CRIMINAL ORGANISATIONS CONTROL AND OTHER ACTS AMENDMENT BILL 2014

Written on the 19 August 2014


Second reading

Debate resumed from 7 August; motion of Hon. G. K. RICH-PHILLIPS (Assistant Treasurer).

Ms PULFORD (Western Victoria) -- I will start by taking the opportunity to congratulate our new Deputy Clerk on her appointment and welcome her to the chamber. I trust that she will find this to be a much more civilised place than over the road.

I will make some comments on the debate of the Criminal Organisations Control and Other Acts Amendment Bill 2014. I state at the outset that the Labor Party will not be opposing the bill. The bill amends a number of acts.

It makes substantive amendments to five acts and a number of other less consequential amendments to a number of other acts. Part 2 of the bill strengthens the existing provisions of the Confiscations Act 1997 in relation to the confiscation of property that is suspected of being from the proceeds of a serious drug offence.

To the opposition it is entirely reasonable that those involved in serious drug offences ought not be getting proceeds from their activities. The opposition accepts the government's assurance that there are some hardship provisions in place. Almost all property owned by a person convicted of a serious drug offence will be mandatorily forfeited to the state, but it will be done so in a way that keeps a safeguard in place for dependants so that a modest number of assets can be retained -- such as a modestly priced house and vehicle, household goods and the like.

Opposition members were concerned that in confiscating the assets of crime the baby would be thrown out with the bathwater, so to speak, and that people who had not been involved in such activities would be rendered homeless. However, the government assures us that the safeguards are in place, so we join with it in supporting this measure, which will send a clear message to those people concerned and facilitate the removal of their ill-gotten gains.

The bill also deals with declared criminal organisations. Part 3 amends the Criminal Organisations Control Act 2012 and other acts in relation to declared criminal organisations and members. The bill allows a court to make a declaration against an individual or an organisation under a broader range of offences classified as 'serious criminal activities'. The Criminal Organisations Control Act currently allows a court to make a control order against an individual and organisation declared to be engaged in certain offences. Such an order may prohibit or restrict an individual or organisation from carrying on certain activities, which even goes to things like the wearing or displaying of patches and the like. Substantial planning and organisation will be removed as a requirement for making a declaration. The satisfaction of the court will still need to be sought, but it will only need to be satisfied on the balance of probabilities that an organisation or its members are engaging in, organising, facilitating or supporting criminal activity.

The department has indicated that the types of organisations covered by the Criminal Organisations Control Act, the current act, will not be affected by these amendments. The opposition has been assured that organisations that may inadvertently have been swept up in these amendments will not be, and that the test applied by the court for declarations will remain the same as in the past.

In relation to committal hearings the bill amends the Criminal Procedure Act 2009. It provides that a court will not be able to grant leave to cross-examine a witness unless the accused has identified the issue. I am advised that these amendments seek to reduce delays and inefficiencies in the court system and to ensure that cross-examination is not used as a 'dry run' prior to trial but is used appropriately. Obviously the opposition supports the efficient operation of the courts.

It notes some consequences of government budget cuts over recent years which have resulted in some mayhem in our courts, with prisoner transfers not being undertaken and major disruption, but it accepts that these clauses will assist in a more efficient operation of the courts.

The amendments in the bill to the Criminal Procedure Act also go to the operation of traffic cameras and traffic camera offences, such that the service of documents relating to traffic camera offences -- they are the ones that no-one likes to receive in the mail -- will be effected by ordinary service prepaid post rather than by personal service, which is currently a general requirement. It is important that we appropriately respond at every opportunity to inappropriate traffic driving behaviour.

At part 5 the bill amends the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the Children, Youth and Families Act 2005 and the Working with Children Act 2005. These amendments are in response to concerns expressed in a court decision in 2011 in relation to fitness for trial and the defence of mental impairment in the Children's Court. These provisions will enable the Children's Court to hear and determine children's cases under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and apply provisions in that act to Children's Court hearings. We note that it has taken the government quite a number of years to get around to doing this, but its inclusion in the legislation we are considering today is appropriate.

The bill, at part 6, makes technical amendments to the Major Crime (Investigative Powers) Act 2004 to improve its operation and effectiveness -- we are told -- in a number of ways. These relate to the use of evidence in major crime investigations.

The minor amendments I referred to at the outset include amendments in relation to self-incrimination by witnesses, use of restricted evidence and court orders in relation to persons in custody. The bill amends the Sentencing Act 1991 in relation to alcohol exclusion orders and makes a number of miscellaneous amendments to various acts, so this legislation deals with many and varied subjects. The bill's two main purposes are to ensure the proceeds of serious drug offences are appropriately confiscated and to enact further provisions around declared criminal organisations. As I indicated, this is legislation the Labor Party will not oppose.

The government likes to talk a good game about how it is tough on crime. Of course what we have seen under this government is extraordinary pressure being brought to bear on Victoria Police due to budget cuts. Across my electorate of Western Victoria Region there are many smaller communities with police stations that are substantially under-resourced.

There are single-person stations and smaller stations that are not supposed to be single-person stations but are now single-person stations.

Along with the spiralling and extraordinary increase in the reporting of domestic violence incidents, these are things the government has failed to respond to. The government is infinitely more interested in claiming to be tough on crime than in addressing the single biggest activity that is draining police resources. In Victoria and New South Wales 40 per cent of police resources are used in responding to domestic violence incidents. This is by a country mile the most significant law and order issue facing Victoria, and the government has failed to provide an adequate response. The opposition does not claim to have all of the answers to this, but we have committed that if we are successful in the election in November, we will establish a royal commission to thoroughly consider the most appropriate way for our society to respond to domestic violence.

I note that among the soaring crime rates in Victoria, in addition to domestic violence, drug-related crime has also significantly increased. Much of this is attributed to the widely reported ice epidemic that is affecting so many communities across Victoria and indeed many communities in regional and rural Victoria.

The government has demonstrated, as was evidenced in question time today by the answers given by the Minister for Corrections to questions from my colleague Mr Tee, that it is more interested in filling up prisons than in keeping people out of prisons or in reducing the number of people who are re-entering prisons. Our courts are suffering from enormous delays and legal aid is in crisis.

The government has demonstrated no plan or solution for the enormous problem of domestic violence that is facing Victorian families. While the Attorney-General likes to claim he is tougher on crime than everybody else, the government has not put its money where its mouth is. It has not sought to properly investigate the causes and consequences and appropriate levels of support that are required for people experiencing domestic violence. It has not sought to put proper resources into Victoria Police to ensure that people are safe no matter where they live and it has not provided the support that those people operating our court system require. With those words, I commend the bill to the house.

 

 

Mr D. R. J. O'BRIEN (Western Victoria) -- It is with great pleasure that I rise to make a contribution to the debate on this important piece of legislation, the Criminal Organisations Control and Other Acts Amendment Bill 2014. I thank Ms Pulford for expressing the opposition's support for this important piece of legislation in 80 per cent of her contribution.

I also agree with her in relation to two of the other sentiments she raised. One is the scourge of ice -- methamphetamine, or shards -- which is presently affecting the communities we represent together in Western Victoria Region.

I note that Mr Ramsay, who is sitting behind me, is the chair of a very important bipartisan parliamentary committee -- the Law Reform, Drugs and Crime Prevention Committee. We eagerly await the learnings from the report of that committee's inquiry into the specific scourge of ice, which is only part of this government's package on law reform. The Minister for Mental Health, Ms Wooldridge, and the Attorney-General have also outlined other programs and they are continuing to outline other programs for regional areas into particular in relation to this issue.

I participated in a community forum called 'Our town's ice fight' only last weekend, 14 and 15 August, in Geelong.

It was a summit organised with widespread support and cooperation, including from Superintendent Daryl Clifton of Victoria Police as well as other community leaders such as Chris Faulkner, Paul Kelly, Kate Nelson, Bernadette Uzelac and many representatives from all over the Geelong and western Victorian communities. It was organised by Russ Goodear and David Stewart from Warrnambool, following their excellent work on other initiatives in relation to talking down the road toll and binge drinking. That was just one community initiative that this government has supported.

It is the scourge of drugs, particularly serious drug trafficking, that the principal components of this bill are directed to. Firstly, there are the civil forfeiture amendments. This government has reviewed the regime that has been in place.

The shadow Attorney-General acknowledged in his contribution that this regime has some limitations, particularly in terms of the ability of law enforcement agencies to properly trace the proceeds, or ill-gotten gains, of serious drug trafficking.

If there is one thing that is absolutely clear among the coalition government members of this chamber, it is that we are absolutely rock-solid united on the Attorney-General's and the other relevant ministers' comprehensive law reform agenda, which is also being supported with financial supports, additional resources and most importantly a comprehensive whole-of-government approach. That has also tackled, and is continuing to tackle, the very serious and concerning issue of family violence, which Ms Pulford also raised. Violence wherever it occurs, but particularly in the home, is something this government does not tolerate.

I commend Minister Wooldridge again for providing the leadership she has, which has been discussed in relation to many other pieces of legislation.

But at the heart of this bill, which I wish to return to, are the serious drug trafficking amendments. This government takes a very serious approach to this. We have led the legislative agenda in relation to law reform on many matters across the justice portfolio. We have sometimes been supported by the Labor Party, which failed to do much when it was in government in relation to many of these ideas. In fact some of the problems we have faced have been positively the result of the ill-conceived interventions of the former Attorney-General. The former government allowed many of these violence issues to languish under its watch.

Belatedly, as we head towards the next election, it seeks to jump on the bandwagon on occasion, and on other occasions it does not. I have not heard from Ms Pennicuik as to the Greens' approach to this piece of legislation.We have had some debate and community discussion about previous pieces of legislation in relation to law enforcement and crime. There are times for genuine debate, and there is certainly genuine debate in the legal community as to what the appropriate legislative response is. On our side, we make our position absolutely clear: we will seek to put the protection of the community, community safety and respect for law and order at the heart of our legislative agenda. That is what this bill is all about. This is epitomised by the contrast between the approach of this government and that of the Labor Party, if we look at the way the Labor Party has treated its shadow portfolios.

I note that on 19 December 2013 the opposition announced it would not proceed with a shadow crime prevention portfolio, and presumably therefore it would not proceed with this portfolio if it were given the opportunity to return to government. This is something that Mr O'Donohue, as Minister for Corrections and Minister for Crime Prevention, has highlighted.

A very important part of what we are talking about is preventing crime at the start. There is a range of initiatives being carried out for community safety, including lighting. Prevention is also achieved by way of deterrence. You need to protect the community, but you also need to deter crime. That is where we get back to the heart of this bill, which is civil confiscation.

Unless you address the ill-gotten gains that can come from serious commercial drug trafficking, unless you can provide for the protection of the community from violent offenders that we have provided for in our other pieces of legislation -- and again I commend the Attorney-General for bringing forward the coward's punch legislation this week as well as introducing further enforcement powers in relation to unexplained wealth legislation that will be before the house -- and unless you can provide those deterrents that take away the ill-gotten gains that criminals can obtain from crime, you will have more crime committed at the outset.

It will be the case that, for a period of time, you will have to tackle the issue of prisons and criminals in custody who have not heeded the legislation or the warnings that are there and who have not changed their behaviour.

Ultimately, though, unless you have the appropriate deterrents and community protections in place, and the disincentives that come from legislation such as this to effectively get at the proceeds of crime in relation to drug trafficking and do it in a coordinated sweep of packages across all portfolios, you will not prevent crime. You will not prevent what are called little or minor thefts and things that will cause people inconvenience, right up to the violent robberies, assaults, muggings, sexual assaults, violent crime, drug trafficking and serious traffic trafficking that can occur when you have a lack of respect for law and order.

In relation to the civil forfeiture amendments, this bill removes the requirement for the Director of Public Prosecutions (DPP) to provide a link between the specific property and a specific schedule 2 offence.

The DPP will be required to prove the property is the proceeds or instrument of at least one or more schedule 2 offence, and the court will need to be satisfied that one of the offences taints the property before the restraint can occur.

As was touched upon by Mr Pakula, the shadow Attorney-General and member for Lyndhurst in the other place, the bill balances the need to protect with the undue hardship that may arise from forfeiture provisions. The courts have broad discretion in relation to alleviating forfeiture, and this discretion still applies to any person where it is harsh, unjust or excessive. There are safeguards in the bill for families to mitigate the harshness of the regime on dependants. The scheme does not allow the forfeiture of protected property of less than a prescribed amount -- that is, ordinary household items, necessary clothing, a vehicle or tools of trade. Dependants of serious drug offenders are also able to seek payment of a prescribed sum from the proceeds of the sale of a forfeited family residence for the purpose of securing accommodation.

They may apply for this payment if they have no other means to pay for accommodation, and this ensures that families will not be homeless or reliant on social housing.

The definition of 'protected property' includes individual values for each category such that, whilst you may need a family car, it may not be a Lamborghini or some other expensive luxury item or a boat. I do not know why Mr Melhem just looked up at me with surprise. I am not casting any aspersions; perhaps it was just the reference to a Lamborghini. I am certainly not casting aspersions on all Lamborghini drivers, but a car of a value in excess of, for example, an ordinary household item can still be seized and sold. The bill provides families with those basic protections, which strikes a balance between the need to ensure that the accused and his or her dependants still have household essentials and the tendency for criminals to invest in high-value, easily liquidated goods to hide criminal proceeds.

I will turn to other significant aspects of the bill. The criminal organisations control provisions are amendments designed to ensure that the act that presently exists will be used more often. For example, the amendments expand the range of criminal activity that can trigger the making of declarations and give police new options for making declarations on the level of evidence they have. Other amendments are designed to ensure that the cost of proceedings under the act is reduced, which will allow parties to consent to the making of declarations and control orders in order to avoid costly litigation, and new cost provisions provide that parties generally bear their own costs.

These provisions apply to criminal organisations; they are not intended to apply to law-abiding citizens.

That is why this careful approach has been staged, with the rolling out of the initial legislation and now the amendments included in this bill, which simplifies the procedure for the seeking of a declaration or control order and provides a range of options for Victoria Police, depending on the level of evidence it has. For example, where police are able to prove beyond reasonable doubt that an organisation is engaging in serious criminal activity, a prohibitive declaration may be made; however, where police are only able to prove an organisation's engagement in serious criminal activity on the balance of probabilities, the court may still make a restrictive declaration. The bill ensures that organisations and their members cannot escape the ambit of the legislation by quitting and joining other organisations, as has occurred in other jurisdictions. Other amendments in the bill are designed to ensure that the costs of proceedings under the act are limited.

There are also amendments to the Firearms Act 1996 such that any individual made subject to an individual declaration or control order is prohibited from possessing a firearm. In the event that such a person holds a firearm licence, the licence will be cancelled and they will need to surrender any firearms in their possession. This is appropriate given that such a declaration or order can only be made on the basis that the individual is engaged in serious criminal activity. They will be presumed not to be a fit and proper person, and the court will be mindful of any other tests that need to apply.

It is in the case of very serious matters that one needs to be careful to proceed with legislation in a way that is not recklessly indifferent to unintended consequences. We need to take a careful stage-by-stage approach, and this government in this very serious matter of controlled organisations has proceeded to act with care in the drafting of both the original legislation and these amendments.

I turn now to an important part of the bill relating to the Criminal Procedure Act 2009. The bill addresses delays associated with criminal proceedings by reducing cross-examination of witnesses on issues that are not necessary to ensure a fair trial for the accused. It also makes operational amendments in respect of offences dealt with by the traffic camera office, which include red-light, speed and tollway offences.

Other aspects of the bill were considered in detail in the second-reading speech. I am conscious that other members wish to make contributions to the debate. There are important parts of the bill that relate to alcohol exclusion orders and to the Major Crime (Investigative Powers) Act 2004. It is an important piece of legislation. It is difficult to go to every aspect of the bill in the time I have available, but I will close on one other aspect -- the amendments in relation to the powers of protective services officers (PSOs) to request the name and address of any person being given a move-on order.

If there is any other policy that clearly shows the difference between our commitment to law and order protection and the scoffing cynicism displayed by members of the Labor Party in government and in opposition, it is the rollout of PSOs at our train stations. The excellent work of those PSOs ensures the safety of our community. It is a policy that we will continue if re-elected. If the community safety reforms we have made are to continue, then it is appropriate that this bill be commended to the house and that the coalition be re-elected in 2014.

 

 

Ms PENNICUIK (Southern Metropolitan) -- The Criminal Organisations Control and Other Acts Amendment Bill 2014 makes significant amendments to some 20 acts of Parliament and addresses a range of unrelated issues called 'other matters'. A member of the public reading the title of the bill -- Criminal Organisations Control and Other Acts Amendment Bill 2014 -- would not get a very good idea as to what the bill is actually about.

The bill also makes a raft of consequential amendments to a large number of acts. I agree with Mr O'Brien that the level of detail contained in the bill makes it is very difficult to comment on it in the time allocated to the second-reading debate.

I will begin by saying that the amendments in part 5 are probably the best part of the bill. I will read from the explanatory memorandum:

    Part 5 of the bill introduces significant reforms to the procedures for dealing with children in the criminal justice system who may be unfit to stand trial, or mentally impaired at the time of alleged offending.

    The principal reforms contained in part 5 include:

  • enabling the Children's Court to determine fitness to stand trial under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 for all indictable offences that may be heard in the Children's Court; and
  • requiring the President of the Children's Court to hear the most serious indictable cases when fitness to stand trial or the mental impairment defence is raised or nominate a magistrate to do so and;
  • on finding a child committed an indictable offence but is unfit to stand trial or on finding a child not guilty by reason of mental impairment, the Children's Court will be able to declare a child liable to supervision, and impose custodial and non-custodial supervision orders.

    Part 5 also amends the Working with Children Act 2005 to include in the definition of finding of guilty in section 4 a verdict of not guilty by reason of insanity made prior to commencement of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

As I said, it is probably the best part of the bill, and it has certainly been widely supported by Liberty Victoria and Youthlaw in their submissions on this issue. It is the crux of the good part of this bill. It makes some amendments to deal with children who may have a mental impairment and their appearance before the Children's Court.

There are very few other amendments in this legislation that we consider positive, and there is no evidence or reason to back them up. The remainder of the bill increases the powers of the police, the chief examiner and protective services officers (PSOs) with little or no evidence of the need to do so.

At the same time it removes some existing safeguards from other acts being amended by this bill. No case has been made for any of these changes.

The bill amends the Sentencing Act 1991, the Firearms Act 1996 and the Summary Offences Act 1966. One of those amendments restricts 'gang members' from having a licence to hold firearms -- that is, persons deemed under the Criminal Organisations Control Act 2012 to be declared persons who should not be able to hold a firearms licence. Given that the chief commissioner makes the decision as to whether someone is a fit or proper person, one could speculate that the chief commissioner would be unlikely to deem a person who has been convicted of serious offences a fit and proper person to hold a firearms licence. Even though this is probably the only other piece of the legislation that is okay, one could suggest that the chief commissioner would not make such a determination to issue a firearms licence and would make the determination to revoke a firearms licence for such a person in any case.

The bill amends the Criminal Organisations Control Act to make more offences subject to a declaration, including more restrictions on members of organisations moving to other organisations, changes in the standard of proof and the introduction of restrictive declarations. These amendments will mean that the act will apply in relation to a wider range of offences at a lower level that can trigger the making of a declaration against an individual or an organisation. It introduces prohibitive declarations and restrictive declarations. Prohibitive declarations will have a higher criminal standard of proof beyond reasonable doubt, as is in the current act, and restrictive declarations will require a new type of declaration with a lesser standard of proof -- that is, on the balance of probabilities.

The Supreme Court may make a prohibitive declaration if it is satisfied beyond reasonable doubt that the matters set out in new section 19(2B) of the Criminal Organisations Control Act apply to the organisation and if it is satisfied that on the balance of probabilities the activities of the organisation pose a serious threat to public safety and order. New section 19(2B) says for the purposes of making a declaration the matters that apply, as the case requires, are that the organisation has engaged in, organised, facilitated or supported serious criminal activity or is engaging in organising, facilitating or supporting serious criminal activity; or any two or more members, former members or prospective members of the organisation have used or are using the organisation or their relationship with it for a criminal purpose; or any two or more members or prospective members of the organisation are also members, former members or prospective members of an organisation to which a control order applies; or control orders apply to any two or more members.

The bill reduces the threshold for serious offences from those that carry a 10-year penalty to those that carry a 5-year penalty. In that respect the bill is straying from the definition of serious criminal activity. Though not necessarily defined as such, serious criminal activity could be regarded as a crime carrying a sentence of 10 or more years imprisonment. That was the argument behind the introduction of the Criminal Organisations Control Act 2012. For the record, the Greens did not support the bill for that act when it was debated in this house in December 2012. I remind the house that I attempted to move that the legislation be referred to the Legal and Social Issues Legislation Committee, and I will be moving that this bill be referred to that committee and that it report back by 16 September this year because the bill contains so many significant issues.

I will repeat some of the points I made in 2012. I refer to a paper written by Nicola McGarrity for the constitutional law conference in 2012, entitled Much Ado About Nothing? The Future of 'Bikies' Control Orders in Australia. It talks about the constitutional challenges in the High Court of Australia, although the Queensland challenge had not been published at the time.

In relation to the challenge to the Queensland control orders, I have learnt that the High Court held two directions hearings at the end of June in the long-expected constitutional challenge to multiple laws enacted by the Queensland Parliament. During the hearings Justice Keane revealed that the High Court hoped to schedule a full hearing in Brisbane for the first week of September. Peter Dunning, Queensland's solicitor-general, noted that the case would require one day of argument each for the challenger, Stefan Kuczborski, and the Queensland government and would take at least three days in total to complete.

The length of this matter may be less to do with its significance or controversy; rather it is likely due to the number of laws being tested and the number of grounds on which they are being challenged.

The three Queensland statutes in question cover a wide array of mandatory sentences, police powers, restrictions on public behaviour, and licensing and clothing restrictions. In many instances they interact with regulations that deem a list of 24 bikie gangs to be criminal organisations. Justice French said that the constitutional questions that arise are whether the implied freedom of association exists, and if so, its application to each of the impugned provisions; the implied freedom of political communications; the principles in Kable v. Director of Public Prosecutions for New South Wales; subsequent relevant decisions; and inconsistency with the federal Trade Marks Act 1995 and Copyright Act 1968.

The case also raises issues of standing and hypothetical challenges because the plaintiff, Mr Kuczborski, has not been charged with any offences.

We are still waiting for the outcome of the challenge to the Queensland laws in the High Court. Back in December 2012, when I was speaking on the Criminal Organisations Control Bill 2012, I raised the issue that the government should be waiting for the outcome of that High Court challenge and also remarked that parts of the New South Wales and South Australian legislation had already been struck down by the High Court. These laws are constitutional minefields. The paper Much Ado About Nothing? The Future of 'Bikies' Control Orders in Australia says:

    We already have a plethora of laws on the statute books across Australia dealing with organised criminal activity. Laws prohibiting the substantive acts (e.g. drug trafficking and money laundering).

    And laws prohibiting consorting. These laws are far more targeted to the criminal activity than are the 'bikies' control orders.

The paper also quotes Philip Boulton, SC, who said in March 2009:

    I'm not sure that this particular measure is going to have any real effectiveness. If these people who are shooting and killing each other can't obey the laws that say you can't shoot or kill each other, I don't think they're going to obey a law that says you can't have a beer with each other or can't go on a motorcycle ride with each other.

The bill furthers the ability to make declarations of control orders on individuals and organisations, but there is no rationale given as to why this is necessary. During the committee stage I certainly will ask the minister about the status of control orders under the current provisions.

The act has been in operation for less than 18 months, so there probably has not been enough time to see whether it needs to be amended in order to make it even easier for police to apply for control orders.

At that time, the president of the Law Institute of Victoria, Michael Holcroft, made some comments on the Criminal Organisations Control Bill 2012 which appear in the excellent brief provided by the parliamentary library. The brief reads:

    ... Mr Holcroft stated, 'The new laws will not stamp out illegal activities and will make lawful activities, such as meeting, a criminal offence'. He also stated that the LIV 'oppose laws that make criminals out of a whole class of people', noting that 'Not all members of motorcycle clubs are criminals. Turning otherwise law-abiding citizens into criminals simply because they associate with a group is wrong and an anathema to the rule of law and freedom of association'.

    He also said that the LIV believed that existing criminal laws could effectively deal with criminal offending.

At that time, I made the point that if people commit crimes, regardless of whether they are members of an organisation, they should be investigated, arrested and prosecuted for the commission of those crimes.

Part 2 of the legislation makes amendments to the Confiscation Act 1997, including the provision of a tougher forfeiture regime for crimes committed by serious drug traffickers, such as the confiscation of nearly all their property. The bill also makes more general changes to the civil forfeiture regime. The amendments to the Confiscation Act 1997 will amend the definition of tainted property and modify the operation of the civil forfeiture regime to allow an application for a civil forfeiture restraining order to be made in relation to more than one schedule 2 offence rather than relying on one specific offence.

The bill provides for the termination of an application for exclusion from a civil forfeiture restraining order and sets out the matters that a court must be satisfied with when making an exclusion order to reflect the changes to the definition of tainted property. A court must be satisfied that an applicant was not involved in or had no knowledge of the commission of any relevant schedule 2 offence or did not know that the property was tainted or derived property. The bill also modifies provisions relating to hardship so that a court may take into account hardship that is undue hardship. Courts already have a broad discretion to alleviate hardship caused to any person as the result of a forfeiture order or a civil forfeiture order. Courts have interpreted the definition to include hardship that ordinarily flows from the deprivation of property.

I have raised this issue in the past -- that is, the issue of people getting caught up in the forfeiture of property acquired with the proceeds of crime, regardless of whether the crimes are serious drug offences or other crimes. The bill provides that there will be no need to prove that an offender's property came from the proceeds of crime or was used to commit a crime. Serious drug offenders will lose everything they own, whether lawfully acquired or not, including basic household goods, tools and modestly priced vehicles. Under this legislation, police will no longer have to secure a conviction before confiscating or applying for the confiscation of property.

Currently under the act for property to be subject to confiscation, it must have been used to commit crimes, must have been bought with money that has come from an offence or the proceeds of crime and must be linked to the offender, even if the property was not connected to the offending itself.

Of course the Greens do not support serious drug trafficking, but we are also not convinced that the existing powers under the Confiscation Act 1997 as overseen by the courts are not enough. We are concerned that under this provision a person will not need to have been convicted of a crime and that the link between the crime and the property will not have to be proved before property is confiscated. The government has not provided any evidence that the current provisions are not working; the government has only made an assertion that the current provisions are not working. There are already strong confiscation powers under Victorian statute, and the Greens ask why stronger powers are needed, particularly when they go so far as to not link a crime with assets.

There are some provisions in the bill which concern hardship. I will give a practical example. A person may be a dependant of a someone who is involved in serious drug activity.

A dependant may be living in an offender's house, which has been acquired as a result of an inheritance from a person who has not been tied to a criminal activity. As I have said many times, although we may want the proceeds of crime to be confiscated from criminals, we need to be careful about the effect such confiscation will have on dependants and other people who have no connection with the crime. As I have also said, I believe the existing provisions in the act are sufficient to deal with such matters.

The bill also contains significant changes to the Criminal Procedure Act 2009, referred to as 'other matters' in the bill. It is interesting that significant changes to significant acts are referred to as 'other matters'. The bill amends the Criminal Procedure Act in relation to the cross-examination of a witness at a committal hearing by introducing a more rigorous test for determining when leave to cross-examine at a committal is to be granted.

The minister has said that these changes are necessary to make committal hearings more efficient and to stop unnecessary questioning of witnesses in committal proceedings.

It is interesting that the Law Institute of Victoria opposed all of these changes and said they were not necessary for the more effective or efficient running of the courts. In fact in its letter to the Attorney-General dated 7 July it stated:

    ... the overall effect of the proposed amendments may in fact create inefficiency and delay, rather than reduce it. We are of the strong view that the proposed amendments represent a fundamental curtailment on the important committal process, will lead to more matters proceeding to trial, and will increase the length of trials.

    Magistrates currently have adequate power to ensure that the questioning of a witness in a committal hearing is relevant and probative, and to prevent unjustified cross-examination. To require an accused to articulate all issues relevant to his or her defence in order to obtain leave of the court to cross-examine relevant witnesses at the committal stage also marks a significant shift away from the accused's fundamental right to silence.

There are concerns about the restrictions that are being put on committal hearings with regard to changes this bill makes to the Criminal Procedure Act 2009, which apply to the committal mention and the committal hearing. In cross-examining witnesses it is not always possible to identify up-front what particular matters defence counsel might want to raise with a witness because some of those matters may arise from the answers that a witness provides to the questions. To have to keep stopping and starting a hearing to get leave of the court to proceed seems unnecessary given the powers the magistrate already has to oversee committal proceedings under the Criminal Procedure Act.

Other changes being brought in by this bill concern protective services officers, one of which is to confer on PSOs powers police have under the Summary Offences Act 1966 -- that is, move-on powers and the power to request the name and address of a person. The Greens did not support the bill to introduce the move-on powers in the first place, so we certainly do not support any amendments to confer more powers on PSOs under that act. That is a concern. On quite a few occasions I have raised with the Attorney-General a system used in the United Kingdom where police who use their move-on powers must issue a receipt to the person they have asked to move on so there is a record of who the police are asking to move on, in what places and for what reasons. At the moment in Victoria those powers can be used by police with no oversight as to how they are being used or if they are being used appropriately.

We have raised many concerns about the appropriateness of those powers and their use, particularly against minority groups in the community, which has been the experience in other jurisdictions.

The bill gives protective services officers the power to apprehend a person if the person appears to have a mental illness. This is also an issue of some concern. Interestingly, the submission by the Human Rights and Equal Opportunity Commission was not previously on the Scrutiny of Acts and Regulations Committee (SARC) website but has just appeared either yesterday or today. The commission submitted:

    ... that these reasons are not sufficient to prevent the power to detain from being arbitrary.

    On both meanings of the term arbitrary -- the 'dictionary' meaning (where a decision or action is not based on any relevant identifiable criterion but stems from an act of caprice or whim) or the 'human rights' meaning (where a decision or action is capricious, unpredictable or unjust or unreasonable in the circumstances in the sense of not being proportionate to the legitimate aim sought the power) -- the power has elements of arbitrariness, namely:

 a. the power to determine whether a person 'appears to have a mental illness' is not based on any specified criterion. The provision only specifies that a PSO is not required to make a clinical judgement in determining whether a person appears to have a mental illness.

 b. the power is unpredictable being subject to the discretion of PSOs, who receive significantly less training than police officers (initially 12 weeks rather than 33 weeks) and do not have the same level of targeted training, supervision or support.

 c. the power is inherently discriminatory, restricted to people who 'appear to have a mental illness' rather than any person who needs to be apprehended to prevent serious and imminent harm to the person or to another person.

The Human Rights and Equal Opportunity Commission has raised these concerns. On many occasions I have raised concerns with regard to the training of PSOs, who receive only about a third of the training of police officers with regard to persons with a mental illness.

Under the current provisions such persons can be apprehended by police and delivered as soon as practicable to a safe place, usually a hospital or some other place that is safe for that person. It is not very clear here how this process is going to operate in terms of a PSO -- who does not have the training to deal with mental health issues -- apprehending a person and delivering them into the custody of police, how this is practically going to occur and the issues that it raises.

Even though police officers receive more training in dealing with people with mental health issues -- and the training of police officers is an issue I have pursued in Parliament -- this issue has been raised in many quarters. The Mental Health Legal Centre, the Federation of Community Legal Centres, the Law Institute of Victoria, the Ombudsman and the Office of Police Integrity have all raised the issue of the lack of ongoing training for police.

They have questioned whether the initial and ongoing training of police, let alone the lesser training of PSOs, is good enough. That is not a reflection on the PSOs; it is just that they have not received the appropriate level of training, and conferring on them this power when they do not have that training is a concern.

Other major changes made by the bill include amendments to the Major Crime (Investigative Powers) Act 2004 to make clear that the use of coercive powers extends to the prosecution of organised crime offences, not just their investigation. That is not of itself necessarily a problem, but the bill amends section 20 of that act to provide for the circumstances where the chief examiner and the Supreme Court must or may give a person who has been given a witness summons a notice that the summons is a confidential document and that it is a criminal offence to disclose its existence, its subject matter or any official matter connected with it.

The new version of section 20 omits the existing requirement that a notice must or may be given if a failure respectively to do so might prejudice the reputation of a person. This issue was dealt with quite extensively by the Scrutiny of Acts and Regulations Committee in its report on this bill.

Clause 163 amends section 43 of the Major Crime (Investigative Powers) Act in relation to directions that evidence must not be published or communicated by anyone and provides for the factors to consider in this. The new version of section 43 omits an existing requirement that a direction must be given if the failure to do so might prejudice the reputation of a person. SARC comments that the effect of these clauses may be to permit or require the publication of defamatory claims about a person which the person may not be able to contest in court. SARC states that:

    ... the committee observes that both the existing and new sections 20 and 43 regulate decisions by the chief examiner ... and are expressed to protect any 'person' (rather than just the summoned witness). As well, neither new section expressly states that 'witness' reputation will no longer be a consideration.

The committee notes that equivalent provisions governing the Australian Crime Commission, the NSW Crime Commission and Western Australia's Corruption and Crime Commission require the giving of a confidentiality or non-publication notice to protect the reputation of any person, and that no equivalent provisions in Australia bar a crime commissioner from considering such effects.

The Attorney-General's response to that particular issue raised by SARC appears in the Alert Digest that was tabled today. His response amounts to just an assertion that the provision is lawful. Of course it is lawful -- it has been put into the law. His response does not go to the question raised by SARC with regard to attacking the reputation of a person, which is a charter issue.

As I said at the beginning, the bill is very complicated.

It amends a large number of acts of Parliament which are referred to as 'other acts', some of which are very serious matters. I finish by saying that that is bad practice. It was the practice also of the former government to do this -- that is, to put a whole series of matters into huge omnibus bills and expect the Parliament to deal with those matters in some proper way even though many were unrelated to each other.

As I mentioned, the Greens consider parts of this bill to be good and support them. Unfortunately, they are outnumbered by those parts of the bill the need for which the Greens do not see any evidence. We consider that there are more than enough existing statutes relating to crime and the confiscation of the assets of crime as well as the operation of PSOs, for example, to deal with the issues addressed by the bill.

We consider the changes made to provisions about mental impairment relating to the Children's Court are good changes, but they are part 5 in a bill of more than 150 pages which, as I said, makes significant amendments to 20 acts as well as a whole raft of other amendments.

I repeat that I consider it poor practice to do that and particularly not to name the bill for what it is but to describe it as a criminal organisations control and other matters bill, with an eye to the publicity about the bill -- that is, that it is all about getting tough on criminal organisations -- when in fact there is a lot more than that in the bill. It is not very genuine for bills like this to be presented to the Parliament, and this matter should be considered by both the government and the government in waiting.

People in organisations, such as the ones I mentioned, take a lot of time and effort to go through legislation and provide as much feedback as they can to the government, the opposition and other MPs. We have the privilege of being able to get their views on legislation, but it is very difficult for those organisations to deal with this type of legislation. There is absolutely no need for huge omnibus legislation which covers a whole range of unrelated issues to come before the Parliament. As I said, for a whole lot of departments it might be okay to produce these bills, but it is not good practice for MPs and the public and their ability to deal with this type of legislation. Legislation should be honestly labelled and called for what it is. It should contain amendments to acts that are related to each other on the same theme and same issues, not a whole lot of them bundled together in an omnibus bill.

I will move that the bill be referred to the Legal and Social Issues Legislation Committee after contributions on the second-reading debate conclude, and I will raise some issues with the minister in the committee stage.

 

 

Ms CROZIER (Southern Metropolitan) -- I am pleased to rise and speak this evening in the debate on the Criminal Organisations Control and Other Acts Amendment Bill 2014, and I do so after sitting through the debate and listening to various members. First up, I commend the Attorney-General for his extraordinary commitment to his portfolio and for the work he has undertaken over the past three and a half years. The work he has done has ensured that Victoria is a safer place. The government makes no apology for the position it has taken on law and order. It is in line with community expectations and with what we promised coming up to the 2010 election. We have delivered on a number of law and order reforms, and this bill again highlights a number of concerns that have been raised with us.

The Criminal Organisations Control and Other Acts Amendment Bill 2014 contains a range of reforms to Victoria's criminal justice system. It amends the Confiscation Act 1997, the Criminal Organisations Control Act 2012, the Criminal Procedure Act 2009, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the Major Crime (Investigative

Powers) Act 2004 and the Sentencing Act 1991, and it also includes several other miscellaneous amendments to other acts. I will not go into those in detail as our lead speaker, Mr David O'Brien, eloquently did so in his contribution to the debate.

In her contribution to the debate Ms Pennicuik referred to part 5 of the bill and significant provisions about mental impairment and unfitness to be tried relating to the Children's Court. In relation to that aspect, the bill amends the Victorian Institute of Forensic Medicine Act 1985 to provide for the appointment of an additional council member to that institute. It also includes consequential amendments to the Working with Children Act 2005 and, as I said, amends the Crimes (Mental Impairment and Unfitness to be Tried) Act.

I will not go into a lot of detail in this area, but a number of stakeholders were consulted, including Victoria Legal Aid, Victoria Police, the Office of Public Prosecutions, the Department of Transport, Planning and Local Infrastructure, the Department of Human Services, the Department of Health, the working with children unit and the Victorian Law Reform Commission. Those stakeholders looked in detail at this area and were supportive of the changes.

I also refer to Ms Pennicuik's point in relation to protective services officers (PSOs) and the miscellaneous amendment set out in the bill in relation to their powers. The bill explains that a PSO may apprehend a person if they feel that will prevent serious harm to that person or someone else. That is only reasonable and fair. They are not going to take everything into their own hands.

Under the bill it is proposed that they hand over that person to the appropriate facility or police to allow them to deal with that person who might be, as I said, either at risk of serious imminent harm or in in danger of hurting somebody else.

I also draw the attention of members to some remarks made by Ms Pennicuik on the confiscation of the assets of crime. Ms Pennicuik believes the current law is strong enough to deal with confiscation powers. Clearly Ms Pennicuik and the Greens are out of touch with community expectations. We have seen in the media various stories highlighting serious criminal activity and about numerous cases where assets have been obtained through criminal activity. The community expectation is that it be dealt with, and that is what this part of the bill does. It does not, as Ms Pennicuik seems to think, deplete the dependants of those persons of their ability to live in a house with appropriate amenity.

What it does is strip offenders who have engaged in criminal behaviour of assets obtained through that criminal behaviour. I think that is absolutely what the community expects will happen, and I applaud the Attorney-General for taking this line.

Ms Pennicuik also raised concerns about the move-on laws and highlighted that, when the relevant legislation was debated in this house, the Greens were not supportive of that initiative. I think we are all aware of that. The government makes no apology for the move-on laws that allow for any law-abiding citizen to get to their place of work or in some cases to a medical clinic if they so desire and not be impeded by the minority groups that Ms Pennicuik described blocking them from getting to where they are going.

I will now comment on Ms Pulford's contribution to this debate and specifically on her comment that the government has put extraordinary pressure on the police due to budget cuts which have left them under-resourced. In fact the government has invested in the police force and in capital programs and infrastructure. In the 2014-15 budget there was a record police budget of $2.43 billion. In my own electorate of Southern Metropolitan Region, $360 000 was allocated for the upgrade of the Oakleigh police station, and more than $200 million will be spent on station upgrades right across the state. To say there were budget cuts and that this area has not been appropriately resourced is not entirely accurate.

In addition, the government has delivered on its promise of recruiting 940 protective services officers, and additional PSOs will come on line as they have proved to be a significant asset to the Melbourne metropolitan rail system.

People speak very highly of the work they are doing on our rail stations each and every day, and I commend the Minister for Police and Emergency Services and others on that initiative.

Ms Pulford also referred to spiralling domestic violence and how we have failed to respond to this issue. That statement was simplistic and completely ill informed. I remind her that in June of this year the Napthine coalition government signed up to the second action plan of the National Plan to Reduce Violence against Women and their Children 2010-2022, which was launched by state and territory ministers together with the Prime Minister. The plan is targeted at family violence and sexual assault and sets out a long-term and sustained commitment to respond to and prevent violence against women and their children. It builds on the work we have already done in this area.

There is no doubt that the Minister for Mental Health, Ms Wooldridge, has done an outstanding job; she has been at the forefront of the strategy to reduce violence against women and their children. The Napthine government has committed to additional support for the national plan and in its last budget committed a further $100 million to prevent and tackle domestic violence. We know it affects large parts of our community, and as a community we need to look at it and take a whole-of-community response.

After funding was allocated in the budget, Domestic Violence Victoria and No To Violence issued a media release on 30 May 2014 headed 'Victorian government's family violence announcement welcomed as an important first step', which began:

    Domestic Violence Victoria and No To Violence welcomes today's announcement from the Victorian government that an additional $30 million over four years will be allocated to protect and support women and children experiencing family violence.

Fiona McCormack, the CEO of Domestic Violence Victoria, is quoted in the press release as saying:

    We are encouraged that this announcement has come from the Premier. It is heartening to see his recognition that family violence is completely unacceptable, and one of the state's major social and economic issues. Victorian families and the wider community need this type of leadership to ensure collaborative efforts between government and non-government agencies in responding ...

That comes from the statement released by Domestic Violence Victoria and No To Violence.

Ms Pulford's simplistic statement and the opposition's policy position of establishing a royal commission into domestic violence is the easy way out, rather than tackling it and doing what needs to be done. This government is tackling the issue.

We are doing the work, we have the support of groups such as the two I have mentioned for that work, and the national plan is being implemented right across the country to address the issue. I commend Minister Wooldridge and the government on their stance on violence against women and their children.

To return to the bill, I commend the Attorney-General on the significant amount of work he has done in looking at this area, particularly in relation to the confiscation laws. The community expects us to address this issue, and that is exactly what we are doing. I commend the bill to the house.

 

 

Mr RAMSAY (Western Victoria) -- I am pleased to be able to provide a very small contribution to the debate on this bill, which is a quite large one made up of a lot of different parts. In doing so I take the opportunity to reconfirm and reinforce the Napthine government's commitment to reform of the justice system.

We have seen, for over three and a half years now, a number of pieces of legislation that not only reform but enhance the justice system. We have also seen legislation dealing with sentencing and the Napthine government's commitment to a robust law and order platform.

In conjunction with that it is pleasing to see that the election commitment to increase front-line police by 1700 has been surpassed. It is also pleasing that we have met the commitment for the provision of 940 protective services officers and their presence at railway stations from 6.00 p.m. until the last train. Those commitments have already been fulfilled, and they are an important part of our law and order policy platform.

I will speak to part of this bill only and, given the time I have available to me, it is probably appropriate that I focus on the amendments in relation to the Confiscation Act 1997.

Other parts of the bill cover the Criminal Organisations Control Act 2012, the Firearms Act 1996, the Major Crime (Investigative Powers) Act 2004, the Criminal Procedure Act 2009, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and a range of miscellaneous amendments about which I will not go into detail because they have been covered in previous contributions.

I have an interest in the Confiscation Act, and that is the legislation to which I will speak. It dovetails well into the current parliamentary Law Reform, Drugs and Crime Prevention Committee, which I chair, and its inquiry into the supply and prevalence of methamphetamines in Victoria, particularly ice. Part of the work of that inquiry is looking at proceeds from crime and unexplained wealth. It is pleasing to see in this bill today a response in relation to the confiscation of all property belonging to serious drug-trafficking offenders.

When the report of the inquiry is tabled during the next sitting week, it will show that there has been a significant increase in Victoria in the supply and use of crystal meth, which is known as ice. The bill strengthens existing provisions in the act, and it also contains safeguards to ensure that innocent third parties are not disadvantaged by the forfeiture of assets. There are also hardship provisions in the bill in relation to forfeiture, so we are trying to make sure that third parties are not financially or socially affected by the new provisions in this act.

The amendments to the Criminal Organisations Control Act, about which I do not have time to go into detail, curtail activities when organisations pose a threat to public safety. Others will go into more detail about that. The Firearms Act provides for a fit and proper person test, but it is the confiscation amendment that I wish to speak to. This new legislation is supported by the public. Members of the public are sick and tired of seeing TV images of Tony Mokbel flaunting himself as a criminal and thumbing his nose at the law. As I understand it, his criminal enterprise still seems to be ticking over regardless of the fact that he is incarcerated. In fact he is still making money from his criminal activities, and this legislation will put a halt to that.No longer will criminals be able to keep their assets safeguarded from their crimes, and offenders convicted of serious drug offences will forfeit all their assets. Under new laws the assets of criminals do not have to be linked to crime, and that is a particularly important and significant change to previous legislation. An order will stop the disposal of property from the time a person is charged until the outcome of that person's trial, so assets cannot be dispersed under different names or companies.

The Attorney-General, Robert Clark, calls drug traffickers 'peddlers of death and misery who wreak a terrible toll on young lives'. That is true, and it is certainly what has been borne out during the current inquiry into methamphetamine use.

A benefit of the new legislation is that it stops assets being reinvested to finance further criminal activities, which is often the case in high-end drug trafficking. Under existing legislation assets obtained legitimately were separated from assets that were the proceeds of crime. The bill will address that anomaly. In closing, given the short amount of time I have to make my contribution to this debate, I say that this is a good component of the legislation. It certainly sends a very loud and clear message that if you do the crime, you will not be protected by the legislation that currently enables you to carry on your criminal activity and control your assets.

In fact this legislation will seize assets, regardless of whether they are connected to crime or not.

On that basis, and given the support for this bill, which I understand is being supported by all parties, the loud and clear message to those who want to engage in high-end criminal activity is that their assets will not be safe under any circumstances. I commend the bill to the house.

 

 

Mr ONDARCHIE (Northern Metropolitan) -- What a pleasure it is to have the opportunity to speak in the debate on the Criminal Organisations Control and Other Acts Amendment Bill 2014. As others have indicated, this is an omnibus bill which makes changes to a number of acts. Essentially it makes it harder for organised crime syndicates to go about their business. I acknowledge the contributions of David O'Brien, Simon Ramsay and Georgie Crozier today as they outlined the key elements of this bill.

For the efficiency of the house I choose not to go over those elements again.

Most of the issues addressed by the bill are related to drugs and their insidious impact on our society. Time and again we see organised crime gangs ready and willing to distribute substances that they know are not fit for consumption and drive substance abuse. They do not care how society is affected; they simply care about money, loyalty to one another and solidarity above all else.

I have previously spoken about the way gangs, such as bikie gangs, take advantage of elements of our legal system, such as the burden of proof. This bill closes off some of the loopholes that allow them to conduct their business, but in a way that is targeted so that those traditions are upheld in other circumstances.

Extraordinary circumstances sometimes call for extraordinary measures, and lowering the burden of proof for applying a restrictive declaration to apply a control order to be on the balance of probabilities, rather than beyond reasonable doubt, is one of those. It is not something the government is planning to do across the board, but in this instance I believe it to be very important.

These declarations mean that suspects have less ability to offend while relevant organisations are collecting evidence. This is particularly pertinent when revenge attacks could be planned, as conflicts between warring gangs tend to flare up into a frenzy of attacks in a short period of time. Members of organised crime syndicates sometimes try to get around control orders by joining different organisations that have no control orders against them.

This legislation takes reasonable steps to ensure that this cannot happen by making members of organisations subject to these orders regardless of what organisation they are part of. The only way they can avoid these conditions is to cease involvement with these organisations.

Despite the seriousness of the issue of organised crime, the government has taken a calculated approach to this reform. We have not gone to the level that the Queensland government has, but we have made meaningful policy reform that will make it harder and harder for these people to conduct their illegal, insidious business. We are sending a strong message to serious drug offenders that they will not be able to profit from their crimes. When they are brought to justice they will lose most of what they own, whether they own it lawfully or not, with certain reasonable exceptions where dependants are concerned.

I want to make a comment about the protective services officers (PSOs). These PSOs are doing such a marvellous job across Victoria -- such a marvellous job at our railway stations, at Parliament House, the shrine, the courts and other places. These are the same PSOs that Labor Party members called plastic police and failed police applicants. We know that to be not true. Our PSOs are doing a remarkable job and, interestingly enough, those across the political divide are now calling for more PSOs. They objected in the first place for political expediency, and now they are saying, 'Can we have more of them?'. Nothing surprises me about the state opposition.

Coming back to the bill, we have all seen the flashy drug-dealer lifestyle portrayed in various films and TV shows.

This government is trying to shatter that illusion and demonstrate that a life of crime will leave you in rags, not riches. I commend this important bill to the house.

House divided on motion:

Ayes, 35
Atkinson, Mr Melhem, Mr
Coote, Mrs Mikakos, Ms
Crozier, Ms Millar, Mrs
Dalla-Riva, Mr (Teller) O'Brien, Mr D. D.
Darveniza, Ms O'Brien, Mr D. R. J.
Davis, Mr D. O'Donohue, Mr
Drum, Mr Ondarchie, Mr
Eideh, Mr Peulich, Mrs
Elasmar, Mr (Teller) Pulford, Ms
Elsbury, Mr Ramsay, Mr
Finn, Mr Rich-Phillips, Mr
Guy, Mr Ronalds, Mr
Jennings, Mr Scheffer, Mr
Koch, Mr Somyurek, Mr
Kronberg, Mrs Tarlamis, Mr
Leane, Mr Tee, Mr
Lenders, Mr Tierney, Ms
Lewis, Ms

Noes, 3
Barber, Mr (Teller) Pennicuik, Ms
Hartland, Ms (Teller)

Motion agreed to.

Read second time.

    Referral to committee

 

Ms PENNICUIK (Southern Metropolitan) -- I move:

    That the Criminal Organisations Control and Other Acts Amendment Bill 2014 be referred to the Legal and Social Issues Legislation Committee for inquiry, consideration and report by 18 September 2014.

I move this referral motion because we have before us an omnibus bill that makes significant changes to 20 acts of Parliament as well as a whole raft of other so-called miscellaneous amendments.

Some of those so-called miscellaneous amendments are in fact quite serious and significant amendments. There have been a lot of representations about the changes made by the bill, which I went through in some detail in the second-reading debate. I will not go through them again here except to say that even while I was speaking on the bill, and even just before I moved this referral motion, I was receiving more representations from groups in the community about their concerns with aspects of the bill.

We only just received the minister's reply to questions raised by the Scrutiny of Acts and Regulations Committee, so of course the bill sailed through the lower house with no reference to the issues raised by that committee or the minister's response. As I said, I have been receiving representations from groups about this bill right up until now, as I sit in the chamber. We need the opportunity, because it is an omnibus bill covering so many unrelated topics, to have a couple of weeks to look at it.

The bill could still be passed before Parliament is prorogued in October. This is one of those bills that is raising community concerns, and true to form I like to use my power as a member to request that a bill be referred to a committee for inquiry if there is public concern about it.

 

 

Ms PULFORD (Western Victoria) -- The opposition is not supporting the referral motion. We have had an extensive briefing from the government on the provisions in the bill, and on this occasion we do not believe a referral is necessary.

Hon. E. J. O'DONOHUE (Minister for Liquor and Gaming Regulation) -- The government will be opposing Ms Pennicuik's motion. We believe these changes are very important and necessary. They are in the interests of community safety. The Greens want to delay these important legislative changes. Ms Pennicuik referred to the Alert Digest tabled today.

I thank the Attorney-General for providing a response to the issues raised by the Scrutiny of Acts and Regulations Committee that have informed the second-reading debate. There is no reason to delay. There is no reason this bill cannot be passed, and the government wants it to be passed so these important changes can be introduced in the interests of community safety.

The final point Ms Pennicuik made is that she has had representations from a range of groups about this bill. I can advise Ms Pennicuik that I have received a range of representations from members of my electorate and members of the broader community who want decisive action on these issues. That is exactly what this bill proposes and is exactly why the government wishes to pass the legislation. We welcome the support of the opposition in opposing Ms Pennicuik's motion.

Ms PENNICUIK (Southern Metropolitan) -- I must say that again I am very disappointed that the opposition is not supporting in principle the motion to provide scrutiny of the legislation that is before us. It is a large omnibus bill.

The Minister for Liquor and Gaming Regulation made assertions that he has had representations from members of his community. I am not sure if they suggested the amendments he has made to the various acts -- I would be very surprised if they had -- but he did not refer to organisations that support the various amendments being made by this bill. On the other hand there is a lot of concern about it. The bottom line is there is no evidence being produced or any credible argument or case being made for most of the amendments in this bill.

The number of attempted referrals to our standing committees that have been opposed by this government just as a matter of course is certainly somewhere in the mid-40s. That is an indictment of the government and a record it should not be proud of -- that is, that it has not supported the referral of any legislation to the Legal and Social Issues Legislation Committee or any other legislation committee in this place.

It has opposed all such referrals, and that shows a disregard for the processes that have been put in place for the scrutiny of legislation in this place. That is a record the government should be really ashamed of. It is all very well to just use the numbers to squash any scrutiny or proper debate in the chamber, but it does not reflect well on the government and certainly does not reflect well on the government's leadership.

I note Mr Davis is doing his usual thing where he just has a conversation and pretends all this is not happening. It is bad form by the government. The motion should be agreed to. I commend the referral to the house.

House divided on motion:

Ayes, 3
Barber, Mr (Teller) Pennicuik, Ms
Hartland, Ms (Teller)

Noes, 35
Atkinson, Mr Melhem, Mr
Coote, Mrs Mikakos, Ms
Crozier, Ms Millar, Mrs (Teller)
Dalla-Riva, Mr O'Brien, Mr D. D.
Darveniza, Ms O'Brien, Mr D. R. J.
Davis, Mr D. O'Donohue, Mr
Drum, Mr Ondarchie, Mr
Eideh, Mr Peulich, Mrs
Elasmar, Mr Pulford, Ms
Elsbury, Mr Ramsay, Mr
Finn, Mr Rich-Phillips, Mr
Guy, Mr Ronalds, Mr
Jennings, Mr Scheffer, Mr
Koch, Mr Somyurek, Mr
Kronberg, Mrs Tarlamis, Mr (Teller)
Leane, Mr Tee, Mr
Lenders, Mr Tierney, Ms
Lewis, Ms

Motion negatived.

Sitting suspended 6.35 p.m. until 8.03 p.m.

Committed.

Committee

Hon. E. J. O'DONOHUE (Minister for Liquor and Gaming Regulation) -- I seek leave of the committee to allow Mr O'Brien to join me at the table.

Leave granted.

Clause 1

Ms PENNICUIK (Southern Metropolitan) -- I will be restricting my questions to clause 1. I have only a couple of questions, mainly with regard to the amendments to the Criminal Organisations Control Act 2012. I ask the minister how many organisations have been declared 'organisations' or individuals declared 'individuals' under the current act.

Hon. E. J. O'DONOHUE (Minister for Liquor and Gaming Regulation) -- Zero.

Ms PENNICUIK (Southern Metropolitan) -- That is an interesting answer, and one I anticipated hearing, because in the debate on the original bill that sought to establish the Criminal Organisations Control Act, the answer to how many organisations or individuals had been declared anywhere in Australia under any of these regimes was 'none'. So my follow-up question to the minister is: is that why the government is reducing the thresholds for the declaration of an individual or an organisation?Hon. E. J. O'DONOHUE (Minister for Liquor and Gaming Regulation) -- The amendments to the Criminal Organisations Control Act will simplify the procedure for seeking a declaration or control order against a criminal organisation and improve the effectiveness of those orders. Criminal organisations remain a significant threat to public safety. Control orders have the potential to disrupt criminal organisations and prevent them from carrying out further activity, particularly where traditional methods of law enforcement have not been effective. The amendments to the act will ensure that it is better able to meet this purpose while retaining appropriate safeguards.

Ms PENNICUIK (Southern Metropolitan) -- I hear that, but I have also read the bill so I know what is in the bill and what it does, including reducing the standard of proof that is required to make a control order, reducing an indictable offence from 10 years to 5 years and so on. Is the minister able to tell me how many applications have been made by police for control orders?

Hon. E. J. O'DONOHUE (Minister for Liquor and Gaming Regulation) -- To date there have been no applications.

Ms PENNICUIK (Southern Metropolitan) -- Even though this legislation has been in place for around 18 months, there have been no applications by police to use the legislation. Apparently it was put in place to reduce crime. Now the government is reducing the standard of proof and the thresholds required for the application for or declaration of a control order. I would have to say that this regime is not working.

My final question for the minister is: has the government taken any advice with regard to the constitutionality of the amendments being made to the Criminal Organisations Control Act 2012 that reduce the standard of proof from being beyond reasonable doubt to being on the balance of probabilities?

Hon. E. J. O'DONOHUE (Minister for Liquor and Gaming Regulation) -- In response to Ms Pennicuik's question, I am advised that the Criminal Organisations Control Act 2012 was developed having careful regard to the High Court decisions in cases involving similar schemes in South Australia and New South Wales. The powers of the act have been framed in such a way as to avoid the specific features of the interstate schemes that have given rise to constitutional problems. For example, the power to make declarations and control orders is vested in the Supreme Court, which will act in its usual judicial manner and has full discretion in exercising those powers.

Ms PENNICUIK (Southern Metropolitan) -- As I mentioned during the second-reading debate, a challenge to the Queensland legislation is pending in the High Court and certain sections of the New South Wales and South Australian acts were thrown out. They may have been amended accordingly, but to my knowledge still no organisations and no individuals have been declared. That is all I wanted to flesh out with the minister with regard to this legislation. I have no further questions.

Clause agreed to; clauses 2 to 187 agreed to.

Reported to house without amendment.

Report adopted.

    Third reading

The PRESIDENT -- Order! The question is:

    That the bill be now read a third time and do pass.

House divided on question:

Ayes, 35
Atkinson, Mr Melhem, Mr
Coote, Mrs Mikakos, Ms
Crozier, Ms Millar, Mrs
Dalla-Riva, Mr O'Brien, Mr D. D.
Darveniza, Ms O'Brien, Mr D. R. J.
Davis, Mr D. O'Donohue, Mr
Drum, Mr Ondarchie, Mr
Eideh, Mr Peulich, Mrs
Elasmar, Mr Pulford, Ms
Elsbury, Mr Ramsay, Mr (Teller)
Finn, Mr Rich-Phillips, Mr
Guy, Mr Ronalds, Mr
Jennings, Mr Scheffer, Mr
Koch, Mr Somyurek, Mr
Kronberg, Mrs Tarlamis, Mr
Leane, Mr Tee, Mr
Lenders, Mr Tierney, Ms
Lewis, Ms (Teller)

Noes, 3
Barber, Mr (Teller) Pennicuik, Ms
Hartland, Ms (Teller)

Question agreed to.

Read third time.


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