Page 5280 - Week 14 - Wednesday, 29 November 2017
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monitor is not appointed, applications for criminal intelligence information made under part 5 of the bill will be unworkable.
The bill proposes to establish three new criminal offences, including an offence against a controlled member who associates with another controlled member. These offences are punishable by up to five years imprisonment. However, the bill also provides that these offences do not apply if the controlled member associated with another controlled member under any of the following circumstances: because the other controlled member is a close family member; in the course of a lawful occupation, business or profession; in the course of prescribed training or education in which the defendant and the other controlled member were enrolled in good faith; at a prescribed rehabilitation, counselling or therapy session; when in lawful custody or complying with a court order; and in circumstances prescribed by regulation.
However, ACT Policing has advised that a significant proportion of criminal gang members in the ACT have familial or employment relationships with each other. If these offences are available in the ACT, control orders will not limit the association of many criminal gang members and will not effectively criminalise the association of two people. But a decision not to include these defences would criminalise the association of two people who are not associating to commit a criminal offence. The government does not support that approach.
The bill is modelled on the New South Wales Crimes (Criminal Organisations Control) Act 2012. In November 2016, as we have heard, the New South Wales Ombudsman published its review of police use of powers under the Crimes (Criminal Organisations Control) Act 2012. The review concludes that the New South Wales police found the criminal organisation control scheme too cumbersome and resource intensive to use.
The review recommends that the laws be repealed, as they do not provide police with a viable mechanism to tackle criminal organisations and are unlikely to ever be used effectively. The review found that by focusing on an organisation the laws potentially criminalise associations between people who have never been convicted of criminal offences; the laws may unfairly restrict people from participating in lawful and skilled employment, removing their ability to earn a lawful income; and since the laws commenced in 2012 the New South Wales Police Force has not filed any applications to declare organisations, due to evidentiary requirements.
The New South Wales Police Force highlighted operational challenges in the preparation of applications for criminal organisation declaration. The practical impact of the high standard of evidence required is that police need to prepare extensive documentation to verify the reliability and accuracy of each piece of information they intend to rely on in their application. The New South Wales Police Force reported difficulty in preparing evidence of serious criminal activities that have occurred in the past, evidence that members of the organisation were involved in these serious criminal activities, evidence of members associating in order to participate in criminal activity, and evidence that particular individuals are members of an organisation. The New South Wales Police Force has advised that in 2015 it ceased work on any applications it was preparing to seek a criminal organisation declaration and that it
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