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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Statutes Amendment (Serious and Organised Crime) Bill

Committee Stage

In committee (resumed on motion).

Clause 2.

The CHAIR: We need to find someone. We are looking for her now. There not being a quorum present, ring the bells.

A quorum having been formed:

Clause passed.

Clause 3 passed.

Clause 4.

Ms CHAPMAN: This is the commencement of the clauses which provide for the implementation of the new participation offences based on a declaratory process by the executive. The current act under the Criminal Law Consolidation Act provides for participation in a criminal group or a criminal organisation as an offence, and in that, which is in the current section 83D, it makes provision for a criminal group or a declared organisation as being the two categories that form the basis of what under our current law would be defined as a criminal organisation. In respect of the criminal group, it is a group of two or more persons if, in short, they have an aim or activity to engage in committing serious offences of violence (I am summarising that) and, secondly, an aim or activity in facilitating the engagement of serious offences in a similar vein.

We know, Attorney, no application has been lodged under the current court procedure seeking a declaration of an organisation for the reasons which have been referred to in the debate. My question is: have any charges been brought in respect of there being participation in a criminal organisation within the meaning of a criminal group?

The Hon. J.R. RAU: The short answer is I do not know. That would be a matter for SAPOL. I can ask the question of them, but I make the point that they have been here and available for briefings and they have been available to answer these questions, but I will convey that question to them.

Ms CHAPMAN: I would not be getting too cute, Mr Attorney, about the question of its availability. We have had 10 days to deal with this and, whilst the police have been available to deal with a number of issues, the capacity to be able to go through line by line in respect of these outcomes has not been available, and I just place that on the record, unless we spent day and night for the last week. Clearly, we cannot do that and nor can they, so please refrain from that sort of remark.

The CHAIR: Order! I will do the ordering. Perhaps if we just get to a question.

Ms CHAPMAN: It is a request.

The CHAIR: Could we just get to a question.

Ms CHAPMAN: It is a request I make.

The CHAIR: Could we get to a question, please.

Ms CHAPMAN: In not being able to tell the committee how many, would you make that inquiry and make it available between the houses?

The Hon. J.R. RAU: I said yes.

The CHAIR: Okay, third question.

Ms CHAPMAN: In respect of the current legislation, the definition of 'participating', which is slightly different from 'participant' under the new model, is clearly more restricted. What is the basis of extending the definition of participation to include in the new participant clause those who seek and/or are associated, which is under paragraph (c) (again, I'm paraphrasing it) and also those who attend one or more gatherings?

The Hon. J.R. RAU: I do not understand how these questions, particularly the latter one, are pertinent to subclause (4), and I am struggling to find the section to which the member for Bragg is referring.

Ms CHAPMAN: If you consider part 3A and part 3B of the Criminal Law Consolidation Act, they relate to offences relating to public order and offences relating to a criminal organisation, which currently set out the law in respect of disorder and participation, if I can again generalise. Section 83D under part 3B sets out the current regime, for definition purposes, as to what is a criminal organisation and also participation. On the participation aspect, in subsection (1)—

The Hon. J.R. RAU: This is why I am confused. We are actually on clause 8 now.

The CHAIR: No, we are on clause 4, but we are roaming between clauses 4 and 5, talking about section 83D.

Ms CHAPMAN: Yes, I am talking about what is about to be removed, rather than the new section 83G. If I can just go back to the current act, in respect of the definitions, 'participating' is outlined in the definitions in 83D(1). Under our new regime, which is about to come before us in the next clause, there is a more extended definition. My question essentially is: what is wrong with the current definition of participant, which is actually defined in the verb of participating?

The Hon. J.R. RAU: There are two things. First of all, if I am understanding what is being asked presently, I am actually being asked why clause 8 under the definition of 'participant' is proposing something different to the existing wording of 'participant'.

Ms CHAPMAN: Yes.

The Hon. J.R. RAU: Okay, so the answer to that is, and this is why I was confused because I was not comprehending this to be a question about clause 8 which in fact it is.

The CHAIR: I am looking at clause 4.

The Hon. J.R. RAU: That is okay; it just means we are getting to clause 8 more quickly. That is okay. There are two answers to that proposition. The first thing is that the current wording is an inclusive but not exclusive model, whereas this is an absolutely exclusive model. In other words, 'participant' means these things, nothing more nothing less, whereas the present model says 'participant includes the following' without any limitations, so this is actually a tighter definition.

The second point is this definition is actually reflective of the definition, or a copy indeed, of the definition that was used in the Queensland legislation because in as much as we have been able to do so, we have attempted to replicate that so as to be entirely faithful to my comments back some time, that we would be picking up the elements of the Queensland legislation and replicating it.

Clause passed.

Clauses 5 to 8 passed.

The CHAIR: Clause 9. We have amendment No. 1 standing in the Attorney's name and we are going to move amendment No. 1 to clause 9 as printed.

Ms CHAPMAN: I thought we had done 1 to 7.

The CHAIR: No, I said 1 to 8.

Mr WILLIAMS: One to 8 inclusive?

The CHAIR: That is what 1 to 8 usually means, yes.

Mr WILLIAMS: In that case, can I move that we resubmit that clause for further consideration because I think most of the questions arising out of this bill will be with regard to clause 8.

The CHAIR: I was very clear with what I said. Is the committee willing to—

The Hon. J.R. RAU: Yes, but I thought we had dealt with 8 under the heading of 4 a moment ago, but if there is more on 8, fine.

The CHAIR: Well, if you have questions, but it is important that we all listen because we were talking about clause 8 at the end. So we are going to resubmit clause 8.

Clause 8.

Mr WILLIAMS: I have a number of questions on this and my principal concern with the whole bill arises in clause 8. My glasses are currently being repaired so I am struggling to read what is on the paper. The definition of 'criminal organisation' concerns me because there does not appear to me to be a process where evidence is gathered, tested and then a judgement made.

It seems to me that the declaration of a criminal organisation follows a process where maybe one or two people are charged with the decision. We had a significant briefing from senior police a couple of days ago and it seems that, although the regulation-making process might be subject to parliamentary scrutiny, certainly the basis for making the declaration in the first place and with respect to the evidence which was presented to yourself as the Attorney-General, we were told the full evidence would not be made available to members of parliament who may be undertaking that scrutiny.

My question to you is: how can the parliament be assured that mistakes will not be made? I remind the minister that he has tabled a number of amendments to some of the schedules to this bill because mistakes were made by the police—the very same people who would be assembling the evidence to present to you on which you would make a decision and then have the Governor make a regulation. But the parliament, which may wish to scrutinise that regulation and maybe disallow it, would not have the opportunity to view that evidence even if it were qualified to do so.

The Hon. J.R. RAU: It is obviously a reasonable question. I will do my best to respond to that. The first part of it is this: there are two separate categories of classification that are contemplated by this bill. The first class is the group of organisations and places which are mentioned in the bill, and therefore would be, in effect, prescribed by the parliament as a whole. In respect of those, I have sought to provide members with as much as I possibly can, by way of briefing and opportunity to ask questions of SAPOL. I do not think there is much more I can say about that, other than to obviously say to members that I personally am satisfied that these are both organisations of criminals and criminal organisations.

That then leaves what happens in the future. What happens in the future is to be dealt with by way of regulation. What I would say about the regulation-making power is this: the power of the minister to make a recommendation to the Governor is not open ended, and that power is contained within subsection (3) of the new proposed section 83GA, which appears on page 5. That says:

(3) The Minister may, in deciding whether to make recommendation for the purposes of [a declaration], have regard to the following matters:

I will not read them all out, but it sets out a number of various matters which point in a direction. The other thing is, of course, that it is not contemplated that the minister will be pulling these names out of thin air but will be responding to requests from SAPOL.

To put it another way: we have a SAPOL-initiated suggestion to the minister that the minister consider recommending to the Governor that a regulation in a certain form be made. The minister is obliged to turn his or her mind to subsection (3). The regulation might or might not then be something cabinet agrees to allow to go forward. If that happens, there is a power in the parliament to disallow that.

If it was not disallowed by the parliament, it is my view—and subject to anything I am about to hear from somebody immediately to my left—I think it must be the case that, because there are criteria set around the regulation-making power, that would be a reviewable matter, in a sense. So, there is judicial review capable of that. I think that covers off most of it.

The other point that was made by the member for MacKillop, which is an important point, touches on something which is very difficult, which is basically intelligence. Intelligence is not, by definition, evidence. It might point you towards evidence, it might assist you in seeking evidence out, but it is not necessarily in and of itself evidence; in fact, almost exclusively not.

Also, intelligence itself falls into a number of subcategories. For example, you may have intelligence which is the product of listening devices. You may have intelligence which is the product of concealed cameras, or whatever the case might be, and you may also have intelligence which, most sensitively of all, is sourced from a human source. In those circumstances, obviously the revelation of even the existence of that intelligence potentially places that human source at risk, because the dots can be joined back to 'well, how did they know that?' There are only a certain number of people who would have been in a position to give that advice over; therefore, by process of elimination, getting it right or wrong, you can lead to some very unsavoury outcomes.

I think what we have to be prepared to say is that the minister of the day must have regard to these items which are set out there. They must rely on the recommendation of the police. They cannot initiate the thing without the police agitating the proposition. I take the point that the member for MacKillop is making: that just because the police agitate a point does not necessarily mean it is conclusively good enough, and there does need to be an independent mind brought to it. All I can say is that the checks and balances to that in order are: number one, the minister is expected to make their own reasonable inquiries to satisfy themselves, and number two, the minister has to take the recommendation to the cabinet in order to receive permission for Executive Council to consider the matter. Then, after all of that has gone by, there is still the capacity of the parliament to disallow the regulation if it is not comfortable with it, or for any other reason.

Finally, if the regulation does go through, then a person considering themselves to be aggrieved by this would be in a position where they could take judicial review proceedings on the basis that the minister had no reasonable grounds for making the regulation. Yes, that is more complicated than some alternatives, but this legislation needs to provide for the capacity for things to be modified according to changing circumstances.

Mr WILLIAMS: Minister, I have to say that you have not allayed my fears. You said in your response to my inquiry that the minister 'must take into account', whereas subsection (3) of 83GA provides that 'the minister may'. It does not say the minister must do anything, it says 'the minister may'. Then it goes on to say that the minister may 'have regard'. It does not mean that the minister must actually fulfil the criteria that is set out underneath. It does not say there that the minister will only act on information brought to him by the police. It says 'any information suggesting a link exists'. It could be brought to you by your neighbour down the road, according to the bill. I am most concerned about subparagraph (e) where it provides, 'any other matter the minister considers relevant.'

Minister, let me say that I am not legally trained, and therein lies part of the problem, because about the only check or balance in this matter would be the parliament, and the vast majority of the members of this parliament are the same as me. They are not legally trained.

I would suggest that this parliament is not competent to carry out the task that your bill is asking it to carry out. My reading of this is quite different than what you have just told me. You might address my concerns by explaining to me why the word 'may' is there instead of 'must', why the phrase 'have regard to the following matters' rather than 'take into consideration the following matters' is there, why there is no mention there that the suggested link has to be proposed to you by a senior police officer or the commissioner of police, and why on earth you need the subclause (e) to provide 'any other matter the minister considers relevant'.

Minister, I have heard this expression so many times in this place—and I genuinely mean it when I say I have faith in your ability as the Attorney-General of this state. I have to tell you that I have seen a number of people hold ministerial positions and lots of other positions in this parliament who I have not had that degree of faith in. I am sure that from time to time there will be people, and sometimes a whole cabinet of them, in whom I would not have a huge amount of faith. I am really concerned about the ability—as I said in my second reading contribution, we are turning on its head hundreds of years of development of law, of principles of law. There are no guarantees in my mind and very few assurances to be quite frank.

The Hon. J.R. RAU: Again, can I say that I absolutely respect the member for MacKillop's position on this, and I know that he is absolutely genuine in his concerns. Aside from what I have already said, which I will not repeat because that would be tedious for everybody, I would only make the following additional remarks.

First of all, (3)(e) means that if there were some other matter of significance in the opinion of the minister which is not in the list—and you have to imagine that it is very difficult to foresee in the circumstances what will be available and what will not be available and what might be sitting around. If, by sheer happenstance, we have not included that in the first ones—(a) through to (d)—then it might be argued the minister cannot consider those things at all.

I am pretty confident that any court being called upon to consider the conduct of the minister in such a case as this would, in effect, treat those provisions as directory provisions. I acknowledge the word 'may' is there but this is a direct copy of the Queensland provision, so we have not fiddled with it one way or the other but a court would invariably take a reasonably serious view, having regard to the consequences potentially of a regulation standing.

It is a matter of statutory interpretation, which I think still holds good, that a remedial statute is to be interpreted generously and a penal one is to be interpreted very narrowly and restrictively. If you provide a legislative scheme to look after orphans and people with sickness, any ambiguity at all, any opportunity at all, they are supposed to blow the thing out and make it bigger. Conversely, if you are taking someone's property off them or putting them in gaol, or in this case stopping them associating, the courts will bend over backwards to restrict the operation, so I am absolutely confident that the courts would basically assess any decision by the minister against these criteria and the minister would be expected to account for what they did or did not do against these criteria.

As for (e), they would expect the minister, if there is anything under (e), to not only explain what it was but why it was relevant. If any minister was stupid enough to include something in there which was manifestly frivolous or a dopey consideration, the courts, I am confident, would tear their heads off. So, I understand the member for MacKillop's concern but I do believe that the courts would treat this as a pretty serious inquiry.

Mr WILLIAMS: I accept that this is a really tough situation. I accept all of that. I accept that we have come to a position where we are grappling with a very serious problem—I accept that. The reason I believe the problem is so serious is that this—and I referred to it yesterday in my second reading contribution—is an industry. There is an industry out there and it is a very valuable industry. Nationally, it is a multibillion dollar industry. So, we are not talking peanuts.

When we received the briefing from senior officers of the South Australian police force, they briefed us on the impact this legislation has had in Queensland and they gave us some stats. All of the statistics they gave to us concerned outlaw motorcycle gangs' impact on each other and members of such gangs. They were unable to give us any information, other than one piece which I will come to in a moment, about the impact on the general crimes that we are trying to address, and I would suggest mainly drug-related crimes.

They did tell us that there have been, I think, 70 reports of extortion in Queensland that have been made to the authorities since this legislation, whereas in the previous 12 months there had been none. Now, that may be a very big upside. When I specifically asked if there was any evidence about decreasing the distribution of drugs or the breakdown of drug networks or some of the other activities that these outlaw motorcycle gangs are involving themselves in, they were unable to give us any information with regard to that, but they were very fulsome on the information about the reduction in outlaw motorcycle gangs shooting at each other, or involving themselves in serious assaults against each other, frays and, indeed, murders, all against each other.

For the life of me, minister, and I know you have been requested by the police to give them this extra set of tools in their toolbox and I know you are genuinely trying to resolve what is a serious issue, but by passing legislation which will certainly make life a bit more difficult for these thugs I do not think these measures are going to disrupt, to the point of resolving, the problem we have with these groups of people carrying out organised crime.

You may stop them from congregating in their clubrooms where they display their banner on the front gate or something, but surely they will still congregate, maybe without wearing their colours on their back, somewhere in a private home or some other quite inconspicuous place. I am absolutely convinced that their level of activity will not diminish, that they will continue their activities. That is why I made the point that this is a multibillion dollar industry.

I am far from convinced that the supposed benefit we might get as a society from changing this legislation is worth the risk of overturning the principles that underpin our law and have done for hundreds of years in the endeavour that you have put before the house; I cannot accept that.

There is really no question therefore other than: have you any evidence to suggest that the disruption that you hope will occur if you get this matter through the parliament will have any real effect on the key problem? I suggest the key problem is that of drug distribution.

The Hon. J.R. RAU: Again, a very thoughtful and reasonable question, I think. In relation to this matter, I have never used terminology like 'I'm declaring war' on anybody, and I have never sought to overcook what we are doing.

I am not pretending for a minute that the mere passage by the parliament of this will instantly, or even over the next few months, eliminate all the bad behaviour that is associated with these people. What I can tell you is this: if these people wish to associate together after this legislation comes into place, a lot more of them are going to wind up in gaol, which means not on the street and not doing whatever it is they are doing now. That is point No. 1.

Point No. 2: in those instances of affray and whatever, which are in many instances between group A and group B on our list, I know many people, including constituents of mine, think that is not a bad thing and the more they did that to each other, jolly good. The problem is that they do not go to some remote spot and just bash it out; they often do it in a cafe or in a busy street or somewhere else, and completely innocent people are at risk of being injured or caught up in this thing and, at the very least, traumatised by it if not permanently scarred or worse. The mere fact of their interaction with each other being limited, and the affray and all that sort of stuff disappearing, is actually good in the sense of making our streets safer and stopping innocent people being unwittingly drawn into these situations.

The other thing I would say is this: the police in South Australia have told me—and I am sure they have told those members opposite who have been briefed—that they saw a definite falling away, a significant falling away, in activity by and membership of these groups immediately following the declaration, which was ultimately challenged in the High Court in the Totani case. As soon as that challenge was successful, they all popped up again out of the woodwork and were running around in a very triumphal sort of mood.

I have spoken on many occasions to the former attorney of Queensland, Jarrod Bleijie, who was the architect of this and other legislation in Queensland which, incidentally, I have not picked up. He told me that there was a dramatic drop-off in bad behaviour, particularly along the Gold Coast in Brisbane, associated with the behaviour of these people who had a large presence in clubs, pubs, entertainment precincts and suchlike.

The last point I would make is that part of the modus operandi of these people is that if somebody starts attempting to agitate you as a citizen, and they are wearing the uniform of somebody you know to be a person with a large number of very big friends who wear similar outfits, you are probably more likely to be intimidated by that person and perhaps intimidated, for example, into not telling the police something you actually should tell the police so that they can investigate something, and so on.

We should not underestimate the significance of this. If you want to use an analogy, imagine that every police officer had to take off their uniform and engage in every situation where they are trying to help the public in plain clothes. I would simply ask the question: would that make them more or less effective? I think the answer is obvious. They are not going to disappear off the face of the earth, but we are forcing them not to hang around together and we are forcing them into plain clothes if they are out in public.

The police say that they have confidence that those measures are significant, but I take the member's point: does that mean that all distribution of ice or whatever will stop? No, of course, it does not. But do I believe that it will mean there will be an improvement in the public order in our state? Yes, I do. Do I believe that over time we will have more of these characters in gaol than presently are? Yes, I do. Do I believe that every one of these people you take off the street and put in gaol the safer it gets for everybody else? Yes, I do.

Ms CHAPMAN: In relation to the definition of 'participant' in paragraph (d), which is a person who attends more than one meeting or gathering of persons who participates in the affairs or the organisation in any way, does the Attorney agree that that is not time limited and that it could be a meeting 30 years ago?

The Hon. J.R. RAU: Yes, it could be.

Ms CHAPMAN: And in new subsection (3) which has been the subject of the preceding questions, my understanding is that this prescriptive list of matters that can be considered by the minister (yourself) in recommending any of these regulations is not actually in the Queensland legislation. I may be wrong, but that was the advice I received, that in fact the Queensland provision does not have a list at all, and this is something—

The Hon. J.R. RAU: My understanding is that it was, but I will check.

Ms CHAPMAN: I agree with the member for MacKillop that there are issues in relation to the judicial review, and if the Attorney were confident that these are, general as they are, really matters that must be given some consideration, then that would be something that would be important to our support of the regulatory power, so I indicate that that is something that is very important to us. Secondly, the change of name issue, which is in new subsections (5) and (6), is really as a result of the Finks/Mongols problem we had in South Australia, and that also is not part of the Queensland legislation, and that it is really to cover that circumstance. So, there are some differences, as I understand it.

The Hon. J.R. RAU: Can I just explain this. I have in front of me a copy of the Criminal Law (Criminal Organisations Disruption) Amendment Bill 2013, which is the relevant Queensland bill or act. Section 348A of that is 'Criteria for recommending an entity be declared a criminal organisation'. I have not had a chance to spend a lot of time looking at it, but it looks to me to be absolutely identical to the one I was talking to the member for MacKillop about.

As to your other question, the business about the change of name was something which we added in and which is taken out of our SOCC Act, so it already exists here in another way, but we did that mindful of the experience we had had with the patch-over of the Finks to the Mongols. So we already have something like that in our SOCCA, but we thought, having been through that whole experience, not to have taken some account of it in the legislation would be not helpful.

Ms CHAPMAN: Under the process of how this is to operate under the regulatory arrangements, you would receive a brief from the police, you would consider these factors, as to whether you would make a recommendation to your cabinet and, if so, you would put that recommendation to cabinet. The police brief, as such, would not be presented to cabinet, but if they asked to see it would they be able to see it?

The Hon. J.R. RAU: I have approached the present bill basically as if I were making myself comply with what I understand that subsection (3) would ask me to do. I received two levels of briefing; one level basically talked about the groups and gave information about the groups—how many people there are, how many had been convicted of offences and that sort of thing. I think that the Deputy Leader of the Opposition might have seen a similar document, if not the same document; and, obviously, I asked questions about that document as no doubt the deputy leader has asked. There was then an additional document which had attached to it a higher level of sensitivity. In fact, it was a document which is not able to be left sitting around the place. There is very restricted access to that document.

Ms Chapman interjecting:

The Hon. J.R. RAU: Well, put it this way: I briefed cabinet as far as I could, and I think that I had SAPOL there as well, if I remember correctly, so that they could directly answer any question that cabinet might have had about the matter because I thought it was appropriate that this one be done in the same way as I would expect things to be done in the future.

Ms CHAPMAN: I will deal with the 27 in the list in a minute and the places, but I assume from that that the minister is saying, 'Look, for the purpose of even putting in this bill for approval by cabinet and the schedule I did what I would normally be expected to do as if I was doing that by regulation. So, I got a briefing—general and sensitive information. I presented that to cabinet, made others available from the police to answer any questions, and that, without seeing the documents, they accepted my recommendation to present this bill to the parliament, which included that list.'

The Hon. J.R. Rau: Basically, yes.

Ms CHAPMAN: And that the minister's expectation for the future is that for the regulation of any other club or place, he would follow that process?

The Hon. J.R. Rau: Yes.

Ms CHAPMAN: And of the 27 that are in the current list 16 are operating in Queensland—

The Hon. J.R. Rau: Or elsewhere.

Ms CHAPMAN: —or elsewhere, and 11 are in South Australia but some are amalgamated, so it is nine. In any event, 11 of that list of 27 already operate in South Australia.

I appreciate that the minister has seen the general and the sensitive for the purpose of making this assessment. We have seen in respect of the 16 that operate elsewhere a file on those, and from my understanding of the briefing there was not sensitive material attached to those because we were shown them. It was a half page document which identified the group, where they operate, largely a summary of the estimated number, an indication of how many of those have got a conviction against their name, the belief that they are involved in a list of activity and the final point which is that they have been declared a criminal organisation under the Queensland law, or such other jurisdiction as they are applying to. Now that is pretty brief, obviously.

In accepting that those 16 go on the list, did the minister make any other inquiry or did the minister accept the fact that they had been declared a criminal organisation in those other jurisdictions as sufficient to satisfy himself that they should go on our list?

The Hon. J.R. RAU: That is a good question, and I did spend some time thinking about this. First of all, obviously, the fact that SAPOL has connections with its counterparts in other jurisdictions means that they have access to information from elsewhere, which I, as a matter of routine, do not; and so I obviously relied upon them in providing that list of names, or at least verifying that list of names which appeared in the Queensland legislation.

The second point I would make is that, whilst it might be said that section 83GA(5) will deal with the circumstance in which we have a patch over of an existing South Australian body (and let us assume that it does satisfactorily cover that), it does not help if an organisation that does not exist here at all decides to set up a branch. I think what members might be assisted to think about here is that in some respects these organisations operate as a franchise. So, you have a franchisor who might be in Los Angeles or wherever. That franchisor has a business model and has certain symbols and a certain cachet (if that is the right word), and they have to grant the right to somebody else to use their paraphernalia, their name, and whatnot, and for all I know there is some payment of franchise fees in exchange for that; I do not know.

What I do know is that, if we close the front door on our existing people and leave the back door open so that, whilst those existing people are going to be restricted in their activities and they cannot use the simple device of a patch over, assuming that is an effective provision for the purpose we have put it in there, we would still be leaving the back door open so that a new franchise from elsewhere would be able to move in and set up and perhaps attract a member from here, a member from there, or a group of new people who were never members before, or they might migrate over here because things are convenient here or inconvenient somewhere else. That was the reason for that. The idea of that was a protective measure: if we are closing the front door, we did not want to leave the back door open.

Ms CHAPMAN: That might be the basis upon which you have dealt with the pre-emptive strike in dealing with those that might come across the border, but in relation to the 16 from Queensland or other jurisdictions that may invade us, it appears, on the information that we have been shown and purportedly what you have been shown, that there was no other evidence before you to confirm that there was criminal activity operating in these groups other than the fact that they had been declared a criminal organisation in Queensland.

The Hon. J.R. RAU: I think it goes a bit further than that; I think the police made inquiries of their counterparts. Let us just take a step back for a moment. Given that these organisations do not presently have a footprint here, it is not as if any individual member of that group is being in any way disadvantaged by that declaration. So, on the one hand, the member for Bragg's proposition that the level of scrutiny that we have subjected these additional 16 to is less than the others, I accept, but it is on the advice of the police. But, on the other hand, the implications for these 16, provided they remain foreign to South Australia, is zero. I think you have to weigh up the impact upon them and how much weight you need to attach to it.

Ms CHAPMAN: It is noted that the regulation process in Queensland has a different structure to the extent that there is no upper house and that a regulation, an edict of a minister, once it has got through cabinet, is really a question of numbers in the parliament. I have not read their subordinate legislation act as to whether they have some other capacity to challenge, but I make the point that it is a slightly different set of rules here.

If the regulatory power which is being invoked for the purposes of declaring groups and places other than those listed in the bill is a satisfactory one, and, as you acknowledged today, has a level of expectation that you as the minister would be properly considering the matter, taking into account the factors that it is judicially reviewable as an administrative determination, and if that is such a safe and appropriate process, why in South Australia are we being asked to sign off on 27 organisations and 15 places as a statutory determination in this bill thereby avoiding any capacity for a judicial review?

The Hon. J.R. RAU: That is exactly why we are doing it, and it is on the same basis as this: the federal parliament has determined that Jemaah Islamiyah and Al-Qaeda are terrorist organisations and brings down the whole burden of commonwealth terrorist laws upon members of those organisations.

Did the commonwealth parliament ask a court whether they were going to make those decisions? No. The minister made the assessment, and ask yourself the question: what possible hope would a minister of the Crown have of proving it to the satisfaction of a court that Al-Qaeda, and proving with evidence, mind you, not innuendo? My point is this: I have never tried to move away from the proposition that our intention is to start this off in a way which is not going to wind us up in endless litigation in the courts with these people.

We are making a point. We are saying that the parliament should be able to make this decision and for the future there will be a reviewable process, but we are saying that we are satisfied that we should be supporting SAPOL in this and that we should do so in a way that is not going to wind up with endless litigation, delay, expense and cost to the state. Quite frankly, if we are going to do this, we cannot half do it, at the beginning anyway. We have to actually acknowledge what problems we have now and try to deal with them, and that is what this seeks to do.

The CHAIR: Bearing in mind that we have had 15 questions on clause 8, I would like to put clause 8 because we are already on the schedule 1, basically, so could we do clause 8?

Ms CHAPMAN: I am happy to go to that clause and deal with places.

Clause passed.

Clause 9.

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

Amendment No 1 [DepPrem–1]—

Page 9, after line 22 [clause 9, inserted section 117C]—After the present contents of inserted section 117C (now to be designated as subsection (1)) insert:

(2) It is a defence to a charge of an offence against this section for the defendant to prove that the defendant or another person referred to in subsection (1)(a), (b) or (c) made a request to a police officer in accordance with section 117E(2a) in relation to the person wearing or carrying a prohibited item.

Amendment No 2 [DepPrem–1]—

Page 10, after line 7 [clause 9, inserted section 117E]—After subsection (2) insert:

(2a) If a person referred to in section 117C(1)(a), (b) or (c) requests a police officer to exercise a power conferred by this section in relation to a person, the police officer must do so if satisfied that the power may be exercised in relation to the person under this section.

Ms CHAPMAN: In relation to the licensing act amendments, I note the importance of the amendments that went into this major amendment. I am pleased that the government has acknowledged the importance of ensuring that the police shall attend if they are called upon in these circumstances, and we appreciate that. My question is: how many barring orders are currently operative in South Australia; if you do not have that information, could you provide it to the house between the houses? That was not specifically available during the briefings.

The Hon. J.R. RAU: I will ask for it, yes.

Amendments carried; clause as amended passed.

Clause 10.

Ms CHAPMAN: Clause 10 relates to the upgraded modified consorting as per the New South Wales model, in short, and we were given some information from the police about the general effectiveness of this in New South Wales. We have already had the debate about consorting, so I have not spent a lot of time with that in the second reading, but I would like to have some data in the meantime as to how many persons have been charged with consorting—

The Hon. J.R. Rau: Under our existing?

Ms CHAPMAN: —under our existing—in the last, say, two or three years since its inception, which I think was in 2013, so it will only be two years. How many have been charged and/or convicted in New South Wales under this legislation? If that could be made available between the houses, I would appreciate it. Particulars of the sentence for any convicted would also be appreciated.

Given the experience in Queensland of charges on the participation in declared organisation offences, I would also ask to have the particulars of any charges and convictions. Whilst the police could give us advice on the lack of criminal presence along the Gold Coast and apparent reduction in attendances at licensed premises at the like—and, very importantly, that 70 witnesses have apparently come forward to make complaints about apparent extortion or other types of behaviour—they were not able to give us all the details on any prosecutions.

I indicated during the second reading that there were only two cases I have been briefed on, both of which have been withdrawn. The details are in the second reading. Could we have the particulars in Queensland of those charges that have been laid, a summary of either the convictions or penalties, if there are any, and the number that have been charged, withdrawn and/or acquitted.

The Hon. J.R. RAU: I will provide a copy of the Hansard with those questions to SAPOL and ask for them to do their best to provide the answers to that. Can I just make the point, though, that one should not measure the—

Ms Chapman interjecting:

The Hon. J.R. RAU: No, I will ask them to do it. Can I make the point that one should not measure the value or otherwise of a consorting law purely by reference to the number of charges or convictions, because the obvious intention of the consorting provision is to actually stop people continuing to consort. I think I should ask, for completeness, about whether they were issuing notices. A number of people may have been satisfied that a notice was enough and they stopped doing it. So, just because there are not a lot of convictions does not mean that it is not effective.

The other point I would make is that a former New South Wales attorney-general (two attorneys back), Greg Smith, was responsible for the introduction of that, or at least it occurred during his tenure of the position. I remember him telling me that his police were telling him that this was a very effective tool in managing the behaviour of these people in Sydney. That is anecdotal, that is an attorney telling me about this. He was thoroughly delighted when the High Court came back and endorsed this because there was a question as to whether or not this would be constitutional, and he was extremely pleased that it was found to be so.

Ms CHAPMAN: That may be so, but the practical application in South Australia of our current law, we are told by the police, is impeded by the fact that they are required to give six notices within a year. That is just a practical application. They are obviously looking to go to the New South Wales model and—

The Hon. J.R. RAU: I think, in fairness, it is not six. They have decided that six is probably safe. It is habitually consorting, and the question is: what is habitual? There is a lot of common law about that, so they have decided to shorten it up.

Ms CHAPMAN: I understand that, and I am not wanting to misrepresent the police's position. They just say it is impractical and problematic in its application, so, again, we are not rushing to that. Whether people are meeting each other outside a public environment, of course, is going to be another matter. But, in any event, we will see how that goes.

On the sentencing, which I think was actually part of clause 8, I will just make a quick comment in relation to rather than doing it in the third reading, if that suits the Attorney—

The Hon. J.R. Rau: Sure.

Ms CHAPMAN: —because I had made inquiry about the sentencing law that we currently have. It supports the opportunity for people to get a reduction in sentence in a number of ways, one of which, under the 'carrot' options, is to assist the police in their inquiries in relation to other investigations. We have an informal process in the courts which can accommodate that. I do not need to give it in detail; for the purposes of that exercise, it is better that I do not. I just make the point that our concern in relation to the requirement of the judge in this new, more prescriptive sentence regime for this legislation requires reasons.

The Attorney's chief of staff pointed out that her understanding was that that would only apply if a judge determined that the standard nonparole period should not be imposed, and it obviously presents something else. On my reading, that appears to be the case so I will not take that any further. However, our concern would be if judges were required to publish reasons and in that sense disclose whether there had been a benefit given for the reduction in sentencing as a result of the cooperation of police. I do not think I need to make any other comment, and I thank her for that inquiry. I am happy to move to schedule 1.

Clause passed.

Clauses 11 to 14 passed.

Schedule 1.

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

Amendment No 1 [DepPrem–2]—

Page 13, line 22 [Schedule 1, clause 3(c)]—Delete paragraph (c) and substitute:

(c) Section 331 Keith Street, Whyalla Playford;

Amendment No 2 [DepPrem–2]—

Page 13, line 23 [Schedule 1, clause 3(d)]—Delete '117' and substitute '113-115'

Amendment No 3 [DepPrem–2]—

Page 13, line 24 [Schedule 1, clause 3(e)]—Delete '19' and substitute 'Lot 101'

Amendment No 4 [DepPrem–2]—

Page 13, line 25 [Schedule 1, clause 3(f)]—Delete paragraph (f)

Amendment No 5 [DepPrem–2]—

Page 13, line 28 [Schedule 1, clause 3(i)]—Delete paragraph (i) and substitute:

(i) Lot 51 Trafford Street, Mansfield Park;

Amendment No 6 [DepPrem–2]—

Page 13, line 30 [Schedule 1, clause 3(k)]—Delete '110' and substitute '108'

Amendment No 7 [DepPrem–2]—

Page 13, line 31 [Schedule 1, clause 3(l)]—Delete paragraph (l)

Ms CHAPMAN: I will deal with the list of criminal organisations and prescribed places. Again, I note the amendments to be more prescriptive as to the detail of the addresses that relate to the identified places to be prescribed places and the exclusion of two. It cannot go without notation that that has really confirmed the concerns of the opposition as to the danger in progressing with a legislative endorsement of these organisations and places by statute, making them part of the act and therefore only able to be remedied if these orders had been made to give relief to the two properties at Whyalla and Willaston in particular by bringing a bill before the parliament to have them removed.

The alternative is, as the Attorney says, that once they have gone through as part of the bill they then become a regulation. He can then simply promulgate a regulation which says, 'I'm going to delete those two from the list.' The isolation of this first group and the implementation of a different procedure to avoid what we would say is a fundamental basic procedure that may well be ultimately acceptable to the opposition is concerning to us; namely, that the government insists on trying to get the parliament to rubberstamp this.

I make the point that this parliament and the members of this parliament have not been able—and we are not critical of this—to view the sensitive material that the Attorney has received. We are being asked to accept that the Attorney's assessment of this material has been comprehensive and reliable and has been done in a proper manner, but we have no capacity to identify whether that is accurate. The information that we had that a local amateur motorcycle club with the same name as one of those listed, namely the Phoenix, only adds to that concern.

I think the expectation of the government for the parliament to rubberstamp this is a level too high. I make that clear. It would certainly be possible for us to consider a structure involving the regulatory procedure of all of these, including in it the capacity for a committee of the parliament to receive and review on a confidential basis the information upon which the Attorney relies.

I am advised by SAPOL that that is something they would acquiesce to, that is, that they would make that information available at the very least, not so that they are second-guessing the Attorney's assessment, but for the purposes of their being able to make some assessment as to whether they should give notice to disallow the regulation. You may treat that as second-guessing but it may simply say, 'We are not in a position to give support to it, therefore, we consider that the parliament should consider disallowing it, not because we think that the information is an error even, but that it is not adequate and, therefore, we should not be relying on it.' It is, to that extent, some safety net in the regulatory process. Presumably, if it fails at that point by the parliament, then that is something that the Attorney can consider, whether it is tried again at a later date or more information obtained.

However, the aspect of having judicial review in the context of what we are taking about here is really going to be the capacity for either the Attorney and/or the parliament to accept that there is sufficient information, intelligence—call it what you will—in these files to be satisfied that this group should be treated as a criminal organisation. Fundamental to that is what is in your list of factors, including a link to criminal activity. There has to be a fundamental purpose of the existence of this group, not exclusively but significant in its operation that it is to undertake criminal activity. Frankly, unless that is able to be identified, then it should be reviewed and whether that is thrown out by the parliament under the regulatory process or goes off to SACAT or some other body which will review it under a judicial review application, then so be it.

It seems to me that that is the proper process and, if the government is really serious about pursuing this part of the bill which is clearly the most controversial, then quite frankly it will need to look at how we manage that. This bill is not—I think the opposition has made quite clear—one which we comprehensively reject. There are aspects of this that we are prepared to support the government on, but there are other aspects where I expect that the threshold is clearly too high, and I think I have tried to outline to the Attorney where we are going in that regard. I ask him to give serious consideration to that between the houses.

The Hon. J.R. RAU: Just on that point, we do have a standing committee of the parliament, the Crime and Public Integrity Committee. There is absolutely no reason whatsoever—because that committee being a committee of the parliament is master of its own destiny—why that committee could not determine for itself that it wishes to undertake a conversation on an in camera basis with SAPOL and/or the Attorney of the day about any proposed regulation. There is certainly no reason why that committee could not make a report to the houses of parliament to the effect that it is not happy with the justification given. I do not have any problem with that at all. I imagine that if the members of that committee are interested in this matter that is exactly what they will do and I do not have a problem with that.

Ms CHAPMAN: I am pleased to hear that, Attorney, because I have read a letter from you dated 25 March this year to the presiding member, the Hon. Gerry Kandelaars, on its inquiry into serious and organised crime legislation in which you are aware of that. They invited you to make a submission, you declined to make a submission, you gave notice to them that you intended to change the law in relation to this area and introduce legislation in May—full stop. So, if you are now saying, yes, you do see them having a role in relation to the assessment in the regulatory process for the future, then what we are saying to you is it is not unreasonable that they have a role in relation to the current 27 and 15 organisations and places respectively—or what will now be 13. You are shaking your head. I accept that you are refusing to accept that, but I make the point that as generous as you might be in saying, 'Well, they can come in in the next tranche of potential organisations or places, but they are not going to be involved in the current one,' I am indicating to you as the Attorney that we are seeing that as a threshold too high.

The refusal by the government to even consider that is concerning in itself, especially when we have had a group apparently inadvertently captured and two places of which people are living in now and of which there is no actual organised crime gang headquarters or meeting place at. Surely, that should say to you that despite your best efforts it has not been done thoroughly, mistakes have been made and it needs to be properly scrutinised.

The Hon. J.R. RAU: Yes, mistakes have been made, but mistakes that I identified myself, brought to the parliament and did not attempt to hide anything about. Can I also say this: that sounds awfully like some process which will delay this. For that reason, and for the important other reason that whatever briefing might be given to that committee at some point in time in the future, however comprehensive that might be, the Deputy Leader of the Opposition has had whatever that briefing would have been and had access to whoever those police officers would have been—

Ms Chapman interjecting:

The Hon. J.R. RAU: I am sorry then, in that case we are at cross-purposes because I am not suggesting that the stuff that I have—I only have in my possession if I am the only person in the room and I have it locked up in a safe—is going to be provided to anybody. I hope—

Ms CHAPMAN: The police have said that. The police have made it clear that if it is produced on a confidential basis to a parliamentary committee, the whole files, the general and the sensitive that you have referred to, would be made available to that committee for review. What you have seen, they would see. I make that point. They made that clear to us in the briefings. We understand entirely, especially on the sensitive material, as to why that would need to be in camera, or however you want to describe it, however we would structure it, but let us be absolutely clear: even for the purposes of us as parliamentarians having any hope of being reassured that what you have done is adequate then we would need to have some group have a look at it to indicate to us whether we should be filing a notice of disallowance or not.

The Hon. J.R. RAU: I will tell you what I will do between the houses. I will try to ascertain from SAPOL exactly what it is they were saying they were prepared to offer to that committee. Can I say this: once I have ascertained what that is I will give consideration to, rather than giving it to the committee, giving it to the Deputy Leader of the Opposition so that she gets that briefing, whatever it is. In this instance, given the Deputy Leader of the Opposition is representing the alternative government in this place in this debate, then provided that I am crystal clear on what SAPOL is saying they would be giving to that committee, frankly, I cannot see how, if they are prepared to share it with all the members of that committee on a confidential basis, they should not be prepared to share it with the Deputy Leader of the Opposition on the same basis.

I am happy to make inquiries about making that available, but I am not interested in having this thing slowed down. As I said, we have made briefings available. If there is more information the deputy leader needs to satisfy herself, that is fine, but I regard it as important that this matter progresses.

Ms CHAPMAN: Just in the sense of timing: clearly, it is not going to be dealt with in the Legislative Council for at least two weeks. We know that, by virtue of time. I place on the record that it is not acceptable that the material be thrown to me, as the deputy leader or shadow attorney-general, to be the one person who otherwise is to provide some advice to parliament. That is totally inappropriate.

The Hon. J.R. Rau: It is not to provide advice to parliament.

Ms CHAPMAN: To provide advice to the opposition or anything else; that is completely inappropriate. What is appropriate is that yes, Attorney, you do check with the police as to what they say they are about. That was my clear understanding, because we asked it several times, fully understanding that it would not be appropriate to just go out to all members, clearly. We were not even asking that.

They did not even prescribe it to be the Crime and Public Integrity Policy Committee, but I agree with you that that is the appropriate body if we do have a parliamentary committee, but a parliamentary committee, on a confidential basis, and there should be adequate time for them to view that. They may seek some more time, but I make the point that there are worthy aspects of this bill. This question of taking through 27, plus now 13, clubs and places via the parliament is going to be problematic. The Attorney ought to be on clear notice about that, but there is a model, I think, which we should be sitting down and having a discussion about, to see whether that can be achieved. If it cannot, then parts of this bill may flounder.

The CHAIR: Do we want to continue?

The Hon. J.R. RAU: Yes, please.

The CHAIR: I am feeling like the world has ended already.

Amendments carried; schedule as amended passed.

Schedule 2 and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (17:01): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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