Bail

The NSW Law Reform Commission Bail: Firearms and Criminal Associations report responds to a direction to review three aspects of the Bail Act 2013 (NSW): 

• Whether the existing list of firearms offences treated as ‘show cause’ offences under the Bail Act 2013 (NSW) should be expanded. 
• Whether further legislative guidance should be provided on the meaning of ‘criminal associations’ under the Bail Act 2013 (NSW). 
• Whether the list of offences relating to criminal associations that are treated as ‘show cause’ offences under the Bail Act 2013 (NSW) should be expanded. 

The Commission comments 

 The consensus among stakeholders, with one exception, was that the present bail framework has not caused any specific problems in respect of firearms offences or offences relating to criminal associations. Risks can be, and are, dealt with adequately under the existing framework, including the unacceptable risk test. 

Instead, concerns were expressed that the contemplated changes would likely:

• unnecessarily capture conduct that does not constitute a high degree of criminality 

• increase the rate of bail refusals, including for people who may not receive a custodial penalty if found guilty 

• lead to further growth in an already significant remand population, which would adversely affect individuals and the community 

• frustrate government initiatives to address the overrepresentation of Aboriginal people in custody 

• add further complexity to an already intricate statutory framework, and 

• increase court workloads and backlogs by adding to the complexity of bail applications.

It states 

... the show cause provisions are a serious impingement on the principle that a person should not be imprisoned except following conviction beyond reasonable doubt. They are said to be justified by the protection of the public. However, the exceptional nature of show cause offences weighs against their extension. The unacceptable risk test is more than adequate to protect the public in most, if not all, situations.

The Commission's recommendations are

Show cause and firearms offences 

Recommendation 3.1: Expanding show cause to include further firearms offences The list of show cause offences in section 16B of the Bail Act 2013 (NSW) should not be expanded to include further firearms offences. 

Recommendation 3.2: Unlawful private possession of a pistol or prohibited firearm Section 16B(1)(d)(ii) of the Bail Act 2013 (NSW) should not be amended to include the unlawful possession of a pistol or prohibited firearm in a private place as a show cause offence. 

Recommendation 3.3: Possession in breach of a firearms prohibition order Section 16B of the Bail Act 2013 (NSW) should not be amended to include the possession of a pistol or prohibited firearm in breach of a firearms prohibition order as a show cause offence. 

Show cause and criminal association offences 

Recommendation 4.1: Expanding show cause to further criminal association offences The list of show cause offences in section 16B of the Bail Act 2013 (NSW) should not be expanded to include further offences relating to criminal associations. 

Recommendation 5.1: Legislative guidance on “criminal associations” The Bail Act 2013 (NSW) should not be amended to include further legislative guidance on the meaning of “criminal associations”. 

Other issues raised in this review 

Recommendation 6.1: Adding other orders to section 18(1)(f) of the Bail Act 2013 (NSW) Firearm prohibition orders and serious crime prevention orders should not be added to the list of orders in section 18(1)(f) of the Bail Act 2013 (NSW).

In discussing the meaning of 'criminal associations' the Commission states

The Act does not define “criminal associations”. Further legislative guidance should not be provided  

We recommend against amending the Bail Act 2013 (NSW) (Bail Act) to provide further legislative guidance on the meaning of “criminal associations”. The Act does not define “criminal associations” 

As outlined in chapter 2, bail authorities must assess any bail concerns before making a bail decision. A bail concern is a concern that an accused person will, if released: · fail to appear at any proceedings for the offence · commit a serious offence · endanger the safety of victims, individuals or the community, or · interfere with witnesses or evidence. 

One of the matters bail authorities must consider in assessing bail concerns is “whether the accused person has any criminal associations” (s 18(1)(g) of the Bail Act). The Bail Act does not define the expression “criminal associations”. 

This factor was introduced to target associations with organised crime. In the first report from his review of the Bail Act, John Hatzistergos concluded: Given the direct impact that an applicant’s links to organised crime networks can have on their level of risk, there is value in making criminal associations an explicit factor ... 

Similarly, the then Attorney General explained when s 18(1)(g) was introduced: Further legislative guidance on the meaning of “criminal associations” under the Bail Act 2013 (NSW) is unnecessary and may have unintended consequences.  New factors added to section 18 include a requirement to consider whether the accused has any criminal associations. An applicant’s links to organised crime networks can have a direct impact on his or her level of risk. For example, it may give a person access to the means to flee the jurisdiction or the means to continue criminal activity. 

Published bail decisions suggest s 18(1)(g) is often considered in the context of associations with organised crime groups, primarily outlaw motorcycle gangs and other networks. Notably, the Court of Criminal Appeal found in Mariam v Director of Public Prosecutions (NSW) (Mariam) that “[t]he apparent association ... by the applicant with persons considered by police to be involved in organised criminal activity enhances” the bail concern of committing a serious offence. 

Expanding on the decision of the Court of Criminal Appeal in Mariam, the NSW Police Force (NSWPF) proposed that the following definition be included in the Bail Act: Criminal association means an apparent connection between the applicant and another person or persons who are likely to be involved in organised criminal activity. 

The phrase “criminal associations” is capable of a wider meaning. In other published cases, prosecutors have alleged the accused person to have criminal associations where they associate with people engaged in criminal activity unconnected to organised crime networks. For example, in one case associates of the accused person had been “arrested for drug supply and firearms offences” in another state. 

Further legislative guidance should not be provided 

We are not persuaded that the Bail Act should include further guidance on the meaning of “criminal associations”. 

In saying this, we recognise that a legislative definition may have certain benefits. In particular, the NSWPF argued that a definition “would help to ensure that the Act is applied predictably and efficiently, particularly in busy Local Courts”. 

It could also help ensure the law only covers genuine criminal associations.  For instance, Corrective Services NSW recognised that one potential benefit of a specific definition is that it could avoid capturing people who, by virtue of their family or community, associate with people with criminal histories or people who have been involved with the criminal justice system. 

There was also some support for giving specific statutory expression to what appears to have been Parliament’s intention in enacting s 18(1)(g), that is, to target links with organised crime. For instance, the Law Society proposed the term could be amended to read “whether the accused person has any associations with organised crime”.  This could assist to ensure s 18(1)(g) is not interpreted more widely than was originally intended. 

We acknowledge some merit to these arguments. If anything, the present concept of criminal associations may be too broad. However, there is no need for a definition, unless narrowing the scope to an association with organised crime is necessary to avoid consequences unintended by Parliament. Moreover, there is no particular reason why a criminal association other than with organised crime should not be relevant. 

However, consultations did not reveal any widespread problem with the interpretation of s 18(1)(g). Instead, the common view was that courts typically interpret the term to mean a person’s association with organised crime, as was intended by Parliament. 

Most submissions did not support further legislative guidance. Some observed that interpretation should be left to the discretion of sufficiently skilled and experienced judicial officers.  Another view was that further guidance is unnecessary, as there is no practical difficulty or tension with applying s 18(1)(g). 

The Bar Association and the NSW Council for Civil Liberties both opposed the introduction of a definition. If any definition was introduced, they insisted it should contain safeguards to specify that simply associating with someone who has a criminal history is not sufficient to establish a person has criminal associations. 

Furthermore, significant concerns were expressed that defining the term may itself have unintended consequences. For instance, care must be taken to avoid a disproportionate impact on Aboriginal people, young people or people with disability who may be required to associate with people with criminal histories due to their family, living or caring arrangements. 

Conversely, there is always the potential for a statutory definition to narrow the expression, and unduly constrain judicial discretion. The NSWPF recognised it would be “undesirable to be overly prescriptive in the definition” as “the ways in which a person may be criminally associated are many and varied”.  A definition that went beyond that provided in Mariam would at least arguably do that. 

In our view, there is insufficient reason for further legislative guidance on “criminal associations”. In Mariam, the Court of Criminal Appeal provided a reasonable and workable statement of the law. It does not need the force of statute. Courts are capable of exercising their discretion to determine whether, on the materials before them, a person’s criminal associations indicate an unacceptable risk.

Gangs

Regulatory approaches to preventing organised crime among outlaw motorcycle gangs' by Christopher Dowling and Anthony Morgan (AIC Trends and issues in crime and criminal justice 652, 2022) comments 

Australia’s response to organised crime has relied on the criminal justice system, using strong enforcement and legal regimes to dismantle criminal groups, and deter or imprison offenders (Ayling 2017, 2014). Outlaw motorcycle gangs (OMCGs) have been the most visible target of these measures, given their prominence in Australia’s organised crime landscape. Many Australian states and territories have adopted suites of laws which criminalise OMCGs and the association of their members. These laws have been introduced alongside dedicated police operations focused on disrupting the operation of OMCGs through high-intensity, low-tolerance enforcement activity. 

Regulatory approaches rooted in civil and administrative law, meanwhile, are being increasingly used against organised crime in Europe (for a review, see Spapens, Peters & Van Daele 2015). These approaches focus on reducing opportunities for organised crime by blocking groups and offenders from elements of the legitimate economy that can enable it. This typically includes restrictions on the issuing of licences, permits, contracts, subsidies or grants, and the denial of real estate and other assets. Such measures can be critical to cutting off offenders from the funding streams, physical and technical infrastructure and mechanisms for concealing illicit revenue that facilitate organised crime. 

Early examples of these approaches are evident in Italy (Calderoni & Di Stefano 2015; La Spina 2014) and Japan (Reilly 2014), which have long histories of private and public sector infiltration by mafia and yakuza crime organisations, respectively. More recently, the whole-of-government OMCG strategy introduced in the Netherlands best exemplifies the implementation of a regulatory approach to this offender population (van Ruitenburg 2020). Although it incorporates criminal justice measures as well, this strategy takes a broad view of disruption, with interventions coordinated across government targeting all of the conditions necessary for OMCGs to operate, including employment, finances and location. 

There are recent examples of regulatory measures having been introduced in Australia, although they have typically been implemented within a broader criminal justice framework (Ayling 2017). Many Australian states and territories have now established regimes of judicial orders which restrict the activities of individuals with histories of organised crime related offending, including engagement in certain industries and financial activities. Recent changes to the Transport Security Amendment (Serious Crime) Act 2021 aim to prevent exploitation of the aviation and maritime transport sectors— an enabler of organised crime—by introducing more stringent eligibility criteria for people applying for a card that would allow them to work in Australia’s airports and seaports. 

Regulatory approaches, used alongside criminal justice approaches, open up a wider variety of angles from which to target organised crime and particularly its enablers. Nevertheless, there is little local or international evidence to support the impact of these measures. Where research has been undertaken, it was often not able to completely disentangle specific regulatory interventions from other measures, making it difficult to infer the true source of any change. This is evident in a recent evaluation of the whole-of-government approach to OMCGs in the Netherlands (Klement and Blokland 2021). While results show that the introduction of this approach led to a gradual reduction in the rate of recorded organised crime offending by OMCG members, the wide range of criminal justice and regulatory measures incorporated make it challenging to identify the specific mechanisms at work.

Sumptuary Law, Consorting and OMGs in NSW, Queensland and Victoria

The Queensland Premier in an exercise of 'tougher than you' has announced 'Bikies to be banned from “wearing colours” in public', an initiative of interest to criminologists and scholars of sumptuary law.

The media release states

Outlaw Motorcycle Gangs will be banned from wearing their colours in public anywhere in Queensland under the Palaszczuk Government’s tough new package of laws to better tackle serious organised crime.

The move will extend the current prohibition on wearing colours in licenced venues into all public places across the State.

Premier Annastacia Palaszczuk said Outlaw Motorcycle Gangs have been a very visible and intimidating part of organised crime.

“The days of brazen, menacing rides through our streets and cities in daunting gang colours are over,” Ms Palaszczuk said.

“Under Campbell Newman’s laws, gang colours were still permitted on our streets. Under my laws, they won’t be."

“The gangs can expect no let-up from police and prosecutors. I want more convictions not less, something we haven’t seen under the LNP laws."

“My Government’s new laws will give the police and our courts workable, enforceable laws to convict those involved in all forms of serious crime,” the Premier said.

Attorney-General and Minister for Justice Yvette D’Ath said the extension of the ban will target outlaw motorcycle gangs, without impacting legitimate, law-abiding motorcycle riders and clubs.

“The Taskforce Report on Organised Crime Legislation recommended the Government retain the provisions in the Liquor Act that ban the wearing of prohibited items such as OMCG colours in licenced venues,” Mrs D’Ath said.

“The Government is adopting that recommendation but taking it further, because we recognise the fear and intimidation caused by colours, wherever they are worn."

“They can also intimidate victims or witnesses to crimes, who may fear the consequences if they come forward."

“That intimidation goes directly to the behaviour of OMCGs that is rightfully a concern to the Queensland public and Queensland Police."

“We want to ensure the safety of our community, and are committed to giving law enforcement agencies the tools they need to make that happen.”

It is intended the offence will carry escalating penalties including imprisonment, and police will be empowered to confiscate banned items on the spot.

The Palaszczuk Government’s commitment to tackling organised crime in all its forms means the provisions that will prevent outlaw motorcycle gang clubhouses reopening can also be used to shut down premises such as call centres being used for boiler room fraud rackets.

Police Minister Bill Byrne said the new laws will also retain additional mandatory penalties as an inducement for offenders to cooperate with police.

“Our crackdown on serious organised crime will be all-encompassing,” Mr Byrne said.

“That’s why police have been involved through the development of this new regime."

“Key stakeholders have had also had input into the Commission of Inquiry into the Criminal Organisations Act and the Taskforce on Organised Crime Legislation.”

The new package will be introduced to Parliament in the next fortnight to allow consultation on the specific provisions of the draft legislation. The Government will work toward the passage of the laws through the Parliament by the end of this year.

The Victorian Law Reform Commission's report on Regulatory Regimes Preventing the Infiltration of Organised Crime into Lawful Occupations and Industries at the beginning of this year states

On 29 October 2014, the then Attorney-General, the Hon. Robert Clark, MP, asked the Victorian Law Reform Commission to review and report on the use of regulatory regimes to help prevent organised crime and criminal organisations entering into or operating through lawful occupations and industries. In the terms of reference, and in this report, the term ‘infiltration’ means both entering into and operating through lawful occupations and industries by organised crime. 

There is a growing recognition—both in Australia and internationally—that the infiltration of lawful occupations and industries is an important strategy of organised crime groups. Alongside this, there is a growing interest in the use of regulatory regimes to deter and detect that infiltration. Under the terms of reference, the concept of infiltration involves both the entry of organised crime groups into an occupation or industry (for example, through owning or operating a business), and the operation of organised crime groups through an occupation or industry. ‘Operating through’ an occupation or industry includes the use of professional facilitators and specialist service providers. 

The terms of reference do not ask the Commission to make recommendations for law reform. Instead, the Commission is asked to establish a framework of principles for assessing the risks of organised crime infiltration of occupations and industries, and for developing suitable regulatory responses to those risks. 

The Commission’s report therefore contains guidance of a general nature that can be applied to any lawful occupation or industry that may be at risk of organised crime infiltration. Given the diversity of occupations/industries that may be vulnerable to infiltration, and the different forms that infiltration may take, it would not be possible— or advisable—to attempt to present a ‘one size fits all’ regulatory response that could be applied to all lawful occupations/industries at risk of organised crime infiltration. Any changes to the regulatory regime of an occupation or industry to address a risk of infiltration must be proportionate to that risk and the harm likely to be caused by infiltration, and take into account the other policy goals of the regulatory regime. The Commission’s consultations made clear that a regulatory response to infiltration will only be effective and proportionate if it is specific to the at-risk occupation/industry and the particular vulnerabilities and opportunities that organised crime groups may seek to exploit within it. 

The Commission recommends that the report be read in conjunction with the Victorian Guide to Regulation and used by policy makers in assessing the risks of organised crime infiltration of lawful occupations and industries, and in developing regulatory responses to those risks. 

The following key messages emerge from the Commission’s report. 

The nature of organised crime 

Organised crime comprises an increasingly broad range of activities. An effective regulatory response to organised crime infiltration requires an understanding of the breadth of activities that may benefit from (or require) the infiltration of lawful occupations and industries, and the particular forms of conduct that organised crime groups may engage in once infiltration has occurred. While infiltration may enable the conduct of ‘traditional’ organised crime activities such as the trafficking of illicit commodities and money laundering, it may equally enable conduct such as fraud (including investment, taxation or identity fraud), unlawful practices that are specific to an occupation or industry (such as illegal commercial fishing or waste management practices), or labour exploitation or trafficking.   

Regulators should have an understanding of contemporary forms of organised crime activity, and remain abreast of changes to such activity as organised crime groups seek out new markets and means of profit-making. This understanding is necessary not only for the identification of risk factors for infiltration and the choice of regulatory strategies but also for the implementation of the regulatory response. In tackling organised crime, it is becoming more common to take a multi-disciplinary approach to enforcement and consider the enforcement actions available to several government agencies. This requires an understanding of the numerous types of activity in which organised crime groups may be engaged in a particular occupation or industry, such as taxation fraud, employment law contraventions, or migration law contraventions. 

Identifying risk factors for infiltration 

Existing analyses of common risk factors for organised crime infiltration are at an early stage of development, and are relatively few. Drawing on the existing analyses and its own consultations, the Commission has identified a series of high-level risk factors that can assist policy makers in identifying a risk of infiltration of a particular occupation or industry. However, as the Commission’s consultations made clear, a more detailed, specific risk assessment of a particular occupation or industry should also be conducted to determine the precise vulnerabilities that organised crime groups may exploit and the appropriate regulatory strategies to reduce those vulnerabilities. 

Collaboration and information sharing 

An effective regulatory response to organised crime infiltration will require some degree of collaboration among regulatory, law enforcement and other government agencies. No one agency will hold all the necessary information, or be equipped with all the necessary powers and skills, to address organised crime infiltration. 

Information sharing among government agencies is key to any collaborative work. The Commission has suggested that improved information sharing requires addressing any legislative barriers to information sharing, instituting appropriate governance arrangements for the sharing of sensitive information, and creating some form of centralised information-sharing mechanism, whether this comprises a multi-agency network through which information can be requested and circulated, or a centralised agency that can source and evaluate information from multiple agencies where a regulator has concerns about a particular licence applicant or other regulatory matter. 

Collaboration between government agencies and industry is also key. Regulators will need to engage with industry in identifying risks of infiltration, developing a regulatory response, and implementing that response (including utilising industry members as a source of information about organised crime infiltration). 

Strategies to reduce the risk of infiltration: licensing and beyond 

The report sets out four main strategies for reducing the risk of organised crime infiltration of a lawful occupation or industry: • assessing the existing regulatory regime • restricting entry into an occupation or industry through a licensing scheme • regulating post-entry behaviour in an occupation or industry • addressing the use of professional facilitators. 

Restrictions on entry 

Where no regulatory regime currently operates, or the existing regime is deficient, it may be appropriate to restrict entry to the occupation or industry through a licensing scheme. However, licensing should not be a default response to a risk of organised crime infiltration. The report sets out a range of factors that should be considered in deciding whether licensing is appropriate, including whether the form of infiltration is of a type that could be addressed through licensing measures, whether the regulator would be willing and able to conduct a rigorous examination of licence applicants, whether the regulator (or possibly Victoria Police) would have the powers and resources to prevent unlicensed operation, and the potential anti-competitive effects of licensing on the occupation/industry. 

Where a licensing scheme is used, a host of factors will need to be considered in order to detect any links to organised crime when assessing a licence applicant’s probity and suitability. This includes enquiring into the professional competency of the licence applicant, the beneficial owners of corporate applicants, any history of prior unlawful behaviour (whether criminal or non-criminal) and adverse administrative decisions, and the financial capacity of the applicant to conduct the licensed business. Although criminal intelligence may be heavily relied on in some licensing decisions, it is particularly important that regulators consider a broad range of information in assessing probity and suitability, so as not to place an unreasonable burden on law enforcement agencies, and to establish the most complete picture possible of the applicant’s probity and suitability. 

Post-entry regulation 

The post-entry regulation of an occupation or industry is just as important as any restrictions on entry. 

Any licensing scheme will need to be supplemented with the ongoing regulation of an occupation or industry in order to detect organised crime groups that evaded detection during the licensing process, or which have corrupted existing occupation/industry members. 

Post-entry regulation is also a potential alternative to restrictions on entry. It may be that the particular vulnerabilities of an occupation/industry are best addressed through a targeted, post-entry measure, such as record-keeping requirements or restrictions on cash-based transactions. 

Post-entry regulation also provides an opportunity to ‘widen the regulatory gaze’ and harness the capacity of third parties—such as occupation and industry members, customers, and employees/workers—to participate in regulation. In some industries, for example, legitimate businesses may play a key role in deterring and detecting organised crime infiltration by conducting supplier or customer due diligence. 

The report outlines five forms of post-entry regulation that should be considered in order to reduce the risk of organised crime infiltration:

• ongoing monitoring of probity and suitability 

• customer and supplier due diligence measures 

• record-keeping requirements 

• restrictions on cash-based transactions 

• controls on coercive conduct. 

Professional facilitators 

The use of service providers and ‘professional facilitators’ by organised crime groups is one potential form of infiltration. Professional facilitators may include lawyers, accountants, financial advisers and real estate agents, who wittingly or unwittingly assist with money laundering or other unlawful conduct. Insofar as professional facilitators may be key enablers of such activity, there may be significant disruptive value in addressing their use by organised crime groups. 

Any regulatory strategies that seek to address the use of professionals should have regard to the continuum of facilitating conduct by professionals, which ranges from unwitting assistance through to wilful blindness and, at its highest, voluntary and deliberate facilitation of unlawful activity. With this in mind, consideration should be given to three key regulatory strategies that may help to prevent the use of professional facilitators by organised crime groups:

• professional ethics education and support measures 

• customer due diligence measures 

• accessorial liability provisions. 

The Commission notes that one key issue concerning professional facilitators is the current scope of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), which at the time of delivery of this report was under review by the Commonwealth government in relation to its proposed extension to lawyers, accountants and real estate agents. Being Commonwealth legislation, the Commission has not commented on this proposed reform, and has confined its attention to strategies that may be used under Victorian regulatory regimes. 

A comprehensive regulatory response 

By aligning this report with the Victorian Guide to Regulation, the Commission seeks to emphasise that any regulatory response to organised crime infiltration must be comprehensive; that is, it should begin by clearly identifying the particular vulnerabilities of an occupation or industry to infiltration, identify regulatory strategies that directly address those vulnerabilities, and ensure that the regulatory response is able to be effectively implemented. 

The third step—implementation—requires a consideration of:

• which agency—or agencies—are most appropriate to administer the regulatory regime 

• the need to foster information gathering from a broad range of sources 

• which investigative powers are required • the necessity of a robust enforcement response. 

In this respect, it is especially important that policy makers first consider the utility of any existing regulatory regime before developing new regulatory strategies. An existing regime may be sufficient ‘on paper’, but its effectiveness may be hampered by inadequate regulatory skill sets, insufficient collaboration and information sharing among relevant government agencies, or a limited and risk-averse enforcement response. Any such issues should be identified and redressed before new regulatory measures are considered.

The NSW Ombudsman report on a three year review of the state's consorting regime comments

The Crimes Amendment (Consorting and Organised Crime) Bill 2012 (the Bill) was introduced in February 2012 against a background of increased public concern about drive-by shootings and their suspected connection to criminal gangs. The Bill contained a suite of amendments, including a new consorting law, that were aimed at tackling organised crime and criminal gangs. 

Consorting is not a new offence. It has existed in New South Wales (NSW) since the 1920’s when it was enacted in response to concern about the ‘razor gangs’ in East Sydney. Over time, it fell into disuse and was the subject of criticism. 

In the second reading speech introducing the Bill to Parliament, the Hon. David Clarke (the Parliamentary Secretary speaking on behalf of the Minister for Police) said the Bill ‘modernises the offence of consorting, as well as extending and clarifying its application’. 

The second reading speech acknowledged that the existing consorting offence had ‘been criticised for its potential application to everyday, innocent relationships which should not be the subject of prosecution’. With specific reference to the intention of the consorting law, the Parliamentary Secretary stated that ‘the goal of the offence is not to criminalise individual relationships, but to deter people from associating with a criminal milieu’.

The new consorting law was framed widely. It retained the broad definition of ‘convicted offender’ contained in the preceding version of the offence. The meaning of ‘consorting’ had been previously considered by the High Court, which established there is no need for an occasion of ‘consorting’ to have any unlawful purpose or be linked to ongoing or recent criminal activity. The result, acknowledged in a more recent decision, is that the ‘primary practical constraint upon its application is the discretion afforded to police officers’. The extent of the police discretion in determining the operation of the new consorting law was recognised by Parliament. The second reading speech noted that the consorting law requires police to ‘make a judgment about whether observed behaviour reaches the level sought to be addressed by the bill, that is, behaviour which forms or reinforces criminal ties.’ This brings with it a risk that the law will not be properly applied, as acknowledged by other Government speakers in the Parliamentary debates

When enacting the new consorting law, Parliament required the NSW Ombudsman to ‘prepare a report on the operation’ of the new law to be provided to the Attorney General and to the Commissioner of Police. The importance of this review was noted in the second reading speech: The old [consorting] provision has fallen into disuse and has been criticised in the past. This Report will provide an opportunity... to review the use of the new provision and to consider any further amendments or repeal of the provisions as necessary.

This is the Ombudsman’s report on the operation of the new consorting law as required. This report covers the three year period from the date the law commenced on 9 April 2012 to 8 April 2015. We provide this report to the Attorney General and Commissioner of Police, in accordance with our obligations under Part 29, schedule 11 of the Crimes Act 1900.

The new consorting law

The consorting law is located in Part 3A, Division 7 of the Crimes Act. Section 93X provides that it is an offence to habitually consort with at least two ‘convicted offenders’ on at least two occasions, after receiving an official consorting warning from police in relation to each offender. Any person, except children under the age of criminal responsibility, can be warned or charged with habitually consorting.

The new consorting law includes a number of significant changes: • consorting is extended from face-to-face associations to include consorting by electronic means such as communicating by phone, text or social media • the maximum penalty is increased to three years imprisonment and/or a $16,500 fine, from a maximum of six months and/or a fine of $400 • the offence is changed from a summary offence to an indictable offence, with the result that the statutory time limit applying to summary offences is removed • consorting with at least two different ‘convicted offenders’ is required • official police warnings are required to be given to a person in relation to each ‘convicted offender’guidance regarding the meaning of ‘habitual’ is provided so that ‘habitual consorting’ involves a minimum of two associations with each offender, and • six possible defences to a charge of consorting are included.

In chapter 4 we outline the different elements of the new consorting law. Key terms such as ‘habitually’ and more precise meanings of terms contained in the defences, such as ‘family members’, were not tested in court proceedings during the review period.

Public concerns about the operation of the consorting law

Consorting is a controversial offence as it involves the criminalisation of social interactions between people, who may be otherwise unconnected from criminal activity. The object of the offence is to allow police to intervene and attempt to prevent future offending. We received 34 submissions from organisations and individuals in response to our issues paper. Nearly all of these expressed serious concern about the consorting law, with the majority of submissions also calling for it to be repealed.

The central concern is that the consorting law curtails the freedom of association and communication between people to whom the law is applied in circumstances where there is no requirement for police to suspect any link between the consorting and planning or undertaking criminal activity or ‘building criminal networks’.

The validity of the new consorting law was subject to a constitutional challenge that was finalised in October 2014. The High Court, by majority, held the law to be valid. The grounds of challenge submitted that the impact of the consorting law contravened the implied constitutional freedom of political communication and freedom of association of people. The High Court noted that it was not its role in the proceedings to assess the merits or fairness of the consorting law. In a joint judgment, three of the High Court Justices noted that ‘[t]he desirability of consorting provisions such as this is not relevant to the task before the Court’. The High Court’s assessment of the new consorting law was limited to determining whether it was valid in light of the implied rights protected by the Constitution. In the submissions we received, human rights concerns relating to the consorting law were generally discussed in the context of Australia’s human rights obligations under the International Covenant on Civil and Political Rights (ICCPR). While there may be no constitutional foundation for a right to freedom of association in Australian law (as decided by the High Court), the infringement of this freedom remained a concern to many people and organisations that provided submissions to us during the review period.

Additional concerns expressed to us included the ability of the law to further marginalise disadvantaged and vulnerable people, to breach convicted offenders’ privacy, and to impede efforts by community organisations and government agencies to rehabilitate and reintegrate people into the community following imprisonment or detention.

In chapter 5 of this report we outline the primary concerns expressed to us about the law. The impact of the High Court proceedings on the implementation of the consorting law by police is described in section 6.7.1 of chapter 6, and section 7.2.1 of chapter 7.

Use of the consorting law

This report examines the use of the new consorting law by the NSW Police Force during its first three years of operation. We have not been able to quantify the extent to which the consorting law has been used by police officers to target people suspected of involvement in serious and organised crime or criminal gangs. However, we have quantified use of the consorting law by specialist squads in the Organised Crime Directorate and Serious Crime Directorates of the NSW Police Force. These specialist squads have operational remits that restrict their focus to serious crime, organised crime and criminal gangs. This provides insight into the extent of the use of the consorting law in relation to criminal activity within these categories.

To prepare this report, we analysed police consorting data, consulted extensively and published an issues paper seeking views regarding emerging issues in relation to the operation of the consorting law. Our methodology is outlined in chapter 2 and a statistical overview of the operation of the consorting law is provided in chapter 6. A discussion of the different types of use of the consorting law is located in chapters 7 and 8. At the outset, the NSW Police Force made a policy decision not to limit use of the new consorting law to organised crime and/or criminal gangs. This broad implementation resulted in the law being used across NSW to target a variety of local policing issues.

We found more than 3,300 people were subject to use of the consorting law as a result of being issued with a consorting warning or having others warned about consorting with them. The law was used on approximately 1,800 different occasions. More than 9,100 consorting warnings were issued, with 42 people charged with 46 offences of habitually consorting.

Officers attached to specialist squads tasked with policing serious and organised crime and criminal gangs were responsible for half of all the consorting warnings issued during the review period. The other half of the warnings were issued by general duties police attached to Local Area Commands (LACs).

Despite the even split in the number of warnings issued by specialist squads compared to general duties police, three quarters of all people subject to use of the consorting law were affected only as a result of an interaction with general duties police. This can be explained by the different way the Gangs Squad used the consorting law, for example, they targeted individuals on more than one occasion. The different characteristics of use by squads and general duties police are outlined in chapters 6, 7 and 8 of this report.

Use by specialist squads

The biggest single user of the consorting law was the NSW Police Force Gangs Squad. It was responsible for half of all consorting warnings issued and 34 of the 46 charges brought. The Gangs Squad leads the NSW Police Force response to serious and organised gang-related crime, particularly that involving Outlaw Motorcycle Gangs (OMCGs).

Use of the consorting law by the Gangs Squad involved a targeted and intelligence-driven approach. This is discussed in section 7.5 of chapter 7. During consultations with us, officers from the Gangs Squad indicated support for the consorting law and belief in its effectiveness as a tool for policing high-risk OMCGs. Gangs Squad officers used the consorting law to prevent criminal offending and to disrupt the ability of gang members to associate. It was used in addition to traditional criminal investigative strategies. As outlined in section 7.5, the consorting law’s effectiveness in this context lies in the cultural characteristics of OMCGs, and in the multi-layered approach adopted by the Gangs Squad to policing those gangs whose members were considered to be involved in ongoing, serious criminal activities.

The Gangs Squad was of the view that the operational flexibility that arises from the breadth of the consorting law and its restricted defences is crucial to the effectiveness of the consorting law in relation to high-risk OMCGs.

In contrast, other specialist squads also tasked with policing serious and organised crime and criminal gangs, have either significantly reduced their use of the consorting law over time or did not initiate use. The reasons for this are reported in sections 7.6 and 7.7 of chapter 7.

Use by general duties police

Nearly all LACs across NSW used the consorting law on at least one occasion, though sustained use was rare. The majority of use by general duties police attached to LACs was concentrated in Sydney metropolitan areas, with pockets of significant use in western NSW.

We found that different LACs employed the consorting law to attempt to address a range of local policing issues. While there was evidence of use by general duties police to target people suspected of very serious criminal activity, the law was also used to target people in public seating areas and public walkways, and at public transport hubs. Generally, the impetus for this use came as a result of nuisance offending in these areas or complaints from local businesses about ‘undesirable’ people disrupting retail or hospitality enterprises. In the months prior to the end of the review period, the Police Transport Command began using the consorting law on public transport such as trains and at train stations.

Some LACs advised they thought the consorting law was an effective disruption and crime prevention tool, while other LACs discontinued their use of the consorting law because they found few tangible benefits resulted.

We provide analysis and discussion of use of the new consorting law by general duties police officers in chapters 6, 7 and 8.

Who was targeted by police?

We analysed the demographic and criminal conviction histories of people subject to use of the consorting law during the review period. A statistical overview of this analysis is provided in section 6.8 of chapter 6.

With little use of electronic consorting, the operation of the consorting law relied on police observations of people spending time together in places open to the public. As a result, there was an increased potential for people who spent a lot of time in areas open to the public to be subject to use of the consorting law to a greater degree than others. In addition to being more visible to police, some groups have a proportionally higher number of people with previous convictions for indictable offences when compared to the general population. This brought these groups, and the people they spent time with, more readily within the ambit of the consorting law.

In chapter 8 we outline use of the consorting law in relation to disadvantaged and vulnerable people. In particular, we report use in relation to Aboriginal and Torres Strait Islander peoples, people experiencing homelessness, and children and young people.

Demographic analysis of the consorting data revealed high use of the consorting law in relation to Aboriginal people, with significant variation between police regions. These variations are represented in figures 6 and 9 in chapters 6 and 8 respectively.

The proportion of Aboriginal people and the incidence of children and young people were far higher among those targeted by general duties police when compared with those targeted by specialist squads. Overall, 44% of people targeted by general duties officers were Aboriginal, compared to 13% of those targeted by specialist squads. Only a handful of people aged less than 18 years were subject to use of the consorting law by the specialist squads.

The proportion of women, children and young people subject to use of the consorting law who were Aboriginal was especially high, with half of adult women, and 60% of children and young people, identified as Aboriginal. During police consultations we found that the list of six defences available to a person charged with consorting had a significant influence on police officers’ exercise of their discretion to issue consorting warnings. If an officer considered a person may be able to rely on a recognised defence contained in section 93Y of the Crimes Act, the officer was unlikely to issue a consorting warning in the circumstances. Consorting with ‘family members’ is one of the six defences available, though ‘family’ is undefined. We found an inconsistent application of ‘family’ in the context of policing of Aboriginal people, with some officers failing to recognise concepts of kinship consistent with Aboriginal cultural practice when considering if the people consorting were ‘family members’.

We also identified clusters of use by general duties police officers in relation to people experiencing homelessness. This is reported in section 8.2.4 of chapter 8. In one Sydney metropolitan area we were advised by a community service provider that people were no longer attending their support services for fear of being further targeted for consorting.

An issue raised with us throughout the review is the lack of any defence to a charge of consorting for a person seeking to access supports and services such as those required by people experiencing homelessness. This is discussed in section 8.2.5 of chapter 8. Particular concern arose about use of the consorting law in relation to children and young people. Significantly, almost 80% of children and young people who had their associates warned about consorting with them were mistakenly identified as ‘convicted offenders’ by police. This resulted in nearly 200 invalid warnings and represents a significant waste of policing resources as well as an unknown impact on those directly affected. The exceptionally high error rate with respect to children and young people, including the remedial actions taken by the NSW Police Force in response to our findings, is reported in section 8.3.4 of chapter 8. 

In order to gain insight into the children and young people represented in the consorting data, we analysed police and Family and Community Services records in relation to a random sample of half of the cohort. This revealed multiple indicators of disadvantage for nearly every child and young person. In a number of recent reports and submissions prepared by this office we have argued the need for human services agencies to take an ‘intelligence-driven’ approach to the early identification of vulnerable children and young people who are ‘at-risk’, for the purpose of undertaking integrated case management aimed at supporting them and their families.13 Experts in the area of juvenile offending by at-risk children and young people advised that the consorting law is likely to be ineffective in relation to this cohort.

While we have quantified use of the consorting law in relation to Aboriginal people and children and young people, and have identified pockets of use with respect to people experiencing homelessness, our analysis does not establish whether any measurable crime prevention benefit has been achieved by this use, or whether the people targeted have merely become caught up in the consorting law net through their otherwise innocent use of public space.

The use of the consorting law in relation to certain disadvantaged and vulnerable groups demonstrates the breadth of circumstances to which the consorting law may be applied, and illustrates some of the negative consequences that may arise from its operation. In particular, our discussion in chapter 8 highlights the importance of a carefully defined framework within which the consorting law should be appropriately applied. Our proposed framework is discussed in chapter 11.

Our recommendations

This report makes 20 recommendations designed to increase the fairness of the operation of the consorting law for those directly affected and to reduce the risk of negative consequences that may arise from lawful but inappropriate use. These recommendations are contained in chapters 8 to 11. A summary of recommendations follows. Some of the adjustments to the consorting law we recommend are the responsibility of the Attorney General and Parliament, and others are within the responsibility of the NSW Police Force.

Our recommendations seek to balance the operational advantage of the law’s flexibility that is important to the Gangs Squad’s use, against the risk of negative or unintended impacts associated with its broad implementation.

There are clear advantages to reducing inappropriate use of the consorting law in relation to people not involved in any criminal activity or who are involved in only minor offending, including people belonging to disadvantaged and vulnerable groups. The focus should instead be on use of the law in prevention of serious crime.

We recommend that this be achieved by amending NSW Police Force policy so that the operation of the consorting law is: • focused on serious offending • closely linked to crime prevention, and • prohibited from being used to address minor or nuisance offending.

We also recommend the Attorney General introduce, for the consideration of Parliament, an objects or purpose clause to the consorting law to clarify that the intent of the consorting law is for the prevention of serious crime.

In chapter 8 we recommend the removal of children and young people from the application of the consorting law. The reasons for this are both practical and based on concerns regarding a lack of effectiveness of the consorting law in relation to children and young people, and its incompatibility with other relevant policy and legislation.

In chapter 10 we discuss issues relating to the defences in section 93Y of the Crimes Act available to a person charged with consorting. We recommend that additional defences be inserted into section 93Y and that broad definitions of ‘family members’ and ‘health service’ are adopted. Specifically, we recommend section 93Y include a defence for people complying with the directions of Corrective Services NSW or the State Parole Authority, for people accessing emergency or transitional accommodation, and for people accessing welfare and support services. Also in this chapter, we recommend ‘family members’ be defined to ensure recognition of Aboriginal kinship relations, and ‘health service’ is defined to include beneficial services such as counselling services, rehabilitation services, and accessing social workers.

The recommendations in relation to the section 93Y defences are expected to influence the exercise of discretion by police officers and to provide access to appropriate legal defences for disadvantaged and vulnerable people.

Other recommendations aimed at increasing the fairness of the operation of the consorting law are discussed in chapter 9. These relate to the provision of accurate information to people subject to the use of the consorting law, minimising the required breach of privacy of ‘convicted offenders’ when warnings are issued about them, removing the ambiguity from the suggested statutory format of consorting warnings, and creating a policy regarding the time frame following an incident of consorting within which a retrospective warning may be issued. We also recommend the introduction of clear time limits governing the validity of warnings.

Over the course of the review we have identified errors made by police in relation to the ‘convicted offender’ status of people identified in a consorting warning, and identified significant issues in relation to the accuracy of police record keeping. This is reported in chapter 9 in sections 9.2 and 9.3. The NSW Police Force has taken numerous steps to address these errors; however, there remains a need for further training of officers and a specific quality assurance process for the ongoing use of the consorting law.

Finally, criminological research and law enforcement experience indicates that organised crime groups are adaptable and are likely to respond to successful law enforcement strategies by altering their methods. It follows that members and associates of high-risk OMCGs, for example, may change the way they associate or communicate with each other in response to the Gangs Squad’s use of the consorting law. In acknowledging this adaptability, as well as the potential risks associated with inappropriate but lawful use identified in this report and the lack of quantitative evidence to enable the evaluation of crime prevention outcomes linked to use of the consorting law, we recommend a further independent review of the operation of the consorting law be conducted in the future. This should occur when normal use of the law has been established and implementation of any of the recommendations made in this report has occurred.

Terror

‘The New Terrorists: The Normalisation and Spread of Anti-Terror Laws in Australia’ by Rebecca Ananian-Welsh and George Williams in (2014) 38(2) Melbourne University Law Review comments

Since September 11, Australia’s federal Parliament has enacted a range of exceptional measures aimed at preventing terrorism. These measures include control orders, which were not designed or intended for use outside of the terrorism context. What has followed, however, has been the migration of this measure to new contexts in the states and territories, especially in regard to what some have termed the ‘war on bikies’. This has occurred to the point that this measure, once considered extreme, has become accepted as a normal aspect of the criminal justice system, and has in turn given rise to even more stringent legal measures. This article explores the dynamic by which once exceptional measures become normalised and then extended to new extremes. It explores these issues in the context of the role that constitutional values have played in this process. 

The authors argue

The ‘war on terror’ that arose after the September 11 attacks in the United States triggered an expansion of international1 and domestic legal frameworks directed at the prevention of terrorism. Today, that conflict appears to be waning, but in many respects the expanded frameworks remain intact. This is enabling processes of ‘normalisation’ by which such measures come to be treated as unexceptional, rather than as extreme measures that ought to be strictly limited in their application. In this form, they are more readily adapted to other areas of the legal system. Outside of the anti-terror context, the now-normalised measures can give rise to even more extreme laws that further challenge fundamental values. In this sense the legal responses to the war on terror can continue indefinitely outside of the anti-terror context and have a permanent impact on constitutional values.

We explore this dynamic by focusing on an Australian case study, namely the migration of control orders from the anti-terror context to the body of legislation that has emerged in what might be called a ‘war on bikies’. Control orders are civil orders that empower courts to impose a wide range of restrictions and obligations on an individual, such as curfews, limits on communication, and the like, for the purpose of preventing future criminal acts. A person may be the subject of a control order, and therefore subject to a deprivation of liberty, without any finding that they have transgressed the law. In this way, control orders operate independently of any concept of guilt or innocence.

We begin in Part II by introducing Australia’s response to the global threat of terrorism and the rhetoric of urgency, exceptionalism and war that attended the enactment of a host of anti-terror laws following the 9/11 attacks, including control orders. In Part III, we document the proliferation of control order-like schemes across Australia, tracing their migration from the antiterror context to the fight against serious and organised crime. This process of migration and subsequent normalisation has not gone unnoticed. Writing in 2010, Gabrielle Appleby and John Williams observed the ‘creep’ of anti-terror laws to the law and order context, and one of us writing with Nicola McGarrity said: ‘counter-terrorism laws have become a permanent fixture of the legal landscape. … Over time, what were once seen as extraordinary laws have become accepted as “normal”’.

Not only has the control order device itself migrated across contexts, but it has provided a vehicle for the more subtle migration of certain characteristic features of national security laws. Hence, the expanded use of secret evidence, crimes of association and preventive constraints on liberty have also gone through a similar process of normalisation.

In Part IV, we explore more recent developments that signal the next phase of the migration and normalisation process. In the ongoing political race to be ‘tough on crime’, the adaption of once-extreme measures has given rise to the extension of these measures into new, even more extreme territory. In Part V, we reflect on this process of migration, normalisation and extension and examine the role played by constitutional values in both checking and facilitating such trends.

Undercover

In Hopley v The State of Western Australia [2014] WASCA 30 McLure P has commented that

 It is important that police officers and others working within the criminal justice system are not perceived as receiving preferential treatment in the application of the principle of open justice or exempt from the rationales that underpin it. 

WA Police officers Gareth Hopley and Leigh Jezewski had applied for an extension of suppression orders pending the hearing of appeals from the 12 November 2013 decision of Eaton DCJ refusing to extend suppression orders made in criminal proceedings against Hopley. Jezewski was a witness for the prosecution in those proceedings, which concerned a charge of  dangerous driving causing death. Hopley was driving a police car in the course of his duties; Jezewski  was a passenger. Both  were members of the police 'gang crime squad' at the time.

In May 2012 Hopley  appeared in the Magistrates Court, entering a plea of not guilty and gaining a suppression order to the effect that there be no disclosure or publication of his name or of other matters likely to lead members of the public to identify him until further order.In  April 2013 the Chief Judge directed that the order made by Magistrate Mignacca-Randazzo remain in force unless set aside by the District Court.Six months later Schoombee DCJ, on Jezewski's application (unsupported by affidavit) made a suppression order in the witness' favour.  West Australian Newspapers  and Channel Seven Perth  indicated prior to Hopley's trial beginning 4 November 2013 that they wished to be heard in relation to the suppression orders. Eaton DCJ, the  trial judge, varied both suppression orders to extend until 13 November 2013.

Importantly, Hopley's trial proceeded in open court.

 On the morning of 5 November 2013 the first appellant filed an application under s 171(4) of the Criminal Procedure Act 2004 (WA) (the CPA) supported by an affidavit sworn by him on 4 November 2013, for orders that: 1. Except where otherwise ordered all persons not associated with the matter be excluded from the court during the hearing of this application; 2. The name and any image of the accused be prohibited from publication outside of court; and 3. Any matter likely to lead to the accused's identification be prohibited from publication outside the court.

Also on the morning of 5 November 2013, counsel for the State handed up an application by the second appellant seeking orders in the same terms as the first appellant. However, there was no affidavit in support of that application. The trial judge adjourned both applications until 9.15 am on 6 November 2013.

On the morning of 6 November 2013 counsel for the Commissioner of Police (Mr J Bennett) handed up an application by the Commissioner seeking broader suppression orders than that sought by the first appellant. That application was supported by an affidavit sworn by the second appellant on 6 November 2013. Both applications were heard by the trial judge on that date. He reserved his decision.

After the hearing on 6 November 2013, the second appellant filed an application for suppression in substitution for the application made by the Commissioner of Police and sought narrower relief. The second appellant sought an order prohibiting the publication of any part of the evidence at trial relating to the identity and images of the second appellant and any information which would reveal his identity, rank, origin and present location within the West Australian police force and the grounds on which the court made the orders.

Eaton DCJ handed down his decisions on 12 November 2013. He was not satisfied that it was in the interests of justice to grant either application, both of which were dismissed. He proposed to order that the existing suppression orders be cancelled forthwith. Hopley and Jezewski foreshadowed an  appeal to the WA Supreme Court  and indicated that they would seek an interlocutory extension of the suppression orders pending the determination of the appeal.

McLure P notes that

the trial judge inferred that the work of the appellants on a day-to-day basis as members of the gang crime squad brought them regularly into face-to-face contact with members of motorcycle gangs. He said it was clear that the appellants knew gang members in the sense that they readily recognised those known to them and it was equally clear that they would, as officers of the gang crime squad, have been known by gang members and readily recognised by them as being police officers and members of the gang crime squad at the relevant time.

Based on the second appellant's affidavit the trial judge said it was clear that the second appellant had been recognised as a member of the gang crime squad even when socialising with other squad members. He and other squad members had left licensed premises because they were being heckled by gang members. The trial judge inferred that the gang crime squad was not a covert squad and that the relationship between the gang crime squad and gang members was a tense one. The trial judge observed that it would not be unusual for police officers to be threatened by people in the course of their duty and there was no evidence that the second appellant or police authorities had taken any steps to minimise any perceived risk to him arising from his involvement in the criminal proceedings, he having been aware for the previous 18 months that it was likely he would be required to give evidence at trial.

Not much secrecy, in other words.

McLure went on to note that

The first appellant's affidavit sworn on 4 November 2013 in support of his application was, according to the trial judge, in almost identical terms to his affidavit in support of his application for a suppression order in the Magistrates Court in May 2012. The trial judge was very critical of its scope. It offered very little about the first appellant's work circumstances after he was charged with dangerous driving causing death and contained no information as to the organisation or constitution of the gang crime squad. The court was not provided with affidavit evidence as to how and why the first appellant's duties were reallocated after he was charged with the offence.  ...  The trial judge noted from the first appellant's affidavit that his involvement in the incident giving rise to the criminal charge was known to motorcycle gang members since early May 2012. The trial judge continued:

Being in close proximity to gang members is part of the [gang crime squad's] modus operandi. Tension between the squad and the gangs is likely to be inevitable. It cannot be the case that mere membership of the squad would lead to the making of a suppression order in every case involved in the evidence of a squad member. Equally, it cannot be the case that mere membership of the [TRG] would lead to the making of a suppression order in every case involving the evidence of a group member.

There was also evidence that from time to time, members of the gang crime squad were removed from the squad for their safety by those in the force responsible for the deployment of police officers. No such action had been taken in relation to the appellants.

The trial judge concluded:

I am far from satisfied that the publication of [the second appellant's] name will endanger State or national security or will compromise any operation currently being undertaken by the [TRG]. I am far from satisfied as to the quality of the evidence offered in support of both applications by reason of the various matters already mentioned by me. I am not satisfied that it is in the interests of justice to grant either application.

 In referring to West Australian Newspapers Ltd v The State of Western Australia [2010] WASCA 10 McLure P quoted the statement by Owen JA that

 The principle of open justice is a significant element within the proper functioning of the justice system. It promotes veracity of testimony by encouraging attention among those involved in a case to the seriousness of the judicial process. Publicity may cause (or encourage) others with relevant information to come forward. It increases the community's appreciation of the methods of government and confidence in judicial remedies. It also ensures that the fairness, integrity and efficiency of the courts, and its administrators, are subject to public scrutiny

On that basis it is only in exceptional circumstances that courts depart from the principle of open justice by prohibiting  publication of the name or identity of a witness in criminal and other proceedings. "Mere embarrassment, distress, loss of privacy or shame if the identity of the witness were revealed is not sufficient".

Procedure matters. McLure P states that

As in WAN v WA, the second appellant was named and gave evidence in open court. The first appellant was named and present in open court. In the circumstances of this case, those factors told against the appellants' claim that suppression orders were necessary to protect the appellants against the risk of physical harm from motorcycle gang members. Any gang member with malign intent would have had little difficulty in obtaining the identifying details of both appellants.

However, there is a more fundamental objection. The evidence before the trial judge and this court fell well short of establishing that failure to make a suppression order would result in any realistic risk of physical harm to the appellants or their families over and above any risk flowing solely from their position as a member of the gang crime squad. The criminal proceedings did not involve any claim against or involving any gang member. In short, I agree with the trial judge's evaluation of the affidavit evidence.

As to the second appellant's recent move to the TRG, the covert work is identified as including the protection of undercover officers involved in drug transactions, arresting the 'target' once a drug transaction is complete, and assisting in witness protection. The work is covert in the sense that officers do not wear or use equipment that identifies them as a police officer. In essence, the claim is that mere membership of the TRG justifies the making of a suppression order. The second appellant swore that if his identity was made public 'then this may compromise my involvement in any current undercover operation as I am more likely to be identified as a police officer'. Having regard to his very short time in the TRG, I am not persuaded that his assessment of what may or may not happen is reliable. Further, the second appellant had been a uniformed police officer with face-to-face contact with motorcycle gang members which did not seem to be an impediment to his covert operations. In any event, any exposure resulting from the criminal proceedings would have a time limited effect. The second appellant's circumstances do not justify a departure from the principle of open justice. 

Ink

Amid controversy over claims of regulatory overreach and claims that Queensland Police are requiring recreational motorcyclists (as distinct from members of outlawed motorcycle gangs) to remove tshirts or leathers in order to facilitate photography of tattoos it is worth looking at the state legislation.

Section 40 of the Police Powers & Responsibilities Act 2000 (Qld), noted in the past, provides that -

Person may be required to state name and address 

40(1) A police officer may require a person to state the person's correct name and address in prescribed circumstances. 

40(2) Also, the police officer may require the person to give evidence of the correctness of the stated name and address if, in the circumstances, it would be reasonable to expect the person to be in possession of evidence of the correctness of the stated name or address or to otherwise be able to give the evidence. 

40(2A) If— (a) a police officer reasonably suspects the person is a person mentioned in section 41(ba)(i) or is a person mentioned in section 41(ba)(ii); and (b) the person can not provide evidence of the correctness of the stated name or address when the requirement is made; the person may be detained for a reasonable time to confirm the correctness of the stated name and address. 

40(2B) If the police officer reasonably suspects it is necessary to do so to confirm the correctness of the stated name given by a person mentioned in subsection (2A), the police officer may take or photograph all or any of the person's identifying particulars. 

40(2C) If the person is not proceeded against for an identifying particulars offence within 12 months, the identifying particulars must be destroyed within a reasonable time in the presence of a justice.

'Identifying Particulars' are defined as "any of the following" -

(a) palm prints; 

(b) fingerprints; 

(c) handwriting; 

(d) voiceprints; 

(e) footprints; 

(f) a photograph of the person's identifying features; Examples for paragraph (f)— 1 photographs of scars or tattoos; 2 photographs of the person 

(g) a measurement of any part of the person's body, other than the person's genital or anal area, buttocks or, for a female, breasts.

Safety Theatre

The national Attorney-General and Minister for Justice have

welcomed the decision by the Council of Australian Governments (COAG) to establish a Law, Crime and Community Safety Council to sharpen the nation’s focus on fighting crime. 

The LCCSC

brings together law, police and emergency management Ministers and replaces the previous standing councils on law and justice, and police and emergency management. 

The Minister for Justice states that

the involvement of all police commissioners and CEO of the Australian Crime Commission in the new council would ensure that Ministers now had access to the best operational advice, and prepare policy accordingly. “The establishment of this new council will bring together law makers and law enforcers to ensure we build safe and secure Australian communities, and the fact that the practitioners can now sit down at the same table with policy makers will bring greater focus and clarity to this work. ...

COAG has already tasked the new council with reviewing emergency services personnel across state borders and examining ways to prevent children from being exposed to harmful simulated gambling material.

The new LCCSC will consider matters including

• Border security arrangements within Australia; 
• A national approach to organised crime gangs; 
• Co-ordination of community crime prevention; 
• New ways to ensure cyber safety, especially for children; 
• Best practice approaches to the harmonisation of laws about working with children; and 
• Building the preparedness of Australian communities to natural disasters.

ASIO and ACC reports

The latest ASIO annual report [PDF] indicates that

In 2012–13 ASIO completed 130,045 counter-terrorism security assessments. No adverse or qualified counter-terrorism security assessments were issued. 

The following statistics are provided for vetting -

Top Secret Positive Vetting 1,789

Negative Vetting Level 2 6,625

Negative Vetting Level 1 19,168

Other 4 

During the reporting period, ASIO issued adverse security assessments in respect of 18 passports, presumably reflected in refusal under s 14 of the Australian Passports Act 2005 (Cth) to issue a passport. (To the surprise of some students, Australian citizens don't have an unfettered right to leave their country with an Australian passport).

ASIO issued one adverse security assessment in relation to a citizenship application.

Overall visa security assessments were up -

Temporary visas 18,748 (up on 12,623 in 2011-12)

Permanent visas 3,681 (from 5,708 )

Onshore protection (Air) 257 (from 319)

Offshore refugee / humanitarian 3,369 (from 687 )

Unauthorised maritime arrivals 3394 (4,760)

ASIO reports completing 130,045 counter-terrorism security assessments. No adverse or qualified counter-terrorism security assessments were issued.

The report offers the following "snapshots" of litigation -

M47/2012 v. Director-General of Security and Others [2012] HCA 46

M47, an unauthorised maritime arrival on the Oceanic Viking vessel, asked the High Court to quash his adverse security assessment on the basis that ASIO had denied him procedural fairness in not interviewing him.

M47 also sought an order that a visa be granted and a declaration that his immigration detention was unlawful. M47 instituted proceedings in the High Court against five defendants, including the Director-General of Security.

On 5 October 2012 the High Court delivered its judgement, finding ASIO had provided procedural fairness in the circumstances of the case. On 29 November 2012 the court remitted M47’s visa application to the Refugee Review Tribunal for further consideration.

S138/2012 v. Director-General of Security and Others

In 2009 ASIO issued an adverse security assessment in respect of S138, an unauthorised maritime arrival in immigration detention. S138 asked the High Court to quash the assessment, compel a visa grant and declare his detention unlawful. In 2012 the court handed down its related M47 decision, which was limited to applicants who had made valid protection visa applications under Migration Regulation 866.225(a). S138 did not fall into this category because he was not eligible to make a valid visa application and had requested the Minister for Immigration and Citizenship exercise his discretion to enable him to do so. This request was declined.

On 7 June 2013, following an advisory opinion by the Independent Reviewer of Adverse Security Assessments, the Director-General issued a non-prejudicial security assessment for S138. DIAC subsequently granted a bridging visa pending consideration of S138’s refugee claim. On 13 June 2013, on the basis of the parties’ consent, the court dismissed the application.

The Queen v. Khazaal [2012] HCA 26

Mr Khazaal was found guilty in 2008 of making a document in connection with a terrorist act and sentenced to 12 years imprisonment. The jury was unable to reach a verdict on the additional charge of attempting to incite others to commit a terrorist act. In 2011 the New South Wales Court of Criminal Appeal (NSW CCA) overturned the conviction and ordered a retrial, to be heard with the incitement retrial. The Crown was granted special leave to appeal to the High Court, on the basis of provisions in the Criminal Code Act 1995 relating to evidence.

On 10 August 2012 the High Court unanimously allowed the appeal of the Commonwealth Director of Public Prosecutions, overturning the NSW CCA decision and reinstating the conviction. The court remitted the matter to the NSW CCA to consider Mr Khazaal’s sentence appeal. On 13 June 2013 the NSW CCA dismissed Mr Khazaal’s appeal against the severity of his sentence. Mr Khazaal may be eligible for release on parole in 2017.

RJCG v. Director-General of Security [2013] FCA 269

ASIO assessed the applicant, an Australian citizen employed by the Commonwealth, to have engaged in acts of foreign interference by providing information to foreign intelligence officers. ASIO issued an adverse security assessment recommending revocation of the applicant’s security clearance.

On 22 August 2012 the AAT affirmed ASIO’s decision. The applicant appealed this decision to the Federal Court, which will hear the matter in November 2013.

TCXG and Director-General of Security and Anor [2013] AATA 284

On 21 June 2012 ASIO issued an adverse security assessment in respect of TCXG, and the Minister for Foreign Affairs consequently refused TCXG’s application for an Australian passport. ASIO assessed that the applicant adhered to an extremist interpretation of Islam which condoned the use of politically motivated violence. ASIO assessed that TCXG’s extremist actions involved encouraging, fostering and supporting extremist activities, including the use of politically motivated violence. On 10 May 2013 the AAT affirmed ASIO’s 2012 adverse security assessment and DFAT’s passport refusal.

NBMW v. Minister for Immigration and Citizenship [2013] FCA 651

The applicant, an unauthorised maritime arrival, challenged the ASIO adverse security assessment. On 12 September 2012 the AAT affirmed the security assessment. The applicant appealed this decision to the Federal Court but then discontinued that appeal and sought instead to join the Director-General to the separate Federal Court action against the Minister for Immigration and Citizenship. The applicant claimed the security assessment was not lawful or validly made because ASIO had denied NBMW procedural fairness.

On 5 July 2013 the Federal Court dismissed the application to join the Director-General to the separate proceedings.

The Australian Crime Commission (ACC) has meanwhile released its report on organised crime in Australia [PDF]. (Past reports are noted here,  here and here.)

It is usefully read in conjunction with 'Going Dutch? Comparing Approaches to Preventing Organised Crime in Australia and the Netherlands' (RegNet Research Paper No. 2013/12) by Julie M. Ayling and 'We Get the Crime We Deserve: Exploring the Disconnect in ‘Law and Order’ Politics' by Rick Sarre.

Sarre comments that -

Every dollar that Australian governments spend on keeping people in the criminal justice system is potentially a dollar that could have been spent on initiatives that have been shown to stem the flow of potential offenders and re-offenders. These initiatives include employment incentives, community capacity-building, drug treatments, post-release services, therapeutic courts and intervention for ‘at risk’ individuals and their families. Intriguingly, governments do spend significant amounts of money on these sorts of programs, but they seem reluctant to advertise the fact that they are assisting those whom many would class as ‘the undeserving’. This is an odd and expensive political disconnect. This paper explores a number of fallacies that persist in popular thinking that have the effect of widening this disconnect. It offers a number of paths forward for justice policy-makers and social planners in order to address the malaise.

Ayling's article contributes -

to the growing literature on organised crime prevention by examining the approaches of two countries, Australia and the Netherlands. In many respects these countries are similar. They also have many organised crime problems in common. But their responses to those problems have been quite distinct. The Dutch administrative approach has been hailed as both unique and successful, while the Australian approach, primarily a reactive criminal law-based response, has encountered a storm of criticism. The article compares the two approaches and addresses the questions of whether and what Australia should learn from the Dutch approach.

Ayling suggests eight lessons -

Lesson 1: Set clear goals and benchmarks.

Setting goals and benchmarks is foundational to the establishment of any new policy framework. A very clear idea of what the new approach is designed to achieve is crucial. Similarly, it is crucial to understand what one is dealing with. This requires good empirical research into the nature, costs, harms and distribution of organised crime. Such research also provides benchmarks against which the success of any new approach can be evaluated. Evaluations against benchmarks provide the foundation for future adjustments to increase the framework’s effectiveness and can help legitimate any new measures, which may be particularly important where there are broader public impacts (see below). In the Dutch case, the implementation of the administrative approach was preceded by research into the extent and nature of organised crime in Amsterdam, and particularly in the city centre. The clarity and reliability of these studies as threat assessments has, however, been questioned. Nelen and Huisman (2008) note that no clear definition of organised crime was employed, making evaluation of the success of the approach difficult. The framework developed also relied heavily on the New York example of racketeering, which involves a quest by criminal groups for political and economic power over certain sectors, when in fact the problems faced in Amsterdam were (and still are) more concerned with vice and drugs. As a result, the administrative approach has needed ongoing adjustment (for example, the inclusion of new sectors). Australia has the opportunity to learn from the Dutch experience, to conduct research at a measured pace into its own organised crime scene without preconceptions, and to set appropriate goals and benchmarks on the basis of that research. This would give any new system the greatest possible chance of effectiveness right from the beginning.

Lesson 2: Have realistic expectations

An administrative approach will not ‘solve’ the problem of organised crime. For one thing, its application is limited to circumstances where organised crime seeks facilitation from public agencies. However, not all organised crime needs such facilitation. Furthermore, while an administrative approach would seem to clearly prevent the facilitation of organised crime by the state, establishing causality between preventing facilitation and having an impact on organised crime’s power and activities is difficult. So far, in the Netherlands, any impacts on organised crime can be considered only ‘plausible,’ rather than ‘proven’ (Nelen and Huisman 2008). Expectations may therefore need to be pared back, at least in the short term.

Nelen (2010: 97) suggests that the expectation for the Van Traa project and Emergo, that that the Red Light District can be transformed into a “decent and transparent business area”, is to some extent naïve because it “neglects the dynamics and modus operandi” of the market in vice operating there, which relies on a symbiotic relationship between the legitimate and illegitimate spheres. One is reminded of von Lampe’s (2011) observations that to properly capture organised crime settings, a situational model needs to incorporate sensitivity to the social, economic and political context. Although von Lampe’s comments were directed to the national level (that is, juxtaposing postmodern societies with societies in transition and developing countries), this observation could equally apply to the social and economic contrasts between city districts or regions.

Lesson 3: Build in flexibility and limits

Flexibility is necessary to cope with the evolving nature of both organised crime and understandings of it that necessarily alter with research and experience. However, a clearer understanding of the problem should also suggest the placement of limits on the application of a new approach to avoid the kind of net-widening effects referred to by Huisman and Koemans (2008), such as the expansion of sectors covered beyond those where the influence of organised crime can be directly observed.

Lesson 4: It’s not going to happen overnight

Multi-agency working is fraught because every agency has its own culture and conception of its ‘territory’ (sovereignty). Shared goals and explicit commitment from leaders will help, but distrust is to be expected, especially when information has previously been the exclusive domain of a particular agency such as the police. Nelen and Huisman note that the evaluation of the Van Traa project turned up information sharing as a “bottleneck” and state (2008: 210) that “Up until now, the various partners have predominantly paid lip service to the administrative approach, but have not integrated this strategy in their own working processes.” It may be necessary, initially at least, to mandate a detailed system of information exchange, not just a system for information collection with an expectation of sharing. Even then, real trust between agencies, although essential for an effective system, is likely to be based largely on informal connections, will need time to grow, and might only do so once positive results have accrued.

Lesson 5: Be prepared to be pragmatic

The stories about compensating Fat Charles for his prostitution windows and the Hells Angels for their clubhouse land suggest that cleaning out organised crime using administrative measures might pose ethical dilemmas, such as whether crime should be allowed to pay. How much the bending of principles could be tolerated needs careful consideration.

Lesson 6: Consider the red tape

One cannot expect the adoption of a whole new approach to be either easy or cheap. Bureaucratic complexities are bound to arise. The tension between increasing ‘red tape’ for businesses in order to combat organised crime and adhering to a ‘better regulation’ agenda will need resolving.

Lesson 7: Expect (and plan for) the unexpected

Unintended consequences are likely if not inevitable. As well as being realistic about the likelihood of positive results from a new framework, it is prudent to consider the possibility of undesirable impacts. For instance, Nelen (2010) notes that parts of the sex industry moved underground as entrepreneurs decided that compliance with Van Traa/Emergo requirements was too difficult, and speculates that change to less regulated ways of working, such as escort businesses, could occur. He reports that this has already happened in relation to money lending, with entrepreneurs reacting to tightened banking controls turning to informal lending systems (people like Fat Charles), which in turn has increased opportunities for money laundering. Another example of an unintended consequence is the concentration of ownership of industry sectors, referred to earlier. Attention needs to be paid to guarding any new framework against crimogenic effects.

Lesson 8: No panacea

An administrative approach will not necessarily quieten the debates about privacy, procedural fairness and punitiveness that have accompanied the introduction of antiassociation laws in Australia. These issues may still arise with the implementation of an administrative approach, as they have in the Netherlands (Council of Europe 2003). As Huisman and Koemans (2008: 142) comment: “The consequences of these administrative measures can also be more far reaching than those of criminal sanctions, while the safeguards of due process are considerably less so.” Careful consideration of these issues – how and to what extent to protect privacy, how to ensure procedural justice and whether punitiveness is a live issue – should be part of any general planning for adopting a new approach based on administrative measures.