Under the Serious and Organised Crime (Control) Act 2008 the Commissioner of Police can apply to the Attorney-General that an organisation (such as a motorcycle gang) be made a ‘declared organisation’. When an application is made to the Attorney-General notice of this must be published in the Government Gazette and a state-wide newspaper. Members of the public may make submissions and the declaration cannot be made until the end of the 28 day period given to allow these submissions.
If the Attorney-General is satisfied that the members of the organisation associate for the purpose of organising or supporting serious criminal activity and there is a risk to public safety a declaration can be issued against the organisation.
Where an organisation has been made a ‘declared organisation’ this provides the legal trigger for the Commissioner of Police to apply for a control order against a member (or an associate of a member) of that organisation.
Control orders
Under s 14 of the Act where a person is a member of a declared organisation the Court must make a control order against the person if an application is made by the Commissioner of Police. This means that the Court itself has no discretion to refuse to make the order.
Where a person has been a member of an organisation that is now a declared organisation, the Court has some discretion as to whether to make the order. The same applies where a person participates (or has participated) in serious criminal activity and regularly associates with members of a declared organisation or other serious criminal offender.
The effect of a control order
A control order may prohibit a person from:
· associating or communicating with a specified person or persons or class of persons, or
· being in the vicinity of specified premises, or
· possessing specified articles or articles of a specified class
If the person who is the subject of a control order is a member of a declared organisation the order must prohibit them from:
· associating with other persons who are members of declared organisations
· possessing a dangerous article or prohibited weapon
‘Associating’ includes communication by any means such as letter, telephone, facsimile, email or other electronic means.
A person who has been served with a control order has the right to make an objection. A notice of objection must be lodged with the Magistrate’s Court within 14 days of being served with the control order.
Breach or failure to comply with control order
Maximum penalty: 5 years imprisonment
Public safety orders
Under s 23 of the Serious and Organised Crime (Control) Act 2008 a senior police officer (i.e. an officer of or above the rank of inspector) can make a public safety order where he or she is satisfied that a person or group of persons poses a serious risk to public safety or security.
A public safety order can prohibit a person or group of persons from being at specified premises, attending a specified event or being in a specified area. Orders cannot be in effect for a period of more than 72 hours in total. Where police wish to issue a public safety order for a longer period of time they must apply to the Court.
Where a public safety order has been issued for a period of more than 7 days, a person who is the subject of the order may lodge a notice of objection with the Magistrates Court.
Breach or failure to comply with public safety order
It is an offence to breach or fail to comply with a public safety order.
Maximum penalty: 5 years imprisonment
Where a public safety order prohibits a person from entering or being in a specified area but they had a reasonable excuse for entering or being there,this can constitute a defence to a charge of failure to comply.
Power to search vehicles or premises
Where a public safety order has been issued the police have powers to search vehicles or premises if they have reasonable grounds to suspect that the person identified in the order is on the premises or in the vehicle.
Criminal associations
Association with person the subject of a control order or public safety order
It is an offence to associate with a person who is a member of a declared organisation or the subject of a control order. In order to commit this offence it must be shown that the person knew that their associate was a member of a declared organisation or subject to a control order or was reckless as to this fact.
The level of association required to commit the offence is association of not less than 6 occasions during a period of 12 months.
The maximum penalty for this offence is 5 years imprisonment.
Association between people who have criminal convictions
A person who has a criminal conviction for an offence of a type prescribed by regulation* who associates with another person with a criminal conviction of a type prescribed by regulation on not less than 6 occasions during a period of 12 months will also be guilty of an offence.
The maximum penalty for this offence is 5 years imprisonment.
* Offences prescribed by regulation include assault, firearms offences, offences relating to procurement for prostitution and keeping a brothel, bribery, and offences against the Explosives Act 1936 (see s 4 of the Serious and Organised Crime (Control) Regulations 2008).
The following are exceptions to the offence of criminal associations:
· associations between close family members (this includes a spouse or former spouse or someone in a close personal relationship, a parent or grandparent, brother or sister or guardian or carer)
· associations occurring in the course of a lawful occupation, business or profession
· associations occurring at a prescribed course of training or education between persons enrolled in that course
· associations occurring at a rehabilitation, counselling or therapy session of a prescribed kind
· associations of a prescribed kind
Important issue in today's society. Fascinating to see the punishments and the different types of associations in relation to the gangs that exist.
ReplyDeleteThanks for the info :)
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