Human rights compliance of legislative responses to bikie gangs
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- Bu səhifədəki naviqasiya:
- Step 2: Control orders
- Low standard of proof
- Controlee’s unable to adequately challenge the case against them
- Reversal of the onus of proof
- ‘ High risk’ activities in NSW
- Criminal Property Forfeiture Act
- Analysis of NT Laws
 
Attorney General ACT Legislative Assembly GPO Box 1020 CANBERRA ACT 2601 Dear Mr Corbell Human rights compliance of legislative responses to bikie gangs Thank you for your letter of 11 May 2009, requesting advice about the human rights issues raised by outlaw motorcycle gang (‘OMCG’) legislation in light of the Human Rights Act 2004 (ACT) (‘HR Act’). In particular, you refer to the following legislation:
I welcome the opportunity to provide advice under s.27(2)(b) of the Human Rights Commission Act 2005 (ACT) on the way human rights issues might be engaged if similar legislation were to be enacted in the ACT.Summary In my view, there would need to be compelling evidence of the need to enact laws specifically targeting OMCGs in the ACT, given that the Australian Federal Police already have a broad range of powers to deal with organised crime. If the SA and NSW Act were to be introduced in the ACT, they would in my view be unlikely to comply with the HR Act. Both legislative schemes appear to be an unreasonable limitation on rights in a number of ways, but more so in the case of the SA Act. These provisions in the SA legislation include the power of the Attorney-General to declare an organisation as illegal, and control orders that create an offence of association with or between specified people or groups, are likely to be unreasonable limitations on the rights to:
If the NSW legislation were enacted in the ACT, it would also be likely to contravene the HR Act, potentially in relation to the control order provisions for the reasons above, but also it enables prohibitions on certain people from working in specified industries. This is likely to be an unreasonable limitation on the rights to:
Whilst the need to address organised crime is pressing, in my view it is not clear that attempting to prevent motorcycle gang members from associating with each other would be effective in reducing organised crime and gang-related violence. Further, this goal could be pursued in less restrictive ways, such as police using existing powers as identified in the June 2009 ACT Government Report on Serious Organised Crime.1It would also be possible to integrate many more procedural safeguards into the NSW and SA legislation. However, the recent Parliamentary Joint Committee on the Australian Crime Commission: Inquiry into the Legislative Arrangements to Outlaw Serious and Organised Crime Groups (August 2009) found that there were more effective ways of targeting organised crime, rather than anti-association laws in SA and NSW, which are similar to old consorting laws – it is more critical and effective to remove the financial motive of organised crime through confiscating proceeds of crime. It referred to the Australian Crime Commission’s submission that the impact of anti-association laws may only be short-term, and the risk of diverting valuable law enforcement resources to issues of proving membership of gangs. The Committee also noted that in Canada and the UK there had been lengthy human rights challenges to association and participation in organised crime, making the administration of these laws ‘cumbersome and inefficient’.2Detailed overview of anti- association laws Both the SA and NSW Acts use a two-part process. First, a declaration must be made that an organisation is illegal. Then control orders can be sought in relation to individuals who are members of that organisation, including restricting the movement and activities of organisation members. Step 1: an order that an organisation is a ‘declared organisation’ Both the SA and NSW laws provide a mechanism for declaring an organisation illegal on the basis of that organisation’s involvement in serious and organised criminal activity. In SA the Attorney-General must be satisfied on the balance of probabilities, that members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in ‘serious criminal activity’ which represents a risk to public safety and order.3 There is no requirement to provide reasons or police intelligence as grounds for this decision. In NSW a declaration is made by an eligible judge (who appear to be appointed using the doctrine of personae designata) makes a declaration based on similar criteria as in the SA Act. The performance of judicial functions in a personal capacity must be subject to the incompatibility principle: no function can be conferred that is incompatible either with the judge’s performance of his or her judicial function, or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power.4 Evidence that the organisation engages in ‘serious criminal activity’ is necessary to substantiate the declaration of an organisation. A major difference between the SA and NSW laws is the threshold of offences that constitute ‘serious criminal activity’. In SA ‘serious criminal activity’ is very broadly defined as offences that have a maximum penalty of 2 years imprisonment or more, which captures relatively low-level offences such as those relating to misuse of motor vehicle registration plates.5 In NSW, the definition is any offence with a maximum penalty of 5 years or more, or a violence offence holding a maximum penalty of 10 years or more. Although the NSW laws focus on more serious offences than the SA Laws, they still capture some offences that would not generally be perceived to be at the most serious end of the scale of offences – for example, wilfully obtaining property on false pretences with intent to defraud. Under the SA laws, when the Police Commissioner seeks an organisation to be ‘declared’, a notice must be published advising of this and inviting submissions.6 There is no oral hearing, as the Attorney-General considers the application by the Police Commissioner ex parte, with no obligation to consider any submissions received when making a decision.7 In contrast, under the NSW laws there must be a hearing before the eligible judge, and members of the relevant organisation may appear and make submissions.8 Other affected people may also seek leave to appear.9 However, the rules of evidence do not apply,10 and orders can be made that submissions are private, either because of the risk that criminal intelligence will be disclosed, or on grounds that persons making a submission fear for their safety. In SA a declaration has no time limit, while NSW declarations are limited to three years, but may be renewed. In both NSW and SA, the decision that an organisation is declared must be published in the State Government Gazette, and in respective newspapers.11 However, no reasons for the declaration are required to be made public. The SA legislation provides that there is no right to challenge a decision that an organisation is a ‘declared organisation’.12 On 14 May 2009, the SA Attorney-General made the ‘Finks’ OMCG a ‘declared organisation’ and listed 48 members, but the validity of the SA law is currently being challenged in the Full Court of the SA Supreme Court.13 In the meantime several control orders against Fink members, as well as applications for control orders, have been stayed pending the outcome of the challenge. As yet it appears that there have been no declarations made under the NSW law. Step 2: Control ordersThe SA law provides that on the application of the Police Commissioner, the Court must make control orders against a person if satisfied that the affected person is a member of a ‘declared organisation’.14 The affected person needs to be a member of an organisation at the time it was a controlled organisation, engages or has engaged in serious criminal activity and regularly associates with members of a declared organisation.15 In SA control orders can be issued without any notice to the affected person, and there is no opportunity for the affected person to make submissions.16 However, the affected person has 14 days once an order has been made to object to the order.17 The NSW law provides that the Supreme Court may (as opposed to must in SA) make an interim control order on application from the Police Commissioner. This may be made in the absence of, and without notice to, the affected person, or their representatives. However, in the hearing to determine if the interim control order should be made final, the affected person may appear and make submissions.18 A control order in SA may prohibit an individual from associating or communicating with specified people or a class of persons, entering or being in the vicinity of certain places, or possessing articles of a certain class, with a maximum penalty of five years’ imprisonment for non-compliance.19 In SA it is also an offence to associate knowingly or recklessly at least six times in 12 months with a person under a control order, or a member of a declared organisation. A control order in NSW is less restrictive as it prohibits individuals from associating with each other (ie another person under a control order), with a penalty of two years jail for a first offence, and five years in jail for a second offence. It also advises the respondent of the names of any other members who are also subject to control orders. NSW control orders may also prohibit an individual from associating with specified persons, and prevent the individual for working in a proscribed industry. Rights limited by laws The SA and NSW legislation limit a number of the rights protected in the HR Act in two main areas. First, the process of declaring organisations and imposing control orders impact on the right to a fair trial and other rights in criminal proceedings. Secondly, once a control order is made, the actual effect (based on its nature and extent) of a control order significantly impacts on the freedoms of association, movement and speech, not only for the person who is subject to a control order, but also their extended family members and associates. The HR Act protects the right to a fair trial (s.21) and rights in criminal proceedings (s.22). The right to a fair trial has a number of different features, but the absence of a number of these features will not necessarily make the trial unfair, because it will depend on the particular circumstances of each trial. The right to a fair trial includes civil, as well as criminal, proceedings.20 Section 22 of the HR Act sets out a number of rights in criminal proceedings, broadly described as an equality of arms between the parties, in that the accused:
Although the control order regime in the SA and NSW laws may not be strictly classified as criminal proceedings, in our view the serious restrictions on an individual's rights that can be imposed through control orders arguably make them functionally similar to imposing punishment upon the determination of a criminal charge. This is supported by the fact that breach of a control order is a criminal offence punishable upon conviction by up to five years imprisonment.21 Arguably, the rights afforded under s.22 of the HR Act should apply to the control order regime. Criminal sanctions imposed by the executive (or judge acting in a quasi-judicial role) In our view, it is doubtful that if the SA scheme were established in the ACT, it would satisfy the criteria of a ‘competent, independent and impartial court or tribunal’, or the procedure to conduct a ‘fair and public hearing’ as required by the HR Act. In SA the Attorney-General, a member of the executive rather than an independent court or tribunal, decides which organisations are to be ‘declared’. As a declaration is a necessary pre-condition to the making of a control order, it is a fundamental part of the process of determining ‘rights and obligations’ of individuals, given that significant consequences flow from the second step of issuing control orders. In Re MB22 the UK Court of Appeal issued a declaration of incompatibility with the Human Rights Act 1998 (UK) in relation to a provision of the Prevention of Terrorism Act 2005 (UK) that gave the executive the power to impose control orders, and limited the grounds on which the claimant could challenge the order through judicial review. Sullivan J concluded that the rights of those subject to control orders in that instance were: ‘…being determined not by an independent court in compliance with Art 6.1 [of the European Convention on Human Rights: the right of access to court], but by executive decision-making, untrammelled by any prospect of effective judicial supervision’.23 The NSW scheme is a lesser limitation on this right, given that a ‘designated judge’ may makes a declaration. However, it is arguable that the appointment of a judge acting in a personal capacity may breach the separation of powers doctrine, which applies in the ACT.24 Some commentators on Federal anti-terrorism laws have suggested that enabling judicial officers making preventative detention orders without a criminal charge is inherently incompatible with judicial functions, because it may undermine the integrity of the judiciary and diminish public confidence in the judiciary.25 Further, s.22(4) of the HR Act provides for a right to have a conviction for a criminal offence reviewed by a higher court in accordance with law. However, a decision that an organisation is ‘declared’ is not subject to merits or judicial review at all, and control orders have review limited to judicial review only. Low standard of proofIn deciding to impose a control order, the decision maker must only be satisfied on the ‘balance of probabilities’ that the defendant has or is likely to engage in the conduct alleged. This falls short of the standard of ‘beyond a reasonable doubt’ required in criminal law. Given the gravity of control orders, which are likely to highly restrict freedom of movement, association and speech, this lower standard does not allow the evidence to be tested with sufficient rigour as suggested in personal comments made by Nicholas Cowdery, the NSW Director of Public Prosecutions.26 Controlee’s unable to adequately challenge the case against themArticle 14(1) of the ICCPR (on which s.21 of the HR Act is based) requires that a person should have a reasonable opportunity to be heard when their civil rights are involved,27 meaning that a litigant has:
Under the SA and NSW schemes, there is no right to seek review of a declaration that an organisation is ‘declared’. The timeframes for both the declaration process and time to respond to proposed control orders are short (14 days to object to control order once an order is made in SA), and may limit the right to adequate time to prepare a defence, as protected by s.22(2)(b) of the HR Act. Whilst the laws create a right of appeal against the making of a control order, normal judicial review processes are limited. Section 35 of the NSW Act appears to remove any right of review by the Supreme Court, and explicitly denies appeal or review rights even when there has been a breach of procedural fairness. The removal of these review sections has been described by Cowdery as ‘alarming provision[s that] constitute … a frightening aggrandisement of power – in effect judicial power – to the executive.’30 Article 14(1) of the ICCPR (on which s.21 of the HR Act is based) requires that a person should have a reasonable opportunity to be heard in public when their civil rights are involved.31 The SA law is not consistent with the right to a ‘public hearing’, as written submissions provided to the Attorney-General are considered ex parte. The NSW law provides for some evidence to be provided in private, rather than in open court. Human rights law recognizes that in some circumstances non-public hearings may be justified – s.21(2) of the HR Act provides that the press and public may be excluded on a number of grounds, including for the maintenance of public order or if publicity would otherwise prejudice the interests of justice. However, the general common law presumption of public hearings is so that reliability and quality of evidence may be tested in an open forum. When evidence is heard in private, those affected by the decision are unable to know the case they need to meet. One justification for ex parte orders may be the danger that a person would abscond if he or she had notice of the intended order. However, that justification should apply on a case-by-case basis, rather than as a blanket provision. Further, the rules of evidence do not apply in hearings for control orders in either SA or NSW, which means that orders could be made on the basis of evidence that is normally considered to unreliable to determine criminal guilt, such as hearsay evidence. Reversal of the onus of proofMembers of ‘declared organisations’ who associate with one another must establish that they had a lawful excuse for associating with each other, or with persons the subject of a control order. A lawful excuse includes establishing that the association was between ‘close family members’. The drafting of this provision reverses the onus of proof, so that the accused must establish that they had a lawful reason for associating with another person, rather than requiring the prosecution to prove the offence is made out. Further, both the SA and NSW Acts have removed the presumption in favour of bail for an offence of breaching a control order.32 These provisions may be unreasonable limitations on the right to be presumed innocent, as protected in s.22(1) of the HR Act. Freedom of association, movement and speech; right to privacy The control orders in both the SA and NSW laws, and the provisions in the NSW law in relation to prohibited occupations (‘high risk activities’) significantly limit rights as they criminalise association rather than conduct or intent. Criminalising association has the potential to severely limit an individual’s ability to go about their ordinary or everyday social, business, recreational or other activities – it particularly limits freedoms of association (s.15 of the HR Act) and expression (s.16 of the HR Act). Even though both legislative schemes create exceptions to association offences for particular categories, such as close family and the legal profession,33 there is still potential for third parties who may be exposed to the risk of criminal sanction because of broader familial, religious or community connection with the subject of a control order.34 The NSW law, for example makes it an offence for a person to knowingly associate with a member of a declared organisation or someone who is subject to a control order, with a penalty of five years imprisonment. A person charged with associating has the onus of proving that they fit one of the exceptions in the legislation.35 ‘High risk’ activities in NSWThe NSW legislation provides for the suspension and cancellation of authorisations to carry on prescribed activities, usually occupations that involve having licences requiring a person to be of fit and proper character.36 Issuing a final control order automatically revokes licences in certain industries including working as a pawnbroker, security guard, tow truck driver, motor vehicle repairer, racing trainers, jockeys, book-makers and stable hands, which Premier Nathan Rees described as ‘well known to be associated with outlaw gang and related intimidatory practices’.37 However, no clear evidence has been provided of a rational connection between limiting areas of employment and improved crime control. If an individual is prevented from lawfully working in an industry that they may have skills and experience in, a possible response for the individual could be to either continue to work in that industry on an illegal basis, or to seek to gain income from other unlawful means, such as drug trafficking, money laundering, extortion, bribery, tax evasion or illegal gambling – the very activities the legislation is aimed at preventing. The NSW law also strips members of declared organisation of their firearms licence, making it an offence for a member to possess or use a firearm under the Firearms Act 1996 (NSW)38. There is no guarantee that as a result of this legislative change ‘members’ will actually dispose of their firearms. Because of this lack of a rational connection between the limitation on rights and the purpose of the limitation, it is unlikely that this aspect of the NSW laws, if enacted in the ACT would be a reasonable limitation on rights under s.28 of the HR Act. Are the limitations on rights reasonable? In relation to whether anti-terrorism control orders are consistent with human rights, the Council of Europe’s Commissioner for Human Rights has stated: …control orders are intended to substitute the ordinary criminal justice system with a parallel system run by the executive…What is essential is that the measures themselves are proportionate to the threat, objective in their criteria, respectful of all applicable rights and, on each individual application, justified on relevant, [and] objective … grounds.39 This approach is consistent with the requirement in the HR Act, that limitations must meet the test in s.28 of the HR Act as ‘reasonable limits set by Territory laws that are demonstrably justified in a free and democratic society’ – that is, proportionate to the aim that the legislation seeks to achieve. In determining whether a limitation on rights is reasonable, s.28(2) of the HR Act provides a number of mandatory considerations, outlined below:
The rights affected and the nature of these rights are considered above. (b) How important is the purpose of the limitation? Governments have a positive obligation to take measures necessary within their jurisdiction to protect the individual’s right to life (s.9 (1) of the HR Act).40 Organised crime and violence have a large and negative impact on society – individuals with no involvement can become innocent victims of violent events, such as drive by shootings and public fights, which impacts on people’s actual and perceived security and safety. Controlling organised crime and related violence is a very important purpose for the police and government. However, any preventative legislative response should be evidence based. Although recent violent motorcycle-related events inter-state have attracted media attention and public concern, consideration should be given to the levels and trends in organised crime related violence in the ACT in order to assist in determining how pressing the need is to deal with the ACT’s single OMCG, the Rebels. Proponents of the OMCG laws argue that additional police powers are necessary to meet the unique challenges posed by organised crime, in that the structure and mode of operation of organised crime groups do not fit easily in the usual concept of criminal liability.41 Financiers and ringleaders of organised crime may fund or otherwise assist criminal activity without specific knowledge of the acts committed, or provide support in a way that falls outside concepts of accessorial liability under existing criminal laws.42 The Law Council of Australia argues that legislation to outlaw specific groups known to undertake criminal activities and to criminalise membership of and association with those groups is both unnecessary and undesirable, as there is already sufficient provision for extended liability under the Commonwealth Criminal Code. Further, the Law Council believes the current Criminal Code meets Australia’s obligations at international law, under the UN Convention against Transnational Crime, which has the broad objective of encouraging countries to adopt comprehensive countermeasures against organised crime, as well as the elimination of safe havens for criminals.43 (c) What is the nature and extent of the limitation on rights? Control orders have the capacity to have a significant impact on individual liberty. Depending on the specific terms of a control order and an individual’s circumstances, a control order may make it unlawful for an individual to associate with friends and extended family members, and to attend particular places, including places of religious worship or family meeting places. As the House of Lords noted in Re MB, the consequences of an anti-terrorism control order can be ‘devastating for individuals and their families’.44 There are indirect effects of limiting an individual’s ability to go to certain places: for example, if a shopping area, school or childcare centre is within the prohibited area, it may impact on the individual’s ability to engage in family life with other family members, including dependents. The breadth and lack of certainty in the SA and NSW laws regarding the sorts of organisations that might be declared, and what constitutes ‘membership’ of a declared organisation mean the laws significantly limit rights. It is a fundamental principle of international human rights law that a limitation must not only be set out in law, but the law must be sufficiently precise and accessible to enable an individual to foresee to a degree reasonable in the circumstances, the consequences that a given action may entail.45 A limit must not be so vague and broad as to permit too much discretion and unpredictability in implementation.46 The UN Human Rights Committee has stated that limits on rights ‘may not confer unfettered discretion on those charged with their execution’.47 The European Court of Human Rights has noted: A norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.48 A declaration that an organisation is outlawed may apply to many organisations, not just motorcycle gangs. An organisation may not have a clearly defined membership list, and it may not be possible to clearly delineate who is and who is not a ‘member’. Although both the NSW and SA laws define ‘member’, the definition is very broad and includes an ‘associate member’ and a ‘prospective member’, as well as those that either consider that they themselves are members, or are considered by the organisation to be members, even if those persons do not themselves identify as members.49 There is also the potential for the laws to incorporate elements of retrospectivity, which is contrary to s.25 of the HR Act. For example, if an individual wishes to no longer be a member of an organisation once it is declared and attempts to dissociate from the organisation, under the legislation he or she may still be a member by virtue of other peoples’ opinions about membership. Individuals who may not intend to be a member of an organisation may be caught simply because some one in the organisation perceives them to be members. The SA and NSW laws as currently drafted lack the requisite certainty for individuals to regulate their own conduct, and accordingly may be insufficiently precise. (d) Is there a connection between the limitation on rights and the purpose of the limitation? In considering whether the SA and NSW laws are a reasonable limitation on rights, it is necessary to consider the relationship between the limitation on rights and the purpose that is sought to be achieved by the limitation. This requires a consideration of whether placing control orders on individuals will actually prevent them from planning, carrying out, financing or otherwise assisting organised crime activities. Concerns have been raised by the Australian Federal Police Association that should the ACT fail to enact legislation targeted at OMCG, ACT could become a ‘safe haven’ for organised crime.50 The Australian Crime Commission noted in its submission to the Parliamentary Joint Committee on the Australian Crime Commission: …anticipating legislation that will effectively outlaw OMCGs in South Australia, there are indications that some outlaw groups have already relocated to other jurisdictions’.51 However, before enacting similar laws in the ACT there needs to be more clearly-demonstrated evidence that the SA and NSW Laws have been effective in meeting the legitimate objective of deterrence, prevention, detection and prosecution of gang-related violence. It is difficult to tell without empirical evidence whether placing someone on a control order will reduce criminal behaviour. Individuals may seek alternate ways to carry out their activities in order to evade police. The connection between the illicit drug trade and some OMCGs has been well established.52 Passing draconian laws in one state may not dismantle the market and demand for drugs, and may have the result of creating more clandestine and potentially dangerous activities.53 (e) Are there any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve? The HR Act also requires consideration of whether there are any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve. As stated above, the Law Council of Australia argues that legislation to outlaw specific groups known to undertake criminal activities and to criminalise membership of and association with those groups is both unnecessary and undesirable, as there is already sufficient provision for extended liability under the Commonwealth Criminal Code.54 The Speaker of the ACT Legislative Assembly received advice from the Australian Federal Police that stated: The legislation currently available in the ACT is adequate to bring successful prosecutions at this point in time for the issues that may arise with the one known motorcycle gang in the ACT as well as with people undertaking similar activities.55 Even if it is accepted that additional police powers are needed, it would be possible to draft the legislation in a way that is less restrictive on the rights of those affected. If it is accepted that control orders are a necessary element of fighting organized crime, further procedural safeguards in laws would be necessary, such as allowing the defendant to present their case, and to view as much of the evidence against them as practicable. The Chief Police Office of the ACT should be required to apply clear and specific criteria in determining what is ‘criminal intelligence’, rather than an unfettered discretion. George Mancini, a SA barrister, suggests modeling control orders on those used for parolees, where evidence is presented in court openly and transparently, while also allowing these individuals the right to challenge the case against them.56 This is similar to the UK Serious Crime Prevention Orders made under the Serious Crimes Act 2007.57 Criminal Property Forfeiture ActThe NT Laws are designed to prevent the unjust enrichment of certain individuals as a result of criminal conduct, by forfeiture of ‘unexplained wealth’,58 which is defined as the difference between an individual’s total wealth, and the wealth for which they can lawfully account. Its purpose is to limit funds for future criminal enterprises, and restore ‘ill-gotten’ gains to the community. It also is aimed at the higher, rather than lower, echelons of organised crime. The Constitution requires that a Territory government can only acquire property on ‘just terms’, meaning that only a court order can authorise forfeiture etc. The NT Act, like most others in Australia,59 provides a mechanism for civil forfeiture that does not require the precondition of a criminal conviction.60 The difference in the NT (and WA61) law is that the onus of proof is reversed – it is placed on the individual to prove on the balance of probabilities that their wealth was acquired by legal means. Civil forfeiture can occur when a court is satisfied that it is more probable than not that criminal conduct has occurred. Applications for monitoring and suspending financial transactions can be made ex parte. A forfeiture offence is defined as an offence punishable by imprisonment for two years or more, or any other prescribed offence. Where the court is satisfied that it is more likely than not that the property was crime-used or crime-derived, then the court must order forfeiture of that property. So far there have not been any contested proceedings in the NT, as respondents have agreed to ‘consent forfeiture’. The NT law provides individuals with a right to object to their property being restrained within 28 days of being served with an order. There are also police information gathering powers including monitoring, suspending, examining and producing orders and search warrants. There is also a power to detain a person where there are reasonable grounds to suspect that persons have property liable for forfeiture, or tracking documents in their possession. Suspension orders allow for financial transactions to be suspended so law enforcement officers have 48 hours to investigate those transactions in order to prevent the possible transfer of funds out of the jurisdiction. It is an offence to disclose any financial information collected under such an order, punishable for up to five years imprisonment. Analysis of NT LawsIf enacted in the ACT, the NT laws engage a number of rights in the HR Act. Because the nature of the legislation is likely to be considered criminal in substance, procedural rights proceedings including the presumption of innocence are likely to be engaged. Under international human rights law rights in criminal proceedings may be engaged even where legislation purports to be civil in nature. In Engel v The Netherlands (No 1) the European Court set out three criteria for determining whether proceedings are criminal in nature:62
Where the nature of the liability has a punitive and deterrent purpose, the legislation is likely to be consistent with a criminal scheme.63 Given that the NT law has a strong goal of deterrence, they are likely to be considered criminal in nature.64 The right to be presumed innocent (s.22(1) of the HR Act) would therefore apply, and the NT law if enacted in the ACT could be problematic because it reverses the onus of proof, as the accused must satisfy the court that their wealth was lawfully obtained. The right to privacy and reputation (s.12), for example, is engaged in situations where police stop and search a suspect, or monitor or suspend financial transactions. In relation to police stop and search powers, they police must have ‘reasonable grounds for suspecting that the person has in his or her possession, property liable to forfeiture’. Whether a limitation on these rights is reasonable is likely to depend on the evidentiary basis on which police exercise their powers in each particular circumstance. The UK Proceeds of Crime Act 2002 establishes a similar scheme to confiscate assets obtained from a ‘criminal lifestyle’ where there is a successful criminal conviction of the relevant individual, but there is also power to restrain assets using the criteria of ‘reasonable cause to believe’ that the person has committed an offence. The Parliamentary Joint Committee on the Australian Crime Commission: Inquiry into the Legislative Arrangements to Outlaw Serious and Organised Crime Groups (August 2009) supports proposed national unexplained wealth provisions that are linked to Commonwealth offences,65 noting the exclusion of information gained from these ‘civil proceedings’ would be excluded as evidence from criminal proceedings under s.198 of the Federal Proceeds of Crime Act 2002. However, the Law Council of Australia has argued that the reverse onus of proof in unexplained wealth provisions undermines the right to the presumption of innocence, and is concerned about the lack of evidentiary safeguards and review mechanisms, as well as exclusion of legal professional privilege. Conclusion It is important that the ACT does not enact OMCG legislation without evidence that clearly demonstrates a compelling need. The NSW DPP, Mr Cowdery, has described the NSW laws as ‘a giant leap backward for human rights and the separation of powers – in short, the rule of law.’66 If there is clear empirical base to indicate existing laws are not capable of dealing with the ACT’s OMCG, the NSW and SA models should not be enacted without sufficient procedural safeguards for control orders to satisfy the rights to a fair hearing under s.21 and s.22 of the HR Act. The provision for matters to be made ex parte and lack of other procedural or evidential rules, denies the respondent the opportunity to challenge the declaration or order being sought, and there may also be difficulty in accessing the reasons for them. The severe penalty of 5 years imprisonment for breaching a control order is also disproportionate. Further, the restrictions on employment in the NSW laws, and the impact on making contact between third parties and members of controlled organisations amount to unreasonable limitations on rights of affected persons, and also those who associate with them for a non criminal purpose – for example, extended family members. If the ACT were to enact the NT ‘unexplained wealth’ provision with a reverse onus of proof, is likely that this would be incompatible with the right to the presumption of innocence. I am happy to discuss this further should you require, and can be contacted on 6205 2222. Yours sincerely Dr Helen Watchirs Human Rights and Discrimination Commissioner 20 August 2009 1 Government Report to the ACT Legislative Assembly on Serious Organised Crime Groups and Activities, tabled in the ACT Legislative Assembly on 25 June 2009. 2 Page 59 of Report. Also see Parliament of the Commonwealth of Australian, Report of the Australian Parliamentary Delegation to Canada, US, Italy, Austria, UK and the Netherlands, June 2009, pp23-4. 3 Section 10, SA Act, s.9 NSW Act. 4 Grollo v Palmer (1995) 184 CLR 348. 5 For example, Part 3A of the Road Traffic Act 1961 (SA) contains a number of offence for which the maximum penalty is two years imprisonment. 6 Section 9(b) SA Act. 7 Section 10(3) SA Act. 8 Section 8(1) NSW Act. 9 Section 8(2) NSW Act. 10 Section 31(1) NSW Act. 11 Section 11, SA Act; Section 10, NSW Act. 12 Section 41(2), SA Act. 13 Lorana Bartels, (2009) ‘The status of laws on outlaw motorcycle gangs in Australia’, Australian Institute of Criminology Research in Practice Series Number 2: http://aic.gov.au/en/publications/current%20series/rip/1-10/02.aspx. 14 Section 14(1), SA Act. 15 Section 14(2), SA Act. 16 Section 14(3), SA Act. 17 Section 17(1), SA Act. A right to appeal the outcome of a hearing on the notice of objection to the Supreme Court is provided in s.19. 18 Section 20, NSW Act. 19 Section 35, SA Act. 20 Capital Property Projects (ACT) Pty Limited v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9 (21 May 2008) at 38 per Refshauge J; SI bhnf CC v KS bhnf IS (2005) 195 FLR 151 at 164, König v Germany (1978) 2 EHRR 170 at [90]. 21 Section 35, SA Act. Under s.26 of the NSW Act it is 2 yrs for first offence, and 5 years for subsequent offence. 22 [2006] HRLR 878. 23 [2006] HRLR 878 at 101. 24 SI bhnf CC v KS bhnf IS [2005] ACTSC 125. 25 See for example, Sir Gerard Brennan, (2007) ‘The selection of Judges for Commonwealth Courts’, Senate Occasional Lecture Series. Available online at: http://www.aph.gov.au/Senate/pubs/occa_lect/transcripts/100807/index.htm. See also, Professor George Williams, Gilbert and Tobin Centre of Public Law, University of NSW, Submission to Parliamentary Joint Committee on ASIO, ASIS and DSD, 30 April 2002. 26 Nicholas Cowdery, ‘Comments on Organisation/Association Legislation on Bikie Gangs’, May 2009. 27 The right to a fair trial should receive a broad interpretation, given the fundamental importance of procedural fairness Delcourt v Belgium (1970) 1 EHRR 305 and Moreira v Portugal (1990) 13 EHRR 721 at para 660. The Human Rights Committee has held similarly in Morael v France (207/1986) and other cases. 28 Golder v UK Series A no.18 (1975) 1 EHRR 524. 29 See Wadham and Mountfield, Blackstone’s Guide to the Human Rights Act 1998 at p.142; see also Flannery v Halifax Estate Agencies [2000] 1 WLR 377; English v Emery Reimbold & Strick [2002] 1 WLR 2409; Mousaka v Golden Seagull Maritime Inc. [2001] 1 WLR 395. 30 Nicholas Cowdery, ‘Comments on Organisation/Association Legislation on Bikie Gangs’, May 2009. 31 The right to a fair trial should receive a broad interpretation, given the fundamental importance of procedural fairness Delcourt v Belgium (1970) 1 EHRR 305 and Moreira v Portugal (1990) 13 EHRR 721 at para 660. The Human Rights Committee has held similarly in Morael v France (207/1986) and other cases. 32 Nathan Rees, Agreement in Principle Speech, Crimes (Criminal Organisations Control) Bill 2009, NSW Legislative Assembly Hansard and Papers, 2 April 2009, 1. The SA Act amends the amends the Bail Act 1985 to add, as categories of prescribed applicants, applicants on whom a presumption against bail falls – see Schedule 1 of SA Act. 33 Section 35(6), SA Act; s.26(5), NSW Act. 34 Section 26 NSW Act. 35 Section 35 NSW Act. 36 Section 27, NSW Act. 37 In the ‘Agreement in Principle’ reading speech in the NSW Legislative Assembly, by the Premier. 38 Nathan Rees, Agreement in Principle Speech, Crimes (Criminal Organisations Control) Bill 2009, NSW Legislative Assembly Hansard and Papers, 2 April 2009, 2. 39 Council of Europe, Office of the Commissioner for Human Rights, Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to the United Kingdom, 4-12 November 2004, 8 June 2005, p10-12 40 Osman v UK (1999) 29 EHRR 245. 41 Dr Andreas Schloenhardt (2008), Submission to Joint Parliamentary Inquiry into the legislative arrangements to outlaw serious and organised crime groups. Available online at: http://www.aph.gov.au/senate/Committee/acc_ctte/laoscg/submissions/sub01.pdf. 42 Letter from Jon Hunt-Sharman, Australian Federal Police Association to Jeremy Hansen, ACT Liberal Party, reported in Louis Andrews, Canberra Times ‘ACT could become a 'bikie oasis', 1 April 2009. A copy of the letter is extracted on the blog ‘The Riot Act’ at http://the-riotact.com/?p=11485. 43 Law Council of Australia, ‘Submission to the Parliamentary Joint committee on the Australian Crime Commission Inquiry into the legislative arrangements to outlaw serious and organised crime groups, (2008) 4. 44 Secretary of State for the Home Department v. MB (FC) (Appellant) [2007] UKHL 46 at 23, citing Justice Chaskalson, "The Widening Gyre: Counter-terrorism, Human Rights and the Rule of Law," Seventh Sir David Williams Lecture 15. 45 Ezelin v France (1991) 14 EHRR 362 (para 45). 46 Pinkney v Canada (27/78) 29/10/81; Sunday Times (No 1) v UK 2 EHRR 245, Steel and others v UK (1999) 28 EHRR 603. 47 Human Rights Committee, General Comment 27, Freedom of movement (Art.12), U.N. Doc CCPR/C/21/Rev.1/Add.9 (1999), para 13. 48 Sunday Times v United Kingdom (1979) 2 EHRR 245 [49]. 49 Section 3 of NSW and SA Act. 50 Jon Hunt-Sharman of the Association states that he had ‘no doubts’ that if NSW enacts amendments in line with the SA legislation, organised crime would be displaced to the ACTLetter from Jon Hunt-Sharman, Australian Federal Police Association to Jeremy Hansen, ACT Liberal Party, reported in Louis Andrews, Canberra Times ‘ACT could become a 'bikie oasis', 1 April 2009. 51 Australian Crime Commission, 2008, Submission to the Parliamentary Joint Committee on the Australian Crime Commission Inquiry Into the legislative arrangements to outlaw serious and organised crime groups. Available online at http://www.aph.gov.au/SENATE/committee/acc_ctte/laoscg/submissions/sub15.pdf p10. 52 Dr Andreas Schloenhardt (2008), Submission to Joint Parliamentary Inquiry into the legislative arrangements to outlaw serious and organised crime groups. Available online at: http://www.aph.gov.au/senate/Committee/acc_ctte/laoscg/submissions/sub01.pdf. 53 Sarah Sharples ‘Anti-bikie laws: associating deeper underground’, Lawyers Weekly, 3 April 2009. 54 Law Council of Australia, ‘Submission to the Parliamentary Joint committee on the Australian Crime Commission Inquiry into the legislative arrangements to outlaw serious and organised crime groups, (2008) 4. 55 Organised Crime. Hansard (ACT Legislative Assembly) 1 April 2009. Shane Rattenbury 2009: 1692 56 See comments by George Mancini, barrister and chair of the Criminal Law Committee in SA in Sarah Sharples ‘Anti-bikie laws: associating deeper underground’, Lawyers Weekly, 3 April 2009. 57 So far has not been any successful challenges on human rights grounds, but many orders will not take affect for many years when a person has been released from prison. 58 Property Forfeiture Bill 2002 (NT), Second Reading Speech. 59 Except Tasmania, which has no civil scheme at the moment. 60 See Australian Law Reform Commission, Confiscation that Counts: A Review of the Proceeds of Crime Act 1997, (1999). 61 Criminal Property Confiscation Act 2000. 62 [1976] 1 EHRR 647. 63 Bendenoun v France (1994) 18 EHRR 54. 64 Property Forfeiture Bill 2002 (NT), Second Reading speech. 65 Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 introduced on 24 June 2009. 66 Nicholas Cowdery, ‘Comments on Organisation/Association Legislation – Bikie Gangs’ May 2009. 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