June 2008 - the ACC Board elected to
close the OMCG Task Force and replace
it with a new Serious and Organised
Crime National Intelligence Task Force
New South Wales
In 2006, the NSW Government passed the Crimes Legislation Amendment (Gangs) Act 2006, making it the first Australian jurisdiction to legislate specific offences against criminal organisations (Schloenhardt 2008). The provisions make it an offence to participate in a criminal group, defined as three or more people who have as their objectives either to obtain material benefits from serious indictable offences or to commit serious violent offences. The Act also created power for the court to make a fortification removal order, in order to deal with OMCGs' heavily fortified premises. In March 2009, Anthony Zervas was bludgeoned to death in a brawl at Sydney airport between members of the Comanchero and Hells Angels motorcycle clubs. Following the incident, on 2 April 2009, then NSW Premier Rees introduced the Crimes (Criminal Organisations Control) Bill 2009, which commenced on assent on 3 April 2009. The legislation is based substantially on the SA legislation and provides power for seeking to declare OMCGs as criminal organisations. The government has received advice from the Solicitor General indicating that any High Court challenge to the legislation would not be likely to be successful. Under the Act, the Commissioner of Police may seek a declaration that a bikie gang is a declared criminal organisation (s 6). The test for making an order, under s 9(1), is the same as in South Australia, but the order is to be made by a judge, rather than by the Attorney General. The factors to be taken into account under s 9(2) are essentially the same as the South Australian legislation, but pertain in subsections (b) and (c) only to current or former members, not persons who associate, or have associated, with members of the organisation. The judge is not required to provide reasons for making a declaration and the rules of evidence do not apply to the hearing of an application for a declaration (s 13). The applicable standard of proof is on the balance of probabilities (s 32). It is also worth noting that the declaration can be made in the absence of any of the affected members (s 9(3)). Once the organisation is declared, the commissioner may then seek control orders from the Supreme Court in respect of one of more persons on the basis that they are members of a declared criminal organisation and there are sufficient grounds for making the order (Part 3). Unlike the SA legislation, the NSW Act only provides that the court may make an order, not that it must do so (s 19). A comparison of further differences between the SA and NSW legislation is set out in the Government Report to the ACT Legislative Assembly (ACT Government 2009: Annexure C). If an order is made, the controlled member is prohibited from associating with another controlled member of the organisation. The maximum penalty for such association is two years' imprisonment for a first offence and five years for subsequent offences (s 26). Unlike the SA model, which requires a pattern of association, a single instance will constitute an offence. As in South Australia, certain forms of associations are permissible, for example, between close family members (s 26(5)). Section 27 provides that controlled members of declared criminal gangs will also be stripped of any licence for working in industries that are vulnerable to bikie and organised crime infiltration, such as the security, tow truck, car repair and motor trading industries; they will also have to forfeit any firearms licence. Amendments to the Criminal Assets Recovery Act 1990 also removed the potential for dishonest earnings, enabling the NSW Crime Commission to pursue people who participate in criminal groups, either knowingly or recklessly, regardless of whether they are a controlled member of a...
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