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2 Jul 2015

Statutes Amendment (Serious and Organised Crime) Bill – Second Reading

The Hon. A.L. McLACHLAN ( 15:46 :32 ): I rise to speak to the Statutes Amendment (Serious and Organised Crime) Bill 2015. I will set out the Liberal Party position on this bill. Let me say at the outset that we in the Liberal Party support the key policing powers in this bill. We have listened to the briefings from the police and have formed the view, after much consultation, that the exercise of these powers in the circumstances may have some merit in addressing criminality in certain motorcycle clubs. We especially acknowledge the extremely strong opposition to this bill from the legal community and especially the Law Society of South Australia and the Bar Association.

The Liberal Party has filed amendments to this bill. We believe that these amendments go some way to ameliorating those parts of the bill which have been strongly criticised by the legal profession and have also caused concern with the public in general. We believe that our amendments will provide safeguards and prevent unintended consequences inherent in the broadly drafted definitions. The bill seeks to amend the Criminal Law Consolidation Act 1935.

The bill sets out a number of offences for being a participant in a criminal organisation. The bill declares 27 organisations to be criminal organisations under the Criminal Law Consolidation (Criminal Organisations) Regulations 2015 and the Liquor Licensing (Declared Criminal Organisations) Regulations 2015. Further declarations will be able to be made in the future by regulation on recommendation from the minister.

Like Labor we do not want organisations such as criminal motorcycle clubs to flourish in our community. We want our people to be safe. We want our police to have the training, resources and techniques to prevent criminal organisations from operating in South Australia. What we do not accept is that the Attorney-General should alone, in a process which lacks transparency and which is unable to be reviewed by a judge, decide that certain organisations should be declared illegal and then seek parliament’s agreement to his decision by passing this legislation, without the benefit of the same information.

We are being asked to suspend our skills and experience as legislators and ban organisations based on the untested assertions contained in a secret police file and reviewed by one member of this parliament. This is unacceptable. This should be unacceptable to every member of this chamber who takes seriously their oath of office. The process that is set out in this bill offends long-standing principles of law that protect the rights of the individual against arbitrary acts of the government.

Not surprisingly, this system has been very strongly opposed by the Law Society and the Bar Association. At no time has a clear and present threat to our society been identified or articulated that justifies the undermining of the legal principle of the separations of power and the rule of law. These are principles that define our democracy and underpin the liberty our community enjoys.

The doctrine of the separation of powers is a key pillar of our democracy. Its formulation is generally attributed to the French jurist Montesquieu. Legislative power is the power to make laws. Executive power is the entitlement and responsibility to conduct the business of government according to the law, and for the public good. Judicial power is the power to give binding and authoritative decisions according to the law to settle disputes. A significant feature of judicial power is that it does not depend upon agreement of the parties to the dispute. Judicial power comes from the law itself. The aim of the doctrine is liberty as a matter of enduring relevance, or should I say, to all of us except the Labor Party.

In living memory, we sent our youth to fight and destroy regimes with Draconian laws such as the ones being proposed. Now we insult their sacrifice by enacting laws of a similar nature. The bill sets out a declaration process that is not independent or appealable. Parliament is not hearing evidence, nor is its decision appealable. Parliament does not have to give reasons for its decision.

The bill seeks to prevent judicial appeal of the decision to declare certain organisations as criminal. In this way, it dramatically subverts the doctrine of the separation of powers, a doctrine that is critically important to the proper functioning of our democracy. At the same time, there are significant penalties for breaching this legislation. Participation in a criminal organisation must receive a period of imprisonment, even if they are not a member of the club or even engaged in any criminal activity. A participant does not even need to intend to commit a crime.

When reading these provisions of the bill, I am reminded of Justice Kitto’s famous quote in the Australian Communist Party case. He said during argument:

You cannot have punishment that is preventative. You can’t remove his tongue to stop him speaking against you. That is wide open to a totalitarian state.

There are also associated amendments to the Liquor Licensing Act. A person will be guilty of an offence if they enter or remain in licensed premises wearing items of clothing or jewellery bearing the insignia of a declared criminal organisation.

It is our belief that the intent of introducing this legislation was not motivated, as has been claimed by the government, as a serious attempt to prevent organised crime. Rather, it was introduced simply to provoke a political error by we Liberals or, alternatively, as a feeble attempt to provoke an internal split within our ranks. This is an example of how debased politics has become in this state. More and more Draconian legislation keeps being brought to the parliament with the intent to generate political advantage for Labor. The ultimate losers in all this are the people of South Australia.

Let me assure the people of South Australia that the Liberal Party will always put the people’s interests first ahead of its own political advantage. We will always seek to protect them from the criminal elements in our society. We will always examine legislation carefully to ensure that their rights and liberties are protected, and in all these things we will not be harried into making quick decisions on a false pretext that passing a bill is urgent.

The government has had months in which to bring the amendments contained in this bill to the parliament. The people have elected us to apply our skills and learning gained throughout our lives, to make decisions in their interest; not, as is the Labor mantra, in the interests of their own party. Our party is united in the fact that this legislation, having regard to its significance, must be comprehensively debated.

Our party is united in the view that the interests and security of the people of South Australia come first. Our party is united in the view that this bill requires amendment. We are united because we have debated the merits of this bill within our own ranks. We are united because we have not adopted the practices of Labor where each member is factionally bound to the views of their respective commissar. We are a free and united party that seeks to ensure the liberty and security of the citizens it represents. We resist Labor’s attempt to denigrate the rights and liberties of South Australians for crude political gain.

We know that by proposing amendments in a constructive manner the only response we will receive from those opposite is the condemnation by Labor that we are somehow soft on crime. It has started already. I emphatically reject that assertion on behalf of my party. The Liberal Party has worked with the Labor government on these issues in a constructive manner at all times. We have always been prepared to work with the government in a bipartisan manner.

Of course, this offer would not be accepted by Labor because true bipartisanship would deprive them of the ability to devise legislation that is more and more oppressive and arbitrary in the hope that we will eventually say no, and then they can criticise us. I make this offer again to Labor: we are prepared to work constructively on ensuring the safety of our citizens. All the Labor Party has to do, like us, is to place the interests of all South Australians first.

When contemplating this bill my mind turned to my university days at Law School. If I could be certain of two things back then they would be: that I would not be sent to a war in Afghanistan and that in a democracy such as ours there would be no attempt to breach the rules against the separation of powers.

Both these things were unthinkable in that gentler time. But time moves on and we are now commemorating 800 years of the signing of the Magna Carta. I have been sent to Afghanistan and, courtesy of the Labor government, I am speaking on a bill that seeks to subvert the opportunity for judicial review of executive action, disregards the principle of the separation of powers and asks the parliament to declare organisations illegal based on secret evidence that it cannot even access itself.

The development of administrative law was in its infancy when I was being tutored in the law. In my role in defence I have seen how it has grown. At first it was adopted to protect the rights of individuals in the bureaucracy; now it is manipulated by the state to shape processes of administrative decision-making in an attempt to provide for decisions that can avoid judicial scrutiny. The law should not be abused in this way.

It is the Liberal Party’s position that, no matter how hideous the government considers a particular group in our society, any government decision that affects these groups should be available for judicial review to ensure that no mistakes are made or powers abused. It is not acceptable in a democracy to say, as this Labor government is doing, that we cannot get a court to approve this so we are going to cut them out of the process. This in itself should serve as a warning beacon to every member of this parliament: if there is insufficient material to satisfy a court, how can the Attorney‑General or this parliament come to a satisfactory decision?

This bill demeans the parliament as it is an attempt to lure us into committing an arrogant and authoritarian act. The Attorney-General should not aspire to be Robespierre and make this chamber his committee for public safety. Arbitrariness is the key to oppression. If there are no rules, justifications or reasons, everyone is at risk. This bill takes the first step into the world of capricious acts of the executive. The Liberal Party must and, indeed, is duty bound to the people of South Australia, to resist this grasp for power by the government. It is our duty as concerned citizens in a democracy.

Similar dilemmas have been debated in the federal arena recently. While there is much to distinguish the proposed commonwealth citizenship laws from the provisions of this bill, there are also very similar questions being raised about the exercise of the powers of the state and the opportunity for judicial review. The proposed commonwealth laws provide for a process of judicial review.

I ask the chamber: why does a terrorist have an opportunity to have a decision made by the executive reviewed by a judicial officer and yet a bikie in South Australia who does not conspire to bring down the state is not afforded the same rights under this bill? The question cannot be answered.

What may be of assistance to my colleagues on the government benches are some responses to questions by the federal shadow attorney-general, the member for Isaacs, in a recent media interview. When being interviewed on Sky News, Mark Dreyfus, in response to a question about how much involvement there should be with the courts before someone loses their citizenship, said:

…it is disturbing that in the week that we have celebrated the 800 th anniversary of Magna Carta, one of the chief points of significance about that 800 th anniversary is to remind us all of the need to guard against executive overreach, against the executive seeking to exercise power without restraint, the executive seeking to exercise power on a whim. I have described it this week as a ministerial whim…

He goes on in the interview to say:

It concerns me to hear this government—

and he is referring to the federal government—

talking about any power that is to be exercised without involving the courts.

If you do not believe me please refer to your own federal shadow attorney-general, whose views on this matter are pertinent to our considerations on this bill.

The bill before us, in its construction, is flawed by the vaulting ambitions of this government to subvert the role of the judiciary. The Attorney-General in this place has, in response to our reservations about the operation of the bill, been reported to have questioned our courage as Liberals on the matter. My response to the Attorney-General is that he himself is seeking to declare certain clubs in the body of this legislation. In essence, he is seeking from parliament an endorsement of his decision, despite parliament not having all the requisite information to do this.

If the Attorney-General truly believes that the information the police have provided him is so overwhelmingly sufficient to declare each and every bikie club referred to in the schedule to the bill as a criminal organisation, he should support our amendments. He can then bring to parliament a regulation that declares each and every club a criminal organisation. Only by this action can the Attorney’s decision be considered a clear and unambiguous statement to the chamber, and the community, that the information provided by the police is sound and of sufficient weight to warrant a declaration; in other words, that the government has confidence in its own decision-making in respect of each club, and this decision will survive scrutiny by a court should it be challenged. I do not see why this chamber, by passing this bill, should seek to alleviate the Attorney-General or the government of the burden of these difficult decisions.

There is also an issue of bias that has been built into the declaration process. It cannot be ignored that senior members of this government have strongly condemned certain motorcycle clubs both in and outside of the parliament. In a judicial setting, making such statements before undertaking a decision-making process would usually disqualify the maker of the statements from hearing the case. This is why it is the usual practice of democracies to leave decisions regarding the conduct of individuals to an independent judiciary.

A related concern is the impact this will have on the enforcement of declarations and the reputation of our police force. We have a fine police force in this state, which is dedicated to the protection of its peoples. As the parliament is, in the first instance, acting on the advice of the Attorney-General to declare some organisations criminal and, subsequently, in response to considering further regulations naming other clubs, it necessarily follows that the manner by which the advice is formulated is critical.

In other words, in addition to potential bias the Attorney-General’s recommendation will inevitably always be considered an essentially political one. I submit to the chamber that this, in essence, corrupts the whole process. We are, in turn, demeaning our police force by asking them to enforce laws which are essentially political in nature and lacking in moral force. My fear is that the corrupted nature of the process, and the failure to respect the principles of the separation of powers, will have a long-term and lasting negative impact on the reputation of the South Australian police force and its senior officers. Again, this is why—and unlike this extraordinary situation being proposed to us in this bill—we, as a parliament, ordinarily leave such judgements to an independent judiciary.

We need only look over the border to Queensland and the case of Sally Kuether to see what is wrong with these laws, and the unforeseen impacts that these types of capricious laws can generate. Sally is a library assistant and a mother of three, who was charged under the Queensland laws with participating in a criminal organisation. She was not a member of a club but she risked a minimum of six months in prison for wearing the wrong clothes and being in the presence of two people who were associated with a declared motorcycle club; one was her partner, and they did not meet to engage in criminal activity. The charges were eventually dropped, largely as a consequence of the resulting community outrage.

There are also the embarrassing revelations closer to home regarding the motorcycle club called Phoenix, a legitimate club of motorcycle enthusiasts but named in the schedule. It is impossible for any member of parliament to be absolutely certain that the club listed in the schedule is one that is criminal. How can we have comfort when the schedule is already being amended in respect of places?

I note that the Attorney in a letter to members of parliament dated 30 June 2015 advises that South Australia Police will determine whether materials which he himself relied on should be made available to a particular member of parliament. I do not think this initiative takes us much further. Even if all the material is released, including criminal intelligence, to make a determination will require some legal skill and advice. Not all members of parliament possess the qualifications, skills and experience, nor do we have access to legal counsel to assess the material. This dilemma is in itself another reason why such matters should be left to the judiciary.

One of the key materials presented to the Attorney-General which informed his decision on these clubs, and will do so in the future, is police criminal intelligence. In my working life before being elected to this place, I gained experience with intelligence files, in particular military intelligence. I know well the difficulties in assessing the veracity of such material. This difficulty was beautifully put by former Labor leader and Prime Minister, the Right Honourable Ben Chifley, when he argued in the federal parliament against the Communist Party Dissolution Act:

This bill strikes at the very heart of justice. It opens the door for the liar, the perjurer and the pimp and to do so in secret without having either to substantiate or prove any charges they might make.

Of equal concern is that there are no longer legislative annual reviews of the Serious and Organised Crime (Control) Act by a retired judge. The last review was tabled on 24 November 2011.

The government should give consideration to having a greater compliance structure around the collection and assessment of criminal intelligence, especially given the use of criminal intelligence, in coming to a decision for the purposes of this bill.

Issues relating to criminal intelligence are not new. We only need to look back to the 1970s and the Salisbury affair as a reminder of what can go wrong. I am very concerned that there is no-one holding the watchers to account. Bureaucracies and the police are no exception and can, when not properly supervised, develop the impulse to perpetuate and justify their existence. When tangible threats do not exist, less tangible threats may be perceived or even invented. Bureaucracies will find work to occupy their energies, even when none naturally exist. I am not suggesting that this is the case in this instance, but no-one is watching the watchers.

I am especially concerned having regard to the serious penalties imposed on someone found to have breached the provisions of the bill. My concerns also stem from the same reason criminal intelligence is generally not used in court proceedings: it cannot be tested for accuracy. The government’s decision to place certain Queensland clubs in the schedule to the bill was based on intelligence from Queensland police. It is our understanding that this information has not been tested by South Australia Police. So, we are relying on the competency, integrity and covert sources from a foreign police force. We have no way of assessing its veracity.

The whole process of assessment envisaged in this bill reminds me of the children’s party game of whispers. Children are organised in a row and one child at the end is given a secret. They in turn whisper the secret to the next child and so on and so forth. The last child has to announce the secret. It often bears no resemblance to what was said to the first child.

Criminal intelligence is not necessarily evidence. It consists of hearsay and unsubstantiated allegations. I remind members that we are being asked to declare organisations as criminal based on the assertions which may be of varying quality, and held in files we cannot access. The response of the government to this dilemma was to try to make sure it did not have to justify its case before a judge. This is why we in this chamber are being asked to consider declaring organisations as criminal in the bill itself.

In this chamber we do not need evidence to make this decision. We can be as authoritarian as we wish, but just because the chamber may have the power, it is not an excuse to use it unwisely. I have no doubt this is why the government has played so much on the public disquiet about certain motorcycle clubs and its pursuit of penal populism. It is an attempt to distract the community from the slow and insidious retreat from the rule of law and the rise of executive authority.

The government mantra is that a great threat requires a tough response, but these laws have broader application than just motorcycle clubs and have the potential to impact other members of the community and their rights. We must question the necessity of these laws in the light of a wide range of other law enforcement and investigative powers that are available to the police. We must remember that these laws focus on association and seek to target categories of people. This approach contrasts to the traditional criminal offences based on conduct. The approach in this bill undermines the principle of equality before the law—a principle that is central to the Australian legal system.

The Liberal Party has filed amendments to this bill. We have done so despite our grave misgivings about the provisions of this bill. We have drafted these amendments in an attempt to keep the intent of the bill and more particularly the powers the police have requested. In putting these amendments forward, we have sought to act reasonably and responsibly. We acknowledge that the amendments will not repair the breach of the doctrine of separation of powers.

The bill remains extraordinary in its grant of power to the executive. The amendments remove the process of declaration of entities set out in schedules 1 and 2 of the bill by statute. The amendments also seek to strengthen the regulation process for an entity to be declared a criminal organisation by making the police information available to the Crime and Public Integrity Policy Committee for their consideration. This is contingent upon making a regulation to enhance the role of this committee and providing a report to parliament. The purpose of this amendment is to provide the parliament with some comfort that more than one of its members have reviewed and assessed the materials provided by the police that justify the declaration.

Our amendments ensure that there is an opportunity for parties to secure a judicial review while at the same time protecting the criminal intelligence. Our amendments also require a separate regulation for each organisation. This is to ensure each declaration for a particular organisation or place is assessed on its merits. The government process requires the declaration of a number of organisations at once. It is our view that the grouping of organisations diminishes the probity of the process and creates the perception that each organisation has not been individually assessed. In other words, we seek to repair the government’s approach to restore it to one more that is in line with the principle of equality before the law.

Other amendments seek to refine the offences relating to the concept of participating in a declared organisation. We are endeavouring to tighten the definition of ‘participant’ and remove the change of name and reforming of entities provision. The definition of ‘participant’ includes a person who seeks to be a member or associated with an organisation. It also includes a person who attends more than one meeting or gathering of people who participate in the affairs of the organisation in any way.

We consider that this definition is too broad and that it will result in unintended consequences. We also believe that they will be very difficult to prove in most instances. It is our view that individuals seeking to be associated with a club is not a class that should attract the extreme penalties contained in this bill. We note that there are no time limits between meetings. On its face, this means that you could be introduced as a young person and then attend another meeting 20 years later and still be caught by this provision. We consider the remaining provisions of the definition to be adequate.

We are also seeking to delete the provisions relating to the change of name or membership provisions as well as the reforming provisions. We believe these are too broad and not practicable or workable. The police will have close surveillance on these clubs. They will be able to accommodate changes in their internal dynamics. If the current clauses stand, then the effect of a declaration may never end even if a club ceases all forms of criminal activity.

In considering the definition amendments, our primary concern is that innocent people will be caught by these laws, and in this context we are particularly mindful of the large penalties imposed for breaches. All of our amendments have been mindful of the submission of the Law Society and the Bar Association.

By way of final comment, this proposed legislation, in all its imperfections, would already have been passed into law by now if we did not enjoy the benefits of a Legislative Council in this state. The introduction of this bill, and the attempts by the government to manufacture a sense of artificial urgency, once again presents the most compelling argument for the existence of an upper house in this state. It is ironic that the very party that has in recent memory had a policy for its extinguishment has, by the introduction of this bill, at the same time provided the greatest justification for this chamber’s role in the democratic life of this state. We are truly the last line of defence for ensuring the liberty of South Australians.

I would also like to add a personal observation. It is my view that, if we are serious about fighting organised crime in this state, we should convene a round table or task force, as the Labor government has done in Queensland, and seek to address the problem of organised crime in an holistic fashion. Any such gathering would have representatives from the police, as well as the academic and legal communities. Perhaps we could even have a royal commission, since this mechanism seems to be in vogue with this government.

If I take the missives of the government at their highest, it is a far more pressing problem for South Australians than dumping radioactive waste into our pristine environment. Alternatively, we could allow the Crime and Public Integrity Policy Committee to do its work. This parliamentary committee was not even given the courtesy of examining the bill.

Of course, all this would deprive the government of its ability to use draconian legislation against motorcycle clubs as a political tool. I suspect it will not find favour with the government benches, but it would go a long way to facilitating what the police need, while at the same time ensuring that the liberty of our citizens is protected. Perhaps I am one of the last true believers in the rule of law, but if the problem of motorcycle clubs is serious enough then a government truly committed to solving the problem should endeavour to bring along all South Australians, rather than ensure their political survival by manufacturing fear in the electors of marginal seats.

I challenge the government to rise above its more base instincts and make a genuine effort to address the operations of criminal motorcycle clubs. In 2008 we were told by the Labor government that their initiatives would solve the problem of criminal motorcycle clubs, yet here we are today considering even more draconian laws. The failure to use the police powers enacted in 2008 does not necessarily justify the return to this chamber to enact more legislation. Those 2008 powers were supposed to work and should at least have been tested.

Despite the protestations of the Attorney-General, the government has not made a convincing case for the introduction of this legislation or its impact on criminal motorcycle clubs. If history is to be any guide, this bill will only have a limited impact if enacted, but at the cost of irreparable damage to the democratic fabric of our community. I look forward to continuing to debate this bill at the committee stage.

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