ATTORNEY-GENERAL JOHN RAU
SPEECH TO THE POLICE ASSOCIATION OF SOUTH AUSTRALIA
EMBARGOED: 1.15PM, FRIDAY 27 APRIL, 2012
Civil Liberties..whose are most of deserving of our protection ?
“A comparatively small group of people in this community are waging war on it
in an organised fashion across a wide spectrum of criminality... if nothing is
done about the current problem, within five years this country will have
become a jungle. The wild animals will not bite everybody, but their presence
will be known and feared... I believe their activities cannot be checked by
existing law-enforcement agencies with the powers that they are given.”]
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These are not my words.
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They are the words of Commissioner Frank Costigan QC ,the Royal
Commissioner appointed thirty years ago by the then Liberal Prime Minister,
Malcolm Fraser to inquire into the activities of the Ship Painters and Dockers
union. Frank Costigan QC. was almost certainly the first significant figure to
ring the alarm bells about the existential threat to the Australian way of life,
posed by organised crime.
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But, he has not been the last.
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As you may recall, Costigan was appointed to inquire into what was, by any
objective standard, a rogue Trade Union.
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What happened, was an unexpected and explosive revelation.
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Costigan lifted one small corner of a vast, filthy veneer hiding the criminal
underworld and an interlocking web of corruption and graft, was exposed to
the sunlight.
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Costigan’s findings could not be ignored. This led, inexorably, to the
establishment of the National Crime Authority and its successor, The
Australian Crime Commission.
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But, has Frank Costigan’s chilling prediction come to pass?
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Has it been averted ?
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Has organised crime been defeated, or crippled, or has it evolved and,
adapted, like an insidious social analogue of HIV?
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Is organised crime a clear and present danger to our civil society, to our
confidence in public safety, to our civil liberties in the broadest sense, to the
Rule of Law and consequently, to the fundamental pillars of our democracy?
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My answer is uncontestably, "Yes".
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In perhaps the greatest aspirational passage of The Enlightenment, Thomas
Jefferson wrote into the American Declaration of Independence these words:
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“We hold these truths to be self-evident, that all men are created equal,
that they are endowed by their creator with certain unalienable rights,
that among these are life, liberty and the pursuit of happiness."
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It is also self-evident that these rights are not and can never be, absolute. If
taken to their extreme in the case of particular individuals, these very rights
would be destructive of civil society, law and order, and the peaceful pursuit of
happiness, by the vast majority of citizens.
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Organised criminal groups do not consider that the law applies to them. In
their own terms, they stand outside the law, for all practical purposes. They
are emboldened by their sense of invulnerability.
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Recent months in Adelaide demonstrate this clearly:
o In September last year, a boy is shot twice in the leg after a firearm is
discharged into a home.
o In December, diners in North Adelaide are terrified by a public gunfight.
o In January this year, shots are fired in a hotel car park and, in a
separate incident, a young man loses his life.
o This week we have seen separate shooting incidents, several linked to
outlaw motorcycle gangs.
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The very existence of an organised criminal minority, must be recognised for
what it is. It is an attack upon the civil liberties and freedom of the vast
majority. They are parasites on an otherwise healthy community.
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Clearly then, a balance needs be struck between the rights of an individual,
and the collective rights of a civil society. To think otherwise is to invite
anarchy, and to destroy the rule of law.
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The solution is not one capable of mathematical calculation. The art is in
striking a balance between a known threat to the legitimate pursuit of
happiness by the overwhelming majority, and the infringement, or
containment of the liberty of a small minority.
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This is the contested ground.
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Informed people of goodwill may genuinely hold different opinions about
where this balance is to be struck.
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However, it is incumbent upon people who would shape public policy, to be
fully informed about the nature and extent of the threat to our community
before seeking to strike this balance. This is not an academic exercise that
can be undertaken in the abstract, or without context.
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To do so, is an abdication of public responsibility, in pursuit of theoretical
purity, or worse.
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Here then, is some context.
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What is the nature of this problem ?
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Since Frank Costigan's report, we know that organised crime has become
infinitely more sophisticated. Organised crime is now able to take advantage
of the revolutionary explosion in communications technologies and the almost
complete absence of effective international, national and sub-national
regulatory arrangements, to police this new cyber environment.
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30 years ago, organised crime gangs were involved in relatively traditional
criminal behaviour. It was still largely a time of stand over men and thugs.
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All of this has changed.
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Organised criminals do not all ride Harley-Davidson motorcycles. They do not
all have beards and they do not all fit the convenient "ZZ Top" stereotype.
Long standing locally grown and ethnic-based criminal groups have been a
sad feature of this country for many years. I need not remind anybody of the
circumstances surrounding the disappearance of Donald MacKay, or the
episodes of a more recent Melbourne inspired TV Series. These groups, and
others, of more recent origins, are still very much with us.
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My information from SA Police is that organised crime in South Australia is a
complex, intertwined beast.
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In contrast to the very visible presence of outlaw motorcycle gangs, there are
a range of other organisations who work very hard to remain concealed from
police and public attention.
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Police tell me that some of these groups are stable, while others adjust their
makeup in response to law enforcement efforts, criminal opportunities and
collaboration with other criminal groups.
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These groups can quickly disperse and reform.
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Complicating the picture is the fact that outlaw bikie gangs are intertwined
with other criminal groups.
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Neither group operates in a silo, which makes it difficult to provide a neatly
delineated picture of organised crime.
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However, I am advised that SAPOL is monitoring about 45 criminal groups, of
which 15 involve outlaw motorcycle gangs.
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In total, these groups directly comprise a core group of about 500 individuals.
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About half of these are members of outlaw motorcycle gangs.
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These numbers, however, are indicative only. What is clear is that outlaw
bikies are the visible tip of a much bigger criminal ice-berg.
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Illicit drugs remain the principal focus of criminal groups and there is a welldocumented nexus between drug trafficking / use and other criminality such
as theft, fraud, serious assaults, robberies, firearm incidents and public
disorder1.
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The major illicit drug markets in Australia are multi-billion dollar enterprises
which provide an opportunity for significant numbers of syndicates to operate.
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In South Australia, criminal groups have a high level of involvement in the
methylamphetamine market. In 2010/11 seventy five (75) clandestine
amphetamine laboratories (clan labs) were located in SA.
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Criminal groups have embraced the internet, both as a means to obtain
information, equipment and precursor chemicals as well as to facilitate identity
crime, fraud, high tech crime, money laundering and a range of other
offences.
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The synthetic / analogue illicit drug market is evolving rapidly with a diverse
range of substances being sourced and used throughout Australia.
A read of Sentencing Submissions and remarks in SA Courts clearly demonstrate this nexus.
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The extent of credit card fraud continues to rise, with groups involved in credit
card fraud operating sophisticated encryption technology.
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In South Australia, criminal groups are engaged in an ever-increasing range of
crime and in many cases the groups are simultaneously represented in a
series of markets.
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The commodities they traffic include all forms of illicit drugs, stolen property,
firearms, intellectual property, information, people, pornography and illicit
tobacco.
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They engage in identity crime, fraud, money laundering, tax evasion, acts of
violence, extortion, attempts to pervert the course of justice and corruption.
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Behind the all-too-common firearms offences – the shots fired on suburban
streets – is a mass of illicit activity. The threat to public safety posed by the
trigger-happy members of the criminal underworld is of deep concern and
adds to the Government’s sense of urgency to get new legislation through
Parliament, particularly laws to ensure the continued use of criminal
intelligence – but I’ll come to that later.
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Criminal groups in SA – as elsewhere – are innovative and resilient.
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Many include transnational groups, some of which are well entrenched.
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Like legitimate businesses, criminal groups utilise lawyers, accountants and
sectors of the transport industry to further their criminal activities.
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It is estimated that organised crime costs Australia between $10 and $15
billion every year, representing a significant threat.
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Criminal groups operating in SA, as in other States, cause significant harm to
the community.
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The direct impact of organised crime on ordinary citizens is enormous –
members of families injured in attacks or damaged by drug addiction; having
property ransacked; living in a climate of fear caused by these ‘wild animals’
waging war on suburban streets.
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Indirect impacts include what everyone pays for law enforcement under the
current configuration of laws; not to mention insurance premiums; cost to the
health system; and more.
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The widespread impact extends to costs associated with longer-term health
and social harm. The activities of organised criminal enterprises can also
undermine public confidence in the integrity of key business sectors and
government institutions2.
ACC Organised Crime in Australia 2011Report
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No one branch of the Police or any one law enforcement agency has a
monopoly on investigating serious organised crime due to its multi faceted,
complex nature that extends throughout the community.
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In summary, South Australia faces a threat which is complex, constantly
evolving, and highly dangerous.
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As legislators, we have a responsibility to the community we represent. We
have a responsibility to understand the nature and extent of problems
confronting us. We have a responsibility to consider the consequences of
failing to act. We have a responsibility not to be blind, through ignorance,
political correctness, or naïveté.
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This issue is much too important for that.
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In the end, it boils down to balance. On the one hand we have the clear risk to
civil society of organised criminal groups being permitted to function. On the
other, the risk to the liberty of the overwhelming majority of law-abiding
citizens, in taking the necessary steps to prevent "the wild animals" biting
everybody, or everybody having their decent, lawful, lives, impinged upon and
coloured by the fear of being "bitten".
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I speak as a lawyer who cherishes my civil liberties, as a citizen who cherishes
my civil liberties, as a legislator charged with the protection of civil liberties,
who holds the rule of law sacrosanct, and as a person who currently enjoys
the privileged position of being a member of the executive government. Given
what I now know, I am extremely fearful that we currently do not have the
balance right.
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In perhaps, well-intentioned attempts, to protect the many, from the
demonstrably small risk of minor, infringements of civil rights, some are willing
to put the whole community to the unacceptable risk of being prey to
unscrupulous, utterly ruthless organised criminal elements.
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I reject this.
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The protection of the vast majority, must, in extremis, always trump the
theoretical protection of the few.
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Even the Jury system, for example, is not perfect, but who has offered its
equal, or better?
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The solution is strong State laws backed by a coordinated national effort.
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The ACC is an example of what is being done at the Federal level
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At the State level, our Police need the support of the Parliament to do their
job.
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If the police don’t have the powers to match the powers of their adversaries, it
will come at a cost to the entire community.
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This is why the Government is so determined to bring Police tools into the 21st
century.
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We are attacking some of the major weaknesses that organised criminals use
to frustrate police.
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We are increasing deterrents, not just by increasing maximum jail terms but
by taking away the assets of convicted criminals.
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We are seeking to support vulnerable witnesses and protect jurors from
intimidation.
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We are trying to break the code of silence which is arguably the major
impediment to making further inroads into the organised crime problem.
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Those who contest the Government’s approach on the basis of civil liberties
would do well to remember that a society where organised criminals are to all
practical purposes immune from the law, is not a society in which the rule of
law operates.
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These critics cannot see the wood for the trees.
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So how do we proceed?
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The Government has before the Parliament a raft of inter-locking legislation
designed to combat serious and organised crime.
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I’m pleased that the Upper House has passed a Bill to repair the antiassociation measures affected by decisions of the High Court in Totani and
Wainohu.
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I’m hopeful that an accompanying Bill – designed to further damage criminal
networks and protect witnesses – will also be supported by the Upper House
without significant amendment.
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However, I’m afraid that virtually every other anti-crime Bill has – or does –
face significant opposition.
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One of the most significant of these seeks to continue supporting Police in the
use so-called criminal intelligence.
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This Bill is crucial – not only to ensure SA Police can continue to use criminal
intelligence gathered here about the activities of local criminals, but also to
ensure interstate jurisdictions have confidence in our ability to protect the
sensitive information they give us.
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Amendments in the Upper House risk South Australia being viewed as an
unsafe pair of hands by intelligence agencies in other states and territories.
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We cannot afford to let this happen.
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Another Bill which has faced significant opposition is our legislation seeking to
encourage early guilty pleas.
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The criminal code of silence is arguably the most significant impediment to
successfully prosecuting organised criminals.
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The guilty pleas Bill would reduce backlogs and delays in the criminal justice
system, but it would also encourage offenders to provide valuable assistance
in relation to serious and organised crime.
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The discounts in the Bill are not intended to be overly rigid or mechanically
applied – in fact they are consistent with established judicial practice. The
decision remains in the court’s hands.
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The list of frustrated Bills goes on – and includes legislation which would allow
authorities to confiscate the assets of declared drug traffickers, whether or not
these assets have been demonstrably gained through legitimate or criminal
means.
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To those who do not support this Bill – I would respectfully suggest that they
talk to the current Government in Western Australia. They report to me that
similar legislation there, has been very effective.
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Why is this legislation important?
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Criminals are not stupid, as is clear from my previous summary of the
activities of organised criminals. They build their empires through a variety of
means, choosing not to put all of their eggs in one basket.
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In this way, outwardly ‘legitimate’ businesses are built with the infrastructure
and capital gained from criminal enterprises.
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This Bill will allow us to break the cycle, bringing criminal empires to a close.
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How many legitimate businesses are actually fronts and funding sources for
criminal gangs? How do they impact on totally legitimate businesses in the
same market space?
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I will also be announcing soon new measures to significantly strengthen South
Australia’s firearms laws – measures which will focus tightly on serious
firearms offenders and the most dangerous weapons in our community.
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These new anti-firearms measures will work in lock-step with new legislation
to control the activities of serious and organised crime networks.
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[Here, I would like to acknowledge Commissioner Mal Hyde – he has been
instrumental in the development of South Australia’s anti-organised crime
measures – measures that have put this State at the forefront of tackling this
problem.]
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Taken together, the Government’s package of anti-crime Bills should
represent a very significant update of the tools available to SA Police to tackle
organised crime.
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Our challenge – one we must not fail – is to learn the lessons of the past 30
years.
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Frank Costigan began his inquiries expecting to investigate one union an
instead found a many-tentacled beast.
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Today, we must not fall into the trap of believing our problem is confined to
bunch of blokes with beards on Harley-Davidsons. We must open our eyes to
the broader problem and the new tools that will be required to attack it.
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In fact, the danger now is that a total focus on bikies, may assist other groups
to hide from public view.
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While outlaw motorcycle gangs are a serious threat to public safety, they are
but the most visible demonstration of a more widespread problem.
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As Costigan discovered, organised crime gangs have tentacles everywhere.
They don’t operate in a sealed world only containing other criminals – rather,
they operate in a way which impinges upon the civil liberties of ordinary
people.
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The very existence of these groups is an attack on the civil liberties of lawabiding South Australians.
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Their activities come at a cost to all of us.
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This must be tackled head on.
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In 30 years, we must ask ourselves if we grasped this moment, or we let it
slide by due to fear, ignorance, laziness or a sense of ideological purity.
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We must ask ourselves whether preserving the privileges of a few is better
than allowing the rights of the many to be compromised.
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We must ask ourselves whether we are more interested in a theoretical
debate about legal principles, or a real attempt to fight organised criminals.
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For my part, I am determined to give Police the tools and legislative backing
they need to control the ‘wild animals’ who populate the criminal underground.
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The liberties of every South Australian are at stake.