Some of the specific measures targeted at serious and organised crime in South Australia are included in the following legislation:
The measures in these Acts as they relate to serious and organised crime are discussed below.
There are also provisions within the general criminal law, for example fortifications laws in the Summary Offences Act 1953 (SA) and specific provisions around criminal organisations in the Criminal Law Consolidation Act 1935 (SA). The main provisions from these Acts are outlined in this section also.
There are also offences relating to criminal organisations under the Liquor Licensing Act 1997 (SA) [Part 7B].
General criminal laws apply to criminal activity done to benefit a criminal organisation means that the offending will generally be aggravated, and aggravated offences attract higher penalties [s 5AA Criminal Law Consolidation Act (1935) (SA)].
For aggravated drug offences due to association with a criminal organisation see earlier in this chapter: Drug Offences - Aggravated Offences.
There are also additional laws aimed at controlling the involvement of people involved in Serious and Organised Crime in the tattooing industry- see: Tattooing Industry Control.
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.
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 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)].
The Criminal Law Consolidation Act 1935 (SA) has a number of laws against participation in criminal organisations [Part 3B - ss 83D - 83GG].
- Participation in criminal organisation [s 83E]Maximum penalty: 15 years imprisonment
- Participation in criminal organisation by assaulting someone [s 83E(2)] or by damaging property [s 83E(3)]Maximum penalty: 20 years imprisonment
- Participation in criminal organisation by assaulting a public officer [s 83E(4)] Maximum penalty: 25 years imprisonment
In these sections criminal organisation means --
(a) a criminal group; or
(b) a declared organisation
criminal group means - a group consisting of 2 or more persons is a criminal group if --
(a) an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence of violence (or conduct that would, if engaged in within this State, constitute such an offence); or
(b) an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence (or conduct that would, if engaged in within this State, constitute such an offence) that is intended to benefit the group, persons who participate in the group or their associates.
Under the Criminal Law Consolidation Act 1935 (SA) there are also restrictions on members of criminal organisations being in certain places. Including:
- Participants in criminal organisation being knowingly present in public places [s 83GC]Maximum penalty: 3 years imprisonment
- Participants in criminal organisations entering, or attempting to enter a place prescribed by regulation [s 83GD(1)]Maximum penalty: 3 years imprisonment
- Participants in criminal organisations attending or attempting to attend events prescribed by regulation [s 83GD(2)]Maximum penalty: 3 years imprisonment
It is also an offence to recruit, or attempt to recruit, a person to become a participant in a criminal organisation [s 83GE].
Maximum penalty: 3 years imprisonment
For the above sections the following definitions apply [s 83GA (1)]:
criminal organisation means—
(a) an organisation of 3 or more persons—
(i) who have as their purpose, or 1 of their purposes, engaging in, organising, planning, facilitating, supporting, or otherwise conspiring to engage in, serious criminal activity; and
(ii) who, by their association, represent an unacceptable risk to the safety, welfare or order of the community; or
(b) a declared organisation within the meaning of the Serious and Organised Crime (Control) Act 2008; (this does not apply to s 83GE, above) or
(c) an entity declared by regulation to be a criminal organisation
member of an organisation, includes an associate member, or prospective member, however described
participant, in a criminal organisation, means—
(a) if the organisation is a body corporate—a director or officer of the body corporate; or
(b) a person who (whether by words or conduct, or in any other way) asserts, declares or advertises his or her membership of, or association with, the organisation; or
(c) a person who (whether by words or conduct, or in any other way) seeks to be a member of, or to be associated with, the organisation; or
(d) a person who attends more than 1 meeting or gathering of persons who participate in the affairs of the organisation in any way; or
(e) a person who takes part in the affairs of the organisation in any other way,
but does not include a lawyer acting in a professional capacity
public place means—
(a) a place, or part of a place, that the public is entitled to use, is open to members of the public or is used by the public, whether or not on payment of money; or
(b) a place, or part of a place, the occupier of which allows, whether or not on payment of money, members of the public to enter
Criminal organisations and their members are also prohibited from providing tattooing services - see: Tattoo Industry Control.
The Liquor Licensing Act 1997 (SA) also contains offences relating to criminal organisations [ss 117B - 117F].
The Governor can declare a criminal organisation to be a declared criminal organisation on recommendation from the Crime and Public Integrity Policy Committee of Parliament [ s 117B (3)-(4)].
Under section 117D the licensee, employees, and the responsible person must not allow people who wear or carry a prohibited item onto the licensed premises.
Maximum penalty: $10 000
It is a defence if they have asked for police assistance after a refusal of a person to leave when requested to do so [s 117D(2)].
Prohibited item includes an item of clothing or jewellery or an accessory that displays -
- the name of a declared criminal organisation; or
- the club patch, insignia or logo of a declared criminal organisation; or
- any image, symbol, abbreviation, acronym or other form of writing that indicates membership of, or an association with, a declared criminal organisation [ s 117B(1)].
It is an offence to enter and remain in a licensed premesis wearing or carrying a prohibited item [s 117E]. Failing to leave the premises when required is also an offence [s 117F]. Penalties for both of these are offences are the same:
- Maximum penalty (first offence) : $25 000
- Maximum penalty (second offence) : $50 000 or 6 months imprisonment
- Maximum penalty (third and subsequent offence) : $100 000 or 18 months imprisonment.
Resisting the removal from the premises is a further offence [s 117F(4)].
- Maximum penalty (first offence): $50 000 or 6 months imprisonment
- Maximum penalty (second and subsequent offence) : $100 000 or 18 months imprisonment
The Summary Offences Act 1953 (SA) also contains anti-association laws. One of these is a law against consorting (associating) with particular people.
Under section 13 of the Summary Offences Act 1953 (SA) :
A person who:
- habitually consorts with (at least 2) convicted offenders (people who have been convicted of indictable offences) on at least 2 occasions; and
- consorts with those offenders after having been given an official warning (by police) in relation to each of those offenders,
is guilty of an offence.
Maximum penalty: 2 years imprisonment
If the consorting was with:
- family members;
- in lawful employment or in the operation of a lawful business;
- in training or education;
- in the course of health services provision or legal advice; or
- in lawful custody or in the course of complying with a court order; and
the defendant satisfies the Court that the consorting was reasonable in the circumstances, then it is to be disregarded for the purposes of this offence.
What is a fortification?
The Summary Offences Act 1953 (SA) defines a fortification as any security measure involving a structure or device forming part of, or attached to, premises that:
- is intended to prevent or delay police access to the premises; or
- has, or could have, the effect of preventing or delaying police access to the premises and is excessive for the type of premises concerned
Fortification removal orders
Under section 74BB of the Summary Offences Act 1953 (SA) the Commissioner of Police can apply to the Magistrates Court for an order requiring the fortifications be removed or modified within a fixed time period.
The Commissioner must show that the premises named in the application are fortified. In addition, the Commission must also show that:
- the fortifications have been created without approval under the Development Act 1993 (SA); or
- there are reasonable grounds to believe the premises are being used (or have been or are likely to be used) in connection with the commission of a serious criminal offence or to conceal evidence or keep the proceeds of a serious criminal offence; or
- the premises are owned, occupied or habitually used by a declared organisation or a member of a declared organisation (see declared organisations).
Fortification removal orders must be served on the occupier(s) of the premises with a copy to be served on the owner if they are not named in the order. Service of the order can be personally or by registered post. If service cannot be accomplished by these means then it is sufficient for the Commissioner to fix a copy of the order to the premises at a prominent place at or near the entrance.
Criminal intelligence can be presented by police in support of these applications and the Court, on application from the Commissioner, must takes steps to maintain the confidentiality of that information, including hearing argument and receiving evidence in private, without the parties to the proceeding being present [see s 74BGA]. Criminal intelligence is defined as relating to actual or suspected criminal activity, the disclosure of which could reasonably be expected to prejudice criminal investigations, to enable the discovery or existence of a confidential source of information, or to endanger a person's life or safety [s 74BA].
Right of objection
A person served with a fortification removal order may lodge a notice of objection with the Magistrates Court. The notice of objection must be lodged within 14 days of service of the order.
Enforcement of fortification removal order
The Commissioner of Police can enforce a fortification removal order where it has not been complied with. For this purpose police can enter the premises the subject of such an order without a warrant to make the modifications or removals specified in the order. The Commissioner can also seize anything that can be salvaged in the removal of those fortifications and can recover costs of the removal of the fortifications from whoever caused the fortifications to be created [see generally s 74BI].
Hindering removal or modification of fortifications
It is an offence under s 74BJ of the Summary Offences Act 1953 (SA) for a person to do anything to prevent or delay the removal or modification of fortifications as provided in a fortification removal order.
Maximum penalty: $2 500 or 6 months imprisonment
Liability for damage
A property owner has no action against the Crown for damage to property resulting from enforcement of a fortification removal order. However, it may be possible for a property owner to recover reasonable costs associated with the repair or replacement of property damaged as a result of the removal of fortifications as a debt from any person who created the fortifications to be created.
Under the Serious and Organised Crime (Unexplained Wealth) Act 2009 (SA) the Crown Solicitor, upon request of the Director of Public Prosecutions, may apply to the District Court for a declaration that a person or an incorporated body has unexplained wealth. These orders are called unexplained wealth orders [s 9].
Whilst the Criminal Assets Confiscation Act 2005 (SA) allows for the proceeds or instruments of crime to be forfeited to the State, this can only occur where a person has been convicted of a serious offence or is suspected on reasonable grounds of having committed a serious offence, and the relevant property that can be seized is either the proceeds of the offence or property used in the commission of the offence. Unexplained wealth orders provide the authorities with increased powers to seize property connected to illegal activity but without having to establish a direct link between the property concerned and a specific criminal offence.
What is wealth?
Under the Act wealth includes all property a person owns or controls, or has previously owned or controlled, and this extends to property acquired before the commencement of the legislation [s 3].
Property covered by an unexplained wealth order
If an unexplained wealth order is granted the property the subject of the order will be those components of a person’s property which have not been lawfully acquired. This property then forms the basis of a debt from the person to the State with the effect that it is surrendered to the government [ see s 9 generally].
It is also possible for the authorities to apply for investigative (for example monitoring orders [s 14]) or restraining orders preventing the disposal of property [see s 20] before or after an application for an unexplained wealth order has been made.
Appeals against an unexplained wealth order or a restraining order can be made to the Supreme Court [ss 10, 26].
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