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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-06-17 Daily Xml
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SERIOUS AND ORGANISED CRIME (CONTROL) (CLOSE PERSONAL ASSOCIATES) AMENDMENT BILL

Introduction and First Reading

The Hon. DAVID WINDERLICH (16:34): Obtained leave and introduced a bill for an act to amend the Serious and Organised Crime (Control) Act 2008. Read a first time.

Second Reading

The Hon. DAVID WINDERLICH (16:35): I move:

That this bill be now read a second time.

The bill is very simple. It simply replaces the term 'close family members' in section 35(6)(a) and (b) with 'close personal associates'. A close personal associate is defined as an uncle or aunt, a first cousin and a boyfriend or girlfriend. It is an attempt to soften the harsh effects of the act on personal relationships not only of bikies but also of anyone with a criminal conviction prescribed by regulations, and that would include any other unionist or environmentalist who might have these powers used against them by a future government.

It will come as no surprise to members that I see the act as fundamentally flawed. I think it is the sort of law that one would expect to find in North Korea or some banana republic rather than in one of the oldest and most successful and stable liberal democracies in the world. I believe that this law violates basic freedoms, including the presumption of innocence and freedom of association. These principles were not made up by academics secure in ivory towers; they were forged in the bloodshed and torture of the English, French and American revolutions. They were produced by people who knew the dangers of street violence but also realised that there must be checks on the powers of government as well.

I believe that the powers in this act are unnecessary. All the actions of bikie gangs that concern us are already illegal. There are, of course, laws that protect against violence, blackmail, robbery, drug manufacture and so on, and the police are successfully using these laws to make arrests and secure convictions.

I quote from the application for a declaration of the Finks tabled by the Attorney-General in parliament on 14 May this year. That declaration states that 42 of the 46 members of the Finks have criminal convictions, including 160 offences of violence, 173 convictions for drug offences, 263 convictions for property crimes, and 137 convictions for firearms offences. This seems to provide pretty clear evidence that the Finks is a dangerous group, or at least have significant dangerous elements in their ranks, but it also clearly shows that they can be fought using existing laws, powers and police techniques.

I believe the heavy-handed approach of this act is potentially counter-productive. On 2 February 2008 Police Commissioner Mal Hyde referred to the cooperation of the community as being vital in the fight against organised crime. He said, 'One of the greatest weapons the police could wield is the help of the public.'

Many people see this law as going too far. For example, I have started a Facebook group called 'I will associate with whomever I bloody well like'. It has 2,000 members. However, last night, I discovered that it pales into insignificance beside 'I'm against the anti-bikie laws', which has over 10,000 members. So, there are potentially 12,000 people who have great concerns about this law and are willing to be on record as saying so.

Adelaidenow polls of several thousand people have had between 30 to 40 per cent of people opposed. These people see the laws in the Serious and Organised Crime (Control) Act as a dangerous over-reaction and, as a result, may be less likely to pass information on to the police, and this would be a setback in the fight against organised crime and violence.

I am also struck with how one-dimensional these laws are. They are all stick and no carrot, all brute force and no intelligence (with the possible exception of criminal intelligence). These laws represent an attempt to crush outlaw motorcycle gangs with brute force but offer no complementary strategy providing incentives to leave—to get the outer sections of these gangs to perhaps voluntarily peel off.

Members might say these people are evil, so, good riddance, but many generals and intelligence agencies involved in wars and counter-terrorist operations have taken a more sophisticated approach. Everyone would be familiar with the 'hearts and minds' strategy used in the Vietnam war; and similar mixed strategies with multiple strands are used in counter-insurgency and counter-terrorist campaigns all around the world. I believe the crude approach of the SOCA laws is, in fact, creating more opposition. A political party has formed called FREE. Lawyers and the human rights constituency are finding common ground with bikies and communities associated with bikies and, before too long, the message of 'one law for all' will resonate with construction workers.

I think these laws are dangerous. Most people accept the basic premise that all power will be abused, and this act gives too much power to the police and the Attorney-General. In this chamber we frequently call for openness and transparency. We say we believe that sunlight is the best disinfectant, but this law has criminal intelligence under which the accused cannot challenge the evidence against them because it is kept secret. Of course, this law has been introduced in a state in which we have no independent watchdog—no ICAC—to monitor abuses of power.

I think this law is old-fashioned. It is often alleged we need these powers because bikies are protected by a code of silence, and I am sure that is true. The code of silence is a very ancient code and has protected criminals for thousands of years. It is arguably hard to penetrate a code of silence with traditional methods. However, this is the 21st century, and we have a range of options. DNA fingerprinting is used to solve cold cases that once would have relied on eye witnesses with the courage to testify. There was an example of this early last month when a rapist was recently charged for a crime committed 20 years ago as a result of DNA testing. There is phone tapping. There were 2,929 phone taps authorised last year across Australia (1,100 more than in the US).

Despite these concerns and the new crime-fighting tools, bikies and other criminals will sometimes escape justice, but that does not justify such draconian rules. I am fully aware of the growth of more sophisticated cyber crime, but that is not what this act or any of the government's rhetoric has focused on.

I think these laws are hard-hearted—unnecessarily so. Under section 35(3)(a) people with a criminal conviction, here or in another state, could be subject to a control order and, as a result, cut off from family and friends, not because they are currently committing a crime but because five, 10 or 20 years ago they committed a crime and are swept up in a police campaign against a particular outlaw group. I can think of specific people such as the Christian Longriders whom I have met during the past year who are doing their very best to make up for past misdeeds who would fit into this category.

Clearly, I would scrap the whole bill and start again, if I could, and, with the appropriate safeguards, I could personally accept quite strong action to disrupt organised crime. However, this is not possible and today my aims are much more modest. I am simply targeting sections of the act that ban very reasonable associations with close family members.

I believe the criminal association offence in the Serious and Organised Crime (Control) Act is the most obnoxious element of the act. Section 35 potentially turns the most ordinary activities into criminal offences. This law is designed to disrupt organised crime and I have some sympathy with that, but section 35 actually has the potential to disrupt largely innocent families. Section 35 reads:

(1) 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.

Maximum penalty: Imprisonment for 5 years.

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

(a) a member of a declared organisation; or

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

or was reckless as to that fact.

If the subject of a control order or a member of a declared organisation is your uncle, aunt, cousin, nephew, niece, life-long friend, boyfriend or girlfriend, you would probably know they were a member of a declared organisation and therefore be reckless as to that fact. You would therefore be faced with breaking the law or breaking your relationship. While I do not have any sympathy for cold-blooded killers, I know that in many cases we are talking about people with a history of convictions who may be trying to reform, petty criminals, or potentially victims of great abuse in their lives. Section 35 goes on:

(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 6 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 5 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.

(5) A person may be guilty of an offence against subsection (1) or (3) in respect of associations with the same person or with different people.

Subsection (6) gets to the nub of my amendment:

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:

(a) associations between close family members;

Close family members are defined in paragraph (b), which provides:

A person is a close family member of another person if—

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

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

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

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

So, uncles, aunts, cousins, nephews and nieces are not counted as close family. If you see one of these relatives six times a year, say, at Christmas, Easter, Mother's Day, Father's Day, a christening or a birthday, you could be charged with the offence of criminal association and you could be charged with an offence even if the person you are associating with has never been convicted of a crime.

I note that four members of the Finks did not have a conviction which could, of course, just mean that they might not have been caught yet, but presumably the presumption of innocence comes into play there. If the Finks are the worst of the outlaw gangs, it is safe to assume that there will be higher numbers of people without convictions, or with convictions that are some years old, in other gangs. The act then goes on to outline the defence of reasonable excuse and then deny that defence to significant categories of people. Subsection (7) 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.

So, you must prove why you associated but, even if you can prove why you associated, under subsection (8) that does not necessarily count. Subsection (8) 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 the declared organisation; or

(b) was a person the subject of a control order; or

(c) had a criminal conviction (against the law of the state or another jurisdiction) of a kind prescribed for the purposes of subsection (3).

Subsection (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.

In other words, you have to prove that you were not associating to commit a crime. As a result, we have a criminal offence created not because of what you have done but because of who you know. In fact, it is subsection (8) that the government tends to highlight, as this is the one that prevents criminal bikies from associating with each other. The rest of section 35 has more drastic effects upon potentially innocent people.

In summary, the government's anti-bikie laws have turned Christmas dinner into a potentially criminal activity. My amendments would, among other things, enable close relatives, boyfriends and girlfriends to meet for Christmas, Easter, family reunions and birthdays based on the assumption that, if people really were convicted of offences, they would be in gaol rather than out at Christmas dinners so, therefore, it should be safe to meet with them.

Perhaps the best way to conclude my remarks about the injustice of these laws is to quote just a few of the constituents who have written to me to express how they feel about the anti-family association laws. I believe they are a broad representation of how many people in the community feel about these laws. One person wrote:

I have a brother and an uncle who are worried about sending my daughter a birthday present in the mail...now how ridiculous is that...my five year old little girl loses.

Another one says:

That is totally outrageous. I will mix with whomever I choose, although anyone who I know is violent I keep away from...there are plenty of laws covering drugs, theft and violence. Why extra laws?

Another one says:

This is getting completely out of hand, I've said it once, what about focusing on street gangs or crime syndicates. Will clearing out all the bikie squads fix the rest of society's problems?

On they go. It is evident that many in the community share my concerns with these laws, and I implore members to consider the negative impacts the act will have on many families, criminalising one of the most positive associations we have in our society: our family.

Debate adjourned on motion of Hon. J.M. Gazzola.

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