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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-03-06 Daily Xml
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SERIOUS AND ORGANISED CRIME (CONTROL) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 4 March 2008. Page 1998.)

The Hon. S.G. WADE (16:48): The fact that this bill is before us today is testament to the government's failure to address effectively serious and organised crime. The Blair government, from which this government takes the lead on law and order, used the slogan 'tough on crime, tough on the causes of crime'. South Australian Labor talks tough on crime, but talk is cheap. Labor is certainly not tough on the causes of crime. In 1987 Labor changed the law to allow people to grow some 10 cannabis plants and to be fined a mere $150 for what would have a street value of the order of $20,000. South Australia became the cannabis capital of Australia.

This state's lax laws on cannabis have contributed significantly to this state's coming to be regarded as a drug-manufacturing centre for the entire country, and the bikie gangs and organised crime have been fostered through that culture. Labor has not changed. Yesterday we saw Labor's hippy-hempy tradition shine through again when, on behalf of the government, the Hon. Russell Wortley—our own resident relic of the 1970s—defended the government's refusal to support the Hon. Dennis Hood's attempt to tighten the cannabis laws.

On the one hand the government brings in this bill to say, 'We're being tough on outlaw motorcycle gangs', yet on the other hand it opposes efforts to try to constrain the networks that supply drugs to those very same gangs. How can the government talk tough on crime when it is resolute in protecting the causes of crime? It is almost eight years since Mr Rann said 'It's time.' On 16 November 2000, he said:

It's time we tackled the problem. In South Australia too much crime has been associated with these bikie fortresses.

In the 2002 election campaign, he told South Australians:

All South Australians are entitled to be safe and feel safe and feel secure in their homes, in their schools, on the streets or wherever they may be.

But where are we six years later? Paskeville; networks of drugs and crime running through city clubs, hotels and bars; the shooting at the Tonic nightclub; and numerous outbreaks of violence between rival gangs. The government's own briefing on this bill highlighted the growth in the problem. We are told that in 2001 six outlaw motorcycle clubs operated in South Australia, with nine chapters. By 2007 we had eight clubs with 13 chapters—a 33 per cent increase in clubs under Rann and more than a 33 per cent increase in chapters. In 2001 Operation Avatar was established to tackle serious crime, violence and anti-social behaviour and achieved hundreds of arrests. Police advise that over 600 arrests were made due to the work of Operation Avatar. In 2007 the Crime Gangs Task Force was established and is continuing the work of Avatar.

SAPOL intelligence indicates that outlaw motorcycle gangs are involved in many and continuing criminal activities, including murder, drug manufacture, importation and distribution, fraud, vice, blackmail, intimidation of witnesses, serious assaults, the organised theft and re-identification of motor vehicles and motorcycles, public disorder offences, firearms offences and money laundering. They may represent a small proportion of the state's population but the police advise they represent a significant proportion of criminal activity in this state. Outlaw motorcycle gang crime affects all society. A particularly disturbing development is that outlaw motorcycle gangs are increasingly morphing into legitimate industries and using professionals to insulate their criminal activity from law enforcement.

A distinctive feature of outlaw motorcycle gangs is that their structure—their hierarchical and secretive approach—serves to protect and insulate them from law enforcement. In particular, they work to insulate their principals. They are extremely difficult to penetrate. Apparently a person can spend at least a year moving from being an interested party to a prospect and then onto becoming a member. These groups operate under a code of silence with a culture of intimidation, violence and corruption, and they use every measure they can to exploit the justice system.

SAPOL advises that this bill's strategy is not to outlaw motorcycle gangs but rather to penetrate their protective shield and to focus on the gangs' associated activities and try to disrupt them. I appreciate that there is some concern in the parliament and the community that declaring organisations under this bill may simply serve to push them underground. My understanding from the briefing from the police is that the strategy is that fracturing the organisations and their hierarchical structure will force the principals to operate in smaller organisations which, if you like, puts them closer to the evidence and might also serve to break down the culture and the communication systems.

Gangs are becoming less hierarchical, anyway, and this concerns me. The brief we were given by the police indicated that the Finks, for example, the group that has expanded particularly quickly over recent years, is already moving to a less hierarchical structure. We are told that the Finks has expanded rapidly over the past five years. Whereas it used to take two to three years to become a prospective member of the Finks, it now takes only a matter of months. The Finks apparently—

The Hon. R.I. Lucas interjecting:

The Hon. S.G. WADE: Exactly; there are more finks under Rann, as the Hon. Rob Lucas indicates! The Finks apparently do not have strict structure. Although they might still have a nominated spokesman when they are making public statements, and so on, their hierarchy is much more decentralised. They may be less affected by these laws, and they are actually one of the groups that is growing most rapidly. Of course, that is a reality. Gangs do change; and we have seen in other jurisdictions that, as these sorts of laws are introduced, gangs do adapt. I do not criticise the police for developing a system to which people will adapt: that is the reality of a dynamic environment, but I am concerned that one of the most dynamic groups, if you like, is the one that is least likely to be affected by this legislation.

The government has taken the view that outlawing the organisations is not the best strategy. It has taken the declared organisations approach. The opposition will support this bill. The opposition notes the government's view, but it does reserve the right to insist on further amendments in the future. In this context, it notes the views of the Director of Public Prosecutions, Mr Steve Pallaras. Mr Pallaras was a former top prosecutor, a senior crown counsel in Hong Kong, and he had experience with triad gangs there.

The problem with the triad gangs in Hong Kong is similar to what afflicts us in relation to motorcycle gangs. The difficulty with policing these gangs is that it is hard enough to catch a principal breaking the law but it is even harder to get witnesses to testify against them. On ABC Radio, Mr Pallaras stated:

The same issues apply in our jurisdiction. People are terrified to give evidence against bikies.

I ask the council to stop and reflect on that statement for a moment. The Director of Public Prosecutions in this jurisdiction is telling us that his ability to access witnesses in criminal prosecutions against gangs is inhibited because of that of intimidation.

We should take some encouragement from Hong Kong. In the other place the member for Heysen reflected on the success of the crime fight in Hong Kong. Triad numbers in the 1970s were 5 per cent of the population, and triad members outnumbered the police five to one. Corruption throughout public organisations was rife. For example, firemen wanted water money before they turned on the water to fight a fire. This led to public protests, and that is what led to the establishment of the ICAC in 1974. Indeed, one of its first acts was to extradite the Chief Inspector of Police.

An honourable member interjecting:

The Hon. S.G. WADE: Timothy Tong Hin-Ming said that for 13 years Hong Kong has been the world's freest economy in terms of corruption and, indeed, 96.4 per cent of the respondents in a recent survey had not come across a single incidence of corruption in the past 12 months. So, the tactics in Hong Kong have obviously had a vast impact. As an honourable member commented as I was reading that, it certainly does highlight the value of an Independent Commission Against Corruption.

Honourable members: Hear, hear!

The Hon. S.G. WADE: The opposition will support the declared organisations scheme in this bill; the opposition, though, is not convinced that the government should not have gone further and outlawed outlaw motorcycle gangs.

The government acknowledged in the second reading explanation of the Attorney-General that this legislation does involve giving unprecedented powers to the police and to the Attorney-General to combat serious and organised crime. It is based on terrorism legislation and raises significant issues in relation to civil liberties. It is vital that we ensure that these powers are used appropriately and responsibly. The government tells us that the objects of the legislation will constrain the use of the powers. I am not convinced.

The members for Mitchell and Heysen, in another place, suggested that the calibre of the incumbents in the relevant offices should provide reassurance to the parliament. I, for one, am not reassured. My experience is that, in policy and practice, I have been greatly disturbed by the Attorney-General's understanding of his duties as Chief Law Officer of this state. Last week I expressed my concern about the Attorney-General's failure to defend the judiciary when judicial sentencing was publicly challenged recently. Since then, the Attorney-General raised the prospect of directing the DPP to appeal against a sentence on the very day the sentence was handed down. How can the public and, in particular, the defendant involved have confidence in an independent, objective prosecutorial decision-making process if the DPP is making that decision under the threat of a direction from the A-G?

In this regard the opposition favourably notes the elements of oversight in this bill. The bill provides that before 1 July each year the Attorney-General must appoint a retired judicial officer to conduct a review on whether the powers under the act have been used appropriately having regard to the objects of the legislation. The Attorney-General must table a copy of the report in both houses of parliament.

The bill also requires the Attorney-General to conduct a review of the operation and the effectiveness of the legislation as soon as practicable after the fifth anniversary of the commencement of the legislation. The Attorney-General must prepare a report based on the review and table a copy of the report in both houses of parliament. The opposition also notes favourably that the bill contains a sunset clause. We will propose to change it, but we do welcome it.

The opposition has a number of concerns about provisions of the bill from the perspective of trying to ensure that innocent parties are not inadvertently affected.

Rather than delay the implementation of the declared organisation regime, we intend to support the bill. In the period leading up to the sunset of the bill, we propose a review of the act, and that review will allow consideration of four years of operation of the bill and an opportunity for less hurried consideration of how the civil liberties of innocent parties can be protected under the act. The opposition supports the bill.

The Hon. SANDRA KANCK (17:00): The Serious and Organised Crime (Control) Bill is one of the most important and alarming pieces of legislation to come before this parliament. It is important because it concerns some of our most important freedoms and checks on government power. I refer to three things: the freedom of association, judicial review and conviction on the basis of secret evidence. This bill has potentially profound consequences not just for civil liberties—I know that the government despises civil libertarians—but also for more every day and grass-roots activities like sports organisations and volunteering to help charities.

When such matters are at stake, we should not allow ourselves to be panicked into passing such legislation without subjecting it to rigorous scrutiny. I find this legislation alarming because it is based on the same powers and rhetoric developed to fight terrorism in the day-to-day fight against crime. The government has failed to make a case for such severe laws, and this bill may not be the most effective response to organised crime.

There are many aspects to this bill that I oppose, and I certainly heard what the Hon. Stephen Wade said: that the opposition will be supporting the bill. I also note the comments made by his leader, Martin Hamilton-Smith, that the bill does not go far enough—and I wonder how much more of our freedom he wishes to have eroded. Nevertheless, it looks as though it will pass the second reading; therefore, when we get to committee I will attempt to ameliorate what is a very bad bill.

At this stage, I have more than 20 amendments in mind. When we debate those amendments in committee, I will give detailed arguments about the provisions of the bill, but I think it is highly dangerous to give enormous powers to the police without an ICAC in place.

I want to confine my remarks at this point to three specific points about the bill. First, it will give the Attorney-General power to send a person to gaol not for what they do but for who they know; secondly, it allows decisions to be taken on the basis of secret evidence that is not provided to the accused; and, thirdly, it strictly limits judicial review in that there is limited independent scrutiny.

The provisions that could send a person to gaol for who they know, not what they do, are contained in section 10, which deals with the declaring or outlawing of an organisation, and section 35, which deals with the new offence of criminal association. These two sections work together in this way: the Attorney-General, using section 10, could declare that an organisation is a criminal organisation even if only a few of its members plan criminal activities.

Using section 14, a David Hicks style control order could be placed on the following:

1. any member of a declared organisation;

2. a former member of such an organisation;

3. someone who has committed a crime in the past—and how far back we do not know; or

4. anyone who associates with a member, or former member, of a declared organisation, or a person with a criminal history.

Under section 35, a person could go to gaol for five years for associating with a person under a control order six or more times a year, even if that person has not committed a crime. Association can be in person or via a phone call, fax, email or text message. The prosecution does not even have to prove that you are associating to commit a crime: you have to prove that you were not. Obviously a lot of people are going to be watched in this tallying up of six interactions. Presumably, as soon as a person associates with someone under a control order or someone who used to belong to one of these gangs subject to a control order or someone with a criminal record, that person's name will go on a database and they, too, will be watched. This raises some very interesting questions about how the information is collected, whether phones will be tapped and, if so, how that tapping will be authorised, whose phones will be tapped and on what basis, whose names are recorded and how one finds out if one's name is on such a database. It has shades of Don Dunstan and the Special Branch, and this is a bill coming from a political party that dares to invoke Don Dunstan's name. I say: shame on the Labor Party.

The government has some exemptions. For example, you can associate with people such as your doctor, teacher, classmate, therapist, employer and your immediate family. That seems reasonable until you consider it for at least five seconds. Then you start to think through just how complex and fluid the web of associations is in a healthy society. Immediate family is the first problem. This bill is based on an arrogantly narrow Anglo-Saxon nuclear family perspective. It just will not work for indigenous people where, in many cases, a wider range of people play a role in child rearing, or for some from European cultures where the extended family is normal. It does not consider that regular association occurs in most families between aunts, uncles, nephews and nieces.

For example, if an indigenous person who is (or was) a member of a declared organisation or has a criminal record or associates with people with a criminal record falls ill and his nephew moves in to look after him, the nephew could be sent to jail for five years under the criminal association provisions. For example, the Attorney-General could declare the Gang of 49 as a controlled organisation under this legislation. Many of the people in that group, as is well known, are Aboriginal people living with extended families—in fact, some might call them broken families. This legislation could guarantee that an aunt could be accused of criminal association by taking into her home her nephew or perhaps, if the relatives are scared of doing that, it might guarantee that young man's homelessness. I do not think that would help things along.

Let us just think through the notion of associating with a person with a criminal record. One of our great failures as a society is that a high proportion of indigenous people in South Australia spend time in gaol, much higher than people with white skin. So, it is going to be pretty difficult for many indigenous people to avoid associating with people with a criminal record. Some of our multicultural communities will also have similar problems. The Attorney-General has said that there is no intention to use these powers against legitimate protests and advocacy, but as this bill is worded it will not stop an unscrupulous or overly zealous attorney-general from squashing protest and dissent.

The bill concentrates unprecedented powers in the hands of the Attorney-General and removes the usual checks and balances. History shows that power will eventually be abused, even in Australia. In the 1970s, the police Special Branch spied on thousands of ordinary South Australians and kept records about them. In 2004, Cornelia Rau disappeared into the Baxter Immigration Centre. In 2006, US peace activist Scott Parkin was deported on the basis of so-called secret information—a decision which was later overturned on appeal. In 2007, Dr Mohamed Haneef was deported and another decision was overturned on appeal and, of course, the overturning proves the abuse of power.

Quite clearly, authorities abuse their powers and they get it wrong. If the sorts of power envisaged in the Serious and Organised Crime (Control) Bill had existed in the past, certain key moments in history could have turned out very differently. Liberal state governments with these powers could have colluded with the Howard government to outlaw the Maritime Union of Australia during the 1998 waterfront strike. Let me tell you that a lot of unions have worked out already that this bill could be applied to them. These sorts of powers could have been used against the Wilderness Society over the Franklin River blockade. This protest, like most historic protests, included radical militant elements. On the Franklin, this group was the Night Action Group (NAG), whose manuals included information on the development of skills for disabling bulldozers and destroying power stations. Had similar legislation existed there and then, a pro-development state government wanting to make a show of strength could have used that web of associations in the environment movement to shut down the Franklin protest.

In the 1980s and 1990s I participated in protests against the Nurrungar US base. The peace-loving Christians held a candlelit midnight service at the gates, while the anarchists pulled down the fences. Those of us who were there were not evil people; we were not criminals, but many of us effectively could have been classified as such had this legislation been passed.

Think back just five years to the escapes from Woomera. Some protesters pulled down fences and helped the refugees escape. Many others hid escaped refugees. The supporters of refugees were members of organisations that could have been shut down under the criminal association powers of this legislation.

Let us think about how these powers would be used in future. Two possible sites for nuclear reactors have been identified in South Australia: one at Port Adelaide and one in the South-East. It is very certain that, if there was a project to build a nuclear power station here in South Australia, it would spark an immense protest and, like the Franklin, it would include radical and mainstream elements. The government of the day could use this association power to crush a protest against building a nuclear power plant in South Australia if only a few members of the organisation seriously damage machinery at the construction site.

Despite what the Attorney-General says, the criminal association powers of this bill could be used to trump any clauses designed to allow protest and dissent. The lines between groups and activities at any significant protest inevitably blur, and that blurring could be used to shut down legitimate action and protest.

Some members in this place will not find these sort of arguments persuasive, because they sneer at the phrase 'civil liberties'; they think civil liberties are a relic of some more golden age, a luxury we now have to discard. Most people here will probably never participate in a protest, so it can be dismissed as being of no relevance to them.

So, let us make this more every day. Let us consider your local football club or church welfare group. Remember, as I pointed out earlier, how wide the net is cast. A control order can be placed on any member or former member of a declared organisation or someone who has committed a crime in the past or someone who associates with any one of these.

Friends with a history of playing football tell me it is not usual for community sports teams to be coached by people who are members of bikie gangs, associated with bikie gangs or have criminal records. That has to happen statistically as communities are made up of a variety of people, including those with criminal records, often from a wild, misspent youth. Remember, football, sport in general or any community activity is not exempted by the provisions of this bill.

These people, especially in small towns, are legitimate members of the community and they are reintegrated and rehabilitated through sport and other pursuits. All you need is one person who is a member of a declared organisation, someone with a criminal history or someone who associates with people with a criminal record in a football team or club and most of that community football club could fall foul of these laws.

Imagine the dilemmas created by that local club. Could you allow any of these people to play football or have a drink after the game with them? Do you sack the coach of the under 11s because 20 years ago he held up a service station? Do you ban these people from attending the football presentation night? If it is the parent of a child in a junior team, can you talk to them while the match is going on?

What about the local school? Most people with criminal records serve their time and then re-enter the community. We generally work on the principle that once people have served their time they have that right. We should recognise that school communities will or could include members of declared organisations, people with a criminal record or people who associate with such people.

The exemption in the bill relates to your education and not that of your children, so do we ban Jock, who was once a member of the Finks, from running the sausage sizzle at the school fete as he has done for the past five years? Should the principal kick Mary off the parents and friends association because she is friendly with a friend of a former Gypsy Joker? Do we start a system of apartheid where every person at the school gate waiting to collect their child shuns the man wearing leather for fear that he could be one of the people targeted by the Attorney-General?

A number of charities employ people who are or were members of bikie gangs or have criminal records. I know of one program that is actually run by a person with a criminal record. In meetings with people concerned about these issues, the point has been raised that, at the grassroots, any volunteer who wanders in the door will be accepted with open arms. They may, over time, take on positions of responsibility. Then, at some point, it transpires that this person is or was a bikie, has a criminal record or associates with such people. What then? Do they get shown the door; chucked off the management committee?

Are we, through this legislation, ensuring that some people with criminal records can never be rehabilitated, never be able to mix in society? Will we be forcing them to continue criminal activity by shunning them? Is this the sort of society we want to encourage? There are organisations where volunteers deliberately reach out to criminals, former criminals and bikies. The Longriders Christian Motorcycle Club exists to minister to bikies. Some of them have committed crimes in the past but they have converted to Christianity, and their outreach includes deliberately associating with just the sort of people this bill is targeting.

They want these people to do what they have done: to leave that lifestyle and convert to Christianity. This is not covered in this bill. This activity is not employment and the legislation does not exempt volunteers. So what is this group to do? Our clubs, our charities and our communities absolutely rely on an open-door policy.

If we vet everyone who walks through the door, wanting to know what they have ever done, who their friends are and what those friends have ever done, will we kill the culture of community and volunteerism? I fear so. The absurdities and injustices begin to multiply once you adopt a policy of guilt by association.

It gets worse. Clause 41(1) of the bill strictly limits judicial review of declarations and control orders. That means that there is limited opportunity to appeal decisions that can have a major impact on our freedoms. It gets worse still. Under the bill, the Attorney-General would not even have to disclose the reasons for making a decision such as outlawing an organisation or making a control order for those affected by the decision.

This is very similar to the Howard-inspired terror laws. The implications of this bill are truly breathtaking. The adoption of criminal association has the potential to make this much more threatening than the measures in the various terror laws because, in those acts, measures like preventative detention were linked at least to a suspicion of terrorist action. Let us compare the threat posed by terrorism with the threat posed by bikies.

The threat posed by terrorists could involve attacks that are designed to maximise death and destruction: the World Trade Centre and the Bali bombings are obvious examples. These are rare events but they are potentially catastrophic; they have more of the flavour of a war. Bikie crime is crime: not terrorism. The activities are not designed to maximise death and destruction. Crime is a problem, but it is not a crisis or an emergency; therefore it deserves a more considered approach.

Are these measures justified? Just how big a problem is bikie crime? This is what we know from the parliamentary briefing and the statements by police and the Attorney-General to date. There are not many bikies. The Attorney-General and the police have referred to 250 badged members in South Australia. However, they say that the number is growing and that that should be monitored. That is their argument, but even those figures are disputed.

We have heard examples of crime perpetrated by bikies over the last decade. Some of them are dreadful crimes but, as I said, there are a limited number, and I keep hearing the same half dozen. There have been numerous arrests and seizures of firearms and drugs through Operation Avatar and the Outlaw Motorcycle Gangs Task Force. You could take this one of two ways: either this is the tip of a very big iceberg and we should be alarmed, or that we are having great successes.

But is that enough to justify this bill to diminish our freedoms? The problem is we simply do not have the evidence so far to support it. My office has approached the Attorney-General's office seeking further information about the extent of the threat, but so far all they have been able to provide is the statistics relating to arrests and seizures. I am hopeful that, before we reach the committee stage, more useful information might be forthcoming.

It is worth comparing our experience in South Australia of fighting organised crime to that of other countries. Hong Kong had a huge problem with criminal gangs known as Triads. At one point, one in 13 members of the population were Triad members and the police were outnumbered five to one. That is a very different situation from that which we have in South Australia. Italy, of course, has had the Mafia killing judges, and it is well-known that corruption in parts of Italy is systemic and pervasive—but this is South Australia, not Italy. The United States has also had immense problems with organised crime, corruption and gangland wars, and it is worth noting that this was at its worst during the days of alcohol prohibition—and we are moving very much more towards that model with drug prohibition.

We appear to have much less of a problem than these three countries, but our leaders want to go much further than they have. The day before this legislation was introduced in the House of Assembly, the Premier, Mr Rann, told the house that, 'These are the toughest anti-outlaw bikie gang laws that we can find anywhere in the world where these gangs operate.' Why is that needed? Why do we need tougher laws than are needed in Hong Kong, the US or Italy?

I want to ask a few commonsense questions and make some observations that occur to me in relation to this bill. First, if we crush bikie gangs, will crime disappear or just move to other forms? This is an important question that has not been answered. SAPOL says that it has all the badged bikies under surveillance, and this raises the question of whether there is some advantage to having your enemy wearing a highly visible uniform and congregating in highly visible clubhouses. I remember a Social Development Committee inquiry into prostitution about 10 years ago where members of the vice squad came and told us that they much preferred to have most of that activity centred around Hindley Street because they know where it is and it makes it a whole lot easier to keep an eye on it.

Is the bill too focused on methodologies of the past? Does a bill that is ostensibly aimed at bikies make sense in the world of fluid networks and cyber crime? These are vital policy questions that need to be answered before we go too far with draconian legislation. This bill asks us to surrender important rights and freedoms and casts so wide a net that it could potentially affect many areas of our community activity. In doing that it could change the very character of our clubs and community organisations.

There are times of great emergency—a war or health epidemic—where draconian measures may become necessary. Organised crime is a problem and it should be monitored. It should be controlled and we should do what we can to stamp it out, and we may need special measures. For example, the government's bill giving the police power to bar people from nightclubs is a targeted measure that is worth considering. It is a far better set of laws, as it deals with a person perceived as a problem and does not target people by association.

However, organised crime is not in the same league as terrorism or war, so we should not be panicked into surrendering our freedoms. Whenever a government demands new powers we, in turn, should demand that they make the case. This was done in 1951 when the federal government wanted to ban the Communist Party. This removal of freedom of association was considered so important that the whole nation became involved in the debate and a referendum was held to determine whether such a loss of freedom was justified—and the people of Australia decided that it was not.

Here in South Australia we have had limited debate within our parliament—and hardly anywhere else—over a period of 2½ weeks, regarding the need to once again put freedom of association at risk in our society. I remind members of the opposition that Sir Robert Menzies said, in 1942, that 'Freedom of association is of the first order of importance in the world of liberty.' I remind all members of Article 22 of the UN Covenant on Civil and Political Rights which begins, 'Everyone shall have the right to freedom of association with others...'

On the information presented so far we do not know how big a threat organised crime is, we do not know what proportion of organised crime is due to motorcycle gangs, and we do not know whether these are the sorts of measures that are most needed in a world of cyber crime. We need to have a much closer look at all these issues, and we need to give this bill the scrutiny it deserves.

I will shortly move that this bill be referred to the Legislative Review Committee, and I refer members to section 12 of the Parliamentary Committees Act, which provides:

The functions of the Legislative Review Committee are—

(a) to inquire into, consider and report on such of the following matters as are referred to it under this act:

(i) any matter concerned with legal, constitutional or parliamentary reform or with the administration of justice...

So, I move:

Leave out all words after 'That' and insert 'the bill be withdrawn and referred to the Legislative Review Committee for its report and recommendations'.

In concluding, I wish now to take the words of Pastor Martin Niemoller, who, in 1945, had this to say about the advance of Nazism in Germany:

First they came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the Catholics, and I didn't speak up because I was a Protestant. Then they came for me, and by that time there was no one left to speak up for me.

This bill is not just about bikies, as the government claims; it erodes fundamental freedoms and I, for one, will fight it. I oppose the second reading.

The Hon. D.G.E. HOOD (17:26): I rise to support the second reading of this bill. It is a very important bill and deserves careful consideration. The target of this bill, despite its generic name, is clearly to outlaw particular motorcycle gangs. It has been put to me in a briefing that bikies are the principal target of this bill, and the reason they are described generally as a declared organisation and not specifically named by club name or generic description is to ensure that bikies do not try to change their spots to get around the law.

From the outset, I think this answers the calls that some people from other groups have made that they might be targeted by this legislation. We are talking about the approximately eight outlaw motorcycle clubs with 13 chapters, that have grown to that number since being six clubs with nine chapters back in 2001. To my mind, the Triads, or similar gangs, would be next on the list, but then for groups beyond that I understand the government would use other criminal laws, including the public order offences bill (coming to us soon), to deal with less serious behaviour.

If a terrorist cell were operating here in South Australia that matter would be referred to the federal police and if a paedophile ring was operational then that too might be a federal matter. Otherwise, I understand that existing laws would be used, such as child pornography possession and abduction laws, to stop their activities. In short, we are assured that, despite the relatively generic terms used in this bill, the bill's target is outlaw motorcycle gangs and other serious organised crime gangs, and that is all.

The reason that we are reforming the present criminal laws is that SA Police have been unable to secure convictions against the major operators in the bikie world or criminal underworld. I think it is unfair to say that it is a failure on the part of the police; rather, it is a failure on the part of this parliament and the justice system in general to be flexible and responsive enough to modern-day policing needs and the demands of dealing with organised crime.

I think it quite fair to say that the courts, be it the judiciary or the lawyers, are stacked with civil libertarians. Indeed, some members of the judiciary have represented—

The Hon. Sandra Kanck interjecting:

The Hon. D.G.E. HOOD: Well, they can be abused, is the point. The civil libertarian bent of the judiciary is obviously not only demonstrated by the way that police have been frustrated by court rulings concerning organised crime, but also the weak sentences imposed upon those who perpetrate serious crimes. Organised crime is not just a state issue, or even a national issue; it is an international issue. Being, as it is, submerged in the underworld, it is hard to get a good grasp on organised crime from the international to the local level. However, I understand that not only are international organised crime gangs directly or indirectly operating in South Australia but also in cooperation with gangs in South Australia to achieve their criminal aims.

One of the major sources of trade amongst organised crime syndicates is illicit drugs, and certainly there have been suggestions in the past that South Australia's cottage industry of growing cannabis, supported as it is by weak criminal laws and weak sentencing, filters through the bikie gangs into other networks interstate and, indeed, overseas.

One of the best ways to deal with organised crime is to have harmonised national and international laws to attack organised crime. It is admirable that this government has not been paralysed by the inertia that strikes the Council of Australian Governments and the like and stuck with what it believes to be good reforms in this area. Certainly, I hope these reforms not only work but might become model laws nationwide, because I think a potential weakness in the implementation of these laws is the interstate jurisdictional issue.

Without equivalent laws interstate, we might see organised crime simply move its brains trust interstate and potentially conduct raids in South Australia. That might be far-fetched but, if it did occur, it might make bikies wonder what was the point of bothering with South Australia any more, not that that would necessarily be a bad outcome. Indeed, that might be good for us, but it certainly would not solve the problem.

I do not agree with the Wild West approach of 'Get out of my town'. We need a uniform approach but, failing action by the other states, it is appropriate that we introduce such reforms on our own. On that note, I add that we were told at the briefing that our Commissioner Hyde is at the forefront of a national committee setting up a national approach to this issue. So, we will see the developments on that front.

In this bill, essentially two things will occur: a control order and the offence of criminal association. These are the two most powerful tools this reform will give the South Australia Police, and both hang upon the Attorney-General's declaration, upon advice, that a group is a declared organisation. It will then become an offence to associate with a person whom you know is a member, or are reckless about not knowing whether they are a member, of a declared organisation. More often than not, we are talking about people who proudly wear the club colours or who wear tattoos or other distinctive markings. Exemptions apply, and I will touch on those in a moment.

The control order aspect allows South Australia Police to apply to the court to bar specific individuals from associating with other members of declared organisations, restrict their entry to certain premises (such as clubrooms and the like) and, indeed, apply other restraints. These applications are made ex parte and are therefore served upon the defendant, having immediate legal effect.

Before the civil libertarians protest about that, let them note that this is precisely what we have done federally concerning terrorism suspects and precisely what is the case for (usually) men who are accused of perpetrating domestic violence. So, the parliaments of this nation have previously seen fit to allow ex parte restraint in merited circumstances. Against this background, I think that ex parte restraint for bikies has merit.

I have received expressions of concern from groups that one could call bikers, or legal motorcycle groups. They are concerned that they will be unfairly targeted by these laws. I have considered this carefully and have decided that I am satisfied that they have no genuine reason for concern. I note, for instance, that in the last sitting week the Attorney-General put on the record in the other place that he is not chasing the Longriders, so called. The target of this legislation will be groups that 'meet to organise and conduct serious crime'—and that is the key term.

Some summary offences might be added to the list and, whilst the government is considering whether some summary explosives offences might become part of that list, I strongly suggest that offences concerning running a brothel could be considered as well. However, Christian motorcycle clubs or general motorcycle club enthusiasts, such as the Ulysses Club, do not run brothels, they do not grow cannabis, and they do not get in involved in gun fights with one another on beaches or in restaurants. Therefore, clearly these clubs have nothing to fear from these laws.

Moving along, I will not retrace similar laws in other jurisdictions, which the shadow attorney-general did a good job of doing in the other place. It is worth highlighting some of the recent issues raised in the media concerning outlaw motorcycle groups, as it demonstrates for the record some of the issues weighing on the parliament at this time. I will start with the recent story concerning Mr Karim Awad which I recall appeared on the front page of the Sunday Mail last weekend—and thank goodness for a good news story on the front page of a newspaper for once.

Mr Awad, a former chief of the Rebels motorcycle group, thanks to the love and need of an autistic girl and also due in no small part to the work of one of the Christian churches, has turned his back on being a bikie. As an aside, I think this is a point to be borne in mind when we are considering what might be lawful encounters between bikies and counsellors and the like.

A prison chaplain, for instance, might be a person who is called upon to counsel a person in gaol who is a known member of an outlaw motorcycle group. We think there ought to be a clear exemption for chaplains and other counsellors of that nature—indeed, some of them might be part of the Longriders motorcycle club—otherwise how will bikies be reformed? How will we be able to convince them, as in the case of Mr Awad, to leave their life of crime?

Therefore, Family First calls upon the Attorney-General to ensure appropriate protection for the good work of churches and other community groups who try to reform hardened criminals through frequent meetings, counselling and the like.

I note that recently that the media described the New South Wales police operation 'Operation Ranmore' as having laid 111 charges against members of outlaw motorcycle gangs since May 2007, thanks to the new, tough anti-bikie legislation there.

Furthermore, they have made some 390 arrests. This is a very good outcome, and I contrast that with what might be possible after this bill becomes law. I was told in a briefing that there are 250 full members of outlaw motorcycle gangs in South Australia who are primary targets for SAPOL once the bill is proclaimed, and perhaps another 250 nominees or prospects who also might be targeted by these reforms. SAPOL also advises that each of these people might have up to say 10 people associated with them who might be under consideration. If Operation Ranmore, using New South Wales tough new anti-bikie laws, could see 111 charges laid in nine months, we should see some significant results early in the life span of this new act.

Family First calls upon the Minister for Police in this place to ensure that there are adequate resources to make use of this legislation to its full effect. In a briefing it was put to us that SAPOL has received a significant increase in funding for the crime gang task force to the tune of some $15 million over five years, as well as some additional 22 officers beyond that funding increase. This is a welcome move, but I also hope that the clearing of logjams caused by outdated criminal laws assist the existing task force and Operation Avatar to achieve major results quickly.

A particular resourcing issue that I want to put on the record is my concern that the government adequately resources SAPOL for surveillance and to use the latest technology to monitor internet activity. It seems that almost every month new technologies emerge that enable people to communicate with each other in a different way and, if bikies can afford Queen's Counsel to get around the criminal law, surely they can afford the latest technology to get around such investigations. I call on the government to adequately resource SAPOL to respond to the technology countermeasures that bikies might use in order to get around this legislation.

I have in my notes a list of incidents that demonstrate how active and violent bikies have become across Australia. I note, too, that these groups have interstate and international connections so events interstate are relevant to our considerations. I could list a lot of incidents but I will focus on the most recent incidents, and I will explain their relevance to this debate. The Advertiser reported on 20 February this year that youth street gangs are being ordered by bikies to commit increasingly violent crimes in metropolitan Adelaide, with special SAPOL police operations targeting three gangs called Team Revolution, Middle East Boys and Rule the Streets.

This recruiting of youths and youth gangs is a major reason why Family First is sympathetic to this bill. While the young adult children of our families are getting locked up in gaol, the bikies and their presidents and enforcers, and the like, are staying out of gaol and just using their criminal network to recruit more teenagers and young adults to do their dirty work. We need laws such as this to target the big criminals, not the petty criminals; and I think most people would agree with that.

On 24 February in The Advertiser there was a report on the alleged facial knife attack in the Adelaide Remand Centre upon the man accused of the suspicious death of 3 year old David Mamo. It is alleged that the boy is a descendant of a Finks motorcycle gang member. Of course, this matter is before the courts but, if proven, let the record show it demonstrates how brazen such acts can be.

On 29 February 2008 shots were fired at the home of a Finks associate on the Gold Coast. The Gold Coast Bulletin reported a bikie source saying, tellingly for South Australians, that 'it is Finks in the news again' and that 'it is not going to impress Finks bosses in Adelaide because they have recently told the Gold Coast chapter to cool things down and stay out of pubs and clubs and, most importantly, to stay out of the news.' Indeed, on the same day the Bulletin reported that a Finks associate had been found in a Gold Coast house with '5,000 ecstasy tablets downstairs'. This demonstrates the importance of this law working across borders to the full extent of the law, and I urge the government to bring the bill back again if jurisdictional issues are holding up the implementation of these laws. Clearly, relevant criminal associations exist interstate, and it would be awful if this bill was frustrated because of interstate and jurisdictional problems.

Further, on 2 March this year, the Sydney Morning Herald told the story of a woman who tried to open her own tattoo parlour. It was firebombed three times in the first three months by bikie groups trying to protect their monopoly on the tattoo industry. Overnight, on 2 and 3 March 2008, we heard of shootings at Kings Cross that are now being investigated by Operation Ranmore. There is some suggestion of a link between current and former Australian Rugby League players with these incidents; that remains to be seen, of course.

Another persuasive matter reported in the media was that the Director of Public Prosecutions called for laws of this nature on 19 February on ABC News. He said:

I think that the terrorism issue, the guns issue and the bikies issues are the sorts of issues that are important enough for us to have a radical look at the way we frame criminal laws. We shouldn't have to wait for people to be caught in the act of committing offences and then charge them or arrest.

He continues:

If it is the association itself that is the cause or at least the source of the criminal conduct, then the association itself ought to be unlawful.

In closing, I address the combined effect of this mechanism to declare organisations and the appropriate clauses. We must make a stand against activist judges who misunderstand whose job it is to make these laws and whose job it is to pass sentence. When judges seek to interpret the law to meet their own biases and points of view about such things as organised crime or the effectiveness of the prison system, they overstep their mandate and, indeed, overstep the role for which they have been appointed.

When declaring an organisation to be a declared organisation, the Attorney-General is not required to disclose all matters he was aware of when making the declaration. As he points out, that position has been held as a valid law by a High Court decision last month concerning a fortification removal order against the Gypsy Jokers in Western Australia.

In short, this bill will no doubt cause heated debate in the chamber. At the end of the day, such is the risk to the community that, as the DPP has said, serious and quite radical laws are required. Family First is favourable to these laws and looks forward to the committee stage.

The Hon. I.K. HUNTER (17:41): I note the glowing endorsement of this legislation given by the Hon. Stephen Wade in his speech and his indication that the Liberal Party will be voting for it. I, too, will vote for the bill. The objectives outlined in the measure are in response to the continuing antisocial activities of criminal gangs, activities which of course cannot be tolerated. Legislation of the kind before us today is aimed at protecting the rights and liberties of ordinary people in the community but, by their very nature, we must be alive to the potential for such measures to constrain some rights and liberties.

I am heartened somewhat by the measures contained within the bill that allow for regular reviews. I also support the provision for a sunset clause. Mr President, you would be aware that Benjamin Franklin is usually credited with the observation that 'those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety'.

Therefore, we must be vigilant about protecting our rights, and that is why I wholeheartedly support the inclusion of regular and comprehensive judicial review so that, at each step of the way, we can be assured that some of our rights are not traded away. Having said that, I believe that a good argument can be made for an annual review of the legislation covering its operation and effectiveness in achieving its stated aims, given that there is already provision for an annual review to determine whether powers under the act are exercised in an appropriate manner.

In voting for the bill, I hope and trust that the government will continue to support other measures addressing antisocial and criminal behaviour. We need to continue to pursue approaches, such as community crime prevention programs, and to raise public awareness of the implications of committing a particular offence and, of course, give people the opportunity to choose life options that do not involve resorting to criminal behaviour.

There is a danger of becoming too reliant on 'tough on crime' initiatives to the exclusion of multifaceted approaches—a danger I know that this government is aware of and careful to avoid. There is a very real risk that last-resort options (and I think particularly of the public safety orders set out in part 4 of the bill) may become first-resort options for police and an easy way for the authorities to appear proactive and take action when there is insufficient evidence for an actual criminal prosecution.

I believe that in recent years we have seen in many areas an erosion of civil liberties in the name of security. This is especially so in the case of the previous federal government's response to the threat of terrorism and the control orders imposed on people like Jack Thomas. As Julian Burnside says in his most recent book, Watching Brief, terrorism is not new. The 20th century is littered with examples of terrorist activity. Throughout all this, democracy has proved itself robust enough to withstand the risk without compromising its essential beliefs.

The same principles should apply to the criminal law: we need to be ever careful not to compromise its essential elements that are supposed to safeguard justice. I am compelled to say that I am instinctively uncomfortable with any legislation that makes people guilty by association. Part 5 of the bill makes it an offence, punishable by up to five years' imprisonment, knowingly to associate with members of declared organisations, or control order subjects, on more than six occasions over a 12 month period. While I can see the sense in disrupting the activities of criminal gangs in this way, it is a slippery slope and potentially wide open to abuse. Therefore, I am comforted somewhat that the 'Objects' clause of the bill seeks to narrow its operation.

The problem of sustaining a charge of guilt by association was most spectacularly highlighted, of course, by the recent case of Dr Mohamed Haneef. The attempt by former immigration minister, Kevin Andrews, to cancel Dr Haneef's visa was ultimately rejected by the full bench of the federal court, who declared it unlawful, in part, because the nature of the association which Dr Haneef had with his family members was not capable of supporting a reasonable suspicion that Dr Haneef knew of, or was sympathetic to, supported, or was involved in any way in criminal conduct undertaken by his cousins. In other words, mere association and admitted regular contact with those suspected of criminal activities was deemed insufficient evidence to target Haneef and, in fact, tar him with the same brush.

I am not suggesting the same would occur with this bill before us today. I merely point out that it is a risk we take when we start down this path. Additionally, I believe that another danger for us to be aware of in passing legislation of this kind is the possible impact it may have on police informant networks. The association provisions of part 5 may have the unfortunate effect of deterring people who regularly, or occasionally, come forward to help police with their inquiries. There is the danger that these informants will lose confidence in the police and the flow of information to police may then dry up. Therefore, it follows that police may need to use extra resources to find the information that formerly had flowed naturally from the trust relationships that they had encouraged in their informant networks.

As I said, I will be voting for this bill and I urge all members to do the same. However, we must accept that it may turn out to be the case—after it has been through the review process—that the measures have a limited effect on the commission of crime. Indeed, there is some evidence from Canada that such legislation may be counterproductive, despite the fact (as alluded to by the Hon. Mr Hood) that many arrests have taken place, an unintended result in that country is that hard criminal elements in the outlaw motorcycle gangs have been forced further underground and, according to Professor Art Veno of the Centre for Police and Justice Studies at Monash University, to behave more like Triads and criminal gangs of their ilk. But, of course, we need to try. It is vitally important that criminal elements in bikie gangs are pushed out of this state, and this government's determination to do so is to be applauded and supported, but we always need to proceed with caution in these matters.

Again in Watching Brief, Julian Burnside QC reminded us that history shows that basic liberties are lost not all at once, but in small steps. This is as good a time as any to call, as Burnside has, for a codified bill of rights for Australia to guard against the incremental erosion of human rights. Victoria has already passed its charter of human rights and responsibilities. A charter of this sort is important—

The Hon. Sandra Kanck interjecting:

The Hon. I.K. HUNTER: Please don't damn me with faint praise. A charter of this sort is important because all proposed legislation, and its interpretation by courts and other authorities, needs to be held against the charter and accepted or rejected on the basis of its adherence to the rights implicit therein. As a parliament and as a community, we clearly need to find practical solutions to the problems of criminal gangs.

I will be voting for this bill. I hope that its provisions are used judiciously and responsibly. I look forward to parliament scrutinising its review on a regular basis, and I trust that, if it is indeed shown that these measures do not adequately achieve their intended purposes, they will be repealed and replaced with more effective instruments.

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (17:48): I thank all members for their contribution to this debate, particularly those who indicated support for this bill. I will go through some of the comments made during the debate. The other day the Hon. Mark Parnell was referring to bikers and trying to suggest that, somehow or other, this legislation was aimed at, or would catch, virtually anyone who rode a motorcycle. Let me say that I rode a motorcycle for nearly 20 years, I was even a member of a motorcycle club. I think that there are more than 100,000 registered motorcycles in the state.

Thousands of members of motorcycle clubs—as with members of motor car clubs and other clubs—are there for the enjoyment and social interests of their clubs. They are not there for criminal outlaw activity. This bill is very much aimed at the handful of groups we have in the community—as has been suggested during debate, about 250 hard-core members, plus a few associates—that are heavily into organised crime. That is what this bill is about. To try to suggest that, just because someone has a leather jacket or rides a Harley or any other sort of motorcycle, somehow or other they are targets is a dishonest argument.

The fact is that the criminal outlaw motorcycle gangs are not only national organisations but, in some cases, they are international crime organisations and are responsible for the distribution of drugs, in particular, and other forms of criminal activity on a world scale. That is why, just like with other forms of organised crime, we have to fight that crime. However, we have to do it in a different way from the way in which we deal with ordinary crime. For years we have been fighting ordinary crime. It is well recognised that the police forces can catch those at the street level of crime, but catching the principals of organised crime is a much harder task to perform. We have seen that with many organised crime gangs, whether they be the Mafia, the Triads or the other ethnic crime gangs that have been referred to, or other forms of organised crime.

The fact is that, inevitably, the principals of organised crime are removed from the day-to-day crime operations, but we know that those organisations, particularly in this country, are very significant in the distribution and manufacture of drugs. Also, because their principal profits come out of crime activities, they are often associated with legitimate organisations to launder money. They cause immense harm to our society, and I think that is what needs to be borne in mind. This legislation certainly is severe in many ways, and it certainly confronts the issue of human rights, but we also have to consider the rights of the thousands of people who are the victims of the criminal activities of these organisations, and that is why the government is introducing this legislation.

We should also understand that these organisations are becoming increasingly effective, and that is because, like other organised crime organisations, they intimidate witnesses and other people as part of their crime. So, the wearing of colours is so important to their effectiveness as criminals, in many cases, in terms of intimidating witnesses who might testify against them for their criminal activities or just in terms of intimidating those people into accepting their criminal behaviour.

Also, of course, these organisations operate with codes of silence. Because these organisations have developed over decades, they are used to the traditional laws and the civil liberty jurisdiction which have developed over centuries and to which the Hon. Sandra Kanck and others adhere—and one can understand why they do so; the civil liberties were hard won. However, these crime organisations have discovered ways to get around the conventions of our criminal justice system. They are flouting it at will, and they are causing enormous damage to our society. That is why we need to consider legislation such as this.

In his comments, the Hon. Stephen Wade said something along the lines that the opposition reserves the right to toughen this legislation. So does the government. This is a new approach, and this bill needs to be seen in conjunction with the Firearms Act and other legislation and measures that the government is taking to deal with this type of crime. However, this is the first step and, as the Hon. Ian Hunter has pointed out, that is why we need to observe closely the performance of this legislation into the future; to ensure that it is achieving its objective. If not, we should try some other method.

However, what is important is that we try to deal with the evils of organised crime, particularly those from the outlaw criminal motorcycle gangs and their associates, which are growing in extent and also growing in their criminal influence within this country.

But we do need to ensure that this legislation is closely watched. There are checks and balances that were put into this bill at the insistence of the government when this matter was being discussed, and it is appropriate that that should have been done. But I would suggest that if there is any abuse of the system, it would very quickly weaken support for this bill, and I know as Minister for Police that the police are well aware that in seeking these unprecedented measures (in this state's terms) they have the responsibility to ensure they are used wisely and properly in dealing with those organised crime institutions because, if they do not, they will very quickly lose support for such measures. I do not believe that will be the case. South Australia Police is a very professional organisation, and a lot of care and thought has gone into these proposals to ensure they are effective in dealing with the organised crime problem that we face and to put as many protections as we can into this legislation.

Again I remind those people who have talked about human rights that, as well as our broad human rights, we also have to consider the rights of victims. There are many people—the people you do not hear about—who are victims of organised crime and whose lives are shortened through drug addiction as a consequence of the drugs being peddled by these sorts of organisations. So it is always the trade-off we have to make. Of course human rights are important, but so are the rights of victims. It is our job as legislators to ensure we get the balance right and that when we pass legislation such as this we observe it carefully and make sure it is operating correctly. I certainly endorse the Hon. Ian Hunter's comments in relation to that.

There are many other points I can make. We will have plenty of discussion, I am sure, during the committee stage of the bill, and I look forward to resuming that when we come back in a few weeks.

The council divided on the amendment:

AYES (2)

Kanck, S.M. (teller) Parnell, M.

NOES (15)

Bressington, A. Darley, J.A. Evans, A.L.
Finnigan, B.V. Gazzola, J.M. Holloway, P. (teller)
Hood, D.G.E. Hunter, I.K. Lawson, R.D.
Lensink, J.M.A. Lucas, R.I. Schaefer, C.V.
Wade, S.G. Wortley, R.P. Zollo, C.


Majority of 13 for the noes.

Amendment thus negatived.

Bill read a second time.

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