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Second reading: Criminal Organisations Control Amendment (Unlawful Associations) Bill 2015

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Sam Hibbins MP
Member for Prahran
16 September 2015

Mr HIBBINS (Prahran) — I rise to speak on the Criminal Organisations Control Amendment (Unlawful Associations) Bill 2015. There have been so-called anti-bikie laws introduced in states across Australia, including Queensland, New South Wales, South Australia and now in Victoria, and the Greens have been the voice of reason in those debates and the voice questioning these laws, as we will be with this law. We will be opposing this bill.

Of course we are concerned with organised crime and drug trafficking, which the government says this bill is aimed at disrupting, but we have laws to deal with organised crime. We have introduced laws in the past few years to deal with such crime. Now we are being told that those laws are not good enough and that this law, this introduction of an unlawful association notice, will be enough, and that with this bill the government wants to shift the burden or the emphasis from what a person has done to who they know.

I will go into the powers police currently have — the current consorting laws and laws related to conspiracy to commit an offence or an attempt to commit an indictable offence under the Crimes Act 1958. Section 49F of the Summary Offences Act 1966 defines the current consorting offence under Victorian law. It states:

(1)   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.

(2)   The accused bears the burden of proving reasonable excuse for habitual consorting to which a charge of an offence against subsection (1) relates.

The act goes on to discuss what an organised crime offence means — that is, it involves two or more offenders; it involves substantial planning and organisation; it forms part of a systemic and continuing criminal activity; and it has a purpose of obtaining profit, gain, power or influence.

We are being told that these laws are no good and that they have not been used. Why is that? The previous contributor elucidated, I think for the first time, why that may be the case. It appears to be because the police cannot access the case files whilst they are out on patrol. That goes to the heart of the argument I am putting forward — is this a question of police resources? Is this a question of police acting within the current laws better and prosecuting them better rather than simply introducing new laws?

I will go to some of the other existing powers police have under the Crimes Act 1958, those relating to conspiracy and attempt. We have got section 321M:

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

As 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.

We also have bail and parole laws. Courts can impose conditions such as curfews, restrictions on where a person can go or prohibitions on contact with certain persons, as can the Adult Parole Board of Victoria.

A few years ago the Criminal Organisations Control Bill 2012 was introduced specifically to target organised crime gangs. The Criminal Organisations Control Act 2012 enables the Supreme Court to declare organisations to be criminal organisations so that their members can then be subject to control orders. Control orders can, for example, prohibit people from meeting with each other or prohibit members of organised crime gangs, including former members, and even associates, from undertaking the activities of a club. Control orders on an organisation can include prohibiting the organisation from carrying on business. That act was amended two years later by the Criminal Organisations Control and Other Acts Amendment Bill 2014, which put more restrictions on members of organisations moving to other organisations, changed the standard of proof and introduced restrictive declarations, yet now we are told that no application for a declaration has ever been made. We have to ask why. The previous speaker gave the reason that it would require significant police resources. In that case, is the best way to address organised crime to create new laws or is it to resource the police to enable them to implement the current laws?

We also had the Fortification Removal Bill 2013, which the Greens supported. Amendments made by that bill provided the Magistrates Court with the power to make an order to require the removal of fortifications on premises connected to certain criminal offences on application by the Chief Commissioner of Police. We have all these laws, introduced and amended recently. To date, we have not had a gang or an outlaw bikie gang declared an organised crime group. If a group were declared an organised crime group, they would be disbanded. The question remains: why have these laws not actually been implemented? Should we be resourcing the police to implement the current laws, rather than introducing new ones?

Going into a bit more detail about this bill, its provisions would amend the Summary Offences Act to repeal the existing offence of consorting and the Criminal Organisations Control Act to insert a new offence of unlawful association. It would prohibit individuals from consorting with individuals convicted of serious criminal offences for the purpose of preventing the commission of offences. Under the new offence of unlawful association, introduced by new section 124A:

An individual who has been served an unlawful association notice must not associate with an individual specified in that notice …

(a)    on 3 or more occasions in a 3-month period; or

(b)   on 6 or more occasions in a 12-month period.

There are a number of exceptions under which that association is deemed legitimate. It is not an offence if the individuals involved are family members or where the association is related to employment, education, the provision of health services and the like.

These unlawful association provisions are based on the New South Wales model, which was found to have problems. I will say that these provisions are an improvement on the New South Wales model, but it is not clear how these reforms can assist in combating crime when laws already exist to do so. Previous bills have significantly increased the powers of police to deal with organised crime. We are being told that the pre-existing laws are not enough. It appears Victoria Police is of the view that the current laws are difficult to prosecute under, but I would again ask why that is the case. Is this a question of resourcing rather than introducing new laws?

I understand that there was no mention of the consorting laws being a problem when previous amendments were made. It seems to me that we are going through a process of trial and error when it comes to bringing in laws to tackle organised crime. I would suggest that if there were a reasonable suspicion of an offence being planned, police would be better off using their extensive powers to investigate crimes based on past conduct, planning, conspiracy or intent to commit crimes. If the police believe contact between two people will result in the commission of an offence, then they have conspiracy or attempt laws to deal with such contact.

We already have laws to prevent individuals from consorting without reasonable cause with people involved in organised crime. We have laws enabling an organisation to be made a declared organisation. We are being told that these laws are not good enough, and that the solution is to hand out these unlawful association notices. We are being told that handing someone who is involved in serious organised crime, with no apparent regard for the law, a piece of paper — essentially the organised crime version of an antisocial behaviour order — is going to make the difference and achieve what the existing law could not. One would think that if police suspect a crime is going to be committed or is being planned or conspired about, they could gather the evidence and use the current laws to prevent it.

I will note a couple of concerns regarding the effect of these laws on the Indigenous population in New South Wales. We welcome the clause proposing an annual reporting requirement, where Victoria Police must report annually on the number of notices issued, including the number issued to Aboriginal and Torres Strait Islander people.

In New South Wales Indigenous people have been disproportionately more likely to receive these notices. Were those people involved in organised crime or bikie gangs? Are the unlawful association notices going to be used in a targeted way on organised crime or are they going to be used in more of a scattergun approach?

We are also concerned with the internal review process. We know that the individual receiving the notice can seek an internal review of the decision. However, this is not an independent review and it does not have judicial oversight. It was always the preference of the Greens to have judicial oversight in these matters. A court process is involved, but that only happens at a later stage, after a person has been charged with unlawful association after ignoring the notice. The decision to issue a notice telling the person they cannot associate with another person is entirely at the discretion of police.

We are told that because laws have been introduced in Queensland, New South Wales and South Australia, Victoria is becoming some sort of safe haven for organised crime. We have seen these wide-reaching and over-the-top laws in South Australia and Queensland. We have seen laws in Queensland that have targeted innocent people. We are being told by Police Association Victoria that we are going to have every major bikie gang operating out of Melbourne, but we know — —

Mr Pearson — We need laws like Queensland.

Mr HIBBINS — The member says we need laws like Queensland. We do not need laws like Queensland or South Australia or New South Wales. This bill is yet another in a long line of laws that supposedly target organised crime and bikies, but without any real justification as to why existing laws cannot be used.

We were told that the last round of laws were going to do the job, but now we are told that they are not enough. It is not a question of more laws and greater police powers; it is a matter of resourcing police so that they can use existing laws more effectively. We cannot have this 'Keep up with the Joneses' approach to law and order. We have seen the problem with that approach being taken in Queensland, South Australia and New South Wales. We should be directing police resources and powers towards criminal activity and not making new laws when we have existing laws that can already be used. The Greens will be opposing the bill.

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Sam Hibbins MP
Member for Prahran
16 September 2015




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