Background Brief
Alternate Explanatory Memorandum of the Anti-Association Legislation
Formal Name: The Criminal Organisations Control Bill 2011 (“the Bill”)
Introduced by: Christian Porter, Attorney-General
Current status: Was introduced to the Legislative Assembly and read for the first time on the 23rd of November 2011. Due to be debated once Parliament resumes for 2012.
The Bill operates in two stages: the first involves the declaration of a ‘criminal organisation’ by a ‘designated authority’ based on a set of criteria. Once an organisation has been ‘declared’, the Police Commissioner or Crime and Corruption Commissioner can apply for control orders on persons who are members, former members or people who are in some way affiliated with the organisation.
The ‘real’ Explanatory Memorandum does nothing to explain the 160 pages that make up this Bill. It merely describes each section, and at 45 pages long, it is possible just as difficult to understand as the Bill itself. This Alternate Explanatory Memorandum will instead explain how the legislation will operated and expose the serious flaws in the legislation that everyone should be concerned about.
DECLARATION OF CRIMINAL ORGANISATIONS
This is the first substantive part of the Anti-Association measures. Section 6 states that the purpose of a declaration is:
6. Purpose of declaration(1) The purpose of a declaration that an organisation is a criminal organisation is to enable control orders to be made to disrupt and restrict the activities of members and former members of the organisation and certain other persons (emphasis added)
(2) A declaration also makes it an offence for anyone to recruit persons to become members of the organisation.
So an organisation must be declared as ‘criminal’ before its members can be subject to ‘control orders’.
How to apply for a declaration?
Two people can apply for a declaration that an organisation is criminal: The Commissioner of Police or the Crime and Corruption Commissioner (s 7).
Applications are made to the ‘designated authority’, which is described in s 26 as a judge or retired judge appointed by the Governor. The application must be in writing, identify the organisation the declaration is being sought against, grounds on which the declaration is sought, evidence supporting said grounds and the details of any previous application for declaration (s 7(2)).
After an application has been made, the applicant must publish a notice in the Gazette and at least one newspaper that is circulated throughout the State. The notice must inform that an application has been made, inviting members to attend the hearing and specifying the date, time and place of the hearing (s 8).
How are applications determined?
Section 13 sets out the guidelines for making a declaration. The designated authority must ensure that the respondent is an organisation where:
- Members associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity; and
- That the organisation represents a risk to public safety
Once a declaration has been made
If a declaration does not state when it takes effect, then it will take effect the day after the day on which notice of it is published in the Gazette (s 16(1)).
Declarations will remain in force for 5 years, unless it is sooner revoked or renewed (s 16(2)).
An application for renewal of a declaration can be made before or after a current declaration expires and there are no limits on the number of times a declaration can be renewed (s 18(2), (6)).
CONTROL ORDERS
This is the second substantive arm of the Bill and is summarised in s 33:
33. Overview(1) This Part provides for the making of control orders in relation to persons who are members of a declared criminal organisation, persons who have an association with a declared criminal organisation and persons who engage in serious criminal activity and associate with other persons who also engage in that sort of activity,
(2) A control order imposes certain restrictions on the activities of those persons, such as prohibiting them from associating with each other and may also restrict other activities such as carrying on certain occupations, possessing firearms and other things, and accessing or using certain forms of technology or communication (emphasis added).
A ‘member’ of an organisation is defined under section 3 as:
Member in relation to an organisation, includes –(a) in the case of an organisation that is a body corporate, a director or an officer of the body corporate; and
(b) in any case –
(i) An associate member or prospective member (however described) of the organisation; and
(ii) A person who identifies himself or herself, in some way, as belonging to the organisation
There are two ways a control order can be obtained.
1. Commissioner of Police applies to Supreme Court for an interim control order -> the order is served on the person -> the court holds a hearing and decides whether or not to grant a control order confirming the interim control order (s 33(4)).
2. Commissioner of Police applies to the Supreme Court for a control order -> the court holds a hearing and decides whether to grant a control order (s 33(5)).
A hearing for an interim order can be heard without notice to the affected person if requested by the Commissioner of Police (s 37).
So what are the grounds for making a control order? (s 57)
57. Circumstances in which a control order can be made(1) The court may make a control order in relation to a person if the court is satisfied -
a) That there is ground for making a control order in relation to the person; and
b) That it is appropriate in the circumstances to make the order.
What can a control order do? (Part 3, Division 5 of the Bill)
The big consequence of a control order is the prevention of association between controlled persons. ‘Associate’ is defined as:
Associate, with another person –(a) means -(i) To be in company with the other person; or
(ii) To communicate wit the other person by any means (including post, facsimile, telephone, email or any form of electronic communication)
And
(b) includes associating with the other person, in any of the ways mentioned in paragraph (a), within or outside Western Australia, including outside Australia.
Control orders can also do the following:
- Prohibit the transferring of funds between a controlled person and a declared organisation
- Prohibit a person from being involved in the organisation, running or financing of any event that is open to the public
- Prohibit a person from carrying on one or more prescribed activities specified in the order
- Prohibit the person from applying for or undertaking employment of the kind specified in the order
- Prohibit the person from entering, or being on or near, any premises or place specified in the order, or any class or premises or place specified in the order (even if the person has a legal or equitable right to be at the premises – s 96)
- Prohibit the person from possessing a firearm, a weapon or any substance or article that is an explosive.
- Prohibit the person from possessing a substance, article or thing specified in the order
- Prohibit the person from accessing or using one or more forms of communication or technology specified in the order.
Control orders for childrenControl orders can be made against persons who are 16 and 17 years of age (s 73).
Publishing of personal details (Part 6)
A register containing the personal details of every person subject to a control order will be made available to the public both at an established office and online (s 114). This means that a person’s full name, date of birth, business address and home address (s 3) will be made readily available to anyone.
OFFENCES
The Bill effectively introduces a mandatory sentencing scheme, and one that is grossly disproportionate.
There are five main categories of offences in the Bill.
The first category covers association offences (s 99), where if a controlled person is found associating with another controlled person they will receive two years imprisonment for the first offence, and five years for any subsequent offences. The Bill expressly states that it does not matter if the controlled persons are members of different declared criminal organisations
The second category is financing offences (s 102). If a controlled person receives funds from or makes funds available to a declared criminal organisation they will receive five years imprisonment. Again, it does not matter if the controlled person is a member of the specific declared criminal organisation.
The third category covers offences regarding disclosure of identity (s 104). The punishment for a controlled person who does not give their details to a police officer without reasonable excuse is 12 months imprisonment.
The fourth category covers recruiting offences (s 106). The punishment for recruiting a member to a declared criminal organisation is five years imprisonment, even if the recruiter is not subject to a control order.
The fifth category is property offences (s 107). If you are the owner, occupier, manager or lessee of any premises you must not ‘knowingly’ allow that property to be used by members of a declared organisation, or you can face a two year jail term. Additionally, if it if found that a declared organisation has used your property, it is presumed that you knew about it, and the onus is on you to show otherwise (s 107(4)).
NATURE OF PROCEEDINGS UNDER THE BILL
Though this Bill seeks to declare organisations as ‘criminal’ and seeks to control people with the threat of criminal punishments, section 163 stipulates that proceedings under the Act are to be civil in nature. What this means is that the balance of probabilities standard applies, rather than the criminal standard of beyond a reasonable doubt. As a result, all the Police Commissioner or Crime and Corruption Commissioner has to do at a hearing is show that their case for a control order or declaration is slightly more convincing than the other side’s.
WHY THIS BILL IS BAD LEGISLATION
The Bill threatens to erode long-established principles of public and criminal law by severely restricting individual liberty based on the possibility of some future conduct, without the determination of criminal guilt for a current act. We purport to be a society that values principles such as ‘innocent until proven guilty’, and claim to be a nation that values the rights of its citizens, fairness and justice. This Bill violates these rights and values, and to add further insult to injury, introduces an excessively punitive punishment scheme.
The Attorney-General has frequently claimed that this Bill will be used to eradicate organised crime. Search For Your Rights joins his condemnation of organised crime and the devastating impact it can have on the community, but it cannot be denied that this Bill does not mention outlaw motorcycle gangs even once. The breadth of the Bill’s provisions means that they are open to abuse and can be applied to other community groups. Furthermore, anti-association measures have been tried in the past in other jurisdictions, with little to no success in reducing organised crime.
In other democracies it would be unheard of to introduce such radical legislation. New South Wales and South Australia have attempted to pass similar legislation only to be struck down by the High Court. This Bill and the anti-association measures it seeks to introduce contain serious violations of civil rights and freedoms, has been categorically condemned by legal experts, and has a history fraught with failure.