Organised crime, declared organisations and criminal associations

Under the Serious and Organised Crime (Control) Act 2008 (SA) the Commissioner of Police can apply to an eligible Judge [s 8] for a declaration to be made that an organisation become a ‘declared organisation’ [s 9].

The Act has been substantially overhauled following a decision in the High Court that part of the Act was unconstitutional [see South Australia v Totani (2010) 242 CLR 1 ] and also after NSW anti-association laws were found to be unconstitutional [see Wainohu v New South Wales (2011) 243 CLR 181]. The Act and other anti-association laws in other States were challenged by ‘outlaw motorcycle gangs’ (‘bikie gangs’), and this Act is therefore often referred to as the bikie law, however, the law covers serious and organised crime groups generally.

Declarations

The Commissioner of Police can apply to Supreme Court of South Australia for an organisation to become ‘declared’. The application has to set out in writing the grounds on which it is based and be supported by affidavit/s from a police officer/s. A copy of the application must be made available for inspection by a person who satisfies the Commissioner of Police that they are a representative of the organisation, a person alleged in the statutory declaration to be a former member of the organisation and other people who satisfy the Commissioner that they are a current or former member of the organisation or otherwise would be directly affected by the outcome of the application [see s 9].

The Commissioner has to publish a notice in the Gazette and a State circulated newspaper about the location, time and date of the hearing. The notice has to also explain that there may be serious consequences for members of the organisation if the organisation becomes a declared organisation; the notice also has to invite submissions from interested parties to be made to the Court and explain how the application can be inspected [see s 10].

The Court can make a declaration if it is satisfied that:

  • members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity; and
  • the organisation represents a risk to public safety and order in this State [s 11].

Once a declaration is made a notice has to be published in the Gazette and a State circulated newspaper [s 12].

Change of name of the declared organisation does not affect declaration

A change of name of a declared organisation does not change its’ status as declared [s 20]. The declaration is in force until it is revoked [ss 13-14] and a subsequent declaration can be made after revocation [s 17].

Membership presumed if tattoos or clothes of the organisation

The Act also has a presumption of membership of an organisation. In the absence of proof to the contrary, if a person wears insignia of an organisation (whether on a tattoo or on clothing etc), they are taken to be a member of that organisation at the time of wearing the insignia [s 39Z].

Joint and several liability for members of declared organisations

If a member of a declared organisation is found to be liable in civil proceedings for damage or loss resulting from conduct in connection with (for the benefit of, directed by, associated with etc) the declared organisation, each member of the organisation is jointly and severally liable for the damage or loss [s 39X].

Control orders

Control orders may be made by the Supreme Court of South Australia on application from the Commissioner of Police [s 22].

Where an organisation has been made a declared organisation this provides the legal trigger for a control order to be made on a member of that organisation [s 22].

Control orders can also be made for former members of declared organisations and others who have been or are involved in serious criminal activity who associate with members of  declared organisations and also those who have been or are involved with serious criminal activity who associate with others that also have been or are involved with serious criminal activity [see generally s 22].

Control orders cannot be made on a child who is under 16 [s 39V (2)].

The effect of a control order

A control order may prohibit a person from one or more of the following:

  • associating or communicating with a specified person or persons or class of persons;
  • holding an authorisation to carry certain activities;
  • being in the vicinity of specified premises;
  • possessing specified articles or weapons;
  • carrying more than a specific amount of cash;
  • using or possessing a telephone, mobile phone, computer or other communications devices , or limiting the use of these devices;
  • engaging in conduct that the Court considers could be relevant to the commission of a serious offence [s 22(5)].

The Court can also authorise confiscation of items and search premises and take possession of weapons etc [s 22E].

Control orders can be varied or revoked on application [s 22C]. If the order was made because of the person’s membership of a declared organisation, and if the declaration is no longer in force, then the control order is revoked [s 22H].

Breach or failure to comply with control order

It is an offence to breach or fail to comply with a control order [s 22I].

Maximum penalty:     5 years imprisonment

Corresponding declarations and control orders

The Act provides for declarations and control orders made in other States to be registered in South Australia, so as to have the same affect as if the declaration/control order was made under this Act [see ss 39 – 39S].

Public safety orders

Under s 23 of the Serious and Organised Crime (Control) Act 2008 (SA) a senior police officer (a an officer of or above the rank of inspector) can make a public safety order where he or she is satisfied that a person or group of persons poses a serious risk to public safety or security and it is appropriate in the circumstances.

A public safety order can prohibit a person or group of persons from being at specified premises, attending a specified event or being in a specified area [s 23(3)].

Where a public safety order has been issued for a period of more than 7 days, a person who is the subject of the order may lodge a notice of objection with the Court [s 26(1)].

Breach or failure to comply with public safety order

It is an offence to breach or fail to comply with a public safety order [s 32].

Maximum penalty:     5 years imprisonment

Where a public safety order prohibits a person from entering or being in a specified area but they had a reasonable excuse for entering or being there, this can constitute a defence to a charge of failure to comply [s 32(3)].

Power to search vehicles or premises

Where a public safety order has been issued the police have powers to search vehicles or premises if they have reasonable grounds to suspect that the person identified in the order is on the premises or in the vehicle [s 33].

Tattoo Industry Control

Declared organisations and their members and associates , as well as those subject to control orders are also prohibited from providing tattooing services - see: Tattoo Industry Control.

Criminal associations - Offences

A person who is the owner, occupier or lessee of a premises must not knowingly permit the premises to be habitually used as a place of resort by members of a declared organisation [s 34A(1)].

Maximum penalty : 2 years imprisonment

A person must not be knowingly concerned in the management of any premises habitually used as a place of resort by members of a declared organisation [s 34A(2)].

Maximum penalty : 2 years imprisonment

A person must not associate 6 times or more within 12 months with a person/ people who is/are subject to a control order or a member of a declared organisation, knowing that the other person is subject to a control order or a member of a declared organisation [ss 35(1)-(2), (5)].

Maximum penalty: 5 years imprisonment

A person who has a criminal conviction of a major indictable offence or equivalent or an offence under the Serious and Organised Crime Act 2008 (SA), or conspiracy or attempt of any of those offences, must not associate 6 times or more within 12 months with a person/people who also has/ have such a criminal conviction (provided that they know about the criminal conviction) [ss 35(3)-(5)].

Maximum penalty: 5 years imprisonment

The following are exceptions to the offence of the criminal associations (above) unless the prosecution proves that the association was not reasonable in the circumstances:

  • associations between close family members (this includes a spouse or former spouse or someone in a close personal relationship, a parent or grandparent, brother or sister or guardian or carer);
  • associations occurring in the course of a lawful occupation, business or profession;
  • associations occurring at a prescribed course of training or education between persons enrolled in that course;
  • associations occurring at a rehabilitation, counselling or therapy session of a prescribed kind;
  • associations occurring in lawful custody or in the course of complying with a court order;
  • associations of a prescribed kind [s 35(6)].
Organised crime, declared organisations and criminal associations  :  Last Revised: Fri Jul 1st 2016
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