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Chapter 3
Existing legislative approaches to combating organised crime
in Australia[1]
Introduction
3.1
This chapter outlines the key pieces of legislation and law enforcement
agencies relevant to targeting organised crime in each Australian jurisdiction.
It aims to provide a general overview of the existing approach to combating organised
crime in each jurisdiction and to provide a context for the discussion of
specific legislative approaches which are discussed and compared in later
chapters.
Types of legislation
3.2
The evidence received by the committee during this inquiry focussed on
three broad types of legislation designed to target serious and organised
crime:
-
Laws which aim to prevent members of organised crime groups from
associating with one another.
-
Proceeds of crime or asset confiscation laws which remove
illegally acquired assets with the aim of removing the motivation for criminal
activity and preventing those assets from being used to fund further organised
criminal activities.
-
Policing laws which confer additional powers on police to enable
them to more easily investigate and prove organised crime offences, for example
telecommunications interception and surveillance powers, the ability to conduct
controlled operations or assume false identities and coercive questioning
powers.
3.3
During the inquiry, it became apparent that there are numerous other
laws as well as administrative and policy arrangements which affect the ability
of law enforcement to effectively respond to serious and organised crime. For
example cooperation and information sharing arrangements between governments
and police forces, and anti-corruption measures, both have a very strong
influence on the success of attempts to combat organised crime. A summary of
legislation in each Australian jurisdiction which contributes to the ability of
law enforcement to combat serious and organised crime is set out in the table
in Appendix 5.[2]
3.4
It is not within the scope of this inquiry, or of this report, to
examine all of the different legislation and administrative arrangements which
contribute to fighting organised crime groups in detail. However, a number of
the more important aspects are discussed in detail and different approaches
compared throughout the report, with a focus on the two main types of
legislative measures to prevent organised crime –by targeting association and by
targeting assets.
3.5
The aim of this chapter is to outline the main legislative arrangements
that currently exist in Australian jurisdictions to combat organised crime, in
order to provide a context for the in-depth discussion of preventative
legislative arrangement in chapters 4 and 5, and other key legislative,
administrative and policy mechanisms in chapter 6.
Commonwealth
Constitutional powers
3.6
While there is no criminal head of power in the Constitution, the
Commonwealth can and does make criminal laws using the external affairs power
(e.g. in relation to people trafficking), references from the states (e.g. in
relation to various aspects of terrorism legislation), the defence power (e.g.
in relation to terrorism legislation) and the express and implied incidental
powers. However, criminal law is generally regarded as the province of the states
so that Commonwealth criminal law is generally restricted to matters which
affect the Commonwealth, offences with an international element and Commonwealth/state
co-operative regimes.[3]
3.7
The Commonwealth Parliament has the power to make laws about transnational
organised crime because of its ratification of the United Nations Convention
against Transnational Organised Crime (UNCTOC).[4]
However, there are currently no offences relating to organised crime in the Criminal
Code Act 1995.
3.8
During the inquiry the committee was informed that there is uncertainty
as to whether the Commonwealth has the power to legislate generally with
respect to domestic organised crime. Both Dr Ben Saul from the Sydney Centre for International Law and Professor George Williams from the Gilbert & Tobin Centre
of Public Law suggested that ratification of the UNCTOC would not justify such
laws in respect of domestic crime:
... the source of power is not immediately obvious, though to
the extent that it involves transnational organised crime the external affairs
power in section 51(xxix) would provide a suitable basis for that. But that
would result in legislation which is focussed upon organised crime which
crosses Australian borders rather than legislation which is just generally cast,
as the net is in South Australia. That is often the way with Commonwealth
legislation—it needs to speak to the sources of its legislative power, which
state legislation does not have to concern itself with. But in that context, if
that is the particular activity that is giving rise to concern at the
Commonwealth level, that seems to present itself as an obvious support for the
enactment.[5]
3.9
Some witnesses also expressed the view that even if the Commonwealth
could legislate further with respect to domestic organised crime that this
would not be the most effective means of tackling the problem:
We believe these sanctions, to the extent that they can be
justified, should be dealt with on a state by state basis. It is our preferred
approach to see them targeted specifically to the individual circumstances of
the state, where there may be justification for a group based sanction. It is
too blunt an instrument to legislate for these matters nationally when, in
fact, there may not be any compelling justification in one state as opposed to
another. Making the laws at the lower level of the Federation ensures that
their harm is minimised and that they are limited only to the justified need.[6]
3.10
Similarly, the ACC said:
It seems to us that the South Australian legislation is very
much a matter for the local jurisdiction. It is perhaps easy to see the
rationale for their development of that piece of legislation and their intent
to apply it. Our perspective nationally is that it would be tremendously hard
to replicate that across the national environment and that to have Commonwealth
legislation of similar impact would be unwieldy and perhaps difficult to
maintain. As we said earlier, the majority of our targets do not readily
self-identify as being organisations and I think one of the risks that we see
in any move to proscription of any sort is that you simply change the nature of
the target and perhaps arguably make it more difficult for you to identify the
targets that you are most interested in.[7]
3.11
The Law Council of Australia also argued that the Commonwealth's
existing criminal legislation is adequate, and it has no need to pass further
legislation to combat serious and organised crime:
The Law Council believes that the existing principles of
extended criminal liability set out in the Part 2.4 of the Criminal Code
correctly demarcate the limits of criminal culpability. It is true that those
provisions may place an onus on law enforcement agencies to establish a nexus
between a particular individual and the commission or planned commission of a
specific offence, but that is entirely appropriate, whatever challenges it may
present to investigators and prosecutors...[8]
United Nations Convention against
Transnational Organised Crime
3.12
Australia is a party to the United Nations Convention against
Transnational Organised Crime (UNCTOC), which sets out a definition of
organised crime and provides guidance to states parties on appropriate policy
and legislation required to combat transnational organised crime.
3.13
Under Article 5(1) of the Convention, states parties must establish the
specified offences under the treaty as criminal offences in domestic law. However,
the Convention is limited to transnational organised crime offences, and does
not require states parties to criminalise domestic organised crime.
3.14
The Convention provides that an offence is transnational in nature if
it:
-
is committed in more than one state;
-
is committed in one state but a substantial part of its preparation,
planning, direction or control takes place in another state;
-
is committed in one state but involves an organised criminal group that
engages in activities in more than one state; or
-
is committed in one state but has substantial effects in another state.[9]
3.15
Article 2(a) defines an 'organised criminal group' as a:
Structured group of three or more persons, existing for a
period of time and acting in concert with the aim of committing one or more
serious crimes or offences established in accordance with this Convention, in
order to obtain, directly or indirectly, a financial or other benefit.
3.16
The determination of what constitutes a 'serious crime or offence' is
based on the maximum level of penalty that an offence attracts under domestic
law, and so is at the absolute discretion of states parties.[10]
3.17
When asked whether Australia meets its obligations under the UNCTOC,
Dr Schloenhardt told the committee:
Strictly speaking, yes, because the Palermo convention offers
different models and our current conspiracy laws would comply with it. So we
are meeting what we have signed up to internationally.[11]
3.18
However, he added that, in his view, Australia's laws are currently not
sufficient to combat serious and organised crime because:
I think the conspiracy laws are too narrow. There is some
variation between the states, but the bottom line is that most of them require
some sort of physical, overt act either as evidence or even as an element of
the criminal offence. Also, the fact that in most jurisdictions, such as
Queensland, the Attorney-General needs to sign off before you can actually use
conspiracy charges seems to limit their use very significantly. Cases of
conspiracy are few and far between, really.[12]
Criminal laws
3.19
At the Commonwealth level there are currently various disparate criminal
laws which either target one specific element of organised crime or, although
not restricted to organised crime, were introduced for the purpose of combating
it. These include the Crimes Legislation Amendment (People Smuggling,
Firearms Trafficking and Other Measures) Act 2002 and the Measures to
Combat Serious and Organised Crime Act 2001.
3.20
Of the various Commonwealth laws, the Police Federation of Australia
said:
...the Commonwealth does not have in place specific legislation
or effective legislation to deal with the transnational and organised crime
operational environment.
Commonwealth legislation traditionally focuses on predicate
offences and the involvement of the persons committing those offences.
Commonwealth legislation does not adequately cover all levels of involvement in
organised crime. Commonwealth conspiracy and other accessorial type of offences
are difficult to prove. The AFP has to rely upon cobbling together various
aspects of existing laws in an attempt to prosecute persons involved in this
type of activity.
Although transnational organised crime is now considered a
national security threat there is no definitive law to outlaw the activity.
Specific Commonwealth organised crime legislation is required to enable police
to effectively prevent, disrupt, investigate and prosecute organised crime
activities. The AFPA submits that there is an obligation on the Commonwealth to
enact specific Organised Crime legislation.[13]
3.21
The Crimes Legislation Amendment (People Smuggling, Firearms
Trafficking and Other Measures) Act added offences to the Criminal Code of
trafficking in persons and firearms. Both of these offences are subject to the
general provisions in the Criminal Code which provide that a person who aids,
abets, counsels or procures the commission of an offence by another person is
taken to have committed that offence,[14]
that it is an offence to incite another person to commit an offence[15]
and provides for the separate offence of conspiracy.[16]
3.22
The Measures to Combat Serious and Organised Crime Act 2001 expanded
the controlled operations provisions in the Crimes Act 1914 by exempting
law enforcement officers who commit narcotic drug offences from liability if
the offences are committed in the course of obtaining evidence. It also
introduced a new scheme for the conduct of controlled operations and
established a framework to govern the use of assumed identities by Commonwealth
law enforcement and intelligence officers.
3.23
There is a definition of 'serious and organised crime' in the Australian
Crime Commission Act 2002 (see para 2.44), for the purposes of establishing
the ACC's functions and powers. That Act does not create any criminal offences
based on the definition.
Proceeds of crime laws
3.24
The Proceeds of Crime Act 2002 introduced a civil forfeiture
regime, meaning that criminal convictions are not required for unlawfully
acquired property to be seized, and a court must only be convinced that the
property was acquired unlawfully on the balance of probabilities. This makes it
easier for organised crime groups to be deprived of the profits of their
crimes.
Commonwealth law enforcement and
intelligence agencies
3.25
There are numerous agencies at the Commonwealth level involved in
combating organised crime including the ACC, AFP, Crimtrac and Austrac. Each
has different investigative tools at its disposal depending on the specific
activities they are charged with monitoring. The table in Appendix 7 outlines
the key responsibilities, investigative and legislative tools of Commonwealth
agencies in respect of organised criminal activity.
3.26
Regarding the tools currently available to the ACC, Mr Kitson commented:
...responsibility for tackling serious and organised crime in
Australia is spread among a number of agencies at state, territory and
Commonwealth levels. The ACC's contribution is really to enhance law
enforcement's understanding of and ability to deal with key criminal
activities. In this regard we have access to a range of legislative powers. Our
experience of these powers leads us to the conclusion that at the present time,
and faced with the current criminal environment as we understand it, there is
not a need for significant reform to the legislative suite of powers available
to the ACC.[17]
3.27
The Law Council of Australia agrees:
So we would say very clearly that the
substantive offences that are referred to in the Commonwealth Criminal Code Act
1995 and the investigative powers that clearly exist are adequate.[18]
3.28
However, the Police Federation of Australia argued that existing
Commonwealth legislative tools are not sufficient to adequately combat serious
and organised crime:
The point I am making with regard to organised crime
legislation at the Commonwealth level is that there is none, we need it and
there are ample examples of the areas we are talking about—drug importation,
drug supply and, of course, corporate crime. You have only to look at what is
happening in America at the moment. There is ample evidence that there is
significant fraud there as well. It is something to be wary of. It happens in Australia a lot...[19]
New South Wales
Criminal laws
3.29
New South Wales was the first Australian jurisdiction to introduce
specific offences for participation in a criminal organisation in September
2006.
3.30
The Crimes Legislation Amendment (Gangs) Act 2006 (NSW) (gangs
legislation) made amendments to the Crimes Act 1900 (NSW) and the Law
Enforcement (Powers and Responsibilities) Act 2002 (NSW) in response to
increased organised crime activity in Sydney.[20]
3.31
The Act created four new offences related to participation in a criminal
group:
-
participation in a criminal group knowing or being reckless as to
whether your participation contributes to the occurrence of any criminal
activity;[21]
-
assaulting another person with the intention of participating in
a criminal group;[22]
-
damaging property with the intention of participating in a
criminal group;[23]
and
-
assaulting a law enforcement officer with the intention of
participating in a criminal group.[24]
3.32
The gangs legislation also introduced an offence of recruiting a person
or child to commit a criminal act.[25]
3.33
The legislation was intended to target a wide range of criminal
organisations reflecting the variety of groups involved in organised crime in NSW.
In recent years there have also emerged significant crime
gangs based on common ethnicity. They include Vietnamese and Chinese gangs with
a strong involvement in the drug trade, Pacific Islander groups who are
specialised in armed robberies, and criminals of Middle Eastern origin who
engage in firearms crime, drug trafficking and car rebirthing [...] Many gangs
have nothing to do with ethnicity. They are formed rather on the basis of
common interest, for example motorbikes, geographical proximity, or, sadly,
contacts made in the prison system.[26]
3.34
Dr Schloenhardt points out that the width of the laws reflect the NSW
Parliament's intention that they be capable of being used in respect of
traditional organised crime groups which commit crimes for profit as well as
more ad hoc groups of violent individuals or mobs.[27]
3.35
The NSW parliament passed additional legislation in April 2009 in
response escalating violence between rival OMCGs, culminating in a fatal brawl
between rival gangs at Sydney airport on 22 March 2009. The Crimes (Criminal
Organisations) Control Act 2009 aims to prevent gang members from using the
gang structure to assist them in committing crimes. The NSW Minister for Police
said:
We do not dispute that the bill introduces extraordinary
measures. Old friends will no longer be able to meet or even talk on the phone.
Some people will have to quit their jobs in a time of increasing economic
pressure. How can such consequences be justified? It is because bikie gangs are
serious criminals who are hiding in plain sight. Their very visibility in some
ways makes them hard to deal with.[28]
3.36
The legislation introduced a process through which organisations can be
declared 'criminal organisations' by a judge, and members of that organisation
made subject to control orders preventing them from associating with each
other.
3.37
The new laws also prohibit a person subject to a control order from
engaging in certain activities within specified industries, including the
casino industry, the private security industry, pawnbroking, operating a tow
truck and repairing or dealing in motor vehicles.[29]
3.38
To date no organisations have been declared under the new laws.
Proceeds of crime laws
3.39
NSW has proceeds of crime legislation[30]
which is similar to the Commonwealth Act. The NSW Police told the committee
that:
Our legislation has been in place for a while and it seems to
work pretty well, very much hand in glove with the New South Wales Crime
Commission...I am not aware of any proposals or any need at the moment to revamp
the legislation.[31]
3.40
The Crimes (Criminal Organisations) Control Act 2009 amended the
proceeds of crime laws to extend them to the gang crimes listed in section 93T
of the Crimes Act. In effect this means that a person suspected of having
committed one of those crimes may have their assets restrained or confiscated.
Investigative powers
3.41
The Crimes Legislation Amendment (Gangs) Act 2006 introduced part
16A into the Law Enforcement (Powers and Responsibilities) Act 2002
(NSW) which allow police to apply to the courts for fortification removal
orders which direct persons to remove or modify any fortifications at the
subject premises. The NSW Police gave evidence to the committee that:
We have run an operation over the last 18 months named
Operation Ranmore in relation to outlaw motorcycle gangs. It has been a
statewide operation involving the State Crime Command and local area commands. There
has been a high degree of compliance with police entering those premises,
without being rejected or finding heavily fortified premises at outlaw
motorcycle gang clubhouses.[32]
3.42
The NSW Crime Commission administers the Criminal Assets Recovery Act
1990 (NSW) and is responsible for investigating serious drug offences and
other serious offences that are referred to it. The NSW Crime Commission has
coercive questioning powers, which it has had since its inception in 1986.[33]
3.43
NSW also has laws permitting the use by law enforcement of search
warrants,[34]
telecommunications interception, controlled operations,[35]
assumed identities and witness identity protection[36]
and surveillance devices.[37]
Victoria
Proceeds of crime laws
3.44
Victoria has proceeds of crime legislation in the form of the Confiscation
Act 1997 (Vic) which allows the court to make orders for civil forfeiture
and restraint of assets in much the same way as the Commonwealth legislation.
Investigative powers
3.45
Between 1999 and 2005, there was a dramatic increase in organised crime
activity in Victoria, including extreme violence between feuding organised drug
criminals and approximately 27 'gangland' murders. In 2004, the Victorian
Parliament passed a legislative framework designed to assist in the
investigation of organised crime and police corruption, the cornerstone of
which is the Major Crime (Investigative Powers) Act 2004 (Vic) (Investigative
Powers Act).
3.46
The purpose of the Investigative Powers Act is 'to provide for a regime
for the authorisation and oversight of the use of coercive powers to
investigate organised crime offences'.[38]
3.47
An 'organised crime offence' is defined as an indictable offence against
Victorian law that is punishable by 10 yeas imprisonment or more, and that:
-
involves two or more offenders, and
-
involves substantial planning and organisation, and
-
forms part of systemic and continuing criminal activity, and
-
has a purpose of obtaining profit, gain, power or influence.
3.48
With approval from the Chief Commissioner, a member of Victoria Police can apply to the Supreme Court for a 'coercive powers order' if the officer
suspects on reasonable grounds that an organised crime offence has been, is
being, or is likely to be committed.[39]
An order cannot exceed 12 months, but may be extended.
3.49
The Court may make a coercive powers order if it is satisfied that there
are reasonable grounds for the officer's suspicion and that it is in the public
interest to do so. The Court is to have regard to 'the impact of the use of
coercive powers on the rights of members of the community'.[40]
3.50
The applicant then applies to the Court for a witness summons, which
requires a witness to attend an examination to give evidence or produce
documents.[41]
Examinations are conducted by examiners who are appointed by the Governor
General, similarly to the ACC. Examiners are not bound by the rules of evidence
and can conduct enquiries in any way they see fit. The privilege against
self-incrimination does not apply, but there are restrictions on the use that
can be made of evidence. Witnesses are entitled to representation[42]
and Legal Professional Privilege applies. The Chief Examiner is also empowered
to issue a witness summons on his or her own motion. It is an offence for a
witness to fail to attend an examination, fail to produce documents or refuse
to answer a question.
3.51
A number of other Acts interact with the Major Crime (Investigative Powers)
Act 2004 (Vic) to form part of the package of legislation in Victoria to deal with organised crime. The Crimes (Assumed Identities) Act 2004 (Vic) formalised police practices of creating 'sting' operations using undercover officers.
Similarly the Crimes (Controlled Operations) Act 2004 (Vic) makes what
were once unregulated police practices of undercover operations more
transparent. Victoria also has legislation allowing the use of
telecommunications interception and surveillance devices.[43]
Queensland
Proceeds of Crime laws
3.52
Queensland courts may make orders requiring the forfeiture or restraint
of proceeds of crime under the Criminal Proceeds Confiscation Act 2002
(Qld) which operate in much the same way as the Commonwealth legislation.
Investigative powers
3.53
The Crime and Misconduct Commission (CMC), created with the enactment of
the Crime and Misconduct Act 2001 (Qld), is responsible for
investigating major crimes which includes organised crime, paedophilia and
serious crime, and for dealing with misconduct and integrity issues within the
public sector. The CMC has the power to use and authorise the use of assumed
identities,[44]
search and seize,[45]
use surveillance devices[46]
and conduct controlled operations.[47]
The CMC also has coercive investigative powers.[48]
3.54
Queensland was the last jurisdiction in Australia to grant telephone
interception powers to its law enforcement officers in May 2009.
Western Australia
Proceeds of crime laws
3.55
Western Australia was the first Australian jurisdiction to introduce
unexplained wealth laws in 2000. The Criminal Property Confiscation Act 2000
(WA) provides that the WA Department of Public Prosecutions can apply to the
court for an unexplained wealth declaration, which the court must grant if it
is more likely than not that the total value of the person's wealth is greater
than the value of the person's lawfully acquired wealth.[49]
The effect of such an order is that the subject person then becomes liable to
pay the amount of their unexplained wealth to the state.[50]
Investigative powers
3.56
The WA Corruption and Crime Commission (CCC) was established in 2004 by
the Corruption and Crime Commission Act 2003 (WA) to combat organised
crime by authorising and monitoring the use by WA Police of exceptional powers
in organised crime investigations, and to reduce the incidence of misconduct in
the public service.
3.57
The CCC has extensive investigative powers, including coercive powers,
telephone intercept and surveillance powers, running controlled operations, and
the ability to use and authorise the use of assumed identities. In its
organised crime function, the CCC has the authority to authorise and monitor
the use of these exceptional powers by WA Police.[51]
3.58
The Corruption and Crime Commission Act also authorises the CCC to issue 'fortification warning notices' and 'fortification removal notices' which are
enforceable by the WA Police.
3.59
The (then) Opposition introduced a Bill in November 2007 which would
have allowed the CCC to investigate serious crime independently of the WA
Police, however the Bill was not passed by the Legislative Assembly and lapsed.[52]
3.60
The Security and Related Activities (Control) Amendment Act 2008
was assented to on 2 April 2008 but has not yet come into force. The Act aims
to close loopholes and improve the regulation of the security industry. Among
other things it imposes strict identity checking and character requirements on
persons employed in the security industry.
South Australia
Criminal laws
3.61
The Serious and Organised Crime (Control) Act 2008 (SA) came into
force on 4 September 2008 and establishes a framework under which a group or
club can be declared an 'organised crime group', which enables various orders
to be made to restrict the movement and associations of the group's members. The
committee considers this Act in detail in the following chapter.
3.62
The Act was specifically designed to target the organised crime
activities of outlaw motorcycle gangs of whom Premier Rann said:
We know that they are involved in numerous and continuous
criminal activities from the organised theft and re-identification of motor
vehicles and motor-cycles through to drug manufacture, importation and
distribution, murder, vice, fraud, blackmail, assaults, public disorder and
intimidation, firearms offences and money laundering.
The new laws are aimed at trapping these thugs at every turn.
We don't just want to try to run them out of town and turn them into someone
else's problem. We want to lock them up - but we also want to break them up.[53]
3.63
On 14 May 2009, the Finks Motorcycle Club was the first group to be
declared under the Act, and control orders were made against a number of its
members. However, on a legal challenge being made to the orders, the control
orders have been deactivated. The Finks are currently in the process of
challenging the constitutionality of the Serious and Organised Crime Control
Act.
Proceeds of crime laws
3.64
South Australia has proceeds of crime legislation which, like the
Commonwealth laws allow for the confiscation of assets proven on the balance of
probabilities to have been gained through criminal activity.[54]
Investigative powers
3.65
In the 2008 package of legislative amendments, South Australia also
enacted the Firearms (Firearms Prohibition Orders) Amendment Act 2008 (SA)
which amended the Firearms Act 1977 (SA). The amendments provide that
people with a history of violence or serious criminal behaviour and their
associates may be made subject to a firearms prohibition order which allows
police to stop and search those individuals on sight, and their place of
residence to be inspected for firearms at any reasonable time.
3.66
South Australian Police also have the power to intercept telecommunications
and use surveillance devices[55]
and conduct controlled operations.[56]
3.67
South Australian law enforcement authorities do not have the power to
assume and issue false identities or the ability to apply for assets
confiscation orders on the basis of an individual having unexplained wealth,
although both of these legislative tools are proposed.[57]
South Australian Police also do not currently have coercive investigative
powers.
Tasmania
3.68
Organised crime is less prevalent in Tasmania than in other states and
Territories. Australian Crime Commission data from 2004 indicates that Tasmania
is the only Australian state or territory without the presence of any 'high
threat organised crime groups'.[58]
3.69
Tasmanian criminal law does not contain any offences for involvement
with, or membership of, organised criminal groups or gangs. However, a number
of legislative amendments have been made recently to address specific problems
associated with organised crime groups. None of the new provisions have yet
been used.[59]
Proceeds of crime laws
3.70
Tasmania is the only Australian jurisdiction without proceeds of crime
confiscation legislation based on the civil standard of proof. The Crime
(Confiscation of Profits) Act 1993 (Tas) requires that a person is
convicted or has absconded after being charged with a serious crime in order
for the assets derived from that criminal activity to be confiscated by the state.
Investigative powers
3.71
The Police Offences Act 1935 (Tas) was amended in October 2007 to
enable to Commissioner of Police to apply to a court for authority to remove or
modify heavy fortifications. The amendment was aimed at assisting police to
investigate organised crime networks, specifically outlaw motorcycle gangs
whose clubhouses are often heavily fortified.[60]
3.72
The Firearms Act 1996 (Tas) was also amended in October 2007 and
now requires that 'close associates' of licensed firearms dealers undergo a
backgrounds check to ensure they are 'fit and proper persons'. The purpose of
the amendments is to ensure that people with a financial interest in a firearms
dealership, and those able to exercise influence over a dealer 'do not impose
pressure on dealers to commit unlawful acts'.[61]
3.73
Tasmania has four pieces of legislation relating to organised crime
groups that are yet to be proclaimed, that relate to the use of surveillance
devices, controlled operations, assumed identities and witness protection.[62]
Each is based on the national model legislation. Tasmania already has
telecommunications interception laws.
Australian Capital Territory
3.74
The Commonwealth legislation relating to telecommunications interception
and surveillance devices (except listening devices) applies in the ACT. The Crimes
Act 1900 (ACT), Crimes (Controlled Operations) Act 2008 (ACT) and Confiscation
of Criminal Assets Act 2003 (ACT) govern the use of search warrants,
controlled operations and the confiscation of proceeds of crime respectively.
3.75
The ACT does not have legislation allowing the use of assumed
identities, preventing fortification or permitting law enforcement to use
coercive powers (except the ACC when operating in the ACT).
Northern Territory
Criminal laws
3.76
The Justice Legislation Amendment (Group Criminal Activities) Act
2006 (NT) amended the Sentencing Act (NT) to give courts the power
to make 'non‑association orders' and 'place restriction orders'. Non‑association
and place restriction orders are applied during the sentencing for a
'significant offence'. The former provide that a convicted offender may not
associate with the persons specified in the order. Place restriction orders
prevent a convicted offender from visiting specified locations during a
specified period.[63]
3.77
The Justice Legislation Amendment (Group Criminal Activities) Act
2006 (NT) also introduced a consorting offence into the Summary Offences
Act[64]
and created a new offence of being part of a group involved in a violent
act that creates fear. In the Second Reading Speech to the Bill, the NT
Attorney-General indicated that indigenous gang-related violence was a
motivation for the Bill, stating that:
The new violent disorder offence will effectively target
mid-level, intimidating gag behaviour, as recently seen in the Wadeye fighting
and the family feud-related violence in Yuendumu.[65]
Proceeds of crime laws
3.78
The Northern Territory introduced unexplained wealth laws based on the
WA legislation in 2003 in the Criminal Property Forfeiture Act 2002
(NT). The legislation essentially reverses the onus of proof in criminal assets
confiscation matters, requiring an individual to prove that their assets were
obtained legally. The Northern Territory has been remarkably successful in
utilising its unexplained wealth laws to seize assets from suspected organised
criminals.
Investigative powers
3.79
Northern Territory Police have the power to intercept
telecommunications, use surveillance devices,[66]
obtain search warrants,[67]
and conduct controlled operations.
Conclusion
3.80
This chapter has summarised the key pieces of legislation in each
Australian jurisdiction aimed at combating serious and organised crime. Each
jurisdiction currently has a different set of legislative tools, including
different criminal laws, proceeds of crime laws and a variety of policing
powers. The development of different legislation in each jurisdiction is in
part a response to specific law enforcement issues and criminal milieu. The
benefit of such targeted legislation is that it enables law enforcement to
effectively respond to the problems confronting their particular jurisdiction.
3.81
However, with the increasing complexity of organised crime, including
its reliance on national and transnational networks, having different laws in
each jurisdiction can make the national fight against serious and organised
crime in Australia complex. The committee heard that there are often loopholes
and weak points created by the variety of legislative approaches in Australia,
and that criminals will often move to, or store their assets in, jurisdictions
with 'weaker' laws. These issues are examined in further detail in chapter 6.
3.82
While this chapter has provided an overview of legislative arrangements
in each Australian jurisdiction, chapters 4 and 5 consider in detail the major
legislative approaches in Australian jurisdictions and internationally, which
aim to prevent serious and organised crime.
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