Wednesday 29 August 2018
Hansard of the Legislative Council

Second Reading

[3.27 p.m.]
Mr FINCH (Rosevears) - Mr President, I might just clarify that when I referred to the member for Windermere as 'the guru', it was not a broad suggestion that you are the guru of all things legislative. 

Mr Dean - No, I am not.

Mr FINCH - I was referring to your role as a police commander.

Mr Valentine - Are you in damage control?

Mr FINCH - No.  The member for McIntyre had a group of students here who came in to visit.  In talking to them, I mentioned how fortunate we were in this place, in a debate like this, to have a former police commander with that knowledge and firsthand experience to impart that to us.  Because we all come from different backgrounds, we all have different things to contribute and different ways of making our presentations to parliament. 

I have always found that whenever we have police matters, the member for Windermere can give us that firsthand knowledge of what it is like at the coalface of policing.  Whether I agree with him or not is a moot point.  However, I did listen carefully.  Of course, there is that synergy between your good self and the police force and what they are trying to achieve.  It is quite notable that we have had the police out in force with those briefings that you called.  You are 'briefed out'.  'Fortunate' might be the word to use, to have the high-powered people from the police department coming to give us the information we are after and to be open to questioning and trying to allay the concerns, fears or dramas we might have with the legislation.  It has been a good process.  We were caught on the hop with nearly two hours of briefings this morning and then going straight into the debate.  Sometimes a gestation period is needed so we can see how the information we get sits with what we have already constructed in our minds, and how that might change or vary what we think. 

I had a great deal trouble of with this legislation and in getting my head around it.  As the member alluded to, I can relate to people not understanding it, because it was difficult to find what the thrust of it was, where the police were going with it, where the minister was going with it and what they were trying to achieve here.  I can understand that misunderstanding by people in the community. 

I thought this legislation was preposterous when I first read it in its original form.  It is flawed, as we have discussed.  I am calmer now following our close scrutiny of this legislation and with the understanding that possible amendments in Committee might improve it.  Had we proceeded with it in its original form without amendments, I would not have wanted it to go through the Committee stage.

I am comfortable doing that now because, while I still think it is flawed, after the briefings I have a better understanding of what the bill is about.  I will be interested in the debate on the amendments to see whether they improve the bill and make it one we can confidently move forward with.  I still have concerns that might not be the case, but I will wait and see.  The Government will continue to say it has a mandate for the bill.

Mr Dean - I do not think it has mentioned mandate at all.

Ms Rattray - I have not heard that.

Mr FINCH - I just thought I would mention that to see if there was any reaction.

Mr Dean - You did.  They have not mentioned it.  You have.

Mr FINCH - Because people do not vote on every plank of a party's political platform and that process is one that I have talked about before so no need to go on with that.

Mr Dean - I do not think the insignia bill was raised during the campaign.  To my memory, it was not, but it could have been.

Ms Forrest - It was in the 100-day plan.

Mr Dean - They did not rely on it.  They did not talk about it during the campaign.

Mr FINCH - Thank you.  I received a pile of emails on this matter, but the only arguments I have read supporting this bill, which concerned me, were from the minister and members of the police hierarchy.  Nobody contacted me in support of this bill.  Nobody said they are living in fear of people with insignias emblazoned on their jackets or on their body. 

I suggest that when there is not a balance of opinion, we need to carefully consider something like this.  When the opinion is coming from only one side, you need to step back and ask if there is a point here:  why is there no feedback from the community saying this would be a good thing? 

I talked to a friend of mine who is a publican, Nick Daking, and asked whether he had encountered any issues or problems at Sporties Hotel with members of OMCGs.  He said they had been there.  He told them -

You can come in.  I will shout you a beer, but you are going to have to take your colours off.  Hang them up in the other room. 

They did.  They had a beer, thanked the publican, put their colours back on and away they went.  That is just one example.  That was amenable.  They had not come to collect any money.  There was no debt to collect.  They were not there for trouble.  They acted in a law-abiding and considerate way.

Ms Rattray - Do you think he will shout everyone a drink?

Mr FINCH -  He shouted them all a drink.

Ms Rattray - But everyone?

Mr FINCH - We can workshop that.  Let us give it a try.  Do not wear your colours, though.  You will have to hang them up in the other room.

The minister is quite right in linking methamphetamine distribution to some motorcycle gangs.  I would argue that is what is occurring on the mainland.  We are hearing about the concern that it will increase or come to Tasmania because it is seen as a new opportunity.

Last year's Australian Criminal Intelligence Commission report on organised crime acknowledged that outlaw motorcycle clubs are entrenched in the importation, manufacture and distribution of amphetamines or methamphetamines, with many of them using legitimate industry to conceal their activities.  That is where it must be very difficult for police. 

As to uniforms and everything, we heard also from the police that they are moving into other areas of operation and they do not dress as you would expect.  Whether they are up at a higher level and they get the drug mules down below to do the dirty work, as we have heard from the police, it is the dirty work that goes on down with coercion and recruiting.  That is where -

Mr Valentine - Outside the club, not members of the club, perhaps.

Mr FINCH - The minister is also quite right when he says that outlaw motorcycle clubs like the Rebels, the Outlaws and the Bandidos are part of worldwide franchises.  He is also correct that some people feel intimidated by some motorcycle gang members, mainly on the mainland.  But at least law-abiding people can identify them by their colours and avoid them if needs be.  It could be argued that most of these problems involve mainland motorcycle clubs that sometimes visit Tasmania.  That is different, of course, to what the member for Windermere was saying and what the police might say to us, too.  When you are law-abiding and going about your normal life in Tasmania, you are not privy to those activities.  We have to trust what the police say to us, what the intelligence is and what we are being told.  I have no reason to argue against that.  That is why I was interested to hear what the member had to say and what the police had to say at the briefings.

The minister says this proposed prohibition will only apply to identified organisations and not law-abiding motorcycle enthusiasts and motorcycle clubs.  However, we have heard that people in those clubs are worried by the proposed legislation because they do not have the full facts of the matter.  That is what happens here when we explore legislation:  we get the facts of the matter; we try to get both sides of the argument and what is actually going on.  People get emotional with their decision and the stance that they take on legislation because they have scant knowledge.  It is normally an emotional reaction to what is going on and a lack of knowledge about what is being attempted here.

The Minister for Police, Fire and Emergency Management said a number of prerequisites and legislative safeguards have been put in place to avoid worrying law-abiding motorcycle clubs and participants.  The minister also said -

… an identified organisation must be prescribed in regulations on the recommendation of the Minister for Police, Fire and Emergency Management.  These regulations will of course be subject to the usual scrutiny and oversight of the Subordinate Legislation Committee. 

We have seen that questioned during the presentations here, and then supportive amendments or processes allay concerns about that.  To quote from the second reading speech -

The minister may only make such a recommendation if, having first regarded the advice of the Commissioner of Police, they are satisfied that the wearing or carrying of these items in public places may cause members of the public to feel threatened, fearful or intimidated; or may have an undue adverse effect on the health or safety of members of the public, or the amenity of the community.

Therein lies the original problem, as could be observed.  Prohibiting insignias was to be solely the decision of a police minister with the advice from the police commissioner.  We have had the spotlight on that.  I think the Government has recognised there may need to be an interlocutor there - maybe the Attorney-General will be the person who steps in there.  We also heard - I am not sure whether it was from Civil Liberties Australia or the Australian Lawyers Alliance - that it should be independent advice.  The perception is the Attorney-General might not be the independent person who might take a hand in helping make these decisions.

Ms Rattray - They suggested the court.

Mr FINCH - Yes and a court is where they would be able to envisage a process independent to the minister, the Attorney-General and the police.  All the emails I spoke of earlier were opposed to the bill in its present form.  A number say that recent violent events involving motorcycle clubs have implicated mainland clubs, not long-established Tasmanian clubs.

One correspondent pointed out only Queensland bans the wearing of colours, although South Australia bans them at airports and licensed premises.  Another asks why someone would commit crimes or intimidation wearing branded clothing.   Somebody referred to the tattoos on the bikers' arms.  Most emails I received expressed abhorrence of the criminal activities and argued there were already measures to deal with them.  I quote at random some of the emails I received -

The only way to address the problem is to put pressure on those who are spreading guns and drugs.  Those bikies seeking to live in such a way will soon find Tasmania too hot for them and they will leave.  Banning an insignia will have no effect on those who abuse the laws.

Another one -

The police already have enough power to enforce the law, no way ever should the power to ban what citizens can wear etc. be given to one or two people.  Use the money for better police equipment, technology advancement so that the real criminals are actually caught.

And another -

If a person is breaking the law this person should be charged by law as an individual through fair trial and due process just as any other member of society should be.  All of these groups or associations have had charges laid upon them and convicted at some stage, yet not any of them have been forced to be told what they can wear or who they can be friends with.  If they break the law then they should be charged and dealt with as individuals.  The police already have the laws and power to do this.

Ms Rattray - The general comment right through the emails was that if the laws are not already strong enough, strengthen them.

Mr FINCH - I put those examples before the Chamber to show people who read Hansard or who are following this the information we receive as legislators.  This is the information provided to us, to support their negativity towards this bill.  It would seem the overwhelming opinion is sufficient laws already exist to deal with drug dealing, illegal weapons and other gang activities.

I usually place store in the Law Society of Tasmania and it opposes this bill as it stands.  It says that to criminalise conduct that at present is perfectly legal requires a sound evidentiary basis, which is lacking.  The LST pointed out that the amendments are not restricted to motorcycle gangs and might apply to any organisation that wears a prohibited item.  The minister need only be satisfied that wearing or carrying a prohibited item may have a certain effect. It is the society's view that the test is too easily satisfied.  The bill does not indicate the state of satisfaction the minister must have. For example, does the minister have to be satisfied on the balance of probabilities to a reasonable level of satisfaction or higher?  It is not appropriate that an identified organisation can be classified by such regulations.  Being classified by regulations severely limits the ability of a court to review the minister's decision. 

Finally, relating to the above point, the bill does not provide any appeal mechanism so the Law Society has reservations.  They indicate the direction amendments may need to go.  When I drafted this speech, I thought we may need to go back to the drawing board.  However, the way it has unfolded I think the amendments may satisfy members of the Legislative Council.  I am more at ease with putting this bill through to the Committee stage.

We received a well-argued submission from Civil Liberties Australia, to which I gave some weight.  I quote the submission in part -

… we do not believe it is appropriate for government to assume the role of determining which groups can wear identifying badges and which can not.  We should charge people with the crime they commit, not the badges they wear.  Where members of a group can be proven to be planning the commission of a crime, we support existing laws of conspiracy (section 297 Tasmanian Criminal Code) to have those people charged.  We note the crime of conspiracy attracts a significant maximum sentence of 21 years imprisonment.

We acknowledge others in parliament and in the community will disagree with the above given the objective of the proposed law is to create a safer community.  We respect those views but do come to a different conclusion. 

Regardless of whether the principle underpinning the laws is agreed to or not, there are issues with the bill as drafted.

These are strong reservations from both the Law Society and Civil Liberties Australia.  Those submissions were enough for me to question this bill in the form first presented to us.  I am starting to feel a little more comfortable with the process as the briefings unfold.  We are great supporters of the police and the laws they need to interpret.  We send bills forward into acts.  We want law and order, and we want people to live in security and safety so it is necessary for us to give the police the confidence we support their work.  It is important we get the consequences of our bills as correct as we possibly can.

The unintended consequences:  it is very important we drill down.  Even with all our scrutiny, things leak through that embarrass us at times.  We have to do our best to get to the nub of what might occur, if this bill and others become acts.

Mr FINCH - I am comfortable where we have landed with this amendment to the amendment.  In respect of this notification, it is in the Hansard that the commissioner will write to these groups.  I am not sure how the system works these days, but registered mail is a way to secure the commissioner's own records and edification to make sure it can be proved those letters went out and were delivered to the addresses they needed to go to.  Then you have the evidence and the paper trail that the notification had actually gone out.  I appreciate what the member for Launceston said in respect of the way we conduct ourselves and the way the commissioner and the police conduct themselves.  The appropriate courses of action must be taken irrespective of how it is going to be treated, even if it is with disregard at the other end.

Our part of the process needs to be neat and tidy.  I am not sure how the system works these days but I am sure registered mail would be a way of proving that part of the equation has been done.  It is here in Hansard, registered loud and clear, that is the process that is going to take place.  I am comfortable with this amendment.