Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018

Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018

Second reading

04 September 2018

Debate resumed from 25 July; motion of Mr PAKULA (Attorney-General).

Mr PESUTTO (Hawthorn) (16:05:28) — I am pleased to be able to rise this afternoon to speak on the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018. The first thing I would say is this bill should never have been necessary. This bill should never have been necessary because the government has made a mess of this, a complete and utter mess of anti-consorting laws in this state. We warned the government back in 2015 that it was on a frolic, a misadventure, when it brought in its changes to the anti-consorting regime. We warned them frankly and directly that the laws they were bringing in then would not work, and it has come to pass.

The mess that the government created back in 2015 has indeed been nothing short of a disaster. It is a disaster because the laws have not been used — Victoria Police reported in this Parliament last year that they had not issued any unlawful association notices in all the time since the government brought these changes in — but it is also lamentable because this has occurred at a time when we have had the emergence, make no mistake, of a gang culture in this state. And who can deny it? Who can deny that outlaw motorcycle gangs are stronger now than they have ever been? They are just openly defiant. They have a contumelious disregard for law and order in our state — contumelious, my good friend, the member for Gippsland South — an utter disregard for the law.

Not only do we have outlaw motorcycle gangs out of control; we also have youth gangs out of control, and yet the government over there denies that we have a youth gang culture. Well, how do you explain that to the people of this state when you only have to go back a little over two years to the Moomba riots or when you consider the riots on the St Kilda foreshore, the wreckage that was meted out at the Ecoville centre in Tarneit, the Taylors Hill riot, the Collingwood riot and various gang assaults in and around Melbourne in particular? We have a problem in this state and the government is at sixes and sevens as to what to do about it.

Sometimes they let the cat out of the bag. I see the Minister for Police sitting at the table. She recognises that there is a problem — sometimes. She is on the record saying that people feel terrorised, and that the community has a right to feel unsafe in this present climate. That is the police minister, who is in charge so it seems of protecting our communities along with the Attorney-General, and who we would expect to do more in this space. Even the Minister for Police is admitting that there is a problem, so this farce of an anti-consorting or unlawful association regime that the government has brought in has exacerbated the problem and has allowed this gang culture to emerge.

When I talk to frontline police officers and people involved generally in law enforcement, they echo the concerns I am articulating now. They feel powerless to be able to take charge of situations and they are vastly outnumbered, despite what the minister and Premier were trying to assert in question time today. We know that the Police Association Victoria through its secretary, Mr Wayne Gatt, said yesterday that according to reports from their members, on Saturday night and in the early hours of Sunday they were understaffed for that riot and they did not have enough resources.

The Premier and the police minister are out there saying that they have resourced the police, as the Chief Commissioner of Police has said. Well, why is it that frontline police officers feel understaffed? Why are they not able to perform arrests? I will tell you why they are not able to perform arrests: it is because there is not enough of them. There is not enough of them where we need them to be; we need them out in the streets and in our communities protecting the Victorian people — but no arrests, maybe one or two.

Let us be clear why there have been no arrests. It is not only that we do not have enough police where we need them and when we need them; it is also the case that as part of other 2015 changes, this government weakened the ability of Victoria Police to perform arrests when it comes to juvenile offenders.

Ms Neville interjected.

Mr PESUTTO — Yes, the minister may not recall it, but there were some changes made in 2015 to the Children, Youth and Families Act 2005 that created a presumption in favour of proceeding by way of summons, not by way of arrest, for violent conduct. What message does that send to Victoria Police? It sends a message to them that they should not look to do that before they have exhausted all other options. Now, you tell that to a police officer — a policewoman or a policeman — in the middle of a riot in the wee hours of Sunday morning on a weekend that they have to be attuned to the Children, Youth and Families Act and what might happen to them if they are accused of not observing it. How much harder is it for them when the friends of this government, the Flemington and Kensington Community Legal Centre, are reported to be lying in wait to accuse any police officer of overstepping the mark.

So what happens? We have a culture and an environment in this state, overseen by the Minister for Police, where police are not given the support they need to do what we need them to do, and they admit that openly when you talk to them. When you look at the range of changes taken in combination we now have a justice system that is weaker, that is softer than the one this government inherited, and these changes to the anti-consorting regime have made a difficult task even harder. Imagine that — you bring in and herald a new regime which is designed to bust up the gangs, to reinforce what the Premier proudly boasted was his plan to bust the gangs or to smash the gangs, and yet not one notice has been issued.

Now, until you have a system that police can actually use, these gangs are not going to be brought to heel, they are going to continue to grow.

We know they do not operate in isolation. They operate in conjunction with other youth gangs, with outlaw motorcycle gangs and with other sophisticated syndicates that recruit these young, impressionable and vulnerable gang members and usher them into a life of crime. Unless we can smash that culture, truly smash it, this problem is only going to get worse.

Having warned the government back in 2015 that its changes were going to result in a completely ineffective system, which has come to pass, we have this bill here today. It took the riots and wreckage of early January — remember that, Acting Speaker? I remember because I was on duty and I almost had to go out every day to offer comment on behalf of my colleagues and I on the gang behaviour that we were seeing — the aggravated home invasions and the violent, antisocial behaviour in parts of western Melbourne that deserve so much better. I remember having to go out, and I remember various positions by the government and various positions by the senior leadership of Victoria Police as to whether there was a gang problem or not. I think after many twists and turns there was an emerging view, it seems, that there was in fact a gang problem.

The situation continued to change, but what we saw at that time was a remarkable admission by senior commanders in Victoria Police that they did not have the power to crack down on these youth gangs. Do you remember that, Minister? They did not have the power. Why? Because the changes that the government brought in in 2015 do not allow Victoria Police to issue these notices to people under 18.

Ms Neville — Give me that quote.

Mr PESUTTO — For the benefit of the minister, she might refer to comments by Mr Shane Patton in early January. I am happy to send the Minister for Police the comment that I have circulated to many people who have raised this with me that confirm his view and the view of Victoria Police that they did not have that power. It was that outbreak of gang violence which left Victorian communities exposed to the reality and the dangers of gang violence. It was that outbreak that led this government belatedly, unwillingly and humiliatingly to go back to the drawing board and see what it could do to repair the damage it had done when it overhauled the existing system, which admittedly could have been improved but at least was broader, and replace it with something which is mildly better.

This bill is not a bill we will oppose, but it is not a bill we are happy with in this sense. We are not happy with this bill because it does not go far enough. I still have doubts that this bill will do what is needed to smash these gangs — to really smash these gangs. What police need is a broader system that gives them far wider powers to break up these gangs. I can already look at a number of these provisions — which I am happy to say are an improvement on the disaster that is already there — and I can still see how gang members, particularly juvenile gang members, will be able to circumvent the operation of what is proposed in this bill.

That is it; we are not going to oppose it. As for the de novo matters which I will come to in a moment, we are not going to oppose those either. They have been raised with me as a concern over the time that I have been shadow Attorney-General, and I think it is something that should happen. We should start to filter, subject to appropriate safeguards, the right of people to appeal decisions of the Magistrates Court and the Children’s Court without ever so compromising the ability of parties to seek a correction in an appellate jurisdiction. I will come to those in a moment.

One thing I did express at the time of the bill in 2015 was that the threshold issues around the requirements of an unlawful association notice that prohibited the subject of that notice from associating with somebody else who was subject to that notice more than three times in a three-month period or more than six times in a 12-month period were easy to avoid. I pointed that out three years ago, and here we are with the Attorney-General in his second-reading speech acknowledging just that — that it has been too easy to get around.

It is often said that the anti-consorting regime in Victoria is something akin to the Switzerland of jurisdictions when it comes to anti-consorting regimes, and there is truth in that — a great deal of truth in it. Media reports over a long period have suggested that Victoria is a jurisdiction that is worth coming to if you are involved in organised syndicates or gang activity. What the bill proposes is that individuals can be charged with unlawful association if they associate with at least two convicted offenders, whether on the same or separate occasions, on at least two occasions each. That is an improvement, but I do have serious reservations about whether that will be enough.

When you have a system like this I think the measures that you need to introduce to seriously crack down on gang activity need to be far more sophisticated than this. How people associate is rapidly changing. We know at least through social media and other advancements in technology that how people associate is very different to how they did it two years ago or 10 years ago. We know that Facebook is now a popular way for gangs to congregate. Encrypted messaging is another way that gang members can coordinate their activities. This approach, which applies almost a mathematical calculus, is something that I suspect the subjects of these unlawful association notices will easily be able to avoid. But it is an improvement on what is there, so we are certainly not going to oppose it.

The bill will broaden the meaning of offence for the purposes of the scheme, and we think that is important. I did point out at the time in 2015 that this represented an unhelpful limitation on the powers of police to do their job.

I also note that sergeants and above may be able to issue unlawful association notices. We know that at present senior sergeants and above can issue unlawful association notices, and this hopefully will broaden that out, but I doubt that is the problem that we are facing in our system. We are not going to oppose it — it should help operationally — but the real issues are around the threshold.

I do want to note that the minimum age of persons who can be subject to this scheme will be lowered from 18 to 14 years of age. We are not going to oppose that; we think it is absolutely necessary that the minimum age be reduced, subject of course to safeguards where you have got juvenile subjects of these orders. But I also note that the requirements for convictions may well constitute an unhelpful barrier to the use of these notices. We are happy to see how the system works for the time being, but I do want to place on record our concerns about this requirement, which I think may preclude unduly the operation of these notices.

In terms of offences, as I said, the bill will make it easier and provide wider opportunities for these notices to be issued. The bill allows for internal review, and we do not oppose that so long as the internal review is not used to scupper legitimate and necessary efforts on the part of Victoria Police to seriously tackle gang and crime activity. Under this bill IBAC will be given a new oversight role in monitoring and reporting on the operation of the scheme. Again, that is something that we are prepared, obviously, to see happen, but let us remember that this scheme is already subject to judicial oversight and internal review, so there are plenty of opportunities for people who have reservations about or objections to the way that Victoria Police are performing their functions under these powers to seek a review of that.

IBAC already exists to tackle police misconduct, and its powers are quite broad in relation to police misconduct despite what some critics say. IBAC does have very broad powers. Whilst we are quite prepared to see this as part of the bill, I hope and trust that it will not become a de facto means of effectively precluding legitimate and necessary police efforts to seriously crack down on gang activity.

Safeguards in relation to vulnerable persons are again things that we are prepared to see come through. We know that there are many people in the system who are suffering from different kinds of physical disability or mental illness. We know that these are often associated with criminal activity, but again we hope and trust that the provisions in relation to vulnerable persons will operate as just that and that others will not try to abuse those provisions.

Before I move on to de novo appeals, I say this bill should never have been necessary. The government was warned — we warned them and Victoria Police, or certainly the Police Association Victoria, warned them at the time — so this is a humiliating backflip. I say to everybody watching and everybody who will read the debates around these changes: understand that you cannot trust the Andrews Labor government to manage community safety for four more years. You cannot trust them to give police the actual powers they need. When the Premier stands in this place and in other places saying that he has given Victoria Police all the powers they need, do not believe him. I say to everybody watching: do not believe him, because as recently as Saturday night Victoria Police members were telling their representatives in the police association that they did not have enough resources when it mattered most, so do not believe the Premier when he says he has given police the resources they need.

I say to everybody watching and to everybody who will read this debate: do not believe the Premier when he says that sentences will be tougher. Do not believe him when he says that bail laws will keep dangerous people off our streets, because they will not — we continue to see them out in the community. Just in question time today, Acting Speaker, you will recall a question from us about someone found guilty of manslaughter giving swimming lessons and playing football. That is jail under the Andrews Labor government, and it is not good enough. We can do better. I say to Victorians everywhere watching this debate: you deserve better and you can have better if you are prepared to vote for it in November of this year.

I do want to finish off on de novo appeals. I have long been concerned about the quantum of appeals and the basis of appeals from the Magistrates Court to higher courts. There is an issue, and I think the bill goes some way to alleviate that burden. I do want to point out that cases in the Magistrates Court, County Court and Supreme Court are taking longer under this government and they cost more under this government. In each of the jurisdictions cases cost more per case and take longer, and those delays are unacceptable. I think what needs to happen is that appeals do need to be filtered a little more than they are at the moment, and requiring leave to appeal in some cases is an appropriate change.

Bodies like the Criminal Bar Association, the Law Institute of Victoria and Liberty Victoria have pointed out some concerns about these changes, and those concerns are things we have considered — we do not take them lightly — but we are prepared, on the basis of what the government is presenting, to allow these changes through without any opposition from us to see if they can address the issues and relieve the burden on our court system, which is getting worse and worse, by placing reasonable filters in the way of appeals. As we understand the government’s advice to us and its supporting materials, these changes are not about stopping appeals. If somebody has an appealable basis for bringing their case to a higher court, we do not think there is anything in this bill that will preclude that person from pursuing an appeal, but we do think that this is a necessary step that needs to be taken to impose some rigour around appeals from the summary jurisdiction. As I said, I want to thank those organisations that have got in touch with me about their concerns. I have considered them, and they are not lost on us in considering our position. But we certainly think that given the burdens on the court — the volume of appeals — something needs to be done.

We will not oppose this bill. It will pass, certainly, this house, but along with many other bills it is likely to sit in the upper house.

In fact once this bill passes this house it will go to the upper house and it will join the other amendments that the government boasted about back in May. The government, you will recall, with our support, said it would change the law in relation to attacks on emergency workers, paramedics, police officers and other first responders. We had a bill ready to go in this place, and I stood right there back in May. I had a bill drafted by the Office of the Chief Parliamentary Counsel that was ready to go, and they over that side opposed it. We would have had a bill, but do you
know something? The government said it would bring in a bill. It did in late June. That bill passed this house in June.

We are now in the second-last week of this parliamentary sitting term. The government knows that we support that bill even though we think it should go further. Do not think all of the little get-outs and the special reasons are lost on us, but we are still prepared to support it because it is an improvement on what is there. But knowing that we are prepared to support paramedics, police officers and first responders with these changes, where is that bill? It is not on the business list in the other house. They have not even brought it on, and here we are in the second-last sitting week.

I doubt whether it will be able to pass, but I want to put on record that we have been prepared to support that bill. It could have been passed weeks ago, and paramedics, police officers and first responders could have been enjoying the protections that that bill might have brought in, limited though they may be. They could have had them now, but this government — wanting to play games, distracted by political frolics and spending days on pointless motions when we could have been debating and passing important legislation — has delayed this matter in the upper house. Why? I will tell you why. For everybody listening, I will tell you why the protections for paramedics, for police officers and for first responders sit idly in the upper house. Why? Because they do not believe in it. They actually do not believe in the mandatory sentencing proposals that are needed. They never have supported them, and I know this from so many who have raised it with me. I know my counterpart, the Attorney-General, does not like these changes. I doubt whether the Minister for Police likes them either. So they sit there.

I will tell you what I think has happened. They have wanted to turn around to Mr McGee, Mr Hill, Mr Gatt and other representatives of our great emergency workers and they have wanted to tell them, ‘We’re looking after you. We’re delivering for you’. But I say to them: where is the law? I know where the bill is. The bill is stuck in the upper house because the government has not brought it on, but where is the law? We would have had this law passed weeks ago.

I stood here and asked for your permission to move a bill that would give paramedics, police officers and first responders actual protection, and who opposed me? Those over there. Why? Because you do not really believe in tough sentencing. You actually do not. It took them years to do anything about baseline and years to do anything about mandatory sentencing, aggravated burglaries and aggravated carjackings. We had bills ready to go. All of our law and order measures which we had ready to go years ago now the government stonewalled, and it has only belatedly brought in pale imitations which now sit in the upper house.

I want to tell paramedics and police officers everywhere: you could have had stronger laws to protect you, but you have not got them. You have not got them because this government, which pretends to look after you when it comes to assaults on you, your members and your colleagues by people who think that violence on you is okay, has not delivered for you. It left its bill in the upper house.

I say to all Victorians watching and who will read of these debates: there is only one choice to make in November if you want a safer state, if you want stronger sentencing laws and tougher bail laws and if you want police who are there to represent you to have stronger powers to break up gangs and stop these riots. There is only one choice. To paramedics, police officers and everyone else who is out there protecting and serving our community: there is only one choice if you want to crack down on violence and do something to change the culture of violence in our community. There is only one chance to change that in November, and that is to vote for a change and effectively tell this government, ‘Thanks but no thanks’.

It is time for a change in our state. To make our state safer, for everybody watching you have to vote for it. You can get it and you deserve it, but this government will not change anything. Despite its belated efforts we will let this bill go through, but if we are elected we will do a better job — a real job — of protecting those who deserve those protections.

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