South Australia Introduces Serious and Organised Crime Declared Organisation Amendments

The South Australian Attorney General on 4 July 2013 introduced into the Parliament of that state the Serious and Organised Crime (Control) (Declared Organisations) Amendment Bill 2013 a Bill to amend the  Serious and Organised Crime (Control) Act 2008 and the Serious and Organised Crime (Unexplained Wealth) Act 2009 with the stated intention of disrupting and restricting the activities of organisations involved in serious crime and the members and associates of such organisations; and of protecting members of the public from the violence associated with such criminal organisations.

In a media release of 4 July 2013 the South Australian Attorney General has stated that the key purpose of the changes is to align the South Australian legislation with interstate laws that have been approved by the High Court of Australia. The Attorney points out that the recent unsuccessful challenge to Queensland’s organised crime laws has meant that other states have brought their laws into line with Queensland’s legislation, which the High Court has found to be valid (see Assistant Commissioner Condon v Pompano Pty Ltd  [2013] HCA 7 decided in March 2013, dismissing a challenge and upholding the validity of Queensland’s Criminal Organisation Act 2009). The Soth Australian Attorney goes on to say in his media release:

“These circumstances mean that it would be prudent for South Australia to follow suit [and amend its legislation]...The role of the Queensland Supreme Court in their scheme [administration] was significant to the validity of that State’s Act [being upheld]... South Australia’s present laws make an 'eligible judge' responsible for criminal organisation declarations and not the South Australian Supreme Court. Having regard to changes made in other states to align more closely with the Queensland model, South Australia failing to do so would obviously make our State a particular target for a challenge. These changes would also facilitate mutual recognition of our orders in other states and vice versa.”

In addition to the "eligible judge" amendment the Attorney General has indicated further amendments will be made to ensure police can lawfully exercise their powers to track down unexplained wealth through covert operations; saying that: “These changes will assist police in uncovering organised crime by providing them with clearer powers under the Unexplained Wealth Act.”

Following is a brief time line giving the background to this legislation and the reason for the amending Bills introduction. It is extracted from the Attorney General second reading speech as reported in TimeBases LawOne Service (the full speech can be found there):

11 November 2010

The High Court, by a majority of 6 to 1, decided that at least in so far as the Magistrates Court was required to make a control order on a finding that the respondent was a member of a organisation declared to be a criminal organisation under the Act, that court was acting at the direction of the executive, was deprived of its essential character as a court within the meaning of Chapter III of the Commonwealth of Australia Constitution and that section was, therefore invalid (see South Australia v Totani (2010) 242 CLR 1).

The net effect of that decision was that a key part of the legislative scheme in the [SA] Act was inoperable. That, in turn, meant that the legislative scheme for attacking criminal organisations and their members was rendered ineffective and the essential objectives of the Act thwarted.

December 2012

The [SA] Government prepared extensive amendments to the Act in light of Totani and the subsequent decision of the High Court to invalidate the New South Wales equivalent legislation (see Wainohu v New South Wales (2011) 243 CLR 181).

These amendments represented, on the best advice then available to Government, an attempt to place the legislation and the accomplishment of its aims on a sound constitutional footing. The amendments were passed and came into effect as the Serious and Organised Crime (Control) (Miscellaneous) Amendment Act 2012.

Post 2012 and 2013 to date

Since the 2012 amendments, no application has been made in relation to any organisation. However, the South Australian Police, the Crown and other Government legal experts have been preparing applications based on the scheme as amended in 2012.

In the meantime, the High Court has heard and delivered judgment on a constitutional challenge to the equivalent Queensland legislation. The Queensland Act differs from both versions of the South Australian Act.

The High Court dismissed the challenge and upheld the validity of the Queensland scheme in Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7.

The South Australian Parliament is not sitting at present and debate on the Bill will continue when it returns in early August 2013.

Sources:

• SA Attorney Generals Press Release dated 4 July 2013

• Bill, Explanatory Memorandum and Second Reading Speech as reported in TimeBases LawOne Service.

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