarily further the respect of human rights.

The proposed legislation focuses on the intent and capabilities of crime gang members and their associates. It seeks to address association as a facilitating factor and, according to the police, will empower them to disrupt opportunities to commit crime as arguably the proposed law has preventative elements. There is a need on the integrated strategy, complementary and shared commitments, robust implementation, minimisation of unintended consequences.

If organised crime and corruption go hand-in-hand the proposed ICAC has a role in the fight against organised crime. Need to foster community resistance, prevent exploitation, overcome instability, alleviate fear, reintegrate marginalised people. Civil disorder is a cue to the heightened fear of crime, and that fear can fuel popular vigilantism.

Money derived from confiscated criminal assets—

That is referring to another matter. He continues:

There should be safeguards to ensure that the interests of victims of organised crime are adequately represented, and the victims' rights are respected, and victim assistant matches victim needs. Minimise the risk of citizens being victims of overzealous policing, or manufactured allegations of criminal activity. Prevent the monopolisation of power in a government institution such as the police. Popular politics do not override fundamental legal safeguards without legitimate justification and comprehensive debate.

One aspect that Mr O'Connell presents further, which is certainly new to me and the Hon. Stephen Wade, and possibly to the Attorney, having comprehensively supported the concerns that we in opposition have outlined as being a potential problem with this legislation—in particular, the capturing of those who should not be captured in this—is that he had recommended the consideration of a state organised crime prevention council, which would have the oversight on the operation of the proposed law as needed.

Now, I hear groans from the Attorney, but historically we have had parliamentary oversight of serious law enforcement agencies—National Crime Authority was one. We have, in other jurisdictions, and should have here, in whatever form we get an ICAC in due course, some parliamentary oversight to that, and it may have that role as well. What we are hearing from Mr O'Connell, which is not unique but which I think he succinctly put yesterday, is that corruption goes hand in hand with serious and organised crime—it is unavoidable. So there are other aspects that need to be brought in to make sure that we have protection as well.

I think that we are to have an ICAC bill. I think that we had an announcement in a ministerial statement from the Attorney or the Premier—I cannot remember which now—recently saying that it is on its way, and we look forward to seeing it. However, what we are saying is this: in isolation it is very important that we look at having a capacity for the state to deal with corruption, otherwise we are still not going to get anywhere. It seems quite clear.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: I always try to accommodate the Attorney, and, because of his desire to rush into committee, I am sure I can reserve other comments for the committee stage. I will find my notes on that and indicate that I will be requesting that the parliament move into committee.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (16:56): Madam Speaker, before we go into committee, can I just give a couple of brief responses to the relevant aspects of the honourable member's contribution.

The SPEAKER: Attorney, you understand that if you speak you close the debate?

The Hon. J.R. RAU: Yes. I want to say again—and I was at pains to say this yesterday, I thought, but I am going to say it again today—that we have genuinely tried to do everything we possibly could to make these bills as constitutionally secure as possible. That has involved us in virtually constant meetings, and I thought I tried to explain that yesterday. For the opposition to say, 'Well, you know ha, ha, you changed it since November. Aren't you silly?' Well, actually no, we are not silly: we are trying not to make mistakes, and we will continue to try not to make mistakes.

All I was trying to say yesterday, and I will say it again, is that so far I think we have improved the legislation that we had around the place to a point where I had sufficient confidence in it to bring it into the parliament. That does not mean that it is absolutely perfect. There may be something that the honourable member or that other fellow in the other place might come up with which will be an improvement. As I said when I briefed the opposition a few days ago, as recently as that time I foreshadowed there would be a government amendment to this bill, if you recall, in relation to a particular matter that was drawn to my attention by the Chief Justice. I mention—

Ms Chapman interjecting:

The Hon. J.R. RAU: No, it is not here; I foreshadowed it.


[Sitting extended beyond 17:00 on motion of Hon. J.R. Rau]


The Hon. J.R. RAU: I just want it on the record because, unfortunately, things get a bit turned around sometimes. In a briefing with the honourable member and the Hon. Stephen Wade a week or so ago, I indicated that we were still working on some bits and pieces, and I alluded in particular to a comment which had only been received by me virtually that day or the day before from the Chief Justice, and that we were going to introduce the bill so that we could get on with it—but I wanted the honourable member and the Hon. Mr Wade to have notice of the fact that there was this other matter.

The honourable member has said that they are going to be looking at things from the point of view of effectiveness, the breadth of catchment and constitutional security. I think that I have truncated about 35 minutes of what you were saying in there, but that is it.

As to effectiveness, yes, we do not mind having a conversation with you about effectiveness; and, again on the record, I issue the invitation to the member for Bragg and the Hon. Mr Wade that if they have constructive discussions they wish to have with us between houses about particular matters, provided it is not just grandstanding and tinkering because they can (or at least think they can), I am happy to have those conversations.

If it makes a better legislative package, that is fine, and I will join hands with the honourable member, and even the Hon. Stephen Wade, and walk into the sunlit uplands together with them, receiving the garlands from the happy populace. I do not want to leave them out. I do not want them to be left out. How is that for an invitation? You do not get that every day.

As to the scope of this thing, inasmuch as that amounts to tinkering, because you can, or you think you can, we might have some problems there. Inasmuch as that relates to constitutional security of the legislation and you have a decent argument, I am all ears. I want to hear it. If you are right, and if I am advised that you are right, the propositions you advance about the constitutionality of these provisions will be given very serious consideration. So, there you are. It is all there on the record.

There was something that I heard today that actually conjured up an image for me, because we have the image of the full bench of the task force—Wade, Chapman and McFetridge—receiving evidence—

Ms CHAPMAN: I have a point of order, Madam Speaker. It is bad enough, I think, that the Attorney should attempt to quash debate on this matter. It is insulting that he should suggest that our consultation, which we have truncated to facilitate the government's request to have the swift passage of this bill, is not acceptable. I find it insulting—

The Hon. J.R. RAU: I will move on.

The SPEAKER: Yes, I would ask you to move on and please contain your comments to the bill.

The Hon. J.R. RAU: The image got caught in there and I couldn't get it out for a minute, but I think I have now. A couple of particular references were made that I think I need to briefly mention. First, the section 35 to which the honourable member referred is, in fact, not in this bill: it was in the old bill and it has not been touched. Inasmuch as you made references about children, I invite you to look at section 39V(3), which talks about the fact that anybody under the age of 16 cannot be the subject of any of these provisions.

A lot of the other comments which were made about this evinced an attitude of all care but not a lot of responsibility. My invitation to the honourable member and the opposition is this. We want to get effective legislation constitutionally secure to the extent that we are capable in our collective wisdom of arriving at such a point. We want constitutionally secure legislation in and passed as quickly as possible. That is what we are trying to achieve. Because no particular amendments have been foreshadowed as yet, I am not going to assume that we are going to be confronted in this case with the same sort of behaviour that we have had in other cases. I withhold any judgement about that matter and let us wait and see.

However, I say this: between the houses, if there are constructive comments to be made, we might even be able to move joint amendments in the other place, supported by the government and the opposition, rather than having some empty theatre go on up there where things are put up so they can be torn down and other people get to grandstand and jump up and down and say things.

I would be quite happy up there if the result is that we in the government are able to say to the upper house, 'We have had conversations, we have agreed on these things,' and the opposition stands up and says, 'Yes, we agree with them, too.' Thank you very much: end of story. That would be an achievement—a solitary one, I might say, in terms of this particular parliament.

That is the invitation. I am happy to talk. We do not wish to have the opposition hold back on genuine arguments about constitutional faults in the proposed legislation provided that is not used as some stalking horse for arguing about the all-care-no-responsibility proposition, which seems to be where, in particular, the Hon. Stephen Wade always wants to take everything.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms CHAPMAN: Attorney, could you confirm who the government has consulted on the tabled version of the bill?

The Hon. J.R. RAU: I will attempt to. If I am being asked if we have consulted on the introduced legislation, my understanding is that the following people have been consulted on this very last version: the DPP, the Crown-Solicitor's Office, the Solicitor-General, the courts, the Law Society. By 'the courts' we are really saying the Chief Justice, and he is consulting with others. They are the people we have consulted with on the final draft.

Of course, other people saw earlier generations of the thing. I say now, quite frankly, that if a light bulb goes on in one of these people's heads between now and the bill going into the other place, and they think of something else they want to talk to us about, that is fine; I am relaxed about that.

Nobody can run away from this. This is complex stuff. This is not simple legislation. It involves complex drafting and constitutional issues, so it needs work. It has had a lot of work, but, as I said, it might be that more is needed.

Ms CHAPMAN: Apart from the two principal issues, which are dealt with in the two higher court cases and which we have dealt with, are there any other constitutional issues that have been dealt with in this bill; that is, they have not come to the attention of the courts yet, but which you have discovered need to be remedied?

The Hon. J.R. RAU: What we have done is said there are two clear constitutional issues that run through this like a seam, if you like. One of them is the implied right of free speech, assembly, and so forth, and the other is the Kable principle. We have attempted to run the ruler of those two things across the legislation in its original form, and it has been front and centre in our thinking about what we are introducing now. Likewise, in other legislation—for example, the bill we dealt with yesterday—we have also been trying to keep that in mind because clearly Kable represents a boundary that we do not want to traverse, if we can avoid it.

Ms CHAPMAN: I mentioned a number of differences between the Western Australian and New South Wales bills, and I am really keen to hear from the Attorney in particular why he has chosen to proceed with making it an offence for any person to associate with a member in a much broader way than those two jurisdictions.

The Hon. J.R. RAU: Can I say that, as I understand it, that is the existing section 35. That has been there since 2008. We have not fiddled with it in this legislation; it has not been disturbed at all. Is it going to be part of the whole thing if this is passed? Yes. Is it something that we are moving the parliament to introduce now? No, it is already there.

Ms CHAPMAN: I raise it in this sense: Attorney, you have made it quite clear that you wanted to meet with these other jurisdictions and try to have some similarities. Did you consider at all ever bringing that in line with what the other two jurisdictions are proposing to move ahead with—that is, to curtail that?

I think you would have to agree that clearly it is a much broader group of people, and you may still want to argue that it is meritorious in having that breadth, but it seems that the other jurisdictions, at least on the face of it and from what I have read, have decided that they are not going to run the risk of being challenged in that regard and they actually have narrowed it.

It just seems that you are insisting on wanting to proceed with that. I would have thought that would be an obvious one, where we have two other attorneys-general in the country saying, 'We're not going to run the risk of that. We're just going to make it very narrow and make sure that we get it through.'

The Hon. J.R. RAU: As I understand it, in Totani the High Court had to turn their mind to section 35 but in the context of section 14, and they did not indicate that 35 was in and of itself an issue. That, as I think you said in your remarks, does not necessarily mean they would not find it had they been directed specifically there. If there are particular discussions the opposition wishes to have with the government about those matters, I am happy to engage in those between the houses.

The advice I have received is that people were not particularly anxious that the current section 35 presented a vulnerable point but, if the honourable member has views or has advice of substance that suggests we should review that point, then I issue that invitation and we will look at it.

Ms CHAPMAN: I thank the Attorney for that because I think it is pretty clear from all of the submissions that we have made in this parliament that we are concerned about that—not just the constitutionality but the appropriateness of having such a broad group. I accept that there are two different issues there, obviously, but in any event I thank you for that invitation.

The Hon. J.R. RAU: Can I just make it clear that my invitation was directed on the constitutionality point.

Ms CHAPMAN: I make the point that they are two different issues. It may be that the other attorneys-general take the view on the matter of principle that it should be narrow and that they have not even considered the constitutionality. I do not know what the discussions were with you in those meetings you had with them about what you are doing. In any event, they have taken that approach.

Clause passed.

Clauses 2 to 5 passed.

Clause 6.

Ms CHAPMAN: Attorney, is there a precedent in any other jurisdiction for the eligible judge model for declarations in the bill?

The Hon. J.R. RAU: I think the position is that the New South Wales legislation has 'eligible judge', but that was not the problem as far as the High Court was concerned in Wainohu. It was the fact that the eligible judge did not have to provide reasons, which was the defective aspect of it.

The Western Australian one uses different terminology but means, in effect, the same thing; it is called a designated authority. I believe the Northern Territory also has a similar process, which is an administrative process. The eligible judge, as the honourable member would appreciate, is a person who is not a judge for the purposes of the particular exercise. You probably would have noticed in the judgements that the High Court said that the persona designata issue was not one that troubled them. That is not a problem, as we understand it from what has been put in the judgements.

Ms CHAPMAN: On the bills that went out for consultation, we had this court-based declaration. We have now moved to this eligible judge model. Obviously, it is a different court as well, but we have changed the model. Did you have any legal advice that underpins the change in that regard, apart from the suggestions from Mr Porter, the Attorney-General for Western Australia?

The Hon. J.R. RAU: There were a couple of things that informed that. The first one was the practicality, the efficiency and the lack of formality that one has with this model rather than the other model. The second thing, I think, is that we did draw some comfort from the fact that other jurisdictions had independently turned their mind to this matter and come to a similar conclusion and that, given that that from a practical point of view delivered a better outcome, to get the better outcome, rather than a second-rate outcome, clearly was a preferred choice.

Ms CHAPMAN: I understand, Attorney, that there is going to be an amendment moved by the government in respect of the appointment process. What was the basis for making the decision, in any event, for the Attorney-General to be the appointing party? Why not just make it all Supreme Court judges, subject to the consent they give, rather than have an appointment by the Attorney?

The Hon. J.R. RAU: I think the answer to that is that the original New South Wales legislation had that as part of its framework. That was not, however, the bit that was attacked in Wainohu. On repeated reflection on Wainohu and the New South Wales model, and after, I think, in fairness to the Chief Justice, a discussion I had with him, there seemed to be an unnecessary risk in involving the Attorney at all.

So, the foreshadowed amendment that I think I discussed with the honourable member the other day was that we would simply hand over the whole process of appointment to the court, which then leaves the attorney of the day out of the loop altogether, which I am very happy about.

Clause passed.

Clauses 7 and 8 passed.

Clause 9.

Ms CHAPMAN: This is the applications for declaration by the Commissioner of Police. My question is, firstly, how many applications are currently being prepared?

The Hon. J.R. RAU: I am advised that they are operational matters which it may not be useful for us to publicly place on the record. It may be that in private some further conversation about those matters might be able to occur.

Ms CHAPMAN: I appreciate the sensitivity of some of those matters and I will not press that. We have had some indication—and I think I referred to this in the second reading—of there being some considerable delay before the police expect to be able to deal with these matters. I think three years was one period being looked at, I suppose, to get up and prosecute the application for declaration. It seemed a long time to me, but perhaps you could assist us. I can only read what it is in here, and what is expected to be collated for presentation. I would not have thought it would take years, but can you give us some assistance as to how long you expect for an application to be ready for the process?

The Hon. J.R. RAU: I think the only prudent thing for me to do is to reflect on how long the previous ones have taken, and I am advised that they have taken months, not years.

Ms CHAPMAN: One aspect that might facilitate the process is the regulations. Is it the situation that regulation or draft regulations are ready—or not?

The Hon. J.R. RAU: No, they are not ready, but there is not a great deal of regulation required in this area, and because it is at present just a bill, and we do not know how it is going to end up, it might well have involved parliamentary counsel doing a great deal of work for no good purpose. However, I can undertake that if the bill does pass it will be an absolute priority for me that parliamentary counsel attends to the speedy preparation of the appropriate regulations.

Clause passed.

Clause 10 passed.

Clause 11.

Ms CHAPMAN: This relates to the eligible judges making declarations. It involves an incorporation of associates, and the activity of associates as well as members in establishing the case for a declaration. What prompted the government to vary the draft bill to include the activities of these associates?

I can find another section, I am sure, on which I can ask. What has prompted you to introduce associates into the eligible judge provisions? Under the new section 6—I think your adviser is quite right. We are still on clause 6? If you just go back to there, on page 9.

The Hon. J.R. RAU: That is subsection (4), is it?

Ms CHAPMAN: Yes. Page 9, 'Eligible Judge may make declaration', so it is the new section 11(2)(b)(ii) and (c)(ii). Do you see that?

The Hon. J.R. RAU: Yes.

Ms CHAPMAN: My question is: what has prompted you to introduce that component in the declaration requirements?

The Hon. J.R. RAU: I understand that mirrors the existing act. That is my advice.

The ACTING CHAIR (Hon. M.J. Wright): We will go back to clause 11.

Ms CHAPMAN: My question is this: under this declaration process, is it possible that an organisation could be listed without any of its members directly being involved in serious and organised criminal activity?

The Hon. J.R. RAU: I am always loath to say an absolute never ever, but the individuals concerned must come together for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity, as defined, and they have to represent a risk to public safety. I guess it is conceivable that they come together for the first time and are organising (or whatever), and if they are allowed to continue doing what they are planning to do they will present a risk to public safety, but they have not yet done it. I guess that is possible, but I would be surprised if even getting together and organising that did not amount to a conspiracy which would, in itself perhaps, be a serious criminal activity. It is a difficult one.

Ms CHAPMAN: I suppose it follows from that that because of these extra clauses it is also possible that the organisation could be listed, even though none of the respective members had had any contact or organised activity at all. In any event, you are saying you cannot say it can never happen but it is possible.

The Hon. J.R. RAU: As you and I both know, humanity throws up the most unexpected and interesting moments, does it not? I mean, how many times have we been in court and been presented with something nobody ever thought of? That is not contemplated to be where this is landing. Where this is landing and where, in practical terms, the efforts of the police are going to be directed is the known operators, people who have come to their attention, people who are on their radar, and they will be on their radar because they have been arresting them and they have been involved in an offence.

So, I suppose if the police had a crystal ball and could see into the minds of people who had yet to commit a crime and were able to work out that they were about to do it, and if we could grab them and then prove it, but I think we are talking about almost an abstraction.

Ms CHAPMAN: The new section 14, which is the revocation procedure, in the consultation bill the police could actually revoke it. That has now been removed. What has prompted you to take out the police?

The Hon. J.R. RAU: I think that continues to be the case: 14(1)(a) and 14(1)(b)(i).

Ms CHAPMAN: I think we are at cross purposes. I think the commissioner can make an application now but, under the previous consultation bill, he could revoke it of his own volition. Is that because it is consistent with it now we have a judicial appointment?

The Hon. J.R. RAU: I and those who are advising me presently do not know whether or not that was what was in the earlier draft; perhaps if we just take that on notice.

The ACTING CHAIR (Hon. M.J. Wright): We are up to clause 11; we have voted on clause 6. I think I have been fairly generous and I think we should move on.

The Hon. J.R. RAU: I am advised that, even under the consultation version, it was through the court.

Ms CHAPMAN: The prescribed activity, which is in the new section 22(5), and which applies under your regulation power—I can ask this question under clause 14.

The ACTING CHAIR (Hon. M.J. Wright): You do not want to ask this question under clause 11?

Ms CHAPMAN: I have lots, but I have missed the opportunity to do them in some areas, so I am going to find another space to ask them.

Clause passed.

Clause 12.

Ms CHAPMAN: Under the proposed section 39W(4)—Costs, which is on page 34, will this provision have the same effect on the alleged criminal offenders under the act that was proposed in the Statutes Amendment (Budget 2011) Bill in relation to court-awarded costs?

The Hon. J.R. RAU: I couldn't possibly say; I have to take that on notice.

Clause passed.

Clause 13 passed.

New clause 13A.

Ms CHAPMAN: I move:

Page 35, after line 30—After clause 13 insert:

13A—Insertion of new section

After section 42 insert:

42A—Review of operation of Act

(1) The Attorney General must, as soon as practicable after the fourth anniversary of the commencement of this section, conduct a review of the operation and effectiveness of this Act.

(2) The Attorney General, or any person conducting the review on behalf of the Attorney General, must maintain the confidentiality of information provided to the Attorney General or other person that is classified by the Commissioner as criminal intelligence.

(3) The Attorney General must prepare a report based on the review and must, within 12 sitting days after the report is prepared, cause copies of the report to be laid before each House of Parliament.

I simply indicate, as I think is self-evident, that there be a review of the operation of the act. Is it consented to by the Attorney?

The Hon. J.R. RAU: Yes.

Ms CHAPMAN: Fantastic; thank you.

New clause inserted.

Clause 14.

Ms CHAPMAN: The regulations are to include a prescribed activity, which is referred to otherwise in the bill, and it is proposed that this be done by regulation. What is proposed to be prescribed that will apply in the new section 22(5) as a prescribed activity?

The Hon. J.R. RAU: Which one is the prescription provision?

Ms CHAPMAN: In new section 22(5)(a)(ii), 'holding an authorisation to carry on a prescribed activity'. You are yet to make those decisions on that by regulation. My question is: what is intended to be prescribed?

The Hon. J.R. RAU: We can probably get a more fulsome answer on that, but I think it is basically saying that prescribed activity could include, for example, a particular occupation, like, publican, crowd controller, casino operator, or something.

Ms CHAPMAN: My final question, which may or may not be able to be dealt with by you, is how this legislation would deal with a group that is in flux, such as the Comancheros—change of name, etc. Is that covered in here, or is that going to be covered in another section?

The Hon. J.R. RAU: Yes, new sections 20 and 21. Section 20—Change of name etc, provides:

A change in the name or membership of a declared organised does not affect [the status]

Section 21 provides:

...members of a declared organisation substantially re-form themselves into another organisation...

And then there is an evidentiary aid there in clause 21.

Clause passed.

Schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (17:37): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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