Page 703 - Week 02 - Thursday, 25 February 2010
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comprehensive and factual document designed to inform the debate and provide members with the facts that exist. In tabling the government report, I asked each member of the Assembly to also consider what is in the best interests of the territory in addressing serious organised crime in the territory. During the debates in the Assembly last year, I also announced the government’s intention to introduce amendments to strengthen the territory’s ability to combat serious organised crime.
Therefore, today I am pleased to introduce several of these measures in the Crimes (Serious Organised Crime) Amendment Bill 2010. The bill introduces the offences of affray, participation in a criminal group, recruiting persons to participate in criminal activity, and expands the offences relating to the protection of people involved in judicial proceedings to cover people involved in criminal investigations. It also extends the concepts of criminal responsibility to reintroduce the concept of joint criminal enterprise and knowingly concerned. A detailed discussion of each of these proposed legislative amendments was contained in the government report I tabled last year, and I again refer members to that report.
As I have previously said, the ACT will not be adopting legislation that allows for the banning of certain organisations in a similar fashion to that currently provided for in South Australia and New South Wales. In fact, the South Australian laws were dealt their first blow by the South Australian Supreme Court in November last year, when it was found that a control order made against a Finks motorcycle club member was void and of no effect and that the provision relating to the making of control orders by the court was invalid. It is expected that the issues relating to this and similar legislation will ultimately be litigated in the High Court.
Therefore, what is proposed in the bill tabled today includes a series of new offences around participation in a criminal group. I would like to provide some more detailed comment on this aspect of the bill, as these provisions engage the right to freedom of association in section 15(2) of the ACT’s Human Rights Act 2004. It cannot be denied that freedom of association is an important element for a free and democratic society. The right to freedom of association ensures that citizens can participate fully in society and contribute to the shaping of public opinion.
However, no human right is absolute. Section 28 of the Human Rights Act provides that all other rights may be subject to “reasonable limits set by territory laws that can be demonstrably justified in a free and democratic society”. This section gives statutory effect to the international human rights law concept of “proportionality”.
The process for establishing whether a limitation on a human right is proportionate, and thus a “reasonable limit” which is “demonstrably justified in a free and democratic society”, is now well established. To satisfy the test set out in section 28, the limitations must fulfil a pressing and substantial social need, pursue a legitimate aim and be proportionate to the aims being pursued. Further, the concept of proportionality requires that the limit must be:
necessary and rationally connected to the objective;
the least restrictive in order to accomplish the object; and
not a disproportionately severe effect on the person or persons to whom it applies.
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