NSW Government announces new anti-bikie laws

Miscellaneous

The NSW Government has announced new laws to combat organised crime, including UK-style Serious Crime Prevention Orders.

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Serious Crime Prevention Orders (SCPOs) will restrict the activities of persons or businesses that are involved in public crime. Public Safety Orders (PCOs) will prevent people from attending places or events where they are expected to engage in violence or present a serious threat to public safety or security. Added powers for confiscation of the assets of serious criminals will come into place, as well as higher penalties for money laundering offences for dealing with proceeds of crime. Breaching SCPOs or PSOs will result in a maximum 5-year jail term.

SCPOs will be able to be issued by the Supreme Court where it is satisfied on the balance of probabilities that a person or business is involved in a serious crime-related activity, or by the District Court if the person has already been convicted of a serious offence, will include prohibitions or requirements deemed appropriate by the Court, and will last for up to 5 years.

PSOs will empower senior police to prevent individuals from attending a place or event for a specified period if they pose a serious risk to public safety.

Substitution orders will enable the courts to seize a criminal’s property where the individual has used another person’s property in serious criminal activity, and to seize property legally owned by a criminal but used for an activity related to serious crime.

Finally, penalties of up to 5 years jail will apply to dealing with property suspected of being proceeds of crime in the value of over $100,000, and 3 years jail for property valued under $100,000.

There could be court challenges of the legality of this legislation. There is already a substantial history of High Court challenges to NSW anti-nbkie legislation.

Wainohu v NSW [2011] HCA 24

Mr Wainohu successfully challenged laws purporting to empower a judge of the NSW Supreme Court to declare an organisation criminal and subject individual members to “control orders”, which would make it an offence for that person to associated with other members of the organisation as well as to take part in certain businesses and occupations. Because there was no requirement that the Supreme Court give reasons for its declaration, this was held to be incompatible with the institutional integrity of a court constituted under Ch III of the Constitution. That is, the NSW Supreme Court, as a court invested with federal authority under the Commonwealth Criminal Code, the federal judicial authority arising under Ch III of the Constitution, is required to maintain institutional integrity, and failing to give reasons in the circumstances of the Crimes (Criminal Organisations Control) Act 2009 meant the exercise of judicial authority would so lacking in judicial rigour as to lack the characteristics of institutional integrity inherently expected by the Constitution.

Tajjour and Ors v NSW [2014] HCA 35

This case was an unsuccessful challenge on laws prohibiting individuals from habitually consorting with members of declared criminal organisations. The plaintiffs variously alleged that the laws were an unconstitutional burden on the implied freedom of political communication, and an unconstitutional burden on an implied freedom of association which the plaintiff argued was read into the Constitution, as well as by way of the International Covenant on Civil and Political Rights.  It was held that the laws were not unconstitutional, and were rather reasonably appropriate and adapted to serve the legitimate end of the prevention of crime in a manner compatible with the maintenance of the constitutionally prescribed system of representative government.

Conclusion

The Constitution does little to protect individuals from laws enacted by a Parliament which intends to achieve a certain end. The principle of parliamentary sovereignty supports this. As long as judges have a real discretion to make orders and tailor them to the circumstances, and they are able to give reasons for their decision, it is unlikely that the SCPO laws will be struck down on a constitutional challenge. As long as the PSOs are amenable to appropriate judicial review, they are unlikely to be struck down on a point of administrative law. As for the confiscation and money laundering provisions, these are even less susceptible to legal challenge, and are likely to remain in force.

Read more: http://www.abc.net.au/news/2015-03-03/nsw-government-to-introduce-crime-prevention-orders/6276250

https://www.nsw.gov.au/media-releases-premier/targeting-king-pins-cracking-down-organised-crime

http://www.hcourt.gov.au/assets/publications/judgment-summaries/2011/hca24-2011-06-23.pdf

http://www.hcourt.gov.au/assets/publications/judgment-summaries/2014/hca-35-2014-10-08.pdf

Image credit: ABC News and Lisa Foschier

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