Hon Christian Porter BA(Hons) BEc LLB(UWA) MSc(Dist)(LSE) MLA

Hon Christian Porter BA(Hons) BEc LLB(UWA) MSc(Dist)(LSE) MLA

Former Treasurer; Attorney General

    Organised crime busting laws

    13/11/2011 12:00 AM
    • Outlaw motorcycle gangs to be subject of applications to become ‘Declared Criminal Organisations’ (DCO) by a judge/retired judge at fully argued hearings
    • Once an outlaw motorcycle gang becomes a DCO, its members may be banned from associating when police are successful in applying to Supreme Court for ‘Control Orders’
    • DCO members that commit a range of nominated offences will be subject to minimum mandatory jail terms if convicted
    • DCO members to be subject to greater range of asset confiscation proceedings
    • New offences for recruiting members for DCO, participating in the activities of criminal organisations and instructing the commission of an offence for the benefit of a criminal organisation

    Western Australia is poised to introduce the toughest organised crime laws in the nation with members of declared criminal organisations (DCO) set to face control orders which could ban bikie gang members from associating together.


    Attorney General Christian Porter said the Criminal Organisation Control Bill 2011 would also provide for mandatory minimum terms of imprisonment for members of criminal organisations convicted of a range of serious offences.


    Under the legislation, groups which associate for the purpose of organising, planning and facilitating criminal activity and who also pose a risk to the public safety and order of WA, could be declared criminal organisations by a judge after application by the Police Commissioner or CCC Commissioner and after full argument.


    Once a criminal organisation has been ‘declared’, members could be targeted by a suite of measures, including police applying to the Supreme Court for control orders to stop them associating with other controlled persons; going to banned locations; promoting the organisation; or transferring funds to the organisation.


    A breach of a control order granted by the Supreme Court would result in up to two years jail for the first offence or five years jail for subsequent offences.


    The Bill also ensures that participating in the activities of a criminal organisation would become a new and stand alone criminal offence which could result in up to five years jail. Another new offence of instructing an offence for the benefit of a criminal organisation would mean up to 20 years jail.


    Recruiting members for a DCO could result in up to five years jail and if a person allows his or her premises to be used for any organised crime they will face up to two years jail.


    The legislation also strengthens asset confiscation laws by establishing a presumption that all property owned by members of criminal organisations who commit a confiscations offence is crime-derived property that may be seized under the State’s criminal property laws.


    “This Bill has been painstakingly drafted to shatter the core operations of outlaw motorcycle gangs and other criminal organisations while avoiding impacts on the innocent,” Mr Porter said.


    “Critical to the new legislation is that for a range of prescribed offences which may be committed by members of organised crime, courts would be required to impose at least two years imprisonment - or for more serious offences, at least 75 per cent of the statutory maximum penalty for the offence - and bail cannot ordinarily be granted for offences under the legislation.


    “These strong penalties are intended to ensure that if an organisation is declared a criminal organisation by a judge and its members continue to offend, they will go to jail for such lengthy periods that the organisation’s visibility, criminal effectiveness and capacity to attract members will collapse over time.”


    The Attorney General said the Bill had incorporated the lessons learned by other States’ attempts at organised crime legislation.


    The process for seeking declarations has been drafted after detailed analysis of two High Court decisions and is designed to contain significant safeguards and protections so as to protect innocent parties. Declarations will only be granted by judges against serious organised crime groups and only after following due process, including an opportunity for all affected parties to be heard and argue their case.


    “This legislation will give police and courts the necessary tools to specifically target those who band together under a code of silence to profit from violence, intimidation, and calculated criminal activity,” Mr Porter said.


    “This will be a decade-long process but this legislation will help WA Police to dismantle, one by one, the bikie gangs which are now at the heart of the drug trade in WA.


    “Two years ago, the Liberal-National Government gave an undertaking to develop legislation to target organised crime in this State because the public is sick of acts of violence and intimidation by groups which wilfully and openly break the law and manufacture and distribute drugs for profit.


    “The State Government is delivering a Bill which will apply so much pressure to outlaw motorcycle gangs in WA that they will find it very difficult to go on running the criminal trade that has been the cornerstone of their existence for decades.”


          Fact File

    • In 2009 after the brutal bikie murders at Sydney Airport, the Federal Labor Government at a meeting of the Standing Committee of Attorney Generals sought agreement from all States to develop anti-association legislation to tackle the bikie menace in Australia
    • WA, SA, NSW, Qld and Tasmania all agreed to develop anti-association legislation and the development of WA’s legislative response to organised crime follows similar legislation in SA, NSW, NT and Qld
    • The SA and NSW legislation have both been subject of scrutiny by the High Court of Australia. The ‘Totani Appeal’ in SA and the ‘Wainohu Application’ in NSW
    • The ‘Totani Appeal’ decision of the High Court concentrated on the role of Executive Government (Attorney General) in the process for declaring an organisation as outlawed, and in a subsequent requirement for a court to act on that decision.  The High Court determined that the Attorney General’s role in declaring organisations criminal interfered with the integrity of the court in SA
    • The ‘Wainohu Application’ dealt primarily with the issue that the NSW legislation provided no requirement for a decision maker in hearing an application for a declaration to provide reasons for that decision


          Main differences in the WA Criminal Organisation Control Bill 2011

    • An application to declare an organisation in WA will be to a ‘designated authority’, which can be an eligible judge or a retired judge.  The Attorney General in WA plays no role in the application or declaration process
    • WA’s Bill also requires that the ‘designated authority’ must give reasons for declaring or not declaring an organisation as a criminal organisation and for these reasons to be made public
    • In WA the key operative provision is entitled ‘Designated authority may make a declaration’.  There is no requirement of Executive Government imposed on the courts. Clause 13(1)
    • Control orders will have to be made in the Supreme Court after argument
    • A range of mandatory imprisonment sentences upon conviction for both indictable and a range of defined summary offences will apply to members of DCOs who persist in being members and then go on to commit further offences
    • A range of new offences and enhanced confiscation powers will also apply, including offences for persons who own, lease or occupy premises which are used by members of a declared organisation

    Attorney General’s office - 9222 8800