Legislative Council - Wednesday 29 August 2018

Ms  FORREST (Murchison ) - Mr President, this bill has generated much interest and many emails.  I cannot recall getting any more than one or two at most in support of the bill.  In saying that, it is clear that some people who have contacted us, predominantly by email, do not fully understand the extent and nature of the bill presented to us.

I have taken the time to communicate with people who have contacted me to try to point out where that has been the case.  In the last couple of days I have not been able to get to all those people.  There have been too many.

As members will recall, prior to the winter break I was frustrated when my requests made through the appropriate channel - the Leader's office - for early briefings on this somewhat contentious bill were met with responses such as the minister's advisers saying no to this request because the bill had not been debated in the other place.  I was told this twice.

Had we waited for that to occur, we would have only had briefings at the end of last and this week.  This was totally inadequate and I said so in the adjournment on 11 July 2018.  My comments were picked up in the media, which led to a welcome change of approach, which I certainly appreciate.

I appreciate the two briefings with the commissioner during the winter break.  It is vitally important to understand this bill fully - what it seeks to achieve; the nature of the need for it - and to ensure that if such legislation is to be introduced, it does what it seeks to do, is robust, constitutes what is constitutional - as far as we can be confident any bill is until it is tested by the High Court - and does not unduly trespass on the rights and privileges of Tasmanians.

Natural justice must be afforded to all Tasmanians, including those whose activities, actions and preferences we may not personally support.  Natural justice must be afforded to those we agree with as well as those we do not.

The President in his role as a lawyer would have represented people who he might not have supported and agreed with, as was his or any lawyer's job.  The point is we cannot pick and choose if we do not like the activities of certain groups or people, but we cannot ignore their access to natural justice.

The police commissioner, Mr Darren Hine, has provided quite convincing evidence and advice about the need for legislation to strengthen laws related to OMCGs.  I respect Commissioner Hine and his opinions, and it is clear we need enhanced and more robust legislative framework in which to manage the illegal activities of outlaw motorcycle groups and all criminal organisations.

Not all criminals, or those involved in criminal organisations, are members of outlaw motorcycle groups and not all members of all outlaw motorcycle groups are involved in organised crime.  This bill on its own will not do much to assist police in preventing the illegal activities of some outlaw motorcycle groups.  It is one of the pieces in the legislative framework the Government is working on.  While I accept this, on its own this bill is not going to do anything about, for example, addressing the illicit drug.

I suggest that to a degree separating this aspect of law reform from what is needed in the broader area is playing politics.  I would much prefer to see the provisions in this bill considered at the same time as legislation to strengthen other related laws, such as the anti-consorting legislation, which we are told is not far away.  The Leader might like to reflect on this; she might not.  There was a 100-day commitment made to get this done - that is great - but let us give it the proper process and not try to rush things.

Regardless, we have to deal with the bill we are now considering.  My job is to ensure, as much as I can, that this law reform is needed.  In its current form, the legislation will achieve what it seeks to do and is proportionate in its effect with adequate safeguards against excessive ministerial executive powers.

To address these questions, I make a number of observations from the many briefings we have received.  I appreciate the commissioner making himself and his staff available to provide additional and individual briefings, and travelling up to Launceston for briefings during the break.

I will refer to some of the comments made by the Leader in the second reading speech and again thank the commissioner and his staff for the additional detail they provided on some areas that needed further clarity.  The second reading speech was amended to reflect some of the concerns I raised.

The first question was:  Is this law reform needed?  Outlaw motorcycle gangs have created great concern in a number of areas in the state, including my electorate.  There are many members of these groups who live and work in these communities and provide quite a welcoming and supportive place for people to mix and socialise, and I have heard this from many people.  I note and accept gaining membership to an OMCG does require members to undertake a range of activities and commitments non-members may not appreciate.

The Leader made a number of comments regarding the activities of OMCG organisations, not specifically related to individual members who cause real concern for police and for the broader community.  The Leader referred to an Australian Criminal Intelligence Commission research report, Organised Crime in Australia, which acknowledged that outlaw motorcycle clubs are entrenched in the importation, manufacture and distribution of methamphetamine in Australia.  Many of them are using legitimate industry to conceal their activities and grant them the appearance of respectability.

I agree with the Leader when she states that serious organised crime and the illicit drug trade does not just affect individuals but also the safety and the livelihood of the entire Tasmanian community.  She noted the Australian Crime Commission, now the Australian Criminal Intelligence Commission, estimated the serious costs of organised crime to be around $36 billion a year.  Even more concerning than the financial costs are the devastating social and health costs from the illicit methamphetamine trade.  Anyone who knows someone who has a family member or a friend or someone addicted to methamphetamine, or ice, knows the devastating impact, not just on the person but also on their families.  It is a difficult challenge.

This bill does not specifically relate to the illegal drug trade or the use of illegal drugs.  I understand why.  This is an activity that those involved in do not generally undertake in public, rather it is hidden, an underground activity, and I suspect it will remain so.  I discussed this with the police commissioner during a private briefing about the nature of the public offences committed as reasons not to be able to wear colours.  You are unlikely to see people committing these illicit drug offences in public.  The other acts listed in the bill are more likely to occur.

This bill, I understand, does not seek to address the issue of the illicit drug trade.  That is a separate issue and there are other laws to deal with that challenge.  Reference to this illegal activity is more about establishing the case for the need for stronger laws regarding illicit drug activity.  I accept that OMCGs are engaged in this illicit activity.  Not all of them - not every member is, but I know some members are.  When one of the groups was based in Smithton in my electorate, there was a real problem with ice, but it was not necessarily confined to the OMCGs.  We need to make this clear:  OMCGs may be involved in this illicit area of activity but they are not the only groups that are. 

Many members of OMCGs have contacted us stating they do not engage in or condone criminal activity.  That is great.  Many of them do potentially fit into that category.  We were informed previously of some of the actions required to gain membership.  Some of the patches members wear indicate they have undertaken criminal activity to gain them.  There is conflicting information here.

Many people who have contacted us feel this legislation is treating all members as criminals regardless of their activities within the club.  I can understand why they feel like that.  I appreciate their concern and I have sought amendments to the bill to strengthen the process around the declaration of an identified organisation to ensure, as much as possible, only those, when there is evidence of such activity noted in the bill, will be proscribed.

Mr President, do we have laws that seek to deal with the challenges of criminal activity, particularly as it relates to the illicit drug trade?  We do, but, as with all legislation, these laws should be regularly reviewed and updated if necessary to ensure police have a legislative framework that is robust enough but also maintains natural justice provisions to ensure those involved in the illicit drug trade are brought to justice.  If police believe there is need to strengthen laws related to the illicit drug trade, let us hear from them and let us hear the Government talk about that.

We all want to see an end to the devastating social and health harms associated with the illicit methamphetamine and other illegal drug trade.  The Leader and police in the briefings informed us of police intelligence that indicates that OMCGs are major participants in the importation of methamphetamine in Tasmania.  This drug trade is an impetus for other violent crimes such as burglary and armed robberies that are committed to pay off drug debts.

The Leader stated that since 2000, senior group members in Tasmania have been responsible for, and charged with, some of the most significant methamphetamine importations in the state's history.  I asked the commissioner at this morning's briefing to provide figures on how many charges have been laid and how many convictions recorded against members of OMCGs in Tasmania.  It has been raised repeatedly in emails to us.

It is all well and good to say people have been charged, but where are the convictions?  We still abide by the premise that you are innocent until proven guilty in this state.

Mr Gaffney - I think that information would be easy to get because they would need that information to take it to the commissioner to say a group is doing something untoward.

Ms FORREST - Yes, for the commissioner then to recommend that to the minister.  If the amendment I have suggested is to include the Attorney-General, it is relevant and we will get to that process at a later time.

The Leader also noted the use and escalation of serious violence by members of rival gangs or groups - and even the same group - in public places.  She used the word gangs.  I will use the word groups, but I was just repeating her words.  This violence is indiscriminate and often puts the public at significant risk, as she said.  She said -

Since what has been referred to as the Milperra Massacre in 1984, when seven people, including a young girl, were killed in a brawl between the Bandidos and Comancheros, firebombings, drive-by shootings and public brawls linked to OMCGs continue to occur.

The violent public brawl between two OMCGs at Sydney Airport in 2009 resulted in several injuries and one death.  I was not in the airport at the time, thankfully.  It would have been a very traumatic thing for members of the public to witness.  When I was discussing the bill with a member of an OMCG, I mentioned that it does not do the groups any favours.  He acknowledged that this type of behaviour does not do their club any favours in the eyes of the public.  They accept that actions like that sway public opinion against them.

I am unaware of any specific instance of this level of public violence in Tasmania and would appreciate if the Leader could advise if there has been.  Threats of violence at a boxing match in Devonport have been referred to.  I accept that even if it had not occurred, the likelihood is really based on the activities of some OMCGs in other states.  Prevention is the best way to go here.  This is about doing that.

Commissioner Hine informed us that worldwide OMCGs operate publicly with clearly badged jackets displaying colours of their club logos and an accompanying 1% badge, as well as a range of other badges earned after undertaking certain required actions or activities.  Many of these patches refer to actions that clearly denigrate women.  Many also cause harm to women.  Many of the actions taken to earn these badges rely on committing illegal offences.

We were informed that women cannot be members of an OMCG and in many cases women are viewed as the property of OMCG members.  The Leader stated that OMCGs rely on money, power and fear as their greatest weapons.  Wearing the colours publicly visibly intimidates, which is why they wear their colours when they go debt collecting.

Before the briefings I was unaware of what some of the individual badges meant.  I am sure other members of the public do not know.  Most of us in this Chamber probably did not know what they mean.  Wearing colours may cause fear to members of the public even if you do not know what they specifically mean.  When you do know what they mean, fear is one emotion that might be experienced.

Mr Valentine - We are between a rock and a hard place because if we talk about it, people are going to know more.

Ms FORREST - The Leader stated that OMCGs wear their colours to threaten people and deter them from reporting crime  or testifying in court.  These gangs maintain a strict code of silence and cultivate a brand of intimidation and fear to thwart witnesses in attempts by law enforcement officials to hold an offender to account.  Some people I have spoken to talk about the brotherhood of a club as being a positive thing, where they look after each other and watch each other's back. 

Ms Rattray - A bit like a family.

Ms FORREST - Some people have talked about it in this sense and many who have said this are females, who cannot be members.  I am sure many people feel really well cared for within the clubs, particularly when they first join or are on the fringe of the club as are women or families.

These members have families - they have children and wives - and they tell you they provide the level of support and family sense they may not have had in their own lives.  Some young people who are homeless, been kicked out of home or come from all sorts of disadvantage may find the environment of the OMCG better than what they lived in before.

It is only when they have to become members and actually undertake some of the illegal activities required of them that things can change.  Women are not members and so they do not have to do undertake this.  So when we receive an email from women saying how fabulous it is, maybe it is.  It may be better than what those women had before.

We need to take the comments in context and listen to all these voices, because they are important and all deserve to be heard.

The objective of this legislation is intended to stop OMCG members from using their colours to stand over members of the public and create fear in the community.  While they might not be able to do debt collecting in their colours in a public place, I cannot see how it will stop them taking their jacket in a bag to a person's private home and then putting it on when they get to the door to collect a debt.  This is not going to fix all the problems.

I have received many emails and other messages raising concerns about who else and which other groups could be targeted over this bill.  Some are a misunderstanding of the intent of the bill.  For example, some raised the fact that people could be targeted for wearing their AFL team colours.  For some teams, you can understand why this might be important -

Ms Rattray - Especially on Mad Monday.

Ms FORREST - Mad Monday.  I know our Clerk is a Collingwood supporter, you are too, member for Launceston.  I have been on a train packed full of Collingwood supporters and my daughter did not want me to say a word.  In fact when they started to engage with me, she asked me not to speak.  We were already on the train and stopped at Jolimont station, and the whole platform was black and white.  They had won the game and beaten St Kilda, but told me it was not a good win.  They wanted to know who I supported when I did not say Collingwood.  My daughter said perhaps I should have lied at this point.

We might disagree with someone's support of a particular team; it is not a disagreement based on fear, rather a sense of rivalry and competition.  On occasions there are brawls in a crowd at the footy match, but overall most fans are civil and generally respectful of the opposition team supporters.

One of my favourite experiences is walking to and from the MCG or Etihad before and after an AFL match and listening to the banter.  Everyone is happy on the way in because there are no winners.  On the way out while everyone is happy, the conversations differ because supporters of the team that won are saying what a great mark that was or what a great goal, and supporters of the team that lost tend to talk about how the umpire played against them.  It is a wonderful atmosphere at the MCG, walking out with the crowd afterwards -  it is a fabulous experience.

Mr Gaffney - It is different to, say, soccer - the true football - because there they have gangs and identify with their colours, and they know there is a good chance there will be violence.  It is a totally different feeling.  You are actually segregated when you go to a game.

Ms FORREST - That is right, and it would be really sad if we did that.  Someone mentioned it after a brawl at the footy.  It would be really sad to even contemplate that.

One of the things with AFL is that there are so many scores you get to get up and scream every now and then.  With soccer, you can go up and get so close and there is no release of that tension.  That is my theory.

Back to the bill.  I have been trying to address the question:  is the law reform needed?  The other two questions I will address together.  In its current form, will the bill achieve what it seeks to do?  Is it proportionate in its effect with adequate safeguards against excessive administerial or executive powers?

The bill introduces a new offence into the Police Offences Act 1935 at section 6A, banning the wearing or carrying of prohibited items in a public place.  The new offence states that a person who is in a public place, or in a vehicle that is in a public place, may not wear or carry a prohibited item that if the other person were in the public place would be visible to the other person.

A prohibited item is described in the bill as being any piece of clothing, jewellery or other accessory that displays the name of an identified organisation or a club patch, insignia or logo of an identified organisation or an image, symbol, abbreviation, acronym or other form of writing that indicates membership of, or association with, an identified organisation 

We are informed that this prohibition will only apply to identified organisations, not law abiding motorcycle enthusiasts and motorcycle clubs or any other groups.  The bill also provides a framework for prescribing an identified organisation.  The Leader stated that a number of prerequisites and legislative safeguards have been put in place to achieve this aim.  In my view, the way the bill is currently presented allows for too much power to reside with the minister.  Further oversight in the decision to make or proscribe an organisation is needed.  I am flagging an amendment to that effect and will speak to that at a later time.

The Leader stated that -

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.

I think most, if not all, of us here know that scrutiny and oversight of the Subordinate Legislation Committee occurs after the event and it can be some time before this occurs after the regulations are in force.  I believe additional oversight is needed prior to the making of the regulations in that declaration process and the amendment I propose seeks to achieve this

In making the recommendation currently under the bill as proposed, the minister is required to have regard to the advice of the Commissioner of Police who needs to be 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.

I believe this needs to be strengthened to ensure advice and/or reasons from the commissioner must be provided to the minister, and also the Attorney-General, to enable review and consideration of this advice.  I will discuss that more fully at a later time.

I believe this is necessary even though the minister must also have regard to whether a person has, while a member of or a participant in the organisation, engaged in serious criminal activity or been convicted of public acts of violence, damage or disorderly, offensive, threatening or violent behaviour in public.

I know there are defence provisions in the bill to allow prohibited items to be worn in public for general artistic, educational, legal or law enforcement purposes.

Another area of concern for me was how the term 'prospective member' could be interpreted.  I requested the commissioner to consider further explanation of this in the second reading speech to ensure clarity as during the briefings 'prospective member' was referred to basically as novices or people on a path to full membership.  They had already made significant inroads into becoming a full member.  The second reading speech was amended to further clarify that.

The Leader stated that to become a fully patched member of an OMCG, one starts as a prospective member and to ensure that the activities of these people can be taken to account, a prospective member is included in the definition of a participant in an identified organisation as defined in the bill.

She also clarified that this term does not relate to any male effectively because only males can be members of OMCG's at the moment.  This could change.  It was important to know that prospective members did not mean just anybody.  Prospective members are likely or expected to be fully patched members in the future.  Certain thresholds need to be met to become fully patched members.  Often these involve prospective members committing crimes to earn their colours.

This allows fully patched members not only to distance themselves from the taint of any illegal activity, but it also shields senior members from any legal repercussions.  We were told this during the briefings and in the second reading speech from the Leader.  I appreciate the clarification of the term 'prospective member', because the common use of the term would suggest any eligible male.

The main concerns of this bill relate to the lack of an appeal mechanism to a prescription of an identified organisation.  While I accept regulations are disallowable instruments, even with the scrutiny of the Subordinate Legislation Committee, this requires the agreement of the committee, a report to both Houses and then the successful passage of a disallowance motion.  It is not a given.  This process can take months from the time the regulation is made.

While parliament is sitting, at any time any member can give notice of and move a disallowance motion.  This takes time, because the motion has to mature and parliament does not always meet regularly, with sometimes months between sitting weeks.  I note section 9 of the Subordinate Legislation Committee Act 1969 states -

Report when Parliament not sitting

If in the opinion of the Committee a regulation that is examined by the Committee should be amended or rescinded and the Committee's report thereon is adopted by the Committee during any adjournment or recess, the Committee may cause a copy of its report to be sent to the authority by whom or by which the regulation was made and on receipt thereof that authority shall forthwith-

(a)   amend the regulation in the manner indicated by the Committee, or, if the Committee so recommends, rescind the regulation; or

(b)  take such action as may be necessary for the purpose of suspending the operation of the regulation, and ensuring that the operation thereof remains suspended, until both Houses of Parliament have dealt with the report.

I was aware of this power and mentioned it to Mr Broad, the Labor member downstairs, who thought there was no avenue.  I said there was and the Subordinate Legislation Committee is quite powerful and can meet at any time.  I did not think we had the power to instruct the Governor in the way they should act when parliament is not sitting.  I seek clarification, and the Leader may like to reconfirm this, around the operation in this section of the Subordinate Legislation Committee Act to confirm that the Governing Council, the Executive, not the Governor, is the authority by which the regulation was made.

The Subordinate Legislation Committee can effectively direct the Governing Council to amend the regulation, as indicated by the committee, or suspend the operation of the regulation, until it can be dealt with in parliament.  I need the Leader to confirm and clarify this to make it clear.  The Subordinate Legislation Committee can meet and it can be done over the phone, but even so, you still have to have a majority decision of the committee to proceed to the next step.

Mr Finch - What does the term 'Governing Council' encompass?

Ms FORREST - That is the Executive basically - it is the Governor acting on behalf of the Executive who make the regulation.

Mr Finch - 'Executive' is?

Ms FORREST - The executive arm of Government.  The principal act provides the regulation-making power, then the department prepares the regulations under the act, and this is sent to Cabinet and endorsed by the executive government.  From there it goes to the Governor, for tick off and to be gazetted.  It is the Governing Council; the term is 'executive government', the branch of government that makes the regulation.

Mr Finch - Nearly! 

Ms FORREST - You need to spend some time on the Subordinate Legislation Committee to understand this.

Mr Finch - I spent four or five years on it.

Ms FORREST - You did not learn anything.

Mr Valentine - They actually meet with the Governor.

Ms FORREST - Yes.  The committee would not be instructing the Governor.  It is the body that makes the regulation.  There was a commitment at the briefing. 

Mrs Hiscutt - I've sent the email off.

Ms FORREST - I am getting a nod from behind you, so I think we will be right.  We have a bit of time between now and then, Mr President.

The scrutiny of the Subordinate Legislation Committee process occurs after the regulations have been made and are operational in the majority of cases.  While it is an important scrutiny measure, there is the risk of an ill-considered recommendation being reflected in the regulations. As the bill currently stands, I do not believe it meets the test that it is proportionate in its effect without adequate safeguards against excessive ministerial or executive powers.  Hence, the move for an amendment to put further scrutiny in it at the front end.

Strong laws are needed in this area; however, I do not believe this legislation will greatly assist police in disrupting the criminal activity associated with OMCGs.  It will not address the very real community concerns around the impact of other criminal organisations.  That is a matter for another time.

We are likely to see additional legislation coming forward over coming weeks or months to address some of these areas.  As I have with this bill, I will fully scrutinise those bills.

It has been a difficult process to make sure we are being proportionate in our impact.  I respect the views of those in the community who have contacted us.  I have spoken to some of them, not all of them.  I have responded to as many as I could.  Most of them have been very pleased to get a response and understand my view on this.  We need to afford natural justice to the people we agree with and whose activities we like or condone as well as those whose activities we do not appreciate, do not agree with and have a fundamental problem with.  Everyone should be afforded natural justice. 

Even with the proposed amendments, which provide an extra level of scrutiny and an extra step, we need to be very careful where we are going.  The next piece of legislation we get will be potentially much more contentious.  It will certainly require a greater level of scrutiny to ensure that there is natural justice and certain rights of appeals and that there is the usual process to facilitate that.

Mr President, I will support the bill into the Committee stage as I believe that important amendments are needed to address these areas of concern.

 

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