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30 Jul 2015

Statutes Amendment (Serious and Organised Crime) Bill 2015 – Third Reading

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 that was provided to the Attorney-General in making his determination. I do not believe it justifies the declaration of the organisations as criminal; insufficient material has been provided.

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

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

History, and not only history , shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power.

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

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

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

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

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