Pearl Lim takes issue with WA anti-association laws.
Attorney-General Christian Porter recently stated in Parliament, ‘I am fully aware that every step of this legislation is likely to be litigated, and possibly some parts subject to constitutional challenge’. He was referring to the Control of Criminal Organisations 2011 (WA), notable for its anti-association measures. The Bill follows in the failed footsteps of analogous legislation in NSW and SA, which were struck down by the High Court due to issues with the constitutional validity.
The Bill, which was introduced on the last sitting day of 2011 and is due to be debated first thing when Parliament resumes, was introduced by Attorney-General Christian Porter on the last sitting day of 2011 and has essentially two main arms of operation.
The first allows for the declaration of an organisation as a ‘criminal organisation’ by a ‘designated authority’ on the basis that ‘members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity’ and ‘represent… a risk to public safety and order’. This may be so even if the organisation exists for other purposes and if members have never actually been convicted of any crimes.
Secondly, once an organisation has been declared, the Police Commissioner or Crime and Corruption Commissioner can apply for control orders on persons who are either members, former members or somehow affiliated with the organisation. Control orders prohibit affected persons from associating with other ‘controlled’ persons, and can impose several other restrictions, such as prohibiting persons from carrying on specified types of employment, entering or being near specified places (even if they have a legal or equitable right to be there), or accessing or using one or more specified forms of communication or technology.
Furthermore, the entirety of Part 6 is dedicated to setting out how information about declarations and control orders – including the names and addresses of ‘controlled’ persons – must be made publicly available online.
A mandatory imprisonment scheme is introduced in Part 4 of the Bill, with ‘controlled’ persons caught associating liable for two years imprisonment for the first offence, and five years for the second. The Bill also criminalises the financing of and recruitment of members to declared organisations.
This short summary of the Bill’s basic operation is enough to hint at serious problems and questions regarding freedoms, judicial independence, fairness, and a whole host of sentencing issues that cannot be explored briefly.
What perhaps confirms the troubling nature of this bill is the presence of other radical measures, such as the stipulation that all proceedings under the Bill are civil in nature and thus operate on the balance of probabilities despite the presence of criminal punishments. Equally worrying is the removal of normal rules of evidence when meting out declarations for organisations as is the endowing of the ‘designated authority’ with of all the powers of a Royal Commission.
Like the New South Wales and South Australian legislation before it, the Bill threatens to erode long-established principles of public and criminal law by severely restricting individual liberty based on the possibility of some future conduct, without the determination of criminal guilt. The government is unapologetic for the rights that the Bill infringes.