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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-07-29 Daily Xml
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Bills

Statutes Amendment (Serious and Organised Crime) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 2 July 2015.)

The Hon. M.C. PARNELL (20:30): I will start by saying: here we go again—here we go again with bikies laws, the bikies laws that took dozens of hours of debate in the year 2008. In subsequent years, amendments were moved and, notwithstanding all that has been done and all the time that has been spent on it, many of these laws have never been actually tried or used. We know that anti-bikie legislation has been an issue across the country. Various states have tried various mechanisms, and the High Court has ruled many of them to be out of order. I say with some pride that I am the only person left from the parliament of 2008 who voted against these laws. I predicted at the time that they would be found to be wanting on the grounds of their abuse of human rights and their infringement of legal principles. The High Court said that the Greens were right. For the record, the other people—

The Hon. S.G. Wade: Not exactly those words.

The Hon. M.C. PARNELL: The Hon. Stephen Wade says the High Court did not actually refer to the Greens as being right. I am paraphrasing that the position that we took was the position that the High Court vindicated. For the record, the other people who opposed the serious and organised crime legislation were the Hon. Sandra Kanck from the Australian Democrats and Independent member in the lower house, Kris Hanna. Everyone else caved in, and they caved in not because they thought they were good laws that were being passed, they caved in because of a simplistic and pathetic campaign that labelled anyone who did not support the law as a friend of the bikies and soft on crime.

These laws have been with us for some time. The government has now decided that, notwithstanding that the provisions for the declaration of criminal organisations have not been tested, they are going to throw those out and put a new system in, the one that is before us today with this bill. As I say, the political context has not changed that much. Certainly, the Attorney-General's comments on any suggestions of dissent or wavering to the one true path have been met with a label that you are soft on crime. Well, we did not succumb to that back in 2008 and we are not going to succumb to it today.

In some ways, in politics people often suggest that there are too many of certain types of professions in the parliament, and two that are usually brought out for special mention are too many trade union officials and too many lawyers. I have to say that I think we are down to three lawyers in the chamber. Those of us who are lawyers do bring a particular perspective to these debates, and it is a perspective that is bigger and beyond the simplistic arguments of the day in relation to crime and whether you are soft on crime.

What lawyers know from their training is that we have a rule of law, we have provisions in our Westminster system of government, such as the separation of powers, and we hark back not literally but figuratively to ancient documents, including the Magna Carta, celebrating its 800th anniversary this year, and lawyers tend to understand that there are bigger principles at stake.

When we debated this legislation back in 2008—I do not remember how long I spoke for, but I would be surprised if it was less than an hour or two—I recall that I had dozens, maybe even more than 100, amendments to the legislation. This time around, I will not be speaking for as long and I have no amendments to table. The Greens will be opposing this legislation, and we will be forensically examining the bill in committee, and I look forward to that stage.

I want to refer very briefly to one of the second reading contributions, that is, the speech of the Hon. Andrew McLachlan (the date of which escapes me), one of the three lawyers; the other one I understand is the Hon. Stephen Wade. I do not believe there are any others, but they will correct me if there are. We are the three lawyers in the chamber. The Hon. Andrew McLachlan's contribution on the second reading said many of the things that I would have said today. He referenced many of the same legal principles, including the separation of powers that I referenced back in previous debates.

I reread the honourable member's speech just recently and found very little in it that I did not agree with. I think it is an excellent, thoughtful contribution that really nails the key issues of why our democracy and our legal system depend on respect for the rule of law. There is a reference in the honourable member's contribution to the Communist Party Dissolution Act, and I enjoyed that reference because my understanding is that the Labor government today is effectively channelling Robert Menzies in the 1950s. Robert Menzies decided that there was a criminal organisation that needed to be outlawed—the Communist Party of Australia.

He put a bill before parliament, which passed, and the High Court quite rightly threw it out. They threw it out on constitutional principles, the parliament trying to outlaw organisations. They then tried to have a referendum—in fact, I think two referendums—and ultimately they were defeated as well. Again, a quote that is often attributed to Voltaire (I do not know whether or not it was him) is about not necessarily agreeing with someone but agreeing with their right to say it. That might be a little bit different in relation to bikies because it is not so much what they are saying as what they are doing, and I will be the first to say that when they commit crime they need to be caught, prosecuted and punished severely for serious crimes.

I will just go back to what I said before. My understanding is that actually there are four lawyers in the chamber. I have a feeling that the Hon. Kyam Maher might have a law degree as well, so I will correct the record—four lawyers in the chamber. Another person I want to refer to briefly is actually someone who has been in the news quite a lot lately. She had quite a significant impact on my early legal training because she was my international law lecturer back in 1979 or 1980, so some little while ago, and that is Professor Gillian Triggs.

The Australian Human Rights Commission, which she chairs, has weighed in to these bikie debates, not in South Australia but in Queensland, and the reason that is relevant to here is that the South Australian laws are based substantially on the Queensland model. They are not identical, as they had even more draconian things in their laws that we do not have here, but the basic principles are the same. In a media release on 18 October 2013, Professor Triggs said:

As a democratic and fair society, freedom of association, freedom of expression and our right to be treated equally before the law in accordance with the International Covenant of Civil and Political Rights should be fundamentals under which we operate.

The release goes on:

Professor Triggs said that the passing of any laws, especially those creating wide reaching or sweeping powers, should be accompanied by a statement of Human Rights compatibility, as they are at the federal level, and also allow for their debate and scrutiny beforehand.

So, the first thing I would say is here we have draconian laws and, in this state, we have no human rights assessment of these laws. At different stages, various members have suggested assessing regimes for laws. I have heard of family impact assessments being required.

The Hon. R.L. Brokenshire: Yes.

The Hon. M.C. PARNELL: I know at least one member thinks that is a good idea, but something even more fundamental, such as a human rights assessment of legislation, is something that this parliament has not been capable of doing to date.

In terms of the legislation, the key element that I will be spending most of my time looking at, both now and in committee, is this issue of the declaration of outlaw motorcycle gangs as criminal organisations. That is an important provision of the legislation because it then triggers a range of coercive restrictions and deemed criminal responsibility, including association, issues in relation to attending licensed premises and even fashion restrictions involving jackets and jewellery, as we will see when we come to debate the bill in detail.

The question that then arises is: if we are going to have a system of declaring certain organisations illegal, what is the method that should be undertaken for that to happen? How should we do it, in other words? I will give you four different options.

Option number one: parliament can decide. Parliament can decide which organisations are illegal and which ones are not; which organisations are criminal associations, and which ones are not. That is the model that the government is putting before us with this bill.

The second option would be the Executive could decide. The Attorney-General could put it in the Government Gazette, deeming an organisation to be outlaw.

A third option would be the Executive could make the decision—so, the Attorney-General—and perhaps give the parliament the right to disallow any declaration through regulations. You could tweak that and you could add a government committee with a bit of oversight, preferably a government-controlled committee to make sure they did not interfere too much, so that would be another option.

The fourth option would be the Executive could propose the listing of an organisation as criminal, and they could put that evidence before a court, a court that would then judge the evidence and make an assessment based on criteria set out in legislation.

That fourth option is the option that the Greens prefer. If we are going to go down the path of declaring organisations criminal, then it must involve a proper assessment of the evidence, and that assessment is best conducted by a judicial officer. So, at two ends of the spectrum, the Greens prefer judicial oversight; the government believes that the parliament should decide.

I want to just refer briefly to the amendments. I will start by making a comment about the process that this chamber goes through when considering amendments. These amendments were supposedly filed yesterday or the day before. When did we get them? We got them at 2.15 today. At 2.15, when we came into the chamber, they were put onto our desks. I will confess that I got them a couple of hours early because I came into the empty chamber, I raided the table staff's stock of amendments and I collected my own copies, but that is not what most members do. I do not know if any other members ever do that—

The Hon. K.L. Vincent: You shouldn't need to.

The Hon. M.C. PARNELL: —come in here when parliament is not sitting and help themselves to amendments. The Hon. Kelly Vincent says, 'You shouldn't need to,' and she is exactly right. What a crazy, antiquated system of making laws when we can be told by the government that the number one priority of government business is to conclude debate on this legislation, and yet the government does not have the courtesy to email to members amendments that were drafted a day or two ago. I can only speak for myself, but they did not ring me up and say, 'Mark, we are going to amend that legislation that is the number one priority item on our list.'

Instead, we come into the chamber at 2.15, and we are given I think four new sets of amendments, and I will go through those when we get to the committee stage eventually, but I just make the observation that, if the Liberal Party was opposing the bill, then members of the opposition would be crying blue murder.

I have heard the Hon. Rob Lucas on many occasions standing up and looking at the time stamps and when amendments were received, and commenting that there has been no opportunity to consult stakeholders and that it would be highly inappropriate for the parliament to be considering such important legislation with late amendments and being required to vote on it on the same day or even the next day after they were introduced. The process is appalling.

I know it is uncomfortable for Legislative Council staff, and I have been raising this issue for the nine years that I have been here, but we have to get a better system for the Legislative Council to notify members of amendments. There is no practical reason why it cannot be done electronically. I will put my hand up. I will be on a mailing list.

Every time amendments are filed, like they are received in the Legislative Council, they just get emailed to members. If the mover decides not to move it, so be it. They would be circulated with a note saying, 'These amendments have been filed. They may not be moved', and we would just judge that on its merits. It is just crazy that we can be given amendments at 2.15pm in the afternoon and a few hours later be expected to give them proper consideration and to vote on them, so I just make that point.

I would also make the point that when I did look at the amendments—because I do take my responsibility seriously and I knew this was the number one item—a couple of things stood out for me. First of all, I can see that the Phoenix Motorcycle Club has now been taken off the list. The Phoenix Motorcycle Club, you might recall, is an organisation that exists in two locations apparently. There is a group in the northern suburbs of Sydney called the Phoenix Motorcycle Club and there is a group of people in Adelaide whose only crime appears to be conducting races at the Mallala racing track.

I can remember when we first got this bill that it took me about 15 minutes to scan through the bill looking through the list of outlaw organisations. I went down the list until I came to one I had not heard of before and I googled it. I googled the Phoenix Motorcycle Club and what did I get? I got a website based in Adelaide and I thought, 'These are bad, wicked people. I haven't heard of them before.' Their website contained a number of incriminating photos. I saw a middle-aged gentleman drinking a light beer at what I think was their 50th birthday party. I thought, 'Well, I am afraid. I am very afraid.'

I rang the secretary up. The secretary's mobile phone number is on the website. I rang him up and said, 'Did you know you guys have just been declared a criminal organisation?' I could hear on the receiver his jaw dropping. 'We just run the races', he said. I had to say to him, 'I think it is a case of mistaken identity. I do not think you really are in trouble.' I have to say, he was nervous. He was saying, 'We meet at a hotel', and we have laws here about members of outlaw motorcycle gangs in licensed premises.

What struck me though—and this goes to the heart of how the government has managed this legislation—was that the phone call that the secretary of the Phoenix Motorcycle Club received from me was the first phone call he had. I said, 'Surely the police have rung you or the Attorney-General's staff have rung you?' 'No, you are the first person to ring me.' The second person was a journalist, and I think the government finally got onto it maybe 24 hours later.

I think he did eventually get a phone call saying, 'Don't worry, mate. It's not you we're after. There are some people in Sydney that we don't like. It's not you.' But when you think about it, this is legislation. This is law that we are being asked to vote on and now, a few hours before we are being asked to consider it, they have taken the Phoenix Motorcycle Club off and a whole lot of others as well, and we will explore the reason for that.

The second thing I noticed in the amendments is the spelling mistakes. Does Comancheros have one m or two? Apparently, there is an amendment to correct the spelling of a name. Given what we are talking about here, you might just say that it is all semantics and anyone can make a spelling mistake, but we are talking about the identity of organisations that are deemed to be criminal and whose members are guaranteed gaol time, because it says in this bill they are going to go to gaol. To not get their identity right is absolutely appalling and to be correcting mistakes in identity the day that this bill is hoped to be voted on is absolutely appalling. It is just a joke.

We have another one. The Gypsy Jokers—singular or plural? Joker or Jokers? Really, what is the government playing at here? They have more addresses wrong. We have already had one set of amendments in the lower house where they got the addresses of clubrooms wrong and now we have another list of addresses and certificates of title.

I have no doubt whatsoever that there are mistakes that are still in this bill that we will not pick up today or tomorrow; mistakes that will remain. People might say, 'Well, the courts aren't perfect either,' but I can tell you that they are going to have a far better shot at analysing the evidence, picking up mistakes, identifying whether criminality really is at the heart of what people are doing, than this parliament has.

I am very disappointed that the government and the opposition appear to have stitched up a deal. I am disappointed that the government has imposed this on the parliament without even having the courtesy of speaking to the crossbenchers or circulating their amendments, other than waiting for us to collect them from our tables at 2.15 today. As we did in 2008, the Greens will be voting against this legislation. As I said, I have not moved the dozens of amendments that I did last time but I certainly will be commenting on the amendments that have been moved and I have some comments to make on many of the sections on which amendments have not been moved.

Whilst I understand that the government has the numbers and it is going to go through, I am not going to let unanswered questions remain but even in the short time that is available to us we are going to miss a lot of things. I am terribly disappointed that the government has gone down this path. It is probably not too late to turn back, although it would be quite a remarkable thing for the Attorney to see the error of his ways at such a late stage in the piece, but I am disappointed that we are proceeding with this, and we will deal with more specific elements when we get to the committee stage.

The Hon. K.L. VINCENT (20:51): I want to begin by making it clear that Dignity for Disability believes that those involved in criminal activity should be dealt with in the strongest possible and necessary manner. However, the bill that we now have before us, the amendments that we now have before us at this late stage are not the way to do it and this evening is not the time to do it.

Members may have seen in the media that we did have some sympathy for original opposition amendments, particularly those which dealt with the fact that physical addresses of suspected bikie premises are printed in legislation. We had a lot of sympathy for those amendments and we were considering them very seriously, because this is not the type of decision we should make lightly.

However, thanks to a deal that has been done behind closed doors between the two major parties, those amendments have now apparently been superseded and instead we have new amendments that were, as the previous speaker pointed out, placed on our desks at some point before 2.15 this afternoon when we all came into the chamber and, therefore, we have not had the opportunity to properly consider the outcome of these amendments or the ramifications of these amendments. We certainly have not had time to consult with our constituents about these amendments, and so it would be frankly irresponsible of us to pass these amendments when we have not had the time to properly consider the ramifications.

Of course, there have been occasions when Dignity for Disability has been quite happy to speedily pass legislation or amendments but they are in very restricted circumstances; circumstances when not passing an amendment or a piece of legislation would result in a risk to public health, for example. I can recall a situation when it was discovered that there was a loophole in the domestic violence protection legislation that allowed perpetrators of domestic violence to get the contact details of people they had previously perpetrated violence against. That kind of situation is exactly the kind of situation where we are happy to speedily pass amendments to close those kind of loopholes.

However, where a backroom deal is done without consultation and, as my parliamentary colleague the Hon. Mr Parnell says, without the courtesy of letting the rest of the parliament know the nature of the deal that has been struck and the nature of the amendments that we now have before us, it is irresponsible of us to pass this legislation.

Let me be very clear about this. As has already been pointed out, putting the addresses of physical residences in legislation, some of which have already been proven to be incorrect addresses, is dangerous. I get visions of my poor mother sitting home having a cup of tea, watching Deal or no Deal, as she is known to do, and having police and officials knock down her door because maybe there was one number wrong in the address or the street name was spelled incorrectly, as has already been proven to be the case, with incorrect addresses and incorrect spelling in the amendments, even the amendments we have before us at this late stage.

It is dangerous to have these addresses particularly printed in legislation, where it is more difficult for us as a parliament to quickly make changes if those addresses are proven to be incorrect. Quite frankly, the police should have to do their job. I am not saying they have not been doing their job, but it is their job to collect evidence about these cases and then present it to a judge in a court. This completely bypasses that process and bypasses basic principles of justice.

Further to my previous point, this is also an insult to parliamentary procedure, it is an insult to this council and a complete insult to the people of South Australia that the Labor government and the Liberal opposition are so disrespectful of South Australians that they would stitch up a deal behind closed doors, as I said, and ram through this legislation, the ramifications of which the majority of this parliament, the rest of this parliament, has not had the opportunity to properly consider.

We know that the Law Society, the Bar Association, the Australian Lawyers Alliance and many other legal bodies and legal minds strongly oppose the concept and principles that this bill enshrines, and for those reasons we oppose the bill. Perhaps there is one more reason this bill needs to be strongly opposed. Not only is it an insult to parliamentary procedure, to good responsible legislative process, and for the safety of people who could have their addresses incorrectly printed in legislation, it is also an affront to our 800-year-old Magna Carta, which states, in chapter 39:

No free man shall be taken or imprisoned or dispossessed or outlawed or exiled or in any way ruined, nor will we go or send against him except by the lawful judgment of his peers or by the law of the land.

This bill, in its current form, does not respect any of those laws. It does not respect proper parliamentary process, proper legislative process, even proper spelling process.

It is flatly irresponsible of this parliament to pass this bill this evening. In saying this, I want to make very clear that Dignity for Disability does want to see those involved in serious criminal activity dealt with in an appropriate serious manner, but this bill, given the flaws it is already proven to have, is not the way to do it. We will oppose this bill at this stage for those reasons.

The Hon. B.V. FINNIGAN (20:58): I am sure all honourable members are agreed that we are against serious and organised crime and are particularly concerned about the activities of outlaw motorcycle gangs. The question is: how do we best combat their activities. I have certainly supported this sort of legislation in the past, and I can even recall on one occasion within the Labor caucus speaking strongly in favour of such legislation when others expressed some reservations.

I feel, as the Hon. Mr Parnell said, that it is a case of, 'Here we go again.' This is a bit of a case of deja vu all over again. It is important that we get this legislation right. There are two key issues that we all know have to be addressed here: one is the constitutionality of the bill and the other is that we do not unduly infringe on individual rights. In relation to the bill being constitutional, that is a very difficult question to answer even for the people here who are experienced as lawyers.

There are many who have great experience in drafting legislation and are able to take account of court decisions and so on in coming up with the best legislation and amendments we can. I am certainly not in a position to say that this bill is not constitutional. I suspect that it may run into difficulties in the future, but ultimately I think the parliament and we as legislators can only do the best we can to ensure that any legislation we pass is within our constitutional powers. Whether or not that turns out to be the case is ultimately not, as it should not be, a decision for us.

In relation to the infringement on individual rights, or the rights of people in our community, I think there are some serious concerns in relation to the suggestion that merely belonging to and associating with other people who belong to an organisation can be in itself sufficiently criminal to attract significant and severe sanctions. I think we need to be very careful about being too enthusiastic about infringing on individual rights. This is similar to what we often see with terrorism legislation—or anti-terrorism legislation.

Certainly none of us want to see life made easier for organised criminals or for bikie gangs, but at the same time we have to make that balanced judgement. In Catch-22 there is a line about Yossarian stating that by exercising his rights he was trashing them. I think we have to be careful that there is that balance between what we as a community and a society and as a parliament want to do to protect other people in the community and to prevent criminal behaviour, but at the same time not in a way that becomes arbitrary or is not respectful of the rights of individuals.

I do have concerns about that. I am not decided either way on the bill. I know, obviously, that it is not going to matter, really, what I think, in terms of whether this legislation goes through. I do share the concerns of other honourable members in relation to the process here. We see this time and again, where a piece of legislation languishes until an agreement is reached with the Liberal Party or a sufficient number of crossbenchers as to ensure its passage and then bang, the bill is brought on and it goes through.

I think we do need to consider that process. I am not satisfied that there is sufficient urgency that this has to be dealt with now. There are occasions, certainly, and we have all been here when that has happened, and I think many times honourable members have not necessarily opposed legislation being rushed through when it is necessary, and it can be. But I am not convinced that there is something about this legislation that it has to be passed today or tomorrow, rather than in August, or even if the parliament wanted to be brought back if it was that important.

Yes, we all want to see the activities of organised crime curbed. We want to see criminal behaviour punished, but I am not satisfied that a case is being made out that something has happened in the last 72 hours that makes it imperative that this bill now be passed and that the passage of this bill will make a sufficient difference in that fight against organised crime that it must be done right now, other than agreement has been reached with the Liberal Party. That is certainly something I have a concern about. I reserve my position in relation to amendments and to the third reading, but I did just want to briefly put those concerns on the record.

The Hon. J.A. DARLEY (21:04): I rise to briefly speak on the Statutes Amendment (Serious and Organised Crime) Bill 2015. As honourable members know, the bill focuses on three core areas of reform. Firstly, it seeks to introduce new offences mirroring those enacted in Queensland and declared valid by the High Court. The elements of some of those offences include participants of criminal organisations meeting in public places with two or more other participants, participants of criminal organisations entering prescribed places or attending prescribed events, and participants entering licensed premises wearing club colours or logos.

Secondly, the bill seeks to modify South Australia's consortium provisions consistent with those enacted in New South Wales and declared valid by the High Court. Lastly, and most contentiously, the bill seeks to list a number of motorcycle clubs as declared criminal organisations. The original government proposal lists 27 motorcycle organisations, 10 of whom have a presence here and the remainder of whom have a presence interstate. I understand that as a result of a compromise reached with the opposition, the government is now proposing to list only those organisations that exist here in South Australia. The bill also seeks to enable the Attorney-General to declare any venue to be a prescribed place. These changes are contentious because they attempt to remove the determination role of the courts and any possibility of judicial review.

In addition to listing certain motorcycle clubs as declared criminal organisations, the bill will also enable the Attorney-General to declare future organisations and future venues as criminal organisations or prescribed places. This aspect of the bill is not as contentious, because those caught up in future declarations will have the benefit of being able to challenge the decisions.

Overall there is no doubt that this is, nevertheless, a contentious piece of legislation, and I appreciate all the concerns that have been raised about adopting the approach that has been proposed by the government. That said, the bill is aimed at dealing with individuals who choose to participate in organised criminal activity and wreak havoc on our communities. They have little, if any, regard for our society and even less for the rule of law.

On Sunday morning most of us woke up to the news that three Rebels bikies had been arrested overnight after a feud with the Comancheros bikies triggered two separate drive-by shootings, the first at the Smithfield Hotel and the second in the car park of some nearby retail shops at Blakeview. According to media reports the three men, whom police allege were Rebels, were found hiding in the backyard of a home behind the Blakeview shopping centre. One of the men had suffered a gunshot wound and was taken to hospital. As I understand it, it is not clear at this stage whether anybody else was injured during the shootings.

I happen to know one of the families whose business was impacted by the shooting. They tell me it is not unusual for them to stay back during the evening to catch up on work and get things done around the shop. Given that it is a family-run business, it is also not uncommon for the owners to take their young children to the store with them. I do not need to tell you how thankful they are that on this occasion nobody, including staff, had stayed behind. On the day following the shooting the owners were also inundated with queries from concerned customers. They were left to reassure their customers that the incident was unrelated to the business and that it was safe to visit the store once they were able to reopen.

Fortunately the damage associated with the incident appears to be limited to some broken windows and doors and some damaged walls. It has also meant that since Saturday the owners of the store have effectively had to make their store available to the police for ongoing investigations, and I understand this has resulted in some lost trade. However, the owners are not complaining. As inconvenienced as they may have been, they know only too well how different things could have turned out if an innocent bystander had been caught in the crossfire on Saturday evening, especially given the traffic of people who usually frequent the shopping centre. Right now I think they are simply counting their blessings.

I should also point out that none of this is intended as a criticism of our police. In fact, business owners have commended the work of the investigating officers and they are extremely grateful for all that they are doing.

Coincidently, as I understand it, up until about four weeks ago there was a police station operating within the same shopping centre. According to comments made to the media by the owner of the commercial site, it would appear that this sort of thing has not happened at the premises before and that the police presence has assisted in keeping the area safe.

The government's decision to close local police stations due to budgetary constraints is far from acceptable but the fact of the matter is that it should not take the presence of a police station to ensure that this sort of thing does not happen in any of our neighbourhoods. We all deserve to go about our business without the fear of being caught up in situations involving bikies spraying bullets at each other in car parks and hiding out in innocent people's backyards. That is why we will be supporting the bill.

Again, the individuals the bill targets have a blatant disregard for the law and community safety and deliberately strive to be the 1 per cent who operate on the periphery of society. They flout social norms and instead opt to engage in organised criminal activities, including money-laundering, violence and prostitution, among other things. In particular, we all know the involvement organised crime has in the manufacturing and supply of illicit drugs. This is why I have been particularly stubborn over my amendments to the government's confiscation of assets bill, which also targets illegal criminal activity by prescribed drug offenders. This issue needs to be looked at from a holistic perspective. If we are targeting those who perpetrate crime, we should also be looking at the fallout of their actions and those who are adversely affected.

Whilst I support in principle the government's proposal to confiscate the assets of criminals, the government needs to be prepared to direct money towards drug rehabilitation to deal with our drug epidemic. Australia now has the highest proportion of recreational drug users in the world. We rank first in the world in the use of ecstasy, third in methamphetamines, fourth in cocaine and seventh in cannabis. The government needs to give serious consideration to mandatory drug rehabilitation programs. We need to look at countries like Sweden that focus on zero tolerance, prevention, treatment and control. We need to consider measures like giving the courts the power to divert users into detoxification and rehabilitation. Dealing with bikies is a good first step, but instead of just focusing on one aspect of the problem, we need to be looking at all these issues as a whole.

I indicate for the record that I do support those amendments aimed at addressing the issue of ensuring parliamentary scrutiny. I appreciate the concerns raised with respect to this legislation, particularly in the past. Whether you agree with those arguments or not, the advice we now have is that this bill has been drafted to withstand further challenges. It has been based on existing legislation from other jurisdictions, which has been ruled valid by the High Court. Time will tell, but that is the best advice we have now. I, too, express my concern at the manner in which this bill has been pushed through, and I must admit that I was due for my briefing on the bill tomorrow. With that, I support the second reading of the bill.

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (21:13): I understand that all second reading contributions have been completed. I wish to thank members for their contributions, particularly those who have indicated their support. A number of issues have been raised during the debate thus far and I think it is probably a wise thing to deal with those specifics during the committee stage, and I look forward to dealing with those matters expeditiously.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: The shadow attorney-general in the other place, Ms Vickie Chapman, the Hon. Andrew McLachlan and other members of the Liberal team have already detailed to the parliament concerns of the opposition in relation to this bill. This is not our bill, it is the government's bill. A Liberal government would have legislated against criminal organisations but we believe that more robust and effective legislation could have been achieved without offending legal and constitutional principles.

However, we are not in government, we do not have the numbers to get legislation through the lower house. We were approached by the government to see if we could come to an agreed set of amendments on their bill to facilitate its passage through this place. The agreed set of amendments are reflected in the government and Brokenshire amendments which have been filed and I stress the fact they are, in that sense, a tripartite set drafted by the government and the Hon. Mr Brokenshire in consultation with the opposition.

If the council supports the amendments, the opposition considers that the bill will still be flawed but it is our assessment the bill will be better and that it is better than what could be achieved by drawn out parliamentary consideration. The opposition does not take the remaining issues lightly. I indicate to the council that to assist the Hon. Andrew McLachlan to more clearly highlight issues with the bill and to express his personal views, I will be speaking in this committee stage on behalf of the Liberal opposition.

The opposition will support the bill with the amendments agreed. We welcome the government's initiative in engaging on amendments, but we are still disappointed that the government did not act more positively earlier in the development of the bill. The government did not engage the Crime and Public Integrity Policy Committee on drafts of the bill. The Attorney-General did not engage the Crime and Public Integrity Policy Committee on its review of serious and organised crime legislation. The government initially sought to push this legislation through the parliament. The government is showing yet again that their primary interest is playing politics, not good law.

The opposition and other members have insisted that the bill not be rushed through parliament. As a result, when the government initially wanted the legislation through the parliament in days, this bill has now laid on this table in the parliament for 56 calendar days. This has given an opportunity for organisations and individuals affected by the bill to bring issues to the parliament and, as a result of that exposure and the consideration by parliamentarians, a number of changes have been made.

It is five years since the legislation was passed and we still do not have one declared criminal organisation. I think it is highly likely that the law will need to be revisited, perhaps after further consideration by the courts. Next time I hope we do a better job and deliver a better law. Today the Liberal opposition will be supporting the amendments put forward by the Hon. Mr Brokenshire and the government and will be supporting this legislation.

The Hon. T.A. FRANKS: In clause 1 in terms of questions, the minister indicated that she would be addressing the questions that were raised in the second reading debate in the committee stage. Will she be addressing those in clause 1 or as the clauses become relevant, and does that mean that we will go through each clause by clause?

The Hon. G.E. GAGO: Clause by clause.

The Hon. T.A. FRANKS: I have a question at clause 1. On 3 June at 5.47pm the Government Whip sent all members of this parliament an email which read:

All Members of Parliament

SAPOL BRIEFING ON PERSONAL AND OFFICE SECURITY

As the Serious and Organised Crime Bill is before Parliament, it is an appropriate time for a briefing from SAPOL on personal and office security. A briefing has been arranged for Wednesday 17 June 2015.

All interested members were invited to attend by the Government Whip on that date. Can the minister outline how this bill raised concerns with the government about the personal and office security of members of the South Australian parliament?

The Hon. G.E. GAGO: I have been advised that it appears to have raised concerns with the police, not the government.

The Hon. T.A. FRANKS: Can the minister explain why SAPOL, when asked this question in the briefing, said that there were no raised security concerns for members of parliament and that they believed these outlaw motorcycle gangs would take legal means to challenge this bill and our security was not in any way in further danger than it normally would be?

The Hon. G.E. GAGO: No, I cannot speak on behalf of the police. You would need to ask them.

The Hon. T.A. Franks interjecting:

The Hon. G.E. GAGO: I cannot argue with you. I am not arguing that that was said or not, I am just saying I have no explanation as to that. In terms of the challengeability of the bill, we have been advised that this bill does meet very strong legislative weight and that it will stand up to scrutiny and to challenge.

The Hon. T.A. FRANKS: Was this email a fear tactic to scare members of this chamber and the other chamber into voting for this legislation?

The Hon. G.E. GAGO: No, not that I am aware of.

The Hon. A.L. McLACHLAN: I thought I would make a contribution at the first clause with regard to my personal position. It is my view that controlling and ultimately pacifying organised criminal groups is an objective of all of us in public life. At the same time it is important to acknowledge that the principle of open justice is fundamental to our legal system and democracy. The bill before us is, as many have described, a great leap backwards from the progressive policies of the Dunstan and Hall governments. This bill brings in an opaque system of justice that insults over 800 years of tradition that protects the rights of the individual against oppressive actions of the state.

The bill brings darkness to the operation of the executive and the operation of its police force, where light is needed to ensure the rule of law. This proposed legislation has the colour of central Europe in the 1930s when the embers of the Reichstag were still warm. This is the sort of legislation you would expect to see in the Apartheid regime that blighted South Africa, or in other countries of that same continent whose communities were degraded by similar laws.

I will not be supporting the passing of the bill. I act in a personal capacity. All parliamentarians in the Liberal Party are expected to exercise their right to speak and vote in accordance with their own belief or conscience and express their views to the electorate. This is in stark contrast to the Labor Party. It is one of the longstanding principles of the Liberal Party that a member can, from time to time, cross the floor and vote in accordance with their strongly held personal beliefs. I thank my colleagues for their understanding and defending my right to cross the floor.

My ideal of a free society remains important to me. I do not see myself as a careerist politician. My first priority is that my values will withstand the demands of the chamber. Further, without a bill of rights to guide our actions we have a political system that depends upon political leadership that respects democratic values, the rule of law and a separation of powers doctrine, as well as human rights. From my seat in the chamber, having regard to this bill, I have no choice but to oppose the declaration of the organisations by the parliament which is a breach of the doctrine of the separation of powers.

The Liberal amendments which I advocated in the second reading debate are no longer reflective of the Liberal Party room's position. Whilst I still had strong personal reservations during the second reading debate, I believed the Liberal amendments reflected a fair balance between the demands of the police and the need to respect the rule of law. Now that the Liberal Party room is no longer supporting those amendments, I am unable to support the passing of the bill. The amendments agreed between the opposition and the government fail to mitigate the horror of the proposed legislation and is undermining of our longstanding democratic traditions. I will have more to say at the third reading regarding my decision.

At this point also, I might ask a question that may have some relevance in subsequent clauses. In my research in preparing for the committee stage tonight, I came across a provision in the Police Act 1998, section 74A—Special provisions relating to criminal intelligence, and it requires the Attorney to task a retired judge to review certain aspects of police practices in the use of criminal intelligence.

My question for the Leader of the Government is: have those reviews been conducted, and have those reports been tabled in parliament, as I am unable to find the same? The relevance to the particular bill at hand is that we are being asked to take on faith in this parliament the veracity of criminal intelligence or assertions of the police, and I would like some assurance that section 74A has been complied with.

The CHAIR: Minister, did you get the question?

The Hon. S.G. Wade: They weren't listening, so I don't know how they would.

The CHAIR: I am just asking that question.

The Hon. G.E. GAGO: I thought the question was about whether 74A has been complied with.

The Hon. S.G. Wade: You probably need to know which act it's in; and you probably need to be listening.

The CHAIR: I think that the minister is on top of her brief. The Hon. Mr McLachlan, will you ask that question again, please?

The Hon. A.L. McLACHLAN: The matter I raised, Chair, is that, subsequently in this debate we will be discussing the veracity of the information upon which this committee has to decide whether to declare certain organisations as criminal organisations. There is a related provision in the Police Act 1998, section 74A, which has special provisions relating to criminal intelligence which requires a report to be tabled before each house of parliament by the Attorney-General setting out the report of a retired judge regarding the effectiveness of certain guidelines and the use of criminal intelligence.

I am unable to find that report and I have not been able, even with the assistance of parliamentary officers, to locate those reports, and I am seeking an assurance, which is why I am raising it early in this debate, whether previous reports have been tabled as a consequence of that review being undertaken in relation to that act.

Its relevance to this debate is that, if they have not been undertaken, then how can we be assured of the veracity of the criminal intelligence upon which we are to base our decision? And as a consequence, the failure of complying with section 74A may have serious implications for the decision-making of committee members during the course of this debate.

The Hon. G.E. GAGO: I have been advised that we do not have that level of detail here, but we are happy to take that on notice and to bring back a response as soon as we are able to access that information.

The Hon. M.C. PARNELL: I might just take this opportunity at clause 1, in response to what the minister just said, to ask whether the minister can perhaps outline her intentions for the debate tonight. I am not sure that that will not be the only question the minister takes on notice, so what I am interested in is: if the answers are not available tonight, at what point is the minister considering adjourning tonight's debate and resuming tomorrow, because my understanding was that the priority letter we received from the minister's office said that it was hoped to conclude this bill by tomorrow? So, at what point is the minister proposing to adjourn tonight? I am not worried about the time, I am happy to stay here all night, but at what point in the bill is the minister proposing to adjourn?

The Hon. G.E. GAGO: Obviously, the government is very keen to progress this bill as soon as possible. Our intention is to make sure that it is returned from this house to the lower house around midday tomorrow, so if there are any further changes or discussions that need to occur they can occur tomorrow afternoon so that they can be resolved and then hopefully the bill dealt with through to finalisation. In terms of this evening, I obviously want to progress the thing as far as we possibly can within reasonable constraints. We intend to sit tomorrow morning, and I would say that at this point it looks like we would need to come back at 10am to resume further consideration. In terms of the progress this evening, I am obviously keen to progress the thing as far as we possibly can.

The Hon. M.C. PARNELL: I have a specific question on clause 1, because it relates to the whole of the bill. It follows from the Hon. Andrew McLachlan's point that there is a deal of secret evidence that has been relied on by the government in the drafting of this bill and in particular the lists of criminal organisations proposed to be listed in this bill. My question of the minister is: what evidence do you intend to put on the record during this debate about the individual organisations that are listed in the bill?

If you want an example, I understand a number of these groups are being struck from the bill. If we just take one that is remaining, the Red Devils, just to pick one out randomly, what information does the minister intend to put on the record about the Red Devils? Are we going to find out their approximate membership, the address of their headquarters, the number of offences that known or suspected members have committed, any charges that members might be facing, or is there any other information that the minister can provide to us if we are being asked to add to this organisation to the law of South Australia as a criminal organisation?

The Hon. G.E. GAGO: I have been advised that the police made this information available to all members of parliament some time ago in a number of special briefings, and many members of parliament availed themselves of those briefings. The list contained in the legislation is a list of 10 organisations that are currently situated in South Australia. The police have advised us, and those members of parliament who attended the briefings, about those organisations, including their membership, criminal activity, and a range of other relevant information.

The Hon. M.C. PARNELL: I accept what the minister saying. I attended a briefing, and the police attended with large lever arch files with material in them. We were not allowed to keep those folders; we were not allowed to take copies of any of the material in those folders. The point would be that if someone asks me subsequently about legislation that I am party to in this state and asks me why I made that decision, what information on the public record will I be able to refer them to that explains why a particular organisation was listed?

In other words, it is one thing for me to have a briefing and for the police to tell me that these organisations are full of bad people and give me a list of all the bad things that they have done or are suspected of doing, but how does that help the public? What information will the public have to explain why the law of South Australia includes the list that it does in schedule 1? Are you prepared to put any information at all about any of the activities, offending, individuals of any of the organisations listed on Hansard at any time during this debate?

The Hon. G.E. GAGO: I do not believe we have any intention of making that information public but I can check in terms of that, but my understanding is that that level of obviously very sensitive information was made available by police to interested members of parliament and that the details in relation to the answers to those questions were made available.

The Hon. R.L. BROKENSHIRE: In order to expedite things so that at some point in time, tomorrow as I understand from the government leader, that this bill will be voted on for the third time I just want to put the position of Family First as it is now and unless there are then any questions regarding our amendments as we proceed with them then, like the Hon. Stephen Wade did on behalf of the opposition, hopefully that can help to assist all colleagues.

I do first and foremost respect the right for any member to cross the floor and express their disagreement to a bill. I did it on one occasion and crossed the floor, so I do clearly accept the rights of any individual. There have been some comments tonight on issues around this legislation and I want to put on the public record in clause 1 Family First's appreciation of the leadership shown by both the Leader of the Opposition and the Liberal Party in coming to some mid point with the government, and also to put on the public record our appreciation of not only the Leader of the Opposition and his party but also that of the Attorney-General, because this is a very important piece of legislation.

It is extremely important that we get some compromise in passing the intention of this bill before we rise for the winter, and that is why we will be supporting the government's amendments as they are now after deliberation. I want to say that I think that this has been one of the few examples where there has been incredible openness and opportunity for any member of parliament to be briefed in more detail than ever in my recollection of issues where there is sensitivity and confidentiality on intelligence. This is one of the few occasions where every member of parliament has had an opportunity to have a briefing, whether you have been on a standing committee or as an individual.

I would not want to see any of the confidential intelligence on the public record because I do not want to do anything whatsoever that would ever cause any potential risk to any South Australian. The reality is that, whatever the beliefs of MPs individually, there are high risks with respect to outlaw motorcycle gangs and serious organised crime. I have said today publicly and I have put on the record in Hansard that our preference would have been to have the whole 27 declared right here and now but parliament is about what you can deliberate on and work through to get up a democratic compromise and an agreement in the house.

I understand that that is now occurring and I commend all members involved in that, but this is a very serious issue and first and foremost we have to put public security and safety at number one and that is what is occurring in this debate. That is why Family First will be supporting the compromised position that has been put forward, and I congratulate the maturity of all those involved in meeting that compromise.

The Hon. T.A. FRANKS: In that briefing from the police that the minister refers to, I would say that we were not actually given extensive access to those documents. They were put in front of us; we did not have any ability to interrogate them or test the information. Given there are already spelling mistakes in the names of these outlaw motorcycle gangs, perhaps a bit of proofreading from the government side would have helped at that stage.

However, there was a particular question I raised in that briefing that I did not get an answer to, so I will put it again. It was echoed by the South Australian Law Society President, Rocco Perrotta just recently in an article he has penned in the last few days:

Sally Kuether represents much of what is wrong with the SA government's 'bikie laws' Bill recently introduced into Parliament.

I raise this issue because, having family in Queensland, I was quite familiar with the situation of the Queensland woman, a respected library assistant and mother of three who was in fact a recipient of a Lord Mayor's Award for excellence beyond the call of duty for her volunteer work during the Brisbane floods of 2011, who fell foul of these laws. She is not a member of a club; however, she was charged with participating in a criminal organisation and wearing club colours after being in a hotel in the wrong outfit. How will the government ensure that South Australia does not create more Sally Kuethers?

The Hon. G.E. GAGO: I am advised that the offence in relation to the Liquor Licensing Act applied to carrying a prohibited item which, I understand, in this particular woman's case was referred to as 'club colours'. I am also advised that she was associating with an admitted member of a prescribed club who was found to be carrying a flick-knife, so these are exactly the sorts of people this legislation seeks to scrutinise carefully.

The Hon. T.A. FRANKS: In that case, it took a six-month campaign to have the charges dropped. I would ask the minister to outline then what will be defined as 'club colours'—for example, the Hells Angels.

The Hon. G.E. GAGO: I am advised that it is outlined in part 3, clause 9, new section 117B:

prohibited item means an item of clothing or jewellery or an accessory that displays—

(a) the name of a declared criminal organisation; or

(b) the club patch, insignia or logo of a declared criminal organisation…

It goes on to say 'any image, symbol, abbreviation', etc. So, that is outlined in that particular section.

The Hon. T.A. FRANKS: In the case of the Hells Angels, will this include the 2010 autumn/winter collection of Alexander McQueen and Saks Fifth Avenue and Zappos.com, their distributor? Will it include the t-shirts that are currently available on Amazon or merchandise such as embroidered patches available on eBay, the MTV-associated Young and Reckless clothing label, and I could go on?

The Hon. G.E. GAGO: That would be a matter for a court to decide.

The Hon. T.A. FRANKS: So, you are saying somebody who wears Alexander McQueen may indeed fall foul of these laws?

The Hon. G.E. GAGO: I am not familiar with that item of clothing, so I can offer no level of judgement about whether it may or may not be captured. It would be a matter for courts to decide.

The Hon. T.A. FRANKS: I will also add Ed Harry, which is quite a popular label in South Australia. People can buy the 81 logo associated with the Hells Angels on T-shirts, children's tops, beanies, bikinis, tank tops, underwear, cigars, pins, keychains, calendars and window decals online. How will the government police this or will we see our courts clogged up with more Sally Kuethers?

The Hon. G.E. GAGO: The government will not be policing this, the police will, and the police and our courts are filled with very sensible people who have many years of wisdom and good judgement, and I trust their judgements.

The Hon. T.A. FRANKS: I trust the court's judgement too, so why is this not being left to the courts?

The Hon. G.E. GAGO: I have already answered the question.

The Hon. M.C. PARNELL: I appreciate that we are jumping around a little bit because there are only a couple of operative clauses that contain all of the operative provisions, but if it is helpful to stick thematically, I will ask a question now that I was going to ask at clause 9 as we are already talking about what club colours and things mean. The minister read out the section talking about club patches, insignias, logos or any image, symbol, abbreviation, acronym, or other form of writing that indicates membership of an association. The words are 'item of clothing or jewellery or an accessory'. Is a tattoo an item of clothing, jewellery or an accessory?

The Hon. G.E. GAGO: I think that what is happening now is you are asking for legal opinion and I am not equipped to give that sort of advice. I have already indicated who is responsible for policing and making judgements about what may or may not be included. As I said, the police force and our courts are full of very sensible, wise and experienced people who no doubt will use their judgement sensibly to make an assessment about what would be included and what would not.

The Hon. M.C. PARNELL: With all due respect, this is the government's legislation. The government is writing the rules as to what constitutes a prohibited item. For example, I understand how it might work if someone is wearing—to use the Hon. Tammy Franks' example—a Hells Angels jacket or a Hells Angels item of jewellery or a leather handbag with the Hells Angels logo on it. I can see that that is an accessory.

But let's say someone has a tattoo and maybe the tattoo is an old and fading tattoo from 20 or 30 years earlier when they may have been associated with one of these organisations. Does that now prohibit them from attending licensed premises or are they obliged to have their tattoo removed if they want to re-enter civil society? The minister is saying that the police will judge these things sensibly and the courts will be sensible, but is it the government's intention, as the author of this legislation, that tattoos be covered under the definition of prohibited item, which is an item of clothing or jewellery or an accessory?

The Hon. G.E. GAGO: I have answered the question as best as I can, and that is that it may be, but it would be a matter of legal judgement and opinion, no doubt assessing the sorts of circumstances around that as to whether it would be included or not, and I cannot offer any further clarity. As I said, it is a matter of legal interpretation and judgement.

The Hon. T.A. FRANKS: Will the terms '81' and 'Filthy Few' be falling within the associated items with regard particularly to the Hells Angels?

The Hon. G.E. GAGO: I know that the honourable members from the Greens are not supporting this and I understand their frustration. They can list through an indefinite number of possible items and accessories, which they are obviously seeking to do at the moment, but my answer will be the same. I have answered that question and it is the same answer for this particular question that the Hon. Tammy Franks is asking.

The Hon. T.A. FRANKS: I do have frustration. I have frustration that the minister has not been able to answer many of the questions that we have posed so far. I do not pluck these terms or descriptions out of thin air; I take them from those trademark rights owned by the Hells Angels to these particular items and terms that I have described. I would have thought that the government, had it done its homework and would have had these terms listed.

The Hon. G.E. GAGO: I have answered the question. We take the advice of the police. These are matters of legal interpretation and judgement and I am not able to give any further clarity in relation to this question.

The Hon. M.C. PARNELL: I want to go back to the question I asked earlier. I know we got side-tracked with that side issue, but that is an important issue as well. When I asked the minister what evidence she was prepared to put on the public record about these named organisations, her answer was effectively, 'Well, we're not going to put any information on the record. You've had a chance to look at a police file but I'm not putting anything on the public record.' I am paraphrasing the minister.

Her reason for not putting stuff on the public record is that some of it is highly confidential and some of it is sensitive. My question to the minister is: is every piece of information relating to these organisations confidential and sensitive? Is there nothing that she can put on the record about each of these organisations so that the public, listening to this or reading it later on in Hansard—is there going to be any skerrick of evidence or information at all that is not sensitive or confidential that explains to the South Australian community why these organisations have been chosen? Is there anything at all the minister intends to say about any of these organisations?

The Hon. G.E. GAGO: Again, I have already answered this question. The 10 organisations that are on the prescribed list to be legislated are organisations that the police have identified as being priority organisations here in South Australia; to be included on the list that they are involved in criminal activity and pose a risk. As I have said, the police provided confidential detailed briefings to members of parliament to outline a greater level of detail. That is highly sensitive information that is not able to be published, and so I repeat my answer.

The Hon. A.L. McLACHLAN: I want to make a few comments in support of the points or questions raised by the Hon. Mr Parnell. What he is trying to tease out is a fact that by passing this legislation we are effectively conducting a trial of these organisations. In effect, this legislation is a motion to declare them criminal, without trial procedure and without any form of efficacy or opportunity for those organisations to respond. That was a point I made in my opening at clause 1.

What we have been asked to do is to go to a confidential briefing which has material which we do not know; it is not locked away or kept as it was when was been shown to us. It could have easily been interfered with. It will not be kept in that form in 50 years' time or 20 years' time if ever these laws are challenge. The point of having a court declare an organisation illegal is that it keeps its records; it is on transcript; it is transparent and it is open. That is why this process and this bill is an offence to all of those who respect the rule of law.

I thought I should make that comment early because that is what the Hon. Mr Parnell has every entitlement to ask for: the evidence against these alleged criminal organisations should be tabled in this parliament and kept as a record so that we can affirm the decision that this parliament may or may not make in the coming stages of the debate.

The CHAIR: Was that a question or a comment?

The Hon. A.L. McLACHLAN: A comment.

The Hon. B.V. FINNIGAN: I recognise that this is not the second reading, although it feels a bit like it. The quote I could not remember from Catch 22 earlier was:

The country was in peril; he was jeopardising his traditional rights of freedom and independence by daring to exercise them.

I think that could be seen to sum up the dilemma we are facing with this bill. In relation to the access for honourable members to information regarding these organisations and whether it can be public, I think we all accept that some information should not be in the public domain, but it seems that, if you compare what happens in the federal parliament and in parliaments in Britain and in legislatures in the United States, honourable members are given access to very high level, sensitive, secret, national security and intelligence information, and it would be disastrous for that information to become public. Some thought needs to be give as to the information that can be made available to members of this parliament rather than a blanket 'we can't go into details, but take our word for it'.

One question I have: I happened to be in a restaurant a while ago, and some men were wearing colours or badges of some sort of outlaw motorcycle gang, and it occurred to me at that time that, if those people were to be arrested for associating with each other, would members of the public be expected to act as witnesses in the same way that they would if they witnessed a stabbing or some other criminal offence? Has that been contemplated in relation to this legislation?

The Hon. G.E. GAGO: I am advised that it would be a criminal matter, just like any other criminal matter and, if it is relevant, witnesses can be called upon.

The Hon. T.A. FRANKS: I understand that courts use the parliamentary debates to make determinations. I seek an assurance that the term '1%', as used by the Occupy Movement, will not fall foul of these laws.

The Hon. G.E. GAGO: Under new section 117B(1)(c) it says:

(c) any image, symbol, abbreviation, acronym...association with, a declared criminal organisation, including—

(i) the symbol "1%"; and

(ii) the symbol "1%er"; and

(iii) any other image, symbol, abbreviation...

The Hon. T.A. FRANKS: Is the minister aware of the Occupy Movement, which is an international movement, and their use of the term '1%', and can she give a guarantee that they will not fall foul of these laws?

The Hon. G.E. GAGO: The 1% could be captured if, as in paragraph (c), it indicates membership of, or an association with, a declared criminal organisation. It would need to be in that context.

The Hon. A.L. McLACHLAN: I might make one further comment, reflecting on some comments of the Hon. Mr Parnell. Ignorance of the law is no excuse. In the course of this committee stage members such as myself will need some indication of what is intended to be captured by the provisions in this bill. I do not think it is satisfactory simply to say that a lot of them are legally interpreted by the court. At its core, it has been drafted on the basis of instructions from the Attorney, and he must have had some intention to capture certain activities, otherwise it would not have been drafted in the form that it has.

This will be particularly relevant when we come to subsequent sections and definitions, because some of them are extremely broad. As a member of this chamber, I need to understand the sort of activities which are going to be, prima facie at least, captured within the net of this legislation. Perhaps I have chosen to make that comment at this stage so that the Leader of the Government and her advisers can at least prepare themselves as we grind through, as I am beginning to imagine, clause by clause, through this amending bill.

Clause passed.

Clauses 2 to 7 passed.

Clause 8.

The CHAIR: Do you have some questions to ask, Mr Wade?

The Hon. S.G. WADE: The Hon. Mr Brokenshire might be joining us soon. I could perhaps ask some questions in the meantime. Can the minister assure the committee that the Crime and Public Integrity Policy Committee in terms of its responsibilities under this section would be able to seek and receive information beyond that provided by the minister or the Commissioner of Police in preparing their reports?

The Hon. G.E. GAGO: Yes.

The Hon. S.G. WADE: Will regulations declaring criminal organisation promulgated under section 83GA(1) as amended by this bill be subject to judicial review?

The Hon. G.E. GAGO: I am advised that in so far as we can predict what courts will do, we think yes.

The Hon. S.G. WADE: Sorry, I do not understand that answer. I would have thought that it is a matter of legislation and legislation's interaction with the common law as to whether or not a regulation is under administrative law subject to judicial review. I am asking are the regulations under this legislation liable to be challenged under judicial review?

The Hon. G.E. GAGO: I am advised yes, we believe so, on the basis of the decision of the High Court in relation to the O'Shea case.

The Hon. S.G. WADE: Under the Parliamentary Committees Act, the Crime and Public Integrity Policy Committee is entitled to receive functions either being assigned by an act or being referred by the parliament, but there is no specific statement in this bill that a function is being assigned, so I would ask the minister: does the government consider that the provisions in this bill in relation to the Crime and Public Integrity Policy have the effect of assigning a function to the committee in terms of paragraph (f) of section 15O(1) of the Parliamentary Committees Act?

The Hon. G.E. GAGO: I am advised yes.

The Hon. M.C. PARNELL: Given that clause 8 is one of the operative clauses, there are a number of questions that are unrelated to the amendments, so if we could have some latitude to ask those either before or in between the amendments being moved. Early on in clause 8, in fact, is the definition section. This is the proposed new section 83GA, which in subsection (1) has a list of definitions.

The first definition I want to ask about is the definition of 'criminal organisation'. This is absolutely critical, because most of the offences contained within this bill relate to a person's membership of a criminal organisation. It seems to me, reading it, that there are three ways that an organisation can be a criminal organisation. One way, which is in paragraph (b), is if they are declared under the Serious and Organised Crime (Control) Act 2008. Another way, which is in paragraph (c), is if it has been declared by regulation, and that effectively is schedule 1 of this bill. However, in paragraph (a) of the definition it provides:

Criminal organisation means—

(a) an organisation of 3 or more persons—

(i) who have as their purpose, or 1 of their purposes, engaging in, organising, planning, facilitating, supporting, or otherwise conspiring to engage in, serious criminal activity; and

(ii) who, by their association, represent an unacceptable risk to the safety, welfare or order of the community

Basically, if an organisation meets those criteria they are a criminal organisation. They do not have to be listed in the regulations, they do not have to be declared under the 2008 Serious and Organised Crime (Control) Act. Am I correct that simply by meeting that definition they are a criminal organisation?

The Hon. G.E. GAGO: I am advised yes, if it were able to proved in a court.

The Hon. M.C. PARNELL: I am not sure whether that is the case, and later I will come to why do not believe that is. On the basis of this definition the Mafia would, on my vague understanding of the Mafia, be a criminal organisation for the purpose of this act, is that correct?

The Hon. G.E. GAGO: I believe that is a fair assumption, but it would need to be proven by a court of law.

The Hon. M.C. PARNELL: Triads are some of the Asian gangs I have heard about. What about sporting clubs, AFL clubs for example, where players might have taken illegal drugs or traded illegal drugs with each other? Are they, by definition, criminal organisations?

The Hon. G.E. GAGO: I am advised that they would only be included if one of the purposes of that organisation were to participate in serious criminal activity. It would need to be the purpose or amongst the purposes of that organisation. I do not believe there are any football organisations that would currently be captured by this.

The Hon. R.L. BROKENSHIRE: I move:

Amendment No 1 [Broke–2]—

Page 4, after line 6 [clause 8, inserted section 83GA(1)]—Before the inserted definition of conviction insert:

Committee means the Crime and Public Integrity Policy Committee of the Parliament;

The Hon. G.E. GAGO: The government rises to support this amendment. It is the first of a series that inserts the Crime and Public Integrity Policy Committee of the parliament into the process of scrutinising any regulation that is proposed to be made listing prescribed organisations. The government supports the amendment and, on behalf of the Attorney-General, I undertake that there is to be further reform in the future. The government will engage with the Crime and Public Integrity Policy Committee from an early stage.

The Hon. M.C. PARNELL: Given that the honourable mover has chosen not to speak in any detail to his amendment, I will ask him a question. Whilst I understand the intention is to insert a level of parliamentary scrutiny, and I understand that the honourable member sits on this particular committee, my question is: does he have any concerns that the committee is, for want of a better word, a government committee, in that the government numbers can always prevail in a vote? Does he have any concern that government committees always support the government line—certainly in my experience—regardless of any contrary views that non-government members of that committee might hold? Does that give the member any cause for concern about whether the Crime and Public Integrity Policy Committee will adequately be able to scrutinise decisions made under this legislation, and is he confident that it would, if required, go against a government position?

The Hon. R.L. BROKENSHIRE: I thank the honourable member for his good and sensible question. Just for the record, when we go back to the formation of the standing committee on crime and public integrity, which was formulated as a result of the ICAC bill, I actually went on the public record—and certainly spoke to my colleagues—saying that because this was a cross-section of the parliament in the upper house, on behalf of not only the upper house but also the House of Assembly and therefore the parliament in its entirety, there should have been consideration of an independent chair so that it was not a government-chaired committee. At that point in time that did not occur, although, to be fair, the opposition through the Hon. Stephen Wade said that that was something that the opposition could look at, depending on how things transgressed in time.

Since then, we have been able to have this enacted. I place on the public record that, at this point in time, the chairman (the Hon. Gerry Kandelaars) has been very professional and balanced in the way that he has chaired the committee. I have found the committee to be very multipartisan and balanced in the way that it assesses all matters. In fact, thus far, when we have had some very difficult issues put before the committee, I have felt that it has been very balanced and I have felt more comfortable than I have with a lot of other government committees. That is why, after quite a lot of deliberation, Family First decided to put this amendment up, and I thank the honourable member for a very good question on the amendment.

My caveat would be that, if things were to change, I would report back after deliberation with other members of the committee that perhaps we should look at an independent chair. However, at this point in time, given the importance of this committee and the fact that it is only one other committee that the Hon. John Darley sits on—and I am not sure about other members—and has a special position in the parliament, I think it is fine as it is. Given that the structure of the committee is three Labor members, two Liberal members and a crossbench member, I think it sits within my comfort zone regarding the points raised by the honourable member.

Notwithstanding that, if it were to become, as the honourable member rightly says happens with many standing committees, a government committee and therefore a rubber-stamp, then I would suggest that not only I but other non-government members on that committee would very quickly raise their concerns in the chamber. But at this point in time, I have seen good chairmanship and a very balanced and sensible committee. Therefore, I sit comfortably with goodwill and good intent with this amendment based on the points I have covered and the good points raised by the honourable member.

The Hon. A.L. McLACHLAN: I would just like to respond to the Hon. Robert Brokenshire and, to the extent that this is probably the only time we are going to agree tonight, endorse the fine chairmanship of the Hon. Gerry Kandelaars. I myself have had no difficulty serving on the committee. However, my point to the chamber is: the nature of the work of the committee is now being recharacterised. The chamber going forward will rely on this committee to review material from the Commissioner of Police. Therefore, the question I would raise to the chamber—and it cannot be repaired tonight, but going forward—is whether it should be a government-dominated committee. I want to point out that that is no reflection on the government members on the panel.

It is not a good look that we are talking about the operation of executive power which in going forward will rely upon a recommendation to the minister from a committee which is dominated by the government. It is not a good look, it is not the perception that you would want and, whilst I think that these measures are ultimately inadequate and do not repair the flaws of the legislation which will ultimately guide me in my final vote, I think that on the passage of this bill there needs to be more work and discussion in relation to this committee for it will become a very serious committee and it will have almost a hybrid judicial function.

The Hon. B.V. FINNIGAN: I support these amendments because I think it is a good idea to have more scrutiny rather than less, but I would like to add my concerns in relation to this committee and how it operates. We should not be making decisions, as the Hon. Mr Brokenshire suggests, based on the current membership of the committee and how it is going. I am sure the Hon. Mr Kandelaars is a very fine chairman and I am sure all the honourable members on it are diligent and doing their job but that should not determine legislative provisions in relation to the committee because we think that they are good chaps—and I think they are all chaps actually—who are on it. To me, that is not a sound basis for deciding legislation.

I would point out that given that we have seen the opposition not for the first time come to this chamber and say this legislation is flawed, it is full of holes, it is not the right way to go about it, but we support it because we are not the government, can we really expect that members of the opposition—and this is no reflection on any member of that committee—be they Labor or Liberal in the future, are going to exercise the political courage on this committee that we so rarely see when it comes to law and order issues in the chambers themselves?

The Hon. M.C. PARNELL: The Greens will not be opposing these amendments but just to make it very clear, our position in these types of bills that we are fundamentally opposed to is generally to support amendments that make a bad bill slightly less bad. On that basis, we do not need to oppose this. I do just want to check something on an administrative matter with the honourable member. We have two sets of amendments filed by the Hon. Rob Brokenshire. They both effectively cover the same topic which is the insertion of the Crime and Public Integrity Policy Committee into this bill. He had a set of amendments: Brokenshire–1 which was filed on 2 July and the set that was filed on 27 July, although we just received it today. Can I just clarify with the member that set 2 replaces in its entirety set 1?

The Hon. R.L. BROKENSHIRE: I can see why the honourable member made so much money when he was an environmental lawyer because he is extremely astute. Yes, you are right. After some further consideration within our party and deliberation, I advise the house, thanks to the Hon. Mr Parnell, that my set 2 of amendments supersedes my set 1 of amendments and, therefore, my set 1 of amendments is obsolete and irrelevant and we are working with the set 2 of amendments.

Amendment carried.

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

Amendment No 1 [EmpHESkills—4]—

Page 5, after line 15 [Clause 8, inserted section 83GA]—After inserted subsection (1) insert:

(1a) Each regulation made under subsection (1) for the purposes of the definitions of criminal organisation, prescribed event or prescribed place and required to be laid before each House of Parliament in accordance with the Subordinate Legislation Act 1978 may only relate to 1 entity, 1 event or 1 place (as the case may require).

This is the first of amendments in set 4, and I will speak to both sets of amendments in set 4 at the same time. These amendments are to the effect that any regulation made pursuant to the provisions now before the house that deal with prescribing organisations, events or places must also be presented to the parliament and the Crime and Public Integrity Policy Committee, that they must refer to one name, event or place per regulation. The amendment in relation to the liquor licensing regulations refers only to prescribed organisations because that is the extent of the regulation-making power.

These amendments were suggested by the opposition and the government is pleased to agree and sponsor these amendments. It should be noted that these clauses are also the subject of amendments proposed in set 2. Those amendments were drafted and filed in response to the opposition request that each and all regulations made pursuant to the listing process in the bill be the subject of a single and separate regulation. Those amendments do not make that requirement in relation to the listing of places and events. That omission was due to a misunderstanding of the opposition's wish and that is now in set 4 and these amendments set 2 will not be pursued.

The Hon. M.C. PARNELL: I want to pursue what the minister just talked about because what we have here are two amendments that, unless you look at them carefully, are identical. One was filed at, or rather the date stamp—we only got them today at 2.15 but the date stamp is 2.50pm on the 28th and then the set that the minister is now relying on—set 2 was from 2.50pm and set 4 was 5.08pm. So, after having prepared and asked to be distributed the minister's amendments set 2, two hours and 18 minutes later a substitute set is put on the record.

What that says to me is that either they are making stuff up as they go along and making mistakes as they go along. The minister has offered an explanation which is that there was some misunderstanding between the government and the opposition. My question is: in settling this legislation did the government not provide the opposition with the words of the amendments that sought to give effect to the agreement that had been reached? If the answer is, no, you did not, my question is: what type of negotiations were these?

The Hon. G.E. GAGO: I am advised that the reason set 4 was filed—our intention was to file it as soon as we possibly can, obviously to give people the maximum amount of time. As I said, there was a misunderstanding about what the wish of the opposition was and when that was realised changes were made as soon as possible, as I said, to give people the maximum amount of time.

The Hon. M.C. PARNELL: I thank the minister for her answer but it does not satisfy me at all. What the minister is saying is that you wanted us to have the maximum amount of time to look at these amendments. We got both sets of amendments at 2.15 today on our desks; no note saying, 'Whoops, we made a mistake with set 2. Please ignore that, it is now set 4.' Was the minister under some expectation that other members of parliament who had not been involved in these negotiations would somehow know about these amendments?

That is my first question. How did you think we would find out about these amendments, other than collecting them from the desk when we came in for question time today? How did the minister think we would find out? Secondly, if two hours and 18 minutes after realising a mistake was made a new set was drafted, why did the minister not instruct the parliamentary counsel, or the Legislative Council staff, to withdraw the first set of amendments?

The Hon. G.E. GAGO: I am advised that they were filed using the usual process and that is the explanation.

The Hon. M.C. PARNELL: I take this opportunity to make the point that the usual process in this place is rubbish. It is absolute rubbish. It means that if, for example, an amendment was prepared and filed on Friday then we would not get to see it for a month and a half. I mean, it is absolute rubbish that we are relying on a paper-based system where members are not notified of amendments.

You can say that it is the obligation of each individual member to circulate their own amendments to other members of parliament. The point I am making is that the government made, in this case, if that is the system it is relying on, no attempt to tell any of us the content of these amendments, knowing that they were late and knowing that we would not get them until 2.15 this afternoon. I think it is outrageous.

Normally, what I would have done at this point is I would have been dividing every 15 minutes to adjourn, to report progress. I have not sought to do it because I know where the numbers are. In the olden days, when Paul Holloway was sitting in that chair, we would have butted heads and I would have been dividing on every comma and every question mark in the legislation.

So, we are letting it proceed, but I want to put on the record now that, after nine years, I am thoroughly sick of this place having such antiquated systems of distribution of amendments, that in the electronic age we have to rely on a piece of paper being put on our desk, even though the matter is urgent—and this is one of the most important pieces of legislation we are going to deal with this year. I am just making it as an observation, but I would invite the minister to discuss with us, perhaps over the winter break, whether it is standing orders or whatever it might be, the fact that we have to get a better system in place because this is really disrespectful to members of parliament.

The Hon. G.E. GAGO: I agree that there is room for improvement, and I would be happy to work with the Hon. Mark Parnell and other interested members of this house on looking at improving processes in this place.

Amendment carried.

The Hon. A.L. McLACHLAN: On another matter, I refer to the definitions of 83GA(1). I want to take us to the definition of 'participant', which is extraordinarily broad at first blush, and I want to try to understand the breadth of the application of this definition. In my casual reading, particularly paragraph (d) where it says 'person who attends more than 1 meeting or gathering of persons who participate in the affairs of the organisation in any way', there does not appear to be any time limit in relation to that. Is it true that, if I were an 18-year-old boy who was participating, and then I had a second meeting at age 60, I would technically come within that provision?

The Hon. G.E. GAGO: The fact is that there is no time limit prescribed and I am advised that technically the example you give may be captured, but it is also well known that motorcycle gangs and their full members use and employ the services of prospective members and wannabes to do some of their criminal activities for them and commit crimes on behalf of the organisation and its full members if only to prove themselves. It would be intolerable if prospects and their kind could avoid the disruptive effect of the sanctions placed on association and participation just because they are not full members.

In any event, it would also be intolerable if the prosecution in one of these offences would have to prove full membership of an organisation for sanctions to bite. These criminal organisations do not keep definitive membership lists, and many individuals move in that shady area of the association, either in full or part.

The Hon. T.A. FRANKS: I was more concerned by the definition of 'participant', and I draw the minister's attention to:

(e) a person who takes part in the affairs of the organisation in any other way.

Can the minister provide clarity on that definition and, in fact, how people will not be caught up in that definition?

The Hon. G.E. GAGO: It is outlined in new section 83GA(e), which provides that a participant in a criminal organisation is:

a person who takes part in the affairs of the organisation in any other way…

So, that is, a criminal organisation. If they take part in that organisation then they are deemed to be a participant.

The Hon. T.A. FRANKS: Not all affairs of a criminal organisation are of a criminal nature. Would this include a toy run, for example?

The Hon. G.E. GAGO: The organisation they belong to would need to be a criminal organisation and the activity would need to warrant their participation in that organisation, so some sort of activity. The organisation would need to be identified as being involved in a serious criminal activity.

The Hon. T.A. FRANKS: The minister just referred in her answer then with the words, I think, 'the organisation that they belong to'. I draw the minister's attention to the fact that I am talking about the participant section and she is possibly talking about the member section. The participant section follows the member definitions and states in (e):

a person who takes part in the affairs of the organisation in any other way…

Those affairs may not be of a criminal nature. Will a person be defined as being a participant in a criminal organisation if they take part in a noncriminal event?

The Hon. G.E. GAGO: I am advised that being a participant is not in and of itself an offence, but participating can qualify for the application of other offences which require more than just participation such as associating with two or more other participants.

The Hon. M.C. PARNELL: I might explore the same theme. Interestingly, there is an exclusion from this definition. In other words, if we are sticking with 'participant in a criminal organisation' and paragraph (e) 'a person who takes part in the affairs of the organisation in any other way', then it says 'but does not include a lawyer acting in in a professional capacity'. My question is: what about the accountant who is preparing the books in order to lodge a tax return, for example, for an organisation or some other professional who is not a lawyer?

The Hon. G.E. GAGO: I am advised they may be, but I remind honourable members that it is not an offence to be a participant in and of itself; so that on its own does not qualify as an offence.

The Hon. M.C. PARNELL: With all due respect it does. If the accountant is not included in this definition and if under the proposed section 83GC—

The Hon. T.A. Franks interjecting:

The Hon. M.C. PARNELL: —and B as well, but let's stick with 83GC, if the accountant who is a participant, enters or attempts to enter a prescribed place. So if the accountant makes house calls then he or she is guilty of a criminal offence and goes to gaol for three years.

The Hon. G.E. GAGO: I am advised that if the accountant is a participant and enters a prescribed place, that that could be deemed an offence. However, if the club member went to the accountant's office, that is probably not going to constitute an offence.

The Hon. A.L. McLACHLAN: A cleaner attends the prescribed place, ongoing, and cleans regularly the Hell's Angel clubhouse.

The Hon. G.E. GAGO: It is unlikely to be captured because I doubt that a cleaner would be considered a person who takes part in the affairs of the organisation.

The Hon. T.A. FRANKS: Through you, Chair, you may doubt it, minister, but are you sure of that in this legislation? Further, 83GB provides that participants in criminal organisations being knowingly present in public places can lead to imprisonment for three years. So is that office of that tax accountant a public place?

The Hon. G.E. GAGO: I have already answered the question about the accountant and, in terms of whether it may or may not be captured, it is a matter of interpretation and the final say would be that of a court. But it is unlikely. A cleaner would be unlikely to be seen as a person—what is it—taking part in the organisation.

The Hon. T.A. FRANKS: It was 'taking part in the affairs of the organisation', through you Chair, to the minister, and, indeed, that definition under E was very broad and did not specify that it was only the criminal affairs of that organisation. So is the minister convinced that participants—innocent bystanders—members of the public going around doing their jobs as accountants or cleaners, or otherwise, will not be caught up in this legislation and, indeed, facing imprisonment of up to three years?

The Hon. G.E. GAGO: I have answered the question as best I can. We have talked about lawyers, accountant and cleaners and I have outlined what the government's view is on what could and what may or may not be captured, but it is a matter of interpretation by the courts and they will determine the final result and, as I said, the courts are full of very sensible people who use good judgement in their interpretation of these things.

The CHAIR: The Hon. Mr Brokenshire, did you want to move your amendment No. 2?

The Hon. R.L. BROKENSHIRE: I move:

Amendment No 2 [Broke–2]—

Page 5, after line 19 [clause 8, inserted section 83GA]—After inserted subsection (2) insert:

(2a) A recommendation of the Minister in relation to an entity for the purposes of subsection (2) may only be made—

(a) after the receipt of a report of the Committee in relation to the entity under section 83GAA (and, in such a case, the recommendation must include a statement as to the opinion of the Committee on whether or not the entity should be declared a criminal organisation for the purposes of this Division); or

(b) after the passage of 10 days after a referral in relation to the entity was made to the Committee by the Minister under section 83GAA(1).

It is straightforward and it is subsequent to the whole intent of my amendments, but it puts a check and balance there on behalf of the parliament and, therefore, on behalf of the community of South Australia whereby the Crime and Public Integrity Policy Standing Committee must have certain rights to assess requests for further declarations.

The Hon. A.L. McLACHLAN: I have a question for the Hon. Mr Brokenshire. Can he please give guidance to the chamber on why he settled for 10 days?

The Hon. R.L. BROKENSHIRE: A very good question from my honourable friend. It is because, from time to time, and let us hope that it does not occur, there may be a situation where, for some reason, an organised crime syndicate, for want of a better description but I think the honourable colleague understands what I am saying, decides to move into South Australia. Police pick up that intelligence, the commissioner contacts the Attorney and time is of the essence, so then I believe 10 days is enough time for the committee to be notified to assemble, to deliberate and report.

Because this is an important committee, as the honourable member has said, it will, as the honourable member has also said, become an even more important committee. I think we have to cover extreme circumstances and, therefore, I believe 10 days is enough to get a quorum assembled and to consider in extreme circumstances. I would add for the public record that, on most occasions, I would consider that there would be more available time than 10 days, but that is there as an absolute minimum.

Amendment carried.

The Hon. R.L. BROKENSHIRE: I move:

Amendment No 3 [Broke–2]—

Page 5, after line 21 [clause 8, inserted section 83GA(3)]—Before inserted paragraph (a) insert:

(aa) if the Minister has received a report of the Committee in relation to the entity—the report of the Committee;

At twenty to 11 at night, after discussing the issue generally, as I have indicated to the house, some of these are just flow-on, subsequent amendments to the intent of my amendment.

Amendment carried.

The Hon. R.L. BROKENSHIRE: I move:

Amendment No 4 [Broke–2]—

Page 5, after line 37 [clause 8, inserted section 83GA]—After inserted subsection (3) insert:

(3a) Section 10A of the Subordinate Legislation Act 1978 does not apply in relation to a regulation made under paragraph (c) of the definition of criminal organisation in subsection (1).

I have covered this as well.

Amendment carried.

The Hon. M.C. PARNELL: There are a couple of contributions which arise just before the Hon. Mr Brokenshire's amendment No. 5 crops up. I wanted to ask about subclause (6) at the top of page 6. I think the Hon. Andrew McLachlan has one on the page before, but I will start with mine. This provision relates to when the members of a criminal organisation substantially reform themselves into another organisation, then it says that 'that organisation is taken to form a part of the original organisation (whether or not the original organisation is dissolved)'.

I want to understand how that is going to work. For example, I can understand that, if there are 20 members of a criminal organisation and all 20 members rename themselves and reform under a different name, this provision is designed to capture that, but what if an outlaw organisation, a criminal organisation of 20 members, splits into four different organisations, each with five members? My question is: are each of those new bodies—in other words, the four bodies that replace the one—by this definition, deemed to be a criminal organisation?

The Hon. G.E. GAGO: I have been advised that the key word to this is the word substantially. The question is whether the new organisation is substantially the same as the old and obviously that is not exactly the same and conversely it is not entirely different; it is a question of degree.

The Hon. M.C. PARNELL: I think that very likely is the correct answer, but using the example that I gave: if an organisation of 20 splits into four organisations of five are each of those new four organisations covered? Let's say they were all doing identical things to what they were doing before with exactly the same people doing the same stuff as they were before, but they are now doing it under four different names in four different organisations. They have had a falling out.

The Hon. G.E. GAGO: I have answered the question. If all or some of them are substantially the same, then they would be captured, if not, they would not.

The Hon. A.L. McLACHLAN: I put this proposition: if all the members of the Hells Angels in South Australia joined a trade union, would that trade union become a criminal organisation?

The Hon. G.E. GAGO: I am advised again that the answer is a matter of degree and whether it was a substantial part of the membership or not. So if it was a very large union and the membership of, say, the Hells Angels was 1 per cent, then probably not, so it is a matter of degree.

The Hon. A.L. McLACHLAN: I find this provision particular insidious because what it does is it never stops. Once the declaration has been made, it is like a virus and will continue without requiring anybody to bring it back to the parliament, if you accept that is the proper place, for a review. There seems to be nothing here that stops the process of a declaration. Perhaps the minister could assist me in what is the process? Do they divide down to a group of two, three or four out of 50 and then they are still declared? At what point is the government considering when, if I could put it this way, the declaration virus burns itself out?

The Hon. G.E. GAGO: I have answered the question. It is a matter of degree and it is whether it is substantially the same or not.

The Hon. A.L. McLACHLAN: I will just take us back a page to subsection (4) which states:

For the avoidance of doubt, nothing prevents the regulations declaring as a criminal organisation an entity that is, at the time of the declaration, based interstate or overseas and not operating in this State.

I am assuming that the government is comfortable that that attempt at extra-territoriality is constitutional, but I would appreciate some guidance on the matter.

The Hon. G.E. GAGO: I am advised that the advice that we have received is that it is.

Amendment carried.

The CHAIR: I put the question that clause 8 as amended be—

The Hon. M.C. PARNELL: There is a lot more in clause 8.

Progress reported; committee to sit again.

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