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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-07-23 Daily Xml
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SERIOUS AND ORGANISED CRIME (CONTROL) (DECLARED ORGANISATIONS) AMENDMENT BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (21:49): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

In 2007-08 the Government began the process that would lead to the enactment of the Serious and Organised Crime (Control) Act 2008. Section 4 of that Act says:

4—Objects

(1) The objects of this Act are—

(a) to disrupt and restrict the activities of—

(i) organisations involved in serious crime; and

(ii) the members and associates of such organisations; and

(b) to protect members of the public from violence associated with such criminal organisations.

(2) Without derogating from 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.

On November 11, 2010 the High Court, by a majority of 6-1, decided that at least in so far as the Magistrates Court was required to make a control order on a finding that the respondent was a member of an organisation declared to be a criminal organisation under the Act, that court was acting at the direction of the executive, was deprived of its essential character as a court within the meaning of Chapter III of the Commonwealth Constitution and that section was, therefore invalid (South Australia v Totani (2010) 242 CLR 1). The net effect of that decision was that a key part of the legislative scheme in the Act was inoperable. That, in turn, meant that the legislative scheme for attacking criminal organisations and their members was rendered ineffective and the essential objectives of the Act thwarted.

In 2011-12, the Government prepared extensive amendments to the Act in light of Totani and the subsequent decision of the High Court to invalidate the New South Wales equivalent legislation in Wainohu v New South Wales (2011) 243 CLR 181. These amendments represented, on the best advice then available to Government, an attempt to place the legislation and the accomplishment of its aims on a sound constitutional footing. The amendments were passed and came into effect as the Serious and Organised Crime (Control) (Miscellaneous) Amendment Act 2012.

Since the 2012 amendments, no application has been made in relation to any organisation. However, SA Police, the Crown and other Government legal experts have been preparing applications based on the scheme as amended in 2012. In the meantime, the High Court has heard and delivered judgment on a constitutional challenge to the equivalent Queensland legislation. The Queensland Act differs from both versions of the South Australian Act. The High Court dismissed the challenge and upheld the validity of the Queensland scheme in Assistant Commissioner Condon v Pompano Pty Ltd & Anor [2013] HCA 7.

The Queensland scheme is contained in the Criminal Organisation Act 2009. The Act provides that the Supreme Court of Queensland, on application by the Commissioner, may declare an organisation to be a 'criminal organisation' if the Court is satisfied that some of the organisation's members 'associate for the purpose of engaging in, or conspiring to engage in, serious criminal activity' and the organisation is 'an unacceptable risk to the safety, welfare or order of the community'. In considering whether to make a declaration, the Court must have regard to various matters, including information before the Court 'suggesting current or former members of the organisation have been, or are, involved in serious criminal activity, whether directly or indirectly and whether or not the involvement resulted in convictions'.

If an organisation is declared to be a criminal organisation under the Act, the Supreme Court may, if certain conditions are met, make control orders for members of the organisation and persons who associate with members. Control orders may prohibit the person subject to the order from doing various things, including associating with members of any declared criminal organisation or with other controlled persons and applying for or undertaking stated employment. That an organisation has been declared to be a criminal organisation is also relevant for the making of other orders under the Act.

It is immediately apparent that the Queensland scheme is almost identical to the current South Australian one, except that the jurisdiction to declare an organisation a criminal organisation in Queensland is conferred upon the Supreme Court as a court but in South Australia, the jurisdiction is conferred on what the South Australian Act calls an 'eligible judge' acting as persona designata. South Australia chose the eligible judge model in 2012 because Western Australia, the Northern Territory and New South Wales then used it, and because the eligible judge model used by New South Wales had not attracted unfavourable High Court comment in the decision in Wainohu.

Like South Australia (and, indeed, all jurisdictions that have such legislation) the Queensland Act had extensive provisions easing the strict rules of evidence in the area of what is commonly known as 'criminal intelligence'. South Australia was the pioneer in this area and the constitutional validity of the South Australian provisions was upheld in K-Generation v Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501. South Australian criminal intelligence provisions were standardised in the constitutional model by the Statutes Amendment (Criminal Intelligence) Act 2012. This is centrally relevant because the challenge to the Queensland statute in Pompano was a challenge to the operation of the criminal intelligence provisions in that Act.

The majority was constituted by Hayne, Crennan, Kiefel and Bell JJ. They said:

Contrary to a proposition which ran throughout the respondents' submissions in this case, noticing that the Supreme Court must take account of the fact that a respondent cannot controvert criminal intelligence does not seek to deny the allegation of legislative invalidity by asserting that the Supreme Court can be 'relied on' to remedy any constitutional infirmity or deficiency in the legislative scheme. Rather, it points to the fact that under the impugned provisions the Supreme Court retains its capacity to act fairly and impartially. Retention of the Court's capacity to act fairly and impartially is critical to its continued institutional integrity.

In this respect, it is useful to contrast the impugned provisions of the [Queensland Act] with the [New South Wales Act] considered in Wainohu. It will be recalled that the [New South Wales Act] provided that an eligible judge need not give reasons for declaring an organisation to be a declared organisation. That an eligible judge could choose to do so was not to the point. The [New South Wales Act] was held invalid as repugnant to or inconsistent with the institutional integrity of the Supreme Court of New South Wales. But in the present case, the [Queensland Act] does not in any way alter the duty of the Supreme Court to assess the cogency and veracity of the evidence that is tendered in an application for a declaration of an organisation as a criminal organisation.

It is not pellucidly clear that the majority were of the opinion that having the declaration function performed by the Supreme Court, as opposed to an eligible judge, was crucial to the validity of the legislation. It is certainly clear that the ability of the court to ensure the delivery of procedural fairness was central and it is also clear that the majority regarded the inherent characteristics of the judicial function as central to validity. It is, of course, easier to find these matters where the deciding authority is a court acting as a court. An 'eligible judge' has no such inherent jurisdiction or inherent characteristics to fall back upon.

For French CJ, the provisions of procedural fairness were central. He said:

The effect of Pt 6 of the [Queensland Act] upon the normal protections of procedural fairness is significant. On the other hand, the Supreme Court performs a recognisably judicial function in determining an application under that Part. It is not able to be directed as to the outcome. It retains significant inherent powers and its powers under the [Uniform Civil Procedure Rules] in relation to the proceedings. The process is analogous in some respects to that used in the determination of public immunity claims in the exercise of the inherent power of the Supreme Court. The provisions of Pt 6 relating to an application for a criminal intelligence declaration do not impair the essential and defining characteristics of the Supreme Court so as to transgress the limitations on State legislative power derived from Ch III of the Constitution.

It is clear that, for Gageler J, the fact that it was the Supreme Court was central to validity:

There should be no doubt and no room for misunderstanding. Procedural fairness is an immutable characteristic of a court. No court in Australia can be required by statute to adopt an unfair procedure. If a procedure cannot be adopted without unfairness, then it cannot be required of a court. '[A]brogation of natural justice', to adopt the language of the explanatory notes to the Bill for the [Queensland Act], is anathema to Ch III of the Constitution.

Chapter III of the Constitution admits of legislative choice as to how, not whether, procedural fairness is provided in the exercise of a jurisdiction invested in, or power conferred on, a court. Procedural fairness can be provided by different means in different contexts and may well be provided by different means in a single context. The legislative choice as to how procedural fairness is provided extends to how procedural fairness is accommodated, in a particular context, to competing interests. … From that starting-point, it is sufficient to engage in an analysis that leads to the conclusion that nothing in the scheme of the [Queensland Act] or in procedural rules not excluded by the [Queensland Act] is necessarily sufficient to address that unfairness if it arises, but that the Supreme Court of Queensland retains inherent jurisdiction to stay a substantive application if unfairness becomes manifest. (emphasis added)

It is clear beyond argument from this discussion that the constitutionally safe course is to replace 'eligible judges' with the Supreme Court and to make consequential amendments to the Act. The Northern Territory did so in 2011 (Serious Crime Control Amendment Act 2011). After Pompano was decided, New South Wales amended a Bill already in Parliament to do so (Crimes (Criminal Organisations Control) Amendment Bill 2013). Victoria legislated using the Supreme Court in the Criminal Organisations Control Act 2012. The trend is clear. South Australia must now stand with the others, and with that legislative model that has been definitively ruled to be valid.

The opportunity has also been taken to make some minor adjustments to the Act that, on advice, are consistent with constitutionality and ameliorate the effect of transition to a court based system.

In addition, the opportunity has also been taken to insert a new provision into the Serious and Organised Crime (Unexplained Wealth) Act 2009 (the Unexplained Wealth Act). Currently, information lawfully obtained by police pursuant to a statutory authority other than under the Unexplained Wealth Act (for example a search warrant under the Criminal Assets Confiscation Act 2005, Summary Offences Act 1953 or the Controlled Substances Act 1984) cannot be used as evidence for the purpose of unexplained wealth proceedings or in support of an application for the use of investigative powers under the Unexplained Wealth Act.

This legislative amendment provides authority for the South Australian Police to use such information (lawfully obtained under other powers) for the purposes of the Unexplained Wealth Act.

The Government believes that a constraint on the use of information that has been lawfully obtained under another Act or law is unreasonable in the context of applications under the Unexplained Wealth Act. Further, a similar provision to the proposed amendment is already included in the Serious and Organised Crime (Control) Act 2008 at section 39Y(1).

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Serious and Organised Crime (Control) Act 2008

4—Amendment of section 3—Interpretation

This clause amends section 3 to remove the definition of eligible Judge in addition to other definitions used in connection with provisions relating to eligible Judges.

5—Amendment of section 5A—Criminal intelligence

This clause deletes a provision of section 5A that is relevant only to proceedings before eligible Judges.

6—Repeal of section 8

Section 8, providing for the appointment of eligible Judges, is repealed by this clause.

7—Amendment of section 9—Commissioner may apply for declaration

Section 9 provides for applications for declarations to be made to eligible Judges. Under the section as amended by this clause, applications are to be made by the Commissioner of Police to the Supreme Court. A number of consequential amendments are made to the section, including the replacement of 'statutory declaration' with 'affidavit'.

The section as amended will also include a new requirement for the Commissioner to make a copy of an application available for inspection by a person whom the Court considers should be provided with an opportunity to inspect the application.

8—Amendment of section 10—Publication of notice of application

The amendments made to section 10 by this clause are consequential on the fact that applications are to be made to the Supreme Court rather than to an eligible Judge. Notice of an application is to advise interested parties of their rights in relation to making or providing submissions to the Court at the hearing of an application.

9—Amendment of section 11—Court may make declaration

Section 11 currently provides that an eligible Judge may make a declaration on an application under Part 2. This clause amends the section to replace references to eligible Judges with references to the Court.

10—Amendment of section 12—Notice of declaration

Section 12 provides that a declaration is of no effect until notice of it is published as required in the Gazette and in a newspaper circulating generally throughout the State. Under the section as amended, the notice will be of no effect until published as required unless the Court otherwise directs.

11—Amendment of section 14—Revocation of declaration

Section 14 provides for the revocation of declarations on application by the Commissioner or a person or organisation of a kind specified in subsection (1). As amended by this clause, the list of persons who can make applications will include persons whom the Court considers should be entitled to make an application in the interests of justice.

12—Substitution of section 15

This clause repeals section 15 and substitutes a new section.

15—Procedure at hearings

The proposed new section provides that the following are entitled to make oral submissions at the hearing of an application under Part 2:

the Commissioner;

the organisation to which the application relates;

any person who is alleged in an affidavit supporting the application to be a member or former member of the organisation;

any person who is a member or former member of the organisation or other person who may be directly affected (whether or not adversely) by the outcome of the application;

any other person whom the Court considers should, in the interests of justice, be entitled to make submissions.

A party referred to above (an interested party) may also, with the permission of the Court, provide written submissions.

If an interested party is not the applicant, he or she may file affidavits in response to the application, and the applicant may file affidavits in response to any affidavit filed by an interested party. At the hearing, the applicant or an interested party may adduce oral evidence or cross-examine a person who has given evidence or provided an affidavit if the Court considers that it is in the interests of justice to permit the evidence or cross-examination. The Court may require a person who applies to adduce evidence or cross-examine another party to file a notice of contention specifying the grounds on which the application is made.

13—Repeal of section 16

Section 16, which requires an eligible Judge to make reasons for a declaration or decision available, and to ensure that the reasons are published in the Gazette, is repealed by this clause.

14—Amendment of section 18—Practice and procedure

Section 18 as amended by this clause will provide that, in proceedings in relation to applications under Part 2, the Court is not bound by the rules of evidence but may inform itself on any matter as it thinks fit. The Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

15—Substitution of section 19

Section 19 is repealed as the regulation making power provided by the section is no longer required. A new section, providing that the commencement of an appeal against a declaration does not affect the operation of the declaration, is substituted.

16—Amendment of section 22—Court may make control order

Section 22 as amended by this clause will require the Court, in determining an application for a control order, to have regard to the reasons given by the Court for making any relevant declaration.

17—Amendment of section 22A—Interim control orders

Under section 22A as amended by this clause, the Court may make an interim control order if satisfied that it is appropriate to make the order in all of the circumstances.

18—Amendment of section 22C—Variation or revocation

Under section 22C, an application for the variation or revocation of a control order can only be made by the respondent with the permission of the Court. The section currently provides that permission may only be granted if the Court is satisfied that there has been a substantial change in the relevant circumstances since the control order was made or last varied. Under the section as amended, the giving of permission to make an application is entirely at the discretion of the Court.

19—Amendment of section 22D—Right to object if interim order made ex parte

Section 22D currently requires that a copy of a notice of objection be served on the Commissioner of Police by registered post at least 21 days before the day appointed for hearing of the notice. As amended, the section will simply require that a copy of the notice be served on the Commissioner by registered post.

20—Amendment of section 39U—Representation of unincorporated group

The amendment made by this clause is consequential.

21—Amendment of section 39W—Costs

The amendments made by this clause are consequential.

22—Amendment of section 39Y—Use of evidence or information for purposes of Act

This clause amends section 39Y to make it clear that information properly classified as criminal intelligence may be used by law enforcement and prosecution authorities for the purposes of the Act and may be admitted in evidence or otherwise used in proceedings under the Act.

Schedule 1—Related amendment of Serious and Organised Crime (Unexplained Wealth) Act 2009

1—Insertion of section 43A

This clause amends the Serious and Organised Crime (Unexplained Wealth) Act 2009 by inserting a new section based on section 39Y(1) of the Serious and Organised Crime (Control) Act 2008. The section provides that evidence or information obtained by the lawful exercise of powers under an Act or law may be used by law enforcement and prosecution authorities for the purposes of the Act and is not inadmissible merely because it was not obtained for the purposes of the Act.

Debate adjourned on motion of Hon. J.M.A. Lensink.

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