New Serious and Organised Crime Legislation Amendment Bill 2016 in Queensland

Monday 19 September 2016 @ 1.51 a.m.

On 13 September 2016, the Queensland Parliament introduced a new bill aiming to entirely reform a new Organised Crime Regime in Queensland and to tackle serious and organised crime in all its forms. The Serious and Organised Crime Legislation Amendment Bill 2016 (QLD) (the Bill) amends over forty pieces of Queensland legislation and is proposed to repeal Queensland's most controversial "anti-bikie" legislation, the Vicious Lawless Association Disestablishment Act 2013 ((No. 47 of 2013) (VLAD Act).

Background to the Bill

The newly proposed Organised Crime Regime, according to the Explanatory Notes, draws on the recommendations of the three reviews commissioned by the Government into organised crime:

  • the Queensland Organised Crime Commission of Inquiry (the Commission);
  • the Taskforce on Organised Crime Legislation (the Taskforce); and
  • the statutory review of the Criminal Organisation Act 2009 (the COA Review).

The Commission commenced on 1 May 2015, to make inquiry into the extent and nature of organised crime in Queensland and its economic and societal impacts. The Commissioner, Mr Michael Byrne QC, presented the final report on 30 October 2015. The Commission identified the illicit drug market, online child sex offending including the child exploitation material market, and sophisticated financial crimes such as cold call or ‘boiler room’ investment frauds as key organised crime threats in Queensland. The Commission made 43 recommendations to improve the regulation of organised crime in Queensland and the Bill implements 14 recommendations that require legislative reform.

The Taskforce was established in June 2015 by the Honourable Yvette D’Ath MP, Attorney-General and Minister for Justice and Minister for Training and Skills, to conduct a review of the suite of legislation introduced in October and November 2013 to combat organised crime, in particular outlaw motorcycle gangs (OMCGs). The Bill implements the ethos of the Taskforce Report; and largely implements all of the recommendations either in full or in-principle.

The Taskforce was required by its Terms of Reference to have regard to the findings of the COA Review. The COA Review was conducted concurrently with the work of the Taskforce. The recommendations were that the COA be repealed or allowed to lapse but with certain elements redeployed elsewhere in Queensland’s organised crime legislative framework. The Bill largely reflects the recommendations.

Amendments Contained in the Bill

According to the Explanatory Speech, the Bill will make the following amendments in response to the increasing prevalence and seriousness of cold call investment or ‘boiler room’ fraud and evolving threats in financial crimes, particularly identity crime, that may not be adequately deterred by existing penalties:

  • an increase in the maximum penalties for existing aggravated offences of fraud from 12 to 14 years imprisonment;
  • the creation of a new circumstance of aggravation for the offence of fraud, carrying a maximum penalty of 20 years imprisonment, where the property or yield to the offender from the fraud is $100,000 or more;
  • the creation of a new circumstance of aggravation for the offence of fraud, carrying a maximum penalty of 20 years imprisonment, where the offender participates in carrying on the business of committing fraud; and
  • an increase in the maximum penalties for the offences relating to obtaining or dealing with identification information, from three to five years imprisonment.

The Bill also creates three new offences in the Criminal Code that target administrators of websites connected with child exploitation material. Each new offence has a maximum penalty of 14 years imprisonment. The new offences will target persons who:

  • knowingly administer websites used to distribute child exploitation material;
  • knowingly encourage the use of, promote or advertise websites used to distribute child exploitation material; and
  • distribute information about how to avoid detection of, or prosecution for, an offence involving child exploitation material.

The Bill also implements the unanimous recommendation of the task force that the VLAD Act be repealed. The Taskforce considered that the criticisms of the VLAD Act by the High Court of Australia (Kuczborski v Queensland (2014) 89 ALJR 59) could not be overcome. The Taskforce considered there to be genuine concern over its constitutional vulnerability, in particular that the effect of the discretion vested in the Commissioner of Police in assessing the calibre of cooperation by an offender may be a usurpation of judicial power.

The Bill replaces the VLAD Act and circumstances of aggravation introduced into the Criminal Code in 2013 with a new serious organised crime circumstance of aggravation. This new circumstance of aggravation will be placed in the Penalties and Sentences Act 1992 (QLD) and will apply to a specific, targeted list of offences. The court will also be required to make an organised crime control order for any convicted person under the new provisions. The control order will be a mandatory consequence of a conviction of the new serious organised crime circumstance of aggravation.

Reaction to the Bill

Queensland Council for Civil Liberties vice-president Terry O'Gorman said the Government was being populist by keeping some of the worst mandatory sentencing provisions of the VLAD laws:

"If a person is convicted of a serious organised crime offence and gets a two-year sentence, they must have seven years added onto that, unless they provide information to police...The Wilson Report noted that mandatory sentencing produces injustice and yet the Labor Party, whose policy has traditionally been opposed to mandatory sentencing, is still keeping it in."

Mount Isa MP Rob Katter said:

"We appreciate that the general public has a real appetite for law and order and safety but that has to be done responsibly by Government so you don't inadvertently affect the rights of individuals."

The Bill has been referred to Parliamentary Committee in order for further review to be undertaken before parliamentary debate commences later in the year.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

Sources:

ABC News Article - 14 September 2016

Rule of Law Article - 16 September 2016

Serious and Organised Crime Legislation Amendment Bill 2016 [QLD] and secondary materials as reprinted in TimeBase LawOne

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