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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-05-07 Daily Xml
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SERIOUS AND ORGANISED CRIME (CONTROL) BILL

Committee Stage

In committee.

(Continued from 6 May 2008. Page 2702.)

Clause 22.

The Hon. M. PARNELL: I am happy to speak now, unless the minister has any information from last night that raises other questions.

The Hon. P. HOLLOWAY: I am not aware of anything.

The Hon. M. PARNELL: There was one jurisdictional question about a bikie member.

The Hon. P. HOLLOWAY: I think that we are considering recommitting that clause. We will move an amendment to clarify it, and that will be circulated.

The Hon. M. PARNELL: I move:

Page 12, line 23—Delete 'or was reckless as to that fact'

This amendment is replicated in a number of places through the bill. I advise the committee that I will not be dividing on this amendment, but I will be doing so on a later amendment in a similar vein. The issue, the subject of my amendments Nos 12, 32, 33 and 34, is the concept of recklessness as a condition that results in a person committing a criminal offence.

In the context of clause 22, this clause provides that it is a criminal offence to contravene or fail to comply with a control order. A clause such as this is necessary: if you are to have control orders, it needs to be a criminal offence not to comply with them. So, the clause provides that a person who contravenes or fails to comply with a control order is guilty of an offence, with a maximum penalty of imprisonment for five years. But then there is a defence built into this clause, which provides:

A person does not commit an offence against this section in respect of an act or omission unless the person knew that the act or omission constituted a contravention of, or failure to comply with, the order or was reckless as to that fact.

To take that apart, it says that it is basically a defence that you did not know that what you were doing was contravening a control order—and that goes to the heart of the criminal law, where you have to have both a guilty act and a guilty mind (the idea of actus reus and mens rea). But there is in the criminal law occasionally an exception, and that is the exception of recklessness. The most common example which is taught in law schools is a murder trial where someone did not set out to shoot the person who died; they walked into a room firing wildly, not caring whether or not they hit anyone. If someone dies, that is still murder, and it is regarded as recklessness. You were recklessly indifferent as to the outcome of your conduct. It is not manslaughter; it is murder in that situation.

To take that concept of recklessness and apply it to a failure to comply with a control order is an entirely different situation. What I need the government to explain to me is the circumstances in which recklessness might arise, effectively, as a defence. It seems to me that there are two situations: first, the person did not know that there was a control order against them; and, secondly, they knew there was a control order but they did not know what was in it and therefore cannot be regarded as culpable for failing to comply with it. So, I need the minister to explain whether it is either or both of those circumstances that trigger this concept of recklessness.

In terms of a person not knowing whether or not a control order existed against them, the bill sets out with a degree of precision the requirements for service. In other words, if a control order is issued, then it needs to be served on the person to whom it applies. But the bill goes on to say, 'Well, there are some circumstances where you can't actually find them.' And we can all imagine that people are not necessarily willingly going to bring themselves to the attention of a police officer who has a control order in their hand and volunteer to take it from them. You can imagine situations where people will make themselves scarce and try to avoid having a control order placed on them if they suspect that one might have been issued.

So, the bill provides for what I guess is the Luther situation. You can nail it to the door of the church—or, in this case, perhaps, the door of the motorcycle clubhouse, if we are talking about outlaw motorcycle gangs. If nailing a control order to the door of a building where a police officer believes the person is inside (whether or not they are) is considered to be sufficient service, the person might genuinely not know that a control order exists against them. A consequence of that is that they do not know what is in it, yet we have this situation of recklessness. So I would like the minister to address recklessness and the standard to which the government believes people must go to try to inform themselves of the possibility of the existence of a control order.

The Hon. P. HOLLOWAY: I thank the Hon. Mr Parnell for his comments. The amendment is the first in a series that amends the offence provisions 'contravening or failing to comply with a control order', 'contravening or failing to comply with a public safety order', and 'criminal association' to remove recklessness, thereby requiring the prosecution to prove knowledge. I suggest this be treated as a test amendment for the series of amendments.

The effect of these amendments will be to amend the offence provision so that: in the case of the offence of contravening or failing to comply with a control order, the prosecution must prove that the defendant knew that the act or omission constituted a contravention of or failure to comply with the order; in the case of the offence of contravening or failing to comply with a public safety order, the prosecution must prove that the defendant knew that the act or omission constituted a contravention of or failure to comply with the order; and, in the case of the offence of criminal association, the prosecution must prove that the defendant knew that the other person was a member of a declared organisation, was subject to a control order, or had a conviction of a relevant prescribed kind.

The government opposes these amendments. Limiting the mental element of the offences under the legislation to actual knowledge will unduly inhibit enforcement of control orders, public safety orders and the offence of criminal association. In his second reading contribution, the Hon. Mr Parnell questioned how a person can be reckless as to whether another person is a member of an outlaw motorcycle gang or is subject to a control order. This question, and the answer to it, illustrate the need for the offence provisions to incorporate recklessness and the problems in terms of prosecution and enforcement which will be created if recklessness is deleted from the offence provisions.

The recklessness test that the government would expect the courts to apply to the offence provisions in this legislation would be that the defendant is aware of a substantial risk of a relevant fact (that, for example, a person with whom he has been associating is a member of a declared criminal motorcycle gang) and that, having regard to the facts that are known to the defendant (for example, that the person regularly associates with known members of the gang and that the relevant association took place at the clubrooms of the gang, at an event or events organised by the gang), it was unjustifiable for the defendant to have taken the risk—in this case, that the particular person with whom they were found to be associating was a member of a declared organisation. This may be so where the prosecution is unable to establish that the defendant actually knew that the other person was a member of a declared organisation.

The government believes that to delete the recklessness component of the offences (as the Hon. Mr Parnell suggests) will compromise enforcement of the legislation and may allow criminals to avoid prosecution for offences under the legislation because of the high evidentiary burden imposed on the Crown under a strict knowledge test.

The Hon. S.G. WADE: The opposition is persuaded by the government's answer, but I thought I also might comment on comments that the Hon. Mr Parnell made, because I think he was also addressing the issue of knowledge of the defendant in relation to the existence and the content of a control order.

My understanding of clause 16 is that a control order must be served on the defendant personally and that in fact a control order is not binding on a defendant unless it has been served on the defendant in accordance with this section. It is not foreseeable that a defendant would not be aware of the existence of a control order and, if they were reckless with regard to their compliance with it, the opposition believes they should not be able to avail themselves of the defence in clause 22(2).

The Hon. M. PARNELL: In response to what the Hon. Stephen Wade is saying, I agree with him up to that point, until we get to the situation where it is possible for a control order to be deemed to have been served on someone without them actually knowing it. This is where clause 16 is important, because it provides that, if the person serving a control order has reasonable cause to believe that the defendant is present at any premises—let us say the police officer suspects the person is at the clubrooms and they turn up at the clubrooms—but is unable to gain access to the defendant at the premises for the purpose of effecting personal service of the order on the defendant—in other words, they turn up at the clubhouse, they think the person is in there, but the door is locked and they cannot get in—then the service is regarded as effective if the police officer leaves it for the defendant at the premises with someone apparently over the age of 16 years.

So, if an adult answers the door, you can leave the control order with them and it is regarded as effective service. However, the clause goes on to provide that, if the person serving the order is unable to gain access to such a person at the premises—in other words, no-one answers the door when you knock—then the police officer can affect service by affixing it to the premises at a prominent place at or near to the entrance of the premises. This is a Luther clause: this is nailing the control order to the door of the church, and that is regarded as effective service.

The problems with that are that, first, even though the police officer might have had reasonable cause to believe they were there, they could be wrong. The reasonable cause might have been one of dad's army we were talking about the other day. The police volunteers with their binoculars undertaking surveillance work may have rung up and said that they saw this person of interest go into these premises, but they may have been wrong. I would have thought that that sort of intelligence might lead a police officer to have reasonable cause to believe that the person was there.

So, the situation can conceivably arise where the intelligence was wrong; the police officer, whilst he or she might have had reasonable cause, turned out to be wrong; the person was not at the premises; knocking on the door resulted in no reply; therefore, the control order was nailed to the door of the premises. The subject of the control order might have been hundreds of kilometres away and might never attend those premises again, yet the control order under this regime is regarded as having been effectively served. If it has been effectively served, the implication that flows from that is that the person has knowledge of the control order and of its contents, when clearly on that scenario they do not know it is there.

I appreciate the minister's prepared statement, but this is where I want to know where recklessness kicks in. Is it reckless for a person not to regularly check the door for notices nailed? Is that what recklessness means? I need to know. I accept that these people will not go out of their way to discover the existence of a control order against them, but I want to ensure we tighten this right up, because five years gaol is at stake. It is conceivable under this legislation that you go to gaol for five years for disobeying an order that you did not know existed and did not know the content of if a court believes you were reckless. I need to know what are the indicators of recklessness in this control order situation.

The Hon. P. HOLLOWAY: The police regularly face situations where, if they are serving a warrant an or anti-fortification order on an outlaw motorcycle gang, they simply will not come to the door or will slam the door in their face and refuse to accept it. There has to be some provision to deal with that sort of behaviour, and clause 16 deals with service of the order and clause 22 deals with the offence of a contravention or failure to comply, and that goes to whether the act or omission constituted a contravention or failure to comply with the order or is reckless as to that fact. We are dealing with a known loophole that is regularly exploited by bikies to avoid the service of notices. These people have got used to our legal system over many years. They have hired the best legal advice to get around it and we need to have methods to thwart their behaviour.

The Hon. M. PARNELL: When I commenced my remarks, I said that this concept of recklessness occurs at a number of locations through the legislation and that I was not proposing to divide on this one but would at a later stage. The minister has invited me to speak now to all of the occurrences of the issue of recklessness, so I will do that and, if necessary, will divide on this clause but not on the others, as I want to test the concept once.

Recklessness occurs in relation to control orders but also in relation to public safety orders. The arguments are very similar in that it is a criminal offence not to comply with one of these orders, and that makes sense. There is no point having orders if there are no consequences for not complying with them. Clause 32 provides that a person who fails to comply with a public safety order is guilty of an offence, and five years gaol is the penalty, and the defence is that a person does not commit an offence against this section in respect of an act or omission unless the person knew that the act or omission constituted a contravention of or failure to comply with the order, or was reckless as to that fact.

The particular circumstances of the public safety orders that are different from the control orders are that we can have public safety orders being issued verbally by police in a heat of the moment type situation (on a fairly urgent basis) and, if someone disobeys that order, it is important that we be properly satisfied that they knew there was a public safety order and that they were contravening it. That gives us the two criminal elements: their guilty acts; and their guilty mind (the actus reus and the mens rea).

But, in a situation where you have public safety orders being issued on the spot, as it were, and you have this concept of recklessness, that seems to me to imply that someone who does not hear the order—they do not hear what the police officer is saying to them—and then disregards it might somehow be guilty of an offence, even though they had no actual knowledge. What I would like the minister to explain is how the concept of recklessness would work in those on-the-spot public safety order situations.

The Hon. P. HOLLOWAY: First, whether or not the notice is served is a question of fact. It is simply not possible to state categorically and in advance that a person will be reckless in doing this or not doing that; it always depends on particular facts and circumstances. It is possible to speculate on what a fact finder might find in a specific factual situation one way or another, but that is not a particularly profitable activity in terms of the general principle. The general principle says that you cannot be reckless unless you actually advert to a substantial risk that the relevant incriminating fact exists. And this is vital: it is less than actual knowledge but much more than mere ignorance.

The Hon. S.G. WADE: The opposition's view is that the Hon. Mark Parnell's concerns seem to relate mainly to the service process and that he is trying to alleviate his concerns in relation to the servicing of the notice process by increasing the latitude accorded to people on whom an order has been served. We would prefer that, if he has concerns about the service process, he improved the service process.

For our part, we are willing to allow the government to have the service process as provided for in the bill. We will be watchful, in relation to the operation of the bill as a whole, to make sure that it does not unduly impose on the freedoms of individuals who are law abiding and who should not be subject to a bill relating to serious and organised crime.

For our part, we see the risk of mischief from legitimate subjects of this bill trying to avoid accountability for breaching an order through reckless behaviour or recklessness as to the fact of whether an act or omission has been committed against the order—trying to escape their obligations—as a greater concern than an indirect amelioration of problems in relation to the service process about which the Hon. Mark Parnell is concerned.

The Hon. A. BRESSINGTON: Minister, am I right in thinking that anyone who is going to be served with a control order has already received five previous warnings that they are on the list, that is, that they have previously been observed five times associating with people they should not be associating with?

The Hon. P. HOLLOWAY: I think the honourable member is talking about the offence of criminal association. The control orders would be issued to members of the outlaw organisation or those who are ex-members if it is provisional. They are the ones who receive the control orders. I think the honourable member is talking about the offence of criminal association. If they have had more than six associations with the person subject to the control order, that is when that would come in.

The Hon. A. BRESSINGTON: My point is that they would pretty much know they are on the list and that serving them with a control order if they continue to associate is not going to be of great surprise to them. In that case, they are being reckless to the fact that they are almost due to have a control order served on them, anyway. If they are prepared to be caught six times by association and ignore that, they have been reckless to that fact, anyway.

Also, in relation to the Hon. Mark Parnell's point about how these control orders are being served, one of the favourite mechanisms these guys have is to duck and weave. If they know they are being observed at a certain premises and intelligence is building up on them, it is nothing for them to move across town at the drop of a hat and relocate in order to avoid being served with warrants and everything else. This is what they do. So, if they have already had five warnings that they are on the hit list for a control order and they continue to ignore that, they are demonstrating recklessness in regard to the control orders, in the first place.

The Hon. P. HOLLOWAY: I point out to the honourable member that, if we are talking about control orders, these are people about whom the Commissioner will apply to the courts to issue a control order. I think the honourable member is talking about criminal association, where people have been associating with someone subject to a control order more than six times.

The Hon. A. Bressington: But they still know, don't they?

The Hon. P. HOLLOWAY: Well, for any one subject the criminal association would. However, if we are talking about people subject to a control order, in most cases the police will do everything they can to find them, but some of them will deliberately go missing; that is their history. I think there is an example with one particular fortification where members of the group will clearly do everything they can to avoid being served with an order. It probably used to happen with a lot of people in the civil jurisdiction as well.

Unless you have this fallback application police effort will be tied up in hours and hours of hunting down someone to give them a piece of paper. Is that how you want resources to be used? Obviously, there has to be a reasonable endeavour on behalf of police officers to serve the notice, but if there is deliberate avoidance there has to be some way of serving warrants. I am sure it is true in general legislation, that there is some provision if people are deliberately avoiding it. I am advised that, under the serving part, the officer actually has to believe that they are on the premises. So, there has to be a belief that they are actually in there.

The Hon. A. BRESSINGTON: I do not want to indicate that I will support this amendment, because I will not. I am trying to get clarity on the fact that people are well enough aware that they are under suspicion, that they are sailing close to the wind, so that being served with a control order would not be a surprise out of the blue for anyone. They would have been well aware that it was on the cards, and, as I said, could quite easily move premises for three, four or five days or weeks, or whatever, to avoid being served.

The Hon. M. PARNELL: The Hon. Ann Bressington has moved us into this question of criminal associations, and I would like to deal with that now because, as I said initially, for me that was the clause that was the deal breaker. The provision of 'recklessness', as it applies to control orders (and I accept what the Hon. Ann Bressington is saying), is unlikely to be a surprise to many people; still, there is the possibility that someone could genuinely not know. In relation to public safety orders, as I said, my concern was around the urgent orders issued by police on the spot; you just might not know that that has happened.

However, the worst provision of all in relation to 'recklessness' is under the heading of criminal associations. This is where we need to tease out what the Hon. Ann Bressington was saying, because I think there are some presumptions there that I do not read into the legislation. Clause 35 provides:

A person who associates, on not less than 6 occasions during a period of 12 months, with a person who is—

(a) a member of a declared organisation; or

(b) the subject of a control order,

is guilty of an offence.

Let us fully understand that provision. It is not the person with the control order, it is not the person who is a member of a bikie gang, who is risking criminal offence; it is the person who associates with them more than six times a year. So, our starting point is an innocent person—and we can explore how innocent they are, but the starting point is an innocent person—and then they have more than six contacts with a member of an outlaw organisation, or with a person who is the subject of a control order, and they are guilty of an offence. It is as clear as that.

The Hon. Ann Bressington said that, if it were a 'six strikes and you're out' situation, surely you would know, because you would have had five warnings. However, a person might not find out that they have infringed this provision until they are arrested after having the sixth contact. There is no obligation in here to warn the person; the police do not have to go up to the person and say, 'Excuse me, that's one strike for you because you've been talking to a person who is a member of an outlaw motorcycle gang', and then do the same again after two or three contacts. The person may not know that they have committed a criminal offence until after the sixth occasion and they are arrested.

So this is a very serious provision, and we have to make absolutely certain that the people who will be subjected to this criminal penalty are convicted only if there is some guilt (for want of a better word) on their part. They have to have done these things, associated with this person, knowingly—knowing that they are a member of an outlaw motorcycle organisation or knowing that they have a control order. That is actually in this legislation. Clause 35(2) provides:

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

(a) a member of a declared organisation, or

(b) a person the subject of a control order,

Now, if that was the end of it that would be a reasonable provision. In other words, you cannot go to gaol for five years for having six contacts with a person unless you knew that you should not have been contacting them, unless you knew they were a member of an outlaw organisation, a declared organisation, or you knew that they had a control order against them.

However, the clause does not stop there. It goes on to say, 'or was reckless as to that fact.' That is a remarkable provision to put in a clause that has a five year gaol term; that you can go to gaol for having six contacts, even though you did not know that the person was a member of an outlaw motorcycle club, for example, or that they had a control order against them, but because you were reckless.

'Recklessness' in this context means the creation of an entire new standard of social discourse in South Australia. It sounds like I am overstating it, but I am not. You risk five years' gaol unless, when you meet people, you ask them whether they are a member of an outlaw motorcycle club or whether they have a control order against them—because failure to ask could be regarded as recklessness. People might say, 'That's outrageous. If you meet a little old man, a little old woman, a young person (or whomever), you can't be expected to ask them whether they are a member of an outlaw organisation. You can't be expected to ask them whether they have a control order. There must be something else.' What is that something else?

Is any person wearing a leather jacket potentially on your radar as someone that you should be finding out a bit more about before you talk to them? Is that the new social discourse in South Australia: that anyone wearing a leather jacket should be asked? 'It looks like you ride a motorbike, so I have to ask you. I can't talk to you any further, I can't write to you, I can't email you, I can't have any contact with you if I find out that you are a member of an outlaw motorcycle club. I need to know this.'

Is that the test? Is the test a person wearing a leather jacket? Is the test higher than that? Is it a person wearing a leather jacket with a patch or a badge on the back with the name Hell's Angels, the Rebels, or whatever it might be? Is that the standard? If you fail to ask this person to turn around so that you can look at their back, is that recklessness? Is that what is going to trigger your committing this potential criminal offence?

In discussions on this clause with people it was described to me as the 'speed dating clause'. Speed dating is not something that I have ever engaged in but those who have tell me that it is an arrangement where people meet, they sit in couples at a table, they ask each other questions for a period of time and then, apparently, a bell rings and they move to the next table. It is a way of very quickly meeting a large number of people, sort of a bit like a dating service—well, it is; it is a speed dating service.

The reason that people are starting to call this the speed dating clause is that, rather than, 'Do you come here often?' or, 'Isn't the weather nice?' or whatever other lines people might have in this situation, maybe one of the compulsory questions now is: 'Are you a member of a declared organisation or do you have a control order against you? Because if the answer to that is yes then whatever chemistry might be between us, I am not going to see you again.'

I do not think I am overstating the case here. I mean, the government might say, 'Well, recklessness involves something that is very clear.' You have to see them hop off a motorcycle; you have to see the back of their jacket; or you maybe have to read The Advertiser every day and find out if there are news reports on people who might have control orders against them, or which motorcycle clubs—if we are told they are the target of this legislation—are declared organisations.

We are putting on the citizens of South Australia an incredible onus to find out about the people that we communicate with before we get up to the six communications, or they are at risk of going to gaol for five years if we get it wrong. The assurance that I want from the minister is that I am wrong in relation to what 'recklessness' means in the context of criminal associations. What does it mean to be reckless as to the fact of whether the person you are talking to is a member of a declared organisation or the subject of a control order? How can you be reckless unless you have failed to ask them directly the question?

The Hon. P. HOLLOWAY: There are many things I could say in relation to this. First, the onus of proof is on the prosecution. You do not have to prove your innocence. The onus is on the prosecution to prove the fact. It may be very difficult for someone who is associating with a bikie to actually prove that that person was a member of a bikie organisation. I do not think they publish their membership lists on the internet. So, there is a problem.

However, if someone is going to a bikie headquarters or the person is wearing regalia, then it comes back to what we were saying yesterday. Essentially, the prosecution would have to prove that someone is quacking like a duck and has feathers like a duck, etc. before the courts would accept it. It would have to be established in court that there were some facts known to the defendant about the identity of the person they were mixing with before the recklessness test would come in—and I think that is the important point to make.

Apart from that, I will repeat what I said earlier. In the recklessness test the government would expect the courts to apply the offence provision of this legislation, that is that the defendant is aware of a substantial risk—for example, that a person with whom he has been associating with is a member of a declared criminal motorcycle gang; and, having regard to the facts that are known to the defendant—for example, if the person regularly associates with known members of a gang and that the relevant associations took place at the clubrooms of a gang or at an event or events organised by the gang—that it was unjustifiable for the defendant to have taken the risk that (in this case) the particular person with whom they were found to be associating was a member of a declared organisation.

In other words, the prosecution would have to establish that this person—and they may not be able to prove it—actually knew that the person was a member of a gang. It would have to be proved that he knew that this person regularly goes to clubrooms and associates with members, that he had seen him wearing the regalia and all that sort of thing. Those are the sorts of facts that would have to be established for the recklessness test to apply.

The Hon. R.I. LUCAS: Believe it or not this question was put to me by a person who works in and around Parliament House, and having listened to the debate I want to put it to the minister just to clarify it. The question was asked about a person whose son or daughter's partner is a member of an outlaw motorcycle gang and the son or daughter, with partner, comes more than half a dozen times a year for babysitting purposes and/or staying overnight—so it is a family arrangement.

On the basis of what the minister and the Hon. Mr Parnell are saying, the person wanted to know, in essence, whether the mother-in-law or father-in-law of the outlaw motorcycle gang person is, under this definition, an associate and therefore committing the offence that the Hon. Mr Parnell has been talking about, because the person does know that the son or daughter's partner is a member of an outlaw motorcycle gang but in terms of the family arrangements intends to continue to babysit and to have family dinners more than half a dozen times a year.

Is the import of what the Hon. Mr Parnell is saying and what the minister is saying that this particular person, who works in and around Parliament House, an associate under the legislation and, therefore, committing an offence or will be committing an offence?

The Hon. P. HOLLOWAY: Perhaps it is time we did move on to that clause. Clause 35 specifically relates to relationships and, as you can see from the amendment I have circulated now, it recognises spouses, former spouses or close personal relationships, including parents, grandparents, brothers and sisters or guardians and carers and others, so there is specific—

The Hon. R.I. Lucas interjecting:

The Hon. P. HOLLOWAY: An amendment to clause 35(6) and (11) covers this. There are already exemptions and we are just further clarifying them.

An honourable member interjecting:

The Hon. P. HOLLOWAY: No.

The CHAIRMAN: I remind members that this amendment has been going for over half an hour.

The Hon. A. BRESSINGTON: It is a pretty important amendment.

The CHAIRMAN: It has been 40 minutes.

The Hon. A. BRESSINGTON: When we went to the police briefing, we were told that if people were associating (the six rule thing) the police would be notifying them on the night, when they were seen. The police would have you-beaut new computers in their cars and they would be able to put data in and type in 'Joe Blow' and it would come up on a screen about how many times that person had been warned about associating with criminals or people from declared organisations.

These people would be tapped on the shoulder and told, 'The guy that you've just been speaking to is a member of the Hell's Angels (or the Finks or whatever). It's a declared organisation, and it is not in your best interests to continue to associate with them.' I would like to clarify with the minister whether that sort of thing is in place or will be in place. Are there going to be warnings for people who are associating because, otherwise, I might have been a bit hasty in saying that I would not be supporting this.

As the Hon. Mark Parnell said, you may not know that they are a member. We have to understand that bikies (or people associated with motorcycle gangs) do not walk around all the time in leathers. I am sure that the accountant that the Hon. Sandra Kanck knows does not show up for work every day in his leathers.

There is another issue: if this person is running an accountancy business and he is doing tax returns and looking after the financial affairs of people who are not involved in motorcycle gangs, does that mean that everybody who is accessing his business or his services can then be charged with criminal association?

The Hon. Sandra Kanck: It will be put down on an account: one association and then two.

The Hon. A. BRESSINGTON: Yes, but if he is an accountant who is associating with or belongs to a motorcycle gang and he has 500 clients and 498 of them who are accessing his services are involved in criminal activities, but one or two of them are not, does that mean that those two people are guilty by association, as well?

The Hon. P. HOLLOWAY: As a general rule, the police would always warn people; why would you not ? If you want to avoid the debate we have just had about recklessness then, at least by being warned, people cannot say they did not know. It just makes sense for the police, as a general rule, to warn people. There could be cases where, if the police were involved in an investigation which might lead to a tip-off or something like that, they would probably be unlikely to issue an order because of the ongoing investigation. However, it makes sense and it is logical for the police to issue warnings, because then you cannot argue that you were not aware of it.

The Hon. SANDRA KANCK: I am sorry that the chair himself thinks that we spent too long on this. However, when we are talking about five years' imprisonment I think we have to get to the truth of it. As part of this, I have to remind members, as I have done on a number of occasions, that this bill does not mention bikies. When we go back to the objects of the act, we have a very weak, lily-livered section that provides, 'without derogating to subsection (1) it is not the intention of the parliament that the powers in this act be used in a manner that would diminish the freedom of persons in this state to participate in advocacy, protest, dissent or industrial action'.

One of the things that I have noticed is that, of course, it does not mention political parties. I am starting to get a little bit worried about the intent of this legislation, particularly in relation to control orders. I was a little young to remember it, but I know from history of the moves that were made in the early 1950s in this country to outlaw the Communist Party. It could well be that, somewhere down the track, because there are just are not the protections in this legislation, a particular political party could be declared, and the members of it could be subject to these control orders. So, perhaps, the throwaway line that the Hon. Mark Parnell made about having to ask little old ladies about their backgrounds and what organisations they belong to, is not as far-fetched as it appears to be.

I want to pursue what the Hon. Ann Bressington has been saying. She says that these people who are subject to control orders will know, but there is no provision—

The Hon. A. Bressington: But will they know?

The Hon. SANDRA KANCK: She is asking: will they know? There is no provision in this act—no system of demerit points—that requires anyone who has had one, two, three, four or five associations to be advised of the fact that, effectively, they are about to lose their licence to continue these associations. There is nothing in the act.

Does the minister intend, for instance, that there be something in the regulations that advises these people who are on the brink that they are about to cross the line? It really is a very important fact to be considered in relation to this amendment. Given that there is nothing in this legislation that requires that to occur, I believe that the Hon. Mark Parnell's amendment is a very important one to support.

The Hon. P. HOLLOWAY: We are really going back over old ground here. The Attorney-General makes the declaration about the organisation. The notice of declaration is covered in clause 11 and it is published in the Gazette and the newspaper. So, for her to try to suggest that political parties can somehow or other fit under the terms that we have already considered in clause 10, or that somehow people will not know about it, is just being mischievous. Not only that, we have already debated those clauses. We are just going around in circles.

The Hon. SANDRA KANCK: I ask the minister to please advise how somebody who has had an association with people who have control orders will know that they are on the verge of breaching this legislation. How will they know, how will they find out, if they are not aware?

The Hon. P. HOLLOWAY: Clause 35. I will be happy to answer that there. But we are trying to debate the whole bill in one clause, and no doubt we will go through it all over again. We have been on just one clause for nearly an hour.

The Hon. M. PARNELL: For the benefit of the committee, I agree with the minister. I was trying to assist the committee by discussing all my recklessness provisions together. I will go back to my original position. I have moved amendment No. 12, but I will not divide on that. The committee has made its position clear in relation to control orders, and I will not divide on recklessness in relation to public safety orders. However, when we get to clause 35, we will need to explore a little further the questions that the Hon. Sandra Kanck has raised.

Amendment negatived; clause passed.

Clause 23.

The Hon. M. PARNELL: I move:

Page 13, line 37—After 'Subject to' insert:

Subsection (6a) and

I advise the committee that this is a test on the topic of public safety orders and a test for my amendment Nos 17, 18, 24, 27, 29, 30 and 31. The main purpose for moving these amendments is to better protect the rights of citizens to engage in lawful protest and to stop these laws being used—or, rather, abused—in order to close down legitimate protest actions and rallies by requiring that more notice should be given of public safety orders, and to improve the rights of appeal against public safety orders.

The regime as it currently exists is that it is only longer term public safety orders that have any real measure of accountability. I think it is 72 hours, from memory. Any control order of less than that time does not go through any great accountability. The danger in that, of course, is that a protest rally or a march, or something like that, may not be planned that far in advance, and there is no obligation on the police to issue a public safety order even if they know that it is coming up. In fact, they can wait until the day before, issue a public safety order, and there will be no way for people to be able to challenge that.

I am not suggesting that it is the intention of the government or the police to deliberately interfere with our democratic rights or to stop protests; nevertheless, whilst the door to abuse remains open, I think we have imperfect legislation. It is conceivable that the situation will arise where the police will expect some difficulties in a protest situation. In the past, we have seen that issues in relation to race, for example, can be volatile.

It may well be that the police, in balancing their role to protect society, will come down on the side of public safety orders and shut down a protest rather than risk possible violence or disquiet in the community. When the police are making their call, they are only judging the situation against their brief, which is law and order. Their brief is to protect the community and try to keep it safe. As we have said before, in parliament our brief is wider. Sure, it is part of our brief to give the police appropriate powers to deal with crime, but is also our brief to safeguard civil liberties and the right of citizens to collectively engage in protest activity.

So, that is the thrust of my amendments. I will make a few other brief comments, but I would like a response from the government and the opposition in relation to this raft of amendments that seek to put more rigour into the public safety order process.

The Hon. P. HOLLOWAY: First, clause 23(5) provides:

Despite any other provision of this section, a senior police officer must not make a public safety order that would prohibit a person or class of persons from being present at any premises or event, or within an area, if—

(a) those persons are members of an organisation formed for, or whose primary purpose is, non-violent advocacy, protest, dissent or industrial action...

This amendment is the first in a series of amendments placed on file by the Hon. Mr Parnell that will create a general right of objection to a public safety order. Currently, clause 26 of the bill provides that a right of objection by way of a notice filed and heard in the Magistrates Court applies only where the public safety order, either as made or varied, will operate for more than seven days.

In addition to creating a general right of objection, Mr Parnell's amendments will amend clause 30 of the bill so that, once made, a public safety order does not become binding for 72 hours from the time it is served (presumably, this is to give a person who is subject to a public safety order an opportunity to object), and it will delete clause 31, which provides that, in urgent circumstances, a public safety order must be served verbally, although a written copy of the order must be made available to the person, and the person must be advised about this.

As this amendment is the first in a series, I suggest again that we treat it as a test amendment (although every amendment seems to be a test amendment). The combined effect of these amendments will be to rule out the use of public safety orders in urgent cases or, indeed, in any case where the risk to public safety or property is expected to arise within 72 hours.

SAPOL's advice is that these are likely to be the majority of cases where public safety orders will be used, that is, where this risk is expected to arise within three days. Furthermore, the government would expect that members of declared organisations and other criminals, the targets of these provisions, will lodge notices of objection in most, if not all, cases, thus further delaying the operation of the order.

As I have said, these criminals are well funded and have access to top legal advice and representation. They are not beyond using the legal system to its maximum extent to advance their criminal objectives. Although there has been a deal of hysteria about these provisions, the power conferred on senior police officers under part 4 of the bill, the public safety order provisions, is in fact quite limited and subject to a number of safeguards.

The public safety order operates only to prohibit the relevant person or class of persons entering or being on specified premises, attending a specified event, or entering or being within a specified area. A senior police officer may issue only an order that operates for up to 72 hours or the duration of an event; any longer and the officer must seek authorisation from the court. A public safety order may only be issued when the officer believes that the presence of the person or members of the class of person poses a serious risk to public safety or security and that the making of the order is appropriate in the circumstances.

Serious risk is defined in clause 23(8) to mean a serious risk that the presence of the person or persons might result in the death of or serious physical harm to a person or serious damage to property. When determining whether to make an order, the officer will be required to have regard to:

whether the person or members of the class of persons had previously behaved in a way that posed a serious risk to public safety or security or have a history of engaging in serious criminal activity;

whether the person or member of the class is or has been a member of declared organisations or subject to control orders;

the public interest in maintaining freedom to participate in advocacy, protest, dissent or industrial action;

whether the degree of risk justifies the order, having regard in particular to any legitimate reason the person or persons may have for being present at or in the relevant premises, event or area;

the extent to which the order will mitigate the risk; and

the extent to which the order is necessary, having regard to other measures reasonably available to mitigate the risk.

A police officer may not make a public safety order that would prohibit a person or class of persons from being present at any premises or event or within an area if those persons are members of an organisation formed for or whose primary purpose is non-violent advocacy, protest, dissent or industrial action and the officer believes that advocacy, protest, dissent or industrial action is the likely reason for those persons to be present at the premises, event or within the area.

As with all powers under the legislation, the exercise by senior police officers of the public safety order powers is subject to the objects provision, which clearly sets out parliament's intention about how and against whom the powers are to be used and which will be subject to an annual review by a retired Supreme or District Court judge. As I have previously advised honourable members, the judge's report must be tabled in both houses of parliament.

So, the Hon. Mr Parnell's amendments are unnecessary and will so compromise the responsiveness of that provision as to render the public safety order regime ineffective. Finally, an example is where you know that a war has been going on between two outlaw motorcycle gangs and that they are hell-bent on retribution and the police become aware that a particular group will square off with another group at some particular event or occasion.

Ironically, in that case, you could argue that you are actually protecting some of the criminals, and some people may say, 'Let them go at it,' but I do not believe that that is a responsible attitude. Police have an obligation to protect the safety of all individuals and, if that information is received, they have to respond quickly. That is an example of where, if you remove this provision, they will simply square off somewhere else.

The Hon. SANDRA KANCK: I indicate support for this amendment. The minister has read from the bill as to what clause 23(3) puts in place in terms of the prohibition on a person or persons to whom a public safety order is applied. Of course, to me, that makes it only more important that I support this amendment. I think we need to look at it in terms of the earlier part of clause 23(1), which provides:

A senior police officer may make an order (a public safety order) in respect of a person or a class of persons if satisfied that—

and then it has two things that the police officer has to be satisfied about. One of the things I have had difficulty with in this legislation is that the opposition is supporting the legislation and it seems to think that the police do not get it wrong, yet there are many instances of the police getting it wrong—and we have the potential here again for the police to get it wrong.

Clause 23(1) effectively allows the police to make a decision based on a belief that does not even have to be substantiated to anyone in the normal course of events, and it is a belief that someone might do something wrong in the future. The accountability is very limited and, again, in terms of what the minister himself read out, he more or less proved that that accountability is limited. Clause 25 allows certain variation orders to be authorised by the court, but that is only if the public safety order is intended to extend beyond 72 hours. So, if it is less than 72 hours there is absolutely no point of accountability. There is no-one to check to see whether the police officer has got it wrong.

The other point that gives a very small degree of satisfaction is in clause 26, the right of objection, so that if someone is going to be subject to a public safety order for more than seven days they can lodge an objection with the court. But, again, if it is six days, five days, four days or three days, there is just no other accountability in terms of the person who is the subject of that order. When you have so little accountability and so little opportunity for redress, as set out in clauses 25 and 26, I think that is an argument for support of the Hon. Mark Parnell's amendment, because mistakes can been made. In fact, mistakes can be made very deliberately, as the Hon. Mark Parnell has pointed out. A public safety order could be issued surrounding a particular event within a very short period of time before that event occurs which would stop anything happening because of that lack of accountability and the lack of a right to object. So, in terms of these public interest activities, it becomes very important that this amendment is supported.

The Hon. S.G. WADE: The Hon. Sandra Kanck has, for the second time in two days, sought to summarise the position of other members and, as the Hon. Ann Bressington had cause to say yesterday, I also feel that the honourable member has put words in my mouth that misrepresent the position of the opposition. She suggested that our position should be summarised that the police do not get it wrong. I do not know where she got that from. We have never said that in the debate, and that is not our view.

We are greatly indebted to the police of South Australia for the work they do in what is clearly a very difficult area of law enforcement. Our view, if I could state it on our own behalf, is that the problem of the control of serious and organised crime is so serious that firm measures, even unprecedented measures, need to be taken against criminal elements. But, in doing so, we remain concerned that the establishment of such a regime does not unnecessarily impact on the freedoms of law-abiding citizens.

So, we do not suggest that the Hon. Mark Parnell's concerns are without foundation. What we do say is that we are willing to maintain a watching brief and to support an early view of the legislation, but we support the legislation substantially as presented by the government, so we do not support this amendment.

The Hon. M. PARNELL: I will not keep the committee long, but I want to put a few more things on the record. There is general agreement, I think, in terms of this legislation that there is the ability for the police to act urgently, and, in fact, the minister's criticism of my amendment was that it would take away from the ability of the police to act in a timely manner. I accept what the minister says, that there are some protections built into the public safety order provision that are around legitimate protest, and the minister drew our attention to clause 23(2)(c), which provides that, if advocacy, protest, dissent or industrial action is the likely reason for the person or members of the class of persons being present at the relevant event, the public interest in maintaining freedom to participate in such activities should be a consideration taken into account. The clause further goes on to provide that not only must the police consider rights of protest, for example, but they also have to weigh up whether the degree of risk involved justifies the imposition of the prohibitions.

What those clauses together say to me is that here is a formula, or a recipe, for divisive groups in our community to shut down legitimate protest. If you knew a protest was coming up—let us say it was the May Day rally, to mention a recent one—and you were determined to stop that going ahead, you could have a group of people who, one after the other, ring the police and say, 'We are going to get those unionists. We are going to be there with baseball bats and guns.' And, once the police get a couple of these calls (an orchestrated campaign), they are going to be very worried. They would not want to disregard that information and they will be put in the position of thinking, 'We are not supposed to issue these public safety orders to shut down democratic rights and protests or industrial issues, but, potentially, lives are at risk here. We have had threats against this rally and we have to take that very seriously. We have to weigh up,' as it says in paragraph (d), 'whether the degree of risk involved justifies the imposition of the prohibitions.'

The police are put in a very difficult situation. It would be difficult to criticise them if they genuinely thought that this intelligence was that there would be blood on the streets of Adelaide. It would be difficult to criticise them for shutting down a rally. Who is to say where the threshold will be for the police to fall over the line and say that the protest will not go ahead? You only need to look at the news every July from Northern Ireland, where they have these sectarian rallies, the orange men and rival groups, and the police go to great efforts to keep them apart. They try to stop them marching down certain streets. At the end of the day the reason it is on our TV news every year in July is that the balance is struck in favour of allowing those democratic rights, even though there is a very clear danger.

It seems that the difference between that situation and here is that we can have these orders being made at very short notice—there is the seven day and three day rule—with no right for anyone to go to any umpire and challenge these orders. I will not put words into the Hon. Steve Wade's mouth, but he appreciates the issues are legitimate but that a balance needs to be struck, and most members of the committee have been striking the balance in favour of giving the police these powers. We do so at our peril and we could find ourselves in a situation where subversive and anti-democratic elements in society seek to use the police via these types of powers to shut down democratic protest, and that is why I will insist on this amendment and the others that are consequential.

The Hon. P. HOLLOWAY: The police already have extensive powers under the Summary Offences Act and can exclude people from dangerous situations. They can do it now under the act, and they do so if there is a danger to people. I do not think there has been any suggestion that the police have misused their extensive powers in relation to that. If you read clause 23(5), a police officer would be in violation of the law if they made an order that 'prohibited a person or class of persons from being present at any premises or event...if the persons are members of an organisation formed for or whose primary purpose is', and so on.

If the honourable member's amendment gets up, effectively it will mean that they will not be used. If you get two rival bikie gangs and it becomes known that one bikie gang wants to assassinate a couple of leaders from another gang, that they will attend an event organised by the other gang, that is where the police can issue an order. Also, under clause 23, in considering whether or not to make a public safety order, the senior police officer must have regard to whether the person or class of persons have previously behaved in a way that posed a serious risk to public safety or security or have a history of engaging in serious criminal activity. Clearly, it is designed for those sort of situations. The police could within the three days intervene to prevent or stop that other group where intelligence might indicate they are about to go and assassinate a couple of members of another gang. Some might think that is not such a bad thing, but the police have an obligation to protect even those people who pose a threat.

The ACTING CHAIRMAN (Hon. R.P. Wortley): Mr Parnell, have you moved both amendments?

The Hon. M. PARNELL: I have moved amendment No.17 and have said that it is a test for the remainder of the amendments that deal with the public safety order provisions.

The committee divided on the amendment:

AYES (2)

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

NOES (17)

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. Schaefer, C.V. Stephens, T.J.
Wade, S.G. Wortley, R.P.

Majority of 15 for the noes.

Amendment thus negatived; clause passed.

Clauses 24 to 28 passed.

Clause 29.

The Hon. SANDRA KANCK: I move:

Page 17—

Lines 2 to 13 [clause 29(1) and (2)]—Delete subclauses (1) and (2)

Line 17 [clause 29(3)]—

After 'person' first occurring insert 'or Committee'

This amendment seeks to delete subclauses (1) and (2). Clause 29 is about the disclosure of the reasons and criminal intelligence. So that anyone reading the Hansard can work out what it is I am doing I will read into the record subclauses (1) and (2), as follows:

(1) Subject to section 30, if a senior police officer decides to make, vary or revoke a public safety order, the officer is not required to provide any grounds or reasons for the decision to a person affected by the decision (but is required to provide such grounds or reasons to a person conducting a review under part 6 if that person so requests)—

that perhaps might answer some of the questions the Hon. Ann Bressington was asking earlier on about public safety orders and people knowing or not knowing—

(2) Information forming the basis for the making, variation or revocation of a public safety order must not be disclosed to any person (except to the Attorney-General, a person conducting a review under part 6, a court or a person to whom the commissioner authorises its disclosure) if, at the time at which the question or disclosure is to be determined, the information is properly classified by the commissioner as criminal intelligence (whether or not the information was so classified at the time at which the public safety order was made, varied or revoked).

That seems to me to be a bit retrospective. I see clause 29(1) as being over the top and flawed. A police officer can make a decision based on whatever he likes, and the only person he has to explain it to is a retired judge doing a review—so, it is very much after the event—and even then he has to disclose it only if the retired judge actually asks for an explanation. That is so wide open.

It is something that is going to happen after the event. In fact, if the retired judge has asked for an explanation, particularly if it was flawed, we might not hear about it in the parliament until almost two years after the decision was made. It does not even require, in this particular instance, that the reasons have to be based on criminal intelligence. So, there is a huge degree of unaccountability in this, and I do not think it is appropriate to be granting police this sort of power. If we are to have this sort of power it ought to reside with the courts.

I also mentioned that I intend, via my amendment No. 38, to delete clause 41 so as to allow for judicial review. So, although the deletion of clause 29(1) is not consequential on the deletion of clause 41, it makes sense, in the context of judicial review, to allow people to know the reasons for the decision. Clause 29(2), which I have already read out, provides that police must not disclose criminal intelligence. That is already part of their job description, and it seems to me to be very foolish to put this into the legislation. There would have to be corruption in our police force if officers of the rank of superintendent or above were disclosing criminal intelligence. So, I am removing this subclause because it is simply unnecessary.

The Hon. S.G. WADE: The Hon. Sandra Kanck's amendment asks the council to consider how the police would exercise their powers and document their decisions. Considering that under clause 37 a review is annual (as I understand it), that may be quite some time after a particular police decision has been made. I ask the minister if it is intended that police prepare grounds and reasons for their decisions at the time of making them, or would they be expected to recall what motivated them up to, perhaps, two years later?

The Hon. P. HOLLOWAY: I am sure the police would not issue a public safety order lightly, and in any event it would have to be done in accordance with the act. As I indicated earlier, police have significant powers now under the Summary Offences Act, and if there is a risk to public safety they can exclude all people. The benefit of the public safety orders is that you can exclude people who are a threat rather than necessarily excluding everyone else as well. Suppose a group of bikie gangs was planning to disrupt an event such as the Clipsal race. If you were aware of that, under public safety orders you could prevent those groups from doing it; under the Summary Offences Act the police would basically have to exclude everyone.

I think it needs to be understood that police have significant powers and obligations now in relation to protecting public safety when they become aware that there is a threat. In a sense, these public safety orders provide an additional level of definition whereby you can simply target the people you know are a threat—providing, of course, that they fit the bill, that they are members of these organised crime bodies that fit the definition. Providing they do that, you could exclude them from events rather than having to close down a whole event in the interests of public safety—which may be the case under the current legislation. I throw that into the debate to broaden the understanding of it.

In relation to the specific question, my advice is that police will document at the time—as one would expect. If it were subsequently to be subject to some scrutiny, that is obviously what you would expect. However, if you have a public event from which, for some reason, people are excluded it is not something that will be kept under a hat. Public comment will be made in relation to that. Where the police exclude members of the public now—which they regularly do in certain situations; there may be a petrol tanker and some risk of explosion, or a bush fire, when police regularly exclude people from their homes—it is always subject to public discussion. There have been arguments about police excluding people; one was raised recently regarding people on Kangaroo Island and whether they should be able to go back to protect their properties when police, in the interests of public safety, had excluded people from entering that area.

There are a lot of occasions when that happens, and it is always subject to public debate—and appropriately so, if these sorts of powers are used. I expect it would be no different in relation to public safety orders.

The Hon. S.G. WADE: I do not want to delay the committee. I want to clarify that I was not addressing the issue of whether the police were being given too much power in relation to public safety orders, I was specifically reflecting on, if you like, what is a pseudo judicial review under clause 37. I welcome the minister's assurance that the police will be documenting their decisions at the time they make them because, in the context of judicial review and whether or not the privative clause is appropriate, one of the advantages of these orders, as opposed to similar police powers under the Summary Offences Act, is that police will be more likely to document and therefore be more reflective in their use of the powers. In that respect, I welcome the assurance of the minister. Whilst the opposition still will be pursuing its amendment to clause 41, that aspect, at least, is welcomed.

Amendment negatived; clause passed.

Clauses 30 to 34 passed.

Clause 35.

The Hon. M. PARNELL: I move:

Page 20, line 27 [clause 35(2)]—Delete 'or was reckless as to that fact'.

Now we are back on the issue of criminal associations, the clause provides:

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

(a) a member of a declared organisation; or

(b) the subject of a control order,

is guilty of an offence.

My amendment seeks to delete from subclause (2), which is the defence clause, if you like, the words 'or was reckless as to that fact.' I do not propose that we have the whole of the debate that we had earlier, but the last substantial contribution from the minister raised a number of issues that I would like to tease out briefly.

The first was that the minister pointed out that the burden of proof is on the prosecution to prove that a person is guilty of criminal association; the burden is not on the defendant to prove that they are innocent. I can accept that as far as it goes, but I still think that we have a problem with this. I seek not to put defendants in the position of having to defend themselves against a charge of criminal association where they did not know that the person that they were dealing with was a member of an outlaw organisation (a declared organisation) or was the subject of a control order. I do not think it is good enough to just say, 'Well, if the police can't prove it, then the charges won't be found and the person won't be found guilty.' I do not want to put them in that position. I think the test is adequate without the recklessness element. In other words, a person does not commit an offence if they did not know. That should be sufficient.

The minister talked about some of the indicators that might lead to a finding of recklessness, and regalia came up again. This raises a very interesting question as to whether clothing is to become a feature of our criminal law. Anyone who has studied social trends over time will know that the best way to give something popularity is to ban it, whether it is a book or music or whatever. For some people it would be a badge of honour to have some regalia. Anyone who has been to South-East Asia will know that their cities are full of tailor shops that specialise in copying whatever it is you bring them. Go to Vietnam and people there say, 'Bring us a photo and we'll make it.' I reckon it would not be too hard to get yourself a Hell's Angels jacket or something made up.

The Hon. A. Bressington: You would get killed if you wore a Hell's Angels jacket.

The Hon. M. PARNELL: If you wore it in the streets of Hanoi you might be okay, but perhaps not in the streets of Elizabeth. My point is that, once we start getting into discussions around regalia and what people are wearing rather than focusing on behaviour, then I think we are in a bit of strife. However, that is a side issue.

The real issues here are: how do innocent people know whether they are putting themselves at risk in those who they deal with; how do they know which persons are subject to control orders; and how do they know which organisations are declared? I pose that as a direct question to the minister. I know that the Government Gazette will contain some information, but that is not of great assistance to the average member of the public who does not subscribe to it or religiously read it online, as we might here. I ask the minister: will the government be publishing lists of declared organisations and lists of persons who have control orders against them, in a way that is accessible to people?

The Hon. P. HOLLOWAY: Again, we have already covered that. The declaration was covered in clause 11, notice of declaration:

As soon as practicable after making a declaration under this part, the Attorney must publish a notice of the declaration in the Gazette and in a newspaper circulating throughout the state.

That is the declaration part, which is covered, but in respect of control orders, no; this law just replaces the consorting law where there is no obligation, as such, to publish it.

The Hon. M. PARNELL: That goes to the heart of it. I accept the minister's answer in relation to controlled organisations—and there will not be that many of them, we have been told. The names of some of these motorcycle groups have been bandied around, and that is a bit easier, because you might know of that group. Whether you know that an individual who you are dealing with is a member of that group if they are not wearing their uniform is an entirely different question. That is very difficult to know. I would be horrified if the test was beards and tummies or something like that, because a few of us might find ourselves socially ostracised.

When it comes to the control orders, if there is no list anywhere; if there is no independent way outside of direct communication with the person to know whether they have a control order against them, then members of our society are running a very great risk of infringing the criminal association provision if they do not know that the person has a control order. I think that the fact that they do not know should be enough to protect them.

If a person can convince a court that they did not know that this person had a control order against them and that, therefore, they should not be guilty of any offence just because they talked to them six times, that should be enough. But having this recklessness element in the bill suggests that the innocent person did not want to know and therefore did not ask. So, all of a sudden we get back to where we were before. There is a new norm of social discourse or social intercourse where it becomes one of those must ask questions if you are to protect yourself from criminal law.

This is a very important amendment to me. I do not think that it undermines the criminal association provision. The minister says that this is just a reincarnation of consorting. I guess when it was consorting, it was consorting with known criminals, and you could say, well, what was the test? Did you know they were a criminal? Just because everyone else knew they were a criminal, it does not mean that you did. It is fraught with danger.

So, let us make it crystal clear that the only people in our community who can be found guilty of this offence of criminal association are those who knew that they were dealing with a member of a declared organisation, who knew that they were interacting with a person who had a control order. Outside of those two circumstances, I do not think we should be putting innocent South Australians at risk of a five-year gaol term.

The Hon. A. BRESSINGTON: I can appreciate what the Hon. Mark Parnell says about innocent people getting caught up in this net. He almost had me until I heard him talk about people who might want to wear a Hell's Angels jacket or the garb that they wear. It is just so obvious to me that Mr Parnell has no idea of how these guys operate. Also, these young kids who are getting recruited into these youth gangs by bikie organisations strive to be able to get those colours, to be able to be identified as a member of that motorcycle gang.

I know that this is a bit off the point, but anyone who wears that stuff without being authorised or sanctioned to do so does so at his own peril. So, in that context, I note that these guys can be slippery-slidey, and I know that if we leave one loophole in this legislation, they will work it, and work it well. If a person is asked in court, 'So, he's never actually told you verbally that he's a member of a motorcycle gang' and they answer 'No'—there you go; you did not know.

As the minister said earlier, when one goes to a clubhouse, to a party, or rides around with them on their bike on the weekend, or associates with them fixing cars or doing whatever they do, and the topic never comes up that they are a member of a motorcycle gang, you would have to be pretty hard pressed not to know.

The only thing that I am concerned about is the point raised earlier by the Hon. Sandra Kanck about Ned, an accountant, who runs a business. On the outside, it is a legitimate business. Three-quarters of his clientele are average, reasonable citizens, but a group of them are not. Could those average, reasonable citizens get caught up in this net of 'or reckless to that'? I find it a long bow to draw that they could, because they would have to have some knowledge, but what is the protection mechanism for them? I am pretty sure that the rest of them would know what they are dealing with.

The Hon. P. HOLLOWAY: The first thing is that there is a defence of reasonable excuse, obviously, if a person is just going there six times a year because he is an accountant. I do not know how often you visit your accountant; I do not visit my accountant that often, but I am sure that he is not a member of a motorcycle gang either.

The Hon. M. Parnell: Did you ask him?

The Hon. P. HOLLOWAY: No—and I am not aware of it. As I said, there would have to be recklessness. Of course, if I had to visit my accountant at a bikie clubroom or somewhere like that, I might have a reasonable suspicion.

This is an example of the sort of warning the police give now under the current consorting laws. 'Person X is a member of', and the organisation is named, 'and the organisation is a declared organisation. It is an offence to associate with a member of a declared association on six or more occasions in 12 months. If you continue to associate with person X or other members of the organisation, you may be guilty of an offence. Do you understand this?'

This is the sort of warning that is given. It obviously makes sense for police to let people know that they are associating with someone who is subject to these orders, as it would then be very hard for them to say that they were not aware.

I stress that there could be cases where, if an investigation is ongoing, the police may not wish to issue such a notice. However, in the vast majority of cases, you would expect that that would be the sort of warning police would give.

The Hon. SANDRA KANCK: I indicate Democrat support for this amendment. I think that I put my reasons on record fairly well when we dealt with a previous amendment of the Hon. Mark Parnell, particularly in regard to the words 'or was reckless as to the fact'. The answers the minister has been able to give to date do not give me any confidence in the wording as it stands.

The Hon. A. BRESSINGTON: I am quite torn over this amendment. In the example of the accountant, if they have 450 legitimate clients and 50 whom the police know are involved in laundering money and doing what they do, the 450 legitimate clients have protection. As police investigations draw to an end, will they receive any sort of notification that the accountant they are visiting is a known member of an organisation? How can it be proved that they are not being reckless in their association with that accountant? He may just be a damn good accountant and nothing illegal is going on.

The Hon. P. HOLLOWAY: I think that it is inevitable that some professionals who are closely involved with these organisations are involved in some sort of behaviour. You only have to look at what happened with Al Capone in the 1920s: he and his associates had lawyers, accountants and other people who were on the take. In fact, in the end, the only reason they put Al Capone behind bars was tax avoidance. Perhaps he needed better accountants, but that sort of situation may occur.

If a person is, for all intents and purposes, operating some legitimate business and, as I say, if people did not know that he was a member (before any offence of criminal association would be committed, apart from having the association), the prosecution would have to present a whole lot of other evidence that they were aware that they were associated with the group. As I said, that would involve other sorts of associations. It can really only be judged on the facts, and it is pretty hard to talk about a hypothetical example.

All I can say is that, if those professional people who do tend to get involved with these gangs are not involved with criminal activity before they start, invariably they must become aware of criminal activity. So, what do you do about a lawyer or accountant who is representing these groups? They must become aware of money laundering and other activities of the principal business, and therefore they would have obligations, one would suspect, to report back. I bet they don't. So I would not be too worried about any purportedly legitimate accountants, lawyers or other people who represent these people having their business damaged as a result of close association with a bikie gang.

In addition, to cover this, clause 35(6) provides:

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

and then you have associations between close family members and associations occurring in the course of a lawful occupation, business or profession.

So, perhaps the example of an accountant is drawing a long bow, but what if someone happens to be a mechanic, or something like that, whom you are just hiring in the course of their occupation? I am sure all of us might do that, and we do not know who might come as a tradesperson, but that obviously is excluded under clause 35(6).

The protection in here is that before someone can be charged with this there has to be that level of knowledge that has to be established for the benefit of the court. It may not be actual proof of membership, because that would be very hard to get, but there would have to be strong facts that would underpin the fact that the person who was being considered to be charged would have some knowledge that the person was a member of one of these organisations.

The committee divided on the amendment:

AYES (2)

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

NOES (18)

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. Schaefer, C.V. Stephens, T.J.
Wade, S.G. Wortley, R.P. Zollo, C.


Majority of 16 for the noes.

Amendment thus negatived.

Progress reported; committee to sit again.


[Sitting suspended from13:05 to 14:15]


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