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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-04-03 Daily Xml
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SERIOUS AND ORGANISED CRIME (CONTROL) (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: I thank the minister for not making an issue of reporting progress, however reluctant she was that we did report progress. To show the bona fides of the opposition in facilitating this, the committee stage of this bill will be much lighter than the bill deserves. The bill raises a lot of questions which I think the committee would have every right to unpack.

I will be raising some of them, particularly putting on record the position of the Law Society and the Bar Association, which I think would be useful items to reflect on, particularly in the future. The council Hansard, after all, does represent a journal of record in this state and will be used by people in the future to understand what we thought we were doing.

Considering that I will be referring a number of times to the Law Society submission, I thought I would briefly explain the context in which it was produced. In August 2011 the government released a consultation package of five bills, which have, shall we say, merged into two; but all the issues in the five bills are reflected in the two. In the context of that consultation, the Law Society and the Bar Association put in a joint submission which raised a number of concerns, and I will be referencing that submission during the committee stage.

As I have indicated in my second reading contribution on the Statutes Amendment (Serious and Organised Crime) Bill, my understanding of the Law Society of South Australia's current position is that the Law Society provides qualified support to these bills. Having said that, I am advised by the president of the Law Society that they stand by the concerns raised in the submission of September 2009, but in the context they provide qualified support. My understanding is that that is not the position of the Bar Association, and I understand that it also stands by its concern raised in the joint submission. I will briefly quote from the introduction of the joint submission, because it provides an overview of the views of both organisations. It states:

The South Australian Bar Association and the Law Society reaffirm their opposition to the government's approach to tackling so-called serious and organised crime, as stated in the joint submission of 7th March 2008. In many respects, the serious and organised crime bills package goes much further than the initial legislation. We express our strong disapproval to aspects of the package. Given the past history of similar attempts to deal with serious and organised crime and our opposition, the government should do all that it can to minimise the risk of challenges to what is flawed and unfair legislation.

Later in the submission, they say:

We do not oppose legislative measures to combat serious and organised crime, but any such measures must be limited to serious and organised crime ongoing (not past) criminal activities and include safeguards to avoid abuse, wrongful or unnecessary detention, curtailment of liberties and unsafe convictions. A summary of our principal concerns with the SOC passage is as follows:

Its wide application, including its application to individuals in respect of whom there is no evidence of ongoing criminal conduct.

That the laws of evidence do not apply.

The whole of the Evidence (Out of Court Statements) Amendment Bill 2011, including the wide provision for the receipt of evidence without being tested by cross-examination.

The reversal of the onus of proof in circumstances where it would be difficult for the individual to satisfy the onus.

The use of ex parte applications.

That there is no requirement for the grounds of the application to be stated fully and in detail.

That there is no requirement for full disclosure akin to section 104 of the Summary Procedures Act 1921.

The submission goes on, and I will quote it from time to time as we go through the legislation. I will now ask a couple of questions about clause 1. In his contribution on the bill in the House of Assembly on 29 February 2011, the Attorney-General said that he was 'confident that it would be challenged'. Can I ask the minister: on what basis is the Attorney-General confident that the legislation will be challenged?

The Hon. G.E. GAGO: I have been advised that it is a view that was formed because of the way that bikie gangs are generally very cashed up and the fact that they would obviously want to delay proceedings. It is his view that it is highly likely that it will be challenged.

The Hon. S.G. WADE: Can the minister highlight what steps have been taken within the bill to minimise the risk of a challenge? I am sure the Chair will be lenient and allow you to foreshadow amendments.

The Hon. G.E. GAGO: I am advised that the bill has entailed wide consultation, both within and outside of government. It has included consultation with senior legal officers, such as the Solicitor-General, the Crown Solicitor and the Chief Justice. It has also taken into consideration all of the submissions and also the High Court decision. It has used all of that information to design the bill in a way to obviate the risk of challenge and to ensure that the bill is constitutionally valid.

The Hon. S.G. WADE: I thank the minister for that answer but I was thinking more about what elements of the 2008 package have been changed in order to make a more constitutionally robust act.

The Hon. G.E. GAGO: I have been advised that some of the changes include the power to make a declaration, which has been assigned to an eligible judge. The decision-maker is to be required to give reasons for making a declaration. The making of a control order is entirely within the discretion of the court. The process for making a control order must include an independent adjudication by the court of whether the defendant poses a risk in terms of the objects of the act, taking into account the past conduct of the defendant and the conduct in which the defendant may engage in future. The grounds sufficient for making a control order need to be prescribed to ensure that procedural fairness is afforded. They are some examples.

The Hon. S.G. WADE: In the other place, the issue was raised of some of the elements which are still more daring than New South Wales and Western Australia. The Attorney-General highlighted the value in having similar models between Western Australia, New South Wales and South Australia. As I understand it, it was on the basis that it would provide an element of solidarity, that in a High Court challenge those jurisdictions would have an interest and would be able to share the burden, financial and otherwise, of any challenge.

Considering that the South Australian act still includes provisions that are distinctively different from the Western Australian and New South Wales model and are more constitutionally challenging, why didn't the government take the opportunity to provide more similarity to reduce the constitutional risk?

The Hon. G.E. GAGO: We do not accept the underlying premise of your assertions. To be able to answer, we would need the honourable member to give particular reference to the particular sections.

The CHAIR: You have had two questions to clause 1. Do you have further questions to clause 1?

The Hon. S.G. WADE: It is in response to the minister's invitation to identify further. I was thinking of the application of control orders to groups. My understanding is that Western Australia and New South Wales require a declared organisation, whereas ours requires two or more people. Clause 22(2)(c): my understanding is that that is an element which is not in the Western Australian and New South Wales legislation and may open us up to constitutional challenge.

The Hon. G.E. GAGO: We accept that this provision is broader but disagree that this would pose any increase in risk whatsoever. This is for two reasons: first, because the making of an order is entirely within the discretion of the court and, secondly, in circumstances where the court is required to consider the past conduct of a person as well as the risk that they might pose. So the effect is that the court assesses past as well as future risk, and it is for those reasons that we do not believe there is any increase in risk.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

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

Page 4, after line 8—Insert:

(a1) Section 3—after the definition of authorisation order insert:

Chief Justice means the Chief Justice of the Supreme Court and includes an acting Chief Justice of the Supreme Court;

This amendment addresses a matter raised by the Chief Justice of the Supreme Court of South Australia and the Chief Judge of the District Court with respect to the selection of eligible judges. Amendments Nos 1, 2 and 3 each address feedback from the Chief Justice and the Chief Judge concerning the selection of eligible judges. As will be noted later, this is now to be done by the Chief Justice. Therefore, this amendment which inserts a definition of the term 'Chief Justice' is necessary.

The Hon. S.G. WADE: Just by way of foreshadowing the opposition's approach, as I indicated, we are supporting this legislation. We will not be moving amendments to it and we will be supporting government amendments, and that includes this one. This is the first in a series of amendments which propose to replace the regime originally proposed by the government for the appointment of eligible judges. We think it is right and proper that the Attorney-General should be removed from the court processes, not only to remove the potential risk of offending the separation of powers but also for public confidence in the court processes.

In supporting the amendments, the opposition would highlight that this is a necessary amendment to reduce the risk of another constitutional challenge. We think it highlights yet again the need to be cautious, and we welcome that the government has taken one step back on this. I would ask the minister, though: in its current form, how does this process differ from the New South Wales and Western Australian approaches to the same issue?

The Hon. G.E. GAGO: I have been advised that this provision is the same as that in New South Wales which was presented by a Liberal government, and I have been advised that it has since been passed.

Amendment carried; clause as amended passed.

Clause 5 passed.

Clause 6.

The Hon. S.G. WADE: I just want to briefly make comments on this clause before we move amendments. I thought I would take the opportunity to remind the council of the concerns that were highlighted by the Law Society. This is the first in a series of clauses or sections with respect to the declaration of criminal organisations. The bill reforms the declaration process to deal with the invalidity found by the High Court in the Totani case, and it proposes that the declaration is not to be made by the Attorney-General but by a person designated as an eligible judge.

The Law Society joint submission raised a number of concerns, and I would refer to portions of that advice. In broad terms, the Law Society and Bar Association submission asserts that the grounds of a declaration are too wide and capture relatively minor criminal conduct, with disproportionate impacts on freedoms of association of movement. The submission highlights that people trying to leave a criminal organisation may not be able to avoid getting caught. The declaration should be time-limited to no more than two years with the option to extend and that there should be full notice of evidence in the revoking of a declaration.

The opposition is concerned that the concept of an association group is so broad that a person could be charged with associating with a convicted criminal where that person has never been involved in serious and organised crime and has not committed a criminal offence for many years. Before we move to amendments, I was wondering if I could ask the minister a question. The government saw fit to change the approach for ex parte applications, I think, in relation to interim control orders in proposed section 22(3).

It would not completely address the concerns raised by the Law Society and the Bar Association, but it goes part way to that. Why did it not similarly moderate ex parte applications in other contexts like sections 11(3) and 22A(2)?

The Hon. G.E. GAGO: I have been advised that section 22(3) is not directed at ex parte applications.

The Hon. S.G. WADE: I thought I was referring to section 22A(2).

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

Page 6—

Lines 10 to 36 [clause 6, inserted section 8]—Delete inserted section 8 and substitute:

8—Eligible Judges

(1) For the purposes of this Act, an eligible Judge is a Judge in relation to whom a consent is in force under subsection (2) and who has been selected by the Chief Justice to act as an eligible Judge in accordance with subsection (3).

(2) A Judge of the Court (including the Chief Justice) may, by instrument in writing, consent to being selected to act as an eligible Judge under this Act.

(3) The Chief Justice may, by instrument in writing, select a Judge in relation to whom a consent is in force under subsection (2) to act as an eligible Judge under this Act.

(4) An eligible Judge has, in relation to the exercise of a function conferred on an eligible Judge by this Act, the same protection, privileges and immunities as a Judge of the Court has in relation to proceedings in the Court.

(5) A Judge who has given consent under subsection (2) may, by instrument in writing, revoke the consent.

(6) A selection of a Judge to act as an eligible Judge under subsection (3) is revoked if—

(a) the eligible Judge revokes his or her consent in accordance with subsection (5) or ceases to be a Judge; or

(b) the Chief Justice determines that the Judge should not continue to be an eligible Judge.

(7) If an eligible Judge dealing with any proceedings under this Act dies, is absent or ceases to be an eligible Judge, the Chief Justice may, in accordance with subsection (3), select another Judge in relation to whom a consent is in force under subsection (2) to act as an eligible Judge under this Act for the purpose of continuing the proceedings.

(8) To avoid doubt, the selection of an eligible Judge to exercise a particular function conferred on eligible Judges is not to be made by the Attorney-General or other Minister of the Crown, and the exercise of that particular function is not subject to the control and direction of the Attorney-General or other Minister of the Crown.

Amendment carried.

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

Page 6, line 38 [clause 6, inserted section 9(1)]—Delete 'to an eligible Judge'

Page 7, lines 18 to 20 [clause 6, inserted section 9(4)]—Delete subsection (4) and substitute:

(4) The application must be lodged with the holder of an office prescribed by the regulations and that person must—

(a) as soon as practicable, notify the Chief Justice so that the Chief Justice can select an eligible Judge in accordance with section 8; and

(b) when an eligible Judge has been so selected, provide the application to the eligible Judge.

Page 8—

Lines 12 to 21 [clause 6, inserted section 10(c), (d) and (e)]—Delete paragraphs (c), (d) and (e) and substitute:

(c) inviting interested parties to make or provide submissions to the eligible Judge at the hearing of the application; and

(d) specifying the manner in which interested parties may inspect or apply to inspect a copy of the application; and

After line 26 [clause 6, inserted section 10]—After line 26 insert:

(2) In this section—

interested party, in relation to an application, means an organisation or person who would, under section 15, be entitled to make an oral submission or provide a written submission to the eligible Judge at the hearing of the application.

Page 10—

Lines 2 and 3 [clause 6, inserted section 14(1)]—Delete 'who has made a declaration under this Part in relation to an organisation may, at any time, revoke the declaration' and substitute:

may, at any time, revoke a declaration made under this Part in relation to an organisation

Lines 28 to 30 [clause 6, inserted section 14(4)]—Delete subsection (4) and substitute:

(4) The application must be lodged with the holder of an office prescribed by the regulations and that person must—

(a) as soon as practicable, notify the Chief Justice so that the Chief Justice can select an eligible Judge in accordance with section 8; and

(b) when an eligible Judge has been so selected, provide the application to the eligible Judge.

Line 33 [clause 6, inserted section 14(5)]—Delete 'applicant accordingly' and substitute:

Commissioner and, in the case of an application under subsection (1)(b), the applicant of the matters referred to in subsection (6)(e)

After line 33 [clause 6, inserted section 14]—After subsection (5) insert:

(5a) If an application is made under subsection (1)(b), the applicant must, as soon as practicable after being given the notification by the eligible Judge under subsection (5), serve on the Commissioner a copy of the application and any supporting statutory declaration.

Line 34 [clause 6, inserted section 14(6)]—Delete '(a)'

Lines 35 and 36 [clause 6, inserted section 14(6)]—Delete 'as soon as practicable (but no later than 3 days) after being given a notification by the eligible Judge under subsection (5)'

Page 11—

Lines 1 to 9 [clause 6, inserted section 14(6)(b), (c) and (d)]—Delete paragraphs (b), (c) and (d) and substitute:

(b) inviting interested parties to make or provide submissions to the eligible Judge at the hearing of the application; and

(c) specifying the manner in which interested parties may inspect or apply to inspect a copy of the application; and

Lines 15 to 22 [clause 6, inserted section 14(7)]—Delete inserted subsection (7) and substitute:

(7) The Commissioner must publish the notice required under subsection (6)—

(a) if the application has been made under subsection (1)(a)—not later than 3 days after being given the notification by the eligible Judge under subsection (5); or

(b) if the application has been made under subsection (1)(b)—not later than 7 days after being served with the material referred to in subsection (5a).

Line 24 [clause 6, inserted section 14(8)]—Delete '(b)'

Lines 35 to 38 [clause 6, inserted section 14(10)]—Delete subsection (10) and substitute:

(10) In this section—

interested party, in relation to an application, means an organisation or person who would, under section 15, be entitled to make an oral submission or provide a written submission to the eligible Judge at the hearing of the application.

Page 13, after line 13 [clause 6, inserted section 15]—After inserted subsection (8) insert:

(8a) The duties imposed on an eligible Judge in relation to a protected submission by subsection (6) also apply to any court dealing with the protected submission.

Page 15, lines 21 to 43 and page 16, lines 1 to 8 [clause 6, inserted section 22(5)]—Delete subsection (5) and substitute:

(5) A control order may prohibit the respondent from any 1 or more of the following:

(a) associating with a specified person or persons of a specified class;

(b) holding an authorisation to carry on a prescribed activity while the control order remains in force;

(c) being present at, or being in the vicinity of, a specified place or premises or a place or premises of a specified class;

(d) possessing a specified article or weapon, or articles or weapons of a specified class;

(e) carrying on his or her person more than a specified amount of cash;

(f) using for communication purposes, or being in possession of, a telephone, mobile phone, computer or other communication device except as may be specified;

(g) engaging in other conduct of a specified kind that the Court considers could be relevant to the commission of serious criminal offences.

Page 16, lines 23 to 30 [clause 6, inserted section 22(7)]—Delete subsection (7)

Page 17—

Lines 24 to 27 [clause 6, inserted section 22A(2)(b)]—Delete 'under section 22(5)(a) and, if the Court is satisfied that the respondent is a member of a declared organisation, must include prohibitions of a kind referred to in section 22(5)(b)'

Line 28 [clause 6, inserted section 22A(3)]—Delete 'and (7) apply' and substitute:

applies

Page 21, line 22 [clause 6, inserted section 22G(7)]—Delete 'must' and substitute:

may

The Hon. S.G. WADE: We are supporting the amendments.

Amendments carried.

The Hon. S.G. WADE: In relation to the ex parte issue in relation to control orders, my understanding is—and forgive me; I do not have a copy of the consultation bill with me—that the government changed from between the consultation package and this bill section 22(3)(b), and I presume it was in the sense that the court has to be satisfied that the application has been served on the respondent, whereas other ex parte provisions, like section 11(3), which is in relation to a declaration, have not been modified.

The Hon. G.E. GAGO: I have been advised that, no, they are not directed to ex parte. What this is directed at is that, once a person has been given notice of a hearing, the court or eligible judge can actually proceed if they decide not to participate. Ex parte is when no notice has been given.

The Hon. S.G. WADE: I wanted to address the issue of the duration of declaration of control orders. The Law Society is of the view that a declaration is enforced indefinitely until it is revoked and that that is inappropriate. My understanding is that New South Wales and Western Australia both have time-limited declarations and orders. I am not asking a question on this: I am just putting on the record a response.

The opposition made a number of suggested amendments to the Attorney-General, and in a response to me today he indicated what his response was to the suggestions. They are suggested amendments in the sense that we were seeking the government's agreement to put them forward in the government's name. There are amendments that will be put forward in the government's name, I understand, as a result of that letter. The Attorney-General's response in relation to this matter is as follows:

With respect to your suggested amendments to the control bill, I consider limiting the duration of declarations and control orders to be unnecessary. The proposed section 14 permits an eligible judge to revoke a declaration at any time on application provided that an application has not been made within the preceding 12 months or is yet to be determined. Similarly, the proposed section 22B permits a court to specify the duration of a control order if, in the opinion of the court, it is appropriate. Your proposal would require the court to reintegrate—

sorry, I think that it does say 'reintegrate', but I presume it meant 'reiterate'—

its case at considerable expense and allocation of scarce resources in the absence of any application by an affected person.

The Hon. G.E. GAGO: The government wants to put on record that we stand by the commitment given.

The Hon. S.G. WADE: I understand. I was just putting the Attorney-General's view on the record.

Clause as amended passed.

Clauses 7 to 9 passed.

Clause 10.

The Hon. S.G. WADE: Similarly, the opposition made suggestions to the Attorney-General in relation to the scope of the association between criminals. I should make it clear that this is not a question; this is again merely to put the Attorney-General's view on the record. The response of the Attorney-General was:

I also do not support any amendment to section 35 to remove from its scope association between criminals. The existing provision is entirely consistent with the objects of this package of legislation to disrupt and restrict the activities of persons who engage in serious criminal activity, as well as the activities of criminal organisations and members of organisations involved in serious crime and their associates.

That suggestion was again echoing legislation in other jurisdictions and we accept the decision of the government not to amend section 35.

Clause passed.

Clause 11.

The Hon. S.G. WADE: This clause, as I understand it, deals with corresponding orders. I was wondering if the minister could explain to what extent the corresponding orders are recognised and to what extent we have assurance that the regimes in other states and territories remain appropriate and acceptable. For example, if another jurisdiction went much broader than we would find tolerable, would we find ourselves recognising orders that would be inappropriate under South Australian law?

The Hon. G.E. GAGO: I have been advised that at present we have no concerns about the way these are recognised by other jurisdictions. There are obviously no guarantees that changes will not be made in other jurisdictions, and we will have to deal with that at the time, but certainly at present there are no concerns; so I have been advised.

Clause passed.

Clause 12.

The Hon. S.G. WADE: In this context again I stress to the minister this is merely a matter to put on the record; I do not seek to propose a question. In fact, what I am putting on the record is a response to the honourable member for Bragg from the Attorney-General in response to questions that she put in the House of Assembly. It is a letter from the Attorney-General, dated 7 March 2012. I quote in part because most of it does not relate to this bill:

There are no formal statistics kept as to whether the crimes are committed by persons wearing insignia;

The effect of section 39W of the Control Bill is that the Serious and Organised Crime (Control) Act 2008 is to be a no costs jurisdiction, whereby people who litigate under that act do so at their own expense, subject to two exceptions, being:

an exception relating to frivolous or vexatious proceedings or applications (or where one party has unreasonably caused another party to incur costs); and

an exception addressing the case where a representative of a party causes costs to be wasted, in which case the presiding authority may choose from a menu of options by which to visit the consequences of negligence or incompetence on that representative;

Section 39W(3) is based upon the current section 189(3) of the Summary Procedure Act 1921.

Clause passed.

Clause 13 passed.

Clause 14.

The Hon. S.G. WADE: I indicate that the opposition welcomes the acceptance of the amendment in the other place and indicates its surprise that the government chose to delete the review by the original bill.

Clause passed.

Remaining clause (15), schedule 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) (17:17): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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