HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-05-07 Daily Xml
Contents
Pdf Xml

SERIOUS AND ORGANISED CRIME (CONTROL) BILL

Committee Stage

In committee (resumed on motion).

(Continued from page 2728.)

Clause 35.

The Hon. SANDRA KANCK: I move:

Page 20, lines 28 to 37 [clause 35(3) and (4)]—Delete subclauses (3) and (4)

This amendment deletes subclauses (3) and (4) from clause 35—Criminal Associations. Again, I will read into the Hansard record subclauses (3) and (4) so that people reading Hansard will know what it is I am removing. They provide:

(3) A person who—

(a) has a criminal conviction (against the law of this state or another jurisdiction) of a kind prescribed by regulation; and

(b) associates, on not less than six occasions during a period of 12 months, with another person who has such a criminal conviction,

is guilty of an offence.

Maximum penalty: Imprisonment for five years.

(4) A person does not commit an offence against subsection (3) unless, on each occasion on which it is alleged that the person associated with another, the person knew that the other had the relevant criminal conviction or was reckless as to that fact.

So, in fact, we are back, in a way, dealing with the issues the Hon. Mark Parnell has raised throughout today about this issue of being reckless to the fact. As this is worded, this means that, if you had a stealing offence 35 years ago and you associate with someone who had a stealing offence 20 years ago, you could both potentially go to gaol. I have a whole range of questions that are associated with the bill as it currently stands. I would like to know from the minister what offences are to be prescribed as part of clause 35.

The Hon. P. HOLLOWAY: The government is still considering the kinds of convictions that will be prescribed. However, an example being given serious consideration is serious drug convictions, and the reason for this is that regular associations between people with a history of drug importation, manufacturing, cultivating and dealing are high risk in terms of the likelihood that the associations are for criminal purposes. Regulations are, of course, disallowable under section 10 of the Subordinate Legislation Act and, as such, the kinds of convictions prescribed for the purpose of this offence will be subject to parliamentary scrutiny.

The Hon. SANDRA KANCK: I do have some further questions that relate to this. We again have this issue of the six criminal associations during a period of 12 months, and it raises some very interesting questions. Members who saw the Stateline investigation into this bill about a month ago would know that the Longriders Christian Motorcycle Association, which operations from St Luke's Mission in Whitmore Square, was interviewed on that program. That association raised concerns not about its own status but about the other people at that church who become involved, and I do not believe it is covered in subclause (6), which relates to lawful occupation, business or profession—and in a lot of cases you are talking about volunteers. So, I would like to know what protections can be expected for people in this situation, such as lay preachers, church wardens and church volunteers.

Another example is the good old Salvos who go around to the pubs as volunteers; it is not part of their professional work, but for decades they have gone around with their collection tins. I understand that a lot of the people who will be targeted by this legislation hang out in bars of hotels, so what protection will there be as far as the Salvos are concerned, and as far as the specific example I gave of the volunteers who work at the St Luke's Mission?

The Hon. P. HOLLOWAY: Clause 35(6) provides:

The following forms of associations will be disregarded for the purpose of this section...

(b) associations occurring in the course of lawful occupation, business or profession;

The Hon. SANDRA KANCK: I would like to respond to that. Is a volunteer an occupation?

The Hon. P. HOLLOWAY: There is the defence of reasonable excuse, which is contained in subclause(7) which provides:

Without derogating from subsection (6) but subject to subsection (8), a court hearing a charge of an offence against this section may determine that an association will be disregarded for the purposes of this section if the defendant proves that he or she had a reasonable excuse for the association.

Given the range of issues that will be involved, will police really spend their time, and occupy the court's time, with those sorts of relationships when there are obviously ones of much more criminal interest for them to deal with?

The Hon. S.G. WADE: I want to ask a question similar to that asked by the Hon. Sandra Kanck. I am disturbed that the minister is backing away from subclause (6)(b) on the basis of whether or not the person is acting in a paid or voluntary capacity. Surely you are engaged in a lawful occupation whether or not you are being paid for it. Is a psychologist suddenly not a psychologist simply because they are not being paid?

The Hon. P. HOLLOWAY: I am saying there is also another clause. You can argue that particular clause but there is, if you like, a further back-up in subclause (7). Even if a court were to make an interpretation that we might consider unreasonable in relation to subclause (6)(b) there is still subclause (7) as a back-up.

The Hon. SANDRA KANCK: I read, from what the minister is saying, that the protection for these church volunteers is that when they are taken to court they will have an opportunity to argue their case by saying that what they were doing was reasonable. Is that what the minister is saying?

The Hon. P. HOLLOWAY: I am saying that, first, the police would have to charge them with criminal association, or would have to make the decision. As I said, I am not sure that would be the priority but we have to consider what is possible, even if highly unlikely. Clause 35(7) is really a back-up, because we accept that we probably cannot—through paragraphs (a), (b), (c), (d), (e) and (f) of subclause (6)—cover every conceivable relationship that one might want to exclude for the purposes of this section.

You can prescribe them through paragraph (f), that is one back-up. So, if there is an association of a prescribed kind, if something gets through, if something inadvertently happens, if someone is charged whom we do not believe should be, that is one option. Then there is subclause (7) as well, that without derogating from that subsection, a court hearing 'may determine that an association will be disregarded for the purposes of this section if the defendant proves that he or she had a reasonable excuse for the association.' So there is—

The Hon. Sandra Kanck interjecting:

The Hon. P. HOLLOWAY: Well, the point is that that is just a protection. As I indicated earlier, it is highly unlikely that police officers would charge people. If we have a look at the current law, there is no defence whatsoever under 'consorting', but people are not knocking on the doors of parliament arguing that police have been unfairly harassing them.

The Hon. SANDRA KANCK: I do not think it is actually a fair comparison, because at the moment the consorting laws are not based on this question of who you associate with. Having said that, I want to raise this question of what is in (3)(b) (and it is also in (1)), and that is this question of association on not less than six occasions during a period of 12 months.

I find this a very interesting concept. It means that people are going to be trapped. If somebody is seen to associate with someone who has been targeted by the police and the Attorney-General, that person's details are going to have to be kept somewhere. Would the minister advise where that information will be kept, and who will be keeping it?

The Hon. P. HOLLOWAY: I suspect it is the criminal intelligence branch, but I will confirm that. If I interpret the question asked by the Hon. Sandra Kanck correctly, the information will be kept in police records, as is all other similar information. This is not special or significantly different in that regard from any other information that would be kept in police records.

The Hon. SANDRA KANCK: Let us say that the person that was talking to the bikie was called Fred. So, Fred (innocent Fred) has made the mistake of talking to a bikie and the police now have a record about Fred because he spoke to a bikie. He is not guilty of anything but there is now a record being kept by the police about him. That means that Fred, from this point onwards, becomes vulnerable in terms of the operations of SAPOL. He will then be watched over a period of 12 months to see whether there are another five such interactions. Would the minister confirm that that is the case?

The Hon. P. HOLLOWAY: The honourable member is putting a particular slant on it. What is likely to happen is that with police operations with serious organised crime gangs they are likely to see other people associating. Some of those might be incidental or coincidental contacts, but unless there is reasonable suspicion I do not believe that the police would be looking at following some particular person just because on some occasion they happened to be seen with a bikie.

Of course, if there was some suspicion that they were meeting with someone subject to a control order or someone involved in organised crime, or if there was some suspicion that involved them, then they might be observing them.

However, if people are there when the police are observing organised crime individuals and they see someone there, I do not expect that they are, therefore, going to go out and start surveillance operations on every single person who happens to come across a bikie. Rather, it is going to be a pattern of observations and a pattern of behaviour.

The Hon. SANDRA KANCK: I point out that, although the minister says that the police will need to have reasonable suspicion to do this, there is nothing in this legislation that sets out the processes. Without knowing what the processes are, there are, effectively, no protections. I would like to know whether the people who are being observed by the police in this manner (so that the police can collect this information) will be able to obtain information that that is, indeed, occurring.

The Hon. P. HOLLOWAY: The police can observe people now. For example, if there is lot of car theft in one particular area and the police have a surveillance operation, they will even use cars that lock up on people when they steal them. In an operation like that, if the police note some suspicious behaviour it might go on to a police file. It does not need this act for that sort of information to go on to a file. Any information recorded here is no different from any other information or from what is common, everyday practice.

The Hon. SANDRA KANCK: I take the minister back to the conversations that we were having in this chamber before the lunch break. We were trying to find out whether there was a system where people who have been associated with a bad person can find out if they are effectively close to reaching their maximum demerit points. Being able to have this information, one way or another, is quite important if you are to avoid that sixth event that could put you in the position of imprisonment for five years.

The Hon. P. HOLLOWAY: Is the honourable member saying that somebody is going to ring up the police and ask, 'How many times have I been seen with a bikie?' Surely, we have answered that already at length in the debate earlier today. It would make sense for the police to notify people if it is becoming apparent that their behaviour is drawing them to the police's attention. There may be some circumstances, if there is an operation that police are undertaking into organised crime, where they would not notify a person. However, that would be a very special situation. In any case, if there is some ongoing operation they are scarcely likely to put that operation in jeopardy by giving somebody notice; presumably, they are not going to put it in jeopardy by charging them with criminal association, are they? It just does not follow.

The Hon. SANDRA KANCK: My final question before allowing this to go to a vote (and unless others want to comment, of course) is: will the proposed new police volunteers be involved in any way in observing these people?

The Hon. P. HOLLOWAY: I do not know what proposed volunteers the honourable member is talking about. There have been volunteers for years; for example, Neighbourhood Watch. If a Neighbourhood Watch person notices somebody trying to break into a house down the road and takes down the car number and, hopefully, reports it to police, that will go on a file somewhere and the police may follow it up. It may be coincidence, but is surely all recorded somewhere. What is proposed through the police volunteer system, as has been publicly indicated on a number of occasions, is simply to clarify what has been done for many years.

Police operations would just not work without cooperation from the public. How do you think we catch criminals? Through Crime Stoppers, people ring in and report car numbers and things like that, and it is through piecing all that information together that the police make arrests. They put all that information together. So, there would be hundreds of bits of information that may or may not be relevant to criminal behaviour, and this is really no different.

Amendment negatived.

The Hon. M. PARNELL: I move:

Page 21, line 6—Delete 'close family members' and substitute:

persons in a prescribed relationship

I will treat this amendment as a test for my Amendments Nos 35, 36, 37 and 38, all of which relate to clause 35.

The thrust of this amendment is to soften the social impact of this criminal association provision by expanding the range of people who can have legitimate contact with members of declared organisations, persons with control orders against them or persons with a criminal history without themselves suffering the possibility of a criminal conviction.

The provision that provides for these exceptions is subclause (6), which provides:

The following forms of associations will be disregarded for the purposes of this section unless the prosecution proves that the association was not reasonable in the circumstances:

So, the onus of proof is on the prosecution to prove that any of the listed relationships were not reasonable.

At the top of that list of what I would call protected relationships in paragraph (a) is associations between close family members. To work out who close family members are, we need to go to subclause (11), which has section-specific definitions, including the definition of close family member. It provides:

(b) a person is a close family member of another person if—

(i) 1 is the spouse or domestic partner of the other; or

(ii) 1 is the parent, step-parent or grandparent of the other; or

(iii) 1 is a child, step-child or grandchild of the other; or

(iv) 1 is a guardian or carer of the other; or

(v) 1 is a brother, sister, step-brother or step-sister of the other.

That list of family relationships might be regarded as the small nuclear family. It is mum, dad and the kids, and it is one other step up in terms of grandparents, one other step down in terms of grandchildren and a step sideways, being brothers or sisters.

When we consider that definition of close family members, we should think of the people who are not included. For example, this refers to relationships by blood; it does not refer to relationships by marriage. So, it is okay if your brother is perhaps a member of a declared organisation, has a control order against him or has criminal associations—there is some level of protection.

You can talk to your brother presumably as long as you are not talking about planning a crime. If you are talking at family get-togethers, you have some level of protection, but not if it is it is your wife's brother, your brother-in-law. What this means is that, for the most common of family situations, we will have to have lines down the middle of rooms and people will not be able to cross those lines; they cannot talk to each other.

The government may well say that there is a catch-all provision which provides that, if you can prove to the court that you have a reasonable excuse for the association, you may not be caught by these laws. However, I agree with the Hon. Sandra Kanck that that is too late in the process. What we need to do is entrench the value of family, put family first (if I can use those words) and move away from what I think is the government's flawed premise in the bill.

The flawed premise in relation to this clause is that the way to redemption, preventing crime and turning these people around is to starve them of normal human contact and keep them away from other people in society. I can understand keeping them away from people such as criminals with whom they are known to associate and, although I think that these laws do not have sufficient checks and balances, I can certainly understand why you would want to discourage or keep people away from such contacts.

However, when you start getting into splitting up families and stating that family members do not have any guaranteed right to communicate with each other, these laws have gone far too far. The amendments I have put on file seek to expand the list of protected relationships under the definition of close family members. I have extended it so that, rather than its stating just a spouse or a domestic partner, I have included spouses or a former spouse or domestic partner, and that has expanded that category.

Uncles and aunties are excluded by this definition. You have only to think in terms of the stories we have all heard, whether they be in our own families or in the public realm, of people for whom an important influence in their life might not have been a parent, who might not have been there for them, but an uncle, an aunty or someone who was their connection to the real world and to things that were right, rather than to things that were wrong. So, I want to see those people included in this legislation.

I have also included cousins—not 34th cousins seven times removed but first cousins, the children of your parents' brothers and sisters. Most of us have cousins and, when we reflect on our social circles, we see that cousins are in abundance, so let's add cousins to the list of close family members. I have gone one step further and included girlfriends and boyfriends. People may well think that this is open to abuse as there is no DNA test and it is not a test of blood or marriage because there is no certificate.

The reason I have included this clause comes again out of the story run by the Sunday Mail some months ago in which a bikie's road to redemption was his relationship with his girlfriend. In fact, his girlfriend's sister's child was ultimately his road to redemption. I have not got that far in the bill, but I have included girlfriends and boyfriends, because excluding those relationships in this legislation is effectively the law of the land entering the bedrooms of South Australians and telling them with whom they can and cannot have a relationship.

Can you imagine going to court and having to defend yourself by saying, 'Your Honour, I had a reasonable excuse for the association.' 'What was that?' 'Well, I am sleeping with them,' or, 'I am in a close romantic relationship with them.' I do not think that that would get you very far. I think we need to recognise the types of relationships that are common, fairly close and meaningful in our society, and we need to reflect them in this legislation.

So, as I say, I have amendments which seek to expand that definition of close family members. However, I am happy to discuss this issue of protected relationships in toto, and I am not going to divide on every one of the clauses, but I will speak to the other aspects of my amendment.

Before I do that, there is one slight omission from the list that I put in—and that has been circulated—in my eagerness to get some of these extended family members included. Accidentally, brothers and sisters were left out, so I have put them back in, and I thank parliamentary counsel for their assistance with that. So there is an amendment to my amendment, but it is one that we will get to later. It is not the one that I am moving as the test now.

The other area in which I want to expand the list of protected relationships is in the area of Aboriginal people and their extended kinship ties. My amendment No.37 basically includes, as a protected form of relationship, the following:

in the case of persons who are Aboriginals or Torres Strait Islanders—one is held to be related to the other according to Aboriginal kinship rules, or Torres Strait Islander kinship rules, as the case may require;

That is not a novel provision. It is included in other legislation in South Australia. It is legislative recognition of the fact that people are close to, have enduring attachments to, and are influenced by people other than their direct blood relationships. The classic case, I think, in relation to Aboriginal people would be the aunties. We often hear about the aunties. Who has not been to a conference where an aunty has come along and given us the welcome to country? That welcome to country by an aunty might mean something for non-Aboriginal people but, for people who are Aboriginal or Torres Strait Islander, these extended kinship relationships are important.

Again, the question would be: what benefit is it to society to effectively outlaw these types of relationships and not include them in the list of protected relationships? Often the influence that is going to turn around someone's life, especially younger people, and help them get back on the straight and narrow, will be these communications and contacts with their extended kinship group. So, my amendment seeks to incorporate that principle back into this legislation.

We will hear from the minister shortly. The minister has some amendments to this section as well in relation to the protected family relationships. They do not go as far as I would like to go, but I am happy to hear from the minister as to why he believes that is sufficient. That is what I will say for now, and I look forward to hearing other members' contributions.

The Hon. P. HOLLOWAY: Clause 35(6) of the bill excludes from consideration for the new offence of criminal association certain types of associations. These are listed in paragraphs (a) to (f) of clause 35(6). The first categories set out in paragraph (a) are associations between close family members. Both the Hons. Mr Parnell and Ms Kanck have placed on file amendments to replace the concept of 'close family member' with that of 'prescribed relationship'.

Currently, clause 35(11) provides that a person is a close family member of another person if one is a spouse or domestic partner of the other; one is a parent, step-parent or grandparent of the other; one is a child, step-child or grandchild of the other; one is a guardian or carer of the other; or one is a brother, sister, step-brother or step-sister of the other. As the Hon. Mark Parnell has said, I have circulated an amendment which slightly changes that, and we will come to that when we discuss subclause (11).

Under Mr Parnell's amendments, 'prescribed relationship' is defined to include, first, relationships in which one person is held to be related to another under Aboriginal or Torres Strait Islander kinship relationship rules; and, secondly, these relationships include spouses or domestic partners, parents or grandparents (whether by blood or marriage), uncles or aunts (whether by blood or marriage), first cousins (whether by blood or marriage), guardians or carers, and boyfriends or girlfriends (but there must be a degree of intimacy that extends beyond friendship).

The government opposes these amendments. The term 'held to be related to the other' under Aboriginal or Torres Strait Islander kinship rules is not defined, and it is far from clear in a workable sense how far it extends. The government does not support such a broad and uncertain exemption in an offence provision, nor does it support treating Aboriginal and Torres Strait Islander people differently under the criminal law.

As to the other categories of prescribed relationship proposed by the Hon. Mr Parnell, spouses or domestic partners are already in the list, as are parents, grandparents, uncles, aunts and first cousins, whether by blood or marriage. The government opposes expressly extending exempt family relationships this far. Guardians or carers are the same as the current provision. With boyfriend or girlfriend there must be a degree of intimacy that extends beyond friendship. the government considers this to be too vague. Honourable members should note that, except in relation to members of declared organisations, persons who are subject to control orders and persons with convictions of prescribed kinds, the defence of reasonable excuse applies to prosecutions for the offence. This means that associations between aunts, uncles, first cousins or any relative may be excluded by the court. The government's position is that the categories of close family member are broad enough and, when combined with the defence of reasonable excuse, provide adequate protection to innocent people.

Let us be realistic about how this measure will operate. Police have limited resources. It is very expensive. There will be a lot of work and expense involved in getting one of these orders. Why would you target somebody's girlfriend? Why would you bother pursuing a relationship like that? If these control orders come into place I am sure the police will have more than enough to do dealing with people whose relationships or criminal associations ostensibly are for criminal purposes. If there is some doubt, if it is just a relationship, why would the police waste their time doing it? Similarly, even earlier when we talked about 'the not less than six occasions during a period of 12 months', if its considered marginal why bother?

There will be enough for the police officers to do, with enough expense and work before the courts to deal with cases that are clear cut to worry about these marginal cases. That is important to consider. These are the protections—the absolute exclusions—but beyond that the police will not pursue the sort of relationships that are marginal but, on the other hand, if there are these associations which their observations strongly suggest are for criminal purposes, then of course they will be and should be the priorities.

The Hon. A. BRESSINGTON: I do not support the amendment. Most of the people coming to me from where I live in the northern suburbs have a real issue with motorcycle gang members recruiting young people into their groups. One of the most disturbing stories I heard was from a mother who came to me whose 13 and 14 year old daughters were supposedly the girlfriends of one of these motorcycle guys, of whom we have many out in the northern suburbs. The 14-year old girl was pregnant to this man and was also prostituting for him and selling drugs at the Munno Para shopping centre. If you start to include girlfriend and boyfriend, these minors claim black and blue that they are the girlfriend of this guy, that it is all okay, mum knows and it is fine, but it is not. As soon as we start to get into this we may as well rip up the bill and absolutely forget about it.

I do not think the Hon. Sandra Kanck or Mark Parnell have a glimpse of how these guys operate and run their daily lives, wreaking havoc on good, law-abiding families that are doing nothing more than trying to keep their kids safe. We do not have harbouring laws in this state, so the parents have absolutely no legal foot to stand on to have their children removed from these people and returned back to their families. This is not a one-off thing; this is happening a lot. If they had a concept of that, they would not even propose this.

The Hon. S.G. WADE: My question to the minister is to clarify my understanding of how the provision would operate. The Hon. Mark Parnell used terms the gist of which was basically that these relationships provide a guaranteed exemption.

The Hon. M. Parnell: Some level of protection.

The Hon. S.G. WADE: Yes; some level of protection. Certainly, people have been using the word 'exemption', and I think that that is misleading. My reading of it is that it is more in the form of a rebuttable presumption of a reasonable excuse, and I ask the minister to confirm that. At the beginning of subclause (6) it provides that 'The following forms of associations will be disregarded for the purposes of this section'. It does not stop there but goes on to provide 'unless the prosecution proves that the association was not reasonable in the circumstances.' It then goes on to set out in paragraphs (a) to (f) a series of circumstances, which are put in the category of rebuttable presumption.

Then, in subclause (7), there is a general reasonable excuse. So, my understanding of the provision is that, in respect of a significant relevant relationship, such as all of those miscellaneous relationships that have been referred to by the Hon. Mark Parnell (and I am not belittling any of them), that is, if the court was to receive evidence of those and it was sufficient to be a foundation of reasonable excuse, they would have exactly the same protection as those specified under subclause (6). It is just that we would give people more upfront confidence that their relationship will be recognised if it is under subclause (6), paragraphs (a) to (f).

The Hon. P. HOLLOWAY: Effectively, what this does is to shift the burden of proof. As I said earlier, the other protection against this is that the police are scarcely likely to pursue cases that are marginal from the point of view of the court. As I have said, there will be more than enough hard cases, where there is a clear criminality behind the relationship. Obviously, they will be the cases that will be targeted because they will be the ones that are the easiest to prove—they will be the ones that will be the most important from a police perspective to knock on the head.

These sort of marginal relationships the Hon. Mark Parnell talked about are scarcely likely to be as important. We are talking about the offence of criminal association, which is scarcely likely to be as important if it is an assumed girlfriend/boyfriend-type relationship. As the Hon. Ann Bressington said, if it is clearly just a front to get around the law and there is evidence that, in fact, it is really a criminal relationship, as well as a private relationship, that is where the prosecution can prove the association. However, they will to try to do that only if it is clearly in the public interest to pursue that to try to break the association.

The whole purpose of this bill, and this clause in particular, is to break up the influence of these organisations. It is the associations with people combined with their codes of secrecy, intimidation of witnesses, and all that sort of thing, that gives them their power. If you can break that up, you can do something about these organisations. But, really, to use this particular offence in a sort of marginal case will not assist the police or the community, and that is why I think it is unlikely to be used. In any case, we have included these extra provisions, as we properly should have.

The Hon. SANDRA KANCK: I indicate Democrat support for this amendment. I have an identical amendment on file and, like the Hon. Mark Parnell, I have some consequential amendments. In fact, having looked at the Hon. Mark Parnell's amendments compared with mine, I think his amendments are better than mine because of the extra categories he includes in his amendment, particularly cousins, boyfriends and girlfriends, which my amendments do not include.

The reason I have my amendments on file in this particular matter and the reason I am supporting the Hon. Mark Parnell is that, at this point, the bill is defining issues of kinship, that is, a close family relationship. The problem for me is what this means for Aboriginal people. We know that Aboriginal people are over-represented in our justice system, and we also know that their family structures are different from ours.

The consequence of going ahead and bulldozing things through in the way the government wants is that this will impact a lot harder on Aboriginal people than it will on the rest of the population. The minister seemed to be suggesting that this would give the Aboriginal people favourable treatment. However, I would also suggest that these are amendments that would be supportive also of many battlers and people in working families, people who have blended families, and so on. Many of those people are more likely to run aground in our criminal justice system, and we need to take that into account in dealing with this.

The minister said, 'Why would you bother?' Well, I remind members (and I have done it a number of times in this debate, and I will keep doing it) of the Haneef affair, where the person he was associating with was his cousin. If we do not have provisions like this, we face the potential for a miscarriage of justice similar to what almost happened to Mohammad Haneef.

The Hon. S.G. WADE: The opposition commends the government for picking up some positive elements in the amendments moved by the crossbench MPs; we believe there were some good ideas there. In that context, we prefer the government's amendment, particularly in the context of our understanding of the way in which the bill will work, which is that no relevant positive relationship will not be relevant for establishing reasonable excuse for the association. We hope, and we will certainly be watching to ensure, that there will be no inappropriate infringement on free association.

The Hon. M. PARNELL: I will be very brief. We are assisting the committee, I think, by effectively discussing several of my amendments, an amendment to my amendment, and the Hon. Sandra Kanck's amendment, as well as the minister's amendment, all at once. I think we need to do this—

The Hon. P. Holloway: I haven't moved mine yet.

The Hon. M. PARNELL: No; we are anticipating. I want to put on the record that the words I have used in describing Aboriginal and Torrens Strait Islander kinship relationships come out of the South Australian Children's Protection Act. In fact, the existence of those concepts in the act shows that they are regarded as important enough forms of relationship to describe in legislation, the purpose of which is to protect children. Therefore, they are recognised relationships.

The second thing I want to say is that the minister, I think quite reasonably, says he has trouble imagining why police would be chasing the more distant relationships; they will be looking for the key villains rather than people on the periphery. I hope that is the case, but I need to point out that subclause (9) makes it very clear. It provides:

For the avoidance of doubt, in proceedings for an offence against this section, it is not necessary for the prosecution to prove that the defendant associated with another person for any particular purpose or that the association would have led to the commission of any offence.

In other words, it is the fact of the association itself which is absolutely enough to trigger these provisions. Subclause (6), which lists what I call the protected relationships, includes the words 'was not reasonable in the circumstances'. There is some small level of protection in those words, but let us be clear here. When we are talking about the cousins, if they are getting together to plan crime then they are caught—and you might say, 'So they should be.' However, if the cousins are not planning crime, but were just getting together—

The Hon. Sandra Kanck: For a birthday party.

The Hon. M. PARNELL: —for a birthday party, as the Hon. Sandra Kanck says, they may be able to convince a judge that they had a reasonable excuse. However, the police just need to point to subclause (9) and say, 'We don't have to prove that they were actually doing anything wrong, that they were planning crime. They should not have been getting together; it is a criminal association.' I am keen to nip this in the bud by adding clarity to the legislation, and I wanted to put those points on the record before we proceeded.

The Hon. R.D. LAWSON: Could the minister place on record the reason the offence in clause 35(1) was not framed as follows: 'A person who associated without reasonable excuse on not less than six occasions...', etc.? Why was that not the preferred formula; why was the formula contained within the bill preferred?

The Hon. P. HOLLOWAY: I am advised that it was more to do with the structure of this clause, which provides that, 'A person who associates on not less than six occasions during a period of 12 months with a person...is guilty of an offence.' If you put 'without reasonable excuse' prior to 'on not less than six occasions' that would change the emphasis. It would mean that the six in 12 was reasonable rather than each individual occasion. So, I am advised that it would change the construct of the clause.

The Hon. R.D. LAWSON: I would have thought that the purpose was to ensure that prosecution did not have the onus of showing an absence of reasonable excuse. However, the minister has provided Hansard with an explanation, which goes on the public record.

The Hon. P. HOLLOWAY: The government's intention was always that the onus would fall on the defendant. However, the honourable member is correct; if it had been expressed in that way, without anything additional, then it would have put the onus on the prosecution. That was not the government's intention.

The committee divided on the amendment:

AYES (2)

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

NOES (19)

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

Majority of 17 for the noes.

Amendment thus negatived.

The Hon. SANDRA KANCK: I move:

Page 21, after line 10 [clause 35(6)]—After paragraph (c) insert:

(ca) associations occurring in the course of a charitable event or activity;

There is a list of associations that are to be disregarded by police when they are working out whether or not a criminal association has occurred. They are as follows:

(a) associations between close family members;

(b) associations occurring in the course of a lawful occupation, business or profession;

(c) associations occurring at a course of training or education of a prescribed kind between persons enrolled in the course;

(d) associations occurring at a rehabilitation, counselling or therapy session of a prescribed kind;

(e) associations occurring in lawful custody or in the course of complying with a court order;

(f) associations of a prescribed kind.

I do not know what the government has in mind for 'associations of a prescribed kind'. It may be that the government is intending to include an exemption for the annual toy run—I do not know that. It is missing, and we are going to have to wait and see what the government intends by 'associations of a prescribed kind'.

I will ask the minister, when he responds, to let us know what 'associations of a prescribed kind' are, because when I asked yesterday about regulations he indicated that they were in preparation, and I think he said that probably within about a month or so they would be completed. So, they must have some idea of what 'associations of a prescribed kind' are.

What my amendment does is specify associations occurring in the course of a charitable event or activity, and I do have in mind the annual toy run which occurs each year in December. That raises money and toys that are given to the St Vincent de Paul Society each year. I understand that last year about $300,000 worth of toys was contributed to St Vincent de Paul as a consequence of this activity. I think it is an important activity and one that needs to be continued. I will leave it at that.

The Hon. P. HOLLOWAY: This amendment will add to the list of excluded associations in clause 35(6) of the bill; associations occurring in the course of a charitable event or activity. The government is opposed to this. We question the extent to which the members of criminal motorcycle gangs have contributed positively to charitable events in the past, maybe other than the occasional toy run. It is my understanding that there are hundreds of motorcyclists involved in that and I think it is organised under the auspices of the Motorcycle Riders Association. If there are outlaw motorcycle gangs participating in it obviously, given their numbers, they are a very small part of it.

The inclusion of this amendment has the potential to see all future criminal motorcycle gang convoys advertised as charitable events with some monetary contribution made by the gang or its members to a legitimate charity in order to circumvent the legislation. Alternatively, and from the government's point of view, a far worse outcome is that we could see bona fide charitable events used by criminal gang members and their associates to meet and congregate, to avoid it. That is why we are opposed to this measure.

The Hon. SANDRA KANCK: Even though the minister is indicating opposition to this, I would still like to know, in terms of the toy run, if members of outlaw motorcycle gangs do turn up the toy run will go ahead and there are thousands of bike riders who will participate in it. The minister has said that only a small number of those bike riders will be banned. Is this an event that the police would make public safety orders around in order to prevent outlaw motorbike gangs from attending?

The Hon. P. HOLLOWAY: That is really a hypothetical question. We have already debated the section on public safety. Does it have to be a threat to public safety to make a public safety order? There would have to be strong reasons for doing so. I must admit that I have not asked but I am certainly not aware of any incidents in past toy runs which would warrant the police considering those sorts of orders. However, I suppose it is not inconceivable.

If there is a risk to public safety in terms of the act then I suppose the police would consider using the measure, but I think the honourable member could ask that about any one of a hundred events. I think it is a bit mischievous to try and suggest that one particular event somehow or other would be targeted.

The Hon. SANDRA KANCK: Assuming that members of these prescribed organisations will turn up at the toy run in December this year, if a member of the Gypsy Jokers bumps into another member of the Gypsy Jokers at the toy run, will this be listed against them as evidence of criminal association?

The Hon. P. HOLLOWAY: I guess it could be but, first of all, I do not know whether that is a priority for the police. I think the police involved with that run are more concerned with people participating in the run behaving safely and enjoying the day—it is not ostensibly for criminal purposes. However, knowing the way that criminal outlaw motorcycle gangs operate, it might very well be the sort of event that they might try to utilise for other purposes. One could just as easily talk about any one of a number of other events that they may attend. If they are associating for criminal purposes then I guess that might come under it. They might will be using this as a cover for doing something, but that can be judged on the facts.

If the honourable member is trying to suggest that, in some way, the ordinary person who rides a motorcycle is somehow or other going to be the target of direct and deliberate police surveillance then, in that sense, I reject that notion.

Amendment negatived.

The Hon. SANDRA KANCK: I move:

Page 21, line 16 [clause 35(7)]—Delete 'but subject to subsection (8)'.

The Hon. SANDRA KANCK: This amendment is in anticipation of my next amendment which is to delete subclause (8). Clause 35(7) says that the court can disregard the accusation of criminal association if the defendant proves that he or she had a reasonable excuse for the association. That is a good thing. However, it has a rider which says this only applies if the defendant was not doing what is said in subclause (8), which provides:

In proceedings for an offence against this section, subsection (7) does not apply to an association if, at the time of the association, the defendant: (a) was a member of a declared organisation; or (b) was a person the subject of a control order; (c) had a criminal conviction against the law of the state or another jurisdiction of a kind prescribed for the purposes of subsection (3).

So, on the one hand, subclause (7) is saying that you or I, in the course of our duties, will not be charged with criminal association with the defendant, but then when we get to paragraphs (a), (b) and (c) of subclause (8) they basically turn it around. So, in the end it is not any real protection, hence my amendment to remove that reference to subclause (8) in subclause (7).

The Hon. P. HOLLOWAY: This is an amendment that follows a part of a series, and I suggest that we treat this as a test. Subclause (8) provides that the defence of reasonable excuse to the new offence of criminal association does not apply to:

(a) members of a declared organisation; or

(b) persons who are subject to a control order; or

(c) persons with a conviction of a prescribed kind.

Ms Kanck's amendment deletes this subclause from the bill. The government opposes the amendment. The new offence of criminal association complements and supports the control order provisions. It is aimed at breaking up not only declared organisations but also breaking up associations between members of declared organisations, and non-members, and particularly members of juvenile street gangs.

SAPOL advises that to insulate their criminal activity from law enforcement, criminal motorcycle gangs are increasingly relying on non-members to commit offences. Gang members actively recruit the services of members of lesser-known street gangs and use them to undertake high risk aspects of their criminal enterprises, including violence, carrying weapons and the manufacture and distribution of illegal drugs.

Clause 35(8) was included in the bill on the advice of SAPOL. SAPOL advises that the offence of criminal association, a key part of the government's strategy, would be rendered ineffective because criminals—members of declared organisations, those who are subject to a control order and those who have convictions of a prescribed kind—would be able to use the defence to hide associations that have a criminal purpose. The government accepts SAPOL's advice.

The Hon. M. PARNELL: Can the minister clarify this, just so that I fully understand it? It seems to me that the effect of subclause (8) is to say that it does not matter if you have a reasonable excuse or not: you are pinged if you have this criminal association. It just removes the possibility of a reasonable excuse. It says, 'Without derogating from subclause (6)', but subclause (6) has a rider saying, 'unless the prosecution proves that the association was not reasonable in the circumstances.' So, I want to know how these phrases work together. 'Was not reasonable in the circumstances' is still in, but 'reasonable excuse' is now out. How do the two work together?

The Hon. P. HOLLOWAY: What it effectively means is that a member of a declared organisation, a person subject to a control order or a person with a prescribed kind of criminal conviction has the benefit of clause 35(6) in terms of the associations that will be disregarded, unless, of course, the prosecution proves that the association was not reasonable in the circumstances. So, they have that protection, but they do not have the protection of subclause (7).

The Hon. M. PARNELL: I really need to clarify this. They have the advantage of subclause (6), so let us just pick subclause (6)(a), the family members, and let us say it is a brother. They have the advantage of saying, 'I can't be had for criminal association because it is my brother but, because I'm a member of a declared association, I cannot rely on the defence of reasonable excuse; but the police still have to prove that it was not reasonable in the circumstances.' I just do not see how they fit together.

The Hon. P. HOLLOWAY: Prima facie associations between close family members are excluded under clause 35(6)(a). However, the prosecution may be able to prove that the association was not reasonable in the circumstances, whereas subclause (7) is a general defence of reasonable excuse. Subclause (7) operates independently of subclause (6), but subclause (7) cannot be used by those people referred to in subclause (8); that is, members of declared organisations, etc.

Amendment negatived.

The Hon. SANDRA KANCK: I move:

Page 21, lines 26 to 29—Delete subclause (9)

This is a very important amendment, because it is characteristic of this bill in that we have here an example of guilty until proven innocent. We have gone through a lot of discussion so far today about criminal associations.

For example, when I asked questions about church volunteers and so on, I was told by the minister that it would be a defence to the court that they were not associating for criminal purposes. However, subclause (9) provides:

For the avoidance of doubt, in proceedings for an offence against this section, it is not necessary for the prosecution to prove that the defendant associated with another person for any particular purpose or that the association would have led to the commission of any offence.

So, here we have it: guilty until proven innocent. The person concerned, who has had an association, must prove their innocence to the court—unlike the way it has been done for centuries. In this case, I know that the minister will argue that it is not a charge per se but merely criminal association. I am sure that that is what he will argue. However, effectively they will have been charged, and the defendant must prove their innocence. That is what this clause provides. It goes against the best of all we have created in our justice system in this state and in this country. This is really an appalling provision.

The Hon. P. HOLLOWAY: Subclause (9) provides that, for the avoidance of doubt, in proceedings for the offence of criminal association it is not necessary for the prosecution to prove that the defendant associated with the other person for any particular purpose or that the association would have led to the commission of any offence. The Hon. Ms Kanck's amendment would delete that subclause, and the government opposes it.

The offence of criminal association replaces the offence of consorting which, likewise, does not require there to be any proof that the consorting was criminal in nature. The purpose of this offence, as is the case with the offence of consorting, is not to prevent the commission of a particular offence: it is to prevent criminal relationships forming and existing, for example, the association between members of criminal motorcycle gangs and members of juvenile street gangs. These associations foster crime and aid recruitment by criminal motorcycle gangs.

Removing subclause (9) will leave open the possibility that courts will interpret the offence provision as requiring proof of criminal intent or purpose, and that is obviously Ms Kanck's intention. This would impose an impossible evidentiary burden on the prosecution. It would turn the offence into something akin to conspiracy and undermine its effectiveness. In short, we might as well give the bill away.

The Hon. M. PARNELL: I support the amendment, but I also accept what the minister says, namely, that it cuts to the heart of what the government is trying to do. I just believe that what the government is trying to do is wrong.

Members interjecting:

The Hon. M. PARNELL: No; this bill, as the Attorney-General keeps telling us, is so important that we are doing our job and giving it thorough scrutiny. This provision provides that the fact of the association is enough; you do not have to prove that they were doing anything. All of us can probably remember as children that, if we got a smack, we might have said, 'I didn't do it,' and the response was, 'Well, you probably did something in the past I didn't know about, and you're probably going to do something in the future, so we're going to punish you.'

It seems to me that that is the analogy here: the prosecution does not have to prove any particular purpose (and I guess that planning crimes would be a particular purpose), and it does not have to prove that the association would have led to the commission of any offence. If this bill is about preventing crime, yet one of its key provisions does not require the prosecution even to draw any connection between crime and the people who are the subject of this consorting clause, I think that we have missed the point.

The whole premise of the government's bill seems to be that we have bad people and, once we have determined that they are bad, we will make sure that they do not talk to each other, because they will probably do bad things. I talked about the speed dating clause, and this is the Santa clause: he's making a list, he's checking it twice and he's going to know who is naughty or nice. That is what this is about.

Once you have labelled someone as bad because of their membership, their history or their past membership, there is no escape from it. The government does not need even to prove that they are still involved in planning or committing crime: their history and their status are sufficient. I think that this subclause deserves to be opposed.

The committee divided on the amendment:

AYES (2)

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

NOES (19)

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

Majority of 17 for the noes.

Amendment thus negatived.

The Hon. SANDRA KANCK: My amendments Nos 31 to 34 are consequential.

The Hon. M. PARNELL: I want the record to show what my amendments were, so I am going to move them but not speak to them and not divide on them. I said I would take it as a test clause, but I would like the record to show what my amendments are because they make no sense out of context. I move:

Page 21, line 41 [clause 35(11)(b)]—Delete 'a close family member of' and substitute:

in a prescribed relationship with

Amendment negatived.

The Hon. M. PARNELL: This amendment is the same. I will not speak to it but would like it on the record. I move:

Page 22, before line 1 [clause 35(11)(b)]—Before subparagraph (i) insert:

(ai) in the case of persons who are Aboriginals or Torres Strait Islanders—1 is held to be related to the other according to Aboriginal kinship rules, or Torres Strait Islander kinship rules, as the case may require; or

Amendment negatived.

The Hon. M. PARNELL: I move this in an amended form. I will not speak to it but would like it recorded in its amended form. I move:

Page 22, lines 1 to 5 [clause 35(11)(b)(i) to (v)]—Delete subparagraphs (i) to (v) and substitute:

(i) in any case—

(A) 1 is a spouse or domestic partner of the other or is a former spouse or former domestic partner of the other; or

(B) 1 is a parent or grandparent of the other (whether by blood or by marriage); or

(Ba) 1 is a brother or sister of the other (whether by blood or by marriage); or

(C) 1 is an uncle or aunt of the other (whether by blood or by marriage); or

(D) 1 is a first cousin of the other (whether by blood or by marriage); or

(E) 1 is a guardian or carer of the other; or

(F) 1 is a boyfriend or girlfriend of the other (provided that a person will only be taken to be a boyfriend or girlfriend of another person for the purposes of this subparagraph if the relationship between the 2 people involves a degree of intimacy that extends beyond mere friendship).

The Hon. P. HOLLOWAY: I move:

Page 22, lines 1 to 5 [clause 35(11)(b)(i) to (v)]—Delete subparagraphs (i) to (v) and substitute:

(i) 1 is a spouse or former spouse of the other or is, or has been, in a close personal relationship with the other; or

(ii) 1 is a parent or grandparent of the other (whether by blood or by marriage); or

(iii) 1 is a brother or sister of the other (whether by blood or by marriage); or

(iv) 1 is a guardian or carer of the other.

Government amendments Nos 1 and 2 of series 2 relate to the same matter, and I suggest that amendment No.1 be treated as a test for both.

As honourable members will have noted, associations between close family members are excluded from consideration in proceedings for the new offence of criminal association. The term 'close family member' is defined in clause 35(11) and includes where one person is a spouse or domestic partner of the other. Relevantly, 'domestic partner' is defined to mean a person who is a domestic partner of another within the meaning of the Family Relationships Act 1975, whether declared as such under that act or not.

The term 'domestic partner' is defined in section 11A of the Family Relationships Act and requires not only that the relevant person be living at the relevant date in a close personal relationship but also that they have done so for at least three years, or three out of the preceding four years, or that there is a child of the relationship. The government concedes that this is too narrow and would, in the absence of a declaration under section 11B of the act, rule out genuine relationships that have existed for less than three years, or three out of the four years, where there is no child of the relationship. This amendment therefore replaces 'domestic partner' in the definition of 'close family member' with a person who is or has a close personal relationship with the other person.

The term 'close personal relationship' is also defined in the Family Relationships Act in section 11 and means the relationship between two adult persons, whether or not related by family and irrespective of their gender, who live together as a couple on a genuine domestic basis (not including marriage or relationships) where one party provides domestic support or care for a fee or reward. A relationship that is the subject of a declaration under section 11B of the Family Relationships Act would also be covered.

The amendment also adds to the list associations between former spouses or between people who were but no longer are in a close personal relationship, and extends each of the relevant categories to cover relationships by blood and marriage. This amendment covers matters raised by both the Hon. Mark Parnell and the Hon. Sandra Kanck in their amendments. The government agrees that such associations are quite properly included within the list of protected family associations in clause 35(11).

The Hon. M. PARNELL: I support this amendment but, as would be clear to members, I do not believe that it goes far enough. I acknowledge that the government has moved in the area of personal relationships and also has moved to extend the definition of family relationships from simply blood relationships to in-law relationships.

I think the importance of this amendment—and I am disappointed that the Attorney, who was in the gallery, has now left—is that it shows that the amendments that have been put up by the crossbench are serious amendments that have triggered the conscience of the government to make improvements to its legislation. The amendments that we have been putting up have been serious amendments. They have not been mickey mouse amendments and they have not been time-wasting amendments. They have been serious amendments, and it is good to see that at least one of them has found its way through the process of government into some ministerial amendments, and I think this softens some of the provisions of the bill. It takes the hard edge off the criminal association provisions. Whilst I say they are not perfect and that we should have gone further, I will accept them for what they are: a slight improvement on the status quo.

The Hon. SANDRA KANCK: I indicate Democrat support for these amendments. They do not go far enough in my view, and it is ironic that with the number of media interviews I have done on this bill in the past month that a number of journalists were told by people in the Attorney-General's office that the delay was because the government was preparing its own technical amendments. It is amazing, therefore, to think that we have had the bill on hold for three consecutive sitting weeks so this could be prepared. Nevertheless, it is an improvement on the bill itself, albeit not a massive improvement, and may stop some miscarriages of justice and therefore the Democrats will support it.

The Hon. M. Parnell's amendment negatived; the Hon. P. Holloway's amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 22, lines 7 and 8 [clause 35(12), definition of domestic partner]—

Delete the definition of domestic partner and substitute:

close personal relationship has the same meaning as in Part 3 of the Family Relationships Act 1975;

This amendment is consequential on the previous amendment and inserts the definition of 'close personal relationship', taken from the Family Relationships Act, into clause 35(12) of the bill.

Amendment carried; clause as amended passed.

Clause 36 passed.

Clause 37.

The Hon. SANDRA KANCK: I move:

Page 22, lines 31 to 35—Delete subclause (1) and substitute:

(1) The Attorney-General must, before 1 July in each year (other than the calendar year in which this section comes into operation), appoint a retired judicial officer to conduct a review—

(a) to determine whether powers under this act were exercised in an appropriate manner, having regard to the objects of this act, during the period of 12 months preceding that 1 July; and

(b) to otherwise consider the operation and effectiveness of this act.

The bill provides that the Attorney-General will appoint a retired judicial officer to conduct a review to determine whether powers under this act were exercised in an appropriate manner. I am okay with that although, as members know, last night I indicated that I really would have liked the Legislative Review Committee to look at it, but that effectively got knocked on its head. My amendment adds another part to that so that not only will the retired judge look at whether the powers were exercised in an appropriate manner, but my amendment would require that retired judge to look at the operation and effectiveness of the act overall. That is a very sensible measure, seeing as so much is turned on its head within our justice system as a consequence of this legislation.

The Hon. P. HOLLOWAY: Clause 37 of the bill requires the Attorney-General to each year appoint a retired judge to conduct a review to determine whether in the preceding 12 months the powers under the act were exercised in an appropriate manner, having regard to the objects of the act. This amendment amends clause 37 to also require the judge to review the operation and effectiveness of the legislation every year. The government opposes this amendment. Until declarations have been sought and if successful made against the main criminal organisations in South Australia, SAPOL will be constrained in terms of the number of control order applications it can make to the court. Likewise, until and unless declarations are made against the main criminal organisations and control orders obtained against the leading members of the organisations, the new offence of criminal association will have little impact on the relevant criminal associations.

Although the government is confident the measures in this legislation will impact upon the criminal activities of the members and associates of the relevant criminal organisations (assuming the bill is passed intact), it will not be possible to determine within 12 months, as this amendment requires, whether and to what extent the measures contained in the Serious and Organised Crime (Control) Act have been effective in breaking up criminal organisations and disrupting their activities. Clause 38 of the bill requires the Attorney-General to conduct a review of the operation and effectiveness of the act five years after its commencement. This is a more appropriate time frame. The government's position is that the retired judicial officer appointed under clause 37 should focus his or her attention on whether the powers exercised under the legislation have been exercised appropriately and in a manner that conforms with the parliament's intention. That is why clause 38 provides for a separate review by the Attorney-General.

The Hon. M. PARNELL: I support the Democrat amendment, which is a sensible amendment to an important clause in relation to the oversight of the legislation. The honourable member's amendment provides for a greater level of scrutiny than does the government's existing provisions.

The Hon. R.D. LAWSON: Liberal members will support this amendment. It is important that the review provisions of this act be strengthened in the manner suggested. We are delighted that the government has acknowledged the important role of the Legislative Council by itself introducing necessary amendments to ensure that the bill operates effectively. We hope the government will support this small but significant amendment.

The Hon. D.G.E. HOOD: Family First opposes the amendment.

Amendment negatived; clause passed.

Clause 38.

The Hon. R.D. LAWSON: On behalf of the Hon. Mr Wade, I move:

Page 23, line 12 [clause 38(1)]—Delete 'fifth' and substitute 'fourth'

This simple amendment reduces from five to four years the time for the undertaking of the review. The current clause provides that the Attorney-General must, as soon as practicable after the fifth anniversary, conduct a review of the operation and effectiveness of the act. We believe that four years is a more appropriate time for this review to be undertaken. After the fifth anniversary of the commencement, the review will be put out to 2013; we believe it would be far more appropriate to have the review after four years.

The Hon. M. PARNELL: I will not be moving my amendment to clause 38, but I advise that I support the Liberal amendment.

The Hon. P. HOLLOWAY: This amendment will reduce from five years from commencement to four years from commencement the date by which the Attorney-General must conduct a review of the operation and effectiveness of the act. It is really consequential upon Hon. Mr Wade's fourth amendment, which reduces the sunset period clause in clause 39 from 10 years to five years. The government opposes the amendment, which I guess should be treated as a test amendment for his next amendment, which is the sunset clause.

Although the measure in the bill 'Declarations, control orders, public safety orders' and the new offence of criminal association can be used in isolation from one another, the legislation is intended for criminal organisations and their members; indeed, the legislation will work most effectively against criminal organisations and their members if the measures are used in conjunction with one another. That is how the government intends the legislation to be used.

I have already advised members why the government believes that a 10-year sunset period is appropriate. However, I will add that, although the government is confident that the measure in this legislation will impact upon the criminal activities of the members and associates of the relevant criminal organisations, to suggest that the job will be done within five years, or that a definitive judgment on the effectiveness of the legislation will be able to made at that time, is, the government believes, overly optimistic.

The risk in reducing the sunset clause to five years is that any gains made against organised crime will be lost if the legislation is repealed at that time. The 10-year sunset period is one of three review measures aimed at ensuring that the powers in this legislation are used properly and that, when so used, they are effective.

As I have said, the three review mechanisms are designed to work together, that is, an annual review of the use of the powers under the legislation; a review of the operation and effectiveness of the legislation after five years, each with parliamentary oversight; and the expiry of the legislation itself after 10 years. The government believes this is appropriate, and it opposes this amendment and the amendment to reduce the sunset period to five years.

The Hon. R.D. LAWSON: I indicate that the minister is correct in assuming that this is the first part of two amendments, the second of which is to shorten the sunset period from 10 years to five years. In supporting this bill, we have every expectation that, at the conclusion of the first five years, the act will be renewed; in fact, if we thought it would be repealed or would not work, we would not have supported it.

However, there would be many in the community who would be concerned, and some other members have outlined their concerns. We believe those concerns are ill-founded, but the proof of the pudding is in the eating and, if, within the first five years, this bill is found to have been effective or, certainly, found not to have had the deleterious effects that have been described, the parliament will renew it for a further period.

Members will recall that the terrorism legislation has similar sunset clauses and, for that reason, we are proposing a five-year sunset clause. If there is to be a five-year sunset clause, it is appropriate that the Attorney should report on the operations before the expiration of that five-year period. It is for that reason that we are proposing the amendment before the committee.

The Hon. SANDRA KANCK: I will address what the Hon. Mr Lawson has said. He requires this review to occur at a shorter interval (I think that is probably the best way to put it), and I certainly support a review occurring much sooner than is anticipated in the act.

The committee divided on the amendment:

AYES (12)

Bressington, A. Darley, J.A. Dawkins, J.S.L.
Kanck, S.M. Lawson, R.D. (teller) Lensink, J.M.A.
Lucas, R.I. Parnell, M. Ridgway, D.W.
Schaefer, C.V. Stephens, T.J. Wade, S.G.

NOES (9)

Evans, A.L. Finnigan, B.V. Gago, G.E.
Gazzola, J.M. Holloway, P. (teller) Hood, D.G.E.
Hunter, I.K. Wortley, R.P. Zollo, C.


Majority of 3 for the ayes.

Amendment thus carried; clause as amended passed.

Clause 39.

The Hon. S.G. WADE: I move:

Page 23, line 23—Delete '10 years' and substitute:

5 years

In moving this amendment I would like to briefly outline my understanding of the alternatives before the committee. The government proposes a 10-year sunset clause for the legislation, but the opposition is of the view that this is too long in a period of such rapid change and especially in the context of concerns expressed by the Director of Public Prosecutions only yesterday that this bill was soft. We want to consider that, and we also want to consider the legislation in terms of its impact on personal freedoms, because we have concerns both that it does not go hard enough on non law-abiding citizens within our community as well as, on the other hand, that it may catch law-abiding citizens inappropriately.

We put to the committee that the 10-year sunset clause is too far out, and we propose a 5-year sunset clause. My understanding is that the Hon. Sandra Kanck, on behalf of the Democrats, is suggesting a sunset clause of 30 June 2010—which, I believe, is about 2½ years—while the Hon. Mark Parnell's amendment proposes a sunset clause two years after the commencement date. So there are four alternatives, including the government's status quo proposal of 10 years, available to the committee, and the opposition urges the committee to see the wisdom of our 5-year proposal. In our view, the alternatives of two years and two and a bit years are too short. The government and the police will need to engage in a fair amount of activity to get the act operational, including declaring organisations and so forth. So, we believe that a five-year sunset clause is appropriate.

The Hon. P. HOLLOWAY: Certainly, the government would prefer five to 10, but obviously, for the reasons I argued earlier, 10 is our preferred position. I also point out that I think that under the Subordinate Legislation Act, generally speaking, 10 years is regarded as an appropriate period for a sunset clause.

I could not let the comments of the Hon. Mr Wade go when, on the one hand, he thinks this bill might not be tough enough and therefore we need to review it, and then on the other hand, in his very next amendment, he seeks to basically allow appeals against the Attorney-General's decision, the privative clause (clause 41). As I pointed out last night, if we do that—

The Hon. S.G. Wade interjecting:

The Hon. P. HOLLOWAY: You are not moving that one? We had that debate the other day so at least—

The Hon. S.G. Wade interjecting:

The Hon. P. HOLLOWAY: That is fine; if you are not going to have that one—

The Hon. S.G. Wade interjecting:

The ACTING CHAIRMAN (Hon. I.K. Hunter): Order!

The Hon. P. HOLLOWAY: If that has gone then that is fine; that does remove one of the real risks to delay that this bill would have faced. Again, I would ask the chamber to support the 10-year view. It is consistent with subordinate legislation and it does give a sufficient period for this bill to work.

The Hon. M. PARNELL: I move:

Page 23, line 23—Delete '10 years after the date on which this section' and substitute:

two years after the date on which Part 1.

I foreshadow that I support all the amendments, and I support them in order. I think that the civil liberties that are affected by this legislation are so important that we should bring this back sooner rather than later. I think a two-year sunset clause is appropriate. If I am unsuccessful then I think the Hon. Sandra Kanck's proposal that it be two and a bit years is the next best option, and then I would support the Liberal amendment to bring it back after five years, because I do think that the government's 10-year period is too long: it is beyond the parliamentary lifespan of many of us.

By the time it comes back we will have pretty much forgotten the debate, but in five years a few of us will still be here. I think it is important that we bring such fundamental human rights legislation back to the parliament sooner rather than later. So, my fallback will be to support the Liberal position, but I would urge all honourable members to support a very rapid sunset clause of two years.

The Hon. SANDRA KANCK: I move:

Page 23, line 23—Delete '10 years after the date on which this section comes into operation' and substitute:

on 30 June 2010.

The effect of my amendment is to have this new legislation go out of existence 3½ months after the next state election. Too all intents and purposes I think it will work out as almost the exact same date that the Hon. Mr Parnell is moving, because his is two years after the legislation comes into existence, so I expect that it will be around the same time.

My reason for doing this is that this is such draconian legislation that I believe the members of the next parliament must be forced to look at it and look at it very early in their term. It is all very well for this parliament to make decisions like this and have it carry over until 2018, as the government intends, but this is a bill (an act, as it will become) that needs a lot of oversight.

The previous amendment of Mr Wade's was to bring back the review period so that it is at four years rather than five years. I still do not think that that is enough because it is such bad legislation. Under the government's proposal, as it is in the bill, 10 years takes us to 2018. We will have an election in 2010, an election in 2014 and an election in 2018, which means that by the time this legislation goes out of existence in 2018 it will have covered four different parliaments. It is quite extraordinary for a bill of this nature to have that span of existence.

I do not particularly mind whether it is the Hon. Mr Parnell's amendment or my own that gets up, because I think it is fairly much the same, but I think that either his or mine should be preferred over Mr Wade's amendment which, in turn, should be preferred over the bill in its current form.

The Hon. S.G. WADE: The Hon. Sandra Kanck seems to be talking in terms of this legislation not being considered again for two, five or 10 years. I want to clarify the opposition's position. We have indicated our significant concern that this regime will not address serious and organised crime. The Leader of the Opposition in the other place has indicated that we reserve the right to come back to this parliament well and truly before two, five or 10 years if we take the view that it needs to be fixed. We certainly will not be dilly-dallying like the government has.

The Hon. A. BRESSINGTON: I rise to say that I will be supporting the Hon. Stephen Wade's amendment of five years. Unlike the Hon. Sandra Kanck, I do not think that this is draconian legislation, considering the group of people and the fact that this is a bill that is being developed to deal with serious and organised crime. I think that there would be a lot of people (average, reasonable citizens) out there who will be happy to see that our government is at least prepared to make an attempt to get this under control and rein it in now, because we have seen over the past six to eight months that there is a pressure cooker building out there. The shootouts at Tonic nightclub and Gouger Street—

An honourable member interjecting:

The Hon. A. BRESSINGTON: Yes; it is starting to happen more and more often. I look forward to the review in five years and I look forward to knowing that I will be here for it. I am not sure that this bill is tough enough in some areas, as I have shared with the Hon. Paul Holloway. It is not a civil libertarian issue. This is about the rights and freedoms of law-abiding citizens.

The Hon. P. HOLLOWAY: To save time, I indicate that I will not divide on this. Clearly, the five years has the numbers and so I will not divide on it, although I want to make a couple of comments in relation to this bill. Inevitably, bills of this type probably will be revisited, because we know how proficient organised crime is at getting around provisions. I would like to think that we have thought of everything here and put it in, but history shows us that these people will have top legal brains at work on this legislation as soon as it gets through, to try to find loopholes.

If we are ever to get on top of organised crime we probably will be revisiting this regularly. Of course, the Attorney has to review this now after four years, with the amendment that was just carried, and its particular provisions are perused by the retired judge every year, but the legislation will be revisited. As the government has said, this is really the first stage, in effect, of its attack on organised crime. There is other legislation; we passed the firearms protection order last week and we have other drug-related legislation which will also impact, in a more peripheral way, on organised crime and, obviously, there is other legislation to come. This is by no means the last word on organised crime.

The Hon. R.D. LAWSON: I am particularly glad that this has passed, because it will be a Liberal government that will be reviewing the legislation.

Honourable members: Hear, hear!

The ACTING CHAIRMAN (Hon. I.K. Hunter): There is a lot of opinion on that comment.

Members interjecting:

The ACTING CHAIRMAN: Order! The question is: that the words '10 years' in line 23 stand as printed. If you are supporting the government you will be voting yes; if you are supporting any of the three amendments, you will be voting no. Then I will be putting the amendments as they were filed. If you were going to vote for Mr Wade's amendment you will be voting yes on that; but, if you do so, the other amendments standing in the name of the Hon. Mr Parnell and the Hon. Ms Kanck will not be considered. If you want those amendments considered you will need to be voting against the amendment of the Hon. Mr Wade. Is everybody clear? If there are no further contributions I will put the question: that the words '10 years' in line 23 stand as printed.

Question negatived.

The ACTING CHAIRMAN: The next question standing in the name of the Hon. Mr Wade is to insert the words '5 years'. Again, I remind you that if you are supporting this amendment then the amendments in the name of the Hon. Mr Parnell and the Hon. Ms Kanck will not be considered.

The Hon. S.G. Wade's amendment carried; clause as amended passed.

Clause 40 passed.

Clause 41.

The Hon. M. PARNELL: I move:

Page 23, lines 33 to 39 and page 24, lines 1 to 8—Delete clause 41

This seeks to remove the privative clause. I do not propose to again have the debate that we had yesterday on the privative clause. We agitated the issues at some length. However, I will say that I find this provision one of the most abhorrent in the legislation. I have opposed privative clauses wherever they have reared their ugly head in legislation, because privative clauses put administrative decision-makers beyond the reach of the legal process. These provisions effectively say, 'It doesn't matter if you don't follow due process; it doesn't matter if you disobey the law; no-one has any right to go to the umpire and call you to account.' That is bad law. It is bad law whether it is in the Development Act or whether it is in the Serious and Organised Crime Act. I am not going to say any more than that, but members will be pleased to know that this is the last of the amendments on which I have written the word 'divide' in capital letters. However, it is such an important issue that I do want to test the will of the council on this clause.

The Hon. SANDRA KANCK: I have a similar amendment which I will not be moving, because I will be supporting the Hon. Mark Parnell. I echo his sentiments; this clause is one of the fundamental flaws of this bill.

The Hon. P. HOLLOWAY: I oppose the amendment for the reasons I outlined yesterday: it would totally frustrate the whole purpose of the bill.

The Hon. S.G. WADE: Like the Hon. Mark Parnell, the opposition does not propose to detail the arguments we put yesterday in an earlier debate on a related matter. We indicate that we would have been attracted to a more limited privative clause. We believe that the proposal of the Hon. Mark Parnell is too expansive, but a more limited privative clause would have both facilitated the sound administration of the policing and also protected the rights of individuals. We will not be supporting Mark Parnell and we will not be moving our amendment.

The committee divided on the amendment:

AYES (19)

Bressington, A. Darley, J.A. Dawkins, J.S.L.
Evans, A.L. Finnigan, B.V. Gago, G.E.
Gazzola, J.M. Holloway, P. Hood, D.G.E.
Hunter, I.K. Lawson, R.D. Lensink, J.M.A.
Lucas, R.I. Ridgway, D.W. Schaefer, C.V.
Stephens, T.J. Wade, S.G. Wortley, R.P.
Zollo, C.

NOES (2)

Kanck, S.M. Parnell, M.

Majority of 17 for the ayes.

Amendment thus negatived; clause passed.

Remaining clauses (42 and 43), schedule and title passed.

Bill recommitted.

Clause 3.

The Hon. SANDRA KANCK: I move:

Page 5, lines 1 to 4—Delete the definition of serious criminal offences and substitute:

serious criminal offences means offences of the following kinds:

(a) an offence against Part 5 Division 2 or 3 of the Controlled Substances Act 1984;

(b) an offence against the Firearms Act 1977;

(c) an offence against section 15 or 15A of the Summary Offences Act 1953;

(d) an offence against Part 3, 5, 6A or 6B of the Criminal Law Consolidation Act 1935;

(e) an offence involving damage to property by fire or any offence involving explosives;

(f) a conspiracy to commit, or an attempt to commit, an offence referred to in a preceding paragraph;

(g) and indictable offence committed in circumstances in which the offender uses violence or a threat of violence for the purpose of committing the offence, in the course of committing the offence, or for the purpose of escaping from the scene of the offence.

If members recall, last night I had a similar amendment but I withdrew it. Although the opposition indicated that it had a preference—as I do—to have this properly defined within the legislation rather than leaving it to regulations, the minister indicated that the police believe that the amendment I moved yesterday was lacking. So, in order to cover the accusation by the police that it is lacking, I have had it redrafted.

I hope that, as a consequence of this new amendment, the opposition, who yesterday indicated its preference for this to be in legislation rather than in regulations, will now support this amendment.

The Hon. P. HOLLOWAY: I can understand why the honourable member, and others, would codify to the maximum extent possible the sort of serious criminal offences to which this would apply. However, the problem is in dealing with organised crime and outlaw motorcycle gangs. They are very mobile in terms of the sorts of crimes that they deal with.

If one looks at the list here, I am not sure whether or not it covers money laundering, which is one of the principal offences that we know bikie gangs are involved in.

We know that they are moving into telecommunications and a whole range of other things. The great risk SAPOL fears in relation to this measure, if it is carried, is that it may miss something and that what will happen is that, once you codify things and you do not have the ability to keep up rapidly by bringing in offences, it will simply shift their crime towards the loophole.

That is why I think that, if we are dealing with such a mobile crime front, as we have been with organised crime, it is necessary that we have a catch-all clause. The government's definition of serious criminal offences in clause 3 is:

(a) indictable offences (other than indictable offences of a kind prescribed by regulation); or

(b) summary offences of a kind prescribed by regulation.

Under this definition, you have the capacity to keep up with any shifts in crime trends. However, paragraph (a) removes the offence if you do not want it included, and summary offences can be prescribed by regulation. I ask the committee to support this so that, if there are any shifts in crime trends, we can keep up, rather than have to bring back the bill every time outlaw motorcycle groups or other organised crime groups shift into a different type of crime.

The Hon. D.G.E. HOOD: Family First opposes the amendment. By passing it, potential loopholes are created for serious criminals to exploit, but they are not held to account.

The Hon. M. PARNELL: The Greens support the amendment. We think that this legislation is so important that we need the parliament to provide with a level of specificity the types of offences that are covered, rather than leaving it to the executive through regulation.

The Hon. P. Holloway interjecting:

The Hon. M. PARNELL: The minister says that we can move to disallow the regulations. I have been here a short time, but I do not think that in the two years I have been here any disallowance of regulation motion has ever succeeded.

The Hon. Sandra Kanck: One has.

The Hon. M. PARNELL: I am reminded by the Hon. Sandra Kanck that one has.

The Hon. R.I. Lucas: Stick around!

The Hon. M. PARNELL: The Hon. Rob Lucas says that if I stick around I will see some more. I am sure that what he has in mind are some regulations I have moved to be disallowed that the Liberals are chomping at the bit to support. I support the Hon. Sandra Kanck's amendment. I think that it is a sensible move to put a list of the types of offences in the legislation itself, rather than leaving it to regulations.

The Hon. S.G. WADE: On this occasion, the Hon. Sandra Kanck accurately reflects the opposition's general discomfort with provisions that are prescribed offences by regulation rather than in the legislation itself. We would certainly have been more comfortable had the government developed a comprehensive set of offences and put it in the bill.

On the issue of principle, it is not that the Liberal Party has the view that specification by regulation is never appropriate. For example, in an area as technical and dynamic as pharmacological products in drugs legislation and so forth, specification by regulation might well be appropriate. However, in an area where we are actually specifying statutory provisions, it seems to be reasonable for the government to enumerate it in legislation, rather than by regulation. Having said that, and considering that the government was not willing to do it, we do not propose to support the amendment.

The Hon. P. HOLLOWAY: I have just been given two examples of where organised crime is shifting and where it would not be covered in this amendment: one is identity theft, which is a growing area, and the legislation will obviously need to evolve as identity theft evolves which, in turn, depends on technology; and another is computer crime. These are just two areas where we would expect organised crime to shift and just another example of why we need to be flexible, but I can understand the sentiments of the honourable member.

The Hon. S.G. WADE: Just briefly, as now is not the time for a discussion on good drafting practice, the point the minister just made is that those are two clearly foreseeable areas where the criminal element has been or might be involved. We do not believe that it was beyond the wit of the government to come up with a list of offences; it chose not to. We do not propose to support the amendment.

Amendment negatived; clause passed.

Clause 13.

The Hon. P. HOLLOWAY: Honourable members will recall that yesterday there was some confusion as to whether the Hon. Sandra Kanck and the Hon. Mark Parnell had the opportunity to have their amendments debated, and I can understand why the committee voted the way it did. I indicated at the time that we could come back and revisit the clause. I move:

That this clause be reinserted.

It is really up to those two members whether they wish to use this opportunity to consider their amendments.

The Hon. M. PARNELL: My amendment was to throw it out, so it is diametrically opposed to what the minister has just suggested, that we put it back in. I do not propose to revisit all the debate over—

The Hon. R.I. Lucas: Hear, hear!

The Hon. M. PARNELL: A number of times today when I have said that I do not propose to do something that might take time, the Hon. Rob Lucas has said, 'Hear, hear!' We have thoroughly debated the question of criminal intelligence. I am very concerned, for the same reasons that I am concerned about a privative clause, about any measure where there is no scope for judicial challenge for evidence. So, having moved yesterday, as part of a fairly convoluted debate that we do not need this clause, to have it withdrawn, I do not need to have that dealt with separately from the minister's question, which is to put it back in. So, I am happy just to hear the will of the committee on the minister's amendment but put on record that I oppose it going back in.

The Hon. SANDRA KANCK: I suppose the Hon. Rob Lucas would be very happy if I just said 'ditto'.

The Hon. R.I. Lucas: Hear, hear!

The Hon. SANDRA KANCK: We went through the debate last night. My amendment also was to delete clause 13. I was pleased when it was knocked out, albeit accidentally from the perspective of some members, and I oppose its reinsertion.

The Hon. S.G. WADE: I indicate that the opposition would prefer a more limited privative clause but supports the reinsertion of clause 13. We had the debate yesterday.

The Hon. D.G.E. HOOD: Family First supports the reinstatement of the clause.

The CHAIRMAN: The question is: that this clause be reinserted.

Question agreed to.

Clause 14.

The Hon. P. HOLLOWAY: I move:

Page 8, lines 8 to 11 [clause 14(2)(a)]—delete paragraph (a) and substitute:

(a) the defendant—

(i) has been a member of an organisation which, at the time of the application, is a declared organisation; or

(ii) engages, or has engaged, in serious criminal activity,

and regularly associates with members of a declared organisation; or

We had a discussion last night in relation to clause 14. I undertook to look at the matter. I think the Hon. Rob Lawson raised some issues. My amendment clarifies the matter that was raised by both the Hon. Robert Lawson and the Hon. Mr Parnell during the committee debate. Clause 14(2)(a) provides:

The court may, on the application of the Commissioner, make a control order against a person (the defendant) if the court is satisfied that—

(a) the defendant—

(i) has been a member of a declared organisation or engages, or has engaged, in serious criminal activity; and

(ii) regularly associates with members of a declared organisation.

The question raised is: does a former member of a declared organisation (used in this context in clause 14(2) of the bill) include a person who ceased to be a member of an organisation before it was declared? The government concedes that, as currently drafted, this is not clear. It is the government's position that clause 14(2)(a) should provide for control orders to be made against former members of declared organisations, including those whose membership ceased before the Attorney-General makes a declaration against the organisation. The reason for the government's position is that this will ensure that members of criminal organisations, including criminal motorcycle gangs, cannot avoid a declaration by resigning or leaving the organisation before a declaration can be made.

As honourable members would be aware, clause 9 of the bill requires the Attorney-General to publish a notice in the Gazette and in a newspaper circulating throughout the state specifying that an application has been made.

The Hon. M. PARNELL: I am conscious in rising to speak to this amendment that people are aware of the time. However, last night I pushed the minister for an answer to this issue, and I am going to push a little further now. As a courtesy, I mention that I want to make a very brief third reading contribution on this bill.

I understood the minister to say that he wants to avoid the situation of people pre-empting a declaration and resigning. It seems to me that that also catches people who resigned 20 years ago, before this legislation was even contemplated. It seems to me that one of the evils I was trying to pick through and to undo in the amendments yesterday has, in fact, been entrenched. As I understand it, the words are, 'the defendant has been a member of an organisation which at the time of the application is a declared organisation'. That is absolutely retrospective. That is saying that you resigned from the Hell's Angels 20 years ago. Next month the Attorney-General declares it to be a declared organisation and you are caught by that mechanism. I make it clear that it is not just people who resign in anticipation of this legislation, but people who have ever been a member of that organisation in the past.

The Hon. P. HOLLOWAY: Yes, that is correct, but it is a discretionary order. It is not a mandatory order as it would be for a current member. Again, because it is discretionary, it does have to apply to all the other tests, in particular, that the making of the order is appropriate in the circumstances.

The Hon. R.D. LAWSON: I am glad to see that the government has closed a gaping loophole in this legislation, which loophole would not have been discovered had there not been a full debate in the Legislative Council—again, demonstrating the value of a comprehensive debate of these matters. If we had been intimidated by certain government ministers into not giving this bill a thorough debate, this loophole would have persisted and the legislation would have been a laughing stock.

The Hon. M. PARNELL: On that point, as the person who drew attention to the inconsistency, I am somewhat disappointed that the result has been the opposite to what I would have liked. In fact, this draconian legislation is now more draconian as a result of my diligence and vigilance going clause by clause. All levity aside, I am very unhappy with this provision. I will not divide on it now. We have divided on this topic before. I just want the record to show that the ability, effectively, to make illegal today something that was not illegal 20, 30, 40 or 50 years ago is called retrospective legislation, and we go down that path at our peril. I think that this is the wrong way to go.

Amendment carried; clause as amended passed.

Bill reported with amendments.

Third Reading

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (18:08): I move:

That this bill be now read a third time.

I thank members, and I would particularly like to mention the Hon. Ann Bressington, who first raised the issue of those gangs that associate with organised crime. I thank her, the Hon. Mr Darley and the Family First members in particular for their support. I thank opposition members for their general support of the thrust of the bill. I also thank the advisers for the job they have done.

The Hon. M. PARNELL (18:09): This will be a very brief third reading contribution. I am bitterly disappointed that, shortly, this measure now looks like becoming a part of our statute book. I think it is bad law. I think it is misguided in that it attacks a nut with a sledgehammer. That is not to say that the nut of the 250 so-called outlaw motorcycle gang members involved in crime is not something we need to do deal with—of course we do. However, I do not think that this bill is the way to do it.

It has been an interesting exercise going through this debate, which took a new turn when we had the outrageous attacks from the Attorney-General, aimed personally at me and partly at the Hon. Sandra Kanck. Those attacks effectively accused us of all but firing the shots in Gouger Street, and the message coming out was that we were personally responsible for the fact that this law was not yet through and not part of the statute books. I have said before but will say again: we came into this place day after day, having received a letter from the minister saying that this bill was the No.1 priority. I moved heaven and earth to get my amendments ready and to be ready for the debate, only to have it adjourned. I did not mind its being adjourned, but to then be attacked and blamed as the reason for the delay was outrageous.

It was unseemly yesterday. The elephant in the room is WorkCover, and we were told that the bikies legislation was a priority, then it was and then it was not. This Legislative Council took control of its own agenda and said, 'Stop dilly-dallying; you've told us in the past, week after week, that this bill was a priority, and we're going to debate it.' We have debated it now thoroughly. The Attorney-General said that we were holding it up with mickey mouse amendments and that somehow the new rule of democracy in this state is that you either vote for or against something; that you do not bother trying to amend it or scrutinise it. Why do we not all just sit in our rooms with a computer screen with a yes and no button on it and not bother with debating?

The Hon. B.V. Finnigan: Hear, hear!

The Hon. M. PARNELL: The Hon. Bernard Finnigan says 'Hear, hear.' His commitment to democracy is that he would rather not have anyone ask questions or debate legislation. Having got that off my chest, even though I am disappointed with the outcome, I thought it was one of the better debates we have had in this place. Most members approached the amendments put forward with a degree of respect, even though not many of them got up. It was not a debate characterised, over the hours we went on, with slanging and vitriol. I might have started a bit of that now, but during the debate, clause by clause, it was a very civilised debate and we gave this legislation thorough scrutiny. It is to the credit of the Legislative Council that we have gone through this process. My commitment is that whenever legislation like this comes before the parliament I want to go through it carefully and make sure we do the right thing by the people of South Australia and properly keep the government accountable for its legislation.

The Hon. A. BRESSINGTON (18:13): First, I congratulate the government for actually taking the initiative and listening to the concerns I raised here, as the Hon. Paul Holloway said, 18 to 20 months ago. This is not the legislation I put up, but I will withdraw my piece of gang legislation because this bill does the job I was looking to be done. I am grateful that, although the process of debate has been a bit rickety (but that is beside the point), the government has taken the initiative and decided to listen, especially to an Independent who has little influence in this place. I congratulate the government on the bill: thank you.

The Hon. SANDRA KANCK (18:14): I, too, want to comment on the process by which we have got to this point and express my great disappointment at the way that particularly the Attorney-General choose to attack us when we turned up for three consecutive weeks with our bill and all our amendments ready to debate, and the government day after day adjourned it. I do not accept the argument that the minister has given here that this was because the Hon. Mark Parnell and I dared to put in place a great deal of amendments, because the Attorney-General has a whole department of people who could have gone through those amendments within a day. It is an absolute nonsense to suggest that those amendments prevented the government from going ahead.

Having said that, I note that, despite my best endeavours with the amendments that I moved, we have a bill that will not stop people from committing crimes. What it will do is encourage the police to pull more people over who are riding Harley-Davidsons and wearing black leather. A number of bike riders have told me that, as this bill has built up momentum, more and more of that is happening.

The Hon. A. Bressington: So, that is without this legislation?

The Hon. SANDRA KANCK: And it is without the legislation; exactly. So, what will it be like when the legislation is in place? This bill does nothing to increase the difficulty of committing a crime or to reduce the profits of crime. It is not justified. Only 10 per cent of the arrests of members of bikie gangs are for what we would call serious crimes. One passionate bike rider has communicated this message to me: 'The passing of this legislation is the single most disgraceful thing I have ever witnessed in my lifetime.' I cannot say that it is the single most disgraceful thing I have ever witnessed, but it is certainly the most appalling legislation. Article 11 of the United Nations Declaration of Human rights states:

Everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

However, despite that, we have a bill that requires people to prove their innocence rather than the police proving their guilt. This bill gives increasing powers to the police—even though we tried during the committee stage to rein them in—at a time when we do not have the protections of an independent commission against crime and corruption. This is a bill about who you know, not what you do. It turns everything that we have known about the law on its head, and I will continue to strenuously oppose it.

The PRESIDENT: The question is that the bill be now read a third time. All in favour say aye, against say no.

The Hon. SANDRA KANCK: No.

The PRESIDENT: I think the ayes have it.

The Hon. SANDRA KANCK: Divide.

The Hon. A. Bressington interjecting:

The PRESIDENT: Order! The Hon. Sandra Kanck has as much right as anyone else in here to call for a division: it is called democracy.

The council divided on the third reading:

AYES (18)

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

NOES (2)

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

Majority of 16 for the ayes.

Third reading thus carried.

Bill passed.


[Sitting suspended from 18:21 to 20:00]


PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT