The Hon. T.A. FRANKS: In clause 1 in terms of questions, the minister indicated that she would be addressing the questions that were raised in the second reading debate in the committee stage. Will she be addressing those in clause 1 or as the clauses become relevant, and does that mean that we will go through each clause by clause?
The Hon. G.E. GAGO: Clause by clause.
The Hon. T.A. FRANKS: I have a question at clause 1. On 3 June at 5.47pm the Government Whip sent all members of this parliament an email which read:
All Members of Parliament
SAPOL BRIEFING ON PERSONAL AND OFFICE SECURITY
As the Serious and Organised Crime Bill is before Parliament, it is an appropriate time for a briefing from SAPOL on personal and office security. A briefing has been arranged for Wednesday 17 June 2015.
All interested members were invited to attend by the Government Whip on that date. Can the minister outline how this bill raised concerns with the government about the personal and office security of members of the South Australian parliament?
The Hon. G.E. GAGO: I have been advised that it appears to have raised concerns with the police, not the government.
The Hon. T.A. FRANKS: Can the minister explain why SAPOL, when asked this question in the briefing, said that there were no raised security concerns for members of parliament and that they believed these outlaw motorcycle gangs would take legal means to challenge this bill and our security was not in any way in further danger than it normally would be?
The Hon. G.E. GAGO: No, I cannot speak on behalf of the police. You would need to ask them.
The Hon. T.A. Franks interjecting:
The Hon. G.E. GAGO: I cannot argue with you. I am not arguing that that was said or not, I am just saying I have no explanation as to that. In terms of the challengeability of the bill, we have been advised that this bill does meet very strong legislative weight and that it will stand up to scrutiny and to challenge.
The Hon. T.A. FRANKS: Was this email a fear tactic to scare members of this chamber and the other chamber into voting for this legislation?
The Hon. G.E. GAGO: No, not that I am aware of.
The Hon. A.L. McLACHLAN: I thought I would make a contribution at the first clause with regard to my personal position. It is my view that controlling and ultimately pacifying organised criminal groups is an objective of all of us in public life. At the same time it is important to acknowledge that the principle of open justice is fundamental to our legal system and democracy. The bill before is, as many have described, a great leap backwards from the progressive policies of the Dunstan and Hall governments. This bill brings in an opaque system of justice that insults over 800 years of tradition that protects the rights of the individual against oppressive actions of the state.
The bill brings darkness to the operation of the executive and the operation of its police force, where light is needed to ensure the rule of law. This proposed legislation has the colour of central Europe in the 1930s when the embers of the Reichstag were still warm. This is the sort of legislation you would expect to see in the Apartheid regime that blighted South Africa, or in other countries of that same continent whose communities were degraded by similar laws.
I will not be supporting the passing of the bill. I act in a personal capacity. All parliamentarians in the Liberal Party are expected to exercise their right to speak and vote in accordance with their own belief or conscience and express their views to the electorate. This is in stark contrast to the Labor Party. It is one of the longstanding principles of the Liberal Party that a member can, from time to time, cross the floor and vote in accordance with their strongly held personal beliefs. I thank my colleagues for their understanding and defending my right to cross the floor.
My ideal of a free society remains important to me. I do not see myself as a careerist politician. My first priority is that my values will withstand the demands of the chamber. Further, without a bill of rights to guide our actions we have a political system that depends upon political leadership that respects democratic values, the rule of law and a separation of powers doctrine, as well as human rights. From my seat in the chamber, having regard to this bill, I have no choice but to oppose the declaration of the organisations by the parliament which is a breach of the doctrine of the separation of powers.
The Liberal amendments which I advocated in the second reading debate are no longer reflective of the Liberal party room's position. Whilst I still had strong personal reservations during the second reading debate, I believed the Liberal amendments reflected a fair balance between the demands of the police and the need to respect the rule of law. Now that the Liberal party room is no longer supporting those amendments, I am unable to support the passing of the bill. The amendments agreed between the opposition and the government fail to mitigate the horror of the proposed legislation and is undermining of our longstanding democratic traditions. I will have more to say at the third reading regarding my decision.
At this point also, I might ask a question that may have some relevance in subsequent clauses. In my research in preparing for the committee stage tonight, I came across a provision in the Police Act 1998, section 74A—Special provisions relating to criminal intelligence, and it requires the Attorney to task a retired judge to review certain aspects of police practices in the use of criminal intelligence.
My question for the Leader of the Government is: have those reviews been conducted, and have those reports been tabled in parliament, as I am unable to find the same? The relevance to the particular bill at hand is that we are being asked to take on faith in this parliament the veracity of criminal intelligence or assertions of the police, and I would like some assurance that section 74A has been complied with.
The CHAIR: Minister, did you get the question?
The Hon. S.G. Wade: They weren't listening, so I don't know how they would.
The CHAIR: I am just asking that question.
The Hon. G.E. GAGO: I thought the question was about whether 74A has been complied with.
The Hon. S.G. Wade: You probably need to know which act it's in; and you probably need to be listening.
The CHAIR: I think that the minister is on top of her brief. The Hon. Mr McLachlan, will you ask that question again, please?
The Hon. A.L. McLACHLAN: The matter I raised, Chair, is that, subsequently in this debate we will be discussing the veracity of the information upon which this committee has to decide whether to declare certain organisations as criminal organisations. There is a related provision in the Police Act 1998, section 74A, which has special provisions relating to criminal intelligence which requires a report to be tabled before each house of parliament by the Attorney-General setting out the report of a retired judge regarding the effectiveness of certain guidelines and the use of criminal intelligence.
I am unable to find that report and I have not been able, even with the assistance of parliamentary officers, to locate those reports, and I am seeking an assurance, which is why I am raising it early in this debate, whether previous reports have been tabled as a consequence of that review being undertaken in relation to that act.
Its relevance to this debate is that, if they have not been undertaken, then how can we be assured of the veracity of the criminal intelligence upon which we are to base our decision? And as a consequence, the failure of complying with section 74A may have serious implications for the decision-making of committee members during the course of this debate.
The Hon. G.E. GAGO: I have been advised that we do not have that level of detail here, but we are happy to take that on notice and to bring back a response as soon as we are able to access that information.
The Hon. M.C. PARNELL: I might just take this opportunity at clause 1, in response to what the minister just said, to ask whether the minister can perhaps outline her intentions for the debate tonight. I am not sure that that will not be the only question the minister takes on notice, so what I am interested in is: if the answers are not available tonight, at what point is the minister considering adjourning tonight's debate and resuming tomorrow, because my understanding was that the priority letter we received from the minister's office said that it was hoped to conclude this bill by tomorrow? So, at what point is the minister proposing to adjourn tonight? I am not worried about the time, I am happy to stay here all night, but at what point in the bill is the minister proposing to adjourn?
The Hon. G.E. GAGO: Obviously, the government is very keen to progress this bill as soon as possible. Our intention is to make sure that it is returned from this house to the lower house around midday tomorrow, so if there are any further changes or discussions that need to occur that can occur tomorrow afternoon so that they can be resolved and then hopefully the bill dealt with through to finalisation. In terms of this evening, I obviously want to progress the thing as far as we possibly can within reasonable constraints. We intend to sit tomorrow morning, and I would say that at this point it looks like we would need to come back at 10am to resume further consideration. In terms of the progress this evening, I am obviously keen to progress the thing as far as we possibly can.
The Hon. M.C. PARNELL: I have a specific question on clause 1, because it relates to the whole of the bill. It follows from what the Hon. Andrew McLachlan's point that there is a deal of secret evidence that has been relied on by the government in the drafting of this bill and in particular the lists of criminal organisations proposed to be listed in this bill. My question of the minister is: what evidence do you intend to put on the record during this debate about the individual organisations that are listed in the bill?
If you want an example, I understand a number of these groups are being struck from the bill. If we just take one that is remaining, the Red Devils, just to pick one out randomly, what information does the minister intend to put on the record about the Red Devils? Are we going to find out their approximate membership, the address of their headquarters, the number of offences that known or suspected members have committed, any charges that members might be facing, or is there any other information that the minister can provide to us if we are being asked to add to this organisation to the law of South Australia as a criminal organisation?
The Hon. G.E. GAGO: I have been advised that the police made this information available to all members of parliament some time ago in a number of special briefings, and many members of parliament availed themselves of those briefings. The list contained in the legislation is a list of 10 organisations that are currently situated in South Australia. The police have advised us, and those members of parliament who attended the briefings, about those organisations, including their membership, criminal activity, and a range of other relevant information.
The Hon. M.C. PARNELL: I accept what the minister saying. I attended a briefing, and the police attended with large lever arch files with material in them. We were not allowed to keep those folders; we were not allowed to take copies of any of the material in those folders. The point would be that if someone asks me subsequently about legislation that I am party to in this state and asks me why I made that decision, what information on the public record will I be able to refer them to that explains why a particular organisation was listed?
In other words, it is one thing for me to have a briefing and for the police to tell me that these organisations are full of bad people and give me a list of all the bad things that they have done or are suspected of doing, but how does that help the public? What information will the public have to explain why the law of South Australia includes the list that it does in schedule 1? Are you prepared to put any information at all about any of the activities, offending, individuals of any of the organisations listed on Hansard at any time during this debate?
The Hon. G.E. GAGO: I do not believe we have any intention of making that information public but I can check in terms of that, but my understanding is that that level of obviously very sensitive information was made available by police to interested members of parliament and that the details in relation to the answers to those questions were made available.
The Hon. R.L. BROKENSHIRE: In order to expedite things so that at some point in time, tomorrow as I understand from the government leader, that this bill will be voted on for the third time I just want to put the position of Family First as it is now and unless there are then any questions regarding our amendments as we proceed with them then, like the Hon. Stephen Wade did on behalf of the opposition, hopefully that can help to assist all colleagues.
I do first and foremost respect the right for any member to cross the floor and express their disagreement to a bill. I did it on one occasion and crossed the floor, so I do clearly accept the rights of any individual. There have been some comments tonight on issues around this legislation and I want to put on the public record in clause 1 Family First's appreciation of the leadership shown by both the Leader of the Opposition and the Liberal Party in coming to some mid point with the government, and also to put on the public record our appreciation of not only the Leader of the Opposition and his party but also that of the Attorney-General, because this is a very important piece of legislation.
It is extremely important that we get some compromise in passing the intention of this bill before we rise for the winter, and that is why we will be supporting the government's amendments as they are now after deliberation. I want to say that I think that this has been one of the few examples where there has been incredible openness and opportunity for any member of parliament to be briefed in more detail than ever in my recollection of issues where there is sensitivity and confidentiality on intelligence. This is one of the few occasions where every member of parliament has had an opportunity to have a briefing, whether you have been on a standing committee or as an individual.
I would not want to see any of the confidential intelligence on the public record because I do not want to do anything whatsoever that would ever cause any potential risk to any South Australian. The reality is that, whatever the beliefs of MPs individually, there are high risks with respect to outlaw motorcycle gangs and serious organised crime. I have said today publicly and I have put on the record in Hansard that our preference would have been to have the whole 27 declared right here and now but parliament is about what you can deliberate on and work through to get up a democratic compromise and an agreement in the house.
I understand that that is now occurring and I commend all members involved in that, but this is a very serious issue and first and foremost we have to put public security and safety at number one and that is what is occurring in this debate. That is why Family First will be supporting the compromised position that has been put forward, and I congratulate the maturity of all those involved in meeting that compromise.
The Hon. T.A. FRANKS: In that briefing from the police that the minister refers to, I would say that we were not actually given extensive access to those documents. They were put in front of us; we did not have any ability to interrogate them or test the information. Given there are already spelling mistakes in the names of these outlaw motorcycle gangs, perhaps a bit of proofreading from the government side would have helped at that stage.
However, there was a particular question I raised in that briefing that I did not get an answer to, so I will put it again. It was echoed by the South Australian Law Society President, Rocco Perrotta just recently in an article he has penned in the last few days:
Sally Kuether represents much of what is wrong with the SA government's 'bikie laws' Bill recently introduced into Parliament.
I raise this issue because, having family in Queensland, I was quite familiar with the situation of the Queensland woman, a respected library assistant and mother of three who was in fact a recipient of a Lord Mayor's Award for excellence beyond the call of duty for her volunteer work during the Brisbane floods of 2011, who fell foul of these laws. She is not a member of a club; however, she was charged with participating in a criminal organisation and wearing club colours after being in a hotel in the wrong outfit. How will the government ensure that South Australia does not create more Sally Kuethers?
The Hon. G.E. GAGO: I am advised that the offence in relation to the Liquor Licensing Act applied to carrying a prohibited item which, I understand, in this particular woman's case was referred to as 'club colours'. I am also advised that she was associating with an admitted member of a prescribed club who was found to be carrying a flick-knife, so these are exactly the sorts of people this legislation seeks to scrutinise carefully.
The Hon. T.A. FRANKS: In that case, it took a six-month campaign to have the charges dropped. I would ask the minister to outline then what will be defined as 'club colours'—for example, the Hells Angels.
The Hon. G.E. GAGO: I am advised that it is outlined in part 3, clause 9, new section 117B:
prohibited item means an item of clothing or jewellery or an accessory that displays—
(a) the name of a declared criminal organisation; or
(b) the club patch, insignia or logo of a declared criminal organisatio n …
It goes on to say 'any image, symbol, abbreviation', etc. So, that is outlined in that particular section.
The Hon. T.A. FRANKS: In the case of the Hells Angels, will this include the 2010 autumn/winter collection of Alexander McQueen and Saks Fifth Avenue and Zappos.com, their distributor? Will it include the t-shirts that are currently available on Amazon or merchandise such as embroidered patches available on eBay, the MTV-associated Young and Reckless clothing label, and I could go on?
The Hon. G.E. GAGO: That would be a matter for a court to decide.
The Hon. T.A. FRANKS: So, you are saying somebody who wears Alexander McQueen may indeed fall foul of these laws?
The Hon. G.E. GAGO: I am not familiar with that item of clothing, so I can offer no level of judgement about whether it may or may not be captured. It would be a matter for courts to decide.
The Hon. T.A. FRANKS: I will also add Ed Harry, which is quite a popular label in South Australia. People can buy the 81 logo associated with the Hells Angels on T-shirts, children's tops, beanies, bikinis, tank tops, underwear, cigars, pins, keychains, calendars and window decals online. How will the government police this or will we see our courts clogged up with more Sally Kuethers?
The Hon. G.E. GAGO: The government will not be policing this, the police will, and the police and our courts are filled with very sensible people who have many years of wisdom and good judgement, and I trust their judgements.
The Hon. T.A. FRANKS: I trust the court's judgement too, so why is this not being left to the courts?
The Hon. G.E. GAGO: I have already answered the question.
The Hon. M.C. PARNELL: I appreciate that we are jumping around a little bit because there are only a couple of operative clauses that contain all of the operative provisions, but if it is helpful to stick thematically, I will ask a question now that I was going to ask at clause 9 as we are already talking about what club colours and things mean. The minister read out the section talking about club patches, insignias, logos or any image, symbol, abbreviation, acronym, or other form of writing that indicates membership of an association. The words are 'item of clothing or jewellery or an accessory'. Is a tattoo an item of clothing, jewellery or an accessory?
The Hon. G.E. GAGO: I think that what is happening now is you are asking for legal opinion and I am not equipped to give that sort of advice. I have already indicated who is responsible for policing and making judgements about what may or may not be included. As I said, the police force and our courts are full of very sensible, wise and experienced people who no doubt will use their judgement sensibly to make an assessment about what would be included and what would not.
The Hon. M.C. PARNELL: With all due respect, this is the government's legislation. The government is writing the rules as to what constitutes a prohibited item. For example, I understand how it might work if someone is wearing—to use the Hon. Tammy Franks' example—a Hells Angels jacket or a Hells Angels item of jewellery or a leather handbag with the Hells Angels logo on it. I can see that that is an accessory.
But let's say someone has a tattoo and maybe the tattoo is an old and fading tattoo from 20 or 30 years earlier when they may have been associated with one of these organisations. Does that now prohibit them from attending licensed premises or are they obliged to have their tattoo removed if they want to re-enter civil society? The minister is saying that the police will judge these things sensibly and the courts will be sensible, but is it the government's intention, as the author of this legislation, that tattoos be covered under the definition of prohibited item, which is an item of clothing or jewellery or an accessory?
The Hon. G.E. GAGO: I have answered the question as best as I can, and that is that it may be, but it would be a matter of legal judgement and opinion, no doubt assessing the sorts of circumstances around that as to whether it would be included or not, and I cannot offer any further clarity. As I said, it is a matter of legal interpretation and judgement.
The Hon. T.A. FRANKS: Will the terms '81' and 'Filthy Few' be falling within the associated items with regard particularly to the Hells Angels?
The Hon. G.E. GAGO: I know that the honourable members from the Greens are not supporting this and I understand their frustration. They can list through an indefinite number of possible items and accessories, which they are obviously seeking to do at the moment, but my answer will be the same. I have answered that question and it is the same answer for this particular question that the Hon. Tammy Franks is asking.
The Hon. T.A. FRANKS: I do have frustration. I have frustration that the minister has not been able to answer many of the questions that we have posed so far. I do not pluck these terms or descriptions out of thin air; I take them from those trademark rights owned by the Hells Angels to these particular items and terms that I have described. I would have thought that the government, had it done its homework and would have had these terms listed.
The Hon. G.E. GAGO: I have answered the question. We take the advice of the police. These are matters of legal interpretation and judgement and I am not able to give any further clarity in relation to this question.
The Hon. M.C. PARNELL: I want to go back to the question I asked earlier. I know we got side-tracked with that side issue, but that is an important issue as well. When I asked the minister what evidence she was prepared to put on the public record about these named organisations, her answer was effectively, 'Well, we're not going to put any information on the record. You've had a chance to look at a police file but I'm not putting anything on the public record.' I am paraphrasing the minister.
Her reason for not putting stuff on the public record is that some of it is highly confidential and some of it is sensitive. My question to the minister is: is every piece of information relating to these organisations confidential and sensitive? Is there nothing that she can put on the record about each of these organisations so that the public, listening to this or reading it later on in Hansard—is there going to be any skerrick of evidence or information at all that is not sensitive or confidential that explains to the South Australian community why these organisations have been chosen? Is there anything at all the minister intends to say about any of these organisations?
The Hon. G.E. GAGO: Again, I have already answered this question. The 10 organisations that are on the prescribed list to be legislated are organisations that the police have identified as being priority organisations here in South Australia; to be included on the list that they are involved in criminal activity and pose a risk. As I have said, the police provided confidential detailed briefings to members of parliament to outline a greater level of detail. That is highly sensitive information that is not able to be published, and so I repeat my answer.
The Hon. A.L. McLACHLAN: I want to make a few comments in support of the points or questions raised by the Hon. Mr Parnell. What he is trying to tease out is a fact that by passing this legislation we are effectively conducting a trial of these organisations. In effect, this legislation is a motion to declare them criminal, without trial procedure and without any form of efficacy or opportunity for those organisations to respond. That was a point I made in my opening at clause 1.
What we have been asked to do is to go to a confidential briefing which has material which we do not know; it is not locked away or kept as it was when was been shown to us. It could have easily been interfered with. It will not be kept in that form in 50 years' time or 20 years' time if ever these laws are challenge. The point of having a court declare an organisation illegal is that it keeps its records; it is on transcript; it is transparent and it is open. That is why this process and this bill is an offence to all of those who respect the rule of law.
I thought I should make that comment early because that is what the Hon. Mr Parnell has every entitlement to ask for: the evidence against these alleged criminal organisations should be tabled in this parliament and kept as a record so that we can affirm the decision that this parliament may or may not make in the coming stages of the debate.
The CHAIR: Was that a question or a comment?
The Hon. A.L. McLACHLAN: A comment.
The Hon. B.V. FINNIGAN: I recognise that this is not the second reading, although it feels a bit like it. The quote I could not remember from Catch 22 earlier was:
The country was in peril; he was jeopardising his traditional rights of freedom and independence by daring to exercise them.
I think that could be seen to sum up the dilemma we are facing with this bill. In relation to the access for honourable members to information regarding these organisations and whether it can be public, I think we all accept that some information should not be in the public domain, but it seems that, if you compare what happens in the federal parliament and in parliaments in Britain and in legislatures in the United States, honourable members are given access to very high level, sensitive, secret, national security and intelligence information, and it would be disastrous for that information to become public. Some thought needs to be give as to the information that can be made available to members of this parliament rather than a blanket 'we can't go into details, but take our word for it'.
One question I have: I happened to be in a restaurant a while ago, and some men were wearing colours or badges of some sort of outlaw motorcycle gang, and it occurred to me at that time that, if those people were to be arrested for associating with each other, would members of the public be expected to act as witnesses in the same way that they would if they witnessed a stabbing or some other criminal offence? Has that been contemplated in relation to this legislation?
The Hon. G.E. GAGO: I am advised that it would be a criminal matter, just like any other criminal matter and, if it is relevant, witnesses can be called upon.
The Hon. T.A. FRANKS: I understand that courts use the parliamentary debates to make determinations. I seek an assurance that the term '1%', as used by the Occupy Movement, will not fall foul of these laws.
The Hon. G.E. GAGO: Under new section 117B(1)(c) it says:
(c) any image, symbol, abbreviation, acronym...association with, a declared criminal organisation, including—
(i) the symbol " 1% "; and
(ii) the symbol " 1%er "; and
(iii) any other image, symbol, abbreviation...
The Hon. T.A. FRANKS: Is the minister aware of the Occupy Movement, which is an international movement, and their use of the term '1%', and can she give a guarantee that they will not fall foul of these laws?
The Hon. G.E. GAGO: The 1% could be captured if, as in paragraph (c), it indicates membership of, or an association with, a declared criminal organisation. It would need to be in that context.
The Hon. A.L. McLACHLAN: I might make one further comment, reflecting on some comments of the Hon. Mr Parnell. Ignorance of the law is no excuse. In the course of this committee stage members such as myself will need some indication of what is intended to be captured by the provisions in this bill. I do not think it is satisfactory simply to say that a lot of them are legally interpreted by the court. At its core, it has been drafted on the basis of instructions from the Attorney, and he must have had some intention to capture certain activities, otherwise it would not have been drafted in the form that it has.
This will be particularly relevant when we come to subsequent sections and definitions, because some of them are extremely broad. As a member of this chamber, I need to understand the sort of activities which are going to be, prima facie at least, captured within the net of this legislation. Perhaps I have chosen to make that comment at this stage so that the Leader of the Government and her advisers can at least prepare themselves as we grind through, as I am beginning to imagine, clause by clause, through this amending bill.
Clauses 2 to 7 passed.
The CHAIR: Do you have some questions to ask, Mr Wade?
The Hon. S.G. WADE: The Hon. Mr Brokenshire might be joining us soon. I could perhaps ask some questions in the meantime. Can the minister assure the committee that the Crime and Public Integrity Policy Committee in terms of its responsibilities under this section would be able to seek and receive information beyond that provided by the minister or the Commissioner of Police in preparing their reports?
The Hon. G.E. GAGO: Yes.
The Hon. S.G. WADE: Will regulations declaring criminal organisation promulgated under section 83GA(1) as amended by this bill be subject to judicial review?
The Hon. G.E. GAGO: I am advised that in so far as we can predict what courts will do, we think yes.
The Hon. S.G. WADE: Sorry, I do not understand that answer. I would have thought that it is a matter of legislation and legislation's interaction with the common law as to whether or not a regulation is under administrative law subject to judicial review. I am asking are the regulations under this legislation liable to be challenged under judicial review?
The Hon. G.E. GAGO: I am advised yes, we believe so, on the basis of the decision of the High Court in relation to the O'Shea case.
The Hon. S.G. WADE: Under the Parliamentary Committees Act, the Crime and Public Integrity Policy Committee is entitled to receive functions either being assigned by an act or being referred by the parliament, but there is no specific statement in this bill that a function is being assigned, so I would ask the minister: does the government consider that the provisions in this bill in relation to the Crime and Public Integrity Policy have the effect of assigning a function to the committee in terms of paragraph (f) of section 15O(1) of the Parliamentary Committees Act?
The Hon. G.E. GAGO: I am advised yes.
The Hon. M.C. PARNELL: Given that clause 8 is one of the operative clauses, there are a number of questions that are unrelated to the amendments, so if we could have some latitude to ask those either before or in between the amendments being moved. Early on in clause 8, in fact, is the definition section. This is the proposed new section 83GA, which in subsection (1) one has a list of definitions. The first definition I want to ask about is the definition of 'criminal organisation'. This is absolutely critical, because most of the offences contained within this bill relate to a person's membership of a criminal organisation. It seems to me, reading it, that there are three ways that an organisation can be a criminal organisation. One way, which is in paragraph (b), is if they are declared under the Serious and Organised Crime (Control) Act 2008. Another way, which is in paragraph (c), is if it has been declared by regulation, and that effectively is schedule 1 of this bill. However, in paragraph (a) of the definition it provides:
Criminal organisation means—
(a) an organisati o n of 3 or more persons—
(i) who have as their purpose, or 1 of their purposes, engaging in, organising, planning, facilitating, supporting, or otherwise conspiring to engage in, serious criminal activity; and
(ii) who, by their as s ociati o n, represent an unacceptable risk to the safety, welfare or order of the community
Basically, if an organisation meets those criteria they are a criminal organisation. They do not have to be listed in the regulations, they do not have to be declared under the 2008 Serious and Organised Crime (Control) Act. Am I correct that simply by meeting that definition they are a criminal organisation?
The Hon. G.E. GAGO: I am advised yes, if it were able to proved in a court.
The Hon. M.C. PARNELL: I am not sure whether that is the case, and later I will come to why do not believe that is. On the basis of this definition the Mafia would, on my vague understanding of the Mafia, be a criminal organisation for the purpose of this act, is that correct?
The Hon. G.E. GAGO: I believe that is a fair assumption, but it would need to be proven by a court of law.
The Hon. M.C. PARNELL: Triads are some of the Asian gangs I have heard about. What about sporting clubs, AFL clubs for example, where players might have taken illegal drugs or traded illegal drugs with each other? Are they, by definition, criminal organisations?
The Hon. G.E. GAGO: I am advised that they would only be included if one of the purposes of that organisation were to participate in serious criminal activity. It would need to be the purpose or amongst the purposes of that organisation. I do not believe there are any football organisations that would currently be captured by this.
The Hon. R.L. BROKENSHIRE: I move:
Amendment No 1 [Broke–1]—
P age 4, after line 6 [clause 8, inserted section 83GA(1)]—Before the inserted definition of conviction insert:
Committee means the Crime and Public Integrity Policy Committee of the Parliament;
The Hon. G.E. GAGO: The government rises to support this amendment. It is the first of a series that inserts the Crime and Public Integrity Policy Committee of the parliament into the process of scrutinising any regulation that is proposed to be made listing prescribed organisations. The government supports the amendment and, on behalf of the Attorney-General, I undertake that there is to be further reform in the future. The government will engage with the Crime and Public Integrity Policy Committee from an early stage.
The Hon. M.C. PARNELL: Given that the honourable mover has chosen not to speak in any detail to his amendment, I will ask him a question. Whilst I understand the intention is to insert a level of parliamentary scrutiny, and I understand that the honourable member sits on this particular committee, my question is: does he have any concerns that the committee is, for want of a better word, a government committee, in that the government numbers can always prevail in a vote? Does he have any concern that government committees always support the government line—certainly in my experience—regardless of any contrary views that non-government members of that committee might hold? Does that give the member any cause for concern about whether the Crime and Public Integrity Policy Committee will adequately be able to scrutinise decisions made under this legislation, and is he confident that it would, if required, go against a government position?
The Hon. R.L. BROKENSHIRE: I thank the honourable member for his good and sensible question. Just for the record, when we go back to the formation of the standing committee for crime and public integrity, which was formulated as a result of the ICAC bill, I actually went on the public record—and certainly spoke to my colleagues—saying that because this is a cross-section of the parliament in the upper house, on behalf of not only the upper house but also the House of Assembly and therefore the parliament in its entirety, there should have been consideration of an independent chair so that it was not a government-chaired committee. At that point in time that did not occur, although, to be fair, the opposition through the Hon. Stephen Wade said that that was something that the opposition could look at, depending on how things transgressed in time.
Since then, we have been able to have this enacted. I place on the public record that, at this point in time, the chairman (the Hon. Gerry Kandelaars) has been very professional and balanced in the way that he has chaired the committee. I have found the committee to be very multipartisan and balanced in the way that it assesses all matters. In fact, thus far, when we have had some very difficult issues put before the committee, I have felt that it has been very balanced and I have felt more comfortable than I have with a lot of other government committees. That is why, after quite a lot of deliberation, Family First decided to put this amendment up, and I thank the honourable member for a very good question on the amendment.
My caveat would be that, if things were to change, I would report back after deliberation with other members of the committee that perhaps we should look at an independent chair. However, at this point in time, given the importance of this committee and the fact that it is only one other committee that the Hon. John Darley sits on—and I am not sure about other members—and has a special position in the parliament, I think it is fine as it is. Given that the structure of the committee is three Labor members, two Liberal members and a crossbench member, I think it sits within my comfort zone regarding the points raised by the honourable member.
Notwithstanding that, if it were to become, as the honourable member rightly says happens with many standing committees, a government committee and therefore a rubber-stamp, then I would suggest that not only I but other non-government members on that committee would very quickly raise their concerns in the chamber. But at this point in time, I have seen good chairmanship and a very balanced and sensible committee. Therefore, I sit comfortably with goodwill and good intent with this amendment based on the points I have covered and the good points raised by the honourable member.
The Hon. A.L. McLACHLAN: I would just like to respond to the Hon. Robert Brokenshire and, to the extent that this is probably the only time we are going to agree tonight, endorse the fine chairmanship of the Hon. Gerry Kandelaars. I myself have had no difficulty serving on the committee. However, my point to the chamber is: the nature of the work of the committee is now being recharacterised. The chamber going forward will rely on this committee to review material from the Commissioner of Police. Therefore, the question I would raise to the chamber—and it cannot be repaired tonight, but going forward—is whether it should be a government-dominated committee. I want to point out that that is no reflection on the government members on the panel.
It is not a good look that we are talking about the operation of executive power which in going forward will rely upon a recommendation to the minister from a committee which is dominated by the government. It is not a good look, it is not the perception that you would want and, whilst I think that these measures are ultimately inadequate and do not repair the flaws of the legislation which will ultimately guide me in my final vote, I think that on the passage of this bill there needs to be more work and discussion in relation to this committee for it will become a very serious committee and it will have almost a hybrid judicial function.
The Hon. B.V. FINNIGAN: I support these amendments because I think it is a good idea to have more scrutiny rather than less, but I would like to add my concerns in relation to this committee and how it operates. We should not be making decisions, as the Hon. Mr Brokenshire suggests, based on the current membership of the committee and how it is going. I am sure the Hon. Mr Kandelaars is a very fine chairman and I am sure all the honourable members on it are diligent and doing their job but that should not determine legislative provisions in relation to the committee because we think that they are good chaps—and I think they are all chaps actually—who are on it. To me, that is not a sound basis for deciding legislation.
I would point out that given that we have seen the opposition not for the first time come to this chamber and say this legislation is flawed, it is full of holes, it is not the right way to go about it, but we support it because we are not the government, can we really expect that members of the opposition—and this is no reflection on any member of that committee—be they Labor or Liberal in the future, are going to exercise the political courage on this committee that we so rarely see when it comes to law and order issues in the chambers themselves?
The Hon. M.C. PARNELL: The Greens will not be opposing these amendments but just to make it very clear, our position in these types of bills that we are fundamentally opposed to is generally to support amendments that make a bad bill slightly less bad. On that basis, we do not need to oppose this. I do just want to check something on an administrative matter with the honourable member. We have two sets of amendments filed by the Hon. Rob Brokenshire. They both effectively cover the same topic which is the insertion of the Crime and Public Integrity Policy Committee into this bill. He had a set of amendments: Brokenshire–1 which was filed on 2 July and the set that was filed on 27 July, although we just received it today. Can I just clarify with the member that set 2 replaces in its entirety set 1?
The Hon. R.L. BROKENSHIRE: I can see why the honourable member made so much money when he was an environmental lawyer because he is extremely astute. Yes, you are right. After some further consideration within our party and deliberation, I advise the house, thanks to the Hon. Mr Parnell, that my set 2 of amendments supersedes my set 1 of amendments and, therefore, my set 1 of amendments is obsolete and irrelevant and we are working with the set 2 of amendments.
The Hon. G.E. GAGO: I move:
Amendment No 1 [EmpHESkills—4]—
Page 5, after line 15 [Clause 8, inserted section 83GA]—After inserted subsection (1) insert:
(1a) Each regulation made under subsection (1) for the purposes of the definitions of criminal organisation, prescribed event or prescribed place and required to be laid before each House of Parliament in accordance with the Subordinate Legislation Act 1978 may only relate to 1 entity, 1 event or 1 place (as the case may require).
This is the first of amendments in set 4, and I will speak to both sets of amendments in set 4 at the same time. These amendments are to the effect that any regulation made pursuant to the provisions now before the house that deal with prescribing organisations, events or places must also be presented to the parliament and the Crime and Public Integrity Policy Committee, that they must refer to one name, event or place per regulation. The amendment in relation to the liquor licensing regulations refers only to prescribed organisations because that is the extent of the regulation-making power.
These amendments were suggested by the opposition and the government is pleased to agree and sponsor these amendments. It should be noted that these clauses are also the subject of amendments proposed in set 2. Those amendments were drafted and filed in response to the opposition request that each and all regulations made pursuant to the listing process in the bill be the subject of a single and separate regulation. Those amendments do not make that requirement in relation to the listing of places and events. That omission was due to a misunderstanding of the opposition's wish and that is now in set 4 and these amendments set 2 will not be pursued.
The Hon. M.C. PARNELL: I want to pursue what the minister just talked about because what we have here are two amendments that, unless you look at them carefully, are identical. One was filed at, or rather the date stamp—we only got them today at 2.15 but the date stamp is 2.50pm on the 28th and then the set that the minister is now relying on—set 2 was from 2.50pm and set 4 was 5.08pm. So, after having prepared and asked to be distributed the minister's amendments set 2, two hours and 18 minutes later a substitute set is put on the record.
What that says to me is that either they are making stuff up as they go along and making mistakes as they go along. The minister has offered an explanation which is that there was some misunderstanding between the government and the opposition. My question is: in settling this legislation did the government not provide the opposition with the words of the amendments that sought to give effect to the agreement that had been reached? If the answer is, no, you did not, my question is: what type of negotiations were these?
The Hon. G.E. GAGO: I am advised that the reason set 4 was filed—our intention was to file it as soon as we possibly can, obviously to give people the maximum amount of time. As I said, there was a misunderstanding about what the wish of the opposition was and when that was realised changes were made as soon as possible, as I said, to give people the maximum amount of time.
The Hon. M.C. PARNELL: I thank the minister for her answer but it does not satisfy me at all. What the minister is saying is that you wanted us to have the maximum amount of time to look at these amendments. We got both sets of amendments at 2.15 today on our desks; no note saying, 'Whoops, we made a mistake with set 2. Please ignore that, it is now set 4.' Was the minister under some expectation that other members of parliament who had not been involved in these negotiations would somehow know about these amendments?
That is my first question. How did you think we would find out about these amendments, other than collecting them from the desk when we came in for question time today? How did the minister think we would find out? Secondly, if two hours and 18 minutes after realising a mistake was made a new set was drafted, why did the minister not instruct the parliamentary counsel, or the Legislative Council staff, to withdraw the first set of amendments?
The Hon. G.E. GAGO: I am advised that they were filed using the usual process and that is the explanation.
The Hon. M.C. PARNELL: I take this opportunity to make the point that the usual process in this place is rubbish. It is absolute rubbish. It means that if, for example, an amendment was prepared and filed on Friday then we would not get to see it for a month and a half. I mean, it is absolute rubbish that we are relying on a paper-based system where members are not notified of amendments.
You can say that it is the obligation of each individual member to circulate their own amendments to other members of parliament. The point I am making is that the government made, in this case, if that is the system it is relying on, no attempt to tell any of us the content of these amendments, knowing that they were late and knowing that we would not get them until 2.15 this afternoon. I think it is outrageous.
Normally, what I would have done at this point is I would have been dividing every 15 minutes to adjourn, to report progress. I have not sought to do it because I know where the numbers are. In the olden days, when Paul Holloway was sitting in that chair, we would have butted heads and I would have been dividing on every comma and every question mark in the legislation.
So, we are letting it proceed, but I want to put on the record now that, after nine years, I am thoroughly sick of this place having such antiquated systems of distribution of amendments, that in the electronic age we have to rely on a piece of paper being put on our desk, even though the matter is urgent—and this is one of the most important pieces of legislation we are going to deal with this year. I am just making it as an observation, but I would invite the minister to discuss with us, perhaps over the winter break, whether it is standing orders or whatever it might be, the fact that we have to get a better system in place because this is really disrespectful to members of parliament.
The Hon. G.E. GAGO: I agree that there is room for improvement, and I would be happy to work with the Hon. Mark Parnell and other interested members of this house on looking at improving processes in this place.
The Hon. A.L. McLACHLAN: On another matter, I refer to the definitions of 83GA(1). I want to take us to the definition of 'participant', which is extraordinarily broad at first blush, and I want to try to understand the breadth of the application of this definition. In my casual reading, particularly paragraph (d) where it says 'person who attends more than 1 meeting or gathering of persons who participate in the affairs of the organisation in any way', there does not appear to be any time limit in relation to that. Is it true that, if I were an 18-year-old boy who was participating, and then I had a second meeting at age 60, I would technically come within that provision?
The Hon. G.E. GAGO: The fact is that there is no time limit prescribed and I am advised that technically the example you give may be captured, but it is also well known that motorcycle gangs and their full members use and employ the services of prospective members and wannabes to do some of their criminal activities for them and commit crimes on behalf of the organisation and its full members if only to prove themselves. It would be intolerable if prospects and their kind could avoid the disruptive effect of the sanctions placed on association and participation just because they are not full members.
In any event, it would also be intolerable if the prosecution in one of these offences would have to prove full membership of an organisation for sanctions to bite. These criminal organisations do not keep definitive membership lists, and many individuals move in that shady area of the association, either in full or part.
The Hon. T.A. FRANKS: I was more concerned by the definition of 'participant', and I draw the minister's attention to:
(e) a person who takes part in the affairs of the organisation in any other way.
Can the minister provide clarity on that definition and, in fact, how people will not be caught up in that definition?
The Hon. G.E. GAGO: It is outlined in new section 83GA(e), which provides that a participant in a criminal organisation is:
a person who takes part in the affairs of the organisation in any other way…
So, that is, a criminal organisation. If they take part in that organisation then they are deemed to be a participant.
The Hon. T.A. FRANKS: Not all affairs of a criminal organisation are of a criminal nature. Would this include a toy run, for example?
The Hon. G.E. GAGO: The organisation they belong to would need to be a criminal organisation and the activity would need to warrant their participation in that organisation, so some sort of activity. The organisation would need to be identified as being involved in a serious criminal activity.
The Hon. T.A. FRANKS: The minister just referred in her answer then with the words, I think, 'the organisation that they belong to'. I draw the minister's attention to the fact that I am talking about the participant section and she is possibly talking about the member section. The participant section follows the member definitions and states in (e):
a person who takes part in the affairs of the organisation in any other way …
Those affairs may not be of a criminal nature. Will a person be defined as being a participant in a criminal organisation if they take part in a noncriminal event?
The Hon. G.E. GAGO: I am advised that being a participant is not in and of itself an offence, but participating can qualify for the application of other offences which require more than just participation such as associating with two or more other participants.
The Hon. M.C. PARNELL: I might explore the same theme. Interestingly, there is an exclusion from this definition. In other words, if we are sticking with 'participant in a criminal organisation' and paragraph (e) 'a person who takes part in the affairs of the organisation in any other way', then it says 'but does not include a lawyer acting in in a professional capacity'. My question is: what about the accountant who is preparing the books in order to lodge a tax return, for example, for an organisation or some other professional who is not a lawyer?
The Hon. G.E. GAGO: I am advised they may be, but I remind honourable members that it is not an offence to be a participant in and of itself; so that on its own does not qualify as an offence.
The Hon. M.C. PARNELL: With all due respect it does. If the accountant is not included in this definition and if under the proposed section 83GC—
The Hon. T.A. Franks interjecting:
The Hon. M.C. PARNELL: —and B as well, but let's stick with 83GC, if the accountant who is a participant, enters or attempts to enter a prescribed place. So if the accountant makes house calls then he or she is guilty of a criminal offence and goes to gaol for three years.
The Hon. G.E. GAGO: I am advised that if the accountant is a participant and enters a prescribed place, that that could be deemed an offence. However, if the club member went to the accountant's office, that is probably not going to constitute an offence.
The Hon. A.L. McLACHLAN: A cleaner attends the prescribed place, ongoing, and cleans regularly the Hell's Angel clubhouse.
The Hon. G.E. GAGO: It is unlikely to be captured because I doubt that a cleaner would be considered a person who takes part in the affairs of the organisation.
The Hon. T.A. FRANKS: Through you, Chair, you may doubt it, minister, but are you sure of that in this legislation? Further, 83GB provides that participants in criminal organisations being knowingly present in public places can lead to imprisonment for three years. So is that office of that tax accountant a public place?
The Hon. G.E. GAGO: I have already answered the question about the accountant and, in terms of whether it may or may not be captured, it is a matter of interpretation and the final say would be that of a court. But it is unlikely. A cleaner would be unlikely to be seen as a person—what is it—taking part in the organisation.
The Hon. T.A. FRANKS: It was 'taking part in the affairs of the organisation', through you Chair, to the minister, and, indeed, that definition under E was very broad and did not specify that it was only the criminal affairs of that organisation. So is the minister convinced that participants—innocent bystanders—members of the public going around doing their jobs as accountants or cleaners, or otherwise, will not be caught up in this legislation and, indeed, facing imprisonment of up to three years?
The Hon. G.E. GAGO: I have answered the question as best I can. We have talked about lawyers, accountant and cleaners and I have outlined what the government's view is on what could and what may or may not be captured, but it is a matter of interpretation by the courts and they will determine the final result and, as I said, the courts are full of very
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.
The Hon. R.L. BROKENSHIRE: I move:
Amendment No 6 [Broke–2]—
P age 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.
The Hon. G.E. GAGO: I move:
Amendment No 2 [EmpHESkills–4]—
P age 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.
The Hon. R.L. BROKENSHIRE: I move:
Amendment No 7 [Broke–2]—
P age 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.
The Hon. R.L. BROKENSHIRE: I move:
Amendment No 8 [Broke–2]—
P age 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 commis sion 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 pre scribed 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 Samford 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.
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.
The Hon. G.E. GAGO: I move:
Amendment No 1 [EmpHESkills–3]—
P age 13, lines 1 and 2 [Schedule 1, clauses 2(b) and (c)]—Delete paragraphs (b) and (c)
Amendment No 2 [EmpHESkills–3]—
P age 13, line 3 [Schedule 1, clause 2(d)]—Delete 'Commancheros' and substitute ' Comanchero '
Amendment No 3 [EmpHESkills–3]—
P age 13, lines 6 to 7 [Schedule 1, clauses 2(g) and (h)]—Delete paragraphs (g) and (h)
Amendment No 4 [EmpHESkills–3]—
P age 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]—
P age 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]—
P age 13, line 16 [Schedule 1, clause 2(q)]—Delete paragraph (q)
Amendment No 7 [EmpHESkills–3]—
P age 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]—
P age 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 is 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.
The Hon. G.E. GAGO: I move:
Amendment No 9 [EmpHESkills–3]—
P age 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.
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.
The committee divided on the schedule:
Gago, G.E. (teller)
Parnell, M.C. (teller)
Schedule as amended passed.
The Hon. G.E. GAGO: I move:
Amendment No 10 [EmpHESkills–3]—
P age 14, lines 17 and 18 [Schedule 2, clauses 2(b) and (c)]—Delete paragraphs (b) and (c)
Amendment No 11 [EmpHESkills–3]—
P age 14, line 19 [Schedule 2, clause 2(d)]—Delete 'Commancheros' and substitute ' Comanchero '
Amendment No 12 [EmpHESkills–3]—
P age 14, lines 22 and 23 [Schedule 2, clauses 2(g) and (h)]—Delete paragraphs (g) and (h)
Amendment No 13 [EmpHESkills–3]—
P age 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]—
P age 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]—
P age 14, line 32 [Schedule 2, clause 2(q)]—Delete paragraph (q)
Amendment No 16 [EmpHESkills–3]—
P age 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]—
P age 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.
Bill reported with amendment.
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 :41 ): I move:
That this bill be now read a third time.
The Hon. M.C. PARNELL ( 11:41 :52 ): 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 :51 ): 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 :13 ): 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 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 a 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 :58 ): 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 :16 ): 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 :20 ): 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 :45 ): I rise to indicate that I will be supporting bill.
The council divided on the third reading:
Gago, G.E. (teller)
Parnell, M.C. (teller)
Third reading thus carried.