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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2017-08-02 Daily Xml
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Criminal Law Consolidation (Criminal Organisations) Amendment Bill

Second Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (16:51): I move:

That this bill be now read a second time.

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

Leave granted.

The Criminal Law Consolidation (Criminal Organisations) Amendment Bill 2017 amends Part 3B, Division 2 of the Criminal Law Consolidation Act 1934 ('CLCA'). That Division contains a scheme that responds to serious and organised crime in our community.

Background

In 2015, the Statutes Amendment (Serious and Organised Crime) Act 2015 ('2015 Act')was passed. The 2015 Act inserted Division 2 into Part 3B the CLCA. Division 2 is headed 'public places, prescribed places and prescribed events'. It is directed toward participants in criminal organisations. It prohibits such people from:

being knowingly present in a public place with 2 or more other participants in a criminal organisation;

entering a prescribed place or attending a prescribed event; or

recruiting another person to become a participant in a criminal organisation.

For the purposes of Division 2, 'criminal organisation' is defined in three ways. Criminal organisation means:

1. an organisation of 3 or more persons who:

have as their purpose, or as 1 of their purposes, engaging in, organising, planning, facilitating, supporting, or otherwise conspiring to engage in, serious criminal activity; and

by their association represent an unacceptable risk to the safety, welfare or order of the community; or

2. a declared organisation within the meaning of the Serious and Organised Crime (Control) Act 2008; or

3. an entity declared by regulation to be a criminal organisation.

For the purposes of the third limb of the definition, the Criminal Law Consolidation (Criminal Organisations) Regulations 2015 declare 10 entities to be criminal organisations. Those Regulations are not a product of the usual regulation making process. They were contained in a schedule to the 2015 Act and converted to regulations on its assent.

The process that must be followed in order to declare any additional organisations for the purposes of the third limb of the definition of criminal organisation is detailed in section 83GA of the CLCA. There is scope for a report from the Crime and Public Integrity Policy Committee, there is scope for the Minister to consider any information suggesting a link between the entity and serious criminal activity, relevant convictions, and a range of other information. A regulation declaring a criminal organisation may be disallowed by resolution of either House of Parliament. In this way, the Parliament retains control over which further entities, if any, are declared to be criminal organisations.

Removal of no criminal purpose defence

In relation to each of the offence provisions in Part 3B, Division 2 there is a 'no criminal purpose' defence. It first occurs in section 83GC(2), which provides that:

It is a defence to a charge of an offence against subsection (1) for the defendant to prove that the criminal organisation in which it is alleged that the defendant is a participant is not an organisation that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity.

Where the no criminal purpose defence is raised, the prosecution is required to disprove it. This means that the prosecution is required to prove that the criminal organisation had, at the relevant time, the purpose of engaging in or conspiring to engage in criminal activity.

The no criminal purpose defence is problematic where an entity has been declared to be a criminal organisation, particularly under the third limb of the definition of criminal organisation. In those circumstances, where the no criminal purpose defence is raised, the prosecution will be required to adduce complex evidence about the purpose or purposes of the criminal organisation that would not otherwise be required in the proceedings.

In the view of this Government, the prosecution should not have to prove the criminal purpose of an organisation that has already been declared by the Parliament to be a criminal organisation. Once an entity falls within the scope of the definition of criminal organisation, and participants in the entity engage in conduct that is prohibited by Part 3B, Division 2 of the CLCA, the offence provisions should be readily enforceable in relation to members of that criminal organisation.

For these reasons, this Bill deletes the no criminal purpose defence where it occurs in Division 2 of Part 3B of the CLCA. Depending on the circumstances, common law or statutory defences may be available to an accused.

The Government believes that the removal of the no criminal purpose defence will improve the practical workability of Division 2 of Part 3B of the CLCA and will ensure that it remains a useful tool in the suite of responses that this Government has implemented to combat serious and organised crime.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

3—Amendment of section 83GC—Participants in criminal organisation being knowingly present in public places

This clause amends section 83GC of the Act to remove the defence contained in subsection (2). Currently, subsection (2) provides that it is a defence to a charge of an offence against subsection (1) for the defendant to prove that the criminal organisation in which it is alleged that the defendant is a participant is not an organisation that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity.

4—Amendment of section 83GD—Participants in criminal organisation entering prescribed places and attending prescribed events

This clause amends section 83GD of the Act to remove the defence contained in subsection (3). Currently, subsection (3) provides that it is a defence to a charge of an offence against subsection (1) or (2) to prove that the criminal organisation is not an organisation that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity.

5—Amendment of section 83GE—Participants in criminal organisation recruiting persons to become participants in the organisation

This clause amends section 83GE of the Act to remove the defence contained in subsection (2). Currently, subsection (2) provides that it is a defence to a charge of an offence against subsection (1) to prove that the criminal organisation in which it is alleged that the defendant is a participant is not an organisation that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity.

Schedule 1—Transitional provision

1—Transitional provision

This clause provides a transitional provision such that an amendment of the Criminal Law Consolidation Act 1935 made by this Act will apply only in respect of an offence alleged to have occurred after the commencement of this Act.

Debate adjourned on motion of Hon. A.L. McLachlan.


At 16:52 the council adjourned until Thursday 3 August 2017 at 14:15.

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