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

Second Reading

Adjourned debate on second reading.

(Continued from 4 July 2013.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:02): I rise to speak on the Serious and Organised Crime (Control) (Declared Organisations) Amendment Bill 2013, and indicate that I will be the lead and only speaker for the opposition on this matter. This is a bill to amend the Serious and Organised Crime (Control) Act 2008. That principal bill was born in a stampede of enthusiasm for a commitment from the government to declare war on bikie gangs—otherwise known as outlaw motorcycle gangs—and criminal groups, in particular in concert to commit serious and organised crime. The bill introduced a new regime of anti-association laws.

Mr Speaker, you will be familiar with this legislation because, of course, you were the principal driver, as then attorney-general, of this legislation. In your and your government's zest for a distinctive approach to clothe yourselves in self-praise, the government chose a path of a declaration by executive decision. So vain in that approach was the determination in the bill, that the introduction of the measure of issuing a declaration to outlaw a particular group and to prevent their association was to be done by none other than the Attorney-General. That ultimately did not see the light of day, although, of course, it came into the legislation.

There are also other measures to issue control orders or public safety orders, which were to be issued by application to a magistrate, or a police officer determining to issue those respectively. Nevertheless, the reason this principal measure of a declaration outlawing the association of particular groups ended up in the High Court and indeed was struck down.

The principal act, having become the subject of proceedings in the now famous case of Totani, and subsequently Wainohu's cases, the whole situation, of course, needed to be remedied. To repair these circumstances and indeed to expand some of the ranges of offences, the government then tabled the Serious and Organised Crime (Control) (Miscellaneous) Amendment Bill 2012 in February 2012.

It was the subject of some comment at the time. Again, Mr Speaker, you would recall the opposition's plea in late 2009, after the determination in the High Court of the first of those decisions, that we should come back to the parliament and remedy that matter. Nevertheless, that did not occur. For whatever reason, your government was persuaded not do to anything about it; it did not seem to be of a pressing nature. The election came and went in 2010—subsequently, so did you—and under the new regime, ultimately, eventually, finally, in February 2012 that legislation was introduced.

Similarly, in 2011, a bill was tabled in the Western Australian parliament and the New South Wales government tabled their bill in February 2012, I think a day after our amending bill had been introduced. At the time, the Attorney-General said, in his contribution, that:

...the redraft was to be based on the Western Australian bill when in doubt on the presumption that the states would stand together on the basic issue so far as possible...

No application, it should be noted, has been made to declare an organisation since the 2012 bill here in South Australia under that legislation. On 14 March this year, however, the High Court dismissed a constitutional challenge to a comparable Queensland law in the case of the Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7. The Queensland act is the first of its kind in Australia to have withstood the constitutional challenge.

The New South Wales government responded promptly, and within a week (on 21 March) of that judgement being delivered, they tabled legislation, and the New South Wales Attorney-General stated that their amending bill proposed to adopt those aspects of the Queensland model which were considered and upheld by the High Court. They were as follows:

1. the declaration of a criminal organisation will now be made by the Supreme Court of New South Wales itself rather than an eligible judge of the Supreme Court.

2. the test to obtain a declaration of an organisation as a criminal organisation is to modified to provide a test which, amongst other things, requires that the continued existence of the organisation is an unacceptable risk to the safety, welfare or order of the community. 'This test represents a hybrid of the test proposed by the 2012 [NSW] bill, as well as adopting the "unacceptable risk" test used in Queensland and approved by the High Court.'

3. the detailed criminal intelligence mechanisms of Queensland are adopted—the Police Commissioner will make an application to the Supreme Court to have material declared to be criminal intelligence. 'The New South Wales legislation will now be brought in line with the Queensland provisions which have withstood challenges in the High Court.'

4. the bill provides for a criminal intelligence monitor to have a role in the proceedings...'While the High Court's decision on the Queensland legislation did not focus on the existence of the monitor, the monitor's role was described as one aspect which tended to support the validity of the Act.'

The situation since March, and since the prompt action of the New South Wales government in response, is that on 18 June this year, the opposition received an invitation from the Attorney-General to meet and confer about our state, remedying our circumstances and the need to progress that urgently.

There was a submission put to us that the progress of this matter needed to be addressed with some haste and, for reasons which I will not go into today, the opposition accepted that it was reasonable for this matter to be given higher consideration in the sense of progress than would normally be the practice in the parliament. The initial briefing took place on 3 July this year, and a subsequent briefing on more detail of the bill (once disclosed) was provided on 10 July with the Attorney-General's advisers, the Solicitor General, Mr Martin Hinton, and senior SAPOL representatives, and I thank all of them for their provision of advice in the course of those briefings.

The concerning aspect for us is not that there was a need to progress this matter—and there are certain circumstances where governments do need to act promptly and it is reasonable and responsible for oppositions to accommodate that. I think that this opposition has continued to act in a responsible manner to ensure that that occurs when necessary in the interests of the protection of our state's citizens, or for the advancement that, in exceptional circumstances, would override the normal procedural progress through this parliament.

However, there are two aspects that are concerning and I place them on the record. One, is that no explanation has been given to us as to why it took this government four months to get its act together when it took the New South Wales government seven days, and particularly given the broader extent which their bill covered in legislation and the narrowness of this ultimate bill in its remedying of the circumstances arising out of the court decisions.

Secondly, whilst that invitation was given and accepted by the opposition, it would be well known to the people of South Australia that the very next day after the first meeting, the particulars of the amending legislation and the need to hasten them through—not just the parliament but to bring them forward for the protection of South Australians—was, of course, on the front page of The Advertiser. This was not just a general indication of the government's intention to, again, crackdown on this unacceptable behaviour and to produce legislation which was going to be valid, but to point out the urgency of doing so, all of which we have been asked to keep in confidence, and we then find it splashed over the newspaper.

I indicate to the government that the opposition will continue to act responsibly when appropriate and when a reasonable meritorious submission is put to us. What we will not accept is to be treated like idiots and be expected to act responsibly but then find that there is a publication of material which we are asked to keep confidential across the front page of the paper or, indeed, any media outlet. That is unacceptable.

Nevertheless, we are here and, as I say, the government seems to expect us to act hurriedly for the reasons that it has pointed out to us and which we have acceded to. It seems that the New South Wales' government has got its act together and is able to manage to deal with its provision. In any event, four months later we have this decision in response to Pompano's case and again, in round three of this legislation, the Attorney-General said:

It is clear beyond argument from this discussion that the constitutionality safe course is to replace 'eligible judges' with the Supreme Court and to make consequential amendments to the Act. ... The trend is clear. South Australia must now stand with the others, and with that legislative model that has been definitively ruled to be valid.

We could not agree more with the Attorney in that sentiment expressed in that contribution. What is missing, however, is that, without a convergence between the Australian criminal organisation laws around the country, we think there could obviously be increases. Without the support of that convergence we lose out on increasing the constitutional robustness of our own regime; it increases the likelihood that other states will support South Australia in defending any Constitutional challenge; and it avoids South Australia maintaining a legislative regime which is seen as more vulnerable constitutionally and, therefore, risks making our scheme a target for those to seek to challenge the laws.

The aspects of this, the last two areas, as grounds for convergence, do not depend on an assessment of the Pompano case or the anticipation of future High Court judgements. However, the South Australian bill provides limited convergence. Unfortunately, when we look at the bill, the statements of the Attorney-General do not adopt the last three elements of the New South Wales bill which I have outlined.

What is absolutely stunning to the opposition is that, notwithstanding the Attorney's statement, during the briefing we received advice from a Solicitor-General that the government did not even seek legal advice on those elements. I find that a stunning omission. I do not know why the government chose not even to get advice on that, but that is disappointing to the opposition. The statement of the Attorney-General made in this house, consistent with a statement made in the preceding year about the importance of convergence between the jurisdictions, seems to be of one statement but inconsistent with the action in failing to even take advice on these other matters.

The criminal intelligence process, in particular, is a clear divergence between the Queensland and New South Wales schemes on the one hand and the South Australian bill on the other. Criminal intelligence, of course, is secret police evidence not available to the respondent. The Queensland and New South Wales jurisdictions now require the police commissioner to make an application to the Supreme Court to have material declared to be criminal intelligence rather than the police commissioner making that determination.

South Australia, of course, will continue to have the police commissioner in that role. I think it is fair to say that, whilst your aspirations (as idealistic as they may have been at the time) were to give the police commissioner and the attorney-general of the day very special privileges in this ground-breaking legislation that you introduced, the current Attorney-General's implacable (to be fair, I think I have to water this down) closeness to the adherence of this principle of keeping the police commissioner in this role is still concerning, especially when, on the one hand, he has made statements to this house about how important it is that our jurisdictions be at one if we are to face High Court challenges in the future.

Nevertheless, the current Attorney, with the government's support, is following your lead, Mr Speaker, and keeping the police commissioner right up there in a critical role inconsistent with the obligations that would need to be made by the police commissioner in going to the court, as would apply in Queensland and New South Wales.

I will place on the record some aspects of this, because, as I have indicated, it is the opposition's position that we will support the passage of this bill, unamended, through this house, because we have acceded to a number of aspects, but we are concerned about a number of matters. Members will be aware that criminal intelligence is a key divergence from the normal operation of the adversarial system of justice. In Pompano's case, the High Court upheld the validity of the provisions:

The Court held that while the provisions may depart from the usual incidents of procedure and judicial process, the Supreme Court nonetheless retains its capacity to act fairly and impartially. The Court held that the provisions do not impair the essential characteristics of the Supreme Court, or its continued institutional integrity.

The majority judgement stated, quote:

...if an adversarial system is followed, that system assumes, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. As the trade secrets cases show, however, the general rule is not absolute. There are circumstances in which competing interests compel some qualification to its application. And, if legislation provides for novel procedures which depart from the general rule described, the question is whether, taken as a whole, the court's procedures for resolving the dispute accord both parties procedural fairness and avoid 'practical injustice'.

The majority considered that, in the context of the court's inherent powers, the court can protect procedural fairness, and the legislation's procedures for criminal intelligence are not valid. Involving the Supreme Court in a criminal intelligence declaration increases the capacity of the Supreme Court to maintain procedural fairness both in the declaration of criminal intelligence itself and in proceedings receiving that evidence. Of course, Queensland and New South Wales provide for a criminal intelligence monitor, whose function it is to monitor each criminal intelligence application as well is a declaration of control order proceedings.

While the Pompano decision does not explicitly insist on the three elements, there is value in having convergence and the three elements are likely to make our laws less likely to offend constitutional law in that they support procedural fairness and reduce the risk of practical injustice. It is a mystery to us as to why the government did not take this up to ensure that we, as much as possible, protect South Australians against the risk, further cost, delay and humiliation in applications to the High Court.

The Law Society of South Australia have provided a submission. It may be seen as being at a late hour, but it arrived yesterday. In fairness to them they too have only had a very brief opportunity to consider the bill, so they chose to present yesterday a submission jointly authored by the Australian Lawyers Alliance. It is well known to this house that the Law Society has taken a view on the original legislation, back in the 2007 debates, that they regard that this legislation is not appropriate at all. They confirm their opposition to the legislation as they consider it restricts innocent associations between individuals and groups, criminalising essentially non-criminal behaviour and liberally defining and authorising the use of criminal intelligence in this and other legislation without the appropriate safeguards.

That is a statement that has been made again, the sentiment of which we in the opposition understand, but that debate has been had. We have supported the government in the opportunity to have the initiative to issue declarations under an anti-association approach. So, we have had that debate; that has been lost as far as the Law Society's position goes and we are on to the next stage. They do, however, present some argument to support recommendations that they think would significantly improve this bill, some of which I have already traversed because the opposition has taken up those initiatives. I will just summarise their position as provided to us.

They recommend firstly that the SOCCA legislation should expressly provide for the applications for a declaration and revocation of a declaration to be filed in the Supreme Court. On that matter, whilst it is implicit, we would not have any objection either way if the government felt that that was a way of absolutely making it clear.

The Law Society and Australian Lawyers Alliance are perhaps a bit sort of gun-shy, given the progress of other legislation in recent times. They are a bit concerned about what the government might try to do, so they are really presenting an argument that the act should not be silent on this issue. It needs to be absolutely clear, so they are seeking that recommendation. If the government were to support that, then I do not think we would have any problem with that, but, as I say, we have only just received this submission.

The second recommendation is that the rank of police officer required to verify an application for a declaration should remain as superintendent or above; that is, presenting a position where a senior police officer either at or above the rank of superintendent should be necessary. It essentially means that the senior police officer would have to actually read the affidavit material and make that assessment, and that that higher level needs to be part of the verification process. It helps to satisfy the attempt, I think, to ensure that only applications of merit and substance are made. They make the point that it is important to reduce where possible the risk of unworthy applications succeeding and they see that as an important aspect.

The third recommendation is that section 18 should be repealed and not be amended as proposed in the bill. The rules of evidence should apply to all proceedings under the legislation. To some degree, I have touched on that, but it seems that the government is intent on progressing without that protection.

The fourth recommendation is that the proposed amendment to the Serious and Organised Crime (Unexplained Wealth) Act 2009 should not be made. I have not said a lot about the unexplained wealth amendment. This has been slipped in. It has been presented to us as being necessary to ensure that other approaches to be taken in managing this question of organised crime are not undermined. It seems that other jurisdictions, on inquiry at briefings, have decided that it has not been necessary for them to go down this route, but nevertheless the presentation to us has been to err on the side of caution to ensure that there is not an undermining of strategic approaches that are proposed that this is necessary to pass.

The other aspect that was presented to us (this, I think, was in the second reading as well) is that this is necessary, and in any event it is really in similar terms to section 39Y of SOCCA legislation, and therefore is really just consistent with that. The Law Society makes a number of submissions on this, but on that point it states the following:

We note that proposed s43A is in similar terms to s39Y of the SOCCA. We make the general observation that the existence of s39Y does not in any way justify the inclusion of s43A for several reasons including the following:

i) the objects and purposes of the SOCCA differ markedly to that of the Unexplained Wealth Act. The SOCCA seeks to protect the community from the commission of offences by implementing measures designed to prevent crime occurring. In this respect it could be said that s39Y is justifiable from a public policy perspective in that it is similar to a law enforcement purpose (which is typically expressed in legislation as a purpose for which information may be obtained and used). The Unexplained Wealth Act, however, is a civil proceeding with the object of attacking financial gain from past suspected crime. A feature of the legislation is that there need not be any proven criminal activity for an unexplained wealth order to be made.

They expand further on that submission. They also point out that section 39Y is controversial. For much of the same reasoning as they had advanced, they consider therefore that to be an undesirable provision. Finally they claim that section 39Y will be considered during the forthcoming review of SOCCA. The end result may be that it will be repealed or amended.

I thank Mr White and Mr Boylen for making that contribution. It does add some other dimension to the unexplained wealth act proposal. It seems, on the face of it, that the police are keen to cover all bases, and we understand that. It is not surprising that police would look to every opportunity to have legislative capacity to be able to do their job more easily, more quickly and more efficiently, but we, of course, in the parliament have to look ultimately at the interests and rights of others, including those who may be the subject of one of these applications under the anti-association laws or a declaration under that.

We raise these concerns. We are sympathetic to some of the issues that have been raised by the Law Society and we thank them for that contribution, ever attentive to the important rights of individuals in South Australia. It is an interesting debate. The opposition, however, has supported the government's initiative to the extent of having extra special responsibility and legislative power to try to address what is criminal activity, unfortunately disproportionately, apparently, in the hands of a few in organised crime.

The very nature of it and the danger of it to South Australian citizens have elicited the support, therefore, of the opposition in giving this option a go, but the South Australian government, I think, needs to have a clear message that it cannot play around with this type of legislation and expect that it can produce some novel and headline-grabbing approach to something without there being consequences. The public of South Australia have already paid a very high price for that.

Secondly, the senior members of the police force, who have the onerous responsibility of detecting and investigating these difficult cases and dealing with serious and organised crime, which is a dangerous business, need to be reminded of the fact, I think, that the parliament is giving them a very special responsibility and that it should be used in limited circumstances and that it should be exercised responsibly, and I am sure that, in the hands of good and decent persons leading the police department, that will occur. Unfortunately, sometimes there are those in any organisation who provide the lowest common denominator. That is one of the things about which we have to be cautious and alert to in parliament in the laws that we make.

With the passage of this legislation, I give to the police department and the personnel who are going to be exercising this law the very committed assurance that the opposition wants to support them in their being able to deal with this tawdry task and to be effective in its administration. Ultimately, we will look to the guidance and determinations that are issues and the protection provided by the Supreme Court determinations under the declarations.

We are giving them a difficult task. It is still novel. There are some consistencies, and we hope that we will now not have unnecessary and costly claims in the High Court. We can only hope that it is the case that we will diminish serious and organised crime in this state and that our citizens are protected and that we also ensure that we limit the risk of their having to pay Martin Hinton, or anyone else from our legal profession, to go off to the High Court and plead for the merciful interpretation of what we intended here in the parliament.

Mr PEGLER (Mount Gambier) (11:38): I rise to intimate that I will be supporting the Serious and Organised Crime (Control) (Declared Organisations) Amendment Bill. The purpose of this act, when it originally came before this house, was to protect the general law-abiding citizens of this state from the violence and standover tactics of criminal organisations and their members.

As a government and as a governing body, when we can see that some other state is doing something better than we are, I think that we should always change our acts or our bills to reflect those changes. I certainly support the intention of this bill to change the process of having eligible judges determine serious and organised crime gangs to having the Supreme Court do it. I believe that, in this process, we will see fewer challenges in the courts and it will give everybody a clear definition of the way forward. I will certainly be supporting this bill.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (11:39): I will say a couple of things very briefly. First of all, in respect of the material that has been provided by the Australian Lawyers Alliance and the Law Society, we have had only a very short time to consider it, but my advice is that none of those is a matter of substance.

Can I say, Mr Speaker, that I only hope that the shadow attorney, in particular, takes as much notice of the letter that the Law Society has written to him about another bill, namely the Legal Practitioners Act, as they do about everything else because it is asking them to withdraw all their amendments. I also thank the member for Bragg for what I understood to be a ringing endorsement. As eloquent as it was, it lacked the one thing that the shadow attorney was able to bring to the debate which is brevity. I will read onto Hansard the very nice letter that I received yesterday from the shadow attorney, saying:

Dear John,

Thank you for your letter of earlier today on the Serious and Organised Crime (Control) (Declared Organisations) Amendment Bill 2013.

I advise that the Liberal Party Joint Party Room has considered the Bill and agreed to support the Bill without amendment.

We support the consideration of the Bill in both Houses being concluded this week.

Yours sincerely,

Stephen Wade

Shadow Attorney-General

I commend the shadow attorney's style to the member for Bragg. In this particular instance it is refreshingly to the point and helpful, but nevertheless I thank the opposition for their support in this matter. Their cooperation in having this matter move quickly through the parliament this week, through both houses without amendment, will be received with great relief by both the people in the Crown and SAPOL, who are doing very valuable work in this area. I thank all members for their cooperation in this matter and, of course, the member for Mount Gambier, thank you very much for your support as well.

The SPEAKER (11:42): The deputy leader criticised me in my capacity as the former attorney-general for introducing a serious and organised crime bill whereby the attorney-general declared organisations to be criminal organisations. I will make plain to the house the reason that was done was for the attorney-general to take responsibility to the house and to the electorate of South Australia for those declarations and not foist that responsibility on judicial officers. I understand the second approach is different but that is why the first approach was taken.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (11:43): I move:

That this bill be read a third time.

Bill read a third time and passed.

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