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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-05-01 Daily Xml
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STATUTES AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL

Committee Stage

In committee.

(Continued from 5 April 2012.)

Clause 40.

The Hon. S.G. WADE: I want to quote from the Law Society/Bar Association joint submission, dated 19 September 2011, because this clause is another example of clauses in the bill which are challenging to establish principles of justice in our system. As I have said on a number of previous clauses, I believe it highlights the need for oversight of these provisions to make sure they are targeted against serious and organised crime, that they are effective in dealing with serious and organised crime and that we respect the constitutional legal principles of our state. To quote from the joint submission, and this is in the context of the consultation package—when it refers to the Evidence (Out of Court) Statements Amendment Bill it is referring to the provisions that have now found their way into this clause—it states:

We consider the entire Evidence (Out of Court) Statements Bill to be unconscionable. We note that it is of universal application, it is not confined to serious and organised crime.

Later in the submission it states:

This provision extends the circumstances in which out of court statements by an unavailable witness may be admitted as truth of its contents. We oppose section 34KA. Our position is that apart from section 34K all evidence should be tested in the usual way by cross-examination.

It goes on:

We are concerned that on its terms section 34KA is open to abuse or misuse by both the witness and the police, particularly sections 34KA(2)(c), (d) and (e). Independent to any suggestion of fear or reprisal, witnesses are generally reluctant to attend court to give evidence. If an opportunity presents itself for a witness to avoid what is widely considered a trauma to submit one's self to cross-examination the witness is likely to take it.

Later, it states:

Section 34KA has a great tendency of prejudicing an accused person as a result of the admission of untested prosecution evidence. This, in turn, will lead to the greater likelihood of a miscarriage of justice.

Clause passed.

Clause 41.

The Hon. G.E. GAGO: I move:

Page 27—

Line 24 [clause 41, inserted section 34KC(1)]—Delete 'court' and substitute 'judge'

Line 33 [clause 41, inserted section 34KC(1)]—Delete 'court' and substitute 'judge'

Line 43 [clause 41, inserted section 34KC(2)]—Delete 'court' and substitute 'judge'

Page 28, line 1 [clause 41, inserted section 34KC(3)]—Delete 'court' and substitute 'judge'

This amendment also addresses a concern raised by the Chief Justice and the Chief Judge. The Chief Justice and Chief Judge noted that during a trial the court is actually constituted by the judge and jury, therefore, in section 34KC the references to a court being satisfied of certain matters and then directing the jury to take certain actions, such as acquitting the accused, or the court discharging the jury should actually be a reference to the judge. The current provisions within the Evidence Act that require direction to be made to a jury refer to such direction being made by the judge. It is, therefore, clear that the provisions contained within section 34KC should be consistent with the Evidence Act. As such, this amendment and the next three amendments each provide for the term 'court' to be replaced with the term 'judge' in section 35KC, where appropriate.

The Hon. S.G. WADE: The opposition will support the amendments.

The Hon. D.G.E. HOOD: Family First supports the amendments.

The Hon. J.A. DARLEY: I will support the amendments.

Amendments carried; clause as amended passed.

Clauses 42 and 43 passed.

Clause 44.

The Hon. S.G. WADE: A brief reference, again to highlight the Law Society/Bar Association joint submission of 19 September 2011, in terms of the issues that are challenging significant variations from our normal processes of justice: in relation to this clause, which deals with trial without jury, the submission says:

We strongly oppose the removal of an accused's right to be tried by jury. Trial by jury is the most fundamental of rights of an accused in the criminal justice system and should not be removed.

Again, I assert that that is a justification for oversight that is proposed.

Clause passed.

New clauses 44A and 44B.

The Hon. S.G. WADE: In the second reading on the serious and organised crime control bill I indicated that, if the opposition were to fully explore the issues in the control amendment bill and this amendment bill through amendments and dialogue between the houses, it could engage the parliament for an extended period. After two and a half years of delay by this government since the Totani judgment, South Australia could not afford that process.

To facilitate the timely passage of the legislation the opposition established the Liberals' Anti-gang Task Force, a subcommittee of the shadow cabinet, which sought submissions from a range of stakeholders on the legislation. This was a very useful process and in that process the Commissioner for Victims Rights, Mr O'Connell, suggested to the task force that, considering the concerns with the bill, he thought there would be value in a parliamentary committee to oversee the issue of serious and organised crime. I will briefly read from Mr O'Connell's letter. He says, in one part:

I concede the nature of organised crime necessitates a drastic and sophisticated legislative response. Although this opens the door to legislation that sets aside a number of safeguards common in law and legal procedure, care should be exercised to avoid 'innocent' citizens becoming victims of state oppression. There needs to be a focus on the 'real threats' so that responses are creative, sharp and properly targeted; otherwise, vague and divergent assertions about the threat may justify nearly any policy decision, legal reform and procedural change. In other words, 'the cure should not be worse than the disease'.

Subsequently he says:

The debate on organised crime should be holistic. For example, if organised crime and corruption go hand-in-hand then the proposed ICAC has a role in the fight against organised crime.

In concluding his letter he states:

The philosophical question—who guards the guardians?—ought to be a prominent issue in the debate on tackling organised crime. The proposed law if enacted is in essence, a direction from the legislature on how certain agencies (primarily the police) in the executive should act. Parliament is the forum to call the executive to account for the operation of the law. Perhaps therefore consideration should be given to establishing a 'State Organised Crime Prevention Council' with an oversight on the operation of the proposed law. In the 1960s such councils existed in the USA to guide State responses to organised crime but also to mount bids for federal funding. I do not envisage these functions in our state. Rather, when the National Crime Authority was established a Parliamentary Committee had an oversight function. Parliaments have Legislative Review Committees to inquire into proposed law and also the operation of existing law. Thus, there are examples where a committee with oversight enhances democratic principles.

If future law reform is required to address organised crime then Parliamentarians on the 'State Organised Crime Prevention Council' would be better informed for debate as the legislative; rather than be captive to the views of the executive in general or the police in particular.

So, the Liberal opposition came to the view, in the light of that letter and its own consideration, that the suggestion of a parliamentary oversight committee is a good one. As an opposition, we are keen to ensure that there is a vehicle to oversee the implementation of the legislation and explore issues in relation to it. In that context, we support the enactment of the legislation substantially as drafted in the context of parliamentary oversight.

We are mindful that this parliament does not want to proliferate parliamentary committees and, given the relationship between corruption and serious and organised crime highlighted by Commissioner O'Connell, the opposition considered that there was an opportunity to link a committee to oversee serious and organised crime and the anticipated independent commission against corruption. I have drafted an amendment (and it is on file) to establish a committee. The amendment envisages combining the parliamentary oversight of an ICAC and the organised crime laws together.

The functions of the committee I propose relate to the areas of focus of the opposition in relation to the serious and organised crime legislation. First, in terms of effectiveness, a parliamentary oversight committee would, according to function (b), be able to monitor the effectiveness and adequacy of the relevant legislation in dealing with serious and organised crime and corruption. In terms of impacts on law-abiding citizens, a parliamentary oversight committee would accord the opportunity to function (c), monitor the impact of the legislation on persons who are not involved in serious and organised crime and corruption. In terms of constitutional compliance, a parliamentary oversight committee would, according to function (d), monitor constitutional compliance by considering the impact of judicial decisions on the legislation.

The committee would encourage restraint in the use of powers, enhance the accountability of law enforcement agencies and build the capacity of the legislature to develop the legislation over time. The amendment I envisage is about accountability and ongoing improvement. The committee would keep abreast of changes, recommend areas of improvement and monitor constitutionality. What was the government's response? In a letter from the Attorney-General on 3 April, he indicated that the government did not support that proposal. The letter of 3 April states:

Amendment No. 2 however is not supported. Section 37 of the Serious and Organised Crime (Control) Act2008 (the Control Act) already provides a mechanism for an annual review to be conducted by a retired judicial officer to determine whether powers under the Control Act were exercised appropriately. The retired judicial officer provides a report on the review to me and I am then required to table the report.

This annual review, combined with the operation section 38 of the Control Act (and proposed section 42A of the Control Act as inserted into the Serious and Organised Crime Control (Control) (Miscellaneous) Bill 2012 (the Control Bill) by your party) clearly demonstrates the Government's commitment to ensuring the legislation operates appropriately. The committee proposed by you is therefore unnecessary.

Just to restate the key phrase, the Attorney-General asserted that the committee proposed is therefore unnecessary. Then, today, less than an hour before the council convened, the Attorney-General wrote to me advising that the government had had a Damascus road experience. The letter dated today states:

I refer to your second set of proposed amendments to the Statutes Amendment (Serious and Organised Crime) Bill 2012 ('the Offences Bill'). As previously indicated to you, Amendment No. 2 was not supported for a number of reasons however I note that in your second set of amendments, some of these reasons have been addressed.

The Independent Commissioner Against Corruption Bill 2012 ('the ICAC Bill') will be introduced this week. Rather than provide for the establishment of a Committee on Crime and Corruption by way of accepting your amendments to the Offences Bill, I have included within the ICAC Bill amendments to the Parliamentary Committee Act 1991 to establish a Crime and Corruption Policy Review Committee.

So, just a month ago, a committee was unnecessary and the government was opposing our amendment, but now the government wants to establish it themselves. Consistent with the opposition's determination not to allow further delay to this bill, I will not be moving my amendment; I am happy to defer. I look forward to the tabling of the ICAC bill tomorrow, and I assure the government that we will give it thorough scrutiny, and that will include making sure that any joint committee with joint responsibility for overseeing serious and organised crime legislation and the ICAC will be effective in both areas.

The Hon. G.E. GAGO: I would like to have it noted on the record that the government does indeed thank the Hon. Stephen Wade for not moving these amendments concerning the establishment of a committee and allowing this bill to proceed.

The Hon. M. PARNELL: I want to put on the record what the minister has just done, which is to say that, from the Greens' perspective, we would have supported the amendment. When you give extraordinary powers, you do need to put in place measures to ensure that those powers are not being abused. I note that the minister has said that there will now be a crime and corruption policy review committee under the new ICAC bill, and we accept that that committee will have some of the same powers that the proposed parliamentary committee the Hon. Stephen Wade briefly proposed and then did not move would have had. We are happy to accept the minister's assurance that that level of oversight will be provided through the new ICAC legislation.

Remaining clauses (45 to 51) and title passed.

Bill reported with amendment.

Third Reading

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) (15:47): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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