Under Part 2 of the Bill, an organisation may be deemed ‘declared’ 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’ (clause 13(1)). This may be so even if the organisation exists for other purposes and if members have never actually been convicted of any crimes (clauses 13(2), 13(3)).
Under Part 3, the court may impose control orders on members and affiliated persons of ‘declared organisations’, or on any person (not part of a ‘declared organisation’) who ‘engages in serious criminal activity’ who associates with another such person (clause 57). A ‘controlled’ person can be prohibited from associating with other persons under control orders, and can be prohibited from carrying on specified activities, carrying on specified kinds of employment, entering or being near specified places (even if they have a legal or equitable right to be there (clause 96)), or accessing or using one or more specified forms of communication or technology (clause 58). Information about declarations and control orders — including the personal details of each of the persons under a control order — must be made publicly available online (Part 6).
Part 4 creates the offences for these prohibited activities, as well as for financing a declared criminal organisation (clause 102) and recruiting members to a declared criminal organisation (clause 106).
Each of the proceedings under the Bill is said to be civil in nature, so that issues are decided on the balance of probabilities rather than beyond reasonable doubt (clause 163). For certain offences and sentencing matters, the onus of proof is reversed by presumptions (clause 181). In hearings for declarations of an organisation under Part 2, the rules of evidence do not apply (s 9(2)) and the judge is given all the powers of a Royal Commission (s 9(4)).
Like NSW and SA 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.
The Bill has been drafted with the High Court decision in mind. In particular, it attempts to avoid a challenge under Chapter 3 of the Constitution by requiring judges who make declarations under Part 2 of the Act to give reasons for that decision (clause 14).
Nevertheless, in his second reading speech, Attorney-General Christian Porter anticipated a serious challenge, stating: ‘I am fully aware that every step of this legislation is likely to be litigated, and possibly some parts subject to constitutional challenge’. In the event that the legislation is passed, it will be interesting to see if the Attorney-General’s prediction comes to pass, and whether the Attorney-General has varied his legislation enough to escape the High Court’s concerns.
KATHERINE STOREY is an Associate to Buss JA of the Supreme Court of WA.