BIKIES CONTENTS BANNING THE. 1. Introduction. 2. South Australia. 3. New South Wales. 4. Queensland. 5. Federal Criminal Law. 6.

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1 BANNING THE BIKIES ORGANISED CRIME LAWS IN AUSTRALIA CONTENTS 1. Introduction 2. South Australia 3. New South Wales 4. Queensland 5. Federal Criminal Law 6. The Wider Problem

2 AUSTRALIA Overview Until 2006 no state or federal organised crime offence and no uniformity between States + Territories New South Wales introduced criminal group definition and offence in 2006, ss 93T, 93S Crimes Act 1900 Queensland rejected Opposition Bill to introduce organised criminal group offence in 2007 South Australia s Serious and Organised Crime Act (2008) entered into force in September 2008 AUSTRALIA: OVERVIEW New South Wales introduced Crimes (Criminal Organisations Control) Act 2009 in March 2009 Northern Territory introduced Serious Crime Control Act in 2009 Queensland passes Criminal Organisations Act 2009 in October 2009 Western Australia is currently considering new anti- OMCG laws ( Australia s toughest ). Federal Government introduces Crimes Legislation Amendment (Serious and Organised Crime) Bill (No 2) 2009 in September 2009; passed in February 2010.

3 SOUTH AUSTRALIA Serious and Organised Crime (Control) Act 2008 (SA), s10 Terminology Declared organisations Structure association of members (s 3) of the organisation (s 3) Activities organisation represents a risk to public safety or order Objectives organising, planning, facilitating, supporting or engaging in serious criminal activity. Determination AG may be satisfied of the purpose of the association of purpose, regardless of whether or not s 10(4) (a)all the members or only some members associate for the purpose; (b)members associate for the purpose of organising, planning, facilitating, supporting or engaging in the same serious criminal activities or different ones; and (c)members also associate for other purposes. Information to be considered when making declaration, s 10(3). SOUTH AUSTRALIA Declaration of Finks Motorcycle Club December 2008 Police Commissioner applies to A-G for declaration of Finks MC and associated groups May 14, 2009 A-G for declares Finks MC based on: reliable evidence and other information that the members of the Finks Motorcycle Club are involved in serious and organised crime, that these members immersed in with criminal activity including 173 convictions of drug offences, 263 property offences, many shootings, more than 160 violent offences, rape and sexual assault, 137 convictions for firearms and weapons offences, more than 40 counts of blackmail and many counts of theft, including highly sensitive material. May 25, 2009 Magistrates Court issues control order against Finks MC members Mr Sandro Totani and Mr Hudson

4 SOUTH AUSTRALIA Totani & Anor vs The State of South Australia (2009) 105 SASR 244 s14: control orders There is to be no assessment of the reasonableness of or necessity for the restriction imposed by the control order judged against the past or likely conduct of the defendant [ ]. All that is needed is proof of membership of the previously declared organisation based on evidence, some of which may not be disclosed to the defendant, in a hearing of which he may have no notice, and as a result of which an order severely restricting his liberty must necessarily follow. SOUTH AUSTRALIA Totani & Anor vs The State of South Australia (2009) 105 SASR 244 declaration of organisations The Attorney-General is not subject to or bound by the rules of evidence or any standard of proof. He can act on whatever information he pleases and give it whatever weight he pleases. The Attorney-General s findings are unreviewable. They are, in effect, binding on the Court. [ ] In a very real sense the Court is required to [act] as an instrument of the Executive. State of South Australia v Totani & Anor (2010) 271 ALR 662 [This] represents a substantial recruitment of the judicial function of the Magistrates Court to an essentially executive process. It gives the neutral colour of a judicial decision to what will be, for the most part in most cases, the result of executive action. [ ] In the exercise of this function [ ] the Magistrates Court loses one of its essential characteristics as a court, namely the appearance of independence and impartiality.

5 NEW SOUTH WALES New South Wales introduced Crimes (Criminal Organisations Control) Bill 2009 on March 31, 2009 to: to smash [OMCGs] straight away once a court declares the gang a criminal organisation, all bets are off. [...] They won t have the chance to get together and plan their criminal pursuits. By driving them apart, we ll make it impossible for them to continue as a group and their gangs will simmer out. (Premier N Rees) Crimes (Criminal Organisations Control) Act 2009 passed on April 2, 2009 Legislation Review Committee finds significant conflict with int l human rights law, May 2009 Sydney domestic airport terminal 3, March 25, 2009 July 2010: application to declare Hells Angels (appealed to the High Court) Background & Purpose QUEENSLAND October 29, 2009: A-G (Qld), The Hon C Dick, introduced Criminal Organisations Bill 2009: to disrupt and restrict the activities of organisations involved in criminal activity and to disrupt and restrict the activities of members and associates of such organisations who are involved in serious criminal activity. Stated reasons: (1) the realisation that criminal organisations, outlaw motorcycle gangs in particular, pose a serious threat to Queensland; (2) the recognition that the existing scope of criminal liability is ill suited for the prosecution of criminal organisations; and (3) the concern that the violence and intimidation used by criminal organisations may frustrate investigations and prosecution. Criminal Organisations Act 2009 (Qld) passes on December 3, 2009; enters into force on March 15, 2010

6 DECLARATION (Qld) Criminal organisation public interest monitor (COPIM) Queensland Police Commissioner Application, s8 Supreme Court of Queensland Response, s9 Organisation (respondent) CONTROL ORDERS (Qld) COPIM Queensland Police Commissioner Application, s 16 Supreme Court of Queensland Enforcement, ss Response, s17 Member of criminal organisation (respondent)

7 CRIMINAL ORGANISATIONS ACT Other measures Criminal offences: contravention of control order, s24 recruiting members for a declared organisations, s100 Public safety orders: to bar persons from certain places and premises, ss31-37 Anti-fortification measures: authorising QPS to remove structures and devices, ss41-48 CRITIQUE ADVANTAGES More cautious approach than SA, NSW, NT. Avoids the controversy of criminal association offence in SA and NSW; no guilt by association. Processes relating to declarations are more transparent and balanced. DISADVANTAGES Declaration itself is largely symbolic (and political). Reactive approach aimed at moving targets; Groups will go underground, rename, resurface. Use of classified information. No evidence that legislation will reach its stated goal.

8 REACTIONS Attorney-General (Victoria) Mr Bob Hulls (Apr 15, 2009): Victoria does not believe this is the best way to address organised criminal activity groups, nor do we think it effectively targets or disrupts criminal enterprises. There is no evidence to suggest legislation to criminalise motorcycle gangs, including the laws introduced in South Australia, have actually been effective in affecting the organised criminal activity of these groups. Australian Crime Commission (2008): there are indications that some outlaw groups have already relocated to other jurisdictions. [...] Such developments may or may not be in the community s overall interest. [...] [I]t may be disadvantageous for legislative or other initiatives to effectively pressure a group to move its operations to another jurisdiction or to adopt more effective covert measures. AUSTRALIA - FEDERAL Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 Explanatory Memorandum : One of the primary reasons many jurisdictions have adopted specific organised crime offences is to enable differentiation between lower level and higher level participants. A sophisticated example of this is the Canadian Criminal Code, which provides separate offences to correspond with the offender s level of involvement in the criminal organisation. Accordingly, the amendments in this Schedule will introduce several new offences criminalising varying levels of involvement in a criminal organisation, with penalties that reflect the spectrum of less to more serious involvement.

9 AUSTRALIA - FEDERAL Ss Criminal Code (Cth) s390.6 Criminal Code (Cth) Directing activities of a criminal organisation s390.5 Criminal Code (Cth) Commission of an offence for a criminal organisation s390.4 Criminal Code (Cth) Supporting a criminal organisation Criminal organisation director soldier supporter Requires criminal offence to be committed Offence not required LIMITS OF LIABILITY TIME Action of an Individual: Chain of events Plan Preparation Completion NUMBER OF PARTICIPANTS Inchoate liability Organised Crime Laws Completed offence Secondary liability Secondary liability