Legislative Council Wednesday 26 September 2018
Ms FORREST (Murchison) - Mr President, when we deal with legislation taking away some personal liberties, it is important we fully consider it fully and in doing so not only weigh up the potential benefits to the broader community, but the rights, privileges and protections individuals should be able to expect and access in our society.
Generally there are differing views about consorting laws, but overall the people I have spoken to - people in the street as well as those much more knowledgeable in the application of the law - universally agree that we need legislation in this area to assist the police in managing organised crime.
We are not only talking about bikie gangs, but anyone engaging in organised crime. It is really important we remain focused on this. When you look at some other countries - even other Australian states - serious criminal networks are undertaking all forms of major crime and people just disappear on a relatively frequent basis, if what I am told is correct.
As well as money laundered, threats made and the coercion of people to participate in those networks, we know many of these offences are related to selling, trading and using addictive drugs. None of us want to see young people being dragged into that world, from which it is really hard to escape.
It is important not only to keep our focus on the big picture, but also to look at and consider what is in the best interests of all Tasmanians. When you step on the rights and privileges of a few, even though they might be a small number, there must be adequate protections. There need to be adequate protections to ensure they have rights of appeal and protections that prevent them from being unfairly treated, even though they may well be criminals or may have a criminal conviction in their past. That has been the challenge in dealing with this.
Mr President, I appreciate the briefings provided and the opportunity given to people to present to us. I have sought the counsel of others who understand aspects of this area of law enforcement more clearly than me. I appreciate the Government again giving access to the police to explain their role and function. Another important aspect is understanding the role of the courts. It has been helpful to hear from a variety of groups that have direct interest and experience.
A number of questions are raised about this legislation. Is it needed? Yes it is. Does it provide appropriate checks and balances? At the moment, no, particularly in the court process. I foreshadow one drafted amendment that members have a copy of. We will debate it at a later time.
It provides protections in terms of the process required before a person can be charged with consorting. New South Wales laws were heavy-handed when they were brought in and created a lot of problems. Notices could be issued in writing; they could be issued by a junior officer; there was no court appeal process. I am surprised they let the legislation get through in the first instance.
The NSW Ombudsman looked at the operations of the NSW legislation and made a number of recommendations, which are reflected in the bill before us. There is a more rigorous process around the issuing of a warning notice and what habitual consorting means.
In the briefing other members raised the question of habitual consorting or what 'habitually consort' is. The High Court of Australia made a determination of that and this section of the bill is drafted to recognise the High Court's comments.
The real concern raised by almost everyone with concerns about the bill is: what does a 'serious offence' mean? In Part 2, clause 5, dealing with proposed new Division III, the definition of serious offence is, under (a), 'an indictable offence, whether the offence is tried on indictment or summarily'. This picks up what we might consider to be minor criminal offences such as minor stealing offences, drug charges or similar things.
The amendment from the other place is to require a review that will assist in seeing whether the police are trying to overstretch their powers in this area. That is partly because of proposed section 20B -
The object of this Division is to prevent serious criminal activity by deterring convicted offenders from establishing, maintaining and expanding criminal networks.
It is up to the police to demonstrate to the inspector or above that the object of this bill is being met - for example, if there has not been what we might consider a number of more serious offences. The person has the right to appeal that to the commissioner and also a right of appeal through the court.
Some of the work the police are doing in this area - trying to manage or prevent organised crime - contains a lot of police intelligence or evidence that should be kept confidential. It needs to be protected because if released publicly or even to the person who has lodged the appeal, it could put other people's lives or health and safety at risk.
I understand this, but my proposed amendment will make sure the court makes the decision about what should be protected. This will also give the police the opportunity to withdraw the evidence if they disagree before it goes through the more public process. It should be the court that decides rather than the police being the judge and jury on what should be protected. It is about the separation between the judiciary, the policy and the application of the law.
Do we need this legislation? Yes, we need something in this area. Are there appropriate checks and balances? On balance there probably are. The review clause will ensure that if it is not being properly administered or people are being unfairly targeted, as in New South Wales, it will become very apparent after review. I agree with Chris Gunson, from the Tasmanian Bar - it is better to be done in the next term of government. It is always hard for a current government to say, 'Sorry, we had this wrong.' Even if it is the same party in government next term, it has had time to go through a process and can be looked at in a different light. The time frame is appropriate - it has to be completed within the four years, not started, it has to be completed. This means they have to start their work earlier, if they have these big delays getting the work done as the member for McIntyre talked about in the briefing. With a legislative requirement to do it, they will have the resources to do it.
Ms Rattray - I am going to ask that a commitment to resource it is given, otherwise what is the point? It potentially will be 408 days for a review.
Ms FORREST - They probably need to employ staff to do this. I believe the Government supported this amendment downstairs?
Mrs Hiscutt - They did.
Ms FORREST- They should be also willing to support the resourcing required to see it happen. If the checks and balances are not adequate, or if people are still being issued with warning notices, perhaps leading to a conviction for consorting later, that we would reasonably say were unfair or unjust, it will be picked up and those changes can be made. Yes, I know those people will be adversely affected along the way if this is the case. Look at New South Wales where the majority, if not all, of recommendations from the Ombudsman's report trying to deal with those injustices have been picked up in this legislation.
In the Committee stage we will deal more fully with the carve out of Magistrates Court (Administrative Appeals Division) Act 2001 provisions that do not apply in relation to the application referred to in proposed section 20E, which is the appeal to the Magistrates Court. We were told this provision exists in a number of other pieces of legislation, including the Firearms Act and the Sex Industry Offences Act. However, it is differs from those because it includes subdivisions 2 and 3 of Division 2 of Part 4; Subdivision 2 of Division 2 of Part 4 relates to the issuing of a stay.
I can see the police's point of view. We will prosecute this more fully in the Committee stage. A person is innocent until proven guilty. A person shall only be issued with a warning notice when they really deserve one, for want of a better word, or when the evidence is there to suggest this warning notice is needed. A person may not be able to consort with other people during that period if there is no option for a stay. The police say the stay can delay proceedings; it could take some months, up to a year, in which time the person could continue to work on building up their criminal networks. That is the concern for the police. I understand and respect their concern, but this is a process of giving someone notice that says they cannot do something. If they accept it and say, 'Yes, okay, I deserve that' - I do not imagine many of them will do that, but if they do - there is no issue from there. If they reject it and appeal, you would think they may either be trying to play it to see if they can get away with it or there is a legitimate concern and they feel they have been unfairly targeted.
A lawyer told me about a case that could happen in Tasmania or anywhere: there were two people of the same name with the same date of birth, and one was the criminal and the other was not. This could easily happen in those kinds of circumstances when information is being presented.
When I was married many years ago, there was another Ruth Emmerton, a nurse who worked at the Mersey Hospital in ICU. I was Ruth Emmerton and worked in the ICU in the Burnie Hospital, so when I got married the Nursing Board 'married her off' as well and I started getting all her mail from the Nursing Board.
Mr PRESIDENT - That is a crime, you know.
Ms FORREST - Yes, bigamy actually. Anyway, I did not realise what was happening for a while. I was thinking, 'Why am I getting two renewals and two this and two that?' When I looked a bit more closely, I noticed her second initial was an A, while mine is a J. So I contacted the Nursing Board and said, 'I am not sure this is right'. I do not know if the other Ruth had remembered to renew her registration without being reminded, but she could have been practising unregistered, thus illegally, because she had not received a renewal notice because they had married her off - changed her name - and sent her mail to me.
Those sorts of things can happen. There are legitimate reasons where people may be issued with a warning notice and it could be the wrong person, or it could be for a legitimate reason that, in the right of appeal and during the appeal, it will be found to be not an appropriate application and it will not go ahead.
My view is that the stay should remain and that both parties have to clearly give evidence to the court on why the stay should or should not be granted. I think that protection is already within the courts - the courts already do that - and that is a matter for another time. As far as injustice and whether the appropriate checks and balances are here, that is one area where the benefit may be too heavily weighted with the police and not with the individual.
It is not an overly long bill; it is only to replace a small matter of someone being a reputed thief, but it has a lot more checks and balances than other legislation has. Aspects of it, particularly if the amendments succeed in relation to clause 20E of the bill, and the provisions in that form have been tested in the High Court in Western Australia in Gypsy Jokers Motorcycle Club v Commissioner of Police - we know it will stand up in the High Court because it is basically the same as that one. We also have an obligation to do as well as we can to ensure that legislation we put in place is, first, needed; second, does what the policy position intends it to do; and, third, will not adversely impact on the members of our communities unnecessarily or inadvertently.
Some people need to see the actions of the law against them because they do the wrong thing. The opportunity for people to be remediated or to move away from a life of crime is a positive thing. You would like to think that could happen without having to send them to prison because that often does not work anyway.
If we can use a much more preventive approach where we stop people from engaging in criminal activity and help them to see another way, I think we will have a good outcome.
Part of this, as explained in a number of different ways, is that if a young person has found themselves involved in a network of criminals, particularly with regard to drugs, they are drawn into that world and then become a victim of that world because they need money to fuel their drug habit. They do not have the drugs and they are then provided with the drugs, but they have to do other stuff to earn the money. If you can put in place something that helps them distance themselves from that without putting them in jail - to find another way to do it - we might be saving their life and saving them from a whole heap of other unfortunate circumstances. We have to look at the whole picture. Yes, we are potentially threatening and infringing on the rights of some individuals, but we could also be helping some criminals who have done the wrong thing, are involved in the drug network and cannot find a way out. I can only imagine how difficult it is for young men to extricate themselves from such a situation even if they want to. Gangs and motorcycle groups have strict membership rules. I will never be a member of any of them because I am female.
There is real potential to have positive benefits from this aspect of the legislation, and that should not be overlooked. I support the principle of the bill. It needs some amendment. Other members may have some amendments that I will be happy to see as soon as we can, but I will listen to the other members' contributions on those matters.