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Chapter 1
The conduct of the inquiry
Terms of Reference
1.1
On 17 March 2008, the Parliamentary Joint Committee on the Australian
Crime Commission initiated an inquiry into legislative arrangements to outlaw
serious and organised crime groups pursuant to paragraph 55(1)(b) of the Australian
Crime Commission Act 2002:
To report to both Houses of the Parliament, with such
comments as it thinks fit, upon any matter appertaining to the ACC or connected
with the performance of its functions to which, in the opinion of the
Committee, the attention of the Parliament should be directed.
1.2
The Terms of Reference required the committee to examine the
effectiveness of legislative efforts to disrupt and dismantle serious and
organised crime groups and associations with these groups, with particular
reference to:
-
international legislative arrangements developed to outlaw serious and
organised crime groups and association to those groups, and the effectiveness
of these arrangements;
-
the need in Australia to have legislation to outlaw specific groups
known to undertake criminal activities, and membership of and association with
those groups;
-
Australian legislative arrangements developed to target consorting for
criminal activity and to outlaw serious and organised crime groups, and
membership of and association with those groups, and the effectiveness of these
arrangements;
-
the impact and consequences of legislative attempts to outlaw serious
and organised crime groups, and membership of and association with these groups
on:
-
society
-
criminal groups and their networks
-
law enforcement agencies; and
-
the judicial/legal system
-
an assessment of how legislation which outlaws criminal groups and
membership of and association with these groups might affect the functions and
performance of the ACC.
Background to the inquiry
1.3
In September 2007, the committee tabled its report, Inquiry into the future
impact of serious and organised crime on Australian society. The inquiry
focused on future trends in serious and organised crime, strategies for
countering future serious and organised crime and the economic cost of such
strategies, and the adequacy of legislative and administrative arrangements to
meet future needs.
1.4
That inquiry found that Australia faces an increased threat from serious
and organised crime and from transnational crime, and that while a number of
legislative and other arrangements are in place, these alone may not be wholly
effective in addressing the threat.
International approaches to serious
and organised crime
1.5
During the Inquiry into the future impact of serious and organised
crime on Australian society, the then Minister for Justice, Senator the
Hon. David Johnston, wrote to the committee asking that, as part of that
inquiry, the committee examine the effectiveness of Australian legislative
arrangements to curtail the activities of organised crime groups. Senator
Johnston, also indicated that he sought to ensure that:
Australia's legislative framework for disrupting and
dismantling serious and organised crime groups continues to be as up to date
and effective as possible.[1]
1.6
In particular, the Minister noted that there would be value in examining
the effectiveness of approaches taken internationally.
1.7
The committee, at that time, was not able to discharge fully the Minister's
request. The committee did however feel that the issue was significant enough
to warrant further investigation and recommended in its report that:
... the Parliamentary Joint Committee on the Australian Crime
Commission in the next term of the Federal Parliament conduct an inquiry into
all aspects of international legislative and administrative strategies to
disrupt and dismantle serious and organised crime.[2]
1.8
In April 2009, a sub-committee of the Parliamentary Joint Committee on
the Australian Crime Commission undertook a delegation to North America, Europe
and the United Kingdom to examine international trends in serious and organised
crime and the legislative and administrative approaches adopted in a number of
jurisdictions to tackle both domestic and transnational crime.
1.9
The delegation report identified a number of areas of concern but also a
range of approaches which had been effective in addressing serious and
organised crime. The delegation report made no specific recommendations but
many of its findings inform this current report and support its
recommendations. The delegation report should be viewed as a supplementary
report to this report.
1.10
The delegation report was tabled in the Senate on 24 June 2009 and in
the House of Representatives on 25 June 2009.[3]
South Australian approaches to
serious and organised crime
1.11
The South Australian Government's introduction of the Serious and
Organised Crime (Control) Bill 2007 in February 2008 (discussed in chapter 3)
provided further impetus for the establishment of this inquiry. The
introduction of the Serious and Organised Crime (Control) Bill, signalled
a new approach to tackling serious and organised crime in Australia, and while
the Commonwealth has no jurisdiction over state and territory law enforcement,
the committee felt that it would be useful to consider any potential implications
of this new approach.
Conduct of the inquiry
1.12
The committee advertised the inquiry in The Australian newspaper
and on the committee's website. In addition, the committee wrote to a range of
organisations and individuals inviting submissions.
1.13
The committee received 24 submissions, which were published on the
committee's website. A list of submissions is included at Appendix 1.
1.14
In addition, the committee held nine public hearings; these were in
Adelaide; Perth; Sydney; Hobart; Melbourne; Canberra; Brisbane (two) and
Darwin. The witnesses who appeared before the committee at these hearings are
listed in Appendix 2.
1.15
The committee adopted the report at a private meeting on Monday 10
August 2009.
Structure of the report
1.16
The chapters of this report are organised around the key themes which
emerged during this inquiry and therefore do not neatly mirror the terms of
reference. This approach was adopted as it reduced the potential for repetition
which would have resulted if each term of reference was considered
sequentially.
1.17
Chapter 2 provides an overview of serious and organised crime in Australia.
The chapter argues that there is a need to be able to define and quantify serious
and organised crime in order to develop appropriate responses to it, and
canvasses the difficulties in such a task.
1.18
As a result of the South Australian Serious and Organised Crime
(Control) Act 2008 the involvement of outlaw motorcycle groups (OMCGs) in
serious and organised crime became a significant issue during the early stages
of this inquiry. Chapter 2 also discusses the issue of whether OMCGs are inherently
criminal organisations or whether it is individual members within OMCGs who
engage in criminal activities.
1.19
Chapter 3 provides an overview of existing legislative approaches to combat
serious and organised crime in each Australian jurisdiction.
1.20
Chapter 4 considers in detail national and international association
offences. The chapter identifies that there are various legislative models
aimed at prohibiting organised criminals from associating with each other,
considers the Serious and Organised Crime (Control) Act 2008 (SA) and
reports on national responses to the South Australian approach.
1.21
Chapter 5 evaluates existing legislation which provides for the
confiscation of assets derived from criminal activity, and considers the
benefits and disadvantages of different legislative models. The chapter also
considers legislative and administrative arrangements required to support
proceeds of crime laws.
1.22
Chapter 6 brings together the remaining themes of the inquiry to argue
that Australia must take a coordinated and holistic approach to tackling
serious and organised crime and that strong legislative arrangements in
themselves are just one part of a suite of tools and approaches.
Terminology
1.23
It should be noted that some international jurisdictions employ the term
'serious organised crime' whereas the convention in Australia is to use the
term 'serious and organised crime'. These terms are used interchangeably within
this report. In some cases the abbreviated 'organised crime' is also used.
Acknowledgements
1.24
The committee wishes to express its appreciation to all parties that
contributed to the conduct of this inquiry, whether by making a written
submission, by attendance at a hearing or, as in many cases, by making written
and oral submissions.
1.25
As part of this inquiry the committee conducted a number of site visits,
which enabled it to gain a more in-depth understanding of the issues and
agencies involved in combating serious and organised crime in Australia.
Accordingly, the committee would like to thank officers from the Australian
Crime Commission (ACC); the Australian Federal Police (AFP); the Australian
Customs and Boarder Services; CRIMTRAC and AUSTRAC.
1.26
The committee would also like to acknowledge the assistance and
expertise provided by those state and territory Commissioners of Police and senior
police officers who meet with the committee during this inquiry.
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