INDEPENDENT REVIEW OF THE EFFECTIVENESS OF ACT POLICING CRIME SCENE POWERS AND POWERS TO TARGET, DISRUPT, INVESTIGATE AND PROSECUTE CRIMINAL GANG MEMBERS 6 DECEMBER 2019 ASSOCIATE PROFESSOR TERRY GOLDSWORTHY AND DR GAELLE BROTTO BOND UNIVERSITY 14 University Drive, Robina Qld, 4226 ǀ P: 075595 3057 ǀ E: [email protected]ǀ www.bond.edu.au
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DECEMBER 2019...Independent review of the effectiveness of ACT Policing crime scene powers and powers to target, disrupt, investigate and prosecute criminal gang members Dr Terry Goldsworthy
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INDEPENDENT REVIEW OF THE EFFECTIVENESS OF
ACT POLICING CRIME SCENE POWERS AND POWERS
TO TARGET, DISRUPT, INVESTIGATE AND PROSECUTE
CRIMINAL GANG MEMBERS
6 DECEMBER 2019
ASSOCIATE PROFESSOR TERRY GOLDSWORTHY AND DR GAELLE BROTTO
2.1 The task ....................................................................................................................................................................... 10
2.2 Information from ACT Policing ........................................................................................................................... 12
2.3 Information from other government agencies ............................................................................................. 12
2.4 Consultations with key stakeholders ................................................................................................................ 12
2.5 Academic literature ................................................................................................................................................. 13
2.6 Parliamentary and public debate ....................................................................................................................... 13
2.7 Related laws ............................................................................................................................................................... 13
2.8 Conflict of interest ................................................................................................................................................... 13
SECTION 3—CONTEX T AND BACKGROUND OF CRIME SCENE POWE RS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.1 Importance of crime scene powers in criminal investigation .................................................................. 14
3.2 The investigative process—a model ................................................................................................................. 15
3.3 Crime scene stage ................................................................................................................................................... 16
3.4 The international experience regarding crime scene powers ................................................................. 17
3.5 Crime scene powers in other states and territories .................................................................................... 20
4.1 Increased concern about organised crime and criminal gangs .............................................................. 28
4.2 Immediate background to the new crime scene powers in 2017.......................................................... 28
4.3 The new division 10.4A .......................................................................................................................................... 29
4.4 A qualitative and quantitative analysis of the new crime scene powers ............................................. 34
5.2 The international approaches to organised crime ...................................................................................... 38
a. The North American Approach .......................................................................................................................... 38
b. The European Approach ....................................................................................................................................... 40
c. The New Zealand Approach ................................................................................................................................ 44
d. Effectiveness .............................................................................................................................................................. 45
5.3 Legal approaches to defining organised crime ............................................................................................ 46
5.4 The future of organised crime ............................................................................................................................ 46
6.1 An examination of the criminality of OMCGs ............................................................................................... 48
6.2 How much crime do OMCGs commit? ............................................................................................................ 49
6.3 OMCGs and the drug markets ............................................................................................................................ 51
6.4 The role of the gang structure in criminal enterprises............................................................................... 52
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6.6 Media and OMCGs .................................................................................................................................................. 54
7.1 The history of consorting laws in Australia .................................................................................................... 57
7.2 Moral panic and the justification for consorting laws ................................................................................ 58
7.3 Not new—just previously unused ..................................................................................................................... 62
7.4 Consorting Laws, are they effective? ................................................................................................................ 65
7.5 Did anti-association laws already exist? .......................................................................................................... 69
SECTION 8—A CURRENT SITUA TION REPO RT OF OMCG ACTIV ITY IN THE ACT . . . . . . . . . . . . . . . . . 72
8.2 An examination of OMCG criminality in the ACT ........................................................................................ 74
8.3 OMCGs’ involvement in organised and serious crime in the ACT ......................................................... 77
8.4 OMCGs and the media in the ACT .................................................................................................................... 79
10.17 Legal Aid ACT ..........................................................................................................................................................115
10.19 ACT Human Rights Commission ......................................................................................................................124
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GLOSSARY
Term Meaning
ACAT ACT Civil and Administrative Tribunal
ACC Australian Crime Commission (in 2016 the ACC was reformed as the ACIC)
ACIC Australian Criminal Intelligence Commission
ACLEI Australian Commission for Law Enforcement Integrity
ACT Australian Capital Territory
ACTHRC Australian Capital Territory Human Rights Commission
AFP Australian Federal Police
CA Canada
CCC Crime and Corruption Commission (Qld)
CMG Criminal Motorcycle Gang
COA Criminal Organisation Act 2009 (Qld)
CSI Crime scene investigation
Cth Commonwealth
DPP Director of Public Prosecutions
EF Evaluation framework
LEPRA Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
NAPRO Non-association and place restriction orders
NL Netherlands
NSW New South Wales
NT Northern Territory
NZ New Zealand
OCCA Organised Crime Control Act 1970
OMCG Outlaw Motorcycle Gangs (this term has been adopted by the Australian Crime Commission and
the NSW Police Force and is acknowledged by the Supreme Court of NSW in cases such as Moefli
v State Parole Authority [2009] NSWCC 1146)
PIM Public Interest Monitor
PSA Penalties and Sentences Act 1992 (Qld)
PACE Police and Criminal Evidence Act 1984 (UK)
QPS Queensland Police Service
RICO Racketeer Influenced and Corrupt Organizations Act (US)
RTI Right to information
SA South Australia
SCOPA Serious Organised Crime and Police Act 2005
SCPO Serious crime prevention orders
Tas Tasmania
TOC Transnational organised crime
UK United Kingdom
UN United Nations
UNODC United Nations Office on Drugs and Crime
US United States
VLAD Vicious Lawless Association Disestablishment Act 2013 (Qld)
Vic Victoria
WA Western Australia
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LIST OF TABLES
Table 1: PACE Codes of Practice ......................................................................................................................................................................... 19
Table 2: Summary of Crime Scene Legislation in Australian States and Territories......................................................................... 27
Table 3: Summary of Use of Crime Scene Powers since Introduction .................................................................................................. 35
Table 4: Details of Use of Crime Scene Powers since Introduction ....................................................................................................... 35
Table 5: Legislative Tools for Combating Serious and Organised Crime—Overseas Federal Legislation ............................... 46
Table 6: Organised Crime Activity of Queensland OMCG Members between April 2008 and April 2014 by Count and as
a Percentage of Overall Reported Crime ........................................................................................................................................ 50
Table 7: Top 10 Charges by Number with a Guilty Finding Against OMCG Members in Queensland between 2008 and
Table 8: OMCG Involvement in Drug Offences in Queensland between April 2008 and April 2014 ........................................ 51
Table 9: Level of OMCG Criminality in Queensland as of April 2014 .................................................................................................... 53
Table 10: Queensland Police Estimates of OMCG Membership and Disassociations between 2013 and 2015 ................... 54
Table 11: Main Aspects of the 2013 Queensland Anti-Gang or VLAD Laws ...................................................................................... 62
Table 12: Consorting and Anti-Association Offence Laws by Australian States and Territories ................................................. 64
Table 13: Existing Anti-Association Laws by Australian States and Territories .................................................................................. 70
Table 14: Number of Suspected OMCG Members and Associates in ACT between 2015 and 2019 ........................................ 72
Table 15: Level of OMCG Criminality in ACT as of October 2019 .......................................................................................................... 74
Table 16: Charges and Outcome of Current ACT OMCG Members per Gang between July 2000 and June 2019 .............. 75
Table 17: Overview of Total Reported Offences in ACT between July 2000 and June 2019 ........................................................ 76
Table 18: Overall Charges by Number Against OMCG Members in ACT between July 2000 and June 2019........................ 77
Table 19: Organised Crime Activity of ACT OMCG Members between July 2000 and June 2019 by Count and as a
Percentage of Overall Reported Crime ........................................................................................................................................... 78
Table 20: OMCG Involvement in Drug Offences in ACT between July 2000 and June 2019 by Count and as a Percentage
of Overall Reported Crime ................................................................................................................................................................... 78
Table 21: Violent Charges of ACT OMCG Members between July 2000 and June 2019 by Count and as a Percentage of
Table 22: Number of Current OMCG Members with Affray Charges in 2019 .................................................................................... 81
Table 23: Charges and Outcome—All Charges for Selected Offences between July 2000 and July 2019 .............................. 82
Table 24: Number of Division 7.2.3 Charges and Outcomes between December 2002 and September 2019 ..................... 83
Table 25: Number of NAPROs Issued with Associated Sentence Outcomes between 2009 and 2018 .................................... 88
Table 26: Exclusion Charges and Outcomes between July 2000 and June 2019 .............................................................................. 89
Table 27: Fortification Legislation in Each Australian State and Territory ........................................................................................... 91
Table 28: Number of OMCG Clubhouses by Gang ...................................................................................................................................... 93
Table 29: Approximation of Assets Restrained and Forfeited for 2018-2019 .................................................................................... 96
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LIST OF FIGURES
Figure 1: Stages of the Investigative Model ................................................................................................................................................... 16
Figure 2: Factiva Search for OMCG Media Stories by State between January 2014 and September 2019 ............................. 56
Figure 3: Numbers of Suspected OMCG Members and Associates in ACT with Trendline .......................................................... 73
Figure 4: Number of OMCG Media Stories for the ACT Region between January 2014 and September 2019. Sourced from
According to the Crimes Amendment Act 2009, the penalty for committing an offence increased from three years (Crime
Act 1961 [NZ] s98A) to five years in 2002 (Crimes Amendment Act 2009, [NZ], s5), and to 10 years in 2009 (Crimes
Amendment Act 2009, (NZ), s5).
New Zealand has also enacted the Crime Proceeds (Recover) Act 2009, in which the laws enable the Crown to, without
conviction, confiscate property from those who, according to the lesser civil standard proof, have committed or profited
from significant criminal activity. New Zealand does not have unexplained wealth laws (Ayling & Broadhurst, 2014).
In 2013, New Zealand also enacted the Prohibition of Gang Insignia in Government Premises Act, which prohibits the
display of gang insignia on the department premises of the public service, the police, Crown entities, local authorities
and schools (Prohibition of Gang Insignia in Government Premises Act 2013, [NZ], s3).
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New Zealand was the first jurisdiction to create an offence of consorting (Police Offences Amendment Act 1901 [NZ], s4),
in which the principal act was amended and a person ‘who consorts with reputed thieves or prostitutes or persons who
have no visible means of support’ was deemed to be guilty of an offence. This formed the model for all consorting laws
in Australian jurisdictions (McLeod, 2013). Section Seven of the review will further discuss Australian consorting laws.
In 1981, New Zealand replaced its consorting offence with a measure that was targeted at preventing crimes that
involved dishonesty. According to McLeod (2013, p. 133):
The stated purpose of the change was to strike ‘a fair balance between the right of free association
and the needs of crime prevention’. The new offence proscribed habitual association with a person
convicted on at least three separate occasions of a crime involving dishonesty. Two significant
limitations were imposed: (1) the circumstances in which the association occurred had to be such
as to support a reasonable inference that the subsequent commission of a crime involving
dishonesty was likely; and (2) the police must have warned the defendant on at least three separate
occasions that further association with the convicted person could attract criminal charges.
The following list briefly outlines the offences against public order that a person could presently be charged for:
• disorderly behaviour
• offensive behaviour or language
• disorderly behaviour on private premises
• disorderly assembly
• associating with convicted thieves
• associating with violent offenders
• associating with serious drug offenders
• proof of habitual association
• fighting in a public place
• publishing a document or thing that explains the manufacture of explosives and other destructive objects
(Summary Offences Amendment Act 1981, s3–8).
In terms of effectiveness, the laws established in New Zealand have been criticised on the grounds that ‘they extend
criminal liability beyond its appropriate limits’ (Commonwealth of Australia, 2009, p. 75).
d. EFFECTIVENESS
There are some recurring features that are internationally associated with anti–organised crime laws. Out of all the
international approaches discussed in this section, the major difference between them is the way that the laws tackle
organised crime—either against an individual (e.g., the UK) or against a group (e.g., the US and Canada).
In terms of crime legislation, its effectiveness appears to be limited, as most legislative efforts are considered too broad
(e.g., the US, Netherlands and Canada) and complex and resource intensive (e.g., the US, Canada and New Zealand). For
example, Canada and New Zealand are similar in terms of legislation, yet neither country has observed a noticeable
decline in organised crime activities since these laws were introduced in 1997 (Schloenhardt, 2008). In fact, the OMCGs
who were the main target of these laws at the time of their inception continue to thrive and control large portions of
the illicit drug market in these countries (Schloenhardt, 2008).
Regarding the proceeds of assets laws that were implemented in the US, Canada, New Zealand, UK and the Netherlands,
their ‘impact is unknown due to insufficient experience with the application of forfeiture laws’ (Gabor, 2003, p. 1).
Finally, on a more positive note, the post-conviction control orders (SCPOs) appear promising (Goldsworthy, 2015;
Wilson, 2015) and have been recommended for implementation in Australia.
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Organised crime in the present day occurs through loose and undefined networks that comprise criminal entrepreneurs
and freelancers who have little concern for group branding or loyalty. Their business model is increasingly digital—
concealed by legitimate activity and global in reach. Australia’s geographical isolation is no longer the buttress that it
once was. Globalisation has made the country an attractive and available target. Australia’s approach to organised crime
must be in sync with global activity, and it must be evidence based. The motive behind any organised crime group is to
directly or indirectly obtain a financial or other material benefit. In Queensland, the Queensland Police Service (QPS) has
recognised that ‘one of the key principles that has emerged in contemporary literature relates to the instability and/or
flexibility of criminal organisations and/or crime groups’ (Queensland Police Service, 2015c, p. 4). This type of organised
crime model is the antithesis of the hierarchical model of the OMCGs.
Australian anti-association and criminal gang legislation is not only state based; it is also linked to the Australian
Commonwealth government’s organised crime strategic framework (Loughnan, 2009). The purpose of the framework is
to identify key organised crime threats and to coordinate a whole-of-government response (Commonwealth Attorney-
General’s Department, 2009). The Commonwealth Attorney-General has identified OMCGs as being a potential target
of this framework:
Outlaw motorcycle gangs, hierarchical and highly controlled organised crime groups or
underworld figures have dominated the public’s image of organised crime in Australia. These
traditional groupings continue to have a strong involvement in organised crime activities and
remain a significant threat. (Commonwealth Attorney-General’s Department, 2009, p. 8)
The framework acknowledges that transnational, serious and organised crime is well financed and integrated into the
global network (Department of Home Affairs, 2019). The Council of Australian Governments agreed to the current
national strategy to fight transnational, serious and organised crime in December 2018. The strategy outlined the nature
of the threat that TOC groups pose:
Transnational, serious and organised criminals are resilient, sophisticated and networked. They
take advantage of political, economic, legal, technological and social changes in the world, and
can adapt and diversify across multiple crime types. As the environment changes and criminals
adapt, so too must our national response. (Department of Home Affairs, 2018, p. 1)
The Australian Criminal Intelligence Commission (ACIC) identifies three main groups operating in Australia: criminal
syndicates, facilitators and OMCGs (Australian Criminal Intelligence Commission, 2019a). Having discussed what
organised crime is, it is now important to examine the role that OMCGs play in organised crime activity.
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SECTION 6—OMCGS IN AUSTRALIA
6.1 AN EXAMINATION OF THE CRIMINALITY OF OMCGS
This section will examine the criminality of OMCGs by examining the available research in relation to international and
Australian perspectives. It is worth considering the use of the term ‘OMCG’. Penfold J considered this in R v. Christopher
Pattman and R v. Stephen Pattman 2 at [5] when facing the Rebels OMCG in the ACT Supreme Court:
I note at this point that although the term "outlaw motorcycle gang" (OMCG) has been regularly
used in the course of these sentencing proceedings, it is not as far as I can see a concept known to
current ACT legislation. The term is used in explanatory material tabled in connection with a
recent Bill to amend the Crimes Act in relation to drive-by shootings and the establishment of
crime scenes without warrant, but it is not defined, or even used, in the Bill itself. However, for
present purposes, there does not appear to be any dispute that the Rebels are identified as an
outlaw motorcycle gang in a number of Australian jurisdictions.
The NSW Ombudsman noted the following in relation to the term ‘OMCG’:
This term has been adopted by the Australian Crime Commission and the NSW Police Force and
is acknowledged by the Supreme Court of NSW in cases such as Moefli v State Parole Authority
[2009] NSWCC 1146. (Ombudsman New South Wales, 2016, p. vii)
There are three important questions that guide this examination of OMCGs: How much crime do OMCGs commit? What
type of crime do OMCGs commit? What role does the OMCG structure play in facilitating this crime? There will be a
focus on the Queensland example, as it has been a test case for combating real or perceived issues relating to the
criminality of OMCG groups. Queensland has had two inquiries that were conducted with a focus on organised crime,
the role of OMCGs and the effectiveness of consorting laws: the 2015 Queensland Organised Crime Commission of
Inquiry (henceforth known as the Organised Crime Report) and the Wilson Report.
On the night of 27 September 2013, approximately 50 Bandido OMCG members entered the Broadbeach restaurant
precinct in the Gold Coast in search of a man; this situation was in regard to a dispute over a woman. Despite being
followed by uniformed police, the OMCG members entered the restaurant and engaged in a melee with the males inside
and the police. The brawl received national and international media attention. In the aftermath of the Broadbeach brawl,
the executive director of the Australian Crime Commission (ACC), Karen Harfield, described the OMCG threat as serious:
While it is difficult to gauge the percentage of organised crime officially attributed to OMCGs. They
are involved in many aspects of serious crime in Australia including the illicit drug market, the
distribution and use of firearms, serious fraud, money laundering, extortion and corruption. (Wuth,
2013, p. 9)
Currently, the ACIC advises that OMCGs are high-profile manifestations of organised crime and that they are active in
all Australian states, in which they exert significant influence over the illicit drug market. The ACIC noted that ‘it is difficult
to gauge the percentage of organised crime attributed specifically to OMCG members’ (Australian Criminal Intelligence
Commission, 2019b, p. 1). It has been demonstrated that the degree to which ‘individual members and the clubs are
involved in organised crime also varies greatly’ (Bjørgo, 2019, p. 87). Often, only generalised statements are provided
regarding the involvement of OMCG groups in organised crime, and the amount of crime that they commit is not
quantified. Such an approach to OMCG crime can be misleading, as noted by the Organised Crime Report:
2 R v. Christopher Pattman and R v. Stephen Pattman (2017) ACTSC 331
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This seemingly blinkered focus on outlaw motorcycle gangs is concerning, particularly given that
statistics reveal that outlaw motorcycle gang members account for a very small percentage of
relevant criminal activity. (Queensland Organised Crime Commission of Inquiry, 2015, p. 24)
It has been noted that OMCGs ‘work in combination’ with other crime syndicates (Vergani & Collins, 2015, p. 417). In
their fact sheet on OMCGs, the ACC recognised that OMCGs are just one of many threats and that their actual
involvement in organised crime is difficult to measure: ‘While they are prevalent in all states and territories, they are just
one part of the broader and integrated picture of organised crime groups in Australia’ (Australian Crime Commission,
2011, p. 1).
In its submissions to a joint Parliamentary committee in 2009, the ACC stated that OMCGs were not the primary criminal
threat in Australia (Commonwealth of Australia, 2009). The Victorian Police in their submissions to the same committee
further stated that they ‘had bigger fish to fry’; they blamed the fixation on OMCGs to be caused by excessive media
attention (Commonwealth of Australia, 2009, p. 26), which is an aspect that will be addressed later on in this review.
One of the more erroneous assumptions that was made is that all OMCGs operate at the same level and with the same
type of criminality. This assumption has been refuted, with the observation being made that there is great variation in
the amount and type of offending between OMCGs (Bjørgo, 2019; Lauchs & Staines, 2019). It has also been observed
that few jurisdictions have provided evidence that supports the claims regarding the level of OMCGs’ offending (Lauchs
& Staines, 2019; Monterosso, 2018; von Lampe, 2019).
6.2 HOW MUCH CRIME DO OMCGS COMMIT?
It is important to thoroughly examine how much and what type of crime OMCGs commit. Presently, the evidence of
OMCGs’ involvement in organised crime has been sparse (Lauchs, 2019a; Lauchs & Staines, 2019). Although one study
noted that an affiliation with OMCGs may increase the likelihood of committing property, drug and weapon crimes, the
results regarding crimes of violence were inconclusive (Klement, 2016b).
Data obtained from the Queensland government under the right to information (RTI) laws allow for an examination of
Queensland OMCG criminality.3 The government data obtained revealed that OMCG members were found guilty of
4,323 criminal charges between April 2008 and April 2014. In the same period, 2,537,669 total offences were reported
to the police (Queensland Police Service, 2016). This signifies that OMCG members were found guilty of 0.17 per cent of
reported Queensland offences. The Queensland Police list OMCG activity as being responsible for 0.6 per cent of all
reported crime (Queensland Police Service, 2015a). The Organised Crime report (2015, p. 25) suggested that OMCGs
only accounted for 0.5 per cent of all persons charged with criminal offences throughout Queensland. In terms of total
criminality, the Wilson Report observed that ‘on any view of all the statistics, OMCGs account for a very small proportion
of the overall reported crime in Queensland—definitively, less than 1%’ (Taskforce on Organised Crime Legislation, 2016,
p. 15).
The reputation for being dominant organised crime players does not overly improve when organised crime type offences
are considered. OMCG involvement is insignificant in totality. Money laundering has rightly been considered the centre
of organised crime, yet RTI data indicated that no money laundering offence was proven against an OMCG member in
Queensland in the six years of data that were supplied. A snapshot of OMCG organised crime activity in Queensland
revealed that OMCGs could be described as low-level players. As a percentage of overall reported offences for the
period, OMCGs make an insignificant contribution. A Danish study noted that OMCG-related crime had little influence
on the overall crime rate account—between 1.2 to 1.6 per cent of crime resulting in conviction in Denmark (Klement,
2016a).
3 To evaluate the usefulness of the Vicious Lawless Association Disestablishment Act 2013’s provisions and determine the level of
OMCGs’ criminality, the author requested data from the Queensland government under the legislative framework of the
Queensland Right to Information Act 2009.
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The data clearly suggest that OMCGs are not ‘major players’. Such a claim is supported by a 2019 study demonstrating
that the rate of offending of Queensland OMCG members generally did not satisfy the criteria for being classified as
organised crime (Lauchs & Staines, 2019).
6.4 THE ROLE OF THE GANG STRUCTURE IN CRIMINAL ENTERPRISE S
The ACC noted that ‘most OMCG chapters do not engage in organised crime as a collective unit. Rather, their threat
arises from small numbers of members conspiring with other criminals for a common purpose’ (Australian Crime
Commission, 2015c, p. 1). A study of Queensland OMCG members concluded that ‘there is no evidence that office
holders were using their position to direct OMCG members to commit serious offences and nor did they run their
operations within the club’ (Lauchs & Staines, 2019, p. 85). Indeed, as another study noted, it is wrong to assume that
all OMCG members are engaged in serious offending (Monterosso, 2018). Such findings are not necessarily new
knowledge. Project Krystal was a strategic assessment of organised crime in Queensland that was conducted in 1999 by
the Queensland Crime Commission and QPS. It discovered the following:
With few exceptions, a review of significant national and state assessments of the alleged criminal
activities of OMCGs indicates that what has, in fact, been brought to light are the criminal activities
of individual members of OMCGs rather than the activities of the group as a whole. In other words,
the assessments suggest that OMCG memberships include individual criminals and not that
OMCGs commit offences as a criminal group. (Wilson, 2015, p. 28)
The individuals within the group are seemingly not engaged as a collective group in organised crime activity; they are
rather more likely to conspire with other criminal groups as individuals and freelance for common criminal purposes
(Monterosso, 2018). An analysis of the Gold Coast chapter of the Finks OMCG argued that, based on police records, the
‘chapter was not a criminal organisation. The office bearers did not use their position to direct criminal activity’ (Lauchs,
2019a, p. 297). One Danish study noted that a core group within the studied OMCGs was responsible for most of the
crime committed by its members. In this study, the most criminally active members of the gang (5 per cent) were
responsible for between 27 to 32 pe cent of all OMCG convictions (Klement, 2016a, p. 145).
Of course, for the issue of criminal convictions to be relevant to OMCGs, a causal connection must exist between the
conviction and the gang. It has been noted in a study of Norwegian OMCG members that many of the convictions had
no link to gang activity (Bjørgo, 2019). Based on the limited offending of OMCGs, the Queensland Organised Crime
Report recommended a change in focus for the QPS:
The Queensland Police Service extend the focus of its policing strategies beyond outlaw motorcycle
gangs to other areas of organised crime that pose a risk to Queensland. (Queensland Organised
Crime Commission of Inquiry, 2015, p. 26)
A crucial aspect of justifying the focus on OMCGs and tough anti-association laws is that authorities must be able to say
that most of those associating are criminals. One of the strongest arguments that supported the Newman LNP
government’s crackdown was that all OMCGs are supposedly hardened criminals. International studies have notably
shown that not all members of OMCGs have criminal records (von Lampe, 2019).
RTI data as at April 2014 provides a more accurate depiction of criminality within Queensland OMCGs.4 These data show
that most bikers in most clubs have no criminal histories. If all OMCGs listed in the government data were included, then
approximately 60 per cent of members are shown to have no criminal histories (histories of traffic and simple offences
were excluded). The highest level of criminality is limited to just two clubs: the Bandidos and the Lone Wolves. Several
of the clubs that were proscribed by the former Queensland Vicious Lawless Association Disestablishment Act 2013
4 Data were obtained under RTI from information presented by the Premier’s Office during a roundtable on the VLAD laws regarding
the level of criminality of Queensland OMCG members. This information was extracted from QPS data. The author was a participant
of the roundtable.
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To convince the public of the threat—and of the subsequent need for the unparalleled laws to counter it—the Newman
government engaged in a vigorous public relations campaign that aimed to demonstrate the menace of the criminal
threat. However, this threat was often overstated, as noted by the Wilson Report:
Variations in what should be uncontentious matters like OMCG member arrest rates were
surprising. Figures provided by senior police officers to the media were shown, on analysis, to be
exaggerated (but, in circumstances where that exaggeration may well have been inadvertent).
(Taskforce on Organised Crime Legislation, 2016, p. 8)
After declaring the OMCGs criminal organisations for the purpose of the VLAD laws, the Queensland Police and Newman
government attempted to reconfigure their language to help with their public relations messaging. They replaced the
term ‘OMCG’ with the term ‘criminal motorcycle gang (CMG)’. The QPS attempted, but failed, to convince other states
and bodies, such as CrimTrac, to adopt this nomenclature5. With the demise of the Newman government, the new Labor
government restored a policy that involved referring to the groups as OMCGs again, so that it could be realigned with
other states and authorities (Robertson, 2015).
A copy of the interim report to the Queensland Security Committee in 2014 obtained under RTI highlights the
importance of media strategies when handling OMCGs. One key performance indicator of the strategy for eliminating
OMCGs related to the community’s confidence that the government was successfully managing the OMCG threat. This
key indicator was articulated through an engagement line of operation that aimed to shape the environment so that
community support, understanding and cooperation were ensured for the actions that law enforcement agencies would
take to eliminate OMCGs in Queensland. The report noted that:
Targeted public relations strategies including background briefing journalists and better
coordination of government messaging have seen a reduction in the level of negative media
articles throughout February and March 2014.
An analysis of media reports on the biker war by The Courier Mail and its weekend News Corp stablemate, The Sunday
Mail, over a two-month period revealed that 60 per cent of stories had a police perspective, while only 20 per cent had
independent input (Goldsworthy, 2015).
To quantify the presence of OMCG stories in the media, a search of the Factiva database6 was conducted for the terms
‘bikie/outlaw motorcycle gang/OMCG’ during the period 1 January 2014 to 24 September 2019. It returned a total of
3,614 results for Australia. Figure 2 shows that Queensland and NSW are the most prominent states in terms of the
number of media stories relating to OMCGs. The ACT had the second least amount of OMCG media mentions, second
only to the Northern Territory.
5 The author attended a roundtable meeting at the Premiers Office of stakeholders in relation to issues surrounding the war on bikers;
this topic of nomenclature and failure to adopt it was discussed. 6 Factiva is a major global interdisciplinary newspaper, magazine and newswire database that enables the retrieval of current and
older full-text articles from a wide selection of international and Australian sources. Extensive company information is provided,
including financial data for more than 42,000 worldwide companies, as well as access to historical market data and interactive
charting.
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Figure 2: Factiva Search for OMCG Media Stories by State between January 2014 and September 2019
0
200
400
600
800
1000
1200
1400
ACT VIC NSW QLD NT WA SA TAS
Nu
mb
er
State
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SECTION 7—CONSORTING LAWS IN AUSTRALIA
7.1 THE HISTORY OF CONSORTING LAWS IN AUSTRALIA
Australia has the freedoms that most people associate with a Western democracy. However, Australian state and territory
governments have moved towards anti-association, criminal association or consorting laws as a means of managing
crime in the fight against organised crime, particularly in relation to OMCGs. As noted by the NSW Ombudsman:
In the past decade, there has been a growing concern nationally about the operation of organised
crime and criminal gangs, including Outlaw Motorcycle Gangs (OMCGs). In NSW, there has been
a series of legislative responses that increase the number of tools and strategies available to police
to tackle organised crime and criminal gangs. (Ombudsman New South Wales 2016, p. 13)
In regard to consorting or anti-association laws, there are three main categories of laws that aim to prevent members
of organised crime groups from associating with each other:
• criminal laws, which make it an offence for any person (other than legitimate business associates and family
members) to associate with, or participate in, an organised crime group; this is the basis of the South Australian
approach
• civil orders, such as control orders or restraining type orders, which apply to a specific individual and may state
that the individual must not associate with a group or with other named persons, making it a criminal offence
to breach the order; this approach has been adopted in the UK, Canada, New South Wales and South Australia
• criminal laws with specific offences for certain activities that occur within organised crime groups, such as
racketeering (as in the US model) or directing a criminal group (as in Canada) (Commonwealth of Australia, 2009,
p. 55).
This review will focus on the criminal law aspect of such laws. Every state and territory, except the ACT, has introduced
some form of these restrictive consorting laws. In its most basic form, consorting has been described as:
Consorting is the offence of association with criminals. In broad terms, the offence functions to
criminalise an individual who associates (for any reason, not for a criminal purpose) with another
individual who is a criminal, and the degree of association is sufficient to be ‘habitual’. (Loughnan,
2009, p. 8)
There has been much debate regarding whether they are an effective method for combating organised crime. Several
forms of ‘criminal association’ or ‘anti-biker’ laws have been introduced in Australian jurisdictions, and the High Court
decisions upholding their constitutionality will ensure that they remain part of Australia’s justice landscape7. The anti-
association laws enacted in Queensland are similar to those enacted in other states, as well as overseas in countries such
as New Zealand, Canada and the Netherlands (Cash, 2012). Consorting laws are not a modern invention: ‘Consorting
offences are not a new phenomenon, though. They are creatures of statute that emerged early last century in legislation
regulating vagrancy’ (McLeod, 2013, p. 104).
While the various forms of these laws claim to not target any specific groups and that they can theoretically be applied
generally, there appears to be a focus on ‘criminal gangs’ or OMCGs. Indeed, one study reported that by 2015, more
7 The New South Wales consorting laws were unsuccessfully challenged in Tajjour v. New South Wales [2014] HCA 35. By majority, the
High Court upheld the validity of consorting laws. The Court accepted that the provision effectively burdens the implied freedom
of communication regarding government and political matters. But the majority of the Court held that the consorting law was not
invalid because it is reasonably appropriate and adapted, or proportionate, to serve the legitimate end of the prevention of crime
in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative government.
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than 30 pieces of legislation were passed by Australian states or territories, with a focus on addressing the activities of
OMCGs (Lauchs, 2019a). When introducing new consorting laws in Victoria in 2015, the Labor government stated that:
Outlaw motorcycle gangs are the target of new consorting laws to be introduced in Parliament
this week which will give Victoria Police stronger powers to target criminal networks … We will
find them out, stop them in their tracks and keep Victorians safe. (Victorian Government, 2015).
For example, the Queensland government extended its push against organised crime by implementing a series of
additional laws in 2013, that targeted criminal gang activity (the VLAD laws) in which only OMCGs were specifically
named as criminal groups. The VLAD laws enacted in 2013 were focused on the perceived organised crime threat of the
OMCGs. Then Attorney-General, Jarrod Bleijie, stated that:
Recent incidents on the Gold Coast have highlighted the threat criminal motorcycle gangs pose to
public safety. In response, this government has promised to act quickly to enact new laws aimed
at removing criminal motorcycle gangs and organised crime from Queensland. (Queensland
Parliament, 2013a, p. 3115)
South Australia introduced laws that were similar to Queensland’s VLAD laws in 2015. At the time, the state Attorney-
General, John Rau, argued that these laws target organised crime (ABC News, 2015). Legislation such as Queensland’s
anti-association Criminal Organisation Act 2009 was clearly aimed at OMCGs, as demonstrated by the reading of the bill
into parliament.
Members of outlaw motorcycle gangs and other criminal organisations have been involved in
activities such as attempted murder, extortion, drug manufacturing and distribution and pose a
threat to Queensland. In response to outlaw motorcycle gang violence in southern states, other
states and territories around Australia have passed legislation aimed at disrupting the activities of
criminal organisations. The extraordinary powers provided for in this bill are necessary.
(Queensland Parliament, 2009, p. 3029)
It has been noted that OMCGs have been targeted by legislation both here in Australia and overseas in Europe, the US
and Canada on the premise that they are involved in organised crime (Lauchs, 2019a; Lauchs & Staines, 2019; McLeod,
2013; Sarre, 2013). The Queensland police created two dedicated taskforces of several hundred police members to target
OMCGs in the aftermath of the 2013 OMCG brawl: Taskforce Takeback was a component consisting of 100 uniformed
officers that targeted OMCG members from day to day, while Taskforce Maxima consisted of 100 detectives who
conducted long-term investigations into OMCG members (Kane, 2015; Weston, 2016). The creation of these two
taskforces reflects a similar experience in Canada, in which authorities responded to OMCG criminality not only with
criminal association laws, but also by increasing the detective personnel from three to 130 officers (Monterosso, 2018).
7.2 MORAL PANIC AND THE JUSTIFICATION FOR CONSORTING LAWS
Australian governments have in recent years responded to the moral panic resulting from highly visible groups
committing violent criminal acts in public. In political terms, reacting strongly to this perceived challenge to crime control
provides a popular public platform for any government to extend its crime-fighting credentials. The legislative reactions
to these perceived criminal challenges have been both punitive and populist from a penal perspective (Loughnan, 2009).
Certain comparisons have been made that have morphed the ‘war on terror’ into a ‘war on organised crime’, in which
OMCGS have been considered ‘organised criminals’ and ‘terrorists’ who threaten community safety and national security
(Martin, 2014).
Criminal anti-association and consorting laws are essentially a reaction to the moral panic that has arisen in response to
OMCGs’ highly public displays of violence. Cohen (2002) described moral panic as requiring public disquiet, significant
media attention, the demonising of a certain group and the state’s disproportionate reaction (as cited in Morgan,
Dagistanli & Martin, 2010). The problem is usually highly volatile, appearing quickly and then disappearing just as quickly.
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All the factors highlighted above can be considered present in the highly public episodes of OMCG violence. Examples
of this include the Finks OMCG’s mass attack on Hells Angels members at the Royal Pines Resort in the Gold Coast in
2006,8 Comancheros members murdering a Hells Angels member at the Sydney airport in 2009 and the Gold Coast
OMCG brawl in 2013. All three incidents attracted significant media attention and subsequent calls from the public for
tougher action against OMCGs. It is worth noting that much OMCG violence, even when conducted in public, is inter or
Is this moral panic justified? This is a crucial question that can only be answered by examining empirical data. Most
OMCGs perceive that they are deviant groups engaging in non-conformist behaviour (Barker, 2005). Perceptions such
as this are reinforced by generalised statements for authorities that depict a picture with little evidence to support it.
This can be observed in the comments of a South Australian police superintendent:
Bikies and their associates have become major players in today’s drugs trade, and other criminal
communities, right across Australia. Today, being a member of an outlaw motorcycle gang is no
longer only about motor bikes, it is about generating power and money, and lots of it. (Bray, 2010,
p. 19)
In October 2019, a senior detective made the following comment in relation to the shooting homicide of a member of
the Comancheros in the Gold Coast:
Certainly this gentleman is a member of the Comanchero, bikie lifestyle carries its own risk. Anyone
who thinks a bikie is a motorcycle enthusiast is kidding themselves—they are criminals and
criminal behaviour is hazardous. (McMahon & Payne, 2019, p. 1)
However, there was no link between the death and the OMCG membership. The problems embedded in this kind of
statement are obvious; the data clearly informs us that OMCG members are not all criminals, that OMCGs generally do
not conduct criminal activity within the auspices of the gang and that being a criminal does not mean that one should
be treated any less as a victim.
It is because of this high profile that OMCGs have been the target of specific criminal organisation and consorting laws
(Ayling, 2011, 2014; Monterosso, 2018; Sarre, 2013). The community’s perception of crime is an important performance
indicator for any police service. For example, the QPS nominates the level of community confidence and satisfaction with
police performance as two of its key performance indicators in its strategic plan (Queensland Police Service, 2015b). The
perception of a law enforcement agency’s ability to effectively handle a real or otherwise threat such as OMCGs is vitally
important for maintaining the community’s confidence.
When faced with moral panic, it is often the knee jerk reaction of governments to enact draconian laws that have little
real practical value. This position is similar to the ‘do something’ mentality that permeates society in the face of a threat
causing moral panic (Katz, 2011). It also allows governments to create an expressive or symbolic piece of legislation that
demonstrates they are addressing the problem (Ayling, 2014). To some extent, political expediency overtakes good law
making and effective law enforcement. This serves two benefits, the first being that the government can claim that it is
actively addressing the issue, and the second being that the government can valuably claim that it has the toughest
policy or legislation for dealing with the crime. With the introduction of a new consorting law in September 2018, the
Tasmanian minister for police claimed that:
The Hodgman Liberal Government has a tough on crime approach and we are committed to
keeping our state safe. That’s why we are continuing to give police the tools they need to crack
down on Outlaw Motorcycle Gangs. (Ferguson, 2018, p. 1).
8 The author was the senior detective responsible for the initial investigative response in relation to this incident.
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Such sentiment is echoed by the Queensland Police minister in his defence of the existing consorting laws: ‘What I can
guarantee under our strong, tough laws is that our police have the powers to disrupt consorting and other associations
that bikies have’ (Queensland Parliament, 2019, p. 526).
Queensland offers an interesting insight into the political thought process of enacting laws such as these. A cursory
examination of media articles highlights a range of critical comments from the former LNP government regarding
association laws while in opposition and before the Newman government came to power in 2012. The remarkable aspect
of this is that although some of the LNP comments may have been made in opposition, where it is commonplace to
critique all the government of the day does, the former LNP government continued to criticise association laws that were
in effect after coming into office.
It is notable that while in opposition, the LNP actively engaged with potential targets of the Criminal Organisations Act
2009 (COA) legislation, as proposed by the Bligh Labor government. It had meetings with representative groups such as
the United Motorcycle Council of Queensland and publicly voiced its opposition to the laws on the grounds that they
would be ineffective and bestow too much power to the police (Shand, 2009). The rejection of these laws was a platform
that the LNP used in the election in 2012. It subsequently won an overwhelming majority in Queensland’s Parliament.
This accords with the notion that the public expects to be involved in the decision processes that decide its laws (Ayling,
2013). This may also explain why the RTI data that were obtained showed that in early 2014, some 66 per cent of survey
participants9 did not support, or had concerns about, the VLAD laws after they were introduced by the LNP in 2013 in
response to the Gold Coast biker brawl.
The attacks on the COA legislation continued once the LNP gained office, when Attorney-General Jarrod Bleijie described
the laws as stamping on the civil liberties of people: ‘It is not anti-bikie laws but anti-association laws’ (Scott, 2012, p.
15). Bleijie described the laws as being ineffective in dealing with organised crime: ‘The Newman government does not
think anti-association laws are the right way to deal with rogue bikie gangs and other organised crime syndicates’ (Hurst,
2012, p. 1). When members of rival OMCGs engaged in a gunfight in a crowded Robina shopping centre, resulting in an
innocent civilian being wounded, Queensland Premier Campbell Newman made the following statement regarding the
criminal association laws: ‘That is just here and now as a stop-gap until we get the chance to go to Parliament and really
do some good there’ (Helbig, 2012, p. 1).
The Gold Coast tourist mecca in Queensland was the test case in the national battle against organised crime, and
particularly against OMCGs. The VLAD laws were introduced in response to an OMCG brawl in the Broadbeach restaurant
precinct in the Gold Coast in September 2013 (Australian Crime Commission, 2015b). An unprecedented media storm
ensued; to some extent, the audacious actions of the OMCGs in allegedly laying siege to a police station propelled this
incident and OMCG behaviour to new heights of public attention. The stage was set for the Queensland government to
use the incident as a catalyst for introducing much more draconian anti-gang laws in addition to the anti-association
laws that were already available under COA. The VLAD laws and amendments were comprehensive and affected
numerous existing pieces of legislation, as well as introduced new ones (Queensland Government, 2014).
Other states’ efforts to combat organised crime have failed to withstand the legal challenges to their criminal
organisation and association laws. However, the Queensland criminal association legislation—both the COA10 and
VLAD11 laws association offences that were contained within the Criminal Code—withstood High Court challenges. The
9 RTI data were obtained from the Queensland government from a survey conducted by Schottler Consulting of 1,200 respondents to
gauge community awareness and attitudes to VLAD laws at the beginning of 2014. 10 The COA was unsuccessfully challenged in Assistant Commissioner Michael James Condon v. Pompano Pty Ltd and Anor [2013] HCA
7. The High Court upheld the validity of the provisions. The Court held that while the provisions may depart from the usual incidents
of procedure and judicial process, the Supreme Court nonetheless retains its capacity to act fairly and impartially. The Court held
that the provisions do not impair the essential characteristics of the Supreme Court, nor its continued institutional integrity. 11 Kuczborski v. the State of Queensland [2014] HCA 46; this matter was unsuccessful in challenging the VLAD laws. By majority, the
Court rejected a challenge to the validity of certain provisions of the Criminal Code. The plaintiff argued that the laws creating the
new offences in the Criminal Code impermissibly enlisted the Court to give effect to the Parliament or executive's intention to
destroy criminal organisations. This argument was not accepted. The majority of the Court held that these laws did not require the
courts to proceed otherwise than in accordance with the processes that are understood to characterise the exercise of judicial
power.
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essential difference between the COA and VLAD laws were that the former provided anti-association offences upon
application to a court and a subsequent finding against the organisation, while the latter relied on declarations of
criminal organisation being made by the Attorney-General to facilitate the anti-association offences.
The Queensland Government (2014) claimed that the proposed laws would achieve the disruption of OMCGs. The
amendments to the Criminal Code created three new offences of association, as well as prescribed 26 organisations to
be criminal organisations. These organisations are all recognised OMCGs. Perhaps the most concerning of the new
legislative measures that were established under the VLAD laws were the mandatory sentences that stipulated that for
certain declared offences, a member of an association could face extra punishment. The Queensland legislation was
based heavily on this platform of being a response to a credible organised crime threat. The explanatory notes to the
bill for the COA argued that organised crime poses a significant threat and that the legislation provided an alternative
mechanism for combating this (Queensland Government, 2009):
The structure and methods of organised crime pose a challenge to the criminal justice system
which is generally designed to prosecute and punish isolated crimes committed by individuals. A
successful prosecution of one or even more members of an organisation may have little effect on
the criminal operations of the organisation as a whole. Further, successful prosecutions of
organised criminal groups may be hindered by intimidation and violence towards witnesses and
investigators. (Queensland Parliament, 2009, p. 3030)
When enacting the 2013 VLAD laws, the then Attorney-General introduced the bill to parliament in the following terms:
I am pleased to introduce the Criminal Law (Criminal Organisations Disruption) Amendment Bill
2013. After a violent confrontation between two criminal motorcycle gangs recently occurring in
Broadbeach, the government vowed that we would act swiftly and decisively to ensure the
community is protected from these vicious, violent thugs… The reforms contained in the bill require
urgent passage as they are crucial to disrupting the activities of criminal motorcycle gangs who
are a serious threat to community safety in Queensland. The incident at Broadbeach on Friday two
weeks ago drew a line in the sand for criminal motorcycle gangs in Queensland. We said as a
government, ‘Enough is enough.’ When criminal motorcycle gang members are so bold as to go
to a restaurant or cafe at Broadbeach in front of victims and innocent individuals, we have to act
tough. That is why we fully acknowledge and appreciate that the three bills that I have introduced
in the Assembly this afternoon are very tough measures, but warranted in all the circumstances.
(Queensland Parliament, 2013b, p. 3157)
Addressing organised crime was not mentioned at all. However, in the explanatory note to the bill, the purpose of the
legislative amendments was framed as addressing organised crime:12
On 28 September 2013, in the wake of violence at Broadbeach involving criminal motorcycle gangs, the
Queensland Government announced its commitment to:
1) Adopt a zero-tolerance crackdown on criminal gangs;
2) Provide whatever additional resources are necessary for the Queensland Police Service to carry out this
crackdown;
3) Introduce a range of tougher laws to tackle criminal gangs; and
4) Support any moves to have additional criminal gangs declared a ‘criminal organisation’ under the
Criminal Organisation Act 2009 …The Bill is aimed at ensuring the protection of the community by
making the establishment of organised crime in Queensland a difficult prospect.
12 Criminal Law (Criminal Organisations Disruption) amendment bill 2013, explanatory notes, page one.
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that they may be committing. The laws aim to pre-empt any criminal offences, which is considered problematic because
they target an individual on the notion that he or she may commit harmful acts in the future rather than for any actual
commission (Monterosso, 2018).
In fact, the consorting and anti-association laws are not concerned with stopping the commission of criminal acts. It is
important to note that neither the VLAD nor NSW consorting laws (which have now been adopted as the model in many
states) require any criminality or criminal purpose be attached to the association or consorting.
Policing people for who they are rather than the criminal activity they are performing poses certain other dangers. One
risk is that these types of laws will lead to inefficient policing, in which mere criminal intelligence or history instead of
proper evidence will be required to attribute criminal consequences.
There is also the risk of ineffectively using police resources in policing social relationships rather than in targeting criminal
activities. This raises the question regarding where the balance between ensuring public safety and individual human
rights lies (Lauchs, 2019a; Monterosso, 2018).
New South Wales had historical consorting laws (Sanders, 2013), but they were seldom used and fell into disuse. In some
ways, this reflects the Northern Territory’s more modern experience. The Territory enacted consorting laws in 2006 and
reviewed them in 2013, discovering that no-one had been prosecuted using this offence (Northern Territory Department
of the Attorney-General and Justice, 2013). In 2005, Queensland repealed its consorting offence due to the provision’s
archaic nature. The state desired to replace the offence with more modern and effective provisions that facilitated
community safety and public order. The then police minister, Judy Spence, described the replaced laws as being
‘ridiculous offences’ (Queensland Parliament, 2004, p. 2396).
New South Wales replaced its existing consorting laws in 2012. The state survived a High Court challenge in 2014,
although there were dissenting judgements regarding its validity. The new offence section was clearly aimed at organised
crime. In 2015, Victoria and South Australia enacted consorting laws under the pretext of combating organised crime.
As of 2019, only the ACT has no form of consorting law (see Table 12).
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2014 regarding the first 12 months of the laws’ operation. Despite having been designed to combat organised crime,
they were mostly used by general duties police (85 per cent), while detectives from specialist squads accounted for only
11 per cent of usage (Ombudsman New South Wales, 2014).
The NSW Ombudsman reviewed 1,247 persons whom the police targeted for ‘consorting; in the 2014 review. About
seven per cent of these persons were children and young people aged between 13 and 17 years old. Forty per cent of
all people subject to the consorting provisions in their first year of use were Indigenous, despite comprising only 2.5 per
cent of the population (Ombudsman New South Wales, 2014).
The review also highlighted the fallacy of the law being targeted at organised crime. An analysis of the criminal histories
of a select group (604 people) targeted by the laws revealed that:
• 24 per cent of those who were the subjects of official warnings issued by the specialist squads had a conviction
for a serious criminal offence
• 15 per cent of those who were the subject of official warnings issued by the local area commands had a
conviction for a serious criminal offence (Ombudsman New South Wales, 2014)
The Ombudsman has expressed concern regarding what types of offences are classified as serious criminal offences:
Defined in section 4 of the Crimes Act as one where a sentence of five years or more may apply.
While this definition includes the most serious criminal offences it also includes low value theft
and minor property damage. (Ombudsman New South Wales 2016, p. 82)
The 2016 review found that only 20 per cent of those persons who were subject to the consorting laws had a conviction
for ‘strictly indicatable offences which are the most serious class of criminal offences in NSW’ (Ombudsman New South
Wales 2016, p. 41). The review also found that 30 per cent of those persons who were subject to the laws had no
conviction for an indictable offence, and that 20 per cent had no convictions at all (Ombudsman New South Wales 2016).
Such concerns about targeting people who have no criminal histories have been raised in Queensland (Emery &
McMahon, 2019). The New South Wales review recommended that the consorting laws should be used to focus on
serious offending, and that they should be prohibited from being used to address minor or nuisance offending
(Ombudsman New South Wales 2016). The Ombudsman noted that:
Although the NSW Police Force has used the consorting law to disrupt serious and organised crime
and criminal gangs as intended by Parliament, it has also used the consorting law in a manner
that, to some extent, illustrated public concerns about its operation. (Ombudsman New South
Wales 2016, p. iii)
These figures highlight the lack of serious criminal activity exhibited by those who are targeted by the laws. The review
raised the crucial question regarding what gaps—if any—the consorting provisions filled that current laws and powers
did not already fill. Existing laws were already available for achieving what the consorting laws supposedly achieved—
but senior New South Wales police claimed that the laws were still necessary (Morri, 2016). Despite this, the Ombudsman
noted that ‘the consorting law provides police with an additional tool to disrupt serious crime that currently appears to
be effective, particularly in the context of the policing of high-risk OMCGs’ (Ombudsman New South Wales 2016, p. 115).
The Ombudsman also noted that even though it may be useful in combating OMCGs, ‘This breadth and flexibility mean
that the consorting law may be used lawfully to capture people who are participating in everyday, otherwise innocent,
social interactions in public spaces, or who are involved in only minor or nuisance offending’ (Ombudsman New South
Wales, 2016, p. 116).
In terms of targeting OMCGs, the 2016 report noted that in situations in which more than five people were subject to
the consorting laws, OMCGs accounted for 11 of the 17 incidents (Ombudsman New South Wales, 2016, p. 31). The New
South Wales gang squad indicated that the most common scenarios for intercepting OMCG members were when they
were together in a vehicle or on motorbikes (n–56), when they were in public places such as restaurants or licenced
premises (n–50) or when they were in their alleged club houses (n–18) (Ombudsman New South Wales, 2016, p. 33).
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One of the strongest claims made by law enforcement agencies in support of the consorting laws is that the consorting
laws allow for the ‘disruption’ of OMCGs. This aspect of disruption seemingly focuses on the physical ability of separating
OMCG members. However, there is not necessarily any attached criminality to the meetings being ‘disrupted’. It is also
a feature in the Queensland scenario that the ethos is to ‘isolate’ OMCG members, which will affect the targeted OMCGs’
level of criminal activity. When introducing its consorting laws, the Victorian government highlighted that ‘these anti-
consorting reforms give police the powers they need to disrupt and dismantle criminal gangs’ (Victorian Government,
2015, p. 1). It is tenuous that the breaking up of incidents of association with no obvious criminality or criminal purpose
will directly affect the disruption of serious and organised crime. No quantitative evidence has been offered to
substantiate such claims.
Legislation such as Queensland’s anti-association COA were clearly aimed at OMCGs, as demonstrated by the reading
of the bill into Parliament:
Members of outlaw motorcycle gangs and other criminal organisations have been involved in
activities such as attempted murder, extortion, drug manufacturing and distribution and pose a
threat to Queensland. In response to outlaw motorcycle gang violence in southern states, other
states and territories around Australia have passed legislation aimed at disrupting the activities of
criminal organisations. The extraordinary powers provided for in this bill are necessary.
(Queensland Parliament, 2009, p. 3029)
Despite this, during eight years of operation of the COA, not one OMCG was subject to the courts making a declaration
against them. Only one application was made by the QPS, which was against the Gold Coast chapter of the Finks OMCG.
The application was withdrawn before the court could make its determination. The reasons for this would seemingly be
due to the VLAD laws that prescribed that the Finks were a criminal organisation, as well as the wish to avoid
embarrassment should the courts not find in favour of the QPS and reject such a declaration under the COA provisions.
The Queensland VLAD laws had certain aims in relation to OMCGs, which then Attorney-General Jarrod Bleijie stated in
the following:
We are drawing the line on criminal motorcycle gangs in Queensland … The bill is intended to
deter individuals from participating in these criminal organisations, encourage persons involved
in such organisations to cooperate with law enforcement to avoid severe penalties, and break the
morale of members in criminal motorcycle gangs. (Queensland Parliament, 2013a, p. 3115)
When making submissions to the two Queensland inquiries, the QPS observed that despite the VLAD laws being enacted
for almost two years, the problem for which they were created—OMCG issues—had not been solved (Queensland Police
Service, 2015b, p. 2).
The success and the necessity of laws such as the VLAD laws can be broken down into a few simple propositions.
Queensland police credited the new biker laws with a reduction in reported crime during the period 2013–2014
(Houghton, 2014). However, no explanation was provided when the overall crime rate increased, despite the anti-
biker/consorting laws still being enacted. In the period 2014–2015, the overall crime rate increased by one per cent; it
rose by six per cent from 2015 to 2016; it rose by two per cent in the period 2016 to 2017; it had a one per cent decrease
from 2017 to 2018; and it had a two per cent increase in the period 2018 to 2019 (Queensland Police Service, 2019). The
Queensland example highlights how consorting laws such as this one cannot be held responsible for any increase or
decrease in a state’s overall crime rate.
In their submission to the Wilson Review, the QPS argued that:
Importantly however, the QPS considers that the increased focus on organised crime groups also
corresponds with some particular crime rates reducing at much larger rates, with the VLAD laws
contributing to the overall reduction. (Queensland Police Service, 2015d, p. 1)
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However, in 2015, when the effect of the VLAD laws on overall crime was addressed to the Queensland Police
Commissioner, Ian Stewart, he stated that:
I can't answer that question specifically … The VLAD Laws have not been used very often, although
we have invoked them. They are the laws of this state and we will continue to use whatever lawful
means we have to take action against organised crime, including outlaw motorcycle gangs. (Silva,
2015, p. 1)
One purpose of the VLAD laws was to convince criminal networks to inform on themselves to avoid the imposition of
mandatory sentences. Data show that 92 per cent of people charged under the VLAD mandatory sentencing provision
did not provide a statement to the QPS regarding their criminal network (Queensland Police Service, 2015c). This would
seemingly indicate the ineffectiveness of this form of incentive. Only 20 of the 100 persons charged as of July 2015 in
light of the mandatory sentencing provisions were OMCG members (Queensland Police Service, 2015c).
In terms of targeting OMCGs, the Wilson Report indicated the following data about persons who were charged under
the VLAD mandatory sentencing provisions as of December 2015: ‘Of those 202 people charged, 10.4% are members of
OMCGs and 7.4% are associates of OMCGs, 82.2% have no known linkage to OMCGs’ (Taskforce on Organised Crime
Legislation, 2016, p. 216). Only two people had been convicted under the VLAD mandatory sentencing provisions, both
of whom received five years’ prison terms (Taskforce on Organised Crime Legislation, 2016)
Regarding the criminal association offences, the lack of successful convictions after the VLAD laws had been enacted
was concerning.
Queensland Courts advised the Taskforce that between 17 October 2013 and 31 January 2016, 42
persons were charged with the anti-association offence … No person has been successfully
prosecuted under the anti-association offence. (Taskforce on Organised Crime Legislation, 2016,
p. 171)
This lack of success was highlighted in the Queensland Parliament’s report on the Serious and Organised Crime
Legislation Amendment Bill 2016, which was intended to repeal and replace the VLAD laws:
Conversely, despite not one conviction delivered under the LNP government on the intended laws
under their VLAD Act, which was primarily directed at outlaw motorcycle club gangs, the Labor
government’s laws shall stand up in court and cast the net greater than just OMCG’s. (Queensland
Parliament, 2016, p. 5)
The Serious and Organised Crime legislation Amendment Act 2016 amended some 33 pieces of legislation and introduced
a whole suite of measures that were designed to fight serious and organised crime. The following key initiatives in stage
one were introduced in December 2017:
• a new ‘Colours’ offence in sections 10C(1) and (2) of the Summary Offences Act 2005
• the inclusion of a new post-conviction control orders scheme in the Penalties and Sentences Act 1992 (PSA)
• serious organised crime circumstance of aggravation in section 161R of the PSA
• occupational licensing reforms across numerous acts that involve the QPS.
Stage two of the amendments that commenced in March 2017 included the following key initiatives:
• a new offence for habitual consorting with recognised offenders in section 77B of the Criminal Code
• the inclusion of a new public safety order scheme that comprises restricted premises, fortification removal and
public safety orders (including short-term commissioned safety orders that are issued by officers) in the Peace
and Good Behaviour Act 1982.
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Despite being introduced in 2016, Queensland’s new consorting laws (modelled on New South Wales’s laws) appear no
more successful. As of May 2019, more than 1,000 consorting notices had been issued in Queensland (Stolz, 2019).
However, during the question time in Parliament, the Queensland Attorney-General admitted that as of May 2019, only
two offenders had been found guilty under the new consorting offences, who had both received non-custodial outcomes
(Stolz, 2019).
Another problematic development of the new Queensland laws is a high-profile case13 in the Gold Coast, in which the
defendant was found not guilty. The matter failed on two grounds, the first of which being the magistrate discovering
that the warning notice was not compliant with legislation, as the notice had contained the names of multiple associates
rather than a single associate. The second ground for dismissing the charge was that although the magistrate accepted
that the defendant had consorted, the QPS had failed to show that the defendant had habitually consorted. The
Magistrate noted:
Whilst section 77B of the Criminal Code provides that a person does not habitually consort with a
recognised offender unless they consort with the offender on at least two occasions, that is not a
definition of habitually consorting, but rather is a minimum requirement that must be met before
there can be a finding of habitual consorting.
The magistrate cited the High Court case of Tajjour v. New South Wales14 and noted that ‘the requirement that consorting
be habitual involved a continuance and permanence of some tendency, something that has developed into a propensity
that is present from day to day’. The matter has been subsequently appealed by the Queensland Attorney-General, with
the implication that hundreds of consorting notices that have been issued would be unenforceable.
In his 2017–2018 annual report, the Queensland public interest monitor (PIM) outlined that 708 consorting warnings
and directions were issued by the QPS (Public Interest Monitor, 2018). In the same period, five persons were charged
with habitual consorting under section 77B of the Criminal Code (Public Interest Monitor, 2018).
Although Queensland and New South Wales have been vigorous in their application and usage of the consorting laws,
this has not been the case in Victoria. Little to no use of the new consorting laws was noted in Victoria, with a Victorian
police spokeswoman indicating that as of July 2019 (almost four years after the laws’ introduction), ‘Victoria Police has
no recorded offences under the unlawful associations legislation’ (White, 2019, p. 1). This lack of use has been blamed
on the wording of the offence section. From January to August 2019, the Tasmanian Police have issued 186 consorting
warnings under their new consorting laws (Aquilina, 2019, p. 1).
One fundamental flaw in the anti-association laws is that they do not address a core motivation of organised crime:
profit (Monterosso, 2018). Although the consorting laws focus on the disruption or restrictions of associations, without
a requirement for criminality of purpose for the association being attached, it is highly unlikely that the consorting
enforcements will focus on the actual business of organised crime (making a profit). In this respect, the laws fail to
remove criminals’ motivation to engage in this conduct.
7.5 D ID ANTI-ASSOCIATION LAWS ALREADY EXIST?
One claim that politicians and police often repeat in justifying the new type of consorting laws is that they require these
new powers and investigative mechanism to combat the OMCGs. However, an examination of existing legislation reveals
that every state already had some legal mechanism for engaging in anti-association enforcement (see Table 13).
13 Queensland Police Service v. Harley Joe Barbaro (2019) QMC 1. 14 Tajjour v. New South Wales (2014) HCA 35
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criminal enterprise contributes to the popularity of current consorting laws as a perceived crime control measure for
serious and organised crime.
Conclusion
The effects of specific consorting laws on serious and organised crime are tenuous at best. Although the success of these
types of laws is mostly based on disruption, there is little evidence regarding what criminal activity is being disrupted.
Enforcing these generic laws demands significant police time and resources for little output in terms of sentencing
outcomes. Without a requirement of criminality being attached to the purpose of the consorting, it is difficult to argue
that such laws and their enforcement are successfully targeting serious and organised crime.
Having examined the overall aspects of OMCGs and consorting laws in Australia, the review will now focus on analysing
the criminal activity of OMCGs within the ACT.
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These membership figures are open to inflation due to the term ‘associate’, which is extremely broad in meaning. In
response to this ACT Policing (personal communication, 27 November 2019) indicated the below:
ACTP notes that the reference to figures being open to inflation does not reflect the fact that the
term ‘associate’ is used to capture individuals who are not fully patched members but are suspected
of either being in the process of becoming a patched member or are utilised by the group to
commit offences that benefit the group. ‘Associate’ is not used to capture individuals who are
merely acquainted with the group or its members but otherwise uninvolved in any of the suspected
criminal dealings of the group. Therefore if an individual is identified as an associate rather than
a member, they are still identified by police as contributing to the criminal enterprise of the OMCG.
Such an approach is problematic. For instance, if a member of an OMCG is conducting a criminal enterprise outside of
the knowledge of the gang and enlists the help of a non-member, then on the above argument that person would not
be an associate. In this scenario how is the “benefit” to the group determined, does the activity have to be sanctioned
by the particular gang or how many members in the gang have to know about the particular activity? Potentially, you
could be involved in the criminal dealings of a member of the gang, but not in the criminal dealings of the gang. Would
involvement with three members of a gang be enough to satisfy the about requirement? Such ambiguity is something
that would benefit by having a clearer definition as to what being an associate entails.
There has been no great expansion in OMCG membership in the ACT. In echoing the statement of Attorney-General
Gordon Ramsay and Police Minister Mick Gentleman, ‘While the number of bikie gangs in the ACT has increased since
the Rebel’s stranglehold on Canberra slipped in late 2014 […], the number of active gang members had not increased’
(Foden, 2019). Indeed, while the number of gangs increased from two to four between 2015 and 2019, the number of
OMCG ‘members and associates’ has decreased from 64 in 2015 to 51 in 2019 (about 20 per cent).
Figure 3: Numbers of Suspected OMCG Members and Associates in ACT with Trendline
Despite this, misrepresentations still exist regarding the current situation of OMCG membership in the ACT. In August
2018, the Australian Federal Police Association claimed that:
We know that there has been an influx of bikies into the ACT since the tough anti-consorting laws
have come into place in Queensland, New South Wales, Victoria and South Australia. And it has
been confirmed by ACT Policing that the ACT has four outlaw motorcycle gangs operating in
0
10
20
30
40
50
60
70
80
2015 2016 2017 2018 2019
Nu
mb
ers
of
susp
ecte
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In terms of the number of OMCG-related media stories, the data indicate a spike in mentions in 2017 and predict that
there will be another spike if the 2019 trend continues. OMCGs feature in media stories as the archetypal crime
organisation that is engaged in the worst of criminal activities. Such themes are indicated by claims such as ‘the
(Satudarah) gang is known for its extreme violence, drugs, extortion and weapons trafficking’ (Roberts, 2019).
A basic analysis of the top 10 subject matters that are contained within the stories indicates that gangs, criminal
enterprises and crime/legal actions are by far the most numerous themes for media stories.
Figure 5: Top 10 Subjects for OMCG Media Stories in the ACT between January 2014 and September 2019.
Sourced from Factiva
As the previous analysis has revealed, the media’s preoccupation and perceptions do not match the reality of the OMCGs’
criminality in the ACT.
Conclusion
In terms of the number of crimes that current members of OMCGs commit, they contribute less than 1 per cent of overall
reported crimes. In terms of the seriousness of the offences that OMCGs commit, although they do commit some serious
crimes, these types of offences are easily outweighed by minor offences in terms of the numbers committed. There has
also been no dramatic increase in the number OMCG members in the ACT.
0 10 20 30 40 50 60 70 80 90
Crime/Legal Action
Criminal Enterprises
Gangs
Assault
Political/General News
Drug Trafficking/Dealing
Domestic Politics
Murder/Manslaughter
Human Rights/Civil Liberties
Law Enforcement
Number
Su
bje
ct
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It is notable that of the charges given under this division, some 63 per cent (n = 22) met with a negative outcome
through dismissal, failure to proceed or being withdrawn. Such a rate of attrition is concerning—it would be valuable for
ACT Policing and the DPP to examine the circumstances that lead to the high attrition rate in these matters, and it would
also be valuable to consider the possible solutions for rendering the prosecutions in this division more effective.
9.2 THE CRIMES (SERIOUS AND ORGANISED CRIME) LEGISLATION AMENDMENT ACT
2016
The Crimes (Serious and Organised Crime) Legislation Amendment Act 2016 expanded the categories of offences that
can be subject to NAPROs when being sentenced for relevant offences. Such relevant offences are listed in section 23
of the Crimes Sentencing Act (2005). This act also modernised move-on powers to clarify their operation, and it sought
to provide ACT Policing with better tools for handling antisocial behaviours that can intimidate members of the public
or reasonably cause them to fear for their safety. The term ‘exclusion orders’ replaced move-on orders to better describe
the nature of the powers. The review particularly sought feedback regarding the effectiveness of, and any actions that
may be taken to, improve the current provisions relating to NAPROs.
NAPROs
In relation to NAPROs, the Justice and Community Safety Directorate (personal communication, 23 September 2019)
advised the following:
A breach of a NAPRO is a breach of a condition under an Intensive Corrections Order or Good
Behaviour Order. Under section 61 of the Crimes (Sentence Administration) Act 2005 a breach of
an ICO condition results in arrest, proceeding to a warning, suspension, and/or imprisonment
under section 64. Under section 108(2), a breach of a good behaviour order results in a warning,
amendment of the order, and/or re-sentencing. Though a breach of a NAPRO is not a criminal
offence, as outlined above there are serious consequences attached to a breach. However, as it’s
not a criminal offences breaches aren’t recorded by the Courts management system.
The review sought data in relation to NAPROs in the following terms: ‘Number NAPRO orders sought (successful and
unsuccessful) and on who (i.e., OMCG members and non-members and offences associated with the orders). Any data
relating to breaches of such orders.’ The search for data in relation to the usage of NAPROs proved to be problematic.
The Justice and Community Safety Directorate (personal communication, 19 September 2019) advised that
‘unfortunately, the DPP have advised that they do not have a record of the number and nature of NAPRO orders sought
and made’.
Part of the difficulty in obtaining records was also noted by the Justice and Community Safety Directorate (personal
communication, 23 September 2019): ‘An application for a NAPRO is an oral submission in Court—there is no
form/application. The only way we could find out this information is by manually going through the paper files and
seeing if the Magistrate/Judge has written any notes.’ Such a task was deemed overly resource intensive.
In relation to the requested data, ACT Policing advised the following in its submission:, ‘ACT Policing does not keep data
on NAPROs’. The Supreme Court advised the Justice and Community Safety Directorate (personal communication, 23
September 2019) that there is no data code for non-association orders in the Supreme Court and that the requested
information could thus not be provided. A representative from the Supreme Court advised:
I also note for the period 2015 to current I can only easily identify 2 matters containing non-
association specific conditions: 1 fully suspended sentence Good Behaviour Order issued in 2018;
and 1 Intensive Correction Order issued in 2017.
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The Justice and Community Safety Directorate (personal communication, 23 September 2019) identified the two
Supreme Court matters as R v. Bourne, R v. Manns18 and R v. Pattmann19. These two matters will be explored in the
following discussion.
The facts in R v. Bourne concerned the defendant Bourne, who plead guilty to the following charges:
• intentionally inflicting grievous bodily harm, contrary to s19 of the Crimes Act 1900 (ACT)
• accompanying demands with threats, contrary to s32 of the Crimes Act 1900 (ACT)
• trafficking in a controlled drug other than cannabis, contrary to s603(7) of the Criminal Code 2002 (ACT)
• receiving stolen property, contrary to s313 of the Criminal Code 2002 (ACT).
The facts indicated that Bourne had been a member of the Rebels OMCG. At the time of the offence, he was a member
of another OMCG, though no details relating to the gang’s name were supplied in the sentencing remarks. The offending
behaviour was drug activity–related, in relation to the OMCG that Bourne was a member of. The sentencing remarks
regarding the issue of the NAPRO have been redacted from the publicly available document.
However, Elkaim J observed the following in relation to the defendant, Bourne, at [22]: ‘It is apparent from the facts that
Mr Bourne’s criminal activities are closely linked to his membership of an Outlaw Motorcycle Gang’. Elkaim J further
noted at [24] that ‘it is impossible for a court to dictate to any person that he should or should not be a member of a
particular gang. Even sanctions against membership cannot deter a continuation of affiliations’. He also added at [27]
that:
The courts can and must send a general message to the community and, in particular, to those
persons within the community who might be contemplating membership of an Outlaw Motorcycle
Gang. They must be made aware that their descent into criminal behaviour will be swift and, when
apprehended, their punishment will be severe.
Elkaim J also noticed the comments of Burns J in a previous matter,20 in which concerns were highlighted in regard to
the continued association of the defendant with OMCGs. Burns’s J comments were quoted at [4]:
It is a matter of concern because it seems to me that, if you maintain those connections, there is
the risk that you may become involved in criminal offending in the future, it being notorious that
members of that organisation are from time to time involved in criminal offending, such that your
involvement with people who are part of that organisation leads to the risk that you may become
involved in such activity.
The matter of R v. Pattmann; R v Pattamann concerned a father and a son who were both members of the Rebels OMCG.
The father, Stephen Pattman, plead guilty to the charges listed below:
• endangering life by intentionally and unlawfully discharging a loaded arm to cause another person reasonable
apprehension for his or her safety, arising under s27(3)(d) of the Crimes Act 1900 (ACT).
• unauthorised possession of a prohibited firearm, contrary to s42(a)(iii) of the Firearms Act 1996 (ACT) (being a
modified double-barrelled, 12-gauge shotgun), and carrying a maximum penalty including 10 years
imprisonment.
• unauthorised possession of ammunition, contrary to s249 of the Firearms Act 1996 (ACT).
The son, Christopher Pattman, plead guilty to one offence of unauthorised possession of a prohibited firearm, also
arising under section 42(a)(iii) of the Firearms Act 1996 (ACT). The circumstances of the offences involved the father firing
a handgun down the street outside their house while arguing with another Rebels member about the father and son
18 R v. Bourne; R v Manns (2018) ACTSC 35. 19 R v. Pattmann; R v Pattmann (2017) ACTSC 331. 20 R v. Bourne (2014) ACTSC 401
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leaving the gang. Minor injuries were suffered by the other gang member. Justice Penfold noted the following
consideration when sentencing at [69]:
There is no doubt that general deterrence is a significant factor in this sentencing. I accept the
prosecutor's submissions to the general effect that drive-by or other shootings in public places
generate community concern, although I am not convinced that a public shooting with a link to a
motorcycle gang necessarily produces more community concern than any other form of public
shooting. I also agree that it is important to try to deter people from possessing firearms without
authority.
In sentencing Stephen Pattman, Penfold J created an intensive correction order with the following requirement at [89(b)]
‘that you do not associate with any person who you believe to be associated with an outlaw motorcycle gang’.
In general terms, the DDP submitted that the amended NAPRO regime is particularly useful for combating serious and
organised crime, especially in an OMCG context. The DDP submitted that:
The making of a NAPRO which prohibits convicted gang members from associating with other
gang members will assist in severing the offender’s links to their anti-social peers and influences,
and thus both promote the offender’s rehabilitation, and similarly reduce the risk of their
reoffending generally.
The DPP submitted that unlike most other Australian jurisdictions, the ACT does not have a legislative regime for civil-
based anti-consorting and non–association type orders. Non–association type orders for OMCGs are usually available in
other jurisdictions on the civil burden of proof (i.e., the balance of probabilities).21 NAPROs are only available incidental
to a criminal conviction in which offending has been proven beyond a reasonable doubt. NAPROs also differ significantly
from anti-consorting offences in that they apply to a narrow list of people who have been included in the order after an
exercise of judicial discretion.
The DPP outlined varied success that was found in seeking NAPROs for OMCGs. It noted that before a NAPRO can be
issued, a sentencing court must be satisfied, inter alia, and it is both necessary and reasonable to create a NAPRO to
stop further offending.22 The DPP offered the following advice:
The requirement that a NAPRO be necessary to prevent re-offending imposes a very high threshold
to such an order being made. Different judges have differing views as to when that threshold is
met. On a strict interpretation of the provision, a NAPRO will not be necessary unless it is critical
or indispensable23 in achieving one of the purposes for which they can be made. That presents an
almost impossible burden to satisfy.
Section 23(1)(b) of the Crimes (Sentencing) Act 2005 provides the following purposes for making a NAPRO:
b) the court is satisfied that it is necessary and reasonable to make the order for 1 or more of the following
purposes:
i) preventing the offender from harassing anyone or endangering the safety or welfare of anyone;
ii) preventing the offender from committing further offences (including a relevant offence);
iii) assisting the offender to manage things that may make the offender more likely to commit
further offences (including a relevant offence) if not managed.
21 For example, See section 51 of the Criminal Organisations Control Act 2012 (VIC); Section 32 Crimes (Criminal Organisation Control)
Act 2012 (NSW); Section of the Serious and Organised Crime (Control) Act 2008 (SA). 22 See subsection 23(1)(b) of the Crimes (Sentencing) Act 2005. 23 See the definition of ‘necessary’ in the Oxford English Dictionary.
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To highlight this issue, the DPP provided the example of R v. McCallum.24 In this matter, Murrell CJ indicated that if she
was to make an intensive corrections order in relation to the offender (who was a member of the Comanchero OMCG),
then she would be favourably disposed to make a NAPRO on the basis that the offender’s OMCG membership had
contributed to his offending behaviour, antisocial views and attitudes in a general sense, even though the offending in
that matter was not committed for and on behalf of the OMCG.
This approach was contrasted with that of Burns J in the appeal matter of Robb v. Uren.25 In that matter, the DPP noted
that the sentencing magistrate made an NAPRO at first instance in relation to a fully patched OMCG member who, while
in the company of another OMCG member, hit a man in a toilet and causing serious injury to him. On appeal, Burns J
accepted that the offender was an OMCG member, but then set aside the NAPRO on the basis that the offending was
not committed for the benefit of the OMCG.
The position of the DPP was that the chief justice’s approach was the preferred approach. In considering whether a
NAPRO should be made in relation to an OMCG member—or, indeed, a member of any criminal group or gang—the
DPP suggested that whether the offending was committed for, or on behalf of, the gang should not be essential. Rather,
the key consideration should be whether the offender’s gang membership is a contributing factor to their offending
behaviour generally.
The review had difficulty with this premise. If the offence cannot be directly linked to that person’s membership of an
OMCG, then what evidence can be trusted to attest that the gang was influential in causing the behaviour? Section Eight
of this review highlighted that much of the offending committed by OMCGs is not committed in the gang auspice, but
rather as an individual—one who is acting independently of a particular gang membership. In short, such behaviour is
not related to the gang or membership at all. There appears to be a generalisation that OMGC membership being a
causal factor for offending relies on the assumption that all OMCG members are criminal and that the gangs exist for
no other purpose than to facilitate criminal enterprises. It should be noted that the evidence does not support such
assertions. The fact that someone’s OMCG membership correlates with criminal behaviour does not signify that the
membership is the cause of that behaviour. Correlation does not equate to causation; specific evidence in relation to the
criminal act being committed for the purpose of the OMCG, or motivated by the OMCG membership, is required to
determine causation.
The DPP noted that in R v. Pishdari and Anor26, the South Australian Court of Criminal Appeals observed that an OMCG
membership, of itself and without more, suggests that a person is of bad character and that he or she has limited
prospects of rehabilitation. Zourakis CJ observed at [21]–[25] that:
As far as the issues of rehabilitation prospects and scope for leniency generally are concerned, I
make the following further observations.
Where an offender is a member, nominee or even an associate of an OMCG, in the case of the
latter where the person has some form of regular or ongoing association, the fact that the person
may have limited criminal antecedents will need to be considered in that context…Each of the
appellants, with the exception of Mitchell and Mackay, had relatively few serious criminal
antecedents and this remains a factor in their favour. However, the fact that a person is a member,
nominee or, depending on the circumstances, an associate of an OMCG may of itself support a
conclusion that he or she is of bad character with poor prospects for rehabilitation and an
enhanced need for personal deterrence and notwithstanding an otherwise moderate or good prior
criminal record.
The fact that a person is prepared to associate themself with and participate in the ethos and
activities of an OMCG says much about their character. It is common knowledge that many
24 R v. McCallum SCC 55 of 2019. 25 Robb v. Uren SCA 34 of 2019. 26 R v. Pishdari and Anor [2018] SASCFC 94; 274 A Crim R 91
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The Commission had previously expressed concerns about the lack of record keeping on the use of
move-on powers in the ACT, which made it difficult to assess whether they were being used
appropriately.
The ACT Law Society in their submission suggested that the grounds on which to justify an exclusion order should remain
as narrow as possible to ensure that they remain a proportionate means of maintaining public order. The ACT Law
Society recommended that a provision similar to section 27(3) of the Criminal Investigation Act 2006 (WA) be included
in the ACT exclusion order provisions:
When giving a person an order ... a police officer must take into account the likely effect of
the order on the person, including but not limited to the effect on the person's access to the
places where he or she usually resides, shops and works, and to transport, health, education or
other essential services.
The ACT Law Society argued that such a provision could ensure that exclusion orders would not operate to unfairly
exclude a person from areas in which they live or work, or from access to necessary services. Such an inclusion has merit.
9.3 THE CRIMES (POLICE POWERS AND FIREARMS OFFENCE) AMENDMENT ACT 2017
In 2017, the ACT introduced a specific offence to capture drive-by shootings under section 28B of the Crimes Act 1900
(ACT). Such offences were the subject of critical media attention:
The ACT community had been ‘put in harm's way by OMCG (outlaw motorcycle gang) members
who have planned and performed drive-by shootings, violent home invasions, assaults and arsons’
(Brewer, 2019b, p. 1)
Before implementing this legislation, the ACT did not ‘adequately cover the seriousness of an act of discharging a firearm
into a building or conveyance’ (Ramsey, 2017, p. 1). For example:
An act of endangering life under the Crimes Act 1900 (the Crimes Act) requires the offender to
discharge a loaded firearm at another person, so as to cause another person reasonable
apprehension for his or her safety. If a drive by shooting takes place and there is no one inside the
premises the offence can be difficult to make out. Equally if the victim is a member of an outlaw
motorcycle gang (OMCG) or other criminal organisation they may not admit to feeling
apprehension for their safety. An act endangering life is punishable by ten years imprisonment. At
the other end of the spectrum summary offences exist under the Firearms Act 1996 (The Firearms
Act) for discharging a firearm in a public place (punishable by 12 months imprisonment) and for
discharging a firearm on leased (private) land without written consent (punishable by 6 months
imprisonment). These offences are aimed at the regulation of the safe and responsible use of
firearms by licensed firearm owners and the penalties applicable reflect that purpose. (Ramsey,
2017, pp. 1–2)
The new offence pertains to people ‘shooting at a building; including homes; whether from a car or otherwise’ (Ramsey,
2017, p. 2). An important new component of this amendment was that ‘a person does not need to be the target of the
shooting nor does a person need to have been injured for the offence to apply’ (Ramsey, 2017, p. 2). The offence is
punishable by a maximum of 10 years imprisonment, which is the same penalty as for other acts that endanger life. In
their submission, the ACTHRC stated that:
The Commission is satisfied that the offence for ‘drive by shooting’, which was introduced by the
Crimes (Police Powers and Firearms Offence) Amendment Act 2017, is a targeted measure that
addresses a specific omission in the statute book, and is unlikely to give rise to any human rights
concerns.
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The ACT Policing Firearms Registry noted that their records do not capture informal refusals. ACT Policing said that prior
to issuing a formal refusal, it is the practice of the Registry to notify an applicant if their application will be refused. The
applicant then has the opportunity to withdraw their application and receive a return of their application fee. The stated
aim of this process is to show fairness to the applicant and avoid any unnecessary time responding to appeals in the
ACTA. While such a process is commendable, the review believes that such applications should still be recorded on a
relevant database. Perhaps such an administrative process could capture or describe initial applications as preliminary,
and then the formal application process would be as per the provisions of the act.
There are several reasons why capturing such information is important. For example, if a person was to approach the
Registrar for a weapons licence, only to be refused through an informal process, and then went on to commit a murder,
the details of the informal refusal would be valuable evidence at the subsequent trial. At this point in time, the ACT
Policing is unable to provide such data. Retaining this kind of data would also provide a valuable intelligence source
regarding the people who seek access to firearms.
9.6 THE UNEXPLAINED WEALTH LEGISLATION AMENDMENT ACT 2018 (CTH)
The Unexplained Wealth Legislation Amendment Act 2018 (Cth) passed Parliament on 19 September 2018. It effectively
introduces an unexplained wealth scheme in the ACT by extending Commonwealth unexplained wealth orders to ACT
offences. Unexplained wealth laws are a valuable tool for law enforcement to confiscate assets when a person linked to
criminal activity cannot reasonably demonstrate that these assets have been lawfully obtained. The ACT signed the
intergovernmental agreement that operationally supports the act in December 2018.
According to the ACT Policing submission:
Although the ACT is able to use the Commonwealth’s unexplained wealth laws, the provisions
have proven to be difficult to adapt to the smaller ACT jurisdiction. The key difficulty has been the
$100, 000.00 threshold of suspected unexplained wealth required to initiate proceedings. Whilst
this threshold is appropriate for large-scale federal criminal enterprises, it would not capture some
of the smaller enterprises that the ACT investigates. As such, no applications have been made
under the Commonwealth scheme for Territory based offences.
However, ACT Policing is ‘currently working with the Justice and Community Safety Directorate to introduce an ACT
unexplained wealth scheme’.
The DPP noted that the ACT is the only jurisdiction in Australia that has no unexplained wealth laws. In 2014, Victoria
was the last jurisdiction to introduce such a regime. The DPP claimed that the absence of unexplained wealth laws in the
ACT significantly disadvantages the ACT Policing and DPP in the fight against organised crime. The DPP said that the
The use of the Mr Big technique and covert operations
The DPP raised the issue of section 23F of the Crimes Act 1914 (Cth). It requires police to provide a criminal caution to a
person that they are questioning and its relationship to covert police operations, particularly in Mr Big operations. The
Mr Big technique essentially involves the creation of a fictitious crime group that comprises covert police operatives and
that lures the suspect into the confidence of the group. It has been used on several occasions in Victoria, in which police
unsuccessfully attempted to obtain court orders to suppress details of the methodology.
Its most publicised use was in the 2003 disappearance of 13-year-old Daniel Morcombe in Queensland. This investigation
highlighted the difficulties that police face when investigating a potential murder with no body and no crime scene.
Ultimately, it was the application of the relatively new covert policing methodology, Mr Big, that would lead to an arrest
in 2011 and to the conviction of Brett Cowan for Morcombe’s murder.
This technique is relatively new and unusual. Most covert police operations involve identifying a criminal group or
enterprise and then inserting a covert police operative into this environment. In Mr Big operations, law enforcement
personnel essentially do the reverse of a normal covert operation: they create the criminal group or enterprise and insert
the target into the group. The group members form social bonds with the target and gain his or her confidence by
including the target in a criminal enterprise relationship.
Although the Mr Big technique has been widely lauded in the media ,it does come with inherent risks, including
prejudicial guilt assumption, possible police tunnel vision and confirmation bias in regard to suspects, psychological
manipulation of the suspect through rewards-based interactions, false or unreliable confessions, and the violation of a
suspect’s safeguards.
The use of Mr Big is typically reserved for the most serious of crimes. It is generally used in cold-case murders, in which
traditional investigative techniques have reached an impasse. The basic premise of using the methodology is that
suspects are likely to incriminate themselves if there is a perceived benefit for them and if they feel safe in doing so. The
technique has been used with much claimed success, both overseas in Canada and locally in Victoria. The Royal Canadian
Police claimed to have used the Mr Big technique in at least 350 cases across Canada, obtaining a 75 per cent success
rate and a 95 per cent conviction rate (Royal Canadian Mounted Police, 2019, p. 1). These claims of success have also
been challenged (Keenan & Brockman, 2011).
Indeed, the technique suffered a major setback in Canada in 2014, with the matter of R v. Hart28, in which the Canadian
Supreme Court ruled that confessions generated from Mr Big operations are presumed inadmissible at trial. However,
the Court allowed for a provision if the Crown can convince the judge that the reliability of the confession that was
elicited outweighs the prejudicial effects of the confession.
The facts in the Hart matter were as follows:
H’s (Hart) twin daughters drowned on August 4, 2002. The police immediately suspected that H
was responsible for their deaths. However, they lacked the evidence needed to charge him. As a
result, two years after the drowning, undercover officers began a ‘Mr. Big’ operation by recruiting
H into a fictitious criminal organization. At the time, H was unemployed and socially isolated—he
rarely left home and when he did, he was in the company of his wife. After he was recruited to the
28 R v. Hart (2014) 2 SCR 544
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organization, H worked with the undercover officers and was quickly befriended by them. Over the
next four months, H participated in 63 ‘scenarios’ with the undercover officers and was paid more
than $15,000 for the work that he did for the organization. As part of that work, H was also sent
on several trips across Canada—to Halifax, Montreal, Ottawa, Toronto and Vancouver. H often
stayed in hotels and occasionally dined in expensive restaurants during these trips, all at the
fictitious organization’s expense. Over time, the undercover officers became H’s best friends and H
came to view them as his brothers. According to one of the undercover officers, during this time
frame, H made a bald statement in which he confessed to having drowned his daughters.
The operation culminated with a meeting akin to a job interview between H and ‘Mr. Big’, the man
purportedly at the helm of the criminal organization. During their meeting, Mr. Big interrogated
H about the death of his daughters, seeking a confession from him. After initially denying
responsibility, H confessed to drowning his daughters. Two days later, H went to the scene of the
drowning with an undercover officer and explained how he had pushed his daughters into the
water. He was arrested shortly thereafter.
At trial, H’s confessions were admitted into evidence. The trial judge denied H’s request for
permission to testify with the public excluded from the courtroom. A majority of the Court of Appeal
allowed H’s appeal and ordered a new trial. The Court of Appeal unanimously held that the trial
judge erred in refusing to allow H to testify outside the presence of the public. A majority of the
court also concluded that the Mr. Big operation had breached H’s right to silence under s. 7 of the
Charter. The majority excluded two of H’s confessions, the one to Mr. Big and the one to the
undercover officer at the scene of the drowning. However, the majority concluded that H’s bald
confession was admissible and ordered a new trial.
The Crown appeal against the Court of Appeal ruling was dismissed by the Supreme Court. Hart was released from
prison and did not face another trial on the murder charges.
Three main concerns emerged from this case: the risk of obtaining an unreliable confession from the suspect, that the
willingness to, or participation in, simulated crimes might prejudice the jury and the risk that police misconduct may
influence the reliability of the confession.
To overcome this, the Supreme Court enacted a two-step solution. The first step is that there is a presumption of
inadmissibility to the confession in circumstances of Mr Big cases, unless the Crown can establish the balance of
probabilities that the probative value of the confession outweighs any prejudicial effect. The second step is designed to
deal with the risk of police misconduct and provides that misconduct that amounts to an abuse of process by the police
will result in the confession or statement being inadmissible.
In their submission, the DP noted that:
As a general proposition, the obligation of a police officer to caution a suspect before questioning
is a crucial procedural safeguard in any criminal investigation. The right has quite properly existed,
in various form, at both common law and in statute, for hundreds of years.
There have been developments in legal terms regarding the use of police deception in recent times. The DPP observed
that Appellate Courts in the country have approved of the use of Mr Big operations. In R v. Cowan,29 McMurdo J observed
at [90] that:
It can be accepted that the appellant would not have made the admissions had he known the true
identity of the undercover police officers. But they were not exercising the coercive power of the
29 R v. Cowan (2015) QCA 87.
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state when he confessed.30 He believed he was amongst his criminal friends. They stressed the need
for him to tell the truth so that they could help him. He was free to leave their company at any
time. They were not threatening or violent and in truth had not committed offences with him. He
chose to make detailed confessions to the offences involving Daniel so as to obtain a watertight,
false alibi; to use the alibi to exonerate himself at the inquest when recalled; this would enable him
to remain in the criminal gang and to participate in the pending "big job" which would net him
$100,000. There was no abuse of process in the undercover scenarios leading up to and including
his confessions.
In R v. Tofilau,31 Osbourne J handled a challenge to a Mr Big operation. His Honour observed at [90] that prevailing
community standards would support the admission of evidence obtained by such operations. In Em v. The Queen,32
Gleeson CJ and Heydon J observed at [77] that:
The difficulty is that every day police officers take advantage of the ignorance or stupidity of
persons whom they eventually prosecute, and a mistake of the kind the appellant was operating
under was simply a species of ignorance or stupidity.
The DPP outlined that the difficulties it encountered in the admissions that were obtained by undercover police during
the course of a Mr Big operation, which were technically illegal because they contravened section 23F of the Crimes Act
1914 (Cth), as no caution has been provided. The DPP noted:
Of course, section 23F and the obligation of police to caution a suspect never contemplated this
rare and unique scenario. Questioning by an undercover operative in such a situation does not
involve the psychologically intimidating atmosphere inherent in custodial interrogation. If police
were to comply with section 23F in the course of these operations they would, unsurprisingly, come
to an immediate and abrupt end. Whilst the Court retains a discretion to admit evidence obtained
illegally through a Mr Big or other covert police operation involving undercover police, I would
suggest that evidence obtained through a properly approved covert operation should not be
deemed illegal in the first place. The Courts should, however, retain other discretions relating to
the admission of such evidence on the basis of fairness to the accused.33
The DPP has suggested that consideration should be given to amending section 23F of the Crimes Act 1914 (Cth) such
that there is an exception to a police officer’s obligation to caution a suspect before questioning him or her, when that
questioning arises in the course of a properly approved covert operation involving undercover police officers. This may
be worthy of consideration, but such a waiver should only be allowed in the most serious of cases and with judicial
oversight within the context of covert and controlled operations.
Cross-jurisdictional and controlled operations against OMCGs
In 2017, regulations to recognise cross-border investigation laws of other Australian jurisdictions as corresponding laws
under ACT legislation commenced. The regulations support the cross-jurisdictional investigation of serious organised
crime and ensure the effectiveness of these investigations. However, ACT Policing does not collect data on the number
of cross-jurisdictional investigations that are conducted. It would be useful for ACT Policing to keep a register of such
operations, as well as the results of such operations for performance appraisal purposes.
It was noted that ACT Policing’s gang taskforce, Taskforce Nemesis, maintains a close working relationship with the New
South Wales Police on OMCG matters, including formal and informal information sharing with the New South Wales
30 Above n 15, at [320]. 31 R v. Tofilau (2003) 13 VR 1. 32 Em v. The Queen (2007) 232 CLR 67. 33 See, for example, section 90 of the Evidence Act 2011.
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Criminal Groups Squad, Raptor South, and Queanbeyan, Yass, and Goulburn Police. ACT Policing provided the following
example of a cross-jurisdictional operation:
One example of a successful cross-jurisdictional investigation occurred when a senior member of
the ACT Rebels was implicated in a major NSW drug investigation. Taskforce Nemesis provided
significant assistance with intelligence and extra-territorial search warrants in the ACT, as well as
facilitating the arrest, bail opposition, and extradition of the suspect to NSW. The ACT Financial
Investigations Team (FIT) restrained and successfully forfeited significant assets held by the
individual, including a tattoo parlour. An additional OMCG member associated with the business
was prosecuted within the ACT for money laundering. This was possible due to effective
information sharing between Nemesis, FIT, and the NSW Criminal Groups Squad.
ACT Policing indicated that they are aware that several OMCG members who are active in the ACT live in New South
Wales, or travel there regularly. Long-term joint investigations with the New South Wales Police are not common, as
they do not maintain a Criminal Groups Squad near the ACT and most of the offences relevant to the ACT jurisdiction
occur entirely within the ACT.
As previously stated, having relevant laws established is only one aspect of successfully combating serious and organised
crime; the other is adequately resourcing those units whoa are tasked with managing such areas of crime control. The
review sought details regarding the staffing levels/composition of Taskforce Nemesis. ACT Policing responded that they
cannot disclose the specific staffing levels of Nemesis, as it may pose an operational risk and reveal police methodology.
Controlled operations
Information was sought in relation to the operations conducted under the Crimes (Controlled Operations) Act 2008. In
regard to controlled operations, ACT Policing advised that since 2014, they have conducted five controlled operations
in relation to OMCG members under the ACT-controlled operations framework. An additional two operations have been
conducted since 2014 in relation to OMCG members under the Commonwealth framework. ACT Policing noted the
following in relation to controlled operations:
Until 2017, the New South Wales surveillance devices legislation did not provide cross-
jurisdictional reciprocity with the Surveillance Devices Act 2010 (ACT). As a result, the vast majority
of surveillance device warrants were obtained under the Commonwealth Surveillance Devices Act
2004.
ACT Policing advised that since the implementation of the reciprocity amendments, surveillance devices are obtained
under the most appropriate warrant type and jurisdiction for the offence being investigated. Controlled operations
powers also exist under both ACT and Commonwealth legislation, and the choice of scheme depends on the jurisdiction
in which the offence occurred.
Further to this, most of ACT Policing’s covert capabilities are provided through service-level agreements with national
areas of the AFP. Consequently, undercover operatives, surveillance operatives and other uses of assumed identities are
authorised and administered under Commonwealth legislation. The details that were available for analysis in relation to
controlled operations were limited, as they may pose an operational risk and reveal police methodology.
Conclusion
In conclusion, it can be observed that the ACT has at its disposal a formidable suite of legislative powers with which to
combat serious and organised crime. While there is room for improvement—and the recommendations address these
issues—the foundation for an effective response to organised crime threats has been laid.
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SECTION 10—RECOMMENDATIONS
10.1 RECOMMENDATION 1: D IVISION 10.4A AUDIT REPORTING
That ACT Policing conducts a yearly audit of the use of crime scene powers under the Crimes Act 1900 (ACT) and reports
on the audit in its annual report to ensure that the powers are used appropriately. Such reporting should include the
type of offences being investigated and the circumstances of the powers being used (e.g., consensual or non-
consensual). This audit should ensure that state intrusion into an individual’s privacy should be proportionate to the
public’s interest in the investigation and to the prosecution of the offence or the maintenance of the law.
10.2 RECOMMENDATION 2: D IVISION 10.4A ALTERNATIVE ACCOMMODATION
A provision for alternative accommodation should be considered for the occupiers who are subject to the exercise of
crime scene powers, in which the occupier cannot continue to live in the private premises while the crime scene is in
effect, or the occupier cannot continue to live in the private premises due to damage caused in the exercise of powers
under this part.
10.3 RECOMMENDATION 3: NAPROS
NAPROs and their monitoring would be assisted by records of the applications being made and the orders being issued,
and these should be identified on the PROMIS system. Any breaches of such orders should also be captured on the
PROMIS system. Better lines of integration and communication are needed in the instances of when NAPROs are issued
between the ACT Policing and the DPP, both from an information and an enforcement perspective. Consideration should
also be given to changes in the records of the courts, with the creation of a data code for NAPROs so that they are a
searchable outcome.
10.4 RECOMMENDATION 4: AMENDMENT OF ACT EXCLUSION PROVISIONS .
It is recommended that a provision similar to section 27(3) of the Criminal Investigation Act 2006 (WA) be included
in the ACT exclusion order provisions in Part 9 of the Crimes Act 1900 (ACT). The amendment should provide that when
an exclusion order is considered, a police officer must account for the likely effect of the order on the person, including
but not limited to the effect on the person's access to the places where he or she usually resides, shops and works, and
to transport, health, education or other essential services.
Further, ACT Policing should collect data on the number of exclusion orders that are given, and to who and what groups,
and report in its annual report the usage of such powers as outlined in Section 9 of this review.
10.5 RECOMMENDATION 5: AMENDMENT OF SECTION 23(1)(B) OF THE CRIMES
(SENTENCING) ACT 2005
Consideration should be given to amending section 23(1)(b) of the Crimes (Sentencing) Act 2005 such that:
• The word ‘necessary’ is omitted from this section. In effect, a Court would only need to be satisfied that the
creation of a NAPRO is a reasonable means of ensuring that one of the purposes in subsection 23(1)(b) is
achieved by making an order.
• An additional purpose to the creation of a NAPRO is added to section 23(1)(b) of promoting the offender’s
rehabilitation (i.e., a Court should be able to create a NAPRO if it is satisfied, inter alia, that the creation of such
an order is a reasonable means of promoting the offender’s rehabilitation).
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10.6 RECOMMENDATION 6: THAT THE ACT DOES NOT INTRODUCE A CONSORTING
STYLE OFFENCE
The review recommends that the ACT Government should not move to implement a consorting type offence that is
similar to the New South Wales model, due to the issues raised in this review regarding the effectiveness and the actual
ability to target serious and organised crime with such offences. The review notes that the ACT already has a formidable
tool at its disposal in restricting inappropriate associations through the use of NAPROs.
The key difference between the NAPROs and the general consorting offences are that NAPROs are only available
incidental to a criminal conviction, in which offending has been proven beyond a reasonable doubt. NAPROs also differ
significantly from anti-consorting offences in that they apply to a narrow list of people who have been included in the
order after an exercise of judicial discretion. They also allow for a more targeted response, with a focus on specific
criminal behaviour of a serious nature, rather than a generalised approach, as is the case with current Australian
consorting laws.
10.7 RECOMMENDATION 7: UNEXPLAINED WEALTH LAWS SPECIFIC TO THE ACT TO BE
CONSIDERED
The review would recommend and support the development of a specific unexplained wealth scheme to be implemented
in the ACT to capture the current gap in the Commonwealth scheme as identified by the DPP and ACT Policing. The
ATCHRC should also be consulted for input into any ACT specific scheme that is considered.
10.8 RECOMMENDATION 8: AMENDMENT OF SECTION 23F OF THE CRIMES ACT 1914
(CTH)
Consideration should be given to amending section 23F of the Crimes Act 1914 (Cth) such that there is an exception to
a police officer’s obligation to caution a suspect before questioning him or her when that questioning arises in the
course of a properly approved covert operation involving undercover police officers and a covert operative or controlled
operation. Such an exemption should only operate in serious criminal matters and with judicial oversight.
10.9 RECOMMENDATION 9: RESOLUTION OF INSURANCE ISSUES PERTAINING TO THE
REMOVAL OF FORTIFICATIONS
It is recommended that the ACT Policing resolve the ongoing issues relating to providing police and civilian contractors
with insurance when removing fortifications so that the legislation can be effective in operational reality.
10.10 RECOMMENDATION 10: INDEPENDENT REVIEW OF FAILED PROSECUTIONS
AGAINST OMCG MEMBERS
It is recommended that an independent review be conducted to establish why the failed prosecution rate for OMCG
charges as given by ACT Policing is higher than the rate for the general population. This differential in the failed
prosecution rate is concerning and its causation is worth further exploration.
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10.11 RECOMMENDATION 11: CHARGES UNDER DIVISION 7.2.3 OF THE CRIMINAL
CODE 2002
There is a high rate of attrition relating to charges under Division 7.2.3 of the Criminal Code 2002’s protection of people
involved in legal proceedings. It is recommended that ACT Policing and the DPP conduct a joint examination of the
circumstances leading to this high attrition rate in these matters and that they consider possible solutions to make
prosecutions under this division more effective.
10.12 RECOMMENDATION 12: PARTICIPATION OFFENCES , CHAPTER 6A OF THE
CRIMINAL CODE 2002.
It is recommended that the maximum penalties for offences under Chapter 6A be significantly increased. Alternatively,
consideration could be given to the creation of an aggravated sentencing regime for offences that are typically
committed for, and on behalf of, criminal gangs such that offending of that nature would be subject to a higher
maximum penalty. There is a high rate of attrition relating to charges under Chapter 6A of the Criminal Code 2002. It is
recommended that ACT Policing and the DPP conduct a joint examination as to the circumstances leading to this high
attrition rate in these matters and consider possible solutions for making prosecutions under this chapter more effective.
10.13 RECOMMENDATION 13: REGISTER OF CROSS-JURISDICTIONAL OPERATIONS AND
INVESTIGATIONS
In relation to cross-jurisdictional operations and investigations, it is recommended that ACT Policing keep a register of
such operations and investigations, as well as the results of such for performance appraisal purposes.
10.14 RECOMMENDATION 14: INFORMAL REFUSALS , F IREARMS ACT 1996
ACT Policing should consider enacting data collection protocols that would capture the details of the informal refusals
under The Firearms and Prohibited Weapons Legislation Amendment Act 2018, which provided the registrar of firearms
a power under the Firearms Act 1996 to refuse an application for a firearms licence.
10.15 RECOMMENDATION 15: SENSITIVE INFORMATION , FIREARMS ACT 1996 SECTION
18A(2)
The Firearms and Prohibited Weapons Legislation Amendment Act 2018 introduced amendments to allow the registrar
to withhold security-sensitive information when deciding on a person’s suitability for various purposes under the
Firearms Act 1996, section 18A(2). The review would support that the ACTA or the courts should have the freedom of
action to determine how to handle security-sensitive information. Consideration should also be given to updating the
relevant legislation.
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prosecute criminal gang members
Dr Terry Goldsworthy and Dr Gaelle Brotto Page 108
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prosecute criminal gang members
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Independent review of the effectiveness of ACT Policing crime scene powers and powers to target, disrupt, investigate and
prosecute criminal gang members
Dr Terry Goldsworthy and Dr Gaelle Brotto Page 110
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Independent review of the effectiveness of ACT Policing crime scene powers and powers to target, disrupt, investigate and
prosecute criminal gang members
Dr Terry Goldsworthy and Dr Gaelle Brotto Page 111
6 December 2019
Independent review of the effectiveness of ACT Policing crime scene powers and powers to target, disrupt, investigate and
prosecute criminal gang members
Dr Terry Goldsworthy and Dr Gaelle Brotto Page 112
6 December 2019
LEGISLATION
1. ACT legislation
Confiscation of Criminal Assets Act 2003
Crimes Act 1900 (ACT)
Crimes (Assumed Identities) Act 2009
Crimes (Controlled Operations) Act 2008
Crimes (Fortification Removal) Amendment Act 2018
Crimes (Police Powers and Firearms Offence) Amendment Act 2017
Crimes (Serious and Organised Crime) Amendment Act 2010
Crimes (Serious and Organised Crime) Legislation Amendment Act 2016
Crimes (Sentencing) Act 2005
Crimes (Surveillance Devices) Act 2010
Criminal Code 2002
Family Violence Act 2016
Firearms Act 1996
Firearms and Prohibited Weapons Legislation Amendment Act 2018