Thursday, 29 August 2024

Bills

Criminal Organisations Control Amendment Bill 2024

Statement of compatibility

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (10:14): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Criminal Organisations Control Amendment Bill ‍2024:

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Criminal Organisations Control Amendment Bill ‍2024 (Bill).

In my opinion, the Criminal Organisations Control Amendment Bill 2024, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill amends the Criminal Organisations Control Act 2012 (the Act) by:

• modifying the existing unlawful association scheme in Part 5A of the Act to expand police powers to prohibit persons from associating with each other

• introducing a serious crime prevention order scheme enabling a court to impose conditions restricting the activities of the person subject to the order, being a person who is an eligible offender or involved in serious criminal activity

• creating a criminal offence which prohibits a person over 18 years of age from displaying the insignia of certain organisations to be prescribed in regulations in a public place or public view, where that person knows or ought reasonably to know that the mark is an insignia of that organisation, and

• prohibiting members of certain organisations to be prescribed in regulations from entering Victorian Government worksites.

The Bill’s purpose is to disrupt serious and organised crime in Victoria.

Human Rights Issues

The Bill limits the following rights under the Charter:

• right to recognition and equality before the law (section 8)

• right to freedom of movement (section 12)

• right to privacy and reputation (section 13)

• right to freedom of thought, conscience, religion and belief (section 14)

• right to freedom of expression (section 15)

• right to peaceful assembly and freedom of association (section 16)

• right to protection of families and children (section 17)

• right to culture (section 19)

• right to property (section 20)

• right to a fair hearing (section 24)

• right to be presumed innocent until proven guilty according to law and rights in criminal proceedings (section 25), and

• right not to be tried or punished more than once (section 26).

Under the Charter, rights can be subject to limits that are reasonable and justifiable in a free and democratic society based on human dignity, equality and freedom. Rights may be limited in order to protect other rights.

As discussed below, these limitations are reasonable and justified in accordance with section 7(2) of the Charter.

Unlawful Association (Part 2)

The Bill will:

• expand police powers to issue unlawful association notices to persons, prohibiting them from associating with each other, where one of the persons has previously been convicted of a serious offence, by:

• removing the requirement that the previous conviction was ‘heard on indictment’, so that convictions for lower-level offending, or following a guilty plea, can trigger the use of the scheme

• replacing the current requirement that a police officer reasonably believes that preventing association between individuals is likely to prevent the commission of an offence, with a requirement that the officer is satisfied that issuing the notice is likely to prevent or inhibit the establishment, maintenance or expansion of a criminal group or a criminal network

• reduce the duration of a notice, from 3 to 2 years, to ensure the grounds for issuing a notice are considered afresh within a shorter period

• expand police powers to charge for the offence of contravening an unlawful association notice, by lowering the threshold for the offence so that the recipient of a notice commits an offence if they associate with the person named in the notice once, at any time the notice is in effect, instead of requiring that the recipient of a notice associate with a named person 3 times in a 3-month period, or 6 times in a 12-month period

• narrow the exception to the offence for association with family members, by amending the definition of ‘family member’ so that it applies to a more confined group of people

• provide additional exceptions to the offence where association occurs:

• during the provision of welfare services

• in the course of emergency services volunteering, or

• in the course of an Aboriginal person or Torres Strait Islander engaging in or performing a cultural practice or obligation.

• create a new oversight function for the Independent Broad-based Anti-corruption Commission (IBAC), by requiring IBAC to monitor and report on the operation of the scheme and conduct periodic reviews of unlawful association notices. To ensure IBAC has the information it needs, Victoria Police will be required to report to IBAC quarterly on the use of powers.

Right to peaceful assembly and freedom of association (section 16)

Section 16 of the Charter protects every person’s right to peaceful assembly and freedom of association with others, including the right to form and join trade unions.

The Bill sets out the scope of lawful and unlawful association between persons and expands police powers to prohibit persons from associating with each other, abrogating the rights to peaceful assembly and freedom of association.

The unlawful association scheme prohibits a person who receives an unlawful association notice from associating with the person or persons named in the notice. Such other named persons are also banned from associating with the recipient of the notice (through provisions that allow for reciprocal notices to be issued). Should the persons continue to associate, they will be at risk of committing an indictable offence, with a penalty of up to 3 years’ imprisonment.

The Bill expands police powers to issue unlawful association notices to persons, where one of the persons has previously been convicted of a serious offence, in the following ways:

• Expanding the categories of offences that can form the basis for issuing a notice to include offences committed against the laws of another state or territory, or the Commonwealth.

• Removing the requirement that the conviction for the serious offence that forms the basis of a notice was ‘heard on indictment’, so that convictions for lower-level offending, or following a guilty plea, can trigger the use of the scheme. This will potentially extend the scheme to a larger group of people.

• Replacing the requirement that a senior police officer holds a reasonable belief that issuing a notice will prevent the commission of further offences. Victoria Police advises that the formation of the requisite belief is a high threshold to satisfy and a major hurdle to using the unlawful association provisions.

The Bill also expands police powers to charge for the offence of unlawful association. Under the current scheme, a person contravenes a notice if that person associates with one or more persons convicted of an ‘applicable offence’ named in the notice on at least 3 occasions in a 3-month period, or 6 occasions in a 12-month period. To increase the efficacy of the scheme, the Bill removes the requirement for multiple occurrences of association within a set timeframe for a person to be charged with the offence of unlawful association. Instead, a person may be charged if they associate with the person named in the notice on one occasion.

Section 7(2) of the Charter provides that reasonable limits can be placed on rights where the limits are demonstrably justified in a free and democratic society.

The limitation on these rights supports the purpose of the unlawful association scheme of preventing and inhibiting criminal conduct. This is achieved by prohibiting individuals from associating with each other where one of them has previously been convicted of a serious offence, and thereby preventing and inhibiting the establishment, maintenance and expansion of criminal groups and criminal networks.

The Bill introduces new settings and preserves existing settings in the Act, that aim to mitigate against the risk of notices being issued arbitrarily or having disproportionate negative impacts, including the following:

• The new test for issuing a notice includes a requirement that the officer is reasonably satisfied that doing so is appropriate in all the circumstances. This threshold, coupled with the requirements under section 38 of the Charter that a police officer give proper consideration to relevant human rights when making a decision to issue a notice, imports a blanket requirement of proportionality.

• If a person believes that a notice has been issued or amended in error, they can seek internal review by Victoria Police. The Bill increases the minimum rank of the reviewing officer from Senior Sergeant to Inspector, and allows a person to seek an extension of time in which to apply for review. In addition, the Bill includes a process allowing people to seek revocation of a notice, where there has been a substantial change in circumstances. For example, it may be appropriate to revoke a notice on compassionate grounds, such as because the person has a terminal illness.

• The Bill retains the existing mechanism authorising lawful association with the person named in the notice, by allowing a person to apply to Victoria Police for a lawful association authority.

• The scheme retains the exceptions to the offence of unlawful association. These include exceptions where association occurs in the course of lawful employment, obtaining legal advice, or participating in vocational training and association for genuine political purposes. As noted above, the Bill introduces additional exceptions, including for association that occurs in the context of receiving welfare or support services, and engaging in emergency services volunteering.

The Bill contains measures to support accountability and transparency regarding the use of powers. The Bill creates a new oversight role for IBAC to retrospectively monitor the use of police powers under the scheme and report annually to the Attorney‐General. The Bill also requires the Attorney-General to cause a review of the operation and effectiveness of the Act to be undertaken 3 years following commencement of the Bill. The inclusion of reporting obligations and independent oversight aims to enable continued evaluation of the scheme’s effectiveness and ensure government will know if any groups are being unfairly targeted by these laws.

The amendments in the Bill are a reasonable and justified limitation of the rights to peaceful assembly and freedom of association because they are necessary to protect public safety by preventing the commission of serious and organised crime.

Right to freedom of movement (section 12)

Section 12 of the Charter provides that every person has the right to move freely within Victoria and has the freedom to choose where to live.

The rights of both the recipient of a notice and the person named in the notice to move freely within Victorian and to choose where to live are limited because they are prevented from being in company with each other, unless an exception applies.

For the reasons discussed above in relation to freedom of association, this interference with the right to freedom of movement is not arbitrary or unlawful and is proportionate to the legitimate aim of crime prevention.

Right to privacy and reputation (section 13)

Section 13 of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with and not to have their reputation unlawfully attacked.

Prohibiting both the recipient of a notice and the person named in the notice from being able to choose to associate with each other limits this right because it affects their ‘interest in the freedom of their personal and social sphere’.¹

In addition, the Bill amends provisions that engage the right to privacy of the person named in a notice, because the provisions require that the person is named in the notice and identified as an offender.

Importantly, the disclosure of the person’s criminal history is limited. Neither the nature of the conviction nor aspects of the person’s criminal record that are not relevant to the issue of the notice are disclosed.

The requirement to specify the individual on an unlawful association notice supports the purpose of the unlawful association scheme, to prevent and prohibit criminal conduct, by clearly setting out who the recipient of a notice is prohibited from associating with, and the basis for imposing the notice (namely, that the specified individual has previously been convicted of a serious offence).

For these reasons, the interference with the right to privacy is not arbitrary or unlawful and is proportionate to the legitimate aim of crime prevention.

Right to freedom of expression (section 15)

Section 15 of the Charter provides that every person has the rights to hold an opinion without interference (section 15(1)) and to freedom of expression (section 15(2)), which includes the freedom to seek, receive and impart information. The right contains an internal limitation in section 15(3) that allows freedom of expression to be limited where it is reasonably necessary to respect the rights and reputation of others, or for the protection of national security, public order, public health or public morality.

The Bill engages this right by amending provisions that prohibit a recipient of a notice and the person named in the notice from receiving, seeking, or imparting information with each other once a notice has been issued, unless an exception applies.

The prohibition supports the purpose of the unlawful association scheme, to prevent and inhibit criminal conduct and to promote community safety by preventing associations that may lead to the establishment, maintenance and expansion of criminal groups and criminal networks. In addition, not all communication is prohibited but can still occur where an exception applies, including communication between family members, or communication for genuine political purposes, or in lawful protest or industrial action. This ensures the Bill does not go further in restricting the right to freedom of expression than what is necessary to fulfill its purpose.

For these reasons, the interference with the right to freedom of expression is lawful and reasonably necessary for the protection of public order.

Protection of families and children (section 17)

Section 17(1) of the Charter provides that families are ‘the fundamental group unit of society and are entitled to be protected by society and the State’. The Charter does not define the term ‘family’, however it is likely to be given a broad interpretation.

Under the Act, a person who receives a notice is not prohibited from associating with a family member, provided the association is not for an ‘ulterior purpose’. The scope of the relationships covered by the term ‘family member’ is broad, including any person that can reasonably be regarded as ‘like family’ when having regard to specified considerations.

The Bill amends the definition of ‘family member’ in the Act so that it applies to a narrower class of persons, changing the scope of lawful and unlawful association between family members. The amendment will mean that relationships considered by the person, and recognised in the person’s community, as being like family, are no longer considered family member relationships for the purpose of the unlawful association scheme. Therefore, conceptions of family or kinship systems based on non-Western or Aboriginal or Torres Strait Islander constructs, will not be recognised for the purpose of the exception. In doing so, the Bill limits the right to protection of families.

The unlawful association scheme aims to prevent the establishment, maintenance and expansion of criminal groups and criminal networks, including criminal networks that operate based on, or utilising, familial connections. The amendments to the definition of ‘family’ are designed to remove the potential for a broader interpretation of the term facilitating the exploitation of family relationships by criminals, to further criminal conduct. In addition, the Act enables a person who receives a notice to apply to Victoria Police for specific permission to attend an event or gathering. This may enable, for example, attendance at a family gathering, wedding or funeral. Therefore, the purpose of the limitation is to allow the scheme to operate as intended.

Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in the child’s best interests and is needed by the child by reason of being a child. In recognition of this right, the Act does not apply to persons under the age of 18 years, and so no person under the age of 18 can receive an unlawful association notice.

Recognition and equality before the law (section 8)

Section 8(3) of the Charter provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination. The purpose of the right to equality is to ensure that all laws and policies are applied equally, without a discriminatory effect.

Section 3(1) of the Charter adopts the definition of ‘discrimination’ in the Equal Opportunity Act 2010, which includes both direct and indirect discrimination on the basis of a protected attribute, including race. Under section 9 of that Act, indirect discrimination occurs where a person imposes a requirement, condition or practice that is unreasonable and has, or is likely to have, the effect of disadvantaging persons with a protected attribute.

The Bill includes special provisions for Aboriginal and Torres Strait Islander people, by introducing: a new exception to the unlawful association offence based on Aboriginal cultural practice and obligation; a requirement for Victoria Police to report quarterly to IBAC on the number of Aboriginal and Torres Strait Islander people subject to the scheme; and a requirement for IBAC to report on the impact on Aboriginal people.

The new exception will ensure that an Aboriginal or Torres Strait Islander person does not commit the unlawful association offence, if the association occurs in the course of fulfilling a cultural practice or obligation. The requirement for specific reporting on the number of Aboriginal and Torres Strait Islander people subject to the scheme will enable any disproportionate impact on Aboriginal and Torres Strait Islander people to be monitored and acted upon.

These provisions recognise that Aboriginal and Torres Strait Islander people are over-represented in the criminal justice system, and the potential for the Bill to have a disproportionate effect on Aboriginal and Torres Strait Islander people. This has been found to be the case in New South Wales (NSW), when the NSW Ombudsman and the NSW Law Enforcement Conduct Commission reviewed the operation of the NSW consorting laws.

Section 8(4) of the Charter provides that measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination. Accordingly, the special provisions for Aboriginal people do not constitute discrimination.

Right to take part in public life (section 18)

Section 18(1) of the Charter provides that every person in Victoria has the right, without discrimination, to participate in the conduct of public affairs.

Under the Act, association for a genuine political purpose is not prohibited. In addition, section 11 of the Act provides that the powers under the Act are to be exercised in a way that does not diminish the freedom of persons in Victoria to participate in lawful protest, advocacy, dissent or industrial action.

Cultural rights (section 19)

Section 19(1) of the Charter provides all persons with a cultural, religious, racial or linguistic background, the right, in community with other persons of that background, to enjoy their culture, to declare and practice their religion and to use their language.

Section 19(2) of the Charter acknowledges that Aboriginal persons hold distinct cultural rights and provides Aboriginal persons with the right, with other members of their community, to enjoy their identity and culture, to maintain and use their language, to maintain their kinship ties and to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

The Bill amends provisions which set out the scope of lawful and unlawful association between persons, including by prohibiting associations between persons who share cultural and community ties. In doing so, the Bill limits cultural rights.

The unlawful association scheme aims to prevent the establishment, maintenance and expansion of criminal groups and criminal networks, including criminal networks that operate based on cultural and community connections. The prohibition on association, including association for cultural purposes, supports this purpose by removing the potential for the exploitation of cultural ties by criminals, to further criminal conduct.

The Bill introduces a new exception where association occurs in the course of an Aboriginal person or Torres Strait Islander engaging in or performing a cultural practice or obligation. This will enable the exercise and enjoyment of distinct Aboriginal cultural rights, including maintaining kinship ties and connection to land, identity and culture.

For non-Aboriginal people and Torres Strait Islanders, the Act contains a provision under which a person subject to an unlawful association notice can apply to Victoria Police for specific permission to attend an event or gathering. This would allow, for example, attendance at cultural or religious events, without the risk of charge for the unlawful association offence.

Replacing Declarations and Control Orders with Serious Crime Prevention Orders (Part 3)

The Bill establishes a new serious crime prevention order scheme for the purpose of preventing and inhibiting the involvement of individuals in serious criminal activity by restricting the activities of adult individuals. On application by the Chief Commissioner of Police, the County Court (or the Supreme Court exercising its jurisdiction to hear any matter under section 85 of the Constitution Act 1975) may make a serious crime prevention order requiring compliance with conditions. The application can be made in relation to a person aged 18 years or older who is either an eligible offender or who the court is satisfied, to the civil standard of proof, has been involved in serious criminal activity. The term ‘eligible offender’ is the same as that used in the unlawful association scheme.

The Court may impose a serious crime prevention order if satisfied there are reasonable grounds to believe that compliance with the conditions would protect the public by preventing or inhibiting the individual’s involvement in serious criminal activity, and that imposing the conditions is otherwise appropriate in all the circumstances.

The Bill contains a non-exhaustive list of example conditions that the court may impose. For example, the court may consider it appropriate to impose conditions that prohibit the individual subject to the order from associating with specified individuals, leaving Victoria or Australia, possessing or using certain things such as firearms, telecommunications devices, cash or an alias, engaging in specified business activities or specified activities in respect of property. Further, the court may also consider it appropriate to impose conditions requiring the individual subject to the order to provide information and notifications to Victoria Police regarding specified things, for instance a change in address or employment. However, the court must consider what is already required of the individual under other instruments when determining conditions to impose.

Under the Bill, the maximum duration of a serious crime prevention order is 5 years, though it may be renewed more than once. Contravention of a serious crime prevention order is an indictable offence, punishable by a fine and/or imprisonment.

The Bill provides for the mutual recognition and application of corresponding orders made under similar regimes in other Australian jurisdictions. The Bill also applies the existing criminal intelligence provisions in Part 4 of the Act, enabling Victoria Police to protect the confidentiality of criminal intelligence used to support an application for a serious crime prevention order.

Freedom of movement (section 12); Right to privacy (section 13), Rights to peaceful assembly and freedom of association (section 16); Cultural rights (section 19); Property rights (section 20)

The Court has a broad discretion under the serious crime prevention order scheme to impose any conditions that it considers appropriate. Accordingly, it is not possible to exhaustively provide examples of every possible condition that could limit or engage rights as it is dependent on the specific circumstances of a matter before the court.

However, the non-exhaustive list of conditions set out in the Bill provides guidance as to the range of conditions which may be imposed. For instance, the following conditions contained within the new section ‍17 (clause 41) provide an illustrative example of the diversity of rights that may be engaged and/or limited:

• A condition that prohibits an individual from leaving Victoria or entering a specified place may limit the right to freedom of movement under section 12 of the Charter.

• Imposing a condition that prohibits an individual from undertaking a particular activity in respect of property rights may limit the right not to be unlawfully deprived of property under section 20 of the Charter.

• Where a condition is imposed that prohibits an individual from associating with a specified individual, the right to peaceful assembly and freedom of association under section 16 of the Charter may be limited.

• Requiring an individual to notify and provide information to Victoria Police about specified things may limit the right not to have a person’s privacy unlawfully or arbitrarily interfered with under section 13 of the Charter.

To the extent that the rights of an individual may be limited via the imposition of conditions, I consider that any limitation on these rights is reasonable and justified under section 7(2) of the Charter.

The Bill sets out clear criteria that the court must be satisfied of when making a serious crime prevention order. Following satisfaction that the eligibility criteria has been met, the court is only permitted to impose a condition on an individual if satisfied that there are reasonable grounds to believe compliance with conditions would protect the public by preventing or inhibiting the individual from being involved in serious criminal activity and imposing conditions is appropriate in all the circumstances. The criteria for making a serious crime prevention order reflect the stated purpose of the scheme, to protect the public by preventing or inhibiting individuals from engaging in serious criminal activity.

It is open to the court to determine what conditions are appropriate to impose on an individual subject to a serious crime prevention order or whether it is appropriate to impose an order in the circumstances. In either event, the court must assess the future risk that a person will be involved in serious criminal activity, whether there are circumstances that establish reasonable grounds to believe a condition would protect the public and prevent or disrupt future involvement in serious criminal activity and the appropriateness of conditions before they may be imposed.

The criteria require the court to strike an appropriate balance when imposing a condition between the protection of the community via the prevention or disruption of serious criminal activity and the restriction on an individual’s liberty that the condition may cause. Therefore, the court must ensure that any conditions imposed are adequately tailored to the circumstances of each case. This ensures that conditions are appropriate and proportionate to the risk that an individual may be involved in serious criminal activity.

Oversight by the court is an important safeguard to ensure that any interference with the rights of an individual will not be arbitrary, and no more than necessary to achieve the purpose of the serious crime prevention order scheme. Accordingly, I am satisfied that any limitation to human rights under the Charter by the imposition of a condition under a serious crime prevention order is proportionate.

Right to a fair hearing (section 24)

Section 24(1) of the Charter provides that a party to a civil proceeding has the right to have that proceeding decided by a ‘competent, independent and impartial court or tribunal after a fair and public hearing’.

This right encompasses the right of a party in civil proceedings to be afforded procedural fairness, thereby ensuring a person is aware of the case alleged against them and is provided access to necessary information.

The Bill amends Part 4 of the Act to apply the existing provisions protecting criminal intelligence to the serious crime prevention order scheme. Accordingly, the Chief Commissioner may apply to the Court for an order protecting criminal intelligence which is sought to be relied upon in support an application for a serious crime prevention order.

The existing provisions under the Act provide that criminal intelligence encompasses ‘any information, documents or other thing relating to actual or suspected criminal activity in Victoria or elsewhere’, which if disclosed could reasonably be expected to prejudice a criminal investigation, risk the discovery of confidential sources or endanger a person’s life or safety. Given the risks to individual and public safety, and the administration of justice associated with the disclosure of criminal intelligence, its protection is imperative.

Unless the court orders otherwise, applications for orders protecting criminal intelligence must be heard in closed court. This will result in the person subject to a serious crime prevention order being excluded from the hearing to preserve the confidentiality of intelligence sought to be relied upon. However, special counsel may be appointed to represent the interests of the individual, and may communicate with them prior to the hearing and seek further information from them during the hearing where necessary to represent their interests.

I consider that non-disclosure of criminal intelligence in support of a serious crime prevention order against an individual, may result in unfairness. For instance, unfairness may arise in circumstances where an individual is not able to adequately respond to the case against them as they cannot know all the information that the Chief Commissioner relies upon. Therefore, it is my view that provisions related to the protection of criminal intelligence may limit the right to a fair hearing under section 24 of the Charter.

However, I consider that any limitation of this right supports the purpose of the serious crime prevention order scheme, which is to protect the public by preventing or inhibiting individuals from being involved in serious criminal activity.

The reason being that criminal intelligence relied on for a serious crime prevention order by its nature will likely relate to serious and organised crime. As a person subject to a serious crime prevention order is either an eligible offender with a conviction, or is involved in serious criminal activity, it would not be appropriate to provide that individual with criminal intelligence or have such information be heard in open court. To do so may have serious ramifications on preventing or inhibiting serious criminal activity in ongoing investigations and affect public safety.

The Bill preserves the existing framework in the Act for the protection of criminal intelligence and makes criminal intelligence protection orders available under the serious crime prevention order scheme.

The existing framework affords the Court substantial discretion, which provides a crucial balance to justify any limitation on the rights of a person to a fair trial. For instance, an application for the protection of criminal intelligence must be heard in closed court unless the court orders otherwise. However, the court retains the discretion to adopt a different procedure if a closed court hearing is inappropriate in the circumstances.

Further, the court must undertake a balancing exercise when considering whether to make a criminal intelligence protection order. The court retains a discretion whether to grant an order if satisfied that the reasons for maintaining the confidentiality of the criminal intelligence outweigh any prejudice or unfairness to the respondent to the substantive application.

In my view, these provisions appropriately balance the need to retain the confidentiality of criminal intelligence material and the interests of a party in being able to participate in a hearing that may impact upon them.

Accordingly, I am satisfied any limitation of the right to a fair hearing for a party where the Chief Commissioner makes an application to protect criminal intelligence, is reasonable and demonstrably justified pursuant to section 7(2) of the Charter.

Rights in criminal proceedings (section 25)

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law. Section 25(2) broadly sets out the minimum rights of a person charged with a criminal offence in criminal proceedings.

I do not consider that the Bill limits the rights of a person in criminal proceedings.

The serious crime prevention order scheme is civil in nature, not criminal. Section 135 of the Act that this Bill amends expressly provides that unless otherwise specified, proceedings are civil in nature. On this basis, the court need only be satisfied on the civil standard of proof when determining an application for a serious crime prevention order.

The Bill includes eligibility criteria the court must be satisfied of when making a serious crime prevention order. The court must be satisfied that the individual the subject of the application is either an ‘eligible offender’, which requires a past conviction, or has been involved in serious criminal activity whilst aged 18 years or older. Insofar as the court must be satisfied whether a person has been ‘involved in serious criminal activity’ it must be satisfied on the balance of probabilities.

Whilst a past conviction may be a trigger for eligibility under the scheme, it is not enough in itself for an order being made. Instead, the threshold test for making a serious crime prevention order is based on the court’s assessment of future risk, not merely that a person has been convicted or because of past conduct. That is, the court must assess whether there is a reasonable belief of a future risk of an individual being involved in serious criminal activity that would be prevented or inhibited via the imposition of conditions and therefore protect the public. Relevantly, the majority of the High Court has observed that comparable serious crime prevention order regimes involve an assessment of future risk by the court that includes considerations of past offence, though do not constitute a trial for an offence.²

In dealing with rights in criminal proceedings, section 25 of the Charter also encompasses the right to be presumed innocent until proven guilty according to law.

Clause 41 of the Bill inserts new section 31 in the Act which provides that an individual who knowingly or recklessly contravenes a serious crime prevention order commits an indictable offence. Under new section ‍31(3), service of a copy of a serious crime prevention order is prima facie proof that an individual knows that a serious crime prevention order that applies to them is in effect, unless evidence is adduced to the contrary.

The legal maxim that ignorance of the law is no excuse is particularly relevant where a document is served on an individual. In such circumstances, it is reasonable to assume that a person served with a document is aware of its contents, unless there is evidence of the contrary.

The presumption of innocence requires that the prosecution must prove an offence beyond reasonable doubt. However, requiring an individual to adduce evidence to rebut their knowledge that a serious crime prevention order applies to them and is in effect, may be considered to shift the burden to an accused. However, in my view, an individual need only adduce evidence to the contrary which would be entirely within their knowledge. The burden then remains with the prosecution to prove absence of this knowledge to the criminal standard of proof, beyond all reasonable doubt, which is consistent with the presumption of innocence.

Right not to be tried or punished more than once (section 26)

Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which that person has already been finally convicted or acquitted in accordance with law.

This right embodies the fundamental common law principle of ‘double jeopardy’, which guarantees finality and certainty in the criminal justice system. This principle ensures that a person is not subjected to multiple prosecutions for an offence for which they have been finally acquitted or convicted.

I do not consider that the Bill engages or limits the right not to be tried or punished more than once.

As outlined above in relation to section 25 of the Charter, the serious crime prevention order scheme is a civil rather than criminal scheme. The purposes of the scheme relate to the prevention of serious criminal activity and the protection of the public, rather than punishment. If an order is imposed its purpose is preventative and does not constitute a penalty. Further, as also addressed above, the criteria for making a serious crime prevention order require consideration of a future risk of criminal activity by the court. Relevantly, the majority of the High Court has commented that a comparable serious crime prevention order regime in another Australian jurisdiction did not involve double jeopardy, and constituted a different approach to a different subject.³

Insignia of Certain Organisations (Part 4)

The Bill creates a new summary offence for a person who is 18 years or older to publicly display a mark that is insignia of an organisation, subject to specified exceptions, where:

• the person knows, or ought reasonably to know, that the mark is insignia of an organisation

• that organisation is a Part 5B organisation, being an organisation prescribed in regulations, and

• if the regulations prescribe a mark in respect of that organisation, the mark is either a prescribed mark or consists of “1%” or “1%er”.

Insignia is defined in the Bill to mean a mark that denotes an organisation (including that organisation’s name or logo), or indicates membership of, or an association with, the organisation. If the mark consists of a “1%” or “1%er” symbol, it will be insignia where it relates to a prescribed organisation and that organisation is a motorcycle club.

The Attorney-General may recommend the making of regulations prescribing an organisation following consultation with the Chief Commissioner of Police, where reasonably satisfied that prescribing the organisation is:

• likely to substantially assist in disrupting or preventing serious criminal activity, and

• reasonably necessary to prevent or disrupt serious criminal activity.

Regulations may also be made prescribing a specific mark of an organisation.

The offence is accompanied by the following enforcement powers:

• A police officer may direct a person to cease the public display of insignia, with non-compliance being a further summary offence.

• A police officer may seize without warrant a thing bearing insignia of a prescribed organisation where a police officer reasonably believes that a person is committing or has committed the substantive offence of publicly displaying insignia of a prescribed organisation, that the public display is still occurring where the thing is located at a public place, and where the person has been informed of or asked of specified matters.

• A magistrate may issue a search warrant in respect of the offence of publicly displaying insignia of a prescribed organisation in accordance with section 465 of the Crimes Act 1958 as applied by new section 124ZV of the Act authorising police to enter a specified building, receptacle, place or vehicle and search for and seize any thing upon or in respect of which an offence against new section 124ZN of the Act is suspected to have been committed or is likely to be committed within the next 72 hours, or which there is reasonable ground to believe will afford evidence as to the commission of any such offence.

• A court may order the forfeiture of property bearing a mark the public display of which constituted an offence of publicly displaying insignia for which a person has pled, or been found, guilty.

Freedom of expression (section 15)

Publicly displaying insignia of an organisation is likely to be considered a communicative act that constitutes expression. Part 4 of the Bill therefore limits the right to freedom of expression by preventing a person’s ability to impart information and ideas though the public display of insignia of prescribed organisations.

Victoria Police has indicated that some organisations use public display of insignia to intimidate, stand over and influence others in the community by creating fear and an implied threat of violence, and also to attract and recruit new members through visual presence and status. The purpose of Part 4 of the Bill is to prevent or disrupt serious criminal activity created or facilitated by the display of insignia. The limitation on freedom of expression therefore supports that legitimate purpose.

Further, the scheme is confined in a number of ways to ensure that it is the least restrictive means reasonably available to achieve this purpose. With respect to section 15(3) of the Charter, that purpose of preventing or disrupting serious criminal activity via the prohibition on the public is directed at ensuring the rights and reputations of other persons are respected and the protection of public order.

First, the offence only applies to adults only where a person knows, or ought reasonably to know, that the mark is an insignia of a particular organisation. This ensures that freedom of expression is not unnecessarily constrained, for example, where a person displays a mark without realising it is insignia of that organisation. Similarly, the Bill provides that the offence is subject to a range of exceptions which mitigate impacts on freedom of expression by ensuring that legitimate displays of insignia are not prohibited. Specifically, a person does not commit the offence if the display was engaged in reasonably and in good faith for a genuine academic or educational purpose, in the performance, exhibition or distribution of a work of art, in making or publishing a fair and accurate report of any event or matter, by a member or officer of a law enforcement, integrity or intelligence agency in the performance of the member or officer’s duties for the purposes of the administration of justice, in opposition to the criminal activity of the organisation of which the mark is an insignia, or for an unrelated purpose as provided in new section 124ZP of the Act.

Second, as noted above, the offence only applies to displays in or visible from a public place. That is, a person may continue to express themselves through the display of insignia of prescribed organisations in a manner that is not publicly visible. The offence also does not prohibit insignia displayed via tattoos or other like processes, even where the tattoo is visible on a person whilst in public.

Third, the offence will only apply in relation to organisations prescribed in regulations. The Bill provides clear criteria and processes for when an organisation may be prescribed to ensure the scheme has a confined impact directly related to its purpose. Specifically, an organisation may only be prescribed upon recommendation by the Attorney-General as the responsible Minister administering the Act where the Attorney-General has first consulted with the Chief Commissioner of Police and is satisfied on reasonable grounds that the application of the prohibition on publicly displaying an insignia to the organisation is likely to substantially assist in disrupting or preventing serious criminal activity, and is reasonably necessary to prevent or disrupt serious criminal activity. The Attorney-General would need an evidentiary or factual basis for such a conclusion.⁴

If the Chief Commissioner of Police informs the Attorney-General that a person has been involved in serious criminal activity while a member or prospective member of an organisation being considered for prescription, the Attorney-General must take that into account when considering whether to be satisfied of the above criteria.

Fourth, while the definition of insignia, outlined above, is broad, the Bill sets out a mechanism for prescribing only specific insignia of an organisation where that would be a less restrictive means of achieving the scheme’s purpose of preventing or disrupting serious criminal activity. This will allow for more targeted application of the offence where the risk of serious criminal activity is limited to particular insignia or where there is a risk that application to all insignia of an organisation may have unintended consequences. Where one or more marks are prescribed in relation to a given organisation, the scheme would only apply in relation to the prescribed marks that meet the definition of insignia, as well as the “1%” and “1%er” symbols where they denote or indicate membership of, or an association with, the organisation and that organisation is a motorcycle club. The scheme will not apply to any other marks of the organisation that are not prescribed, whether or not they would meet the definition of insignia.

For these reasons, I consider that that the scheme is appropriately targeted to ensure that it will only apply where it is necessary to achieve the legitimate purpose of prevention or disruption of serious criminal activity. Accordingly, I am satisfied any limitation of the right to a freedom of expression, is reasonable and demonstrably justified pursuant to section 7(2) of the Charter.

Rights to peaceful assembly and freedom of association (section 16)

The Bill may also limit the rights to peaceful assembly and freedom of association by disincentivising membership of those same organisations on the basis they have been prescribed and/or for fear of criminal penalties if the association is conveyed through display of the organisation’s insignia.

Further, as I have outlined extensively above, I consider the scheme is appropriately constrained to achieve its legitimate purpose. In particular, I emphasise again whilst the offence prohibits the public display of insignia of prescribed organisations, including the public visual representation of an association with other persons as part of an organisation, it does not prevent association between members of a prescribed organisation. Nor does it prevent persons identifying themselves verbally as associated with other members of those organisations.

Consequently, I consider any limitation of rights to peaceful assembly and freedom of association is considered reasonable and demonstrably justified.

Right to freedom of thought, conscience, religion and belief (section 14)

Section 14(1) of the Charter provides that every person has the right to freedom of thought, conscience, religion and belief, including the freedom to have or to adopt a religion or belief of that person’s choice, and the freedom to demonstrate that person’s religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private. Section 14(2) of the Charter also provides that a person must not be coerced or restrained in a way that limits that person’s freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

Given that organisations are yet to be prescribed, I accept that depending on the nature and tenets of such organisations, the right to freedom of thought, conscience, religion or belief in the cause embodied by that organisation may be affected. However, as outlined above, the Bill seeks to prevent and disrupt serious criminal activity and has been appropriately constrained to achieve that legitimate purpose. As such, to the extent that Part 4 of the Bill may be capable of limiting the right to freedom of thought conscience, religion and belief, I consider such a limitation to be reasonable and demonstrably justified.

Recognition and equality before the law (section 8)

Part 4 of the Bill limits the right to recognition and equality before the law by prohibiting the public display of insignia of organisations to be prescribed in regulations as outlined above, confining the scope of the scheme to impact select organisations who are to be treated differently to other organisations.

The limitation ensures that the impact of the scheme (including in relation to other Charter rights outlined in this Statement) is appropriately confined for the purpose of achieving the legitimate purpose of preventing and disrupting serious criminal activity. Consequently, this limitation is considered reasonable and demonstrably justified.

Right to be presumed innocent until proven guilty (section 25(1))

The Bill limits the right to be presumed innocent until proven guilty by creating an offence for the public display of insignia of prescribed organisations which contains a list of exceptions outlined above. This has the effect of placing an evidential onus on the accused to demonstrate that the display was engaged in reasonably and in good faith for the purpose of one of the exceptions.

Further, by prohibiting the public display of insignia of prescribed organisations, for the purpose of preventing and disrupting serious criminal activity, an implication may be created that anyone who wears or displays such insignia is a criminal and/or a member of a criminal organisation. However, I do not consider this to limit the presumption of innocence as provided for by the Charter, noting that the scope of the offence relates only to public displays of the insignia of prescribed organisations and does not inhibit a person from private display of insignia that is not visible from a public place, nor does it inhibit membership of the organisation itself.

Whilst the offence places an evidential onus on the accused to adduce evidence suggesting a reasonable possibility that they have engaged in the display of the insignia for the purpose of one of the listed exceptions reasonably and in good faith, this does not transfer the legal onus of proof. Once the accused has pointed to evidence of the exception, the prosecution must still prove the elements of the offence beyond reasonable doubt.

The placement of an evidential onus on the accused is required, as the purpose for which insignia is displaced will be known by the accused for which they should be able to readily point to supporting evidence. The burden is also necessary to prevent a person from displaying insignia under an exception dishonestly for some improper purpose.

The exceptions have been designed to ensure that the offence is specifically targeted to achieve its purpose of preventing serious criminal activity. As I have already indicated, they ensure the offence does not prohibit displays of insignia reasonably and in good faith for specified legitimate purposes, the prohibition of which would not prevent or disrupt serious criminal activity. These exceptions are therefore designed to mitigate the broader impact of the offence on various other rights outlined in this Statement of Compatibility. Further, the matters within the exceptions will generally be uniquely within the knowledge of the accused.

The offence could have been drafted to require the prosecution to demonstrate beyond reasonable doubt each and every exception does not apply in every case, even in the absence of evidence to suggest an exception may apply. However, this would have placed such a high burden on the prosecution as to render the offence unworkable.

Consequently, I consider placing an evidential onus of proof on the accused with respect to the exceptions reasonable and demonstrably justified.

Right to privacy (section 13(a))

The right to privacy, as outlined above, encompasses an individual’s ‘interest in the freedom of their personal and social sphere in the broad sense’.⁵ Part 4 of the Bill affects an individual’s autonomy because it prevents them from being able to choose to wear particular clothing or publicly display marks of their belonging to an organisation. Similarly, Part 4 of the Bill interferes with a person’s home by prohibiting the display of insignia of prescribed organisations on such private property in such a way that it would be visible from a public place.

The interference with an individual’s autonomy directly supports the purpose of Part 4 of the Bill which is to prevent or disrupt serious criminal activity. As already noted, the scope of the scheme is confined in a number of ways to ensure that it is the least restrictive means reasonably available to achieve this purpose such that I do not consider the interference to be arbitrary.

Similarly, any interference with a person’s home is necessary to ensure that persons cannot circumvent the operation of the offence by displaying insignia on private property that is visible from a public place. As previously explained, the prohibition of displays that occur on private property but are visible from a public place limit the scope of the offence only to parts of a person’s private property that are in public view. A person remains free to own, possess and display insignia of a prescribed organisation in the complete privacy of their home where it is not in public view.

Separately, the enforcement powers within Part 4 of the Bill, as outlined above, also limit the right to privacy by:

• enabling a police officer to interfere with a person’s bodily privacy when exercising seizure powers in accordance with new sections 124ZV and 124ZW of the Act, and

• potentially enabling a police officer to enter and search a person’s home where authorised under a search warrant issued by a magistrate under section 465 of the Crimes Act 1958 as applied by new section 124ZV of the Act.

However, these search and seizure powers may only be exercised in accordance with the law and are subject to appropriate limitations and safeguards. Notably, a police officer may only exercise warrantless seizure powers under new section 124ZW of the Act, where they reasonably believe that a person is committing or has committed the offence of publicly displaying insignia of a prescribed organisation and where the display is continuing. The offence is in turn further confined as outlined above only in relation to marks that meet the clear definition of insignia set out in the Bill of organisations that have been prescribed in accordance with clear criteria and processes that ensure the scheme only applies as far as needed to achieve its legitimate purpose.

The requirement that the public display is continuing ensures that the warrantless search powers are only available to respond to and prevent ongoing offending against new section 124ZN of Act where there would not be time to permit a search warrant. The confinement of the warrantless search powers to being exercised in public places only, also reflects the greater impact to privacy where an item is located on private property. Prior to a police officer exercising the seizure power, they must also:

• inform the person from whom the thing is to be seized that the officer believes that the person is committing an offence against section 124ZN

• inform the person that the officer has the power to seize the thing and intends to do so

• inform the person that reasonable force may be used to assist in the seizure, and

• ask the person to hand the thing over.

Police may only retain an item seized under a search warrant issued as provided under by section 124ZV, or without warrant under new section 124ZW of the Act for a specified period before the item becomes eligible for collection. Specifically, seized items become eligible for collection by the owner of a seized thing or a person from whom it was seized or another person on either’s behalf:

• when 3 months elapse without a person being charged with an offence against the Act in relation to the public display of a mark that the thing bears

• when a decision is made, within that period, not to charge such an offence, or

• if a person is charged with such an offence, when all the relevant proceedings have concluded without a forfeiture order being made.

The search warrant powers may only be carried out after a magistrate has been satisfied by the evidence on oath or by affirmation or affidavit of any police officer of or above the rank of senior sergeant that the specific statutory preconditions outlined above have been met. Further the search warrants are subject to the continued oversight of the Magistrates’ Court and the various requirements of the other provisions of Subdivision (31) of Division 1 of Part III of the Magistrates’ Court Act 1989 apply.

I am therefore also of the view that the search and seizure powers outlined above are not arbitrary.

Accordingly, I am of the opinion that Part 4 of the Bill does not limit and is not incompatible with the right to privacy protected by section 13(a) of the Charter.

Property rights (section 20)

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This final limitation of ‘other than in accordance with law’ requires that the law be adequately accessible and formulated with sufficient precision, and not operate arbitrarily or selectively.⁶

The seizure powers discussed above also engage the right to property by depriving a person’s ability to enjoy and exercise their exclusive control over things seized by police. Part 4 of the Bill also limits property rights by providing for the forfeiture of things seized pursuant to new section 124ZW of the Act where those things are not collected within a specified period of time and the power for a court to order the forfeiture of seized property bearing a mark the public display of which constituted an offence of publicly displaying insignia for which a person has pleaded, or been found, guilty.

These powers ensure that police have the ability to remove insignia of prescribed organisations from public display in the swiftest manner possible, to prevent them from being publicly displayed again in the future, and to deter others from engaging in the conduct prohibited by the Bill, and are therefore directed at the legitimate purpose of Part 4 of the Bill. Victoria Police has advised that without such powers, the practical enforcement of the offence would likely be significantly undermined. In particular, there would be no practical and operationally workable means of preventing a person who police find publicly displaying insignia of prescribed organisations – that is a person who has not been deterred by the new offence alone – from continuing to display insignia after police leave. I therefore consider that the powers are a necessary addition to the new insignia offence to ensure Part 4 of the Bill is capable of achieving the purpose of preventing or disrupting serious criminal activity.

Further, I consider the powers are appropriately confined and structured and do not operate arbitrarily or selectively. As outlined above, the seizure powers may only be exercised in accordance with the law and are subject to appropriate limitations and safeguards.

The forfeiture powers are also clearly set out in law and subject to appropriate limitations and safeguards. While the forfeiture of seized things not collected within a specified period operates automatically by force of law, there are practical obligations on police to give notice that the seized thing has become eligible for collection to each person who is an owner of a seized thing and, where the thing was seized under new section ‍124ZW of the Act and was being carried or attended by a person when seized, that person, where such persons are discernible from Victoria Police records. Further, I consider that the timeframes for collection are reasonable and fair, being 3 months after the last person received notice that the seized thing is eligible for collection, or if no notice has been issued, 4 months after the time at which the seized thing became eligible for collection. The power to forfeit items where no notice has been issued reflects that there may be circumstances where gang insignia being displayed in a fixed location and it is unclear who owns the thing or attended to the thing.

The power for a court to order the forfeiture is also clearly set out in law and subject to appropriate limitations and safeguards. This power is only enlivened in relation to property that has been seized and bears a mark the public display of which constituted an offence of publicly displaying insignia for which a person has pleaded, or been found, guilty, and only on application of the prosecution. Further, there are clear criteria and processes that must be followed before forfeiture may be ordered. With respect of a seized thing that is not a motor vehicle, new section 124ZZA of the Act sets out a simple process reflecting the relatively low value of the largely personal items it is expected to apply in relation to and ensures that the court maintains a broad discretion as to whether or not to order forfeiture.

For seized motor vehicles, the Bill applies Division 1 of Part 3 of the Confiscation Act 1997 as if the offence against new section 124ZN of the Act were a Schedule 1 offence within the meaning of the Confiscation Act ‍1997 while preventing the broader application of the forfeiture power to other tainted property within the meaning of that Act. The process set out in Division 1 of Part 3, and the associated provisions of the Confiscation Act 1997, are complex and its application to motor vehicles used to display insignia reflects the comparatively high value of motor vehicles and the fact that they may be more likely to give rise to third party ownership or security interests.

Consequently, I consider that the interference with property rights is appropriately confined and structured, and to the extent such interference amounts to a limitation of those rights, is reasonable and demonstrably justified.

Exclusion of Members of Certain Organisations from Victorian Government Worksites (Part 5)

The Bill will:

• introduce an indictable offence, punishable by up to 3 years’ imprisonment, that prohibits members of prescribed organisations from entering an area that is a Victorian Government worksite, to which public access is restricted, and where development is taking place

• provide a broad definition of ‘development’ that includes construction, demolition, subdivision and relocation

• provide for land to be prescribed as a ‘Victorian Government worksite’ in regulations, if the area is, or is located at, a project area, or an area at which the Attorney-General is satisfied on reasonable grounds public construction is occurring, and where the Attorney General is satisfied on reasonable grounds that applying the offence to such areas is likely to substantially assist in disrupting or preventing criminal activity in relation to public construction

• define ‘project area’ to include a number of locations delineated under other Acts in relation to public infrastructure projects such as the Suburban Rail Loop

• define public construction to include construction by, or on behalf of, a Department or public body

• provide for organisations to be prescribed in regulations, where doing so is likely to substantially assist in, and is reasonably necessary to, prevent or disrupt serious criminal activity in relation to public construction

• amend section 11 of the Act – which operates to preserve the freedom of persons in Victoria to participate in lawful protest, advocacy, dissent or industrial action – so that it does not apply in relation to the offence and, thereby, ensure the new offence can apply where the person who is a member of a prescribed organisation is also a union official, and

• clarify that the offence applies despite anything to the contrary under any other law.

Right to freedom of movement (section 12)

The right of members of prescribed organisations to move freely within Victoria would be limited because the scheme prohibits them from entering Victorian Government worksites.

However, the scheme only applies to worksites to which public access is restricted. The limitation is therefore consistent with limitations on the right applying to most other Victorians. As the purpose is to prevent criminal activity in relation to public construction, the restriction on the right is considered lawful and necessary to protect public order, and therefore is proportionate to the legitimate aim of crime prevention.

Right to privacy and reputation (section 13)

The right to privacy includes a person’s ‘interest in the freedom of their personal and social sphere in the broad sense’.⁷ On one interpretation, the right may be limited ‘where employment restrictions impact sufficiently upon the personal relationships of the individual and otherwise upon the person’s capacity to experience a private life’.⁸

Therefore, the right of members of prescribed organisations to privacy and reputation may be limited in so far as the Bill restricts the ability of persons to be employed or engaged to do work on a Victorian Government worksite.

The exclusion from employment in these circumstances is considered necessary to achieve the purpose of preventing criminal activity in relation to public construction. For these reasons, the limitation is lawful and non-arbitrary, as it is proportionate to the legitimate aim of crime prevention.

Right to freedom of expression (section 15(2))

The right of members of prescribed organisations to seek, receive or impart information is limited, because the physical exclusion from Victorian Government worksites prohibits this expression in these locations, particularly in the context of union activities and industrial action.

The offence is directed at preventing criminal activity in public construction, and the limitation it imposes is reasonably necessary to maintain public order.

Right to peaceful assembly and freedom of association (section 16)

The rights of members of prescribed organisations to peaceful assembly and freedom of association is limited by the exclusion from Victorian Government worksites. The exclusion will prevent members from engaging in peaceful protests or union activities on Victorian Government worksites.

The limitation is lawful and non-arbitrary, as it is proportionate to the legitimate aim of crime prevention and the social need of prohibiting members from working on Victorian Government worksites. The proportionality of this limitation is evidenced by the fact that members are not prohibited from engaging in peaceful protest or union activities at any other location, including any area that is accessible to the public.

Right to take part in public life (section 18)

The right of members of prescribed organisations to, without discrimination, participate in the conduct of public affairs is limited, in so far as they are prevented from engaging in lawful protest, advocacy and industrial action at Victorian Government worksites.

The right of construction workers who are not members of prescribed organisations to participate in the conduct of public affairs through freely chosen representatives may also be limited, in so far as the offence prohibits union representatives (who are members of prescribed organisations) from attending worksites in that capacity.

The offence aims to prevent criminal activity on Victorian Government worksites, by keeping members of prescribed organisations off these sites. This is intended both to prevent crime and to protect other important rights of workers. Therefore, the limitation is reasonable and justified to achieve this purpose.

Conclusion

I am therefore satisfied for the reasons outlined above that the limitations on rights discussed are reasonable and justified in the circumstances.

The Hon Anthony Carbines MP

Minister for Police

Minister for Crime Prevention

Minister for Racing

¹Kracke v Mental Health Review Board [2009] 29 VAR 1 [619].

²Vella v Commissioner of Police for New South Wales (2019) 269 CLR 219 [78].

³ Ibid.

⁴George v Rockett (1990) 170 CLR 104 at 112 (the Court).

⁵Kracke v Mental Health Review Board [2009] 29 VAR 1 at [619] (Bell P); Castles v Secretary, Department of Justice (2010) 28 VR 141 at [77] (Emerton J).

⁶Hoverspeed Ltd v Commissioners of Customs and Excise [2002] EWHC Admin 1630 at [152]–[158]; PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373 at [91] (Bell J).

⁷Kracke v Mental Health Review Board [2009] 29 VAR 1 [619].

⁸ZZ v Secretary, Department of Justice [2013] VSC 267, [94].

Second reading

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (10:14): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Criminal Organisations Control Amendment Bill 2024 amends the Criminal Organisations Control Act ‍2012 to reform Victoria’s unlawful association scheme, introduce a new serious crime prevention order, prohibit the public display of the insignia of prescribed organisations, and prohibit members of prescribed organisations from entering Victorian Government worksites.

Organised crime in Victoria

The Australian Institute of Criminology estimates that serious and organised crime cost Australia up to $60.1 billion in 2020–21, including direct and consequential costs arising from organised crime activity and costs associated with prevention and response to serious and organised criminal activity.

Outlaw motorcycle gangs, or OMCGs as they are commonly referred to, represent some of the more highly visible, but certainly not the only, organised crime groups known by police to be operating in Victoria. Victoria Police reports that 26 individual recognised OMCGs are recorded and operating in some capacity in Victoria alone, with 40 such groups operating across Australia. Victoria Police estimates that there are 2,000 OMCG members and associates who have links to Victorian addresses. Research undertaken by the Australian Institute of Criminology in 2022 indicates that 4 in 5 Australian OMCG members had a recorded criminal history, and that OMCG members were nearly three times as likely to have contact with the criminal justice system by age 33 than others. One in 4 members had been apprehended for a recent violent or intimidation offence, and one in 8 for a recent organised crime-type offence.

Victoria Police has emphasised the increasing sophistication of these groups, noting that in recent years OMCGs have been known to collude to establish a larger organisation to facilitate major criminal ventures, with each OMCG contributing to its activities. Victoria Police has identified linkages between OMCGs and other organised crime groups with consistent attacks on tobacco stores and related businesses, fraud activities, and a wide range of other serious offending.

Victoria Police has also observed that, in recent years, high ranking members of OMCGs have shifted residence from other Australian states to Victoria where they openly congregate and consort with other serious organised crime entities, driven by effective interstate anti-association laws and serious crime prevention orders.

Unlawful association

The objective of the unlawful association scheme is to prevent and inhibit the criminal conduct of criminal groups or criminal networks, by preventing associations that may lead to this conduct.

In 2015, the Criminal Organisations Control Act was amended to introduce the unlawful association scheme. The scheme has not been used since it commenced in 2016.

The Bill modifies the unlawful association scheme to expand police powers to prohibit persons from associating with each other. Under the scheme, Victoria Police can issue a notice to persons warning them not to associate. Subsequent associations between persons issued a notice may constitute the offence of unlawful association.

Threshold to issue an unlawful association notice

Currently, Victoria Police can issue a notice directing two or more people over the age of 18 not to associate with each other, if:

• one of them has previously been convicted of an applicable offence tried on indictment, and

• the issuing officer reasonably believes that preventing association between the two is likely to prevent the commission of an offence.

The Bill amends this test to expand police powers to issue an unlawful association notice, in the following ways:

• Removing the requirement that the conviction was ‘tried on indictment’, so that a notice may be issued where a person was convicted for an applicable offence heard and determined summarily or following a plea of guilty. This expands the scope of the scheme to capture less serious offending and will enable Victoria Police to issue notices to a much broader group of people.

• Replacing the requirement for a police officer to believe a crime is likely to be prevented with a requirement that the officer is reasonably satisfied issuing the notice is likely to prevent or inhibit the establishment, maintenance or expansion of a criminal group or a criminal network, and thereby to prevent or inhibit criminal conduct. The officer must also be satisfied issuing the notice is appropriate in all the circumstances, following consideration of a list of factors such as whether issuing the notice is proportionate to the risk of criminal conduct.

The Bill also amends the definition of ‘applicable offence’ to capture serious offences punishable by at least 10 years imprisonment, offences that are linked to organised crime, and comparable interstate offences, recognising the cross-border operation of organised crime. However, the Bill provides that the unlawful association powers may not be applied in relation to a person on the basis of a conviction for an applicable offence which has since become spent, or for childhood offences unless the conviction was for a specified serious offence that occurred within the past 2 years.

Offence of unlawful association

Currently, the recipients of a notice commit an offence if they associate with a person named in the notice 3 times in a 3-month period, or 6 times in a 12-month period. This is a serious offence, and if found guilty, the person faces up to 3 years imprisonment.

The Bill will lower this threshold, so that the recipient of a notice commits an offence if they associate with the person named in the notice just once, at any time the notice is in effect. This will increase the efficacy of the scheme by making it easier for Victoria Police to charge persons for associating in contravention of a notice.

The Bill also clarifies the practical operation of the offence, amending the definition of ‘associate with’ to make it clear that chance encounters or inadvertent meetings do not, of themselves, cause a person to commit the offence. Specifically, the Bill amends the definition to clarify that, in order to commit the offence, there must be some seeking out or acceptance of the other person’s company or communication. Therefore, an accidental meeting or communication will not be an ‘association’ for the purpose of the offence, consistent with the High Court’s interpretation of the New South Wales provision in Tajjour v New South Wales (2014) 254 CLR 508.

Exceptions to the offence

The unlawful association scheme provides for a number of situations where an exception applies and associating does not constitute an offence. For example, persons subject to a notice are permitted to associate with family members, if it is not done for an ulterior purpose.

The Bill narrows the exception for association with family members by amending the definition of ‘family member’ so that it applies to a more confined group of people. The new definition includes close family relationships, but will no longer capture any person who can reasonably be regarded as ‘like family’, having regard to specific considerations. The definition retains the ‘intimate personal relationships’ exception, to ensure that relationships such as engaged couples are included. It does not, however, extend to mere close friendships.

The Bill also introduces new exceptions where an association occurs while receiving welfare services, or in the course of emergency services volunteering, or an Aboriginal person or Torres Strait Islander engaging in or performing a cultural practice or obligation.

Safeguards

The Bill strengthens the process for seeking the internal review of an unlawful association notice by increasing the minimum rank of the reviewing officer and enabling a person to seek an extension of time to apply for a review. In addition, the Bill includes a process enabling a person to apply to a court to revoke a notice if there has been a substantial change in circumstances.

The Bill also reduces the duration of an unlawful association notice from 3 to 2 years. This will ensure that the grounds for issuing a notice are reconsidered afresh within a shorter period of time.

Independent oversight of the unlawful association scheme

The Independent Broad-based Anti-corruption Commission (IBAC) will be given a new monitoring and oversight role. IBAC will be required to report annually to the Attorney-General on the exercise of unlawful association powers and conduct periodic reviews of unlawful association notices. To ensure IBAC has the information it needs, Victoria Police will be required to report to IBAC quarterly on the use of powers.

Concerns have been raised about the use of similar consorting laws in New South Wales. The NSW Ombudsman and the NSW Law Enforcement Conduct Commission have both found that young persons and Aboriginal persons have been disproportionately subject to the scheme. The Bill seeks to ensure that similar issues do not arise in Victoria. Under the revised scheme, police will not be able to issue an unlawful association notice to anyone under the age of 18. In addition, Victoria Police is required to report on the number of Aboriginal people and Torres Strait Islanders who receive a notice or are charged with the offence. Therefore, government will know if any groups are being unfairly targeted by these laws.

Serious crime prevention orders

The Bill will introduce a new serious crime prevention order scheme to replace the declaration and control order scheme in the Criminal Organisations Control Act 2012, which has not been used since it was introduced.

The purpose of the serious crime prevention order scheme is to prevent and inhibit the involvement of individuals in serious criminal activity. The scheme enables the Chief Commissioner of Police to apply for a court order restricting the activities of individuals aged 18 years or older who are involved at the most serious end of organised crime. Provided the court is satisfied that certain criteria are met, it may make an order requiring an individual to comply with tailored conditions commensurate to their risk profile, to curtail future involvement in serious criminal activity and protect the public.

These reforms have been modelled on, and are substantially similar to, the equivalent New South Wales scheme in the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW), though they have been adapted to the Victorian legislative framework. The Victorian scheme is broadly consistent with the New South Wales scheme. For example, the comparable operative provision (new section 16 in the Bill and section 5(1) in New South Wales) gives the court discretion to make an order and requires the court to undertake a balancing exercise and future risk assessment before making an order. Further examples of consistency between the schemes include, but are not limited to, the civil nature of both schemes, equivalent durations of the orders, and that both enable orders to be varied or revoked.

The analogous New South Wales scheme has been upheld by the High Court in Vella v Commissioner of Police for New South Wales (2019) 269 CLR 219. In upholding the validity of the equivalent scheme, the majority of the High Court outlined 6 steps to be followed before a court may make a serious crime prevention order. Those steps are reflected in new section 16 of the Bill. The High Court decision outlines a 6-step approach as follows:

(i) the person must be at least 18 years old;

(ii) the person must have been convicted of, or there is proof of involvement in, serious criminal offending;

(iii) the court must assess whether there is a real likelihood that the person will be involved in serious crime related activity;

(iv) the court must consider whether there are reasonable grounds to believe that the order would prevent, restrict or disrupt serious crime related activities;

(v) the order and conditions must be tailored to protect the public by preventing, restricting or disrupting further serious criminal related activities; and

(vi) the court must consider whether the order should be made in the circumstances.

Serious crime prevention orders may only be made by the court

The court may make a serious crime prevention order requiring an individual the subject of an application to comply with conditions imposed under that order, where satisfied on the balance of probabilities that the individual is either:

• an ‘eligible offender’, which is a conviction-based pathway and is defined consistently with the unlawful association scheme, or

• has been involved in serious criminal activity while 18 years or older.

The second limb recognises that a person may be ‘involved in’ serious criminal activity without being convicted of an applicable offence. This reflects that some individuals, for example leaders of organised crime groups, may not directly offend but facilitate others offending, and provides a mechanism to restrict those individuals’ activities.

Where the court is satisfied that either of the eligibility criteria has been met, it must also be satisfied, to the civil standard of proof, that there are reasonable grounds to believe that compliance with the conditions would protect the public by preventing or inhibiting the individual’s involvement in serious criminal activity and imposing the conditions is otherwise appropriate in the circumstances. Once satisfied the criteria have been met, the court may make a serious crime prevention order. The criteria ensures that any conditions are appropriate and proportionate to the risk that an individual may be involved in serious criminal activity. This is due to the requirement that the court balance the protection of the community via preventing or inhibiting the involvement of an individual in serious criminal activity as against the restrictions that a condition would place on the liberty of a person.

The court has a broad discretion to impose suitable conditions. The Bill includes a non-exhaustive list of conditions the court might impose. For example, the court may impose conditions prohibiting association with specified individuals, the use of an alias, the possession of firearms or cash or prohibiting the individual leaving Victoria or Australia. However, the Bill also requires the court to consider what is already required of a person subject to existing orders of a court or tribunal or undertakings amongst other things.

Judicial discretion and oversight in making serious crime prevention orders and determining appropriate conditions is an essential and fundamental safeguard that has been included in the scheme. This safeguard reflects the significance of serious crime prevention orders on the lives and activities of the persons subject to them, ensuring that any conditions imposed are appropriate and proportionate to prevent and inhibit serious criminal activity and protect the public.

A serious crime prevention order may be in force for a maximum duration of 5 years, although it may be varied or revoked earlier in certain situations. The Chief Commissioner of Police may apply to the court for the renewal of a serious crime prevention order and may do so more than once.

Offence for contravention of a serious crime prevention order

It will be an indictable offence to contravene a serious crime prevention order. Contravention of a serious crime prevention order is punishable by a fine of up to 600 penalty units, which is currently $118,554, and/or 5 years imprisonment.

Protection of criminal intelligence

The Bill applies the existing criminal intelligence provisions in the Criminal Organisations Control Act 2012 to the serious crime prevention order scheme. Accordingly, Victoria Police may seek to protect the confidentiality of criminal intelligence relied upon to support an application for a serious crime prevention order.

Where the Chief Commissioner of Police makes an application for a criminal intelligence protection order, the court retains a discretion to grant the order after balancing whether the need for confidentiality of the criminal intelligence outweighs any prejudice or unfairness to the individual. Unless ordered otherwise, criminal intelligence protection order applications will be heard in closed court to preserve the confidentiality of the intelligence. Whilst this will preclude an individual subject to an serious crime prevention order from attending court, the Bill provides for the appointment of special counsel to represent the interests of the individual in proceedings related to the protection of criminal intelligence.

Recognition of corresponding interstate orders

The Bill provides for the application and enforcement of corresponding orders made in other jurisdictions under similar regimes. This prevents a person to whom a similar interstate order applies from moving to Victoria and avoiding restrictions that they would otherwise be subject to.

Review of the serious crime prevention order scheme

In addition to oversight provided by judicial discretion, the Bill contains further oversight mechanisms to ensure that the serious crime prevention order scheme operates as intended, is proportionate and effective, and any unintended consequences are identified. Accordingly, the Bill provides that the Attorney-General must cause a statutory review to be undertaken 3 years following the commencement of the scheme.

Prohibition on the public display of insignia of certain organisations

Members of some criminal groups, including OMCGs, wear and display ‘colours’, such as patches, logos or other insignia, to represent their affiliation with the group. Victoria Police has indicated that such public displays are used to intimidate, stand over and influence others in the community by creating fear and an implied threat of violence, and also to attract and recruit new members through visual presence and status.

The Bill creates a criminal offence banning the public display of insignia of certain organisations to be prescribed in regulations. The offence is complemented by a range of enforcement powers. The purpose of this new scheme is to prevent or disrupt serious criminal activity in Victoria which is created or facilitated by the display of insignia. The offence will bring Victoria in line with other Australian jurisdictions and have a positive outcome for community order and safety.

The offence prohibits anyone over 18 from displaying a mark in a public place or in public view if the mark is insignia of an organisation that has been prescribed and the person knows or ought reasonably to know, that the mark is an insignia of that organisation. The knowledge element provides a safeguard against inadvertent displays by persons who were unaware or who couldn’t reasonably have known that the mark is an insignia of an organisation.

It is intended that the offence be capable of capturing a broad range of ways in which insignia might be displayed. For example, the offence may apply to the public display of insignia on clothing, jewellery, and other accessories as well as signs, flags and paintings on vehicles or buildings. Whilst the physical display of a phone displaying an insignia published on the internet would be capable of being captured by the offence, the act of publishing the insignia on the internet is not prohibited by the offence. The offence also does not apply where the public display of the insignia occurs by means of tattooing or other like process. This is consistent with human rights considerations under the Charter of Human Rights and Responsibilities Act ‍2006 and the prohibition on the display of Nazi symbols in Victoria.

Organisations in relation to which the offence will apply

The offence will only apply in relation to organisations prescribed in regulations. The Bill provides clear criteria and processes for when an organisation may be prescribed to ensure the scheme has a confined impact directly related to its purpose. Specifically, an organisation may only be prescribed upon recommendation by the Attorney-General where the Attorney-General has first consulted with the Chief Commissioner of Police and is satisfied on reasonable grounds that the application of the prohibition on publicly displaying an insignia to the organisation is likely to substantially assist in disrupting or preventing serious criminal activity, and is reasonably necessary to prevent or disrupt serious criminal activity. In considering that threshold, the Attorney-General may have regard to whether any person has been involved in serious criminal activity while a member or prospective member of the organisation.

Meaning of insignia

A mark – meaning an image or symbol, including a logo, or a piece of text, including a name, abbreviation or acronym – is an insignia of an organisation where it denotes that organisation or indicates membership of, or an association with, an organisation. Further, a mark that consists of a “1%” or “1%er” symbol will be an insignia of an organisation where it denotes or indicates membership of, or an association with, the organisation and that organisation is a motorcycle club. This reflects the use of these “1%er” symbols by those motorcycle clubs who engage in criminal activities and pride themselves on being the 1% who operate outside of the law. These changes will not affect the vast majority of motorcyclists who are law-abiding.

This means that the insignia of prescribed organisations need not be set out in the regulations; only the name of the organisation. This will provide flexibility and adaptability if organisations alter their insignia to circumvent the prohibition.

Nevertheless, there may be occasions where the scope of insignia prohibited by the scheme may be confined to specific insignia while still achieving its purpose of preventing and disrupting serious criminal activity. In such instances, the regulations may prescribe specific marks in respect of an organisation, the scheme would only apply in relation to prescribed marks as well as the “1%” and “1%er” that meet the definition of insignia.

Exceptions

The offence will be subject to a range of exceptions, recognising that there may be legitimate displays of insignia of prescribed organisations that this Bill does not seek to limit. The exceptions apply where a display occurs reasonably and in good faith:

• for a genuine academic or educational purpose

• in the performance, exhibition or distribution of a work of art

• in making or publishing a fair and accurate report of any event or matter

• by a member or officer of law enforcement integrity or intelligence agencies in the performance of the member or officer’s duties

• for the purposes of the administration of justice

• in opposition to the criminal activity of the organisation of which the mark is an insignia, or

• only for purposes not in connection with the prescribed organisation to which the mark is an insignia.

The requirement that the exceptions only apply where a display occurs reasonably and in good faith is intended to ensure organisations and their members and associates do not seek to utilise these exceptions merely as a means to escape liability for the continued public display of insignia. For example, it is not intended that a prescribed organisation could commission an artist to paint its club logo or a variation of that logo on the side of its club house in a way that is clearly visible from public places and rely on the exception for exhibiting a work of art.

Enforcement powers

The offence prohibiting the public display of insignia of prescribed organisations is intended to operate as a strong deterrent to such conduct. However, Victoria Police has made it clear that there will be individuals who may continue to flaunt the law by displaying insignia. In addition, there may be occasions where the general enforcement, investigation or prosecution of the offence requires supporting powers. Consequently, the Bill includes tailored enforcement powers.

First, police officers will be empowered to direct a person to cease display of an insignia, whether on public or private property, within a reasonable time. A police officer may give a direction to the person responsible for the display or may leave a direction in relation to a property, including a motor vehicle from which the public display is occurring. A person who, without reasonable excuse, does not comply with a direction to remove is liable to a penalty of 10 penalty units for an individual, which currently equates to $1,976, or 50 penalty units for a body corporate, which currently equates to $9,880.

Alternatively, police will be able to seize without warrant property bearing insignia of a prescribed organisations where a police officer reasonably believes that a person is committing or has committed the offence of publicly displaying insignia. This seizure power is available where the thing to be seized is located in a public place, the public display is still occurring and the police officer has asked and informed the person carrying or attending the item of certain things. Police may use reasonable force to seize property in accordance with this power if it is necessary to effect seizure.

In circumstances where the power to seize without warrant does not apply, the Bill also provides for the search and seizure warrant power under section 465 of the Crimes Act 1958 to apply in respect of the offence of publicly displaying insignia of a prescribed organisation. This ensures, for example, that police can enter private property and seize insignia in public view, or where police are otherwise unable to effect seizure while the offence is occurring. Police must apply to the Magistrates’ Court for the warrant, ensuring adequate oversight whilst enabling practical enforcement of the offence. This is in line with powers introduced to enforce the prohibition on nazi insignia in the Summary Offences Amendment (Nazi Symbol Prohibition) Act ‍2022.

Lastly, courts will also have the discretion to order the forfeiture of a seized item where the person from whom it was seized is found guilty or pleads guilty to the public display of insignia offence. For motor vehicles seized, forfeiture provisions in the Confiscation Act 1997 apply, including to address circumstances where there are multiple interests in a seized vehicle.

Offence for members of declared organisations to enter Victorian Government worksites

On 15 July 2024, the Premier announced a response by the Victorian Government to allegations of organised criminal involvement in the Victorian construction sector following allegations in the media of criminal activity and allegations of criminal associations involving the Construction, Forestry and Maritime Employees Union.

To respond to those allegations, and to assure the Victorian community that government funded construction projects operate with integrity, the Bill will introduce a new offence to prevent members of declared organisations from entering prescribed Victorian Government worksites.

The Bill provides that it is an indictable offence for an adult who is a member of an organisation prescribed under regulations to enter an area that is, or is located at a Victorian Government worksite, to which public access is restricted, where development is taking place. The offence is punishable by up to 3 years imprisonment and/or a fine of 360 penalty units, which currently equates to $71,132.

Definition of Victorian Government worksite

The Bill defines a Victorian Government worksite as an area that is prescribed in regulations made by the Governor in Council on the recommendation of the Attorney-General.

To ensure that the offence is targeted at publicly funded infrastructure projects where there is a risk of organised criminal involvement, the Attorney-General may only recommend a worksite is prescribed where it meets certain criteria. The worksite must be located at a project area, or an area the Attorney-General is reasonably satisfied is a location where public construction is occurring. Project area is defined to include: a project area under the Major Transport Projects Facilitation Act 2009; the Suburban Rail Loop Act 2021, or the Development Victoria Act 2003, or a nominated project under the Project Development and Construction Management Act 1994. Public construction is defined to include maintenance, rehabilitation, alteration, extension or demolition of any improvements on land by, or on behalf of a Department or public body.

The Attorney-General must also be reasonably satisfied that prescribing the area is likely to substantially assist in, and is reasonably necessary to, prevent or disrupt criminal conduct in relation to public construction. This ensures that the offence is applied in a way that is proportionate to and justified by the risk of organised crime involvement in the construction industry.

Prescribed organisations

The offence will only apply to members of organisations that are prescribed in regulations by the Governor in Council on the recommendation of the Attorney-General. The Attorney-General may only recommend that an organisation be prescribed if the Attorney-General has consulted with the Chief Commissioner of Police, and the Attorney-General is satisfied on reasonable grounds that applying the offence to that organisation is likely to substantially assist in disrupting or preventing criminal activity in relation to public construction, and is reasonably necessary to prevent or disrupt that activity.

Conclusion

The Bill makes a range of important amendments that aim to prevent, disrupt and counteract serious and organised crime in Victoria and keep our community safe. The Government has worked hard to ensure the reforms are both operationally workable and effective for police and subject to appropriate protections and oversight. To this end, the Bill includes a requirement that the new provisions be reviewed 3 years after they come into operation to ensure that is the case and identify any unintended issues early.

I commend the Bill to the house.

James NEWBURY (Brighton) (10:14): I move:

That debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Thursday 12 ‍September.