Crimes (Criminal Organisations Control) Act 2009
Why it’s dangerous.
The original Bill was introduced into Parliament by the current State Government as a means of dealing with a perceived problem of ‘outlaw motorcycle clubs’. It was said by the police that these laws were needed to deal with the dangers presented by these ‘clubs’.
On the other hand the Director of Public Prosecutions, the Council for Civil Liberties, Barristers, Solicitors, Academics, Politicians, Judges and many legally and politically experienced people have argued that it is unnecessary and undemocratic.
The Bill was passed by the Parliament with no proper discussion or consideration given to its contents. There was no proper discussion or consideration given to whether there actually was a danger presented by any clubs.
Any illegal act by a member of an ‘outlaw motorcycle club’ has and is being dealt with under the existing laws. Despite newspaper reports to the contrary the new laws do not give police power to stop and search and harass motorcycle riders. Although, some police believe this Act gives them power to do just that. (This Act has not yet been used.)
What this Act does is allow for the Police Commissioner to seek a declaration in the Supreme Court from an eligible judge that an organisation is a ‘declared organisation’ for the purpose of this Act. (Section 9(1)) Once a declaration is obtained the Commissioner can then seek an interim control order (Section 14) then a final control order (Section 19) which prevent members of the declared organisation from associating with each other (Section 26) but also prevent these members from engaging in any ‘prescribed activities’ which means working in certain occupations. (Section 27) Breach of these orders is a criminal offence and carries 2 years imprisonment for a first offence and 5 years for a second offence. (Section 26(1))
Many clubs have fathers and sons, brothers and cousins as members. It is quite common. When a control order is made final, members of families in the clubs will not be allowed to associate with each other. There are NO exceptions.
An organisation is not defined in the Act as an ‘outlaw motorcycle club’ or, in fact, defined as any kind of motorcycle club. An organisation is any group of people who get together for any purpose. (Section 3) An organisation is the Catholic Church, the Penrith Panthers, the Labor Party, the local under 12s soccer club, the Wallabies, Myers, Woolies, Rotary, St. Vincent de Paul, Unions NSW to name a few. But, most importantly there is no limitation to what can be an organisation.
There are no limits on who the Police Commissioner may have declared. However, the Supreme Court judge deciding the case must be an eligible judge. (Section 9(1)) That is, a judge who the Attorney-General decides can sit on these cases and the Attorney-General can revoke that eligibility at any time. (Section 5(6))
An independent judiciary is the cornerstone of any legal system and so it is with ours. However, when an Attorney-General (a political position) has the power to decide which judges sit on cases under this Act and which judges do not then both the appearance and the reality of an independent judiciary is threatened.
As if this isn’t bad enough; the use of criminal intelligence,f which is provided to the court in the absence of the members being sought to be declared, is an enormous danger. (Section 8(3) & 28) How can you defend against something if you don’t know what it is? It is the same with protected submissions. (Section 8(4) & 29) A protected submission appears to be a purported member or associate giving evidence against you. (In your absence.) Or more likely someone saying they are an associate. How reliable is that?
The real danger of criminal intelligence is that the rules of evidence do not apply. (Section 13(1)) And the judge does not have to give any reasons for his or her decision. (Section 13(2)) There is not much point in being given the right to appeal on the facts (if you get leave) (Section 24(2)) if you don’t know what those facts are. Facts which, by the way, only have to be proved on a balance of probabilities not beyond reasonable doubt. (Section 32(1))
If the rules of evidence do not apply you can rest assured that criminal intelligence will contain every piece of uncorroborated allegation, suspicion, rumour and innuendo that the police can imagine.
This piece of legislation is ill considered, unnecessary and undemocratic. It cannot possibly achieve its suggested purpose and has been introduced to deal with a perceived problem that is more media beat up than reality. It does not allow for a fair hearing for those who are targeted and when entrenched in our legal system allows for an unscrupulous Attorney-General or Police Commissioner to use it for political or unintended purposes.
