[footnote17], Both AMA-affiliated and outlaw motorcycle clubs grew steadily into the 1940s. Clause 138 empowers the Governor-in-Council to make regulations for, or with respect to, any matter required or permitted by this Act. [footnote126] Serious and Organised Crime (Control) Act 2008, s 16(1). [footnote125], The judge must make available his or her reasons for the decision to the Commissioner, the organisation to whom the decision relates, and any person who made submissions. [footnote21] Some of today's outlaw motorcycle clubs include the one per cent label on their patches. The application followed the shooting of two people at a Gold Coast shopping centre. A declaration will remain in force until it is revoked in accordance with section 14 of the Act.[footnote127]. [footnote143] Serious and Organised Crime (Control) Act 2008, s 5A(2). The judge must deal with such an objection in accordance with s 28. Outlaw motorcycle members prefer the term OMC as they argue they have a legitimate, rather than criminal, purpose (i.e. Four violent incidents involving OMCs, or individual members of OMCs, which have received extensive media coverage are detailed below. See also Mitchell (2012) op. [footnote64] SBS Television (2012) op. [footnote86] The judgment summary from the High Court states: The absence of an obligation to give reasons for the declaration [footnoteunder s 13, Part 2 of CCOCA 2009] after what may have been a contested application was repugnant to, or incompatible with, the institutional integrity of the Supreme Court. Division 1 Applications for Control Orders. [footnote107] Maximum penalties range from 2 to 5 years imprisonment. (c) the activities of that individual and the member, former member or prospective member pose a serious threat to public safety and order. [footnote84] Under section 13, the judge was not required to provide any reasons or grounds for his or her decision.[footnote85]. [footnote57], Chapter Four of the report reviewed a range of legislative approaches in existence at that time, both in Australia and overseas, that were designed to target participation in an organised crime group. 9, no. The term 'OMC' is used in this Research Brief for simplicity purposes only and is not intended to reflect the criminality or otherwise of these groups. Once the special counsel has received the intelligence, they may only communicate to the respondent any order made by the Court in relation to the hearing. (c) endanger a person's life or physical safety; (a) an individual who is a current member of the organisation because the individual, (i) has paid a membership fee to be a member of the organisation; or, (ii) has been accepted as a member of the organisation through another process set by the organisation; or, (b) an honorary member of theorganisation; or, (c) an individual who identifies himself or herself as belonging to the organisation, including an individual who displays the patches or insignia (if any) of the organisation; or, (d) an individual whose conduct in relation to the organisation would reasonably lead another person to consider the individual to be a member of theorganisation; or. Subclause (3) provides that, if the Court is closed for the hearing, the only persons who may be present are: the Chief Commissioner (or delegate); lawyers representing the Chief Commissioner; the special counsel appointed under clause 79; any witnesses who may be called to give evidence; the presiding judge and any court staff necessary for the hearing. (c) the organisation is an unacceptable risk to the safety, welfare or order of the community. The old beer-drinking, motorcycle-riding bikie is no longer there. "There are indeed anti-consorting laws in place right now in Victoria, but sadly they have proven to be quite ineffective.". Clause 27 of the Bill refers to an application for a revocation of a declaration. Under section 13, the Attorney-General was not required to provide any reasons or grounds for the declaration or decision (unless as part of a review under Part 6 of the Act). 9, no. These include: (A) has engaged in, organised,facilitated or supported serious criminal activity; or, (B) is engaging in, organising, facilitating or supporting serious criminal activity; or, (ii) any 2 or more members, former members or prospective members of the organisation have used or are using, (B) their relationship with that organisation or with that organisation's members, former members or prospective members. Subclause (3) provides that the Court may grant leave to apply under subclause (2) if it is satisfied that there has been a substantial change in circumstances since the control order or ancillary order was made. See: s 11(1). Australian Crime Commission (2011) Organised Crime in Australia 2011, Canberra, Commonwealth of Australia, viewed 26 November 2012, . 19, no. (ii) serious criminal activity by any other person that is being or may be facilitated by the declared individual or declared organisation member. [footnote115] Serious and Organised Crime (Control) Act 2008, s 10(1). [footnote36] The impact of the relaxation of these rules has been that non-riders, whom Veno asserts are generally criminals, have joined the clubs.[footnote37]. Subclause (4) provides for exceptions to the offence provision in subclause (2). 259-281. According to Detective Superintendent Doug Fryer of Victoria Police, there are around 25 OMCs in Victoria comprising approximately 1,200 OMC members. McGarrity, N. (2012) 'Much Ado About Nothing? Notably, in regard to the standard of proof required by the High Court for the granting of SCPOs, commentators including Baroness Scotland in the Second Reading speech for the Serious Crimes Bill 2007 and the Crown Prosecution Service commonly point out that case law involving other types of civil orders show that such proceedings are viewed by the courts on a 'sliding scale', and the required standard of proof may be very close to the criminal standard. (ii) restrict, as specified in the condition,the individual's use of property made available by any person for use by any member of the organisation in their capacity as a member. Riding rules include, for example, that members must own a bike and ride at least 8,000 to 10,000 kilometres a year. It found that there were common difficulties with laws targeting association including: the challenge in defining 'organised crime groups'; and in ensuring an efficient and transparent process for determining whether a person is involved in organised crime. These definitions include: (a) a body corporate, has the meaning given by section 125; (b) an individual, includes an individual who is regularly in company with, or in communication with by any means (including by electronic communication) that individual; (b) to communicate with by any means(including by electronic communication); criminal intelligence means any information, document or other thing relating to actual or suspected criminal activity in Victoria or elsewhere, the disclosure of which could reasonably be expected to, (a) prejudice a criminal investigation, including by revealing intelligence-gathering methodologies, investigative techniques or technologies, or covert practices; or, (b) enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement; or. [footnote70] Law Institute of Victoria (2012) Peak Legal Body Throws Doubt on Effectiveness of Bikie Legislation, Media Release, 14 November, viewed 19 November 2012, . [footnote66] Detective Acting Inspector Murray from the Taskforce stated: We are certainly not there to spoil their good time at runs and functions, especially if their activities are within the law, but if they are going to hold these events, they will comply with the law like every other citizen. (2010) The Brotherhoods Inside the Outlaw Motorcycle Clubs, Crows Nest, Allen & Unwin. Veno asserts that female partners of OMC members, in general, are 'expected to prepare the food, maintain the home, look after the man and raise the kids'. "We've seen a growth over the last 12 months of membership and activity and that is something Victoria Police has asked us to remedy. [footnote101] Crimes (Criminal Organisations Control) Act 2012, s 13(2). (f) prohibit the individual from using or possessing property which a related organisation owns, possesses, occupies or uses; (g) restrict, as specified in the condition, the individual's use or possession of property which a related organisation owns, possesses, occupies or uses; (h) if the individual is a member of a relatedorganisation that is an unincorporated body or association. Section 18(3) then adds that in considering whether or not to make an order, the court must have regard to, (a) information about the following before the court. In the second reading speech, the Attorney-General stated: Organisations involved in serious criminal activity, including bikie gangs, often regard themselves as beyond the reach of the law, and commonly use violence and intimidation to achieve their criminal aims.[footnote12]. (d) has a purpose of obtaining profit, gain, power or influence, or of sexual gratification where the victim is a child. [footnote104] Crimes (Criminal Organisations Control) Act 2012, s 19(1). Clause 37 provides that declarations may be renewed more than once. It is possible for a subsequent Order to then be made by the High Court. Clause 135 states that proceedings on applications under the Bill are civil in nature, except as otherwise provided. Under subclause (2), a prospective member includes: a person whom members describe as a 'prospect' or 'nominee' of the organisation; a person nominated or sponsored by the organisation for the purpose of becoming a member; a person who wears a version of the organisation's insignia or a specific identifier that identifies them as a prospective member; a person undertaking a probationary period of membership. (2011) 'Cops Vow to Bust Up Outlaw Gangs', Sunday Herald Sun, 22 May, p. 6. [footnote50] ABC Television (2010) 'Inside the Bikie Bunker', Hungry Beast, 24 March, viewed 4 April 2012, . [footnote52], The Australian Crime Commission states that Australian-based OMCs are involved in a range of organised criminal activities including: the production, distribution and importation of methylamphetamine and precursor chemicals; trafficking MDMA (ecstasy); importing counterfeit goods; and the commercial cultivation of cannabis. (2) A question of fact to be decided by the Court in respect of any other aspect of an application under section 14 is to be decided on the balance of probabilities. Clause 43 provides that the Court may make a control order. [footnote128] Serious and Organised Crime (Control) Act 2008, s 34A(1). Crimes (Criminal Organisations Control) Act 2009, s 9. cit. The Attorney-General also mentioned that criminal intelligence applications will be heard in a closed court, unless the court determines otherwise, and that the court will be able to appoint a 'special counsel' to represent the interests of the respondent organisation or person against whom the criminal intelligence information may be used. A protected submission may also be made in private to the judge, and will be dealt with in accordance with s 29. [footnote25] Veno (2010) op. cit. (2) For the purposes of subsection (1) the following offences are specified. See: NSW, Legislative Assembly (2012) Debates, 15 February, p. 8282. [footnote49], The nature of the relationship between OMCs and organised crime is contested. In making a declaration against an organisation, the Attorney-General stated: the court must be satisfied beyond reasonable doubt that the organisation has engaged in, organised, or otherwise facilitated serious criminal activity, or else that two or more members of the organisation have used or are using the organisations, or their relationship with that organisation or its members, for such a purpose. [footnote47], Most recently in Victoria, on 28 November 2011, the sergeant-at-arms of the Bandidos motorcycle club, Toby Mitchell, was shot up to five times in broad daylight in Brunswick. [footnote94] Any other person who may be directly affected may make submissions with the leave of the judge. cit. In an attempt to distance AMA-affiliated clubs from the events in Hollister, the president of the AMA is alleged to have said that motorcyclists consisted of '99 per cent law abiding citizens and one per cent outlaws'. The Explanatory Memorandum states: The general procedures in that [footnotethe Civil Procedure] Act are primarily directed towards civil proceedings between private parties. Division 3 How Protected Criminal Intelligence is dealt with in Substantive Applications. 149-178. Anderson, P. (2012) 'Bail Denied Over Strip Club Brawl', Herald Sun, 21 January, p. 10. Under clause 71, if a protection application is made, the Court may appoint a special counsel to represent the interests of the respondent to the substantive application. Oakes, D. (2012) 'Bikie Gangs Expanding Into South-East Asia', The Age, 15 March, p. 3. [footnote129] Serious and Organised Crime (Control) Act 2008, s 34A(2). In addition, some legal details have been omitted to provide a brief overview of the Bill. (2012) 'Law Institute Questions 'Challenge-Proof' Bikie Laws', The Australian, 15 November, viewed 19 November 2012, . 31, Part 2, pp. 1, pp. They were there for me. . [footnote35], In a bid to boost membership, some OMCs have relaxed their traditional 'riding rules'. Rights of appeal are set out in s 24. Clause 45 specifies the content of a control order for a declared organisation. [footnote104], The person to whom a control order relates may make submissions at the hearing for the control order. In deciding whether or not to make a declaration, the eligible judge may have regard to a range of factors set out in the Act, including: Any submissions made in relation to the application by the Attorney General or at the hearing; Any information suggesting a link between the organisation and serious criminal activity; Any criminal convictions of current or former members of the organisation; Any information suggesting that current or former members have been, or are involved in serious criminal activity; Any information suggesting that members of an interstate or overseas branch of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity; and, Any other matter considered relevant by the eligible judge. cit. [footnote68] Victorian Liberal Nationals Coalition (2010) Vic Coalition to Outlaw Criminal Bike Gangs, Media Release, 18 March. Control orders may be made under Part 3 of the South Australian Act. [footnote43] See: R v Annakin (1988) 37 A Crim R 131. (2012) 'Shot Bikie Enforcer Home from Hospital', Herald Sun, 24 January, p. 14. The amendment will exclude the operation of the Civil Procedure Act to proceedings under the Bill. The clause states: (1) For the purposes of this Act, an organisation is an incorporated body or association (including a company or registered foreign company within the meaning of the Corporations Act) or anunincorporated body or association (however structured), whether the body or association, (a) is based in Victoria or elsewhere; or, (b) consists of persons who are or are not ordinarily resident in Victoria; or. Part 5 of the Bill provides for the procedures for registering, in Victoria, declarations and control orders made in other jurisdictions. All OMCs have their own 'territory' in which their members are free to display their patches. The Finks legal representation challenged the constitutionality of the legislation and in October 2012 was successful in their application to have the matter bought before the full bench of the High Court. It provides that the Police Commissioner may apply to the registrar for the registration of a corresponding order. ABC Television (2010) 'Inside the Bikie Bunker', Hungry Beast, 24 March, viewed 4 April 2012, . (2012) 'Close Eye on Bikie Gangs', Police Life, Autumn ed., p. 18. (ii) any members, former members or prospective members of the organisation. 19, iss. [footnote87] High Court of Australia (2011) 'Wainohu v The State of New South Wales', Judgment Summary, 23 June, viewed 16 April 2012, . Subclause (2) provides that the Court must be satisfied with certain matters in order to declare an organisation. [footnote3] Such organisations, the Attorney-General stated, are 'resistant to traditional policing methods' and 'typically intermingle their illegal activities with lawful business or social activity'. [footnote90] Section 5 clarifies that selection of the eligible judge is 'not to be made by the Attorney General or other Minister'. [footnote9], Regarding control orders, the Attorney-General noted that the Chief Commissioner will be able to apply for a control order against the declared organisation and its members or against the declared individual: 'It is the control order that will limit the activities of the organisation and its members, or the declared individual'.[footnote10]. [footnote154] A. Bligh, Premier & C. Dick, Attorney-General (2009) 'Legislation Introduced to Disrupt Serious Criminal Activity', Media Release, 29 October, viewed 10 October 2012, . Subsequently, the new Coalition Government in NSW introduced the Crimes (Criminal Organisations Control) Bill 2012, which was passed by the NSW Parliament in March. Subclause (2) specifies that the application must be made before the control order ceases to have effect. The Hon. The Schedule, as referred to in subclause (2)(b), is described in more detail at the end of this Bill section of the Research Brief. In either case, the court must also be satisfied that the activities of the organisation pose a serious threat to public safety and order.[footnote8]. [footnote108] The maximum penalty for a controlled member who recruits another person is five years imprisonment. Section 18(2) adds that the court may also make a control order, if the court is satisfied that the respondent, (a) engages in, or has engaged in, serious criminal activity; and. The gang or their members have the right (to) have their say and test the evidence'. Part 6 of the Queensland Act provides that the Police Commissioner may apply to the Supreme Court for a declaration that particular evidence is 'criminal intelligence' and accordingly can be withheld from other parties to the proceedings. The Commissioner then sought a control order from the Magistrates Court against Mr Sandro Totani, an alleged Finks member. [footnote89], Part 2 of the Crimes (Criminal Organisations Control) Act 2012 provides for an 'eligible judge' to make declarations in relation to particular organisations. There was never any pretext that members would even go near a motorcycle. Chapter Two of the Committee's report included an examination of the involvement of OMCs in organised and serious crime in Australia. [footnote118] South Australia v Totani [footnote2010] HCA 39. [footnote31] These are excerpts from the rules of the Darwin-based Blonks Motorcycle Club, as cited in Veno (2010) op. [footnote119] High Court of Australia (2010) 'State of South Australia v Totani & Anor', Judgment Summary, 11 November, viewed 18 June 2012, . [footnote153], Criminal Organisation Public Interest Monitor, Part 7 of the Queensland Act provides for the creation of the Criminal Organisation Public Interest Monitor (COPIM). Turning otherwise law-abiding citizens into criminals simply because they associate with a group is wrong and an anathema to the rule of law and freedom of association'. Clause 14 of the Bill specifies that the Chief Commissioner may apply to the Court for a declaration that: an organisation is a declared organisation; or an individual is a declared individual. A member of the organisation specified in the application may make submissions to the eligible judge at a hearing. They took me in when I was at a loose end in my life. is subsequently selected by the Chief Justice of the Supreme Court to act as an 'eligible judge'. [footnote50] Whilst they acknowledge that some members of their clubs may engage in criminal activities, they deny that OMCs as a whole are organised crime units. [footnote147] R. Wuth (2012) 'Finks Fight for Fair Trial', Gold Coast Bulletin website, 13 November, viewed 22 November 2012, . Ayling, J. Mitchell, P. (2012) 'Attorney General Defends New Bikie Laws', 774 ABC, www.abc.net.au, 14 November, viewed 21 November 2012. Robinson, R. (2007) 'Good Man Down', Herald Sun, 23 June, pp. Clause 139 amends section 17A (Restriction on Appeals) of the Supreme Court Act 1986. [footnote161] See section 5(3) of the Serious Crimes Act (UK) and Crown Prosecution Service (2012) op. [footnote168] See section 16 of the Serious Crimes Act (UK) and Crown Prosecution Service (2012) op. According to the Explanatory Memorandum, clause 70: enables the Chief Commissioner to apply to the Supreme Court for a criminal intelligence protection order to protect the confidentiality of any information, document or other thing that is related to a substantive application (as defined in clause 69) and that the Chief Commissioner believes on reasonable grounds is criminal intelligence.[footnote79]. High Court of Australia (2011) 'Wainohu v The State of New South Wales', Judgement Summary, 23 June, viewed 16 April 2012. [footnote98] The judge must, however, be satisfied that those members constitute a 'significant group within the organisation, either in terms of their numbers or in terms of their capacity to influence the organisation or its members'. Veno suggests that OMCs are built around four tenets: motorcycle riding; brotherhood; defence of territory; and partying. Cowdery, N. (2010) 'The Law of the Ruler?' 20, no. (e) an office holder of the organisation; related organisation means an organisation the membership, former membership or prospective membership of which formed the basis on which the Court was satisfied under section 19(3)(b) in making a declaration that applies to an individual; serious criminal activity means conduct that would, if the facts were found proved beyond reasonable doubt at a trial, constitute any one or more applicable offences andincludes any such conduct that occurs before the commencement of Part 2; Clause 4 provides a definition of 'applicable offence'. [footnote75] In an interview on 3AW Breakfast, the Attorney-General noted, "[footnoteOur approach] is based on evidence put before the court. [footnote97] Crimes (Criminal Organisations Control) Act 2012, s 9(1). Subclause (3) specifies that the Court may appoint the same or a different special counsel than was appointed under clause 71. Clause 35 outlines the applicable procedures for the renewal of declarations. [footnote116] Serious and Organised Crime (Control) Act 2008, s 14(5)(b). [footnote22] The Sunday Herald Sun reports that OMCs with Victorian chapters include: the Comancheros; the Bandidos; the Finks; Bros; the Coffin Cheaters; the Hells Angels; the Gypsy Jokers; the Outcasts; the Outlaws; the Rebels; the Highwaymen; the Immortals; and the Black Uhlans.[footnote23]. In the 1930s, motorcycle clubs affiliated with the American Motorcyclists Association (AMA) were regarded as 'responsible' and 'legal' clubs. [footnote59], The Committee stated that there were advantages and disadvantages for each of the legislative approaches it had examined. 1, p. 102. (b) the Chief Commissioner may withdraw the substantive application. [footnote25] He states that 'bikers' (a term for those adopting a motorcycling lifestyle) may become 'bikies' for different reasons, including: the renegade, menacing image fostered by OMCs; and/or a resentment of the police whom bikies often view as targeting motorcyclists unfairly on the road. The violence was sparked when six Comancheros, including national president Mahmoud Hawi, coincidentally boarded the same flight as Derek Wainohu, a president of the Hells Angels, from Melbourne to Sydney. [footnote144] Section 37 states that, in relation to a corresponding declaration, a registrar means: 'the holder of an office prescribed by the regulations'. . [footnote164] See sections 1 and 19 of the Serious Crimes Act (UK) and Crown Prosecution Service (2012) op. [footnote27] All members must have a reputable motorcycle and many prefer to customise and modify their Harley Davidson bikes a process known as 'chopping'.[footnote28]. Once a declaration has been made, it forms the basis of applying for further civil orders including control orders (Part 3 of the Act). On 14 November 2012, the Government introduced the Criminal Organisations Control Bill 2012. [footnote136] The maximum penalty for doing so is five years imprisonment. Section 5 provides that any question of fact to be decided by a court in proceedings under the Act 'is to be decided on the balance of probabilities'. 5070-5073, 5070. The eligible judge may make a declaration that the organisation is a declared organisation if the judge is satisfied that: (a) members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity, and, (b) the organisation represents a risk to public safety and order in this State. See also J. Ferguson (2012) 'Law Institute Questions 'Challenge-Proof' Bikie Laws', The Australian, 15 November, viewed 19 November 2012, ; D. Oakes (2012) 'New Bikie Laws 'A Serious Assault on Civil Liberties', The Age, 15 November, viewed 22 November 2012, . cit. Ten days after the bikie club feud at Sydney Airport in March 2009 (see the Background section of this research brief), the NSW Parliament passed the Crimes (Criminal Organisations Control) Act 2009 ('CCOCA 2009'). New anti-consorting laws targeting outlaw motorcycle gangs to be introduced in the Victorian Parliament will not be effective if there is not enough police to enforce them, the state's Opposition says. [footnote1] He noted that this Bill delivers on the Government's election commitment to legislate to allow criminal bikie and similar organisations to be outlawed, while ensuring that these decisions are made by the courts and after 'a robust assessment of the evidence and with affected parties having the opportunity to be heard'. For the High Court's reasons, refer to: Wainohu v The State of New South Wales [footnote2011] HCA 24. Such a person may also apply to the judge to make a 'protected submission', which is defined in s 15(11) as 'an oral or written submission made by a person who has reasonable grounds to believe that he or she may be subjected to action (whether directly or indirectly) comprising or involving injury, damage, loss, intimidation or harassment in reprisal for making the submission'. Information about Research Publications is available on the Internet at: [footnote1] Victoria, Legislative Assembly (2012) Debates, Book 16, 15 November, pp. [footnote105] A control order remains in force until it is revoked.[footnote106]. [footnote112] Crimes (Criminal Organisations Control) Act 2012, s 28(3). The requirements for an interim control order are set out in Division 1 of the Act. Regarding criminal intelligence material, the Attorney-General noted that the Bill protects sensitive criminal intelligence material, while still ensuring that it can be tested before the courts, which is important to prevent harming ongoing police investigations or endangering the safety of covert police members and those who have cooperated with police. There are indeed anti-consorting laws in place right now in Victoria, but sadly they have proven to be quite ineffective. [footnote155] Section 86 of the Act provides that the functions of the COPIM are: (a) to monitor each application to the court for a criminal organisation order or the variation or revocation of a criminal organisation order; and, (b) to monitor each criminal intelligence application; and. [footnote137] The person must have known or was reckless as to the fact that the other person was a member of a declared organisation or the subject of a control order. Clause 4(2)(b) provides for offences that are 'applicable offences' when combined with other features outlined in clause 4(1) and (2) of the Bill. The Act provides that the Commissioner and the organisation to which the application relates are entitled to make oral submissions to the eligible judge at a hearing, and with permission, written submissions. (3) The Court may revoke the control order if the Court is satisfied that the matters in section 43(1) or (2) that satisfied the Court in making the control order are no longer satisfied.
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