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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2023-09-13 Daily Xml
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Bills

Criminal Law Consolidation (Criminal Organisations - Prescribed Places) Amendment Bill

Second Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Police, Emergency Services and Correctional Services) (16:22): I move:

That this bill be read a second time.

Today, I introduce the Criminal Law Consolidation (Criminal Organisation—Prescribed Places) Amendment Bill 2023.

Under the Criminal Law Consolidation Act 1935 there are restrictions on participants in criminal organisations entering or attempting to enter a prescribed place. Any person who is a participant in a criminal organisation who enters, or attempts to enter, a prescribed place commits an offence, but this offence carries a maximum penalty of three years imprisonment.

These, and a range of other measures in the act form an important part of a range of strategies to tackle serious and organised crime, which ultimately is about improving community safety. As a result of the recently delivered judgement of the High Court of Australia in Disorganised Developments Pty Ltd & Ors v State of South Australia (2023) regulations made by the previous Liberal government in 2020 to declare properties at Cowirra as prescribed places were found to be invalid.

The government intends to do everything within our power to limit any risk of outlaw motorcycle gang participants returning to properties associated with criminal organisations. Therefore this bill will declare certain properties that have continued association with criminal organisations to be prescribed places for the purposes of the definition in the Criminal Law Consolidation Act by making new regulations. The amendments are set out in a schedule to the bill, which will upon commencement amend the Criminal Law Consolidation (Criminal Organisations) Regulations 2015.

The properties to be declared as prescribed places had all previously been prescribed places for the purposes of the act. These properties are places that continue to be connected with and are at a high risk of being used as meeting places for criminal organisations. It is in the interests of community safety and the disruption of criminal activity that these properties remain as prescribed places.

The bill will also delete and thereby repeal existing regulations that declare prescribed places so the number of properties no longer associated with criminal organisations will be removed as prescribed places. In addition, the bill will amend the act to provide that there is no obligation to provide procedural fairness in relation to the making of a declaration by regulation that an entity is a criminal organisation, an event is a prescribed event, or a place is a prescribed place for the purposes of the definitions in the act.

Labor in South Australia has a proud history of legislation to disrupt, to destabilise and to dismantle criminal organisations in South Australia, making our community a safer place for its law-abiding citizens. This Labor government has absolutely zero tolerance for the misery that outlaw motorcycle gangs bring on our community. We agree with the observations of Justice Steward, who said in the disorganised developments case, and I quote:

It is, with great respect, a remarkable proposition to require the South Australian Government to consult with a criminal organisation before declaring one of that organisation's properties to be a prescribed place.

We doubt it was ever parliament's intention for it to be so, but we are pleased to be acting quickly to rectify the situation with this bill. In concluding, I commend the bill to the chamber and I seek leave to insert the explanation of clauses into Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

2—Amendment of section 83GA—Preliminary

This clause amends section 83GA of the Criminal Law Consolidation Act 1935 to provide that no obligation to provide procedural fairness exists in relation to the making of a declaration by regulation that—

(a) an entity is a criminal organisation for the purposes of paragraph (c) of the definition of criminal organisation in section 83GA(1); or

(b) an event is a prescribed event for the purposes of the definition of prescribed event in section 83GA(1); or

(c) a place is a prescribed place for the purposes of the definition of prescribed place in section 83GA(1).

This clause also amends section 83GA of the Criminal Law Consolidation Act 1935 to update references to the Subordinate Legislation Act 1978 to now refer to the Legislative Instruments Act 1978.

Schedule 1—Related amendments to Criminal Law Consolidation (Criminal Organisations) Regulations 2015

Part 1—Preliminary

1—Effect of Part 2

This clause provides that Part 2 of Schedule 1 has effect to amend the Criminal Law Consolidation (Criminal Organisations) Regulations 2015 and that those amendments have effect to—

(a) repeal the declaration of certain places as prescribed places for the purposes of the definition of prescribed place in section 83GA(1) of the Criminal Law Consolidation Act 1935 by deleting regulations 3 and 4; and

(b) declare certain places to be prescribed places for the purposes of the definition of prescribed place in section 83GA(1) of the Criminal Law Consolidation Act 1935 by making new regulations 3 to 9 (inclusive).

This clause further provides that—

(a) section 83GA(2) of the Criminal Law Consolidation Act 1935 does not apply to a regulation made under Part 2 of Schedule 1; and

(b) the Legislative Instruments Act 1978 does not apply in relation to a regulation made under Part 2 of Schedule 1.

Part 2—Amendment of Criminal Law Consolidation (Criminal Organisations) Regulations 2015

2—Substitution of regulations 3 and 4

This clause provides that regulations 3 and 4 of the Criminal Law Consolidation (Criminal Organisations) Regulations 2015 are deleted (and thereby repealed) and that new regulations are made in substitution declaring various places to be prescribed places for the purposes of the definition of prescribed place in section 83GA(1) of the Criminal Law Consolidation Act 1935. The places that are to be declared as prescribed places are as follows:

(a) under proposed new regulation 3—the whole of the land contained in Certificate of title 5995/665 (which relates to property at the address 591 Kenny Road, Cowirra);

(b) under proposed new regulation 4—the whole of the land contained in Certificate of title 5880/413 (which relates to property at the address Lot 555 Kenny Road, Cowirra);

(c) under proposed new regulation 5—the whole of the land contained in Certificate of title 6142/108 (which relates to property at the address 305 Commercial Street West, Mount Gambier);

(d) under proposed new regulation 6—the whole of the land contained in Certificate of title 5696/244 (which relates to property at the address 108-118 Francis Road, Wingfield);

(e) under proposed new regulation 7—the whole of the land contained in Certificate of title 5249/413 (which relates to property at the address 108-118 Francis Road, Wingfield);

(f) under proposed new regulation 8—the whole of the land contained in Certificate of title 5249/414 (which relates to property at the address 108-118 Francis Road, Wingfield);

(g) under proposed new regulation 9—the whole of the land contained in Certificate of title 5249/415 (which relates to property at the address 108-118 Francis Road, Wingfield).

Mr TEAGUE (Heysen) (16:26): I rise to indicate the opposition's support for the bill and indicate I am the lead speaker for the opposition. I note the remarks of the minister echoing as they do the contribution of the Attorney in another place just a few days ago on 31 August in the course of the second reading debate in that place.

I indicate to the house that I have had the benefit of that and the balance of the debate which took place in another place yesterday and the bill has made its way here. I am glad to see that the bill has been brought on and given the priority that it has, being at the bottom of the list of Government Business, Orders of the Day, No. 13, but being given priority to move up to be debated now.

It might just bear some reflection of the fact that judgement in this matter was delivered on 2 August. Members of this place will recall that we were in the midst of a rather prolonged absence from this place at about 2 August and if there was one point in particular to remark upon on that occasion I heard the Attorney indicate that we had to grapple with this immediately. It may be that it is necessary to legislate in response and we will take advice and take whatever necessary steps to act promptly in order to deal with the High Court's decision.

We were then in the middle of this long stretch away from this place and my consideration at the time, apart from being directed to the reasons of the court and as these things do from time to time, instruction from the courts about the validity of certain legislation, is something that parliaments need to deal with. As it turns out, it is necessary indeed for the parliament to do something about this. It is not something that has been deemed possible by the government to be dealt with by other executive action.

I really emphasise at this time that, had the parliament been sitting on 2 August, and given the prompt way in which this matter has been able to be considered and brought on by the parliament, then I think I would be confident to say that a month ago at least we could have had this matter dealt with and certainty restored and confidence restored to the people of South Australia, who I am certain require as a basic starting point of their government and of their elected members in their parliament that they take all necessary steps to ensure safety and to ensure that those laws that are designed to have the effect of disrupting the activities of criminal organisations have that desired effect and do not sit somehow in abeyance of invalidity for any longer than they absolutely need to.

So here we are, a month and a half after that judgement was handed down. As we have seen, the legislation was able to be brought on and dealt with by another place. We see it prioritised in this place, and I welcome that. I will address some remarks to the Law Society's response to the bill. There is a thoughtful response from the Law Society, and I take the opportunity to express my appreciation for the Law Society's careful, diligent and principled engagement with this piece of legislation. As is if not universally the case then certainly in terms of the bulk of legislation, the Law Society is a very important source of reference in terms of outside assistance.

The Law Society have provided to the Attorney-General, by a letter that I have seen and had the chance to consider dated 11 September, a view about the merits and their concerns as a society about the unusual nature of this legislation. There is no doubting it is unusual legislation. I welcome and thank the Law Society for those expressions that are set out by its letter dated 11 September.

To my observation, I note for the benefit of members in the house, the High Court here has gone about a process of statutory interpretation and has made findings in relation to the validity or otherwise of regulations, and it has done so by the letter according to law, as you would expect it to do. That is its task and its function. I just indicate to members that I do not see in the reasons of the High Court anything greater than that, to put it that way. The High Court has found that the impugned regulations are invalid because they have not met the necessary criteria, and I will come to that a little more in a moment.

The High Court has not, in finding invalidity, made any wider observation about the nature, the principle or the approach of legislation of this kind. The minister has referred to the remarks of Justice Steward, for example, in observing that even to make the findings that it has might seem on the face of them to a reader to be somewhat unusual, given the obvious intent of the legislation.

To deal with the procedural fairness point first, I draw particular attention (as the Law Society does) to paragraph 35 of the reasons, where the court makes the following observation. I refer to paragraph 5, if not in its entirety, at some length. The court finds:

This not a case that requires consideration of the scope of procedural fairness in relation to a power liable adversely to affect a large group of persons.

It there cites, to distinguish such a case where there was such wider scope, Bread Manufacturers of New South Wales v Evans, Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No.1), Wasantha v Minister for Immigration and Multicultural Affairs, Dighton v South Australia, Bank Mellat v Her Majesty's Treasury (No.2), to illustrate that there might have been a case where it was necessary to consider scope of procedural fairness, the need to consider what happens when a power is liable to affect a larger group of persons. This is not such a case and therefore, as we come to the legislation, its abrogation is one of more specific remit. The court goes on to say:

In this Court, the appellants' case was based squarely upon their individual property rights and interests that would be directly affected by a valid declaration of the blocks comprising the Cowirra land as prescribed places. Declarations of land as prescribed places affect owners and occupiers of the land to a significant degree and in a manner markedly different from other persons who might be adversely affected by such a declaration, in the sense envisaged in Kioa. The possible interests of a broader class of participants in criminal organisations do not detract from the application of the presumption in this case.

Certainly, there is no finding here that the scope of effect on procedural fairness goes any wider than that narrow class of people who are going to be affected. In terms of the scope, there is a limited application of principle in that regard. It is a matter of concern that the Law Society has raised, and I would just put it in that context.

The Law Society says at paragraph 12 of its letter that it:

…queries the justification in abrogating any citizen's right to procedural fairness, including the owners of the properties that were the subject of the High Court's decision.

In the following paragraph:

13. The very reasons that the High Court identified as to why abrogation of the right to procedural fairness should not be implied are the very reasons why such an abrogation should not be made express. The right to procedural fairness is necessary because:

13.1 declarations of land as prescribed places affect owners and occupiers of the land to a significant degree, and in a manner markedly different from other persons who might be adversely affected by such a declaration—

the Law Society there refers to paragraph 35 of the reasons of the plurality I have just referred to and read out. It continues:

13.2 matters might be raised by an owner or occupier that might avoid the arbitrary exercise of the regulation making power.

At that point, the Law Society refers to paragraph 42 of the reasons. That bears some brief reflection as well. At paragraph 42 of the reasons the plurality observe:

There is no reason to conclude that the scope of the regulation-making power is unconstrained by a duty of procedural fairness simply because the exercise of the legislative power is not so constrained. Similarly, the general and limited oversight of the regulation-making power by a Parliamentary Committee and the availability of disallowance are not a source of an implication to exclude procedural fairness: South Australia did not suggest that oversight of this kind was likely to afford procedural fairness to owners or occupiers, or that it would involve consideration of matters that might be raised by an owner or occupier if procedural fairness is afforded and that might avoid the arbitrary exercise of the regulation-making power.

I do not think that adds very much. It is really just making the concession that just because you have the Legislative Review Committee here in the parliament that could have a look at regulations, that is not going to provide an alternative source of some form of satisfactory procedural fairness.

The Law Society is certainly appropriately raising those matters. As I read it, though, the High Court is going no further than to say that there is a narrow group that is involved and there is nothing to provide a source of implication for excluding the application of procedural fairness unless something more is done. We see it now expressed explicitly in the legislation.

We are left with the point of principle, and the Law Society maintains then its paragraph 12 query as to the justification for abrogating what it describes as 'any citizen's right to procedural fairness, including the owners of the properties'. It is really putting the proposition back to the parliament that no matter what the circumstances, it seems to me as I read the Law Society's view, of those owners and occupiers are, and no matter how narrow the class or group as to which they belong, no matter how narrow in its scope the application of the abrogation is, then the query would remain. The Law Society is not, as I read it, providing some alternative threshold but rather maintaining a query as to the abrogation at all in such circumstances. The Law Society says a little earlier:

9 The abrogation of any entitlement to procedural fairness in the context of a declaration of a 'prescribed place'….is explicitly stated so as to overcome any ambiguity. It will achieve its effect of removing uncertainty. However, that gain will be achieved by a potential increase in the risk that individuals will be prevented from accessing their property, that is, effectively confiscating their property, without justification. The amendments will bolster Parliament's ability to exclude people from property without being heard on the matter. Further, there is no suggestion that the exclusion results from the property having been unlawfully acquired. This more overarching implication, rather than the intention to resolve an isolated issue, should be carefully considered by the Parliament in assessing this reform.

I think those are certainly observations that ought to be carefully borne in mind by the parliament. I note further that the Law Society draws the analogy—I think it does, at least, in this letter—to the 2005 confiscation legislation introduced, as it was, to deal with the confiscation of assets. Having talked about property rights and the nature of the effect on those property rights, the Law Society, at paragraph 10, draws the comparison to the 2005 confiscation act in the following terms:

10 The practically untrammelled power of effective confiscation under Part 3B Division 2 of the Act may be compared to the assets confiscation regime that already exists under the Criminal Assets Confiscation Act 2005…Where assets are found to be the proceeds of crime, this Act provides a robust basis for those assets to be forfeited or disposed of efficiently and effectively.

It is drawing the distinction there in terms of those assets having been found to be the proceeds of crime, whereas of course, in the case of this legislation, the Law Society is making an argument that you are effectively confiscating land in circumstances where there is no suggestion it was acquired unlawfully, but you are affecting the property rights of the owner or occupier in a way similar to the way in which you are affecting the property rights of the owner under the confiscation legislation.

Of course, in confiscation legislation you are in a much more cut and dried, crystallised set of circumstances. This legislation might be comparable, as the Law Society has done, but you are dealing much more with the active disruption of the activities of the criminal organisation. The structure is different, and of course the whole premise for doing so I might perhaps compare more to the force of a mandatory injunction. That sort of extraordinary power is available in a variety of civil circumstances as well.

That probably comes to a point of illustrating what it has been convenient to do in the course of this legislation as well in that it is a dynamic process and this legislation will take the opportunity to demonstrate that by removing from the register of such prescribed places, places that are no longer associated with criminal organisations. There might be something of an answer or something of a characterisation of the purpose of the legislation that is to be found in the fact that it is taking the opportunity to remove certain prescribed places that are no longer associated with criminal organisations.

I suppose if there is something for the Law Society and for those who are concerned about the extraordinary nature of these provisions to keep a close eye on, it ought to be the active oversight of that body of prescribed places to the extent that there is any risk of injustice that is associated with leaving them on the register for any longer than they absolutely need to be, then the bill is a way of demonstrating that those prescribed places are going to come off the register from time to time when that permits and that should happen when there are grounds properly for that to occur.

I made some short observations about the reasons of the High Court, the decision that has been the cause for this legislation to be needing to be brought to the parliament, and I have addressed at some length, and I hope faithfully, the concerns that have been addressed by the Law Society by its letter to the Attorney dated 11 September.

It might be again timely to make an observation about opportunities for consideration of legislation of this kind. The reasons, as I have said earlier, were delivered on 2 August and the bill was introduced at a fairly early stage once the parliament finally did return, introduced by the Attorney on 31 August. In terms of explaining the reasons for the Law Society not having responded any sooner, the Law Society just indicates its understanding that the matter would be coming on when it did and, as it has turned out, there is this considered view from the Law Society but it has come along in just a matter of hours ahead of the introduction of the legislation.

I would always encourage to the extent that it is possible and practical, the provision by the government, not only to the Law Society but particularly in these circumstances to the Law Society, of both its thinking and draft legislation at as early as possible a time so as to permit the view of the Law Society to contribute to consideration of the matter as a whole and not only on the eve of its introduction or, indeed, at about the time that the bill is ready to be considered by the parliament.

All of that said, it is a contribution that is theirs to be considered, and I understand it was available to those in another place in recent days as well. So I note with thanks the Law Society's view and, for the reasons that I have described in the context of the High Court's reasons, I do not share the concerns to the point of opposing the legislation, applying as it does to the particular targets of those members of criminal organisations and the prescribed places they own and occupy.

The minister has made observations about the history in this state of steps being taken actively to disrupt the activities of criminal organisations. The parliament has certainly displayed over an extended period of time on both sides of parliament and in governments over a sustained period of time a desire on behalf of South Australians to take all legislative action that can be taken to disrupt the activities of those criminal organisations, including those declared the subject of this bill.

When that occurs, it is going to be necessary for the parliament to do the work that it needs to do to back the government to take action that will disrupt these organisations. It can only do that if the legislation that is relied upon is effective and if it is upheld in the courts. When there are defects that are found in the legislation or in regulations made pursuant to the legislation, then it is important that the parliament get to grips with those matters, take appropriate advice and the government take appropriate action.

As I have said, it has been necessary to bring legislation to the parliament. I am glad that that has happened promptly and been given the priority that it should. It is a matter of regret that parliament was not sitting any sooner so that the parliament could more promptly consider the necessary action to apply what the government has now presented on advice as measures capable of achieving the objectives the subject of that relevant legislation.

It is with those remarks as to context, and I hope by reference to the consideration that the High Court has had about the matter, that I again indicate the opposition's support for the legislation. I commend its objectives to the house. I commend the bill to the house, and I hope it will enjoy a speedy passage.

S.E. ANDREWS (Gibson) (17:00): I rise to speak on the Criminal Law Consolidation (Criminal Organisations—Prescribed Places) Amendment Bill 2023. This government will pursue all options at our disposal to disrupt outlaw motorcycle gangs and their criminal activities. There is no place for drugs, violence and intimidation in our state.

A recent High Court decision held that a set of regulations was invalidly made by our previous Liberal government. It was also held that reasonable notice needs to be given to an owner or occupier of a proposal to declare a place a 'prescribed place', even though those owners or occupiers are participants in criminal organisations. Members of my community would find it extraordinary that we are providing notices to criminal organisations to let them know we are going to disrupt their activities.

Everyone in our state knows criminal activity is wrong, especially activities carried out by these groups. This bill therefore amends the act to provide that there is no obligation to provide procedural fairness in relation to the making of a declaration by regulation that an entity is a criminal organisation. An event is a 'prescribed event', or a place is a 'prescribed place', for the purposes of the definitions in the act.

The bill also declares a list of properties to be 'prescribed places'. These have all previously been prescribed places for the purposes of the act. These properties are places that continue to be connected with and are at risk of being used as meeting places for criminal organisations. This includes properties at Cowirra, Mount Gambier and Wingfield. Any person who is a participant in a criminal organisation who enters, or attempts to enter, a prescribed place commits an offence. Participants include office holders, members and those seeking to be members of a criminal organisation. As my friend the Attorney-General said in the other place, and I quote:

This government and previous Labor governments have a proud history of legislating to disrupt, destabilise and dismantle criminal organisations in South Australia, making our community a safer place for its law-abiding citizens. This Labor government has absolutely zero tolerance for the misery that outlaw motorcycle gangs bring on the community.

There is no place for criminal organisations in South Australia and no place for violence in South Australia. I commend this bill to the house.

Mr BROWN (Florey) (17:02): It is with great pleasure that I rise to support this piece of legislation. Firstly, I would like to talk about some of the technical aspects of the legislation before talking about the issue more broadly.

In this bill, any person who is a participant in a criminal organisation and who enters a prescribed place, or attempts to enter a prescribed place, commits an offence. A participant for the purposes of the legislation includes office holders, members and those seeking to be members of a criminal organisation.

A 'criminal organisation' means an organisation of three or more persons who have as their purpose, or one of their purposes, engaging in, organising, planning, facilitating, supporting or otherwise conspiring to engage in serious criminal activity and who, by their association, represent an unacceptable risk to the safety, welfare or order of the community; or a declared organisation within the meaning of the Serious and Organised Crime (Control) Act 2008; or an entity declared by regulation to be a criminal organisation.

A participant who enters a prescribed place, or attempts to enter a prescribed place, commits an offence that carries a three-year maximum term of imprisonment as a penalty. A person who commits the offence must be sentenced to a term of imprisonment, which cannot be suspended other than in exceptional circumstances.

The Malinauskas government is strongly committed to taking every practical measure to disrupt the criminal activities of outlaw motorcycle gangs. Any reasonable government acting in good faith would be similarly committed. To curtail the criminal activities of outlaw motorcycle gangs is unequivocally in the best interests of the South Australian community in terms of promoting and protecting the safety and wellbeing of our people.

A recent decision by the High Court in the matter of Disorganized Developments Pty Ltd & Ors v State of South Australia (2023) handed down in August held that a set of regulations made by the previous government was invalidly made due to problems with the drafting of the regulations. The court also decided that reasonable notice must be given to an owner or an occupier, indicating that there is a proposal to declare a place a prescribed place even in the event that those owners or occupiers are participants in criminal organisations and that the appellants had been entitled to reasonable notice under procedural fairness.

The bill now before us will amend the act to provide that there is no obligation to provide procedural fairness in relation to the making of a declaration by regulation that an entity is a criminal organisation; an event is a prescribed event or a place is a prescribed place for the purposes of the definitions in the act.

The bill also declares a list of properties in South Australia to be prescribed places. Each of the list of properties therein has previously been declared a prescribed place for the purposes of the act. These properties are places that we understand, on advice from SAPOL, to be connected to criminal organisations and to be at risk of being used as meeting places for criminal organisations.

The decision of the High Court strikes down regulations made by the former Liberal government in relation to two properties at Cowirra, which is located across the Murray River from Mannum. These are properties which are linked to the Hells Angels outlaw motorcycle gang. The appellants, who are members of the Hells Angels, appealed to the High Court against the decision of the South Australian Court of Appeal.

The argument put forward by the appellants held that the South Australian Court of Appeal was in error in failing to find that the Cowirra regulations are invalid on two grounds, the first of which was in relation to the efficacy of the regulations and the second of which was that the Cowirra regulations were made in breach of a duty to afford procedural fairness to the appellants as the owners or occupiers of the land.

The court unanimously agreed that, due to problems with the drafting, the Cowirra regulations did not effect a valid declaration. The High Court found that the South Australian Court of Appeal erred in finding to the contrary and should have found that the Cowirra regulations were invalid by reason of their lack of efficacy. Four members of the court held that the appellants should have been afforded an opportunity to be heard before the Governor made the regulations.

Despite their finding that the regulations were invalidly made, they had been asked to consider the second ground irrespective of their findings on the first. Notably the judgement reads, and I quote:

As the determination of the first ground of appeal is dispositive of the appeal, it is not strictly necessary to address the second ground, which contended that the declaration power is conditioned by a duty to afford procedural fairness to the appellants as owners and occupiers of the Cowirra land.

However, it is appropriate to do so in the light of South Australia's stated intention to seek to remake the declarations without affording procedural fairness to the appellants if the first ground of appeal is successful.

The court further found, and I quote:

As owner and occupiers, the appellants have property rights in the Cowirra land. Mr Stacy and Mr Taylor seek access to the Cowirra land in order to exercise their rights as occupiers including, from time to time. to reside on the land.

Disorganized Developments also has interests in accessing the Cowirra land through its directors in order to maintain it and otherwise discharge its obligations as owner of the land. The obligations include statutory obligations under various South Australian statutes and regulations and common law duties to protect invitees and trespassers from harm or injury arising from conditions on the land.

Notwithstanding that an argument could be made in relation to some irony in the notion of the appellants protecting persons from harm and injury, in light of the activity that is understood to have occurred on the properties in question, the court further determined, and I quote:

…[the] scheme requires reasonable notice to an owner or occupier of a proposal to declare a place a prescribed place, to give them an opportunity to supply information or make submissions as to matters within their knowledge as an owner or occupier that may be relevant to a decision to exercise the declaration power.

It was Justice Steward who dissented on the second ground. His dissenting opinion is worth consider ion. He writes:

I do not, and with great respect, agree that the Governor of South Australia owed the appellants, as the owner and occupiers of the Cowirra land, a duty of procedural fairness prior to the making of the Cowirra regulations.

He goes on to explain:

…there is the regulation making power in s 370(1) of the CLC Act. It provides:

The Governor may make such regulations as are contemplated by, or as are necessary or expedient for the purposes of, this Act.

This is the context for determining whether the Governor of South Australia owed the second and third appellants, who are members of a declared criminal organisation, and a company they own, an obligation of procedural fairness, and if so its content, before making the Cowirra Regulations. For the reasons which follow, any such obligation would be antithetical to the statutory regime enacted in Div 2 of Pt 3B of the CLC Act.

It is, with great respect, a remarkable proposition to require the South Australian Government to consult with a criminal organisation before declaring one of that organisation's properties to be a prescribed place. In such particular circumstances, the presumption in favour of conditioning the power to make regulations for the purpose of s 83GA(1) with an obligation to provide procedural fairness to the appellants is rebutted.

Justice Steward further wrote, and I quote:

…any duty of procedural fairness, if it exists, must ultimately arise as an implication which conditions the power to make regulations under s 370 of the CLC Act for the purposes of s 83GA(1). Whether it should not be presumed, in a given case, that such a condition exists turns on whether the legislation, properly construed, distinguishes the obligation to afford procedural fairness.

His Honour further writes:

Division 2 of Pt 3B of the CLC Act, from the perspective of the declared criminal organisation, is not beneficial legislation. Rather, the legislative object is the injury and disruption of the criminal activities carried out by offensive and dangerous organisations. It uses unambiguous, if not blunt, methods. Decisions are based on police advice and criminal intelligence. The aim is to leave the criminal organisation diminished and wounded. The appellants rightly accepted as much.

In such circumstances it is simply incongruous to conclude that Parliament did not intend to eliminate the presumption in favour of the giving of procedural fairness in the case of participants in criminal organisations and any entity associated with such participants.

A simple, and perhaps typical, example illustrates why this must be so. Suppose, as a result of police surveillance, it is discovered that prohibited drugs are stored at a property owned and occupied by a participant in a declared criminal organisation. On police advice, a decision is made to make a regulation declaring that property to be a prescribed place.

It would be nonsensical to conclude that, in such circumstances, Parliament intended to impose a requirement that the South Australian government 'tip off' the participant in the criminal organisation first, before making the regulation. Indeed, courts have long accepted that the need for urgent action may result in the exclusion of procedural fairness. Any such obligation would therefore greatly undermine the very purpose and object of Div 2 of Pt 3B of the CLC Act and would sit in direct tension with the confidential nature of the material upon which the cabinet of South Australia is to act.

Therefore, recognising that, per the decision of four members of the court, procedural fairness was necessary to afford in the case of the two appellants—then, toward avoiding what I personally would characterise as the obvious absurdity of having to consult with members of the criminal organisation before determining that they will no longer be able to access a property they own, for whatever means the property was acquired and has been used or is to be used—this government is quite sensibly availing itself of the option to change the law so that procedural fairness is not an obligation that must be afforded to such persons.

Justice Steward's dissenting opinion in the matter of Disorganised Developments Pty Ltd & Ors v State of South Australia (2023) offers a number of points that are noteworthy in relation to the government's decision to take this step. The broad support that this bill enjoyed when it was passed in the other place underlines the notion that it puts forward sensible provisions which had the potential to produce good and desirable outcomes for our community. I commend the bill to the house.

Ms STINSON (Badcoe) (17:12): I am delighted to be rising to speak on the Criminal Law Consolidation (Criminal Organisations—Prescribed Places) Amendment Bill. This is an important piece of work that this parliament needs to consider and progress. Of course, the parliament has spent much time over recent years, and in fact decades, trying to legislate for this quite tricky area in terms of organised crime.

It is a very difficult area to be able to govern because, of course, the people it seeks to police are exactly the kind of people who go out of their way to try to circumvent the law at every possibility. Not only that, but these people are people who are incredibly well equipped and very well resourced—with lawyers and other professional assistants—to do exactly that and to try to circumvent what it is that this parliament intends, what it is that this government intends, in terms of stamping out organised crime in our state.

I feel like in recent years South Australians have been quite fortunate really in comparison with previous years in terms of the prevalence of that organised crime element in our community. It was not that long ago when this state was facing quite a challenge when it came to bikies, organised crime elements, who were indeed a threat not only to themselves and fellow bikie members but also to the public at large.

I certainly remember a shooting in North Adelaide at a cafe. The opponents of a person who was a rather undesirable person in the bikie community decided to take aim at him quite literally in broad daylight—in fact, it was quite a busy mealtime—and shot through glass to try to not just injure but kill their target. We simply cannot have that happening in South Australia.

We have not seen incidents like that, with that degree of public threat, for many years, but the reason why we have not seen that is that action was taken by a previous Labor government to not just address but really out-and-out attack these bikie gangs to make sure that they knew that the people of South Australia would not stand for the activities and the risks that they were presenting to our community.

A great deal of thought, effort and work were put into putting together a legislative structure and many other measures as well, policing measures and other enforcement and corrections measures, to ensure that these criminal gangs could be suppressed. I would love to say 'eliminated', but unfortunately we are here today still making legislation, which I hope one day will mean that these criminal organisations cannot operate, certainly in our state.

I was very pleased and lucky in a past life in between stints as a journalist—and not just a journalist but a court reporter, so I was very close to a lot of these shootings and crimes that were happening in our community a good 10 or 15 years ago—to then work for the then Attorney-General Michael Atkinson and be right on the frontline when some of these legislative reforms were being made.

It was tricky work, it was tricky politics, but it was also tricky work from a legislative point of view in crafting laws that would be absolutely airtight and make it absolutely clear what the will of the parliament and the people of South Australia was and our attitude towards those who sought to risk the lives and welfare of other South Australians.

These are not nice people. My parents are motorcycle enthusiasts. These people are not motorcycle enthusiasts; in fact, many of them do not even own a motorcycle. It is actually quite galling that they carry on their criminal enterprises as though they are simply having a good time riding around motorbikes. It is a complete fallacy, and one that for some reason persists, when really these people—most of them are blokes; sometimes women, but most of them are blokes—are just groups of utter criminals aiding and abetting each other to commit criminal activities, and that stretches right across the spectrum of criminality.

Whether you are looking at drug dealing in a range of different illicit substances or whether you are looking at things like blackmail, assault and even murder, these organisations are behind some of the most atrocious crimes that we have seen in this state. If you have a look at the missing persons list, if you have a look at the most wanted list for South Australia, you will find a very strong connection between quite a lot of those and suspected organised crime activity. That is no accident.

These people, who are members of so-called bikie gangs or serious and organised crime gangs, are some of the worst criminals, the most heartless, the most brazen and the most dangerous people we have in this state. So I am completely and fully on board with this government's approach when it comes to serious and organised crime and making sure that the laws we have are as strong as they possibly can be, as targeted as they possibly can be and leave our state, our judiciary and our police in a position where they can act and where they can identify and stamp out the atrocious criminality of these gangs.

If we think that this is confined to South Australia, or that the criminals involved in these gangs based in South Australia only have their talons reaching as far as our state borders, we are mistaken. These people are members involved in state offences and also offending that takes place and is facilitated right across our country and right across the world. These are international, national and state-based criminal enterprises, and South Australia is as responsible as any other jurisdiction to make sure that we do our part to stamp out the crimes that these people commit.

A lot of the time the crimes being committed here, especially assaults, blackmails, kidnappings and abductions, are often committed between gangs or within the different criminal enterprises. We also know that there are other people who are affected by that.

These people who are involved sometimes, when you are talking about associates, are often young people. They have families, they have friends, they have children, they have grandparents, and every time something happens it affects their whole circle of family and friends. That is the first layer of people who are affected by this offending. Then, of course, there are also others—particularly across our business community—who are affected by this, and then our broader community in terms of how safe we feel in our own community, and how safe we are.

I bet those people sitting in the cafe in North Adelaide several years ago had no idea when they were having a lovely meal out with their friends and family that they would have bullets scrape by the sides of their heads and that they would be literally in the middle of a gang war, but that is what happened to members of our law-abiding community. Certainly, I think that put fear into the hearts of many South Australians, Adelaideans in particular, about just how safe we were—and the answer was we really were not safe. At that time, anyone could have become entangled in some of the incredibly public and incredibly violent crime activities that were going on.

I am pleased to say that those things are not happening as frequently on a public basis. Certainly, there are crimes being committed by bikie gangs at the moment in South Australia, and our law enforcement agencies need every possible weapon to be able to tackle that, and to confidently tackle it; to know that when they go and make that arrest, when they refuse bail, when they lock that person a pending trial, they are entitled to do that and they are not going to face some sort of appeal later on down the line.

These laws obviously are part of that wider environment that I have just laid out, but what has happened here is that a recent High Court decision held that a set of regulations was invalidly made. It was also held that reasonable notice needed to be given to an owner-occupier of a proposal to declare a place as a prescribed place, even though—and this is the laughable bit—those owner-occupiers are participants in criminal organisations. It did stun me to read this judgement and to find that the government would have to notify those it was seeking to enforce the law against that they were doing the wrong thing, when clearly they would know that. Nonetheless, we find ourselves here.

This bill will amend the act to provide that there is no obligation to provide procedural fairness in relation to the making of a declaration by a regulation that an entity is a criminal organisation, an event is a prescribed event or a place is a prescribed place for the purposes of the definitions in the act. Ordinarily, I would defend a citizen's right to such processes, and being able to know what the state might allege against them before taking action, but I really do not think that this deprives those who it targets of the opportunity to make an appeal later or to call out if they think that something has been applied unfairly—for instance, if they were not a member of a criminal organisation.

It is patently ridiculous to say that the state needs to give notice to someone it alleges is a dangerous offender and who may, indeed, take action immediately in trying to effect the law. It compromises the regulation that is sought to be imposed and really does not make any sense at all. This piece of legislation is obviously aimed at remedying that.

I commend the Attorney-General and his staff for their many hours of work in formulating this legislation, this amendment, to make sure we can strengthen these laws that are so dearly needed. What this legislation also does is put on notice those who are bikies, those who are members of criminal enterprises, and indeed those who seek to be. Sadly, we do have people in our community who, for whatever reason, seem to think being a member of a bikie gang is somehow glamorous and will somehow open opportunities for them. The only opportunities it will open for them are the opportunities of injury or jail or even death. That is what frequently happens to people who are involved in these gangs.

I hope this legislation will send a message that this state remains as committed to stamping out bikies' serious organised crime as it ever has been, particularly our party that led the way in terms of reforms a decade or so ago. We remain as committed to stamping out this evil form of crime today as we ever have been. I commend the bill to the house.

Debate adjourned on motion of Mr Odenwalder.

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