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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-02-29 Daily Xml
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STATUTES AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 15 February 2012.)

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (11:38): By way of clarification, because two bills are serious and organised crime related legislation, it might be helpful for all of us to get our language clear. As I understand it, we are dealing with item No. 2 on the Notice Paper—and I think the member for Bragg and I are on the same spot about that presently—which basically we have been referring to as the 'offences bill'. Item No. 3 on the list, which we are not dealing with now, contains the amendments to the serious and organised crime legislation, which we call the 'control bill'.

Even though I understand it is called Statutes Amendment (Serious and Organised Crime) Bill 2012, it is item 2 and is what we are calling the 'offences bill', for the sake of differentiation from the other one, as the names are very similar and there could be confusion otherwise. As I and the member for Bragg understand it, we are on offences.

The SPEAKER: I understand we are on item No. 2; is that your understanding, member for Bragg?

Ms Chapman: Correct.

The SPEAKER: Which is what you have named the 'offences bill'?

Ms Chapman: Which is what we are calling the 'offences bill'. In the government business program issued for the week, it is actually described as the 'serious and organised crime—offences bill', but we are talking about item No. 2.

The SPEAKER: Yes, we are all on the same page. We will get the show on the road.

Ms CHAPMAN (Bragg) (11:39): I rise to speak on the serious and organised crime bill, which is item No. 2. I indicate that the opposition will be supporting the second reading of the bill. We are giving notice that there will be amendment considerations between the houses of parliament. It is our objective, however, that the progress of this matter through this house not be delayed, the reasons for which I will identify in due course, and I will outline some of the areas of concern we have which may culminate in an amendment. There may well be other speakers from the opposition. Of course, anyone is entitled to speak on these bills; we are not in the business of crushing discussion or debate on this important matter. But the opposition at least is mindful of the importance of progressing some of this legislation, given the enormous gestation period it has had.

Can I say at the outset that the opposition is disappointed at best—concerned, certainly—about the progress and how the government has handled quite a serious matter, namely, serious and organised crime in this state. It is true to say that crime networks of any kind, particularly when serious criminal activity follows, are indeed a cancer on our society, but they do need a customised, targeted response. The concern we particularly have is not just the legislative process the government has undertaken to deal with this and where it has been aborted by the intervention of High Court decisions and, of course, the challenges that have come about that process, but also the worsening situation for our state, which appears to be the case, given their strategy of management of this issue of organised crime.

Our objective as an opposition, as it has always been, is that, on the understanding that there is a problem, that there is a risk and that there is a danger and an issue in the community, no matter how badly the government handles it, and has handled it to date, we work with the government to try to repair that strategy, get it on track, and insist ultimately, with amendments, that we end up, at least in the legislative management of this issue, with intervention that actually works and is effective and at least in part addresses the mantra of the government, which espouses the desire to deal with this matter effectively. We will not allow legislation to pass through this parliament in total without there being some comprehensive assessment of the legislation and making sure that we do not end up as we did with the SOCA mark I legislation.

To facilitate a thorough but, we would suggest, expeditious as possible scrutiny of this legislation, the Liberals has established an anti-gangs task force (that task force has been convened and, indeed, convened as early as this morning) to take written and oral submissions from key stakeholders that will inform the Liberal Party's position. The members of that task force are the opposition's shadow attorney-general (Hon. Stephen Wade), the shadow minister for police (the member for Morphett) and myself in my role not as shadow minister but as the opposition spokesperson in the House of Assembly on law and order matters. The opposition task force has not only invited a broad group of stakeholders to contribute their submissions but has also commenced the receiving of submissions, oral and written, this morning, by one of those.

That will take place in the early part of next week; that is the plan for receiving further submissions. Evidence, of course, is not given on oath, as we know, but the stakeholders will not only be invited to provide an open and frank contribution to assist us in our deliberations but they will also be given the opportunity to present material confidentially to us, which, of course, we will respect.

We hope the program will then allow the legislation, with amendments, to be considered in the March sittings of the Legislative Council. I have no control over what happens in the Legislative Council; however, I have had an indication from the lead speaker (our shadow attorney) that they will use their best endeavours to deal with any consideration, including amendments, as expeditiously as possible, that being subject, of course, to their having a reasonable level of scrutiny of the bill.

In general, the opposition's intention is that there will be no delay on our part. We are as keen as we were back in 2009, after we had the first High Court challenge to legislation that had previously passed through the parliament in the High Court. We are as keen as ever to have at least the legislative strategy remedied. I understand further that the government has advised that there are no applications for declarations that are ready for submission to a court or ultimately to a nominated judge under this legislation that we will be dealing with that are ready to go. In any event, the regulations required to operate the legislation are not yet drafted.

I just want to make it absolutely clear that, whilst we will be as expeditious as possible, with the qualification of scrutiny, with the passage of this package of legislation through the parliament, it is important to understand that, as best we understand, there is no waiting application pending in the wings. The government does not have something that will be delayed because of the passage of this bill, and as we understand it we still do not even have draft regulations. There can be no criticism of the opposition. There is no basis upon which there will be any scintilla of support for an allegation by the government that there is any delay on the part of opposition and, therefore, it is holding up the commencement of cases to prosecute under this tranche of legislation.

We are further advised by South Australia Police that, in their estimation, there are five criminal organisations in South Australia that would be eligible for declaration. I think it was described as 'only' five; probably five is bad enough. Who these five are is pretty much well known. We are talking about what are colloquially known as the 'bikie gangs' in South Australia. To this extent, it is some comfort that we are receiving advice from the South Australian police that, as we speak, a myriad of other groups of organised crime have not mushroomed or developed here in South Australia. It is also of some comfort to know that there are no more or less than there were a few years ago, when this legislation hit a hurdle—a fatal hurdle—in the High Court.

Those criminal organisations are there and, on current estimates as we understand from the South Australian police, if this legislation is successful it may take years for the declarations to be prepared, submitted and made. That may not be right; it may be that this is a much quicker process, and other law enforcement agencies may that have a different view on that; maybe the Attorney-General also has a different view.

On this package of legislation that we are considering now, even if it transpires that there are amendments, I think it is accepted that the preparation of the work to present a case for a declaration will largely be done by the South Australian police. I think it will be their preliminary work that needs to be considered even to start a case or establish sufficient preliminary work to prepare a declaration. On that basis, it is reasonable that we as an opposition, and I think parliament generally, relies on what the police tell us; that is, it could be some years before they would be in a position to progress an application for a declaration.

We also understand that the government is considering further amendments, and I note that, on a bill we will deal with later—what we are generally referring to as the 'control bill'—there is a tabled amendment in respect of review of the operation. I have not received any other amendments from the government; during the course of discussions, there has been some indication that there may be some others. If there are, we look forward to receiving them; however, if they are not provided today, then it may be difficult for us to give an indication as to whether we will be accepting them in another place. As I have indicated, we will be progressing this through our house, and we hope that, if the government has any other amendments, it tables them today so that we can attend to that.

I think it is also important that we understand that, in the legislation before us, as a general rule (and again, I am speaking in respect of both pieces of legislation, that is, the offences and control bills) over the last 10 years the government rhetoric which has been thrust out in the media—usually subsequent to events that have caused fear and anxiety for members of the public, and sometimes serious injury or death to alleged members of organised crime, and are unsettling, unnerving and worrying to the community—and the government's strategy has been to announce all sorts of reviews and legislative reform with a commitment to addressing these matters in a strong way. Usually, this is to support their presentation to the public that they are on the case and they are going to deal with it and be effective and crush this threat to the community.

Some of it is no doubt designed to give the public some reassurance that something is going to be done. Some of it, of course, would be to conceal the embarrassment of the government that the situation yet again explodes into a dangerous event. However, largely, it is to conceal the embarrassment of the government in their failure to have actually dealt with this matter.

In a matter of days, it will be the 10th anniversary of this government. In that 10 years, the situation of organised crime, or, in particular, the gangs that we have referred to, has deteriorated substantially. Firstly, there are more members in these identified gangs. In the three years since the first SOCA—that is the SOCA mach 2 legislation—outlaw motorcycle gang membership is up 10 per cent. We have gone from 250 members, apparently, to 274 members. Whilst we have not, apparently, got any more gangs or organised crime groups that might come under the scrutiny of this legislation in due course, we have certainly got more members.

We also have the transformation of one of the gangs—that is the New Boyz street gang that has transformed into the Comancheros. Sadly, we have no fewer bikie fortresses. Recently, I was inspecting a transport and infrastructure project in the northern suburbs. It was a very interesting project and I will not, of course, dwell on that today. However, after that inspection I travelled past the street where the Hells Angels establishment is there emblazoned with flags. They have the usual barbed wire around a high fence and so on. There are high fences, security cameras brazenly there in the clear light of day.

The flag was flying with the big insignias on the front. It is sort of like a rather poor taste motel. It is all advertised and proudly displayed. After 10 years of this government they are still there. They still have a big high fence there. They are still operating. They still have a big fortress. So, all of the rhetoric we had from the previous premier and Attorney-General about how they were going to—it was a bit like a 'fight them on the beaches' speech from the former premier when, election after election during his reign, he would promise to get rid of the fortresses and break down the walls. He was going to fight the bikies and bring peace and harmony to every household. Of course, that has not happened.

Also in the last 10 years—I think the public understand this very clearly—whatever internal controls we have had over the management of the members of some of these gangs, the situation has become more dangerous. Somehow or other our current enforcement procedures have become weaker or, alternatively, these people have become a whole lot smarter and diverse in their activities, or more bold in what they attempt in a public way. However, what we have seen as members of the community is bolder and more risky behaviour out in the public.

The classic example of this is dangerous behaviour between alleged motorcycle gang members—shootings, stabbings—behaviour which, to a large degree, historically, has not been out in the streets and in the public arena where others are exposed to the risk. The idea that members of the public have not been in the fray as such no longer exists. There is now more public and more risky behaviour, tragically, in circumstances where occasionally innocent people have been hurt. In the past 10 years something has gone terribly wrong, all this rhetoric has not worked and we now have innocent people in the fray.

Not surprisingly, we have more fear. Assessments have been done on this—some are academic, some are statistical data collection (surveys) and some are just those who contact talkback radio—but most members of this house understand from talking to people in their own electorates the level of fear people have when walking around locally at night, and that that has heightened rather than lessened. The government's promises of protection and of ridding the community of these insidious cultural crime networks have not placated that. Even if it has put it out there, the public does not believe it and, as a result, there is even more fear in the community.

The other aspect, notwithstanding the crime rate statistics often quoted by the government that in certain select areas there has been a reduction from one year to another, tragically, the South Australian homicide rate is the equal highest of any state. Far be it from a situation where the government would have us believe that its strategy and the crackdown on crime has resulted in a diminishing number of serious crimes in this state. Whilst it cherrypicks certain offences that have reduced from one year to the next, the reality is that homicide—which, clearly, has to be one of the worst and most serious felonies—is the equal highest of any state.

Recently, in another debate, I raised a concern about the number of homicides in the 2010 year being 37. This is quite high even relative to what we have had in the past. It is fair to say that the majority of them were committed by men and in about a third of the cases the alleged offender had been known to the victim—they were either a spouse, a partner, an ex-partner, a friend or a relative of some kind—which is concerning in itself. According to the data for the preceding year, a third of our murders are committed by people known to each other.

Historically, in this state, as a general rule, the majority of our murders have been committed in-house, if I can put it that way, by people who know each other: husbands killing wives, wives killing husbands, children killing a parent, and the like.

Notwithstanding the fact that the government has not addressed that issue—and that is a matter for debate on other legislation and for other forums—there has been an extra number of homicides by strangers to the victim. It would not be unreasonable to presume from that that, if the organised crime in this state is increasing in number of members and if there are no fewer fortresses and no impediment to their criminal activity by legislation or prosecution under current laws, then there is a reasonable expectation that the increased number of homicides could be related back to organised crime.

I do not think anyone would accept for a moment that the Focarelli death earlier this year and the injury to the victim's father, who subsequently went to prison, was some domestic dispute or accidental death or injury. Clearly, the public understand that the origins of that type of public shooting are in organised crime. We may be wrong; the case is still being investigated. I do not know that anyone has been charged with that unlawful death at this time but I think the public can be sure that that is not in our usual type of unlawful death in this state. We are now moving into an era where it is dangerous, not just in domestic circumstances but also in the streets, where we are exposed to those who want to have a war with members of other gangs or, alternatively, unresponsive or uncooperative victims of organised crime; that is, those victims who might be resisting an extortion attempt by a member of a criminal gang and become a victim as a result.

The Director of Public Prosecutions, Mr Stephen Pallaras QC, has recently made some comment about this situation over the last 10 years. He made it very clear that the phrase 'get tough' means absolutely nothing. It means making a lot of noise, but what we have to do is 'get effective'. He is someone who has been brought in by this government, replacing Mr Rofe QC as our director of public prosecutions. It is an agency within our whole law enforcement area which is independent and which deals with the most serious crimes in this state—the prosecution of them, particularly. He would clearly see what is coming through in files and case load in his department and be concerned about what is happening. I think it is reasonable that we rely on his assessment, given his experience and that he is very close to the action at this high level of crime in this state and its prosecution.

The other thing that is coupled with this is the government's rhetoric and strategy in dealing with this problem. It is focused in direct response to events that happen in the community or to the breakouts that bring into the public the existence of these criminal gangs. What is happening alongside that is a large area of crime that is going unnoticed, and I want to touch on this for a moment.

I was recently looking at some statistics of the people in this state who are currently charged with murder. There is a number at any one time, of course, awaiting trial to have their case heard. The prosecution may still be preparing the case and it gets adjourned, and so on, but, for whatever reason, at any one time, there is a number of people awaiting trial for murder. Although we do not have a big sign on the particulars of a case or of a defendant and whether they are a suspected motorcycle gang member or a member of an organised crime gang, it seems to me that, as we speak, we have this situation in South Australia where the government's strategy in dealing with organised crime has failed to the extent that there may be only a very few people who are actually suspected organised crime members who are currently charged with murder and that we actually have more children in this state charged with murder than people who are identified in organised crime.

I get very concerned every time I pick up the paper or hear on a news bulletin that someone has been killed, whether they are in a car accident or there has been some other intervention, and it is a non natural death; and I am sure other members do. But, it absolutely sickens me when I hear a news report where the offender or offenders are children, where the alleged murderers are children, sometimes killing other children. Yesterday, we dealt with a piece of legislation concerning a 2008 incident in Grenfell Street where one 14 year old stabbed to death another 14 year old. Just a few weeks ago, we had a 15-year-old boy in court who was sentenced for a significant nonparole period, which I cannot quite remember now, on a life sentence for the murder of a 63 or 64-year-old woman.

We have a number of these cases, and children are now lining up in the docks in our courts and they are not members of motorcycle gangs, as best we know. These are children, for goodness sake who, ordinarily, under our laws would be in school; who, ordinarily, would be expected to have the support of their parents; and who, ordinarily, would be expected to be captured, not slip through the net of our families and community services, to make sure that they have a happy, healthy and productive life, not be languishing in children's youth facilities (otherwise, our children's prisons) awaiting trial for murder.

That is not acceptable to me. It shocks me that we now have a number of children who are awaiting trial for murder, not just in what I would call historical cases where there has been an incident in a family situation where there has been protection of a family member and someone has been killed by a child, but in circumstances where they are out in the street perpetrating murder on other young people or older people, usually the more vulnerable ones in the community, and they are now awaiting those charges.

While the government has been out there screaming from the rooftops about what it is going to do about organised crime, we have very few from those crime gangs who are actually sitting in docks awaiting trial for serious offences. We have an alarming number of children involved. I think it is time that the government understood how seriously it has dropped the ball in other areas and deal with these issues—not to be critical for attempting to deal with these but for being out there carrying on at large about how effective it has been when it has been demonstrably unsuccessful, and meanwhile the very people in our community whom we should be trying to protect—our children—are out there either as victims of serious crime or now perpetrating serious crime, including the most foul charges of homicide and murder.

I do despair at the government's approach on this. I am going to be considering the more specifics of the direct bill that we are talking about today. It is a little hard to separate the offences bill from the control bill (and we are going to be dealing with these consecutively), but the government has in its consultation on this presented in fact three bills; however, we are considering the two bills as part of a package that went out for consultation.

A number of submissions have been received, and, as I understand it, notwithstanding the government's obstruction since the ascension of the current Attorney-General on the provision of submissions to the opposition on other bills (and it has been quite difficult for the opposition to then be able to properly scrutinise and debate prior bills), in this instance I place on the record my appreciation—and I hope that he is listening to this—of the publication of submissions that were made on this package of bills on the website.

I hope that is the beginning of the dawn of a new era of openness and transparency by the Attorney-General and that, as he approaches his two-year anniversary as Attorney-General, he has now seen a new light on the horizon, that he is now reformed and he is going to make sure that this is a precedent for his future conduct in ensuring that all parties—not just the opposition, but all parties—via the internet at least have access to these submissions so that they can meaningfully contribute to the debate, instruct and advise us, and, of course, be able to make a contribution to make it work. Well done to the Attorney. We will see how long it lasts on other bills, but I would encourage him with this compliment—rare as I give them—for him to be enthused enough in the future to keep up the good work.

Of the submissions, a number came in from interstate attorneys-general, and I will be asking some questions about others that may have been consulted. They were most interesting because members would be aware that there are other jurisdictions waiting in line to see how we might progress this situation in South Australia, or alternatively they have taken up other models. They have decided, following South Australia having led them into an abyss in the High Court, to restructure their own models and are progressing in a manner slightly differently. However, it is fair to say that the type of legislation we are dealing with is novel to the extent that it is really only in the last five or six years that we have had this type of legislation under debate and consideration, so it is important that we are in touch with what they are doing.

There was also a very important submission, I thought, from the Legal Services Commission of South Australia. Members would be aware that the Legal Services Commission is a body that provides legal services to certain litigants, some in the federal jurisdiction and some in the state jurisdiction. Not surprisingly, it receives funding from both state and federal governments because of that, and there are narrow areas of litigation at which they are entitled to have representation.

Under state law, largely this is available for criminal cases. There is a very narrow opportunity in some civil matters, but largely it is to be able to ensure that litigants are not prejudiced and not excluded from or denied justice in having representation in criminal cases in relation to the state jurisdiction, so they have a very significant role in providing legal representation for defendants in the state.

Some may say, 'Well, this is really going to be outside their area of work because this legislation is going to go after those gangs, who must have plenty of money, and they will be able to find their own lawyers and won't need to have representation.' However, it is fair to say that the Legal Services Commission understands that the issue of control orders—in particular, under the new legislation—will place extra financial burden on the commission's resources, and their understanding is that funding has been approved for the financial year 2011-12 in the amount of $325,000. The plea from the Legal Services Commission is that there be continuation of funding for that.

They do make some observations about the use of the Supreme Court jurisdiction rather than the Magistrates Court jurisdiction and the avenue of having an appeal process to the Full Court. It seems that largely their concern about that is twofold: one is that it is an expensive, superior court, and the process of appeal will of course be accordingly more expensive as well, and that is obviously going to attract a cost; the other, and I think more important concern, is that that court under this proposed legislation will have, in circumstances, the capacity to inform itself 'as it sees fit' which, in criminal cases, is certainly very novel.

It is not unique but it is novel, to the extent that that capacity and opportunity to ignore some of the rules of evidence has had its place quite appropriately in some civil litigation and special cases for certain witnesses and the like but, generally, there are good reasons for a high standard of evidentiary material being maintained in criminal cases.

I am not going to go through them in detail, but they have very considerable concerns about what is generally perceived as the whole tranche of this legislation as being contrary to the civil liberties, in flagrant disregard of rules of natural justice, etc. I am paraphrasing their position on that, but generally they take that view. They have the usual concerns about the use of hearsay, the use of criminal intelligence, making control orders ex parte, etc.

They raise a number of concerns, some of which we will be picking up as opposition, but it is fair to say that we do accept, and hence will be supporting the second reading passage of this bill, that crime networks and outlaw motorcycle gangs, whatever you want to call them, are a serious problem for our state.

Whilst the government have dropped the ball on it in their strategy of addressing it, we do say it is necessary for us to have a new level, a new era, a new approach, that is deserved of special circumstance. We are not going to simply allow a carte blanche disregard for all of the rules, but we do accept the fundamental principle that the whole law enforcement, including our criminal law, is simply not adequate to be able to have any serious impact on the gangs.

Meanwhile, as Adelaide has shootings happening in it, we have awaited legislation. Probably that is one of the reasons that the public are so frustrated by the government's extraordinary delay in bringing this legislation back. After the High Court decision on the question of excluding judicial determination of matters—that is, effectively going to require the judiciary to automatically undertake an executive position, which of course they ruled as out of order—the opposition said to the previous attorney-general, 'Look, come back in and let's resolve this in the parliament. Let's sort this out. If this is clearly going to not cut the custard as far as it goes with the High Court—'

An honourable member: 'Cut the mustard'.

Ms CHAPMAN: —this is a new one—'then we need to deal with it.' But he would not do it. Four months later, we had an election, of course, but ever willingly we were to call back the parliament and get this resolved, ever helpful that we are.

Now, of course in 2011 there was a further decision in New South Wales—I will not go through the whole of the detail; the Attorney has referred to these in his second reading—in which the High Court also said on legislation of a similar vein, 'Look, this is also defective because we cannot have these orders being made without reasons being given.' I hope in my summary of that I have not butchered the High Court's very extensive deliberations of judgement but, in essence, we have had no adequate judicial determination, we have had no reasons, and we have had a problem.

We are here in 2012, after we have had another shooting, with haste being employed upon us to get this legislation under way. It just concerns me that if the government were really serious about this, even if they were to argue that, 'In hindsight, as it turned out, we may as well have waited for the second High Court decision anyway before we dealt with some of this,' the reality is that they have had plenty of opportunity to put this out for consultation, back in 2009, and have this matter dealt with. Then, of course, post-March 2010, with the new post-era of Atkinson, we had a new regime that could have moved this along considerably. However, it seems it took another shooting before the government was suddenly galvanised into moving this forward.

The Hon. M.J. Atkinson: No, it was another High Court decision.

Ms CHAPMAN: I will be asking a few questions about the costs on that when we get down there. In any event, the Legal Services Commission was quite concerned about a number of aspects. I will refer to the fact that it also raised—and not a lot of others raised this—the question of the presumption against bail. The commission is particularly affected by this, and I say that because the people it is going to be representing, I am assuming, do not have any money or have no disclosed assets and, therefore—

The Hon. J.R. Rau: That's not the people we're talking about.

Ms CHAPMAN: That is right. We have been through that, but some of these others who may suggest that they need representation are the ones who need to be able to prepare for trial, and if there is a presumption against bail and the defendant is in custody, then the Legal Services Commission is somewhat impeded in its representation because it becomes more costly to represent that party. So, not surprisingly, it is concerned about that.

The commission also raised the idea of having the revocation of bail based on the feelings of victims and other persons—which is reasonable because it adds to this very general approach that has come in—because it does remove the objectivity of the judges in these instances to make decisions that will lack certainty as a result. If you introduce an element of taking into account the victim's feelings on these it does—

The Hon. J.R. Rau: Risk, not feelings.

Ms CHAPMAN: If it is to be an objective risk assessment of whether the victim is going to be exposed to some intimidation or approach, or even assault, and that there is a genuine fear, then that is an objective assessment. They can hear evidence or statements from the prosecutor identifying where the risk is—that there may be some intimidation or worse towards a victim—but that is an entirely different matter. However, remember that the presumption against bail puts the onus back on the defendant to raise it.

I make the point that the Legal Services Commission has expressed its concern about accessibility and extra cost, but also a level of uncertainty comes into the application of the bail revocation applications even when giving advice. Again, that is an area which, not surprisingly, is of concern to the commission.

I now turn to the joint submission provided by the Law Society of South Australia and the South Australian Bar Association. I place on the record my appreciation—and I am sure that the Attorney does, too—to Mr Ralph Bönig, President of the Law Society, and Mr Mark Livesey, who was president of the Bar Association at the time, who provided a comprehensive submission.

Although there has been, in the past, a level of disrespect towards these organisations by prior attorneys-general, I think that the current Attorney would agree that these are important legal bodies that do provide assistance to us here in the parliament and provide—

The Hon. M.J. Atkinson interjecting:

The DEPUTY SPEAKER: I warn the member for Croydon of the new powers of the Speaker.

Ms CHAPMAN: I hear some chirping noise in the background from the other side, and I make it clear that it is not from the Attorney: it is from some former ghost of the past, who—

The Hon. M.J. ATKINSON: Point of order.

The DEPUTY SPEAKER: There is a point of order. Member for Bragg, please resume your seat. Member for Croydon.

The Hon. M.J. ATKINSON: When a member is canvassing the merits of an organisation, it would be appropriate to declare whether he or she is a member of that organisation.

The DEPUTY SPEAKER: Member for Bragg.

Ms CHAPMAN: I am glad that the member for Croydon has come in to give me advice on potential conflicts of interests. I am pleased he has raised that but, as I was just opening on this matter, I do intend to proudly confirm that I am a member of the South Australian Bar Association, and have been for 10 years, and, prior to that, a member of the Law Society of South Australia for about 20 years—a proud member.

The DEPUTY SPEAKER: Thirty years?

Ms CHAPMAN: Total.

The Hon. J.R. Rau interjecting:

The DEPUTY SPEAKER: That is the point I was trying to make.

Ms CHAPMAN: I thank the former attorney-general for his usual inane interruption, but on this occasion it is to remind me to tell the house of that interest.

The DEPUTY SPEAKER: Member for Bragg, there is no need for those comments.

Ms CHAPMAN: As I was saying, former attorneys-general have not had a very respectful relationship with these organisations, but I know that the current Attorney has a different approach. Although it quite often seems as though he does not take a lot of notice of what they say, at least we have not had as much aggressive public dismissal of those who attempt to represent these organisations as best they can to put forward good law reform and development in this state.

In their joint submission—and I particularly refer now to what we are calling the offences bill—the Law Society of South Australia and the South Australian Bar Association identify aggravated offences. During the luncheon adjournment, I will find a schedule that will help me more quickly summarise as to where the government has picked up some of the recommendations of these two bodies. However, in respect of the whole notion of aggravated offences, on the amendments to the Controlled Substances Act 1984—and in particular section 43(1)—they state:

We express concern that the newly created aggravated offences are not in fact an aggregated version of the basic offence. The definition of aggravated offence includes offending which does not relate to an organisation as such.

They go on to state:

The difference in maximum penalty between the basic and aggravated offences is substantial and cannot be justified for the many offences falling within the aggravated offence definition.

They provide examples, but in particular they point out the definition of who may form a criminal group which, under the definition, is to consist of at least two people being captured in the definition of 'criminal organisation'. Therefore, their concern is that if two people get together for a criminal purpose within that meaning, they can be liable to substantially greater penalties.

They say that the expansive definition of 'criminal organisation' will capture a greater percentage of offenders who are not part of an organisation. In their recommendation they also highlight that the definition of 'criminal organisation' should be limited to organisations in the definition in section 3 of the Serious and Organised Crime Control Act 2008. This would then exclude at aggravated offences the multitude of offences that are routinely planned or committed by more than one individual.

The width of the definition is also raised on a second aspect, in that they suggest that this is effectively a deeming provision. In particular, they say:

A person is taken to have committed an aggravated offence if he or she displays a tattoo or wears clothing identifying a criminal organisation. There may be no connection whatsoever to the organisation; however, the offender will be taken to have committed the aggravated offence and be exposed to a much greater penalty unless the offender provides otherwise.

Here the discharge of burden of proof may be difficult, and their recommendation is that aggravated offences should not be established by a deeming provision, with the onus of proof to the contrary on the accused. They say:

The risk of miscarriage of justice is too great to so determine circumstances of aggravation. It is otherwise unfair for the accused to carry the burden of proving that he or she should not be found guilty of the greater offence.

The second area that they deal with is the excessive sentences on participation in the criminal organisation. Under section 83E they suggest that the maximum penalties there would be manifestly excessive, and they say:

Each of the penalties appears to be highly disproportionate to many offences to which they apply.

They further point out:

Mere participation in a criminal organisation attracts a maximum penalty of 15 years if it contributes to any criminal activity, no matter how minor.

They give some very helpful examples of the differences that would apply in these circumstances. For common assault the maximum penalty is two years, but if you are part of a criminal organisation it will be 20 years' imprisonment. For property damage, which currently has a maximum penalty of 10 years' imprisonment, and for threatened property damage, which is five years; under these new rules if you are part of a criminal organisation and you do exactly the same thing you would have 20 years' imprisonment for both.

Assault on a public officer is a serious offence and currently has a maximum penalty of seven years, but if you are in a criminal organisation and do exactly the same thing you get 25 years. So, according to the Law Society, we are introducing a manifestly excessive difference simply as a result of being a person who is in a criminal organisation, which, they highlight, is so broad and will capture so many that it will be unjust and unfair.

It is important to remember that this is particularly dangerous because the removal of discretion in sentencing is also part of this bill.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: On section 83E(5), the Law Society says, 'This provision removes the discretion of sentencing court to impose concurrent sentences.'

The Hon. J.R. Rau: It is hardly mandatory sentencing.

Ms CHAPMAN: The Attorney says it is hardly mandatory sentencing; not in the sense that we understand of mandatory time frames. That has been set in maximums. What is mandatory for the judge, in these circumstances, if this passes, is that there will be no capacity to impose a concurrent sentence. In doing that, the Law Society and the South Australian Bar Association—and this is nothing new for them—have often indicated that the principles of sentencing are well settled and are able to be applied to ensure a just outcome. Judges do not need to be directed by this legislation. They cannot allow for concurrent sentencing. Again, all this does is increase the risk of unfairness in the sentencing process. We have a broad application capturing potentially innocent people and we have a manifestly excessive regime. If you do happen to be called into that group, the judiciary has reduced discretion in the sentencing.

The Attorney has made statements publicly—and I think it is the tenor of some of his statements in his second reading speech, although that seems to be a little more disciplined—that people will be warned, they know, they do the crime, if they are going to be tied up with these groups, then they will pay the price. Again, I paraphrase his rampant public statements on talkback radio and the like.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: Rampant. The reality is that greater legal minds than his and mine will have looked at these and will understand that it is important to target those who we are really trying to address here. However, to go forward with a piece of legislation, having received the advice of how dangerous that would be, and for it to be so broad that you end up capturing people in the community who may have done the wrong thing and who will be labelled as being complicit in some organisation rather than simply being an accessory or in a joint venture, we then create a dangerous situation for abuse of this legislation for those who should not be captured by it and, who, clearly the government says it is not trying to capture.

We also place an unfair disparity in the sentencing that will apply, and we further restrict judges in being able to remedy injustice. Part of the idea of having some discretion in sentencing is always to ensure that judges can take into account the particular circumstances of cases and, if they felt that there had been an aggravation—

The DEPUTY SPEAKER: Point of order.

The Hon. J.R. RAU: Thank you, Mr Deputy Speaker. I do not want to interrupt the honourable member's flow because I know she is in her rhythm at the moment, but I think there may be a point of relevance here, and I have raised this simply from this point of view: my understanding of what the honourable member is saying is that she acknowledges that we have consulted with a large number of people and, as a result of that, there has been an amendment to the legislation. Indeed, Mr Bönig recently said that, by and large, they thought it was now fine, and again I paraphrase.

I am just wondering, because I am puzzled, whether the critique that the honourable member is running over the legislation is the critique that was applied to the original draft bills as opposed to some later comment of which I am not aware that is applied to these bills that are before the parliament. If the critique is referring to draft bills, with respect to the learned honourable member (I think that is an appropriate title, or honourable learned member), I think it is not relevant because that point in time has been superseded by those matters being taken into account by me and other people who worked on the legislation.

The DEPUTY SPEAKER: As much as I may agree with your sentiments, honourable Attorney-General, I do not think there is a point of order because you will have an opportunity in your closing statements to correct the member's digressions.

The Hon. J.R. RAU: Thank you, Mr Deputy Speaker, but it will help me to understand what she is saying if she could just help me a little bit on that.

The DEPUTY SPEAKER: It would probably benefit all of us. We can only pray. Member for Bragg, you have the floor.

Ms CHAPMAN: I did indicate, on referring to the submission by the Law Society, that some of these may have been taken up by the government in the draft that is now before us; that was acknowledged, so I am sorry you did not hear that. I indicated that my summary of those few things they have picked up is not currently before me and that during the luncheon adjournment I would find it and put on the record what you have actually complied with in relation to listening to their advice.

The Hon. J.R. Rau: I thought you were saying we had it wrong.

Ms CHAPMAN: You certainly had it wrong, that's for sure.

The DEPUTY SPEAKER: Member for Bragg, you do not have to actually use your time until 1 o'clock if you do not want to.

Ms CHAPMAN: I have a number of other topics to raise, but I am just trying to identify whether it would be more helpful to the parliament if I do so in the control bill, which is to follow, than in this bill.

The Hon. J.R. Rau: I can address this one in the next few minutes and then we can do the control one after.

Ms CHAPMAN: I think that is probably easier.

The DEPUTY SPEAKER: Notice how seriously the Attorney-General is taking your serious comments?

Ms CHAPMAN: Yes, I think I will raise all other matters in the control bill. On that basis, I indicate that I would like to move to the committee stage.

Dr McFETRIDGE (Morphett) (12:52): I will not take long, as I understand the Attorney is keen to wrap up this bill before lunch. As the shadow minister for police, I want to make some points about this legislation. Let us hope that we do not see the legal minds in South Australia and other places do what they did to the previous attempts by this government to control outlaw motorcycle gangs and others involved in serious crime.

The need for control of outlaw motorcycle gangs and others involved in serious crime in South Australia is one I am well aware of, having had three briefings from SAPOL. It is disappointing that the former premier, despite his grandstanding and threatening to bulldoze bikie fortresses, achieved so little in the 10 years that he was in government.

Even in my own electorate, down at Glenelg North we had a drive-by shooting. The owner of that house said it was mistaken identity, and I have no reason not to believe that man. The fact that people feel they can drive around the place and just shoot bullets willy-nilly is turning Adelaide into Dodge City, and we need to make sure that is never, ever able to continue, whether it is under this government or the Liberal government in 2014.

The need to have tough legislation is important. I stand by the fact that I have said in the past that we need tough legislation but, not being a lawyer, I should have used the term the DPP used, that is, 'effective legislation'. If legislation is not effective, it cannot be tough, so it has to be effective, and effective legislation is what we are trying to achieve in this place today. I support the opposition's urging of the government to make sure that this legislation is what everybody wants—that is, to have legislation that is effective in controlling serious and organised crime.

We cannot go through endless legal battles. These bikies and others seem to have very deep pockets and very clever lawyers. We cannot keep going through the endless legal battles we have seen in the past. The penalties in this legislation have been ramped up significantly, but it does not seem to be the penalties that deter these people—they seem to live in a parallel universe, where they are unconcerned by going to gaol or by penalties. The chance of getting caught, as for any criminal, is a serious deterrent, so we need to ensure we are supporting SAPOL by having legislation that is effective.

The Firearms Act is a powerful piece of legislation. People say, 'Well, why don't you just use the legislation like the Firearms Act?' Once again there are issues there with firearms prevention orders, issues with bail and so many other issues. I am not a lawyer, but the police have told me they have a number of issues with the current legislation, so the changes in this legislation to the Bail Act, where there is a presumption against bail, is a good thing, as is the Australian Crime Commission involvement with the powers to coerce people to give evidence.

We see all the time the code of silence. It is ridiculous that they can sit there, shut up and say nothing, yet we are unable to act, unable to enforce the law and allow South Australians to live in complete safety. The Controlled Substances Act: increasing the penalties significantly and making sure the main source of income for these bikies and other groups, which we all know is drugs, is something we can all get on top of and it is very important.

One of the biggest things we have to overcome with these bikies is the intimidation and fear, so the Evidence Act is being changed so that evidence can be taken and people's identities can be protected, because we know these people have long arms and seem to have feelers out everywhere and are able to intimidate witnesses. The police evidence given to both the shadow Attorney-General, the member for Bragg, myself and the Leader of the Opposition is that the bikies and others involved in serious crime can achieve what they want through fear and intimidation. It has to stop and stop now and this legislation hopefully will go some way towards doing that.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (12:57): As always, I thank the member for Bragg and the member for Morphett for their contributions. If I am permitted to do so, I give high points to the member for Morphett because, as I listen to him, he seems to be more on the same page as the government, the police and the Director of Public Prosecutions whereas, unless I am reading the tea leaves incorrectly, my learned friend, the member for Bragg, appears to be channelling my other very good friend, the Hon. Sandra Kanck, formerly of another place, so that is an issue.

I start by thanking the member for Bragg for her kind words. They do not fall from her lips often, and when they do it is to be treasured and I will cut out the page from Hansard when I receive it tomorrow; it will be framed and I might ask the honourable member if she would not mind signing it as a memento.

I was thrilled to hear about the task force. I am not sure whether that sits in the hierarchy above a working party or a steering committee, but it clearly has some gravitas. I am wondering whether, to be entirely consistent with the honourable member's repeated requests of me and the government that we reveal all our submissions online, I assume the task force will be posting on the Liberal Party website all submissions made to it by the various people to whom the task force is addressing their interest and concern. I look forward to seeing that, and I will keep a tab on the honourable member and her task force in the same way she has been keeping a tab on me in respect of the revelation of these matters.

Ms Bedford interjecting:

The Hon. J.R. RAU: It's a bit like that, yes—following closely I think I would rather say. As is often the case—and I will probably have to seek leave to continue my remarks shortly: that will leave everyone hanging, won't it?

Mrs Geraghty: About now.

The Hon. J.R. RAU: About now. You will have to wait until later to hear the rest of this, unfortunately. I seek leave to continue my remarks.

Leave granted; debate adjourned.


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


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