Last week the Crimes (Criminal Organisation Control) Amendment Bill 2017 (the Bill) was introduced into the Australian Capital Territory’s Legislative Assembly. Presented as a Private Member’s Bill by Shadow Attorney-General, Jeremy Hanson, this Bill is the latest in a number of legislative measures by Australian states to tackle organised crime, particularly in the form of outlaw motorcycle gangs (OMCGs) or bikie gangs.
The Bill's Explanatory Statement says:
“The risk of the ACT becoming a ‘safe haven’ for organised criminal activity has been raised as a matter of public policy since other jurisdictions started introducing their own versions of this legislation as early as 2009.
In 2016, the ACT Labor government presented a discussion paper on anti‐consorting legislation and developed their own model. That proposal was not brought into legislation, with proponents citing human rights concerns.
Since then, and in particular when jurisdictions such as NSW passed their Bills, there has been a marked increase in criminal activity associated with outlaw motorcycle gangs (OMCGs). […]
In response to a clear threat to public safety, and the realisation that the lack of anti‐gang legislation is creating a ‘pull’ effect in the Capital, this legislation was drafted and developed to provide an effective deterrent but also address the human rights issues previous drafts have encountered.”
If the Bill is passed by the ACT Legislative Assembly, the ACT will be the latest in a number of states who have implemented tough anti-consorting laws particularly targeted at bikie gangs. Prior to this point, New South Wales, Northern Territory, Queensland, South Australia, Western Australia and Victoria have all implemented some form of Criminal Organisations Control Act, some of which have faced a great deal of criticism with regards to human rights concerns. For a detailed overview on the efficiency of the NSW anti-consorting laws, see the ‘Consorting Issues Paper – Review of the use of consorting provisions by the NSW Police Force – Division 7 Part 3A of the Crimes Act 1900’ (NSW Issues Paper) released by the NSW Ombudsman on 4 November.
The ACT’s contribution to anti-consorting laws comes after a number of criminal attacks in the ACT region. In June 2016, the ACT Government, Justice and Community Safety Directorate released a Discussion paper (Consorting laws for the ACT) entailing “proposals for a model of consorting laws to target and disrupt serious and organised criminal activity in the territory”. What was found in page 10 of this report was that:
“In terms of numbers, ACC data shows that members [of OMCGs] in Australia have increased from 4,483 in 2012 to 6,000 in 2015. This is a 34% increase over three years. The ACT currently has three OMCG groups with a total membership of 45 as at May 2016. This does not include associates, that is, those people who actively engage with OMCG members in furtherance of their criminal activity, which significantly increases the number of persons participating in the organised criminal network.
Due to the ACT’s location within New South Wales and between Sydney and Melbourne, the Government is aware that the ACT must maintain a law enforcement focus on OMCG activities. This focus must have a strong component of long-term preventative capability to ensure that police have the tools to disrupt and dismantle organised crime networks.
This is why the ACT Government takes this issue very seriously, and included ‘Tackling Organised Crime’ as a Strategic Priority for 2015-16. Under this priority the government has committed to ‘implement new laws to combat organised criminal groups, including outlaw motorcycle clubs’.”
The model that was proposed by this discussion paper was, however, not brought into legislation, with a number of submissions indicating that such laws would potentially create a number of human rights concerns.
In the time after the above proposals were dropped, there have been 8 reported serious attacks with some relation to OMCGs. As such, an exposure draft for the Crimes (Criminal Organisation Control) Amendment Bill 2017 was placed on the legislation register on 31 July 2017. A number of submissions were made on this draft from a number of groups, including:
The Bill, therefore, is presented as taking into account the recommendations and proposals of all of the above key stakeholders, particularly with regards to issues of human rights. As stated in the Explanatory Statement to the Bill:
“In submissions it was put that “By their nature, anti‐consorting or control order regimes will limit various rights contained in the Human Rights Act, including the right to equality and non‐ discrimination (s 8), the right to freedom of association (s 15), the right to freedom of expression (s 16), and the right to a fair hearing (s 21).”
The Human Rights Act, and prior parliamentary decisions, however, do and have limited human rights where that limitation is reasonable, necessary and proportionate to the objective being sought (s 28). To meet the requirements of s 28 of the HR Act, a limitation must (i) be aimed at a legitimate objective, and (ii) be rationally and proportionately connected to that objective.”
“The Bill seeks to introduce a criminal organisation control regime, adapted for the use in the ACT, to prevent, disrupt and deter the operations of organised criminal organisations. Although the active organisations which are most active at time of tabling include those self‐ identified as Motorcycle Clubs, the legislation is aimed at any organised criminal organisation.”
Part 2 of the Bill prescribes “Criminal Organisations”. In this part, section 7 allows for a chief police officer to apply to the Supreme Court “for a declaration that a particular organisation (the respondent) is a criminal organisation” [s 7(1)]. The respondent may then file a response under section 8 of the Bill, to be filed “at least 5 business days before the return date set by the registrar” [s 8(3)]. After this return date, the Supreme Court may, under section 9 of the Bill, “make a declaration that the respondent is a criminal organisation for this Act if the court is satisfied that-
Considerations that the Court must take into account as per section 9(2) of the Bill are:
The rest of Part 2 of the Act outlines the requirements of the declaration by the supreme court including: reasons (s 13); renewal of declarations (s 14); and right of appeal (s 15).
Part 3 of the Act provides for “control of members of declared organisations”, including interim control orders which can be made by the Supreme Court (Division 3.1); and control orders (Division 3.2); with the consequences of the making of both of these outlined in Division 3.3 of Part 3 of the Bill.
Another important provision of the Bill is Part 5: Criminal intelligence, which has the object of [s 59]:
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Crimes (Criminal Organisation Control) Bill 2017. Bill, Explanatory Statement and Second Reading Speech available from Timebase, LawOne.
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