Statutes Amendment (Serious and Organised Crime) Bill


Second Reading

Mr VAN HOLST PELLEKAAN ( Stuart ) ( 17:20 :15 ): I rise to put my thoughts forward on behalf of the people of Stuart and the opposition. As the member for Bragg, our deputy leader, said in her contribution, we are not opposing this legislation in this house but we do seek to improve it significantly.

Like all of my colleagues, I certainly support the police and the government in their efforts to fight crime—even more so when it comes to organised crime, because by definition, organised crime will be far more effective than disorganised crime or criminals operating on their own. There is no doubt that motorcycle clubs, or bikie gangs, however people refer to them, are involved in organised crime. That is not to say every single member, or even necessarily every single club is involved, but what I am quite confident in saying is that there is a very wide range of participation both at the individual and at the club level.

We want to help the government and the police fight crime, and we want to take as much politics out of this as possible. One of the difficulties we have had over many years is that the government has inserted a great deal of politics into this, going all the way back to Mike Rann many years ago who was an exceptionally skilled politician. He really made a great deal of hay in the sunshine with this issue. There were lots of headlines and a lot of attention-grabbing comments about bulldozing bikie fortresses and things like that, when the police have made it very clear that they never intended to bulldoze bikie fortresses. They certainly wanted to do what was necessary to make it far more difficult for criminal bikie gangs to operate.

The government will say that, if the opposition does not do everything that the government wants it to do, we are frustrating the police. Let me tell you, the government frustrates the police enormously with this issue as well and also causes them a great deal of frustration. The police just want to get on with the job and do the best they can, and guess what? Of course they want every tool at their disposal—that is quite logical and quite rational. They would like to have as much authority and as much legislation on their side to fight crime, and that is sensible from their perspective; I do not doubt that whatsoever.

One of the key things we need to look at is where are the criminals? I would say that a member of a motorcycle club who has never committed a crime, who does not benefit from anybody else's crimes, and does not turn a blind eye to them and pretend they do not happen, should be completely free to go about their business as they like. Any person who benefits from somebody else's crime, even though they may not commit it themselves, any person who turns a blind eye to somebody else's crime, even though they may not participate themselves or, of course, any person who actively participates—they are the people we have to get. The government understands that and is trying to bring in, in my opinion, a fairly blunt tool.

I am not of the personal view that we should just throw away everything the government is trying to do, but I am of the very strong personal view that it needs to be amended and needs to be improved so that it gives police the tools they need and is also fair to everybody involved.

I find it hard to believe that every asset that every motorcycle club owns, uses, operates and enjoys is the fruit of the labour in a completely honest, open and legal way of those members alone. I cannot accept that the assets that the clubs have are in absolutely no way connected with ill-gotten gains. I am not trying to sort of paint this with fluffiness in any way whatsoever. We need to get to criminals, but it is just not right to be trying to tar everybody with the same brush.

The police might consider that to be a soft approach. The police might well consider, 'Well, if we can tar them all with the same brush, then it's much easier to get at the ones that we do need and should get to,' and I understand that approach entirely. However, as the member for Bragg, the member for MacKillop immediately before me and others have said, and as others following me will no doubt say, there is a great concern on this side of the house about the government, because it has had no success attacking this problem through the courts and, in fact, has had a great deal of—I do not know what the right word is really—pain brought upon it by courts trying to impose legislation, trying to implement legislation, is now trying to take the courts out of this issue to a large degree.

Instead of what is the time-honoured tradition, as the member for MacKillop and others have said, of parliament setting laws, police enforcing them and courts making decisions about that enforcement and essentially deciding on guilt or innocence, or something in between, and setting the appropriate penalties, the government is actually trying to take a lot of that judicial responsibility for itself. Now that would be okay if we knew that this parliament and this government, or any government, Liberal or Labor, was always right. It is like the benevolent dictator argument: of course, nobody really minds that as long as the person always gets it right. But we know that is not the case, and the reason we have a separation between judicial and executive authority is because we know we do not always get it right—neither gets it right all of the time, but that is a very big issue.

I find it extremely surprising and a bit alarming that this is occurring at exactly the same time as this government is trying to give away some of its own authority with regard to the Parole Board, the government is trying to step away from having its own capacity to make decisions which override the Parole Board to make decisions. So, it would like to give that capacity away. At the same time it wants to take on capacity—take it away from the courts and have, not even the parliament, but just the government through regulation be the organisation that can determine what is a prescribed outlaw motorcycle gang.

There is not even a philosophical change here in the government saying, 'Well, we want to move everything in one direction. We want to move everything in another direction.' It is just moving in the direction it likes and totally opposite directions in different issues because it suits the government to do so because it thinks that it will look better in the public eye if it does so. Make no mistake, this is largely about politics, and the member for MacKillop put his comments on the record about trying to divert attention away from the economy and the budget and a range of other things, and I am sure that he is right.

The issue of identification of the prescribed OMCGs, outlaw motorcycle gangs, is a very important one. I took this issue exceptionally seriously when I was the shadow minister for police, and I still do. I learnt as much about it as I possibly could when I was the shadow minister for police. I know how hard the police work in this organised crime area. I have known police officers—two of them, in fact, long before I ever dreamt of becoming a member of parliament—who worked undercover in this area.

So, while I do not have any personal experience, I have some insight into the very significant risks that people like that took, and I certainly have insight over the last few years into the work that police do with regard to organised crime. I know their intelligence is extremely good, but it is not perfect, it is not 100 per cent accurate. So, for the government to be given the sole responsibility, based on the information that is available, to identify the outlaw motorcycle gangs that it wants to target, I think there is a very serious problem there.

I am in fact advised that three of the gangs, or clubs, that are on the list of 27 do not even operate in Australia. That might be because the police have given the government advice that they are on the way, or it might be because they think that one of the gangs is going to change its name shortly, or it might be because they have made a mistake. It might be because it is not actually meant to be on the list. I think that leaving all of those decisions to be made, essentially, by the Attorney-General in secret is not appropriate. I do support the Attorney-General, the police and the government having the powers they need, but it is not appropriate for them to have that sort of secretive authority when we know that mistakes will be made, not deliberately but we know that mistakes will be made.

I would also like to know: what does it take to get off the list of 27? We have been given the broad general criteria about what it takes to get onto that list, in the government's mind and in the mind of the police, but I guess it is pretty fair to ask: if a motorcycle organisation feels it has been unfairly targeted, and some do—I do not necessarily believe everything I am told, but some do make that claim—I wonder how they are going to be given the opportunity to prove that they have cleaned up their act and do not deserve to be on that list and so get off the list? I suspect that has never been considered by the government, but I would put forward that that is a very important aspect to consider if people genuinely want the streets to be cleaned up and for organised crime to be addressed and attacked and reduced and diminished. So, that is an important issue.

With regard to consorting, I understand that you do not want known criminals to have easy regular opportunities to get together. To put it very simply: if you have people that you know do bad things, you know they do them together, you know they do them far more effectively if they do them together and if they have a lot of opportunities to communicate about what they would do together, then of course it makes great sense to try to intervene in those opportunities. It is also quite reasonable for people to be very concerned about how the government would view their interactions.

I know the bill creates a new offence for a person who habitually consorts with convicted offenders after receiving official warnings by the police not to do so. That is a pretty broad definition, whether 'habitually' is three or four or ten times. The bill talks about: consorting is to be disregarded in reasonable circumstances with regard to family or lawful employment. That is something that everybody would have the right to ask in great detail: how are these decisions going to be made? A person who feels that they are hard done by is probably not likely to be too comfortable in trusting the police or the government's judgement of what are reasonable circumstances.

Another issue is with regard to a person being a participant and knowingly being present in a public place with two or more others from a criminal organisation. Again, that is a bit of a difficult and grey area. It is not hard to imagine that that could actually be used quite deliberately and inappropriately by people. It is not hard to imagine that if there are two motorcycle club members, two outlaw motorcycle gang members, in a place that another person from another club could deliberately turn up and could potentially be prepared to be a martyr and cop the pain for being one of the three people there together. That is not inconceivable at all.

It is not inconceivable that the police could arrange for a person who is a member of one of these organisations to conveniently turn up and become the third person at a place where two other of these people of interest already are. That would not be surprising at all to participate in that way. That may or may not be appropriate. It is not for me to judge how the police want to go about their work but it is a pretty fair thing for people to ask, 'How would we be treated? What is reasonable? What is not?' Two people understanding the law very deliberately only being two people together: there is a whole range of questions in that area, and that might be effective and appropriate for the police to do something like that, to apprehend two others that they really need to get when there is no other way that they have been able to get at them. I am not saying that is right or wrong, but there is a range of different ways these things could be used.

I say again, in wrapping up, that I support the police, I support the government, in wanting to fight crime. I do not oppose this legislation entirely. I am not of a mind to say this is no good, get rid of it, I cannot live with it, but I am not comfortable with it as it is. I think that there are amendments which will significantly improve it which the opposition will put forward. I think that it is very important that the government and the police consider those amendments so that the legislation can be effective with regard to fighting crime but not completely unfair to certain people and not completely contrary to the sorts of standards of law-making, law enforcement and sentencing that we have.

I will finish with regard to the government trying to push this legislation through, tabling it last sitting week and coming forward now saying it absolutely has to get through, that it is a huge rush. The last piece of legislation the government did that with related to the APY lands. The government came to the opposition and said, 'It is absolutely vital that you help us get this legislation through immediately. No time can be wasted because we need to use it immediately.' While we were not fully comfortable with it, we acquiesced to the government's requests and supported the government yet, to date, that legislation has still not been used.

Deputy Speaker, you will understand why we are not of a mind just to accept the government's pressure to rush it through as it is with no changes for two good reasons. It deserves to be changed and I think it is well worth taking the time to improve this legislation so that the police have the tools that they can use to fight organised crime so that the courts have something that is workable and useful for them to fight organised crime so that people who do not deserve to be unfairly caught up in this legislation are not unfairly caught up in this legislation.



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