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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
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Bills

Statutes Amendment (Serious and Organised Crime) Bill

Committee Stage

Debate resumed

The Hon. T.A. FRANKS: Through you, Chair, a question to yourself as the Chair: did you have any belief that the protesters on the steps of Parliament House were associated with outlaw motorcycle gangs and that their protest to save the Repat was a covert attempt to protest the government's anti-bikie legislation?

The CHAIR: I did seek some advice on that and I understand there were some concerns with the police in regard to one member in the initial protest, but their advice is that they are not aware of members who are members of a motorcycle gang at this stage.

The Hon. T.A. FRANKS: Under this legislation, a single person who is a member of an outlaw motorcycle gang does not attract such attention and is able to go about their business, but a participant, as we explored last night, can be somebody who was associated with the affairs. Would that mean that anyone who has been associated with that person on the steps of Parliament House is now to be future defined as a participant of an outlaw motorcycle gang?

The Hon. G.E. GAGO: Sorry, can you repeat that question?

The Hon. T.A. FRANKS: The question was to you, not to the minister, as I said at the beginning.

The CHAIR: It is totally inappropriate for me to be answering questions regarding this piece of legislation; the minister is in charge of this legislation. I have answered the question for which I believe I have responsibility, but all other questions will go to the minister.

The Hon. T.A. FRANKS: Chair, unless you have abrogated your responsibility in conjunction with the Speaker, you still have the responsibility, and you are the one who sought the advice on what you have identified as a believed member of an outlaw motorcycle gang involved with Save the Repat protest, so you are uniquely able to answer that question, not the minister.

The CHAIR: You are asking me a question involving a particular piece of this legislation. That will go to the minister, not to me.

The Hon. G.E. GAGO: I have asked her to repeat the question, because I did not catch it.

The Hon. T.A. FRANKS: Then Chair, through you to the minister, when the Speaker and the President, with their joint jurisdiction over the steps of Parliament House, conferred, was the government, you or the executive made aware of the status of this person who claimed to have potentially been a member of an outlaw motorcycle gang, and under this bill, should it become an act (as it has been declared by the Attorney-General it is intended to become law as soon as possible)—and I do not see those Save the Repat protesters leaving any time soon; they have been there for 116 days and nights, pretty sure they are going to be here when this legislation becomes law—will any of those people be considered, under the definitions of this to be enacted bill, participants under the definitions within here in the section?

The Hon. G.E. GAGO: Not that I am aware of.

The Hon. M.C. PARNELL: I might keep going with this issue of places that are public, wherein these people are not allowed to congregate in numbers of two or more. There is a further provision that goes beyond public places and refers to prescribed places. My question of the minister is: if Parliament House is not a public place (and I will be very specific here—the public gallery up there), is it open to members of these organisations to attend parliament in numbers of two or more to observe the proceedings of parliament? The specific answer to the question I think involves whether or not the government is intending to declare the public gallery of Parliament House a prescribed place for the purpose of this act.

The Hon. G.E. GAGO: As far as I am aware, no. As I indicated in my previous reply, the chamber itself I am not sure would constitute a public place. I do not know whether Jan can advise. I said that I will take it on notice and bring back a reply.

The Hon. T.A. FRANKS: I seek clarification specifically on the answer the minister just gave. Does she understand that the gallery and the chamber are separate entities?

The Hon. G.E. GAGO: We will take that on notice. I have been advised that the President and the Speaker have control of the chambers and surrounding building, so for instance if there is an unruly person in the gallery they have powers to remove those persons. Technically, it would not constitute a public place.

The Hon. S.G. WADE: By way of supplementary question, Mr Parnell's comment was actually in regard to a prescribed place. On that point of a prescribed place, I wonder why the minister is taking it on notice.

The Hon. G.E. GAGO: I did not take it on notice—I said 'Not that I was aware of'. I answered the question: 'Not that I am aware of.'

The Hon. S.G. WADE: My point in relation to 'prescribed place', is: is it not the case that every prescribed place needs to be the subject of a regulation tabled before this place? If this house found a prescribed place was offensive (and that would include our gallery), would we move to have it disallowed.

The Hon. G.E. GAGO: Exactly. I did answer the question. I said 'not that I am aware of', that it would be highly unlikely. What the Hon. Stephen Wade has said is true; that is right.

The Hon. A.L. McLACHLAN: Since we seem to be still on new section 83, if the members of, say, the Hell's Angels, were to form themselves into a political party which is registered, would these provisions have application to them with respect to their conduct as a political party, in particular their political communication?

The Hon. G.E. GAGO: We do have some detail on this, which we are happy to access further, but in terms of the information we have to hand I am advised that this goes to, obviously, a point of constitutional law. The High Court in Queensland did turn its mind to the question of whether the Queensland provision did infringe on political association and ruled that it would impinge but that prohibition was considered warranted.

The Hon. T.A. FRANKS: Further on the definition of public place, where a public place is accepted as defined, how close would these members of outlaw motorcycle gangs have to be to each other to be seen as falling within the remit of this bill?

The Hon. G.E. GAGO: Which part of the bill?

The Hon. T.A. FRANKS: Having two or more in a public place. How close do they have to be? How many metres?

The Hon. G.E. GAGO: I am advised that there is no measurement, that if they are both within the parameters of the same public space and it is knowingly, then they could be captured by this.

The Hon. M.C. Parnell: Football Park.

The Hon. T.A. FRANKS: My honourable colleague Mark Parnell mentions Football Park.

The Hon. M.C. Parnell: Or Adelaide Oval now.

The Hon. T.A. FRANKS: Or Adelaide Oval now, or indeed Hindmarsh Stadium. I imagine all of those would be taken to be public places and therefore, should somebody know that probably somebody else is a Port Power or a Crows fan, they would be knowingly attending a public place for a football game, but that is a comment not a question. My question is: is a road a public place? With the assistance of my honourable colleagues, a public road—is that a public place?

The Hon. G.E. GAGO: The advice is yes. I again stipulate that there must be knowledge that the person is sharing that same space, so you have to be aware and know that the person is there.

The Hon. T.A. FRANKS: If someone is aware that other members of outlaw motorcycle gangs also attend a toy run, they will fall within the remit of this bill, I assume. Can the minister confirm that?

The Hon. G.E. GAGO: Again, I can only go to the bill. It is a question of fact, and they have to be present in a public place and knowingly present in a public space with two or more other people. So it is a matter of fact.

The Hon. T.A. FRANKS: I am continuing on this stream. I want to confirm that, for example, if the children of these members of outlaw motorcycle gangs are at the same school, they would also knowingly be going to that same public place. Would that fall within this? Of course, they would be travelling on the same road, but would taking their children to the same school come under this legislation's intent?

The Hon. G.E. GAGO: I am advised children are not captured and remind honourable members that the person has to be knowingly present in a public place with two or more other people.

The Hon. T.A. FRANKS: I clarify that I was not talking about the children of the members of the outlaw motorcycle gangs, I was talking about the outlaw motorcycle gang members who have children, who take them to school or to fairy ballet or to a show at the Odeon Theatre. Would they fall foul of this, knowingly going to that same location and travelling on that same road, which is indeed defined as a public place?

The Hon. G.E. GAGO: I have answered the question. It is a question of fact: if a person who is a participant in a criminal organisation is knowingly present in a public place with two or more other persons who are participants in a criminal organisation. So, it is a question of fact: if they meet all those things, then they could be captured.

The Hon. A.L. McLACHLAN: Is there a minimum age for joining a motorcycle gang and being a participant?

The Hon. G.E. GAGO: Sorry, could you repeat that?

The Hon. A.L. McLACHLAN: Is there a minimum age? Can a child be a participant under these provisions?

The Hon. T.A. Franks: A newer member.

The Hon. A.L. McLACHLAN: A member.

The Hon. G.E. GAGO: I am advised the minimum age for criminal activity is 12.

The Hon. A.L. McLACHLAN: So a participant, with these broad provisions—and I make comment to the house—means that a 13 year old could be declared a participant and be incarcerated automatically. I think that is an indictment on these provisions.

The Hon. G.E. GAGO: There is not automatic incarceration.

The Hon. M.C. PARNELL: I will weigh into this. This bill specifically precludes the operation of section 17 of the Criminal Law (Sentencing) Act. That is the section that says that the age of the defendant can be taken into account. You have excluded that provision. The court is not allowed to take their age into account; they must gaol them.

The Hon. G.E. GAGO: I am advised that that statement is not true. If it were a young offender, the child would be tried under the Young Offenders Act.

The Hon. M.C. PARNELL: They may be tried under the Young Offenders Act, but this is a subsequent piece of legislation and the charge that they are being charged with is under this act. What assurance can you give us that the legal analysis you have just given, that the Young Offenders Act supersedes this act, when the parliament is specifically putting its mind to the age of defendants as a factor that must not be taken into account? Are you sure that your legal analysis is correct and that the Hon. Andrew McLachlan's point is not well made?

The Hon. G.E. GAGO: The advice I have received is very confident advice, that they would be tried under the Young Offenders Act.

The Hon. A.L. McLACHLAN: I probably should clarify the point I was attempting to make. They will, of course, have to go through a court proceeding, which is obviously not granted to the organisations themselves. But the point I was trying to make is that, given that there are very heavy penalties and that in essence there has to be a form of imprisonment, how is a young person going to assess the words 'assert', 'advertise', 'participate', 'promote'; 'be recruited'? I think that we are placing an unreasonable burden on a youth, particularly those who may be drawn to this type of organisation. I am not saying this by way of a question but by way of a comment to express to this committee my dissatisfaction with these provisions. I also am uncomfortable, given that the matters of youth have not been specifically addressed in the provisions of this bill.

The CHAIR: Any further discussion?

The Hon. S.G. WADE: I am wondering whether the minister can explain why in proposed section 83GD we need subsection (3)? What is the idea behind that?

The Hon. G.E. GAGO: As I have indicated, we have been very careful to replicate the Queensland legislation. The High Court has validated it, and we are keen to make sure that our legislation sits as closely to that as possible.

The Hon. S.G. WADE: Is the minister able to enlighten the committee as to why such a subsection is relevant for section 83GD but not sections 83GB and 83GC?

The Hon. G.E. GAGO: I have answered it in the first question: it is because we seek to replicate exactly the Queensland legislation.

The Hon. S.G. WADE: I simply want to make a comment, and that is that it gets back to our discussion in relation to national law. We are a parliament legislating in our own right. I can appreciate the value in learning from the legislative and court experiences of other parliaments, but I do think that we do need to understand what we are doing even if we are following the lead of some other parliament.

Clause as amended passed.

Clause 9.

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

Amendment No 6 [Broke–2]—

Page 8, after line 20 [clause 9, inserted section 117B(1)]—Before the inserted definition of declared criminal organisation insert 'Committee means the Crime and Public Integrity Policy Committee of the Parliament;'

This is simply procedural, as part of the overview I gave last evening to colleagues, and before inserting the definition of 'declared criminal organisation' there is another insert committee to describe the requirements of the Crime and Public Integrity Policy Committee of the Parliament to be involved in any further declarations.

Amendment carried.

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

Amendment No 2 [EmpHESkills–4]—

Page 8, after line 38 [Clause 9, inserted section 117B]—After inserted subsection (1) insert:

(1a) Each regulation made for the purposes of the definition of declared criminal organisation in subsection (1) and required to be laid before each House of Parliament in accordance with the Subordinate Legislation Act 1978 may only relate to 1 entity.

This the second of the amendments in set 4, which I have already spoken to.

Amendment carried.

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

Amendment No 7 [Broke–2]—

Page 8, after line 38 [clause 9, inserted section 117B]—After inserted subsection (1) insert:

(1a) The Governor may only make a regulation declaring an entity to be a declared criminal organisation for the purposes of the definition of declared criminal organisation in subsection (1) on the recommendation of the Minister.

(1b) A recommendation of the Minister in relation to an entity for the purposes of subsection (1a) may only be made—

(a) after the receipt of a report of the Committee in relation to the entity under section 117BA (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 declared criminal organisation for the purposes of this Part); 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 117BA(1).

(1c) The Minister may, in deciding whether to make recommendation for the purposes of subsection (1a), have regard to the following matters:

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

(b) any information suggesting a link exists between the entity and serious criminal activity;

(c) any convictions recorded in relation to—

(i) current or former participants in the entity; or

(ii) persons who associate, or have associated, with participants in the entity;

(d) any information suggesting current or former participants in the entity have been, or are, involved in serious criminal activity (whether directly or indirectly and whether or not the involvement has resulted in any convictions);

(e) any information suggesting participants in an interstate or overseas chapter or branch (however described) of the entity have as their purpose, or 1 of their purposes, organising, planning, facilitating, supporting or engaging in serious criminal activity;

(f) any other matter the Minister considers relevant.

(1d) Section 10A of the Subordinate Legislation Act 1978 does not apply in relation to a regulation declaring an entity to be a declared criminal organisation for the purposes of the definition of declared criminal organisation in subsection (1) .

Again, this amendment is subsequent to the rest of the amendment I have put forward.

Amendment carried.

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

Amendment No 8 [Broke–2]—

Page 9, after line 12—After inserted section 117B insert:

117BA—Report of Crime and Public Integrity Policy Committee

(1) The Minister may, by notice in writing, refer a proposal to declare an entity to be a declared criminal organisation by regulation for the purposes of the definition of declared criminal organisation to the Committee.

(2) On receipt of a referral under subsection (1), the Committee must request the Commissioner of Police (the Commissioner) to provide to the Committee any information that the Commissioner thinks fit that may support the referral.

(3) The Committee must inquire into and consider a referral under subsection (1) along with any supporting information provided by the Commissioner under subsection (2) and must report to the Minister on whether or not the Committee is of the opinion that the entity should be declared a declared criminal organisation for the purposes of this Part.

(4) The Committee may include grounds for its opinion in a report under subsection (3).

It is all spelled out there and, again, as per what I gave as an overview to colleagues last night, this part is particularly specific to the report of the Crime and Public Integrity Policy Committee.

The Hon. A.L. McLACHLAN: I have a question for the Hon. Mr Brokenshire. A number of these provisions use the I think unhappy phrase 'any information that the Commissioner thinks fit'. How will the committee have comfort that it has all the relevant material, and not that which the commissioner thinks it should see, but what the community would expect the committee to see?

The Hon. R.L. BROKENSHIRE: I thank the honourable member for his very good question. One reason why the committee will be able to do this is that I have confidence in the calibre, quality and capacity of members of the committee like the Hon. Andrew McLachlan. The fact of the matter is there is a lot of experience on the committee. It will be up to the parliament in future years to ensure that that experience through the parliament with those people the parliament puts on that committee continues, as is the case at the moment.

Suffice to say that, when the commissioner puts any information forward to the committee, I would expect it would be the same as information that the commissioner puts to an Attorney-General or a police minister. From my experience, when I was police minister, we had to deal with a very expansive focus on getting a Panzer reference up. I did not just accept the wording of the commissioner at that time. I asked for further detail with the one preface that there are certain highly-confidential issues sometimes on which you have to rely on the operational side of the justice system—in this instance, the police. You have to have confidence in them.

To summarise, we would ask for as much information as we believe we need to make an assessment within those parameters, just the same as the Hon. Julie Bishop, in her role as the Minister for Foreign Affairs, with assessments she has to make working with Australian Federal Police and the crime authorities federally, will seek certain information. She has also said that, on some occasions, there is highly-classified information with which you must just take the confidence of those people who have been appointed to those positions.

To finish my answer, the committee has the right to challenge and question the commissioner with as much detail and questioning as they feel comfortable with and then deliberate on whether they actually agree or disagree with the request for the declaration. I for one, moving this amendment, feel comfortable that we can do that.

The Hon. A.L. McLACHLAN: That is probably a good segue because my point was in relation to the quality of information coming to the committee. I thank the Hon. Robert Brokenshire for his comprehensive response to my question, although it does not entirely satiate all my needs. Has the government at this stage been able to bring an answer back to the chamber in relation to section 74A of the Police Act?

That is a matter which directly relates to my question to the Hon. Robert Brokenshire, as to whether there has been auditing in relation to that act in respect of criminal intelligence. I raise it now only out of courtesy to the minister because it is important that I have that information to allow me to make a decision both at the end of committee, in relation to its reporting, and also my decision at the third reading.

The Hon. G.E. GAGO: I understand that officers have looked as hard as they possibly can. The result is that they are not able to find any record of compliance with section 74A, and the Attorney-General has since directed that compliance be complied with immediately.

The Hon. A.L. McLACHLAN: This is a significant breach of the law. The government has failed to comply with its own law—well, it is a law that applies to us under the Police Act—which requires an audit, a very different audit to the one that was previously undertaken under the SOCCA legislation in relation to the quality and frameworks and guidelines around criminal intelligence. I put it to this chamber that without that auditing, no member in this chamber can accept the criminal intelligence that they were given to form an opinion in relation to passing this legislation. I put that to the chamber for members to contemplate as we move through the debate. It is unacceptable that we would receive criminal intelligence that has not been audited in accordance with the law.

In the briefings, I asked the police commissioner whether he had an audit program, and he said that they did not. He said they had certain systems of checks and balances, and I took him on faith. In my research for this debate I came across the provisions of section 74A of the act, and I will set them out for the members. Subsections (1) and (2) state:

The Commissioner must establish guidelines in relation to the assessment of information that is being considered for classification as criminal intelligence…The Commissioner must ensure that records are kept in relation to the use of criminal intelligence.

Subsection (3) states:

The Commissioner must ensure the records…will enable the following information to be determined…the number of matters…the number of individual pieces…the relevant statutory provision for each such matter.

And then subsection (4):

The Attorney-General must, before 1 July in each year…appoint a retired judicial officer to conduct a review on (a) the effectiveness of the guidelines…(b) the use of criminal intelligence…

And to report to both houses of parliament. This has not been done. I also want to draw the specific attention of the members to subsection (6) which states:

A person conducting a review has, in so doing, the powers of a commission of inquiry under the Royal Commissions Act…

This is a very significant review that has not been undertaken. At the same time, this government is expecting us to pass this legislation based on the same criminal intelligence that has not been audited. You cannot pass this bill, in my view, in good conscience given the criminal intelligence upon which many of you were briefed has not been audited. I will take that matter up probably a little bit later in debate, but I thank the minister for her diligence in bringing me back a response.

The Hon. G.E. GAGO: I have been advised that the section 74A requirement applies only to information classified as criminal intelligence under a statutory provision. It does not apply to criminal intelligence, generally, and does not apply to information which is given to parliament—not under any act, but in general, as happened in this situation.

The Hon. A.L. McLACHLAN: Minister, how can we have confidence—and I will take the response on faith that we are discussing the scope of the use of this provision—when, at the end of the day, an auditing provision has not been enacted, and it is a natural line of logic that if this provision has not been complied with, what other auditing or compliance mechanisms are failing in the way police are handling their criminal intelligence? I would argue in response that my point still has validity because this failure potentially leads a parliamentarian to believe in a lack of confidence in relation to the management of criminal intelligence. I do not think we can take that debate much further.

The Hon. M.C. PARNELL: I want to move on to a new section—proposed new section 117C. This is the section that effectively requires the bar worker to eject the bikies, and it is a criminal offence, punishable by a fine of $10,000, not to do so. But there is a defence, and I understand why the government has written this in. A single person behind the bar faced with a sea of refrigerator-shaped gentlemen is unlikely to exercise the power, so basically it says that it is a defence if the bartender made a request to a police officer to, effectively, do it for them.

What I want to check is how that defence might operate in practice. I understand that it would apply if a bartender, for example, had a direct conversation with the police officer, rang them up and said, 'My bar is full of bikies; you need to do something about it,' but most people do not have the phone number of a police officer in their phones. Most people are likely to ring 000 or Crime Stoppers. They may not talk to a police officer; they may speak to a receptionist. My question is: is that sufficient for them to be able to rely on this defence?

The Hon. G.E. GAGO: I am advised that it was expected that the 131 444 number or 000 could be used. It is immaterial who the person actually speaks to, so long as it is reasonable to conclude that the report is going to go through to a police officer. In my previous life, having been the minister for liquor licensing, let me tell you that those bar attendants do indeed have these numbers close at hand.

There have been barring orders in place now for many years, with the same principle, that bar attendants have the power to eject unruly people but, for the same reasons, may choose not to do that, and they regularly ring police officers to come in and assist them. It is a well-worn path and they do call for assistance and use assistance regularly.

The Hon. A.L. McLACHLAN: This is more by way of comment in relation to this provision, which has been brought to our attention by the Hon. Mr Parnell. It is a long and tried road that when you do not like a group of individuals, you always reverse the burden of proof in legislation, because it makes it easier on the prosecution and makes it harder on the defence. Perhaps I am speaking from the perspective of an old defence lawyer.

I cannot abide section 117C(2) where, if this bill is passed, you have a poor employee, who could be 15 or 16, picking up the glasses, as many of us did when we were at university, who has to deal with an aggressive member of a criminal organisation, whether or not they are wearing colours—not, in this instance, I suspect—and then the burden of proof is reversed.

There may be some justification for reversing the burden of proof. I always find it hard to do so, because I am old school and believe that the state has to prove an offence against you, rather than justifying your own existence, almost like continental law. But, in my view, it is very poor form of this government to impose upon the licensees, who are not bikies, who are plying their trade reasonably, to then have to prove to the state that they did ring 000 or run down the street to try to find a police officer. I am not expecting a response, minister; I am just putting my gross dissatisfaction onto Hansard.

The Hon. T.A. FRANKS: Last night, in the debate the minister advised this chamber, with regard to my question about how we were not creating more Sally Kuethers, the Queensland example, with this legislation, she answered:

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.

For those who are not familiar with the Queensland legislation and this example of Sally Keuther and Ronald Germain and Mr Palmer, Sally Keuther's partner, those charges under these provisions were in fact dropped. Contrary to what the minister informed the chamber last night, Mr Germain was not carrying a flick-knife, so why did the minister advise this chamber last night that he was?

The Hon. G.E. GAGO: I am advised that that is what the report said and that was the advice that I received.

The Hon. T.A. FRANKS: Could the minister please advise us which report she is referring to, particularly as she claimed—when I pointed to this as an example of where the Queensland law had failed—that this is exactly the sort of case and the reason that we need the Queensland laws in South Australia.

The Hon. G.E. GAGO: I do not have a copy of the report here that the adviser referred to. I did not suggest that this was the sort of case that we wanted; I indicated that these were the sorts of behaviours that we would want to capture and be able to scrutinise. We see that the law has done its job: it has captured potentially concerning or suspicious behaviour, scrutinised it and found the person innocent, which is how the law should be operating.

Amendment carried.

The CHAIR: We are still on clause 9.

The Hon. S.G. WADE: I want to turn to the point the Hon. Andrew McLachlan raised in relation to criminal intelligence. As I understood it, the advice from the government was that there is criminal intelligence that is statutorily defined and other criminal intelligence. In terms of the role of the Crime and Public Integrity Policy Committee, under section 15O(1)(a)(iii) of the Parliamentary Committees Act, where they have the responsibility to examine each report laid before both houses of parliament under a series of acts—and one of the acts specified is the Police Act—do the reports on criminal intelligence include both the statutorily defined criminal intelligence forms and other forms, or just those that are in statute?

The Hon. G.E. GAGO: I am advised that this is, in fact, a very difficult question to answer. I have been advised that it should include statutory forms of criminal intelligence because statutory reports are generated under the Police Act. However, the advice I have received is that it is not thought that that particular power enables the community to scrutinise any or all forms of criminal intelligence, and that is probably the best we can do as this point in time.

The Hon. S.G. WADE: I will just make a very brief comment because I think the Hon. Andrew McLachlan has done the house a service by highlighting the need to make sure that the quality of criminal intelligence is scrutinised. This parliament in recent years has agonised about criminal intelligence. The legislation that is there is substantially based on assurances and processes towards quality, and I think the Crime and Public Integrity Policy Committee is well placed on behalf of the parliament to make sure that those commitments are honoured.

The CHAIR: The honourable, and apparently very gallant, Mr McLachlan.

The Hon. A.L. McLACHLAN: Thank you, Chair. I was waiting for it. By way of comment, I think my point on criminal intelligence still stands, on reflection, because in the briefings, we received certain materials that the Attorney had received. They were based on criminal intelligence, and at no time was it distinguished between whether it was statutory declared criminal intelligence or normal criminal intelligence.

If I could clarify my point to house, that whether it is narrowly focused and declared criminal intelligence or periphery, whatever we want to call it, the point is still made that members of parliament do not know which they are receiving. No doubt, it would be a reasonable assumption to say that the information they were receiving would have included some statutory declared criminal intelligence which has not been audited. I am not expecting a response, minister.

Clause as amended passed.

Remaining clauses (10 to 14) passed.

Schedule 1.

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

Amendment No 1 [EmpHESkills–3]—

Page 13, lines 1 and 2 [Schedule 1, clauses 2(b) and (c)]—Delete paragraphs (b) and (c)

Amendment No 2 [EmpHESkills–3]—

Page 13, line 3 [Schedule 1, clause 2(d)]—Delete 'Commancheros' and substitute 'Comanchero'

Amendment No 3 [EmpHESkills–3]—

Page 13, lines 6 to 7 [Schedule 1, clauses 2(g) and (h)]—Delete paragraphs (g) and (h)

Amendment No 4 [EmpHESkills–3]—

Page 13, line 8 [Schedule 1, clause 2(i)]—Delete 'Gypsy Jokers' and substitute 'Gypsy Joker (also known as the Gypsy Jokers)'

Amendment No 5 [EmpHESkills–3]—

Page 13, lines 10 to 14 [Schedule 1, clauses 2(k), (l), (m), (n) and (o)]—Delete paragraphs (k), (l), (m), (n) and (o)

Amendment No 6 [EmpHESkills–3]—

Page 13, line 16 [Schedule 1, clause 2(q)]—Delete paragraph (q)

Amendment No 7 [EmpHESkills–3]—

Page 13, lines 18 to 22 [Schedule 1, clauses 2(s), (t), (u), (v) and (w)]—Delete paragraphs (s), (t), (u), (v) and (w)

Amendment No 8 [EmpHESkills–3]—

Page 13, lines 25 to 26 [Schedule 1, clauses 2(z) and (za)]—Delete paragraphs (z) and (za)

This set of amendments contains a large number of amendments, and I will set out the effect of this set. I do not believe it is necessary to deal with each single amendment separately, but if the chamber wants to do that, then I am happy to do that.

The amendments, in effect, delete the listing of motorcycle gangs that presently have no active presence in this state. It leaves 10 local gangs listed. These gangs are the subject of detailed information made available for inspection by interested members of both houses. The amendments make minor changes to the names of two gangs—the Gypsy Jokers and the Comanchero. The amendments delete the current listing of prescribed places and replaces it with another list more accurately described by reference to the certificate of title number as well as address and, if known, alternative address. I am happy to answer questions.

The Hon. S.G. WADE: To assist the committee, I indicate that the opposition regards amendments 1 to 8 as all being related to the list, and we would be happy for them to be moved concurrently. If that is the case, could I ask a question in relation to the amended list? Is it the government's intention to issue regulations in relation to the organisations that are being deleted from this schedule?

The Hon. G.E. GAGO: The advice I have received is that the Attorney-General seeks to include those organisations that are currently not located in this state but have the potential to franchise across borders and one day be located here. He would intend to use regulation to capture those organisations if and when they are identified as being located in this state.

The Hon. S.G. WADE: So, as I understand the minister's comment, there is no immediate intention of the government to issue regulations in relation to the deleted organisations?

The Hon. G.E. GAGO: Not that I am aware of, but I can double check. Those left on the list are those considered to be priorities identified by police, and they have been captured. As to the rest, the Attorney's intention is to use regulatory means.

The Hon. R.L. BROKENSHIRE: I wish to advise the committee that I concur with the Hon. Mr Wade that this is a package of amendments that we can talk about holistically. We know a lot of work has been done on this, and we will be supporting these amendments, but I also want to put on the public record my personal concern for the 17 who are not included, simply on the basis that they are not at this stage located in this state. From my experiences, it will be important for the parliament to carefully watch and listen to what authorities have to say if there is movement to the point where they use this now as a haven to come here, and we may then have to act quickly. I put that on the public record because that is the concern our party has, that some of these gangs that are not here right now could easily find this a haven opportunity, and we will be vigilant on that. Having said that, we support these amendments.

The Hon. M.C. PARNELL: The Greens will not oppose any of these amendments, and we agree that they can be dealt with as a job lot. However, I make the point that I touched on yesterday, namely, that aside from the removal of the interstate organisations the other amendments are basically fixing up mistakes that have been found in the spelling of the names of organisations. I make the point that, if this this bill were to be delayed over the winter break—which I know it won't be, but if it was—I bet you we would come back in September with more spelling mistakes, more addresses wrong and more technical problems that need fixing. I remind members that this set of amendments, the minister's set No. 3, is not the first lot of amendments—we already had a fix up in the lower house because they got things wrong there as well.

But I am pleased, as I said yesterday, that the Phoenix are no longer on the list, so that group of hardcore motorcycle racing enthusiasts will be able to meet safely in a hotel and no longer fear for their liberty. I note that the government in schedule 1, as the minister said, has fixed up the address list.

The minister has been reluctant to put any information into Hansard in relation to details about these organisations, so I will ask a particular question about amendment No. 9, which is the new list of places declared to be prescribed places. A quick count of that list shows 10 separate addresses. We have 10 bikie organisations left on the list. Am I correct in saying that these are the 10 known clubhouses of the organisations? Can the minister tell us which address relates to which organisation?

The Hon. G.E. GAGO: In relation to the first question, I think so, but I cannot be absolutely sure, and in relation to the second question, I do not have the detailed knowledge of what correlates to what at this point in time.

The Hon. A.L. McLACHLAN: Yes, I could probably make a comment leading on from the Hon. Mr Parnell's questions. It is a sad day when South Australia, one of the most progressive states, is following Queensland for its guidance on law. It is also ironic that we are only dealing with Queensland bikie gangs, which were originally in the first iteration of this bill schedule. I assume there are other bikie gangs in other states, but somehow they are not as dangerous as the ones which are in Queensland. I have seen what came before the Attorney for those Queensland gangs or organisations. I feel it is important to put on Hansard that the information supplied and considered by the Attorney was not much better than a year 9 or 10 school project—although that might be insulting year 9 and 10 students.

The provisions of this bill, if enacted, were going to apply to those organisations, I think based on two or three pages. I want the public to understand the, in my view, inadequate information that has been supplied throughout the various stages of the consideration of this bill and the bringing of the bill to the parliament. It is of a limited nature, and the public should not be under any illusion that there are volumes and volumes of material provided for legal opinion and a systemised assessment outside of the police force itself, which is the point of this debate. There is no-one making an independent assessment of the police's material.

The Hon. M.C. PARNELL: I think it will be a final observation on these amendments and the schedule. I said that the Greens will not be opposing the amendments. We will not oppose amendment Nos 1 to 9, but when the question is put that the schedule as amended be agreed to, we will be opposing that and we will be dividing on that question. The reason is not to offer any support or comfort to any of these organisations that have been listed. I have no doubt that many of these organisations comprise people who are involved in criminal activity.

The police have told us that a majority of the members of these organisations have criminal convictions, so I do not wish to give any comfort to those groups, but the importance of the schedule is that it goes to the heart of the problems that have been identified with this legislation and that is, this is the wrong forum to be making this decision. We are not assessing evidence. No evidence has been put on the record; not one skerrick of evidence about any of these organisations has been put on the public record.

As the Hon. Andrew McLachlan and others have mentioned, the decision is based on criminal intelligence and information that is so sensitive that we are not allowed to see it. We were not allowed to take copies of it, and it is certainly not being put on the public record. I just make that point, that we will not stand in the way of the government at the very last minute fixing up mistakes that they should have known about months earlier, but when it comes to whether this schedule should form part of the bill, the Greens say that it should not.

The Hon. S.G. WADE: If I can make a comment on that point, it was an issue that we were discussing yesterday and I must say, I slightly differ from the Hon. Mark Parnell. I think the public is entitled to a justification. If there is another declaration made, the public is entitled to know something about this group. We receive briefings all the time on legislation, often in great detail, and probably this legislation is an example of very thorough briefing, which the opposition appreciates. There is from time to time information which I think needs to be put on the public record. For example, I can remember a letter from a statutory officer which was highly persuasive with the opposition in relation to a bill. I think the public needed to know something key like that.

All the time, whether it is routine legislation or not, there is a lot of information that feeds into parliamentary consideration that does not become a matter of public record. I certainly expect, with the operation of this legislation, that there will be a lot of information which the parliament will need (particularly the CPIPC) which is not appropriate to be a matter of public record. In that sense, it goes back to the point that the Hon. Andrew McLachlan made earlier, which is: in terms of choosing the forum to make these declarations, the Hon. Andrew McLachlan suggested that he thought that one of the reasons a court was more appropriate was because the court was better structured to maintain records. With all due respect to our parliamentary officers, we have very good records, but there are a lot of things that we use in our deliberations that are not preserved.

The Hon. A.L. McLACHLAN: I would like to add my observations to this part of the debate, and that is that I am very wary of encouraging any of these organisations in the pursuit of their criminal activities. It is my view that there are many tools available to the police, including the laws of 2008, that have not been tried. However, this legislation changes the nature of the application of these parliamentary powers. To pick up on a point made by my friend, the Hon. Stephen Wade, this is why a court of record is a better place for making these decisions, and certainly that drives my decisions in relation to opposing the passing of this bill.

However, if parliament is going to go down this line and if this is the jurisprudence our community wants us to adopt, then the practices and procedures and standing orders of this parliament have to change to accommodate it. There will have to be record keeping like a court; there will have to be in camera sessions to receive this evidence. You cannot have a halfway house, and this is the halfway house, which causes injustice, and that is the very nature of the separation of powers. If we are going to operate like a court then let's do it properly, but we are not.

The CHAIR: If there is no further discussion, I will put amendments Nos 1 to 8. There are nine amendments, but you said amendments Nos 1 to 8?

The Hon. S.G. WADE: It is my view that amendment No. 9 is different because it relates to prescribed places.

The CHAIR: That is fine; we will put amendment Nos 1 to 8.

The Hon. S.G. WADE: If the minister is happy to move amendments Nos 1 to 8 conjointly, the opposition will be happy to support them.

The CHAIR: I put the question that amendment Nos 1 to 8 to Schedule 1 be agreed to.

Amendments carried.

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

Amendment No 9 [EmpHESkills–3]—

Page 13 line 27 to page 14 line 7 [Schedule 1, clause 3]—Delete clause 3 and substitute:

3—Places declared to be prescribed places—section 83GA

(1) For the purposes of the definition of prescribed place in section 83GA(1) of the Act, the whole of the land contained in each certificate of title listed in the first column of the table below, under the heading 'Prescribed place', is declared to be a prescribed place.

(2) Text set out in italic type in the second column of the table below, under the heading 'Description', is a description for convenience purposes only which may relate to the whole or part of the prescribed place and is not to be taken to define the prescribed place.

Prescribed place Description
Certificate of title 5288/611 7 Barfield Crescent, Edinburgh North
Certificate of title 5430/179 Section 331 Keith Street, Whyalla Playford or Lot 331 Keith Street, Whyalla Playford
Certificate of title 6086/487 Lot 101 Jacobs Street, Whyalla Norrie
Certificate of title 5301/953 2 Albert Street, Clarence Gardens or 2a Albert Street, Clarence Gardens
Certificate of title 5650/303 45 Trafford Street, Mansfield Park or Lot 51 Trafford Street, Mansfield Park
Certificate of title 5109/622 7 Dalgleish Street, Thebarton
Certificate of title 5109/623 7 Dalgleish Street, Thebarton
Certificate of title 5220/939 7 Dalgleish Street, Thebarton
Certificate of title 5220/940 7 Dalgleish Street, Thebarton
Certificate of title 5696/244 108-118 Francis Road, Wingfield
Certificate of title 5249/413 108-118 Francis Road, Wingfield
Certificate of title 5249/414 108-118 Francis Road, Wingfield
Certificate of title 5249/415 108-118 Francis Road, Wingfield
Certificate of title 6142/108 305 Commercial Street West, Mount Gambier
Certificate of title 5681/864 124 Churchill Road North, Dry Creek
Certificate of title 5928/347 3-4/62 Middle Row, Salisbury


The Hon. S.G. WADE: I am intrigued as to why the government felt the need to go to certificates of title. Was there concern that if somebody was on a different part of the property it would not come within the street address description?

The Hon. G.E. GAGO: Yes, you have got it in one.

The Hon. M.C. PARNELL: If a certificate of a title was the subject of a subdivision application—as often happens with big blocks, you divide the back of the block off and you create two new certificates of title—would that be covered by this provision in the schedule?

The Hon. G.E. GAGO: There are two answers to this question. First, I have been advised, probably not, and that is why we would need to make regulation and have that provision. Secondly, just as a general observation, these gangs, like anyone else, move from place to place from time to time. The info is that it is quite possible that, with the potential of the passing of this legislation, it has already caused some to move.

The Hon. S.G. WADE: I am wondering, as a matter of background, about the fact that we do not have in these schedules any prescribed events. Is the government anticipating that we might need prescribed events in the foreseeable future?

The Hon. G.E. GAGO: I have been advised that we do anticipate that in the future we will need to prescribe events, and we will seek to do that through regulation.

Amendment carried.

The committee divided on the schedule:

Ayes 14

Noes 4

Majority 10

AYES
Brokenshire, R.L. Darley, J.A. Finnigan, B.V.
Gago, G.E. (teller) Gazzola, J.M. Hood, D.G.E.
Hunter, I.K. Kandelaars, G.A. Lee, J.S.
Lucas, R.I. Maher, K.J. Ridgway, D.W.
Stephens, T.J. Wade, S.G.
NOES
Franks, T.A. McLachlan, A.L. Parnell, M.C. (teller)
Vincent, K.L.

Schedule as amended thus passed.

Schedule 2.

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

Amendment No 10 [EmpHESkills–3]—

Page 14, lines 17 and 18 [Schedule 2, clauses 2(b) and (c)]—Delete paragraphs (b) and (c)

Amendment No 11 [EmpHESkills–3]—

Page 14, line 19 [Schedule 2, clause 2(d)]—Delete 'Commancheros' and substitute 'Comanchero'

Amendment No 12 [EmpHESkills–3]—

Page 14, lines 22 and 23 [Schedule 2, clauses 2(g) and (h)]—Delete paragraphs (g) and (h)

Amendment No 13 [EmpHESkills–3]—

Page 14, line 24 [Schedule 2, clause 2(i)]—Delete 'Gypsy Jokers' and substitute 'Gypsy Joker (also known as the Gypsy Jokers)'

Amendment No 14 [EmpHESkills–3]—

Page 14, lines 26 to 30 [Schedule 2, clauses 2(k), (l), (m), (n) and (o)]—Delete paragraphs (k), (l), (m), (n) and (o)

Amendment No 15 [EmpHESkills–3]—

Page 14, line 32 [Schedule 2, clause 2(q)]—Delete paragraph (q)

Amendment No 16 [EmpHESkills–3]—

Page 14 line 34 to page 15 line 4 [Schedule 2, clauses 2(s), (t), (u), (v) and (w)]—Delete paragraphs (s), (t), (u), (v) and (w)

Amendment No 17 [EmpHESkills–3]—

Page 15, lines 7 and 8 [Schedule 2, clauses 2(z) and (za)]—Delete paragraphs (z) and (za)

I have already spoken to this in my general comments in relation to schedule 1.

Amendments carried; schedule as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

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) (11:41): I move:

That this bill be now read a third time.

The Hon. M.C. PARNELL (11:41): I will make a very brief third reading contribution. Most of what I wanted and needed to say has been said already, but I just want to put on the record one more time that this is very bad legislation. It sets a very bad precedent for how this state deals with legal issues. The irony of this bill being passed in the 800th anniversary of the signing of the Magna Carta is not lost on many people.

I think that this legislation is a low point in South Australia's legislative history. To just remind members, this bill and the methods it uses has been roundly condemned by every legal organisation in this state and every group concerned with human rights and civil liberties. It is not to say that the people who are opposing this bill are friends of bikies—I know we are not. We want our communities to be safe and we want the police to have appropriate powers to detect and prosecute crime. The fact is that this legislation goes a step too far.

The people who are sought to be dealt with have committed criminal acts, and for those criminal acts they have been prosecuted; most of them, it seems, have spent time in gaol, so the laws are working in relation to the detection and the prosecution of crime, but this legislation takes it a step further. It has unintended consequences, it captures people who are innocent and do not deserve to be captured, and it infringes on strongly-held, long-held legal principles. For that, the Greens will be opposing and again dividing on the third reading. We urge all honourable members to consider one last time what it is you are doing before we vote on this bill.

The Hon. R.L. BROKENSHIRE (11:43): I again rise to put on the public record that we will be definitely supporting the final vote on this with the government. In my opinion, the only reason we are actually back in here now is because of interpretation by the courts. The parliament speaks on behalf of the people of South Australia, not the courts, and the fact of the matter is that we have some serious issues with organised crime. We need to combat that, this is an attempt to do that, and I know for a fact that, whether or not the interpretations by the court are what some people like or do not like, the absolute majority of South Australians want us to do whatever we can to keep South Australia a safe and progressive state.

For those reasons, with the amendments that we have supported, and from all the debate and work that has been done, which I congratulate all colleagues on, we look forward to the fast passing of this legislation and a message going out to organised crime, in particular to outlaw motorcycle gangs, that South Australia will not stand for their drug running and all the other issues they are involved in that are criminal and work against a safe and enjoyable society.

The Hon. A.L. McLACHLAN (11:45): I will not be supporting the bill at its third reading, and I have some more formal comments to make in relation to the bill. In my view, the purpose and value of open justice enhance the integrity, accountability and performance of those who are involved in the administration of justice. In this bill, police are no longer seeking to solve crime with traditional methods of investigation. If we enact this bill, we are dismantling the fundamental principles of criminal justice and the basic rules in the relationship between the executive and the individual.

This bill contains disproportionate measures to a perceived threat. The premise for the savaging of our liberty is that there are exceptional circumstances. In my view, the case for exceptional circumstances has not been made out by the government. These measures proposed were first conceived to fight terrorism and have migrated to the states and found a comfortable home in the psyche of their police forces. We hear from the government the rhetoric of war to fight 300-odd known individuals whose criminality the police seem unable or unwilling to tackle using conventional policing methods.

The essence of these proposed laws is to create an offence of guilt by association. The laws are not consistent with our fundamental community values and longstanding tradition of imposing sanctions on the finding of guilt for a specific offence. Under this bill, individuals can be punished in anticipation that they may commit a crime. In my own life, I have seen firsthand the difficulties organised crime can wreak on individuals and their families. I acknowledge the excellent work of the police officers in response to organised criminality. However, there should be a holistic focus on the problem, a real attempt to develop strategies to solve it.

There must be laws, and these laws must be the right ones and the effective ones, not just ones that appear 'tough' to the public. It is not surprising that the people look to their political leaders for a strong response to organised crime, including action that may be disproportionate to the threat due to its impact on democratic liberty. We in this place must resist our baser instincts, exercise good judgement and self-restraint, and craft laws intelligently to balance the competing interests of ensuring safety and respecting liberty. Unfortunately, this bill fails to find an equilibrium between these competing interests.

What we have before us is proposed legislation that has been tabled with the politics of law and order debate as the singular motive for its creation. The Crime and Public Integrity Policy Committee was not even allowed to undertake its work on behalf of the parliament and explore options for the control of criminal gangs. Various media announcements from the government have not encouraged debate but sought to serve fear in the hearts of its citizens, with the explicit motive that our citizens would not seek to question the actions of their parliament or sacrifice their liberties won in battle by generations that came before them.

I believe we have one of the best police forces in the Asia-Pacific. They need the tools to fight crime that also have the effect of maintaining and reinforcing the trust the community has in their difficult work. We should be assisting them to pursue excellence in the measures they adopt in response to serious and organised crime, rather than politically motivated laws that demean their role in the community. The balance between liberty and security will always be and should be debated. The right and proper balance is not always easy to find. A well-informed public debate is essential to guide us in our deliberations. This debate is debased when those who question the effectiveness of the proposed laws are labelled 'soft on crime' or 'friends of bikies'.

The recent incidents involving bikies could have all been addressed by traditional policing. To think or even suggest that the laws before us would avert this violence is naïve but also dishonest. It does not add to the public debate. The police do not even believe that these laws will ultimately stop the gangs and their memberships' involvement in organised crime. These laws may only restrain certain activities. Even if they were successful, other gangs would move into the gap left in the market. At best, this legislation is window-dressing in an attempt by the government to appear hard on organised crime. The people of South Australia, unfortunately, will pay for this vanity of our government with the diminution of their liberty.

When preparing for this debate, I turned my mind to my studies of the French Revolution. Robespierre saw himself as a romantic figure battling against great odds, yet he led a betrayal of the revolution's lofty ideals and his constituency was the mob. Robespierre interpreted the constitution, which contained the ideals of equity, justice and reason, very subjectively. For him, the declaration of rights was no protection for the individual. Instead, he thought the suspicions of enlightened patriotism might offer a better guide than the formal rules of evidence.

Commenting on an execution, he said that even if an innocent individual had to be condemned to death, that could be useful. In a letter advising the Revolutionary Tribunal, he wrote, 'People are always telling judges to take care to save the innocent. I tell them to beware of saving the guilty.' Sound familiar? The narrative is one that we have had drummed out over the last few years. Both the government and the police have expressed their frustrations with the judicial process. Let me remind the chamber that, if there are no rules, justifications or reasons, then everybody is at risk.

Most disappointing to me, given the extremely high regard in which I hold the work of the police, has been the attitude of the police executive to this bill. They have publicly stated that they want these laws. At no time, to my knowledge, have they come to the opposition to socialise their ideas ahead of tabling this bill. They have repeated their mantra that they need these laws to be tough on bikie gangs. This is despite not using the laws given to them in previous years. Because there has been no attempt to use the 2008 laws, the basis of the police argument is cut away.

I acknowledge and respect their right to be able to express their views in public. However, what they have not done, when engaging the community, is to set out the cost of these laws. The breach of the separation of powers and the reduction in community liberty have not been mentioned. If they see themselves as leaders in the community, then they should add to the debate and seek to inform the community of the risks of this legislation, as well as the perceived benefits.

In this instance, they have not. They appear not as leaders, but simply lobbyists, for a singular position or viewpoint, which is to their advantage. I fear this approach may have discredited their position in respect of this bill. I fear that they have greatly diminished themselves and politicised their office and discredited the police force as a whole. I ask them to reflect on their approach. If this bill passes, they will no longer be the protectors of our community, but in many ways they will become its persecutors.

To seek laws of this nature and encourage parliament to declare gangs, thereby cutting out the opportunity for judicial review—simply because, as the police have stated publicly, they are frustrated—is not what any member of our community should expect from senior police leadership. It is extremely disappointing.

For the police, removing any form of judicial review appears to be, to borrow a phrase, their 'black grail'. It should concern every member of this chamber that we have a police force that has a culture of believing that judicial review is an encumbrance. What has become clear to me is that there needs to be an urgent cultural review of the police and its executive team. The police are not above the law, but by advocating for the passing of this bill, are seeking to be so. It is my view that the liberty and safety of our people is too important to play political games with.

In my reading, there are many new and innovative ways to address organised crime. These should be explored before seeking these draconian laws. One cannot help but query whether this approach is driven more from a lack of imagination or the need to secure budget savings. In my view, the evidence presented in this debate is insufficient for any member to make a judgement declaring the organisations in the schedule.

The declaration provision provides for an opaque process based on assertions, not evidence, which cannot be forensically tested. It is effectively untestable. The decision that we are making is similar to a judicial decision. It has been described, in academic discussion, as an assimilation of two kinds of power—the judicial and the executive. Parliament is being asked to act like a court, but no evidence has been formally presented, there is no testing of the evidence and there is no opportunity for the organisations named to respond.

We are making ourselves a Star Chamber by passing this bill. By passing this bill, we are disregarding the rights of the citizens who elected us to this place. There are no rules of evidence and no mechanism to rule out evidence that is unreliable, prudential, unfair or unlawfully obtained. We in this chamber are taking on the role of the judiciary, yet we do not offer those impacted the same protections that a court would provide them, such as an independent judge without bias.

There are many in this parliament who have made public statements against the organisations named in this bill. How can we expect to consider this matter fairly? We have been asked to consider a group of organisations and not decide each organisation on its merits. We have been asked to declare these organisations to deprive them of judicial review but we have been advised in public statements that the police are not concerned that future declarations may be subject to judicial review. This is a clear breach of the principle that all are equal before the law. It is frightening that this concept is apparently lost on the police.

The police force is part of the executive arm of government. There are certain consequences flowing from the separation of powers. It is not a function of the police to make the law or to decide by whom and to what extent the law is obeyed. It is for the judiciary and not the police to determine whether people are guilty of crimes. It is not for the police to punish people.

Parliament is being asked to make decisions based on criminal intelligence provided by the police. It will be up to the Police Commissioner to determine what is provided. It is not tested, as I have said; it cannot be tested; we will never know whether we have all the relevant material. Using information that might be used without the accused seeing the information is an offence to the basic notions of fairness and justice.

The criminal intelligence, as we have heard, is not audited. The processes of gathering the intelligence is not audited. Illegal methods could have been used and the quality poor or of limited weight. I remind the chamber of the recent criminal case of former police officer Amanda Boughen, fabricating, altering and concealing evidence. The serious and organised crime legislation is no longer being audited by the retired judge, Mr Moss. He was only able to complete four reviews before the legislation was amended.

The process set out in this bill does not have sufficient checks and balances. With safeguards the commissioner will be placed in the position where he almost becomes a lawmaker with the power to punish. This is unacceptable in a democracy.

I have found in my reading the Royal Commission Report on the Dismissal of Harold Hubert Salisbury in 1978, better known as the Mitchell Report, very instructive. It clearly sets out that the police force is part of the executive government for which the minister is ultimately accountable. There always needs to be a public forum when police practices, policies and procedures may be scrutinised, questioned and brought to the attention of the community for whose protection and welfare the police force has been established.

I query whether there might now be a greater role for the ICAC; alternatively we might consider a review of the structure of the Crime and Public Integrity Committee. It is government dominated and perhaps the parliament should consider the Canadian approach, where the government does not dominate certain committees. As I have indicated in this house, in suggesting this I wish to make it clear that I am in no way critical of the current chair of the committee or its members.

If this bill passes, we will have a criminal justice system which operates on the basis of secrecy, when our criminal justice system has traditionally been built on the fundamentals such as open and transparent justice. If this bill passes we will no longer have a justice system that is transparent. I have seen the information that was provided to the Attorney-General in making his determination. I do not believe it justifies the declaration of the organisations as criminal; insufficient material has been provided.

I suppose I share the same opinion as the Solicitor General, ironically, who has consistently rejected the police briefs prepared by their counsel under the existing provisions. The briefs are a litany of assertions but are not evidence. Some are not much better, as I have indicated, than a high school project. I understand the frustration of the police but their frustration should not be used to justify these draconian laws. No-one is above the law and this includes those who apply and enforce the law.

The Communist Party case in the 1940s stands at the moment when public hysteria and populist politics did not win out over the rule of law. It appears that this parliament has not learned this lesson and is no longer keeping faith with its progressive history. When the history of this state is written for this time, this debate and the passing of the bill will be recognised as significant but regressive and a breach of faith with the people of South Australia. As Sir Owen Dixon said in the Communist Party case:

History, and not only history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power.

We must not, in seeking to fight organised crime, undermine our hard-fought freedoms at the same time. South Australian politics seems incapable of self-restraint and keeping faith with its core values. Instead, the parliament creates precedence for even more dangerous and oppressive laws, while being cheered on by a police force that appears to have forgotten its privileged role in the community.

The passing of this bill shows us that there is a gaping wound in our political culture and leadership. It gives rise to a newer debate about whether a bill of rights is necessary in this state. I do not believe history will be kind to those who put their shoulder willingly to the wheel, whatever their motive, and pushed this bad law through the chamber. I am voting against the bill, in accordance with my conscience, for our democracy and the liberty of the people of this state.

I want to finish with a few words in praise of the police we see walking on our streets every day. I accept that the work of the police is hard and dangerous. We too often concentrate on their failures, rather than their successes. Unfortunately, this bill politicises the police and will ultimately corrode and undermine their standing in the community. The fact that the police executive has advocated for these laws is sad as it undermines the fine work of the ordinary police officers and their many successes.

In conclusion, I believe that the separation of powers is an immutable doctrine that we should not trespass upon. There are three governmental powers which should always remain in separate hands—the executive, the legislative and the judicial. This bill attacks this longstanding principle of democracy and should not be supported by this chamber.

The Hon. K.L. VINCENT (12:00): I will be brief since I made most of my points yesterday and many of them have been reiterated by other members here today, but I do want to reiterate a few points on the record on behalf of Dignity for Disability. Dignity for Disability does support the overwhelming, overarching aim of this bill, and that is that people who engage in criminal and antisocial behaviour should be punished for that behaviour and that behaviour should be taken very seriously.

However, I want to talk about something else that I take very seriously as well, and that is my job, my role in this place. We did have some concerns about the original bill, particularly with the association laws, the printing of addresses of premises in legislation when they had already proven to be incorrect addresses, and the disrespect for the involvement of the judiciary in declaring a criminal organisation. Those, I suppose, were our three main concerns.

We believe that those concerns could have been rectified in some way by the original opposition amendments, and we were very seriously considering supporting those. As I said, I take my role in this chamber very seriously. According to my boyfriend, I take it perhaps a little too seriously sometimes, but I take it very seriously.

I would not be doing my job correctly if I participated in the passage of a bill which has now been amended thanks to a backroom closed-door deal between the two major parties, the government and the opposition, that did not include the majority of the crossbenchers. Those amendments were placed on our desks at 2.15pm yesterday afternoon. We have not had the opportunity to properly consult as to the ramifications of those amendments with the South Australian community or to seek legal advice as to the implications of those amendments.

As I said in this place yesterday, there have been instances where Dignity for Disability has been very happy to support legislation passing this place and this parliament quicker than we would usually allow it, and that instance is where there might be a risk to public safety, such as in the example I gave yesterday of a loophole in domestic violence protection legislation.

I am not convinced that there is adequate urgency for this bill to pass today when we have not had the opportunity to consult with anyone on the nature of the amended legislation which we now have before us. I take my job too seriously to support this breach in parliamentary protocol without sufficient reason, so we will be opposing the bill at this time.

The Hon. T.A. FRANKS (12:04): I rise not as the lead speaker for the Greens and certainly not as a lawyer, as our lead speaker is. As he said many times in his contribution yesterday, we are part of a community that is gravely offended by this legislation. I rise as somebody who is more likely to quote pop culture references than philosophers, but also as a human rights activist and somebody who comes from the community sector. In saying that, I rise to oppose this bill because of the fundamental principles of offence to separation of powers.

Many of us would believe that there should be a separation of powers in this country, and I think some politicians—most notably Queensland Premier Joh Bjelke-Petersen—had little regard or in fact little understanding of the principles of the separation of powers. This legislation is based on Queensland legislation, a place where there is no upper house, no parliamentary scrutiny, where the government of the day has the numbers and can ram through legislation with little regard to opposition voices. I believe the process around this bill has been flawed. It has been rushed. We have seen typos in this bill fixed up even within the last half hour, typos that were presented to the caucus, to the cabinet, to the opposition, to the other place and were not picked up. What other areas are there in this bill?

There is a lack of clarity about who will fall within the definition of being a participant of one these outlaw motorcycle gangs. I think there is clarity around who will fall within the definition of 'member' but I am very concerned about who will fall within the definition of 'participant'. What will constitute wearing or carrying not just the club patches but other associated images and terms, such as '1%' and '81'? And as I raised last night, the Alexander McQueen 2010 fall/winter collection wearers will fall foul of this definition the government has put before us.

There have been incorrect addresses and the naming of the Phoenix Motorcycle Club, which was, of course, drawn to the government's attention after the announcement of the bill. Surely that should have been something the government was alerted to much earlier if they had done their due diligence. I do not have faith that the government has got this right, and those are just some of the reasons why.

Even if I did have faith that the government has a perfect bill before us, I do not trust or support the executive or this parliament acting as judiciary. As the lawyers in this place have pointed out, we have not had evidence presented before us that stands up to scrutiny and that has been analysed in an appropriate way. Good people are affected by bad laws just as bad people are. This is a bill designed to curb the activities of bad people, but I believe that it will also impinge upon good people.

Balzac—a philosopher I was inspired to look at by the philosopher's quotes of last night, as well as Catch-22 and many others—said, 'Laws are spider webs through which the big flies pass and the little ones get caught.' One little fly that was caught by a very similar law in Queensland was Sally Kuether. Last night during the committee stage, we were informed by the minister that she had rightfully come under the scrutiny of these laws in Queensland because she was associated with somebody who was carrying a flick knife. That is not the case. When I raised this matter today there were references to some report. I raised this particular case in my briefing with the government's advisers and with SAPOL and they were not aware of this case.

This case has been quite known in Queensland. It went on for some six months before resolution. One of the three people involved was held for two weeks without bail. The others were held for several days. These were not guilty people under the provisions that are intended to be applied by these outlaw motorcycle gang provisions. They were simply at the wrong place at the wrong time in the wrong outfit, wearing a T-shirt that said 'Property of Crow'. Now, if 'Property of Crow' can get you put in gaol for a few days and then going through a six-month court case in Queensland before a public outcry and a media campaign means that you finally have those charges dropped, then what is it going to take in South Australia when the first little fly, the first innocent person, falls foul of these laws?

I share some of the concerns about what is called criminal intelligence and whether or not they are allegations are assertions, when in recent weeks Dane Swan, a high profile footballer, was surrounded and pulled over by police having been mistaken for being a member of one of these outlaw motorcycle gangs. Most people in Australia would know who Dane Swan is and what he looks like, but apparently not SAPOL, and the full force of the law came down upon him.

The Hon. T.J. Stephens interjecting:

The Hon. T.A. FRANKS: No, it was in South Australia, Terry. He came to Adelaide, went out for coffee with a mate in a car, not on a motorbike, and was pulled over, told to get out of the car, to put his hands up—it was quite a sensation in the media. Most people known what Dane Swan looks like: he is a Brownlow medallist, a five time all-Australian team player, but not everyone is as high profile as Dane Swan.

Most of us are more like Sally Kuether and librarians going about our ordinary business, going to a bar, having a drink with a few mates and potentially wearing the wrong T-shirt, or perhaps something from the Alexander McQueen 2010 fall/winter collection or, as I said last night, some T-shirt from Ed Harry. They are the people I am concerned about here. Mistakes are made, they have been made before, and the answers from government in this debate were lacking or indeed absent.

We still have not received answers from the government to many of the questions raised in this debate, but what I found most offensive was the fear campaign and the way this bill was introduced, with attacks and allegations made about the Repat protesters on the front steps and an invitation from the Government Whip, inviting all members from both houses of this parliament to come to a security briefing, alluding to the fact that there were security concerns for our personal and office safety.

They were put to us by the Government Whip in the lower house and, when members attended that briefing and asked SAPOL whether or not our security was at a heightened risk due to this legislation, we were told that the answer to that was no. We were told that the only action that they believed those outlaw motorcycle gangs would be taking would be legal action, and that there was no heightened security risk. Yet, we were sent an email and told to worry about our security.

We have a Speaker who accuses protesters exercising their right to protest on the steps of this place—accused publicly of all sorts of unproven and unfounded things and certainly without due recourse given to them to clear the record. This is a government that I believe does not understand the separation of powers and does not understand that they are not judge, jury and, in some cases, potentially executioner here.

I think we will look back at this as yet another development in the culture of fear in Australian politics. Yes, law and order, tough on law and order, and tough on crime rhetoric is very popular in the polls, but it is not the way forward for a progressive nation. With those few words, I indicate that I too will oppose this bill.

The Hon. B.V. FINNIGAN (12:13): I have some reservations about this bill, which I expressed in my contributions yesterday in relation to the potential infringement of the rights of individuals and the haste in which the bill has been dealt with. I think the bill would have been improved with a judicial review provision, as was formerly proposed by the opposition. It is important, though, to keep this bill in perspective. This bill is not about law and order policy in toto or crime as a public policy issue totally; it is about the provisions of this bill and the effect it has on members of the community and the role it could play in combating serious and organised crime.

Ultimately, while the passage of the bill is assured anyway, I will with some reservations support it because we need to consider the protection of the community ultimately. There is no doubt that outlaw motorcycle gangs are composed of some very nasty people who commit crimes that have a dreadful effect on people's lives. We do need to remember that.

I am not suggesting for a moment that honourable members are not conscious of that, and it is a question of how we best combat that, but ultimately that is the judgement we have to weigh up. I think the reality is that these gangs consider themselves very much beyond the law, and perhaps even beyond our society, and we need to do what we can to give the police, and courts ultimately, the powers to do what we can to combat the illegal activities of these people.

I would express some caution. We have been going down this path for some years now of declaring gangs and seeking to make declarations about gangs and what membership of them means. We have seen that subject to court challenge; we have had legislation in New South Wales and Queensland, and this legislation has been crafted in light of court decisions and what has happened in other states as well as in our own state.

If this legislation has to be amended rapidly, or it is found ultimately to be unconstitutional—I think the government and the parliament need to say, 'This path we have trodden to declare organisations illegal and certain consequences follow from that for individuals who are associated with them,'—I think we would have to conclude that it is time to seek another way of combating the activities of outlaw motorcycle gangs, if that is the outcome. With those few words, I indicate that I will support the bill at the third reading.

The Hon. J.A. DARLEY (12:16): I rise to indicate that I will be supporting bill.

The council divided on the third reading:

Ayes 14

Noes 4

Majority 10

AYES
Brokenshire, R.L. Darley, J.A. Finnigan, B.V.
Gago, G.E. (teller) Gazzola, J.M. Hood, D.G.E.
Hunter, I.K. Kandelaars, G.A. Lee, J.S.
Lucas, R.I. Maher, K.J. Ridgway, D.W.
Stephens, T.J. Wade, S.G.
NOES
Franks, T.A. McLachlan, A.L. Parnell, M.C. (teller)
Vincent, K.L.

Third reading thus carried.

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