Review of Victorian Criminal Organisation Laws - Stage One - Under section 137 of the Criminal Organisations Control Act 2012 30 June 2020 ...
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Review of Victorian Criminal Organisation Laws – Stage One Under section 137 of the Criminal Organisations Control Act 2012 30 June 2020
Review of Victorian Criminal Organisation Laws
Foreword
Over the past decade, most States and Territories in Australia experimented with a new method
of seeking to prevent and disrupt organised crime, which was expanding its reach into more and
more legitimate activities. They did so by employing a scheme of declarations and control orders
and unlawful association notices. Although couched in broad terms, these legislative initiatives
were primarily prompted by the increasingly visible criminal activity of outlaw motorcycle gangs
(OMCGs).
Most, if not all, of these control statutes contained review provisions to determine if they were
having their desired effect. Victoria’s Criminal Organisations Control Act 2012 (COCA) requires a
review to be concluded by 30 June 2020. Many of the other reviews have been completed and
we have benefited from the work which they have done.
When we commenced this task, it was anticipated that we would consult with a wide range of
stakeholders generally and conduct discussion roundtables with those whose work is central to
disrupting organised crime, as well as those who engage with it more peripherally such as the
regulators of certain industries and those who focus on the protection of human rights. However,
the advent of the COVID-19 pandemic has precluded that interactive program of work and,
accordingly, the Attorney-General has requested that we undertake the review in two stages. The
first, to which this report relates, acquits the review obligations of the COCA. The second, which
we will undertake when the impacts of the pandemic have eased, will consider other legislation in
Victoria which tackles organised crime, and will make recommendations for future initiatives.
Carrying out this review distantly has had its challenges but has been made as efficient as is
possible without face-to-face meetings by the talented team of officers from the Department of
Justice and Community Safety assigned to this review and who have compiled material, prepared
programs of work, written research papers and assisted in drafting this report. We express our
appreciation to each of them.
In this difficult situation, when there are other demands on time and resources, we are grateful for
the assistance of the Crime Statistics Agency’s Chief Statistician and of Victoria Police, with
whom we have had two remote meetings. The latter, of course, has a central interest in this
review and has offered all the assistance for which we asked and to those officers involved we
give our thanks.
Finally, we thank the Attorney-General for her willingness to accept that this review required a
two-stage process if it were to achieve more than a bare analysis of the effectiveness or
otherwise of the COCA.
Hon. Margaret White AO Andrew Cappie-Wood
Review Panellist Review Panellist
Page 2 of 47Review of Victorian Criminal Organisation Laws Table of Contents Foreword...................................................................................................................................................................... 2 Executive summary .................................................................................................................................................... 5 Glossary....................................................................................................................................................................... 8 1. Introduction ..................................................................................................................................................... 10 1.1 Purpose of the review ....................................................................................................................................... 10 1.2 Terms of reference ........................................................................................................................................... 10 1.3 Method and scope of the review ...................................................................................................................... 10 1.4 Review Panel .................................................................................................................................................... 11 2. The Victorian statutory framework ............................................................................................................... 12 2.1 Declaration and control order scheme ............................................................................................................. 12 2.2 Unlawful association scheme ........................................................................................................................... 14 2.3 The human rights Charter and its relevance to the COCA............................................................................... 16 3. Organised crime landscape........................................................................................................................... 17 3.1 Definition of organised crime ............................................................................................................................ 17 3.2 Prevalence of organised crime in Australia ...................................................................................................... 17 3.3 Evolution of organised crime groups ................................................................................................................ 18 3.4 Disruption as a tactic to fight organised crime.................................................................................................. 19 4. Australian control order schemes ................................................................................................................ 20 4.1 OMCG-related crimes – a catalyst for change ................................................................................................. 20 4.2 States and Territories consider a national approach ........................................................................................ 21 4.3 Legal challenges to declaration and control order legislation .......................................................................... 23 4.4 Reviews of criminal organisation control laws .................................................................................................. 24 5. Australian unlawful association schemes ................................................................................................... 26 5.1 Reviews of unlawful association laws .............................................................................................................. 27 6. The COCA’s policy objectives ...................................................................................................................... 29 6.1 Preventing and disrupting organised crime ...................................................................................................... 29 6.2 Preventing organised crime through declarations and control orders .............................................................. 30 6.2.1 Recognising declarations and control orders made in other jurisdictions ........................................................ 31 6.3 Preventing individuals from associating with serious criminals ........................................................................ 32 7. Evaluating the COCA’s operation and effectiveness ................................................................................. 34 7.1 Declarations and control orders ....................................................................................................................... 34 7.2 Unlawful association notices ............................................................................................................................ 35 7.3 Conclusion on the COCA's operation and effectiveness.................................................................................. 36 Page 3 of 47
Review of Victorian Criminal Organisation Laws 8. Recommendations ......................................................................................................................................... 37 9. Next steps ....................................................................................................................................................... 38 Appendix: Overview of substantive amendments to the COCA .......................................................................... 39 Bibliography .............................................................................................................................................................. 41 Page 4 of 47
Review of Victorian Criminal Organisation Laws
Executive summary
The Criminal Organisations Control Act 2012 (COCA) is one of several pieces of Victorian
legislation targeting organised crime. It was first proposed in 2011, following a spate of widely-
reported public displays of violence linked to outlaw motorcycle gangs (OMCGs).
The COCA
The COCA commenced on 13 March 2013 and was amended in 2015 1 to add an unlawful
association scheme. The Act:
• enables the Supreme Court to make declarations and control orders to prevent and
disrupt organisations and their members involved in serious crime
• empowers police to prohibit association with those convicted of serious crime, and
• provides for the recognition of interstate declarations and control orders.
When making control orders against an organisation under the COCA, the court can impose a
wide range of prohibitions and conditions. The prohibitions can restrict legitimate business
activities or stop the organisation operating entirely. A control order against an individual can
prevent an individual taking part in an organisation’s activities or associating with its members.
The unlawful association scheme enables police to issue a notice prohibiting an individual from
associating with a person previously convicted of a serious crime for the purpose of preventing
further crime.
Challenges using the COCA
Victoria Police has encountered problems with the operation of the COCA. A high standard of
evidence is required to use the schemes in the Act. The nature and structure of criminal
networks, including OMCGs, has also changed and made it harder to gather criminal intelligence
and prove associations. These and other factors have raised barriers to the effective use of the
COCA. As a result, other disruptive actions available to police have been favoured as more
efficient and effective.
Experience of similar laws in other States and Territories
The ever-expanding problem of serious organised crime, including the activity of OMCGs, is not
limited to Victoria. In response, most States and Territories introduced similar declaration and
control order and unlawful association laws from 2007.
These jurisdictions have also experienced difficulties applying control order laws. New South
Wales, South Australia and Queensland law enforcement agencies have at times applied for
declarations or control orders under their own similar legislation. However, these applications
were challenged in the High Court.
Queensland has since repealed its control order legislation, despite its law surviving a High Court
challenge. In its place, Queensland bolstered a range of existing powers deemed more effective
in the fight against organised crime.
Unlawful association schemes have, on the other hand, enjoyed a measure of success in
jurisdictions other than Victoria. However, reviews of those schemes have emphasised the
1
The unlawful association scheme was inserted into the COCA by the Criminal Organisations Control Amendment (Unlawful Associations) Act
2015 (Vic). The unlawful association provisions commenced on 1 July 2016.
Page 5 of 47Review of Victorian Criminal Organisation Laws
necessity of reviewing the targets of unlawful association notices, to ensure the systems operate
fairly and without harassment.
About this review
This review is Stage One of a two-stage review process. It fulfils the COCA requirement to review
the Act within one year of the reporting period's end, that is, by 30 June 2020. At the request of
the Attorney-General, Stage Two will be completed once COVID-19 pandemic impacts ease.
Stage One reports on whether the:
a. policy objectives of the COCA remain valid, and
b. provisions in the COCA work, in practice, to achieve those objectives.
Conclusions reached by this review
The Review Panel concludes that preventing and disrupting organised crime is a valid
policy objective that should be continuously and vigorously pursued.
With respect to the COCA’s mechanisms for achieving that objective, the Review Panel finds
that:
• Preventing and disrupting organised crime through declaration and control orders is no
longer a valid policy mechanism. The COCA has significant barriers to using its
provisions, which have deterred Victoria Police from making applications. The scheme is
also fundamentally ill-suited to the contemporary nature of organised crime.
• Recognising declarations and control orders made in other jurisdictions is a valid policy
mechanism only if the scheme is used, but should remain as long as the COCA is
retained.
• Preventing individuals associating with serious criminals to disrupt organised crime may
be a valid policy mechanism. However, the present scheme in Victoria has not been used
and therefore cannot be seen as currently achieving the COCA’s policy objectives.
Further consideration should be given to developing a more operationally practical and
effective scheme.
Recommendations
The Review Panel recommends that:
1. The objective of preventing and disrupting organised crime continues to be pursued
vigorously.
2. The objective of preventing and disrupting organised crime be pursued by means other
than the declaration and control order provisions in the COCA.
3. Consideration be given to developing a more operationally practical and effective
method of limiting associations between serious criminals and others likely to be
involved in organised crime.
4. Further work be done, in consultation with stakeholders, to strengthen existing legislation
and develop and implement additional provisions to prevent and disrupt organised crime
in Victoria.
Page 6 of 47Review of Victorian Criminal Organisation Laws
Next steps
Stage Two will provide recommendations for future initiatives. Stakeholders will have the
opportunity to make submissions in response to a discussion paper on Victoria’s organised crime
laws. They will also be invited to participate in roundtable discussions with the Review Panel.
Page 7 of 47Review of Victorian Criminal Organisation Laws
Glossary
Attorney-General Attorney-General of Victoria
Australian Criminal Australia’s national criminal intelligence agency, operating as the
Intelligence Commission ACIC since July 2016 when the former Australian Crime
Commission and CrimTrac were merged
Australian Federal Police Australia's national law enforcement agency, whose role is to
enforce Commonwealth criminal law, contribute to combating
complex, transnational, serious and organised crime impacting
Australia's national security, and to protect Commonwealth
interests from criminal activity in Australia and overseas
Charter Victoria’s Charter of Human Rights and Responsibilities Act 2006
(Vic)
Civil standard of proof The level of evidence and certainty required to prove a case in a
civil proceeding. A court must be satisfied that the case has been
proved on the balance of probabilities
Chief Commissioner of The chief constable and chief executive officer of Victoria Police
Police who, subject to direction of the Minister for Police and Emergency
Services, is responsible for the management and control of Victoria
Police
COCA Criminal Organisations Control Act 2012 (Vic)
Community Safety A shared annual agreement between the Victorian Government
Statement and Victoria Police to reduce crime and keep the community safe
Consorting laws Legislative schemes allowing police to prohibit the association of
two or more people, like Victoria’s unlawful association scheme
Control order A Supreme Court order made under Part 3 of the COCA, which
aims to protect the public by restricting the activities of a person or
organisation
Criminal intelligence Information collected and analysed by Victoria Police and other law
enforcement agencies. This includes information which connects a
person to criminal activity, which, if revealed, could prejudice an
investigation, expose police informers or endanger the public
Criminal standard of The level of evidence and certainty required to prove a case in a
proof criminal proceeding. A court must be satisfied that the case has
been proved beyond reasonable doubt
Declaration A declaration made under Part 2 of the COCA by the Supreme
Court, which makes an individual or organisation a declared
individual or declared organisation
Disruption A technique used by law enforcement agencies to deter or prevent
a person or organisation from engaging in crime by impacting their
networks, lifestyle or routine
High Court High Court of Australia
Organised crime Criminal activity that is planned and undertaken by a group of
people for financial or other material gain
Page 8 of 47Review of Victorian Criminal Organisation Laws
Outlaw motorcycle gang A term commonly used to describe a motorcycle club engaged in,
or whose members are engaged in, criminal activity
Review Panel The Review Panel comprises the Honourable Margaret White AO,
former Judge of the Supreme Court of Queensland and Mr Andrew
Cappie-Wood, former Secretary of the New South Wales
Department of Justice
Scrutiny of Acts and A Victorian Parliamentary committee established to scrutinise non-
Regulations Committee policy aspects of proposed legislation, including whether a
proposed law is compatible with the Charter
Supreme Court Supreme Court of Victoria
Unlawful association Any association between individuals which may be prohibited by a
notice issued by Victoria Police under Part 5A of the COCA
Victorian Equal An independent statutory body with responsibilities under the Equal
Opportunity and Human Opportunity Act 2010 (Vic), Racial and Religious Tolerance Act
Rights Commission 2001 (Vic) and Charter of Human Rights and Responsibilities Act
2006 (Vic)
Victoria Police Victoria’s primary law enforcement agency
Page 9 of 47Review of Victorian Criminal Organisation Laws
1. Introduction
1.1 Purpose of the review
Under section 137 of the COCA, the Attorney-General must cause a review to be undertaken of
the COCA’s operation and effectiveness during the reporting period 13 March 2013 to 30 June
2019. The reporting period began with COCA’s introduction and ended three years after the
unlawful association amendments commenced. 2 The review must be done within one year of the
reporting period ending, that is, by 30 June 2020.
In addition, the Victorian Government’s Community Safety Statement 2018-19 includes several
commitments that target organised crime. These include a commitment to undertake a broader
examination of the criminal organisation control laws to help identify ways to improve the powers
available to Victoria Police to disrupt criminal gang activities.
This review is intended to meet the statutory requirement in section 137 of the COCA and part of
the commitment in the Community Safety Statement 2018-19.
1.2 Terms of reference
The review’s terms of reference are to:
1. Review the operation and effectiveness of the COCA, during the period 13 March 2013 to
30 June 2019, including but not limited to consideration of whether the:
a. policy objectives of the COCA remain valid, and
b. terms of the COCA work, in practice, to secure those objectives.
2. Review organised crime laws more broadly to identify any other opportunities to improve
the Victorian response to criminal organisations, including:
a. improved use of existing legislation
b. potential legislative amendments to other schemes, and
c. any other non-legislative approaches.
The review may make recommendations to the Attorney-General on any of these matters.
In conducting the review, consideration is to be given to the relevant rights and freedoms set out
in Victoria’s Charter of Human Rights and Responsibilities Act 2006 (the Charter).
1.3 Method and scope of the review
Prior to the COVID-19 pandemic, the Review Panel was required to report to the Attorney-
General on all terms of reference by 30 June 2020. However, the pandemic significantly
disrupted the review. In particular, the Review Panel was unable to consult with key stakeholders
in depth.
As a result, the Attorney-General asked for the review to be conducted in two stages:
• Stage One (this report) addresses the first term of reference. It enables the statutory
reporting timeline under section 137 of the COCA to be met.
• Stage Two addresses the remaining term of reference. It enables significant in-depth
consultation with stakeholders to take place once pandemic impacts ease.
2
The unlawful association amendments commenced on 1 July 2016. The reporting period therefore ended on 30 June 2019.
Page 10 of 47Review of Victorian Criminal Organisation Laws
Stage One method
In Stage One, the Review Panel examined relevant literature, reports and other materials. These
included:
• similar Acts in other States and Territories, including any statutory reviews
• case law, legislation and other legislative material
• relevant books, journal articles and other academic literature
• parliamentary documents, including submission papers, transcripts and consultation
papers
• relevant media reports, media releases and online articles.
The Review Panel also met with Victoria Police in two extensive online meetings. It considered
Victoria Police’s input on how the Act was operating, including its insights and experience with
the COCA.
Stage Two method
Stage Two will commence when the impact of the COVID-19 pandemic has eased, allowing
valuable engagement with stakeholders.
In Stage Two, the Review Panel will:
• revisit the COCA to consider issues arising from the deferred Justice Legislation
Amendment (Unlawful Association and Criminal Appeals) Bill 2018
• meet the commitment in the Community Safety Statement 2018-19 to examine Victoria’s
organised crime laws more generally. It will not, however, encompass relevant but related
commitments in relation to unexplained wealth and asset confiscation, which are a
separate body of work, and
• engage relevant government departments, statutory authorities and external stakeholders
to identify ways to improve the Victorian response to organised crime.
1.4 Review Panel
The Review Panel comprises the Honourable Margaret White AO, former Judge of the Supreme
Court of Queensland and Mr Andrew Cappie-Wood, former Secretary of the New South Wales
(NSW) Department of Justice. Policy officers of the Department of Justice and Community Safety
provided research and secretariat support to the Review Panel.
Page 11 of 47Review of Victorian Criminal Organisation Laws
2. The Victorian statutory framework
On 14 November 2012, the Victorian Government introduced the Criminal Organisations Control
Bill 2012 into the Victorian Parliament. At the time, the then Attorney-General said the legislation
would address the serious and ongoing threat to public safety and order posed by criminal
organisations in Victoria. 3
The legislation was designed to target organised crime groups, as well as legitimate
organisations that criminals were attempting to infiltrate for serious criminal purposes. 4 However,
as other jurisdictions had experienced, much of the commentary focused on outlaw motorcycle
gangs (OMCGs). The activities of OMCGs were of particular concern at the time, prompted by a
series of alarming incidents (see section 4.1).
Since the COCA came into effect in March 2013, successive governments have made consistent
efforts to improve the usability of the Act, largely in response to concerns raised by Victoria
Police. In 2015, an unlawful association scheme was added, one of nine amendments to the
COCA over the reporting period. Three sets of those amendments have resulted in substantive
changes.
2.1 Declaration and control order scheme
The COCA allows the Chief Commissioner of Police (Chief Commissioner) to apply to the
Supreme Court for a declaration that an organisation is a ‘declared organisation’ or that an
individual is a ‘declared individual’. 5
To satisfy the court that an organisation should be declared, Victoria Police must present
evidence or intelligence which indicates that the organisation has engaged in, organised,
facilitated or supported serious criminal activity. Or, that at least two current, former or
prospective members of the organisation are using the organisation for a criminal purpose. 6
The COCA provides examples to illustrate who would be considered a member of an
organisation. These include individuals who:
• pay a membership fee to join an organisation
• have been accepted through a set joining process, or
• display the patches or insignia of the organisation. 7
Office holders – like a sergeant-at-arms of a motorcycle club – are also considered members. 8
Once the Supreme Court has made a declaration, the Chief Commissioner may then apply to the
Supreme Court for a control order against the organisation or its members, or against the
declared individual. 9 The Court may make a control order if it is necessary or desirable to restrict,
3
Victoria, Parliamentary Debates, Legislative Assembly, 15 November 2012, 5070 (Robert Clark, Attorney-General).
4
Victoria, Parliamentary Debates, Legislative Assembly, 15 November 2012, 5071 (Robert Clark, Attorney-General).
5
Criminal Organisations Control Act 2012 (Vic) s 19.
6
Criminal Organisations Control Act 2012 (Vic) s 19(2B).
7
Criminal Organisations Control Act 2012 (Vic) s 3(1) (definition of ‘member’).
8
Criminal Organisations Control Act 2012 (Vic) ss 3(1) (definition of ‘member’) and 6.
9
Criminal Organisations Control Act 2012 (Vic) s 43.
Page 12 of 47Review of Victorian Criminal Organisation Laws
or to impose conditions on, the activities of the individual in order to end, prevent or reduce a
serious threat to public safety and order. 10
The Court may impose a variety of conditions on a declared organisation, such as:
• prohibiting it from continuing to operate or take on new members, or
• requiring it to exclude certain members from its activities. 11
The Court may also prohibit a declared individual from:
• using property belonging to an organisation, or
• associating with another member of a declared organisation or their associates. 12
An individual who breaches a control order is subject to a maximum penalty of 600 penalty units,
imprisonment for five years, or both. The maximum penalty for a body corporate is 3000 penalty
units. 13
Use of criminal intelligence
Central to the COCA’s scheme of declarations and control orders is the use of criminal
intelligence to prove why a declaration or control order should be made. If the Chief
Commissioner intends to rely on criminal intelligence in an application for a declaration or control
order, the Chief Commissioner can apply to the Supreme Court for an order protecting the
intelligence. 14 This is designed to protect ongoing criminal investigations, undercover police
operations and individuals who have cooperated with police.
While the COCA provides a mechanism for police to apply to protect intelligence, the Court
retains the ultimate discretion about how to balance the need to protect sensitive information
against the requirements for fairness to a respondent.
Amendments to the scheme to improve its use
The declaration and control order scheme in the COCA has been substantially amended twice in
response to Victoria Police concerns about its usability.
In 2014, it was amended to broaden the range of criminal offences on which a declaration could
be based, by both reducing the requisite seriousness of the offence 15 and removing the
requirement that the offence have certain characteristics 16 of organised crime. 17 Among other
changes to strengthen the scheme, 18 the 2014 amendments also introduced a two-tiered scheme
of ‘prohibitive’ and ‘restrictive’ declarations for organisations. 19 The ‘restrictive’ declaration was for
less serious circumstances and would require only the civil standard of proof, rather than the
10
Criminal Organisations Control Act 2012 (Vic) s 43.
11
Criminal Organisations Control Act 2012 (Vic) s 45.
12
Criminal Organisations Control Act 2012 (Vic) s 47.
13
Criminal Organisations Control Act 2012 (Vic) s 68(1).
14
Criminal Organisations Control Act 2012 (Vic) s 70.
15
To offences punishable by a maximum of five years imprisonment rather than 10.
16
Such as involving multiple offenders, substantial planning and organisation, and forming part of systemic activity.
17
Criminal Organisations Control and Other Acts Amendment Act 2014 (Vic), ss 60-61.
18
For example, the 2014 amendments also added mechanisms to ensure declared organisation members could not avoid the COCA simply by
quitting the group or switching to another group, and made the consequences of a declaration more serious, with implications for firearms
licensing and coercive investigative powers.
19
Criminal Organisations Control and Other Acts Amendment Act 2014 (Vic) s 60.
Page 13 of 47Review of Victorian Criminal Organisation Laws
higher criminal standard which was retained for the ‘prohibitive’ declaration. 20 The control orders
flowing from ‘restrictive’ declarations also had a lower threshold: they could be imposed if
necessary or desirable for public safety and order (rather than if likely to contribute to prevention
or disruption of serious criminal activity). 21
The Victorian Equal Opportunity and Human Rights Commission raised concerns that the 2014
amendments would subject an even broader class of people to potentially serious restrictions on
their human rights based on an association with a group rather than on any illegal activity. 22
In 2016, the COCA was amended further to remove the distinction between prohibitive and
restrictive declarations. 23 This followed legal advice obtained by Victoria Police indicating it would
be unable to meet the criminal standard of proof for a declaration application. 24 Since then, the
lower threshold applies to all declarations and control orders.
The amendments are outlined in more detail in the Appendix.
Despite the amendments, Victoria Police has not yet made an application for a declaration or
control order under the COCA.
Recognition of declarations and control orders made in other jurisdictions
The COCA allows the Chief Commissioner to apply for the registration of a declaration or control
order made under a corresponding interstate scheme. 25 The Court can register an interstate
order with variations that enable it to have effect in Victoria. 26 Once registered, interstate
declarations and control orders can be treated and enforced in the same way as those made
locally. 27 Similarly, those jurisdictions with declaration and control order legislative regimes permit
registration of declarations and control orders of other jurisdictions, including Victoria. This means
criminal organisations cannot avoid an order's restrictions by moving their operations across a
State or Territory border. 28
2.2 Unlawful association scheme
Soon after the 2014 amendments to the COCA, calls were made for Victoria to follow the lead of
other States and introduce new anti-consorting or ‘unlawful association’ laws. The Police
20
Criminal Organisations Control and Other Acts Amendment Act 2014 (Vic) s 65.
21
Criminal Organisations Control and Other Acts Amendment Act 2014, s 73 inserted the new tests. For an organisation with a prohibitive
declaration, the Court had to be satisfied that “the making of the control order is likely to contribute to the purpose of preventing or disrupting
serious criminal activity by the organisation or any members, former members or prospective members of the organisation”. For an organisation
with a restrictive declaration, the test was “it is necessary or desirable to restrict, or to impose conditions on, the activities of the organisation or
any members, former members or prospective members… in order to end, prevent or reduce a serious threat to public safety and order”.
22
Victorian Equal Opportunity and Human Rights Commission, Submission to the Scrutiny of Acts and Regulations Committee, Parliament of
Victoria, Criminal Organisations Control and Other Acts Amendment Bill 2014 – Submission to the Scrutiny of Acts and Regulations Committee on
human rights issues raised by the Bill (15 July 2014) 9-10.
23
Confiscation and Other Matters Amendment Act 2016 (Vic) s 32.
24
Victoria, Parliamentary Debates, Legislative Council, 26 May 2016, 2481 (Steven Herbert, Minister for Training and Skills).
25
Criminal Organisations Control Act 2012 (Vic) s 86.
26
Criminal Organisations Control Act 2012 (Vic) s 88.
27
Criminal Organisations Control Act 2012 (Vic) s 96.
28
Section 3 (1) of the Criminal Organisations Control Act 2012 (Vic) provides for a provision of a law of another jurisdiction to be prescribed under
the Regulations. The Criminal Organisation Control Regulations 2013 (Vic), which came into effect on 19 March 2013, identified the relevant
provisions in New South Wales, Northern Territory, Queensland, South Australian and Western Australian legislation which cover declaration and
control orders.
Page 14 of 47Review of Victorian Criminal Organisation Laws
Association of Victoria used the example of a motorcycle convoy of Queensland-based OMCG
members coming into Victoria to illustrate why unlawful association laws were needed. 29
In September 2015, a new Bill was introduced to amend the COCA, adding unlawful association
provisions and repealing the offence of consorting from the Summary Offences Act 1966. 30 These
amendments were designed “to modernise the offence of consorting so that it was better suited
to preventing serious and organised crime.” 31 Like the original provisions of the COCA, the
scheme also aimed to target OMCGs. 32 It was to align with similar schemes in other jurisdictions
and move towards a more uniform approach to bikie gangs across Australia. 33
Powers under the unlawful association scheme
Part 5 of the COCA enables a senior police officer to issue an unlawful association notice to an
adult, prohibiting that person from associating with a convicted offender. The officer must
reasonably believe that prohibiting the association would likely prevent an offence from being
committed. 34 The notice prohibits the person from associating with the specified individual more
than three times in a three-month period, or more than six times in a 12-month period. 35 There
are several exceptions, such as associating with family if the association is not for an ulterior
purpose. 36
Breaches of the unlawful association notice carry a maximum penalty of three years'
imprisonment, a penalty of 360 penalty units, or both. 37
Proposed amendment to the scheme to improve its use
In July 2018, the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill
2018 was introduced into Parliament to amend the unlawful association scheme. 38 The Bill was
developed in consultation with Victoria Police, with the aim of making the unlawful association
scheme more effective. 39 At the time, no unlawful association notices had been issued.
The Bill proposed, among other things, to:
• lower the minimum age of a person who could be issued with a notice
• lower the thresholds for unlawful association
• lower the rank of the police officer able to issue a notice
• enable the scheme to apply to people convicted of offences in other jurisdictions
29
ABC News 2014, ‘Bikie gangs increasingly seeing Victoria as safe haven, police association says’, 17 November, viewed 17 June 2020,
.
30
Criminal Organisations Control Amendment (Unlawful Associations) Act 2015 (Vic).
31
Victoria, Parliamentary Debates, Legislative Assembly, 2 September 2015, 3013 (Martin Pakula, Attorney-General).
32
Victoria, Parliamentary Debates, Legislative Assembly, 2 September 2015, 3013 (Martin Pakula, Attorney-General).
33
Victoria, Parliamentary Debates, Legislative Assembly, 2 September 2015, 3013 (Martin Pakula, Attorney-General); Milman, O 2015, ‘Victoria to
curb ‘unlawful association’ between criminals in bikie gang blitz’, The Guardian, 31 August, viewed 17 June 2020,
.
34
Criminal Organisations Control Act 2012 (Vic) s 124D.
35
Criminal Organisations Control Act 2012 (Vic) s 124A(1).
36
Criminal Organisations Control Act 2012 (Vic) s 124A(3).
37
Criminal Organisations Control Act 2012 (Vic) s 124A(1).
38
Victoria, Parliamentary Debates, Legislative Assembly, 25 July 2018, 2333 (Martin Pakula, Attorney-General).
39
Andrews, D, Premier (Vic) 2018, ‘Strengthening laws to disrupt criminal gangs’, Media Release, 24 July, viewed 17 June 2020,
.
Page 15 of 47Review of Victorian Criminal Organisation Laws
• replace the term ‘family member’ with the narrower and more objective term ‘relative’, and
• give the Independent Broad-based Anti-corruption Commission an oversight role of police
use of the scheme. 40
The Bill met with some concern from a human rights perspective. 41 Some stakeholders were
particularly critical about the expansion of the scheme to include children, 42 while other
stakeholders noted that lowering the threshold for unlawful association may allow the laws to be
used in situations not envisaged by the Bill, such as during lawful industrial action.
The Bill passed the Legislative Assembly in 2018, however, it lapsed in the Legislative Council
due to the proroguing (ending) of the 58th session of the Victorian Parliament. The proposed
amendments will be considered in more detail in Stage Two.
2.3 The human rights Charter and its relevance to the COCA
No legislation can be introduced in Victoria without regard to Victoria’s human rights framework,
which is set out in the Charter. Many of the rights in the Charter are relevant to the COCA. For
example, the right to freedom of association, the right to protection of families and the right to a
fair hearing. 43
The Charter promotes and protects human rights in various ways. It ensures that statutes are
interpreted in accordance with rights, as far as possible. It also:
• requires all public authorities to act compatibly with human rights
• requires a statement of compatibility with human rights to be prepared for each Bill
introduced into the Parliament, and
• allows a special Parliamentary committee to report on that compatibility. 44
Legislation introduced in Victoria may limit the rights set out in the Charter if the limits are
reasonable and can be demonstrably justified. 45 However, unless the Charter’s application is
overridden by Parliament, 46 consideration of fundamental rights will continue to play a role in the
law’s operation and interpretation. A relevant example, in the context of the COCA, is the Court’s
likely consideration of a respondent’s right to a fair hearing in considering whether to protect
criminal intelligence.
40
Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018 (Vic).
41
Scrutiny of Acts and Regulations Committee, Parliament of Victoria 2018, Alert Digest Number 11 of 2018.
42
See, for example, Commissioner for Children and Young People, Submission to the Scrutiny of Acts and Regulations Committee, Parliament of
Victoria, Submission on the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018 (6 August 2018) 2.
43
Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 16, 17 and 24.
44
The Scrutiny of Acts and Regulations Committee. See Charter of Human Rights and Responsibilities Act 2006 (Vic) s 1(2).
45
Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7.
46
Charter of Human Rights and Responsibilities Act 2006 (Vic) s 31.
Page 16 of 47Review of Victorian Criminal Organisation Laws
3. Organised crime landscape
The fluid and evolving nature of contemporary organised crime, and the speed of technological
advances, present real challenges for legislators as well as for law enforcement agencies.
Legislative responses to organised crime are particularly prone to becoming outdated in such a
rapidly evolving and dynamic context. The challenge for lawmakers is to develop legislative
responses that are adaptive, nimble and effective for law enforcement.
3.1 Definition of organised crime
There is no commonly accepted definition of ‘organised crime’ internationally, across Australian
jurisdictions or even within a single jurisdiction. 47 However, most definitions share core
characteristics. These include that the criminal activity is serious, engaged in for financial or other
material gain, undertaken by a group of at least two or three people, and is planned and
ongoing. 48
The COCA does not include a definition of organised crime. The main legislative definition of
organised crime in Victoria can be found in the Major Crime (Investigative Powers) Act 2004. 49
3.2 Prevalence of organised crime in Australia
Victoria Police indicates that, anecdotally, nearly all levels of crime in Victoria can be linked to
organised crime. The Australian Criminal Intelligence Commission (ACIC) reports that modern
organised crime groups operate across a wide variety of crime types, reportedly trading in illicit
drugs, illicit and counterfeit pharmaceuticals, tobacco, firearms and precursor chemicals. 50
It is a challenge to gather reliable data about organised crime, its prevalence and impact 51 due to
the limitations of traditional methods of recording crime statistics, and the adaptive nature of
organised crime.
Victoria’s Chief Statistician 52 advised the Review Panel that data was not necessarily collected on
'organised crime'. Instead, individual incidents of crime are recorded. Victoria Police may indicate
that an incident relates to organised crime at the time it is reported. However, offending may only
be identified as organised crime-related at a later stage in an investigation. As the initial records
largely contribute to official crime statistics, the Crime Statistics Agency considers that organised
crime-related offences in Victoria may be significantly undercounted.
The methodological challenges in drawing a reasonably accurate picture of the prevalence and
cost of serious and organised crime in Australia, from the available data, is illustrated in the
elaborate process developed by the Australian Institute of Criminology and described in its most
47
Department of Justice and Attorney-General (Qld) 2016, Report of the Taskforce on Organised Crime Legislation, p. 14.
48
Victorian Law Reform Commission 2015, Regulatory Regimes and Organised Crime: Consultation Paper, Chapter 2, ‘The Nature of Organised
Crime’.
49
Under s 3AA of the Major Crime (Investigative Powers) Act 2004 (Vic), an ‘organised crime offence’ is an indictable offence against the law of
Victoria that is punishable by level 5 imprisonment (10 years maximum) or more, involves two or more offenders, involves substantial planning
and organisation, forms part of systemic and continuing criminal activity, and has a purpose of obtaining profit, gain, power or influence or of
sexual gratification where the victim is a child. An ‘organised crime offence’ also includes an offence where two or more of the offenders involved
in the offence are, at any time, either declared individuals or members of a declared organisation under the COCA.
Board of the Australian Criminal Intelligence Commission 2019, Chair Annual Report (2017-18), pp. 52-53; Australian Criminal Intelligence
50
Commission 2016, Illicit drugs, viewed 12 March 2020, .
51
Smith, RG (ed), Australian Institute of Criminology 2018, Organised crime research in Australia 2018, p. 1.
52
Appointed under the Crime Statistics Act 2014 (Vic), whose function is to publish and release statistical information relating to crime in Victoria
and to undertake research into, and analysis of, crime and criminal justice issues and trends in Victoria.
Page 17 of 47Review of Victorian Criminal Organisation Laws
recent report, published in 2018. 53 This process revealed a figure of up to $47.4 billion in 2016-17
as the cost to Australia of organised crime. This included $31.5 billion for the cost of serious and
organised criminal activity as well as the serious and organised component of conventional
crimes.
The ACIC and its predecessors estimate that the profits from organised crime nationally
amounted to $15 billion in 2013-14, growing to $31.5 billion in 2016-17. The organised crime
environment is not constrained by state or national borders and now 70 per cent of Australia’s
serious criminal threats are based offshore or have strong offshore links. 54 This demonstrates
that in the years since the commencement of the COCA, organised crime across Australia has
increased significantly in its reach, size and capability.
The Crime Statistics Agency has suggested possible data collection reforms to the Review Panel
which could overcome some of the limitations in the present methodology for collecting
foundational data in Victoria. The Review Panel may explore these suggestions and other
matters relating to data collection in Stage Two.
3.3 Evolution of organised crime groups
Organised crime groups have evolved over the review period, and continue to evolve, at a rapid
pace. 55 Law enforcement has reported a degree of relaxation of membership rules and an
increase in fluidity among what were traditionally more exclusive and ideologically siloed
organised crime groups.
Victoria Police has observed a move towards more dynamic networks and the intersection of
members. For example, while OMCGs began as highly structured and exclusive organisations,
they have more recently been observed collaborating with people who would not meet their
traditional membership requirements, in order to expand their base or activities.
Rapid advances in technology have also fuelled the evolution of organised crime. Technology
has:
• removed challenges associated with geographical borders, increasing the potential for
bigger and more fluid organisations and cross-border and transnational crime
• enhanced organised crime groups’ capacity to expand their operations
• delivered far greater access to tools to evade law enforcement such as encrypted
technology and communication devices, 56 and
• enabled anonymised illicit transactions, for example via the dark web.
Technology has also increased activity in serious financial crime, including fraud in financial
markets, taxation, credit cards and superannuation. 57 The Australian Competition and Consumer
Commission estimates that in 2019 online scams cost Australians over $630 million. 58
53
Smith, RG, Australian Institute of Criminology 2018, Estimating the cost of serious and organised crime in Australia 2016-17. The approach
relies on multiplying official records to account for undetected and unreported crimes and estimated indirect costs, such as loss of productivity.
Australian Criminal Intelligence Commission 2018, Annual Report 2017-18, p. 70.
54
55
Australian Criminal Intelligence Commission 2017, Organised Crime in Australia 2017, p. 2.
56
Australian Criminal Intelligence Commission 2017, Organised Crime in Australia 2017, p. 11.
57
Australian Criminal Intelligence Commission 2017, Organised Crime in Australia 2017, p. 5.
58
Australian Competition and Consumer Commission 2020, ‘Scams cost Australia over $630 million’, Media Release, 22 June, viewed 23 June
2020, https://www.accc.gov.au/media-release/scams-cost-australians-over-630-million>.
Page 18 of 47Review of Victorian Criminal Organisation Laws
In all, the situation has aptly been described as “similar to a continuous game of cat-and-mouse,
in which [the law enforcement agencies] frequently remain two or more steps behind.” 59
3.4 Disruption as a tactic to fight organised crime
A range of criminal offences exist to punish the individual crimes related to a criminal
organisation’s illegal activities, such as drug trafficking offences, firearms offences and homicide.
However, prosecution-based law enforcement is reactive and focused on collecting a high
standard of evidence about individual incidents of crime against identifiable offenders. For this
reason, it has rightly been observed that although it is an important element of justice,
prosecution of individual crimes has limited impact on organised crime reduction and
prevention. 60
Disruption, on the other hand, has been described as a “‘flexible, transitory, and dynamic tactic,
which can be used more generally to make the environment hostile for the organised crime
group…this approach focuses on disrupting the offender’s networks, lifestyles and routines.” 61
Disruption tactics can be used in creative and layered ways, 62 and include:
• restricting access to high risk industries such as sex work and freight industries
• restricting access to high risk environments such as casinos and racecourses
• giving police greater access to places suspected of being linked to organised crime, for
example, by forcibly removing physical barriers at fortified premises or increasing police
search powers
• restricting access to tools commonly used in serious criminal activity, such as firearms
• targeting proceeds of crime, for example, high-value cash transactions and unexplained
wealth
• restricting association between known or suspected criminals, and
• taking a ‘zero tolerance’ approach to low-level offences.
At the same time, the disruption approach has been said to highlight some critical questions
about how police identify suspects and avoid unwarranted harassment, 63 noting that in Victoria,
law enforcement policy and operational activity is subject to the Charter.
59
Duijn, PAC and Sloot, PMA 2015, ‘From Data to Disruption,’ Digital Investigation, vol. 15, pp. 39-45, p. 39.
60
Kirby, S, Northey, H and Snow, N 2015, ‘New crimes – new tactics: the emergence and effectiveness of disruption in tackling serious organised
crime’, Journal of Political Criminology, vol. 1, pp. 33-44, p. 35.
61
Kirby, S and Penna, S 2010, ‘Policing mobile criminality: towards a situational crime prevention approach to organised crime’, in K Bullock, RV
Clarke and N Tilley (eds.), Situational prevention of organised crime, Willan Publishing, Collumpton, pp. 193–212, p. 205.
62
See for example, College of Policing (UK), What Works Centre for Crime Reduction, Disrupting Serious and Organised Criminals: Menu of
tactics, viewed 11 May 2020, .
63
Kirby, S, Northey, H and Snow, N 2015, ‘New crimes – new tactics: the emergence and effectiveness of disruption in tackling serious organised
crime’, Journal of Political Criminology, vol. 1, pp. 33-44, p. 35.
Page 19 of 47Review of Victorian Criminal Organisation Laws
4. Australian control order schemes
From about 2007, a wave of high-profile crimes linked to OMCGs prompted most Australian
jurisdictions, including Victoria, to introduce control order legislation. Control order legislation was
novel. It employed disruption tactics, targeting criminal networks before crimes were committed
and creating an environment hostile to criminal activity. In Victoria, criminal organisations were
considered “resistant to traditional policing methods”. 64 Across Australia, governments were
looking for a new approach.
4.1 OMCG-related crimes – a catalyst for change
OMCGs are “highly-visible crime entities, with a presence in all Australian states and territories”. 65
They use fear and intimidation, and their reach, strength and profile to enhance their reputation,
obtain financial gain and recruit new members. Their illegal activities include crimes related to
drugs, serious fraud, money laundering, tax evasion, serious sexual offences, firearms, blackmail,
extortion and violence.
The ACIC reports that it is difficult to determine the percentage of organised crime attributed to
OMCG members. 66 However, media reporting of high-profile instances of OMCG-related crime
has increased public awareness of their involvement in criminal activity. 67
From 2007, several high-profile violent crimes have been linked to OMCGs:
• In June 2007, a Melbourne man assaulted his girlfriend on a busy street in Melbourne’s CBD during
morning peak hour. He produced a gun and shot the woman and two bystanders who came to her
aid. One of the bystanders was killed. The incident attracted significant media attention with reports
of the man’s connections to the Hells Angels Motorcycle Club.
• Also in June 2007, four members of the Rebels Motorcycle Club were seriously injured in a well-
publicised shooting in an Adelaide nightclub. The then Assistant Commissioner of the South
Australian Police Force said that there was no evidence to suggest the members were targeted by
a rival OMCG. However, media outlets linked the incident to increasing concerns about an
impending war between rival gangs.
• In March 2009, a member of the Hells Angels Motorcycle Club was killed in a brawl between the
Hells Angels and the Comanchero Motorcycle Club at Sydney Airport. The brawl was reportedly
linked to a feud between the two OMCGs, which erupted after a Hells Angels clubhouse was
bombed. A week later, the brother of the victim was seriously injured in a shooting attack. These
events were seen as a culmination of escalating violence in NSW, which included an unrelated
series of drive-by shootings involving the Bandidos and Notorious Motorcycle Clubs on the
same afternoon as the Sydney Airport incident.
64
Victoria, Parliamentary Debates, Legislative Assembly, 15 November 2012, 5070 (Robert Clark, Attorney-General).
65
Board of the Australian Criminal Intelligence Commission 2019, Chair Annual Report (2017-18), p. 28.
66
Australian Criminal Intelligence Commission 2019, Organised crime groups, viewed 12 March 2020, .
67
See, for example, Kent, P 2009, ‘Christopher Wayne Hudson tortured by angry bikies’, Herald Sun, 7 May, viewed 16 June 2020,
; Welch, D, Kennedy, L and Harvey, E 2009, ‘Bikie killed
in Sydney Airport brawl’, Sydney Morning Herald, 23 March, viewed 16 June 2020, ; and Australian Border Force Newsroom 2012, ‘Two arrested over drug syndicate operating between Mexico
and Australia’, 8 November, viewed 16 June 2020, .
Page 20 of 47Review of Victorian Criminal Organisation Laws
• In November 2011, the Bandidos Motorcycle Club sergeant-at-arms was shot in daylight outside
a popular gym in the Melbourne suburb of Brunswick. It was reported that the incident was
witnessed by members of the public, including young children.
• In November 2012, a senior member of the Comanchero Motorcycle Club was charged with
offences relating to his involvement in a drug syndicate operating between Australia and Mexico.
The charges followed a 16-month investigation by a joint multi-agency taskforce that included
Victoria Police.
• In October 2013, ABC News reported that more than 700 Victoria Police and Australian Federal
Police (AFP) officers carried out 60 raids on clubhouses and other properties in Victoria linked to
the Hells Angels Motorcycle Club, in response to several violent incidents involving firearms.
Thirteen people were arrested during the raids, including some senior members of the Hells Angels.
Police seized weapons, ammunition, drugs and cash from the properties.
4.2 States and Territories consider a national approach
In September 2007, a Commonwealth parliamentary inquiry into the future impact of serious and
organised crime found that Australia faced a growing threat. It found that “the increasing use of
technology, transnational connections and fluidity of organised crime groups will make law
enforcement's task of policing organised crime's illicit activities more difficult”. 68
In November 2007, following the shooting incident at the Adelaide nightclub, the South Australian
Government introduced the Serious and Organised Crime (Control) Bill 2007. 69 The Bill
represented a new approach to tackling serious and organised crime in Australia. It established a
framework to declare organised crime groups and make orders restricting their activities. The Bill
was openly aimed at OMCGs, with the intention of preventing crime and breaking up gangs. 70
Initially, all other States and Territories “adopted a ‘wait-and-see’ approach” to the South
Australian laws. 71 However, the Sydney Airport incident in March 2009 sparked increased interest
in a legislative response to OMCG violence. By the following month, State and Territory Ministers
at the Standing Committee of Attorneys-General (SCAG) had agreed “that organised crime is a
national issue requiring a nationally coordinated response by all jurisdictions.” 72
Jurisdictions agreed to consider introducing a range of legislative responses to organised crime,
including “consorting or similar provisions that prevent a person associating with another person
who is involved in organised criminal activity as an individual or through an organisation”. 73 The
then Victorian Attorney-General supported a national approach, noting it was the intention of the
Committee that “no jurisdiction can become a safe haven” for organised crime groups. 74
68
Parliamentary Joint Committee on the Australian Crime Commission, Parliament of Australia 2007, Inquiry into the future impact of serious and
organised crime on Australian society, p. 28.
69
Serious and Organised Crime (Control) Bill 2007 (SA); New South Wales Ombudsman 2016, Review of police use of powers under the Crimes
(Criminal Organisations Control) Act 2012, pp. 9-10.
70
Rann, M, Premier (SA) 2007, ‘New laws to dismantle criminal bikie gangs’, Media Release, 5 July, cited in Parliamentary Joint Committee on
the Australian Crime Commission, Parliament of Australia 2009, Inquiry into the legislative arrangements to outlaw serious and organised crime
groups, p. 47.
71
Parliamentary Joint Committee on the Australian Crime Commission, Parliament of Australia 2009, Inquiry into the legislative arrangements to
outlaw serious and organised crime groups, p. 157.
72
Standing Committee of Attorneys-General, 2009, Communiqué, 16-17 April, p. 8.
73
Standing Committee of Attorneys-General, 2009, Communiqué, 16-17 April, p. 8.
74
ABC News 2009, ‘A-Gs agree on national bikie powers’, 16 April, viewed 16 June 2020, .
Page 21 of 47You can also read
