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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-03-04 Daily Xml
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SERIOUS AND ORGANISED CRIME (CONTROL) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 26 February 2008. Page 1783.)

The Hon. M. PARNELL (17:28): The problem of organised crime is a serious issue for all Australian communities, and it takes many forms. These can include corporate and/or white collar conspiracies in areas such as price fixing or insider trading of shares, or it can consist of crimes of violence, intimidation, murder, drug manufacturing and other illegal activities.

As I understand it, this bill is born out of the government's desire to tackle one part of organised crime; namely, that associated with so-called outlaw motorcycle gangs. At the heart of this bill is a presumption that, if you can stop people involved with these gangs from associating with each other and with other members of the public, you stand a better chance of curtailing their illegal activities. At one level it is aimed at crime prevention rather than the detection and punishment of crime, although the two are linked, particularly given the code of silence that apparently prevents even rival gang members from giving evidence against each other. Breaking the associations between individuals might open some chinks in the wall of silence that can be used by law-enforcement agencies to then detect and prosecute criminals.

Primarily, I think this bill is about crime prevention. The way that it seeks to achieve this is through a number of mechanisms such as the declaration of certain organisations. We do not know which ones but we have been told that outlaw motorcycle gangs are the most likely targets. Also, the bill provides for the imposition of control orders on members of those declared organisations. There are also restrictions in the bill that relate to other members of the public in their dealings with those persons who are the subject of control orders.

As I understand it, the bill is born out of a frustration with existing police powers, particularly in the area of consorting and the ability to restrict the activities and movements of suspected criminals. Generally speaking, whenever coercive action is taken to prevent individuals or groups from committing crimes, you do end up infringing civil liberties. In the case of this bill, the infringement is primarily against the right of freedom of association and freedom of movement. However, these rights are not absolute. Sometimes these rights will need to be curtailed; however, the Greens believe that we must do so only in exceptional circumstances and subject to the most stringent checks and balances against the abuse of power.

In my view, it is at this hurdle that the bill falls, and without substantial amendment I will not be able to support it. I appreciate that taking this stance opens one up to the cheap shot that any position other than complete support for the government's law and order agenda means that one is soft on crime. That, unfortunately, is one of the problems with this whole debate. There is no room for anything other than black and white or right and wrong; there is no room for grey in this debate. However, the rights and wrongs of this legislation are by no means clear.

In debating this bill, as legislators we are not doing our job properly if we do not scrutinise the legislation and test it against a range of important legal, democratic and human rights principles. We could also query whether the bill is well targeted in relation to organised crime. The approach in other jurisdictions has been to tackle issues such as police corruption, organised crime generically, and then outlaw motorcycle gangs. This bill appears to focus first on the gangs and not on those other areas that have been shown to be problems in other states.

We could also query how effective the legislation will be. We have seen the anti-fortification laws in existence for some time, yet they have not been hugely successful. As I understand it, only two fortifications have been removed in the past six years. In legislation such as this we always have the problem that the smart people will find ways to get around it, but the rest of society is nevertheless affected by these laws.

As I understand it from government briefings, only 10 per cent of arrests under Operation Avatar were for serious criminal activity, and most were for things such as traffic infringements, which begs the question about whether in this legislation we are properly targeting the root cause of organised crime in South Australia.

I would briefly like to go through some of the specific areas where I believe this bill fails, where I think more work needs to be done, and where reforms should be made. If we are going to go to the very basic principles, I think that the title of this legislation could warrant reform. At one level, we could call it the 'freedom of association abolition bill', because, primarily, that is what it does: it abolishes freedom of association in many instances. Another alternative title might be the 'trust us, we're the government bill', because we see in this bill a great deal of discretion which is not open to review through normal judicial channels.

The first area I want to deal with is that of declared organisations. This is where we have been told that outlaw motorcycle gangs will effectively be dealt with. The definition in clause 10 of the bill provides that members of these organisations are those who 'associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity'. This definition raises many more questions than it answers.

Does it need to be the primary purpose of an organisation that it allows members to associate for these purposes? Does it need there to be a majority of members involved in those criminal activities? What if only a handful of people in a very large organisation is involved in getting together and planning criminal actions? Is that covered by the definition?

In responding to this point, the minister will no doubt direct me to section 10(4). My reading of that provision is that it does not matter that it is not everyone who is involved or that the organisation also does other things. It seems to me that the power exists for the minister to declare an organisation provided at least two members associate together for criminal purposes.

However, there are plenty of examples other than outlaw motorcycle gangs where people have got together for criminal purposes. I referred before to white collar crime. There are a number of prominent social clubs in Adelaide, such as the Adelaide Club; maybe there are people in that organisation (I am not a member, and I do not know who is a member), such as business leaders, who have colluded together to fix prices and to break corporations laws. I do not know.

The Qantas Club is another good example. One of the police officers in their briefing said, 'If you want to find members of the Rebels and the Finks, you go to the Qantas Club because they are all members. They all fly business class. That is where you find them.' Do we outlaw the Qantas Club because of the risk it places on those of us who might rub shoulders with bikies? I should declare that I am not a member of the Qantas Club, although I have been in as a guest once or twice.

Without naming any particular political party, recently in the news we have seen all sorts of allegations of wrongdoing in New South Wales. I have mentioned business organisations. There was a problem in Western Australia not that long ago with members of AFL football clubs admitting that they were involved in drugs. Does that apply to every member of our football clubs? Of course it does not, but it seems to me that the definition is so broad that any two people who use an association or a club for the purpose of getting together to plan crime is enough for the organisation itself to be declared.

If we want to take this to its most logical conclusion, we have to look at South Australia Police. We all know that our police force in South Australia is a very professional body, and it is most likely largely free of corruption. I am not aware of any particular corruption, but every police force everywhere has at some stage been infiltrated by rotten apples. I am sure that South Australia Police is not an exception to that rule. Certainly, in other states, corruption in the police force has been endemic. Again, if we look at this definition, as long as there are two people who use the organisation to get together for criminal activity, it opens up the whole of the organisation to be declared.

People might say that this is a ridiculous line of inquiry because no-one has any intention of the Qantas Club, the police or a political party being a declared organisation. My point is: I do not think that it is good enough in legislation for us to say it is not our intention to use it in that way; therefore, the legislation is sound. If the legislation can be used in that way, unless we have sufficient checks and balances, the legislation is flawed.

There are also problems with definitions in relation to serious criminal activity, because the detail is largely left up to regulations. We even have an the ability for minor summary offences to be brought within the ambit of the definition of 'serious criminal activity'. The bill provides that summary offences of a prescribed kind can be regarded as serious criminal activity. I would like to know whether it is the intention of the government to prescribe white collar crimes as the type of crimes caught by this legislation, or are we only talking about crimes of violence and serious drug crimes?

On this topic of declared organisations, it is important to make the point that not all bikies are criminals. No one has suggested that they are, but we have had examples of where people involved in the motorcycle world have found themselves caught up in over-vigilant policing. One example that members have perhaps heard before was the Long Riders—apparently some members were here in parliament a while ago—a Christian motorcycle group. One of those members says that he was tailed by the police for seven weeks just because he went to the club rooms of another organisation, the Finks motorcycle club.

Also, in the motorcycle family we have got: Vietnam veterans, Bikers Against Child Abuse and the Hog Club, most of which, to my knowledge, are not involved in criminal activities. I would hope that it is not the government's intention to declare any of those to be outlaw motorcycle clubs. We also had a brilliant example in the media within this past week of where some of these people are actually taking on the role of law enforcers themselves.

Members might have seen television footage or read in the Sydney Daily Telegraph orseen on the Adelaide Now website the case of a couple of would-be criminals who tried to rob a bowling club in New South Wales. Apparently, wearing balaclavas and armed with a samurai sword and a machete, these would-be thieves jumped the bar of the Regents Park Bowling and Recreation Club, demanding money from the safe. Unbeknownst to them, there was a meeting being held just around the corner of the Southern Cross Cruiser Club—a motorcycle club—and the 40 members of that club promptly came to the aid of the bar staff and chased the would-be offenders, one of whom was so desperate to get away that apparently he smashed through a plate glass door and fell 4 metres.

According to the president of the Southern Cross Cruiser's Club, he said he crash-tackled the sword-wielding offender. He says, 'He tried to jump over the fence but I crash-tackled him again and then a couple of boys arrived and grabbed him, held him down...then we hog tied him until police arrived.' So, there is an example of a motorcycle club that is performing good community service work.

I now want to move briefly onto the subject of control orders. If a person is a member of a declared organisation, then the court has no discretion; the court must issue the order as requested. If a person is a past member of one of these outlaw motorcycle clubs which has been declared, then the court does have some discretion. That raises a very interesting question. If we are going to treat current members of these organisations the same way as we treat past members, then how is it that we allow people to rehabilitate themselves and how do we allow them to move on?

There are many examples of people who have been associated with crime and with criminal gangs who have sought to turn their life around. A very timely example was in the Sunday Mail just last week. I would imagine most members would have seen it, with the heading, 'How a young girl saved me, by bikie boss'. This is the story of a Mr Awad, who was apparently the president, or the chief, of the Rebels outlaw motorcycle gang, a gang that I imagine is in the government's sights through this legislation. The story in the Sunday Mail basically is the story of his road to Damascus—I think quite literally—and how he has turned his life around; yet, under this legislation, he would be caught. I will read a couple of sentences from this article. It begins:

Moments after one of South Australia's most infamous bikie assassinations, Karem Awad stood in a blood-spattered shirt glaring at police.

Today, the former chief of the Rebels outlaw motorcycle gang says he is a changed man—a churchgoer with a job earning an honest living helping others battle their demons.

Apparently, he works for the Aboriginal Sobriety Group in his employment.

This case study raises some really interesting issues in this legislation and points us to some areas where it can be reformed, because what the story of Mr Awad tells us is that his progression out of the outlaw motorcycle gang was a gradual one, yet he still maintains some contact with those people. He now apparently spends more time going to church than he does going to motorcycle club meetings; yet, under this legislation, he would still be caught and it is likely that restrictions would be put in the way of his particular mission, which might be to turn around some of his former colleagues. I will come back to Mr Awad later, because his story has something useful to tell us about the provisions of this bill relating to criminal associations.

It is interesting also to note some of the remarks of the Youth Affairs Council of South Australia in relation to the law and order debate. That organisation has found it incredibly unhelpful when we stigmatise people for their past criminal behaviour. In fact, if we look at Monsignor Cappo's ToBreak the Cycle report into the so-called Gang of 49, he recommends destigmatising people with criminal convictions. Yet, what we are doing in this legislation is saying, 'We will give you no room to move on. If you have been a part of one of these organisations in the past, you can have control orders placed on you, whatever your motives might be for maintaining friendships with these people, whether it is criminal or otherwise. We insist on being able to continue to control your life.'

I now wish to move on to public safety orders. This is an area of the utmost concern for me because, notwithstanding protections that appear to be written into this legislation to protect legitimate protest, I do not believe those protections are effective. Basically, what the legislation says in relation to the issuing of public safety orders is that they should not be issued if advocacy, protest, dissent or industrial action is the likely reason for the person, or members of the class of persons, being present at the relevant premises or event, or within the relevant area. The public interest in maintaining freedom to participate in such activities is one of the factors to be taken into account under new section 23(2)(c).

People would say that there are protections in this legislation that they cannot issue these public safety orders to shut down legitimate protest and that these rights are only worth anything if there are checks and balances on the exercise of those powers, and that is where I say this legislation falls down. If you do not have the right to appeal against such an order and if senior police officers have the right to declare these orders urgently on the spur of the moment with no way of challenging them, then even if our law enforcement officers get it terribly wrong, there is nothing that can be done about it.

A situation that would worry me would be a situation where a peaceful protest is planned by an agent provocateur. People hell-bent on disturbing it could well ring the police and say 'We are going to be causing violence; we are going to be causing havoc at this demonstration,' and the police could then use that as a reason to try to stop the protest going ahead. They could say that it is in the public's interest that this not go ahead. Unless there is capacity in people to challenge that finding and unless there is an ability to go to court on a judicial review, then effectively you end up with a situation where, after the event, after the protest has been stymied by police action or had to be called off, even if it is found that the police action was inappropriate, it is too late to do anything about it.

There was an example in New South Wales where similar legislation was used to lock down a suburb of Sydney—that is, to set up roadblocks—because of a fear that young men of Middle Eastern appearance gathered in cars were about to cause mayhem somewhere in Cronulla. It turned out that they were all just heading home. The police got it wrong. They set up roadblocks; the roadblocks did not catch anyone. They were not even heading in that direction. You can make mistakes. An unnecessary roadblock might not seem to be a terribly serious situation, but let us say that an important public protest was stymied by inappropriate police action. That is a tragedy for our democracy. I think that we need to take a serious look at whether the police powers to impose these public safety orders are too broad.

I next move onto the topic of criminal associations. This is an area which reforms old-fashioned laws of consorting which, when you read them, are clearly in need of reform. It talks about 'reputed thieves' and 'prostitutes' and really bears very little resemblance to the type of criminal associations of which we now think and with which this legislation is trying to deal. There are a number of problems with the criminal associations provision, not the least of which is that a provision in clause 35 talks about people being reckless in not knowing whether or not a person with whom they are dealing is a member of an outlaw motorcycle gang, a declared organisation, or has a control order against them. Clause 35 provides:

(1) A person who associates, on not less than six occasions during a period of 12 months, with a person who is—

(a) a member of a declared organisation; or

(b) the subject of a control order

is guilty of an offence.

Maximum penalty: imprisonment for five years.

You can go to gaol for five years for having six contacts in 12 months with a member of an outlaw motorcycle gang. Clause 35 then goes on to provide a defence and states:

(2) A person does not commit an offence against subsection (1) unless, on each occasion on which it is alleged that the person associated with another, the person knew that the other was—

(a) a member of a declared organisation; or

(b) a person subject to a control order,

or was reckless as to that fact.

Those words are most important. How can you be reckless as to your knowledge of whether or not a person is a member of an outlaw motorcycle gang, or is the subject of a control order?

It seems to me that the answer to that question is: you are under an obligation to ask them. That means, if you go into a hotel and strike up a conversation with a person with facial hair and of solid build, then maybe after the formalities—

The Hon. A. Bressington interjecting:

The Hon. M. PARNELL: The honourable member says, 'It could be me.' It seems that part of social conversation must now be, 'By the way, are you a member of a declared organisation and are you the subject of a control order? Because, if you are, I'd better not talk to you anymore because I'm setting myself up for a five year penalty under this criminal association provision.'

I think this section is very poorly drafted. I understand that it is trying to provide a defence where someone says, 'I didn't know they were an outlaw bikie gang member,' or, 'I didn't know they had a control order on them,' but I think this business about being reckless as to the fact is changing the way in which social intercourse will happen in Australia if we are now under this obligation to ask people questions about their status.

Another example of where these criminal association laws can get us into strife is the example I gave before concerning Mr Awad. In raising this example, I am interested in preserving the reputation and liberty of at least one honourable member of this chamber, the Hon. Andrew Evans, who I understand has had in the past (and may still have) association with the Paradise Assemblies of God Church. That is the church of which Mr Awad is apparently a member. I will read again from the Sunday Mail the article quoting Mr Awad, as follows:

'I just found myself walking by myself into the Paradise Church,' Mr Awad said. 'I wasn't really sure what I was doing there. I just wanted to go in there because I figured it was some kind of a church and maybe my prayer would be heard. My prayer was basically: just: forgive me for the wrongs that I had done and help me. That's the main reason why I went there, and I did feel a little bit of peace come to my spirit, you know.'

The article goes on:

For two years Mr Awad continued his dealings with the Rebels but always visited church on Sundays.

I am very concerned that we do not risk the liberty of the Hon. Andrew Evans, who may well come into contact with Mr Awad. If Mr Awad, as a past member, found himself the subject of a control order, effectively what we are saying to people like this is, 'You're out in the cold. We do not want anyone to associate with you, whether you are trying to help them or they are trying to help you.' It just seems to me to be a most draconian provision.

Another example might be people involved in sporting clubs. For example, if you take your child to a regular sports game on a Saturday and there is someone there who is wearing motorcycle colours, perhaps of an outlaw motorcycle gang, it seems to me that halfway through the season you have clocked up enough contacts to be risking this five-year criminal conviction.

Another example might be the toy run. Again, it is not just the Hon. Andrew Evans I am seeking to protect: it is the Hon. Rory McEwen and Martin Hamilton-Smith, two members in another place who have been involved with the toy run. You also have these members of outlaw motorcycle gangs involved in the toy runs. It seems that, by being part of that activity and associating with these people, you can risk coming a cropper in relation to these new laws.

We also have in this act some exceptions to allow criminal associations where there are close family members. It is defined in the legislation as including brothers and sisters and mums and dads, yet it is a fairly narrow definition and one that I think is deserving of expansion; for example, cousins, uncles, aunts, girlfriends and boyfriends—the type of influences in people's life that can actually help to turn them around. All of us would have come across examples where it has been an uncle, rather than a father, who has been a guiding influence on a young man.

You have the cases of girlfriends and boyfriends and, in fact, Mr Awad's case was reported in the paper. His involvement with a young girl who had special needs apparently came through his girlfriend whose sister had had this baby at age 14. She had difficulty looking after the little girl, and so Mr Awad became involved.

The leader of the Rebels became involved in child care through his association with the girlfriend and the girlfriend's family. Yet in this legislation, when we look at the exceptions to the rule, you cannot associate with these people and we do not find that level of association covered. That will have particular implications, I believe, for Aboriginal families where ties of kinship and blood are more complicated than those in non-Aboriginal communities.

Aboriginal people were the hardest hit in the 1960s under our consorting laws, and they are likely to be hit with these laws as well. We also have problems in some of our country towns with these new consorting laws in places like Whyalla and Port Pirie where, if you enjoy a drink, there are a limited number of places that you can go, and they are the sorts of places where you are likely to run into members of outlaw motorcycle gangs.

I think that these consorting laws do require reform. They are a radical change from the way we have looked at criminality and criminal behaviour before. One other reform which I think is required in this legislation is the sunset clause. We currently have a 10-year sunset clause; I say that that should be much shorter. If this bill comes in, let us give our police two years to see whether these laws work or not and let us abandon them if they do not work.

There are a number of places in the bill where protections are put in place to prevent people challenging executive decisions, especially decisions of the Attorney-General and the Commissioner of Police or senior police officers. There is a protection from proceedings provision in clause 41. Basically, that prevents people from going to a court and checking whether or not proper processes have been followed. In the absence of an ability to challenge a decision, decision-makers can get away with bad decisions. It does not matter that it says in the legislation, 'You are not allowed to use these laws to prevent peaceful protest.'

It does not matter that it says that; if you have no recourse to any judicial authority to overturn such a decision, they will get away with it. Someone might get a slap on the wrist after the event and be told, 'You really overstepped the mark there.' There are no consequences that flow from that. I am not suggesting that we should have criminal consequences for overzealous policing. What I think we should have is the ability for people to challenge the exercise of these discretions and to challenge them in a timely manner before they have come into effect.

There are provisions in this legislation that enable evidence to be kept secret. Even where it allows someone to challenge a decision, what you will find is that the courts will have heard only one side of the story. When you are trying to put the other side, you will not have access to the information that everyone else in the room has: the prosecution will have it, the judge will have it, but you will not. It is impossible to defend yourself or to present a proper case if you do not have access to all the information.

It may well be that the information that has been presented to the court is a load of rubbish. In the absence of being able to know what that evidence is, you cannot challenge it and it will hold. There is one other area which is not addressed in the bill, and I think it does need some more work. That relates to the wealth of information that will be collected under this legislation. Our authorities, in particular the police, will have very detailed records of not just people who had been convicted of crimes but people who are members of these declared organisations and everyone who they have dealt with.

Records will be kept on people who have committed no crime yet who may be implicated through these criminal association laws with some people who have. What happens to all that information? Who is allowed to access it; how is it stored; what protections are there for people when incorrect information about them is kept on the record? It might be information that adversely affects all manner of subsequent career or life choices. It is effectively having a police record without having a police record. You need have done nothing wrong, yet there will be a wealth of information about you on the record.

We know that, whilst we want to give our police every opportunity to collect good records and keep good evidence, sometimes they just get it wrong. A parallel might be the information kept on us by credit reporting agencies. Sometimes they get that information wrong and as a result people's credit reputations are ruined. That is why we have an ability in those laws for people to correct the record. Under this regime you will never know what sort of dossier or file the police have on you.

They are some of the reasons why this legislation has not struck the correct balance between protecting society from organised crime and the civil liberties of citizens to go about their lawful business, to associate with whom they choose to associate with, and to live their lives. Unless these issues are resolved (and I will have a number of amendments), I will not support the legislation.

Debate adjourned on motion of Hon. I.K. Hunter.

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