ACT New Measures for Tackling Serious Organised Crime

Wednesday 22 June 2016 @ 11.40 a.m. | Crime | Legal Research

In recent weeks, the ACT Government has taken legislative action to bring it more in line with other jurisdictions with respect to the way in which it handles serious organised crime and, in particular, such crime as it relates to "bikies" and other potentially criminal groups identified by police.

The first action taken was the introduction into the ACT Assembly earlier this month of the Crimes (Serious and Organised Crime) Legislation Amendment Bill 2016 (presented on 9 June 2016 by Simon Corbell MLA - ACT Attorney General(the AG)) which seeks to make a number of amendments to the ACT’s laws targeting serious and organised crime and other criminal activity and which is, as the AG's media release states ". . . primarily aimed at individual criminal activity with the goal of disrupting the work of the organised group".

The second action taken and also sponsored by the AG was the release of a "Discussion Paper on Consorting Laws for the ACT" to provide, as the AG's media release states, ". . . the community and stakeholders with an opportunity to consider and provide input on the potential introduction of consorting laws for the ACT to target serious and organised criminal activity".

The Crimes (Serious and Organised Crime) Legislation Amendment Bill 2016

In his second reading speech, the AG describes the purpose of the proposed legislation as follows:

". . . [to] make a number of amendments to the ACT’s laws targeting serious and organised crime and other criminal activity. It aims to provide ACT Policing (ACTP) with the appropriate powers to target and disrupt serious and organised crime, and in particular criminal activities of outlaw motorcycle gangs (OMCGs)."

In detail, the proposed legislation, as stated by the AG in his second reading speech, will:

modernise and relocate move-on powers from the Crime Prevention Powers Act 1988 to the Crimes Act 1900;
expand the categories of offence which are subject to non-association and place restriction orders (NAPROs) under the Crimes (Sentencing) Act 2005;
introduce a new bail power of review for the Director of Public Prosecutions (DPP) in the Bail Act 1992;
allow corresponding offenders to be prescribed where they have not been convicted but have been subject to a registration order in another jurisdiction, and in these circumstances require the Chief Police Officer to decide whether a prescribed corresponding should be registered under the Crimes (Child Sex Offenders) Act 2005;
provide that the registrar for the ACT child sex offenders register is the respondent in applications for removal of a person from the register under section 122C of the Crime (Child Sex Offenders) Act;
clarify the operation of the new Intensive Corrective Order (ICO) through amendments to the Crimes (Sentence Administration) Act 2005; and
amend the Crimes (Assumed Identities) Act 2009 to improve the operation of assumed identities for Commonwealth intelligence agencies.

Consorting Laws for the ACT Discussion Paper

The release of the Discussion Paper occurred on 9 June 2016 and (with intended planning) coincided with the presentation of the Crimes (Serious and Organised Crime) Legislation Amendment Bill 2016 into the ACT Assembly. As the Canberra Times indicates in its report, while a Discussion Paper has been released, and whatever the feedback, it is very like such laws, in some form, will be introduced into the ACT:

"The government released its proposed model for anti-consorting laws on Thursday [9 June 2016], a move strongly suggesting it will introduce the controversial measures here in some form."

To further support this, the Chief Minister, in an earlier Media Release statement of 5 June 2015, has:

". . . outlined the government’s strategic priorities for 2015-16, including ‘Enhancing liveability & social inclusion’. Under this priority the government has committed to ‘[t]ackling Organised Crime’ which includes ‘implement[ing] new laws to combat organised criminal groups, including outlaw motorcycle clubs’."

Basic Aspects of Laws suggested by the Discussion Paper

The proposed anti-consorting laws would rely on what would be known as "Consorting Warnings", which would amount to a ban on communication that would include the name, address, and photograph of the person those warned must not speak to or contact. Consorting warnings could then be issued to individuals using one of two proposed methods.

First, where the police want to ban consorting which involves an individual who is not a convicted criminal, the police will need a court order from a magistrate. In such a process, the police would be allowed to produce "intelligence in secret" to the magistrate, and such intelligence, would not be disclosed to the subject of the order or to the general public.

Second, where the warning is directed to individuals who have criminal convictions then the police would be able to avoid the courts altogether and issue their own consorting warnings directly. This second procedural chain also applies where the police have intelligence that suggests individuals involved are ". . . planning a serious violent crime or an indictable offence".

A consorting warning is proposed to last for a period of two years and would be open to challenge in the ACT Civil and Administrative Tribunal. Where an individual was found to have breached consorting warning on two or more occasions, they would find themselves open to a penalty of two years in prison.

Safeguards and Defences

Under the Discussion Paper's proposals, minors under the age 18 cannot be the subject of a "Consorting Warning" and the laws would not apply to what is described as "coincidental contact".

Defences to a "Consorting Warning" would include where the consorting were viewed as being "reasonable", such as where it involved speaking with family members, in the course of lawful employment, training, education, the provision of legal advice, or while in lawful custody.

Comment and Reaction

As the Canberra Times points out ". . . [similar] measures have attracted strong criticism, particularly in Queensland, because they target individuals who have no criminal convictions, and clash with the human right to freedom of association." To this criticism is also added the consideration that the ACT has nowhere near the level of motorcycle or criminal gang activity as the more populated states, for example, as the Canberra Times, also reports ". . . the government estimates there is a total membership of 45, not including associates, split among three gangs".

The ACT AG however, points out in response to the above that the territory's geographical position between Sydney and Melbourne makes it important for the ACT to take legislative action similar to that taken in NSW and Victoria so as to avoid the ACT becoming an anomaly to which organised crime could relocate:

"The model was developed in close consultation with ACT Policing and draws on the NSW experience and a model recently recommended to the Queensland Government, . . . The picture of organised criminal activity in the ACT is not the same as in other jurisdictions, and these groups are flexible and adaptable . . . It would be unwise to introduce a legislative scheme in the ACT that simply copies what has been done in other jurisdictions."

The Crimes (Serious and Organised Crime) Legislation Amendment Bill 2016 is expected to progress in the next sitting of the ACT Assembly, while submissions on the Discussion Paper close on 7 July 2016.

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