Review of Victorian Criminal Organisation Laws – Stage One Under section 137 of the Criminal Organisations Control Act 2012 30 June 2020
Review of Victorian Criminal Organisation Laws
Foreword
Over the past decade, most States and Territories in Australia experimented with a new method of seeking to prevent and disrupt organised crime, which was expanding its reach into more and more legitimate activities. They did so by employing a scheme of declarations and control orders and unlawful association notices. Although couched in broad terms, these legislative initiatives were primarily prompted by the increasingly visible criminal activity of outlaw motorcycle gangs (OMCGs). Most, if not all, of these control statutes contained review provisions to determine if they were having their desired effect. Victoria’s Criminal Organisations Control Act 2012 (COCA) requires a review to be concluded by 30 June 2020. Many of the other reviews have been completed and we have benefited from the work which they have done. When we commenced this task, it was anticipated that we would consult with a wide range of stakeholders generally and conduct discussion roundtables with those whose work is central to disrupting organised crime, as well as those who engage with it more peripherally such as the regulators of certain industries and those who focus on the protection of human rights. However, the advent of the COVID-19 pandemic has precluded that interactive program of work and, accordingly, the Attorney-General has requested that we undertake the review in two stages. The first, to which this report relates, acquits the review obligations of the COCA. The second, which we will undertake when the impacts of the pandemic have eased, will consider other legislation in Victoria which tackles organised crime, and will make recommendations for future initiatives. Carrying out this review distantly has had its challenges but has been made as efficient as is possible without face-to-face meetings by the talented team of officers from the Department of Justice and Community Safety assigned to this review and who have compiled material, prepared programs of work, written research papers and assisted in drafting this report. We express our appreciation to each of them. In this difficult situation, when there are other demands on time and resources, we are grateful for the assistance of the Crime Statistics Agency’s Chief Statistician and of Victoria Police, with whom we have had two remote meetings. The latter, of course, has a central interest in this review and has offered all the assistance for which we asked and to those officers involved we give our thanks. Finally, we thank the Attorney-General for her willingness to accept that this review required a two-stage process if it were to achieve more than a bare analysis of the effectiveness or otherwise of the COCA.
Hon. Margaret White AO Andrew Cappie-Wood Review Panellist Review Panellist
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Table of Contents
Foreword ...... 2
Executive summary ...... 5
Glossary ...... 8
1. Introduction ...... 10 1.1 Purpose of the review ...... 10 1.2 Terms of reference ...... 10 1.3 Method and scope of the review ...... 10 1.4 Review Panel ...... 11
2. The Victorian statutory framework ...... 12 2.1 Declaration and control order scheme ...... 12 2.2 Unlawful association scheme ...... 14 2.3 The human rights Charter and its relevance to the COCA ...... 16
3. Organised crime landscape...... 17 3.1 Definition of organised crime ...... 17 3.2 Prevalence of organised crime in Australia ...... 17 3.3 Evolution of organised crime groups ...... 18 3.4 Disruption as a tactic to fight organised crime...... 19
4. Australian control order schemes ...... 20 4.1 OMCG-related crimes – a catalyst for change ...... 20 4.2 States and Territories consider a national approach ...... 21 4.3 Legal challenges to declaration and control order legislation ...... 23 4.4 Reviews of criminal organisation control laws ...... 24
5. Australian unlawful association schemes ...... 26 5.1 Reviews of unlawful association laws ...... 27
6. The COCA’s policy objectives ...... 29 6.1 Preventing and disrupting organised crime ...... 29 6.2 Preventing organised crime through declarations and control orders ...... 30 6.2.1 Recognising declarations and control orders made in other jurisdictions ...... 31 6.3 Preventing individuals from associating with serious criminals ...... 32
7. Evaluating the COCA’s operation and effectiveness ...... 34 7.1 Declarations and control orders ...... 34 7.2 Unlawful association notices ...... 35 7.3 Conclusion on the COCA's operation and effectiveness...... 36
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8. Recommendations ...... 37
9. Next steps ...... 38
Appendix: Overview of substantive amendments to the COCA ...... 39
Bibliography ...... 41
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Executive summary
The Criminal Organisations Control Act 2012 (COCA) is one of several pieces of Victorian legislation targeting organised crime. It was first proposed in 2011, following a spate of widely- reported public displays of violence linked to outlaw motorcycle gangs (OMCGs).
The COCA The COCA commenced on 13 March 2013 and was amended in 20151 to add an unlawful association scheme. The Act: • enables the Supreme Court to make declarations and control orders to prevent and disrupt organisations and their members involved in serious crime • empowers police to prohibit association with those convicted of serious crime, and • provides for the recognition of interstate declarations and control orders. When making control orders against an organisation under the COCA, the court can impose a wide range of prohibitions and conditions. The prohibitions can restrict legitimate business activities or stop the organisation operating entirely. A control order against an individual can prevent an individual taking part in an organisation’s activities or associating with its members. The unlawful association scheme enables police to issue a notice prohibiting an individual from associating with a person previously convicted of a serious crime for the purpose of preventing further crime.
Challenges using the COCA Victoria Police has encountered problems with the operation of the COCA. A high standard of evidence is required to use the schemes in the Act. The nature and structure of criminal networks, including OMCGs, has also changed and made it harder to gather criminal intelligence and prove associations. These and other factors have raised barriers to the effective use of the COCA. As a result, other disruptive actions available to police have been favoured as more efficient and effective.
Experience of similar laws in other States and Territories The ever-expanding problem of serious organised crime, including the activity of OMCGs, is not limited to Victoria. In response, most States and Territories introduced similar declaration and control order and unlawful association laws from 2007. These jurisdictions have also experienced difficulties applying control order laws. New South Wales, South Australia and Queensland law enforcement agencies have at times applied for declarations or control orders under their own similar legislation. However, these applications were challenged in the High Court. Queensland has since repealed its control order legislation, despite its law surviving a High Court challenge. In its place, Queensland bolstered a range of existing powers deemed more effective in the fight against organised crime. Unlawful association schemes have, on the other hand, enjoyed a measure of success in jurisdictions other than Victoria. However, reviews of those schemes have emphasised the
1 The unlawful association scheme was inserted into the COCA by the Criminal Organisations Control Amendment (Unlawful Associations) Act 2015 (Vic). The unlawful association provisions commenced on 1 July 2016.
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necessity of reviewing the targets of unlawful association notices, to ensure the systems operate fairly and without harassment.
About this review This review is Stage One of a two-stage review process. It fulfils the COCA requirement to review the Act within one year of the reporting period's end, that is, by 30 June 2020. At the request of the Attorney-General, Stage Two will be completed once COVID-19 pandemic impacts ease. Stage One reports on whether the: a. policy objectives of the COCA remain valid, and b. provisions in the COCA work, in practice, to achieve those objectives.
Conclusions reached by this review The Review Panel concludes that preventing and disrupting organised crime is a valid policy objective that should be continuously and vigorously pursued. With respect to the COCA’s mechanisms for achieving that objective, the Review Panel finds that: • Preventing and disrupting organised crime through declaration and control orders is no longer a valid policy mechanism. The COCA has significant barriers to using its provisions, which have deterred Victoria Police from making applications. The scheme is also fundamentally ill-suited to the contemporary nature of organised crime. • Recognising declarations and control orders made in other jurisdictions is a valid policy mechanism only if the scheme is used, but should remain as long as the COCA is retained. • Preventing individuals associating with serious criminals to disrupt organised crime may be a valid policy mechanism. However, the present scheme in Victoria has not been used and therefore cannot be seen as currently achieving the COCA’s policy objectives. Further consideration should be given to developing a more operationally practical and effective scheme.
Recommendations The Review Panel recommends that: 1. The objective of preventing and disrupting organised crime continues to be pursued vigorously. 2. The objective of preventing and disrupting organised crime be pursued by means other than the declaration and control order provisions in the COCA. 3. Consideration be given to developing a more operationally practical and effective method of limiting associations between serious criminals and others likely to be involved in organised crime. 4. Further work be done, in consultation with stakeholders, to strengthen existing legislation and develop and implement additional provisions to prevent and disrupt organised crime in Victoria.
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Next steps Stage Two will provide recommendations for future initiatives. Stakeholders will have the opportunity to make submissions in response to a discussion paper on Victoria’s organised crime laws. They will also be invited to participate in roundtable discussions with the Review Panel.
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Glossary
Attorney-General Attorney-General of Victoria Australian Criminal Australia’s national criminal intelligence agency, operating as the Intelligence Commission ACIC since July 2016 when the former Australian Crime Commission and CrimTrac were merged Australian Federal Police Australia's national law enforcement agency, whose role is to enforce Commonwealth criminal law, contribute to combating complex, transnational, serious and organised crime impacting Australia's national security, and to protect Commonwealth interests from criminal activity in Australia and overseas Charter Victoria’s Charter of Human Rights and Responsibilities Act 2006 (Vic) Civil standard of proof The level of evidence and certainty required to prove a case in a civil proceeding. A court must be satisfied that the case has been proved on the balance of probabilities Chief Commissioner of The chief constable and chief executive officer of Victoria Police Police who, subject to direction of the Minister for Police and Emergency Services, is responsible for the management and control of Victoria Police COCA Criminal Organisations Control Act 2012 (Vic) Community Safety A shared annual agreement between the Victorian Government Statement and Victoria Police to reduce crime and keep the community safe Consorting laws Legislative schemes allowing police to prohibit the association of two or more people, like Victoria’s unlawful association scheme Control order A Supreme Court order made under Part 3 of the COCA, which aims to protect the public by restricting the activities of a person or organisation Criminal intelligence Information collected and analysed by Victoria Police and other law enforcement agencies. This includes information which connects a person to criminal activity, which, if revealed, could prejudice an investigation, expose police informers or endanger the public Criminal standard of The level of evidence and certainty required to prove a case in a proof criminal proceeding. A court must be satisfied that the case has been proved beyond reasonable doubt Declaration A declaration made under Part 2 of the COCA by the Supreme Court, which makes an individual or organisation a declared individual or declared organisation Disruption A technique used by law enforcement agencies to deter or prevent a person or organisation from engaging in crime by impacting their networks, lifestyle or routine High Court High Court of Australia Organised crime Criminal activity that is planned and undertaken by a group of people for financial or other material gain
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Outlaw motorcycle gang A term commonly used to describe a motorcycle club engaged in, or whose members are engaged in, criminal activity Review Panel The Review Panel comprises the Honourable Margaret White AO, former Judge of the Supreme Court of Queensland and Mr Andrew Cappie-Wood, former Secretary of the New South Wales Department of Justice Scrutiny of Acts and A Victorian Parliamentary committee established to scrutinise non- Regulations Committee policy aspects of proposed legislation, including whether a proposed law is compatible with the Charter Supreme Court Supreme Court of Victoria Unlawful association Any association between individuals which may be prohibited by a notice issued by Victoria Police under Part 5A of the COCA Victorian Equal An independent statutory body with responsibilities under the Equal Opportunity and Human Opportunity Act 2010 (Vic), Racial and Religious Tolerance Act Rights Commission 2001 (Vic) and Charter of Human Rights and Responsibilities Act 2006 (Vic) Victoria Police Victoria’s primary law enforcement agency
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1. Introduction 1.1 Purpose of the review Under section 137 of the COCA, the Attorney-General must cause a review to be undertaken of the COCA’s operation and effectiveness during the reporting period 13 March 2013 to 30 June 2019. The reporting period began with COCA’s introduction and ended three years after the unlawful association amendments commenced.2 The review must be done within one year of the reporting period ending, that is, by 30 June 2020. In addition, the Victorian Government’s Community Safety Statement 2018-19 includes several commitments that target organised crime. These include a commitment to undertake a broader examination of the criminal organisation control laws to help identify ways to improve the powers available to Victoria Police to disrupt criminal gang activities. This review is intended to meet the statutory requirement in section 137 of the COCA and part of the commitment in the Community Safety Statement 2018-19.
1.2 Terms of reference The review’s terms of reference are to: 1. Review the operation and effectiveness of the COCA, during the period 13 March 2013 to 30 June 2019, including but not limited to consideration of whether the: a. policy objectives of the COCA remain valid, and b. terms of the COCA work, in practice, to secure those objectives. 2. Review organised crime laws more broadly to identify any other opportunities to improve the Victorian response to criminal organisations, including: a. improved use of existing legislation b. potential legislative amendments to other schemes, and c. any other non-legislative approaches. The review may make recommendations to the Attorney-General on any of these matters. In conducting the review, consideration is to be given to the relevant rights and freedoms set out in Victoria’s Charter of Human Rights and Responsibilities Act 2006 (the Charter).
1.3 Method and scope of the review Prior to the COVID-19 pandemic, the Review Panel was required to report to the Attorney- General on all terms of reference by 30 June 2020. However, the pandemic significantly disrupted the review. In particular, the Review Panel was unable to consult with key stakeholders in depth. As a result, the Attorney-General asked for the review to be conducted in two stages: • Stage One (this report) addresses the first term of reference. It enables the statutory reporting timeline under section 137 of the COCA to be met. • Stage Two addresses the remaining term of reference. It enables significant in-depth consultation with stakeholders to take place once pandemic impacts ease.
2 The unlawful association amendments commenced on 1 July 2016. The reporting period therefore ended on 30 June 2019.
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Stage One method In Stage One, the Review Panel examined relevant literature, reports and other materials. These included: • similar Acts in other States and Territories, including any statutory reviews • case law, legislation and other legislative material • relevant books, journal articles and other academic literature • parliamentary documents, including submission papers, transcripts and consultation papers • relevant media reports, media releases and online articles. The Review Panel also met with Victoria Police in two extensive online meetings. It considered Victoria Police’s input on how the Act was operating, including its insights and experience with the COCA.
Stage Two method Stage Two will commence when the impact of the COVID-19 pandemic has eased, allowing valuable engagement with stakeholders. In Stage Two, the Review Panel will: • revisit the COCA to consider issues arising from the deferred Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018 • meet the commitment in the Community Safety Statement 2018-19 to examine Victoria’s organised crime laws more generally. It will not, however, encompass relevant but related commitments in relation to unexplained wealth and asset confiscation, which are a separate body of work, and • engage relevant government departments, statutory authorities and external stakeholders to identify ways to improve the Victorian response to organised crime.
1.4 Review Panel The Review Panel comprises the Honourable Margaret White AO, former Judge of the Supreme Court of Queensland and Mr Andrew Cappie-Wood, former Secretary of the New South Wales (NSW) Department of Justice. Policy officers of the Department of Justice and Community Safety provided research and secretariat support to the Review Panel.
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2. The Victorian statutory framework
On 14 November 2012, the Victorian Government introduced the Criminal Organisations Control Bill 2012 into the Victorian Parliament. At the time, the then Attorney-General said the legislation would address the serious and ongoing threat to public safety and order posed by criminal organisations in Victoria.3 The legislation was designed to target organised crime groups, as well as legitimate organisations that criminals were attempting to infiltrate for serious criminal purposes.4 However, as other jurisdictions had experienced, much of the commentary focused on outlaw motorcycle gangs (OMCGs). The activities of OMCGs were of particular concern at the time, prompted by a series of alarming incidents (see section 4.1). Since the COCA came into effect in March 2013, successive governments have made consistent efforts to improve the usability of the Act, largely in response to concerns raised by Victoria Police. In 2015, an unlawful association scheme was added, one of nine amendments to the COCA over the reporting period. Three sets of those amendments have resulted in substantive changes.
2.1 Declaration and control order scheme The COCA allows the Chief Commissioner of Police (Chief Commissioner) to apply to the Supreme Court for a declaration that an organisation is a ‘declared organisation’ or that an individual is a ‘declared individual’.5 To satisfy the court that an organisation should be declared, Victoria Police must present evidence or intelligence which indicates that the organisation has engaged in, organised, facilitated or supported serious criminal activity. Or, that at least two current, former or prospective members of the organisation are using the organisation for a criminal purpose.6 The COCA provides examples to illustrate who would be considered a member of an organisation. These include individuals who: • pay a membership fee to join an organisation • have been accepted through a set joining process, or • display the patches or insignia of the organisation.7 Office holders – like a sergeant-at-arms of a motorcycle club – are also considered members.8 Once the Supreme Court has made a declaration, the Chief Commissioner may then apply to the Supreme Court for a control order against the organisation or its members, or against the declared individual.9 The Court may make a control order if it is necessary or desirable to restrict,
3 Victoria, Parliamentary Debates, Legislative Assembly, 15 November 2012, 5070 (Robert Clark, Attorney-General). 4 Victoria, Parliamentary Debates, Legislative Assembly, 15 November 2012, 5071 (Robert Clark, Attorney-General). 5 Criminal Organisations Control Act 2012 (Vic) s 19. 6 Criminal Organisations Control Act 2012 (Vic) s 19(2B). 7 Criminal Organisations Control Act 2012 (Vic) s 3(1) (definition of ‘member’). 8 Criminal Organisations Control Act 2012 (Vic) ss 3(1) (definition of ‘member’) and 6. 9 Criminal Organisations Control Act 2012 (Vic) s 43.
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or to impose conditions on, the activities of the individual in order to end, prevent or reduce a serious threat to public safety and order.10 The Court may impose a variety of conditions on a declared organisation, such as: • prohibiting it from continuing to operate or take on new members, or • requiring it to exclude certain members from its activities.11 The Court may also prohibit a declared individual from: • using property belonging to an organisation, or • associating with another member of a declared organisation or their associates.12 An individual who breaches a control order is subject to a maximum penalty of 600 penalty units, imprisonment for five years, or both. The maximum penalty for a body corporate is 3000 penalty units.13
Use of criminal intelligence Central to the COCA’s scheme of declarations and control orders is the use of criminal intelligence to prove why a declaration or control order should be made. If the Chief Commissioner intends to rely on criminal intelligence in an application for a declaration or control order, the Chief Commissioner can apply to the Supreme Court for an order protecting the intelligence.14 This is designed to protect ongoing criminal investigations, undercover police operations and individuals who have cooperated with police. While the COCA provides a mechanism for police to apply to protect intelligence, the Court retains the ultimate discretion about how to balance the need to protect sensitive information against the requirements for fairness to a respondent.
Amendments to the scheme to improve its use The declaration and control order scheme in the COCA has been substantially amended twice in response to Victoria Police concerns about its usability. In 2014, it was amended to broaden the range of criminal offences on which a declaration could be based, by both reducing the requisite seriousness of the offence15 and removing the requirement that the offence have certain characteristics16 of organised crime.17 Among other changes to strengthen the scheme,18 the 2014 amendments also introduced a two-tiered scheme of ‘prohibitive’ and ‘restrictive’ declarations for organisations.19 The ‘restrictive’ declaration was for less serious circumstances and would require only the civil standard of proof, rather than the
10 Criminal Organisations Control Act 2012 (Vic) s 43. 11 Criminal Organisations Control Act 2012 (Vic) s 45. 12 Criminal Organisations Control Act 2012 (Vic) s 47. 13 Criminal Organisations Control Act 2012 (Vic) s 68(1). 14 Criminal Organisations Control Act 2012 (Vic) s 70. 15 To offences punishable by a maximum of five years imprisonment rather than 10. 16 Such as involving multiple offenders, substantial planning and organisation, and forming part of systemic activity. 17 Criminal Organisations Control and Other Acts Amendment Act 2014 (Vic), ss 60-61. 18 For example, the 2014 amendments also added mechanisms to ensure declared organisation members could not avoid the COCA simply by quitting the group or switching to another group, and made the consequences of a declaration more serious, with implications for firearms licensing and coercive investigative powers. 19 Criminal Organisations Control and Other Acts Amendment Act 2014 (Vic) s 60.
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higher criminal standard which was retained for the ‘prohibitive’ declaration.20 The control orders flowing from ‘restrictive’ declarations also had a lower threshold: they could be imposed if necessary or desirable for public safety and order (rather than if likely to contribute to prevention or disruption of serious criminal activity).21 The Victorian Equal Opportunity and Human Rights Commission raised concerns that the 2014 amendments would subject an even broader class of people to potentially serious restrictions on their human rights based on an association with a group rather than on any illegal activity.22 In 2016, the COCA was amended further to remove the distinction between prohibitive and restrictive declarations.23 This followed legal advice obtained by Victoria Police indicating it would be unable to meet the criminal standard of proof for a declaration application.24 Since then, the lower threshold applies to all declarations and control orders. The amendments are outlined in more detail in the Appendix. Despite the amendments, Victoria Police has not yet made an application for a declaration or control order under the COCA.
Recognition of declarations and control orders made in other jurisdictions The COCA allows the Chief Commissioner to apply for the registration of a declaration or control order made under a corresponding interstate scheme.25 The Court can register an interstate order with variations that enable it to have effect in Victoria.26 Once registered, interstate declarations and control orders can be treated and enforced in the same way as those made locally.27 Similarly, those jurisdictions with declaration and control order legislative regimes permit registration of declarations and control orders of other jurisdictions, including Victoria. This means criminal organisations cannot avoid an order's restrictions by moving their operations across a State or Territory border.28
2.2 Unlawful association scheme Soon after the 2014 amendments to the COCA, calls were made for Victoria to follow the lead of other States and introduce new anti-consorting or ‘unlawful association’ laws. The Police
20 Criminal Organisations Control and Other Acts Amendment Act 2014 (Vic) s 65. 21 Criminal Organisations Control and Other Acts Amendment Act 2014, s 73 inserted the new tests. For an organisation with a prohibitive declaration, the Court had to be satisfied that “the making of the control order is likely to contribute to the purpose of preventing or disrupting serious criminal activity by the organisation or any members, former members or prospective members of the organisation”. For an organisation with a restrictive declaration, the test was “it is necessary or desirable to restrict, or to impose conditions on, the activities of the organisation or any members, former members or prospective members… in order to end, prevent or reduce a serious threat to public safety and order”. 22 Victorian Equal Opportunity and Human Rights Commission, Submission to the Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Criminal Organisations Control and Other Acts Amendment Bill 2014 – Submission to the Scrutiny of Acts and Regulations Committee on human rights issues raised by the Bill (15 July 2014) 9-10. 23 Confiscation and Other Matters Amendment Act 2016 (Vic) s 32. 24 Victoria, Parliamentary Debates, Legislative Council, 26 May 2016, 2481 (Steven Herbert, Minister for Training and Skills). 25 Criminal Organisations Control Act 2012 (Vic) s 86. 26 Criminal Organisations Control Act 2012 (Vic) s 88. 27 Criminal Organisations Control Act 2012 (Vic) s 96. 28 Section 3 (1) of the Criminal Organisations Control Act 2012 (Vic) provides for a provision of a law of another jurisdiction to be prescribed under the Regulations. The Criminal Organisation Control Regulations 2013 (Vic), which came into effect on 19 March 2013, identified the relevant provisions in New South Wales, Northern Territory, Queensland, South Australian and Western Australian legislation which cover declaration and control orders.
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Association of Victoria used the example of a motorcycle convoy of Queensland-based OMCG members coming into Victoria to illustrate why unlawful association laws were needed.29 In September 2015, a new Bill was introduced to amend the COCA, adding unlawful association provisions and repealing the offence of consorting from the Summary Offences Act 1966.30 These amendments were designed “to modernise the offence of consorting so that it was better suited to preventing serious and organised crime.”31 Like the original provisions of the COCA, the scheme also aimed to target OMCGs.32 It was to align with similar schemes in other jurisdictions and move towards a more uniform approach to bikie gangs across Australia.33
Powers under the unlawful association scheme Part 5 of the COCA enables a senior police officer to issue an unlawful association notice to an adult, prohibiting that person from associating with a convicted offender. The officer must reasonably believe that prohibiting the association would likely prevent an offence from being committed.34 The notice prohibits the person from associating with the specified individual more than three times in a three-month period, or more than six times in a 12-month period.35 There are several exceptions, such as associating with family if the association is not for an ulterior purpose.36 Breaches of the unlawful association notice carry a maximum penalty of three years' imprisonment, a penalty of 360 penalty units, or both.37
Proposed amendment to the scheme to improve its use In July 2018, the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018 was introduced into Parliament to amend the unlawful association scheme.38 The Bill was developed in consultation with Victoria Police, with the aim of making the unlawful association scheme more effective.39 At the time, no unlawful association notices had been issued. The Bill proposed, among other things, to: • lower the minimum age of a person who could be issued with a notice • lower the thresholds for unlawful association • lower the rank of the police officer able to issue a notice • enable the scheme to apply to people convicted of offences in other jurisdictions
29 ABC News 2014, ‘Bikie gangs increasingly seeing Victoria as safe haven, police association says’, 17 November, viewed 17 June 2020,
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• replace the term ‘family member’ with the narrower and more objective term ‘relative’, and • give the Independent Broad-based Anti-corruption Commission an oversight role of police use of the scheme.40 The Bill met with some concern from a human rights perspective.41 Some stakeholders were particularly critical about the expansion of the scheme to include children,42 while other stakeholders noted that lowering the threshold for unlawful association may allow the laws to be used in situations not envisaged by the Bill, such as during lawful industrial action. The Bill passed the Legislative Assembly in 2018, however, it lapsed in the Legislative Council due to the proroguing (ending) of the 58th session of the Victorian Parliament. The proposed amendments will be considered in more detail in Stage Two.
2.3 The human rights Charter and its relevance to the COCA No legislation can be introduced in Victoria without regard to Victoria’s human rights framework, which is set out in the Charter. Many of the rights in the Charter are relevant to the COCA. For example, the right to freedom of association, the right to protection of families and the right to a fair hearing.43 The Charter promotes and protects human rights in various ways. It ensures that statutes are interpreted in accordance with rights, as far as possible. It also: • requires all public authorities to act compatibly with human rights • requires a statement of compatibility with human rights to be prepared for each Bill introduced into the Parliament, and • allows a special Parliamentary committee to report on that compatibility.44 Legislation introduced in Victoria may limit the rights set out in the Charter if the limits are reasonable and can be demonstrably justified.45 However, unless the Charter’s application is overridden by Parliament,46 consideration of fundamental rights will continue to play a role in the law’s operation and interpretation. A relevant example, in the context of the COCA, is the Court’s likely consideration of a respondent’s right to a fair hearing in considering whether to protect criminal intelligence.
40 Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018 (Vic). 41 Scrutiny of Acts and Regulations Committee, Parliament of Victoria 2018, Alert Digest Number 11 of 2018. 42 See, for example, Commissioner for Children and Young People, Submission to the Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Submission on the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018 (6 August 2018) 2. 43 Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 16, 17 and 24. 44 The Scrutiny of Acts and Regulations Committee. See Charter of Human Rights and Responsibilities Act 2006 (Vic) s 1(2). 45 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7. 46 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 31.
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3. Organised crime landscape
The fluid and evolving nature of contemporary organised crime, and the speed of technological advances, present real challenges for legislators as well as for law enforcement agencies. Legislative responses to organised crime are particularly prone to becoming outdated in such a rapidly evolving and dynamic context. The challenge for lawmakers is to develop legislative responses that are adaptive, nimble and effective for law enforcement.
3.1 Definition of organised crime There is no commonly accepted definition of ‘organised crime’ internationally, across Australian jurisdictions or even within a single jurisdiction.47 However, most definitions share core characteristics. These include that the criminal activity is serious, engaged in for financial or other material gain, undertaken by a group of at least two or three people, and is planned and ongoing.48 The COCA does not include a definition of organised crime. The main legislative definition of organised crime in Victoria can be found in the Major Crime (Investigative Powers) Act 2004.49
3.2 Prevalence of organised crime in Australia Victoria Police indicates that, anecdotally, nearly all levels of crime in Victoria can be linked to organised crime. The Australian Criminal Intelligence Commission (ACIC) reports that modern organised crime groups operate across a wide variety of crime types, reportedly trading in illicit drugs, illicit and counterfeit pharmaceuticals, tobacco, firearms and precursor chemicals.50 It is a challenge to gather reliable data about organised crime, its prevalence and impact51 due to the limitations of traditional methods of recording crime statistics, and the adaptive nature of organised crime. Victoria’s Chief Statistician52 advised the Review Panel that data was not necessarily collected on 'organised crime'. Instead, individual incidents of crime are recorded. Victoria Police may indicate that an incident relates to organised crime at the time it is reported. However, offending may only be identified as organised crime-related at a later stage in an investigation. As the initial records largely contribute to official crime statistics, the Crime Statistics Agency considers that organised crime-related offences in Victoria may be significantly undercounted. The methodological challenges in drawing a reasonably accurate picture of the prevalence and cost of serious and organised crime in Australia, from the available data, is illustrated in the elaborate process developed by the Australian Institute of Criminology and described in its most
47 Department of Justice and Attorney-General (Qld) 2016, Report of the Taskforce on Organised Crime Legislation, p. 14. 48 Victorian Law Reform Commission 2015, Regulatory Regimes and Organised Crime: Consultation Paper, Chapter 2, ‘The Nature of Organised Crime’. 49 Under s 3AA of the Major Crime (Investigative Powers) Act 2004 (Vic), an ‘organised crime offence’ is an indictable offence against the law of Victoria that is punishable by level 5 imprisonment (10 years maximum) or more, involves two or more offenders, involves substantial planning and organisation, forms part of systemic and continuing criminal activity, and has a purpose of obtaining profit, gain, power or influence or of sexual gratification where the victim is a child. An ‘organised crime offence’ also includes an offence where two or more of the offenders involved in the offence are, at any time, either declared individuals or members of a declared organisation under the COCA. 50 Board of the Australian Criminal Intelligence Commission 2019, Chair Annual Report (2017-18), pp. 52-53; Australian Criminal Intelligence Commission 2016, Illicit drugs, viewed 12 March 2020,
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recent report, published in 2018.53 This process revealed a figure of up to $47.4 billion in 2016-17 as the cost to Australia of organised crime. This included $31.5 billion for the cost of serious and organised criminal activity as well as the serious and organised component of conventional crimes. The ACIC and its predecessors estimate that the profits from organised crime nationally amounted to $15 billion in 2013-14, growing to $31.5 billion in 2016-17. The organised crime environment is not constrained by state or national borders and now 70 per cent of Australia’s serious criminal threats are based offshore or have strong offshore links.54 This demonstrates that in the years since the commencement of the COCA, organised crime across Australia has increased significantly in its reach, size and capability. The Crime Statistics Agency has suggested possible data collection reforms to the Review Panel which could overcome some of the limitations in the present methodology for collecting foundational data in Victoria. The Review Panel may explore these suggestions and other matters relating to data collection in Stage Two.
3.3 Evolution of organised crime groups Organised crime groups have evolved over the review period, and continue to evolve, at a rapid pace.55 Law enforcement has reported a degree of relaxation of membership rules and an increase in fluidity among what were traditionally more exclusive and ideologically siloed organised crime groups. Victoria Police has observed a move towards more dynamic networks and the intersection of members. For example, while OMCGs began as highly structured and exclusive organisations, they have more recently been observed collaborating with people who would not meet their traditional membership requirements, in order to expand their base or activities. Rapid advances in technology have also fuelled the evolution of organised crime. Technology has: • removed challenges associated with geographical borders, increasing the potential for bigger and more fluid organisations and cross-border and transnational crime • enhanced organised crime groups’ capacity to expand their operations • delivered far greater access to tools to evade law enforcement such as encrypted technology and communication devices,56 and • enabled anonymised illicit transactions, for example via the dark web. Technology has also increased activity in serious financial crime, including fraud in financial markets, taxation, credit cards and superannuation.57 The Australian Competition and Consumer Commission estimates that in 2019 online scams cost Australians over $630 million.58
53 Smith, RG, Australian Institute of Criminology 2018, Estimating the cost of serious and organised crime in Australia 2016-17. The approach relies on multiplying official records to account for undetected and unreported crimes and estimated indirect costs, such as loss of productivity. 54Australian Criminal Intelligence Commission 2018, Annual Report 2017-18, p. 70. 55 Australian Criminal Intelligence Commission 2017, Organised Crime in Australia 2017, p. 2. 56 Australian Criminal Intelligence Commission 2017, Organised Crime in Australia 2017, p. 11. 57 Australian Criminal Intelligence Commission 2017, Organised Crime in Australia 2017, p. 5. 58 Australian Competition and Consumer Commission 2020, ‘Scams cost Australia over $630 million’, Media Release, 22 June, viewed 23 June 2020, https://www.accc.gov.au/media-release/scams-cost-australians-over-630-million>.
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In all, the situation has aptly been described as “similar to a continuous game of cat-and-mouse, in which [the law enforcement agencies] frequently remain two or more steps behind.”59
3.4 Disruption as a tactic to fight organised crime A range of criminal offences exist to punish the individual crimes related to a criminal organisation’s illegal activities, such as drug trafficking offences, firearms offences and homicide. However, prosecution-based law enforcement is reactive and focused on collecting a high standard of evidence about individual incidents of crime against identifiable offenders. For this reason, it has rightly been observed that although it is an important element of justice, prosecution of individual crimes has limited impact on organised crime reduction and prevention.60 Disruption, on the other hand, has been described as a “‘flexible, transitory, and dynamic tactic, which can be used more generally to make the environment hostile for the organised crime group…this approach focuses on disrupting the offender’s networks, lifestyles and routines.”61 Disruption tactics can be used in creative and layered ways,62 and include: • restricting access to high risk industries such as sex work and freight industries • restricting access to high risk environments such as casinos and racecourses • giving police greater access to places suspected of being linked to organised crime, for example, by forcibly removing physical barriers at fortified premises or increasing police search powers • restricting access to tools commonly used in serious criminal activity, such as firearms • targeting proceeds of crime, for example, high-value cash transactions and unexplained wealth • restricting association between known or suspected criminals, and • taking a ‘zero tolerance’ approach to low-level offences. At the same time, the disruption approach has been said to highlight some critical questions about how police identify suspects and avoid unwarranted harassment,63 noting that in Victoria, law enforcement policy and operational activity is subject to the Charter.
59 Duijn, PAC and Sloot, PMA 2015, ‘From Data to Disruption,’ Digital Investigation, vol. 15, pp. 39-45, p. 39. 60 Kirby, S, Northey, H and Snow, N 2015, ‘New crimes – new tactics: the emergence and effectiveness of disruption in tackling serious organised crime’, Journal of Political Criminology, vol. 1, pp. 33-44, p. 35. 61 Kirby, S and Penna, S 2010, ‘Policing mobile criminality: towards a situational crime prevention approach to organised crime’, in K Bullock, RV Clarke and N Tilley (eds.), Situational prevention of organised crime, Willan Publishing, Collumpton, pp. 193–212, p. 205. 62 See for example, College of Policing (UK), What Works Centre for Crime Reduction, Disrupting Serious and Organised Criminals: Menu of tactics, viewed 11 May 2020,
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4. Australian control order schemes
From about 2007, a wave of high-profile crimes linked to OMCGs prompted most Australian jurisdictions, including Victoria, to introduce control order legislation. Control order legislation was novel. It employed disruption tactics, targeting criminal networks before crimes were committed and creating an environment hostile to criminal activity. In Victoria, criminal organisations were considered “resistant to traditional policing methods”.64 Across Australia, governments were looking for a new approach.
4.1 OMCG-related crimes – a catalyst for change OMCGs are “highly-visible crime entities, with a presence in all Australian states and territories”.65 They use fear and intimidation, and their reach, strength and profile to enhance their reputation, obtain financial gain and recruit new members. Their illegal activities include crimes related to drugs, serious fraud, money laundering, tax evasion, serious sexual offences, firearms, blackmail, extortion and violence. The ACIC reports that it is difficult to determine the percentage of organised crime attributed to OMCG members.66 However, media reporting of high-profile instances of OMCG-related crime has increased public awareness of their involvement in criminal activity.67
From 2007, several high-profile violent crimes have been linked to OMCGs: • In June 2007, a Melbourne man assaulted his girlfriend on a busy street in Melbourne’s CBD during morning peak hour. He produced a gun and shot the woman and two bystanders who came to her aid. One of the bystanders was killed. The incident attracted significant media attention with reports of the man’s connections to the Hells Angels Motorcycle Club. • Also in June 2007, four members of the Rebels Motorcycle Club were seriously injured in a well- publicised shooting in an Adelaide nightclub. The then Assistant Commissioner of the South Australian Police Force said that there was no evidence to suggest the members were targeted by a rival OMCG. However, media outlets linked the incident to increasing concerns about an impending war between rival gangs. • In March 2009, a member of the Hells Angels Motorcycle Club was killed in a brawl between the Hells Angels and the Comanchero Motorcycle Club at Sydney Airport. The brawl was reportedly linked to a feud between the two OMCGs, which erupted after a Hells Angels clubhouse was bombed. A week later, the brother of the victim was seriously injured in a shooting attack. These events were seen as a culmination of escalating violence in NSW, which included an unrelated series of drive-by shootings involving the Bandidos and Notorious Motorcycle Clubs on the same afternoon as the Sydney Airport incident.
64 Victoria, Parliamentary Debates, Legislative Assembly, 15 November 2012, 5070 (Robert Clark, Attorney-General). 65 Board of the Australian Criminal Intelligence Commission 2019, Chair Annual Report (2017-18), p. 28. 66 Australian Criminal Intelligence Commission 2019, Organised crime groups, viewed 12 March 2020,
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• In November 2011, the Bandidos Motorcycle Club sergeant-at-arms was shot in daylight outside a popular gym in the Melbourne suburb of Brunswick. It was reported that the incident was witnessed by members of the public, including young children. • In November 2012, a senior member of the Comanchero Motorcycle Club was charged with offences relating to his involvement in a drug syndicate operating between Australia and Mexico. The charges followed a 16-month investigation by a joint multi-agency taskforce that included Victoria Police. • In October 2013, ABC News reported that more than 700 Victoria Police and Australian Federal Police (AFP) officers carried out 60 raids on clubhouses and other properties in Victoria linked to the Hells Angels Motorcycle Club, in response to several violent incidents involving firearms. Thirteen people were arrested during the raids, including some senior members of the Hells Angels. Police seized weapons, ammunition, drugs and cash from the properties.
4.2 States and Territories consider a national approach In September 2007, a Commonwealth parliamentary inquiry into the future impact of serious and organised crime found that Australia faced a growing threat. It found that “the increasing use of technology, transnational connections and fluidity of organised crime groups will make law enforcement's task of policing organised crime's illicit activities more difficult”.68 In November 2007, following the shooting incident at the Adelaide nightclub, the South Australian Government introduced the Serious and Organised Crime (Control) Bill 2007.69 The Bill represented a new approach to tackling serious and organised crime in Australia. It established a framework to declare organised crime groups and make orders restricting their activities. The Bill was openly aimed at OMCGs, with the intention of preventing crime and breaking up gangs.70 Initially, all other States and Territories “adopted a ‘wait-and-see’ approach” to the South Australian laws.71 However, the Sydney Airport incident in March 2009 sparked increased interest in a legislative response to OMCG violence. By the following month, State and Territory Ministers at the Standing Committee of Attorneys-General (SCAG) had agreed “that organised crime is a national issue requiring a nationally coordinated response by all jurisdictions.”72 Jurisdictions agreed to consider introducing a range of legislative responses to organised crime, including “consorting or similar provisions that prevent a person associating with another person who is involved in organised criminal activity as an individual or through an organisation”.73 The then Victorian Attorney-General supported a national approach, noting it was the intention of the Committee that “no jurisdiction can become a safe haven” for organised crime groups.74
68 Parliamentary Joint Committee on the Australian Crime Commission, Parliament of Australia 2007, Inquiry into the future impact of serious and organised crime on Australian society, p. 28. 69 Serious and Organised Crime (Control) Bill 2007 (SA); New South Wales Ombudsman 2016, Review of police use of powers under the Crimes (Criminal Organisations Control) Act 2012, pp. 9-10. 70 Rann, M, Premier (SA) 2007, ‘New laws to dismantle criminal bikie gangs’, Media Release, 5 July, cited in Parliamentary Joint Committee on the Australian Crime Commission, Parliament of Australia 2009, Inquiry into the legislative arrangements to outlaw serious and organised crime groups, p. 47. 71 Parliamentary Joint Committee on the Australian Crime Commission, Parliament of Australia 2009, Inquiry into the legislative arrangements to outlaw serious and organised crime groups, p. 157. 72 Standing Committee of Attorneys-General, 2009, Communiqué, 16-17 April, p. 8. 73 Standing Committee of Attorneys-General, 2009, Communiqué, 16-17 April, p. 8. 74 ABC News 2009, ‘A-Gs agree on national bikie powers’, 16 April, viewed 16 June 2020,
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Joint Committee report on legislation to outlaw organised crime In August 2009, the Commonwealth Parliamentary Joint Committee on the Australian Crime Commission reported on its inquiry into the legislative arrangements to outlaw serious and organised crime groups.75 The inquiry was established following the introduction of South Australia’s declaration and control order scheme. It found “overwhelming evidence of the changing character of organised crime groups from tightly structured hierarchical, enduring groups to flexible, market-driven networks”.76 The Committee regarded laws targeting associations between people as “complex, and fraught with legal and constitutional difficulties”77. Its report recommended considering a court-ordered control order scheme, similar to an approach adopted in the United Kingdom (UK). The report highlighted the need for a strategic, cross-jurisdictional approach.78
Evolving OMCGs add to the debate Throughout this period, police were also observing an evolution in OMCGs. In 2007, an AFP Assistant Commissioner noted that the AFP had “started to see a very small element of the outlawed motorcycle gangs becoming corporatised and using more sophisticated business structures in their transactions”.79 In 2011, the media was reporting that OMCGs had begun to relax their membership rules, expanding rapidly by boosting their ranks with “Nike bikies” (new- aged, tech-savvy non-motorcycle riders).80 In this context, five jurisdictions reconsidered their response to South Australia’s legislation, introducing criminal organisation laws.81 Several jurisdictions also modernised their consorting offences to implement the SCAG agreement.
The widespread introduction of criminal organisation laws All Australian jurisdictions introduced criminal organisation laws between 2008 and 2012 including control order schemes, except Tasmania and the Australian Capital Territory.82 While
75 Parliamentary Joint Committee on the Australian Crime Commission, Parliament of Australia 2009, Inquiry into the legislative arrangements to outlaw serious and organised crime groups. 76 Parliamentary Joint Committee on the Australian Crime Commission, Parliament of Australia 2009, Inquiry into the legislative arrangements to outlaw serious and organised crime groups, p. 33. 77 Parliamentary Joint Committee on the Australian Crime Commission, Parliament of Australia 2009, Inquiry into the legislative arrangements to outlaw serious and organised crime groups, p. 94. 78 Parliamentary Joint Committee on the Australian Crime Commission, Parliament of Australia 2009, Inquiry into the legislative arrangements to outlaw serious and organised crime groups, p. 33. 79 Evidence to Parliamentary Joint Committee on the Australian Crime Commission, Parliament of Australia, 6 November 2008, 32 (Assistant Commissioner Morris, Australian Federal Police), cited in Parliamentary Joint Committee on the Australian Crime Commission, Parliament of Australia 2009, Inquiry into the legislative arrangements to outlaw serious and organised crime groups, p.22. 80 Ralston, N & Howden, S 2011, ‘Police gang up nationally to catch ‘Nike bikies’, St George & Sutherland Shire Leader, 27 July, viewed 17 June 2020, https://www.theleader.com.au/story/931581/police-gang-up-nationally-to-catch-nike-bikies/; Lauchs, M 2017, ‘Nike Bikies’, in A Bain and M Lauchs (eds), Understanding the Outlaw Motorcycle Gangs – International Perspectives, Carolina Academic Press, Durham, pp. 115-34. 81 Parliament of Australia, Parliamentary Joint Committee on the Australian Crime Commission 2009. Inquiry into the legislative arrangements to outlaw serious and organised crime groups, p. 158.
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the schemes varied between jurisdictions, they universally focused on the formal and hierarchical nature of groups. They required law enforcement to demonstrate how the organisation was structured, how it functioned, who its members were and how they worked together within the organisation.83 Media commentary, and statements from government ministers across jurisdictions, regularly referred to OMCGs as the main target of this legislative approach.84
4.3 Legal challenges to declaration and control order legislation Since their introduction, the control order schemes have faced a series of foundational legal challenges. The South Australian scheme, the first to be introduced, was the first to undergo a High Court challenge in 2010. The challenge was successful.85 NSW, which followed South Australia in introducing control laws,86 also experienced a successful High Court challenge shortly after its laws were introduced.87 Queensland introduced the Criminal Organisation Act 2009 in the same year as NSW.88 In 2013, a majority of the High Court upheld the Queensland legislation.89
High Court findings and subsequent amendments The High Court found that the South Australian scheme was invalid, as a decision of the Attorney-General to make a declaration was not judicially reviewable. Following the High Court’s decision, South Australia amended its scheme, giving the power to make declarations to the Supreme Court rather than the Attorney-General.90 The amended scheme also gave the Court discretion to impose a control order and required reasons to be given for its use, thus increasing the transparency and oversight of the scheme. In the NSW context, the High Court found the powers conferred on ‘eligible judges’, including the freedom from giving reasons to support their decisions, were inconsistent with the institutional integrity of the NSW Supreme Court.91 The scheme was repealed in 2012 and replaced by a new scheme that allows the Commissioner of Police to apply to the Supreme Court, as opposed to an ‘eligible judge’, for a declaration or a control order.92 It includes a requirement that the Court provide a written statement of reasons for any decision to make or revoke a declaration, increasing the scheme's transparency.93
States align with Queensland's scheme In contrast, Queensland's scheme survived a High Court challenge, perhaps because it had a more open approach to oversight and transparency. The challenge focused on provisions that
83 See, for example, Criminal Organisations Control Act 2012 (Vic) s 19; Criminal Organisation Act 2009 (Qld) s 10; Crimes (Criminal Organisations Control) Act 2009 (NSW) s 9. 84 See, for example, The Advertiser 2009, ‘Mike Rann calls on states to adopt SA’s anti-bikie laws’, 23 March, viewed 23 June 2020,
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protected criminal intelligence. Among other things, the majority of the High Court found that although the criminal intelligence provisions denied a respondent knowledge of how the Commissioner of Police aimed to prove an allegation, they did not deny knowledge of the allegation itself.94 As a result of this decision, other jurisdictions amended their legislation to align with the Queensland approach. 95 Indeed, the Queensland scheme was viewed as the best-practice model of criminal organisation law.
4.4 Reviews of criminal organisation control laws Most jurisdictions that have introduced criminal organisation control laws have reviewed their operation and effectiveness. Many reviews commented on the nearly insurmountable practical barriers to using the laws.
South Australia In 2015, the South Australian Parliamentary Crime and Public Integrity Policy Committee reviewed the South Australian scheme and the State’s unexplained wealth legislation. The Committee reported on its review of the unexplained wealth legislation in November 2017 and determined to report separately on the declaration and control order scheme. In its submission to the Committee, the South Australian Police Force stated that: efforts to draft and submit the declaration and control order applications have been onerous, time and resource intensive. The evidentiary burdens, complexity and volume of the required documentation does not address criminal behaviour by organised crime groups in a timely manner or maximise the benefit of the level of resources utilised.96
NSW The NSW Ombudsman reviewed the NSW scheme in 2016.97 The Ombudsman noted that, despite the continued focus of a dedicated and specialist unit within the NSW Police Force, applications had not progressed due to onerous procedural requirements and the fact that alternative powers to disrupt the activities of criminal organisations were available.98 The review concluded that applications for orders under the NSW provisions were resource intensive and operationally challenging.99 The Ombudsman recommended that the NSW legislation be repealed. However, a subsequent statutory review by the NSW Department of Justice took a different view.100 The statutory review considered the NSW control order scheme to be part of a suite of powers aimed at disrupting and restricting the activities of criminal groups, with the ultimate goal of protecting the public. The review noted the concerns raised by the Ombudsman about the difficulties in using the Act.
94 Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7, [163]. 95 New South Wales Ombudsman 2016, Review of police use of powers under the Crimes (Criminal Organisations Control) Act 2012, p. 11. See, for example, the Crimes (Criminal Organisations Control) Amendment Act 2013 (NSW) and the Serious and Organised Crime (Control) (Declared Organisations) Amendment Act 2013 (SA). 96 Clarification of evidence to Crime and Public Integrity Policy Committee, Parliament of South Australia, 2015, 6 (South Australian Police) cited in Ombudsman Western Australia 2017, Report by the Parliamentary Commissioner for Administrative Investigations under section 158 of the Criminal Organisations Control Act 2012 for the whole monitoring period, pp. 8-9. 97 New South Wales Ombudsman 2016, Review of police use of powers under the Crimes (Criminal Organisations Control) Act 2012. 98 New South Wales Ombudsman 2016, Review of police use of powers under the Crimes (Criminal Organisations Control) Act 2012, p. 21. 99 New South Wales Ombudsman 2016, Review of police use of powers under the Crimes (Criminal Organisations Control) Act 2012, p. 25. 100 Department of Justice (NSW) 2018, Statutory Review: Crimes (Criminal Organisations Control) Act 2012, p. 14.
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However, it recommended the Act remain in its current form, given it was possible NSW Police may want to use the powers in future.101
Queensland In 2016, Queensland repealed its criminal organisation control scheme in response to the recommendations of three reviews commissioned by the Queensland Government into organised crime.102 The scheme was replaced with a post-conviction control order scheme, similar to the post-conviction scheme in the UK.103 Control orders are now mandatory if a person is convicted of an offence where there is a serious organised crime circumstance of aggravation.104 The scheme also allows for discretionary control orders to be issued in some circumstances.
Western Australia In 2017, the Western Australian Parliamentary Commissioner for Administrative Investigations (often referred to as the Ombudsman) published a report on his monitoring activities for a period of five years under the Criminal Organisations Control Act 2012 (WA). The Commissioner of Police submitted that the application process was lengthy, resource intensive, and complicated by changes in organisation membership, consistent with the findings of reviews of similar laws in other jurisdictions.105 The Ombudsman review was followed by a separate statutory review of the Western Australian scheme by the Department of Justice in 2019.106 It found most stakeholders agreed the Act was cumbersome and that lawmakers should consider other methods of declaring criminal organisations.
101 Department of Justice (NSW) 2018, Statutory review: Crimes (Criminal Organisations Control) Act 2012, p. 14. 102 Serious and Organised Crime Legislation Amendment Act 2016 (Qld), Explanatory Notes. 103 Serious and Organised Crime Legislation Amendment Act 2016 (Qld), Explanatory Notes. See also Serious Crime Act 2005 (UK). 104 Penalties and Sentences Act 1992 (Qld) s 161V(1). 105 Ombudsman Western Australia 2017, Report by the Parliamentary Commissioner for Administrative Investigations under section 158 of the Criminal Organisations Control Act 2012 for the whole monitoring period, p. 7. 106 Department of Justice (WA) 2019, Statutory Review of the Criminal Organisations Control Act 2012 Final Report.
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5. Australian unlawful association schemes
Anti-consorting legislation was introduced in all Australian jurisdictions between 1928 and 1955. These laws were designed to help police “break up gangs and coteries of swindlers, thieves and persons living on immorality.”107 The laws remained in operation in all jurisdictions until the 1980s. The ACT repealed its consorting offence in 1983 with a view that it was no longer required.108 More recently, most Australian jurisdictions have modernised their consorting schemes to address gang activity and the illegal activities of OMCGs.109 The ACT is now the only Australian jurisdiction without a consorting law scheme.110
Northern Territory In 2006, the Northern Territory was the first jurisdiction to introduce a new generation consorting offence. The Commissioner of the Northern Territory Police Force can issue a consorting notice to a person, warning them not to consort with another person specified in the notice, if both people have previously been convicted of serious offences.111
NSW NSW revised its consorting scheme in 2012, introducing a new offence to replace that which had operated since the 1920s.112 Under the new provisions it is an offence for a person to consort with two convicted offenders on two occasions, if at least one occasion occurred after an official warning from NSW Police.113 The NSW scheme withstood a High Court challenge in 2014, brought after the appellant (the person starting the appeal) and his brother were prosecuted for breaching a consorting warning.114 The appellant was subsequently reported as saying the consorting warning had “ruined his life”.115 He considered the consorting scheme had little impact on organised crime in NSW, as those involved in serious and organised crime would not typically have conversations in
107 State Records of South Australia, GR5/2 Unit 159, South Australian Police Department Correspondence Files – Police Commissioner’s Office, file no. 1541 of 1928, Police Act Amendment Bill, 1928: Report cited in McLeod, A 2013, ‘On the Origins of Consorting Laws’, Melbourne University Law Review, 37(1), pp. 103-142. 108 McLeod, A 2013, ‘On the Origins of Consorting Laws’, Melbourne University Law Review, 37(1), pp. 103-142, p. 133. In 2002, SARC recommended that Victoria’s original consorting offences (then contained within the Vagrancy Act 1966) be repealed. In submissions to SARC’s Review of the Vagrancy Act 1966, the Criminal Bar Association, the Law Institute of Victoria, Victoria Legal Aid and the Public Interest Law Clearing House all agreed strongly with the Committee’s recommendation to repeal the consorting provisions, while Victoria Police and the Police Association disagreed, arguing consorting offences were a useful strategic tool for crime prevention. After considering all submissions, the Committee found that while the consorting offences may have some limited utility in crime prevention, this benefit was outweighed by numerous problems, such as the fact these offences may be used to put pressure on individuals and groups which the police want to ‘move along’, rather than as a tool for preventing the planning of serious crimes: Scrutiny of Acts and Regulations Committee 2002, Review of Redundant and Unclear Legislation – Review of the Vagrancy Act 1966 – Final Report. 109 McLeod, A 2013, ‘On the Origins of Consorting Laws’, Melbourne University Law Review, 37(1), pp. 103-142, p. 136. 110 In 2019, the ACT Opposition introduced the Crimes (Anti-Consorting) Amendment Bill 2019 (ACT) in the Legislative Assembly to establish a consorting scheme in the ACT. The Bill proposed the introduction of consorting laws modelled on the NSW scheme. The Legislative Assembly did not pass the Bill as it was not supported by the ACT Government. 111 The relevant offences are listed in regulation 9 of the Summary Offences Regulations 1994 (NT). 112 New South Wales Ombudsman 2016, The consorting law: Report on the operation of Part 3A, Division 7 of the Crimes Act 1900, p. 1. 113 Crimes Act 1900 (NSW) s 93X. 114 Tajjour v State of New South Wales; Hawthorne v State of New South Wales; Forster v State of New South Wales [2014] HCA 35. 115 Inman, M 2019, ‘Anti-consorting laws won’t stop bikie violence in Canberra, Nomads life member and experts say’, ABC News, 17 March, viewed 16 June 2020,
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public or over the phone about the intention to commit a crime.116 He argued that the issue of consorting warnings had driven organised crime “underground” and reduced the capacity of law enforcement to identify who was involved.117
Queensland and Tasmania A consorting scheme similar to that introduced in NSW commenced in Queensland in March 2017,118 and in Tasmania in 2018.119 On 8 November 2019, ABC News reported that Tasmania Police had issued 203 official consorting warning notices to 28 individuals since their new scheme had commenced. The ABC reported that two members of the Bandidos Motorcycle Club were charged with consorting offences following alleged breaches of official warning notices.120
Western Australia In January 2020, the Western Australian Government announced it intended to introduce the Criminal Law (Unlawful Consorting) Bill 2020 to establish a new offence of ‘unlawful consorting’ carrying a maximum penalty of five years’ imprisonment.121 At the time of writing, the Bill was being considered by the Legislative Council. Western Australia introduced a limited consorting offence in 2004. However, it did not target a broad range of organised crime groups as in other jurisdictions.122
5.1 Reviews of unlawful association laws Many jurisdictions with unlawful association schemes have reviewed their use.
Northern Territory The Northern Territory consorting laws were reviewed in 2013. The review did not support a submission made by the Northern Territory Police Force to lower the threshold for an offence on which a consorting warning could be based. It determined that this amendment would not be consistent with the aims of these provisions which were to address “serious criminals with a track record of highly-organised gang related activities.”123
New South Wales In 2016, the NSW Ombudsman published a review of NSW consorting laws. The review found the laws were used in relation to a broad range of offending, including minor and nuisance
116 Inman, M 2019, ‘Anti-consorting laws won’t stop bikie violence in Canberra, Nomads life member and experts say’, ABC News, 17 March, viewed 16 June 2020,
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offending.124 Consorting warnings were issued to disadvantaged and vulnerable people, including Aboriginal people, children, young people, and people experiencing homelessness.125 The review noted that “the broad framing of the consorting law and the absence of any requirement for police to suspect or prove a link between use of the consorting law and crime prevention increased the risk that already marginalised people will be disproportionately and inappropriately affected by the operation of the consorting law.”126 The review also found a high police error rate when issuing consorting warnings to children and young people.127 It made 20 recommendations for NSW consorting law provisions and NSW Police Force policy on enforcing provisions. The NSW Crimes Act which contains the consorting laws was subsequently amended in 2018. Among other things, the amendments raised the minimum age of a person who could receive a warning to 14 years old and took account of Aboriginal and Torres Strait Islander kinship systems.128
Queensland The Queensland Public Interest Monitor (PIM) reports on the Queensland scheme annually. The PIM has reported that 861 pre-emptive consorting warnings were issued between March 2017 and June 2019.129 In 2019, the PIM reported that the number of consorting warnings issued had decreased compared to the previous reporting period. The PIM reported that there was no evidence to suggest that police were not exercising their powers in accordance with the law.
124 New South Wales Ombudsman 2016, The consorting law: Report on the operation of Part 3A, Division 7 of the Crimes Act 1900, p. 56. 125 New South Wales Ombudsman 2016, The consorting law: Report on the operation of Part 3A, Division 7 of the Crimes Act 1900, p. 61-84. 126 New South Wales Ombudsman 2016, The consorting law: Report on the operation of Part 3A, Division 7 of the Crimes Act 1900, p 112. 127 New South Wales Ombudsman 2016, The consorting law: Report on the operation of Part 3A, Division 7 of the Crimes Act 1900, p. 83. 128 Criminal Legislation Amendment (Consorting and Restricted Premises) Act 2018 (NSW). 129 Public Interest Monitor (Qld) 2019, 21st Annual Report – Reporting Period 1 July 2018-30 June 2019; Public Interest Monitor (Qld) 2018, 20th Annual Report – Reporting Period 1 July 2017-30 June 2018; Public Interest Monitor (Qld) 2017, 19th Annual Report – Reporting Period 1 July 2016- 30 June 2017.
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6. The COCA’s policy objectives
The principal aim of the COCA is to prevent and disrupt organised crime, particularly by targeting OMCGs and similarly structured entities. The mechanisms by which it seeks to achieve this are set out in section 1 of the Act. They are to: • provide for the making of declarations and control orders for the purpose of preventing and disrupting the activities of organisations involved in serious criminal activity, and of their current, former and prospective members and associates • provide for the recognition and application of declarations and control orders made under corresponding (interstate) laws • prohibit individuals from associating with individuals convicted of serious criminal offences for the purpose of preventing an offence from being committed, and • make related amendments to other Acts.
6.1 Preventing and disrupting organised crime Organised crime and OMCG criminal activity was present from the COCA’s inception and throughout the reporting period and will continue to have significant impacts into the foreseeable future.130 Victoria Police advises that criminal groups are resilient in recruiting future offenders, adapting their methodologies and moving into new and diverse crime types. As has been discussed, organised crime is an enormous drain financially and socially on the community. Targeting organised crime continues to be a valid policy objective. Organised crime, by its nature, is especially difficult to combat if law enforcement relies predominantly on traditional investigation and prosecution of individual offences. Apart from sporadic incidents of public violence, organised crime activity largely occurs underground and may include so-called ‘victimless’ crimes and crimes occurring within the context of illicit economies. People who might otherwise come forward as victims or complainants in cases of organised crime may be implicated themselves in unlawful activity, intimidated by the prospect of reprisal by other members of the crime group or embarrassed by their gullibility. Even where prosecutions are possible, those who influence and profit the most are likely far from the action and free of a criminal record. Accordingly, disruption has been recognised in academic literature and by law enforcement bodies as a valid technique to deter organised crime groups from offending. It is also a valid technique to disrupt offending before the community is harmed.131 At the national level, disruption is also a widely accepted policy mechanism. It features regularly as an aim of national organised crime committees and taskforces, of which Victoria Police is a member. These include the: • Board of the ACIC • Australian Transnational, Serious and Organised Crime Committee
130 Australian Criminal Intelligence Commission 2017, Organised Crime in Australia 2017, p. 1. 131 Innes, M & Sheptycki, J 2004, ‘From detection to disruption: Intelligence and the changing logic of police crime control in the United Kingdom’, International Criminal Justice Review, vol. 14, pp. 1-24, p. 13.
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• Operation Morpheus (the national joint operation targeting OMCG involvement in criminal activity), and • National Cybercrime Working Group. National disruption efforts feature among the priorities discussed at these forums. The Review Panel considers it important that Victoria continues to be an active participant in the national approach.
Conclusion Preventing and disrupting organised crime is a valid policy objective that should be continuously and vigorously pursued.
6.2 Preventing organised crime through declarations and control orders Following extensive research, and after examining the operational data provided by Victoria Police, the Review Panel is not satisfied that declarations and control orders remain a valid mechanism to achieve the COCA’s policy objectives. The declaration and control order scheme aims to unsettle groups, individuals and relationships. In theory this is sound policy, but this form of disruption is inherently challenging to implement in practice. Despite attempts to make the COCA more usable by successive legislative amendments, Victoria Police has not applied for a declaration or control order. The evidence considered by the Review Panel about the implementation of other similar schemes across Australia and internationally further demonstrates that declarations and control orders are not practical means for law enforcement agencies seeking to combat organised crime. The focus is on organisations The COCA scheme centres on criminal organisations, which are scalable, transferable and adaptable. Organised crime groups, like OMCGs, have adapted their operating models which frustrate the investigation approaches used by law enforcement. Organised criminals are no longer necessarily associating with the same network of people on a regular basis. They may form smaller groups to plan and commit an offence, then disband when their criminal aims are achieved. This creates challenges for satisfying a court that particular individuals are members of a declared criminal organisation. These looser groups are less identifiable to law enforcement, and their short-term nature means they are unlikely to be fully formed, stable and recognisable organisations. That is, the type of organisations targeted by a declaration and control order scheme, which requires proof of membership or relationship. As has been noted in reviews of similar legislation, “responses which target organisations rather than individuals carry a high risk of ultimate failure because of the fluid, adaptable nature of organised crime; and, of course, because human enterprise (whether criminally motivated, or not) reflects that we are adept at adjusting to changing circumstances”.132
The scheme targets rights rather than privileges Some disruption tactics seek to remove a privilege or make the privilege harder to maintain (such as a firearm or liquor licence). In contrast, the declaration and control order scheme turns
132 Department of Justice and Attorney-General (Qld) 2016, Report of the Taskforce on Organised Crime Legislation, p. 191; see also Wilson, SC A, Department of Justice and Attorney-General (Qld) 2015, Review of the Criminal Organisation Act 2009, p. 191.
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otherwise lawful behaviour into unlawful behaviour, and intrudes on protected rights, including freedom of association and freedom of expression. The need for safeguards and assurances around these freedoms means the thresholds for law enforcement to utilise the scheme are, and must continue to be, high.
There are challenges in obtaining intelligence to support the applications for declarations and control orders To satisfy a court that a declaration or a control order is necessary, law enforcement requires intelligence to demonstrate the connection between the organisation, its members and criminal activity. Victoria Police advised that organised crime groups are meeting on a less frequent basis, and members may not meet in person. In addition, enhancements in technology have impacted the ability of law enforcement to gather intelligence. The ACIC has noted that the increased availability, advancement and more sophisticated use of technology such as encrypted communications “will continue to provide criminals with a diverse range of resources to conduct criminal activity and impede law enforcement investigations”.133 Once a control order is granted, police need to monitor the person to ensure any breaches are detected and prosecuted. Enhancements in technology and changes to the historical operation model of organised crime groups make it harder for police to monitor control orders. In the Review Panel’s view, it is difficult to envisage a declaration and control order scheme which could provide law enforcement with the agility and flexibility necessary to effectively disrupt organised crime. The Panel notes that no jurisdiction has enacted a scheme that has been able to do so. Any scheme designed to disrupt organised crime must be balanced against the rights protected by the Australian Constitution, the common law and, in the Victorian context, the Charter. One of the key reasons the Review Panel considers this policy objective no longer valid is the difficulty in developing a scheme that is workable for law enforcement, while upholding the rights of individuals who have committed no relevant crime.
Conclusion Preventing and disrupting organised crime through declaration and control orders is no longer a valid policy mechanism. The COCA has significant barriers to using its provisions, which have deterred Victoria Police from making applications. The scheme is also fundamentally ill-suited to the contemporary nature of organised crime.
6.2.1 Recognising declarations and control orders made in other jurisdictions When the COCA commenced in 2013, the recognition of declarations and control orders made in other States and Territories was an expressed purpose of the legislation. Victoria’s commitment to national consistency is demonstrated by the decision to model its laws on those of other jurisdictions, with some relatively minor differences that recognised Victoria’s human rights framework. The Review Panel recognises that organised crime is a cross-border issue. Organised crime groups, including OMCGs, have a presence in all Australian jurisdictions. Technology has removed geographical boundaries and helped individuals connect with others located interstate
133 Australian Criminal Intelligence Commission 2017, Organised Crime in Australia 2017, p. 12.
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and overseas to plan and commit serious offences. A consistent approach to organised crime is therefore more important than ever. South Australia, Western Australia, NSW and the Northern Territory continue to have criminal organisation control schemes like Victoria’s, despite independent reviews recommending the repeal of the enabling legislation in two of the jurisdictions.134 As other jurisdictions have retained their criminal organisation control schemes, there may be perceived value in Victoria maintaining its commitment to support law enforcement in other jurisdictions, to enforce their orders nationally. Mutual recognition enables any orders which Victoria makes to be enforced in jurisdictions that have retained declaration and control order legislation. However, if no jurisdiction with a declaration and control order scheme uses it, and is unlikely to use it in the future, the reciprocal recognition provisions are unlikely to be activated. Therefore, the Review Panel queries the basis for maintaining the policy in the absence of any interstate or Victorian orders.
Conclusion Recognising declarations and control orders made in other jurisdictions is a valid policy objective only if the mechanism is used, but should remain as long as the COCA is retained.
6.3 Preventing individuals from associating with serious criminals The amendments to the COCA in 2015, which seek to prevent offences by prohibiting individuals associating with convicted serious criminals, was introduced to remedy deficiencies perceived with the consorting scheme that previously operated in Victoria. The new laws aimed to provide greater clarity to Victoria Police and the community.135 Clarity around police powers, and conduct that constitutes an offence, is a valid aim. However, not a single notice has been issued since the provisions were enacted. Victoria Police advised the Review Panel that organised crime groups tend to distance themselves from base offending. Legislation which targets associations, rather than actual offenders, is therefore theoretically more likely to capture and disrupt more powerful criminals. Although the unlawful association provisions have not been used during the reporting period, material considered by the Review Panel indicates that this type of disruption has been a useful technique in other jurisdictions.136 For example, the NSW consorting laws withstood a High Court challenge137 and have been used to prohibit current and former OMCG members from associating.138 The NSW Ombudsman reviewed the NSW consorting legislation and recommended that it be retained, with some amendments to the Act and changes to NSW Police Force policy on enforcing the provisions.139 The Review Panel notes that a high number of
134 Independent reviews of the NSW and Western Australian criminal organisation control laws recommended the laws be repealed in each State. See: New South Wales Ombudsman 2016, Review of police use of powers under the Crimes (Criminal Organisations Control) Act 2012, p 32, and Ombudsman Western Australia 2017, Report by the Parliamentary Commissioner for Administrative Investigations under section 158 of the Criminal Organisations Control Act 2012 for the whole monitoring period, p. 14. 135 Victoria, Parliamentary Debates, Legislative Assembly, 2 September 2015, 3011 (Martin Pakula, Attorney-General). 136 New South Wales Ombudsman 2016, The consorting law: Report on the operation of Part 3A, Division 7 of the Crimes Act 1900, p. 1. 137 Tajjour v State of New South Wales; Hawthorne v State of New South Wales; Forster v State of New South Wales [2014] HCA 35. 138 Inman, M 2019, ‘Anti-consorting laws won’t stop bikie violence in Canberra, Nomads life member and experts say’, ABC News, 17 March, viewed 16 June 2020,
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consorting warnings have been issued across Australia, including 203 notices in Tasmania since the scheme commenced in 2018, and 861 warnings in Queensland.140 Between April 2012 and April 2015, more than 9,100 warnings were issued by the NSW Police Force to 2,800 people and 42 people were charged with consorting in NSW.141
Conclusion Preventing individuals associating with serious criminals to disrupt organised crime may be a valid policy mechanism. However, the current scheme in Victoria has not been used and therefore cannot be seen as currently achieving the COCA’s policy objectives. Further consideration should be given to developing a more operationally practical and effective scheme.
140 Bevin, E 2019, ‘Bandidos first to be hit by bikie anti-consorting laws’, ABC News, 8 November, viewed 16 June 2020,
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7. Evaluating the COCA’s operation and effectiveness
To understand how the COCA operates in practice, the Review Panel invited Victoria Police to elaborate on its experience of taking up the opportunities offered by the COCA.142
7.1 Declarations and control orders
The multi-step structure of the scheme Victoria Police explained that the multi-step process to obtain a declaration and control order is cumbersome and slow. It requires an application to the Supreme Court for an organisation or an individual to be “declared”, followed by a separate application for a control order with effective conditions. The Court must be persuaded that the control order “is necessary or desirable” to “end, prevent or reduce” a serious threat to public order and safety. In addition, if Victoria Police wishes to rely on information that it believes on reasonable grounds is criminal intelligence, it must first comply with the procedural requirements specified in the COCA to obtain a criminal intelligence protection order. The resources required to run the multi-step proceedings mandated by the Act has deterred law enforcement from using the COCA.
Standard of proof Since 2016, the standard of proof for all declarations and control orders has been the civil standard (balance of probabilities) which is lower than the criminal standard. However, the COCA expressly includes an additional requirement that the Court may make a declaration “only if it is satisfied by acceptable, cogent evidence that is of sufficient weight to justify the making of a declaration”.143 Victoria Police advised the Review Panel that meeting this requirement involves preparing comprehensive material including numerous sworn affidavits from police and victims, briefs of evidence, and expert testimony. The resources involved in doing so has further deterred Victoria Police from using the scheme. Victoria Police has also experienced difficulty in gathering the evidentiary material needed to support an application. For example, the evidence of civilian witnesses may be hard to obtain if witnesses are fearful of reprisal. Telecommunication interception material may be helpful when establishing relationships and the likelihood of criminal activity, but it is increasingly difficult to obtain (due to encryption technology) and its use entails considerable analysis and consideration and management of public interest immunity issues. In addition, the changed and continually changing nature of organised crime is a challenge when gathering evidence. Loyalties in organised crime groups have been loosened and visibility reduced. The structured nature of the targets has disappeared and opportunities to evade authorities widened with the aid of encrypted technology. Establishing even a civil standard of proof is therefore increasingly difficult. Other jurisdictions have noted similar challenges.144 An application prepared by the Queensland Police Service, for example, required at least seven devoted specialist staff. It involved over 140 affidavits and 6000 pages of evidence. There were also at least 10 Supreme Court appearances
142 Operational examples provided by Victoria Police to the Review Panel about specific investigations, criminal organisations or police methodologies have been noted by the Panel but will be referred to only in general terms in this report. 143 Criminal Organisations Control Act 2012 (Vic) ss 19(4) and 43(4). 144 New South Wales Ombudsman 2016, Review of police use of powers under the Crimes (Criminal Organisations Control) Act 2012, p. 24.
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before the proceeding was discontinued.145 The combination of the large volume of supporting Queensland's experience material required, and the need for it to be of a A review of the Queensland Criminal sufficiently high standard to satisfy the Court, deters law enforcement agencies from starting the Organisation Act 2009 described the cost application process. in time, effort and financial resources to make an application. The application Revealing criminal intelligence comprised 104 pages, including naming some 50 alleged members of an OMCG. The risks associated with using criminal intelligence More than 80 pages covered the structure, also deter law enforcement from seeking organisation and distinguishing features of declarations and control orders. It is unlikely that any the organisation. The application was application for a declaration and control order could supported by 144 affidavits and the be made without evidence derived from criminal resource costs were estimated at more intelligence. While there is a protection regime in the than $1.9 million. During the delayed COCA, it is not guaranteed that all protection order proceedings, while the application was applications will be granted. Further, the very fact challenged in the High Court, the OMCG that law enforcement has applied for a protection disbanded and its members joined another order may reveal that there is intelligence to protect. OMCG. This rendered the original Understandably, law enforcement agencies are application and its supporting material therefore reluctant to engage with the process as it effectively useless. risks revealing sources, the progress of an investigation, or lines of enquiry to targets and potential targets.
7.2 Unlawful association notices
Difficulties in proving a crime is likely to be prevented with an unlawful association notice Before an unlawful association notice can be issued, the issuer must believe that an offence is likely to be prevented if the individuals are prevented from associating.146 Victoria Police explained that the level of satisfaction its officers are required to have to meet this threshold is one of the primary hurdles to using the unlawful association provisions in the COCA. Victoria Police considers that even a strongly held suspicion is insufficient. The process is also open to review and challenge, and there is no protection for any criminal intelligence that might have been used to help form the belief. This also makes police reluctant to rely on criminal intelligence in forming the necessary state of satisfaction to issue a notice.
Lack of availability of senior ranked police officers to issue unlawful association notices The COCA requires that the issuing police officer be ranked as a senior sergeant or above. Not all police stations are resourced to that level, particularly in rural areas. Victoria Police therefore reports that issuing notices can be impractical to manage at a local level.
Other barriers to issuing an unlawful association notice There are other features of the unlawful association provisions which are seen as barriers to its use. The individual with whom a person is barred from associating must have been tried and convicted on indictment, thus precluding issuing a notice where there was a plea of guilty to a serious offence.
145 Wilson, SC A, Department of Justice and Attorney-General (Qld) 2015, Review of the Criminal Organisation Act 2009, p. 81. 146 Criminal Organisations Control Act 2012 (Vic) s 124D(1)(b).
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The threshold before a notice of breach may be given is association on three or more occasions in a three-month period or on six or more occasions in a 12-month period. The level of surveillance necessary to establish these encounters, some of which may be by electronic means, is particularly resource intensive. The exceptions that permit association in some circumstances can also severely limit uptake of the scheme. Two examples are the wide definition of ‘family member’,147 where many criminal groups and gangs comprise members of the same family, and the almost insuperable difficulty in demonstrating an ‘ulterior purpose’ to override that protection.
7.3 Conclusion on the COCA's operation and effectiveness Provisions in the COCA do not practically achieve the Act's wider objective to prevent and disrupt organised crime. This is because the principal method for doing so, the declaration and control order regime, has not been found by Victoria Police to be worth investing the large resources and financial cost necessary to satisfy the requirements of the legislation when there is an uncertain outcome. Similarly, the unlawful association scheme has proved to have so many practical impediments to its use that it has also been unable to achieve the COCA’s policy objectives. No application for a declaration or a control order has been made, and no unlawful association notices have been issued. This is despite the efforts of Victoria Police to undertake preparatory work for applications, as well as amendments to the terms of the COCA made by successive governments throughout the reporting period. This leads the Review Panel to the conclusion that the COCA’s policy objectives have not been achieved in practice.
147 The same as in the Family Violence Protection Act 2008 (Vic), s 8.
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8. Recommendations
The Review Panel recommends that: 1. The objective of preventing and disrupting organised crime continues to be pursued vigorously. 2. The objective of preventing and disrupting organised crime be pursued by means other than the declaration and control order provisions in the COCA. 3. Consideration be given to developing a more operationally practical and effective method of limiting associations between serious criminals and others likely to be involved in organised crime. 4. Further work be done, in consultation with stakeholders, to strengthen existing legislation and develop and implement additional provisions to prevent and disrupt organised crime in Victoria.
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9. Next steps
The COCA is one of many laws aimed at deterring and disrupting organised crime in Victoria. At a state level, these laws include legislation directly aimed at serious and organised crime, such as the Major Crime (Investigative Powers) Act 2004, the Confiscation Act 1997 and the Fortification Removal Act 2013. Stage Two will review the relevant laws more broadly to identify other opportunities to improve the Victorian response to organised crime, including: • improved use of existing legislation • potential legislative amendments to other schemes, and • any other non-legislative approaches. Stage Two also intends to: • meet the government’s Community Safety Statement 2018-19 commitment to “undertake a broader examination of the criminal organisation control laws to identify potential opportunities to help Victoria Police to better disrupt criminal gang activities”148, and • consider issues arising from the deferred Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018, where the Bill amended the COCA. Stage Two will not include related Community Safety Statement 2018-19 commitments in relation to unexplained wealth and asset confiscation, which are a separate body of work.149 It will also not examine Victorian regulatory schemes that include provisions to exclude criminal organisations or their members from legitimate activities. These have been reviewed by the Victorian Law Reform Commission.150 Stakeholders will have the opportunity to make submissions in response to a discussion paper on Victoria’s organised crime laws. They will also be invited to participate in discussions with the Review Panel and other stakeholders. Stage Two will begin once COVID-19 pandemic impacts have eased. The Review Panel will contact stakeholders to understand when it is appropriate for Stage Two to begin.
148 Victorian Government 2018, Community Safety Statement 2018-19, p. 49. 149 Victorian Government 2018, Community Safety Statement 2018-19, p. 49. 150 Victorian Law Reform Commission 2016, Use of Regulatory Regimes in Preventing the Infiltration of Organised Crime into Lawful Occupations and Industries.
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Appendix: Overview of substantive amendments to the COCA
The three substantive amendments to the COCA, made in 2014, 2015 and 2016, are summarised below.
Amending Overview of amendments legislation Criminal • Widened the range of criminal offences on which a declaration is Organisations based, by: Control and o lowering the threshold to indictable offences punishable by at Other Acts least five years’ imprisonment (rather than 10 years) Amendment Act 2014 o removing additional requirements that the offence involve multiple offenders, involve substantial planning and organisation, form part of systemic criminal activity, and have a purpose of obtaining profit, gain, power or influence, or of sexual gratification where the victim is a child. • Lowered the standard of proof from the criminal standard to the civil standard for individual declarations. • Created a two-tiered scheme for organisation declarations: o ‘prohibitive’ declarations retained the criminal standard of proof and could result in the most serious control orders, if the orders would likely contribute to preventing or disrupting serious criminal activity o ‘restrictive’ declarations only required the civil standard of proof, and could result in less serious orders, if necessary or desirable for public safety and order. • Added mechanisms to ensure declared organisation members could not avoid the COCA by simply quitting the group or switching to another group. • Made the consequences of a declaration more serious by: o prohibiting a person with an individual declaration or control order from possessing a firearm o creating a presumption that a member of a declared organisation is not a ‘fit and proper’ person for firearms licensing o ensuring coercive powers under the Major Crimes (Investigative Powers) Act 2004 could readily be used on declared organisations. • Enabled individuals and organisations to consent to a declaration or control order. • Specified that parties to COCA proceedings bear their own legal costs. • Added the requirement (previously in Regulations) that the Chief Commissioner affix notice of a control order applying to a declared organisation to, or near, an appropriate place. These changes commenced on 1 October 2014.
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Criminal • Repealed the consorting offence in the Summary Offences Act 1966. Organisations • Inserted new Part 5A into the COCA, establishing the unlawful Control association scheme. Amendment (Unlawful • Deferred the statutory review of the COCA until three years after the Associations) commencement of the unlawful association scheme. Act 2015 These changes commenced on 1 July 2016. Confiscation • Removed the distinction (introduced in 2014) between ‘prohibitive’ and Other and ‘restrictive’ declarations. Matters • Adopted the lower thresholds for all declarations, meaning: Amendment Act 2016 o the civil standard of proof applied to all declarations o to make a control order, the Court needed to be satisfied it was necessary or desirable for public safety and order (rather than that it was likely to contribute to prevention or disruption of serious criminal activity). These changes commenced on 1 September 2016.
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