Gazette - Serious and organized crime control in South Australia

COVER SECTION

Photo: SAPOL

SAPOL’s Crime Gangs Task Force conducted vehicle, licence and roadworthiness checks involving 100 participants of the Gypsy Jokers Poker Run in March 2008.

By Damian Powell Detective Chief Inspector
Crime and Intelligence Faculty
South Australia Police

Since July 2007, the South Australia Police (SAPOL) has been supporting the Government of South Australia in the development of innovative legislation to more effectively reduce the threat and impact of serious and organized crime. This approach focuses on introducing new and unique prevention legislation, expanding traditional criminal laws and enhancing criminal asset forfeiture laws.

The criminal environment

In South Australia, serious and organized crime impacts all levels of society and presents ongoing challenges for governments and law enforcement agencies. It is varied in scope, expertise, sophistication and influence. It has substantial social and economic costs on the state.

Outlaw motorcycle gangs (OMGs) are considered a serious organized crime threat in South Australia due to their impact and influence across all levels of crime.

Their illegal activities extend to any commodity from which profit can be derived, and they are adaptive in expanding their criminal activities into new markets. Recent trends have OMGs expanding their reach and influence to lesser-known street gangs who undertake the high-risk aspects of the criminal activity.

Prior to commencing its work on legislative reform, SAPOL undertook a comprehensive environmental scan of legislative and law enforcement issues dealing with OMGs — both within Australia and overseas — to identify new options to more effectively deal with these issues. There were several key findings, which have been accepted by the South Australian government:

• Legislative reform in the past has been reactive and relied heavily upon the criminal law, criminal justice system and associated rules of evidence. 
• Legislative reform has focused on the crime as the problem. The alternate view in South Australia is that criminals’ ability to associate in order to build networks, groups and syndicates is the problem, while the commission of crime is the symptom.
• The criminal justice system relies heavily on the participation and co-operation of witnesses. Practiced intimidation and violence by those involved in serious and organized crime towards witnesses has proven to be an  effective means of circumventing the effect of the criminal law.
• Legislation that has proven successful in South Australia in reducing the impact of serious and organized crime has combined civil (administrative) law prevention - or exclusion initiatives - with criminal law sanctions for any breach.

Combining civil and criminal law

On September 4, 2008, The Serious and Organized Crime (Control) Act 2008 came into operation in South Australia. The Act is the first of a number of legislative initiatives related to the South Australian government’s holistic legislative reform tackling serious and organized crime.

The Act seeks to disrupt and restrict the activities of organizations, their members and their associates involved in serious crime, and to protect members of the public from violence associated with criminal organizations. Its innovation lies in the combined use of civil and criminal law initiatives that seek to prevent those organizations and persons involved in serious criminal activity from associating with each other before criminal offences are committed.

Prevention initiatives within this Act include declared organizations, control orders, public safety orders and a new offence of criminal associations.

Declared organizations: The Act authorizes the Attorney General of South Australia to issue a declaration about an organization where satisfied, on the balance of probabilities, that the members of the organization associate for the purpose of organizing, planning, supporting, facilitating or engaging in serious criminal activity, and the organization represents a risk to public safety and order in South Australia. The declaration is a legal status assigned to an organization recognizing that its members present a risk to public safety as a result of their criminality. The declaration becomes the means by which specific legal disabilities can be applied to those members without unnecessarily impacting  the broader community.

Unlike other international organized crime laws, the declaration process in South Australia does not impose any sanction on individuals or the organization. However, it does provide the means by which new prevention laws, such as control orders, public safety orders and criminal associations can be applied against individual members of that organization. Once issued, a declaration remains in force indefinitely until revoked by the Attorney General. A privative clause protects the Attorney General’s decision from judicial review. 

Control orders: The strength of gangs and other serious and organized crime groups lies in their close cohesion, code of silence and ability to congregate together to plan and undertake criminal activity. Control orders seek to break down the strength of gangs and criminal groups by preventing and restricting such associations. The Act authorizes a Magistrates Court (lower level court) to make orders prohibiting or restricting the activities of members of declared organizations and others who engage in serious criminal activity. Restrictions include preventing those persons from attending specified premises, possessing dangerous articles or prohibited weapons, or associating with other members of declared organizations or with persons suspected of being engaged in serious criminal activity. The burden of proof once again is on the balance of probabilities. Contravention of an order imposes a maximum period of imprisonment of five years. 

Public safety orders: The Act authorizes a police inspector or higher rank to issue time-limited orders — up to 72 hours — against individuals or members of a group, where the presence of a person or a group of people presents a serious risk to public safety or security. The order may prohibit persons from attending a public event or place, or being within a specified area. The order may be extended for a longer period of time upon authorization from a Magistrate. Criminal intelligence may be used to support the grounds for an order and, where an order is issued for seven days or less, no right of appeal applies. Specific legislative provisions protect criminal intelligence from general disclosure. Contravention of an order carries with it a maximum period of imprisonment of five years. 

Criminal associations: A new offence relating to criminal associations will assist police in disrupting and discouraging associations with persons of a prescribed class - that is, members of declared organizations, persons subject to control orders, and persons with criminal convictions for major indictable offences (penalty of more than five years imprisonment) or convictions under the Act. 

An offence occurs where a person associates with a person of the prescribed class six or more times in any 12-month period. Limited exemptions apply as does a defence of a “reasonable excuse.” Exemptions include association in the course of lawful employment, custody or close family relations, unless the prosecution can provide evidence that such association was not reasonable. In addition to disrupting the activities of criminal networks, the new offence seeks to prevent the expansion of gangs and other criminal groups by “warning off” potential recruits, including street gangs. A conviction under this law carries with it a maximum period of imprisonment of five years.

Supporting provisions

Legislative provisions supporting these initiatives provide for the presentation of broader information as evidence than would otherwise be admissible in criminal proceedings - evidence including, but not limited to, the use of criminal intelligence and criminal records of current and past members of the group.

Safeguards designed and contained within the Act include an independent annual review of the use of the legislative powers by a retired Supreme Court or District Court judge; annual reporting of these review findings to both houses of Parliament; a review of the legislation after four years; and a sunset clause on the legislation after five years.
The Act is also supported by the development of a range of traditional criminal law and criminal asset forfeiture enhancements that cover drugs, firearms, unexplained wealth and declared drug trafficker legislation, as well as specific organized crime offences akin to Canadian organized crime legislation.

The extent of legislative reform currently underway in South Australia is the product of continued assessment of the serious and organized crime environment, its challenges and the need to develop new and innovative approaches to enhance community safety. SAPOL Assistant Commissioner Tony Harrison says that “with this suite of new laws, South Australia will have a comprehensive and flexible approach to prevent or disrupt the broad and evolving range of organized crime activities.” 

Detective Chief Inspector Powell has 20 years service with SAPOL. In 2006, he was the operations inspector in SAPOL’s Organized Crime Investigation Branch and, until September 2008, he managed the SAPOL legislative reform project in the development of new laws targeting serious and organized crime in South Australia.