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

Second Reading

Adjourned debate on second reading (resumed on motion).

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (15:45): Before lunch I know that many of you were quite interested in the progress of the debate on this bill, so I am pleased to say that it is going to continue a little longer.

The DEPUTY SPEAKER: You are about to enlighten us.

The Hon. J.R. RAU: I am hoping to. I want to make a couple of points about the legislation and some of the remarks made by the honourable member for Bragg. First of all, I do appreciate that the honourable member has not had a long period of time—nor has the gentleman in the other place—to fully consider the detail of these two bills. However, they were presented to the parliament when we last sat and I did actually personally brief the honourable member and the Hon. Mr Wade about some of these matters. I cannot recall exactly when—

Ms Chapman: On the package.

The Hon. J.R. RAU: Indeed, about the package, which included these measures. I am a little less—I do not want to say judgemental, but I suppose I am slower to become agitated than the honourable member was in her contribution about me. I do not entirely blame them for not having all of their amendments here ready to go right now. However, can I say that it would be very helpful if we had some particularity about areas of concern in relation to these pieces of legislation, because we do want to make sure that we have as much time as possible to consider and reflect upon, first of all, whatever points of difference there might be in a general sense, but also any changes in particular wording that might be contemplated.

So, when the honourable member or her counterpart in the other place get whatever amendments it is that they might be contemplating—and I hope there are not that many—I would be very appreciative if they could provide me and those who advise me with copies of those as soon as possible. I do not want to be in a position where, when this comes into the other place, we obtain for the first time notice of any detail of the amendments that the opposition might be wishing to proceed with. I make that request of the honourable member and, in the context, I think that is reasonable.

I do not wish to be unfair in saying this, but it is a little bit unsatisfactory that, in many instances, we have had the experience of legislation being presented here and we do not have much more than a vague intimation of matters of concern on behalf of the opposition. Therefore, I do not have the opportunity to place on the record here the views the government holds about those particular proposed amendments. What the result of that is, of course, is that when the matter goes to the other place and the amendments pop up for the first time, if any member of the other place wished to understand whether there was agreement or disagreement—and, if so, why—in relation to any particular amendment, that would not be possible because there is no record of me or, when it is not my legislation, any other government representative for that matter having placed on record our particular view, and I am not sure that is conducive to the best use of parliamentary time.

As I said before, I do not wish to press that too much in relation to this matter because I do realise that time has been short, and I do understand that the task force has been out and about and I am looking forward to reading their material. As I said, I think it is important that we do actually have a debate in here if we can about matters that are of substantial difference, if there are indeed any; and can I say that I hope there are not, or at least not many.

I just want to recap briefly on the consultation process that has gone on in relation to these bills because I think it is probably relevant. In August of last year we distributed draft legislation. That draft legislation contained, from the point of view of its direction and its basic content, pretty well exactly what we have in front of us now. However, it is true that, as a result of the consultations—which I should indicate, Mr Deputy Speaker, included sending a copy to the Hon. Stephen Wade, and I am pretty sure the member for Bragg might have seen or at least received a copy at that time; so we were not trying to hide anything from anyone—we received responses back from the Law Society, the Bar Association, the Commissioner of Police, the Crown Solicitor, the Legal Services Commission, the Director of Public Prosecutions, the judiciary and so forth.

In light of those responses we then went back to the draft bills that we had, and we had what to me now seems like a blur of endless meetings. At one point there was a sense of going around and around the mulberry bush, I think; it even got to that point, but, nonetheless, we did it. Everyone who had a stake in the thing was invited and, indeed, did make contributions, and after literally months of intense discussions the final form that has been presented to the parliament emerged.

I think it is important for those in the other place, and for the opposition in particular, to at least recognise and pay some respect to the considerable amount of balancing that took place during that process, because, at the beginning of the process, there were a number of people who had fairly strong views about different things, and there was a genuine and considerable attempt to bring all those people together, and I think that, on reflection—and I will pay credit and tribute to the people involved in the process—they largely did come to a point of broad consensus about these bills and the measures contained in the bills.

In particular I would like to acknowledge the tireless work of Matthew Goode, who did a great deal of work on this, and his—I am trying to find the right term—muse, I should say, Ms De Palma, who helped him consider a whole range of other perspectives—

The DEPUTY SPEAKER: Insights?

The Hon. J.R. RAU: She gave him insights, yes, and he gave her insights, and then they traded insights and the insights went on and on. For a long time they had a lot of insights.

The DEPUTY SPEAKER: Very insightful.

The Hon. J.R. RAU: It was one of the most insightful episodes of legislative evolution I have witnessed, although my career in that context is not that long. I genuinely expect not to live to see such a thing again.

The DEPUTY SPEAKER: I knew Mr Goode when he was a mayor in local government.

The Hon. J.R. RAU: Yes; he is a formidable interlocutor, I think is the terminology. The point is that they do a great job. I would ask, in all seriousness, the parliament, in particular the opposition, to appreciate that none of the words that are in here have gone in without a great deal of thought; indeed, parliamentary counsel were involved throughout this whole process as well. It is not as if this is some sort of cut-and-paste thing and people have just slapped any old thing down, and near enough is good enough. It is quite the opposite of that.

When the honourable member for Bragg was making her remarks a while ago about the various critiques which had been offered in relation to the original draft bills, I think it is fair to say that most if not all of those were taken into consideration, and in most if not all cases—I would not say 'all' because I cannot not say that for certain—you will see material changes in the actual wording, the construction or the interaction between various provisions in the legislation.

It might be, for instance, that particular concerns, or a particular point they had made, which were expressed at one point in time by the Law Society, the Legal Services Commission or anybody else may not now have resulted in a change. That may well be the case, but by and large there was a genuine attempt to balance all of those things. Obviously, in relation to the Law Society, I am not allowed to join the Law Society, apparently, or the Bar Association.

Ms Chapman interjecting:

The Hon. J.R. RAU: No. The Bar Association told me that I had to go.

The DEPUTY SPEAKER: They wouldn't have a bar of you?

The Hon. J.R. RAU: They would not have a bar of me, indeed. I had to leave. What has happened is that I am ex officio, by virtue of my commission, a member of the Council of the Law Society. I declare that because the honourable member declared her affiliations. I was also very proud to have been an ordinary member of the Bar Association and the Law Society and I have great respect for those two institutions. However—

The DEPUTY SPEAKER: You have no other conflicts?

The Hon. J.R. RAU: Not that I can think of. I just wanted to mention a little something in that context because much was made of the remarks made by the Law Society, the Bar Association and the Legal Services Commission in relation to the earlier drafts. I got something off the computer while ago, which I think is apposite in a way.

Ms Chapman: Is this another pig story?

The Hon. J.R. RAU: No, not really. I am quoting here. I suspect the honourable member for Bragg is probably too young to have any recollection of this, so she may have to look it up. While giving evidence at the trial of Stephen Ward, charged with living off the immoral earnings of Keeler and Rice-Davies, the latter made this famous riposte when the prosecuting counsel pointed out that Lord Astor denied an affair or having even met her: 'Well, he would, wouldn't he?'

Members interjecting:

The Hon. J.R. RAU: Exactly. It was Mandy Rice-Davies.

Ms Chapman interjecting:

The Hon. J.R. RAU: It was Mandy Rice-Davies. The point is that it is often misquoted, can I add. The actual quote, which is from Mandy Rice-Davies, not Christine Keeler, is, 'Well, he would, wouldn't he?' It is misquoted often as, 'Well, he would say that, wouldn't he?' It is important to get these things right. Apparently, that appears by 1979 in the third edition of the Oxford Dictionary of Quotations, just for a bit of background.

The reason I took you to that particular little point is that one might say that of many of the remarks made by the Law Society and the Bar Association. That is not to be critical of them: that is their job. In the end, we have listened to them carefully, we have taken them into account and we have made adjustments but, so far as I am aware, we have to accept that we have been elected to make laws in this place and in the other and that the Law Society and others are not de facto legislators.

They may have an opinion, but the opinion they have has to be balanced against the opinions of others and, indeed, can I say, against the efficacy of any legislation in terms of the capability of SAPOL to deliver. You can construct the most elaborate legislative scheme which is ultimately not particularly of any utility because police officers are not capable of jumping through all the hoops and whatever that are required to make anything happen. There are elements of practicality that need to temper whatever people might think.

Again, I am not particularly identifying the honourable member for Bragg, but there is an element of unreality about some of the high-minded amendments that have been offered in relation to some of the legislation that has previously gone to the other place. As I have said, if it was my friend the Hon. Sandra Kanck, with whom I had many enjoyable years on the Natural Resources Committee, I would understand exactly what was going on because that is the space she was in, but I am a little bit more puzzled about why the opposition has now decided to occupy that particular space.

The DEPUTY SPEAKER: Are you suggesting they are in outer space?

Ms Chapman: And he's off the planet.

The Hon. J.R. RAU: It's quite good, isn't it—outer space, off the planet.

The DEPUTY SPEAKER: I got there first.

The Hon. J.R. RAU: Anyway, we should not talk about particular planets because that always leads us to the seventh planet, I think, but let us not worry about that. I think what we need to do here is to say, on the question of delay, the honourable member has made this comment a number of times. Can I please just reinforce the record—not, I realise, that most people lie awake at night waiting for their copy of Hansard, although I will tomorrow.

Ms Chapman: You'll get it framed.

The Hon. J.R. RAU: I'm going to get it framed.

The DEPUTY SPEAKER: You can have a ceremony.

The Hon. J.R. RAU: I will speak to the honourable member about that. I just wanted to make the point that we knew, at the time that I became Attorney, that there was a challenge pending to the then legislation. That transpired to a result, I think in December 2010, or thereabouts, in a decision which was unfavourable to a part of the South Australian act—I think section 14(2). We looked at that early on and thought, 'Well, what are we going to do about this?'

We then became aware that the model that appeared to be the next logical progression for any change, which was the New South Wales model, was itself the subject of a challenge. At that time, I remember the then New South Wales attorney (Hon. John Hatzistergos) saying that he was very confident that their legislation would withstand a challenge, because they had decided that they would be a little more cautious than South Australia had been when they drafted their original legislation.

As it turned out, the then New South Wales attorney was wrong, and the High Court found that there was a defect in their legislative arrangements and, indeed, the defect that was found in their arrangements was more serious than ours, as it turned out, because it could not be severed, and the whole lot collapsed.

Had we gone forward any time before July of last year with any attempt to amend, certainly the existing legislation—the 2008 act—we would have been taking a constitutional risk and, had we done what the prevailing view would have been at that time, which was to copy New South Wales, we would be right back in trouble again. In July of last year, we received the High Court's decision. Again, a 6-1 decision, I think, with Justice Heydon being in the minority. Anyone who enjoys a good read should certainly read Justice Heydon's dissenting judgement in the Totani case, where he refers to a one-time leader of the Soviet Union as the benevolent Georgian, and Adelaide as the Athens of the South and various other things—it is a great read.

The Hon. S.W. Key interjecting:

The Hon. J.R. RAU: No, he doesn't mention jackboots, or gumboots for that matter. Then, at an attorneys level—that is, the state and territory attorneys—we had several conversations either at or before SCAG meetings, now called the Standing Committee for Law and Justice—SCLJ. Terrible name, isn't it? I do not know where we are going with that one. We had several meetings about this and there was a lot of talk among the attorneys about how could we deal with these things. The view was formed that it would be better if there was some consensus about approach, at least in terms of these declaration control order matters, which I appreciate is the next bill, but I am trying to put all of this in context.

That went on for some time and, in August last year, we distributed our first cut. That was then not only consulted upon locally but we were consulting with the other jurisdictions about what they were doing to give some added perspective to what we were doing. I think in November or December last year the West Australian parliament introduced its version of the legislation which is No 3 on the Notice Paper here. I think the Northern Territory did the same thing around the same time; New South Wales has just done more or less the same thing; and we are now doing more or less the same thing.

With the greatest respect, I do not think the suggestion, inasmuch as the honourable member for Bragg says 'a stitch in time could have saved nine', is right because a stitch in time might have meant that we were even worse off than we are now and we would have suffered the humiliation of another rewrite courtesy of the Wainohu decision in July last year. So, I do not accept that. I think we were cautious and prudent and we have a better product for the fact of having done that.

Of course, we are talking here predominantly about the offences legislation, and the honourable member in her remarks made a couple of points about, first of all, the Legal Services Commission's views. Again, I will not take a trip down memory lane with Mandy Rice Davies, but they have a particular perspective, and they are entitled to that perspective but, the chances that the people to whom we are directing our attention will be in need of assistance from the Legal Services Commission are quite small.

I do not recall that any of the major individuals who are notable members of alleged outlaw motorcycle gangs are represented by legal aid lawyers. In fact, I think it is a well known fact that Mr Caldicott, who is a frequent contributor on the airwaves, has a proportion of his practice that is supplied by these people when they stray into difficult territory. I do not believe—I am not sure and I do not know—and it is not my understanding that all those people are recipients of legal aid funding. I think any concern about a blowout in the budget of the Legal Services Commission based on the fact that (a) there will be an avalanche of these people (because I do not expect there will be—they will be relatively far and few between); and (b) they would actually be so destitute as to require or be entitled to the assistance of the Legal Services Commission, I think, is drawing a very long bow.

Now, the presumption against bail. We are saying in this instance that a small class of people who are charged with serious offences are to be put in a position where there will be an expedited trial; so, they will not have to wait in the line like everybody else. They will have an ex-officio information filed in the Supreme Court, as I understand it, and there is a six-month window within which they are expected to go from the laying of the information to the commencement of the trial. If that has not happened within that time, the six-month bail thing goes back to normal, in effect.

The reason for that is that, one, we are going to be dealing with very few people; two, the trade-off is that they are getting an expedited hearing; and three, the impact on witnesses and victims is minimised because these people (a) are not waiting a long time for a trial and (b) they are not out and about being able to harass or intimidate.

Some people might think that what I am about to say is not true, but I can assure members that these things do happen. There are many cases—and I am able to conjure up at least one where there was a shooting in Wright Street and I think three people were killed—where nobody actually saw anything, as best I can recall.

Mrs Geraghty interjecting:

The Hon. J.R. RAU: Yes, or they gave a statement but later on they either had amnesia or had decided that they would like to live in Lombok or somewhere, and they were unavailable. It is no laughing matter that key witnesses in cases against people who are particularly nasty individuals either disappear, have amnesia or become mute. It is an odd sort of coincidence that is not a problem across the whole criminal justice system to the degree that it is a problem in respect of these people.

That extends not only to witnesses—and it does not necessarily mean that the person has gone up and said to the witness, 'You do this or else.' Every afternoon when you bring your children home from school there might be a man who looks like he should be a member of ZZTop sitting on a large motorcycle admiring your letterbox who waves at you as you drive in. That man is not saying anything to you; if anything, he is admiring your letterbox. But what does that say to you about how you are going to approach this event which looms large in your life, namely giving evidence about either that particular chap or some of his friends. That is really what we are talking about here.

I realise that if one wants to adopt what I agree would be the normal standards for a normal person who does not have a demonstrated history of violent crime or is not associated with one of these criminal outfits where you would say, 'All of these presumptions in favour of bail and everything else should apply.' I agree with that; I do not have an issue about that. But we have to accept that exceptionally dangerous people have to have provisions within the law which protect the community from them.

We also have to accept that the justice system is not working in respect of these people because we cannot even get evidence at trial about these people so that a judge can even make a determination. It does not even get to that point. That is a very serious matter. The legislation that we are talking about now, which is bill No. 2 (the offences bill) has things like the presumption against bail for these people; it provides for again in circumstances where there is a credible threat to jurors or intimidation of jurors for the Director of Public Prosecutions to make an application to the trial judge that the matter be dealt with by judge alone.

Again, I am a big defender of the jury system, but when the jury system becomes an Achilles heel for the whole justice system and when that is turned on its head and goes from being a strength of being judged by your peers to being a weakness because your peers can be intimidated out of doing what they believe in their heart of hearts they should be doing, we cannot ignore that.

Another provision in here that we are talking about is where we have a statement obtained from an individual which provides clear and useful evidence but by the time the trial comes on the individual has either vanished or whatever. At the moment, we have no facility to give the court, even with protections, the opportunity to be made aware that that statement exists.

We have put provisions in which state that, with protections—and they are court protections, they are not reliant on the Attorney of the day, the police commissioner or anybody else—if a prosecutor wants to get this material in, for example, a statement made by a person which is contemporaneous with an event which is useful to understand the context, or whatever it might be, then with certain safeguards we are providing within here the opportunity, first of all, of that being admitted, with caveats, and then it is a matter for the trial judge (a) to make the decision about the admission and (b) to determine what weight, if any, that statement is to be given in the context of all the evidence before the court.

Again, all of these things are being devolved to the courts in terms of them having discretion. There is none of this attitude about: we are telling the courts, 'You must do this, you must do that, you must do something else.' We are saying to the courts, 'Look, you hear the evidence, you're the best place to make these rules, not me, not the police commissioner, so you go ahead and do it.'

Another example in the legislation that I think is relevant in this context is that, you might have one of these individuals who is charged with an offence but not an offence carrying a huge maximum penalty. It might be that the appropriate penalty for an individual upon conviction for that relatively minor offence would be either a suspended sentence or a bond. At the moment, that is about the end of it, as far as the court having any control over these individuals. They might have to turn up to a parole officer, or whatever, but that is about it.

What we are doing is saying to the court, 'Look, you can not only do that but you can put place and person restriction orders on these individuals as an element of the conditions of their release.' For instance, there could be a condition attached to not approaching any witness in the matter, not approaching any victim, either personally or by reference to a place, not hanging around a certain place where it is known that the associates of these people regularly hang out, and so on.

I would urge the opposition, when considering the detail of this legislation, to have careful regard to the danger that these people represent, first of all, in a direct sense to the community by reason of their propensity for violence and to injure others, secondly and less directly, look at the consequences of the crimes they are committing, look at the unspeakable suffering in the community caused by drugs, money laundering, loan sharking and standover tactics. Think about the impact of that on the community and whether, given what these people are doing, it is not appropriate that the courts have more tools in their armoury to deal with these people, if the court thinks it needs to do that. That is all we are putting up here. We are giving the court the opportunity to have a better range, or menu, of measures it can adopt to keep some control over these individuals.

The honourable member talked about, 'Yes, the Law Society doesn't like the aggravated offences.' They are maximum penalties. They are not mandatory minimums, or mandatory anything, for that matter, except for the fact that we are saying they should not have concurrent sentences, and I am not walking away from that. I do not think that is an unreasonable proposition, given the small group of people with whom we are dealing. The honourable member and I both know that that would be a matter which would subliminally work on the judge's mind anyway, but let us not spend too much time on that.

Let us get back to the point. They are not mandatory increased penalties. They are options for increased penalty. I am happy to justify from a philosophical point of view why it is that we should say that blackmail, for example, committed by a member of an organised criminal group should attract a greater maximum penalty than blackmail committed by a lone ranger.

I put this proposition: every time an act of that kind—blackmail, for example, or intimidation of a public official, or whatever it might be—is committed by one of these individuals it advances not just that individual. It advances the whole group of which that individual is a member. It adds to the public fear of that group. It adds to the aura—if that is not a completely bizarre word to use for these people—or the gravitas that these people have, and it means that other people in that group are treated with fear by members of the community because they derive a collateral benefit from the crimes committed by their brethren.

If I commit a crime myself, nobody gets a benefit from that except for me if I get away with it, perhaps. (Although, how do you live with yourself, Mr Deputy Speaker—but that's another matter.) When these characters commit a crime, it does not just benefit them; it benefits in a direct financial sense, and other senses, all their colleagues, but also it adds to the esteem and the aura and the completely bizarre sense of invulnerability that these people hold about themselves and which members of the public hold about them and are therefore intimidated more by them.

I do not think it is unreasonable. I do not think it is unreasonable that we should be able to say, 'If you perform these criminal acts in the furtherance of a criminal group, expecting the benefits to attract to all of you, and those benefits are all deficits as far as the community is concerned, then you should be prepared to receive a more severe penalty, because what you are trying to do is spread the kudos'—again, a bizarre word—'for your crime to others who get the benefit or the kudos from what you have done but are never at risk themselves of standing trial for it.'

With the greatest of respect to the Bar Association and the Law Society and whoever else has critiqued that business about aggravated offences, I think they need to think a little more deeply about the philosophy behind this and the psychology of these groups. We are trying to attack the code of silence that these individuals flourish underneath and we are trying to attack the sense of invulnerability that they have about themselves and that the community has about them.

Another point that was made by the honourable member in the context of bail was about victims' feelings. It is not about victims' feelings. As I said before, the reversal of the presumption in relation to bail is based on the fact that these individuals are behaving in an extraordinarily bad way. They are totally disrespectful of the rule of law. They have decided that none of the norms of our society apply to them and that they can behave as if they are in a Wild West town, doing whatever they like.

In those circumstances I do not think that it is unreasonable to draw a comparison—though not a direct comparison—with people who engage in terrorism. They believe that because they have some grievance, justified or otherwise, real or imagined, they can go out and commit atrocities and horrible crimes on other people, but it is okay because they had a good reason for it. You know, the person who walks into a supermarket and leaves a bomb, and people are killed—children, completely random victims—and some lunatic who thinks they have a political point, or some other point to make, reckons that is okay.

These people may not be routinely planting bombs in supermarkets, or driving vehicles full of high explosives into large buildings, or whatever, but they are supplying drugs to people in our community. They are inveigling other people into the criminal networks, because they use them as farmers, and they use them as distributors. They are luring young people, who might have issues in their lives anyway, and who get involved in some of these silly street gangs—they are luring those gangs as sort of ancillary, bolt-on networks. They are spreading the web of crime. They are decreasing the intolerance of this behaviour in the community, and they are telling young people, particularly young people who have a bit of a rocky road to hoe—

Ms Bedford: You tread carefully.

The Hon. J.R. RAU: You tread carefully, that's right. These young people who are on a rocky road, what they need is somebody to say to them, 'Look, if you keep going down that track, you're going to get into serious bother; you are actually going to hurt your neighbours, your family, your friends, you will hurt yourself, and you will hurt the community in which you live.' That is what they need, but what do they get? They get these characters saying, 'Look, we've got a great lifestyle, we're immune from this, we're immune from that. We can do anything we like. Come and join us, all you've got to do is go out and do this,' and in no time at all these characters are being sucked into this vortex of misery.

I cannot overstate how seriously we should all be taking this problem. If people—particularly some of the more gentle souls in the other place—feel that some of these are a little bit harsh, well, yes they are. Yes, they are, and they need to be. So I implore the member for Bragg: please, if you are going to move amendments to these things, I would ask you to be very sparing in doing so unless it is absolutely necessary. Please have regard to the fact that we have consulted extensively in relation to this.

The Law Society, which is like the Southern Cross for the opposition, it appears—when it gets very dark, they just look up to the Law Society and say, 'Oh yes, that's the Pointer,' and they read their things as if they have come down from Mount Sinai on a big basalt tablet.

The DEPUTY SPEAKER: That's a mixed metaphor.

The Hon. J.R. RAU: It is a mixed metaphor, I know, star gazing and Mount Sinai doesn't go. Well, perhaps you could see—I don't know; anyway, I will stick with Mount Sinai. So, the president of the day comes down from Mount Sinai with a basalt letter, outlining the defects in the parliamentary proposal, and it is immediately snapped up, almost like one of those stick things you put in a computer; my son has one—

Mr Gardner: I'm not sure your example is clarifying things.

The Hon. J.R. RAU: He's got this tiny little stick thing; you put it into the computer and it sucks all the information out of the stick and it goes into your computer. That is a little bit like what is happening there usually—

The Hon. S.W. Key interjecting:

The Hon. J.R. RAU: You can do it the other way as well? I didn't know that. Anyway—

The DEPUTY SPEAKER: There is a pun in that, but I am not going to make it.

The Hon. J.R. RAU: Okay; so anyway, the point I am trying to make is this: even given the propensity, particularly of Mr Wade in the other place, to treat the views of the Law Society in that deferential fashion, he should be aware—

Ms Chapman interjecting:

The Hon. J.R. RAU: Actually, no, and this is what I am coming to; this is the really exciting bit. A few months ago, you might have heard breaking news. He said, on the day that these bills were tabled, 'Look, these are not bad. They are substantial improvements over the original bills that we saw. They appear to take into account the major matters of concern which we raised, and we regard the scourge of organised crime as so obnoxious that, on balance, we think these measures are appropriate.' I am paraphrasing him. You will be able to find his exact words, but they are not too far off what I just said.

The DEPUTY SPEAKER: You were encouraged, weren't you?

The Hon. J.R. RAU: I was encouraged, to be honest. I was actually very encouraged. Can I say, as I have said before, I respect the Law Society greatly. I have regular discussions with the Law Society about a great many things and they do not always agree with me, nor do I always agree with them, obviously. If they come to this opinion, which the president is able to publicly express, then I think that should at least give some comfort to people in the other place who really need to tick off—it is almost like the Heart Foundation tick; if it has not got it, you do not buy it.

The DEPUTY SPEAKER: Are you suggesting he shouldn't wade in?

The Hon. J.R. RAU: That's good, I like that. That was very good. The opposition basically got the Heart Foundation tick on these two bills, so they can relax, chill out and allow them to go through. I am not saying they have the enthusiastic, unequivocal, every-comma support of the Law Society, but they have said that on balance this is okay. I appreciate that nobody is going to be entirely happy with every single provision in these proposals, but I can assure the parliament that these have not been put together in a haphazard fashion or without an enormous amount of thought, work and effort, and consideration of the views expressed by all the people whose titles I have already provided.

My request is that the opposition please take into account the matters that I have attempted to place in context today before making decisions about performing brain surgery with a chainsaw, because there has been a lot of work done on this and a lot of people have put a lot of time into it. I do not think I am in any way betraying a confidence in saying that the Director of Public Prosecutions, who, as everyone would know, is a very independent-minded person, has indicated—and I think said publicly—that he believes that these measures are a great advance from where we have been.

The DEPUTY SPEAKER: I think he suggested you should go further, didn't he? Didn't he say you should go further?

The Hon. J.R. RAU: No. He said that, if these measures work as intended, it might well be that South Australia has achieved not just a national leap forward in terms of being able to deal with these people but quite possibly something that even people elsewhere would want to have a look at. We have looked around the world for these things. There is a thing called the Palermo Convention to do with organised crime. We have had a look at what is in that. We have had—

Ms Chapman: Sounds like a Russian spy.

The Hon. J.R. RAU: My recollection is it's in Italy somewhere. Anyway, somewhere—

The DEPUTY SPEAKER: South.

The Hon. J.R. RAU: —south.

The Hon. S.W. Key interjecting:

The Hon. J.R. RAU: Let's not go off on regional nuances. That could take us anywhere. That is dangerous turf to explore. We have had a look at a lot of things. As I said, there is the Palermo Convention and there is the unavailable witness admission provisions, where we have looked to the United Kingdom for inspiration, and we have looked at how that has worked in the United Kingdom. There are provisions in there. And another one, for example, that occurs to me is that the Director of Public Prosecutions under the proposed legislation would be able to say to a person, 'Look, if you cooperate with us in relation to this particular matter and provide material assistance, then we can give you an undertaking that you will not be prosecuted for this particular offence.' Armed with that, that individual then does not have the privilege of self-incrimination to fall back upon when appearing in court, and there are cases where that has been of assistance.

We have also in the guilty pleas legislation provided for great concessions for people who provide this sort of information to the authorities in the context of an early guilty plea, or even a late one for that matter. We have also put in here the provision where someone has gone to gaol and has decided that the tucker is not too good, or they would like to get out and about a bit more. They can come forward and say to the Director of Public Prosecutions, 'Look, I've got material information which will assist you in an important investigation,' and in the event of them providing that cooperation and that being of material assistance to the prosecution, they can apply to have an opportunity to be re-sentenced on the basis of their cooperation.

We are offering them early guilty plea—or any guilty plea—and big remission for cooperation. If you are actually in gaol, still, if you are going to cooperate you can get some benefit out of it. In the context of the other legislation, the rest of the package, the one about the forfeiture of property by declared drug traffickers, even in that case, we say that they lose their property except if they cooperate with the authorities, in which case the very—I do not want to use the word named after a certain Greek tyrant (it starts with a D)—tough provisions there are lifted from the shoulders of that convicted drug trafficker.

Look, we are trying to put incentive in the minds of these criminals. We are trying to break up the code of silence—or, if you grew up when I did, the cone of silence, because that was in the film. We are trying to break that up. We are trying to exploit the fact that we do not believe that, when push comes to shove, there is honour among thieves, and, if we can make opportunities for some at the expense of others, we can rely on their exceptional personal characters to do the rest of the work for us.

Also, we are trying to protect vulnerable witnesses. We are trying to enable the courts to have access to evidence. I cannot emphasise enough that this is an attempt to attack this problem from every conceivable angle. What can the police do? What can they charge people with? What evidence can they get out of people? What evidence can they put before a court? What can they do to defend witnesses from intimidation? What can they do to protect jurors from being intimidated? What can we do to stop these people associating with each other and cooperating together in schemes which advance their whole collective aura to the gross detriment of everyone else who is doing the right thing in the community?

I do actually feel very strongly that it is important for everyone to understand that this is not something where politics—and I do not want to be disrespectful in saying this—and tinkering for the sake of being seen to be doing something has any place. This is a time when we should just get on with it; and, for goodness sake, as legislators this is the only thing we can do. We cannot go out there on the beat and arrest people. We cannot bust down doors and do all this sort of stuff. What we can do is give the police and the Director of Public Prosecutions and the courts the tools to be able to put some shackles on these people.

If we do not, we should all be rightly condemned for not having done it. I urge everybody, please, think seriously about this. I know that nobody is treating this as frivolous, but this is not the sort of thing where mucking around, tinkering, because you can, has any place. If there is a huge, fundamental flaw in something that cannot work for some reason, let's talk about it; but, my God, if there is one, I am baffled where it might be.

I have had a lot of very good minds, much better than mine, some as good as the honourable member for Bragg's, look over this, and they seem satisfied. And, I can say also that SAPOL have said that, given the fact that they accept that the law requires certain things about evidence, and it requires certain things about procedures, and it requires certain accountability for the police doing various coercive activities, this is something that they believe is a step forward. So—

The DEPUTY SPEAKER: In conclusion?

The Hon. J.R. RAU: In conclusion, Mr Deputy Speaker, you have just got to love it. It is the best thing we can do. And if we do not do it we will be rightly criticised as being, quite frankly, asleep at the wheel.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms CHAPMAN: So that we may be clear in respect of the issues that we wish to raise on this bill, and given the comments of the Attorney that there is little change to the bills that are before us and those that were presented for consideration to the world at large in about August last year, I make the point that the then Statutes Amendment (Serious Organised Crime—Procedures) Bill and also large portions of the Evidence (Out of Court Statements) Bill 2011 have aspects that are incorporated in what we now call the offences bill.

Whilst the minister has gone on to discuss other bills in the government's package of reforms to deal with serious and organised crime, they are not before us, and I will not answer in relation to them, because they are not before us and they are not coming for us. However, there were two other bills that went out for consultation that have significant portions which are now incorporated in the bill before us and the control bill, which we will deal with shortly.

I make that point for this reason: it seems to have escaped the Attorney's attention that there are very many aspects in respect of the procedural changes that are being initiated in this bill—the special procedure to expedite proceedings, the removal of the right to trial by jury, the removal of privilege against self-incrimination—which I have not dwelt on but on which the Law Society has put pages and pages of submissions.

It may be that, during our task force submissions, there are some aspects of those things that are so dangerous to be implemented—given the broadness of definition of who could be captured under this legislation, and that is one aspect that is so concerning to us—that it will attract the attention of the High Court and we will need to have a look at it.

I do not want to go in detail in relation to that area. We will look at that still and we will look at those procedural changes which undermine, reverse and totally backflip what are ordinarily protections to defendants, but when the Law Society canvassed a number of these issues, it made it very clear that the High Court could be attracted to some of these. Whilst we can proceed and allow them to go through the parliament, just like the Totani case, we could end up back in the High Court.

It is not a light thing to remove the privilege against self-incrimination. We have tried it in some other legislation in the last nine or so years that I have been here, where the government has put up this weakening of the rights of defendants, but this is critical and I think it needs to be clear to the Attorney that, whilst we are not going to traverse all those in committee, the High Court may well be alert to the removal of these. If the government has obtained crown law advice on the validity of some of these very significant procedural changes and signed off on them on the advice that they will be valid and that they will not be overturned in High Court challenges, then that is a good thing—if he has that.

I am a bit disappointed, given the history we have had of legislation, particularly the control legislation, that we are never allowed to see that crown law advice and, frankly, in this type of novel legislation, I think we ought to be able to, but clearly the government takes the view that, whilst it put submissions on the website from lots of learned people, it is not prepared to put the Crown Solicitor's advice or at least make it available to us to view.

The government claims that it has put all this through advice, but that is exactly what it did when we were back here in 2008 and gave assurances about this novel legislation that it was going to be valid. We gave warnings then. The Law Society and other learned people have clearly given alerts as to where this could be an invitation to more and more applications in the High Court, and that is concerning to me as it should be to the Attorney because the more novel, the more cutting-edge, the more 'out there' legislation is, the more likely it will get knocked off.

If one were to have taken a little more conservative approach to this, as other jurisdictions have—and I will come to that more in relation to the control bill—then we may not be at such risk again, but I make the point on this area: there are very significant changes and if it just affected the really nasty, mastermind, intimidatory bastard who might occupy the space in a gang, that is fine, but our assertion through this legislation is that much of this could really attract a lot of people who ought not to be in that category. I make that point.

This bill basically provides some reinstated offences, such as participation in a criminal organisation or group, a new version of the old consorting offence, and a number of other non-association orders—that is, not identified as a crime, but orders that are being made not to allow association in a certain place or to consort with certain persons.

In addition to this aggravation issue and sentences being accumulated, which I have referred to in more detail, I have a general question about the whole concept of anti-association policing. I note that the minister said that he has looked at how helpful in England some of the evidence changes were in relation to allowing witnesses to give statements out of court. To just go back to the anti-association policing aspect of this bill, can the Attorney tell us whether he has any evidence of whether this approach works; if so, what is that evidence, where is it happening and, if it actually works, is there some study of that?

The Hon. J.R. RAU: I will give you an off-the-cuff answer, but I am happy to explore with people about whether detailed statistical material is available on this; I suspect not. I do not think it is any secret that the police commissioner has indicated that, from the perspective of SAPOL, there was a calming of the activity of a particular group. There was a noticeable calming of their activity and a falling off of their membership associated with the introduction of the 2008 legislation and, indeed, the declaration process that followed it.

He has also said publicly that since the decision in Totani, and the subsequent New South Wales case, the number of people who appear to be either directly or indirectly involved with these groups has increased, and their degree of bravado or boldness appears to have increased. I accept that that is anecdotal. I accept that it is a perspective brought to the conversation by the police commissioner, but I guess from my point of view he would be best placed to be able to express an opinion about those matters.

As you would appreciate, I am not at the coal face in terms of confronting these characters in a day-to-day sense, and I am not sure how they conduct themselves presently compared with how they did a year or two ago. As I said, the police commissioner is on the public record as having said that about three or four weeks back, I think, when he said that there was a concern about the way these people were emboldened of recent times, and he compared their recent behaviour with what he observed during the period immediately following the 2008 legislation.

I also just mention briefly that the honourable member raised some questions about the High Court, and they are entirely legitimate questions. I want to place something on the public record here about the High Court. It is true that prior to the introduction of the 2008 legislation there were some people who said that that legislation would run into difficulty. There are many who said it would not.

As history has played out, it turns out that the people who said that there would be some difficulties (whether or not this particular difficulty is the one they alluded to I do not know) were proven to be right on this occasion. The honourable member knows as well as I do that in the time since Federation—or 1903, whenever the court was constituted—the court has gone through a series of phases, let me put it that way. The early court was preoccupied with intergovernmental immunities issues, and then you had the post-engineers case court, then you had issues around—

Ms Chapman: Banking.

The Hon. J.R. RAU: Banking—the bank nationalisation case, Victoria v the Commonwealth; you have all of that stuff about Cigamatic—

Ms Chapman interjecting:

The Hon. J.R. RAU: No; Huddart Parker and Moorehead, all the questions about Corporations Law. Strickland and Rocla Pipes—it is all coming back to me now. It is terrific. All of these cases have earmarked phases in the development of thinking within the court. Kiora v West is another one. You know what I mean: it has gone on and on. What has tended to happen is that the court has a period of relative stability, relative consistency in terms of approach, and then whether it is because of contemporary thinking or because of a change in personalities or key personalities, the court moves to a different place.

The court has moved in recent times to a different place. So, the degree of confidence that anybody can have in terms of making a cast iron prediction about what the court will or will not do, particularly in this contested ground between the judiciary and the legislature or the judiciary and the executive, is always going to be a matter of opinion which can be well informed but we are not dealing with that serene period of the Dixon court where things are as they always have been and always will be.

We are dealing with opinions expressed by learned people on the basis of the known, reported decisions of the present court. We have asked the question of people as eminent as the Solicitor General and various people, 'Please have a look at this and, if there is anything is here that you think stands out as being a beacon for concern, let us know and we will either modify it or take it out. If we cannot modify it sufficiently to make it harmless, we will take it out.'

I make the invitation to the member for Bragg: between the houses, if the honourable member and/or the Hon. Mr Wade wish to draw my attention to any matters of that sort of critical risk, I am all ears. I am happy to sit down—

Ms Chapman interjecting:

The Hon. J.R. RAU: Look, I am telling you that if you want to participate as you have indicated in the constructive passage of this legislation, I am interested in it. If that means that you and I and whoever I need to have present hear exactly what you have to say about things where you are worried about a constitutional minefield and you identify that (you or Mr Wade or whoever it might be) and say that you are worried about it, I am happy to engage with you about that and see if we can come to some agreement about whether that is a risk. If it is, we can talk about how we address that risk. But can I say that I would hope that in approaching that process it is not taken as an opportunity to tinker because somebody can wearing the clothing of constitutional anxiety.

If there is a genuine constitutional anxiety about something, I am very interested in talking about it and trying to resolve and understand it and give you as much comfort as I can if we genuinely think your fears are unfounded and, if your fears are based on something that I am advised has grounds for concern, then I will take that on board and probably make adjustments accordingly.

I am trying to explain that I do not want this sort of constitutional argument to be a stalking horse for policy points which may be unpalatable to some. We need to distinguish between those things. If it is a policy issue, let's call it a policy issue and let's have a policy debate; I am not worried about that. But let's hive off from the policy contest the bits which are genuine constitutional issues which might actually be corrupting the fabric of the whole thing.

Ms CHAPMAN: In answer to the question specifically, the police commissioner is the one who has given the reassurance to the minister that both the initial act calmed the subject matter that were going to be affected by this and when they won that they have been emboldened since. That does not give me a lot of comfort, not because the police commissioner may not have made those observations, he may well have done so, but one reason those in this category might have been emboldened was the fact that they won in the High Court and they were rejoicing in the fact that they had given the government a whack in the face over this issue.

As embarrassing and humiliating as that is to all members of parliament, who have to wear that because of the government's insistence on pushing it through in those circumstances, what I would like to know is if you have advice and you do not want to give us that advice—because it is the usual practice for government not to table crown law advice, I understand that, and it may well be the position that is going to continue—all you have to do in that situation is reassure the house that on all of the information you have received on advice, whether it is from the DPP, crown law, or the Solicitor-General, is to say to us, 'We have that advice and the best advice we have on this is that there are no sections of this piece of legislation or the control bill that we can identify that will be vulnerable to High Court challenge.' That is all you need to say in that regard. I would welcome it, and I think the parliament would welcome it, because we need to have some assurance on that, given what happened in 2008.

Getting back to the question itself, which relates to the effectiveness of the anti-association policing, and leaving aside what the police commissioner says, because I think there are some other pretty good reasons why they are partying in the streets over this, if there are other sources, if there are other jurisdictions that have dealt with anti-association policing as an effective way of reducing serious crime, then I would certainly like to see them.

Both of us were probably in primary school when the consorting laws of the 1970s were in their dying days and removed from the statute books. I would have thought one reason for that was that not only have social situations changed but they were not effective. I think there were very severe concerns at that time that they were being abused for the purposes of political and other reasons, and that may happen with this lot.

So, we have to be careful that, if we are going to reintroduce a scheme in the hopeful expectation that it will deal with one problem, we do not create another. That is why I am particularly keen to hear—and if you do not have it here today, I accept that you have the police commissioner's comments—it would be helpful for the opposition to at least have the data, the jurisdiction or the circumstances in which that has been demonstrably successful.

The Hon. J.R. RAU: I thank the honourable member for the question. I will endeavour, over the next day or two, to see if there is anything we can offer you by way of assistance in that regard. As to the constitutionality of the thing, I think it is important that I am absolutely frank with the parliament. The way this thing has worked is that we have literally sat in a room, sometimes two or three people, sometimes as many as a dozen, we have sat there for hours and hours and hours, we have talked through section by section, and we have asked around the room, 'Does anyone have an issue?', and at the end of the day, each day, for months, everyone said no.

Then we have one last meeting, just to wrap it all up, and they all have new ones, and away we go ahead. That is how it progressed. It was not so much like: I have, in one place, a written advice from anybody in particular saying, 'I've been through this whole thing and I don't have any problem with any of it.' What has happened is, that has occurred in meetings where we have had a diverse range of people: Crown Solicitor, Solicitor-General, Ms De Palma over here, Tony Harrison, police officers; a range of people. We have been sitting there and we have gone through, and yes, I have asked all of them, including the Solicitor-General, 'Have you read all of this?' 'Yes.' 'Do you have things that concern you?' 'Yes.' For a long time they all kept coming up with 'Yes, we do', so we kept chipping away at it.

If you are asking me if I can give you a cast-iron guarantee that no person will ever challenge this—absolutely not. I am confident that it will be challenged. If you are asking me if I can guarantee that no High Court will find issue with anything in either of these bills, no person short of a clairvoyant could possibly give that as an absolute guarantee. What I can tell you is, all the best advice I have is that nobody has been able to identify any flaw in the current bills which makes them feel nervous about a High Court challenge, given what we know about what the High Court's present views might be.

That is why I renew my invitation to you. If you are able, through your consideration of the bills, to identify areas which those that advised me and I have missed, then I will be grateful for the opportunity to repair that damage, if indeed it is a problem, before we get the bills outside of this building. I do not think there is anything there, but we are all human. We have done our best, but if you find stuff and it is genuinely a constitutional issue we will be more than happy to look at it.

Ms CHAPMAN: There is a question here I have been asked to ask: what would avoid concertina sentencing?

The Hon. J.R. RAU: I am not quite sure what concertina sentencing is. Can anyone help me? Can we leave that until later? I do not mind if you ask me in the context of another bill later, but I actually do not know what that means.

The ACTING CHAIR (Hon. M.J. Wright): We are in clause 1 at this stage.

Ms CHAPMAN: Does the bill reference any legislation that has not yet been passed by the parliament?

The Hon. J.R. RAU: What was the question again?

Ms CHAPMAN: The question was, does the bill reference any legislation that has not yet been passed by the parliament?

The Hon. J.R. RAU: I think I am correct in saying that the two bills reference each other, so if you are asking about the one we are debating presently, that does have analogues in the one that we have yet to debate.

The ACTING CHAIR (Hon. M.J. Wright): Do you have any final questions on this clause?

Ms CHAPMAN: It is on the same aspect, really, because I note that clause 47 of this bill proposes a section referring to prescribed drug offender within the meaning of the Criminal Assets Confiscation Act 2005.

The Hon. J.R. RAU: Again, I will take advice on that, but that is an existing piece of legislation. It is not something that is still to be passed, as I understand it. We are not talking about the declared drug traffickers there, we are talking about—

Ms CHAPMAN: Prescribed drug offenders. You were saying that is already a law in existence.

The Hon. J.R. RAU: No, I thought you said a piece of legislation, didn't you?

Ms CHAPMAN: I will read out clause 47.

The ACTING CHAIR (Hon. M.J. Wright): Why are we asking questions about clause 47 when we are up to clause 1?

Ms CHAPMAN: Because my question on clause 1 is whether anything in this bill is actually referencing a piece of legislation that has not yet passed. We have had this debate before in the parliament of whether you can pass legislation which references some other piece of legislation which has not yet come into existence.

The ACTING CHAIR (Hon. M.J. Wright): Right, okay.

Ms CHAPMAN: That is what I am just trying to avoid here. If we are sure that clause 47 does not come into that category I will ask a question on that when we get to it. That is really what I am referring to.

Clause passed.

Clauses 2 to 5 passed.

Clause 6.

Ms CHAPMAN: How does the amendment to the Australian Crime Commission, the proposed insertion of section 26A, differ from the existing provisions in section 23 of the act?

The Hon. J.R. RAU: The short answer is I think we will have to get back to you about that, as indeed we will have to get back to you about the last question you asked. I can tell you conceptually what it is about; that is, there is some sort of intergovernmental agreement relating to the Australian Crime Commission. The commonwealth made amendments to the commonwealth act in 2010, and my advice is that the amendments that we are seeking to make here are amendments that bring our legislation back into sync with the commonwealth provisions.

The explanation I have is that it relates to coercive hearing provisions. Currently, there are no contempt provisions in the South Australian act. They were introduced in the commonwealth a couple of years ago and, under the SA act currently, a witness who fails to cooperate in a coercive hearing can be charged with refusing to answer, false or misleading statement, and failure to take an oath or an affirmation.

To advance the prosecution, it is necessary to assemble the evidence, lay a charge and bring the offender before the South Australian court for specific offending, as I have just outlined. The matter then proceeds at the same speed as other prosecutions. It is not possible to call the same witness before another coercive hearing on the same matter while the charge remains unresolved.

Under the commonwealth legislation, there is in addition the specific offences mentioned as contempt. Where the examiner reaches a conclusion the witness may be in contempt, he or she can order that the witness can be immediately be taken before a court. The witness is taken from the place of the examination and immediately to a court.

The judicial figure considering the matter can, if he or she concludes that the witness is in contempt of the ACC, order the detention of the witness immediately for such time as may pass before they perjure their contempt by cooperation, or otherwise determine to release the witness. So, there is obviously a tremendous advantage in the use of the commonwealth provisions in influencing the witness to cooperate.

In South Australia, witnesses know that they will not be immediately dealt with should they refuse to cooperate, and that, by delaying the proceedings as long as possible, they will not be called back for another hearing until the matter is finalised. By that time, the relevance of what was sought to be elicited from them will have diminished. SAPOL has sought, on a number of occasions, to have the ACC undertake hearings under the commonwealth ACC act in preference to our act because of the immediacy of the contempt provisions.

Ms CHAPMAN: So do I take it that the application of the stronger provisions under the commonwealth act which are going to be introduced into this legislation is at the request of the police, and/or was there a situation where you had any legal advice that an attempt to affect it would attract the question of constitutionality, or both?

The Hon. J.R. RAU: My understanding, insofar as I have been presently advised, is that it may have been something that the police would have found useful and we were merely complying with an intergovernmental agreement, but I can seek further information about that.

Clause passed.

Clauses 7 to 24 passed.

Clause 25.

Ms CHAPMAN: Clause 25 seeks to insert a new section 43 of aggravated offences. I refer to the concerns raised by the Law Society on these matters. In particular, its concern related to the application of persons who would not really be expected to be caught and summary assurances have been given. Is the Attorney-General aware of how often crimes are committed while wearing insignia, and what percentage of organised criminal acts would be committed by people wearing insignia?

The Hon. J.R. RAU: Thank you for the question. If the honourable member is asking whether we have statistical material on that, I suspect not, but I will ask. However, what is clear is that part of the modus operandi of these groups is to present themselves in what amounts to a uniform. The uniform is an advertisement of their power, and their capacity to intimidate is projected to other people by reason of their presentation. People are intimidated, people become fearful and people become compliant because their presentation evokes the collective fear people have about violence and extreme behaviour.

As I tried to explain before, we are attacking this corporate aspect. Let us ignore these people for the minute. Imagine we are talking about a situation where any one of us is in the street and we are approached by police officers. The fact that those people are wearing the costume of a policeman carries with it a certain image and a certain authority. If we were to encounter a person who is dressed in a military fashion, similarly, there would be a certain impact, not just because of the individual but because of the projection of that individual's corporate identity through the uniform.

What we are trying to express here is that, when these people go to some place dressed up in a certain way and say, 'You let me do this,' they bring with them not just their physical presence but also the corporate identity of those who the people to whom they are speaking probably reasonably fear may be prepared to support them if they do not cooperate. We are talking about people here who are by some means identifying themselves as being members of these groups and gaining the advantage of intimidation and fear that that projects to the victim.

Basically, we are saying, in connection with these offences, that that is more serious, because they know damn well what they are doing. They know damn well that their presentation is intended to—and does—cause apprehension, fear and concern, and that is to their corporate benefit. What we are saying is that, if you seek to derive a corporate benefit out of that, we are going to put a little bit of extra lead in the saddlebags. If you get caught committing one of these offences, the court should be able to take into account that you were not just acting alone; you were acting to advance the interests of a criminal organisation.

Ms CHAPMAN: I do not know that that gives me a lot of comfort, because various insignia, display and uniforms of different groups through the ages have changed. My mother did not like me associating with people with long hair or who wore earrings, tight jeans, black clothes or whatever. She might have been appreciative, if she were here today, that you are introducing these anti-association laws.

However, is the problem with this legislation potentially that a criminal gang might think, 'Well, I can't wear an insignia during the course of the commission of a crime because that might be difficult, so I will just conceal it'? Do you not run the risk in that circumstance that any particular symbol or insignia will simply have a coat over it during the course of the commission of the crime? We are assuming that these people are not without sufficient wit to get around this type of thing, that is, the real baddies.

I am talking about those who might be happening to wear some insignia because it is reproduced on a Chinese T-shirt by the thousands and who are walking down Rundle Street East to go to the place of earthly delights, or whatever it is called—which I notice did not get a free bus ticket today in the announcements; you have to go to Clipsal to get that free bus ticket. In any event, with respect to those who are wearing this material, and I cannot think of any immediately out there, but plenty of times you see sold in shops T-shirts emblazoned with Nazi material and all sorts of things that people wear. Presumably they think they look great in it.

I will not cast judgement on that, but I simply make the point that these things tend to find themselves in reproduced pieces of clothing or earrings and all sorts things that innocently young people may wear and will be caught under this. But for the real baddies, can I just say at this stage that they are going to get smart, aren't they, Attorney, and just simply not have them exposed or wear them while they are committing the offence?

The Hon. J.R. RAU: Can I say a couple of things in relation to that. First of all, as for the cheap copy of the T-shirt, this is only a presumption. If the honourable member and I had gone down to the T-shirt shop one afternoon and, because we were foolish, had bought a T-shirt that looked like a Finks' T-shirt, and we had gone down to the Garden of Unearthly Delights and then we committed a criminal offence, like, bashed someone or something, we might be able to say in our defence, 'Well, look, there's only a presumption we're Finks but we're actually not Finks. We bought these at the T-shirt shop down the street.' It is a rebuttal presumption. That is point No. 1.

Point No. 2 is that—and I am not sure whether it is to do with testosterone or what it is—these people appear to think that it is significant that they do show themselves off in these outfits because they get a buzz out of it, and they also get the additional kudos of being recognised as that and treated with what they consider to be respect. Yes, they could cover up, and, if they do, then that is fair enough, the presumption does not operate against them. It does not mean that they still cannot be identified as a Fink, or whatever, doing something.

Also, some of these tattoos, I am advised, are pretty distinctive and may not be that easy to cover up. Bear in mind that we are not just talking about someone who has got on a particular T-shirt wandering down the street minding their own business. In the case of the particular provisions to which we are now referring, we are talking about someone who is manufacturing a precursor, or who is running an amphetamine kitchen or something of that nature.

The real life situation is that the police burst into a house, there is someone there with a bunch of test tubes who has got whatever tattooed all over them, or who is wearing a particular form of dress which is distinctive for that particular group, and all the provision is saying is, 'Look, subject to what you, defendant, can say to the contrary, it looks to us like you're a member of that outfit.' It is simply an evidentiary aid. It means that, in terms of establishing the elements of the offence, the onus is on the defendant to disprove that they were a member once it has been established that they were in effect masquerading as a member.

Ms CHAPMAN: The purpose of this legislation, or this aspect of it, is to be able to use it as a means to fill in the requirements—of which there are a number—that then attract an aggravated penalty to the person. So they have to have been committing a crime, wearing insignia at the time, etc., and that these aspects in an aggregate then attract a much higher penalty. That is the gist of this.

They can wear these insignias or they can display themselves for the purpose of puffing up their chests and intimidating people walking in a group down the street when they are doing lawful activity. So all the things it seems that you have identified for the purposes of adding to their aura, they are going to be able to do anyway. It is only when the police burst into the room and see them all with amphetamine machines, and they have got their tattoos on display, that it is actually going to be applicable for this.

The problem is this: under the declaration process there is no requirement to identify the insignia of these particular organisations as part of the process of having an identified register of these particular insignia, pieces of clothing, or identified tattoos. Each time, a police officer or someone who is prosecuting under this section will have to prove that that particular insignia is applicable to a particular group and that it has not got some general application, that it is exclusive to them, and so on. Has there been some consideration given to the fact that this could impose quite a lot of extra evidence and work just to be able to get into this next category?

The Hon. J.R. RAU: I understand the honourable member's point, but can I explain in this way: if we do not have a rebuttable aid to proof in relation to membership, then my advice is that in some instances it is very difficult to prove membership. For example, these people are not like members of a political party or members of a committee of management of a bowling club, where there is an accessible public document which identifies the individuals who are members.

Indeed, there are classes of membership, as I understand it, or associate membership, or candidate members, and so forth, whereby a denial by an individual that they are a member may present serious evidentiary concerns for any proof of membership. In these circumstances, it was the view that it is some sort of rebuttable presumption in respect of basically an application of the old adage: if it looks like a duck and quacks like a duck, it is probably a duck, and if it can prove that it is not a duck, then okay.

Clause passed.

Clause 26 passed.

Clause 27.

Ms CHAPMAN: This is a proposed addition of a new division to provide for the applications for resentencing. Essentially, if a person has already been sentenced to a crime and is languishing away in gaol (described by the Attorney as 'getting sick of the food'), then he or she can fess up on spilling the beans on someone else and get a chance to be resentenced for their original crime and get what has been described in other places as a 'get out of gaol for free' opportunity. Are there any precedents for this being implemented in any other jurisdiction and, if so, where?

The Hon. J.R. RAU: I will have to get back to you in relation to the particulars of that. I can say that, from my point of view, the logic of that is compelling only because we are saying to a person prior to conviction that cooperation will result in a much reduced penalty—and we may be dealing with people who either did not consider that or have since changed their mind—if they are holding significant information. I am not talking about dobbing in their mate for having the sprinkler on or something. I am talking about serious stuff.

Those people's testimony might be critical in a serious matter. All we are saying is that there should be some symmetry about their cooperation before conviction leading to a remission in terms of the maximum penalty and their cooperation afterwards. I understand that sentencing should be for once and for all, but I have to say that it would be only in exceptional circumstances. It would be in exceptional circumstances where a person would be able to take advantage of a situation like this to the extent that they would be able to apply to the court and the court seriously reconsider their position. It would not be providing trivial information about some minor offence. That would not pass muster.

I will give you an example. Let us say we have a person who has been a gardener and they have been persuaded to grow a quantity of hydroponic cannabis in their house. Let us say, hypothetically, that this person has been approached by somebody who is running a number of gardeners around the place and this person supplies them with the hydroponics equipment, the seeds, etc. The person gets busted, they are found with 20, 30 or 40 plants, or whatever the case might be, and they are charged then with an offence under the Controlled Substances Act (I think at that point they probably have a trafficable quantity of a prohibited substance) and then sentenced and convicted on the basis of their crime.

If that person were able to come forward and say, 'Look, the person who asked me to do this is so-and-so. I know that so-and-so has also asked half a dozen other people to do this. I know who they are. I know where they are. I know where this person is washing their money, that they're pretending to be a humble pizza shop owner but in fact that's just a front and they're doing this, that and something else,' what justice would be served by not offering that person an incentive to turn over to the police and the prosecutorial services the big fish who is actually running a dozen of these characters?

We trade a small fish—not by me or anyone in here reducing it, but by the court considering their contribution to the prosecution of somebody of significance which may reduce their penalty—and, in exchange for that, we put away the one who is running 10 of these people. I think that is the way it needs to be looked at.

Ms CHAPMAN: I thank the Attorney for his explanation. I am not sure that it fills me with confidence, mainly because the very purpose of the sentencing legislation, which I understand we will be debating at another time, is to give incentives to plead early, and if in fact you get another chance after you are convicted why would you plead at all? Why would you not run the gauntlet of trying to get off and have the trial in the full knowledge that, when you get down to Yatala, you can exercise this option?

The Hon. J.R. Rau: Some of these characters have been there for years.

Ms CHAPMAN: Well, it may be that you wanted to capture some of those who have been sitting down there for a while, but it just seems to me that it is in direct contradiction with another part of the legislation that you have in mind. But, in any event, my next question in this part of the process is: how do you envisage that this exercise will be managed?

The Hon. J.R. RAU: I think the section is reasonably prescriptive of the process. In subsection (2), the person has to apply to the court for permission to have the sentence quashed and a new sentence imposed. In subsection (3) the court will only grant permission:

if the court is satisfied that the cooperation relates directly to an offence that is, in the opinion of the court, a serious offence that has been committed or may be committed in the future...

Subsection (4) states:

The chief officer of the law enforcement agency, the Director of Public Prosecutions, and the applicant are parties to the proceedings...

In determining a new sentence, there are a whole bunch of criteria which go down in subsection (5), setting out the balancing act that the court would take into account. Again, this is entirely at the discretion of the court, and the balancing act is a matter for the court having regard to the criteria in subsection (5).

Ms CHAPMAN: With all of that, this whole section relates to the successful pleading of cooperation with a law enforcement agency, and I cannot see any definition here about who that is to cover. It permeates the whole of the section, whether that is going to include or exclude police, Department of Correctional Services, Australian Crime Commission, and Australian Federal Police. Who are we talking about? Who is this going to apply to—to be able to contain this? If I have missed some other definition clause, I am happy to be—

The Hon. J.R. RAU: If you go to subsection (7) it might be helpful. It says:

chief officer of a law enforcement agency means—

(a) in the case of SA Police—the Commissioner of Police;

(b) in any other case—the person from time to time occupying a position within the agency prescribed by the regulations.

The reason we did that—

Ms CHAPMAN: Sorry, can I just say that all that does is identify who the chief person is and, ultimately, who takes responsibility for it. In the new provision under section 29D, under this new division 6, it talks about the law enforcement agency, but there is nowhere here where I can identify what that is to include. Is that something you are going to make a decision on, or list in the regulations down the track? Do you see what I mean?

The Hon. J.R. RAU: Part of the reason—

Ms Chapman interjecting:

The Hon. J.R. RAU: No, not just the police, and can I explain why. We did have a discussion about these issues—and, whether it has been adequately fleshed out in the legislation is something that I am happy to have a conversation about—but it occurred to me, and I recall raising this at one of our meetings, that it might well be that the relevant agency might be, for example, the AFP, or it might be Customs, or it might be—I don't know. But I did not want to draw a ring around who the agencies would be by being too prescriptive about it because there is always a risk that if you start enumerating the agencies, in a particularly prescriptive way, you may leave somebody out.

For example, because it says 'South Australia or any other state', if you go to that, we would have to list all the law enforcement agencies in each of the states and territories, which would include, certainly their police forces, but may also include other law enforcement agencies. We would be looking at the Australian Crime Commission, the AFP, Customs, and we would be looking at any number of agencies.

So, I guess the idea was that the courts would be capable of taking judicial notice of whether the WA police force is, for instance, a law enforcement agency. That is the intention of it, and the reason why it was not prescribed like that is that potentially there are a number of them and, furthermore, they may be a moving feast. I expect that there will always be a state police force in each of the jurisdictions, but there may be other agencies in the jurisdictions which come and go, and the intention was not to make this thing so prescriptive that you wound up excluding people because they were not named. If there is a drafting improvement that can be made on that, bearing in mind the intention I have just tried to convey, then I am happy to consider it.

Ms CHAPMAN: I am happy to receive an indicative list or some draft regulation about what you have in mind, Attorney. The problem is this: we could end up with enforcement agencies being the Natural Resources Management Board where there are offences for the dumping of marijuana plants. We might have enforcement agencies like the Child Support Agency. I would have thought that the very nature of this is that it is to be restricted to the most serious offences and, as a matter of course, people cannot be sitting in prison and think, 'I'll tell them that so-and-so is hiding out down there, so I will get my sentence knocked off.'

If the intention is clearly to have cooperation to deal with serious and organised crime aspects, then the most likely of those will be the police department; correctional services; the Australian Crime Commission, which I think is reasonable; AFP; Customs—they may be the limit but there may be a couple of others. It seems to me that leaving that completely open raises some questions about whether we are going to end up with a ridiculous situation where people could be lining up every day, and we do not want to open up an avenue of a whole lot of people trying to get a free ride back down to the courts to waste the time of the Legal Services Commission and everything else to clog up the courts. We have enough problems down there. My next question would be—

The Hon. J.R. RAU: Can I just say that I do not disagree with anything you have just said. That was never my intention to have the NRM boards or anybody else doing it and, if I did, the former member for Stuart would probably come around to my home and say very unpleasant things to me, and I would not want that to happen, not that I do not want to see him but I just would not want to be told off by him.

I have no intention of doing that and, if we can fix that up, we are on the same spot about that. Incidentally, you might want to include the state ICACs in some jurisdictions, too. We are talking the same language about that. It is a question as to whether it is expressed adequately, that is all.

Ms CHAPMAN: My other question relates to the actual offences that they are reporting on. Would this procedure be available for serious offences that are actually committed or are committed in the future in prisons?

The Hon. J.R. RAU: There was no intention when we prepared this to exclude those offences. Take, for example, Mr Moran who seemed to have an unfortunate accident in prison in Melbourne. It may well be that information about exactly how that occurred and who did what to whom and why would be very revealing, but it would have to run the rubric of subsection (5) and it would have to be pretty impressive if it is a prison offence to be of any value.

Clause passed.

Clauses 28 and 29 passed.

Clause 30.

Ms CHAPMAN: This is the insertion of a new part 3B to deal with offences relating to criminal organisations. My question, Attorney, is: does section 83G(2) essentially allow the declaration process contained in the Serious and Organised Crime (Control) (Miscellaneous) Amendment Bill 2012 to be a shortcut by the criminal organisation declaration provision in this part?

The Hon. J.R. RAU: I am not entirely sure I understand the honourable member's question. If the honourable member is asking whether this is a shortcut way of completely subverting the whole of the other legislation, that is certainly not what it is intended to be—that is number one. Two, it is in a section relating to evidence. It is an evidentiary provision, and what it is basically saying relates back to the beginning of the section where we have the definition of a criminal group. The bill provides:

...a group consisting of 2 or more persons is a criminal group if—

(a) an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence of violence (or conduct that would, if engaged in within this State, constitute such an offence); or

(b) an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence (or conduct that would, if engaged in within this State, constitute such an offence) that is intended to benefit 35 the group, persons who participate in the group or their associates;

I know that is a lengthy definition, but a criminal group is not just any two or more people. If two people decide to pinch somebody's milk money (or something) they are not a criminal group, they do not get in here. We start with the definition of 'criminal group'. That is the group to which 83G is referring: a criminal group as defined.

I think, to be properly understood, it was intended to mean that having gone to the length of being able to declare particular individuals to be members of a criminal group—let us say we are talking about A, B and C are declared to be members of a criminal group. In the trial of A there is a declaration that A, B and C are members of a criminal group, there having been evidence in relation to that to satisfy the court that such a declaration was appropriate. My understanding of the operation of that would be that in the trial of B and C, which may not be concurrent trials, it would be satisfactory to adduce evidence that there has already been a declaration made in respect of A, B and C being a criminal group.

Ms CHAPMAN: What ability does the court have to revoke or hear an appeal regarding a declaration under this part?

The Hon. J.R. RAU: We have, as much as possible in this legislation, tried to—I have to say that this was, in many respects, at the urging of the Solicitor-General—fall back on the normal rules that apply in the courts and to allow the courts to use their normal rules of court and procedures. So, a declaration of individuals being a criminal group would be something that would be capable of being challenged in the same way as a finding that, as a matter of law, something constituted possession or larceny (or something else). It would be an appealable event in the same way as any other finding of a court might be. If there was no legal justification or the evidence was unsatisfactory, or whatever the case might be, then that would be a reviewable matter in that sense.

Clause passed.

Clauses 31 to 40 passed.

Clause 41.

Ms CHAPMAN: This provision is for the admissibility of evidence of out-of-court statements by unavailable witnesses. It has obviously been controversial. It is certainly a concern of the opposition that there may be aspects of this, and I think the Law Society raised some questions about this too, about whether that in fact ends up being abused and people use it when they should not to avoid giving evidence. My question is: is this provision used in any other jurisdiction, and if so, where?

The Hon. J.R. RAU: Yes, it is used in the United Kingdom and I have been advised that it has been used with some success in particular matters there. We might see if we can get you a little bit more information about that, because it might be of assistance.

Ms CHAPMAN: Thank you, Attorney. I think I remember you saying that there had been some reference to it being used in the UK during your contribution. That information would be helpful. How does this interact with hearsay evidentiary provisions?

The Hon. J.R. RAU: I think the important thing perhaps is to go to page 27, that is, 34KB(4), and the reference to prescribed proceedings. This only has any work to do in the context of proceedings for a criminal offence or proceedings under the Serious and Organised Crime (Control) Act. Read the whole lot as a whole, read the material we give you in relation to the UK provision, where this comes from, and let's talk about it if you still have concerns.

Clause passed.

Clauses 42 to 46 passed.

Clause 47.

Ms CHAPMAN: This relates to loitering. In the proposed legislation, new section 18(6)(b) refers to a prescribed drug offender within the meaning of the Criminal Assets Confiscation Act 2005. Under what section of the Criminal Assets Confiscation Act is this found?

The Hon. J.R. RAU: I will get information about that.

Clause passed.

Remaining clauses (48 to 51) and title passed.

Bill reported without amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (17:52): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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