December 6, 2012  |  Second reading speech

Criminal Organisations Control Bill 2012

I rise to  make a contribution to  the  debate on the Criminal  Organisations Control Bill  2012. This legislation  creates an act  to provide for the making of declarations  and  control  orders  for the purpose of preventing  and  disrupting  the activities of organisations involved in serious criminal activity, and of their members, former members, prospective members and associates.

The bill also  provides for the recognition and application of  declarations and control   orders  made  under  corresponding   laws,  such  as   laws  in  other jurisdictions.  In  the  second-reading speech for the bill the Attorney-General stated that:

  Criminal organisations pose a serious  and ongoing threat to public safety and  order in Victoria.
 

He also said:

  More needs to be done to tackle the criminal activities of these organisations  than simply waiting until the crimes are committed …
 

We  on this  side of  the house  agree  and  are  therefore  not  opposing  this legislation.

The Saturday  Age of 24  November published an article  by well-known journalist John Silvester titled ‘Police hit the road to turn wild ones into mild ones’. In the  article  Mr Silvester highlights  that approximately two  years  ago police command got very serious on the issue of bikie gangs and set up Taskforce Echo.

 

Taskforce Echo’s instructions  were simple and  very  clear: to investigate  and disrupt organised criminal activities conducted by members of some of the groups such as bikie gangs.

It should  be pointed out that not  all outlaw bikies are outlaws.  In fact many bikies are  committed workforce and  society members, oblivious to  the criminal activities that occur around them. According to journalist John Silvester:

  Echo found the  intelligence file  on bikies  consisted of  a VHS tape of Easy  Rider and a black-and-white poster of a leather-clad Marlon Brando astride his  Triumph Thunderbird in The Wild One.
 

Silvester   says   that   after  developing  contacts  and  having  police  file intelligence reports  after any bikie  contact or incident,  police  command now believe they have an accurate picture, and it is not pretty.

What does this legislation do? It provides a  legal  framework. Contained in the legislation is a two-step process for criminal organisations and individuals  to be  subject to control  orders.  Firstly, the Chief  Commissioner  of Police can apply to the court  for  an organisation or individual to become ‘declared’. The Attorney-General   stated  in  his  second-reading  speech  that  in  making a declaration against an organisation:

  … the court must be satisfied beyond reasonable doubt that  the organisation  has engaged in,  organised or otherwise facilitated serious criminal activity,  or else that two or more members of the organisation have used or  are  using the organisations, or their relationship  with  that organisation  or  its members, for  such  a purpose. In either case, the  court  must  also  be  satisfied  that  the  activities of the organisation pose a serious threat to public safety and order.
 

The  Attorney-General went on to state that in making a declaration  against  an individual:

  … the court must be satisfied beyond reasonable doubt that the individual is  a member, former member or prospective member of an organisation; and that the  individual,  with at least  one  other member,  former  member or  prospective  member,  is  using the organisation  or  their relationship  with  it  for the  purpose of serious  criminal activity. The court  must also be satisfied  that  the activities of those members pose  a  serious  threat  to public safety and  order.
 

The  bill allows the chief commissioner  to apply  to the  Supreme Court  for an organisation  to be named  a ‘declared organisation’  and  for an individual  to become a ‘declared individual’. It sets out the  elements  about which the court must be satisfied in order to make a declaration.

For an organisation the court must be satisfied beyond reasonable doubt that the organisation has engaged in, organised or otherwise facilitated serious criminal activity,  or  that  two  or  more  people  in the organisation  have  used  the organisation or  their  relationship  with the organisation for serious criminal activity. In either  case the court must be satisfied that the activities of the organisation pose a serious threat to public safety and order.

 

For an individual the court must  be  satisfied beyond reasonable doubt that the individual is  a  current, prospective or  former member of an  organisation and that that individual, with   at least one  other current, prospective or  former member, is using  the organisation or their  relationship with the  organisation for serious criminal activity. In either  case  the court must be satisfied that the members’ activities pose a threat to public safety and order.

Importantly the bill defines ‘serious criminal activity’ as an offence involving two or more offenders which involves substantial planning  and systemic criminal activity. The relevant offences include indictable  offences  punishable  by  10 years  imprisonment and a  range  of other offences  relating to drugs, weapons, prostitution and pornography.

Once that declaration is made, the second  step is  an application for a control order.

Regarding  control  orders,  the  Attorney-General  has  noted  that  the  chief commissioner will be able  to  apply  for  a  control  order  against a declared organisation and its members or against a declared individual. As stated  by the Attorney-General:

  It is the control order that will limit the activities of the organisation and  its members, or the declared individual.
 

If a court decides to make  a control  order against  an organisation, the court will be able  to  impose  a wide range of prohibitions and conditions, including prohibiting  the  organisation from  continuing to operate,  prohibiting members from  participating in the  activities  of the organisation  and restricting the organisation from carrying out an activity or activities specified in the order.

If  the  court  makes a control order against specific  members  of  a  declared organisation, the order may prohibit them from associating with other members of that organisation or prohibit  an  individual  from continuing to be a member of the declared organisation.

The bill provides that once a declaration  is  made  the  chief commissioner can apply for the court to make  a control order. To make this order the  court must be  satisfied  that  the  order  is  likely  to  contribute to the prevention or disruption  of  serious  criminal  activity.  The  court  can  only  reach  this conclusion  when  presented  with  ‘acceptable,  cogent  evidence   that  is  of sufficient weight’.

A range of conditions can be imposed under a control order.

These include the organisation ceasing to operate, run a business or take on new members, prohibiting  members  from associating with one another, or prohibiting members from wearing the organisation’s patch or insignia. A control order lasts three years, but can be withdrawn earlier. The chief commissioner can also apply for it to be renewed.

Given  the  sensitive nature of the evidence  that  needs  to  be  gathered  for criminal organisations and  individuals to become subject to control orders, the bill protects sensitive criminal intelligence material while still ensuring that it  can be  tested before the courts. Importantly this will prevent any  harm to any ongoing  police investigations, as well  as providing comfort  and safety to any covert  police members  as well as members of the public who have cooperated with police.

 

The  chief commissioner  can  apply for  criminal  intelligence  material to  be protected so that it is not revealed in open court  or to the defendant. Such an application is heard  in  closed court  without  the  defendant, but  a  special counsel is appointed to represent the defendant’s interests. The special counsel can  consult with the defendant before the application but cannot reveal details of the hearing to the defendant. The court may make an order for the information to be protected if it is satisfied  that the reasons for  confidentiality outweigh any unfairness to  the defendant. If the confidentiality order is refused, the chief commissioner can choose  to withdraw the  control order application  or continue with the information unprotected.

Furthermore,  the bill provides  for the mutual  recognition and enforcement  of declarations and control orders made under corresponding interstate legislation, thus ensuring that the Victorian and interstate schemes complement each other.

The bill  makes  it  an  offence  to knowingly or intentionally breach a control order. The maximum  penalty is five years  imprisonment, or for  an organisation 3000 penalty units, which is currently around $420 000. The Attorney-General has stated that the offence will be linked to the asset confiscation scheme.

 

I must declare that  I am a member of the Law  Institute of Victoria (LIV), from which there  have  come some  criticisms.  In particular  Michael  Holcroft, the institute’s president, issued a media release on 14 November questioning whether the government’s legislation to outlaw bikie gangs will be legally  enforceable, especially given the High Court of Australia challenges in other states.

The institute’s president, Mr Michael Holcroft, said  the government should have waited for the result of the Queensland High  Court  challenge  before  what  he described as rushing into legislation, noting that Victoria’s Supreme Court does not  have jurisdiction  over  another state’s  decisions.  Further  to  this  Mr Holcroft stated:

  The  new  laws  will not stamp out illegal activities  and  will  make  lawful  activities, such as meeting, a criminal offence …
 

He also said that the LIV opposes ‘laws that make criminals out of a whole class of people’ and noted that:

  Not  all  members  of   motorcycle  clubs  are  criminals.  Turning  otherwise  law-abiding citizens into criminals simply because they associate with a group  is wrong …
 

He went on to say the LIV believes existing criminal laws could effectively deal with criminal offending.

I note  that  the Attorney-General has stated that he believes the Law Institute of Victoria’s response  was disappointing, and he has  gone on  the record  to support  this  legislation,  stating  that  Victoria  is  different  from  South Australia and New South Wales in  the  sense  that our legislation going through Parliament is still to be tested.

 

The opposition notes the concerns that this legislation may be unconstitutional. The LIV  has  obviously raised  its  objections  to the  legislation.  We  hope, however, that those objections  are not  founded, otherwise we could be in for a long legal battle for which Victorian taxpayers would foot the bill.

The  requirement of institutional integrity means that laws cannot take away the fundamental   things  that  constitute   a  court.  This  includes  a  court’  s independence and  impartiality,  a  court’s  separation  from the executive, the principle that court hearings be open, procedural  fairness, and the usual rules of evidence and procedure.

Before I got up to speak I was thinking about the Christopher Hudson incident in 2007. Members will remember  the incident where Brendan  Keilar, a young  lawyer and family man, was killed. Only six days earlier Mr Hudson  had been on a spree with some well-known Melbourne identities.

If this legislation passes, has the  support of the opposition, is effective and targets unlawful  activities in  bikie gangs,  it will be a good thing that  all Victorians will support. We on this side of  the house welcome it and wish it  a speedy passage and every success.