Even Tougher Criminal Organizations Law Commences in South Australia

Thursday 16 November 2017 @ 10.33 a.m. | Crime | Judiciary, Legal Profession & Procedure

On Tuesday (14 November 2017) the Criminal Law Consolidation (Criminal Organisations) Amendment Act 2017 (SA - No 47) (the Amending Act) received the Royal Assent and by virtue of the operation of section 7(1) of the Acts Interpretation Act 1915 (SA) came into operation on that date. The enactment of these amendments is designed to make the "criminal organisations" provisions of the South Australian criminal legislation even tougher than they already are by removing one of the key defences to charges under the legislation. The Amending Act amends Part 3B Division 2 of the Criminal Law Consolidation Act 1934 (SA)(the CLC Act) which contains the scheme intended to deal with serious and organised crime.

Background - SA Serious and Organised Crime Laws

In 2015, the Statutes Amendment (Serious and Organised Crime) Act 2015 (the 2015 Act) was passed and inserted Division 2 into Part 3B the CLC Act, that Division being headed "public places, prescribed places and prescribed events". The Division is directed toward participants in criminal organisations and prohibits such people from:

  • being knowingly present in a public place with two or more other participants in a criminal organisation;
  • entering a prescribed place or attending a prescribed event; or
  • recruiting another person to become a participant in a criminal organisation.

For these purposes, "criminal organisation" can come into being in three ways. A "criminal organisation" can mean:

  1. An organisation of three or more persons who: have as their purpose, or as one of their purposes, engaging in, organising, planning, facilitating, supporting, or otherwise conspiring to engage in, serious criminal activity; and by their association represent an unacceptable risk to the safety, welfare or order of the community; or
  2. A declared organisation within the meaning of the Serious and Organised Crime (Control) Act 2008 ; or
  3. An entity declared by regulation to be a criminal organisation.

For the purposes of the third part of the definition, the Criminal Law Consolidation (Criminal Organisations) Regulations 2015 (SA) declared 10 entities to be criminal organisations. It should be noted that those Regulations were not made in the usual regulation making process but were instead a schedule to the 2015 Act which then converted to separate regulations on the 2015 Act being assented to.

To declare any additional organisations for the purposes of the third part of the definition of criminal organisation the process set out in section 83GA of the CLC Act must be followed. The process may arise from a report from the Crime and Public Integrity Policy Committee, from the Minister considering any information suggesting a link between the entity and serious criminal activity, relevant convictions, and various other information. 

Any regulation declaring a criminal organisation may be disallowed by resolution of either of the Houses of Parliament which is what allows Parliament to retain control over which further entities, if any, are declared to be criminal organisations.

The Key Change - Removal of the "No Criminal Purpose Defence"

To date the main defence in relation to each of the offence provisions in Part 3B Division 2 is what is known as a "no criminal purpose" defence, which first occurs in section 83GC(2) of the CLC Act, and provides that:

"It is a defence to a charge of an offence against subsection (1) for the defendant to prove that the criminal organisation in which it is alleged that the defendant is a participant is not an organisation that has, as one of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity."

In cases where the "no criminal purpose defence" is raised, the prosecution is required to disprove the assertion of no criminal purpose, meaning that the prosecution is required to prove that the criminal organisation had, ". . . at the relevant time, the purpose of engaging in or conspiring to engage in criminal activity.

The "no criminal purpose defence" is seen problematic where an entity has been declared to be a criminal organisation, particularly under the third part of the definition of criminal organisation, namely, where it is declared to be so by regulation. In that situation, where the "no criminal purpose defence" is raised, the prosecution is required to adduce complex evidence about the purpose or purposes of the criminal organisation that would not otherwise be required in the proceedings.

The Attorney Genral in his second reading speech stated that: 

"In the view of this Government, the prosecution should not have to prove the criminal purpose of an organisation that has already been declared by the Parliament to be a criminal organisation. Once an entity falls within the scope of the definition of criminal organisation, and participants in the entity engage in conduct that is prohibited by Part 3B, Division 2 of the CLC Act, the offence provisions should be readily enforceable in relation to members of that criminal organisation."

To this end the legislation deletes the "no criminal purpose defence" from Division 2 of Part 3B of the CLC Act and depending on the circumstances, common law or statutory defences may be available to an accused. In his second reading speech the Attorney General stated:

"The Government believes that the removal of the no criminal purpose defence will improve the practical workability of Division 2 of Part 3B of the CLC Act and will ensure that it remains a useful tool in the suite of responses that this Government has implemented to combat serious and organised crime."

Reaction and Comment

The legislation has been criticised by Liberal member of parliament Andrew McLachlan who crossed floor to vote against what he described as "oppressive" bikie laws, he is reported as saying:

“In a democracy that values the rule of law — it is for the courts to decide guilt upon the prosecution proving their case beyond reasonable doubt, . . .  It is not acceptable for the Government to simply say it is having some difficulties making the case against certain individuals so it will change the law to make it easier to launch prosecutions.”

The South Australian Law Society President Tony Rossi is reported as saying that the legislation: 

“. . . violates the principle that the defendant has the right to be heard in relation to such important matters before a decision is made . . . The existing law already causes serious concern in relation to the ability of government to interfere in the judicial process, . . . The amendments would further erode basic legal rights and gives the government more control over who is labelled a criminal, denying courts the ability to properly assess the merits of the government’s decisions.”


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Sources:

Criminal Law Consolidation (Criminal Organisations) Amendment Act 2017 and 2nd Reading Speech as reported in the TimeBase LawOne Service.

South Australia upper house Liberal politician Andrew McLachlan crosses floor over ‘oppressive’ bikie laws (the Advertiser).

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