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Chapter 4
Legislation targeting participation in an organised crime group
Introduction
4.1
As outlined in chapter 1, this inquiry was, in part, established to
consider the legislative developments in South Australia with the Serious
and Organised Crime (Control) Act 2008. When it was introduced, the South
Australian legislation was unique in Australia in that it targeted association
with a 'criminal organisation' as the basis for an offence.
4.2
This chapter considers legislation in various jurisdictions, both within
Australia and internationally, which has the effect of expanding criminal
liability, or using administrative means, to criminalise or otherwise prevent
participation in, or association with criminal organisations.
4.3
The justification for laws targeting participation in groups rather than
the acts committed by individual members of groups is that they enable law
enforcement to proactively prevent organised crime from occurring, rather than
simply react to it once it has occurred. The South Australian Government argued
that:
The criminal law has a limited capacity for 'prevention' and
as such makes legislative reform in this area reactive in nature... In many
instances, by the time law enforcement have established the requisite
suspicion, associations between those involved in serious and organised crime
have advanced into relationship and networks, with positive steps taken towards
the commission of the crime. Law enforcement therefore is disadvantaged in
'preventing' the threat an impact of serious and organised crime on the
community.[1]
4.4
There are various legislative models aimed at prohibiting organised
criminals from associating with each other, thereby attempting to prevent
organised crime from occurring. The model used in each jurisdiction depends on a
number of factors, including:
-
the legal system in the jurisdiction. For example, whether a
legislature has the constitutional power to enact criminal laws; or limitations
on the kinds of laws that can be enacted;[2]
-
the organised crime environment in the jurisdiction. For example
China, Hong Kong and Macau have laws specifically targeted at triads, and Italy
has laws designed to limit the power and control of the mafia; and
-
human rights protections, which may make it extremely difficult
for some jurisdictions to pass legislation which criminalises association or
consorting.[3]
4.5
The committee has identified three main types of laws which aim to
prevent the members of organised crime groups from associating with each other
and committing offences jointly:
-
criminal laws which make it an offence for any person (other than
legitimate business associates, family members etc) to associate with, or
participate in an organised crime group. This is the basis of the South
Australian approach;
-
civil orders, such as control orders or restraining-type orders,
which apply to a specific individual and may state that the individual must not
associate with a group or with other named persons, making it a criminal
offence to breach the order. This approach has been adopted in the United
Kingdom, Canada, New South Wales and South Australia; and
-
criminal laws with specific offences for certain activities that
occur within organised crime groups, such as racketeering (as in the United
States model), or directing a criminal group (as in Canada).
4.6
Each of the above approaches has benefits and drawbacks. It should be
noted that the models used in most jurisdictions examined by the committee are
not restricted to one of the above approaches. Instead jurisdictions tend to
use a combination of association offences, civil orders and/or specific
criminal offences.
4.7
The following section analyses some of the general strengths and
difficulties of each approach. Then, specific legislative models, both within
Australia and overseas, aimed at preventing organised crime by targeting
participation in or membership of criminal groups are considered in detail.
Association and consorting offences
4.8
For the most part the criminal law is designed to prosecute 'isolated
crimes committed by individuals.'[4]
This usually requires proof of the main elements of the offence, including the
performance of an act, with the necessary intent, and without a legitimate
defence. However, as Dr Andreas Schloenhardt explains:
The structure and modi operandi of criminal associations... do
not fit well into the usual concept and limits of criminal liability. For
example, it is difficult to hold directors and financiers of organised crime
responsible as they plan and oversee the criminal organisation but frequently
have no physical involvement in the execution of the organisation‘s criminal
activities.[5]
4.9
Therefore, various exceptions or extensions to the principles of
criminal liability have developed, including consorting or association offences
which criminalise associations between individuals.
4.10
In Australia consorting offences have existed since 1835, and have been
used as a means of breaking up criminal gangs since 1929.[6]
Most states have an offence along the lines of 'habitually consorting' with 'reputed
criminals, known prostitutes or persons with no visible means of support' - or
words to that effect - which survive today.[7]
4.11
The South Australian Police submitted that the old consorting offences are
problematic because of 'the petty nature of the classification of persons', 'the
absence of any defence' and the fact that 'consorting does not include modern
forms of communication.'[8]
4.12
The Commonwealth introduced modernised consorting laws in respect of
terrorist organisations in 2002,[9]
which make it illegal to be a member of a proscribed terrorist organisation. The
anti-terror laws attempt to avoid some of the problems inherent with consorting
offences, by targeting preparatory activity. As Mr Geoffrey McDonald, from the
Commonwealth Attorney-General's Department explained:
There is no difficulty with the states charging someone with
a murder offence—in fact, if attempted murder or other offences is easier to
prosecute there is no problem with the states prosecuting people on that basis.
The terrorism laws are focused very much on preparatory activity and they try
to be more specific about that preparatory activity so that you do not have
some of the complications you would have with trying to prove conspiracy,
incitement and aiding and abetting. So always the terrorism laws have been
understood to allow the states and territories to prosecute with their
traditional offences if they want. In fact, the legislation makes it pretty
clear that it does not bar the states and territories. Of course, the states
and territories work with the AFP when they do prosecute people for terrorism
offences—they are very actively involved.[10]
4.13
In 2008, South Australia passed legislation introducing consorting laws
in respect of organised crime groups. Section 35 of the Serious and
Organised Crime (Control) Act 2008 provides that it is a criminal offence,
punishable by up to five years imprisonment, to associate with a member of a
declared criminal organisation.
4.14
Other jurisdictions, including Canada and New Zealand, have introduced
laws which criminalise association with or participation in criminal
organisations, or make such association an aggravating factor in the commission
of certain crimes.
The benefits of association
offences
4.15
The committee heard from a number of law enforcement agencies about the
difficulties they experience in targeting sophisticated criminal networks
because:
[a] successful prosecution of one, or even more members of a
network, often has only a limited effect on the broader operations of the
larger criminal group.[11]
4.16
Assistant Commissioner Harrison from the South Australian Police told
the committee about the specific problems that law enforcement faces in
gathering evidence about organised criminals:
I am sure the committee would be aware that, when it comes to
investigating crimes committed by gangs and serious and organised crime groups,
it is often very, very hard because of their construction in relation to
maintaining a code of silence and having a brand of intimidation and fear in
respect to witnesses.[12]
4.17
Given the challenges of responding to organised crime some witnesses
view association offence laws as an important means for disrupting such
criminal activity.
4.18
A number of law enforcement agencies argued that association laws are
necessary in order to prevent, as opposed to simply react to, serious crime. For
example, the South Australian Police gave evidence in this inquiry that:
[Police] traditionally have the
investigative focus which is very reactive. We wait for the crime or the
criminal activity to occur and then the police put a response strategy in
place. Invariably that has not been overly successful when you look at serious
and organised crime, established criminal networks and outlaw motorcycle gangs,
because of their composition, structure and culture...The anti-association
aspect...is all about trying to prevent those associations occurring. We try to
disrupt the planning processes and we would like to hope that we then have some
impact on preventing crimes occurring within our communities.[13]
4.19
Chief Inspector Powell told the committee that anti-association laws are
an important tool for combating organised crime because the association is such
an important aspect of their criminality. He said:
Serious and organised crime groups require the communication
and the association with each other to become sophisticated, to generate their
levels of sophistication and methodologies. When you are talking about gangs, a
reputation for violence, a criminal reputation, becomes essentially an asset.
It is no different to goodwill for a legitimate business.[14]
4.20
Reflecting on this argument, the Law Council of Australia submitted:
The view is that police should not be left frustrated and
unable to act when they possess evidence demonstrating associations and
connections between ‘known criminals’ but have no way of sheeting home
responsibility for any particular planned or executed offence.
There is nothing new about these types of sentiments. It has
always been the challenge of criminal law to define the limits of culpability
in such a way that police are empowered to act both: to proactively prevent
crimes from occurring; and to bring to account all those who knowingly
instigated, facilitated or participated in the commission or planned commission
of an offence.[15]
The disadvantages of association
offences
4.21
Consorting-type offences have attracted a great deal of criticism,
particularly from academics, lawyers and judges because they are argued to
impinge on the freedom of association.[16]
For example, Mr Ray, the President of the Law Council of Australia, expressed
the view that:
The notion of prosecuting people for associations rather than
substantive offences is really quite abhorrent. If somebody is involved, is
sufficiently proximate and commits an offence, even one of an attempt or one of
a conspiracy nature, then the existing laws are there to deal with them. It is
very clear that not only do some of these laws have the potential to be
structurally unfair and restrict relationships—they introduce laws that are
really Big Brother laws, dictating who you can talk to and where you should
be—but they also create other issues of accidental capture of conduct that is
clearly not criminal. The accidental capture of such conduct is a reflection of
legislation that is emotively introduced, such as the terrorism legislation,
and has within it changes that are based on fear rather than the logical
application of law.[17]
4.22
Mr Ray went on to argue that one of the most concerning features of
association offences is the potential for them to prevent those subject from
associating with family members and friends:
What troubles me about the blanket declaration is that you
have legitimate friendships and relationships with neighbours and with
relatives that suddenly subject you, through those relationships, to a
potential criminal charge. That is quite extraordinary. I know that in the
South Australian legislation they do exempt certain relatives so that a spouse,
former spouse, brother, sister, parents and grandparents are exempted. But
there would still be a broad range of relatives that many people would keep in
touch with and there would be absolutely no criminal intent behind that contact
and yet it would be the creation of an illegal relationship. We have to be very
cautious in this day and age about creating criminal offences that are new and
do not reflect criminal intent or criminal conduct.[18]
4.23
The fairness of punishing an entire organisation for the actions of what
OMCG members insist is a 'small number of individuals',[19]
was also raised as an issue. Mr Gildea, President of the Hells Angels in
Queensland commented:
How can you hold an organisation responsible for the actions
of its individual members? We could give numerous examples of politicians and
officers of the police force who have committed crimes and have been charged
and convicted as individuals. These crimes include theft, assault, drug-dealing
and paedophilia. Those individuals have been punished, and rightly so, but we
have not tried to label the government or the police force illegal organisations;
nor have we tried to hold the head of government or the commissioner of police
responsible for the actions of the individuals.[20]
4.24
Similar views were expressed by the Law Council of Australia:
The power of association is one that should not likely by
itself lead to criminal liability. The reason for that is clear: it is like a
company, and there are fundamental laws in a company dictating whose conduct
becomes the conduct of the company. It is called the law of attribution. The
conduct of a person in the company under civil law may bind the company but
under the criminal law ordinarily will not, historically, unless that person is
the mind and will of the company—quite senior—or further down the company if it
were to do with other rules of interpretation based on the articles of
association or the incorporation et cetera of the company. We need to be very
cautious about attributing the conduct of individuals to organisations without
clear definition and clear proof. What you do once you do have such attribution
and such rules is to then talk of introducing quite extraordinary powers to
prosecute and convict on criminal offences that are currently not known to the
law.[21]
4.25
The committee also heard evidence from those involved in groups which
are at risk of being declared under anti-association legislation. These
witnesses talked about the negative impact on their lives of their group being
'outlawed':
Biking has been a major part of my life. I have Rode more
kilometres than I care to recall and all those km's as a proud and Free
Australian, I Served this country in the Australian army and did so under the
assumption I was doing so to Keep our country free from political dictatorship...
I am in no way attached to any 1% club but do associate with
some, I have made good friends with individuals within these clubs. I Feel that
my way of life (the one I choose to live) is under threat of being taken away
from me with the introduction of these new laws. Now I have read in the news
and from transcripts of political documents that, I quote "If you are not
a criminal or partake in criminal activities you have nothing to fear". I
find this utter rubbish as the laws state that if I associate with these
individuals or groups more than 6 times in 1 year than I can and will be
gaoled. Let me just add here that I have no police record or prior convictions
for any criminal or illegal activities.[22]
4.26
Accordingly, association and participation laws have resulted in a
number of challenges under human rights legislation in those jurisdictions
which have statutory rights protections, including Canada and the United
Kingdom. Law enforcement agencies in both of those jurisdictions expressed concern
that the lengthy legal processes involved in human rights challenges have the
potential to make the administration of association laws cumbersome and
inefficient.[23]
4.27
For this reason the police force in Victoria - which is the only
Australian state with a human rights act - submitted that:
An adoption of similar reform [to that in South Australia] in
Victoria may possibly be inconsistent with Victoria’s Charter of Human Rights
& Responsibilities.[24]
4.28
Witnesses informed the committee that there are also a range of
difficulties inherent in developing laws that criminalise association with
criminal organisations. One of the key challenges is defining 'criminal
organisations'. A further challenge arises in developing a fair, efficient and
consistent process for making a decision that a specific group falls within the
definition of a 'criminal organisation'. As the Hon Roberts-Smith QC,
Commissioner of the Corruption and Crime Commission of Western Australia,
explained:
From a purely practical point of view, there will be
definitional problems. Who is included? Who is not? How do you prove their
association? How do you prove participation? What are you proving participation
in—membership of a group, the conduct of criminal enterprises or what? All of
these are very vexed questions which are actually quite difficult, I would
suggest, to deal with in framing legislation.[25]
4.29
Dr Schloenhardt's submission deals in some detail with the difficulties
various jurisdictions have had in developing a suitable definition of 'criminal
organisation' (or other similar term). For example, he explains that the
definitions initially adopted in both Canada and New Zealand were too narrow,
making the legislation in both countries relatively ineffective.[26]
4.30
The Attorney-General's Department has identified two processes through
which a group is determined as criminal: 'the legislative test, and
proscription by government official'.
4.31
The legislative test is conducted on a case-by-case basis whereby the
court determines whether an organisation meets the criteria of 'criminal
organisation' as set out in the legislation. Most jurisdictions internationally
have adopted this approach. For example, Canada's legislation requires that a
group be proven to be a 'criminal organisation' on each separate occasion that
a member of the group is brought before the court, using a test set out in the
legislation. This aspect of the Canadian model has been criticised as an
inefficient use of police and court resources.[27]
4.32
By contrast, South Australia's legislation adopts the proscription
approach and provides that such a decision is to be made by the
Attorney-General. The legislation lists a number of factors that the
Attorney-General is required to take into account in making a decision to
prescribe a group.[28]
4.33
New South Wales' new laws give the role of deciding to declare an
organisation as a criminal organisation to Supreme Court judges. The NSW Police
Minister, the Hon Tony Kelly, reasoned that:
By entrusting this role to Supreme Court judges, we can avoid
having to include a list of the types of organisations that cannot be declared,
such as political parties. Such an exemption list is commonsense. After all,
who wants to see a future government trying to declare an opposing party or a
troublesome lobby group unlawful? Members should examine what has happened in
South Australia. The bikie gangs have formed a political party, ostensibly to
oppose the repressive legislation. However, it is obvious that it is really a
device to get around the law by using a political party exemption.[29]
4.34
Noting the difficulties inherent in drafting effective legislation, the
ACC further expressed a view that association laws may not have a great impact
on disrupting serious and organised crime anyway, echoing the concerns of a
number of other organisations and agencies:
Legislative amendment and new regulatory frameworks can have
a short-term impact on such criminal groups. However, current trends in group
formation and the consequent adaptability and resilience mean that they are
increasingly able to minimise their effects. The definition of specific
criminal groups has become more difficult and proving membership of or
participation in a specified organised criminal group would be challenging in
this environment. In particular, there is a clear risk that law enforcement
effort would be diverted away from intervention and prevention efforts to the
burden of proof required to establish membership of an unlawful organisation.[30]
4.35
On a related point the Hon Mr Roberts-Smith stated:
How does one deal with those groups which are randomly formed
for the commission of the offence, or groups which briefly deal with other
groups for a particular criminal enterprise? I think the complexities of trying
to cast laws around criminalising conduct of that kind are very great.[31]
Civil orders
4.36
A number of jurisdictions have attempted to limit the ability of
organised crime group members to associate with each other through the use of
civil orders. There are numerous forms that such orders take, however, on the
whole they:
-
are made by courts;
-
are made against individuals;
-
contain restrictions on the activities that the individual may
take part in, the places they may visit, the people they may associate with, or
other orders designed to prevent them from committing criminal offences; and
-
specify that a breach of an order is a criminal offence.
4.37
Orders may be made post-sentencing, or without a criminal conviction.
The UK has adopted the former approach, and has made Serious Crime Prevention
Orders against people convicted of serious crimes.
4.38
South Australia, New South Wales and Canada have legislation enabling
courts to make orders based on a lower, civil standard of proof (the court's
reasonable satisfaction),[32]
that do not require a criminal conviction. In South Australia and New South
Wales control orders can be made by courts against members of 'declared
organisations'. In Canada 'gang peace bonds' can be made against people who are
reasonably likely to commit an organised crime offence, including junior gang
members.
4.39
The committee heard that control orders can be an effective means of
preventing organised crime gang members from committing offences, and
particularly for breaking the cycle for more junior gang members.[33]
The Commonwealth Attorney-General's Department said:
In general terms, civil orders might be effective in
preventing crime as they allow the conduct of certain persons, such as those
involved in criminal activity, to be monitored and restrained with the aim of
preventing them from engaging in criminal conduct. Other civil orders allow for
the continued detention or supervision of certain convicted persons, once again
with the aim of preventing the person from engaging in criminal conduct. These
types of civil orders may have a deterrent effect, but this can also be said of
criminal laws. Generally, the breach of these types of civil orders is subject
to criminal sanction.[34]
4.40
The orders are also made against specific individuals, so do not impinge
on the freedom of association to the same extent that broader-ranging
association laws do. However, in certain forms – including those adopted in
South Australia and New South Wales - the orders raise similar human rights
concerns as association offences, albeit to a lesser extent. Dr Andrew Lynch
told the committee that:
Allowing control orders against individuals simply on the
basis of membership of a declared organisation is an extraordinary extension of
the regulatory state. Adding an element of criminality to the criteria for
making such an order might seem to strengthen the justification for them but
the problem is that they are still clearly designed to avoid the rigors of a
criminal trial with the appropriate burdens of proof.[35]
4.41
Canada's approach, which requires a reasonable suspicion that a person
may be involved in committing criminal offences – rather than reasonable
satisfaction that they are a member of a listed group as in South Australia and
New South Wales – avoids some of the concerns raised by Mr Lynch.
4.42
However, substantial resources are required to monitor control orders,
and the committee was cautioned that the approach should not be used if law
enforcement do not have adequate resources to enforce and monitor the orders.[36]
Organised crime offences
4.43
The third approach that has been adopted in some jurisdictions is the
development of specific criminal offences for acts committed by members of
criminal groups, which would not otherwise be criminal acts. For example,
Canada has criminal offences for directing a criminal organisation, committing
a crime on behalf of a criminal organisation and supporting a criminal
organisation.
4.44
Ordinarily, in most common law jurisdictions, the leader of a criminal
organisation may be able to be prosecuted for the offence of inciting another
person to commit a criminal act, or for conspiracy.[37]
However these offences tend to attract lesser penalties than the commission of
the act itself. It can also be very difficult to prove these offences in
relation to organised crime gang leaders, who tend to 'create a corporate veil
to insulate them from liability' and do not typically engage in overt criminal
acts themselves.[38]
In addition, conspiracy laws are generally very complicated, resulting in a
high failure rate of conspiracy charges.[39]
4.45
Under Canadian law, there is a specific offence for instructing the
commission of an offence for a criminal organisation, which carries a maximum
penalty of life imprisonment. Canada also has a specific criminal offence for
participating in the activities of a criminal organisation.
4.46
New South Wales also has criminal legislation targeted at the specific
activities of gang members. Section 93T of the Crimes Act 1900 provides
that involvement in a criminal group is an aggravating factor in the commission
of certain criminal offences. New South Wales' new laws also introduce an
offence of recruiting a person into a criminal organisation.
4.47
The committee was told that the United States RICO laws, which are a
variation of this approach, have been very successful in targeting high level
members of organised crime groups.[40]
However, they can also be very complex, and similar drafting issues arise in
terms of defining 'criminal organisations' as in association offences.
4.48
These three examples are considered in further detail later in the
chapter.
Examples of specific legislative approaches
4.49
This section outlines the legislation in key jurisdictions which targets
participation in, or association with, criminal organisations, using a
combination of the above methods. Where possible, the effectiveness and
practical impacts of the legislation are explored.
United States of America
Racketeer Influenced and Corrupt
Organisations Act 1970 (USA) (RICO Act)
4.50
The United States of America was one of the first countries to respond
to organised crime by expanding their criminal legislation.[41]
The Racketeer Influenced and Corrupt Organisations Act 1970 (RICO Act)
aims to combat organised crime:
...by strengthening legal tools of the evidence gathering
process through establishing new penal provisions, and providing enhanced
criminal sanctions and new remedies to deal with the unlawful activities of
those engaged in organised crime.[42]
4.51
The RICO Act does not ban membership of criminal organisations, although
'it may have that effect'.[43]
Instead, it creates additional offences and penalties for 'racketeering', which
may be applied to members of criminal organisations which have committed two or
more related serious crimes over ten years.
4.52
The Act sets out four racketeering offences, each of which requires some
involvement with an 'enterprise'. The offences are:
-
having an interest in an enterprise which receives income as a result of
a 'pattern of racketeering activity' or the 'collection of an unlawful debt';
-
having an interest in an enterprise through a pattern or racketeering
activity or collection of an unlawful debt;
-
involvement in the activities of an enterprise that is conducting a
pattern or racketeering activities or the collection of unlawful debt; and
-
conspiring to commit any of the above activities.[44]
4.53
An 'enterprise' is any legal entity, including individuals, partnerships
and corporations. It can also include any group of individuals associated in
fact, such as a family or motorcycle club. Dr Schloenhardt's submission
explains that the broad definition of enterprise means that the RICO Act
applies to a wide range of groups, both legitimate and criminal.[45]
4.54
A 'pattern of racketeering activity' means that an enterprise has committed
any two of 35 predicate crimes within a ten year period. The predicate crimes
encompass almost all serious crimes under state and federal law.[46]
In essence, the offences in §1962 criminalise the investment
of 'dirty' money by racketeers, the takeover or control of an interstate
business through racketeering, and the operation of such a business through
racketeering.[47]
4.55
In addition, prosecutors must also prove that:
-
the individuals in the 'enterprise' are associated with one another;
-
the predicate acts are related; and
-
the criminal acts have some impact on interstate commerce (e.g.
withdrawing money from an interstate bank account).
4.56
In summary, the RICO Act enables the state to charge people who are involved
in businesses or groups that have a history of using illegal means to run their
business or group with racketeering. The penalty for racketeering is a maximum
of 20 years imprisonment and/or a fine of $250 000. In addition, the RICO laws
provide for the forfeiture of all proceeds of crime plus any additional
interest gained through racketeering.[48]
4.57
The RICO Act also has the unique feature of allowing private parties to
sue 'racketeers' for damage to their business property. If successful, the
court may award triple damages to the affected business owner.[49]
Effectiveness of RICO Act
Over nearly forty years of operation, RICO has been
used successfully to prosecute a number of high profile leaders of criminal
organisations and has incapacitated a diverse range of criminal syndicates.[50]
4.58
Dr Schloenhardt details a number of high-profile prosecutions involving
members of La Cosa Nostra, the American branch of the Sicilian Mafia, and notes
that the laws have also been successfully applied to members of Asian organised
crime groups and members of the Russian Mafia.[51]
However, attempts to use the laws to prosecute members of the Hells Angels,
including its founder Sonny Barger, failed because the jury was not convinced
that a 'pattern of racketeering activity was part of the club's policy'.[52]
4.59
However, the South Australian Government's submission stated that the
complexity of the RICO Act has limited its utility.[53]
It was submitted that because prosecutors require approval from the Department
of Justice, which is only granted in special circumstances, the laws have not
been widely used.[54]
4.60
Dr Schloenhardt agrees that initially the uptake of the laws was slow,
as it took time for law enforcement to become familiar with the laws. However,
he noted that now there is a high frequency of RICO prosecutions, and stated:
[s]ince 1980, practically every significant organised crime
prosecution has been brought under RICO[55]
4.61
Dr Schloenhardt submitted that the flexibility of the RICO laws has
allowed law enforcement to follow and adapt to the dynamism of organised crime
groups. This flexibility, he pointed out, derives from the legislation's lack
of definition of terms such as 'organised crime' and 'criminal organisation',
enabling the courts to change the definition over time so that the laws could
be applied to evolving structures and crimes.[56]
The great flexibility with which the legislation operates is
also RICO‘s principal advantage over traditional conspiracy offences and
their confined elements that left many key leaders of criminal organisation
immune from prosecution.[57]
4.62
Another positive aspect of the laws is their ability to:
Present a complete picture of a large-scale, ongoing,
organised-crime group engaged in diverse rackets and episodic explosions of
violence.[58]
The ability to join separate trials, and to merge offences and
offenders underpin this feature.
4.63
The RICO laws have managed to avoid some of the criticisms of the models
used in other jurisdictions, in particular the level of impingement on the
freedom of association. The laws do not criminalise association with other
persons, but the commission of certain acts, such as receiving an income from,
or having an interest in, an enterprise. This focuses on the illicit business
or criminal group itself, rather than the members of the group.
4.64
However, this aspect of the RICO legislation has also limited its
flexibility, as it 'does not allow rapid responses to new and emerging
organised crime activities as statutory amendments take considerable time.'[59]
This can be contrasted to the greater flexibility of an approach which
criminalises association with, or participation in, any listed group, and
enables groups to be listed through subordinate legislation or administrative
orders, such as the South Australian laws.
4.65
The South Australian Government also commented that the RICO legislation
'has limited prevention capability'.[60]
This is because the RICO laws still require that traditional criminal acts,
albeit an expanded form, have been committed or attempted, as opposed to
targeting associations which may lead to conspiracies to commit criminal acts
prior to the acts themselves being committed.
4.66
Nonetheless, US Department of Justice officials told committee members
that the RICO legislation has been highly successful. In part, its success is
based on the fact that law enforcement can more readily make a case against a
criminal enterprise than the individuals at the top of the structure running
the enterprise. The committee heard that the evidential burden required to
establish racketeering activity is so high that members of the criminal
enterprise, once identified, would readily give evidence.[61]
Canada
In 1997, together with New Zealand, Canada became the first
common law jurisdiction in the region to introduce specific offences against
criminal organisations. These offences were introduced in response to the
activities of outlaw motorcycle gangs (OMCGs or in Canada referred to as 'biker
gangs'). Throughout the 1990s the province of Québec saw particularly violent
clashes, including bombings and killings, between rival biker gangs, frequently
involving the Hell's Angels and the Rock Machine gangs that were fighting for
control of Montréal's illicit drug trade.[62]
4.67
Organised crime in Canada is widespread, but particularly prevalent in
the major cities of Montreal, Toronto and Vancouver. Organised criminals are
involved in a range of activities, but primarily, like in most industrialised
countries, in the manufacture, import and supply of drugs. Illicit drugs are
the main organised crime problem for Canadian law enforcement.[63]
4.68
There is an estimated 900 organised crime groups operating in Canada,
comprising a range of different types of groups from Mafia-style groups, OMCGs
to loosely associated criminal networks. Several groups have transnational
links.[64]
4.69
The Canadian Charter of Rights and Freedoms contains a number of features
that impact on Canada's options for responding to serious and organised crime,
including:
-
A provision that guarantees freedom of association.[65]
-
the requirement that all laws be 'in accordance with fundamental
justice'.[66]
This has been interpreted to include a requirement of proportionality,[67]
which means that citizens may challenge legislation on the basis that it is not
proportional to the end sought to be achieved.
-
The interpretation of section 7 as requiring that all criminal
laws have a mens rea (or mental) element.[68]
Therefore all criminal offences attracting penalties of imprisonment require
the proof of some level of intent.
4.70
The Charter has meant that Canadian criminal legislative approaches have
centred on legislation which targets participation in – rather than membership
of – a criminal enterprise or organisation.[69]
Criminal Code (Organised Crime and
Law Enforcement) 2001
4.71
Amendments to Canada's Criminal Code in 1997[70]
and 2002[71]
added:
-
new offences for participating in and contributing to the
activities of criminal organisations;[72]
-
proceeds of crime forfeiture provisions based on the civil
standard of proof;[73]
-
orders to 'keep the peace';[74]
-
consecutive sentencing provisions;[75]
and
-
police surveillance powers.[76]
4.72
The Canadian Criminal Code now provides for three offences targeting
various levels of involvement in organised crime offences:
-
Participation in the activities of a criminal organisation;[77]
-
Commission of a criminal offence for a criminal organisation;[78]
and
-
Instructing the commission of an offence for a criminal organisation.[79]
4.73
The offences act as both distinct, separate crimes, and as sentence
enhancers. Each of the offences carries a different maximum penalty of five
years, 14 years and life imprisonment respectively.
4.74
A 'criminal organisation' is defined as three or more people whose main
purpose or activity is the commission of one or more serious offences for
material benefit. It does not include a group that forms randomly to commit a
single offence. A 'serious offence' includes an indictable offence with a
maximum sentence of five years or more.[80]
4.75
Membership of an organisation itself is not an offence. However, the
Code sets out indicia to assist the court in establishing a person's participation
in a group, which are clearly intended to capture members. These include:
-
the use of a name, word or symbol associated with the group;
-
the fact of association; and
-
the receipt of a benefit from the group.[81]
4.76
In order to prove that a person participated in a criminal group, it is
not necessary for the prosecution to prove that an accused took part in a
criminal offence, only that they were participants in a criminal group which
carries out such offences.
4.77
Similarly, the offence of instructing the commission of an offence,
which is intended to capture the leaders of organised crime groups, does not
require evidence that an offence has been committed.[82]
However, the offence of committing of a crime for an organisation does require
that the elements of an initial indictable offence be proven.[83]
4.78
The legislation also alters the ordinary evidentiary burdens in favour
of the prosecution, recognising the difficulties that prosecutors often have in
obtaining evidence from an accused person's alleged associates. For example,
the prosecution does not need to prove that the organisation facilitated or
committed an indictable offence or that the accused knew the identity of any of
the persons who constituted the organisation.
Gang Peace Bonds
4.79
The 1997 amendments to the Canadian Criminal Code also expanded the
availability of 'peace bonds' to people likely to commit an organised crime
offence. Peace Bonds were originally developed to tackle domestic violence, and
may place a range of restrictions on individuals who are suspected on
reasonable grounds to be likely to commit a criminal offence.[84]
A Peace Bond is a promise, enforceable under the Criminal
Code of Canada, to keep the peace and be of good behaviour and to obey all
other terms and conditions ordered by a Judge or Justice of the Peace ('JP'),
for period of up to twelve (12) months. Judges and JP’s may impose reasonable
conditions on those who are subject to the Peace Bond, for example: restrictions
on contact with other persons, restrictions on attending certain places,
restrictions on possessing firearms and ammunition.[85]
4.80
If a person reasonably suspects that another person will commit an
organised crime offence they may, with the consent of the Attorney-General,
provide that information to a judge.[86]
If the judge is satisfied that there are reasonable grounds, they can make an
order that the person enter into an agreement to keep the peace. Any reasonable
conditions may be applied to the person's bond. A bond may be for up to 12
months.
4.81
If a person refuses to enter into such a bond, the court may sentence
them to up to 12 months imprisonment. If a person breaks a bond, they will be
guilty of an offence punishable by up to two years imprisonment.
4.82
Mr Bill Bartlett, from the Canadian Department of Justice, and Mr Don
Beardall, from the Public Prosecution Service of Canada, told committee members
that Peace Bonds have been used successfully to break the link of 'lower' level
gang members to a criminal gang.[87]
Effectiveness of Canadian approach
4.83
The South Australian Government's submission commented that the Canadian
legislation has been 'somewhat effective' against motorcycle clubs involved in
serious and organised crime,[88]
citing the arrest of 31 motorcycle club members and associates on 4 April 2007
following Project DEVELOP, an 18 month investigation by the Royal Canadian
Mounted Police, as an indicia of its success.
4.84
One of the strengths of the Canadian model is that it recognises that
there are different levels of involvement in organised crime groups, and different
levels of culpability for the group's activities.[89]
For example, the committee heard that one of the reasons organised crime groups
are so successful is because they use their reputation for violence to
intimidate and coerce.[90]
The Canadian law recognises that intimidating and coercive behaviour of gang
members, although perhaps not criminal in and of itself when committed outside
of a gang situation, contributes to the gang's ability to commit serious crime.
4.85
Dr Schloenhardt submitted that:
Unlike most other jurisdictions, Canada's offences are more
suitable to criminalise core directors of criminal organisations as well as
persons who only provide rudimentary support.[91]
4.86
The Canadian laws have been criticised as being too broad and vague and
for imposing criminal sanctions without requiring proof of any specific
criminal intention.[92]
For example, a person could be liable for attempting to participate in a
criminal organisation. Dr Schloenhardt pointed out that this breadth was
deliberate, so that the laws could apply to any one associated with criminal
gangs.[93]
4.87
The Canadian model has also been criticised for requiring 'criminal
organisations' to be proved on each separate occasion[94]—i.e.
if a group is found to be a criminal organisation in one prosecution, that
status does not carry over into subsequent prosecutions of members of the same
group.
4.88
However, Dr Schloenhardt notes that case law indicates that a court
finding that a group is a criminal organisation in one case does have a flow on
effect and may result in 'the quasi-black-listing of some groups',[95]
citing the fact that the decision in R v Lindsay which found that the
Hell's Angels motorcycle club was a criminal organisation has been cited in
other cases involving the Hell's Angels.[96]
4.89
In practice the laws have 'found limited application', particularly as
separate offences. There has also been
no noticeable decline in Canadian organised crime since their inception.[97]
4.90
In a number of instances in which the joint trial provisions of the Act
have been applied, the laws have resulted in substantial stresses and expense
to the judicial system with limited success. For example, the laws were used
against an Aboriginal street gang in Manitoba, in which 35 people were accused
of participation offences. The trial process took over 2 years, was very
expensive, and ultimately resulted in relatively minor penalties - all less
than 4.5 years.[98]
Proposed amendments
4.91
Dr Schloenhardt submitted to the committee that:
The recent spate of gangland killings in Vancouver raises
further doubts about the adequacy and effectiveness of organised criminal laws
in Canada, especially if non-conventional, non-heirarchical syndicates are
involved.[99]
4.92
The Vancouver killings led the Canadian Government to introduce new
legislation specifically targeted to preventing and prosecuting gang related
homicides and shootings. On 26 February 2009, the Minister for Justice and
Attorney-General, the Hon Rob Nicholson, introduced An Act to amend
the Criminal Code (organised crime and protection of justice system
participants). The Bill proposes the following amendments to the Criminal
Code:
-
Murders connected to organised crime activity will automatically
be first-degree. First degree murder is subject to a mandatory life sentence
with a 25 year non-parole period.
-
The creation of a new offence to target drive-by shootings. The
Bill makes it an offence to intentionally discharge a firearm while being
reckless as to whether it will endanger the life or safety of another person.
The offence carries a mandatory penalty of four years imprisonment, with a
maximum of 14 years. The minimum sentence is increased to five years for a
first offence and seven years for a subsequent offence if the offence is
committed for a criminal organisation.
-
The creation of two new offences of aggravated assault against a
peace of public officer that causes bodily harm, and aggravated assault with a
weapon on a peace or public officer (any public official employed to maintain
public peace or for the service or execution of civil process).
-
Clarifying that when imposing sentences for certain offences
against justice system participants (including police), courts must give
primary consideration to the objectives of denunciation and deterrence.
-
Lengthening gang peace bonds from a maximum of 12 months to 24
months, for defendants with previous convictions for certain organised crime
offences. The amendments would also make it clear that courts may impose any
bond condition they deem necessary to protect the public.[100]
New Zealand
4.93
As in Australia, organised crime in New Zealand is transnational in
nature, and is characterised by loose networks between groups and individuals.
For example drugs may be imported by a group operating transnationally, and
distributed using domestic gangs.[101]
4.94
Notable groups, which vary in size and sophistication, include:
-
street level local youth gangs;
-
territorial gangs which tend to control regional drug manufacture
and distribution;
-
outlaw motorcycle and other 'organised gangs' which operate at a
national level and whose criminal activity is focussed on money making
operations; and
-
transnational groups which target New Zealand.[102]
4.95
Organised crime groups in NZ are involved in: drug trafficking,
manufacture and supply, of which cannabis is the most prevalent; people
smuggling; document forgery; black market fishing and poaching; wildlife
smuggling; extortion; fraud; cyber crime; and corruption and money laundering.[103]
Crimes Act 1961
4.96
New Zealand introduced specific provisions to target organised crime in
1997 'under very similar circumstances and in the same year as Canada',[104]
in response to a perceived increase in gang activities, particularly of OMCGs
and 'organised criminal groups of Maori and Pacific Islander background'.[105]
The laws were amended in 2002.
4.97
A new offence of participation in a criminal gang was added to the Crimes
Act 1961 which provides that it is an offence to knowingly or recklessly
participate in an 'organised criminal group'.[106]
'Organised criminal group' is defined as a group of three or more people who
have as one of their objectives to obtain material benefit from offences
punishable by at least four years imprisonment or to commit specified serious
violent offences.
4.98
In order to prove the participation offence, the prosecution must show that
the defendant had knowledge of the fact that a group was an organised criminal
group and that they had knowledge that their participation contributed to the
occurrence of criminal activity, or recklessness as to whether their
participation so contributed. However, the term 'participation' is not defined
in any further detail and this has been criticised as a 'grave flaw' of the
laws.[107]
4.99
The offence has broad application because it does not require that the
group be structured in any particular way, only that it comprises three or more
persons. The offence is punishable by a maximum of five years imprisonment.
4.100
The New Zealand laws have been criticised on the grounds that they
extend criminal liability beyond its appropriate limits. In particular, the inclusion
of the concept of 'recklessness' as sufficient to form the mental element of
the participation offence is questioned.[108]
United Kingdom
4.101
The Attorney-General's Department submitted that serious crimes in the
United Kingdom are committed by 'career criminals who network with each other',
rather than well-established and stable groups such as the mafia groups in the
United States. The Department went on to state:
The Home Affairs Committee on
Organised Crime could not formulate an adequate definition to encapsulate
organised crime as experienced in the United Kingdom. Therefore a different
approach to that adopted in other international jurisdictions needed to be adopted
to address the issues in the United Kingdom.[109]
4.102
The Serious Organised Crime Agency (SOCA) was established in 2005 to
lead the UK's efforts to combat serious and organised crime. 'SOCA is an
intelligence-led agency with law enforcement powers and harm reduction
responsibilities.'[110]
SOCA has both civil and criminal powers to reduce the impact of organised
crime.[111]
Serious Crimes Act 2007
4.103
The Serious Crimes Act 2007 enables courts to impose
control orders on people suspected of organised crime. The Act, which applies
in England, Wales and Northern Ireland:
-
creates a new scheme of Serious Crime Prevention Orders;
-
creates a statutory crime of encouraging or assisting crime; and
-
merged the Assets Recovery Agency into SOCA (formerly a separate
agency dealing with proceeds of crime matters), creating a new proceeds of
crime regime.
4.104
The provisions of the Act governing Serious Crime Prevention Orders
(SCPOs) came into force on 6 April 2008. Under the new laws, the courts may make
SCPOs containing whatever prohibitions, restrictions, requirements and other
terms that the court thinks necessary, if:
-
it is satisfied that the person has been involved in serious
crime, and
-
it has reasonable grounds to believe that the order would protect
the public by preventing, restricting or disrupting involvement by the person
in serious crime.
4.105
The burden of proof for the court to apply an SCPO is the balance of
probabilities.[112]
4.106
SCPOs may only be placed on persons over the age of 18,[113]
and must be of specified duration, not exceeding five years.[114]
The breach of an SCPO is a crime, punishable by up to five years imprisonment
and/or an unlimited fine. The courts also have the power to order the
forfeiture of any assets or property involved in the offence.[115]
4.107
A person has been involved in a serious crime if they have:
-
committed a serious offence (drug offences, people trafficking
offences, arms trafficking, prostitution, armed robbery, money laundering,
corruption, bribery etc)
-
facilitated the commission by another person of a serious
offence, or
-
conducted himself in a way that was likely to facilitate the
commission of a serious offence, by him/herself or by another person, whether
or not the offence was committed.
4.108
SPCOs can also be imposed on businesses and unincorporated associations
and can restrict the business's activities, for example, its financial,
property or business dealings, contracting and agreements, employment of staff
and so on.[116]
4.109
An order can also require a person to answer questions or provide
information or documents specified in the order. The order can specify how,
when and where the question must be answered or the information or documents
provided to a law enforcement officer.
Effectiveness of UK approach
4.110
The committee was told that in the first year of the operation of the
Serious Crimes Act, SOCA successfully applied for 12 SCPOs, and the Courts
supported the addition of restrictions and prohibitions.[117]
4.111
All of the SCPOs that SOCA has applied for have been against persons
convicted of serious criminal offences, and will come into effect once the
individual is released from prison. Therefore, at present, there are not large
numbers of SCPOs in operation and it is too early to gauge their effectiveness.
However, the committee was made aware that the orders may become difficult to
manage if applied in great numbers, because of the level of resources required
to monitor such orders. It is anticipated that in a decade or so, once those
subject to the SCPOs begin to be released from prison, law enforcement in the
UK will require substantial resources to monitor the SPCOs.[118]
In order to address this issue, the court may appoint an overseer to monitor an
SCPO at the expense of the convicted person.
4.112
The committee was informed that a number of concerns regarding the human
rights implications of SCPOs had been raised, and the orders had been
challenged under the European Convention on Human Rights Act 1998. However,
none of the challenges to the orders have been successful.[119]
Asian examples
4.113
The legal systems in China, Hong Kong and Macau differ significantly from
Australia's. In spite of this, it is useful to briefly note the legislation
dealing with organised crime in those jurisdictions, as the laws have been
designed to specifically target triads, which are part of the organised crime
environment in Australia.
4.114
Each of those jurisdictions has very sophisticated laws outlawing
different levels of involvement in organised criminal groups.[120]
China has criminal offences which extend criminal liability, and also has
specific organised crime offences. In addition, there are offences targeting
corruption and bribery of law enforcement officials, which has been a
particular problem in China over the past two decades.[121]
4.115
Hong Kong, which has had legislation targeting organised crime groups
for over 150 years, has legislation which specifically mentions the common
traits of triads and provides for different penalties for different levels of
association with triads.
4.116
Macau has comprehensive legislation that criminalises the different
activities which might assist triads in performing their criminal functions,
such as bookkeeping for a triad.
4.117
The significant extensions of criminal liability in each jurisdiction
are limited by very specific and carefully developed definitions of the groups
that are captured as 'organised crime groups'. For example, the Macau laws criminalise bookkeeping and organising meetings for 'secret
societies/associations' but limits the extension of liability by narrowly
defining the characteristics of 'secret societies/associations.'[122]
4.118
Dr Schloenhardt suggests that this model of legislation may be effective
in these jurisdictions - particularly Hong Kong and Macau - because of the high
proportion of organised crime controlled and committed by triad groups.[123]
Within this context an approach that targets the broad range of people involved
in organised crime groups with a specific, static and definable structure, is
appropriate. However, as noted in chapter 2, the committee heard evidence from
numerous law enforcement agencies that organised crime in Australia is increasingly
diverse and characterised by its fluidity and flexibility.[124]
As such, Australian authorities are concerned with ensuring that the
application of legislation is not limited by a narrow understanding of how
organised crime groups are structured.[125]
South Australia
Serious and Organised Crime
(Control) Act 2007
4.119
As noted earlier in the report, the Serious and Organised Crime
(Control) Act 2008 came into force on 4 September 2008. The Act, based on
Australia's anti-terror legislation, provides a framework under which groups
can be declared 'organised crime groups', and various orders made restricting
the movements and associations of its members.
4.120
Professor George Williams told the committee that, in his view, the use
of the terrorism proscription model against organised crime groups is
inappropriate:
The terrorism proscription model is an entirely different
context. It is also based on entirely different types of criminal activity
based as they are upon questions of religion, ideology and the like. There are
also specific aspects of the antiterror laws that simply make them an inappropriate model in this context.[126]
4.121
The Commonwealth Attorney-General's Department also expressed concern
about the appropriateness of using the anti-terror law model to deal with
organised crime groups:
Many people have said about the terrorism laws that these are
exceptional circumstances. A lot of the critics at the time were saying, 'we
hope there isn't going to be bracket creep on this.' Even amongst the people
that talked in the debate about terrorism laws, there was a feeling that they
were about exceptional powers.[127]
4.122
Although the Act is not restricted in its application to OMCGs, it has
frequently been referred to as 'anti-bikie legislation'. This is because the
laws were specifically enacted in response to OMCG activity.[128]
However, Chief Inspector Powell, from the South Australian Police noted:
I might just add in relation to the new legislation that it
is designed to deal with not only outlaw motorcycle gangs but serious and
organised crime groups generally.[129]
Declarations
4.123
Under the Act, the Commissioner of Police may apply to the Attorney‑General
for a declaration in relation to a specific organisation. If satisfied that the
organisation associates for the purposes of organising, planning, facilitating,
supporting or engaging in serious criminal activity, and that the organisation
represents a risk to public safety, the Attorney-General can make a
declaration.[130]
4.124
The Attorney-General must publish notice of the application for a
declaration, and invite public submissions. The Attorney-General is not
required to provide reasons for a declaration.[131]
Offences
4.125
The Act creates three new offences:
-
Associating with a member of a declared organisation, or a person the
subject of a control order on more than six occasions in a 12 month period.
-
Two persons each with criminal convictions for major indictable offences
(or conspiracy to commit such an offence) associating with each other on more
than six occasions in a 12 month period.
-
Refusal or failure to comply with a requirement under the Act to provide
personal details, or to provide false evidence as to personal details, without
reasonable excuse.
4.126
The first offence overcomes the ambiguity inherent in the term 'habitually'
in the old consorting offence. In proceedings for an association offence, the
prosecution does not need to prove that a defendant associated with another
person for any particular purpose or that the association would have led to the
commission of any offence.[132]
4.127
The committee is aware of concern within the community about the
potential for the South Australian association offence to negatively impact on
those innocently associating with criminal organisations:
Maybe the person that sells a ‘designated person’ petrol;
groceries; or teaches their children at school etc will be deemed an associate?
This is because the South Australian legislation (SOCCA) is open to such a
broad interpretation (misinterpretation and abuse), that the powers of the
police could be utilised inappropriately and clearly in contravention of basic
human rights. What has happened to the basic right of ‘innocent until proven
guilty beyond reasonable doubt’?[133]
4.128
Proponents of the legislation argue, however, that there are sufficient
limits in place. Certain associations are not captured by the offences,
including associations between close family members and lawful
business associates.[134]
It is a defence to the association offences to be unaware that a person is a
member of a declared organisation, subject to a control order or had a relevant
criminal conviction.[135]
Control orders
4.129
Once an organisation has been declared by the Attorney-General, the
Commissioner may apply to the Magistrates Court for a control order against a
member or associate of the declared organisation. If the court is satisfied
that a person is a member of a declared organisation, the court must make
a control order.
4.130
The court has a discretion to make a control order at the request of the
Commissioner if:
-
the defendant associates with members of a declared organisation and
either
-
has been a member of the organisation or
-
engages, or has engaged, in serious criminal activity, or
-
the defendant engages or has engaged in serious criminal activity and
regularly associates with other people who engage in such activity.
4.131
A control order may prohibit the person from associating or
communicating with specified persons or a class of persons, or being in the
vicinity of specified premises, or possessing articles of a specified class.
4.132
The court also has wide discretion in making consequential or ancillary
orders under the Act.[136]
This includes a power of entry without a requirement for reasonable grounds for
suspected breach of a control order and could include such practical matters as
banning the wearing of club colours, a move which motorcycle clubs have
publicly resisted and vowed to defy.[137]
4.133
In order to make a control order, a court need only be satisfied of a
person's association or involvement in criminal activity on the balance of
probabilities. If a control order is breached, that breach must be made out to
the criminal standard of beyond reasonable doubt.
4.134
There is no requirement to publish notice of an application for a
control order or to notify anyone in particular. A person may only become aware
of a control order issued against them once the order is served. A person
subject to a control order is, however, provided with a statement of reasons
excluding 'criminal intelligence'.[138]
4.135
The South Australian Police gave evidence to the committee about the
potential benefits of control orders:
The other danger in the current system is that, if we have to
wait until the offenders are in a vehicle en route to cause harm to make out an
offence, we then have a position where officers are stopping armed offenders in
a vehicle. That increases the risk to officers and the public. It would be my
experience that if those people are in a vehicle with firearms when we go to
intercept them, they will attempt to evade police and we will have a high-speed
pursuit, again causing serious risk to the public and officers. If you wind
back the clock, we would be able to take action for a breach of the control
order well before there was any risk to the public or the intended victims.[139]
Public Safety Orders
4.136
Part 4 of the Act provides that a senior police officer may make a
public safety order in respect of a person, or class of persons, if satisfied
that their presence at any premises, event or area poses a serious risk to
public safety or security, and that the making of the order is appropriate in
the circumstances.[140]
4.137
Public Safety Orders are limited to 72 hours and any extension beyond that
time limit must be by order of a court.[141]
A person the subject of an order will have the right to object to any order
beyond seven days.[142]
4.138
A Public Safety Order must be served on the people to whom it applies
and must be accompanied by a notice setting out the details of the order and
the penalty for breaching it.[143]
The reasons for the order are not required unless the order is extended beyond
seven days.
4.139
It is an indictable offence to contravene a public safety order,
attracting a maximum penalty of five years imprisonment.[144]
Effectiveness of the South
Australian legislation
4.140
Given that the Serious and Organised Crime (Control) Act 2008 is
relatively new legislation, it is difficult to assess its effectiveness. On 14
May 2009, the South Australian Attorney-General, the Hon Michael Atkinson,
declared the Finks Motorcycle Club to be a criminal organisation for the
purposes of the Act, the first and only such declaration made under the
legislation.
4.141
Subsequently, eight members of the Finks have been made subject to
control orders. Those members have challenged the constitutionality of the
legislation.[145]
Therefore, there are no control orders yet in effect in South Australia.
4.142
However, during the course of its inquiry the committee heard concerning
evidence about the anticipated effects of the South Australian legislation - a
similar version of which was adopted in New South Wales in April 2009, and
which other states and territories are considering adopting.
4.143
A number of the concerns were summarised by the Hon Leonard
Roberts-Smith, from the WA Corruption and Crime Commission:
Having the powers is one thing; using them effectively as
part of a broader strategy is another. The commission does not believe that the
proscription of groups and making membership or association with members of
those groups an offence will be effective. The Victoria Police submission to
the committee does not support the proscription of outlaw motorcycle groups,
because it is disproportionate, offends human rights, is narrowly focused, will
drive activities underground and will marginalise groups within the community.
The commission agrees.[146]
4.144
In response to the concerns about the South Australian law impinging on
human rights and the risk of innocent groups being captured by the laws,
Assistant Commissioner Harrison from the South Australian Police said:
...for people who are going about their lawful business riding
a motorbike on the streets of South Australia, there is no way whatsoever that
they could be captured by this piece of legislation. I think [the legislative]
thresholds are deliberately set to ensure that there is a significant
delineation between those who engage in serious criminal activity—plan,
organise, facilitate and so forth and pose a safety risk to the community of
South Australia—and those who go about their lawful business.[147]
Sending criminal groups 'underground' or interstate
4.145
One of the main concerns with the South Australian model is that it will
lead to criminal groups being driven 'underground', or moving interstate,
thereby shifting the problem and/or making it less obvious.
4.146
Mr Adam Shand, a journalist who has spent a number of years
investigating organised crime, explained these concerns and gave evidence that:
The proposition that underlies [South Australia's]
legislation seems to be that the crime in motorcycle clubs is centralised in
the clubs. My experience is that that is not the case; it is actually
decentralised and the crime tends to be carried out by twos and threes in
connection with other individuals outside the club. The issue, ultimately, will
be that, if you break the clubs up, you will have no effect on the commission
of that crime. There is ample evidence from other jurisdictions that outlawing
clubs simply drives them underground, pushes the moderates in the clubs towards
the hardcore and ultimately has no effect on the overall commission of crime in
that jurisdiction.[148]
4.147
Mr Shand told the committee that this was already occurring, and warned
of the potential consequences:
I think it is already driving people underground and we will
see a much more hardened core of bikies in this state who are not visible and who
will exchange their very visible insignia and places of association for hidden
ones. There will be new insignia—it might be a flash of colour, it might be a
certain handshake or certain tattoos—which would be much harder to discern.[149]
4.148
Victoria Police echoed these concerns:
[W]e suspect the criminal activity in South Australia will
be driven underground. We will start to see the inclusion of more middle people
between people to enable enterprise to occur. Then, when it does occur, it will
become more difficult to prove that organised criminal behaviour is occurring. In
some ways it will improve the way that organised crime groups
operate.[150]
4.149
The Tasmanian Police gave evidence about the difficulties that Police
might encounter if the South Australian legislation drives groups underground:
[O]utlaw motorcycle gangs are probably one of the most
high-profile because they are quite overt in terms of saying, ‘Hey, here we
are.’... When you know who someone is and where they are, if you have a need to
target any aspect of what they get up to, from a law enforcement perspective,
it is easier to do.
If, for example, you have legislation that is more focused on
associations than on actual criminal acts per se, some people are going to be
reluctant to be seen to be associated with the organisation even if, in fact,
they are. There are no guarantees that they are going to cease any criminal
activity they might be involved in; it may just be more difficult for police to
identify individuals who are involved because they are not wearing a jacket or
attending a clubroom and doing some of those other things.[151]
4.150
The CEO of AUSTRAC, the Commonwealth Government agency that regulates
and analyses financial reporting to counter money-laundering and terrorist
financing, noted the potential for the problem to shift to an exposed
jurisdiction:
Our issue is only to alert the committee to that fact. In
recommending legislation going forward, if it is to close down particular
entities, that is not a problem so far as we are concerned but we just need to
ensure that anything flowing from that is adequately covered as well so that we
are just not pushing them straight in to another area on which we do not have
coverage.[152]
4.151
Noting these concerns, Assistant Commissioner Harrison from the South
Australian Police presented a different perspective:
I genuinely believe that breaking up associations will cause
a state of chaos within some of these organisations whereby the inner sanctums
or the code of silence which is maintained will be somewhat disrupted and law
enforcement will be more able to identify criminal activities they are involved
in. It will also provide us an enhanced opportunity to gather evidence to put
before courts. This legislation could do the reverse of sending criminals
underground; I think it will actually bring them out into the open because they
will not be able to exploit the culture which has existed for a long time where
they can give the tasks out to nominees, prospects and hangers-on—the
throwaways, if you like—to undertake the criminal activities for them.[153]
4.152
Furthermore, Superintendent Bray added that he considers the South
Australian legislation unlikely to drive criminals underground because:
Most people want known their participation and involvement in
gangs because that is one of their tools of trade—the public knowledge and
threat that the gang is behind them...It is the serious and organised crime
that they undertake that they attempt to conceal from police and law
enforcement, and they have done that forever...So I do not believe personally
that it will have any effect on the way I do business.[154]
4.153
A related issue that was raised was whether the approach of banning
gangs, particularly OMCGs, as has been adopted in South Australia and New South
Wales, will result in only those 'hardened' members of the gangs remaining. The
committee heard from Mr 'Mac' Hayes, a member of the Longriders Christian
Motorcycle Club, that there are currently a large proportion of non-criminal
members of OMCGs who act as a 'moderating influence' on the gangs as a whole.
Mr Hayes said:
Some are and
some do [leave or join non-criminal motorcycle groups like the Longriders].
There are some who stay and try to be moderating voices. Their club is their
life. My understanding is that part of the angle of this law is to possibly
push those moderating people out of those clubs. That is a concern. That could
backfire.[155]
4.154
Professor Arthur Veno agreed, and referred to the Canadian experience as
an example of what the impact of South Australia's laws might be:
It will outlaw them [OMCGs], but that further substantiates
their draw to a certain criminal element. As they stand now, I think you are
going to see a serious division. In Canada when they jailed every single Hell's
Angels that they could, the net effect 15 years on is that the Hell's Angels
Motorcycle Club is still the number one organised crime problem.[156]
4.155
In terms of whether there has actually been a displacement of OMCG
members into other states following the introduction of the South Australian
laws, the committee was told that there was evidence in Tasmania of one
individual possibly having being 'displaced', however the incident may simply
be a case of 'a Tasmanian returning to Tasmania'.[157]
Insufficient appeal/oversight mechanisms
4.156
A second concern with the South Australian laws was the perceived lack
of review mechanisms and oversight, particularly of the Attorney-General's
decision to declare an organisation. Mr Grant Feary, the President of the Law
Society of South Australia stated that:
In our view, it undermines the presumption of innocence;
restricts or removes the right to silence; lacks proper procedural fairness;
and removes access to the courts to challenge decisions of the Attorney-General
or, indeed, of the police which might be unfounded or unreasonable.[158]
4.157
The Commissioner of the Western Australian Corruption and Crime
Commission (CCC), the Hon Leonard Roberts-Smith QC, noted that the lack of
oversight and breadth of the South Australian laws may leave them open to
abuse.
Laws of that kind, because of their potential ambiguity and
potential width, suffer from two main difficulties. They are open to abuse by
the executive, including police and investigative agencies generally—and one
sees that reflected in a number of the submissions which are already before
this committee—for example, the experience in Queensland before the Fitzgerald
royal commission and so on.[159]
4.158
The Queensland Bar Association and Law Society expressed similar
reservations in relation to Queensland's plan to introduce similar laws,
arguing that the laws might see a return to the corruption that was exposed in
the 1980s Fitzgerald Inquiry:
Certain offenders can be given free rein in return for
corrupt payments, while competition is arrested and charged...The handmaiden of
organised crime is the corruption of officials, with police officers being the
No1 target.[160]
4.159
Conversely, the South Australian Police argued there are sufficient
accountability mechanisms. Assistant Commissioner Harrison stated:
It is actually documented within the legislation itself...in
respect of the safeguards, if you like, to ensure that the legislation is
appropriately administered and utilised by law enforcement. That certainly
includes an annual review by an independent judicial officer and a report to
parliament. It looks at a review at the four-year mark of the legislation and
it also includes a sunset clause at the five-year mark, which is rather unusual
for pieces of legislation as well.[161]
An expansion of police powers
4.160
Mr O'Gorman, the President of the Australian Council for Civil
Liberties, criticised the continual expansion in police powers and
strengthening of criminal legislation, suggesting that the trend is more about
politics than a need for law enforcement to actually use those increased
powers.
If you look state by state and at the federal level, police
and law enforcement agencies year by year are always being given greater
powers. In relation to cybercrime, if the police can make out an evidence based
case that they do not have sufficient powers to deal with cybercrime—as opposed
to empty political banging-the-law-and-order-tub rhetoric—then they should be
given extra powers. If they cannot make an evidence based case that they do not
have enough powers, then they should not be given any extra powers.[162]
4.161
The Hon Leonard Roberts-Smith, the Commissioner of the WA Corruption and
Crime Commission expressed similar concerns, warning that while the legislative
powers granted to police may be adequate, often they are not utilised
effectively, making them appear inadequate.
Many powers, both traditional and coercive, are available to
law enforcement agencies under various laws. Their existence does not
necessarily translate to their application. It is not simply the existence of
the powers or the law that is effective but their use as part of a broader
strategy.[163]
Resources involved in enforcing
legislation
4.162
The committee heard concerns that the resources involved in enforcing
the Serious and Organised Crime (Control) Act and orders made thereunder, may outweigh
any benefits of the laws:
I suspect our state legislation will more than likely fail in
practical terms (1) because it overreaches and (2) because it will
unnecessarily divert police resources from proper policing of criminal
activities. It creates crimes which are not crimes at all.[164]
4.163
Detective Superintendent Paul Hollowood from Victoria Police agreed that
this was a significant issue with the legislation:
To enforce the legislation you have to use the scant resources
available to be bale to prove the association. So, the whole focus will be on
proving associations between people to enact that part of the legislation
rather than the activity it is designed to prevent. I do not think that anyone
is saying that drug trafficking, armed robbery, extortion and so on will stop. Who
will be investigating those if our resources are concentrating on the
association aspect? That is our fear about it.[165]
Other states' responses to South Australian laws
4.164
The introduction of strong laws in South Australia has clear
implications for other states and territories, including, as discussed above,
the risk of organised criminals moving interstate and the chance that other
states will be seen as 'soft on organised crime'.
4.165
New South Wales Police Commissioner Andrew Scipione noted the potential
impact of the South Australian laws on other states:
There could be a displacement effect. However, if it is done
well, if there is some harmonisation across the country and we have some really
effective strategies, you might see a very good result.[166]
4.166
However, he also said:
I am yet to be convinced that [proscription] is the way to
go. I could stand convinced, and I am sure there will be an opportunity for
this to be considered, but at this stage I am yet to be convinced.[167]
4.167
Other state police agencies were similarly cautious. In October 2008, Tasmania
Police stated that it would take a 'wait and see approach'[168]
to the Australian legislation and commented that South Australia has a:
...bigger issue than [Tasmania] in relation to outlaw
motorcycle gangs anyway. We have far fewer problems and issues
obviously than they have.[169]
4.168
Queensland Police also noted they have adopted a 'wait and see approach'
and commented:
Anti-gang laws of the type enacted in South Australia will
undoubtedly have a deterrent effect on the growth and prospective membership of
groups, including the recruitment of youth...The introduction of South
Australia’s legislation provides an opportunity to monitor its impact on OMCGs
and other organised crime groups as a model for consideration of wider
application.[170]
4.169
The Queensland Police agreed with the South Australian government that
there is a need to focus on prevention for public safety reasons and conceded
that 'more aggressive law enforcement attention could lead to the reduction in
organised criminal activity and consequently less victimisation'.[171]
However they also noted some of the potential negative implications of the
South Australian model discussed earlier in this chapter: that is, the possibility
that groups will go underground; the displacement of organised criminal
activity to jurisdictions with less-rigourous measures in place; and the
possibility that 'business and corporations' registrations could be driven
offshore'.[172]
4.170
Victoria Police were particularly opposed to the suggestion of
introducing similar laws in Victoria.
[F]rom a community perspective it [the SA legislation] causes
us a few concerns about how it impacts on our charter of human rights...We have
concerns that it may be a sledge hammer being used to crack open a walnut. From
an investigator's perspective, we just do not think it will work. The reason it
will not work is that we require the association to occur for us to be
successful. If the whole focus is just trying to prevent association between
people, we only have to look at the fact that we have had consorting laws in
most Australian states, including Victoria, for many decades, and they have not
worked. That is, people find a way to get around them.[173]
4.171
In Western Australia in July 2008, the Commissioner of the Corruption
and Crime Commission (CCC), the Hon Leonard Roberts-Smith QC, also gave
evidence that the CCC was not supportive of the approach taken in South
Australia because of the civil rights implications. The Commissioner added that
those civil rights concerns would likely lead to significant delays resulting
from legal challenges being made to the laws.[174]
A turning point: the Sydney Airport
incident
4.172
The fatal incident involving rival OMCGs at Sydney airport in March 2009
(noted in chapter 2) prompted a heightened interest and investment in the
approach taken up in South Australia. While prior to the incident, most states
had adopted a 'wait and see' position, more recently all states and territories
have expressed an intent to adopt laws along the lines of the South
Australian Serious and Organised Crime (Control) Act,[175]
and New South Wales adopted similar laws in April.
New South Wales – Crimes (Criminal
Organisations) Control Act 2009
4.173
New South Wales has had legislation targeted at criminal groups since
2006. Its anti-gangs legislation,[176]
which is based on the New Zealand laws, was introduced in 2006 in response to concerns
about the violent actions and organised criminal behaviour of ethnic gangs.[177]
4.174
In September 2008, the NSW Police gave evidence to the committee that
they were satisfied with the legislation from a law enforcement perspective.[178]
The committee was informed that since the introduction of the legislation, 168
individuals have been charged with gang participation offences, 23 of whom were
members of motorcycle clubs.[179]
4.175
However, Mr Ray from the Law Council of Australia pointed out that of
the 168 charges only half have led to a conviction. He stated:
On no occasion has there been a conviction only of those
specific breaches. They have always been hand in glove with other substantive
offences. So we should say to ourselves, ‘What’s wrong with charging the
substantive offence?’ If there is a specific intent that is more heinous in
nature, that becomes an aggravating factor for sentencing and is appropriately
dealt with within the criminal justice system on that basis.[180]
4.176
The NSW Parliament indicated its belief that the gang laws were not
sufficient to prevent and prosecute organised criminals, by passing additional
legislation in April 2009 that goes a step further by criminalising membership
of, and not just participation in, organised crime groups.
4.177
The Crimes (Criminal Organisations) Control Act 2009 restricts
members of criminal organisations from associating with each other, thereby
aiming to disrupt the activities of criminal groups.
4.178
Under the Act, the NSW Police Commissioner can apply to a Supreme Court
Judge, acting in an administrative capacity, for a declaration that an
organisation is a criminal organisation under the Act.[181]
If the judge is satisfied that members of the organisation associate for the
purpose of organising, planning, facilitating, supporting or engaging in
serious criminal activity, and the organisation represents a risk to public
safety, then the Judge may make an order declaring the organisation to be a
criminal organisation for the purposes of the Act. The Act lists a number of
considerations that the Judge may take into account.[182]
4.179
Once a declaration has been made, the Supreme Court of NSW may make
control orders against a declared organisation's members if it is satisfied
that a person is a member of a declared organisation and there are sufficient
grounds for making such an order.[183]
The Act then creates two offences for controlled members:
4.180
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.[186]
The NSW Police Minister, the Hon Tony Kelly said that this is necessary because:
It is often said that organised crime cannot flourish without
the capacity to infiltrate industries and occupations that can assist them both
to commit the crimes and to launder the profits. This is why we have taken the
strong measure of saying that if you are a declared member of a criminal
organisation you are not a fit and proper person to work in a high-risk
industry. In some cases existing licences will be revoked. In all cases
declared members will not be able to apply for licences.[187]
4.181
In the Bill's second reading speech, the NSW Police Minister justified
the expansive reach of the new laws by saying:
[T]his legislation will, for the first time, take on these
crime gangs as a whole and not just charge individual members for individual
offences. We must stop them acting as a group or as a gang if we are to break
their power. That is why the new non-association orders are needed. No doubt
some will say that not everyone, even in an outlaw motorcycle gang, commits
offences. Even if that is true, their membership of the brotherhood, their
respect for the code of silence, and the extra menace their numbers bring help
the gang to carry on its criminal enterprise. If they do not like the crime
they are surrounded by, they should leave the gang.[188]
4.182
As with South Australia's legislation, the laws have been criticised by
various groups, including the NSW Law Society. The President, Mr Joe
Catanzariti, said:
The legislation simply will lead to people going underground
and we're very concerned about that[189]
4.183
The Australian Council for Civil Liberties also expressed concern over
the NSW laws, and other states' intentions to adopt similar laws.[190]
4.184
To date no organisations have been declared under the new NSW laws.
Conclusions
4.185
During this inquiry, the committee heard about a range of ways in which
law enforcement is taking a more preventative approach to combating organised
crime by using laws which restrict association. This may be done through laws
which criminalise particular groups, civil orders which restrict the
associations and activities of individuals suspected or known to be criminals,
the introduction of new criminal offences such as racketeering, or a
combination of these methods.
4.186
The committee notes that the development of legislative approaches to
combat serious and organised crime is an evolving process, and must
continuously adapt to the changing organised crime environment. For example,
the committee was informed that the Irish government has recently introduced a
Bill which seeks to 'address the increasing levels of violence and intimidation
directed at witnesses and other members of the public' by providing for a
'Special Criminal Court for the hearing of particular organised crime
offences'.[191]
Special Criminal Courts have flexible procedures, can hold hearings in private
and do not require a jury.[192]
4.187
The committee examined the various approaches that have been adopted in
Australian and overseas jurisdictions, each of which has benefits and
disadvantages. However, the approaches share a number of common difficulties,
including: the challenge in defining 'organised crime groups', and the
challenge of developing an efficient and transparent process by which a group
or individual is found to be involved in organised crime. These aspects make
laws targeting association very complex, and fraught with legal and
constitutional difficulties.
4.188
Of the approaches examined by the committee, the UK's Serious and
Organised Crime Prevention Orders (SPCOs) seem to be an effective way of
managing the activities of known criminals. One of the key advantages of SCPOs
is that they can be targeted to specific individuals, and do not attract many
of the concerns about criminalising entire groups. However, the committee is
also cognisant of the costs of monitoring such orders, and for that reason
considers that the orders would really only be cost-effective for use against
the most high-risk criminals. The committee considers that such an approach may
have significant benefits if applied in Australia and urges that further
consideration be given to implementing SPCOs in Australia.
Recommendation 2
4.189
The committee recommends that the ACC monitor the Serious Crime
Prevention Orders, of the United Kingdom's Serious and Organised Crime Agency,
and report to both the Minister for Home Affairs and the Parliamentary Joint
Committee on the Australian Crime Commission on the operation of the orders and
on any benefits to Australian law enforcement agencies.
4.190
Obviously, such an approach alone will not be sufficient to deal with
the significant problem of serious and organised crime. However, the
committee's view is that, after examining all of the evidence presented to it
during this inquiry, there may be less complex ways of targeting and
dismantling serious and organised crime than by the implementation of
far-reaching anti-association laws. One of the committee's concerns with
anti-association laws is that they may not make it any easier for police to
target the leaders of gangs, and instead be used against those at the lower
echelons of organised crime groups, as has occurred to an extent with
participation offences in Canada.[193]
4.191
The committee is strongly of the view that in order to prevent serious
and organised crime, it is critical to remove or reduce the motivations for it
– the money. Therefore, the next chapter considers an alternative approach to
preventing serious and organised crime – targeting finances.
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