DECEMBER 2019...Independent review of the effectiveness of ACT Policing crime scene powers and...

INDEPENDENT REVIEW OF THE EFFECTIVENESS OF

ACT POLICING CRIME SCENE POWERS AND POWERS

TO TARGET, DISRUPT, INVESTIGATE AND PROSECUTE

CRIMINAL GANG MEMBERS

6 DECEMBER 2019

ASSOCIATE PROFESSOR TERRY GOLDSWORTHY AND DR GAELLE BROTTO

BOND UNIVERSITY

14 University Drive, Robina Qld, 4226 ǀ P: 075595 3057 ǀ

E: [email protected] ǀ www.bond.edu.au

Independent review of the effectiveness of ACT Policing crime scene powers and powers to target, disrupt,

investigate and prosecute criminal gang members

Dr Terry Goldsworthy and Dr Gaelle Brotto Page i

6 December 2019

© Copyright, Terry Goldsworthy and Gaelle Brotto

This work is copyright, however material from this publication may be copied

and published by State or Federal Government Agencies without permission

of the authors on the condition that the meaning of the material is not altered

and the authors are acknowledged as the source of the material. Any other

persons or bodies wishing to use material must seek permission.



Dr Terry Goldsworthy and Dr Gaelle Brotto Page ii

6 December 2019

ACKNOWLEDGEMENTS

The authors would like to acknowledge the staff at the Justice and Community Safety Directorate, ACT

Government, and ACT Policing for their assistance in providing the necessary information and data,

which add value to this review.

We would also like to thank the stakeholders who took the time to provide submissions relating to

numerous legislative issues.

Without the valuable information you provided, we would not be in a position to comprehensively assess

and report on the ACT crime scene’s powers and responses to organised crime.



Dr Terry Goldsworthy and Dr Gaelle Brotto Page iii

6 December 2019

CONTENTS

ACKNOWLEDGEM ENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I I

GLOSSAR Y . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

L I ST OF TABLE S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

L I ST OF F IGURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

SECTION 1— INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

SECTION 2—METHODOLO GY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

2.1 The task ....................................................................................................................................................................... 10

2.2 Information from ACT Policing ........................................................................................................................... 12

2.3 Information from other government agencies ............................................................................................. 12

2.4 Consultations with key stakeholders ................................................................................................................ 12

2.5 Academic literature ................................................................................................................................................. 13

2.6 Parliamentary and public debate ....................................................................................................................... 13

2.7 Related laws ............................................................................................................................................................... 13

2.8 Conflict of interest ................................................................................................................................................... 13

SECTION 3—CONTEX T AND BACKGROUND OF CRIME SCENE POWE RS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

3.1 Importance of crime scene powers in criminal investigation .................................................................. 14

3.2 The investigative process—a model ................................................................................................................. 15

3.3 Crime scene stage ................................................................................................................................................... 16

3.4 The international experience regarding crime scene powers ................................................................. 17

3.5 Crime scene powers in other states and territories .................................................................................... 20

SECTION 4—OVERVIEW : THE OPERATION OF CRIME SCENE POWE RS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

4.1 Increased concern about organised crime and criminal gangs .............................................................. 28

4.2 Immediate background to the new crime scene powers in 2017.......................................................... 28

4.3 The new division 10.4A .......................................................................................................................................... 29

4.4 A qualitative and quantitative analysis of the new crime scene powers ............................................. 34

SECTION 5—ORGANISED CRIME IN AUSTR ALIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

5.1 Defining organised crime ..................................................................................................................................... 37

5.2 The international approaches to organised crime ...................................................................................... 38

a. The North American Approach .......................................................................................................................... 38

b. The European Approach ....................................................................................................................................... 40

c. The New Zealand Approach ................................................................................................................................ 44

d. Effectiveness .............................................................................................................................................................. 45

5.3 Legal approaches to defining organised crime ............................................................................................ 46

5.4 The future of organised crime ............................................................................................................................ 46

SECTION 6—OMCGS IN AUSTRALIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

6.1 An examination of the criminality of OMCGs ............................................................................................... 48

6.2 How much crime do OMCGs commit? ............................................................................................................ 49

6.3 OMCGs and the drug markets ............................................................................................................................ 51

6.4 The role of the gang structure in criminal enterprises............................................................................... 52

6.5 Membership issues ................................................................................................................................................. 53



Dr Terry Goldsworthy and Dr Gaelle Brotto Page iv

6 December 2019

6.6 Media and OMCGs .................................................................................................................................................. 54

SECTION 7—CONSOR TING LAW S IN AUSTRALIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

7.1 The history of consorting laws in Australia .................................................................................................... 57

7.2 Moral panic and the justification for consorting laws ................................................................................ 58

7.3 Not new—just previously unused ..................................................................................................................... 62

7.4 Consorting Laws, are they effective? ................................................................................................................ 65

7.5 Did anti-association laws already exist? .......................................................................................................... 69

SECTION 8—A CURRENT SITUA TION REPO RT OF OMCG ACTIV ITY IN THE ACT . . . . . . . . . . . . . . . . . 72

8.1 ACT OMCGs memberships ................................................................................................................................... 72

8.2 An examination of OMCG criminality in the ACT ........................................................................................ 74

8.3 OMCGs’ involvement in organised and serious crime in the ACT ......................................................... 77

8.4 OMCGs and the media in the ACT .................................................................................................................... 79

SECTION 9—CURRENT ACT IN ITIATIVES AGAINST OR GANISED CRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

9.1 The Crimes (Serious and Organised Crime) Amendment Act 2010 ........................................................ 81

9.2 The Crimes (Serious and Organised Crime) Legislation Amendment Act 2016 .................................. 84

9.3 The Crimes (Police Powers and Firearms Offence) Amendment Act 2017 ........................................... 90

9.4 The Crimes (Fortification Removal) Amendment Act 2018 ........................................................................ 91

9.5 The Firearms and Prohibited Weapons Legislation Amendment Act 2018 .......................................... 93

9.6 The Unexplained Wealth Legislation Amendment Act 2018 (Cth) .......................................................... 94

9.7 Other legislative efforts to combat organised crime.................................................................................. 97

SECTION 10—RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

10.1 Recommendation 1: Division 10.4A Audit reporting ................................................................................101

10.2 Recommendation 2: Division 10.4A Alternative accommodation .......................................................101

10.3 Recommendation 3: NAPROs ...........................................................................................................................101

10.4 Recommendation 4: Amendment of ACT exclusion provisions. ..........................................................101

10.5 Recommendation 5: Amendment of section 23(1)(B) of the Crimes (Sentencing) Act 2005 ......101

10.6 Recommendation 6: That the ACT does not introduce a consorting style offence ......................102

10.7 Recommendation 7: Unexplained wealth laws specific to the ACT to be considered .................102

10.8 Recommendation 8: Amendment of section 23F of the Crimes Act 1914 (Cth) .............................102

10.9 Recommendation 9: Resolution of insurance issues pertaining to the removal of fortifications

......................................................................................................................................................................................102

10.10 Recommendation 10: Independent review of failed prosecutions against OMCG members ...102

10.11 Recommendation 11: Charges under Division 7.2.3 of the Criminal Code 2002 ...........................103

10.12 Recommendation 12: Participation Offences, Chapter 6A of the Criminal Code 2002. ..............103

10.13 Recommendation 13: Register of cross-jurisdictional operations and investigations .................103

10.14 Recommendation 14: Informal refusals, Firearms Act 1996 ...................................................................103

10.15 Recommendation 15: Sensitive information, Firearms Act 1996 section 18A(2) ............................103

REFERENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

1 LEGISLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

SECTION 11: STAKEHOLDERS SUBMISSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

10.16 ACT Corrective Services .......................................................................................................................................114

10.17 Legal Aid ACT ..........................................................................................................................................................115

10.18 ACT Policing ............................................................................................................................................................117

10.19 ACT Human Rights Commission ......................................................................................................................124

10.20 ACT DPP ....................................................................................................................................................................133

Independent review of the effectiveness of ACT Policing crime scene powers and powers to target, disrupt, investigate and

prosecute criminal gang members

Dr Terry Goldsworthy and Dr Gaelle Brotto Page 5

6 December 2019

GLOSSARY

Term Meaning

ACAT ACT Civil and Administrative Tribunal

ACC Australian Crime Commission (in 2016 the ACC was reformed as the ACIC)

ACIC Australian Criminal Intelligence Commission

ACLEI Australian Commission for Law Enforcement Integrity

ACT Australian Capital Territory

ACTHRC Australian Capital Territory Human Rights Commission

AFP Australian Federal Police

CA Canada

CCC Crime and Corruption Commission (Qld)

CMG Criminal Motorcycle Gang

COA Criminal Organisation Act 2009 (Qld)

CSI Crime scene investigation

Cth Commonwealth

DPP Director of Public Prosecutions

EF Evaluation framework

LEPRA Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

NAPRO Non-association and place restriction orders

NL Netherlands

NSW New South Wales

NT Northern Territory

NZ New Zealand

OCCA Organised Crime Control Act 1970

OMCG Outlaw Motorcycle Gangs (this term has been adopted by the Australian Crime Commission and

the NSW Police Force and is acknowledged by the Supreme Court of NSW in cases such as Moefli

v State Parole Authority [2009] NSWCC 1146)

PIM Public Interest Monitor

PSA Penalties and Sentences Act 1992 (Qld)

PACE Police and Criminal Evidence Act 1984 (UK)

QPS Queensland Police Service

RICO Racketeer Influenced and Corrupt Organizations Act (US)

RTI Right to information

SA South Australia

SCOPA Serious Organised Crime and Police Act 2005

SCPO Serious crime prevention orders

Tas Tasmania

TOC Transnational organised crime

UK United Kingdom

UN United Nations

UNODC United Nations Office on Drugs and Crime

US United States

VLAD Vicious Lawless Association Disestablishment Act 2013 (Qld)

Vic Victoria

WA Western Australia




6 December 2019

LIST OF TABLES

Table 1: PACE Codes of Practice ......................................................................................................................................................................... 19

Table 2: Summary of Crime Scene Legislation in Australian States and Territories......................................................................... 27

Table 3: Summary of Use of Crime Scene Powers since Introduction .................................................................................................. 35

Table 4: Details of Use of Crime Scene Powers since Introduction ....................................................................................................... 35

Table 5: Legislative Tools for Combating Serious and Organised Crime—Overseas Federal Legislation ............................... 46

Table 6: Organised Crime Activity of Queensland OMCG Members between April 2008 and April 2014 by Count and as

a Percentage of Overall Reported Crime ........................................................................................................................................ 50

Table 7: Top 10 Charges by Number with a Guilty Finding Against OMCG Members in Queensland between 2008 and

2014 .............................................................................................................................................................................................................. 50

Table 8: OMCG Involvement in Drug Offences in Queensland between April 2008 and April 2014 ........................................ 51

Table 9: Level of OMCG Criminality in Queensland as of April 2014 .................................................................................................... 53

Table 10: Queensland Police Estimates of OMCG Membership and Disassociations between 2013 and 2015 ................... 54

Table 11: Main Aspects of the 2013 Queensland Anti-Gang or VLAD Laws ...................................................................................... 62

Table 12: Consorting and Anti-Association Offence Laws by Australian States and Territories ................................................. 64

Table 13: Existing Anti-Association Laws by Australian States and Territories .................................................................................. 70

Table 14: Number of Suspected OMCG Members and Associates in ACT between 2015 and 2019 ........................................ 72

Table 15: Level of OMCG Criminality in ACT as of October 2019 .......................................................................................................... 74

Table 16: Charges and Outcome of Current ACT OMCG Members per Gang between July 2000 and June 2019 .............. 75

Table 17: Overview of Total Reported Offences in ACT between July 2000 and June 2019 ........................................................ 76

Table 18: Overall Charges by Number Against OMCG Members in ACT between July 2000 and June 2019........................ 77

Table 19: Organised Crime Activity of ACT OMCG Members between July 2000 and June 2019 by Count and as a

Percentage of Overall Reported Crime ........................................................................................................................................... 78

Table 20: OMCG Involvement in Drug Offences in ACT between July 2000 and June 2019 by Count and as a Percentage

of Overall Reported Crime ................................................................................................................................................................... 78

Table 21: Violent Charges of ACT OMCG Members between July 2000 and June 2019 by Count and as a Percentage of

Overall Reported Crime ........................................................................................................................................................................ 79

Table 22: Number of Current OMCG Members with Affray Charges in 2019 .................................................................................... 81

Table 23: Charges and Outcome—All Charges for Selected Offences between July 2000 and July 2019 .............................. 82

Table 24: Number of Division 7.2.3 Charges and Outcomes between December 2002 and September 2019 ..................... 83

Table 25: Number of NAPROs Issued with Associated Sentence Outcomes between 2009 and 2018 .................................... 88

Table 26: Exclusion Charges and Outcomes between July 2000 and June 2019 .............................................................................. 89

Table 27: Fortification Legislation in Each Australian State and Territory ........................................................................................... 91

Table 28: Number of OMCG Clubhouses by Gang ...................................................................................................................................... 93

Table 29: Approximation of Assets Restrained and Forfeited for 2018-2019 .................................................................................... 96




6 December 2019

LIST OF FIGURES

Figure 1: Stages of the Investigative Model ................................................................................................................................................... 16

Figure 2: Factiva Search for OMCG Media Stories by State between January 2014 and September 2019 ............................. 56

Figure 3: Numbers of Suspected OMCG Members and Associates in ACT with Trendline .......................................................... 73

Figure 4: Number of OMCG Media Stories for the ACT Region between January 2014 and September 2019. Sourced from

Factivia......................................................................................................................................................................................................... 79

Figure 5: Top 10 Subjects for OMCG Media Stories in the ACT between January 2014 and September 2019. Sourced from

Factiva .......................................................................................................................................................................................................... 80




6 December 2019

EXECUTIVE SUMMARY

This review seeks to inform the Australian Capital Territory (ACT) Government about the effectiveness of its newly

introduced crime scene powers and its legislative responses to serious and organised crime. The review team was

requested to undertake its analysis with a focus on Outlaw Motorcycle Gangs (OMCGs) in terms of applying various

legislative schemes.

The review is structured in various sections. Section Two discusses the methodology used in the review, while Sections

Three and Four examine the background of new crime scene powers and their utilisation. Section Five explores organised

crime and responses to it from the national and international perspectives. Section Six reviews the current literature and

examinations of OMCGs, also from the national and international perspectives. Section Seven explores Australia’s

experience with anti-association and consorting laws, while Section Eight informs the ACT Government about the current

status and threat that OMCGs pose in the ACT. Section Nine evaluates the ACT Government’s various legislative

responses to serious and organised crime, with a focus on OMCG activities.

Organised crime groups and activities are fluid and changing rapidly. A response that was useful 10 years ago may no

longer be an appropriate tool for combating organised crime activities today. One common response to organised

crime—particularly to OMCGs—is the implementation of anti-association and consorting laws. In its examination of the

available evidence, this review found that such laws were largely ineffective. There is little evidence to support the notion

that anti-association or consorting laws reduce overall offending, nor are such laws necessarily focused on serious or

organised crime activities. The resources used to police such laws would be better invested in targeting actual criminal

activities, rather than in generalised claims of disruption through stopping associations between individuals, in which

there is no requirement for a criminal purpose to be attached.

Regarding the criminal threat that OMCGs pose to the ACT, it has been revealed that perceptions do not always

correspond to reality. Our analysis revealed that current OMCGs commit less than 1 per cent of reported crimes in the

ACT. This level of criminality holds true for offences related to drug and organised crime. For example, 19 years of

policing data have indicated no murder charges against current OMCG members in the ACT. This review also found that

charges against OMCG members suffer much higher attrition rates in terms of matters not proceeding to a finding of

guilt when compared to the general population. Many of the crimes committed by current OMCG members are minor

and not of a serious or organised crime nature. Not all OMCG members possess criminal histories, and research informs

us that many OMCG criminal activities are not undertaken within, or on behalf of, the gang. The number of OMCG

members in the ACT has not increased in the last five years, according to the available data.

In terms of the legislative responses that the ACT Government has implemented to combat serious and organised crime

activity, this review found that the responses were effective and proportionate, in general. The legislative responses

provide ACT law enforcement agencies several tools with which to fight serious and organised crime. For example,

although this review did not recommend anti-association or consorting laws, it did remain positive about using non-

association and place restriction orders (NAPROs), due to their ability to target individuals who are proven to have

engaged in serious or organised crime activity.

There is room for improvement in some identified areas, for which appropriate recommendations have been made in

Section Ten.

Dr Terry Goldsworthy

Associate Professor, Criminology

Bond University, Gold Coast, Australia




6 December 2019

SECTION 1—INTRODUCTION

This review relates to the operation of new crime scene powers that were introduced in the Australian Capital Territory

(ACT) Crimes (Police Powers and Firearms Offence) Act 2017, which took effect on 8 December 2017. The legislation,

under section 210M, required that the Attorney-General review the operation of this division as soon as practicable after

the end of its first year of operation. The Attorney-General was further required to present a report of the review to the

Legislative Assembly within six months after the day that the review began. Bond University has been tasked with

conducting the review of the new crime scene powers.

In addition to this, the review team was also asked to examine the effectiveness of existing specified provisions as they

relate to fighting organised crime, with a focus on OMCGs. In doing so, the review assessed whether current ACT

legislative mechanisms function adequately in targeting, disrupting, investigating and prosecuting OMCG members.

This review will inform the ACT Government about legislative reform in terms of how best to approach policing OMCGs.

The report can be used as a tool for informing the public of how the ACT Government is responding to OMCG activity

in the community.




6 December 2019

SECTION 2—METHODOLOGY

The research team employed numerous research and consultation strategies to obtain information for this review. Our

review strategies have mainly been informed by ACT Policing data and our analysis of that data. We undertook extensive

consultations with several stakeholders, including police and non-police stakeholders. Additionally, the review gathered

information from sources such as government bodies, academic literature, media reports, comparable or relevant

legislation and parliamentary debates.

2.1 THE TASK

The directorate specifically sought input to meet the below outcomes:

1. to meet the legislative requirement under the Crimes Act 1900 (ACT) to conduct a review of crime scene powers

2. to assess whether current ACT legislative mechanisms function adequately in targeting, disrupting, investigating

and prosecuting criminal gang members

3. to inform future legislative reform in relation to criminal gangs through key recommendations from the review

4. to develop a tool for informing the public about how the ACT Government is responding to criminal gang

activity in the community.

In December 2017, the ACT Government introduced statutory crime scene powers in the Crimes Act 1900 (ACT) to allow

police officers to preserve evidence at crime scenes in a timely manner in both public and private places. Bond University

was tasked with examining the operation and practical application of crime scene powers as contained in Division 10.4A

of the Crimes Act 1900 (ACT).

This review ensures compliance with section 210M of the Crimes Act 1900 (ACT), which stipulates that the operation of

this division must be reviewed as soon as practicable after the end of the first year of operation.

In addition to this, the review also examined the operation and practical application of the following legislative provisions

that were designed to target organised crime activity. Although these provisions can be applied across a broad spectrum

of organised crime activity and groups, the examination specifically focused on their effect on the activities of OMCGs.

The review sought input from stakeholders regarding the effectiveness of the following legislative provisions:

• The Crimes (Serious and Organised Crime) Amendment Act 2010—which introduced the offences of affray,

participation in a criminal group and recruiting of people to participate in criminal activity into the Crimes Act

1900 (ACT) and the Criminal Code 2002. This also extended the existing offences relating to the protection of

people who are involved in legal proceedings, which are contained in Division 7.2.3 of the Criminal Code 2002

and which have introduced the extensions of criminal liability concepts of ‘joint criminal enterprise’ and

‘knowingly concerned’ into the Criminal Code 2002.

• The Crimes (Serious and Organised Crime) Legislation Amendment Act 2016—which expanded the categories of

offences that can be subject NAPROs. The Act also modernised move-on powers to clarify their operation and

sought to provide the ACT Policing with better tools for dealing with antisocial behaviours that can intimidate

members of the public or reasonably cause them to fear for their safety. The term ‘exclusion orders’ replaced

Project objective—Requested by the Justice and Community Safety Directorate, the ACT Government to

independently evaluate the effectiveness of ACT Policing crime scene powers and powers to target, disrupt,

investigate and prosecute criminal gang members.




6 December 2019

move-on orders, as it better describes the nature of the powers. The review particularly sought feedback

regarding the effectiveness of, and any actions that may be taken to, improve the current provisions relating to

NAPROs.

• The regulations to recognise the cross-border investigation laws of other Australian jurisdictions as

corresponding laws under ACT legislation—which commenced in 2017. These regulations support the cross-

jurisdictional investigations of serious organised crime, as well as ensure the effectiveness of these

investigations.

• The Crimes (Police Powers and Firearms Offence) Amendment Act 2017—which introduced a specific offence to

capture drive-by shootings under section 28B of the Crimes Act 1900 (ACT) in 2017. The offence relates to people

shooting at a building (including a home), whether from a car or otherwise. The offence is punishable by a

maximum of 10 years’ imprisonment.

• The Crimes (Fortification Removal) Amendment Act 2018—which commenced on 1 September 2018. The intent

of this act was to render the ACT a hostile environment for criminal gangs, so that the establishment of fortified

premises such as OMCG club houses can be prevented.

• The Firearms and Prohibited Weapons Legislation Amendment Act 2018—which provided the registrar of firearms

a power under the Firearms Act 1996 to refuse an application for a firearms licence based on security-sensitive

information, such as information from national, state and territory law enforcement agencies. The Amendment

Act also allowed the registrar to refuse to give reasons for the decision, to the extent that it would disclose

information from a law enforcement agency.

• The Commonwealth Unexplained Wealth Legislation Amendment Act 2018—which passed Parliament on 19

September 2018. This act effectively introduced an unexplained wealth scheme in the ACT by extending

Commonwealth unexplained wealth orders to ACT offences. Unexplained wealth laws are a valuable tool for law

enforcement, as they permit the confiscation of assets when a person linked to criminal activity cannot

reasonably demonstrate that the assets have been lawfully obtained. The ACT signed the intergovernmental

agreement that operationally supports the act in December 2018.

• The Confiscation of Criminal Assets Act 2003—which included the ability to restrain and forfeit property.

• Any other commentary on the Cross-Border Investigative Powers (Crimes [Controlled Operations]) Act 2008, the

Crimes (Assumed Identities) Act 2009 and the Crimes (Surveillance Devices) Act 2010.

The review also noted that the Crimes Act 1914 (Cth), Part 1C, applies to most offences that ACT Policing investigate in

the ACT, see section 187 of the Crimes Act 1900 (ACT).

The review team sought input from stakeholders regarding the above issues, particularly in terms of how effective the

various provisions are in combating organised crime activity and whether there is any need for reform.

The Justice and Community Safety Directorate of the ACT Government requested that Bond University independently

evaluate the effectiveness of ACT Policing crime scene powers and powers to target, disrupt, investigate and prosecute

criminal gang members. Bond University used a four-stage methodology to meet the project’s objective, which

comprised the following distinct stages:

1. Stage one—Project planning. A task-based methodology was developed in collaboration with the Justice and

Community Safety Directorate of the ACT Government, including an agreement on data, stakeholder

engagement and project risk management.

2. Stage two—Evaluation framework (EF). An evidence-based EF was developed through a focused literature

scan, document review and consultation with nominated stakeholders. The EF ensured that all appropriate data

were available in the project so that their collection and analysis could be optimised.

3. Stage three—Stakeholder consultation and quantitative analysis. This phased stage comprised a qualitative

data collection that was conducted through seeking input from identified stakeholders to determine the

effectiveness of the existing crime scene laws and potential organised crime laws. A quantitative analysis of

requested data was another phase.




6 December 2019

4. Stage four—Final reporting. This stage involved reporting on the evaluation outcomes. It incorporated

feedback from key stakeholders before the final report was submitted with recommendations to the Justice and

Community Safety Directorate.

2.2 INFORMATION FROM ACT POLICING

The review team sought data from the ACT Policing database in relation to the following points:

• the number of OMCG members by gang over time in the ACT

• the number of identified gang members with criminal histories in the ACT

• a breakdown of offences by type, gang and court outcome

• a summary of overall crime in the ACT for the same period

• the number of OMCG club houses over time and the use of fortification legislation

• the number of firearm applications that were refused since the introduction of the relevant legislation and any

OMCG association

• the number of affray charges that were preferred, as well as those associated with OMCGs

• data on the number of OMCG members and non-members who were charged with any offences listed in Division

7.2.3 of the Criminal Code 2002, as well as data on those who relied on the extension of criminal liability and

court outcome

• the number of new drive-by shooting offences and the details of the persons charged (i.e., OMCG members and

non-members and court outcomes)

• the number of applications made under the unexplained wealth laws as applicable to the ACT, as well as the

data identifying the number of those applications relating to OMCG members and the type of criminal activity

associated with the applications

• the number of controlled operations (and type) conducted in relation to OMCG members.

It should be noted that certain limitations are attached to the different types of data provided. This will be discussed in

further detail in the relevant sections of the report.

2.3 INFORMATION FROM OTHER GOVERNMENT AGENCIES

Information was also sought from the Director of Public Prosecutions (DPP), the Justice and Community Safety

Directorate and the courts regarding the operation and use of the NAPRO scheme. This included the numbers of NAPRO

orders that were sought (successful and unsuccessful) and on whom they were imposed (i.e., OMCG members and non-

members), as well as the offences associated with the orders. Additionally, any data relating to breaches of such orders

was also sought.

2.4 CONSULTATIONS WITH KEY STAKEHOLDERS

The review team consulted with, and sought stakeholder input from, the following stakeholders in the ACT:

• the ACT Bar Association

• the ACT Courts and Tribunal (ACTCT)

• the ACT Corrective Services

• the ACT Policing

• the ACT DPP

• the ACT Human Rights Commission

• the ACT Law Society

• the Legal Aid ACT.




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The principle registrar and CEO of the ACTCT advised that after consulting with the acting chief justice and acting chief

magistrate, the ACTCT did not intend to participate in the review. Feedback was sought from both the ACT Bar

Association and the ACT Law Society, but no submissions were made from either of these groups.

2.5 ACADEMIC LITERATURE

The review team examined a range of academic literature on crime scene and consorting laws, including legal analyses

and literature on the history and context of these two subjects within the criminal justice system. We also reviewed

relevant academic literature on organised crime, as well as the specific criminal justice responses to OMCG groups and

crime (organised and gang-related).

2.6 PARLIAMENTARY AND PUBLIC DEBATE

The review team reviewed the Hansard of various states in which crime scenes and consorting laws were discussed or

debated, as well as any media reports on, and other published commentary relevant to, crime scene laws, organised

crime and consorting. This included articles in legal journals and submissions made to other bodies in relation to crime

scene laws, organised crime and consorting laws.

2.7 RELATED LAWS

The review team conducted a comparative analysis of similar or relevant laws in other Australian and international

jurisdictions in relation to crime scene and consorting laws. We additionally examined various legislative schemes that

are used in the ACT to combat organised crime.

2.8 CONFLICT OF INTEREST

At the time of this review, there were no conflicts of interest for the proposed project team that would preclude us from

being contracted to undertake the consultancy. If for any reason a conflict arose, we were to inform Justice and

Community Safety and make the relevant arrangements: 1) attempt to make alternative and suitable consultants

available, 2) withdraw our services in the best interests of the study and client, or 3) gain additional approved research

expertise to overcome any concerns regarding the timely completion of the project.




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SECTION 3—CONTEXT AND BACKGROUND OF CRIME SCENE

POWERS

3.1 IMPORTANCE OF CRIME SCENE POWERS IN CRIMINAL INVESTIGATION

Crime scene investigation (CSI) is the systematic process of ‘searching for, documenting, collecting, preserving, and

interpreting physical evidence associated with an alleged crime scene, in an effort to determine the truth relating to the

event in question’ (Dutelle, 2017, p. 31). It has many objectives, including:

• determining whether a crime has been committed

• determining if the crime has been committed within the investigator’s jurisdiction

• discovering and documenting all facts that pertain to the compliant in question

• identifying and eliminating suspects

• locating and apprehending the perpetrator

• maintaining a proper chain of custody (Gehl & Plecas, 2019).

Even though these tasks may seem simplistic, ritualistic and mundane, they are the very foundation of a criminal

investigation; without this foundation of proper evidence practices, the case would collapse when it came to court (Gehl

& Plecas, 2019; Julian, Kelty & Robertson, 2012).

Police powers—including crime scene powers—are thus an indispensable evidence-gathering tool for the police and

law enforcement agencies. They provide the authority to secure crime scene and evidential material that is often pivotal

to the trial and conviction of an offender. As such, it is important to examine the role of crime scenes within the overall

framework of criminal investigations.

When any crime has been committed, investigators usually face the task of determining who is responsible for the crime,

as the identity of the perpetrator is unknown in many cases. Law enforcement agencies—specifically their detectives—

investigate the crime with the intention of bringing the offender to justice by successfully identifying and prosecuting

that offender. The investigator becomes a collector of evidence, as well as the central figure in giving the investigation

direction, which ultimately determines the success of the investigation.

Bennett and Hess (2000, p. 3) stated that an investigation is ‘the process of discovering, collecting, preparing, identifying

and presenting evidence to determine what happened and who is responsible’. Swanson, Chamelin and Territo (2000)

and Bennett and Hess (2000) suggested that when a crime is committed, the investigator is charged with the

responsibilities of establishing that a crime has been committed, identifying and apprehending the suspect, and assisting

in the prosecution of the suspect. Additionally, there are basic investigative principles that the investigator must consider

during the investigation, including:

• determining whether a crime been committed (e.g., is the death a murder or an accidental death due to some

kind sexual behaviour?)—this may seem a simple principle, but it is often the most crucial decision an

investigator faces when he or she arrives at the scene of an incident

• identifying the offender

• locating the offender

• identifying and showing a nexus between the offender, the victim and the crime (e.g., through physical evidence,

admissions, witness statements, etc.).

The time from the crime’s initial notification is crucial. It is in this period that evidence can be lost or destroyed by

investigative agencies who fail to proactively protect the crime scene. It is for this reason that the best policy is to treat

all potential scenes as crime scenes until proven otherwise. This is especially true for cases of serious assault or death, in




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which the victim may not be able to provide a version of events and in which investigators must rely on evidence at the

scene to provide details of what occurred. No criticism can be levelled at investigators who are over cautious and who

treat a non-criminal event as a crime scene; however, failing to secure and process a crime scene due to inaction will

surely draw criticism. It is in this context that the provision of crime scene powers for police becomes an essential

investigative tool.

3.2 THE INVESTIGATIVE PROCESS—A MODEL

How should the investigator approach a crime? Is there a model or a process that the investigator can use to bring an

investigation to a successful conclusion? Currently, there is no definitive or standardised investigative model to be used

in most Australian police services. It is certainly basic knowledge and practical experience that dictates how investigations

are usually approached. An investigation can be likened to a series of gates; certain evaluations and judgements must

be made at each gate before proceeding to the next (Swanson et al., 2000, p. 23).

What if an officer does not possess sufficient experience to know how to approach an investigation? In that case, an

investigative model outlining the investigation process would clearly be useful. In the following model, it was decided

to adopt a generic form. The main reason for this is that in a generic form, the model is organic and can adapt to meet

the different requirements of various investigations (e.g., there will be elements in a rape investigation that do not apply

to a burglary investigation, such as a medical examination of the victim and possible locations of evidentiary specimens)

(Goldsworthy, 2009).

Using such a model would allow investigators to follow a clear and logical series of steps that can assist them in bringing

their investigation to a successful conclusion. Bennett and Hess (2000) argued that conducting an investigation in a

logical sequence is essential and that all actions undertaken are to be legally defensible. The importance of this tenet

cannot be underestimated, as one legal flaw in the early stages of an investigation can lead to a total disintegration of

the case later. The common saying of ‘fruit from the poisoned vine’ holds true in this respect; all evidence stemming

from an earlier unlawful act can be subject to findings of inadmissibility at trial later. This is why the provision of crime

scene powers that offer a legal basis for examining a scene is important.

Bowker (1999) stated that an investigative plan can be used to focus the investigation and ensure that all offence

elements are addressed. It can also assist by ensuring that investigators avoid duplication and that they coordinate

activities and provide stability and communication; finally, such a plan can also be a training aid for inexperienced staff.

Using this model allows investigators to focus on the overall goals of the investigation by clearly establishing the path

that they should take to achieve these goals (Goldsworthy, 2009). Both Bennett and Hess (2000) and Swanson et al.

(2000) supported the idea of a preliminary investigation with a subsequent follow-up investigation. In the suggested

model, the preliminary investigation would include the crime scene stage and the initial assessment stage. The follow-

up investigation would comprise the investigation stage, target stage and arrest stage.

Producing a model that allows for, and manages, any eventuality would make the model too cumbersome. The model

is designed to be simple to use, and it is meant to provide investigators with an understandable series of stages that can

easily be adapted to the crime under investigation. All the stages listed in Figure 1 below can be applied to any

investigation. An examination of each stage will now be undertaken (Goldsworthy, 2009).




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Figure 1: Stages of the Investigative Model

3.3 CRIME SCENE STAGE

The crime scene stage relates to the police’s initial response to the report of an alleged crime. Rossmo (1997) stated that

the crime scene and its evidentiary contents are the focus of any police investigation. The first few minutes or hours will

often be crucial for ensuring that the scene and its evidence are protected or collected and for determining the success

of the investigation. In many cases, the first officers on the scene will not be trained investigators, but rather general

duty officers who have limited exposure to serious crimes and their associated crime scenes. Saferstein (1998, p. 38)

argued that ‘it is the responsibility of the first officer arriving on the scene of a crime to take steps to preserve and

protect the area to the greatest extent possible’. Turco (1990) suggested that the final outcome of an investigation rests

on thorough police work being conducted at the crime scene. Formal crime scene powers can assist in the initial process.

It is incumbent upon investigators, after being notified of a crime and its associated crime scene, to take the necessary

steps to ensure that the scene is protected. These steps should involve issuing clear commands to the officers onsite

• Assess the crime

• Collect and protect evidence

• Identifiy additional scenes

Stage One:

Crime Scene

• Identify possible witnesses and suspects

• Evaluate physical evidence

• Conduct a victim assessment

Stage Two:

Initial

Assessment

• Establish modus operandi and motive

• Identify signature behaviour and link offences

• Examine and evaluate evidence and witnesses

Stage Three:

Investigation

• Generate potential suspects

• Seek to establish links from crime scene to

suspects

Stage Four:

Targeting

• Locate and interview offender/s

• Negative defences

• Allow for reinvestigation of any additional

information

Stage Five:

Arrest




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until trained investigators can physically arrive at the scene. Contamination of the scene after police have arrived is both

unacceptable and preventable. The investigator should maintain command and control of the scene because it is he or

she who will take the matter to court in the event of an arrest (i.e., the investigator is answerable for all actions taken in

relation to the crime scene).

Trained investigators must make an initial assessment upon their arrival. Does the situation need to be treated as a crime

scene, or is it a non-criminal event (e.g., suicide v. homicide)? Once they have decided whether the event should be

treated as a crime scene, investigators should thoroughly examine the crime scene and ensure that all evidence is

protected and collected. The initial preservation, collection and recording of physical evidence are important to the

success of any investigation. An example of this is a case in New South Wales called the ‘granny murders’, in which police

were called to investigate the serial murder of numerous elderly women in Sydney:

One of the problems experienced by the homicide investigators in the ‘Granny Murders’ was the

interference with crime scenes … persons acting in good faith, washed blood and other forensic

material away from crime scenes prior to notification and arrival of police, so as to alleviate the

anxiety that could be caused to other elderly people. (Hagan, 1992, p. 136)

Particular attention should be given to determining whether there is only a primary crime scene, or whether secondary

crime scenes need to be located:

Investigators will have only a limited amount of time to work a crime site in its untouched state.

The opportunity to permanently record the scene in its original state must not be lost. Such records

will not only prove useful during an investigation but are also required for presentation at trial.

(Saferstein, 1998, p. 38)

Geberth (1996) stated that upon their arrival at the scene, investigators must implement crime scene procedures,

supervise uniform personnel and provide direction to the investigation. To facilitate this, an investigative team should

be nominated—one that includes an arresting officer, a corroborating officer and an exhibit officer. This investigative

procedure is a standard one for most police services for any major crime. The exhibit officer is responsible for the

protection and collection of exhibits, as well as their examination and final production in court cases. The arresting officer

and corroborating officer will be responsible for the interactions with suspects, and they will have the final responsibility

of prosecuting the matter to trial. This team should be overseen by a senior detective—one who has a broad

management role and who ensures that the investigation progresses in an orderly fashion and that it maintains focus

and direction. Part of this role is also ensuring that a major incident room or command post is established to support

and manage investigative functions both at the crime scene and during the later stages of the investigation.

Having established the importance of crime scenes to criminal investigations, a review of international crime scene

powers will now be conducted.

3.4 THE INTERNATIONAL EXPERIENCE REGARDING CRIME SCENE POWERS

Canada

In Canada, police have both statutory and common-law powers to conduct searches (Lafreniere, 2001). According to the

Criminal Code 1985 (CA), for a search to be lawful, the police require some type of authorisation—whether in legislation

or pursuant to the common law as set out by the courts.

An example of a legislative authorisation to conduct a search can be found in section 487 (1) of the Criminal Code 1985

(CA). This provision allows a justice to issue a search warrant when he or she is satisfied, after a police officer has sworn

under oath, that there are reasonable grounds for believing that there is in a building, receptacle or place the following:




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a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been

or is suspected to have been committed,

b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission

of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence,

against this Act or any other Act of Parliament,

c) anything that there are reasonable grounds to believe is intended to be used for the purpose of

committing any offence against the person for which a person may be arrested without warrant, or

i) any offence-related property…

May at any time issue a warrant authorizing a peace officer or a public officer who has been

appointed or designated to administer or enforce a federal or provincial law and whose duties

include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

d) to search the building, receptacle or place for any such thing and to seize it, and

e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make

a report in respect thereof to, the justice or some other justice for the same territorial division in

accordance with section 489.1.

The Criminal Code 1985 (CA) section 487 (7) allows a police officer to obtain this kind of search warrant from a judicial

officer by telephone or other telecommunication (telewarrant) when he or she believes that an indictable offence has

been committed and that it would be impractical to obtain a search warrant personally.

The Criminal Code 1985 (CA) section 529 (1-2) also authorises a police officer to enter a dwelling without warrant:

1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or

any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or

apprehending a person, without a warrant referred to in section 529 or 529.1 authorizing the entry, if the

peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the

conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would

be impracticable to obtain a warrant.

2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer

a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent

bodily harm or death to any person; or

b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is

present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the

imminent loss or imminent destruction of the evidence.

Section 8 of the Canadian Charter of Rights and Freedoms 1982 asserts that everyone has the right to be secure against

unreasonable search and seizure (Lafreniere, 2001). Clearly, where it is feasible, the police should obtain a warrant to

conduct a search, or face the possibility that the search will be found unreasonable.

United Kingdom

The Police and Criminal Evidence Act 1984 (PACE) is an Act of Parliament that makes further provisions in relation to the

powers and duties of the police—particularly provisions that relate to criminal evidence (Home Office, 2019). PACE

attempts to strike a fair balance between the exercise of power by those in authority and the rights of members of the

public (Trevelyan, n.d.).

The PACE 1984 Codes of Practice cover (Home Office, 2019). Code B specifically relates to routine crime scene searches

(see Table 1).




6 December 2019

For example, a police officer can enter and search a place without a warrant to find evidential material relating to serious

offending, if they have reasonable grounds to believe that the evidential material will otherwise be lost (Search and

Surveillance Act, 2012, s15):

A constable may enter and search a place without a warrant if he or she has reasonable grounds—

a) to suspect that an offence punishable by imprisonment for a term of 14 years or more has been

committed, or is being committed, or is about to be committed; and

b) to believe—

i) that evidential material relating to the offence is in that place; and

ii) that, if entry is delayed in order to obtain a search warrant, the evidential material will be

destroyed, concealed, altered, or damaged.

After conducting a review in 2017, it was concluded that ‘the Search and Surveillance Act is generally working well’, as

none of the recommendations proposed a major overhaul of the act (Law Commission and Ministry of Justice, 2017, p.

9).

3.5 CRIME SCENE POWERS IN OTHER STATES AND TERRITORIES

Queensland

In Queensland, police powers have been increased and have been enacted in 2000 under the Police Powers and

Responsibility Act (2000). The purposes of the act are as follows:

a) to consolidate and rationalise the powers and responsibilities police officers have for investigating

offences and enforcing the law;

b) to provide powers necessary for effective modern policing and law enforcement;

c) to provide consistency in the nature and extent of the powers and responsibilities of police officers;

d) to standardise the way the powers and responsibilities of police officers are to be exercised;

e) to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under

this Act;

f) to enable the public to better understand the nature and extent of the powers and responsibilities of

police officers;

g) to provide for the forced muster of stray stock (Police Powers and Responsibility Act, 2000, s5).

In Queensland, it is lawful for a police officer:

a) to enter a place to reach another place that the police officer reasonably suspects is a crime scene; and

b) to enter a place that the police officer reasonably suspects is a crime scene and stay on the place for the

time reasonably necessary to decide whether or not to establish a crime scene.

1) What is a reasonable time for subsection (1)(b) will depend on the particular circumstances including—

a) the nature of any information obtained or any observation made that suggests the place is a crime scene;

and

b) visible evidence that will help decide whether it is a primary or secondary crime scene; and

c) any preliminary inspection of the place (Police Powers and Responsibilities Act, 2000, s164).

However, after establishing a crime scene, police officers have the responsibility to apply to a Supreme Court judge or

magistrate for a crime scene warrant—and if the judge or magistrate refuses to issue a crime scene warrant for the place,

the place stops being a crime scene (Police Powers and Responsibilities Act, 2000, s166)

In terms of crime scene powers, under the Police Powers and Responsibilities Act 2000 (s176), a police officer may do any

of the following in relation to the crime scene:




6 December 2019

a) enter the crime scene;

b) if reasonably necessary, enter another place to gain access to the crime scene;

c) perform any necessary investigation, including, for example, a search and inspection of the crime

scene and anything in it to obtain evidence of the commission of an offence;

d) open anything at the crime scene that is locked;

e) take electricity for use at the crime scene;

f) remove wall or ceiling linings or floors of a building, or panels or fittings of a vehicle;

g) remove or cause to be removed an obstruction from the crime scene;

h) photograph the crime scene and anything in it;

i) seize all or part of a thing that may provide evidence of the commission of an offence.

1) However, if it is necessary to do anything at the place that may cause structural damage to a building,

the thing must not be done unless a Supreme Court judge issues a crime scene warrant for the place

before the thing is done and the warrant authorises the doing of the thing.

2) An authorised assistant at a crime scene may also do a thing mentioned in subsection (1).

3) However, the authorised assistant may do either of the following only if asked by a responsible officer to

do something at the crime scene—

a) enter the crime scene;

b) if reasonably necessary, enter another place to gain access to the crime scene.

New South Wales

The Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) was approved on the 29 November 2002 and then

implemented in stages from 2004 to 2005 (New South Wales Department of Attorney-General and Justice, 2013). This

act consolidated the law relating to the police and other law enforcement officers' powers and responsibilities, it also

established the applicable safeguards in relation to the persons being investigated for offences.

In accordance with section 90 of the LEPRA, there are certain tenets for a crime scene to be established:

1) A crime scene may be established on premises by a police officer if the police officer suspects on

reasonable grounds that:

a) an offence committed in connection with a traffic accident that has resulted in the death of or

serious injury to a person is being, or was, or may have been, committed on the premises and

that it is reasonably necessary to establish a crime scene in or on the premises to preserve, or

search for and gather, evidence of the commission of that offence, or

b) a serious indictable offence is being, or was, or may have been, committed on the premises and

it is reasonably necessary to establish a crime scene in or on the premises to preserve, or search

for and gather, evidence of the commission of that offence, or

c) there may be in or on the premises evidence of the commission of a serious indictable offence

that may have been committed elsewhere and it is reasonably necessary to establish a crime

scene in or on the premises to preserve, or search for and gather, evidence of the commission of

that offence.

1A) A crime scene may also be established on premises by a police officer pursuant to the authority

conferred by a crime scene warrant.

2) To avoid doubt, a crime scene may be established, crime scene powers may be exercises and a crime

scene powers applied for with respect to an act or omission that is a serious indictable offence even

though the act or omission occurred outside New South Wales and was not an offence against the law

of New South Wales, if the act or omission if done, or omitted to be done, in New South Wales would

constitute a serious indictable offence.

In accordance with section 95 of the LEPRA, there are certain functions that a police officer can exercise at, or in relation

to, a crime scene as established in 1). A police officer can:




6 December 2019

a) direct a person to leave the crime scene or remove a vehicle, vessel or aircraft from the crime

scene,

b) remove from the crime scene a person who fails to comply with a direction to leave the crime

scene or a vehicle, vessel or aircraft a person fails to remove from the crime scene,

c) direct a person not to enter the crime scene,

d) prevent a person from entering the crime scene,

e) prevent a person from removing evidence from or otherwise interfering with the crime scene or

anything in it and, for that purpose, detain and search the person,

f) remove or cause to be removed an obstruction from the crime scene,

g) perform any necessary investigation, including, for example, search the crime scene and inspect

anything in it to obtain evidence of the commission of an offence,

h) for the purpose of performing any necessary investigation, conduct any examination or process,

i) open anything at the crime scene that is locked,

j) take electricity, gas or any other utility, for use at the crime scene,

k) direct the occupier of the premises or a person apparently involved in the management or control

of the premises to maintain a continuous supply of electricity at the premises,

l) photograph or otherwise record the crime scene and anything in it,

m) seize and detain all or part of a thing that might provide evidence of the commission of an

offence,

n) dig up anything at the crime scene,

o) remove wall or ceiling linings or floors of a building, or panels of a vehicle,

p) any other function reasonably necessary or incidental to a function conferred by this subsection.

2) The power conferred by this section to seize and detain a thing includes:

a) a power to remove the thing from the crime scene when it is found, and

b) a power to guard the thing in or on the crime scene.

3) Nothing in this Part prevents a police officer who is lawfully on premises from exercising a crime scene

power or doing any other thing, if the occupier of the premises consents. Any such consent must, as far

as is reasonably practicable, be in writing.

4) The occupier of premises may consent to the exercise of crime scene powers on the premises only if the

occupier is, before giving consent, informed by a police officer of the following:

a) the crime scene powers proposed to be exercised on the premises;

b) the reasons for exercising those powers;

c) the right of the occupier to refuse consent.

South Australia

In South Australia, police powers of entry and search are presented in Part 15 of the Summary Offences Act 1953 (SA).

The police officer named in any such warrant, approved by the commissioner, may at any time of the day or night

exercise all or any of the following powers:

a) the officer may, with such assistants as he or she thinks necessary, enter into, break open and

search any house, building, premises or place where he or she has reasonable cause to suspect

that –

i) an offence has been recently committed, or is about to be committed; or

ii) there are stolen goods; or

iii) there is anything that may afford evidence as to the commission of an offence; or

iv) there is anything that may be intended to be used for the purpose of committing an offence;

b) the officer may break open and search any cupboards, drawers, chests, trunks, boxes, packages

or other things, whether fixtures or not, in which he or she has reasonable cause to suspect that—

i) there are stolen goods; or

ii) there is anything that may afford evidence as to the commission of an offence; or

iii) there is anything that may be intended to be used for the purpose of committing an offence;




6 December 2019

c) the officer may seize any such goods or things to be dealt with according to law (Summary

Offences Act, 1953 [SA], s67).

The police have extensive powers to investigate suspected criminal offences. They can search premises, vehicles and

vessels (ships and boats) and seize property when:

• a person consents to the search of their property

• the police have valid search warrants (which are issued under various acts, some requiring court authorisation)

• the police have no search warrants, in which case they have reasonable cause to suspect stolen goods or

evidence of the commission of an offence.

Victoria

Crime scene powers in Victoria are described in the Victoria Police Act 2013, under Part 14 of Division 3. Under section

64, the following are the powers of entry and search without warrant, which require a signed acknowledgement of the

occupier beforehand:

1) If a police officer believes on reasonable grounds that a person has committed or is committing a relevant

offence, the police officer, with the consent of the occupier of premises, may—

a) enter and search the premises (including any vehicle on the premises); and

b) exercise a power referred to in subsection (2) and (3) at the premises.

2) The police officer may—

a) seize anything the officer finds on the premises if he or she believes on reasonable grounds the

thing is connected with the alleged offence; and

b) examine, take and keep samples of any things the officer finds on the premises if he or she

believes on reasonable grounds the things are connected with the alleged offence; and

c) in the case of any document on the premises, do any of the following in relation to the document,

if the officer believes on reasonable grounds the document is connected with the alleged

offence—

i) require the document to be produced for examination; and

ii) examine, make copies or take extracts from the document, or arrange for the making of

copies or the taking of extracts; and

iii) remove the document for so long as is reasonably necessary to make copies or

take extracts from the document.

3) The police officer may make any still or moving image or audio-visual recording if he or she believes on

reasonable grounds it is necessary to do so for the purpose of establishing the alleged offence (Victoria

Police Act 2013, s264)

In most cases, a search warrant issued under section 267(2) will have been obtained, which authorises the police officer

named in the warrant to enter the premises or vehicle specified in the warrant—by force, if necessary—and to any of

the following:

a) if the officer believes on reasonable grounds that a thing, or thing of a particular kind, named or described

in the warrant is connected with the alleged offence—

i) search for the thing;

ii) seize the thing;

iii) secure the thing against interference;

iv) examine, inspect and take and keep samples of the thing;

b) in the case of any document, or document of a particular kind, named or described in the warrant, if the

officer believes on reasonable grounds that the document is connected with the alleged offence—

i) require the document to be produced for inspection;




6 December 2019

ii) examine, make copies or take extracts from the document, or arrange for the making of copies

or the taking of extracts;

iii) remove the document for so long as is reasonably necessary to make copies or take extracts from

the document;

c) make any still or moving image or audio–visual recording of anything of a particular kind named or

described in the warrant, if the officer believes on reasonable grounds that it is connected with the alleged

offence (Victoria Police Act 2013, s268).

Western Australia

In Western Australia, the crime scene powers are all presented in the Criminal Investigation Act 2006 (WA) Part 5 of

Division 2 (without warrant) and Division 3 (with warrant).

In regard to searching without a warrant, a police officer has search powers in public open areas:

a) If an officer reasonably suspects—

i) that a thing relevant to an offence; or

ii) that a person against whom an offence may have been, or may be being, committed …

is in a public open area, then, subject to this section, the officer may exercise in the area any of the

powers that could be exercised under a search warrant if it were issued in respect of the area for

the purposes of searching it for the thing or person.

a) An officer exercising such a power must not damage or destroy any thing in the public open area, or dig

up the ground, or seize anything that is attached to the land, without the informed consent of the person

who has the control or management of the area.

b) Subsection (2) does not prevent the seizing of any plant that it is unlawful to possess.

c) This section does not prevent an officer from applying for a search warrant for a place that is a public

open area (Criminal Investigation Act 2006, s33).

In regard to retrieving evidence as a result of a serious offence (five years imprisonment or more), section 40 of the

Criminal Investigation Act 2006 highlights the following powers:

1) If a police officer reasonably suspects—

a) that a serious offence has been or is being committed in a place; or

b) that there is in a place a thing relevant to a serious offence,

2) the officer may enter the place and, under Section 46, establish a protected forensic area there.

3) A police officer may only exercise the power in subsection (2) in a public open area if the officer reasonably

suspects that it is necessary to do so—

a) to prevent a thing relevant to the serious offence that is or may be in the area from being

concealed or disturbed until the area has been properly inspected or examined; or

b) to protect the safety of any person who is in or may enter the area.

4) A police officer may only exercise the power in subsection (2) in a place that is not a public open area if

the officer reasonably suspects that in the time it would take to get a search warrant—

a) a thing relevant to the serious offence that is or may be in the place is likely to be concealed or

disturbed; or

b) the safety of a person who is in or may enter the place is likely to be endangered.

Northern Territory

The crime scene powers that are established in the Northern Territory are presented in Part VII of Division 2 of the Police

Administration Act 1978 (NT). Under section 117 of this act, when a police officer has reasonable grounds for having

certain beliefs about the crime scene, the following powers can be enacted:




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a) [if] anything connected with an offence may be concealed on the person of, in the clothing that is being

worn by or in any property in the immediate control of, a person, the justice of the peace may issue a

search warrant authorising a member of the Police Force named in the warrant to search the person of,

the clothing that is being worn by or property in the immediate control of, the person and seize any such

thing that he may find in the course of the search.

b) [if] anything relating to an offence, the justice of the peace may issue a search warrant authorising

a member of the Police Force named in the warrant to enter and search the place and seize anything

relating to an offence found in the course of the search at the place.

Under section119 of this act, police officers have the power to conduct urgent searches without warrant in the following

situations:

1) A member of the Police Force may, in circumstances of such seriousness and urgency as to require and

justify immediate search or entry without the authority of an order of a court or of a warrant issued under

this Part, without warrant:

a) search the person of, the clothing that is being worn by and property in the immediate control

of, a person reasonably suspected by him to be carrying anything connected with an offence; or

b) enter a place at which he believes, on reasonable grounds, that anything connected with an

offence is situated and search the place.

2) A member who exercises a power under subsection (1) may seize anything found in the course of the

search if the member believes on reasonable grounds it is necessary to do so because the thing:

a) is connected with an offence; or

b) may significantly increase the risk to the health or safety of a particular person or the public.

3) A member of the Police Force who believes on reasonable grounds that a person is carrying an offensive

weapon may search the person for any such weapon and seize such weapon if it is found on the person.

4) A member of the Police Force who believes on reasonable grounds that an offensive weapon is being

carried in an aircraft, ship, train or vehicle may enter the aircraft, ship, train or vehicle and seize an

offensive weapon found in it.

5) The power of seizure under this section includes the power to:

a) remove the thing that is seized from the place where it is found; and

b) guard the thing that is seized at the place where it is found.

6) The powers given by this section are in addition to and shall not derogate from any other powers of a member of

the Police Force.

Tasmania

Crime scene powers in Tasmania are covered in the Police Offences Act 1935, which consolidate and amend the law

relating to certain offences that are summarily punishable, as well as to the provision for certain police powers. According

to section 63A(1) of the Police Offences Act 1935, a police officer is authorised to do any of the following at, or in relation

to, the crime scene as below:

a) direct a person to leave the crime scene or remove a vehicle, vessel or aircraft from the crime

scene;

b) remove from the crime scene—

i) a person who fails to leave the crime scene when directed to do so; or

ii) a vehicle, vessel or aircraft that a person fails to remove from the crime scene when

directed to do so;

c) direct a person not to enter the crime scene;

d) prevent a person from entering the crime scene;

e) prevent a person from removing evidence from, or otherwise interfering with, the crime scene or

anything in it and, for that purpose, detain and search the person;

f) remove, or cause to be removed, an obstruction from the crime scene;




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g) perform any necessary investigation including, for example, searching the crime scene without

warrant and inspecting anything in it to obtain evidence of the commission of an offence or

crime;

h) for the purpose of performing any necessary investigation, conduct any examination or process;

i) open anything at the crime scene whether or not it is locked;

j) take electricity, gas or any other utility for use at the crime scene;

k) direct the occupier of the premises or a person apparently involved in the management or control

of the premises to maintain a continuous supply of electricity at the premises;

l) photograph or otherwise record the crime scene and anything in it;

m) seize and detain all or part of a thing that might provide evidence of the commission of an

offence or crime;

n) dig up anything at the crime scene;

o) remove roofing material, wall or ceiling linings or floors of a building, or panel linings of a vehicle;

p) any other function reasonably necessary or incidental to a function conferred by this subsection.

2) A person must not fail to comply with a direction given under subsection (1). Penalty: Fine not exceeding

80 penalty units.

3) A police officer may arrest, without warrant, a person who fails to comply with a direction given under

subsection (1).

4) An authorisation conferred by this section to seize and retain a thing includes—

a) the authority to remove the thing from the crime scene when it is found; and

b) the authority to guard the thing in or on the crime scene.

5) A police officer may use such force as is reasonably necessary for the purposes of exercising an

authorisation conferred by this section.

6) Nothing in this Division prevents a police officer who is lawfully on premises from using an authorisation

referred to in subsection (1) or doing any other thing if the occupier of the premise’s consents.

Summary of Crime Scene Powers and Legislation

In most Australian jurisdictions, police do not have the power to search a person or premises without a search warrant

unless specified circumstances exist that permit them. In Queensland, police officers have the power to enter a premise

without a warrant, but only in these circumstances:

• to arrest a person that they reasonably suspect is in the premises

• to conduct a breathalyser test

• to serve a legal document or notice

• to search for evidence that is reasonably suspected to be destroyed or hidden

• to reach a crime scene

• to detain someone under an anti-terrorism preventative detention order

• if someone is seriously injured in the premises.

In New South Wales, police generally must apply for the issue of a search warrant under the LEPRA if they wish to collect

evidence of an offence. Before issuing a search warrant, a justice of the peace, magistrate or judge must be satisfied that

reasonable grounds exist to believe that there will be—or that there is—evidence and that this evidence will likely lead

to an arrest.

In Victoria, police do not have the power to enter and search a place or search a person unless:

• the occupier or person consents to the search

• the police believe that a serious offence has or will be committed

• the police believe that drugs are present

• there is a fight in progress

• an intervention order has been breached.




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SECTION 4—OVERVIEW: THE OPERATION OF CRIME SCENE

POWERS

According to the ACT Policing submission, in 2018, the ACT ‘introduced amendments to the Crimes Act 1900 (ACT) that

gave police greater powers to establish a crime scene where the consent of the property owner could not be obtained’.

These amendments were implemented after several incidents in which suspected OMCG members were victims of

shootings. In each case, the victim refused to cooperate with police investigations, and there was real or potential

evidence loss during the period required to obtain a search warrant.

4.1 INCREASED CONCERN ABOUT ORGANISED CRIME AND CRIMINAL GANGS

There has been a national increased concern about the operation of organised crime and criminal gangs, including

OMCGs. Violence linked to OMCGs has escalated since 2015, which could further lead to a range of serious harms to

victims and the community in the ACT (Trask & Inman, 2018). Between November 2016 and May 2017, 30 OMCG-linked

incidents have been recorded (Trask & Inman, 2018), including:

• 14 November 2016—three balaclava-clad intruders burst into a Crace home during an aggravated burglary

• 16 November 2016—suspected shooting in Calwell, also linked to gang activity

• July 2017—a series of high-profile shootings and arson attacks

• 25 November 2017—public five-on-one bashing in Fyshwick.

4.2 IMMEDIATE BACKGROUND TO THE NEW CRIME SCENE POWERS IN 2017

In early 2016, an investigation into a drive-by shooting revealed that crime scene powers—which give police the ability

to preserve evidence—would be beneficial for targeting organised crime in the territory:

In February 2016, police received information from a source that a drive-by shooting had occurred

at an OMCG member’s property. Police attended the home and spoke with the victim who denied

that a shooting had taken place and declined to give police consent to search. Police observed

damage from what appeared to be shotgun pellets to several surfaces at the front of the home.

Tradesmen were already on site in the process of removing and replacing the damage. Police

considered applying for a search warrant under section 205 Crimes Act however it was apparent

that any evidence would be destroyed by the time the warrant was issued. The application for the

warrant was abandoned. A suspect was identified and during the execution of a later search

warrant at the suspect’s apartment, a shotgun was recovered from a common area near his unit.

In the absence of any forensic evidence from the scene of the offence, it was not possible to link

the shotgun to the shooting. (Ramsey, 2017, p. 2)

To avoid losing evidence, but also to counter uncooperative victims, the Crimes (Police Powers and Firearms Offence)

Amendment Act 2017 was proposed. It provides:

a) a specific offence to capture the conduct of “discharging firearm at building or conveyance”; and

b) [a] new division about crime scene powers.

These new crime scene powers that are provided to police officers are thoroughly described in the following section.

Criticism of the new powers included comments from the ACT Bar Association and the ACT Law Society, who argued

that the new powers were flawed:




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The new crime scene powers contained in the Crimes (Police Powers and Firearms Offence)

Amendment Bill 2017 have been drawn so widely that it would permit police officers to enter any

premises without a warrant to investigate offences such a bike theft or shoplifting a chocolate bar

from the local cafe. The premises need not even be the premises of the person who is suspected of

stealing. Determined to be 'seen to do something' about drive-by shootings, the ACT Government

has introduced legislation that fundamentally changes the relationship between citizen and state.

(ACT Law Society, 2017, p. 1)

Such concerns are echoed by the Australian Capital Territory Human Rights Commission (ACTHRC), who noted in their

that:

While various safeguards have been included in the legislation, we are aware that concerns have

been raised about the breadth of these powers. The ACT Bar Association and the ACT Law Society,

for example, have expressed concerns that the ACT’s crime scene powers are more expansive than

those introduced in other jurisdictions.

The ACTHRC has suggested that due to these concerns, attention should be paid to whether these laws should be

subject to additional safeguards.

4.3 THE NEW DIVISION 10.4A

The new crime scene powers are set out in Part 10 of Division 10.4A of the Crime Act 1900 (ACT). The new Division 10.4A

‘Crime Scene Powers’ was added under section 10.4 of the same act—'Powers to Stop and Search’. Section 210A includes

the relevant definition, while the following sections (210B to 210L) set out the new statutory crime scene police powers.

Section 210A: The meaning of ‘crime scene powers’

Section 210A includes the definitions of some relevant terms:

• Crime scene means a crime scene as established under section 210E.

• Crime scene powers mean a power that is exercisable by a police officer as under section 210G.

• Private premises signify premises other than a public place.

• Serious offence means

a) an offence punishable by imprisonment for 5 years or longer; or

b) an offence arising out of the use of a motor vehicle that has resulted in the death or serious injury of a

person; or

c) a family violence offence within the meaning of the Family Violence Act 2016; or

d) an offence in another jurisdiction that would be a serious offence if committed in the ACT.

Section 210B: The meaning of ‘public place’

The term ‘public space’ is also defined under section 210B, in which it means a:

a) public unleased land; or

b) premises to which the public, or a section of the public, has access, whether by payment or not.

The section also provides some examples of public places, such as a public library or cultural institution, government

school or educational facility, public hospital or medical centre, vehicle used for public transport, or public park or nature

reserve.

This section also provides information regarding what public space does not include, such as:




6 December 2019

a) public unleased land that a person is authorised to use under a public unleased land permit; or

b) other premises that a person is authorised to use as a residence or for another private purpose.

It offers examples of premises that are authorised for private purposes, such as a retail shop, restaurant or hotel, private

hospital or medical centre, private school or educational institution, or place of worship.

Section 210C: Establishing a crime scene in a public place

Before the Crimes (Police Powers and Firearms Offence) Amendment Act 2017, police had no ‘express statutory power to

establish and control a crime scene in a public place or private premises’ (Ramsey, 2017, p. 2). They had powers to enter

premises, but they were very limited.

Under section 210C, a police officer may establish a crime scene at a public place if the police officer:

(a) reasonably suspects that an offence punishable by a term of imprisonment has been or is being committed at the

place or somewhere else within or outside the ACT; and

(b) considers that it is reasonably necessary to immediately establish a crime scene at the public place to protect or

preserve evidence relating to the offence.

Until the Crimes (Police Powers and Firearms Offence) Amendment Act 2017 was implemented, the inability to secure a

crime scene in a public place meant that police had no power to ‘exclude or remove persons who may be deliberately

or inadvertently interfering with evidence’ (Ramsey, 2017, p. 2). Once again, in the context of criminal gangs, members

or victims of gang members are less likely to authorise entry and/or recognise victimisation due to fear for their own

safety (Robertson, 2012; Stolz, 2013), which justifies the implementation of such powers.

However, it is important to consider that if:

It is not immediately necessary to establish a crime scene in a public place the police officer should

apply for a search warrant under sections 194 or 205 of the Crimes Act or use a power under

another Territory law. (Ramsey, 2017, p. 9)

Section 210D: Establishing a crime scene in a private place

As cited in section 210D, a police officer may establish a crime scene at a private place if the police officer:

a) reasonably suspects that an offence punishable by a term of imprisonment has been or is being

committed at the premises or somewhere else within or outside the ACT; and

b) considers that it is reasonably necessary to immediately establish a crime scene at the premises to protect

or preserve evidence relating to the offence; and

c) consent has been given by—

i) if the premises are occupied—the occupier of the premises; or

ii) if the premises are not occupied—the owner of the premises.

However, a police officer may establish a crime scene at private premises without consent if:

a) the police officer reasonably suspects that the offence is a serious offence; and

b) the police officer—

i) has made reasonable attempts to obtain the consent of—

A. if the premises are occupied—the occupier of the premises; or

B. if the premises are not occupied—the owner of the premises; or

i) considers that it is reasonably necessary in the circumstances to establish a crime scene without

consent.




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When seeking the consent of the owner or occupier of the premises, the police officer must tell the owner or occupier:

a) if reasonably appropriate in the circumstances—the offence to which the crime scene relates; and

b) the expected duration of the crime scene.

If the police officer establishes the crime scene at the premises without consent, then the officer must take reasonable

steps to tell the owner or occupier:

a) that a crime scene has been established at the premises; and

b) if reasonably appropriate in the circumstances—the offence to which the crime scene relates; and

c) the expected duration of the crime scene.

In relation to subsections (3)(a) and (4)(b), it is enough that the offence is described in general terms; it is not necessary

to describe the offence precisely or using technical language.

That the Crimes (Police Powers and Firearms Offence) Amendment Act 2017 covers the police officer’s duty to obtain the

consent of the occupier or owner of the premises on which a crime scene may be established, or take reasonable steps

to notify the owner or occupier that a crime scene has been established, is in accordance with the Human Rights Act

2004 (s28).

Section 210E: When a crime scene is established

Section 210E outlines the circumstances in which a crime scene can be established at a place:

a) If it is reasonably necessary to immediately start exercising crime scene powers at the place—a police

officer starts exercising the crime scene powers; or

b) In any other case—a police officer makes a record that a crime scene is established at the place.

If a crime scene is established under subsection (1)(a), a police officer must make a record of this as soon as practicable

after the crime scene is established. The record must include:

a) The day and time the crime scene is established; and

b) The place where the crime scene is established; and

c) The reason for establishing the crime scene.

This crime scene record aligns with the crime scene management skills that are considered an extremely significant

component of investigation (Gehl & Plecas, 2019).

Section 210F: Senior police officer to be notified of the crime scene

Under section 210F, after a crime scene has been established, a police officer must notify a senior police officer—of or

above the rank of sergeant—that the crime scene has been established. The first respondent, usually the patrol constable,

has been known to often require the opinion of a more experienced police officer to oversee any decision (Julian et al.,

2012; Ramsey, 2017).

Section 210G: Crime scene powers

This section outlines the crime scene powers that can be used once the police officer has established the crime scene. A

power can be exercised if ‘it is reasonably necessary to immediately exercise the power to protect or preserve evidence

relating to the offence’ (Crimes [Police Powers and Firearms Offence] Amendment Act 2017, s210G [1]). Section 210G

presents the new powers, such as the ability to:

a) enter the place, or any part of the place;

b) enter any other premises to access the place;




6 December 2019

c) control the movement of people or things at the place;

d) direct a person at the premises to give the police officer the person’s name and home address;

e) if the police officer reasonably suspects a person possesses evidence removed from the premises or has

interfered with evidence at the premises—use reasonable and necessary force to detain, and conduct a

frisk search or ordinary search of, the person;

f) do any of the following in relation to all or part of a thing that might reasonably be evidence relevant to

the commission of an offence:

i) cover the thing at the place;

ii) move the thing within the place

iii) photograph and in any other appropriate way record the thing before anything is done with the

thing under subparagraphs (i) or (ii);

g) if the place is a conveyance—remove the conveyance from its original location and take it to a secure

place.

For all the previously presented powers, police officers must use reasonable and necessary force to perform the listed

actions.

In contrast to the crime scene powers of Queensland, New South Wales and Victoria, it is important to note that ACT

police officers in this case do not have the power to search premises on which a crime scene has been established.

According to Ramsey (2017, p. 11):

The power to search has not been included to ensure that the powers conferred on police are

proportionate to a person’s right to privacy and ensures that a search will generally be authorized

with judicial oversight.

Section 210H: Crime scene duration

According to section 210H, the crime scene of an offence becomes active when it is established at a place in accordance

with section 201E, and continues to be active until the earliest of the following has occurred:

a) if the crime scene is established at private premises—6 hours have elapsed;

b) if the crime scene is established in relation to a conveyance moved under section 210G (2)(g)—48 hours

have elapsed;

c) the consent of the owner or occupier of the premises under section 210D(1) to establish the crime scene

(other than in relation to a serious offence) is withdrawn;

d) a police officer starts executing a warrant to search the place;

e) an application for a warrant to search the place is refused;

f) it is no longer reasonably necessary to protect or preserve evidence at the place in relation to the offence.

According to Ramsey (2017, p. 18), this section provides that a crime scene can be established at a private premise only

for the time that is reasonably necessary to preserve evidence, and for no longer than six hours unless a search warrant

is obtained. However, a time mentioned in subsection (1)(a) does not apply to a crime scene if the owner or occupier of

the place consents to the crime scene continuing to be active after the stated time.

The six-hours limit seems reasonable in comparison to the three hours that are prescribed in the LEPRA section 92(3)

and the Queensland legislation that requires a crime scene warrant to be applied for as soon as practicable after the

crime scene has been established under the Police Powers and Responsibilities Act 2000 (Qld) section164. These extra

three hours allow for the preparation of a search warrant application in more complex cases.




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Section 210I: Crime scene—frequency

According to section 210I, a crime scene must not be established at a private premise in relation to an offence more

than once in a 24-hour period. However, a crime scene may be established at a private premise for a second or

subsequent time in a 24-hour period if the crime scene is established in relation to another offence arising out of a

different course of conduct.

Section 210J: Crime scene obligations—all places

Section 210J refers to the crime scene obligations of police officers in all kinds of premises. In this respect, if a police

officer gives a person at a crime scene a direction or proposes to detain and search a person, the police officer must

then:

a) tell the person—

i) that a crime scene has been established; and

ii) if appropriate in the circumstances—the offence to which the crime scene relates; and

b) if a direction is given to the person—give the person a reasonable opportunity to comply with the

direction.

If a police officer fails or misuses their powers ‘whether deliberate or otherwise could be cause for evidence to be ruled

inadmissible, including any and all evidence obtained “downstream” from such an abuse’ (Ramsey, 2017, p. 12).

Section 210K: Crime scene obligations—conveyances

Section 210K refers to a police officer’s crime scene obligation to notify the owner if a conveyance has been removed

from its original location and taken to a secure place, as stipulated in section 210G(2)(g), as well as that a crime scene

has been established.

Section 210L: Fail to comply to direction

Under section 201L, a person commits an offence if he or she refuses to comply with a direction given by a police officer

exercising a crime scene power. The maximum penalty of this failure to comply is 200 penalty units, imprisonment for

two years or both.

However, it is stipulated that it is a defence against this section if the defendant proves that he or she was not given a

reasonable opportunity to comply with the direction. The defendant has a legal burden in relation to the matters

mentioned in section (2) (see Criminal Code 2002, s59).

According to Ramsey (2017, p. 12):

Any person concerned about the exercise of police powers can raise concerns in one of a number

of ways. Members of the public can make complaints against ACT Policing to the Australian

Federal Police (AFP) Professional Standards. The Australian Commission for Law Enforcement

Integrity (ACLEI) and the Law Enforcement Ombudsman have oversight of the AFP complaint

process. A person may report a corruption issue directly to ACLEI, which is an independent and

proactive oversight body established to detect and prevent serious or systemic corruption.

Alternatively, a person may complain directly to the Law Enforcement Ombudsman about the AFP,

where there is a reason the person cannot approach the AFP about the complaint, or where the

person is not satisfied with the way the AFP has handled the complaint process.




6 December 2019

4.4 A QUALITATIVE AND QUANTITATIVE ANALYSIS OF THE NEW CRIME SCENE POWERS

The legislation, under section 210M, required that the Attorney-General review the operation of this division as soon as

practicable after the end of the first year of operation. To do so, several stakeholders (the DPP, Legal Aid ACT, ACTHRC

and ACT Policing) were invited to offer feedback regarding the effectiveness of the existing crime scene laws. The

following constitute a mix of quantitative and qualitative analyses of recurrent themes.

Legal Aid ACT made no comment regarding the operation and practical application of the crime scene powers in Division

10.4A of the Crimes Act 1900 (ACT). They stated that they ‘consider the powers to be a necessary and proportionate

response to what was a genuine operational gap’.

According to the DPP the main dilemma surrounding the new crime scene powers is that such powers limit the privacy

rights of victims, suspects and members of the community. Conversely, society has a compelling interest in imposing

limited and reasonable intrusions on privacy rights to ensure the security of those who live with them. The DPP also

mentions that this tension is an inherent feature in most police powers. Justice Lockhart discussed in Crowley v. Murphy1

that:

From the standpoint of principle it seems to me that the law must strive to reconcile two highly

important interests which are liable to come into conflict - (a) the interest of the citizen to be

protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interests

of the State to secure that evidence bearing upon the commission of crime and necessary to enable

justice to be done shall not be withheld from Courts of law on any merely formal or technical

ground. Neither of these objects can be insisted upon to the uttermost. The protection of the citizen

is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high-

handed interference, and the common sanction is an action of damages. The protection is not

intended as a protection for the guilty citizen against the efforts of the public prosecutor to

vindicate the law. On the other hand, the interest of the State cannot be magnified to the point of

causing all these safeguards for the protection of the citizen to vanish, and of offering a positive

inducement to the authorities to proceed by irregular methods.

According to the DPP, Division 10.4A of the act, as currently drafted, has been carefully calibrated to strike an appropriate

balance between those competing rights. The ACTHRC supported this point by stating ‘that legislative clarification of

the authority of police to secure a crime scene in order to preserve evidence while a search warrant is being obtained

is a legitimate objective’. The DPP and the ACTHRC also agreed that Division 10.4A is subject to several limitations and

safeguards to prevent its misuse. For example, it should be noted that the duration for exercising a specific power cannot

exceed six hours unless a warrant is obtained by a judicial officer, and that the power can only be exercised when

reasonably necessary (as it is a proposition that can be reviewed after the fact by a Court).

However, the ACTHRC observed that these powers inevitably involve limitations on human rights, including the rights

to protection of the family and children (Human Rights Act 2004, s11), privacy and home (Human Rights Act 2004, s12)

and freedom of movement (Human Rights Act 2004, s13). Additionally, although various safeguards have been included

in the legislation (as previously stated), concerns have been raised regarding the breadth of these powers. Indeed, the

ACTHRC, the ACT Bar Association and the ACT Law Society have expressed their concerns that the ACT’s crime scene

powers are more expansive than those introduced in other jurisdictions. According to the ACT Law Society (2017, p. 1):

Legislation in other jurisdictions typically contain a range of protections (such as higher offence

thresholds and the requirements to obtain a warrant as soon as practicable after establishing a

crime scene), that are lacking in the ACT legislation.

1 Crowley v. Murphy [1981] FCA 26; 34 ALR 496; 52 FLR 123.




6 December 2019

Conclusion

The ACT’s crime scene powers provide police with a useful investigative tool, and they have been used minimally and

for appropriate offences. No formal complaints have been lodged in relation to the use of crime scene powers.




6 December 2019

SECTION 5—ORGANISED CRIME IN AUSTRALIA

5.1 DEFINING ORGANISED CRIME

In 2018, the Australian Institute of Criminology estimated the cost of serious and organised crime in Australia for 2016

to 2017 to be AU$47.4 billion (Smith, 2018). Although there has been a general acceptance of organised crime as a

threat, there has also been considerable debate regarding what constitutes organised crime (Beare, 2003; Bersten, 1990;

Edwards & Gill, 2003; Korsell & Larsson, 2011). As the Australian Institute of Criminology has noted, ‘One of the

challenges in conducting research into organised crime is to adopt an operational definition that is both workable and

useful’ (Broadhurst, Masters, Smith & Brown, 2018, p. 1). So, what do we mean by this term?

INTERPOL framed its discussion of organised crime in terms of criminal activity:

Organised networks are typically involved in many different types of criminal activity spanning

several countries. These activities may include trafficking in humans, illicit goods, weapons and

drugs, armed robbery, counterfeiting and money laundering. (INTERPOL, 2019, p. 1)

The United Nations Convention against Transnational Organised Crime (2004) indicated that organised crime groups

have several elements—including the non-random formation of a group of three or more persons that existed for a

certain time and that acted with the aim of committing at least one crime punishable by at least four years' incarceration

(United Nations Office on Drugs and Crime, 2004). The United Nations Office on Drugs and Crime (UNODC) has

recognised that organised crime has become diversified and more transnational:

Organised crime is not stagnant but adapts as new crimes emerge and as relationships between

criminal networks become both more flexible and more sophisticated, with ever-greater reach

around the globe. (United Nations Office on Drugs and Crime, 2015, p.1)

The European Union’s law enforcement agency, EUROPOL, has called for a new definition of organised crime (EUROPOL,

2015, 2017). It had previously observed that:

The group structures that dominate fictional representations of organised crime are disintegrating

and will increasingly give way to an organised crime landscape dominated by loose networks

made up of individual criminal entrepreneurs who interact and conduct their business in a shared,

and often digital, criminal underworld. (EUROPOL, 2015, p. 11)

In 2017, EUROPOL noted in its report on organised crime that criminal organisations were diverse in structure and make-

up and that they engaged in poly-criminality across multiple markets (EUROPOL, 2017).

The Queensland Taskforce on Organised Crime Legislation (henceforth known as the Wilson report) referred to the

changing nature of organised crime:

Organised crime is constantly evolving. It exists in a dynamic environment ‘not exclusive to certain

geographical areas, to singular ethnic groups or to particular social systems’ … The nature of the

modern-day crime landscape is such that those old-style traditional groups are no longer so

prominent. (Taskforce on Organised Crime Legislation, 2016, p. 13)

The New South Wales Crime Commission acknowledged that ‘organised crime groups undertake a wider range of

criminal activities with greater complexity’ (New South Wales Crime Commission, 2013, p. 3). In its 2017 organised crime

disruption strategy, the Commission outlined that organised crime groups now have interchangeable structures, use

technology more often and are becoming more globalised:




6 December 2019

Over the past several years organised crime in NSW has evolved as a result of globalisation and

transnational drug trafficking and money laundering. There are dozens of major organised crime

groups operating in NSW. These include: European-Australian Networks, North Asian Networks,

Outlaw Motorcycle Gangs, East and Southeast Asian gangs, Latin and South American Cartels and

Middle Eastern gangs. (New South Wales Crime Commission, 2017, p. 4)

As has been noted, organised crime can be ‘sophisticated, extending across time and place’ (Mann, 2017, p. 383). These

definitions show that organised crime is constantly changing, and that law enforcement faces a constant battle of staying

‘in front of the game’ as it combats organised crime groups.

5.2 THE INTERNATIONAL APPROACHES TO ORGANISED CRIME

This section aims to examine the effectiveness of the various strategies and tools that were developed internationally to

fight organised crime. These legislative responses and strategies are highly varied; for example, some laws target either

individuals on the basis of their participation in organised crime groups’ or the groups themselves by focusing on their

criminal enterprises, their objectives, their impact and/or their structures (Ayling & Broadhurst, 2014; Gabor, 2003;

Wilson, 2015).

a. THE NORTH AMERICAN APPROACH

United States legislation targeting organised crime

In terms of criminal laws that target organised crime, the United States (US) use the Organised Crime Control Act 1970

(OCCA), whose purpose is to:

Seek the eradication of organized crime in the United States by strengthening the legal tools in

the evidence-gathering process, by establishing new penal prohibitions, and by providing

enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in

organized crime. (OCCA 1970, s1)

One part of the US’s response to organised crime is the Racketeer Influenced and Corrupt Organizations Act (RICO Act)

(Chapter 96, Title 18, United States Code, s1961–68), which provides extended penalties and a civil cause of action for

criminal acts that are performed as part of an ongoing criminal organisation. This act was enacted in response to the

increased concerns regarding the Italian mafia (U.S. Department of Justice, 2009).

The 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. (OCCA, 1970 [US], Pub L 91–452, 84 stat 922, 923)

Under the RICO Act, it is a crime to belong to an enterprise—‘any sort of official or legal entity (a partnership, corporation,

association, union and so on) and “any group of individuals associated in fact although not a legal entity” ’ (RICO Act, 18

USC. s1961[4])—that is involved in a ‘pattern of racketeering activity’, which includes acts or threats of murder,

kidnapping, arson, robbery, extorsion and drug dealing (RICO Act, 18 USC. s1961[1]).

This act outlines four racketeering offences:

a) 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’;

b) having an interest in an enterprise through a pattern or racketeering activity or collection of an unlawful

debt;




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c) involvement in the activities of an enterprise that is conducting a pattern or racketeering activities or the

collection of unlawful debt; and

d) conspiring to commit any of the above activities (RICO Act, 18 USC, s1962)

The penalty for racketeering is a maximum of 20 years imprisonment and/or a fine of US$250,000, which also provides

for the forfeiture of all proceeds of the crime plus any additional interest that is gained through racketeering (RICO Act,

18 USC, s1963).

Aside from the RICO Act, the US implemented the Continuing Criminal Enterprise Statute in 1987, which is a federal law

that targets large-scale drug traffickers who are responsible for long-term and elaborate drug conspiracies (Gabor, 2003).

It provides a:

Term of imprisonment which may not be less than 20 years and which may be up to life

imprisonment to a fine not to exceed the greater of that authorized in accordance with the

provisions of title 18 or $2,000,000 if the defendant is an individual or $5,000,000 if the defendant

is other than an individual. (Continuing Criminal Enterprise Statute [21 USC, s848])

The RICO Act also has asset forfeiture provisions that operate in addition to any interest or property that is obtained

directly or indirectly from racketeering (RICO Act, 18 USC, s1963[a]–[c]). The business ‘front’ implicated in the operation

of a RICO enterprise can simply be dissolved by court order (Wilson, 2015).

The RICO Act has been subject to considerable criticism, especially regarding its broad definition of racketeering (Gabor,

2003). Many individuals without organised crime connections have been wrongfully labelled as ‘racketeers’ (Abadinsky,

2003). Moreover, the RICO Act is subject to its complexity and resource intensiveness, in which ‘prosecution must explain

and prove to the jury the elements of “enterprise”, “pattern” and “racketeering activity” ‘ (Wilson, 2015, p. 186). Therefore,

only about a third of suspects investigated are charged (Gabor, 2003).

Canadian legislation targeting organised crime

In 1997, Canada and New Zealand became the first common-law jurisdictions to introduce specific offences against

criminal organisation in response to increased OMCG activities (Commonwealth of Australia, 2009). The Federal

Government was asked to respond to the problem of OMCGs in Quebec, so the Canadian Parliament enacted the Act to

Amend the Criminal Code (Criminal Organizations) and to Amend Other Acts in Consequence (Bill C–95). This enactment

added a new offence relating to participating in and contributing to the activities of criminal organisation (Criminal

Code, RSC 1985, c C–46, s467.1), new proceeds of crime forfeiture provisions that are based on the civil standard of proof

(Criminal Code, RSC 1985, c C–46, s490.1[2]), orders to ‘keep the peace’ or ‘peace bond’ (Criminal Code, RSC 1985, c C–

46, s810.01), consecutive sentencing provisions (Criminal Code, RSC 1985, c C–46, s467.1) and police powers (Criminal

Code, RSC 1985, c C–46, s183 & 186).

In 2001, following a review, Bill C–95 was superseded and the Act to Amend the Criminal Code (Organized Crime and

Law Enforcement) and to Amend Other Acts in Consequence (Bill C–24) was enacted. Bill C–24 created numerous changes

to pre-existing laws, created new offences and even granted the police greater powers in their investigations. Bill C–24

also contained a new definition for organised crime, reduced the minimum number of members from five to three and

eliminated the need to show a pattern of activity in the last five years (Criminal Code, RSC 1985, c C–46, s467.1[1]).

Since 2001, the Criminal Code RSC 1985 provided for three offences targeting various levels of involvement in organised

crime offences, which carries a mandatory penalty of five years, 14 years and life imprisonment, respectively (Wilson,

2015):

a) Participation in activities of criminal organization (s. 467.11)

b) Commission of offence of criminal organization (s.467.12)

c) Instructing commission of offence for criminal organization (s.467.13).




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More recently in 2014, under an act to amend the Criminal Code and the National Defence Act (Criminal Organization

Recruitment) (c.17), Canada also introduced another offence of recruiting:

Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an

indictable offence under this Act or any other Act of Parliament, recruits, solicits, encourages, coerces or invites a

person to join the criminal organization, is guilty of an indictable offence and liable,

a) in the case where the person recruited, solicited, encouraged or invited is under 18 years of age, to

imprisonment for a term not exceeding five years, and to a minimum punishment of imprisonment for a

term of six months; and

b) in any other case, to imprisonment for a term not exceeding five years. (Criminal Code, RSC 1985, c C-

46, s.467.111)

Part XII.2, s. 462.37, of the Criminal Code RSC 1985 also implemented the forfeiture of proceeds of the crime:

If an offender is convicted, or discharged under section 730, of a designated offence and the court

imposing sentence on or discharging the offender, on application of the Attorney-General, is

satisfied, on a balance of probabilities, that any property is proceeds of crime obtained through

the commission of the designated offence, the court shall order that the property be forfeited to

Her Majesty to be disposed of as the Attorney-General directs or otherwise dealt with in accordance

with the law.

In terms of effectiveness, the laws were found to not be too vague or broad, and they have led to numerous successful

convictions of OMCG members (Wilson, 2015). However, many of those convictions in which the defendant pleaded

guilty to charges of murder, conspiracy to commit murder and drug trafficking, the ordinary criminal law would have

been sufficient (Schloenhardt, 2008).

b. THE EUROPEAN APPROACH

United Kingdom legislation targeting organised crime

In the United Kingdom, several pieces of legislation have been implemented to fight organised crime. First, there is a

common-law crime of conspiracy and a statutory provision that have been developed:

The common law of conspiracy applies to (1) agreements to defraud, whether or not the fraud

amounts to a crime, and (2) agreements to do an act which ‘tends to corrupt public morals or

outrage public decency’, whether or not these acts would amount to a crime if completed. The

statutory provision is included in section 1(1) of the Criminal Law Act 1977. This legislation

abolished all forms of common law conspiracy other than the two mentioned above. (Di Nicola,

Gounev, Levi, Rubin & Vettori, 2015, p. 434)

In accordance with the conspiracy laws, a person is guilty of committing an offence of conspiracy if:

He agrees with another person(s) to pursue a course of conduct which, if the agreement is carried

out in accordance with their intentions, either will involve the commission of any offence(s) by one

or more of the parties to the agreement, or would do so but for the existence of facts which render

the commission of the offence or any of the offences impossible. (Di Nicola et al., 2015, p. 434)

The offence to conspire does not require a victim’s report, nor the perpetration or completion of the crime, and the

penalty is equivalent to that for the completed offence (Di Nicola et al., 2015).

In 2002, another type of legislation was implemented that provides for the confiscation and restraint of the proceeds of

a crime under the Proceeds of Crime Act 2002 (c.29), which:




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Make provision about the appointment of its Director and his functions (including Revenue

functions), to provide for confiscation orders in relation to persons who benefit from criminal

conduct and for restraint orders to prohibit dealing with property, to allow the recovery of property

which is or represents property obtained through unlawful conduct or which is intended to be used

in unlawful conduct, to make provision about money laundering, to make provision about

investigations relating to benefit from criminal conduct or to property which is or represents

property obtained through unlawful conduct or to money laundering, to make provision to give

effect to overseas requests and orders made where property is found or believed to be obtained

through criminal conduct, and for connected purposes.

In their consideration of creating an offence for participating in a criminal organisation, the UK in the early 2000s decided

that unlike the US and Canada, who construct offences around organised crime, the UK would focus on increasing police

powers to investigate and prosecute serious crime (Wilson, 2015). In 2005, the Parliament passed the Serious Organised

Crime and Police Act 2005 (SOCPA) (UK), whose main purpose was the creation of the Serious Organised Crime Agency,

renamed the National Crime Agency in 2013 (Crime and Courts Act 2013, c.22). Overall, this act allowed for new strategies

that targeted the financial incentives of crime (SCOPA 2005 [UK], c.15, s76[1]), that strengthened the investigative powers

of the DPP (SCOPA 2005 [UK], c.15, s60–70) and that provided special close for offenders assisting investigations and

prosecutions (SCOPA 2005 [UK], c.15, s71–75B). It also allowed for new strategies that enhanced the protection of

witnesses and other persons (SCOPA 2005 [UK], c.15, s82-94) and the implementation of the proceeds of crime scheme

(SCOPA 2005 [UK], c.15, s97–109).

In 2007, to consolidate its response to organised crime, the UK enacted the Serious Crime Act 2007 (Wilson, 2015), which

was introduced to:

Make provision about serious crime prevention orders; to create offences in respect of the

encouragement or assistance of crime; to enable information to be shared or processed to prevent

fraud or for purposes relating to proceeds of crime; to enable data matching to be conducted both

in relation to fraud and for other purposes; to transfer functions of the Director of the Assets

Recovery Agency to the Serious Organised Crime Agency and other persons and to make further

provision in connection with the abolition of the Agency and the office of Director; to amend the

Proceeds of Crime Act 2002 in relation to certain investigations and in relation to accredited

financial investigators, management receivers and enforcement receivers, cash recovery

proceedings and search warrants; to extend stop and search powers in connection with incidents

involving serious violence; to make amendments relating to Her Majesty's Revenue and Customs

in connection with the regulation of investigatory powers; and for connected purposes. (Serious

Crime Act 2007, Introductory Text)

With the implementation of the Serious Crime Act 2007, the UK now has a specific tool that can be used to prevent

serious and organised crime, as well as manage those who are convicted of involvement in serious organised crime: the

serious crime prevention orders (SCPOs). The SCPOs are court orders that have been developed to ‘protect the public

by preventing, restricting or disrupting involvement by the person in serious crime’ (Serious Crime Act 2007, c.27, Part 1,

s1). According to Wilson (2015, p. 196), the following are the two scenarios in which the SCPOs can be used:

The first is when a person is convicted of a serious offence in the Crown Court […] Second, even if

a person has not been convicted of an offence, the Director of Public Prosecutions can bring an

application for a SCPO in the High Court. […] The High Court must be satisfied on the balance of

probabilities that the person has been involved in serious crime.

The SCPOs have several provisions for prohibitions, restrictions or requirements in relation to:

a) an individual's financial, property or business dealings or holdings;

b) an individual's working arrangements;




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c) the means by which an individual communicates or associates with others, or the persons with whom he

communicates or associates;

d) the premises to which an individual has access;

e) the use of any premises or item by an individual;

f) an individual's travel (whether within the United Kingdom, between the United Kingdom and other places

or otherwise) (Serious Crime Act 2007, c.27, Part 1, s5).

In 2009, the UK also implemented the Policing and Crime Act 2009 (UK) (c.26), which introduced another civil order

regime that targets lower-level organised crime (Wilson, 2015). Police can now apply for an injunction to prevent gang-

related violence and drug-dealing activities that are committed against a respondent aged 14 years or older if the first

and second conditions are met:

1) The first condition is that the court is satisfied on the balance of probabilities that the respondent has

engaged in or has encouraged or assisted—

a) gang-related violence, or

b) gang-related drug-dealing activity.

2) The second condition is that the court thinks it is necessary to grant the injunction for either or both of

the following purposes—

a) to prevent the respondent from engaging in, or encouraging or assisting, gang-related violence

or gang-related drug-dealing activity;

b) to protect the respondent from gang-related violence or gang-related drug-dealing activity

(Policing and Crime Act 2009, c.26, s.34).

In 2015, an amendment was made and the Serious Crime Act 2015 (c9) was enacted to:

Amend the Proceeds of Crime Act 2002, the Computer Misuse Act 1990, Part 4 of the Policing and

Crime Act 2009, section 1 of the Children and Young Persons Act 1933, the Sexual Offences Act

2003, the Street Offences Act 1959, the Female Genital Mutilation Act 2003, the Prohibition of

Female Genital Mutilation (Scotland) Act 2005, the Prison Act 1952 and the Terrorism Act 2006;

to make provision about involvement in organised crime groups and about serious crime

prevention orders; to make provision for the seizure and forfeiture of drug-cutting agents; to make

it an offence to possess an item that contains advice or guidance about committing sexual offences

against children; to create an offence in relation to controlling or coercive behaviour in intimate

or family relationships; to make provision for the prevention or restriction of the use of

communication devices by persons detained in custodial institutions; to make provision approving

for the purposes of section 8 of the European Union Act 2011 certain draft decisions under Article

352 of the Treaty on the Functioning of the European Union relating to serious crime; to make

provision about codes of practice that relate to the exercise and performance, in connection with

the prevention or detection of serious crime, of powers and duties in relation to communications;

and for connected purposes. (Serious Crime Act 2015, Introductory Text)

In terms of changes, the definition of ‘serious crime’ in the SCPOs regime now includes computer-related offences

(Serious Crime Act 2015, c9, s47[4], [8]), the Crown has the power to replace an SCPO in the case of a breach (Serious

Crime Act 2015, c9, s48) and SCPOs are allowed to extend beyond their terms in the case of reoffending or a breach of

the conditions (Serious Crime Act 2015, c9, s49).

In May 2015, a regulation of the Serious Crime Act 2015 (c52, reg 2[e]) made the ‘participation in the activities of an

organised crime group’ a new offence (Wilson, 2015, p. 202). This new offence can be used in addition to the existing

law relating to conspiracy, as it ‘complements the existing offence of conspiracy, which is central to the majority of law

enforcement investigations into organised crime’ (Di Nicola et al., 2015, p. 440).

There is a lack of analysis regarding the implementation of the Serious Crime Act 2007 and the SCPOs associated with it.

There were fears that, in the long term, law enforcement would find monitoring these orders problematic




6 December 2019

(Commonwealth of Australia, 2009). It was noted that monitoring would be ‘limited in number and directed to those

cases where the seriousness of the activity is such that the [prosecuting] authorities believe it necessary to take this

action’ (Wilson, 2015, p. 199).

Italian legislation targeting organised crime

To manage Mafia associations, Italy amended their Criminal Code 1889 by introducing 114 laws between 1982 and 1992

(Santino, 2015). The first law, Rognoni–La Torre Law (or ‘anti-mafia law’), was approved in September 1982 after the

murder of General-Prefect Dalla Chiesa. It defined Mafia as being an organised crime for the first time, and whoever was

found to be part of the Mafia organisation could be punished with three to six years imprisonment.

An organisation is considered a ‘Mafia type’ when its components use intimidation, subjection and, consequentially,

silence (omertà) to commit crimes and to directly or indirectly acquire the management or control of businesses,

concessions, authorisations, public contracts and public services with the intention of obtaining either unjust profits or

advantages for themselves or others (Criminal Code 1889, Article 416, bis c.c). The original title of the provision ‘Rognoni–

La Torre Law’ was changed to ‘Mafia type associations, including foreign ones’ in July 2008 (Di Nicola et al., 2015).

The penalties of the ‘Mafia type’ association are particularly severe:

From seven to twelve years for the membership and from nine to fourteen years of imprisonment

for those who promote, manage and organise such an association. In addition, each specific

offence (e.g. drug trafficking, extortions, homicides) that may be committed within the criminal

group shall be punished separately, thus further increasing the penalties. (Di Nicola et al., 2015, p.

402)

Another important feature of the anti-mafia law includes the different measures that allow the ‘confiscation of

possessions of illicit origin and the explicit authorization to subcontract public works’ (Santino, 2015). After the

assassination of anti-mafia judges Falcone and Borsellino in 1992, a legislation was implemented to alter the way that

mafia crimes were investigated and prosecuted in Italy (Commonwealth of Australia, 2009). The new 1992 amendment

also allowed statements that were made prior to a court hearing to be admissible, as many witnesses were disappearing

prior to the trial. These new laws also authorised the use of electronic surveillance and phone tapping under Article 266–

271 of the Criminal Code.

In terms of effectiveness, the number of reported convictions is low because ‘the offence contains a relatively high

number of elements that need to be proven at the same time’ (Di Nicola et al., 2015, p. 408)

The Netherlands legislation targeting organised crime

The Netherlands, as a member of the European Union, comply with the requirements of the Framework Decision on the

Fight Against Organised Crime (2008). In compliance with this legislation, The Netherlands thus criminalise participation

in a criminal organisation—that is, participation in a group whose purpose is to engage in crime (Criminal Code 1881,

NL, s140):

1) Participation in an organisation which has as its purpose the commission of serious offences, shall be

punishable by a term of imprisonment not exceeding six years or a fine of the fifth category.

2) Participation in the continuation of the activities of an organisation that has been declared prohibited by

final judicial decision or is prohibited by operation of law or against which an irrevocable declaratory

judgment has been pronounced as referred to in Section 10:122(1) of the Civil Code, shall be liable to a

term of imprisonment not exceeding one year or a fine of the third category.

3) The terms of imprisonment for founders, directors or managers may be increased by one third.




6 December 2019

Section 140 of the Dutch Penal Code also triggers greater ‘general’ investigative powers (e.g., telephone taping,

searching, interrogations and pre-trial detention after arrest) and ‘special’ powers (e.g., covert investigations and

pseudo-purchase/services) (Ayling, 2014).

In 2003, the Public Administration Probity Screening Act—known as the BIBOB Act (Bevordering Integrititsbeoordelingen

door het Openbaar Bestuur)—was amended by Parliament (Ayling, 2014). The application of the BIBOB Act has been

expanded more recently to better reflect the Dutch context. It now covers:

• the licensing system under the Licensing and Catering Act

• environmental licences and building permits

• operating licences for hotel and catering establishments (including coffee shops), sex establishments, escort

services, smartshops and grow shops, and amusement and gaming machines

• licences that are granted by the national government—licences for the road transport of persons and goods

and opium exemptions and licences for the sale of real estate by housing associations (Ayling, 2014, pp. 25–26).

In terms of the proceeds of crime laws, Article 36e of the Dutch Criminal Code provides that the court can make a

deprivation order if it is satisfied that a person’s participation in criminal offences has resulted in material gain

(Commonwealth of Australia, 2009). One major criticism of section 140 is its ‘broadness’, which allows groups whose

main purpose does not involved committing a criminal activity to be punished (Commonwealth of Australia, 2009)

c. THE NEW ZEALAND APPROACH

In 1997, New Zealand enacted an offence of participation in a criminal gang through the introduction of section 98A of

the Crimes Act 1961 (NZ). This legislation was later amended in 2002 and again in 2009 (Crimes Amendment Act 2009,

s5), as it was difficult to establish a criminal organisation under the former definition of ‘criminal gang’, and the number

of prosecutions was thus low (Ayling & Broadhurst, 2014).

An ‘organised criminal group’ is now defined as a group of three or more people who have as their objective (or one of

their objectives):

a) obtaining material benefits from the commission of offences that are punishable by imprisonment for a

term of 4 years or more; or

b) obtaining material benefits from conduct outside New Zealand that, if it occurred in New Zealand, would

constitute the commission of offences that are punishable by imprisonment for a term of 4 years or more;

or

c) the commission of serious violent offences; or

d) conduct outside New Zealand that, if it occurred in New Zealand, would constitute the commission of

serious violent offences (Crimes Amendment Act 2009, s5).

According to the Crimes Amendment Act 2009, the penalty for committing an offence increased from three years (Crime

Act 1961 [NZ] s98A) to five years in 2002 (Crimes Amendment Act 2009, [NZ], s5), and to 10 years in 2009 (Crimes

Amendment Act 2009, (NZ), s5).

New Zealand has also enacted the Crime Proceeds (Recover) Act 2009, in which the laws enable the Crown to, without

conviction, confiscate property from those who, according to the lesser civil standard proof, have committed or profited

from significant criminal activity. New Zealand does not have unexplained wealth laws (Ayling & Broadhurst, 2014).

In 2013, New Zealand also enacted the Prohibition of Gang Insignia in Government Premises Act, which prohibits the

display of gang insignia on the department premises of the public service, the police, Crown entities, local authorities

and schools (Prohibition of Gang Insignia in Government Premises Act 2013, [NZ], s3).




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New Zealand was the first jurisdiction to create an offence of consorting (Police Offences Amendment Act 1901 [NZ], s4),

in which the principal act was amended and a person ‘who consorts with reputed thieves or prostitutes or persons who

have no visible means of support’ was deemed to be guilty of an offence. This formed the model for all consorting laws

in Australian jurisdictions (McLeod, 2013). Section Seven of the review will further discuss Australian consorting laws.

In 1981, New Zealand replaced its consorting offence with a measure that was targeted at preventing crimes that

involved dishonesty. According to McLeod (2013, p. 133):

The stated purpose of the change was to strike ‘a fair balance between the right of free association

and the needs of crime prevention’. The new offence proscribed habitual association with a person

convicted on at least three separate occasions of a crime involving dishonesty. Two significant

limitations were imposed: (1) the circumstances in which the association occurred had to be such

as to support a reasonable inference that the subsequent commission of a crime involving

dishonesty was likely; and (2) the police must have warned the defendant on at least three separate

occasions that further association with the convicted person could attract criminal charges.

The following list briefly outlines the offences against public order that a person could presently be charged for:

• disorderly behaviour

• offensive behaviour or language

• disorderly behaviour on private premises

• disorderly assembly

• associating with convicted thieves

• associating with violent offenders

• associating with serious drug offenders

• proof of habitual association

• fighting in a public place

• publishing a document or thing that explains the manufacture of explosives and other destructive objects

(Summary Offences Amendment Act 1981, s3–8).

In terms of effectiveness, the laws established in New Zealand have been criticised on the grounds that ‘they extend

criminal liability beyond its appropriate limits’ (Commonwealth of Australia, 2009, p. 75).

d. EFFECTIVENESS

There are some recurring features that are internationally associated with anti–organised crime laws. Out of all the

international approaches discussed in this section, the major difference between them is the way that the laws tackle

organised crime—either against an individual (e.g., the UK) or against a group (e.g., the US and Canada).

In terms of crime legislation, its effectiveness appears to be limited, as most legislative efforts are considered too broad

(e.g., the US, Netherlands and Canada) and complex and resource intensive (e.g., the US, Canada and New Zealand). For

example, Canada and New Zealand are similar in terms of legislation, yet neither country has observed a noticeable

decline in organised crime activities since these laws were introduced in 1997 (Schloenhardt, 2008). In fact, the OMCGs

who were the main target of these laws at the time of their inception continue to thrive and control large portions of

the illicit drug market in these countries (Schloenhardt, 2008).

Regarding the proceeds of assets laws that were implemented in the US, Canada, New Zealand, UK and the Netherlands,

their ‘impact is unknown due to insufficient experience with the application of forfeiture laws’ (Gabor, 2003, p. 1).

Finally, on a more positive note, the post-conviction control orders (SCPOs) appear promising (Goldsworthy, 2015;

Wilson, 2015) and have been recommended for implementation in Australia.




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Organised crime in the present day occurs through loose and undefined networks that comprise criminal entrepreneurs

and freelancers who have little concern for group branding or loyalty. Their business model is increasingly digital—

concealed by legitimate activity and global in reach. Australia’s geographical isolation is no longer the buttress that it

once was. Globalisation has made the country an attractive and available target. Australia’s approach to organised crime

must be in sync with global activity, and it must be evidence based. The motive behind any organised crime group is to

directly or indirectly obtain a financial or other material benefit. In Queensland, the Queensland Police Service (QPS) has

recognised that ‘one of the key principles that has emerged in contemporary literature relates to the instability and/or

flexibility of criminal organisations and/or crime groups’ (Queensland Police Service, 2015c, p. 4). This type of organised

crime model is the antithesis of the hierarchical model of the OMCGs.

Australian anti-association and criminal gang legislation is not only state based; it is also linked to the Australian

Commonwealth government’s organised crime strategic framework (Loughnan, 2009). The purpose of the framework is

to identify key organised crime threats and to coordinate a whole-of-government response (Commonwealth Attorney-

General’s Department, 2009). The Commonwealth Attorney-General has identified OMCGs as being a potential target

of this framework:

Outlaw motorcycle gangs, hierarchical and highly controlled organised crime groups or

underworld figures have dominated the public’s image of organised crime in Australia. These

traditional groupings continue to have a strong involvement in organised crime activities and

remain a significant threat. (Commonwealth Attorney-General’s Department, 2009, p. 8)

The framework acknowledges that transnational, serious and organised crime is well financed and integrated into the

global network (Department of Home Affairs, 2019). The Council of Australian Governments agreed to the current

national strategy to fight transnational, serious and organised crime in December 2018. The strategy outlined the nature

of the threat that TOC groups pose:

Transnational, serious and organised criminals are resilient, sophisticated and networked. They

take advantage of political, economic, legal, technological and social changes in the world, and

can adapt and diversify across multiple crime types. As the environment changes and criminals

adapt, so too must our national response. (Department of Home Affairs, 2018, p. 1)

The Australian Criminal Intelligence Commission (ACIC) identifies three main groups operating in Australia: criminal

syndicates, facilitators and OMCGs (Australian Criminal Intelligence Commission, 2019a). Having discussed what

organised crime is, it is now important to examine the role that OMCGs play in organised crime activity.




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SECTION 6—OMCGS IN AUSTRALIA

6.1 AN EXAMINATION OF THE CRIMINALITY OF OMCGS

This section will examine the criminality of OMCGs by examining the available research in relation to international and

Australian perspectives. It is worth considering the use of the term ‘OMCG’. Penfold J considered this in R v. Christopher

Pattman and R v. Stephen Pattman 2 at [5] when facing the Rebels OMCG in the ACT Supreme Court:

I note at this point that although the term "outlaw motorcycle gang" (OMCG) has been regularly

used in the course of these sentencing proceedings, it is not as far as I can see a concept known to

current ACT legislation. The term is used in explanatory material tabled in connection with a

recent Bill to amend the Crimes Act in relation to drive-by shootings and the establishment of

crime scenes without warrant, but it is not defined, or even used, in the Bill itself. However, for

present purposes, there does not appear to be any dispute that the Rebels are identified as an

outlaw motorcycle gang in a number of Australian jurisdictions.

The NSW Ombudsman noted the following in relation to the term ‘OMCG’:

This term has been adopted by the Australian Crime Commission and the NSW Police Force and

is acknowledged by the Supreme Court of NSW in cases such as Moefli v State Parole Authority

[2009] NSWCC 1146. (Ombudsman New South Wales, 2016, p. vii)

There are three important questions that guide this examination of OMCGs: How much crime do OMCGs commit? What

type of crime do OMCGs commit? What role does the OMCG structure play in facilitating this crime? There will be a

focus on the Queensland example, as it has been a test case for combating real or perceived issues relating to the

criminality of OMCG groups. Queensland has had two inquiries that were conducted with a focus on organised crime,

the role of OMCGs and the effectiveness of consorting laws: the 2015 Queensland Organised Crime Commission of

Inquiry (henceforth known as the Organised Crime Report) and the Wilson Report.

On the night of 27 September 2013, approximately 50 Bandido OMCG members entered the Broadbeach restaurant

precinct in the Gold Coast in search of a man; this situation was in regard to a dispute over a woman. Despite being

followed by uniformed police, the OMCG members entered the restaurant and engaged in a melee with the males inside

and the police. The brawl received national and international media attention. In the aftermath of the Broadbeach brawl,

the executive director of the Australian Crime Commission (ACC), Karen Harfield, described the OMCG threat as serious:

While it is difficult to gauge the percentage of organised crime officially attributed to OMCGs. They

are involved in many aspects of serious crime in Australia including the illicit drug market, the

distribution and use of firearms, serious fraud, money laundering, extortion and corruption. (Wuth,

2013, p. 9)

Currently, the ACIC advises that OMCGs are high-profile manifestations of organised crime and that they are active in

all Australian states, in which they exert significant influence over the illicit drug market. The ACIC noted that ‘it is difficult

to gauge the percentage of organised crime attributed specifically to OMCG members’ (Australian Criminal Intelligence

Commission, 2019b, p. 1). It has been demonstrated that the degree to which ‘individual members and the clubs are

involved in organised crime also varies greatly’ (Bjørgo, 2019, p. 87). Often, only generalised statements are provided

regarding the involvement of OMCG groups in organised crime, and the amount of crime that they commit is not

quantified. Such an approach to OMCG crime can be misleading, as noted by the Organised Crime Report:

2 R v. Christopher Pattman and R v. Stephen Pattman (2017) ACTSC 331




6 December 2019

This seemingly blinkered focus on outlaw motorcycle gangs is concerning, particularly given that

statistics reveal that outlaw motorcycle gang members account for a very small percentage of

relevant criminal activity. (Queensland Organised Crime Commission of Inquiry, 2015, p. 24)

It has been noted that OMCGs ‘work in combination’ with other crime syndicates (Vergani & Collins, 2015, p. 417). In

their fact sheet on OMCGs, the ACC recognised that OMCGs are just one of many threats and that their actual

involvement in organised crime is difficult to measure: ‘While they are prevalent in all states and territories, they are just

one part of the broader and integrated picture of organised crime groups in Australia’ (Australian Crime Commission,

2011, p. 1).

In its submissions to a joint Parliamentary committee in 2009, the ACC stated that OMCGs were not the primary criminal

threat in Australia (Commonwealth of Australia, 2009). The Victorian Police in their submissions to the same committee

further stated that they ‘had bigger fish to fry’; they blamed the fixation on OMCGs to be caused by excessive media

attention (Commonwealth of Australia, 2009, p. 26), which is an aspect that will be addressed later on in this review.

One of the more erroneous assumptions that was made is that all OMCGs operate at the same level and with the same

type of criminality. This assumption has been refuted, with the observation being made that there is great variation in

the amount and type of offending between OMCGs (Bjørgo, 2019; Lauchs & Staines, 2019). It has also been observed

that few jurisdictions have provided evidence that supports the claims regarding the level of OMCGs’ offending (Lauchs

& Staines, 2019; Monterosso, 2018; von Lampe, 2019).

6.2 HOW MUCH CRIME DO OMCGS COMMIT?

It is important to thoroughly examine how much and what type of crime OMCGs commit. Presently, the evidence of

OMCGs’ involvement in organised crime has been sparse (Lauchs, 2019a; Lauchs & Staines, 2019). Although one study

noted that an affiliation with OMCGs may increase the likelihood of committing property, drug and weapon crimes, the

results regarding crimes of violence were inconclusive (Klement, 2016b).

Data obtained from the Queensland government under the right to information (RTI) laws allow for an examination of

Queensland OMCG criminality.3 The government data obtained revealed that OMCG members were found guilty of

4,323 criminal charges between April 2008 and April 2014. In the same period, 2,537,669 total offences were reported

to the police (Queensland Police Service, 2016). This signifies that OMCG members were found guilty of 0.17 per cent of

reported Queensland offences. The Queensland Police list OMCG activity as being responsible for 0.6 per cent of all

reported crime (Queensland Police Service, 2015a). The Organised Crime report (2015, p. 25) suggested that OMCGs

only accounted for 0.5 per cent of all persons charged with criminal offences throughout Queensland. In terms of total

criminality, the Wilson Report observed that ‘on any view of all the statistics, OMCGs account for a very small proportion

of the overall reported crime in Queensland—definitively, less than 1%’ (Taskforce on Organised Crime Legislation, 2016,

p. 15).

The reputation for being dominant organised crime players does not overly improve when organised crime type offences

are considered. OMCG involvement is insignificant in totality. Money laundering has rightly been considered the centre

of organised crime, yet RTI data indicated that no money laundering offence was proven against an OMCG member in

Queensland in the six years of data that were supplied. A snapshot of OMCG organised crime activity in Queensland

revealed that OMCGs could be described as low-level players. As a percentage of overall reported offences for the

period, OMCGs make an insignificant contribution. A Danish study noted that OMCG-related crime had little influence

on the overall crime rate account—between 1.2 to 1.6 per cent of crime resulting in conviction in Denmark (Klement,

2016a).

3 To evaluate the usefulness of the Vicious Lawless Association Disestablishment Act 2013’s provisions and determine the level of

OMCGs’ criminality, the author requested data from the Queensland government under the legislative framework of the

Queensland Right to Information Act 2009.




6 December 2019

The data clearly suggest that OMCGs are not ‘major players’. Such a claim is supported by a 2019 study demonstrating

that the rate of offending of Queensland OMCG members generally did not satisfy the criteria for being classified as

organised crime (Lauchs & Staines, 2019).

6.4 THE ROLE OF THE GANG STRUCTURE IN CRIMINAL ENTERPRISE S

The ACC noted that ‘most OMCG chapters do not engage in organised crime as a collective unit. Rather, their threat

arises from small numbers of members conspiring with other criminals for a common purpose’ (Australian Crime

Commission, 2015c, p. 1). A study of Queensland OMCG members concluded that ‘there is no evidence that office

holders were using their position to direct OMCG members to commit serious offences and nor did they run their

operations within the club’ (Lauchs & Staines, 2019, p. 85). Indeed, as another study noted, it is wrong to assume that

all OMCG members are engaged in serious offending (Monterosso, 2018). Such findings are not necessarily new

knowledge. Project Krystal was a strategic assessment of organised crime in Queensland that was conducted in 1999 by

the Queensland Crime Commission and QPS. It discovered the following:

With few exceptions, a review of significant national and state assessments of the alleged criminal

activities of OMCGs indicates that what has, in fact, been brought to light are the criminal activities

of individual members of OMCGs rather than the activities of the group as a whole. In other words,

the assessments suggest that OMCG memberships include individual criminals and not that

OMCGs commit offences as a criminal group. (Wilson, 2015, p. 28)

The individuals within the group are seemingly not engaged as a collective group in organised crime activity; they are

rather more likely to conspire with other criminal groups as individuals and freelance for common criminal purposes

(Monterosso, 2018). An analysis of the Gold Coast chapter of the Finks OMCG argued that, based on police records, the

‘chapter was not a criminal organisation. The office bearers did not use their position to direct criminal activity’ (Lauchs,

2019a, p. 297). One Danish study noted that a core group within the studied OMCGs was responsible for most of the

crime committed by its members. In this study, the most criminally active members of the gang (5 per cent) were

responsible for between 27 to 32 pe cent of all OMCG convictions (Klement, 2016a, p. 145).

Of course, for the issue of criminal convictions to be relevant to OMCGs, a causal connection must exist between the

conviction and the gang. It has been noted in a study of Norwegian OMCG members that many of the convictions had

no link to gang activity (Bjørgo, 2019). Based on the limited offending of OMCGs, the Queensland Organised Crime

Report recommended a change in focus for the QPS:

The Queensland Police Service extend the focus of its policing strategies beyond outlaw motorcycle

gangs to other areas of organised crime that pose a risk to Queensland. (Queensland Organised

Crime Commission of Inquiry, 2015, p. 26)

A crucial aspect of justifying the focus on OMCGs and tough anti-association laws is that authorities must be able to say

that most of those associating are criminals. One of the strongest arguments that supported the Newman LNP

government’s crackdown was that all OMCGs are supposedly hardened criminals. International studies have notably

shown that not all members of OMCGs have criminal records (von Lampe, 2019).

RTI data as at April 2014 provides a more accurate depiction of criminality within Queensland OMCGs.4 These data show

that most bikers in most clubs have no criminal histories. If all OMCGs listed in the government data were included, then

approximately 60 per cent of members are shown to have no criminal histories (histories of traffic and simple offences

were excluded). The highest level of criminality is limited to just two clubs: the Bandidos and the Lone Wolves. Several

of the clubs that were proscribed by the former Queensland Vicious Lawless Association Disestablishment Act 2013

4 Data were obtained under RTI from information presented by the Premier’s Office during a roundtable on the VLAD laws regarding

the level of criminality of Queensland OMCG members. This information was extracted from QPS data. The author was a participant

of the roundtable.




6 December 2019

To convince the public of the threat—and of the subsequent need for the unparalleled laws to counter it—the Newman

government engaged in a vigorous public relations campaign that aimed to demonstrate the menace of the criminal

threat. However, this threat was often overstated, as noted by the Wilson Report:

Variations in what should be uncontentious matters like OMCG member arrest rates were

surprising. Figures provided by senior police officers to the media were shown, on analysis, to be

exaggerated (but, in circumstances where that exaggeration may well have been inadvertent).

(Taskforce on Organised Crime Legislation, 2016, p. 8)

After declaring the OMCGs criminal organisations for the purpose of the VLAD laws, the Queensland Police and Newman

government attempted to reconfigure their language to help with their public relations messaging. They replaced the

term ‘OMCG’ with the term ‘criminal motorcycle gang (CMG)’. The QPS attempted, but failed, to convince other states

and bodies, such as CrimTrac, to adopt this nomenclature5. With the demise of the Newman government, the new Labor

government restored a policy that involved referring to the groups as OMCGs again, so that it could be realigned with

other states and authorities (Robertson, 2015).

A copy of the interim report to the Queensland Security Committee in 2014 obtained under RTI highlights the

importance of media strategies when handling OMCGs. One key performance indicator of the strategy for eliminating

OMCGs related to the community’s confidence that the government was successfully managing the OMCG threat. This

key indicator was articulated through an engagement line of operation that aimed to shape the environment so that

community support, understanding and cooperation were ensured for the actions that law enforcement agencies would

take to eliminate OMCGs in Queensland. The report noted that:

Targeted public relations strategies including background briefing journalists and better

coordination of government messaging have seen a reduction in the level of negative media

articles throughout February and March 2014.

An analysis of media reports on the biker war by The Courier Mail and its weekend News Corp stablemate, The Sunday

Mail, over a two-month period revealed that 60 per cent of stories had a police perspective, while only 20 per cent had

independent input (Goldsworthy, 2015).

To quantify the presence of OMCG stories in the media, a search of the Factiva database6 was conducted for the terms

‘bikie/outlaw motorcycle gang/OMCG’ during the period 1 January 2014 to 24 September 2019. It returned a total of

3,614 results for Australia. Figure 2 shows that Queensland and NSW are the most prominent states in terms of the

number of media stories relating to OMCGs. The ACT had the second least amount of OMCG media mentions, second

only to the Northern Territory.

5 The author attended a roundtable meeting at the Premiers Office of stakeholders in relation to issues surrounding the war on bikers;

this topic of nomenclature and failure to adopt it was discussed. 6 Factiva is a major global interdisciplinary newspaper, magazine and newswire database that enables the retrieval of current and

older full-text articles from a wide selection of international and Australian sources. Extensive company information is provided,

including financial data for more than 42,000 worldwide companies, as well as access to historical market data and interactive

charting.




6 December 2019

Figure 2: Factiva Search for OMCG Media Stories by State between January 2014 and September 2019

0

200

400

600

800

1000

1200

1400

ACT VIC NSW QLD NT WA SA TAS

Nu

mb

er

State




6 December 2019

SECTION 7—CONSORTING LAWS IN AUSTRALIA

7.1 THE HISTORY OF CONSORTING LAWS IN AUSTRALIA

Australia has the freedoms that most people associate with a Western democracy. However, Australian state and territory

governments have moved towards anti-association, criminal association or consorting laws as a means of managing

crime in the fight against organised crime, particularly in relation to OMCGs. As noted by the NSW Ombudsman:

In the past decade, there has been a growing concern nationally about the operation of organised

crime and criminal gangs, including Outlaw Motorcycle Gangs (OMCGs). In NSW, there has been

a series of legislative responses that increase the number of tools and strategies available to police

to tackle organised crime and criminal gangs. (Ombudsman New South Wales 2016, p. 13)

In regard to consorting or anti-association laws, there are three main categories of laws that aim to prevent members

of organised crime groups from associating with each other:

• criminal laws, which make it an offence for any person (other than legitimate business associates and family

members) 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 UK, Canada, New South Wales and South Australia

• criminal laws with specific offences for certain activities that occur within organised crime groups, such as

racketeering (as in the US model) or directing a criminal group (as in Canada) (Commonwealth of Australia, 2009,

p. 55).

This review will focus on the criminal law aspect of such laws. Every state and territory, except the ACT, has introduced

some form of these restrictive consorting laws. In its most basic form, consorting has been described as:

Consorting is the offence of association with criminals. In broad terms, the offence functions to

criminalise an individual who associates (for any reason, not for a criminal purpose) with another

individual who is a criminal, and the degree of association is sufficient to be ‘habitual’. (Loughnan,

2009, p. 8)

There has been much debate regarding whether they are an effective method for combating organised crime. Several

forms of ‘criminal association’ or ‘anti-biker’ laws have been introduced in Australian jurisdictions, and the High Court

decisions upholding their constitutionality will ensure that they remain part of Australia’s justice landscape7. The anti-

association laws enacted in Queensland are similar to those enacted in other states, as well as overseas in countries such

as New Zealand, Canada and the Netherlands (Cash, 2012). Consorting laws are not a modern invention: ‘Consorting

offences are not a new phenomenon, though. They are creatures of statute that emerged early last century in legislation

regulating vagrancy’ (McLeod, 2013, p. 104).

While the various forms of these laws claim to not target any specific groups and that they can theoretically be applied

generally, there appears to be a focus on ‘criminal gangs’ or OMCGs. Indeed, one study reported that by 2015, more

7 The New South Wales consorting laws were unsuccessfully challenged in Tajjour v. New South Wales [2014] HCA 35. By majority, the

High Court upheld the validity of consorting laws. The Court accepted that the provision effectively burdens the implied freedom

of communication regarding government and political matters. But the majority of the Court held that the consorting law was not

invalid because it is reasonably appropriate and adapted, or proportionate, to serve the legitimate end of the prevention of crime

in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative government.




6 December 2019

than 30 pieces of legislation were passed by Australian states or territories, with a focus on addressing the activities of

OMCGs (Lauchs, 2019a). When introducing new consorting laws in Victoria in 2015, the Labor government stated that:

Outlaw motorcycle gangs are the target of new consorting laws to be introduced in Parliament

this week which will give Victoria Police stronger powers to target criminal networks … We will

find them out, stop them in their tracks and keep Victorians safe. (Victorian Government, 2015).

For example, the Queensland government extended its push against organised crime by implementing a series of

additional laws in 2013, that targeted criminal gang activity (the VLAD laws) in which only OMCGs were specifically

named as criminal groups. The VLAD laws enacted in 2013 were focused on the perceived organised crime threat of the

OMCGs. Then Attorney-General, Jarrod Bleijie, stated that:

Recent incidents on the Gold Coast have highlighted the threat criminal motorcycle gangs pose to

public safety. In response, this government has promised to act quickly to enact new laws aimed

at removing criminal motorcycle gangs and organised crime from Queensland. (Queensland

Parliament, 2013a, p. 3115)

South Australia introduced laws that were similar to Queensland’s VLAD laws in 2015. At the time, the state Attorney-

General, John Rau, argued that these laws target organised crime (ABC News, 2015). Legislation such as Queensland’s

anti-association Criminal Organisation Act 2009 was clearly aimed at OMCGs, as demonstrated by the reading of the bill

into parliament.

Members of outlaw motorcycle gangs and other criminal organisations have been involved in

activities such as attempted murder, extortion, drug manufacturing and distribution and pose a

threat to Queensland. In response to outlaw motorcycle gang violence in southern states, other

states and territories around Australia have passed legislation aimed at disrupting the activities of

criminal organisations. The extraordinary powers provided for in this bill are necessary.

(Queensland Parliament, 2009, p. 3029)

It has been noted that OMCGs have been targeted by legislation both here in Australia and overseas in Europe, the US

and Canada on the premise that they are involved in organised crime (Lauchs, 2019a; Lauchs & Staines, 2019; McLeod,

2013; Sarre, 2013). The Queensland police created two dedicated taskforces of several hundred police members to target

OMCGs in the aftermath of the 2013 OMCG brawl: Taskforce Takeback was a component consisting of 100 uniformed

officers that targeted OMCG members from day to day, while Taskforce Maxima consisted of 100 detectives who

conducted long-term investigations into OMCG members (Kane, 2015; Weston, 2016). The creation of these two

taskforces reflects a similar experience in Canada, in which authorities responded to OMCG criminality not only with

criminal association laws, but also by increasing the detective personnel from three to 130 officers (Monterosso, 2018).

7.2 MORAL PANIC AND THE JUSTIFICATION FOR CONSORTING LAWS

Australian governments have in recent years responded to the moral panic resulting from highly visible groups

committing violent criminal acts in public. In political terms, reacting strongly to this perceived challenge to crime control

provides a popular public platform for any government to extend its crime-fighting credentials. The legislative reactions

to these perceived criminal challenges have been both punitive and populist from a penal perspective (Loughnan, 2009).

Certain comparisons have been made that have morphed the ‘war on terror’ into a ‘war on organised crime’, in which

OMCGS have been considered ‘organised criminals’ and ‘terrorists’ who threaten community safety and national security

(Martin, 2014).

Criminal anti-association and consorting laws are essentially a reaction to the moral panic that has arisen in response to

OMCGs’ highly public displays of violence. Cohen (2002) described moral panic as requiring public disquiet, significant

media attention, the demonising of a certain group and the state’s disproportionate reaction (as cited in Morgan,

Dagistanli & Martin, 2010). The problem is usually highly volatile, appearing quickly and then disappearing just as quickly.




6 December 2019

All the factors highlighted above can be considered present in the highly public episodes of OMCG violence. Examples

of this include the Finks OMCG’s mass attack on Hells Angels members at the Royal Pines Resort in the Gold Coast in

2006,8 Comancheros members murdering a Hells Angels member at the Sydney airport in 2009 and the Gold Coast

OMCG brawl in 2013. All three incidents attracted significant media attention and subsequent calls from the public for

tougher action against OMCGs. It is worth noting that much OMCG violence, even when conducted in public, is inter or

intra–club orientated (Monterosso, 2018; Vergani & Collins, 2015).

Is this moral panic justified? This is a crucial question that can only be answered by examining empirical data. Most

OMCGs perceive that they are deviant groups engaging in non-conformist behaviour (Barker, 2005). Perceptions such

as this are reinforced by generalised statements for authorities that depict a picture with little evidence to support it.

This can be observed in the comments of a South Australian police superintendent:

Bikies and their associates have become major players in today’s drugs trade, and other criminal

communities, right across Australia. Today, being a member of an outlaw motorcycle gang is no

longer only about motor bikes, it is about generating power and money, and lots of it. (Bray, 2010,

p. 19)

In October 2019, a senior detective made the following comment in relation to the shooting homicide of a member of

the Comancheros in the Gold Coast:

Certainly this gentleman is a member of the Comanchero, bikie lifestyle carries its own risk. Anyone

who thinks a bikie is a motorcycle enthusiast is kidding themselves—they are criminals and

criminal behaviour is hazardous. (McMahon & Payne, 2019, p. 1)

However, there was no link between the death and the OMCG membership. The problems embedded in this kind of

statement are obvious; the data clearly informs us that OMCG members are not all criminals, that OMCGs generally do

not conduct criminal activity within the auspices of the gang and that being a criminal does not mean that one should

be treated any less as a victim.

It is because of this high profile that OMCGs have been the target of specific criminal organisation and consorting laws

(Ayling, 2011, 2014; Monterosso, 2018; Sarre, 2013). The community’s perception of crime is an important performance

indicator for any police service. For example, the QPS nominates the level of community confidence and satisfaction with

police performance as two of its key performance indicators in its strategic plan (Queensland Police Service, 2015b). The

perception of a law enforcement agency’s ability to effectively handle a real or otherwise threat such as OMCGs is vitally

important for maintaining the community’s confidence.

When faced with moral panic, it is often the knee jerk reaction of governments to enact draconian laws that have little

real practical value. This position is similar to the ‘do something’ mentality that permeates society in the face of a threat

causing moral panic (Katz, 2011). It also allows governments to create an expressive or symbolic piece of legislation that

demonstrates they are addressing the problem (Ayling, 2014). To some extent, political expediency overtakes good law

making and effective law enforcement. This serves two benefits, the first being that the government can claim that it is

actively addressing the issue, and the second being that the government can valuably claim that it has the toughest

policy or legislation for dealing with the crime. With the introduction of a new consorting law in September 2018, the

Tasmanian minister for police claimed that:

The Hodgman Liberal Government has a tough on crime approach and we are committed to

keeping our state safe. That’s why we are continuing to give police the tools they need to crack

down on Outlaw Motorcycle Gangs. (Ferguson, 2018, p. 1).

8 The author was the senior detective responsible for the initial investigative response in relation to this incident.




6 December 2019

Such sentiment is echoed by the Queensland Police minister in his defence of the existing consorting laws: ‘What I can

guarantee under our strong, tough laws is that our police have the powers to disrupt consorting and other associations

that bikies have’ (Queensland Parliament, 2019, p. 526).

Queensland offers an interesting insight into the political thought process of enacting laws such as these. A cursory

examination of media articles highlights a range of critical comments from the former LNP government regarding

association laws while in opposition and before the Newman government came to power in 2012. The remarkable aspect

of this is that although some of the LNP comments may have been made in opposition, where it is commonplace to

critique all the government of the day does, the former LNP government continued to criticise association laws that were

in effect after coming into office.

It is notable that while in opposition, the LNP actively engaged with potential targets of the Criminal Organisations Act

2009 (COA) legislation, as proposed by the Bligh Labor government. It had meetings with representative groups such as

the United Motorcycle Council of Queensland and publicly voiced its opposition to the laws on the grounds that they

would be ineffective and bestow too much power to the police (Shand, 2009). The rejection of these laws was a platform

that the LNP used in the election in 2012. It subsequently won an overwhelming majority in Queensland’s Parliament.

This accords with the notion that the public expects to be involved in the decision processes that decide its laws (Ayling,

2013). This may also explain why the RTI data that were obtained showed that in early 2014, some 66 per cent of survey

participants9 did not support, or had concerns about, the VLAD laws after they were introduced by the LNP in 2013 in

response to the Gold Coast biker brawl.

The attacks on the COA legislation continued once the LNP gained office, when Attorney-General Jarrod Bleijie described

the laws as stamping on the civil liberties of people: ‘It is not anti-bikie laws but anti-association laws’ (Scott, 2012, p.

15). Bleijie described the laws as being ineffective in dealing with organised crime: ‘The Newman government does not

think anti-association laws are the right way to deal with rogue bikie gangs and other organised crime syndicates’ (Hurst,

2012, p. 1). When members of rival OMCGs engaged in a gunfight in a crowded Robina shopping centre, resulting in an

innocent civilian being wounded, Queensland Premier Campbell Newman made the following statement regarding the

criminal association laws: ‘That is just here and now as a stop-gap until we get the chance to go to Parliament and really

do some good there’ (Helbig, 2012, p. 1).

The Gold Coast tourist mecca in Queensland was the test case in the national battle against organised crime, and

particularly against OMCGs. The VLAD laws were introduced in response to an OMCG brawl in the Broadbeach restaurant

precinct in the Gold Coast in September 2013 (Australian Crime Commission, 2015b). An unprecedented media storm

ensued; to some extent, the audacious actions of the OMCGs in allegedly laying siege to a police station propelled this

incident and OMCG behaviour to new heights of public attention. The stage was set for the Queensland government to

use the incident as a catalyst for introducing much more draconian anti-gang laws in addition to the anti-association

laws that were already available under COA. The VLAD laws and amendments were comprehensive and affected

numerous existing pieces of legislation, as well as introduced new ones (Queensland Government, 2014).

Other states’ efforts to combat organised crime have failed to withstand the legal challenges to their criminal

organisation and association laws. However, the Queensland criminal association legislation—both the COA10 and

VLAD11 laws association offences that were contained within the Criminal Code—withstood High Court challenges. The

9 RTI data were obtained from the Queensland government from a survey conducted by Schottler Consulting of 1,200 respondents to

gauge community awareness and attitudes to VLAD laws at the beginning of 2014. 10 The COA was unsuccessfully challenged in Assistant Commissioner Michael James Condon v. Pompano Pty Ltd and Anor [2013] HCA

7. The High Court upheld the validity of the provisions. The Court held that while the provisions may depart from the usual incidents

of procedure and judicial process, the Supreme Court nonetheless retains its capacity to act fairly and impartially. The Court held

that the provisions do not impair the essential characteristics of the Supreme Court, nor its continued institutional integrity. 11 Kuczborski v. the State of Queensland [2014] HCA 46; this matter was unsuccessful in challenging the VLAD laws. By majority, the

Court rejected a challenge to the validity of certain provisions of the Criminal Code. The plaintiff argued that the laws creating the

new offences in the Criminal Code impermissibly enlisted the Court to give effect to the Parliament or executive's intention to

destroy criminal organisations. This argument was not accepted. The majority of the Court held that these laws did not require the

courts to proceed otherwise than in accordance with the processes that are understood to characterise the exercise of judicial

power.




6 December 2019

essential difference between the COA and VLAD laws were that the former provided anti-association offences upon

application to a court and a subsequent finding against the organisation, while the latter relied on declarations of

criminal organisation being made by the Attorney-General to facilitate the anti-association offences.

The Queensland Government (2014) claimed that the proposed laws would achieve the disruption of OMCGs. The

amendments to the Criminal Code created three new offences of association, as well as prescribed 26 organisations to

be criminal organisations. These organisations are all recognised OMCGs. Perhaps the most concerning of the new

legislative measures that were established under the VLAD laws were the mandatory sentences that stipulated that for

certain declared offences, a member of an association could face extra punishment. The Queensland legislation was

based heavily on this platform of being a response to a credible organised crime threat. The explanatory notes to the

bill for the COA argued that organised crime poses a significant threat and that the legislation provided an alternative

mechanism for combating this (Queensland Government, 2009):

The structure and methods of organised crime pose a challenge to the criminal justice system

which is generally designed to prosecute and punish isolated crimes committed by individuals. A

successful prosecution of one or even more members of an organisation may have little effect on

the criminal operations of the organisation as a whole. Further, successful prosecutions of

organised criminal groups may be hindered by intimidation and violence towards witnesses and

investigators. (Queensland Parliament, 2009, p. 3030)

When enacting the 2013 VLAD laws, the then Attorney-General introduced the bill to parliament in the following terms:

I am pleased to introduce the Criminal Law (Criminal Organisations Disruption) Amendment Bill

2013. After a violent confrontation between two criminal motorcycle gangs recently occurring in

Broadbeach, the government vowed that we would act swiftly and decisively to ensure the

community is protected from these vicious, violent thugs… The reforms contained in the bill require

urgent passage as they are crucial to disrupting the activities of criminal motorcycle gangs who

are a serious threat to community safety in Queensland. The incident at Broadbeach on Friday two

weeks ago drew a line in the sand for criminal motorcycle gangs in Queensland. We said as a

government, ‘Enough is enough.’ When criminal motorcycle gang members are so bold as to go

to a restaurant or cafe at Broadbeach in front of victims and innocent individuals, we have to act

tough. That is why we fully acknowledge and appreciate that the three bills that I have introduced

in the Assembly this afternoon are very tough measures, but warranted in all the circumstances.

(Queensland Parliament, 2013b, p. 3157)

Addressing organised crime was not mentioned at all. However, in the explanatory note to the bill, the purpose of the

legislative amendments was framed as addressing organised crime:12

On 28 September 2013, in the wake of violence at Broadbeach involving criminal motorcycle gangs, the

Queensland Government announced its commitment to:

1) Adopt a zero-tolerance crackdown on criminal gangs;

2) Provide whatever additional resources are necessary for the Queensland Police Service to carry out this

crackdown;

3) Introduce a range of tougher laws to tackle criminal gangs; and

4) Support any moves to have additional criminal gangs declared a ‘criminal organisation’ under the

Criminal Organisation Act 2009 …The Bill is aimed at ensuring the protection of the community by

making the establishment of organised crime in Queensland a difficult prospect.

12 Criminal Law (Criminal Organisations Disruption) amendment bill 2013, explanatory notes, page one.




6 December 2019

that they may be committing. The laws aim to pre-empt any criminal offences, which is considered problematic because

they target an individual on the notion that he or she may commit harmful acts in the future rather than for any actual

commission (Monterosso, 2018).

In fact, the consorting and anti-association laws are not concerned with stopping the commission of criminal acts. It is

important to note that neither the VLAD nor NSW consorting laws (which have now been adopted as the model in many

states) require any criminality or criminal purpose be attached to the association or consorting.

Policing people for who they are rather than the criminal activity they are performing poses certain other dangers. One

risk is that these types of laws will lead to inefficient policing, in which mere criminal intelligence or history instead of

proper evidence will be required to attribute criminal consequences.

There is also the risk of ineffectively using police resources in policing social relationships rather than in targeting criminal

activities. This raises the question regarding where the balance between ensuring public safety and individual human

rights lies (Lauchs, 2019a; Monterosso, 2018).

New South Wales had historical consorting laws (Sanders, 2013), but they were seldom used and fell into disuse. In some

ways, this reflects the Northern Territory’s more modern experience. The Territory enacted consorting laws in 2006 and

reviewed them in 2013, discovering that no-one had been prosecuted using this offence (Northern Territory Department

of the Attorney-General and Justice, 2013). In 2005, Queensland repealed its consorting offence due to the provision’s

archaic nature. The state desired to replace the offence with more modern and effective provisions that facilitated

community safety and public order. The then police minister, Judy Spence, described the replaced laws as being

‘ridiculous offences’ (Queensland Parliament, 2004, p. 2396).

New South Wales replaced its existing consorting laws in 2012. The state survived a High Court challenge in 2014,

although there were dissenting judgements regarding its validity. The new offence section was clearly aimed at organised

crime. In 2015, Victoria and South Australia enacted consorting laws under the pretext of combating organised crime.

As of 2019, only the ACT has no form of consorting law (see Table 12).




6 December 2019

2014 regarding the first 12 months of the laws’ operation. Despite having been designed to combat organised crime,

they were mostly used by general duties police (85 per cent), while detectives from specialist squads accounted for only

11 per cent of usage (Ombudsman New South Wales, 2014).

The NSW Ombudsman reviewed 1,247 persons whom the police targeted for ‘consorting; in the 2014 review. About

seven per cent of these persons were children and young people aged between 13 and 17 years old. Forty per cent of

all people subject to the consorting provisions in their first year of use were Indigenous, despite comprising only 2.5 per

cent of the population (Ombudsman New South Wales, 2014).

The review also highlighted the fallacy of the law being targeted at organised crime. An analysis of the criminal histories

of a select group (604 people) targeted by the laws revealed that:

• 24 per cent of those who were the subjects of official warnings issued by the specialist squads had a conviction

for a serious criminal offence

• 15 per cent of those who were the subject of official warnings issued by the local area commands had a

conviction for a serious criminal offence (Ombudsman New South Wales, 2014)

The Ombudsman has expressed concern regarding what types of offences are classified as serious criminal offences:

Defined in section 4 of the Crimes Act as one where a sentence of five years or more may apply.

While this definition includes the most serious criminal offences it also includes low value theft

and minor property damage. (Ombudsman New South Wales 2016, p. 82)

The 2016 review found that only 20 per cent of those persons who were subject to the consorting laws had a conviction

for ‘strictly indicatable offences which are the most serious class of criminal offences in NSW’ (Ombudsman New South

Wales 2016, p. 41). The review also found that 30 per cent of those persons who were subject to the laws had no

conviction for an indictable offence, and that 20 per cent had no convictions at all (Ombudsman New South Wales 2016).

Such concerns about targeting people who have no criminal histories have been raised in Queensland (Emery &

McMahon, 2019). The New South Wales review recommended that the consorting laws should be used to focus on

serious offending, and that they should be prohibited from being used to address minor or nuisance offending

(Ombudsman New South Wales 2016). The Ombudsman noted that:

Although the NSW Police Force has used the consorting law to disrupt serious and organised crime

and criminal gangs as intended by Parliament, it has also used the consorting law in a manner

that, to some extent, illustrated public concerns about its operation. (Ombudsman New South

Wales 2016, p. iii)

These figures highlight the lack of serious criminal activity exhibited by those who are targeted by the laws. The review

raised the crucial question regarding what gaps—if any—the consorting provisions filled that current laws and powers

did not already fill. Existing laws were already available for achieving what the consorting laws supposedly achieved—

but senior New South Wales police claimed that the laws were still necessary (Morri, 2016). Despite this, the Ombudsman

noted that ‘the consorting law provides police with an additional tool to disrupt serious crime that currently appears to

be effective, particularly in the context of the policing of high-risk OMCGs’ (Ombudsman New South Wales 2016, p. 115).

The Ombudsman also noted that even though it may be useful in combating OMCGs, ‘This breadth and flexibility mean

that the consorting law may be used lawfully to capture people who are participating in everyday, otherwise innocent,

social interactions in public spaces, or who are involved in only minor or nuisance offending’ (Ombudsman New South

Wales, 2016, p. 116).

In terms of targeting OMCGs, the 2016 report noted that in situations in which more than five people were subject to

the consorting laws, OMCGs accounted for 11 of the 17 incidents (Ombudsman New South Wales, 2016, p. 31). The New

South Wales gang squad indicated that the most common scenarios for intercepting OMCG members were when they

were together in a vehicle or on motorbikes (n–56), when they were in public places such as restaurants or licenced

premises (n–50) or when they were in their alleged club houses (n–18) (Ombudsman New South Wales, 2016, p. 33).




6 December 2019

One of the strongest claims made by law enforcement agencies in support of the consorting laws is that the consorting

laws allow for the ‘disruption’ of OMCGs. This aspect of disruption seemingly focuses on the physical ability of separating

OMCG members. However, there is not necessarily any attached criminality to the meetings being ‘disrupted’. It is also

a feature in the Queensland scenario that the ethos is to ‘isolate’ OMCG members, which will affect the targeted OMCGs’

level of criminal activity. When introducing its consorting laws, the Victorian government highlighted that ‘these anti-

consorting reforms give police the powers they need to disrupt and dismantle criminal gangs’ (Victorian Government,

2015, p. 1). It is tenuous that the breaking up of incidents of association with no obvious criminality or criminal purpose

will directly affect the disruption of serious and organised crime. No quantitative evidence has been offered to

substantiate such claims.

Legislation such as Queensland’s anti-association COA were clearly aimed at OMCGs, as demonstrated by the reading

of the bill into Parliament:

Members of outlaw motorcycle gangs and other criminal organisations have been involved in

activities such as attempted murder, extortion, drug manufacturing and distribution and pose a

threat to Queensland. In response to outlaw motorcycle gang violence in southern states, other

states and territories around Australia have passed legislation aimed at disrupting the activities of

criminal organisations. The extraordinary powers provided for in this bill are necessary.

(Queensland Parliament, 2009, p. 3029)

Despite this, during eight years of operation of the COA, not one OMCG was subject to the courts making a declaration

against them. Only one application was made by the QPS, which was against the Gold Coast chapter of the Finks OMCG.

The application was withdrawn before the court could make its determination. The reasons for this would seemingly be

due to the VLAD laws that prescribed that the Finks were a criminal organisation, as well as the wish to avoid

embarrassment should the courts not find in favour of the QPS and reject such a declaration under the COA provisions.

The Queensland VLAD laws had certain aims in relation to OMCGs, which then Attorney-General Jarrod Bleijie stated in

the following:

We are drawing the line on criminal motorcycle gangs in Queensland … The bill is intended to

deter individuals from participating in these criminal organisations, encourage persons involved

in such organisations to cooperate with law enforcement to avoid severe penalties, and break the

morale of members in criminal motorcycle gangs. (Queensland Parliament, 2013a, p. 3115)

When making submissions to the two Queensland inquiries, the QPS observed that despite the VLAD laws being enacted

for almost two years, the problem for which they were created—OMCG issues—had not been solved (Queensland Police

Service, 2015b, p. 2).

The success and the necessity of laws such as the VLAD laws can be broken down into a few simple propositions.

Queensland police credited the new biker laws with a reduction in reported crime during the period 2013–2014

(Houghton, 2014). However, no explanation was provided when the overall crime rate increased, despite the anti-

biker/consorting laws still being enacted. In the period 2014–2015, the overall crime rate increased by one per cent; it

rose by six per cent from 2015 to 2016; it rose by two per cent in the period 2016 to 2017; it had a one per cent decrease

from 2017 to 2018; and it had a two per cent increase in the period 2018 to 2019 (Queensland Police Service, 2019). The

Queensland example highlights how consorting laws such as this one cannot be held responsible for any increase or

decrease in a state’s overall crime rate.

In their submission to the Wilson Review, the QPS argued that:

Importantly however, the QPS considers that the increased focus on organised crime groups also

corresponds with some particular crime rates reducing at much larger rates, with the VLAD laws

contributing to the overall reduction. (Queensland Police Service, 2015d, p. 1)




6 December 2019

However, in 2015, when the effect of the VLAD laws on overall crime was addressed to the Queensland Police

Commissioner, Ian Stewart, he stated that:

I can't answer that question specifically … The VLAD Laws have not been used very often, although

we have invoked them. They are the laws of this state and we will continue to use whatever lawful

means we have to take action against organised crime, including outlaw motorcycle gangs. (Silva,

2015, p. 1)

One purpose of the VLAD laws was to convince criminal networks to inform on themselves to avoid the imposition of

mandatory sentences. Data show that 92 per cent of people charged under the VLAD mandatory sentencing provision

did not provide a statement to the QPS regarding their criminal network (Queensland Police Service, 2015c). This would

seemingly indicate the ineffectiveness of this form of incentive. Only 20 of the 100 persons charged as of July 2015 in

light of the mandatory sentencing provisions were OMCG members (Queensland Police Service, 2015c).

In terms of targeting OMCGs, the Wilson Report indicated the following data about persons who were charged under

the VLAD mandatory sentencing provisions as of December 2015: ‘Of those 202 people charged, 10.4% are members of

OMCGs and 7.4% are associates of OMCGs, 82.2% have no known linkage to OMCGs’ (Taskforce on Organised Crime

Legislation, 2016, p. 216). Only two people had been convicted under the VLAD mandatory sentencing provisions, both

of whom received five years’ prison terms (Taskforce on Organised Crime Legislation, 2016)

Regarding the criminal association offences, the lack of successful convictions after the VLAD laws had been enacted

was concerning.

Queensland Courts advised the Taskforce that between 17 October 2013 and 31 January 2016, 42

persons were charged with the anti-association offence … No person has been successfully

prosecuted under the anti-association offence. (Taskforce on Organised Crime Legislation, 2016,

p. 171)

This lack of success was highlighted in the Queensland Parliament’s report on the Serious and Organised Crime

Legislation Amendment Bill 2016, which was intended to repeal and replace the VLAD laws:

Conversely, despite not one conviction delivered under the LNP government on the intended laws

under their VLAD Act, which was primarily directed at outlaw motorcycle club gangs, the Labor

government’s laws shall stand up in court and cast the net greater than just OMCG’s. (Queensland

Parliament, 2016, p. 5)

The Serious and Organised Crime legislation Amendment Act 2016 amended some 33 pieces of legislation and introduced

a whole suite of measures that were designed to fight serious and organised crime. The following key initiatives in stage

one were introduced in December 2017:

• a new ‘Colours’ offence in sections 10C(1) and (2) of the Summary Offences Act 2005

• the inclusion of a new post-conviction control orders scheme in the Penalties and Sentences Act 1992 (PSA)

• serious organised crime circumstance of aggravation in section 161R of the PSA

• occupational licensing reforms across numerous acts that involve the QPS.

Stage two of the amendments that commenced in March 2017 included the following key initiatives:

• a new offence for habitual consorting with recognised offenders in section 77B of the Criminal Code

• the inclusion of a new public safety order scheme that comprises restricted premises, fortification removal and

public safety orders (including short-term commissioned safety orders that are issued by officers) in the Peace

and Good Behaviour Act 1982.




6 December 2019

Despite being introduced in 2016, Queensland’s new consorting laws (modelled on New South Wales’s laws) appear no

more successful. As of May 2019, more than 1,000 consorting notices had been issued in Queensland (Stolz, 2019).

However, during the question time in Parliament, the Queensland Attorney-General admitted that as of May 2019, only

two offenders had been found guilty under the new consorting offences, who had both received non-custodial outcomes

(Stolz, 2019).

Another problematic development of the new Queensland laws is a high-profile case13 in the Gold Coast, in which the

defendant was found not guilty. The matter failed on two grounds, the first of which being the magistrate discovering

that the warning notice was not compliant with legislation, as the notice had contained the names of multiple associates

rather than a single associate. The second ground for dismissing the charge was that although the magistrate accepted

that the defendant had consorted, the QPS had failed to show that the defendant had habitually consorted. The

Magistrate noted:

Whilst section 77B of the Criminal Code provides that a person does not habitually consort with a

recognised offender unless they consort with the offender on at least two occasions, that is not a

definition of habitually consorting, but rather is a minimum requirement that must be met before

there can be a finding of habitual consorting.

The magistrate cited the High Court case of Tajjour v. New South Wales14 and noted that ‘the requirement that consorting

be habitual involved a continuance and permanence of some tendency, something that has developed into a propensity

that is present from day to day’. The matter has been subsequently appealed by the Queensland Attorney-General, with

the implication that hundreds of consorting notices that have been issued would be unenforceable.

In his 2017–2018 annual report, the Queensland public interest monitor (PIM) outlined that 708 consorting warnings

and directions were issued by the QPS (Public Interest Monitor, 2018). In the same period, five persons were charged

with habitual consorting under section 77B of the Criminal Code (Public Interest Monitor, 2018).

Although Queensland and New South Wales have been vigorous in their application and usage of the consorting laws,

this has not been the case in Victoria. Little to no use of the new consorting laws was noted in Victoria, with a Victorian

police spokeswoman indicating that as of July 2019 (almost four years after the laws’ introduction), ‘Victoria Police has

no recorded offences under the unlawful associations legislation’ (White, 2019, p. 1). This lack of use has been blamed

on the wording of the offence section. From January to August 2019, the Tasmanian Police have issued 186 consorting

warnings under their new consorting laws (Aquilina, 2019, p. 1).

One fundamental flaw in the anti-association laws is that they do not address a core motivation of organised crime:

profit (Monterosso, 2018). Although the consorting laws focus on the disruption or restrictions of associations, without

a requirement for criminality of purpose for the association being attached, it is highly unlikely that the consorting

enforcements will focus on the actual business of organised crime (making a profit). In this respect, the laws fail to

remove criminals’ motivation to engage in this conduct.

7.5 D ID ANTI-ASSOCIATION LAWS ALREADY EXIST?

One claim that politicians and police often repeat in justifying the new type of consorting laws is that they require these

new powers and investigative mechanism to combat the OMCGs. However, an examination of existing legislation reveals

that every state already had some legal mechanism for engaging in anti-association enforcement (see Table 13).

13 Queensland Police Service v. Harley Joe Barbaro (2019) QMC 1. 14 Tajjour v. New South Wales (2014) HCA 35




6 December 2019

criminal enterprise contributes to the popularity of current consorting laws as a perceived crime control measure for

serious and organised crime.

Conclusion

The effects of specific consorting laws on serious and organised crime are tenuous at best. Although the success of these

types of laws is mostly based on disruption, there is little evidence regarding what criminal activity is being disrupted.

Enforcing these generic laws demands significant police time and resources for little output in terms of sentencing

outcomes. Without a requirement of criminality being attached to the purpose of the consorting, it is difficult to argue

that such laws and their enforcement are successfully targeting serious and organised crime.

Having examined the overall aspects of OMCGs and consorting laws in Australia, the review will now focus on analysing

the criminal activity of OMCGs within the ACT.




6 December 2019

These membership figures are open to inflation due to the term ‘associate’, which is extremely broad in meaning. In

response to this ACT Policing (personal communication, 27 November 2019) indicated the below:

ACTP notes that the reference to figures being open to inflation does not reflect the fact that the

term ‘associate’ is used to capture individuals who are not fully patched members but are suspected

of either being in the process of becoming a patched member or are utilised by the group to

commit offences that benefit the group. ‘Associate’ is not used to capture individuals who are

merely acquainted with the group or its members but otherwise uninvolved in any of the suspected

criminal dealings of the group. Therefore if an individual is identified as an associate rather than

a member, they are still identified by police as contributing to the criminal enterprise of the OMCG.

Such an approach is problematic. For instance, if a member of an OMCG is conducting a criminal enterprise outside of

the knowledge of the gang and enlists the help of a non-member, then on the above argument that person would not

be an associate. In this scenario how is the “benefit” to the group determined, does the activity have to be sanctioned

by the particular gang or how many members in the gang have to know about the particular activity? Potentially, you

could be involved in the criminal dealings of a member of the gang, but not in the criminal dealings of the gang. Would

involvement with three members of a gang be enough to satisfy the about requirement? Such ambiguity is something

that would benefit by having a clearer definition as to what being an associate entails.

There has been no great expansion in OMCG membership in the ACT. In echoing the statement of Attorney-General

Gordon Ramsay and Police Minister Mick Gentleman, ‘While the number of bikie gangs in the ACT has increased since

the Rebel’s stranglehold on Canberra slipped in late 2014 […], the number of active gang members had not increased’

(Foden, 2019). Indeed, while the number of gangs increased from two to four between 2015 and 2019, the number of

OMCG ‘members and associates’ has decreased from 64 in 2015 to 51 in 2019 (about 20 per cent).

Figure 3: Numbers of Suspected OMCG Members and Associates in ACT with Trendline

Despite this, misrepresentations still exist regarding the current situation of OMCG membership in the ACT. In August

2018, the Australian Federal Police Association claimed that:

We know that there has been an influx of bikies into the ACT since the tough anti-consorting laws

have come into place in Queensland, New South Wales, Victoria and South Australia. And it has

been confirmed by ACT Policing that the ACT has four outlaw motorcycle gangs operating in

0

10

20

30

40

50

60

70

80

2015 2016 2017 2018 2019

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6 December 2019

In terms of the number of OMCG-related media stories, the data indicate a spike in mentions in 2017 and predict that

there will be another spike if the 2019 trend continues. OMCGs feature in media stories as the archetypal crime

organisation that is engaged in the worst of criminal activities. Such themes are indicated by claims such as ‘the

(Satudarah) gang is known for its extreme violence, drugs, extortion and weapons trafficking’ (Roberts, 2019).

A basic analysis of the top 10 subject matters that are contained within the stories indicates that gangs, criminal

enterprises and crime/legal actions are by far the most numerous themes for media stories.

Figure 5: Top 10 Subjects for OMCG Media Stories in the ACT between January 2014 and September 2019.

Sourced from Factiva

As the previous analysis has revealed, the media’s preoccupation and perceptions do not match the reality of the OMCGs’

criminality in the ACT.

Conclusion

In terms of the number of crimes that current members of OMCGs commit, they contribute less than 1 per cent of overall

reported crimes. In terms of the seriousness of the offences that OMCGs commit, although they do commit some serious

crimes, these types of offences are easily outweighed by minor offences in terms of the numbers committed. There has

also been no dramatic increase in the number OMCG members in the ACT.

0 10 20 30 40 50 60 70 80 90

Crime/Legal Action

Criminal Enterprises

Gangs

Assault

Political/General News

Drug Trafficking/Dealing

Domestic Politics

Murder/Manslaughter

Human Rights/Civil Liberties

Law Enforcement

Number

Su

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6 December 2019

It is notable that of the charges given under this division, some 63 per cent (n = 22) met with a negative outcome

through dismissal, failure to proceed or being withdrawn. Such a rate of attrition is concerning—it would be valuable for

ACT Policing and the DPP to examine the circumstances that lead to the high attrition rate in these matters, and it would

also be valuable to consider the possible solutions for rendering the prosecutions in this division more effective.

9.2 THE CRIMES (SERIOUS AND ORGANISED CRIME) LEGISLATION AMENDMENT ACT

2016

The Crimes (Serious and Organised Crime) Legislation Amendment Act 2016 expanded the categories of offences that

can be subject to NAPROs when being sentenced for relevant offences. Such relevant offences are listed in section 23

of the Crimes Sentencing Act (2005). This act also modernised move-on powers to clarify their operation, and it sought

to provide ACT Policing with better tools for handling antisocial behaviours that can intimidate members of the public

or reasonably cause them to fear for their safety. The term ‘exclusion orders’ replaced move-on orders to better describe

the nature of the powers. The review particularly sought feedback regarding the effectiveness of, and any actions that

may be taken to, improve the current provisions relating to NAPROs.

NAPROs

In relation to NAPROs, the Justice and Community Safety Directorate (personal communication, 23 September 2019)

advised the following:

A breach of a NAPRO is a breach of a condition under an Intensive Corrections Order or Good

Behaviour Order. Under section 61 of the Crimes (Sentence Administration) Act 2005 a breach of

an ICO condition results in arrest, proceeding to a warning, suspension, and/or imprisonment

under section 64. Under section 108(2), a breach of a good behaviour order results in a warning,

amendment of the order, and/or re-sentencing. Though a breach of a NAPRO is not a criminal

offence, as outlined above there are serious consequences attached to a breach. However, as it’s

not a criminal offences breaches aren’t recorded by the Courts management system.

The review sought data in relation to NAPROs in the following terms: ‘Number NAPRO orders sought (successful and

unsuccessful) and on who (i.e., OMCG members and non-members and offences associated with the orders). Any data

relating to breaches of such orders.’ The search for data in relation to the usage of NAPROs proved to be problematic.

The Justice and Community Safety Directorate (personal communication, 19 September 2019) advised that

‘unfortunately, the DPP have advised that they do not have a record of the number and nature of NAPRO orders sought

and made’.

Part of the difficulty in obtaining records was also noted by the Justice and Community Safety Directorate (personal

communication, 23 September 2019): ‘An application for a NAPRO is an oral submission in Court—there is no

form/application. The only way we could find out this information is by manually going through the paper files and

seeing if the Magistrate/Judge has written any notes.’ Such a task was deemed overly resource intensive.

In relation to the requested data, ACT Policing advised the following in its submission:, ‘ACT Policing does not keep data

on NAPROs’. The Supreme Court advised the Justice and Community Safety Directorate (personal communication, 23

September 2019) that there is no data code for non-association orders in the Supreme Court and that the requested

information could thus not be provided. A representative from the Supreme Court advised:

I also note for the period 2015 to current I can only easily identify 2 matters containing non-

association specific conditions: 1 fully suspended sentence Good Behaviour Order issued in 2018;

and 1 Intensive Correction Order issued in 2017.




6 December 2019

The Justice and Community Safety Directorate (personal communication, 23 September 2019) identified the two

Supreme Court matters as R v. Bourne, R v. Manns18 and R v. Pattmann19. These two matters will be explored in the

following discussion.

The facts in R v. Bourne concerned the defendant Bourne, who plead guilty to the following charges:

• intentionally inflicting grievous bodily harm, contrary to s19 of the Crimes Act 1900 (ACT)

• accompanying demands with threats, contrary to s32 of the Crimes Act 1900 (ACT)

• trafficking in a controlled drug other than cannabis, contrary to s603(7) of the Criminal Code 2002 (ACT)

• receiving stolen property, contrary to s313 of the Criminal Code 2002 (ACT).

The facts indicated that Bourne had been a member of the Rebels OMCG. At the time of the offence, he was a member

of another OMCG, though no details relating to the gang’s name were supplied in the sentencing remarks. The offending

behaviour was drug activity–related, in relation to the OMCG that Bourne was a member of. The sentencing remarks

regarding the issue of the NAPRO have been redacted from the publicly available document.

However, Elkaim J observed the following in relation to the defendant, Bourne, at [22]: ‘It is apparent from the facts that

Mr Bourne’s criminal activities are closely linked to his membership of an Outlaw Motorcycle Gang’. Elkaim J further

noted at [24] that ‘it is impossible for a court to dictate to any person that he should or should not be a member of a

particular gang. Even sanctions against membership cannot deter a continuation of affiliations’. He also added at [27]

that:

The courts can and must send a general message to the community and, in particular, to those

persons within the community who might be contemplating membership of an Outlaw Motorcycle

Gang. They must be made aware that their descent into criminal behaviour will be swift and, when

apprehended, their punishment will be severe.

Elkaim J also noticed the comments of Burns J in a previous matter,20 in which concerns were highlighted in regard to

the continued association of the defendant with OMCGs. Burns’s J comments were quoted at [4]:

It is a matter of concern because it seems to me that, if you maintain those connections, there is

the risk that you may become involved in criminal offending in the future, it being notorious that

members of that organisation are from time to time involved in criminal offending, such that your

involvement with people who are part of that organisation leads to the risk that you may become

involved in such activity.

The matter of R v. Pattmann; R v Pattamann concerned a father and a son who were both members of the Rebels OMCG.

The father, Stephen Pattman, plead guilty to the charges listed below:

• endangering life by intentionally and unlawfully discharging a loaded arm to cause another person reasonable

apprehension for his or her safety, arising under s27(3)(d) of the Crimes Act 1900 (ACT).

• unauthorised possession of a prohibited firearm, contrary to s42(a)(iii) of the Firearms Act 1996 (ACT) (being a

modified double-barrelled, 12-gauge shotgun), and carrying a maximum penalty including 10 years

imprisonment.

• unauthorised possession of ammunition, contrary to s249 of the Firearms Act 1996 (ACT).

The son, Christopher Pattman, plead guilty to one offence of unauthorised possession of a prohibited firearm, also

arising under section 42(a)(iii) of the Firearms Act 1996 (ACT). The circumstances of the offences involved the father firing

a handgun down the street outside their house while arguing with another Rebels member about the father and son

18 R v. Bourne; R v Manns (2018) ACTSC 35. 19 R v. Pattmann; R v Pattmann (2017) ACTSC 331. 20 R v. Bourne (2014) ACTSC 401




6 December 2019

leaving the gang. Minor injuries were suffered by the other gang member. Justice Penfold noted the following

consideration when sentencing at [69]:

There is no doubt that general deterrence is a significant factor in this sentencing. I accept the

prosecutor's submissions to the general effect that drive-by or other shootings in public places

generate community concern, although I am not convinced that a public shooting with a link to a

motorcycle gang necessarily produces more community concern than any other form of public

shooting. I also agree that it is important to try to deter people from possessing firearms without

authority.

In sentencing Stephen Pattman, Penfold J created an intensive correction order with the following requirement at [89(b)]

‘that you do not associate with any person who you believe to be associated with an outlaw motorcycle gang’.

In general terms, the DDP submitted that the amended NAPRO regime is particularly useful for combating serious and

organised crime, especially in an OMCG context. The DDP submitted that:

The making of a NAPRO which prohibits convicted gang members from associating with other

gang members will assist in severing the offender’s links to their anti-social peers and influences,

and thus both promote the offender’s rehabilitation, and similarly reduce the risk of their

reoffending generally.

The DPP submitted that unlike most other Australian jurisdictions, the ACT does not have a legislative regime for civil-

based anti-consorting and non–association type orders. Non–association type orders for OMCGs are usually available in

other jurisdictions on the civil burden of proof (i.e., the balance of probabilities).21 NAPROs are only available incidental

to a criminal conviction in which offending has been proven beyond a reasonable doubt. NAPROs also differ significantly

from anti-consorting offences in that they apply to a narrow list of people who have been included in the order after an

exercise of judicial discretion.

The DPP outlined varied success that was found in seeking NAPROs for OMCGs. It noted that before a NAPRO can be

issued, a sentencing court must be satisfied, inter alia, and it is both necessary and reasonable to create a NAPRO to

stop further offending.22 The DPP offered the following advice:

The requirement that a NAPRO be necessary to prevent re-offending imposes a very high threshold

to such an order being made. Different judges have differing views as to when that threshold is

met. On a strict interpretation of the provision, a NAPRO will not be necessary unless it is critical

or indispensable23 in achieving one of the purposes for which they can be made. That presents an

almost impossible burden to satisfy.

Section 23(1)(b) of the Crimes (Sentencing) Act 2005 provides the following purposes for making a NAPRO:

b) the court is satisfied that it is necessary and reasonable to make the order for 1 or more of the following

purposes:

i) preventing the offender from harassing anyone or endangering the safety or welfare of anyone;

ii) preventing the offender from committing further offences (including a relevant offence);

iii) assisting the offender to manage things that may make the offender more likely to commit

further offences (including a relevant offence) if not managed.

21 For example, See section 51 of the Criminal Organisations Control Act 2012 (VIC); Section 32 Crimes (Criminal Organisation Control)

Act 2012 (NSW); Section of the Serious and Organised Crime (Control) Act 2008 (SA). 22 See subsection 23(1)(b) of the Crimes (Sentencing) Act 2005. 23 See the definition of ‘necessary’ in the Oxford English Dictionary.




6 December 2019

To highlight this issue, the DPP provided the example of R v. McCallum.24 In this matter, Murrell CJ indicated that if she

was to make an intensive corrections order in relation to the offender (who was a member of the Comanchero OMCG),

then she would be favourably disposed to make a NAPRO on the basis that the offender’s OMCG membership had

contributed to his offending behaviour, antisocial views and attitudes in a general sense, even though the offending in

that matter was not committed for and on behalf of the OMCG.

This approach was contrasted with that of Burns J in the appeal matter of Robb v. Uren.25 In that matter, the DPP noted

that the sentencing magistrate made an NAPRO at first instance in relation to a fully patched OMCG member who, while

in the company of another OMCG member, hit a man in a toilet and causing serious injury to him. On appeal, Burns J

accepted that the offender was an OMCG member, but then set aside the NAPRO on the basis that the offending was

not committed for the benefit of the OMCG.

The position of the DPP was that the chief justice’s approach was the preferred approach. In considering whether a

NAPRO should be made in relation to an OMCG member—or, indeed, a member of any criminal group or gang—the

DPP suggested that whether the offending was committed for, or on behalf of, the gang should not be essential. Rather,

the key consideration should be whether the offender’s gang membership is a contributing factor to their offending

behaviour generally.

The review had difficulty with this premise. If the offence cannot be directly linked to that person’s membership of an

OMCG, then what evidence can be trusted to attest that the gang was influential in causing the behaviour? Section Eight

of this review highlighted that much of the offending committed by OMCGs is not committed in the gang auspice, but

rather as an individual—one who is acting independently of a particular gang membership. In short, such behaviour is

not related to the gang or membership at all. There appears to be a generalisation that OMGC membership being a

causal factor for offending relies on the assumption that all OMCG members are criminal and that the gangs exist for

no other purpose than to facilitate criminal enterprises. It should be noted that the evidence does not support such

assertions. The fact that someone’s OMCG membership correlates with criminal behaviour does not signify that the

membership is the cause of that behaviour. Correlation does not equate to causation; specific evidence in relation to the

criminal act being committed for the purpose of the OMCG, or motivated by the OMCG membership, is required to

determine causation.

The DPP noted that in R v. Pishdari and Anor26, the South Australian Court of Criminal Appeals observed that an OMCG

membership, of itself and without more, suggests that a person is of bad character and that he or she has limited

prospects of rehabilitation. Zourakis CJ observed at [21]–[25] that:

As far as the issues of rehabilitation prospects and scope for leniency generally are concerned, I

make the following further observations.

Where an offender is a member, nominee or even an associate of an OMCG, in the case of the

latter where the person has some form of regular or ongoing association, the fact that the person

may have limited criminal antecedents will need to be considered in that context…Each of the

appellants, with the exception of Mitchell and Mackay, had relatively few serious criminal

antecedents and this remains a factor in their favour. However, the fact that a person is a member,

nominee or, depending on the circumstances, an associate of an OMCG may of itself support a

conclusion that he or she is of bad character with poor prospects for rehabilitation and an

enhanced need for personal deterrence and notwithstanding an otherwise moderate or good prior

criminal record.

The fact that a person is prepared to associate themself with and participate in the ethos and

activities of an OMCG says much about their character. It is common knowledge that many

24 R v. McCallum SCC 55 of 2019. 25 Robb v. Uren SCA 34 of 2019. 26 R v. Pishdari and Anor [2018] SASCFC 94; 274 A Crim R 91




6 December 2019

The Commission had previously expressed concerns about the lack of record keeping on the use of

move-on powers in the ACT, which made it difficult to assess whether they were being used

appropriately.

The ACT Law Society in their submission suggested that the grounds on which to justify an exclusion order should remain

as narrow as possible to ensure that they remain a proportionate means of maintaining public order. The ACT Law

Society recommended that a provision similar to section 27(3) of the Criminal Investigation Act 2006 (WA) be included

in the ACT exclusion order provisions:

When giving a person an order ... a police officer must take into account the likely effect of

the order on the person, including but not limited to the effect on the person's access to the

places where he or she usually resides, shops and works, and to transport, health, education or

other essential services.

The ACT Law Society argued that such a provision could ensure that exclusion orders would not operate to unfairly

exclude a person from areas in which they live or work, or from access to necessary services. Such an inclusion has merit.

9.3 THE CRIMES (POLICE POWERS AND FIREARMS OFFENCE) AMENDMENT ACT 2017

In 2017, the ACT introduced a specific offence to capture drive-by shootings under section 28B of the Crimes Act 1900

(ACT). Such offences were the subject of critical media attention:

The ACT community had been ‘put in harm's way by OMCG (outlaw motorcycle gang) members

who have planned and performed drive-by shootings, violent home invasions, assaults and arsons’

(Brewer, 2019b, p. 1)

Before implementing this legislation, the ACT did not ‘adequately cover the seriousness of an act of discharging a firearm

into a building or conveyance’ (Ramsey, 2017, p. 1). For example:

An act of endangering life under the Crimes Act 1900 (the Crimes Act) requires the offender to

discharge a loaded firearm at another person, so as to cause another person reasonable

apprehension for his or her safety. If a drive by shooting takes place and there is no one inside the

premises the offence can be difficult to make out. Equally if the victim is a member of an outlaw

motorcycle gang (OMCG) or other criminal organisation they may not admit to feeling

apprehension for their safety. An act endangering life is punishable by ten years imprisonment. At

the other end of the spectrum summary offences exist under the Firearms Act 1996 (The Firearms

Act) for discharging a firearm in a public place (punishable by 12 months imprisonment) and for

discharging a firearm on leased (private) land without written consent (punishable by 6 months

imprisonment). These offences are aimed at the regulation of the safe and responsible use of

firearms by licensed firearm owners and the penalties applicable reflect that purpose. (Ramsey,

2017, pp. 1–2)

The new offence pertains to people ‘shooting at a building; including homes; whether from a car or otherwise’ (Ramsey,

2017, p. 2). An important new component of this amendment was that ‘a person does not need to be the target of the

shooting nor does a person need to have been injured for the offence to apply’ (Ramsey, 2017, p. 2). The offence is

punishable by a maximum of 10 years imprisonment, which is the same penalty as for other acts that endanger life. In

their submission, the ACTHRC stated that:

The Commission is satisfied that the offence for ‘drive by shooting’, which was introduced by the

Crimes (Police Powers and Firearms Offence) Amendment Act 2017, is a targeted measure that

addresses a specific omission in the statute book, and is unlikely to give rise to any human rights

concerns.




6 December 2019

The ACT Policing Firearms Registry noted that their records do not capture informal refusals. ACT Policing said that prior

to issuing a formal refusal, it is the practice of the Registry to notify an applicant if their application will be refused. The

applicant then has the opportunity to withdraw their application and receive a return of their application fee. The stated

aim of this process is to show fairness to the applicant and avoid any unnecessary time responding to appeals in the

ACTA. While such a process is commendable, the review believes that such applications should still be recorded on a

relevant database. Perhaps such an administrative process could capture or describe initial applications as preliminary,

and then the formal application process would be as per the provisions of the act.

There are several reasons why capturing such information is important. For example, if a person was to approach the

Registrar for a weapons licence, only to be refused through an informal process, and then went on to commit a murder,

the details of the informal refusal would be valuable evidence at the subsequent trial. At this point in time, the ACT

Policing is unable to provide such data. Retaining this kind of data would also provide a valuable intelligence source

regarding the people who seek access to firearms.

9.6 THE UNEXPLAINED WEALTH LEGISLATION AMENDMENT ACT 2018 (CTH)

The Unexplained Wealth Legislation Amendment Act 2018 (Cth) passed Parliament on 19 September 2018. It effectively

introduces an unexplained wealth scheme in the ACT by extending Commonwealth unexplained wealth orders to ACT

offences. Unexplained wealth laws are a valuable tool for law enforcement to confiscate assets when a person linked to

criminal activity cannot reasonably demonstrate that these assets have been lawfully obtained. The ACT signed the

intergovernmental agreement that operationally supports the act in December 2018.

According to the ACT Policing submission:

Although the ACT is able to use the Commonwealth’s unexplained wealth laws, the provisions

have proven to be difficult to adapt to the smaller ACT jurisdiction. The key difficulty has been the

$100, 000.00 threshold of suspected unexplained wealth required to initiate proceedings. Whilst

this threshold is appropriate for large-scale federal criminal enterprises, it would not capture some

of the smaller enterprises that the ACT investigates. As such, no applications have been made

under the Commonwealth scheme for Territory based offences.

However, ACT Policing is ‘currently working with the Justice and Community Safety Directorate to introduce an ACT

unexplained wealth scheme’.

The DPP noted that the ACT is the only jurisdiction in Australia that has no unexplained wealth laws. In 2014, Victoria

was the last jurisdiction to introduce such a regime. The DPP claimed that the absence of unexplained wealth laws in the

ACT significantly disadvantages the ACT Policing and DPP in the fight against organised crime. The DPP said that the

Unexplained Wealth Legislation Amendment Act 2018 (Cth):

Clarified the ability of the Commonwealth Government to pursue unexplained wealth litigation in

relation to offending involving both a Commonwealth and territory aspect. It also created a

scheme for the equitable distribution of funds forfeited under this regime. However, to be clear,

that Act did not create an unexplained wealth regime for the ACT.

Despite this, the DPP argued that because the Commonwealth can pursue unexplained wealth applications relating to

ACT offences, they should not be enacted as a basis for the ACT not having its own unexplained wealth regime. The DPP

highlighted the problem of the Commonwealth generally having higher thresholds concerning the value of property

before they will commence proceedings. In the DPP’s experience, those thresholds are considerably greater than the

ones generally applied for in the ACT and the ones adopted by the states. The DPP stated:

Unsurprisingly, the Commonwealth unexplained wealth regime has higher thresholds for action

because of the nature, severity and volume of offences that the Commonwealth deals with at a




6 December 2019

national level. This is to be contrasted against the nature, severity and volume of offending

encountered in a small but growing jurisdiction such as the ACT. It is important to emphasise that

just because the Commonwealth could theoretically take action in relation to an ACT matter, it

does not mean that it will. Commonwealth law enforcement agencies are primarily responsible for

investigating serious and organised financial related crimes against the Commonwealth. For this

reason, it is unlikely that unexplained wealth applications would be made by the Commonwealth

in relation to criminal activities that have a primary/dominant Territory aspect to them.

The DPP foresaw that ACT matters involving property of a value that would not satisfy the Commonwealth’s threshold

for acting, but it would readily fall within the ACT DPP’s prosecution guidelines and be pursued by ACT Policing and the

DPP. Both the DPP and ACT Policing indicated a willingness to pursue unexplained wealth matters that may not satisfy

the monetary restrictions of the current Commonwealth scheme. As noted by the DPP:

It would frustrate the purposes of the Confiscation of Criminal Assets Act, in particular subsection

3(c), to allow people to retain the proceeds of crime under $100,000, as it would allow someone to

obtain a material advantage from offending.

The DPP has suggested that any specific ACT scheme should have the following features:

• An unexplained wealth order should be available when a court reasonably suspects that a person’s wealth

exceeds that of their legitimate income.

• When the Court does hold a reasonable suspicion, the creation of an unexplained wealth order should be

mandatory, not discretionary.

• The effect of an unexplained wealth order is to put a burden on the respondent to prove, on the balance of

probabilities, that their wealth is legitimately obtained.

• Any wealth that the respondent cannot convince the Court was to the requisite standard and legitimately

obtained will be deemed to be the proceeds of crime and will be forfeitable to the Territory.

• There should be no limit or cap on the value of unexplained wealth and proceeds of crime that is forfeitable to

the Territory.

• The unexplained wealth provisions should complement the current restraining order provisions. A restraining

order should be available to restrain property, pending the outcome of an unexplained wealth hearing.

The ACTHRC submitted that if the ACT were to implement its own unexplained wealth scheme, then it should incorporate

the following minimum features to ensure that it is compatible with the Human Rights Act:

• That the presumption of unlawful conduct must be narrowly contained to be compatible with the presumption

of innocence. In the ACTHRC’s view, the prima facie link to a Territory offence should be connected to organised

crime and should not be left open to include any type of criminal conduct in which an unspecified amount of

benefit has been obtained, however minimal.

• The court must retain full discretion to not make an unexplained wealth order (and related orders, such as

preliminary orders and restraining orders) when there is a serious risk of injustice or hardship. This should apply

even if all relevant criteria for creating the orders have been satisfied. Unexplained wealth orders should be

subject to full appeal rights.

• The ability to make a restraining order or a preliminary unexplained wealth order without notice being given to

the person who is the subject of the application should only be permitted in exceptional circumstances.

• A final unexplained wealth order must not be made in relation to a person in that person’s absence. Additionally,

there should be no provision for interim orders to automatically crystallise into final orders.

• The discretion to initiate unexplained wealth order proceedings should be subject to appropriate legislative

guidance.




6 December 2019

9.7 OTHER LEGISLATIVE EFFORTS TO COMBAT ORGANISED CRIME

General comments were sought from stakeholders regarding any other matters that pertain to the ability of the ACT to

combat serious and organised crime. In particular, input was sought for the following legislative provisions: cross-border

investigative powers, Crimes (Controlled Operations) Act 2008, Crimes (Assumed Identities) Act 2009 and Crimes

(Surveillance Devices) Act 2010.

The use of the Mr Big technique and covert operations

The DPP raised the issue of section 23F of the Crimes Act 1914 (Cth). It requires police to provide a criminal caution to a

person that they are questioning and its relationship to covert police operations, particularly in Mr Big operations. The

Mr Big technique essentially involves the creation of a fictitious crime group that comprises covert police operatives and

that lures the suspect into the confidence of the group. It has been used on several occasions in Victoria, in which police

unsuccessfully attempted to obtain court orders to suppress details of the methodology.

Its most publicised use was in the 2003 disappearance of 13-year-old Daniel Morcombe in Queensland. This investigation

highlighted the difficulties that police face when investigating a potential murder with no body and no crime scene.

Ultimately, it was the application of the relatively new covert policing methodology, Mr Big, that would lead to an arrest

in 2011 and to the conviction of Brett Cowan for Morcombe’s murder.

This technique is relatively new and unusual. Most covert police operations involve identifying a criminal group or

enterprise and then inserting a covert police operative into this environment. In Mr Big operations, law enforcement

personnel essentially do the reverse of a normal covert operation: they create the criminal group or enterprise and insert

the target into the group. The group members form social bonds with the target and gain his or her confidence by

including the target in a criminal enterprise relationship.

Although the Mr Big technique has been widely lauded in the media ,it does come with inherent risks, including

prejudicial guilt assumption, possible police tunnel vision and confirmation bias in regard to suspects, psychological

manipulation of the suspect through rewards-based interactions, false or unreliable confessions, and the violation of a

suspect’s safeguards.

The use of Mr Big is typically reserved for the most serious of crimes. It is generally used in cold-case murders, in which

traditional investigative techniques have reached an impasse. The basic premise of using the methodology is that

suspects are likely to incriminate themselves if there is a perceived benefit for them and if they feel safe in doing so. The

technique has been used with much claimed success, both overseas in Canada and locally in Victoria. The Royal Canadian

Police claimed to have used the Mr Big technique in at least 350 cases across Canada, obtaining a 75 per cent success

rate and a 95 per cent conviction rate (Royal Canadian Mounted Police, 2019, p. 1). These claims of success have also

been challenged (Keenan & Brockman, 2011).

Indeed, the technique suffered a major setback in Canada in 2014, with the matter of R v. Hart28, in which the Canadian

Supreme Court ruled that confessions generated from Mr Big operations are presumed inadmissible at trial. However,

the Court allowed for a provision if the Crown can convince the judge that the reliability of the confession that was

elicited outweighs the prejudicial effects of the confession.

The facts in the Hart matter were as follows:

H’s (Hart) twin daughters drowned on August 4, 2002. The police immediately suspected that H

was responsible for their deaths. However, they lacked the evidence needed to charge him. As a

result, two years after the drowning, undercover officers began a ‘Mr. Big’ operation by recruiting

H into a fictitious criminal organization. At the time, H was unemployed and socially isolated—he

rarely left home and when he did, he was in the company of his wife. After he was recruited to the

28 R v. Hart (2014) 2 SCR 544




6 December 2019

organization, H worked with the undercover officers and was quickly befriended by them. Over the

next four months, H participated in 63 ‘scenarios’ with the undercover officers and was paid more

than $15,000 for the work that he did for the organization. As part of that work, H was also sent

on several trips across Canada—to Halifax, Montreal, Ottawa, Toronto and Vancouver. H often

stayed in hotels and occasionally dined in expensive restaurants during these trips, all at the

fictitious organization’s expense. Over time, the undercover officers became H’s best friends and H

came to view them as his brothers. According to one of the undercover officers, during this time

frame, H made a bald statement in which he confessed to having drowned his daughters.

The operation culminated with a meeting akin to a job interview between H and ‘Mr. Big’, the man

purportedly at the helm of the criminal organization. During their meeting, Mr. Big interrogated

H about the death of his daughters, seeking a confession from him. After initially denying

responsibility, H confessed to drowning his daughters. Two days later, H went to the scene of the

drowning with an undercover officer and explained how he had pushed his daughters into the

water. He was arrested shortly thereafter.

At trial, H’s confessions were admitted into evidence. The trial judge denied H’s request for

permission to testify with the public excluded from the courtroom. A majority of the Court of Appeal

allowed H’s appeal and ordered a new trial. The Court of Appeal unanimously held that the trial

judge erred in refusing to allow H to testify outside the presence of the public. A majority of the

court also concluded that the Mr. Big operation had breached H’s right to silence under s. 7 of the

Charter. The majority excluded two of H’s confessions, the one to Mr. Big and the one to the

undercover officer at the scene of the drowning. However, the majority concluded that H’s bald

confession was admissible and ordered a new trial.

The Crown appeal against the Court of Appeal ruling was dismissed by the Supreme Court. Hart was released from

prison and did not face another trial on the murder charges.

Three main concerns emerged from this case: the risk of obtaining an unreliable confession from the suspect, that the

willingness to, or participation in, simulated crimes might prejudice the jury and the risk that police misconduct may

influence the reliability of the confession.

To overcome this, the Supreme Court enacted a two-step solution. The first step is that there is a presumption of

inadmissibility to the confession in circumstances of Mr Big cases, unless the Crown can establish the balance of

probabilities that the probative value of the confession outweighs any prejudicial effect. The second step is designed to

deal with the risk of police misconduct and provides that misconduct that amounts to an abuse of process by the police

will result in the confession or statement being inadmissible.

In their submission, the DP noted that:

As a general proposition, the obligation of a police officer to caution a suspect before questioning

is a crucial procedural safeguard in any criminal investigation. The right has quite properly existed,

in various form, at both common law and in statute, for hundreds of years.

There have been developments in legal terms regarding the use of police deception in recent times. The DPP observed

that Appellate Courts in the country have approved of the use of Mr Big operations. In R v. Cowan,29 McMurdo J observed

at [90] that:

It can be accepted that the appellant would not have made the admissions had he known the true

identity of the undercover police officers. But they were not exercising the coercive power of the

29 R v. Cowan (2015) QCA 87.




6 December 2019

state when he confessed.30 He believed he was amongst his criminal friends. They stressed the need

for him to tell the truth so that they could help him. He was free to leave their company at any

time. They were not threatening or violent and in truth had not committed offences with him. He

chose to make detailed confessions to the offences involving Daniel so as to obtain a watertight,

false alibi; to use the alibi to exonerate himself at the inquest when recalled; this would enable him

to remain in the criminal gang and to participate in the pending "big job" which would net him

$100,000. There was no abuse of process in the undercover scenarios leading up to and including

his confessions.

In R v. Tofilau,31 Osbourne J handled a challenge to a Mr Big operation. His Honour observed at [90] that prevailing

community standards would support the admission of evidence obtained by such operations. In Em v. The Queen,32

Gleeson CJ and Heydon J observed at [77] that:

The difficulty is that every day police officers take advantage of the ignorance or stupidity of

persons whom they eventually prosecute, and a mistake of the kind the appellant was operating

under was simply a species of ignorance or stupidity.

The DPP outlined that the difficulties it encountered in the admissions that were obtained by undercover police during

the course of a Mr Big operation, which were technically illegal because they contravened section 23F of the Crimes Act

1914 (Cth), as no caution has been provided. The DPP noted:

Of course, section 23F and the obligation of police to caution a suspect never contemplated this

rare and unique scenario. Questioning by an undercover operative in such a situation does not

involve the psychologically intimidating atmosphere inherent in custodial interrogation. If police

were to comply with section 23F in the course of these operations they would, unsurprisingly, come

to an immediate and abrupt end. Whilst the Court retains a discretion to admit evidence obtained

illegally through a Mr Big or other covert police operation involving undercover police, I would

suggest that evidence obtained through a properly approved covert operation should not be

deemed illegal in the first place. The Courts should, however, retain other discretions relating to

the admission of such evidence on the basis of fairness to the accused.33

The DPP has suggested that consideration should be given to amending section 23F of the Crimes Act 1914 (Cth) such

that there is an exception to a police officer’s obligation to caution a suspect before questioning him or her, when that

questioning arises in the course of a properly approved covert operation involving undercover police officers. This may

be worthy of consideration, but such a waiver should only be allowed in the most serious of cases and with judicial

oversight within the context of covert and controlled operations.

Cross-jurisdictional and controlled operations against OMCGs

In 2017, regulations to recognise cross-border investigation laws of other Australian jurisdictions as corresponding laws

under ACT legislation commenced. The regulations support the cross-jurisdictional investigation of serious organised

crime and ensure the effectiveness of these investigations. However, ACT Policing does not collect data on the number

of cross-jurisdictional investigations that are conducted. It would be useful for ACT Policing to keep a register of such

operations, as well as the results of such operations for performance appraisal purposes.

It was noted that ACT Policing’s gang taskforce, Taskforce Nemesis, maintains a close working relationship with the New

South Wales Police on OMCG matters, including formal and informal information sharing with the New South Wales

30 Above n 15, at [320]. 31 R v. Tofilau (2003) 13 VR 1. 32 Em v. The Queen (2007) 232 CLR 67. 33 See, for example, section 90 of the Evidence Act 2011.




6 December 2019

Criminal Groups Squad, Raptor South, and Queanbeyan, Yass, and Goulburn Police. ACT Policing provided the following

example of a cross-jurisdictional operation:

One example of a successful cross-jurisdictional investigation occurred when a senior member of

the ACT Rebels was implicated in a major NSW drug investigation. Taskforce Nemesis provided

significant assistance with intelligence and extra-territorial search warrants in the ACT, as well as

facilitating the arrest, bail opposition, and extradition of the suspect to NSW. The ACT Financial

Investigations Team (FIT) restrained and successfully forfeited significant assets held by the

individual, including a tattoo parlour. An additional OMCG member associated with the business

was prosecuted within the ACT for money laundering. This was possible due to effective

information sharing between Nemesis, FIT, and the NSW Criminal Groups Squad.

ACT Policing indicated that they are aware that several OMCG members who are active in the ACT live in New South

Wales, or travel there regularly. Long-term joint investigations with the New South Wales Police are not common, as

they do not maintain a Criminal Groups Squad near the ACT and most of the offences relevant to the ACT jurisdiction

occur entirely within the ACT.

As previously stated, having relevant laws established is only one aspect of successfully combating serious and organised

crime; the other is adequately resourcing those units whoa are tasked with managing such areas of crime control. The

review sought details regarding the staffing levels/composition of Taskforce Nemesis. ACT Policing responded that they

cannot disclose the specific staffing levels of Nemesis, as it may pose an operational risk and reveal police methodology.

Controlled operations

Information was sought in relation to the operations conducted under the Crimes (Controlled Operations) Act 2008. In

regard to controlled operations, ACT Policing advised that since 2014, they have conducted five controlled operations

in relation to OMCG members under the ACT-controlled operations framework. An additional two operations have been

conducted since 2014 in relation to OMCG members under the Commonwealth framework. ACT Policing noted the

following in relation to controlled operations:

Until 2017, the New South Wales surveillance devices legislation did not provide cross-

jurisdictional reciprocity with the Surveillance Devices Act 2010 (ACT). As a result, the vast majority

of surveillance device warrants were obtained under the Commonwealth Surveillance Devices Act

2004.

ACT Policing advised that since the implementation of the reciprocity amendments, surveillance devices are obtained

under the most appropriate warrant type and jurisdiction for the offence being investigated. Controlled operations

powers also exist under both ACT and Commonwealth legislation, and the choice of scheme depends on the jurisdiction

in which the offence occurred.

Further to this, most of ACT Policing’s covert capabilities are provided through service-level agreements with national

areas of the AFP. Consequently, undercover operatives, surveillance operatives and other uses of assumed identities are

authorised and administered under Commonwealth legislation. The details that were available for analysis in relation to

controlled operations were limited, as they may pose an operational risk and reveal police methodology.

Conclusion

In conclusion, it can be observed that the ACT has at its disposal a formidable suite of legislative powers with which to

combat serious and organised crime. While there is room for improvement—and the recommendations address these

issues—the foundation for an effective response to organised crime threats has been laid.




6 December 2019

SECTION 10—RECOMMENDATIONS

10.1 RECOMMENDATION 1: D IVISION 10.4A AUDIT REPORTING

That ACT Policing conducts a yearly audit of the use of crime scene powers under the Crimes Act 1900 (ACT) and reports

on the audit in its annual report to ensure that the powers are used appropriately. Such reporting should include the

type of offences being investigated and the circumstances of the powers being used (e.g., consensual or non-

consensual). This audit should ensure that state intrusion into an individual’s privacy should be proportionate to the

public’s interest in the investigation and to the prosecution of the offence or the maintenance of the law.

10.2 RECOMMENDATION 2: D IVISION 10.4A ALTERNATIVE ACCOMMODATION

A provision for alternative accommodation should be considered for the occupiers who are subject to the exercise of

crime scene powers, in which the occupier cannot continue to live in the private premises while the crime scene is in

effect, or the occupier cannot continue to live in the private premises due to damage caused in the exercise of powers

under this part.

10.3 RECOMMENDATION 3: NAPROS

NAPROs and their monitoring would be assisted by records of the applications being made and the orders being issued,

and these should be identified on the PROMIS system. Any breaches of such orders should also be captured on the

PROMIS system. Better lines of integration and communication are needed in the instances of when NAPROs are issued

between the ACT Policing and the DPP, both from an information and an enforcement perspective. Consideration should

also be given to changes in the records of the courts, with the creation of a data code for NAPROs so that they are a

searchable outcome.

10.4 RECOMMENDATION 4: AMENDMENT OF ACT EXCLUSION PROVISIONS .

It is recommended that a provision similar to section 27(3) of the Criminal Investigation Act 2006 (WA) be included

in the ACT exclusion order provisions in Part 9 of the Crimes Act 1900 (ACT). The amendment should provide that when

an exclusion order is considered, a police officer must account for the likely effect of the order on the person, including

but not limited to the effect on the person's access to the places where he or she usually resides, shops and works, and

to transport, health, education or other essential services.

Further, ACT Policing should collect data on the number of exclusion orders that are given, and to who and what groups,

and report in its annual report the usage of such powers as outlined in Section 9 of this review.

10.5 RECOMMENDATION 5: AMENDMENT OF SECTION 23(1)(B) OF THE CRIMES

(SENTENCING) ACT 2005

Consideration should be given to amending section 23(1)(b) of the Crimes (Sentencing) Act 2005 such that:

• The word ‘necessary’ is omitted from this section. In effect, a Court would only need to be satisfied that the

creation of a NAPRO is a reasonable means of ensuring that one of the purposes in subsection 23(1)(b) is

achieved by making an order.

• An additional purpose to the creation of a NAPRO is added to section 23(1)(b) of promoting the offender’s

rehabilitation (i.e., a Court should be able to create a NAPRO if it is satisfied, inter alia, that the creation of such

an order is a reasonable means of promoting the offender’s rehabilitation).




6 December 2019

10.6 RECOMMENDATION 6: THAT THE ACT DOES NOT INTRODUCE A CONSORTING

STYLE OFFENCE

The review recommends that the ACT Government should not move to implement a consorting type offence that is

similar to the New South Wales model, due to the issues raised in this review regarding the effectiveness and the actual

ability to target serious and organised crime with such offences. The review notes that the ACT already has a formidable

tool at its disposal in restricting inappropriate associations through the use of NAPROs.

The key difference between the NAPROs and the general consorting offences are that NAPROs are only available

incidental to a criminal conviction, in which offending has been proven beyond a reasonable doubt. NAPROs also differ

significantly from anti-consorting offences in that they apply to a narrow list of people who have been included in the

order after an exercise of judicial discretion. They also allow for a more targeted response, with a focus on specific

criminal behaviour of a serious nature, rather than a generalised approach, as is the case with current Australian

consorting laws.

10.7 RECOMMENDATION 7: UNEXPLAINED WEALTH LAWS SPECIFIC TO THE ACT TO BE

CONSIDERED

The review would recommend and support the development of a specific unexplained wealth scheme to be implemented

in the ACT to capture the current gap in the Commonwealth scheme as identified by the DPP and ACT Policing. The

ATCHRC should also be consulted for input into any ACT specific scheme that is considered.

10.8 RECOMMENDATION 8: AMENDMENT OF SECTION 23F OF THE CRIMES ACT 1914

(CTH)

Consideration should be given to amending section 23F of the Crimes Act 1914 (Cth) such that there is an exception to

a police officer’s obligation to caution a suspect before questioning him or her when that questioning arises in the

course of a properly approved covert operation involving undercover police officers and a covert operative or controlled

operation. Such an exemption should only operate in serious criminal matters and with judicial oversight.

10.9 RECOMMENDATION 9: RESOLUTION OF INSURANCE ISSUES PERTAINING TO THE

REMOVAL OF FORTIFICATIONS

It is recommended that the ACT Policing resolve the ongoing issues relating to providing police and civilian contractors

with insurance when removing fortifications so that the legislation can be effective in operational reality.

10.10 RECOMMENDATION 10: INDEPENDENT REVIEW OF FAILED PROSECUTIONS

AGAINST OMCG MEMBERS

It is recommended that an independent review be conducted to establish why the failed prosecution rate for OMCG

charges as given by ACT Policing is higher than the rate for the general population. This differential in the failed

prosecution rate is concerning and its causation is worth further exploration.




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10.11 RECOMMENDATION 11: CHARGES UNDER DIVISION 7.2.3 OF THE CRIMINAL

CODE 2002

There is a high rate of attrition relating to charges under Division 7.2.3 of the Criminal Code 2002’s protection of people

involved in legal proceedings. It is recommended that ACT Policing and the DPP conduct a joint examination of the

circumstances leading to this high attrition rate in these matters and that they consider possible solutions to make

prosecutions under this division more effective.

10.12 RECOMMENDATION 12: PARTICIPATION OFFENCES , CHAPTER 6A OF THE

CRIMINAL CODE 2002.

It is recommended that the maximum penalties for offences under Chapter 6A be significantly increased. Alternatively,

consideration could be given to the creation of an aggravated sentencing regime for offences that are typically

committed for, and on behalf of, criminal gangs such that offending of that nature would be subject to a higher

maximum penalty. There is a high rate of attrition relating to charges under Chapter 6A of the Criminal Code 2002. It is

recommended that ACT Policing and the DPP conduct a joint examination as to the circumstances leading to this high

attrition rate in these matters and consider possible solutions for making prosecutions under this chapter more effective.

10.13 RECOMMENDATION 13: REGISTER OF CROSS-JURISDICTIONAL OPERATIONS AND

INVESTIGATIONS

In relation to cross-jurisdictional operations and investigations, it is recommended that ACT Policing keep a register of

such operations and investigations, as well as the results of such for performance appraisal purposes.

10.14 RECOMMENDATION 14: INFORMAL REFUSALS , F IREARMS ACT 1996

ACT Policing should consider enacting data collection protocols that would capture the details of the informal refusals

under The Firearms and Prohibited Weapons Legislation Amendment Act 2018, which provided the registrar of firearms

a power under the Firearms Act 1996 to refuse an application for a firearms licence.

10.15 RECOMMENDATION 15: SENSITIVE INFORMATION , FIREARMS ACT 1996 SECTION

18A(2)

The Firearms and Prohibited Weapons Legislation Amendment Act 2018 introduced amendments to allow the registrar

to withhold security-sensitive information when deciding on a person’s suitability for various purposes under the

Firearms Act 1996, section 18A(2). The review would support that the ACTA or the courts should have the freedom of

action to determine how to handle security-sensitive information. Consideration should also be given to updating the

relevant legislation.




6 December 2019

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Silva, K. (2015). Opposition accuses QPS Commissioner Ian Stewart of backing down on VLAD laws. Retrieved from http://www.brisbanetimes.com.au/queensland/opposition-accuses-qps-commissioner-ian-stewart-of-backing-down-on-vlad-laws-20151015-gkadhd.html#ixzz3xYKcoCyu

Smith, R. G. (2018). Estimating the costs of serious and organised crime in Australia 2016–17. Canberra, ACT: Australian Institute of Criminology. Retrieved from https://aic.gov.au/file/6642/download?token=7oWGMeFK

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LEGISLATION

1. ACT legislation

Confiscation of Criminal Assets Act 2003

Crimes Act 1900 (ACT)

Crimes (Assumed Identities) Act 2009

Crimes (Controlled Operations) Act 2008

Crimes (Fortification Removal) Amendment Act 2018

Crimes (Police Powers and Firearms Offence) Amendment Act 2017

Crimes (Serious and Organised Crime) Amendment Act 2010

Crimes (Serious and Organised Crime) Legislation Amendment Act 2016

Crimes (Sentencing) Act 2005

Crimes (Surveillance Devices) Act 2010

Criminal Code 2002

Family Violence Act 2016

Firearms Act 1996

Firearms and Prohibited Weapons Legislation Amendment Act 2018

Human Rights Act 2004

Unexplained Wealth Legislation Amendment Act 2018

2. Australian legislation

Australian Crime Commission Act 2002 (Cth)

Crime and Corruption Act 2001 (Qld)

Crimes Act 1900 (NSW)

Crimes Act 1914 (Cth)

Crimes (Criminal Organisations Control) Act 2012 (NSW)

Criminal Assets Recovery Act 1990 (NSW)

Criminal Code 1899 (Qld)

Criminal Code Act 1912 (WA)

Criminal Investigation Act 2006 (WA)

Criminal Law Consolidation Act 1935 (SA)

Criminal Organisation Act 2009 (Qld)

Criminal Organisations Control Act 2012 (NSW)

Criminal Organisations Control Act 2012 (Vic)

Criminal Organisations Control Act 2012 (WA)

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Peace and Good Behaviour Act 1982 (Qld)

Penalties and Sentences Act 1992 (Qld)

Police Administration Act 1978 (NT)

Police Powers and Responsibility Act 2000 (Qld)

Police Offences Act 1935 (Tas)

Right to Information Act 2009 (Qld)

Serious and Organised Crime (Control) Act 2008 (SA)

Serious and Organised Crime Legislation Amendment Act 2016 (Qld)

Serious Crime Control Act 2009 (NT)

Summary Offences Act 1923 (NT)

Summary Offences Act 1953 (SA)

Summary Offences Act 2005 (Qld)




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Tattoo Parlours Act 2013 (Qld)

Unexplained Wealth Legislation Amendment Act 2018 (Cth)

Vicious Lawless Association Disestablishment Act 2013 (Qld)

Victoria Police Act 2013

3. International legislation

Canadian Charter of Rights and Freedoms 1982 (CA)

Crimes Act 1961 (NZ)

Crimes Amendment Act 2002 (NZ)

Crimes Amendment Act 2009 (NZ)

Criminal Code 1881 (NL)

Criminal Code 1889 (IT)

Criminal Code 1985 (CA)

Crime Proceeds (Recover) Act 2009 (NZ)

Organised Crime Control Act 1970 (OCCA; US)

Police and Criminal Evidence Act 1984 (PACE; UK)

Police Offences Amendment Act 1901 (NZ)

Policing and Crime Act 2009 (UK)

Proceeds of Crime Act 2002 (UK)

Prohibition of Gang Insignia in Government Premises Act 2013 (NZ)

Racketeer Influenced and Corrupt Organizations Act (RICO; US)

Search and Surveillance Act 2012 (NZ)

Serious Organised Crime and Police Act 2005 (SOCPA; UK)

Serious Crime Act 2007 (UK)

Serious Crime Act 2015 (UK)

Summary Offences Amendment Act 1981 (NZ)




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SECTION 11: STAKEHOLDERS SUBMISSIONS

10.16 ACT CORRECTIVE SERVICES




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10.17 LEGAL A ID ACT




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10.19 ACT HUMAN RIGHTS COMMISSION




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10.20 ACT DPP




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DECEMBER 2019...Independent review of the effectiveness of ACT Policing crime scene powers and...

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