Wednesday 26 September 2018
Hansard of the Legislative Council
Launceston - Motorcycle Noise Restrictions - Infringements
Mr FINCH (Rosevears) - Mr President, considering the slowness of the last opportunity to get up, I had better get up because I might miss the call.
This is a tough one. When we started on the prohibited insignia bill and I found my way clear to support that, the warning was, 'Yes, but wait for the consorting bill to come through; that is going to be trickier'. So it was with some interest that I waited for this bill to come forward and for information to enlighten us to come to us.
When we had the first briefing from Assistant Commissioner Frame, David Agnew - I am not sure of his title - from New South Wales, and Mr Keane, I was enlightened. I thought it was a good briefing. I thought, 'Right, this is what it is all about; this is okay. What was the problem worrying them about the consorting laws? It is not an issue.' We were told it was about repealing the old legislation. The impact of organised crime is growing, and this is broader and about criminals. This will be a criminal-to-criminal situation. It is based on New South Wales legislation, which has been challenged. It is constitutional - that was the assurance. It was successful. The New South Wales Ombudsman did a big investigation in 2016.
This legislation is to make sure it is fair and reasonable for the community; it is not only about bikies. It was highlighted that the Nomads had moved into Tasmania - which we have to be concerned about. That is my bit. With that group and its history of violence, we heard about organised crime and drugs et cetera - a name was given and linked to the Nomads. The police have had two years to prepare, so the understanding from the briefing was this has not been rushed. They have given plenty of time to think about this - two years in preparation and all states updated. I am not sure if they mean all the states updated their legislation. I am getting some nods from over there, so all states have updated their legislation.
This legislation is tighter and stricter. The beauty we have in Tasmania is that we are able to a look at what has occurred in other states and tailor it to suit what we need in Tasmania. I am as comfortable as anything. The note I have made says that it is tighter and stricter.
Warnings must be in writing - at least a police officer of 30 years experience, a commissioned officer or an inspector and above will actually be part of the process. The process has to meet the objectives of the bill.
Page 7 - I must be on the briefing notes we received - trying to cut out organised gangs or networks is a good thing. Serve the notice, then they can appeal to the commander or the commissioner. Operational and administrative decisions - I am not sure what that was in connection with.
The warning lasts for five years. Glen Frame stressed this is very time-consuming for police and you can understand why they are not going to run round handing out these warnings willy-nilly because it is a good thing to do. They have other things on their mind and do not have the resources to waste on something bordering on frivolous to overdo this opportunity.
The Solicitor-General advised this legislation is sound. Police will be happy with the review process. The New South Wales Ombudsman reviewed the process after three years. This is the line Mr Frame talked about as time, effort and resources are not available to police to be overt about this. They will not be issuing many of these. There was also talk about the Bandidos expanding into Tasmania.
From those notes I took and from listening to what was presented to us - from Mr Frame, Mr Keane and from our chap from New South Wales - I am quite relaxed about the bill.
Mr Dean - It is a pity we had not dealt with it just after the briefing.
Mr FINCH - However, I have pursued other information, particularly with my legal person who gives me advice. I think how unfortunate it is, Mr President, that you are not able to join in this debate; with your vast experience of the court processes and the legal processes, we have not the benefit of hearing your prognostication on this bill and how it will have impact in the court process. That would have been helpful. Of course we can privately consult with you but -
Ms Rattray - Some of us may well have done that.
Mr FINCH - Members may very well have done that; why did I not think of that earlier? I did take my own legal advice and I hope that will give members some idea of my concerns now. This is the advice that came to me; I will then refer to what we heard today, which was also not entirely positive -
The consultation period for this critical Bill has been abysmal. Yes, a discussion paper was circulated but meaningful analysis can't take place without knowing the exact legislative form. The Bill was debated in the lower house 2 days after it was tabled and is being debated by the upper house a mere week later. Without any disrespect to the members, unless the precise effect of the amendments that have been proposed are made clear, there is the real risk of irreparable harm to the community. This is the kind of thing that should have seen consultation from the Tasmanian Law Reform Institute, which is the body best placed to judge the real-world effects of laws of this kind.
To digress, I do get the sense that there is some uncertainty about aspects of this bill. Further advice could have been helpful -
A lot of faith is being placed in the police to use discretion correctly in deciding not to issue a warning and in deciding not to prosecute. Parliament should pass laws that do not depend on faith, in particular office holders; checks and balances exist because there may come a point when discretion is not correctly exercised.
I made that point during the briefing as well -
The definition of 'serious offence' is hopelessly broad. On a single night, for instance, police could issue official warnings to probably every single person in homeless shelters or in housing commission locations such as Stainforth Court. This is an extraordinary level of power to be given to police when the case for this tool being needed has scarcely been made.
Whilst the Forrest amendments would probably cure the constitutional issues, they still will result in a court not providing key information to a party. A court cannot know how important the information is to the party without hearing from them. In practice, every time an informant says he or she is at risk of harm, in the absence of contrary evidence, the court will need to side with protecting that informant. The risk, therefore, is that the Forrest amendments will achieve nothing. The police arguments that when warrants are obtained there is no disclosure is irrelevant. Warrants are not granted through a judicial process but an administrative one. If the underlying material is relevant on the trial of a case, the court will still compel disclosure.
The police argument that one has an opportunity to consort after issuing a warning is dangerously misleading. The elements of the crime of consorting will be proven when there has occurred two occasions of consorting. To suggest that you can commit the first element without consequence and then have to prove your innocence with a defence is an appalling state of affairs. This Bill is far too important to be decided on the fly.
That is information from somebody who briefed us this morning. It is the latest information from Fabiano Cangelosi of the Australian Lawyers Alliance.
The member for Mersey quoted Civil Liberties Australia. I will make a couple of points on that. In the lead-up to the March state election, the Liberal Government expressed its support for freedom of expression. In his letter of reply to Civil Liberties Australia, the Premier stated the Tasmanian Liberal Party's belief in the most basic freedoms of parliamentary democracy - the freedom of thought, worship, speech and association.
In assessing the bill we ask that you hold the Government to its pre-election support for freedom of association. Freedom of association is regarded as a foundational right which serves as a vehicle for people to enjoy other important rights. The member for Mersey provided a quote from Alexis de Tocqueville about that.
I will go to our briefing this morning. I thank the Government and the Leader for arranging the briefings. It was suggested there should be an inquiry into the bill. I am not going to prosecute that. I will wait to see how that sits with other members. My personal legal adviser thinks that is the way we should have gone with this piece of legislation. I do not think there is any urgency with this legislation or need to rush it through - probably before the end of the year would be good.
There might have been an opportunity for an inquiry by us to clarify where this legislation now sits. The briefing this morning by Chris Gunson from the Tasmanian Bar gave me cause for concern. He explained that the role of the Tasmanian Bar was independent and that the concept of the rule of law weighs heavily with them. If offered a brief, they must take it. He explained the way he operates within his business. He believes this bill impinges on civil liberties. As the member for Launceston said, the balance seems to work out all right. The bill, he stressed, needs to have checks and balances. He suggested they were there and were rights versus civil liberties. He also said he cannot see success with prosecutions with this bill. Think about the impost on the time for people and the cost to people to fight this, to hire a lawyer, to get into the court system.
Mr Dean - New South Wales - and that is what ours is mirrored on - has had success in the courts, and the courts operate similarly right throughout the whole country, do they not? To suggest they will not be successful or might never get through the court is a strong statement to make.
Mr FINCH - I will let Chris know what you said.
Mr Dean - I think Chris would know.
Mr FINCH - You will agree to disagree with Mr Gunson.
Mr Dean - I have admiration for Mr Gunson.
Mr FINCH - There are other messages coming in here, Mr President.
Police need tools to disrupt and destroy. We all agree with that. It was made clear during the insignia legislation that we all supported the police and what they were trying to achieve. That is not an issue. Chris Gunson said that unintended consequences come into play. That is the warning from Chris. He said that this helps police. They are pleased with the safeguard of a commissioned officer to assess the caution. He thought this was a good part of the process. There was benefit in having the review in the next parliament. He thought there were the constitutional issues in respect of keeping evidence or information secret. The member for Murchison's amendments look to address this circumstance. Court proceedings should be in public; the exception is for secrecy. The court should apprise this - in the bill it is the executive of government that does this rather than the courts, and that concerned him.
Ms Forrest - The executive through the police is what my amendment is seeking to address.
Mr FINCH - Yes. I am reading from the briefing notes I made this morning. They are good notes up to a point. Safeguards are being considered with provisions - it is impossible to draft a proposition for the Aboriginal community. Kinship is different. We will find out about this when we talk about the amendment by the Leader and by the member for Rumney. That was an interesting contribution to the debate from Chris Gunson.
My own lawyer has read this in a fulsome way and in his report he says his concern is that recent legislation appears to be giving more and more power to police, 'tantamount to becoming a police state'. Another concern is all the briefings being given to parliamentarians seem to be from police; there is little briefing from other groups that consider civil liberties. He would not be aware we had briefings from the Australian Lawyers Alliance, the Tasmanian Bar, and also the communications from Civil Liberties Australia.
Mrs Hiscutt - Anyone who wishes to brief us is more than welcome. I have never knocked anybody back.
Mr FINCH - I understand, Leader. That is a misreading of our process. I wanted to highlight this is what came through. The initial legislation - the insignia laws - was reportedly needed to stop criminal organisations. It was directly levelled at the bikies, who are creating concern and trepidation in the community. This gave power to the police to recommend certain groups as being identified associations with the wearing of insignia by participants in the identified association.
Now, the police are seeking a much wider power - that of consorting - which is no longer limited to those nefarious bikies, but is much wider. Then, of course, we have the police seeking power to demand records from various organisations. There is a risk all of this will lead to what has been called 'lazy policing'. There are cost factors for members of the public in all this legislation. There appears to be a lack of understanding about the cost to a person to challenge the notice. That was what I highlighted a moment ago about going through the court process and the cost of actually doing that.
Let us consider the steps in the current legislation of consorting.
(1) A commissioned officer for some reason which is undisclosed satisfies him/herself it is desirable, and in furtherance of the act authorises the giving of a notice, an official warning.
Mr Dean - That is not right? The constable or the other police officer further down in the list has to convince the senior officer of the fact there needs to be an order or a warning given. That is not quite right.
Mr FINCH - No, what happens is a commissioned officer, for some reason which is undisclosed, satisfies him or herself it is desirable, and in furtherance of the act authorises the giving of a notice, the official warning -
(2) This notice is then given to a police officer, not a commissioned officer, to serve the notice.
(3) A reading of the legislation reveals that the notice does not give a reason for the serving of the notice. The sole requirement is that it identifies a particular person who at some time during their lifetime has been convicted of a serious offence and informs the recipient of the notice that it is an offence to consort with that person for a period of five years.
I will digress from that for a moment. Mr President, you would be aware of my concern always about people making mistakes at a young age and then having a conviction on their record which limits them with their job prospects and with their desires to travel. It tarnishes their future. I am always on the guard to make sure that people be given that second chance, that opportunity to learn from their mistake and not have a criminal record or conviction against their name. As young people, did we never make a mistake? Hello! We have to be careful there.
I know it is a serious offence that has to be committed, but anyway -
Mr Dean - It is very seldom that a conviction is recorded against anybody who has not been given previous cautions and warnings and who has not appeared before a court probably on a number of occasions. They are normally convicted and given probation orders without convictions being recorded. For a conviction to be recorded, it normally has to be a very serious matter and/or there have been a number of offences or serial crimes committed by the person.
Mr FINCH - Apprise me of this: is there a retention of those misdemeanours through the process because the people have a number of situations?
Mr Dean - Court appearances are recorded, yes.
Mr FINCH - I might be overzealous in protecting young people from that circumstance; however, that is still on their record.
Mr Dean - Magistrates protect these people in many instances by not recording a conviction. A magistrate often does that.
Mr FINCH - Yes, but would that charge still remain on their record?
Mr Dean - It may be shown, but it is not a conviction.
Mr FINCH - Yes, but there still is a record of some wrongdoing that might have been simply a mistake.
Mr Dean - Very seldom.
Mr FINCH - I am digressing there, but that is a concern I have. I have noted it before in the House. To continue -
(4) It should be noted that a serious offence is defined as not just being a crime, but any serious offence that is indictable, whether it is heard on indictment or summarily, like dangerous driving, negligent driving, causing death et cetera, but the legislation also defines any offence under specified legislation.
(5) A person convicted of having a packet of bullets in his possession and not being the holder of a gun licence; a person convicted of possession of a plastic gun, just to name a few.
(6) Under the Misuse of Drugs Act, possession of a bong is an offence, and with the current wording utilised in the bill, could be used for the issuing of a notice. It could of course be challenged, but again, at what cost? The Misuse of Drugs Act does differentiate between major and minor offences. Why is this not adopted in the present bill? The serious offence deals with manufacturing, cultivation, trafficking and supply. Is this not what the bill wants to address? Why are the police pressing for such a wide range of offences if they are concerned about bikies?
Again, as we heard in the briefing, it was about criminal to criminal and not just bikies.
Mr Dean - I covered some of that by the statements about the real criminals nurturing somebody who has a minor offence who they know is involved in drugs, for instance. They start nurturing them to assist them in their criminal escapades. That is another reason for it.
Mr FINCH - Yes.
(7) Question: what is the relevance of including the Sex Industry Offences Act 2005; and
(8) Similarly, why is the Classification (Publications, Films and Computer Games) Enforcement Act included?
We heard that could be about pornography and child exploitation so that might be appropriate to be in there.
(9) And then the catch-all, if a person has been convicted of an offence in another state or country which, if it had occurred here, would have been an offence. The suggestion is the broadness of this paragraph should send warning alarms to all parliamentarians. How can this provision be justified in a democratic country? What has been the reason given for such a broad provision?
(10) The next step in the process is if a person wishes to challenge the notice, they have 28 days to seek a review by notifying the commissioner in writing.
(11) The commissioner does not undertake the review (see section 20D(4)), but he must as soon as practicable require another commissioned police officer of higher rank to review the warning. What does he or she review? A fellow commissioned police officer has authorised the warning and the notice has identified the person as having a criminal conviction. There is no requirement that the offence be revealed, so one would assume the person receiving the notice has to assume it is accurate.
The person cannot seek clarification because it would be a breach of the privacy laws. What does the more senior commissioned officer review? I assume he looks up the police record and then, by notice in writing, says he has reviewed it, and indicates whether in his opinion the notice was justified. Again, he or she is not required to give any reason as to why he or she was satisfied. Can you imagine the outcry if courts where no longer required to give reason for their decision apart from a bland statement that the court was satisfied? This is contrary to the rule of law.
(12) The next step follows that if a person wishes to challenge that notice, they have the right to seek a review in the Magistrates Court. It would appear that the hearing is a hearing de novo from reading section 20E(1).
(14) But then the duties and powers of the court are limited by subsection (2) in that it excludes the application of Division 1 of Part 4, duty to give reasons. Section 21, the duty of decision-maker to lodge material documents with the court where a decision is reviewed, and Subdivision 2 and 3 of Division 2 of Part 4.
(15) Subdivisions 2 and 3 of Division 2 of Part 4 are related to staying orders pending the determination of review and the powers of the court on review.
(16) Surprisingly, having assumed that the hearing is de novo, the bill appears to take away that procedure.
(17) Setting out the relevant section below:
26. Determination of review by Court:
(1) A review of the decision by the Court is to be by way of hearing de novo.
(2) In determining an application for a review of a reviewable decision, the Court may exercise all of the functions that are conferred or imposed by any relevant enactment on the decision-maker who made the decision.
(3) In determining an application for a review of a reviewable decision, the Court may decide -
(a) to affirm the reviewable decision; or
(b) to vary the reviewable decision; or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside; or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the decision-maker in accordance with any directions or recommendations of the Court.
(18) What can the court do apart from rubberstamp the decision made and confirm the notice? This is a total absurdity and the court is being hamstrung by the executive, something which happens in dictatorships, not a democratic society.
(19) To add to this, Part 3 of the bill amends the Judicial Review Act 2000 by taking away any right of appeal to the Supreme Court.
(20) There is a further limitation on the rights of an individual that is contained in section 20E(5), which enables the court to hear evidence in the absence of the appellant, his counsel or the public, a closed court. While the reason for this is understood to prevent disclosure of information relating to criminal intelligence, what happens if the court decides that no such risk is evident? Does the court have power to determine the court should be open to all?
(21) This legislation goes too far and requires a committee to investigate more fully its ramifications on the rights of the individual.
(22) The right to a fair hearing requires that individuals should not be penalised by decisions affecting their rights or legitimate expectations, unless they have been given prior notice of the case, a fair opportunity to answer it and the opportunity to present their own case. The mere fact that the decision affects rights or interests is sufficient to subject the decision to the procedures required by natural justice. In Europe the right to a fair hearing is guaranteed by article 6(1) of the European Convention on Human Rights, which is said to complement the common law, rather than to replace it.
The advice to me is that this bill in its present form strikes at the very heart of human rights and the rule of law, and goes well beyond what is appropriate to deal with the issue of organised crime. However, I will vote to put it into Committee because of the amendments that have been flagged. I do not know if I am in the minority or majority; however, after it has been through the Committee process hopefully the amendments will make it a better bill. However, I will need a lot of convincing to take away my negative thinking.
Mr VALENTINE (Hobart) - Madam Deputy President, I want to thank the Leader for the briefings. I also want to thank the various organisations and individuals who briefed us. Not all of them were pleased with the bill. I appreciate the situation the police find themselves in - needing to make sure that serious crime is combatted and we have laws that support that.
The bill needs to be fair. That is my concern, which has also been expressed by a number of members today.
Mr Dean - Are you suggesting we are all not being fair?
Mr VALENTINE - No, I am saying that it needs to be fair. What you consider to be fair might be different to what I consider to be fair. That is not to say you should not hold your opinion. You are a Richmond supporter; I am a Melbourne supporter. I am embarrassed and ashamed as a Melbourne supporter at the moment. We can have some frivolity, but this is a very serious matter before us.
We received communication from the Community Legal Centres Tasmania, which said it did not have an opportunity to comment during the initial consultation phase. As Leader, you are always fair and offer everybody an opportunity to present to us, and I appreciate that. All members would appreciate that.
It is good to be able to get every side of the debate, but it is important for the Government to bring in groups like the Lawyers Alliance and the Community Legal Centres - the civil liberties groups - to find out what their concerns and issues are. Then at least the Government can say, 'Well, we have heard those concerns. We might not agree with them, but we have heard them.' That way, some of these things raised during the briefings will be able to be dealt with much earlier.
It may not be to everyone's satisfaction. But to my mind, having a briefing today and significant things brought out, we have to be in a situation where we can absorb all and apply it. Quite honestly, it is very difficult. We are dealing with a number of bills over a sitting week. We all know sitting weeks can be hectic, especially when there are many briefings about different bills.
To have proper scrutiny, you need to have time to resolve in your own mind where some of the things raised actually sit in your thinking. There needs to be more of a gap between the time we receive the briefings and the time a bill is brought on. That is just a comment and I do not know whether all members would agree.
Mrs Hiscutt - There are times where I get criticised for doing it the other way around. Whoever asks for a briefing, I will facilitate.
Mr VALENTINE - You do. I thank you for that. That is good. But it would be good if there was just a bit of a gap sometimes to be able to properly resolve things. Nevertheless, it is what it is. We are here today, and it is being debated.
Mr Willie - You could move to adjourn it.
Mr VALENTINE - We could move to adjourn it. That is a possibility. I am not prepared to do that at this point. I have done my thinking. There may be others who also want more time. Some would say maybe it could have gone to a committee and be dealt with. We will see where this leads in other people's presentations. But at the moment I have presented my thoughts for consideration here. It would be good to have those alternative viewpoints up-front in the consultation phase rather than simply during a briefing.
I want to move to the letter from the Community Legal Centres. The part it brings out may have already been read by the member for Mersey - I am not sure whether he did - but I will read it, in any event. From Benedict Bartl -
Having now had an opportunity to review the Bill we are opposed to it being passed on the basis that it disproportionately infringes on the freedom of association as enshrined in international human rights law.
I will not read a lot, but I will go to Article 20 of the Universal Declaration of Human Rights 1948. I mentioned this at the last bill dealing with the insignia. In fact, an Australian was in the chair when this was passed. Article 20 says -
… everyone has the right to freedom of peaceful assembly and association. No-one may be compelled to belong to an association.
That is the other aspect of it. Article 29 -
… everyone has duties to the community in which alone the free and full development of his personality is possible. In the exercise of his rights and freedoms everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
That does not say that laws cannot be put in place to limit things, but it does talk about general welfare in a democratic society. The last part of that article -
These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
We know that is not law. It can only become law if it is included in a law within Australia but it is something Australia signed up to. It is important to remember that when you are attempting to change the law.
Benedict Bartl in his submission says -
Consorting laws infringe on international human rights. The right to freely associate with others is an essential component of a democratic society as it allows individuals to peacefully assemble, socialise and meet for common purposes. In other words the right to freedom of association is a foundation block for the exercise of many other civil, cultural, economic, political and social rights and is enshrined in the International Covenant on Civil and Political Rights, to which Australia is a signatory.
That document has a couple of points of interest. I will go through two of those. Article 21 is along the same lines to the Universal Declaration of Human Rights. It says -
The right of peaceful assembly shall be recognised. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Again, that little bit at the end might allow laws to be put in place to protect the rights and freedoms of others.
Mr Dean - It is probably a pity that those who are consorting for the purposes of criminal activity do not consider the human rights and requirements.
Mr VALENTINE - I said this last time.
Mr Dean - Do they? I know I should have picked you up on it then and raised it.
Mr VALENTINE - What I am saying is that in the operation of their clubs, it is important they recognise that people have rights.
Mr Dean - The human rights. Do they?
Mr VALENTINE - I said that last time. Article 22 -
Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety and public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
It goes on. The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights both make that statement. Australia is a signatory to both. They were the points made by Benedict Bartl. He says -
Persons convicted of crimes should not be punished both through a term of imprisonment and upon release by not being able to freely associate with others. As one commentator observed, the proscription of consorting is: 'inconsistent with the principle of justice and fair punishment that a person who has served and completed for a crime imposed by a court should then be subject to further punishment. In this case the person with a conviction is not committing the offence of consorting, but the effect is to punish that person by forbidding others from being in their company.'
Mr Dean - Only people with convictions as well.
Mr VALENTINE - But they have done their time.
Mr Dean - Yes, but the other person has to have a conviction as well.
Mr VALENTINE - Yes, and they have done their time. So you are saying after they get out of prison, they have done their time?
Mr Dean - Is that not reasonable?
Mr VALENTINE - They are now not able to meet with their friends.
Mr Dean - That goes with sexual offenders and lots of other things.
Mr VALENTINE - The point they make is the definition of 'convicted offender'; he says -
We believe that the definition of 'convicted offender' in the Bill is too broad, allowing persons who have been convicted of shoplifting or minor drug offences to be the subject of the proposed laws. In NSW, where consorting laws have been the subject of review by the NSW Ombudsman, it was recommended that a convicted offender should be defined as someone who had committed 'serious criminal offending' and defined as 'offences punishable by 10 years or more imprisonment'.
It was the view of the NSW Ombudsman that the adoption of this definition would result in serious violence offences, robberies and major drug supply offences being subject to the consorting laws, but at the same time guaranteeing that minor common assault, theft and drug possession were excluded.
I wanted to double-check that because someone can say, 'That is what the Ombudsman said' -
Madam DEPUTY PRESIDENT - You are best to direct your questions to the Leader.
Mr VALENTINE - I am not posing a question.
Madam DEPUTY PRESIDENT - I thought you were, sorry. It sounded like a question.
Mr VALENTINE - Sorry. I want to go to the original document of the Acting NSW Ombudsman. Section 11.3.1 in the report provides some interesting reading -
Central to clarifying the scope and application of the consorting law …
This is the NSW law, it is not the Tasmanian one, but this legislation was modelled on that -
… is defining the criminal offending that it is intended to address. The second reading speech for the Bill introduced the new consorting law, stated the intention of the Bill was to equip police to address organised crime and criminal gangs.
However, these comments related to the bill as a whole.
It is possible to define 'serious criminal offending' in various ways, including by reference to the maximum sentence available, pre-existing statutory definitions and/or the criminal procedure required to be used in any prosecution.
During consultations with police and the NSW Bureau of Crime Statistics and Research … we were advised that the activities of those involved in organised crime and criminal gangs are not limited to certain areas of offending or specific offences. It follows that to attempt to contain use of the consorting law to the prevention of specific offences may be counterproductive.
The term 'serious indictable offence' is defined in section 4 of the Crimes Act as an offence that is punishable by imprisonment for a term of five years or more. This definition includes relatively minor offences such as theft and minor property damage. For this reason, the definition is inadequate for the purposes of restricting the scope of the consorting law.
It goes on. I will not read the lot, but I will read the final component -
Taking into account the NSW Police Force's desire to maintain operational flexibility, we recommend that 'serious criminal offending' be defined in police policy by reference to the maximum sentence available and that an appropriate level would be offences punishable by 10 years or more imprisonment.
Mr Dean - You do not even get that for murder today.
Mr VALENTINE - It goes on -
This definition captures serious violence offences, robberies, break and enters and major drug supply. It excludes common assault, minor property damage, theft and drug possession. New criminal offences enacted that carry a maximum sentence of 10 years or more imprisonment would automatically fall within the definition without need for additional adjustment.
That is the Acting NSW Ombudsman's opinion there. I have put this, looking at an amendment. I want to see it come back in its final form before I move, but it will cover this.
In reference to the NSW law again, the Acting Ombudsman, Professor John McMillan AO, stated -
The breadth of the new consorting law means that the main constraint on its application is the sensible exercise of discretion by police officers.
In NSW there was a concern children and young people could be caught up in this. I believe this bill prevents that because it makes it 18 years of age.
I have talked about the definition of serious criminal offending and a possible amendment.
The other thing that concerns me is that Indigenous people have a different meaning to kinship. We must make sure we deal with that. The member for Rumney and the Leader have come up with an amendment that deals with that.
We received a submission from Civil Liberties Australia. It talks about the Government's attitude in the lead-up to the March state election where it expressed its support for freedom of association. It attached a letter from the Premier, the final page of which read -
The Tasmanian Liberal Party believes that all people should have the opportunity to advance to their full potential. We also believe in the most basic freedoms of parliamentary democracy, the freedom of thought, worship, speech and association.
Civil Liberties Australia points out this does not give freedom of association. The CLA says in assessing the bill that freedom of association is regarded as a foundational right that serves as a vehicle for people to enjoy other important rights.
The CLA makes one last comment that -
If the Legislative Council is satisfied that inserting more precise requirements into the legislation is appropriate a possible amendment for consideration is to … amend proposed section 20D(1) ...
Instead of -
A commissioned police officer, if satisfied that it is desirable to do so in furtherance of the objects of this Division, may authorise a convicted offender to be given a notice in writing (an official warning) specifying that -
(a) another convicted offender, named in the notice, is a convicted offender; and
(b) it is an offence to consort with the convicted offender within 5 years after having been given an official warning in relation to the offender -
the CLA proposes -
A commissioned police officer, if satisfied that the commission of an offence is likely to be prevented if two convicted offenders are prevented from consorting with each other, may authorise a convicted offender to be given a notice in writing (an official warning) specifying that -
(a) another convicted offender, named in the notice, is a convicted offender; and
(b) it is an offence to consort with the convicted offender within 5 years after having been given an official warning in relation to the offender.
After consultation it could be 'two or more', because people do not always meet in pairs. It just means there must be a concern an offence is about to be committed as opposed to just pulling people up at random and asking them if they are consorting. That is another amendment I am having drawn up.
The last is the right of appeal. That is where my biggest concern lies. It runs to a Magistrates Court of administrative appeals, and I am pleased to say it does that. The last bill did not, but when I think about this, I think, 'What is a fair go?' The term comes to mind because we all deserve a fair go. If we cannot have a fair go at the level of an appeals court, that is a great concern. I am referring to the criminal intelligence that may not be shared with the other party. I can understand why the police may not want to endanger somebody. This is serious and could endanger someone's life. If any criminal group found out somebody had ratted on them or given information, their life could be in danger. That is at the high end and not impossible. Most people appreciate that.
If I needed to defend my circumstance, I would want to know everything known. Chris Gunson, a lawyer with the Tasmanian Bar, said this morning there are ways to handle this. I have talked about the amount of time it has taken to handle these things - it is important we are fair; it is important the police have the tools to be able to protect society, but we have to make sure it is a level playing field.
Mr Dean - If you ratted on a violent criminal, you would not mind them knowing you have gone to the police and told them all about it?
Mr VALENTINE - No, this is the point.
Mr Dean - How?
Mr VALENTINE - There is a way of doing it without them ever finding out. This is what Chris Gunson was saying. Did you query him this morning?
Mr Dean - Yes, I did.
Mr VALENTINE - Well, he said there are ways. Those are my concerns and I have placed them on the record. You have had your say. No doubt you will get another say on various things during the Committee stage. It concerns me when we touch on fundamental rights. We have to remember this is not only about outlaw motorcycle clubs; this is about any criminal organisation. This is about the safety of the community.
Mr Dean - That is right - this is about community safety.
Mr VALENTINE - It is. But how far do you go getting the balance right, between treading on the rights of others for the greater benefit? This is on people's minds. At this particular point, I need to hear more. I will listen to the debate. I find it difficult to support the legislation in its current state, in the main because of the appeal mechanism. With the human rights statements made, the door is open for various laws to be put in place. I remain to be convinced it really is the right way to go and have on our statutes.
Mr ARMSTRONG (Huon) - Mr President, I thank the Leader for organising the informative briefings. They also raised some questions regarding this legislation which hopefully will be clarified when the bill reaches the Committee stage. One area I was pleased to see changed is that there will be a review of the legislation by the Ombudsman.
Ms Rattray - You are concerned about the resources?
Mr ARMSTRONG - Yes. Whether it should be the Integrity Commission or not, I am not sure but it will be worked out during the Committee stage.
Some of the scenarios put to us this morning were interesting. One was regarding Christmas lunch. If a group of people got together to have Christmas lunch, would it be consorting? It was also raised about picking up kids from the school, meeting at the corner store or meeting at a football match. I would appreciate the Leader reinforcing in her wind-up that this is not what this legislation is about.
We were told in the briefing that the legislation is an additional tool for police to use and that it will require an extensive amount of work to issue a notice. I do not see it being used if it cannot be backed up by evidence.
Other members have touched on many parts of the legislation, and its good points have been raised. Some amendments have been circulated, and it will be interesting to see if they are supported when we get to the Committee stage.
Some comments have been made regarding the Aboriginal community, of which I am a member. That was not acknowledged, for which an apology was made to me, and which I have accepted.
I support the bill going to the Committee stage. I will see what happens, what amendments have been proposed and whether they are supported, and whether I will support the bill at the third reading.
Mr FARRELL (Derwent) - Mr President, I have listened to this debate in our Chamber today and I listened to the debate in the other place last week. I feel this is very important legislation. I think there is general will with all members of parliament to make sure that this legislation is as good as it can be.
We have had some comprehensive briefings, and I must thank the Leader's office for arranging all the briefings. I take on board, too, comments other members have made about having the right time for briefings, and that is just terribly difficult because you can have them too early or too late - it never seems to be the right time. That is something very difficult to judge because you do not know what is going to come out of the briefings. I think all members will agree that quite a lot came out of the briefings from all sides on this legislation. I have travelled a path very similar to that of the member for Rosevears. Initially, on first briefings, I thought, 'Right, yes, I am pretty clear with that and that is pretty straightforward.' The more information we got, the more questions were raised.
The legislation has had a fairly quick passage, although I must compliment our colleagues in the other place. It was debated comprehensively in that Chamber. I must also commend the Government for accepting of some of the amendments that were put up in the other place. That indicates there is certainly a will among us all to make this legislation as good as we possibly can.
Members have raised amendments in this place. Some seem fairly straightforward. Others may have consequences we are not really sure about. That is something that, if the legislation does get to the Committee stage, will have to be debated on the Floor. Quite often that is not the most ideal way to prosecute the passage of a bill, particularly one that is as important as this. In many ways, to make this legislation as fair as possible will be quite a difficult balancing act. Whereas it seems pretty straightforward on the surface, I do not think there will be actions without reactions as we proceed through it.
Others have mentioned that we have not had sufficient time. Even though this bill was tabled and it has been out there for a while, it has had a quick trip through parliament. We have the time to get this right. We have seen other places bring in similar legislation, but having to fix that along the way. What we have here is very good legislation on the whole. It just needs a little refining. We could probably have the best consorting legislation in the country, which our police and ports could use with confidence, but I am not at all sure that pushing it through now and going into the Committee stage and coming up with amendments will be the most successful and efficient way to progress this bill.
It is certainly needed for community safety. It is certainly needed by the police as a tool. There has been a very cooperative approach in the parliament to date with the progression of this bill. I do not think it would take a great deal of time to iron out some of its rough edges so that things can be done properly and evidence could be taken on the record, which is important in backing up a bill such as this. This is important legislation. We want to have something that, in four years time, whatever the government is, whether it is the same one we have now or another one, we can look at the review and say, 'Goodness me, we got that right and it was good that we got it right.'
I would like to float this idea and give members the opportunity: I believe this matter would be neatly handled by a committee, one I do not think would need to sit for a long time, to take on board any police, legal and human rights concerns and come out with some solid recommendations so that we as Legislative Councillors can then pass this bill with a degree of confidence.
Mr President, to do that I would have to move that the debate stand adjourned for the purpose of referring this legislation to a committee. Some members have indicated that would be their thought; others have said no, so now everyone can have a talk about that.
Mr President, I move -
That the debate stand adjourned for the purpose of referring the bill to a committee.
Mr ARMSTRONG (Huon) - Mr President, I will not be supporting that we move it to a committee. We have spent all day today on this legislation. We have had witnesses give up their time to come to us all morning. We have gone this far now; we are almost at the Committee stage and I think we should proceed. I will not be supporting the adjournment.
Ms ARMITAGE (Launceston) - Mr President, I support the bill going to a short committee. I do not have a problem with that because, as I mentioned in my contribution, I have some concerns about this bill, some of which would be addressed with the proposed amendments. I appreciate the comments of the member for Huon that people have given up their time. The real purpose behind everything is to make sure that any legislation we pass in this House is the best it can be. While I appreciate people coming in and giving briefings and giving up their time, in the end it is important we come out with some legislation that is the very best it can be. I would be happy for this matter to go to a short committee.
Mr GAFFNEY (Mersey) - Mr President, just a point of clarification from the member. When the dying with dignity bill - I think it was in 2012 - came to the Table, a committee was formed to specifically look at the legislation to see if it was -
Ms Forrest - It did not get to this place. It was tabled downstairs and went to a joint committee.
Mr GAFFNEY - It did that so that we could look at the legislation. My question to the member is: are you proposing a committee to look at the legislation or are you proposing a committee to look at consorting laws from around Australia which were actually the basis for this legislation. There are two questions here: are we looking specifically at the bill and the amendments already been proposed or are we looking at it again? I acknowledge a lot of work has already been undertaken by the police and other groups about the actual issue. It would be helpful if you could clarify.
Mr Farrell - I am referring to the bill before us and the amendments proposed to make sure there are no unintended consequences. As good as the briefings have been, there is nothing on record.
Mr GAFFNEY - If through the process of investigating the bill and the amendments, there were some inadequacies or weaknesses, would you then allow any other amendment coming through the process to then be tabled?
Ms Forrest - That is a question for another motion, because this motion is only to adjourn the debate. There would require a separate motion to actually refer it to a committee, which would most likely be Government Administration Committee A with terms of reference.
Mr GAFFNEY - I was asking for a point of clarification; I was not picked up by the President, who is in the chair.
Ms Forrest - There is nothing to adjourn the debate as such.
Mr PRESIDENT - Honourable members, there are always the options. I have been advised you can agree with the principle, if that is the wish of the Chamber at the moment. You can agree with the principle and then once it gets to the Committee stage, we can do what the member for Derwent is doing or, alternatively, do it the way you are now.
What has been done in the past is if the principle is agreed, then a committee can be raised. That is after the committee has been agreed upon in the Committee stage. That is a way of dealing with it or alternatively as was requested by the member for Derwent a minute ago, to adjourn the debate right now for a committee. So there are two ways and I raised this for the information of the Chamber.
Ms RATTRAY (McIntyre) - Mr President, as an offering to the suggestion we adjourn, my preference would be to see if there is support in principle for the bill. If there is not enough support in principle around the Chamber, a committee is potentially going to be doing a lot of work and might not necessarily give an outcome at the end.
If we work out whether there is enough support in principle for the bill, then we can go to the Committee stage. I appreciate the member's concern, and that the member for Rosevears also has heightened concerns, so in that regard I would like us to continue into the Committee stage. Then we decide as a House whether it is appropriate to proceed, otherwise a committee could. In my time here, it is very difficult to do short sharp anything, let alone committees. Regardless if it is, I am not interested in which committee does it, because both committees work exceedingly well. That is one way it could go, but given we are almost in October, it is probably not necessary to have a short sharp committee. That is my offering; others will have their views and I am happy to listen to their views.
Mrs HISCUTT (Montgomery - Leader of the Government in the Legislative Council) - Mr President, the member for McIntyre's way forward is probably the best way to go - to move into Committee see if there is support, which I believe there is. Based on that, I would like to say the Government is very disappointed the Opposition is doing this.
In the other place, the Opposition agreed to support the bill if the Government supported the amendments put forward downstairs. That was what was agreed to. If it goes off to a committee, it could be buried there for ages. Organised crime groups would take a lot of comfort from the fact that it is going off to committee. A lot of work has been put into this bill. It is watertight. It has been tested in the High Court. The Ombudsman's report has been thoroughly read and noted and embedded into this bill. It has the most safeguards of all the states and territories in the country.
The police have put an awful amount of work into this. We have had briefing after briefing. I do not think there is any more information that can come forward on this bill. Listening to the second reading speeches, there is still misunderstanding of the bill. You can see I have a fistful of information on some of those concerns. I urge members not to go down this path after the work that has been done. The Legislative Council has done the work. They have listened to the briefings. I want to reiterate that the Government is very disappointed the Opposition is moving this way. The Government in the other place seriously believed that if we adopted some of the amendments of the Opposition, we would have your support with this bill.
Mr President, I urge members to move this into our Committee stage and to further the bill.
Mr FINCH (Rosevears) - Mr President, I hope I have not been lumped in with the Opposition -
Mrs Hiscutt - No, you have not.
Mr FINCH - I expressed the same concerns the member here is expressing and I think that may have been a trigger. There has been no discussion about taking this to a committee. I think this has unfolded on the floor of our Chamber. It is not a strategy to pass it down there, then knock it off up here and discombobulate the process. We are a separate process to what goes on downstairs. That has to be kept to the front of our minds. We run our race here in respect of the way we deal with the debate. The way we are going about it is quite appropriate.
You talk, Leader, about briefing after briefing. We have had probably five at the most in a short space of time. The member for Hobart was right in suggesting we are trying to gestate the information we have been given at the last minute.
I have already expressed in my second reading contribution that when I first heard the details of the bill - the member for Derwent has expressed that as well - we were comforted. We were prepared to support the police and the Government, as we did with the insignia bill.
As things have unfolded here and we have our last-minute briefings, we are finding the legal people are advising us there are concerns. You say you have much to answer when you get up. Does that not signal to you that there is a lack of understanding of the bill? That we need more time, that we need more of a process to understand the implications and unintended consequences? That is what we have to live with when we rush things and muck things up. That is dangerous.
Downstairs, the Government has the numbers. Up here you do not have the numbers. We have to be more cautious about the way we make our decisions. I am happy to put it into the Committee stage, to see whether the amendments make it a better bill. I did say I would need a lot of convincing. As I mentioned in my presentation, there was a suggestion that an inquiry would be an appropriate way to go, although I said I would not prosecute that. I would be happy to see how the debate unfolded, then put my vote accordingly. Now the member for Derwent, the Opposition, has come up with his proposition. I like the idea the member for McIntyre has suggested, that we vote on it in the Committee stage. I do not think there is a problem there. I have already said I am happy to see what unfolds, and then see whether it goes to a committee. I am not sure whether it would go to Government Administration Committee A for an investigation, but I take exception to a couple of points you made, Leader. I am happy not to support putting it into a committee at this stage, not adjourning the debate and taking it to the Committee stage.