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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-04-05 Daily Xml
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STATUTES AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL

Committee Stage

In committee.

(Continued from 3 April 2012.)

Clause 1.

The Hon. S.G. WADE: I would like to make the following comments at clause 1. During the Liberal opposition's consultation on the Serious and Organised Crime (Control) (Miscellaneous) Amendment Bill and the Statutes Amendment (Serious and Organised Crime) Bill, we heard from a range of stakeholders with interest in fighting crime and seeking justice across the state. There is broad support to strengthen laws to deal with serious and organised crime and the Liberal opposition strongly supports law enforcement authorities having the powers they need to deal with the challenge of serious and organised crime.

Having said that, we also think it is important that law enforcement agencies operate within a robust legal framework which protects justice and the rights of law-abiding South Australians. Some stakeholders also expressed concern about the significant departure from the rule of law, the presumption of innocence and freedom of association within the legislation and the concern about the constitutionality of the laws.

As an opposition, we appreciate these laws are important and deserve close scrutiny—scrutiny to ensure that the laws are effective, scrutiny to ensure that the laws do not unnecessarily affect law-abiding South Australians—but we also acknowledge that this government has wasted so much time since the Supreme Court decision in Totani that it would compound the offence for the bills not to progress expeditiously. To facilitate the legislation, we have not put forward detailed amendments to highlight our detailed concerns.

On 2 April 2012 I wrote to the Attorney-General requesting that he consider amending the Serious and Organised Crime (Control) (Miscellaneous) Amendment Bill 2012 and the Statutes Amendment (Serious and Organised Crime) Bill 2012. In that letter I suggested a number of changes to the control bill, namely, to consider limiting the initial application of declarations to two years, with an option to extend it if necessary; to limit control orders to two years; and to limit the application of the association provisions to members of declared organisations or persons subject to control orders rather than anyone who had a previous conviction for a major indictable offence. These suggestions reflect provisions of similar interstate anti-association laws.

As a general point, the scope of these laws is enormous. Only a very small proportion of the laws are actually targeted or limited to serious and organised criminals. The Attorney-General declined to take up those suggestions and also rejected suggestions put forward for amendments to this bill. I will speak at more length on the amendments to the relevant clauses that we suggested to this bill. As I advised the Attorney-General, we will not be moving the suggested amendments that the government has declined to adopt, but we will be proceeding with one amendment that relates to a proposal to have a basic degree of oversight through a parliamentary committee.

I want to address that issue in more detail at the relevant stage. We believe that what we are asking is reasonable. It is important that, at the very least, we do what we can to ensure that these laws are robust, responsive and implemented responsibly. Just for the sake of clarity, minister, my contribution in committee will mainly be by way of comments highlighting issues with the bill and, in particular, quotes from the Law Society/Bar Association submission to the August 2011 package.

For the accuracy of the quotes, I have retained references in those quotes to draft bill clauses, so they may not relate to what is actually in our act. I am raising them in the context of the issues rather than by way of reference to the clause, but I hope I raise them in the right place. I also indicate to the minister that I will be making comments. I welcome any comments that she might have on the issues, but I do not expect a response to a quote or a comment unless I ask a specific question.

Clause passed.

Clauses 2 to 8 passed.

Clause 9.

The Hon. S.G. WADE: I want to make a comment on the clause before the amendment, if I may. This clause is the first of a number of clauses that I have identified as an opportunity to highlight the breadth of this legislation and the concerns about potential impacts on law-abiding citizens.

This clause sees the usual bail process as being wound back upon suspicion of involvement in a serious offence. For these provisions to be used, there need not be any link, suspected or otherwise, to organised crime. Indeed, any aggravated offence meets the criteria. We have repeatedly heard that this legislation is about tackling organised crime, but repeatedly we see examples where alleged criminals acting alone are included within the scope of the provisions.

In the Law Society/Bar Association joint submission on the government's consultation package dated 19 September 2011, the submission makes the following comments on the Bail Act amendments:

We repeat the concerns expressed above about the scope of the bill being too wide. The offences captured by the definition of 'serious and organised crime' and the individuals falling within the definition of 'serious and organised crime suspect' include relatively minor offences and do not necessarily involve an organisation as such.

We oppose classifications such as 'serious and organised crime suspect' and the consequences flowing from it. The present system of bail is sufficient to ensure that those charged with serious offences are either not granted bail or are so under strict conditions. The problem with classifying alleged offenders other than by reference to the facts of the case is that individuals will suffer a detriment, notably deprivation of liberty, because of the classifying label rather than the seriousness of the allegations and the relevant factors.

Of course these provisions will inevitably affect the falsely accused. The damage of this would be limited, of course, if the government was properly managing the courts system and if we did not have one of the highest remand rates in Australia. Delays in the courts are regrettable, and the falsely accused are also a victim of that. This anguish is exacerbated by problems in managing the courts in relation to victims, which means the punishment for offenders is less effective as it loses the immediate connection with the crime, and of course it means our prisons are more overcrowded.

The Hon. G.E. GAGO: I will keep my comments brief but put on the record that we disagree with the honourable member's view that the scope is too broad. It is scoped to capture serious offenders, and that surely has to be a good thing to be doing, and that is the aim of this act. Therefore, I move:

Page 8, line 34 [clause 9, inserted section 3A(2)(b)]—After 'Supreme Court' insert:

or the District 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. In feedback provided subsequent to introduction of the bill in the lower house, the Chief Justice correctly noted that, because the term 'prescribed proceedings' could refer to proceedings in the Magistrates Court and the District Court, this means that in accordance with the amended section 275(3) a person who is a serious and organised crime suspect could have their trial expedited to be heard in either the District Court or the Supreme Court under section 275(3). Therefore, section 3A(2) needed to be amended to refer to both the Supreme Court and the District Court.

The Hon. S.G. WADE: We support the amendment.

Amendment carried; clause as amended passed.

Clauses 10 to 24 passed.

Clause 25.

The Hon. S.G. WADE: This clause highlights the very broad potential impact of this legislation. Aggravated penalties can be imposed under these provisions without any connection with organised crime. These provisions are general rather than targeted. The Law Society has highlighted issues in its submission as follows:

We express concern the newly created aggravated offences are not in fact an aggravated version of the basic offence. The definition of 'aggravated offence' included offending which does not relate to an organisation as such. The difference in maximum penalty between the basic and aggravated offence is substantial and cannot be justified for the many offences falling within the aggravated offence definition.

For example, the first limb of the definition makes an offence committed at the direction of or in association with as few as two people an aggravated offence. This is because a criminal group consisting of at least two people is captured by the definition of 'criminal organisation'. In other words, two people who get together for a criminal purpose within the meaning of section 83D (CLCA) are a criminal organisation and therefore liable to substantially greater penalties.

Later in the submission, the society states:

A person is taken to have committed an aggravated offence if he or she displays a tattoo or wears clothing identifying a criminal organisation. There may be no connection to the organisation whatsoever, however the offender will be taken to have committed the aggravated offence and be exposed to a much greater penalty unless the offender proves otherwise. Discharging the burden of proof may be difficult.

Further on, the society states:

The risk of miscarriage of justice is too great to so determine circumstances of aggravation. It is otherwise unfair for the accused to carry the burden of proving that he or she should not be found guilty of the greater offence.

By way of conclusion, I have indicated that the opposition made a number of suggested amendments to the Attorney-General and they were, if you like, the limited set that the opposition was wanting to suggest. The quotes of the Law Society are more to highlight the issues. We would not necessarily endorse its suggestions for amendments.

The Hon. G.E. GAGO: For the record, the government disagrees with the honourable member, we believe the scope is not too broad. It targets aggravated offences. Section 43 provides that an offence is an aggravated offence if:

(a) the offender committed the offence for the benefit of a criminal organisation...or at the direction of, or in association with, a criminal organisation; or

(b) ...in connection with, the offence the offender identified himself or herself in some way as belonging to, or otherwise being associated with, a criminal organisation...

So, we believe that is scoped to capture those serious offences that we should be capturing and protecting the community from.

Clause passed.

Clause 26 passed.

Clause 27.

The Hon. S.G. WADE: Just briefly, it is interesting to note this provision because it is one of a series of the Attorney-General's proposals for what he himself calls 'get out of gaol free' cards. We have had lower sentences for pleading guilty, lower sentences for acting as an informant and now lower sentences for providing information within a prison. I seek to ask a question relating to proposed section 29E(5)(f). The Law Society recommended the deletion of the word 'violent'. The sentencing court, in the society's view, should take into account any retribution, it should not be limited to violent retribution. I ask the government: why did it prefer not to remove the limitation 'violent' considering that serious and organised crime groups are known to use a whole range of forms of retribution and a non-violent form of retribution may be just as persuasive on the particular victim.

The Hon. G.E. GAGO: I am advised that, if you look at section (5)(a) to (j), it states that in determining a new sentence the court must have regard to all of those things and may have regard to any other factor or principle the court thinks relevant. So, really, the court has the capacity to consider any and all relevant matters.

Clause passed.

Clause 28.

The Hon. S.G. WADE: This is a clause that highlights the formation of a group, if you like. The Law Society again expresses concern about the breadth of the legislation. In their submission it says:

The definition captures offences against part 3 of the act. Part 3B defines criminal organisation to include a criminal group which is a group of two or more people whose aim is to engage or facilitate the engagement of a serious offence of violence. This definition is too broad. The definition captures people who are not in reality part of an organisation, criminal or otherwise. It will apply to two people who agree to cause serious harm to someone or to cause serious damage to property involving the risk of harm to a person. We suggest the definition be substantially narrowed to capture serious and organised crime as it is generally understood by that term.

My understanding of the government's response is that it actually went the other way in that section 5(2)(b)(4) added the words 'in connection with'. My understanding of that is the effect of that is to broaden the incidences in which an offender may be deemed to have identified themselves with a criminal organisation. Essentially a person would not need to identify themselves in the course of committing the offence, but if they do so in connection with the offence, then the offence will qualify as a serious and organised crime offence under this section.

The breadth of the provision, too, I think is highlighted by the use of the word 'aim'. I presume that the effect of the word 'aim' at the beginning of proposed section 83D(1)(a) and 1(b) is basically an intention that offenders having formed the intention to commit an act would be guilty of the offence. I would also just highlight to the council the impact that being identified as a criminal group or a criminal organisation has. Under proposed section 83E, if a person participates in a criminal organisation they are—

The Hon. G.E. Gago: Which number are you referring to?

The Hon. S.G. WADE: In relation to the aim comment?

The Hon. G.E. Gago: Aim?

The Hon. S.G. WADE: Page 19 is the aim comment.

The Hon. G.E. Gago interjecting:

The Hon. S.G. WADE: Sorry, in that sense that comment was probably more relevant to clause 30. Sorry about that. If I could make the comment here, it is a definition here which then relates to the offence which appears in clause 30. The comment I was making about 'aim' refers to page 19, clause 30, proposed section 83D. Under criminal group in (1)(a), 'an aim or activity of the group', (1)(b) 'an aim or activity of the group' is how it starts. My understanding of that is that having formed the intention they have not actually committed a positive act.

The consequences of being identified as a group or an organisation are substantial, because participation in a criminal group or organisation in and of itself is liable to 15 years' imprisonment and, of course, if you commit an act in the context of a criminal organisation, offences become aggravated; an assault which might otherwise be a two-year offence, because it is conducted in the context of a criminal group, becomes a 20-year offence. We would suggest that the scope is potentially very broad, and that the impact of that broad scope is potentially very significant.

The Hon. D.G.E. HOOD: Just a question on that about something that did get my attention as well when I first became aware of this bill. I would just like the government to clarify this. Presumably the use of the word 'aim' is required to be proven by the activities, nonetheless, of the particular organisation?

The Hon. G.E. GAGO: I am advised that the prosecution would have to prove that the organisation was, in fact, attempting to engage in some type of serious offence. The safeguard, if you like, is the court itself and the level of proof that can be demonstrated.

The Hon. S.G. WADE: I do not disagree with what the minister said but the offence itself, if you like, may not be that sophisticated. My understanding is that a serious offence can include unlawful stalking. Perhaps I should refocus on what the Hon. Dennis Hood picked up in the comments. I understand that he was trying to explore the aim element. In that sense, I do not think the Hon. Dennis Hood has had an answer to his question: does it need to be supported by constructive action by the person?

For example, a group of people might have an aim in terms of, for example, a club: their aim is to deal with all people of a certain ethnic group. Do they need to act on it to come within this? According to the clause itself, it only needs to have two or more people whose aim is to cause harm to an ethnic group. I believe that would come within this provision.

Using another context, let us say we have young people who decide one evening that they are going to head down to the local freeway and throw a stone at a car—that is an aim. They may never get there but they have an aim. It is a serious offence and the fact that there are two or more of them (they are a criminal group) means they are caught by this legislation.

Perhaps this might be overly broadening the scenario, but I remind the parliament that only last year (or the year before) we considered street racing. One of the issues we specifically had to address was where two unassociated people encountered each other on the road and, if you like, determined that they were going to have a street race. In my understanding, two or more people with an aim of committing a serious offence (even though they do not even know each other) become a criminal group in the context of this legislation.

The Hon. G.E. GAGO: I have been advised that the prosecution would have to prove that the joint enterprise was to commit a serious offence to benefit them as a group. With rock throwing, I would not want to read the mind of a judge, but I find it very difficult to see how there would be any joint benefit for the group by throwing a rock at a car going past.

I want to stipulate that this legislation is untested; the courts will interpret and decide what evidence is needed to prove such aims. In addition, the penalty is a maximum penalty for offending, and obviously the lower end of the scale of offending would attract a much lower penalty.

The Hon. S.G. WADE: I thank the minister for her answer. In a way it simply confirms my concerns. I should stress that the opposition does not propose to amend this legislation, but this would surely be a clause we would spend a significant amount of time on if the government had progressed the legislation in a more timely fashion after the Totani judgement in, I think, 2008 or 2009.

I actually like the street racing analogy. You have two people who have no connection with one another who decide to have a street race. It is clearly to their mutual benefit: they get a thrill from having a street race. The government has already identified in other legislation that that is a criminal event, and it is certainly to the benefit of them both.

However, as I said, my purpose here is not to tease out possible amendments; my purpose here is to highlight how broad this legislation is. I just foreshadow my amendment at what would be proposed clause 44A in relation to a parliamentary committee. I think clauses like the ones I have highlighted up to now, and this clause in particular, highlight how important it is for us as a parliament to take our legislative responsibility seriously. If we are willing to allow such broad matters to go onto the statute book it is our responsibility to monitor their implementation to ensure they are used responsibly.

I can imagine a prosecutor who is having trouble establishing the constituent elements of a mainstream event, let's say street racing, turning to participation in a criminal group offence as a fallback. I appreciate the minister's point that having the aim of having a street race will not get you 15 years in gaol—I appreciate that courts do use their discretion—but this is an offence where it is not inconceivable that law enforcement agencies might use it well beyond what is the stated purpose of this legislation, to address serious and organised crime. Again, I stress that I am not proposing an amendment to the bill, but I do believe it underscores the need for oversight.

The Hon. D.G.E. HOOD: I do not wish to detain the chamber; I will just be brief. Clearly this is a key clause in, I would argue, this suite of bills because of the use of the word 'aim'. As a general principle, we do not put people in prison in this country—with some exceptions—for what they aim to do rather than what they actually do.

However, I do believe on balance that it is not unreasonable to include such a term in this bill because I can think of a scenario where police have information that suggests to them that a potential crime is imminent or a potential crime may happen. I believe the use of the word 'aim' would therefore give them authority under this bill—at least to some extent—to act, because the onus would be on them or the DPP to then prove that there was an aim to commit a particular act.

On balance, Family First will support this clause, but I must say that I think the points of caution that have been raised are valid, and this is a very serious issue that needs genuine consideration and close monitoring, if enacted.

Clause passed.

Clause 29 passed.

Clause 30.

The Hon. S.G. WADE: If I may, I would like to mention the context of the amendment—

The Hon. G.E. Gago: If it helps, we are supporting this.

The Hon. S.G. WADE: I appreciate that and I do thank the government for that. I should have indicated that. This is in the context of the proposed section 83E—the new offence of participation in a criminal organisation. Honourable members who are following the debate—a couple of us!—would want to refer back to the definition of the word 'participating' in proposed section 83D, the interpretation clause. I will just highlight that for members:

participating in a criminal organisation includes (without limitation)—

(a) recruiting others to participate in the organisation; and

(b) supporting the organisation; and

(c) committing an offence for the benefit...; and

(d) occupying a leadership or management position...

Again, in terms of words that in the opposition's view have a very broad meaning, the phrase 'supporting the organisation' caught our attention.

The opposition is very keen to monitor the implementation of this legislation and, if I might refer briefly to the point the Hon. Dennis Hood made in relation to why the word 'aim' might be there, I agree with him. You would want, if you like, a more widely drawn offence if you were wanting to deal with the most difficult criminals, for example, serious and organised criminals. My concern is that we are using not only broad offences but broad definitions as well. In my view, we could have had a better match.

In relation to this element too, we are talking about supporting the organisation. We believe that we need to make sure that people have appropriate access to legal rights and I acknowledge that the government will be supporting an amendment such that legal practitioners will not be deemed to be supporting an organisation when they are providing legal services.

However, I would also put to the parliament how broad this is. It may well capture a whole other range of people. We are not proposing to make any other amendments, but is it conceivable that a clergyman—sorry, in the modern world, I should say a member of the clergy—is providing support to the organisation? Is a nurse who is dealing with the aftermath of an altercation in Hindley Street supporting the organisation?

I appreciate that these things are matters for definition, but let us put it this way: we saw only recently a funeral of a person who was associated with an outlaw motorcycle gang receiving support from a member of the clergy after a death. I am sure that in the confessional context within the Catholic tradition and within most religious and faith communities, a member of the clergy would regard it as their duty to provide support, no matter how heinous the criminal behaviour of the person is. As I said, we are not proposing a further amendment but, again, I think it highlights another example of where this legislation is broadly written. We need to be diligent as a parliament to make sure that the law is implemented responsibly.

Having made those introductory remarks, I turn to my amendment. Considering this is my first amendment, I might just bring members' attention to the fact that I am actually talking off [Wade-2] rather than [Wade-1]. There were a number of issues raised, including by the Attorney-General and other persons, that meant that [Wade-1] could be improved. All the amendments are included in [Wade-2].

If honourable members or members of their staff have received the email this morning from myself, you would be aware of the changes and the rationale, except for the new proposed section 44A. That is a late addition because a member of a MLC staff very astutely noticed that we needed to include the proposed parliamentary committee in the list of parliamentary committees. Anyway, that is by way of explanation to encourage members to use [Wade-2] not [Wade-1]. I move:

Page 22, after line 13 [clause 30, inserted section 83E]—After subsection (7) insert:

(8) For the purposes of this section, a legal practitioner acting in the course of legal practice will be taken not to be participating in a criminal organisation or in an activity of a criminal organisation.

This amendment is necessitated by the basic right to seek legal advice and have representative counsel. The definition for 'participating', as I have said, includes supporting the organisation. As I have said, this is so broad as to cover virtually anything that could resemble support. We think it is important to provide provisions for legal practitioners.

Having said that, I am not ranking, shall we say, legal support as more important than religious support but, in the context of implementing legislation that relates to legal rights, that seemed to be the least that we could ensure was protected. As I indicated earlier, we thank the government for its indication of support to this amendment.

The Hon. D.G.E. HOOD: Just very quickly, I think that the point the Hon. Mr Wade makes is valid. I had, again, similar thoughts when I first became aware of this legislation but, on balance, the way Family First would see that issue is that we have to have some trust in the courts to adjudicate these things as appropriate. Whilst I think the word 'supporting' is broad—it could include, for instance, a taxi driver who drives somebody somewhere or whoever it is; you could think of a million examples—Family First cannot foresee the circumstances under which a judge would put that person in prison for that type of support to an organisation.

So, that is our basic position and I understand the comments the Hon. Mr Wade makes. I guess the real issue is to what extent do we leave the sort of common-sense judgements, if you like, to the courts or to what extent do we insist on them being specified in the bill.

The Hon. S.G. WADE: With all due respects, Mr Chair, this is an amendment on which I think I am entitled to respond to the comments the honourable member made.

The CHAIR: You have got the numbers for the amendment, but you can respond. It is just the debate going back and forth all the time and it is clearly taking a long time. The Hon. Mr Wade.

The Hon. S.G. WADE: Sir, with all due respect, I would suggest that this legislation is just as important as the aquaculture bill.

The CHAIR: All the Hon. Mr Hood said was repeating something that you said.

The Hon. S.G. WADE: I would make the point that, if the government agrees that it is appropriate to include an exemption, then they at least are of the view that these things should not always be left up to the courts. I fully agree with the Hon. Dennis Hood and, of course, we do that with legislation all the time, but I would make the point that the government at least is agreeing with me that limitations are appropriate at times.

The Hon. G.E. GAGO: The government supports the amendment.

The CHAIR: The government supports the amendment. The Hon. Mr Hood, we are not debating back and forth and patting each other on the back. Let us get on with it.

The Hon. D.G.E. HOOD: Mr Chairman, nobody is patting anyone on the back. I have made two comments to two clauses and I am entitled to do so, sir. Let me say for the record though that we do support the amendment. Can I also say, sir, that what I said was not a repeat of what the Hon. Mr Wade said. I believe it was an extension of it because I was bringing in the discretion of the courts, if you like, to interpret these terms, which the Hon. Mr Wade touched on but did not go into the same level of detail. Anyway, I stand by my comments, Mr Chairman.

Amendment carried.

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

Page 22, lines 22 and 23 [clause 30, inserted section 83G(1)]—Delete:

'beyond a reasonable doubt' and substitute:

beyond reasonable doubt

The effect of this amendment is to replace the term 'beyond a reasonable doubt' with the term 'beyond reasonable doubt'. This amendment was in response to a comment made by the Chief Justice and the Chief Judge to ensure that the correct legal terminology is used and that it is consistent.

The Hon. S.G. WADE: We will be supporting the amendment.

Amendment carried; clause as amended passed.

Clauses 31 to 37 passed.

Clause 38.

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

Page 23, line 30 [clause 38, inserted subsection (3)]—After 'Supreme Court' insert:

and the District Court

This amendment also addresses the same issue raised by the Chief Justice and the Chief Judge concerning trials that may be expedited to either the Supreme Court or the District Court. In feedback provided subsequent to the introduction of the bill in the lower house, the Chief Justice correctly noted that, because the term 'prescribed proceedings' could refer to proceedings in both courts, section 275(3) needed to be amended such that both the District Court and the Supreme Court make rules for expediting prescribed proceedings.

The Hon. S.G. WADE: The opposition will be supporting the amendment.

Amendment carried; clause as amended passed.

Clause 39 passed.

Progress reported; committee to sit again.

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