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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-10-13 Daily Xml
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HYDROPONICS INDUSTRY CONTROL BILL

Second Reading

Adjourned debate on second reading.

(Continued from 24 September 2009. Page 3422.)

The Hon. DAVID WINDERLICH (19:54): It seems for the most part that I will be of the minority opinion in this council as I have deep reservations about this legislation. I am supportive of preventing harmful drug use, but I have doubts about how effective this legislation will be in achieving its stated aim of curbing drug use and criminal activity. I also believe that the price paid, and the impact on small business and long-established freedoms and rights, is also too great.

As the State Retailers Association has stated, this legislation treats all hydroponics retailers as criminals and is purposefully discriminatory in its application. It appears that the government's approach to life is to remove any and all items that could be abused and aggressively pursue its cotton wool culture. This is not the first time the government has taken this approach, and I expect it will not be the last. It is part of a trend of greater police and government powers without mechanisms to keep them accountable. This legislation, together with the bill regulating second-hand dealers, places a significant administrative burden on small business and puts the onus and cost of crime fighting on small business rather than on detectives and the police.

The government's radical shift away from the Australian values of a fair go and the presumption of innocence is a serious concern. As in the Serious and Organised Crime (Control) Act 2008, the Serious and Organised Crime (Unexplained Wealth) Bill 2009 and the Second-hand Goods Bill 2009, the onus is on the defendant to prove their innocence. So-called criminal intelligence provisions (one of the reasons control orders were thrown out by the courts) severely limit an individual's right to justice by denying access to the basis of the allegations put against them.

For the purposes of this legislation, in the Second-hand Goods Bill, it could mean that a person is denied the right to earn their living on the basis of police suspicion that they may have associated with an associate of a suspected criminal. However, they would never know why they would be denied the right to make an honest living, because all the commissioner could disclose was that it was in the public interest for them to be out of business. Even if they appealed the commissioner's decision, the court would be compelled to keep any criminal intelligence presented secret, nullifying the effect of having an appeals process at all.

The power to deny someone the right to operate on the basis of pure speculation is too much power for an individual to hold without scrutiny—it is too much power for a government to hold without scrutiny. Yet the government continues to expand these powers, and the assistant commissioner has indicated they intend to roll out a streamlined, standardised approach, incorporating criminal intelligence into all legislation. The end effect will be the creation of a state where the police commissioner can veto any individual's right in any industry to earn a living if they suspect it might be in the public interest. A cautious bureaucracy will lean this way naturally as it seeks to minimise any possibility of risk and maximise scarce resources.

Earlier in the year common references began to describe South Australia as a police state. At the time it seemed the label was over the top and would not be accepted by the public. However, legislation like this (and this is just one of a series of similar acts and bills) illustrates the drift towards the authoritarian state that the person had feared. In fact, it vindicates everything that was said at the time of the introduction of the Serious and Organised Crime (Control) Act.

As police powers grow, our society does not necessarily become safer. In fact, I would argue that the growth of the gang of 49 is a very good example of that. If an early intervention had occurred in 2002 or 2003 when the gang of 49 was seven, nine, 10 or 11 years old—

The Hon. S.G. Wade: They are 10 now. They were two then.

The Hon. DAVID WINDERLICH: Well, now you see they are 14, 15, 16, 17 and 18 years, so in 2002 and 2003 when the government came to power, it would have been the gang of 49 in primary school, which presumably would have been easier to deal with. So, if a more proactive, community-based early intervention strategy had been followed then, at much lower cost, the impact on society now would be much less. The point is that police powers alone do not necessarily make a community safer.

I do not believe this legislation will make us safer, either. It imposes unreasonable costs on small businesses, gives greater powers for the police to destroy livelihoods on suspicion alone and turns communities against government rather than working with it to address suspected criminal activity in their ranks.

I will be moving amendments to remove the draconian criminal intelligence provisions to ensure that individuals retain the presumption of innocence and the right to know why they have been denied the opportunity to earn a livelihood. I will also be moving to abolish the legislation's use of control orders which, like the licences, can be applied on suspicion alone. I am also assisting the government by removing this unconstitutional provision, saving it the hassle of yet more taxpayer-funded losses in court. I will speak more about these amendments when we move into committee.

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

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