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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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STATUTES AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (18:30): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

Introduction

In 2007-2008 the Government began the process that would lead to the enactment of the Serious and Organised Crime (Control) Act 2008. On November 11, 2010 the High Court, by a majority of 6-1, decided that at least in so far as the Magistrates Court was required to make the control order by the Serious and Organised Crime (Control) Act 2008 on a finding that the respondent was a member of a declared organisation, that court was acting at the direction of the executive, was deprived of its essential character as a court within the meaning of Chapter III of the Commonwealth Constitution and that section was, therefore invalid (South Australia v Totani [2010] HCA 39). The net effect of that decision was that a key part of the legislative scheme in the Act was inoperable.

The State of New South Wales enacted the Crimes (Criminal Organisations Control) Act in 2009. That Act was a version of the South Australian Act, with this significant exception. Section 6 of the Act provides that the Commissioner of Police may apply to an "eligible Judge" of the Supreme Court (rather than the Attorney-General) for a declaration that a particular organisation is a "declared organisation" for the purposes of the Act. On 23 June, 2011, the High Court, by a majority of 6-1, held the entire Act to be invalid, essentially because there was no requirement to provide reasons.

In August 2011, the Government released 5 draft Bills on the subject for public comment. One was a series of amendments to the Serious and Organised Crime (Control) Act 2008 to repair the constitutional damage and to make some changes that, on advice, would improve its effectiveness. The other four were aimed at serious and organised crime by attacking what they do, rather than what they are. They were the Statutes Amendment (Serious and Organised Crime—Offences) Bill 2011, the Statutes Amendment (Serious and Organised Crime—Procedures) Bill 2011, the Statutes Amendment (Consorting, Loitering and Other Matters) Bill 2011 and the Evidence (Out of Court Statements) Amendment Bill 2011.

Lengthy and sometimes complicated comments were received from the Law Society/Bar Association, the Commissioner of Police, the Crown Solicitor, the Legal Services Commission, the judiciary and the DPP. It is no surprise that the comments varied from firm opposition to the view that the proposals did not go far enough.

The previously released four proposed Bills additional to the Bill to repair the Serious and Organised (Crime) Control Act 2008 have been consolidated into one and improved by a variety of comments made on consultation.

General Comments

It is quite clear that the Government must respond decisively to the High Court decisions and do so comprehensively and expeditiously. Expert advice has been taken from the Crown Solicitor and the Solicitor-General about the effect and content of the decisions in Totani and Wainohu and how the Government might best respond to repair the legislation. Constitutional repair of the Serious and Organised Crime (Control) Act 2008 by the Serious and Organised Crime (Control) (Miscellaneous) Amendment Bill 2012 is the subject of a separate Bill.

The Government has an announced election policy on serious and organised crime. It is:

'Continuing to support police and prosecutors with our nation leading anti-bikie legislation to help disrupt and dismantle serious and organised crime gangs.'

There must and will be a response to the Totani decision by the Government. It must be comprehensive and, in particular, designed so that (a) the effectiveness of the Government policy to harass and disrupt criminal gangs, particularly bikie gangs, is restored and (b) the intent of the Government’s policy is not thwarted by constitutional issues. This Bill contains a suite of related measures designed to disrupt and harass the activities of criminals of all persuasions, organised, disorganised, competent and incompetent. There can be little doubt that the Bill will be the subject of sustained criticism in some quarters. The answer is and must be that these measures are carefully targeted at serious and organised crime and it is recognised in international law and the laws of other sovereign nations that the traditional criminal justice system deals poorly with the threats that serious and organised crime suspects may pose to the integrity of the criminal justice system.

Serious and Organised Crime Offences—Aggravated Offences

The United Nations Convention against Transnational Organized Crime ('the Palermo Convention') provides an internationally recognised and respected legislative model for preventing and combatting organised crime. The Convention was adopted on 15 November 2000; entered into force on 29 September 2003; and ratified by Australia on 27 May 2004. Article 5 deals with criminalisation of participation in an organised criminal group.

The Palermo Convention defines an organised criminal group as follows:

'Organised criminal group shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this convention, in order to obtain, directly or indirectly, a financial or other material benefit.

Article 5(1) of the convention recommends:

Criminalization of participation in an organized criminal group

1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:

(a) Either or both of the following as criminal offences distinct from those involving the attempt or completion of the criminal activity:

(i) Agreeing with one or more other persons to commit a serious crime for a purpose relating directly or indirectly to the obtaining of a financial or other material benefit and, where required by domestic law, involving an act undertaken by one of the participants in furtherance of the agreement or involving an organized criminal group;

(ii) Conduct by a person who, with knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes in question, takes an active part in:

a. Criminal activities of the organized criminal group;

b. Other activities of the organized criminal group in the knowledge that his or her participation will contribute to the achievement of the above-described criminal aim;

(b) Organizing, directing, aiding, abetting, facilitating or counselling the commission of serious crime involving an organized criminal group.

The spirit of the Convention has been applied in a number of countries. The Canadian Criminal Code contains its version of the Palermo recommendations. For example, section 467.11 says:

(1) Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this or any other Act of Parliament, knowingly, by act or omission, participates in or contributes to any activity of the criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that—

(a) the criminal organization actually facilitated or committed an indictable offence;

(b) the participation or contribution of the accused actually enhanced the ability of the criminal organization to facilitate or commit an indictable offence;

(c) the accused knew the specific nature of any indictable offence that may have been facilitated or committed by the criminal organization; or

(d) the accused knew the identity of any of the persons who constitute the criminal organization.

(3) In determining whether an accused participates in or contributes to any activity of a criminal organization, the Court may consider, among other factors, whether the accused—

(a) uses a name, word, symbol or other representation that identifies, or is associated with, the criminal organization;

(b) frequently associates with any of the persons who constitute the criminal organization;

(c) receives any benefit from the criminal organization; or

(d) repeatedly engages in activities at the instruction of any of the persons who constitute the criminal organization.

The Commonwealth Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 also contains a version of the Palermo recommendations. Schedule 4 of the Act inserts a new Part 9.9 into the Criminal Code dealing with criminal associations and organisations. The Code contains a suite of offences with penalties of up to 15 years imprisonment. For example, section 390.4 (the least serious offence) says:

Supporting a criminal organisation

(1) A person commits an offence if:

(a) the person provides material support or resources to an organisation or a member of an organisation; and

(b) either:

(i) the provision of the support or resources aids; or

(ii) there is a risk that the provision of the support or resources will aid the organisation to engage in conduct constituting an offence against any law; and

(c) the organisation consists of 2 or more persons; and

(d) the organisation's aims or activities include facilitating the engagement in conduct, or engaging in conduct, constituting an offence against any law that is, or would if committed be, for the benefit of the organisation; and

(e) the offence against any law mentioned in paragraph (d) is an offence against any law punishable by imprisonment for at least 3 years; and

(f) the offence against any law mentioned in paragraph (b) is a constitutionally covered offence punishable by imprisonment for at least 12 months.

Penalty: Imprisonment for 5 years.

New South Wales has enacted similar offences in sections 93S and 93T of its Crimes Act 1900.

The conventional criminal law framework is ill-suited to preventing and combatting organised crime in that secondary and inchoate liability do not adequately extend liability to the root activities and organisation of a criminal group. For example, secondary liability does not cover the non-criminal activities of a person who only indirectly contributes to the criminal activities of a criminal group. Equally, inchoate liability, in particular the offence of conspiracy, does not criminalise persons within a criminal group who are not a party to the agreement to commit the crime. This often omits the leadership of a criminal group, which operates above the street level preparation and commission of offences.

Serious and organised crime legislation must therefore aim to create offences that comprehensively target the criminal activities of a criminal group, providing scope to charge all persons who knowingly contribute to the criminal activities of the group. Moreover, serious and organised crime legislation must create offences that target a criminal group at the level of the organisation. The objectives of any such legislation must therefore be to prevent and reduce criminal activity with a group aspect by—

extending liability to all unjustified involvement in criminal group activities, and

making impotent the organisational capacity of a criminal group.

The centrepiece of the proposed Bill is the insertion into the Criminal Law Consolidation Act 1935 of a new Part 3B entitled Offences relating to criminal organisations. There is a proposed new core offence of participation in a criminal organisation knowing or being reckless as to both (a) whether it is a criminal organisation and (b) whether the participation contributes to the occurrence of any criminal activity. A criminal organisation means both a criminal group and an organisation declared under the Serious and Organised Crime (Control) Act 2008. A criminal group means a group of 2 or more whose aim is the commission or facilitation of a serious offence of violence or the commission or facilitation of the commission of a serious offence that will benefit the group, participants or associates. Participation is partially defined to include recruiting others to participate in the organisation; and supporting the organisation; and committing an offence for the benefit of, or at the direction of, the organisation; and occupying a leadership or management position in the organisation or otherwise directing any acts of the organisation. This offence carries a maximum penalty of 15 years imprisonment.

There then follows a sequence of particular offences directed at typical behaviour of organised crime gangs-assaulting another, threatening to damage or destroy property of another (each 20 years) and assaulting a public officer in the execution of that officer’s duty (25 years). Notably, public officers include judges, jurors, police officers, people who work for the Crown and so on.

There are four other provisions of particular note in this part. The first is that a person will be presumed in the absence of evidence to the contrary to be participating in a criminal organisation if that person is at the relevant time displaying (whether on an article of clothing, as a tattoo or otherwise) the insignia of the criminal organisation. The second is that once a court finds that a group is a criminal organisation and makes a declaration to that effect, that finding stands, again in the absence of proof to the contrary.

The second feature deals with maximum penalties. The Bill creates aggravated versions of various existing offences, the aggravation being that the offence was committed for the benefit of, at the direction of, in association with a criminal organisation or the offender identifies him or herself as the member of a criminal organisation (whether or not that is true). The same deeming provision about insignia applies unless the person proves that the insignia were not displayed knowingly or recklessly.

The offences aggravated are various serious drug offences in the Controlled Substances Act 1984, and the general criminal law offences of blackmail, and abuse of public office. The Bill also increases the maximum penalty applicable to threats or reprisals against people involved in criminal investigations or judicial proceedings and threats or reprisals against public officers from 7 years to 10.

The third feature deals with sentencing. The Bill provides that a sentence for an offence against the new criminal organisation offences will be cumulative on a sentence for any other offence that is not another of those offences. So, for example, if a person is found guilty of possession of a firearm to commit an offence and participating in a criminal organisation, and both attract sentences of imprisonment, those sentences are to be cumulative.

Consorting, Loitering and Other Matters

(i)—The Consorting Offence

The High Court in Totani criticised the legislated scheme of control orders. But French CJ discussed traditional consorting offences without criticism and, while the other majority judgments do not do so, they do not gainsay anything that the Chief Justice said. In particular, he said:

Concerns that they might impinge on innocent members of the community were expressed in opposition to such laws. Consorting did extend to innocent association with proscribed classes of persons such as reputed thieves or known prostitutes or persons who had been convicted of having no visible lawful means of support. However, unlike the provisions of the SOCC Act providing for ministerial declarations and judicial control orders, the vagrancy and consorting laws created offences, based upon norms of conduct, which did not depend upon the prior existence of an executive or judicial order.

The old consorting offence was the subject of High Court consideration in Johanson v Dixon (1979) 143 CLR 376. That case concerned the Victorian equivalent which differed from its South Australian equivalent in that it made it a defence for the defendant to prove to the satisfaction of the court lawful means of support and "good and sufficient reasons" for consorting. Mason J said:

However, it seems reasonably clear that to constitute the offence, habitually consorting with more than one person, with a plurality of persons, is required. Association with a reputed thief would not be enough. The legislative policy which underlies the provision negatives the statutory rule of construction requiring that the reference in the plural should be read in the singular. It is a policy which was designed to inhibit a person from habitually associating with persons of the three designated classes, because the association might expose that individual to temptation or lead to his involvement in criminal activity. It is not to the point that the section is a provision of long standing and that it reflects a policy which came into existence many years ago. The fact, if it be a fact, that the policy is now a matter of some controversy, is no justification for our construing the provision otherwise than in accordance with its terms. If a change in the statute is thought to be desirable on account of changed conditions or changed attitudes, it is for Parliament to decide whether that change should be made.

No constitutional challenge to the offence was argued, nor raised, nor contemplated.

The consorting offence was reviewed by the Criminal Law and Penal Methods Reform Committee (more commonly referred to as the Mitchell Committee) in 1977 and that Committee presciently reported:

…there are many serious crimes committed in company to which the consorting law does not apply. Today many crimes of violence are committed by those who are in frequent association. It may be argued therefore that, if it is an offence habitually to consort with reputed thieves, it should equally be an offence habitually to consort with reputed thugs, so that consorting with members of some ‘bikie’ gangs with a reputation for violence might in itself be an offence.

A new version of the old consorting offence is proposed that is more discriminate in its operation and more up to date. While society retains a level of concern about reputed thieves - these were the organised criminals of the day and are represented in popular imagination as such by such authors as Dickens in Oliver Twist - and reputed prostitutes (although we are, perhaps, less hypocritical about the latter), modern society is far more concerned about a better class of organised criminal. In this instance, we should target consorting with those who have committed or who are reasonably suspected of having committed, a serious and organised crime offence.

The meaning of that term is defined in the amendments to the Criminal Law Consolidation Act 1935 described above. For present purposes, it suffices to say that the definition will state that a serious and organised crime offence means one of the proposed new dedicated offences, any offence punishable by life imprisonment or an aggravated offence where the offender committed the offence for the benefit of a criminal organisation or 2 or more members of a criminal organisation, or at the direction of, or in association with, a criminal organisation; or in the course of committing the offence, identified himself or herself in some way as belonging to, or otherwise being associated with, a criminal organisation (whether or not the offender did in fact belong to, or was in fact associated with, the organisation).

(ii)—Consorting Notices

The Mitchell Committee went on to say that the section 13 consorting offence in its then form was outmoded and over-draconian (which it was) and recommended its replacement. The Committee recommended a system by which a police officer of or above the rank of superintendant could issue a notice requiring the person to desist from consorting with named people and stating the basis for that requirement. That person could then apply to a judge to have the notice rescinded on the ground that there is good reason for the association but, in the absence of a rescission, it is an offence to habitually consort against the terms of the notice.

This proposal operates in lieu of a defence of ‘reasonable excuse’ or ‘lawful excuse’. It has much to commend it. Although it adds a extra step of court time (these days, the application would be made to a magistrate), it has the effect that the onus is on the defendant to initiate the court action and the result (whether court action is so taken or not) is certainty for the police and the defendant. It is an offence to contravene the notice with no defence. This is worth implementing.

Consorting is keeping or accepting an association. A person does not give a good account of habitually consorting merely by establishing that it was for an innocent purpose. The consorting must be persistent and as a matter of habit (Johanson v Dixon (1975) 143 CLR 376).

It remains to consider the subjects of the consorting charge. It is proposed that the offence apply to habitually consorting with a person convicted of or reasonably suspected of having committed any or any combination of:

a commercial drug offence;

an indictable firearms offence;

an indictable offence of violence (as defined);

extortion;

money laundering;

a serious and organised crime offence;

any offence of attempting to commit or assault with intent to commit any of these offences; and

any offence against the law of another jurisdiction that matches any of these offences.

For reasons of commonsense and constitutional protection, the legislation must contain exemptions, including to exempt consorting with a close family member (defined as including a spouse or former spouse or person in a close personal relationship or a parent or grandparent (whether by blood or by marriage); or a brother or sister (whether by blood or by marriage); or guardian or carer). Other exempt associations should include association for genuine political purposes, association while in lawful custody or in obedience to a court order and associations occurring at a rehabilitation, counselling or therapy session of a prescribed kind.

The notice procedure requires such machinery provisions as the information that the notice must contain, the way in which it is to be served and a certification provision about the fact of service. The effect of the consorting order is indefinite in duration, but the defendant may challenge it by making an application to the Magistrates Court for variation or cancellation of the order. If that is not done within 4 weeks of the service of the order, an application for revocation or variation may only be made by the defendant with the permission of the Court and permission is only to be granted if the Court is satisfied there has been a substantial change in the relevant circumstances since the order was made or last varied. There are also to be suitable provisions for appeals. There is the obvious need for the protection of criminal intelligence in dealing with suspicious associations between criminals and that is to be done in the form that the Government maintains is correct after the decision of the High Court in K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4.

The maximum penalty must be such as to match and deter the seriousness of the associations being attacked but, balanced against that, the consorter may of course be innocent of any other offence. While the outmoded offence was mostly punished by a fine, it did attract imprisonment (when done, one month was chosen) and the maximum was 6 months. I propose to escalate this to 2 years.

(iii)—Non-association and Place Restriction Orders

It is proposed to introduce a system of non-association and place restrictions orders that, to a degree, overlap with but are complementary to the other proposals in this Bill. These are judicial orders with full judicial discretion and they should survive any Totani based challenge.

The system contemplated is that a police officer may apply to the Magistrates Court for a non-association order or a place restriction order or both. The criteria given to the Court for making either order are that (a) the defendant has within the past two years been convicted of an indictable offence (here or elsewhere); and (b) the Court is satisfied that the order is reasonably necessary to ensure that the defendant does not commit any more indictable offences. The order will have a specified period that cannot be more than 2 years.

A non-association order will prohibit a person from being in company with a named person, or communicating with a named person either with or without exceptions. A place restriction order will prohibit a person from frequenting or visiting a specified place or area either absolutely or at specified times.

A non-association order may not specify a member of the person’s close family unless the defendant requests that or the Court is satisfied that there is an appreciable risk of further indictable offending unless the order is made. Similarly a place restriction order may not specify a person’s residence, place of employment, place of residence of a close family member, the person’s educational institution or any place of worship regularly attended by the person unless that is requested by the defendant or unless the Court is satisfied that there is an appreciable risk of further indictable offending unless the order is made.

There are to be machinery provisions about the service of process, the cases in which the order may be made ex parte and the variation or revocation of the order. Non-compliance with the order without reasonable excuse is of course an offence punishable on first offence by imprisonment for 6 months and for a second offence by imprisonment for 2 years.

The defence of 'reasonable excuse' is to be complemented by guidance. It should not be an offence to associate with a person in a forbidden way if the association was in accordance with an order of a court. It should not be an offence to associate with a person in a forbidden way if the association was unintentional and the defendant terminated the association as soon as was reasonably practicable. Similarly, it should not be an offence to be in a forbidden place or area if the conduct was in accordance with an order of a court. It should not be an offence to be in a forbidden place if the conduct was unintentional and the defendant left the place as soon as was reasonably practicable. Further, it should not be an offence to be in a forbidden place to receive a health, welfare or legal service.

A non-association or place restriction order is to be made a sentencing option so that one or the other (or both) may be made by a sentencing court without the necessity of separate court application.

(iv)—Loitering

The old loitering offence derived from the Police Act of 1841 and was at that time an adaptation of the ancient UK Vagrancy Acts, but was adapted from time to time over the centuries. This loitering offence was repealed in 1985 on the recommendation of the Mitchell Committee. The Mitchell Committee thought that insofar as the offence was directed at the prevention of crime by attacking outward manifestations of preparations to commit it, the offence was too wide and should be attacked through the law of attempted crime. The Committee also thought that the unbridled generality of the offence went too far. It said:

Perhaps some extension of the power is warranted, but in our view the ‘loitering’ provisions are at best a subterfuge and at worst an unwarranted interference with the liberty of all persons to use streets and other public places.

The Committee’s criticisms are sound, but rather than being abandoned, the concept of requiring a suspicious person to give a satisfactory account of his or herself can be a legitimate and useful tool of law enforcement if properly targeted in such a way that it does not allow the harassment of ordinary law-abiding citizens going about their lawful business. The essence of the proposal is maintaining a proper balance between the interests of the ordinary law-abiding citizen and the disruption and harassment of the activities of criminals.

There should be an offence of loitering in a public place. The proposed structure is that if a prescribed person is loitering, a police officer is entitled to require that person to give an account of his (the loiterer’s) presence. The essence of the offence is in failing to give a 'satisfactory reason' for so loitering. One satisfactory reason will suffice. It should be for the court, not the police officer, to determine whether the reason is satisfactory. A reason is to be satisfactory if it is a true and lawful reason even if it does not satisfy the member of the police force who required it and even if the police officer was reasonable in being unsatisfied.

A prescribed person for this purpose is to be any person who has been found guilty of, or who is reasonably suspected of having committed, a serious and organised crime offence; a person who is subject to a control order under the Serious and Organised Crime (Control) Act 2008; a person who is subject to a non-association or place restriction order under this Act; a person who is subject to a firearms control order or a weapons control order; a person who is subject to a non-consorting order under this Act; a commercial drug trafficker; and a person subject to a paedophile restraining order. There should also be provision for adding to this list by regulation.

The maximum penalty is to be a fine of $5,000 or imprisonment for three months.

(v)—Co-operation with the authorities

An important weapon against serious and organised crime is getting people with inside or other secret knowledge of the activities and membership of the organisation to co-operate with the authorities and spill the beans. These people can be at their most vulnerable when they have been caught committing crimes, perhaps serious crime, and are facing spending a significant period in prison.

The Government has already announced a policy for dealing with the sentencing of people who plead guilty to their offences and, at that time, undertake to co-operate with authorities and provide information, either by way of testimony or otherwise. This is an important area of law and very significant inducements indeed may need to be provided to encourage these offenders to take the risk of danger to life or limb by so doing.

However, there is one area of the law that should be dealt with in this Bill. For any number of reasons, an offender of this kind may decide that, for example, the risks are not worth it and decide not to co-operate and do their time. But what if, having made that decision, the offender faces the bleak reality of that choice and months or even years later decides that the decision is the wrong one? The law needs that evidence should it be forthcoming and should allow such an offender to change his or her mind and recant. If that is done, it is only right that the effective sentence should be reconsidered in light of that co-operation, however belated, and an incentive offered in the form of a reconsideration of sentence. That is what is proposed here.

(vi)—Australian Crime Commission - Power of Examination and Production

The legislative structure of the Australian Crime Commission (that used to be the National Crime Authority) is based on a co-operative legislative structure that consists of complementary State and Commonwealth Acts. It is fair to say that the Commonwealth Act is the principal Act and the State Act buttresses it as needed for constitutional reasons.

The Commonwealth found that the power of the Australian Crime Commission to sanction by contempt those who at best frustrated and at worst refused to co-operate with the statutory powers of the Commission to compel testimony or the production of documents was inadequate to deter those subject to investigation. In brief, the contempt processes were unnecessarily cumbersome and time consuming.

As a result of this, the Commonwealth Parliament enacted the Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010. After the Bill passed the Parliament and was brought into force, the Commonwealth Government asked the States to amend the co-operative State legislation so as to mirror the new Commonwealth provisions. That is obviously sensible and this is the first opportunity that can be taken to do so.

It should be added that powers of examination and production backed by contempt are a vital tool in this kind of package. The power to commit for contempt should be rapid and tough. The Commonwealth amendments are aimed at that outcome and deserve full support.

(vii)—Bail

Witnesses should be supported by amendments to the Bail Act 1985. If a person is charged with a serious and organised crime offence and a grant of bail would cause a potential witness or other person connected with the case to reasonably fear for his safety, there should be a presumption against bail. Such a person is to be described as a serious and organised crime suspect. The presumption against bail can be rebutted by the applicant showing that he or she has not previously been convicted of a serious and organised crime offence.

The definition of 'serious and organised crime offence’ should be one of the new dedicated offences proposed as serious and organised crime offences above, any offence punishable by life imprisonment and any offence aggravated because the offender committed the offence for the benefit of a criminal organisation or 2 or more members of the criminal organisation, or at the direction of, or in association with, a criminal organisation; or in the course of committing the offence, identified himself or herself in some way as belonging to, or otherwise being associated with, a criminal organisation (whether or not the offender did in fact belong to, or was in fact associated with, the organisation).

If there is any grant of bail, the conditions of any bail agreement must protect the witness from any and all association and contact with the person charged with the offence and any member of the organisation to which it is alleged the accused belongs to the extent required. This entails binding over other members not to approach or in any way communicate with the witness.

The Bill proposes measures to attain these two objectives. It should insert in the Bail Act 1985 a new sub-section setting mandatory conditions for bail if granted to a serious and organised crime suspect. These are to be, in brief, home detention bail with electronic monitoring, and special conditions restricting the ability of the accused to communicate with specified people or classes of people and restricting the devices that the person on bail may use for communication.

But people should not be subjected to this harsh regime indefinitely or even for a very long time. The status of being a serious and organised crime suspect should expire after 6 months unless either the person is on trial or special proceedings (described below) have been taken against the suspect.

In addition, it is proposed to amend the Act in essence requiring the bail authority to consider applying for an order or imposing on the applicant for bail or any other person associated with the applicant an intervention order if the bail authority is made aware that the victim of the offence or a person otherwise connected with the proceedings feels a need for protection form the applicant or any person associated with the applicant.

(viii)—Frightened Witnesses

It is notorious that some serious and organised criminals and some members and associates of such organisations as outlaw motorcycle gangs try to subvert the normal operation of the criminal justice system and act with impunity by intimidating and threatening witnesses and victims. Witnesses and victims deserve the best protection the law can give them. This may take a number of forms. There is, at the high end, the Witness Protection Act 1996 and the Government has been promoting the use in the law of public interest immunity and criminal intelligence to protect the life and limb of informers and sources of evidence. But we can and should do more. Cases still collapse because witnesses suddenly lose memory of key events or faces.

Among other jurisdictions, the United Kingdom has offered another weapon in this fight. The Criminal Justice Act 2003 says in part:

(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—

(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,

(b) the person who made the statement (the relevant person) is identified to the court's satisfaction, and

(c) any of the five conditions mentioned in subsection (2) is satisfied.

(2) The conditions are—

...(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.

(3) For the purposes of subsection (2)(e) "fear" is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss.

The UK provision is an exception to the hearsay rule. It has other arms unrelated to the matters immediately at hand. It is proposed that this sensible provision be incorporated entire into the law of this State.

The other exceptions come into play if:

the maker of the statement is dead;

the maker of the statement is unfit to be a witness because of a mental or physical infirmity;

the maker of the statement is out of the jurisdiction and it is not reasonably practicable to bring them before the court; and

the maker of the statement cannot be found and steps that are reasonably practicable have been taken to find him or her.

There are broad ranging protections to ensure the proper protection of fairness to the defendant and the fairness of the trial process. The court retains a broad and unrestricted discretion to reject evidence sought to be adduced, or regulate the conditions in which it might be adduced, under the exception.

The protections also include providing that:

evidence relating to the credibility of the maker of the out of court statement may be adduced as if the statement was made in court;

evidence may be given in court with leave of any matter that could be put to the maker of the out of court statement as if the statement was made in court; and

evidence of prior inconsistent statements made by the maker of the out of court statement may be admissible as if the statement was made in court.

In addition, there are protections that allow the court to stop the case where it is largely dependent on the out of court statement and a conviction would be unsafe and a statutory preservation of the general power to exclude evidence either on the basis that it would be a waste of time or that the dangers of admitting it would substantially outweigh the evidentiary value of the evidence.

It has been said by some in the consultation that adoption of the UK provisions denies the accused the right to a fair trial. This is demonstrably not the case. The UK provisions, which are mirrored in this Bill, were challenged in the Supreme Court of the United Kingdom (what used to be called the House of Lords) in Horncastle [2009] UKSC 14. The basis of the challenge was that the conviction of the appellant on evidence admitted under these provisions denied the appellant the right to a fair trial under Article 6 of the European Convention on Human Rights. The Court unanimously dismissed the argument. It said:

68One situation where Strasbourg has recognised that there is justification for not calling a witness to give evidence at the trial, or for permitting the witness to give that evidence anonymously, is where the witness is so frightened of the personal consequences if he gives evidence under his own name that he is not prepared to do so. If the defendant is responsible for the fear, then fairness demands that he should not profit from its consequences. Even if he is not, the reality may be that the prosecution are simply not in a position to prevail on the witness to give evidence. In such circumstances, having due regard for the human rights of the witness or the victim, as well as those of the defendant, fairness may well justify reading the statement of the witness or permitting him to testify anonymously. Claims of justification on such grounds have to be rigorously examined - see Doorson v The Netherlands (1996) 22 EHRR 330 at paragraph 71, Kok v The Netherlands (Application No 43149/98), Reports of Judgments and Decisions 2000-VI, p 597; Visser v The Netherlands (Application No 26668/95, BAILII: [2002] ECHR 108 ), 14 February 2002 at paragraph 47; Krasniki v Czech Republic (Application No 51277/99, BAILII: [2006] ECHR 176 ), 28 February 2006 at paragraphs 80-81; Lucà v Italy (2001) 36 EHRR 807 at paragraph 40:

As the Court has stated on a number of occasions, it may prove necessary in certain circumstances to refer to depositions made during the investigative stage (in particular, where a witness refuses to repeat his deposition in public owing to fears for his safety, a not infrequent occurrence in trials concerning Mafia-type organisations).

Where the court has found justification for the admission of a statement from a witness not called, or for a witness giving evidence anonymously, the Court has been concerned with whether the process as a whole has been such as to involve the danger of a miscarriage of justice. The exercise has been similar to that conducted by the English Court of Appeal when considering whether, notwithstanding the breach of a rule relating to admissibility, the conviction is "safe". There is, of course, an overlap between considering whether procedure has been fair and whether a verdict is safe, and it is sometimes difficult to distinguish between the two questions.

In addition, it is proposed to amend the Evidence Act 1929 to include within the definition of vulnerable witness a person who will only consent to give evidence on the basis that he or she is treated as a vulnerable witness. This is another helping hand to the frightened witness whereby the existing framework constructed for vulnerable witnesses is made available for their protection.

(ix)—Special Procedure

Delay in the criminal justice system aids the defendant determined to intimidate and threaten witnesses, jurors and victims. The more delay, the more the opportunity. Therefore, the establishment of a special procedure of direct indictment in the hands of the Director of Public Prosecutions in the Supreme Court is proposed. Where that direct indictment is made, the trial of the accused must begin within 6 months of an operative determination by a bail authority that the defendant is a serious and organised crime suspect unless the Supreme Court determines that the commencement is not reasonably practicable or on application by either party that there are exceptional circumstances that justify delay. It is not the intention of the Government to dictate what those exceptional circumstances may be.

(x)—Trial By Jury

The right to trial by jury is rightly considered to be a fundamental right existing in relation to the trial of serious offences contained in the criminal justice process. It is so fundamental that it is one of the few fundamental freedoms recognised, at least in part, in the Commonwealth Constitution. But that right can be abused and may well be abused. Jurors are, and are meant to be, ordinary people. As ordinary people, they can be threatened, harassed and intimidated. This is not a statement of mere theory.

The criminal justice system can and does take steps to prevent jury tampering. For example, it is no longer practice to announce the home address of a juror. But more can and should be done.

A special procedure of direct indictment in the Supreme Court for a serious and organised crime offence is described above. It is also proposed that where the DPP decides to take that special path, the DPP may also apply to the court for trial by judge alone. The Court is to be given a general discretion to consider whether it is in the interests of justice to grant the application (and will hear from both parties on the question) but the Bill should also offer guidance on the situation contemplated by the conferral of the discretion. That situation is where the Court considers that there is a real possibility that the jury will be the target of interference of any kind.

(xi)—Privilege Against Self-Incrimination

R v Hicks and Hicks [2010] QSC 376 was a murder case. The applicant had also been charged with the murder but had been acquitted on a directed verdict. The Attorney-General, in contemplation of calling the applicant as a witness in the trial of the other co-accused, had provided the applicant with a very thorough undertaking that any answer statement or evidence provided in the proceedings would not be used against him. The applicant claimed that he would still be entitled to claim a privilege against self-incrimination in the proceedings in question, despite the undertaking. The court disagreed, ruling that the applicant would be obliged to answer questions under oath when called as a witness even though the answer might tend to incriminate him because of the undertaking. this is a salutary ruling going to the heart of the code of silence. This Bill amends the Director of Public Prosecutions Act 1991 to mirror the Queensland provision.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Australian Crime Commission (South Australia) Act 2004

4—Amendment of section 3—Interpretation

This clause inserts 2 new definitions as follows:

a new definition of constable, for the purposes of proposed section 26D, meaning a member or special member of the Australian Federal Police or a member of the police force or police service of this State;

a new definition of in contempt of the ACC which has the meaning given by proposed section 26A.

The clause also substitutes an amended definition of intelligence operation that proposes to include an operation investigating matters relating to relevant criminal activity.

5—Amendment of section 8—Functions of the Board

This clause extends the period of time within which the Chair of the Board must give a copy of a determination to the Inter-Governmental Committee from 3 days to 7 days.

6—Insertion of sections 26A to 26F

This clause inserts new sections dealing with when a person may be in contempt of the ACC.

26A—Contempt of the ACC

This proposed section defines the circumstances when a person is in contempt of the ACC.

26B—Supreme Court to deal with contempt

This proposed section provides for an examiner to apply to the Supreme Court for a person, who the examiner is of the opinion is in contempt of the ACC, to be dealt with in relation to the contempt. An application must be accompanied by a certificate stating the grounds for the application and providing evidence in support of it. The certificate must be provided to the person to whom the application relates. If the Court finds that the person was in contempt of the ACC under proposed section 26A the Court may then deal with the person as if the conduct constituted a contempt of that Court.

26C—Conduct of contempt proceedings

This proposed section provides that an application to a Court under proposed section 26B will be dealt with according to the laws (including any Rules of Court) that apply in that Court in relation to contempt proceedings. This section also provides that a certificate under proposed section 26B(3) is prima facie evidence of the matters specified in the certificate.

26D—Person in contempt may be detained

This proposed section provides for an examiner, who proposes to make an application to a Court under proposed section 26B(1) in relation to a person, to detain that person before he or she is brought before the Court (which must be done as soon as practicable). The Court may then order the conditional release or continued detention of the person pending the determination of the application.

26E—Examiner may withdraw contempt application

This proposed section provides that an examiner may at any time withdraw an application made in relation to a person under proposed section 26B(1) and if the person is detained in relation to that application he or she must be immediately released from detention.

26F—Relationship with section 34

This proposed section provides that, to avoid doubt, evidence relating to an application under proposed section 26B(1) is not required to be given to a person or authority under section 34(1).

7—Amendment of section 39—Double jeopardy

This clause amends section 39 to provide that if a person is dealt with by a Court under proposed section 26B(1) in relation to an act or omission, then the person is not liable to be prosecuted for an offence in respect of that act or omission. Similarly, if a person is prosecuted for an offence in relation to an act or omission then an application must not be made under proposed section 26B(1) in respect of that act or omission.

Part 3—Amendment of Bail Act 1985

8—Amendment of section 3—Interpretation

This clause inserts 3 new definitions as follows:

Chief Executive Officer to have the same meaning as in the Correctional Services Act 1982;

serious and organised crime offence to have the same meaning as in the Criminal Law Consolidation Act 1935;

serious and organised crime suspect—which is defined in proposed section 3A.

9—Insertion of section 3A

This clause inserts proposed section 3A that provides for a bail authority to determine, on the application of the Crown, that a person is a serious and organised crime suspect if the person has been charged with a serious and organised crime offence, if the person was not a child at the time of the alleged offence, and if the grant of bail to the person is likely to cause a potential witness, or other person connected with proceedings for the alleged offence, to reasonably fear for his or her safety. A determination of a bail authority under this proposed section will cease to apply after 6 months if the person has not been tried, or is not on trial, for the offence and there has not been a determination of the Supreme Court under section 275(3) of the Criminal Law Consolidation Act 1935.

10—Amendment of section 4—Eligibility for bail

This clause amends section 4 to add to the list of persons eligible for release on bail a person who has been arrested under proposed section 19A and a person who is no longer a serious and organised crime suspect because of the operation of proposed section 3A(2) (and the previous bail agreement will cease to have effect if a new bail agreement is entered into).

11—Amendment of section 10A—Presumption against bail in certain cases

This clause amends section 10A, which provides for a presumption against bail in certain cases. This clause proposes to include an applicant who is a serious and organised crime suspect in the list of prescribed applicants to which section 10A applies. In addition, a serious and organised crime suspect will not be able to demonstrate special circumstances for the purposes of section 10A if he or she cannot prove, by evidence verified on oath or by affidavit, that he or she has not previously been convicted of a serious and organised crime offence.

12—Amendment of section 11—Conditions of bail

This clause amends section 11, which provides for conditions that a bail authority may impose in relation to a grant of bail. This clause proposes to introduce mandatory conditions of bail for a grant of bail in relation to a serious and organised crime suspect as follows:

a condition that the person resides at a specified address and only leaves the residence for the purpose of necessary medical or dental treatment, to avert or minimise a serious risk of death or injury, or any other purpose approved by the Chief Executive Officer;

a condition that the person is subject to electronic monitoring while on bail;

a condition that the person agrees to not communicate with any other person other than those specified or of a specified class or of a prescribed class;

a condition that the person agrees to use, or be in possession of, only specified telephones, mobile phones, computers or other communication devices.

13—Insertion of section 19A

This clause proposes to insert a new section 19A that provides for a court to cancel a bail agreement and issue a warrant of arrest if a person was released on bail without a police officer making an application for a determination under the provisions of proposed section 3A(1) and in the opinion of the court those provisions apply.

14—Insertion of section 23A

Under proposed section 23A, if a person who is a serious and organised crime suspect applies for bail and the bail authority is a court, the court must consider whether to make an intervention order. A court must also consider whether to make an intervention order if advised by the police or a Crown representative that the victim of the alleged offence, or a person otherwise connected with proceedings for the alleged offence, feels a need for protection from the alleged offender or any other person associated with the alleged offender. The section creates an obligation for a police officer or Crown representative to advise the court of the perceived need for protection during the bail hearing. A bail authority that is not a court is required to consider making an application in the Magistrates Court for an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009. An intervention order issued under the section will be issued as if it were issued under the Intervention Orders (Prevention of Abuse) Act 2009.

15—Amendment of section 24—Act not to affect provisions relating to intervention and restraining orders

The amendments made by this section to section 24 are consequential on the insertion of proposed section 23A.

16—Transitional provision

The transitional provision provides that the amendments to the Bail Act 1985 only apply in relation to a person in custody in respect of an offence allegedly committed after the commencement of Part 3.

Part 4—Amendment of Controlled Substances Act 1984

17—Amendment of section 4—Interpretation

This clause inserts two new definitions into the Controlled Substances Act 1984.

The definitions of aggravated offence and basic offence are necessary because of the insertion of new penalty provisions for the purposes of some offences under the Act. The definitions explain that where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to an aggravated offence is a reference to the offence in its aggravated form and the reference to a basic offence is a reference to the offence in its non-aggravated form. The definitions refer to proposed section 43, which deals with aggravated offences. The definitions match the definitions of the same terms as used in the Criminal Law Consolidation Act 1935.

18—Amendment of section 32—Trafficking

This clause amends section 32 of the Controlled Substances Act 1984 by substituting new penalty provisions for section 32(2), (2a) and (3). The new penalty provisions differentiate between the maximum penalty for an aggravated offence and the maximum penalty for a basic offence. In each case, the maximum penalty for the basic offence is the same as the current penalty. The aggravated offence penalties are as follows:

section 32(2) (trafficking in a commercial quantity of a controlled drug)—$500 000 or imprisonment for life, or both;

section 32(2a) (trafficking in a controlled drug in a prescribed area)—$200 000 or imprisonment for 25 years, or both;

section 32(3) (trafficking in a controlled drug)—$75 000 or imprisonment for 15 years, or both.

19—Amendment of section 33—Manufacture of controlled drugs for sale

This clause amends section 33 of the Act by substituting new penalty provisions for section 33(2) and (3), both of which relate to the manufacturing of a controlled drug for sale. The new penalty provisions differentiate between the maximum penalty for an aggravated offence and the maximum penalty for a basic offence. In each case, the maximum penalty for the basic offence is the same as the current penalty. The aggravated offence penalties are as follows:

section 33(2)—$500 000 or imprisonment for life, or both;

section 33(3)—$75 000 or imprisonment for 15 years, or both.

20—Amendment of section 33A—Sale, manufacture etc of controlled precursor

This clause amends section 33A of the Act, which deals with the sale and manufacture of controlled precursors, by substituting new penalty provisions. The new penalty provisions differentiate between the maximum penalty for an aggravated offence and the maximum penalty for a basic offence. In each case, the maximum penalty for the basic offence is the same as the current penalty. The aggravated offence penalties are as follows:

section 33A(1)—$500 000 or imprisonment for life, or both;

section 33A(2)—$200 000 or imprisonment for life, or both;

section 33A(3), (4) and (5)—$75 000 or imprisonment for 15 years, or both.

21—Amendment of section 33B—Cultivation of controlled plants for sale

This clause amends section 33B of the Act by substituting new penalty provisions for section 33B(2) and (3), which deal with the cultivation of controlled plants for sale. The new penalty provisions differentiate between the maximum penalty for an aggravated offence and the maximum penalty for a basic offence. In each case, the maximum penalty for the basic offence is the same as the current maximum penalty. The aggravated offence penalties are as follows:

section 33B(2)—$500 000 or imprisonment for life, or both;

section 33B(3)—$75 000 or imprisonment for 15 years, or both.

22—Amendment of section 33C—Sale of controlled plants

This clause amends section 33C of the Act by substituting new penalty provisions for section 33C(2) and (3), which deal with the sale of controlled plants. The new penalty provisions differentiate between the maximum penalty for an aggravated offence and the maximum penalty for a basic offence. In each case, the maximum penalty for the basic offence is the same as the current maximum penalty. The aggravated offence penalties are as follows:

section 33C(2)—$500 000 or imprisonment for life, or both;

section 33C(3)—$75 000 or imprisonment for 15 years, or both.

23—Amendment of section 33DA—Sale of instructions

This clause amends section 33DA of the Act by substituting a new penalty provision. The new penalty provision differentiates between the maximum penalty for an aggravated offence and the maximum penalty for a basic offence. The maximum penalty for the basic offence is the same as the current maximum penalty and the aggravated offence maximum penalty is $15 000 or imprisonment for 5 years, or both.

24—Amendment of section 33GB—Sale of instructions to a child

This clause amends section 33GB of the Act by substituting a new penalty provision. The new penalty provision differentiates between the maximum penalty for an aggravated offence and the maximum penalty for a basic offence. The maximum penalty for the basic offence is the same as the current penalty and the aggravated offence maximum penalty is $30 000 or imprisonment for 5 years, or both.

25—Insertion of section 43

This clause inserts a new section.

43—Aggravated offences

Proposed section 43 provides that an offence is an aggravated offence if—

the offender committed the offence for the benefit of a criminal organisation or at the direction of, or in association with, a criminal organisation; or

in connection with the offence, the offender identified himself or herself in some way as belonging to, or otherwise being associated with, a criminal organisation (irrespective of whether the offender actually belonged to or was associated with the organisation).

If a person displayed the insignia of a criminal organisation (whether on an article of clothing, as a tattoo or in some other way), he or she will be taken to have identified himself or herself as belonging to, or as being associated with, the organisation unless he or she did not do so knowingly or recklessly.

The term criminal organisation has the same meaning as in proposed Part 3B of the Criminal Law Consolidation Act 1935.

The proposed section also includes other provisions consistent with those that currently exist in relation to aggravated offences under the Criminal Law Consolidation Act 1935.

Part 5—Amendment of Criminal Law (Sentencing) Act 1988

26—Insertion of section 19AA

This clause inserts a new section into the Criminal Law (Sentencing) Act 1988. The proposed new section 19AA provides that a court sentencing a person for an indictable offence may exercise the powers of the Magistrates Court to issue a non-association order or a place restriction order against the defendant. Non-association orders and place restrictions orders are orders that are to be available under proposed amendments to the Summary Procedure Act 1921.

27—Insertion of Part 2 Division 6

This clause proposes the insertion of a new Division that provides for a person already serving a sentence of imprisonment to have that sentence (and any non-parole period) reduced by a court for cooperation with a law enforcement agency in relation to a serious offence that has been committed or may be committed in the future. The chief officer of the law enforcement agency (eg the Commissioner of Police), the Director of Public Prosecutions and the applicant are parties to the proceedings on the application. The court that imposed the relevant sentence may reduce the sentence by a percentage amount having regard to listed factors such as the nature and extent of the applicant's cooperation, and the truthfulness, completeness and reliability of any information or evidence provided by the defendant.

Part 6—Amendment of Criminal Law Consolidation Act 1935

28—Amendment of section 5—Interpretation

This clause inserts a definition of criminal organisation into the Criminal Law Consolidation Act 1935. The definition refers to proposed Part 3B.

Section 5 is also amended to include a definition of serious and organised crime offence, being—

an offence against Part 3B; or

an offence punishable by life imprisonment, or an aggravated offence, if it is alleged that the offence was committed in the circumstances where the offender committed it for the benefit of a criminal organisation (or 2 or more members of a criminal organisation) or at the direction of, or in association with, a criminal organisation or where, in the course of or in connection with the offence, the offender identified himself or herself in some way as belonging to, or otherwise being associated with, a criminal organisation.

29—Amendment of section 5AA—Aggravated offences

Under section 5AA of the Criminal Law Consolidation Act 1935, an offence committed in circumstances described in subsection (1) is an aggravated offence. An offence committed in its aggravated form is liable to a more severe maximum penalty than if committed in its non-aggravated form.

This clause amends the list of relevant circumstances set out in section 5AA by adding the following:

the offender committed the offence for the benefit of a criminal organisation or at the direction of, or in association with, a criminal organisation;

in the course of or in connection with the offence, the offender identified himself or herself, in some way, as belonging to, or as otherwise being associated with, a criminal organisation (whether or not the offender did in fact belong to, or was associated with, the organisation).

If a person displayed the insignia of a criminal organisation (whether on an article of clothing, as a tattoo or in some other way), the person will be taken to have identified himself or herself as belonging to, or as being associated with, the organisation unless the person proves that he or she did not do so knowingly or recklessly.

Subsection (4) of section 5AA requires a jury that finds a person guilty of an aggravated offence, where more than one aggravating factor is alleged, to state which of the aggravating factors it finds to have been established. This clause amends subsection (4) by making it clear that a failure to comply with this requirement does not affect the validity of the jury's verdict.

30—Insertion of Part 3B

This clause inserts a new Part into the Act. Part 3B deals with offences relating to criminal organisations.

Part 3B—Offences relating to criminal organisations

83D—Interpretation

Proposed section 83D includes definitions of a number of terms used in Part 3B.

The definition of criminal group provides that a group consisting of 2 or more persons is a criminal group if—

an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence of violence; or

an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence intending to benefit the group, persons who participate in the group or their associates.

A criminal organisation is a criminal group or a declared organisation (the latter having the same meaning as in the Serious and Organised Crime (Control) Act 2008).

A serious offence is an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more. A serious offence of violence is a serious offence where the conduct constituting the offence involves—

the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person; or

serious damage to property in circumstances involving a risk of the death of, or harm to, a person; or

perverting the course of justice in relation to conduct that, if proved, would constitute a serious offence of violence as referred to in either of the above paragraphs.

This clause also makes it clear that a group of people is capable of being a criminal group whether or not any of them are subordinates or employees of others or only some people involved in the group are involved in planning, organising or carrying out a particular activity or membership changes from time to time.

83E—Participation in criminal organisation

This proposed section makes it an offence for a person to participate in a criminal organisation if the person knows that, or is reckless as to whether, the organisation is a criminal organisation and knows that, or is reckless as to whether, his or her participation in the organisation contributes to the occurrence of criminal activity. The maximum penalty is imprisonment for 15 years.

It is also an offence for a person to assault another person, knowing that, or being reckless as to whether, he or she is, by that act, participating in a criminal activity of a criminal organisation. The maximum penalty is imprisonment for 20 years.

A person is also guilty of an offence under the section if he or she destroys or damages, or threatens to destroy or damage, property belonging to another person, knowing that, or being reckless as to whether, he or she is, by that act, participating in a criminal activity of a criminal group. The maximum penalty is a imprisonment for 20 years.

It is also an offence under the section for a person to assault a public officer while in the execution of the officer's duty knowing that, or being reckless as to whether, the person is, by that act, participating in a criminal activity of a criminal organisation. The maximum penalty is imprisonment for 25 years.

A term of imprisonment imposed on a person under the section is to be cumulative on any other term of imprisonment or detention that the person is liable to serve in respect of another offence (other than another offence against the section).

A person will be presumed, in the absence of proof to the contrary, to be knowingly participating in an organisation at a particular time if the person is displaying at that time (whether on an article of clothing, as a tattoo or otherwise) the insignia of that organisation.

83F—Alternative verdicts

Proposed section 83F authorises a jury on the trial for an offence under section 83E(2), (3) or (4) to find the accused guilty of an offence under section 83E(1).

83G—Evidentiary

If a court is satisfied beyond a reasonable doubt in criminal proceedings that a group was, at a particular time, a criminal group, the court may make a declaration to that effect on the application of the Director of Public Prosecutions. Once a declaration is made, the group will, for the purposes of any subsequent criminal proceedings, be taken to be a criminal group in the absence of proof to the contrary.

31—Amendment of section 172—Blackmail

As a consequence of this amendment, the maximum penalty for an aggravated offence of blackmail will be imprisonment for 20 years. The current maximum penalty of imprisonment for 15 years will continue to apply for a non-aggravated offence.

32—Amendment of section 244—Offences relating to witnesses

33—Amendment of section 245—Offences relating to jurors

34—Amendment of section 248—Threats or reprisals relating to persons involved in criminal investigations or judicial proceedings

35—Amendment of section 249—Bribery or corruption of public officers

36—Amendment of section 250—Threats or reprisals against public officers

Clauses 32 to 36 increase various maximum penalties from 7 years imprisonment to 10 years imprisonment.

37—Amendment of section 251—Abuse of public office

The maximum penalty for an offence under section 251 (Abuse of public office) is currently imprisonment for 7 years. This clause amends the penalty provisions to introduce an aggravated form of the offences, punishable by imprisonment for 10 years.

38—Amendment of section 275—Information may be presented in name of Director of Public Prosecutions

This clause amends section 275 to provide that the Supreme Court must make rules expediting proceedings for a serious and organised crime offence (or an offence joined in the same information as such an offence). The clause also provides, in cases where the defendant has been determined as a serious and organised crime suspect under the Bail Act 1985, that the matter must be commenced within the period of 6 months after the making of that determination but that the Court may dispense with that requirement where it is not reasonably practicable for the Court to deal with the matter within that period, or where exceptional circumstances exist that justify the matter being set down for trial at a later date.

Part 7—Amendment of Director of Public Prosecutions Act 1991

39—Amendment of section 7—Powers of Director

This clause amends section 7 to specify that the DPP has power to undertake to a person not to use, or make derivative use of, information or a thing against the person in a proceeding (other than in relation to false evidence given by the person in a proceeding).

Part 8—Amendment of Evidence Act 1929

40—Amendment of section 4—Interpretation

This clause inserts a definition of statement for the purposes of the Act and amends the definition of vulnerable witness to include a person who will only consent, in relation to proceedings for a serious and organised crime offence, to being a witness in the proceedings if he or she is treated as a vulnerable witness for the purposes of the proceedings.

41—Insertion of sections 34KA to 34KD

This clause inserts new sections as follows:

34KA—Admissibility of evidence of out of court statements by unavailable witnesses

Proposed section 34KA deals with the admissibility and use of an out of court statement by a person who is unavailable to give evidence in proceedings for a criminal offence or proceedings under the Serious and Organised Crime (Control) Act 2008. For such a statement to be admissible the court must be satisfied that—

the evidence, given by the person, would be admissible if he or she attended court and gave the evidence as oral evidence; and

the person is identified to the court's satisfaction; and

the person is unavailable for one of several reasons, namely:

the person is dead;

the person is unfit to be a witness because of a bodily or mental condition;

the person is outside of the State and it is not reasonably practicable to secure his or her attendance;

the person cannot be found although such steps as it is reasonably practicable to take to find him or her have been taken;

that through fear the person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.

34KB—Credibility

This proposed section deals with the admissibility, in proceedings for a criminal offence or proceedings under the Serious and Organised Crime (Control) Act 2008, of evidence relevant to the credibility of a person who is the maker of the out of court statement which is admitted in proceedings (where the maker of the statement does not give oral evidence in connection with the subject matter of the statement).

34KC—Stopping the case where evidence is unconvincing

This proposed section provides for a court to direct an acquittal or discharge a jury where the court is satisfied that evidence provided by an out of court statement is so unconvincing that, considering its importance to the case against the defendant, a conviction of the offence would be unsafe.

34KD—Court’s general discretion to exclude evidence

This proposed section specifies that a court may, in proceedings for a criminal offence or proceedings under the Serious and Organised Crime (Control) Act 2008, refuse to admit an out of court statement as evidence of a matter if the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence (but nothing in the section derogates from any other power of a court to exclude evidence at its discretion).

42—Transitional provision

This clause provides that new sections 34KA to 34KD of the Evidence Act 1929 will only apply to proceedings commenced after the commencement of the amendments.

Part 9—Amendment of Intervention Orders (Prevention of Abuse) Act 2009

43—Amendment of section 9—Priority for certain interventions

This clause amends section 9 of the Intervention Orders (Prevention of Abuse) Act 2009 to include proceedings brought by a bail authority under proposed section 23A of the Bail Act 1985 among those proceedings that must be dealt with as a matter of priority under the Act.

Part 10—Amendment of Juries Act 1927

44—Amendment of section 7—Trial without jury

This clause amends section 7 to provide that where an information that includes a charge of a serious and organised crime offence is presented to the District Court or the Supreme Court under section 275 of the Criminal Law Consolidation Act 1935, the Director of Public Prosecutions may apply to the court for an order that the accused be tried by judge alone. A court may make such an order if it considers it is in the interests of justice to do so, which may include the question of whether there is a real possibility that an offence would be committed in relation to a member of a jury under section 245 or 248 of the Criminal Law Consolidation Act 1935.

Part 11—Amendment of Summary Offences Act 1953

45—Amendment of section 4—Interpretation

This clause inserts a definition of serious and organised crime offence into the Summary Offences Act 1953. The term has the same meaning as is proposed by amendments to the Criminal Law Consolidation Act 1935.

46—Insertion of section 13

This clause inserts a new section.

13—Consorting

Proposed section 13 prohibits a person from habitually consorting with a prescribed person or persons without reasonable excuse. The maximum penalty for the offence is imprisonment for 2 years.

A person may consort with another for the purposes of the section by any means including by letter, telephone or fax or by email or other electronic means.

A prescribed person is a person who has been found guilty of, or who is reasonably suspected of having committed, a serious and organised crime offence.

47—Amendment of section 18—Loitering

Section 18, which deals with loitering, is amended by this clause to include new provisions allowing a police officer to require a person of a prescribed class who is reasonably suspected of loitering in a public place to state the reason that he or she is in the place.

48—Insertion of Part 14A

This clause inserts a new Part dealing with consorting prohibition notices.

Part 14A—Consorting prohibition notices

66—Interpretation

Proposed section 66 provides definitions of a number of terms used in the proposed Part.

66A—Senior police officer may issue consorting prohibition notice

This proposed section authorises a senior police officer to issue a consorting prohibition notice in certain circumstances. This is a notice prohibiting a person from consorting with a specified person or specified persons. The police officer must be satisfied either that the recipient of the notice is subject to a control order or that a person with whom the recipient of the notice is prohibited from consorting has been found guilty of 1 or more prescribed offences within the preceding period of 3 years or is reasonably suspected of having committed 1 or more prescribed offences within that period.

The officer must also be satisfied that the recipient of the notice has been habitually consorting with the person or persons specified on the notice and that the issuing of the notice is appropriate in the circumstances.

The section makes it clear that a consorting prohibition notice does not prohibit associations between close family members and does not prohibit associations occurring between persons—

for genuine political purposes; or

while the persons are in lawful custody; or

while the persons are acting in compliance with a court order; or

while the persons are attending a rehabilitation, counselling or therapy session of a prescribed kind.

A notice may specify other circumstances in which it does not apply.

66B—Form of notice

Proposed section 66B sets out certain requirements in relation to the form and content of consorting prohibition notices.

66C—Service of notice

A consorting prohibition notice is not binding on a recipient until it has been served on him or her personally.

A police officer who has reason to believe that a person is subject to a consorting prohibition notice that has not been served on the person may require the person to remain at a particular place for so long as may be necessary for the notice to be served on the person or two hours (whichever is the lesser). If the person refuses or fails to comply with the requirement, or the officer has reasonable grounds to believe that the requirement will not be complied with, the officer may arrest and detain the person in custody (without warrant) for the period referred to above.

If a police officer satisfies the Court that all reasonable efforts have been made to effect personal service of a notice on a recipient in accordance with section 66C but that those efforts have failed, the Court may make such orders as it thinks fit in relation to substituted service. The notice is then not binding on the recipient until it has been so served.

66D—Application for review

Under proposed section 66D, a recipient is entitled to lodge an application for review of a consorting prohibition notice that has been served on him or her. The application must be lodged within 4 weeks of service of the notice.

On a review, the Court may consider—

whether sufficient grounds exist to satisfy the Court that the notice was properly issued in accordance with section 66A(1);

whether any person specified in the notice is a close family member of the recipient or there are otherwise good reasons why a particular person should not be so specified;

whether the notice should specify particular circumstances in which it does not apply.

The Court may confirm, vary or revoke the notice.

66E—Variation or revocation of consorting prohibition notice

This proposed section allows the Court to grant permission to the recipient of a consorting prohibition notice to apply to the Court for the variation or revocation of the notice. The Court may grant the permission if satisfied that there has been a substantial change in the relevant circumstances since the consorting prohibition notice was made or last varied. On the application, the Court may vary or revoke the notice. A copy of the application is to be served on the Commissioner of Police.

66F—Appeal

Under proposed section 66F, the Commissioner of Police or the recipient of a consorting prohibition notice can appeal to the Supreme Court against a decision of the Magistrates Court made under Part 14A. An appeal lies as of right on a question of law and with the permission of the Court on a question of fact.

66G—Revocation of notice by Commissioner

Proposed section 66G authorises the Commissioner of Police to revoke a consorting prohibition notice at any time by notice in writing to the recipient of the notice.

66H—Applications by or on behalf of child

This proposed section provides that an application that could be made under Part 14A by a person may, if the person is child, be made by the child (if her or she has attained the age of 14 years) or on behalf of the child by the child's parent or guardian or a person with whom the child normally or regularly resides.

66I—Evidence etc

In proceedings under Part 14A, the Court is not bound by the rules of evidence. Questions of fact to be decided in proceedings under Part 14A are to be decided on the balance of probabilities. This does not apply in relation to proceedings for an offence.

66J—Criminal intelligence

This proposed provision provides for the protection of criminal intelligence in proceedings under the Part.

The function of classifying information as criminal intelligence for the purposes of the Act may not be delegated by the Commissioner except to a Deputy Commissioner or Assistant Commissioner of Police.

66K—Offence to contravene or fail to comply with notice

This proposed section makes it an offence for a person to contravene or fail to comply with a consorting prohibition notice. The maximum penalty is imprisonment for 2 years.

It is made clear that a person does not commit an offence against proposed section 66K in respect of an act or omission unless the person knew, or was reckless as to the fact, that the act or omission constituted a contravention of, or failure to comply with, the notice.

Part 12—Amendment of Summary Procedure Act 1921

49—Insertion of Part 4 Division 5

This clause inserts a new Division into Part 4 of the Summary Procedure Act 1921. Division 5 provides for the making of non-association and place restriction orders.

Division 5—Non-association and place restriction orders

77—Interpretation

Proposed section 77 provides definitions for a number of terms used in Division 5.

A non-association order is an order under section 78 that—

prohibits a defendant from being in company with a specified person or from communicating with that person by any means except at the times or in the circumstances (if any) specified in the order; or

prohibits a defendant from being in company with a specified person and from communicating with that person by any means.

A place restriction order is an order under section 78 that—

prohibits a defendant from frequenting or visiting a specified place or area except at the times or in the circumstances (if any) specified in the order; or

prohibits a defendant from frequenting or visiting a specified place or area at any time or in any circumstance.

A prescribed offence is an indictable offence or an offence that would, if committed in South Australia, be an indictable offence.

78—Non-association and place-restriction orders

The Magistrates Court may, on complaint by a police officer, make a non-association order or a place restriction order in respect of the defendant if—

the defendant has, within the period of 2 years immediately preceding the making of the complaint, been convicted (in South Australia or elsewhere) of a prescribed offence; and

the Court is satisfied that it is reasonably necessary to do so to ensure that the defendant does not commit any further prescribed offences.

The order operates for the period of up to 2 years.

79—Non-association and place restriction orders not to restrict certain associations or activities

This proposed section specifies limits on the restrictions that can be included in non-association and place restriction orders.

80—Issue of non-association or place restriction order in absence of defendant

Proposed section 80 deals with the issue of a non-association order or place restriction order in the absence of the defendant. An order may be made in the defendant's absence if he or she failed to appear at the hearing of a complaint in obedience to a summons or in accordance with a bail condition.

The proposed section also allows for a non-association or place restriction order to be issued in the absence of the defendant where the defendant was not summoned to appear at the hearing. In that case, the Court is required to summon the defendant to appear before the Court to show cause why the order should not be confirmed.

A non-association or place restriction order issued in the absence of the defendant where the defendant was not summoned to appear continues in force until the conclusion of the hearing (or adjourned hearing) to which the defendant is summoned but is not effective following the conclusion of the hearing (or adjourned hearing) unless the order has been confirmed by the Court. The Court may confirm a non-association order or a place restriction order in an amended form.

81—Service

Proposed section 81 requires service of a non-association order or place restriction order on a defendant personally. The order is not binding until it has been so served. However, if a police officer satisfies the Court that all reasonable efforts have been made to effect personal service of an order on a recipient in accordance with section 81 but that those efforts have failed, the Court may make such orders as it thinks fit in relation to substituted service. The order is then not binding on the recipient until it has been so served.

82—Variation or revocation of non-association or place restriction order

This proposed section authorises the Court to vary or revoke a non-association order or place restriction order on application by a police officer or the defendant.

83—Contravention of non-association and place restriction orders

This proposed section makes it an offence for a person to contravene or fail to comply with a non-association order or a place restriction order. The maximum penalty for a first offence is imprisonment for 6 months. For a subsequent offence, the maximum penalty is imprisonment for 2 years. There is no offence if the person establishes that he or she had a reasonable excuse for the contravention or failure to comply.

50—Amendment of section 103—Procedure in the Magistrates Court

This clause amends section 103 to ensure that the ex officio indictment process is available to the DPP even if an information charging an indictable offence has already been filed in the Magistrates Court.

Part 13—Amendment of Youth Court Act 1993

51—Amendment of section 7—Jurisdiction

This amendment to section 7 of the Youth Court Act 1993 gives the Youth Court the same jurisdiction as the Magistrates Court to make a non-association or place restriction order under the Summary Procedure Act 1921 if the person to be subject to the order is a child or youth. The Youth Court has power under the Summary Procedure Act 1921 to vary or revoke such an order previously made by the Court.

Debate adjourned on motion of Hon. D.W. Ridgway.

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