Criminal Organisations Control Amendment (Unlawful Associations) Bill 2015


Ms PENNICUIK (Southern Metropolitan) — The Greens will not be supporting the Criminal Organisations Control Amendment (Unlawful Associations) Bill 2015, as was flagged by my colleague Mr Hibbins, the member for Prahran in the Assembly, when he spoke on the bill the other week. The bill will amend the Summary Offences Act 1966 to repeal the longstanding existing offence of consorting and will also amend the Criminal Organisations Control Act 2012 to insert a new offence of unlawful association. I take this opportunity to remind the house that the Greens did not support the 2012 act or the amendments that were made to it in 2014. Similarly we will not be supporting this bill either.

It is worth noting what the current offence of consorting under the Summary Offences Act 1966 is and also pointing out that that offence is in the Summary Offences Act 1966 and not in the Crimes Act 1958. Under the Summary Offences Act 1966:

A person must not, without reasonable excuse, habitually consort with a person who has been found guilty of, or who is reasonably suspected of having committed, an organised crime offence.

This has a penalty of two years imprisonment. The accused bears the burden of proving a reasonable excuse for habitual consorting to which a charge of an offence against the first subsection relates. The act continues:

 … In this section —

organised crime offence means an indictable offence against the law of Victoria, irrespective of when the offence was or is suspected to have been committed, that is punishable by level 5 imprisonment (10 years maximum) or more and that —

(a)    involves 2 or more offenders; and

(b)   involves substantial planning and organisation; and

(c)    forms part of systemic and continuing criminal activity; and

(d)   has a purpose of obtaining profit, gain, power or influence.

The reason that has been given to us for repealing this offence is that somehow it is not good enough. This is the first I have heard of it not being good enough, and I have been in here for nine years. Not only that, I have only heard it asserted; I have had no evidence presented to me that there is any problem with this longstanding offence.

Changes introduced by this bill, as I said, will amend the Criminal Organisations Control Act to include a new purpose, which is to prohibit individuals associating with individuals convicted of serious criminal offences for the purpose of preventing the commission of offences.

That is what we already have under the Summary Offences Act 1966, so I am mystified as to how the new provision — and I will get to that later in my contribution — will improve upon the existing provision.

This bill creates a new offence under the Criminal Organisations Control Act 2012 of unlawful association, such that an individual who has been served with an unlawful association notice by the police must not associate with an individual specified in that notice on three or more occasions within a three-month period or on six or more occasions within a 12-month period. This is an offence that is indictable, triable summarily, and the penalty is three years imprisonment or 360 penalty units, or $54 600, if convicted, or both. This is a very high penalty for the commission of no crime, except for associating with someone, and with no requirement for evidence that that association was for a nefarious purpose.

There are exceptions under clause 5 in that it is not an offence if the unlawful association of individuals involves family members and those individuals associate for a purpose that is not an ulterior purpose. An 'ulterior purpose' is defined as the purpose of planning, inciting or committing an offence or expanding an organised criminal group or network. However, it falls upon the family members who may or may not have been convicted of any crime — certainly not convicted of an indictable offence under the definition in the bill — to prove that they were not associating with their family member for an ulterior or nefarious purpose. That is one key problem with this bill. It will, and it has already in New South Wales, capture innocent people who are guilty of nothing. They can be captured and caught up in this regime that has been put in place already in New South Wales and South Australia. It was put in place in New South Wales in 2012 and in South Australia earlier this year. The Greens did not support either of those bills.

Other exceptions to the offence of unlawful association include lawful employment, education, provision of a health service, legal advice, for genuine political purposes or lawful protest or industrial action. Again it falls upon persons who may be caught up in this situation to account for their actions.

Going back to the stipulation about three or more occasions in three months or six or more occasions within a 12-month period, one wonders how that provision is going to be administered, enforced or monitored and how that is an improvement on the existing offence under the Summary Offences Act 1966. In terms of the three or more occasions or the six or more occasions, it could be that two persons may in fact be consorting for nefarious purposes, but it might only take them one or two occasions to carry out their nefarious purpose. However, they will not be caught up by this provision, and it cannot be enforced until they have met on three occasions within three months and been well monitored.

The minister says that while there is a higher threshold in the current consorting laws than the level of offending required to trigger the new unlawful association laws, the current offence provides no clarity on how many meetings constitute habitual consorting and does not provide a mechanism for the issue of a formal warning as a precondition to the commission of an offence. It may not, under the provisions of the Summary Offences Act 1966 as it stands now, provide a mechanism under the act, but the police always have the discretion to issue a warning. The minister goes on to say:

The current offence does not exclude legitimate forms of associations; instead it provides that a person accused of consorting must provide a 'reasonable excuse' for the meetings.

Under the Summary Offences Act 1966 as it now stands the police need to do some work and collect some evidence before they can bring the matter to a court, as they have to present to a court that there are issues arising from the association or consorting.

An exemption can be applied for the chief commissioner to attend a gathering or event. Any rejection of this application is reviewable, but it is reviewable by another police officer, so it is not an independent review of that decision by the police. Unlawful association notices will be issued by a senior police officer to an individual who is 18 years or older if the officer reasonably believes that the individual has at least on one occasion associated with an individual convicted of an applicable offence tried on indictment and reasonably believes that the commission of an offence is likely to be prevented if those individuals are prevented from associating with each other. But none of this can be tested in court.

Just on the reasonable belief of a police officer, a person can be issued with an unlawful association notice, a ticket, and then they will be on notice not to associate with that person three or more times within three months or six or more times within a year.

I draw the attention of the chamber to a problem the Greens have been alerted to with clause 5, which inserts new part 5A in the principal act. It is that the government should consider amending the wording of new section 124D(1) inserted by this clause to make it clear. It needs to change the phrase 'in respect of' to 'to' so that it reads 'A senior police officer may issue a notice to an individual who is 18 years old or older' rather than 'in respect of an individual'. The current wording makes that provision unclear.

The duration of unlawful association notices will be three years. As I mentioned, an individual who receives an unlawful association notice can apply to the chief commissioner for an internal review of the decision, and a new senior police officer will be appointed to review the decision. That review is not independent of the police, and that is a concern.

The new unlawful association laws are based on the New South Wales model, which as I mentioned, the New South Wales Greens also opposed. There have been problems with the New South Wales model, including Aboriginal persons being disproportionately issued with warning notices. While the amendments in the bill are an improvement on the New South Wales model — contrary to what Gordon Rich-Phillips was saying, which was that they make the model worse. That is probably because we have a charter of human rights and responsibilities, so the drafter of the bill would have to at least take notice of that charter in the drafting.

Ms Patten — Not much.

Ms PENNICUIK — That is right. Ms Patten said, 'Not much'. The drafter of the bill would at least have to do so if there has been a statement of compatibility. I do not heap as much praise on that one as I did on the bill debated this morning in terms of its comprehensibility. That is because this bill fundamentally attacks human rights — people being free to associate and only come before courts of law when they have been convicted of an offence.

. It is not clear how these reforms are of assistance in combating crime when laws already exist to do that. Under the Crimes Act 1958 it is already an offence to attempt a crime or to conspire to commit a crime. Police can avail themselves of these powers to gather evidence, charge persons and bring them before a court. There has been no evidence presented by the government of the need to change the laws in this regard.

Under the previous bills in 2012 and 2014 police powers were significantly increased to deal with — or supposedly to deal with — organised crime, despite the laws that already exist to deal with those crimes. It is already a crime to attempt to commit an offence, it is already a crime to consort or work with others to plan a crime, it is already an offence to deal in drugs and it is already an offence to commit all the offences that apparently this law will make it easier to deal with. The Greens have not been presented with any evidence that the current statutes cannot deal with these offences.

Nevertheless, in 2012 and 2014 the Criminal Organisations Control Bill 2012 and the Criminal Organisations Control and Other Acts Amendment Bill 2014 were debated, and I spent a lot of time in Parliament pointing out the issues pertaining to the bill when it was proposed and in the act that came into being. We were told that we needed these powers to specifically target organised criminal gangs. I note that there was no mention then of consorting laws being a problem.

As far as I know, no organisation and no individual has been declared under the Criminal Organisations Control Act, so those particular provisions in the act brought in in 2012, which were increased and made even more draconian in 2014, have not actually been used. The provisions have not been used here, and where they have been used, in Queensland just recently, they were thrown out of court because the police fronted up and said they had no evidence against the persons charged. In fact the only time the provisions have been tested, they have not worked. If the police believe that contact between two people will involve committing an offence, then they already have conspiracy and attempt laws under the Crimes Act 1958 to deal with such contact.

The Law Institute of Victoria says that the criticisms of the New South Wales legislation apply equally to the proposed amendments in this bill and that if the police cannot make out the level of criminality sufficient to find liability for conspiracy or attempt, they should not be able to use the charge of consorting as a backup offence to ensure that people whom they suspect of being involved in criminal activity are charged and convicted. If the offence is used in this way, it becomes little more than a means of evading the proper procedural guarantees that are given to the accused at criminal law. These types of anti-association laws create offences based on who you know and not what you have done.

Just like the New South Wales Greens in relation to the introduction of the laws there, we are concerned that people with no criminal history who have not done anything wrong and may have no criminal knowledge or intent may receive a warning from police not to associate with anyone. Family members should not have to prove that there is no ulterior purpose in associating with a family member with the applicable criminal history under this bill — for example, someone's father, mother, daughter or son. Of course there are crime families, but we still believe the current statutes are able to deal with those.

The restrictions on freedom of association and movement under this bill are a concern. In the statement of compatibility the minister said that to curb these concerns a senior police officer can only issue a notice if they reasonably believe it will prevent the commission of further offences and that the individual receiving the notice can seek an internal review. However, this is not an independent review, and to protect people's human rights judicial oversight is always the preference of the Greens.

There is no judicial oversight of this aspect in the bill. While there is a court process involved, it only happens at a later stage after the person has been charged with unlawful association. In addition, the decision to issue a notice telling a person they cannot associate with another is entirely at the discretion of police, and that involves a major restriction on a person's freedom of association and gives the police a lot of power. There is a review provision contained in clause 8 that states:

The Attorney-General must cause a review to be undertaken of the operation and effectiveness of this act during the report period.

The report period is until the act has been in operation for three years. It is different to the provision in New South Wales, where the review will be carried out by the Ombudsman. That provision also has more detail about what is required, as well as the review being required to be tabled in both houses of Parliament.

In that respect the New South Wales law is superior.

In his press releases and elsewhere the minister mentioned that we need to change the law because organised criminals are becoming more sophisticated and are using social media and operating online. On 31 August an article in the Herald Sun quoted him as saying:

Crime gangs are becoming more sophisticated, particularly in terms of recruiting new members online and on social media —

and that therefore we need —

… modern consorting provisions that keep up with the sophisticated forms of organised crime facing us in 2015.

I find that statement quite mystifying because I do not understand how the current laws fail to deal with this issue. The current laws are broad enough to deal with it, and I do not understand how issuing a ticket to somebody for associating is a sophisticated way of dealing with this issue. The police should be more sophisticated in concentrating their efforts on gathering the evidence they need to charge someone and bring them before a court. The article also stated:

The new laws will also give new powers to the elite Echo task force, which has already ramped up its crackdown on outlaw motorcycle gangs …

The group has conducted several raids which have uncovered a trove of guns, bullets, exotic weapons, drugs and hundreds of thousands of dollars cash inside clubhouses or associates properties.

If that is what is happening, that seems to be evidence that the current laws on the statute books are actually working and that we do not need to change them. We should not be changing these types of laws when they are already working and we have not been presented with any evidence for the need to do so.

As I mentioned, we opposed the Criminal Organisations Control Bill 2012, arguing that the police already have the powers needed under criminal law to deal with criminal organisations and that we were concerned about possible breaches of human rights. The Law Institute of Victoria and Liberty Victoria were of the same view. I tried then to refer the bill to the Legal and Social Issues Legislation Committee for an inquiry, and I also sought for that bill to be delayed until the High Court decision was handed down. That bill enabled the identifying of individuals and organisations as declared individuals or declared organisations, and it has never been used.

In 2014 amendments to this legislation included making more offences subject to a declaration, placing more restrictions on members of organisations, making changes in the standard of proof and introducing restrictive declarations. These amendments meant that the act would apply to a wider range of offences at a lower level that can trigger the making of a declaration against an individual or organisation. Prohibitive declarations and restrictive declarations were introduced, and many other changes were made. The Greens opposed these reforms and also attempted to have the bill referred to the Legal and Social Issues Legislation Committee, as I said. The previous government refused the referral of any of its own bills to those committees for review.

The Greens did support, however, the Fortification Removal Bill 2013, which provided the Magistrates Court, on application by the Chief Commissioner of Police, with the power to make an order to require the removal or modification of fortifications on premises that are connected to certain criminal offences. We supported that bill, although I did attempt to amend one clause of it.

It is worth repeating, as I did in 2012, 2013 and 2014, that the Greens support the police and the courts in dealing with organised criminals, organised crime and crime of all sorts. In order to do that the police and the courts need to be properly resourced, and we need proper legislation.

We believe that we already have sufficient laws on the statute books. In fact prior to 2012 we had sufficient laws on the statute book to deal with organised crime. We already had in place such mechanisms as the chief examiner, who deals with organised crime issues; we had task forces in the police to do with organised crime; and we have offences under the Summary Offences Act 1966 and the Crimes Act 1958 to deal with these issues.

In relation to the bill, offences of conspiracy to commit an offence or an attempt to commit an indictable offence exist under the Crimes Act. All of these offences have been strengthened beyond what was required in our view in 2012, 2013 and 2014. They have already been strengthened too much. We do not need anything more than the powers that already exist in section 321M in the Crimes Act which states:

A person who attempts to commit an indictable offence is guilty of the indictable offence of attempting to commit that offence.

Section 321(1) states:

… if a person agrees with any other person or persons that a course of conduct shall be pursued which will involve the commission of an offence by one or more of the parties to the agreement, he is guilty of the indictable offence of conspiracy to commit that offence.

These are pretty clear provisions that already exist on the statute book.

Under the bail and parole laws, courts can impose conditions such as curfews, restrictions on where a person can go and conditions not to have contact with certain persons, as can parole conditions made by the Adult Parole Board of Victoria. We have more than enough laws and we need to use them and make sure that the evidence is collected to ensure that prosecution is successful. Just using a system of notices is not enough.

The Greens opposed the laws introduced in South Australia and New South Wales. Mark Parnell, who is a Greens member in the upper house in South Australia said the legislation:

… sets a very bad precedent for how this state deals with legal issues. The irony of this bill being passed on the 800th anniversary of the signing of the Magna Carta is not lost on many people.

This is the anniversary of the year the Magna Carta was signed, which was obviously a first step in establishing rights for people. This is not the time to be introducing laws that take away those rights. Mr Parnell continued:

I think that this legislation is a low point in South Australia's legislative history. To just remind members, this bill and the methods it uses has been roundly condemned by every legal organisation in this state and every group concerned with human rights and civil liberties. It is not to say that the people who are opposing this bill are friends of bikies — I know we are not. We want our communities to be safe and we want the police to have appropriate powers to detect and prosecute crime. The fact is that this legislation goes a step too far … it captures people who are innocent and do not deserve to be captured, and it infringes on strongly held … legal principles.

We feel the same about the legislation before us today. Bill Potts, a criminal lawyer, has said that anti-consorting laws in Queensland have proved ineffective on gangs' operations. Just recently a case was dismissed against bikies known as the 'ice-cream bikies', who were arrested while buying ice-cream. The dismissal in Southport Magistrates Court of the charges against the five alleged bikies, who were arrested under anti-association laws after they bought ice-cream during a Gold Coast holiday in January 2014, came as the prosecution revealed that it had no evidence against any of the accused.

That was the first outing of those laws in Queensland. We should not be going down a similar path in Victoria when we already have a perfectly fine consorting law in the Summary Offences Act 1966.

Part of the media interest around this relates to drug crimes. The Greens are certainly concerned about the rise of drug use in the community, but leading drug experts also say that there is too much emphasis on law and order when it comes to tackling the country's ice problem, for example. Eminent public health campaigner David Penington and Victoria's Drug Court magistrate Tony Parsons have renewed calls for an approach that focuses equally on treatment and prevention while also understanding the need to deal with supply.

These laws are directed at who you mix with and not the purpose of the mixing. Associate Professor Steel from the University of New South Wales said:

In a modern-day society there should not be an offence of speaking to anybody unless the nature of a conversation is a conspiracy.

David Shoebridge, a Greens MP in New South Wales, said:

… Parliament should not … criminalise the simple fact of speaking or texting to people who have previously been convicted of an indictable offence.

Concerned innocent people could be caught up in these new laws and concerned family members have to prove that interactions with those with an indictable offence background are reasonable. As with other tranches of laws that have come through the Parliament over the last three years and are unnecessary additions to our statute book, the Greens will not be supporting this bill.