Page 704 - Week 02 - Thursday, 25 February 2010
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First, the limitation must be intended to overcome a problem which is “pressing and substantial”. There is no doubt that serious organised crime activities such as the manufacturing and distribution of illicit drugs and firearms, money laundering and extortion would all satisfy this requirement. It is well established that freedom of association may be limited in the interests of public safety or for the prevention of disorder or crime. Suppression and interruption of serious organised crime in this context arguably justifies limitations being placed on the right to free association.
The next question that must be asked is whether the limitations are rationally connected to the objective. That is to say, “the measure must be fair and not arbitrary, carefully designed to achieve the objective in question and rationally connected to that objective”. Organised crime relies on systemic conduct and networks to achieve and promote criminal activities. The connection to the objective is unequivocal.
To be reasonable and demonstrably justified, the impugned measures must impair the infringed right or freedom “no more than is necessary to accomplish the objective”. Furthermore, the law must be carefully crafted to attend to the objective of the legislation such that rights are impaired using the least restrictive means and no more than necessary. Finally, any limitation must also strike a fair balance between the general interests of the community and the requirements of the protection of an individual’s fundamental rights. This will usually entail asking whether the measures used to achieve the objective are unacceptably broad in their application, or whether they impose an excessive or unreasonable burden on certain individuals.
The offence provisions in the bill have been carefully drafted to ensure that the provision is reasonable and demonstrably justified. Some of the important safeguards and features of this offence are:
A group is a criminal group only if it is a group of three or more people that has the objective of obtaining material benefits from conduct that constitutes an indictable offence or committing serious violent offences, or both.
A person can only commit offences under the provisions if the person participates in the criminal group; knows that the group is a criminal group, and knows, or ought to have known, that the person’s participation in the criminal group contributes to criminal activity.
The bill defines “criminal activity” as conduct that constitutes an indictable offence.
Under the offences proposed by the bill, “participation”, per se, attracts a maximum penalty of five years imprisonment. However, if the person engages in conduct that causes harm, or threatens to cause harm, to someone else, or damages property belonging to someone else, or threatens to damage that property, an elevated maximum penalty of 10 years imprisonment applies.
This bill does not propose to introduce a blanket prohibition on association or participation into the ACT statute book. The offences contained in this bill will not apply to all members of any group. A person can only be prosecuted under this
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