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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-07-30 Daily Xml
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Bills

Statutes Amendment (Serious and Organised Crime) Bill

Committee Stage

In committee.

(Continued from 29 July 2015.)

Clause 8.

The Hon. M.C. PARNELL: The next provision after the Brokenshire amendment is the proposed new section 83GB, which is participants in criminal organisations being knowingly present in public places. My first question in relation to that provision relates to sub (1), where it provides:

Any person who is a participant in a criminal organisation and is knowingly present in a public place with 2 or more other persons who are participants in a criminal organisation commits an offence.

Maximum penalty: Imprisonment for 3 years.

My question of the minister is: does the person to whom this provision applies have to be present with other persons from the same criminal organisation or from any criminal organisation?

The Hon. G.E. GAGO: I am advised it is any.

The Hon. M.C. PARNELL: I thank the minister for her answer. Would this situation apply if three different participants in different criminal organisations were to attend the same wedding, for example, or funeral?

The Hon. G.E. GAGO: That's one from a different club?

The Hon. M.C. PARNELL: So you have three different people, they belong to three different criminal organisations and they happen to know the bride, the groom or the deceased, and they attend a funeral or a wedding. Are they committing an offence?

The Hon. G.E. GAGO: I have been advised most likely yes, depending on, of course, where the wedding is conducted. If it is conducted in a public place it is more likely to be captured and if it is in a private residence it is less likely to be captured.

The Hon. M.C. PARNELL: At a practical level, let's say it is a wedding or a funeral and it is in a public place and a person who is a participant in a criminal organisation turns up and they did not know that other members of other criminal organisations might also turn up: at what point are they deemed to be knowingly present? Is there obligation, on having entered the funeral or the wedding, on them to leave if they see someone who they suspect or know might be a member of a criminal organisation? Is there a stand-off, where they have to wait until there are only two people left, and then they are allowed to stay because it says two or more? Whose obligation is it to leave? Is it all their obligation to leave and is it the case that, once the numbers have diminished to two, they are no longer committing an offence?

The Hon. G.E. GAGO: At the moment the person knows that the person is present, and there needs obviously to be some sort of evidence that the person knows—if they do not know that the person is part of an organised crime group, it cannot be an offence—they are beholden to remove themselves, and the onus, I am advised, is on both the organised gang member, if you like, and the other person, once they realise they know this person, to remove themselves.

The Hon. M.C. PARNELL: It may well be, but I can see a bit of a Mexican stand-off happening here because no offence is committed if there are only two. So, you turn up to a funeral or a wedding and you say, 'Oh, in the front row, that looks like a Comancheros,' or 'Three rows ahead is a Fink or whatever. I knew the deceased better than they did,' or 'I'm better friends of the bride or groom. It's their responsibility to leave not mine.' It strikes me that it is quite a ridiculous situation that a number of them could leave and that, if they get down to just two left in the room then, all of a sudden, no offence is committed. I make that as an observation; I do not need any further response.

I want to move on to subsection (2) of that same section, and this is the defence provision, which I find to be a most curious one. It basically says that it is a defence to one of these charges if a defendant can prove 'that the criminal organisation in which it is alleged the defendant is a participant is not an organisation that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity'.

This is a most curious clause because basically it offers the accused the ability to say that their organisation is not really a criminal organisation. My question is: is that defence open to a member of one of the 10 organisations that are going to be listed in this legislation? Criminal organisations can come about from one of three ways, as we determined yesterday: there are organisations under the original SOCCA legislation; there are future organisations that might be declared by regulation; and then you have this initial tranche of people who we are being asked as a parliament to decide today are criminal organisations, yet basically this defence offers them a chance to say, 'Hey, it's wrong, I'm not part of a criminal organisation.' Can they challenge the original list of 10?

The Hon. G.E. GAGO: Thank you for that clarification. I am advised that, yes, they can challenge the defence provision and, if they are able to prove that it is not for the purpose of organised crime, they will make a successful defence and no doubt be removed from the list—

An honourable member: Or not relied upon.

The Hon. G.E. GAGO: Or not relied upon.

The Hon. S.G. Wade: They will not be removed from the list, but a criminal defence cannot lead to an amendment to a statute.

The CHAIR: I ask that all discussions be directed through the Chair.

The Hon. S.G. WADE: I was directing those comments through the Chair.

The CHAIR: No, you were—

The Hon. S.G. WADE: I was looking at my papers. I wonder whether the minister agrees that really the defence clause the Hon. Mark Parnell has drawn our attention to only has work to do in relation to a criminal organisation in paragraphs (b) and (c) because, if the person is part of a criminal organisation as determined by (a), the substantive offence only exists by the time we have established that.

The Hon. G.E. GAGO: I think we understand your question. I am advised that they would apply to all three for the purpose of the charge, but also that you would not need to raise a defence in respect of a criminal organisation under (a) because you would challenge (a) as an element of the defence.

The Hon. M.C. PARNELL: We need to tease this out a little bit more. Let's say a person has been charged under this provision that we are talking about. There is no question that they are a member of a criminal organisation. There is no question that they knew the people sitting in the row in front of them were also members of a criminal organisation. There is no question they knew that and no question that the numbers are more than two or three. Then we come to that defence provision.

It seems that the defence that is being offered to them here is effectively to go to the court and say, 'Your Honour, parliament got it wrong in listing my organisation,' or they can say, 'The executive got it wrong in regulating for my organisation.' If, as the minister has said, this defence enables them to effectively challenge the decision that the parliament is making or the decision that the executive is making, my question is: why do we not cut out the middleman, as it were? These are going to end up in court anyway. Why do we not go straight to court and get the court to determine the declaration because exactly the same debate is going to happen the very first time you charge someone under one of these offences?

The Hon. G.E. GAGO: I think that the process the Hon. Mark Parnell has outlined is an incredibly cumbersome process but, more importantly, we have based this bill and the provisions in this bill on the Queensland model, and the Queensland model has been deemed to be constitutionally valid. We are very keen to make sure that whatever legislation we put through today is constitutionally valid; therefore, we will be sticking very closely to this process.

The Hon. M.C. PARNELL: I think I only have one more on this particular topic. I am just interested to know whether the burden of proof and the standard of proof are different in relation to the scenario I mentioned. It seems under this defence that it is the job of the defendant to prove that the organisation to which they belong is not a criminal organisation, rather than the prosecution having to prove that it is a criminal organisation. Is it the same question and is the standard of proof the same?

The Hon. G.E. GAGO: I have been advised that, in relation to the standard for the prosecution, the level has to be beyond reasonable doubt and, for the defence, the balance of probability.

The Hon. A.L. McLACHLAN: Still on new section 83GB, and following on from that response, do I take it to understand that there could potentially be other defences under the common law in relation to 83GB(1) and that the subclause (2) is only offering a defence out of a potential number?

The Hon. G.E. GAGO: The advice I have received is that is our understanding.

The Hon. A.L. McLACHLAN: This is probably more comment: it is up to the Crown to prove beyond reasonable doubt that there was a participant in the criminal organisation. We will assume that the organisation has been declared and that the person has been declared themselves, that they are knowingly present and there must be some other objective factors of evidence to prove it beyond reasonable doubt.

But, as the Hon. Mark Parnell has indicated, if they are able to resist those elements of the 83GB(1) they can, in effect, challenge the declaration of the organisation itself, which would seem to me, as the Hon. Mr Parnell has indicated, in effect, a mechanism for appeal, but it only arises when a charge is made. In my view, to respond to the Leader of the Government, that would be equally as cumbersome as a hearing in the first instance in relation to the organisation itself; nonetheless, that is what we have to apparently ensure.

The Hon. S.G. WADE: I wonder if the minister could advise what would be the effect of a successful defence application in relation to a 83GA, B or C declaration? As I intimated earlier, I presume that the court upholding a defence to a charge which claimed that an organisation that this parliament had put on a schedule to this act would not cause the act to be amended, but in a legal sense does that mean that the court, which might be a relatively junior court, declares that section of the act not operative? Particularly, in relation to regulation, if a court has found that a regulation that has been issued by the government declaring an organisation being a criminal organisation which the court then decides is not a criminal organisation, does the regulation remain operative?

The Hon. G.E. GAGO: I am advised that the regulation would remain operative. However, clearly, we would have to consider whether to revoke that regulation. That would be an option. Also, obviously, the DPP would no doubt very carefully consider whether to prosecute anyone else on the basis of that organisation or association with that organisation.

The Hon. A.L. McLACHLAN: Just a curious note I should add that, if we are asking them to take off the colours and '1%' badges, then it is going to be very difficult for them to identify each other and leave the particular premises. I find it difficult to comprehend circumstances where this could actually be established in a court beyond reasonable doubt. I understand the Hon. Mr Parnell is moving on to sentencing, but perhaps I could take the minister to 83GD(1). Is it the case that, technically, a participant, by simply asking someone with the sentence, 'Would you like to join our group?' would transgress that provision?

The Hon. G.E. GAGO: I am advised that it would depend on the context and what other evidence there might be. It may be captured, but it may not. It would be a matter for interpretation.

The Hon. M.C. PARNELL: I would like to move on to a different topic, if I may. Proposed new section 83GE relates to sentencing, and provides that, if someone is convicted of these offences that we have been talking about, a sentence of imprisonment must be imposed. That sentence cannot be suspended and the court is prohibited from taking into account the character of the defendant, the fact that the offence might have been trifling or any other extenuating circumstances.

It also provides that fines are not available, because this provision excludes section 18 of the Criminal Law (Sentencing) Act which basically says that a court can replace prison time with a fine. My question is: have I understood correctly that there is no circumstance in which a court could impose a fine and that they are only allowed to impose a prison sentence?

The Hon. G.E. GAGO: I am advised yes, that is correct.

The Hon. M.C. PARNELL: Following that further, the provisions in the bill set out maximum penalties, which are, commonly, imprisonment for three years. Is it correct that a judge is entitled to sentence a person to a period of less than three years? That is the maximum, so I will answer my own question—yes, they are. Would it be possible for them to sentence a person to one day or two days and then take into account time already served—which is very likely to be one or two days in remand—which would have the effect of a person being convicted and immediately released with no other consequence and no option for a fine?

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

The Hon. A.L. McLACHLAN: I take the minister to 83GE(4) which talks about what the court has to record in relation to—

The CHAIR: One moment, please. The photographer up in the gallery, I do not know if you are aware of the rules of this parliament but you do not take photos of people while they are sitting. You can take them while they are standing up. That camera is looking right at me but I am not standing. Please desist from taking photos of people while they are sitting. The Hon. Mr McLachlan.

The Hon. A.L. McLACHLAN: I will ask the question again, and I will just take the minister to 83GE(4). It talks there about fixing a nonparole period and if it is longer or shorter the court must make a record of its reasons for doing so and must identify a record of its reasons for each factor it took into account. Are there similar provisions elsewhere in the law in relation to requiring a court to do that? It seems a fairly obvious statement. I know from my own legal experience that courts in any ordinary case would do the same and I am wondering what is the need for those provisions.

The Hon. G.E. GAGO: The advice I have received is that we do not think so but we will need to take that on notice and bring back a response.

The Hon. A.L. McLACHLAN: If it is not anywhere else in any other provisions, it seems to radiate a mistrust by the government of the judicial system, because it seems to be a restating of the standard principles of courts of record. However, I will leave that there.

I would like to take the minister to 83GF, clauses 1 and 2. I do not quite understand it. It is extraordinary that in 83GF, in any criminal proceedings if the court is satisfied beyond reasonable doubt it can, in essence, declare an organisation for the purposes of subsequent criminal proceedings to be a criminal organisation. I just wonder why the burden of proof in 83GF is beyond reasonable doubt but we are not being asked in this chamber to apply the same burden of proof in relation to criminal bikie gangs.

Members interjecting:

The Hon. M.C. PARNELL: I might have another go at paraphrasing the question—

Members interjecting:

The Hon. G.E. GAGO: In shaking my head I'm saying I don't understand the question—

Members interjecting:

The Hon. M.C. PARNELL: Okay, can I have a go?

The CHAIR: The Hon. Mr Parnell.

The Hon. M.C. PARNELL: The honourable member's question is a logical one. His question is that if the standard of proof for a court to determine whether an organisation is a criminal organisation is beyond a reasonable doubt, why is not a similar standard being applied by us in parliament making identical decisions? In other words, that an organisation is a criminal organisation. Why are we not using the same rigour that a court would have to use to make the same decision?

The Hon. G.E. GAGO: I have been advised that there are two aspects in answering this question: the first is, and as I have said in this place before, this bill is based on the Queensland legislation which has been considered to be valid by the High Court so obviously we are being very careful to follow precisely what we know is going to be valid; and, secondly, the standard 'beyond reasonable doubt' is a standard for criminal matters in a criminal court and is not usually replicated in parliament.

The Hon. A.L. McLACHLAN: This is by way of comment. That is a great summary, minister, of every problem that this bill represents, because to make it constitutional I suspect we have had to say a court has to act beyond reasonable doubt, parliament does not, but the question before this chamber is whether it should. I think everyone in this chamber would know my view is that the community places upon the judiciary the requirement to establish fact in a particular way, and we should not lower the standard for ourselves in this chamber.

The Hon. T.A. FRANKS: Under section 83GA, I draw the minister's attention to a public place, which means:

(a) a place, or part of a place, that the public is entitled to use, is open to members of the public or is used by the public, whether or not on payment of money;

It goes on to have further definitions. I ask the minister: is Parliament House and the steps of Parliament House a public place?

The Hon. G.E. GAGO: In relation to the steps of Parliament House, the advice is that we believe it probably would constitute a public place; however, I think that there are some special provisions that the Speaker has in terms of making decisions about what can be conducted on the steps of Parliament House, so there are some restrictions to that. In relation to Parliament House itself, I am not sure and I would need to take that on notice.

The Hon. T.A. FRANKS: I would appreciate clarity on the differentiation between Parliament House and the steps of Parliament House, as well as answers to the other questions that are still outstanding on this bill that the minister pledged to return with answers on last night.

The minister referred in her answer to the steps of Parliament House having a particular jurisdiction that is relevant to the Speaker. I note the words of the Speaker on 26 May as reported in The Advertiser where he accused the Save the Repat protestors not only of urinating on the front steps of Parliament House but of being part of a protest against the government's new anti-bikie legislation. On what grounds did the Speaker make those assertions? Were any of the members of the current protest on the steps of Parliament House in any way members or participants of outlaw motorcycle gangs as outlined in this or the previous incarnation of this bill?

The Hon. G.E. GAGO: I have just had further advice from the Clerk herself who has advised that from the steps up is not a public place and that, in fact, the Speaker and President have joint control over that space. In relation to the second part of your question, not that I am aware of.

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