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.