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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-09-12 Daily Xml
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Bills

Criminal Law Consolidation (Criminal Organisations - Prescribed Places) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 31 August 2023.)

The Hon. J.M.A. LENSINK (15:26): I seek leave to provide some comments in support of this legislation, which deals with some matters that have been ongoing I think for various governments over the years in relation to outlaw gangs and their properties. The reason for this particular piece of legislation is that regulations that were made by the previous government in 2020 to declare properties at Cowirra as prescribed places have been found through a High Court judgement to be invalid.

As the Attorney noted in his second reading explanation, the properties had been declared as prescribed places and they are places that, on the advice of SAPOL, have been at risk of being used by criminal organisations. The parliament has taken a longstanding view that community safety should be the primary consideration in relation to these matters. I also understand that this bill will enable the updating of existing regulations for prescribed places, so that properties no longer associated with criminal organisations will be removed as prescribed places.

There have been concerns expressed by the legal fraternity, specifically in relation to procedural fairness, and we would have all received a letter addressed to the Attorney-General dated 11 September from the Law Society. We thank them for their consideration. I think it is fair to say that that organisation continues to have concerns that these amendments, or this particular policy position that the parliament has adopted, override a consideration of legal concerns that private property should not be captured by these sorts of pieces of legislation and that there is the potential that individuals will be prevented from accessing their own properties without justification.

We do thank the Law Society for those concerns. They are noted, but, given this has been an ongoing particular policy position over many years, we respectfully will not be adopting their position. With those brief remarks, I indicate support for this bill.

The Hon. J.E. HANSON (15:29): In speaking on this matter, I think that any person who is a participant in a criminal organisation, who enters or attempts to enter a prescribed place, commits an offence, is going to be the subject of what we are talking about, and that bears some consideration. Participants can include office holders, members or those seeking to be members of a criminal organisation. I think it is fair to say that this government, and I would hope any government, will pursue every option at their disposal, and indeed ours, to disrupt criminal organisations such as outlaw motorcycle gangs, and disrupt specifically their criminal activities.

In talking on this, I think you have to reflect on the High Court decision from last month—following earlier actions in what I understand to be the Court of Appeal—that held that a set of regulations were, I think the terminology is, invalidly made. It was also held in that same decision that reasonable notice needs to be given to an owner or an occupier of a proposal to declare a place a prescribed place even though those owners or occupiers are participants in criminal organisations. This creates, I think, quite the juxtaposition, really.

The application to the High Court was made on the basis that, and I quote, 'The Cowirra Regulations were made in breach of a duty to afford procedural fairness to the appellants as owners or occupiers of the land.' I think that really flavours it. I accept the premise that nobody wants the land they own to be declared a prescribed place without appropriate consultation. That seems pretty fair, given what the impacts of that are going to be. After all, no-one wants the place they call home, especially a place where they might bury cars that were used in a murder, for instance, to be declared a prescribed place.

I reject the premise that procedural fairness and the need for procedural fairness, from a moral perspective, is to be afforded in just about any regard to South Australians who live their lives as part of criminal organisations, who are involved in sinister and fairly alarming, frankly, disregard for the lives of others and for the safety and wellbeing of everyone who lives in our community. It is pretty problematic, obviously, from a few distinct perspectives to have to consult with criminals before you make it so hard that they cannot set foot on the properties they own, whether that is legitimately or not.

This bill proposes to amend the act to provide that there is no obligation to provide procedural fairness in relation to the making of a declaration by regulation that an entity is a criminal organisation, an event is a prescribed event or a place is a prescribed place for the purpose of the definitions in the act. The bill also declares a list of properties to be prescribed places, each of which has previously been a prescribed place for the purposes of the act. These properties are places that, on the advice, I understand, of SAPOL, continue to be connected with, and are at risk of being used as meeting places for, criminal organisations.

The regulations made by the former Liberal government in relation to properties at Cowirra that are linked to the Hells Angels outlaw motorcycle gang, were made, I am certain, with the best interests of the South Australian public in mind, but the court unanimously agreed that, due to problems with the drafting, the Cowirra regulations do not effect a valid declaration. The four members of the court held that the appellants should have been afforded an opportunity to be heard before the Governor made the regulations, and that would have constituted procedural fairness, and therefore the required procedural fairness would have been afforded had they done so. I think in that regard it is pretty pertinent to quote Justice Steward, who said very sensibly in his observations that:

It is, with great respect, a remarkable proposition to require the South Australian government to consult with a criminal organisation before declaring one of that organisation's properties to be a prescribed place.

We have an obligation as a government to act in the best interests of the South Australian community. I am a strong believer in the inherent goodness of us all—of all humans—but in dealing with organisations that like to refer to themselves in certain types of colours, I think some matters are pretty black and white. If the law requires procedural fairness to be afforded to persons in matters where procedural fairness is so far from being morally deserved, then we should change the law.

The Hon. R.A. SIMMS (15:35): I rise to speak on the Criminal Law Consolidation (Criminal Organisations—Prescribed Places) Amendment Bill 2023. I want to put on record some of the concerns of the Greens in relation to this bill and the way that this has been handled, introduced as it was during the last sitting period and being brought to a vote during this sitting period without really significant time for stakeholder consultation. By that I mean sufficient consultation with the legal fraternity, but also broader contemplation of the potential implications.

I do want to put on the public record some of the concerns that have been raised with the Greens and, I understand, with all members of parliament regarding these changes. I will, for the benefit of Hansard, put some of those things on the record. I refer to the Law Society's submission dated 11 September when the society notes in particular that they have concerns about the short time frame and the pace with which the amendments are being pursued. They note in their submission that:

4 The Bill responds to the judgement of the High Court of Australia in Disorganized Developments Propriety Limited & Ors v State of South Australia. In that decision, the Court held that—

and I am quoting from the document—

4.1 regulations made in 2020, purportedly pursuant to section 370 of the Criminal Law Consolidation Act 1935…were invalid; and

4.2 the making of regulations to make declarations as to prescribed places within the meaning of section 83GA of the Act was subject to an obligation of procedural fairness, at least in the case of the owners and occupiers of land which is proposed to be declared a prescribed place.

5 The bill addresses the judgement by:

5.1 as to paragraph 4.1 above, inserting the Criminal Law Consolidation (Criminal Organisations) Regulations 2015 the declaration of a series of properties as 'prescribed places' for the purposes of the definition…

5.2 as to paragraph 4.2 above, inserting into section 83GA of the Act an explicit statement that there is no obligation to provide procedural fairness when making a declaration by Regulation that:

5.2.1. an entity is a criminal organisation;

5.2.2 an event is a prescribed event; and

5.2.3 a place is a prescribed place.

It is the view of the Law Society that:

6 The proposed amendments are to a regime that is flawed. The regime for declarations of the kind set out in [the section]…and the offences that flow from those declarations was introduced into the Act by the Statutes Amendment (Serious and Organised Crime) Amendment Act 2015. The regime was modelled on the Queensland Vicious Lawless Association Disestablishment Act 2013. That legislation has since been repealed.

The society goes on to state in their submission:

7 When the regime was introduced in South Australia in 2015, [they] expressed [their] opposition to fundamental aspects of the regime in a submission to [the then] former Attorney-General, the Hon. John Rau MP.

They have provided a copy of that correspondence to members of parliament. In the submission at that time, they set out a series of concerns with the regime but in particular:

…the encroachment by parliament and the executive on the making of decisions which are usually and more appropriately made by a Court.

I think that is an important principle to highlight here. The Law Society goes on to say that:

…concerns expressed in 2015 remain pertinent both as to the specific declarations described in paragraph 5.1…and the general abrogation of the entitlement to procedural fairness described…

They go on to say, and again I think it is important to put these things on the public record:

9 The abrogation of any entitlement to procedural fairness in the context of a declaration of a 'prescribed place' under section 83GA…of the Act is explicitly stated so as to overcome any ambiguity. It will achieve its effect of removing uncertainty. However, that gain will be achieved by a potential increase in the risk that individuals will be prevented from accessing their property, that is, effectively confiscating their property, without justification. The amendments will bolster Parliament's ability to exclude people from property without being heard on the matter. Further, there is no suggestion that the exclusion results from the property having been unlawfully acquired. This more overarching implication, rather than the intention to resolve an isolated issue, should be [very] carefully considered by the Parliament in assessing [such a] reform.

They go on to state:

10 The practically untrammelled power of effective confiscation under Part 3B Division 2 of the Act could be compared to the assets confiscation regime that already exists under the Criminal Assets Confiscation Act…Where assets are found to be the proceeds of crime, this Act provides a robust basis for those assets to be forfeited or disposed of…effectively.

They go on to state:

11 There may be a public interest in preventing participants of a criminal organisation from attending public places, such as certain licensed establishments. Preventing a person from attending private property, which until proven otherwise should be presumed to be lawfully owned, as proposed, ought to be balanced against other considerations such as natural justice, as well as the rights of the individual to attend that property.

12 The Society queries the justification in abrogating any citizen's right to procedural fairness, including the owners of the properties that were the subject of the High Court's decision.

I do think it is important to draw out this final section of the Law Society's submission, that is, where they go through the reasons of the High Court as to why there was an abrogation of the right to procedural fairness:

The right to procedural fairness is necessary because—

and this is from their document:

13.1 declarations of land as prescribed places affect owners and occupiers of the land to a significant degree, and in a manner markedly different from other persons who might be adversely affected by such a declaration…; and

13.2 matters might be raised by an owner or occupier that might avoid the arbitrary exercise of the regulation making power...

Of course, the Greens share the concerns of all members of parliament around the need to crack down on the activities of organised crime; that is not in dispute. However, issues such as procedural fairness and natural justice are very important principles in our legal system. They have been hard won and they are important principles that this parliament should always keep first and foremost in its considerations, even when it is not necessarily politically expedient to do so.

The Greens do have some concerns about the bill that the government has put forward, and I want to put those on the public record, in particular to highlight the views of the Law Society that have been raised with us. I will, as always, be watching the committee stage with great interest.

The Hon. C. BONAROS (15:43): I rise to speak on behalf of SA-Best on the Criminal Law Consolidation (Criminal Organisations—Prescribed Places) Amendment Bill 2023. As we have heard, the bill seeks to remake the existing legislation of prescribed places for the purposes of section 83GA of the Criminal Law Consolidation Act, the object of which is to stifle the ability of members of prescribed organisations to congregate.

The practical effect is to remove 11 whole or part properties and add two newly identified premises at Mount Gambier and Wingfield in addition to the two Cowirra—more commonly referred to as Ponde—properties that were the subject of recent High Court scrutiny. The changes sought are to the Criminal Law Consolidation (Criminal Organisations) Regulations 2015, via amendment to the act, as was the case when it was first passed. I will come back to that point in a moment.

It comes, as we have heard, in response to the recent High Court judgement in Disorganized Developments Pty Ltd & Ors v State of South Australia, which found that two sets of variation regulations, purported to have been made in 2020 to the regulations, were invalid.

The Ponde properties are owned by a company whose directors are known, we are advised, to be active members of the Hells Angels Motorcycle Club. As a result of the High Court decision, they are not currently listed as prescribed places, and we understand that in the facts provided two Hells Angels members continue to reside at the property from time to time.

The High Court was also asked to consider procedural fairness as a second point of appeal, and in principle I will say that I think it is well noted that I am a proponent of procedural fairness and natural justice in all its forms. What we have seen, through bikie legislation and associated legislation, is there has been by this parliament certain very justifiable exceptions to that rule. The majority in that case found that it ought to be provided to owners and occupiers of the land on the current reading of the act.

The bill seeks to make crystal clear that there is no obligation to provide procedural fairness in relation to section 83GA declarations, for the reasons we have all outlined. I think it is fair to say that the Attorney, not to put words in his mouth, would probably advise us that that outcome was never intended by this parliament in the first place, nor was it the interpretation that we, as the former parliament, would ever have envisaged. In other words, it was not in the contemplation of the parliament, in effect, to ask bikies what they think before making laws to curtail their activities and as such the bill seeks to ensure that the interpretation that was intended actually applies from hereon in.

From where we sit, and I know from where all honourable members in this place sit, the need to protect the public safety is always paramount. These groups create fear within the community and risk to safety. As the Court of Appeal identified at 221:

It is the manifest purpose of s83GD to curtail rights and freedoms of participants in criminal organisations with respect to prescribed places, in pursuit of a preventative approach to law enforcement.

More broadly, Division 2 is intended to disrupt the activities of criminal organisations. Expressed at the most general level, to make it an offence for participants to meet at places in respect of which one or some of them hold proprietary interests is manifestly in furtherance of that purpose.

Participants in criminal organisations who own or occupy prescribed places are obvious targets of that regime.

One outstanding matter, which I will raise, and one of the residual concerns is the notification process to prospective purchasers or occupiers of previously prescribed places. This is an issue that has been canvassed in evidence by the Legislative Review Committee.

When those considerations were made in response to regulations, the question posed was basically: what if an ordinary member of the public was to purchase or otherwise occupy a vacated property without the knowledge that it was previously a prescribed place, and there was ongoing discussion about the length of time it took after change of ownership for that declaration to be lifted. How could you identify a previously prescribed place in the due diligence process before purchasing or signing a rental agreement before purchasing a home?

At present, there is no notification process and nothing listed on a certificate of title. I speak for myself in saying that I would like to know, if I am going to buy somewhere and it was previously a prescribed place, if there was a chance that someone with outlaw bikie links might accidentally knock on my door or, worse still, someone who has a beef with one might show up at my door. There are all manner of implications that might arise as a result. This matter has been previously canvassed by that committee. They received evidence on two occasions from SAPOL in relation to changing the regulations so that they can address this issue.

At the recent briefing that I attended, I raised this issue with SAPOL again. They did confirm that, following that, they did make inquires with relevant bodies. It is not something that falls within SAPOL's remit and responsibility and I accept and understand that that is the case, but that is not to say that we should not be considering this favourably in the form of a change to the disclosure requirement in the form 1 that accompanies the sale of a property. There has, to my mind, not been a satisfactory resolution to this issue and I have and will be asking the Attorney to confirm an undertaking to consider this issue.

My view is that it should be considered favourably. Based on the Hon. Mr Hanson's comments and assessment, I think we would all accept that we do not want to necessarily purchase a place that was prescribed and potentially everything that comes with that, especially when it could be so easily fixed. It is a form 1 change. It is pretty black and white and, while I do not know about consultation with bikies over procedural fairness, I reckon this might be worth it.

For the sake of completeness, I will also add that this is precisely the sort of outcome that you get as a parliament, and indeed as a government, when you insist on substantive changes via regulations and when you insist on using regulatory instruments to make changes that are then otherwise interpreted by our courts in a way that either was not intended—there can be great ramifications from that.

I have said on the record in this place more times than I can count that the fact that over 95 per cent of our laws now are made by regulation with absolutely no scrutiny or oversight by this parliament—because people would not have any idea what passes via regulation—or indeed in the broader community, is an issue, a serious issue, and when we delve into making substantive changes via regulation we dig ourselves a bigger and bigger hole. It is an issue that pretty much every academic expert and legal expert has raised in submissions, in evidence, in discussions about our lawmaking processes. I think the fact that we are considering this bill is another illustration of that and one that we should all be very mindful of going forward.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:52): I thank honourable members for their contributions on this bill. From the outset, I want to reiterate that the sorts of thugs and criminals who are members of criminal organisations, particularly outlaw motorcycle gangs, bring misery on families and communities in this state. We in South Australia, and in this parliament, have been deliberately hard and unwavering in our attempts to disrupt and stamp out the effects that these organisations have on South Australia, and that has worked extraordinarily well for more than a decade in South Australia.

We have seen the effects these outlaw motorcycle gangs have on this state and on families and communities decimated by the harsh laws this parliament has introduced in the past and that have been maintained. I know a number of honourable members talked about the concept of procedural fairness and I think we would all agree that that is a concept that ought to apply in the normal course of things. This is not the normal course of things and the sorts of activities that these people seek to undertake in inflicting their criminal enterprises on South Australians means we need to take action that is extraordinary and that is what this bill when it was first introduced sought to do, and that is what this amendment bill seeks to do as well.

To a question asked by the Hon. Connie Bonaros, yes, what we intend to do with this bill is to restore the regime that this legislation has back to what was understood when we introduced it in 2015 in this parliament and how it has operated since then, that is, that in these declarations procedural fairness does not need to be afforded. That is what we understood when we introduced them to the parliament, that is how the regime has operated for the last eight years since 2015, and that is certainly how the Court of Appeal in South Australia in a unanimous decision interpreted this. That is not how the High Court interpreted this in a split majority decision and that is why we are back here in parliament restoring it to how we understood it to work before.

I thank the Hon. Robert Simms for talking a little bit about some of the views of some in the legal profession about elements of this bill. I want to make it very clear: bikies and their lawyers' complaints about the harshness of this bill fall on deaf ears with this government. We will be completely uncompromising in our efforts to stamp out the sorts of activities that they undertake, and what that does to South Australia.

I note that the Law Society talked about the consequence of this bill being an effective confiscation of property. With respect, that is just not the case at all. There is nothing that is an effective confiscation of property in any way, shape or form. All that happens is, if a prosecution can prove, if they lay a charge, that a member of a criminal organisation—which the prosecution would have to prove beyond a reasonable doubt—sets foot on one of these properties, they are committing an offence. It has nothing at all to do with confiscating the property. In fact, it means that property is safer from criminal activity because it is an offence, because members of criminal organisations cannot step foot on there. They will have committed an offence if they attend the property.

Property owners are still free to sell or otherwise deal with properties as they see fit. They can profit from the sale of property in the way any other person can. The idea that it is an effective confiscation of property is not the case at all. A person is only impacted if they are a participant in a criminal organisation and the prosecution can prove that they are such, and that they were on the property. It does nothing to affect the rights of the property owners. The only way it could affect the right of a property owner is if they were also a member of a criminal organisation and stepped foot on the property. It does not affect the proprietary rights in any way, shape or form.

I thank honourable members who have indicated support for this bill. This is aimed at keeping South Australians safe—pure and simple. It is aimed at keeping South Australians safe. I thank honourable members for indications of support and look forward to the committee stage of the bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. F. PANGALLO: I want to address a comment made by the Attorney-General, and it is the second time he has actually said this in relation to this bill. While I acknowledge what he said about outlaw criminal gangs and bikies and whatever—I acknowledge the comments he passed about that—this is the second time the Attorney-General has also made inferences about the lawyers who represent them.

He is a lawyer himself. We know that out there in the community lawyers have a very challenging job where they need to defend criminals on a daily basis. To make an inference and cast aspersions on lawyers in the community just because they represent them I think is really unfair and quite unethical, and I would ask the Attorney-General to reconsider his attack on the lawyers who are representing these gangs. They are not criminals. They are not associated with them. They are doing their job, and I think as a lawyer the Attorney-General should bear that in mind.

The Hon. K.J. MAHER: I thank the honourable member for his contribution. In no way, shape or form am I casting aspersions on any lawyer who is doing their job representing their client; however, I will reiterate that the representations they make on behalf of their clients in arguing against this bill will fall on deaf ears with this government.

The Hon. C. BONAROS: There is an issue that I raised in relation to notifications on form 1—real estate changes that would notify a new purchaser about the previous ownership of a prescribed place. I think the Attorney was going to address that.

The Hon. K.J. MAHER: I thank the honourable member for her contribution. She has raised this with me personally before today's proceedings. I am happy to give that undertaking that it is something that we will look into. There will be complexities about how far does it follow through, as this bill does, when that declaration is removed. Does that mean the obligation to keep it on a form 1 is removed? Twenty-five years down the track and seven owners later, to have that on there potentially affecting the property would not be a sensible thing to do. We are happy to have a look at it. As I said, this declaration does not affect your ownership in terms of being able to deal with the property. What it does is stop members of criminal organisations from stepping foot on that property.

Clause passed.

Remaining clause (2), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:01): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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