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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-03-29 Daily Xml
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SERIOUS AND ORGANISED CRIME (CONTROL) (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

The Hon. S.G. WADE (15:22): It was a long second reading speech and, considering the responsibilities we have to Government House, I was hoping, in resuming my remarks, to indicate that I intend to conclude my contribution on this bill today and leave aside a number of issues that I was intending to address. Contrary to my earlier intention, I intend to raise those issues in the second reading on the Statutes Amendment (Serious and Organised Crime) Bill.

I think, in terms of the government facilitating the legislative program, we owe it to the Attorney-General to let him know the indicative position of the opposition on the serious and organised crime legislation before the weekend break so that we can have further discussions over the weekend before the house resumes with the committee stage of these bills. In that context my remarks this afternoon will be relatively short, and we can continue with further discussion on the other bills.

In briefly concluding the point I was making about constitutional issues, I was indicating that the constitutional issues in relation to anti-association are more acute in 2012 than they were in 2008. Labor, having botched the first SOCA legislation, has reduced our flexibility. Following the Totani and Wainohu cases, anti-association laws are an area that lacks legal clarity and is increasingly an area of judicial activism.

As a state, we also have less flexibility because we cannot afford to lose the time that we have lost in the High Court challenges with Totani (both Supreme Court and High Court); we cannot afford to lose even more years in High Court challenges. We cannot afford to be wasting hundreds of thousands of dollars more in legal battles rather than fighting crime on the streets; and we cannot afford another High Court loss which emboldens the defiance of outlaw motorcycle gangs.

The Liberal opposition's concern in relation to constitutional issues is to minimise the risk that we will end up back in the High Court. The government indicates that it expects High Court challenges to the legislation and, if any of them are successful, not only would the legislation come back but, in my view, the outlaw motorcycle gangs would be re-emboldened.

I note that in drafting the bill, the Attorney-General tells us that he was strongly influenced by the benefit of consistency in the legislation between the states with similar bills, particularly South Australia, New South Wales and Western Australia. If the legislation is similar, we are told, a challenge to one would be supported by the others, thereby sharing the costs and, of course, the lessons from the litigation against one could be shared by the others.

South Australia does vary in significant ways from both the Western Australian and New South Wales bills, and I think it would be fair to say that it differs in ways that are more likely to be constitutionally challenging before the High Court. In that context, if there is going to be an attack on one of those three, or related legislation, it is likely to be the South Australian one, so I really question and do not understand why this Attorney-General, given South Australia's track record in terms of High Court challenges, and given the point he makes about the benefits of consistency, has gone out on a limb on so many of these issues.

The concerns the opposition has in relation to these bills could be summarised into a set of three concerns. Firstly, we are concerned to enhance the prospects of the bills being effective in controlling serious and organised crime, and in my earlier comments I stressed that we note the concerns about the effectiveness of the anti-association legislation.

Secondly, we are concerned that the legislation needs to be targeted on criminal organisations and does not unnecessarily impact on law-abiding South Australians. Thirdly, we want to minimise the risk that the legislation is unconstitutional so that the litigation does not impair the implementation of the scheme and the taxpayer is not put to unnecessary legal costs.

These three criteria raise a host of concerns in relation to the bills, and if we were to fully explore these issues through amendments and dialogue between the houses, it could engage the council, and for that matter the parliament, for an extended period. After 2½ years of delay, South Australia cannot afford that process, and so we were forced to consider what else we could do to deal with the issues this legislation raises for us.

Many of the concerns are about the use of police and prosecutorial discretions. In that context, we are mindful of the fact that a number of the concerns we have had in relation to legislation in recent years, and for that matter concerns of legal stakeholders and so forth, have not in fact materialised, not because the legislation was tightly drawn but because the police and prosecutors have shown wisdom and restraint in their use of the laws and have, as we would expect, respected the rights of law-abiding South Australians.

In that context, we are willing for the legislation to be enacted substantially as drafted, in the context of oversight. What do I mean by 'in the context of oversight'? In the consideration of this legislation, the opposition established what we called the 'Liberal anti-gangs task force', which was a subcommittee of the shadow cabinet which sought submissions from a range of stakeholders on the legislation. That was a very useful process, and in my second reading contribution on the other bill I will give a fuller overview of the stakeholder perspectives but, in the context of what needs to be a short contribution this afternoon, I would like to pick up on a particular contribution from the Commissioner for Victims' Rights.

The Commissioner for Victims' Rights, Mr O'Connell, suggested to the task force that he had a number of concerns about the bill and that he thought there would be value in a parliamentary committee to oversee the issue of serious and organised crime. The Liberal opposition has come to the view that that is a good suggestion and we believe that an oversight by such a committee would encourage restraint in the use of powers.

As I said before, we have seen that restraint from police and prosecutors over recent years. We look forward to that wise use of the law moving forward, but we also think it is appropriate to support that reflective approach through appropriate accountability to a parliamentary committee. It enhances the accountability of law enforcement authorities and builds the capacity of the legislature to develop the legislation over time.

In that context, of course, we do not want proliferation of parliamentary committees in this parliament. But members would be aware that the government has undertaken to introduce an independent commission against corruption and that it is common practice for such commissions to have a parliamentary oversight committee. In that context, we are interested in the comments that Mr O'Connell was making about the interrelationship between organised crime and corruption.

We are proposing to the parliament that, given that linkage, it would be appropriate for the committee that is providing oversight for the independent commission against corruption to also provide oversight in relation to implementation of serious and organised crime legislation. I would hope that the committee spends very little time on serious and organised crime in the sense that, if the laws are seen to be applied appropriately, the time needed for the committee to address issues coming out of this legislation might be relatively small.

In relation to the process of the interaction between the ICAC bill, which is yet to be tabled, and this legislation, we will be moving an amendment to this bill. It may well be necessary, in the context of the ICAC legislation, to finetune the amendment to this bill, but we think that is an important part of putting in place legislation that can provide appropriate oversight to minimise the risk of law-abiding South Australians being unnecessarily impacted by this legislation and to minimise the risk of unconstitutionality and to ensure the effectiveness of the legislation dealing with outlaw motorcycle gangs.

In that context, the Liberal Party will be offering three sets of amendments. The first set of amendments we will be insisting on. One is to provide a review of the legislation, and the other is to provide for the parliamentary oversight committee. In the context of the review, the government has already accepted that in the lower house. We welcome that, and we look forward to a similarly constructive approach in relation to the parliamentary oversight committee.

We are developing two further sets of amendments. But in the context of facilitating the passage and the implementation of the legislation, that will be predominantly through dialogue with the government, encouraging the government to take amendments on board. With some amendments, we will reserve the right to move and divide in this parliament to put issues on the record but, as I have said, we are keen to facilitate the passage of this legislation through the parliament, following due scrutiny but not in such a way as to endure delay.

We look forward to the committee consideration of the legislation next week. Having said that the opposition will not be insisting on amendments, we will be taking the opportunity to highlight concerns about clauses. As I said, we have a large number of concerns, and we would like to get them on the record. If you like, it is almost the menu, or the task list, for the parliamentary committee to keep an eye on these and other issues that they themselves become aware of.

There may well be issues which the legal stakeholders and/or the opposition have identified in the legislation and which emerge through implementation as issues for concern. With those words, I conclude my comments on the second reading of this bill. I will provide more extensive comments at the second reading of the statutes amendment bill next week. I look forward to the committee stage of both bills in the days ahead.

The Hon. CARMEL ZOLLO (15:34): The good reputation of the state has for too long been blighted by those who would wish to bring violence to our streets. I am certain that none of us would want to see innocent bystanders caught out and possibly pay the price for the reckless behaviour of those organised crime groups in South Australia.

A strong message needs to be sent to these groups that this behaviour will not be tolerated in any circumstance. This is exactly what the government is seeking to achieve with the package of legislation which the Attorney-General, the Hon. John Rau, has introduced into this parliament. The bill currently before this chamber is an essential element of this package, finally giving our law enforcement agencies the ability to effectively deal with organised crime in this state.

It is often difficult to balance the need to protect the public from the scourge that is organised crime, as well as protect individual rights and liberties, which are central to our democracy. As the Attorney-General has made mention of in the other place, every effort has been made to consult with all stakeholders, including the Legal Services Commission, the Commissioner of Police as well as the judiciary.

This consultation process was undertaken in light of the 2010 decision by the High Court to strike down elements of the original legislation which it felt did not allow for proper judicial independence when administering the control orders. The government has ensured that the bill before the chamber, whilst allowing the necessary powers for law enforcement authorities to attack organised crime groups, will continue to protect the individual rights and freedoms of South Australians.

I expect all members would have received correspondence from the South Australian Police Association regarding the proposed amendments of the proposed legislation. I think it appropriate to place a few of these comments on the record, especially in relation to the government's efforts to address the High Court's concerns. I have a couple of quick quotes from their letter:

Quite apparent to the Police Association is that the bills tabled by the government, respond directly to the concerns of the High Court in the decisions of Totani and Wainohu. They appear to have been framed to withstand constitutional challenges in the future.

It goes on to state:

It appears to the association that, in relation to the repair bill, the government has engaged in a thorough process to find amendments that achieve this aim.

The Police Association's comments certainly indicate that government is making the right decisions when it comes to tackling bikie violence in our community.

I would now like to highlight some of those amendments in the bill that the government believes will ensure that the legislation before us meets the requirements set down by the High Court. As the Attorney-General has previously made mention of, the government will remove the provision that enabled the attorney-general of the day to make declarations against a particular organisation. To ensure complete judicial independence from the executive, the eligible judge model will be introduced, the same model which I understand is used in other jurisdictions such as Western Australia and the Northern Territory.

Additionally, the admission of evidence from previous court proceedings may be used by the presiding judge in their decision on whether or not to make a declaration against an organisation. This will ensure that the correct decision is made and the group is not allowed to hide behind the laws of evidence. In a further effort to ensure that the legislation will stand up to judicial review, submissions for control orders against an individual will have to be lodged by the police commissioner directly to the Supreme Court.

This bill, whilst addressing the concerns held by the High Court in its Totani and Wainohu decisions, also seeks to build on the existing legislation introduced by former attorney-general the Hon. Michael Atkinson in 2008. The government has introduced provisions to allow for confidential witness statements to be used as part evidence in the declaration process. The insertion of the provision will finally give victims and former members of the offending organisation the ability to come forward and give evidence against them.

I think one cannot overstate the importance of this provision. For many years now, police efforts to take down gangs have often been frustrated by the difficulty in attaining reliable information of the activities which has meant that mounting a successful prosecution is extremely difficult. This has been a result of the constant intimidation and acts of violence against those who would seek to assist law enforcement to bring down these organised crime gangs.

Whilst I do not want to go over what the Attorney-General has previously said, I would like to quickly run through a few other of the new provisions that have been included in the proposed legislation, namely the introduction of a civil remedy. All members will be liable to pay damages where a member of a prescribed organisation is found to be civilly liable by the courts where it has been proven they have been involved in illegal activities on behalf of the organisation. This approach will enable our law enforcement bodies the means to financially cripple these organisations, severely curtailing their activities.

Along with the civil remedy, it is the government's intention to make it an offence to recruit new members to a declared organisation. Proposed penalties for doing so could result in up to five years gaol. The Attorney-General, as mentioned in the other place, is seeking to disrupt gang activities even further by making it an offence to make premises regularly available to members of a declared organisation and also an offence to be involved in an organisation which knowingly gives safe haven to members of declared criminal entities.

This bill is about choices—the choice of whether we want a state where the rule of law prevails or one where the general public is held hostage to the interests of organised crime. With this legislation the government has taken on board the concerns of the High Court in regard to the act as it currently stands. The amendment bill before us will ensure that this act operates completely independent of government, ensuring that the only people with anything to fear are those who would terrorise our streets.

Essentially this legislation, as I have previously mentioned, will finally allow our police force the power to disrupt these criminal elements out of existence, making this state a far safer place in which to live.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (15:43): I take this opportunity to thank honourable members for their second reading contributions. This is an important piece of legislation. It is part of a raft of strategies that this government has put in place—a series of measures that we have put in place to assist us in combating organised crime. As I said, I thank members for their second reading contributions and look forward to the committee stage.

Bill read a second time.


At 15:44 the council adjourned until Tuesday 3 April 2012 at 14:15.


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