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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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STATUTES AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 15 March 2012.)

The Hon. S.G. WADE (15:52): I rise to support the Statutes Amendment (Serious and Organised Crime) Bill 2012. I would remind members that this bill is the sister bill to the Serious and Organised Crime (Control) (Miscellaneous) Amendment Bill, which I addressed last Thursday. To facilitate the debate in the second reading on the control bill, I summarised the opposition's position on both bills: to support the bill, subject to the establishment of a parliamentary committee of oversight.

This second reading speech is effectively the second part of a two-part contribution to the debate. It was my view that it was important that we give the Attorney-General clarity as to where the opposition was going on this bill, and I thank the Attorney-General for exchange of letters in the last two or three days, which has given us some clarity as to how to progress both the control bill and the Statutes Amendment (Serious and Organised Crime) Bill, otherwise known as the offences bill.

To facilitate thorough but expeditious scrutiny of this legislation, the Liberal opposition established a Liberal anti-gangs task force to take written and oral submissions from key stakeholders and to report to the parliamentary Liberal Party on the strengths and weaknesses of the bill. The task force was a subcommittee of the shadow cabinet and involved Dr Duncan McFetridge, member for Morphett and shadow minister for police, Ms Vicki Chapman, member for Bragg and shadow minister for transport and infrastructure, and me.

The opposition sought input from a range of stakeholders, including the police, the Commissioner for Victims' Rights, legal bodies and universities. A range of written and oral submissions was received.

The Law Society of South Australia indicated through its president Mr Bönig that it maintains the concerns it raised in its 19 September 2011 joint submission with the Bar Association on the serious and organised crime bills package to the extent that they have not been addressed by changes in the bills.

The society prefers the court-focused declaration process in the August 2011 discussion paper rather than the eligible judge model in section 8 of the Serious and Organised Crime (Control) (Miscellaneous) Amendment Bill. Nonetheless, the society offers qualified support for the Serious and Organised Crime (Control) (Miscellaneous) Amendment Bill and the Statutes Amendment (Serious and Organised Crime) Bill 2012.

Contrary to the government's assertions in relation to other bills, I am advised that the Law Society's qualified support for these bills does not constitute support, qualified or otherwise, for other bills in the government's so-called package. In another submission, the Police Association of South Australia indicated its strong support for the government's position. The association states:

The Police Association and its members support the government in attempting to repair the legislation and thereby provide police the necessary powers to attack serious and organised crime effectively.

Further in the submission it states:

Undoubtedly, police would prefer uncomplicated legislation which provides scope for an easier-to-achieve burden of proof. Still, the Police Association accepts that the government must structure balanced legislation. In this case, balance would mean legislation which responds decisively to the High Court decisions and the need to continue to disrupt the activities of criminal organisations and their members but also addresses the concerns of civil libertarians and other sections of the community.

In conclusion, I quote the association:

The Police Association overwhelmingly supports both [these] bills.

The submission from Michael O'Connell, the Commissioner for Victims Rights, covered a range of issues. In it he stressed the need for balance, and I quote:

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 practice, 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 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'.

The Commissioner reminded the task force of the link between corruption and organised crime. He states:

Corruption is a core element of much organised crime. Furthermore, the perversion of public integrity and the illegal or improper use of public authorities (such as police power) for personal gain are central ingredients of corruption.

Later in the submission he states:

The debate on organised crime should be more 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.

Mr O'Connell concludes by arguing that parliament is the forum to call the executive to account for the operation of the serious and organised crime laws and that a parliamentary committee could be established. I advise the council that that is the summary of a number of submissions that we received, and they reflect the diversity of other oral and written submissions received by the task force.

Given the link between organised crime and corruption, the opposition considers that it would be appropriate for a parliamentary committee of oversight for these laws to also provide oversight to a future ICAC. It will be a matter that will be addressed in the committee stage of this debate. In my view, Labor has failed to effectively implement the serious and organised crime laws that parliament has already enacted.

Only one clause of the Serious and Organised Crime (Control) Act 2008 was ruled constitutionally invalid by the High Court—that was section 14(1). That clause related to control orders against members of declared organisations, and that case, of course, was the case of Totani. The rest of the legislation is still operative, including control orders against individuals, anti-association provisions and court proceeding intimidation offences, but there is little evidence of the remaining provisions being used.

Another Serious and Organised Crime (Control) Act measure is public safety orders, in section 23. These orders allow the police to prohibit a group such as the Comancheros from attending or being in the vicinity of a specified area. Such orders could be made in relation to an entertainment precinct, such as Gouger Street, Hindley Street, O'Connell Street, or even the whole CBD. I acknowledge that these powers were used once in relation to an event in the 2010-11 financial year and were successful in the sense that no gang members were identified in the area for the duration of the order. I understand from comments made by the police commissioner that those orders were also used over the Christmas-New Year period, and I welcome that.

In relation to firearm prohibition orders, the opposition has indicated that it is surprised that there have not been more firearm prohibition orders put in place. There are only 24 outlaw motorcycle gang members with orders against them; that is, less than 10 per cent of the identified 274 members. The opposition thinks that it is important—

The Hon. R.L. Brokenshire: How many members have been identified, did you say?

The Hon. S.G. WADE: There have been 274 identified members of outlaw motorcycle gangs. That is actually an increase over the time of the Rann Labor government. We certainly hope that the reform package, both as legislated and implemented, will be more successful.

Labor has failed to effectively implement general laws against outlaw motorcycle gangs also. We think that it is important to see new laws in the context of the laws on which they build, and it is important that we maintain targeted law enforcement against known criminals. In that regard, there have been comments made about importation controls and the black market for guns, and I acknowledge that the Australian Crime Commission is focusing on how we can improve our protection against firearms. It is not just a matter of importation control either. I understand that most of the 1,316 guns stolen in South Australia since 2004 have been stolen from the homes, businesses and vehicles of licensed owners; 221 guns alone were stolen in the 2010-11 financial year.

It goes without saying that every market needs demand, and we also need to make sure that we do what we can to curb the market that feeds crime. In that regard, I acknowledge the efforts of the Hon. Ann Bressington to deal with the demand side. After all, if we did away with the demand for drugs, we would not have drug dealers—

The Hon. R.L. Brokenshire: Hear, hear! Tell Bob Carr.

The Hon. A. Bressington: Absolutely.

The PRESIDENT: Order!

The Hon. S.G. WADE: Sorry, Mr President. I will try to avoid provoking my colleagues. In conclusion, I reiterate that the Liberal opposition supports the passage of this bill and the control bill. We are committed to disrupting and dissolving criminal organisations. As I indicated in the first instalment of this contribution, which I made in the context of the control bill, I am not convinced that anti-association regimes will be effective in that goal. I have been proven wrong more than once in my life and, for the sake of the peace and safety of South Australians, I hope I am wrong. I hope that this regime will be successful and that we can see a diminution of outlaw motorcycle gang activity.

The experience of the Control Act since 2008 is not a basis for confidence, though. It temporarily suppressed the membership of outlaw motorcycle gangs up to the Totani decision, but there are significant questions as to whether it actually contributed to the transformation of street gangs into outlaw motorcycle gangs and whether it weakened internal controls and therefore made outlaw motorcycle gangs more lawless. It may have contributed to people assuming leadership and provided a greater risk to public safety.

The other concern I have is that these laws represent a potential risk to law abiding South Australians. Law abiding South Australians may well be caught up in the broad scope of the laws. These changes go far beyond what South Australia has seen in the past, and I hope that caution will be used in applying them in the sense that we need to avoid law abiding South Australians being impacted by them.

In conclusion, we support the bill in principle but will maintain a watching brief on the legislation, particularly as to its effectiveness, and specifically through a parliamentary committee.

The Hon. R.L. BROKENSHIRE (16:06): I rise to support the second reading of this bill. It has been described as 'the repair bill' by some, including the Police Association of South Australia (PASA), as it responds at length to the concerns of the High Court about the current and now unworkable legislation. I acknowledge that my colleague the Hon. Dennis Hood MLC spoke about this on 15 March about the whole package of bills, including this one. I confirm that, as the Hon. Mr Hood said, Family First supports these bills.

Serious and organised crime is estimated to be costing the nation $15 billion per year, according to the Australian Crime Commission last July. With South Australia having 7 per cent of the national population, this means that organised crime is costing our community approximately $1.1 billion (or conservatively $1 billion) every year. That includes the policing requirements, the Customs requirements and just some of the community impact of organised crime involvement including illicit drugs, credit fraud or card skimming, tax evasion, money laundering or high-tech crime.

As to the Police Association letter to all MLCs—and I will highlight some parts of it in Hansard—members of outlaw motorcycle gangs (OMCGs) are a small proportion of population but a high proportion of crime. Recently I had quite a long briefing with SAPOL on where the situation is with OMCGs in the year 2012 and I was able to compare that with my knowledge and experiences going back through to when I was police minister. It is interesting to see just what has been happening. While I will always ensure I do not put intelligence into the public arena, I would say that the thing that alarms me the most—and I note that the honourable shadow attorney-general said that OMCG membership had increased during the Rann and Weatherill governments—I would not actually say that it has increased. In fact, for a period of time during the Rann and Weatherill governments, to be fair, the membership of OMCGs dropped considerably.

This is fact from SAPOL—and I will not quote the figures, but I saw the charts—when that legislation had got through, until the High Court decision, the number of OMCGs dramatically dropped across all of the gangs in South Australia, including even the largest gang, the Rebels. I put it to the house that the legislation that was put up with good intent, but was proven to be a failure by the High Court, was working. What it says to me is that when you give the right tools to the police you will have a significant impact on organised crime. The right tools to which I refer here is the legislation.

We have to give the police all the legislative opportunities we can to do their job. The legislative tools are only one part of this; clearly we need the officers, the training and the resources. If we are serious about combating organised crime, I think it is expected of the parliament to support the government of the day in ensuring that those resources are available. Of course, the best way to do that as legislators is to ensure that, once we have looked at it on merit, the legislative opportunities are passed expediently by the parliament.

Organised crime is becoming increasingly more sophisticated. We know that it is involved in security, entertainment, hotels and gaming. It is, at times, heavily involved in prostitution. Certain aspects of organised crime are still heavily involved in prostitution and, of course, the trucking industry. They are just some examples of where organised crime is becoming more sophisticated than in previous decades. We have seen quite an increase in organised crime activities, even since the turn of this millennium.

On 23 December 2011, News Limited reported that the New South Wales Police Asian Crime Squad believed that people of interest to the squad included Sydney Star Casino's high rollers. We have seen as recently as last night further reports on what is happening with the Sydney Star Casino.

The Victorian Assistant Police Commissioner told the Maintaining Integrity in Sport Forum also in December 2011 that elite sporting organisations were at risk of being infiltrated by organised crime figures due to the rise in gambling opportunities. In the article on that issue, News Limited claims that the commonwealth is looking at offences directed at cheating in sport because criminal offences do not allegedly capture that issue. I think this is a state matter, not a commonwealth matter and, on that front, I cannot help but remind the council that, on 25 November 2008, I moved an amendment to create integrity agreements for industries, other than the racing industry, to ensure that we would not see corruption and the altering of sports outcomes in industries other than racing.

I recall the former minister telling us at that time, 'We'll come to that. We'll look at that again later'. Here we are 3½ years later and we still do not have integrity agreements, notwithstanding what I have just put on the public record. So perhaps the Victorians are ahead of us on that front. I think that type of measure, whilst clearly matter for debate on another day, is one way of building the walls to prevent corruption and the influence of organised crime in the sports that we all love.

The Police Association of South Australia supports the existing criminal intelligence definition in a harmonised way. The current definitions restrict the ability of police to issue firearms prohibition orders. I am not critical of police when it comes to the numbers that have been spoken about in this council. The bottom line is that the definitions at the moment are working against the police being able to issue firearms prohibition orders. From my experience as a parent and as a citizen of this state, I would have thought that we would want to give every possible power to the police to get illegal firearms off the streets. I would have thought that that was a given.

It is concerning to note the increased number of shootings in public places and in residential homes, some of which might be cases of mistaken identity. Again, we saw this only in the last few days. If we ensure that police are not restricted in their ability to issue firearm prohibition orders, hopefully we will see less in the way of public shootings, because there certainly has been an increase in recent months.

At the moment we have been promised an ICAC, but we have not actually been shown the framework or the legislation. I note that in September last year the Western Australian Premier, Premier Barnett, wanted to expand his ICAC to probe organised crime. If we can get a well-structured ICAC in South Australia, that would work hand-in-hand with the police, giving us another tool to combat organised crime. I place on the record for the minister a couple of questions for the committee stage. In how many instances, in the latest estimation, has SAPOL been impeded in its work due to there being no change in the legislation at present? I also ask that we be advised of the exact number of people in the crimes gang task force at this point in the policing numbers for South Australia.

I want to finish just with a couple of points that I think are worthy of putting on the public record from the Police Association and we need to bear in mind that, whilst we are able to get briefings from executive police officers, SAPOL does not get involved in the politics of what is happening in the parliament, and nor should it. It is PASA that has that role and I would encourage members to take notice of PASA because PASA is a very professional association. Ninety-nine per cent of all officers are members of the Police Association and the executive of the Police Association are also sworn police officers with a lot of experience and integrity.

I have to say that, with all my years of experience in here and with responsibility as a shadow minister and the work that I have done with PASA over those years, you do not get six-page letters from PASA every day, so when you get a letter of six pages from the Police Association, I think it is worthwhile having a close look at that. Clearly, on behalf of their members and probably, arguably, on behalf of the executive management of police, they are actually sending a message to us as legislators on the importance of this legislation, so I will just conclude with a few of the key points that we saw when reading this letter from the Police Association of South Australia. The letter states:

[These] gang members and their associates comprise a small proportion of the state's population but commit a disproportionate amount of serious crime.

We are not talking petty crime here: we are talking serious, organised crime.

Their culpability in nightclub shootings, the murders of rival gang members and outbreaks of inter-gang violence is irrefutable.

The letter also states:

The association membership has first-hand knowledge of the increasing sophistication of the networks and techniques organised criminal groups employ. A concerning intrusion into the security, entertainment and hotel and gambling industries has supplemented additional types of offending. Preventing organised criminal groups from infiltrating these industries is a legitimate step for government to take—its effect is to protect not only association members, but also the South Australian community.

The association further states:

The association supports the retention and harmonisation of the definition of criminal intelligence. We do not support the narrowing of this definition.

On page 4, the letter states:

The association has no doubt that organised criminal groups would seek to exploit a more restricted definition of criminal intelligence—

and I am very sure that statement is accurate. Further on the same page, the letter states:

The current impasse threatens public safety. South Australia Police is unable to use current provisions for the Firearms Act, the Casino Act and other acts because the definition of criminal intelligence in those acts conflicts with the endorsement provided by the High Court.

Hence the need for speedy passage of this bill, in my opinion as one of the 22 legislators in here. The letter concludes:

The association urges members of parliament to support these bills as any delay in passing this legislation will make more difficult the task of effectively policing serious and organised crime in South Australia.

I guess the way criminals go about their activities is a moving feast and has been ever since white settlement. However, from my experiences, we have seen far more sophisticated criminal activity through organised crime, I would suggest, in the last 20 years in particular.

I am sure that there are a lot more challenges ahead for police and for the justice system to ensure that community safety is first and foremost for South Australia and also that this growth of serious and organised crime that we are seeing is addressed in an appropriate manner.

I heard recently that over in America another gang of organised crime has started and has intent to move throughout Europe, and I am sure it will not be long before they move into Australia and South Australia. We are not immune to what happens across the world. Having listened to lots of briefings in ministerial council meetings, from the police commissioner and people in Operation Avatar and throughout the whole justice system, and having observed some of the behaviour, I know outlaw motorcycle gangs are not nice people. They are not the sort of people we want living in South Australia. The government has an obligation to do whatever it can to combat their activities, in the opinion of Family First, and therefore we will support the government with this bill. I commend the bill to the house.

The Hon. M. PARNELL (16:21): When we debated the original version of this bill back in 2008, it was a fairly fiery debate, it was very contentious. Some of the contention related to the subject matter of the bill, but those members who were here at the time might recall that we had two significant pieces of legislation on the go at once—this one and the WorkCover legislation—and there was a deal of angst on the part of the government as to which it wanted to do first, and ultimately the Legislative Council helped out the government by prioritising two bills that the government was unable to prioritise for itself.

When we debated the bill back in 2008, on behalf of the Greens I made quite an extensive contribution. I am not sure if it was a whole hour, but it certainly was a long one, and it is not my intention today to repeat all the things I said back in 2008. It is sufficient for me to say that not enough has changed in this revision of the bill to warrant the Greens' support. Back in 2008 there were only two of 69 members of this state parliament who voted against the bill—myself and the Hon. Sandra Kanck representing the Australian Democrats. As all members now know, we were the only two MPs who were vindicated by the High Court decision to invalidate portions of this legislation.

My reading of this new bill is that, effectively, the government has really only done those things it believed it had to do to repair the legislation to effectively make it 'challenge proof' in the courts. Whether or not it has succeeded in that task remains to be seen because, whilst certain provisions of the bill have been found to be invalid, not every provision was tested and, whilst I am not able to pinpoint clause and paragraph, my gut feeling would be that there are other infringements of civil liberties, other infringements of established legal processes, that could lead to further legal challenges that are successful against this legislation.

The problem of organised crime is serious. The problems posed by outlaw bikie gangs are serious, and the Greens believe we need a greater emphasis in policing to identify and apprehend offenders. These bills are always a balancing act. The Greens' position back in 2008 (and it is still our position now) is that the balance has not been struck. Too much collateral damage has been done by this legislation and too many innocent people caught up in its provisions who need not be.

We also have some fundamental philosophical problems with the approach taken, especially in relation to control orders, where the government's primary purpose seems to be that the path to non-offending—or, put another way, the path to redemption from offending—is best achieved by limiting, stifling or in fact banning human contact between offenders and others—not just other offenders, but others. As we raised in 2008, those others include extended family members and even strangers who could well be a force for good in the lives of offenders, but the approach taken by this legislation is that if you are bad and you have that status imposed upon you through a control order, then a whole range of consequences flow from that which capture potentially innocent people in criminal activity, and also make it far less likely for these offenders to actually get back on the straight and narrow through the influence of other people in their lives.

So those fundamental aspects of the legislation have not changed in the four years since we last debated it. Without putting, as I said, the whole of my contribution from four years ago on the record, I will just reference it for the Hansard.

The Hon. S.G. Wade interjecting:

The Hon. M. PARNELL: The Hon. Stephen Wade has promised to read my contribution of 26 February 2008, and in that contribution I went through a number of case studies and I put the Greens' position fairly comprehensively. We certainly were not in the majority then, we can tell that we are not in the majority now, but we may well be back in this position in a few years' time where, through High Court or other challenges, other provisions of this legislation will have been found to be invalid and we could well be looking at fix-up No. 3 or fix-up No. 4 in the future.

I know that the government hopes that is not the case, but certainly I think there is enough wrong with this legislation that that could well be the final result. The Greens are therefore not supporting this part of the package of measures. We will not be speaking on every single one of these bills but we will make contributions where we feel there is value to be gained by that.

The Hon. A. BRESSINGTON (16:26): Like the Hon. Mr Parnell, I am not going to go over my speech I made four years ago on the SOCCA legislation. What I do want to do is to make a couple of points: number one is that the Greens, the Democrats and I at the time disagreed on SOCCA. I supported the government wholeheartedly with the SOCCA legislation because I listed a number of my experiences in the outside world as far as my knowledge of how motorcycle gangs operate and infiltrate business and threaten and intimidate—all the things that we know happen.

I have seen no evidence that their behaviour has changed in the last four years, so I still support the SOCCA legislation, but I do just want to make a very quick point. What has made me nervous about this whole serious and organised crime and outlaw motorcycle gang legislation and the lot is the legislation that has been put up as an extension to this package, and I refer now, of course, to criminal intelligence, confiscation of assets, prescribed drug offenders confiscation of assets and criminal law sentencing.

What we are doing, in my view, is that we are casting dragnet legislation to capture the bad guys, and I would have much preferred—and I expressed these views to the Attorney-General—that all these pieces of legislation that we have debated individually were put into an actual package that required a benchmark, or criteria, if you like, for the SOCCA act to be implemented and for offenders coming under that criteria to be investigated fully, and then to be able to apply all these measures necessary to that particular investigation.

However, what we have now is a number of pieces of legislation which are out there and which are going to capture, I believe, citizens in this dragnet that we are casting, and then, of course, we have got SOCCA on top of that, which is basically like the icing on the cake. I am still nervous about all those other pieces of legislation. I have said that, and I have opposed those pieces of legislation for the very reason that I have given here today. I implored the Attorney-General to put this all into one act and make it specific to serious and organised crime, as they have done in America with the RICO Act. The response was that it would be very difficult to do that. I would prefer to know that this council has taken measures to safeguard the rights of innocent citizens caught up in this.

In saying that, I do support the SOCCA legislation, serious and organised crime and the amendment bill as well, because I know that we need to implement special applications, special laws, because these guys are very clever and very good at what they do. I reiterate my support for this bill, and I hope that we can negotiate with the Attorney-General to get a better outcome on the other pieces of legislation I have mentioned.

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) (16:30): I thank honourable members for their second reading contributions. I appreciate that honourable members have summarised their previous contributions when this bill was initially tabled in this place, contributions that were quite lengthy at the time, so I do appreciate that honourable members have provided summaries here today.

The Hon. S.G. Wade interjecting:

The Hon. G.E. GAGO: The Hon. Stephen Wade has agreed tonight to read all second reading contributions from the original debate—and he will be tested on it tomorrow. Again, I acknowledge and thank all members for their second reading contributions and the support indicated during that debate. I cannot recall any questions being asked, but if they were I am happy to deal with them during the committee stage. I look forward to dealing with this expeditiously during the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: The opposition did indicate that we wanted to go to only clause 1 on this bill. I can assure the committee that the opposition is being extremely industrious in facilitating the progress of this legislation but, as we indicated earlier today to the relevant government representatives, we can only do one committee stage a day, and we are ready for the Serious and Organised Crime (Control) (Miscellaneous) Amendment Bill. I imagine that will take up to council rise, so I would move that progress be reported.

Progress reported; committee to sit again.

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