Criminal Organisations Control Bill (VIC): Sweeping powers to crack down on Organised Crime

Monday 11 August 2014 @ 10.21 a.m. | Crime

Victoria has joined many of the other States in Australia in passing restrictive organised crime laws, mainly aimed at containing the threat posed by bikies and their associated organised crime syndicates.

Police and judges will be handed sweeping powers to crack down on outlaw motorcycle gangs and other organised criminal enterprises under a raft of laws set to be passed by the Napthine government in the Criminal Organisations Control and Other Acts Amendment Bill 2014. Law enforcement authorities – who have struggled to use existing anti-bikie powers due to the high standard of proof demanded by the courts – are set to find it much easier to obtain orders banning clubs, controlling members and seizing the proceeds of crime.

But the scale of the changes is alarming civil libertarians who fear the amendments will fundamentally undermine the fairness of the justice system by stripping away long-established rights of suspects and the principle of the presumption of innocence.

Provisions of the Criminal Organisations Control and Other Acts Amendment Bill 2014

According to the bill's compatibility statement, the bill contains a range of reforms to Victoria's justice system, including amendments to the:

  • Confiscation Act 1997 to improve the operation of the existing civil forfeiture regime and to implement a serious drug offender forfeiture regime;
  • Criminal Organisations Control Act 2012 to modify the procedure for seeking a declaration or control order, ensure that members cannot escape the ambit of the legislation by joining other organisations, and provide that parties will generally bear their own costs in proceedings under that act;
  • Firearms Act 1996 and Major Crime (Investigative Powers) Act 2004 to improve the effectiveness of those schemes and also declarations and control orders;
  • Criminal Procedure Act 2009 to vary the test applied by the courts when determining whether to grant leave to cross-examine a witness at a committal hearing, and to limit cross-examination during committal hearings to questions related to those issues for which leave has been granted;
  • Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMIA) to provide the Children's Court with jurisdiction to hear cases involving fitness to stand trial or the defence of mental impairment; and
  • Major Crime (Investigative Powers) Act 2004 to improve the operation of the act by ensuring that persons arrested for seeking to avoid a witness summons may be discharged from custody on bail as if the person had been accused of an offence, clarifying the chief examiner's coercive examination powers, permitting the use of evidence obtained during examinations, and providing for the release of restricted evidence to a person charged with an offence and the Office of Public Prosecutions; and
  • Sentencing Act 1991 to allow applications for variation of an alcohol exclusion order to be heard and determined by the Magistrates Court for all orders made by the County Court, and with the direction of the Supreme Court for orders of that court.

Reaction to the Bill

The Napthine government passed hardline organised crime and anti-fortification laws last year, but no bikie gang has yet been banned and police have largely failed to topple clubhouse defences. Under the proposed new laws, police will no longer have to meet the ‘‘beyond reasonable doubt’’ standard in court when seeking to declare an organisation a criminal enterprise, with the burden of proof reduced to a ‘‘balance of probabilities’’. 

Orders to control the activities of individuals and to tear down fortifications would be granted at a sharply reduced threshold, based on members committing a criminal offence punishable by five years’ jail instead of the current threshold of 10 years’ jail. This could see gangs and members declared criminal organisations and subjected to control orders for committing a common assault or even potentially for some non-violent offences.

The government is also seeking to decimate club recruitment and membership by ensuring that individuals in declared criminal organisations will now be permanently branded as gang members, regardless of whether or not they quit. If at least two members from a declared organisation join another gang, that group would be automatically considered to be a criminal enterprise under the new legislation. This provision is an attempt to halt ‘‘patching over’’, which sees one club absorbed by another.

Concerns that the legislation doesn’t specifically define what type of ‘‘organisation’’ can be declared a criminal enterprise were flagged by Labor MP Martin Pakula in Parliament last week:

‘‘The opposition is satisfied by the undertakings provided by the government that organisations not intended to be covered by the supposed outlaw motorcycle gang provision will not become subject to it almost by default.’’

But civil libertarians worry that the laws set a dangerous precedent and represent another regressive step towards winding back or suppressing established human rights by the state government. Greg Barns of the Australian Lawyers' Alliance says:

‘‘This is a disturbing trend in Australian law, the idea that police ought to be able to more easily make their cases...the "beyond reasonable doubt" test protected innocent people from draconian government actions. The 'balance of probabilities' is something you’d use in a civil claim in a dispute against a tradie.’’

The Bill was passed by the Assembly and introduced into the Council on 7 August 2014.

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Sources:

Criminal Organisations Control and Other Acts Amendment Bill 2014 (VIC) as reproduced on TimeBase LawOne

The Age Article - Napthine plans tougher laws to hit bikies hard

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