Pursue financial gain, not association

The most effective way of targeting and disrupting serious and organised crime in Australia is to pursue the motivation behind it: financial gain.

That’s one of the conclusions of a federal parliamentary enquiry on the Australian Crime Commission (ACC) into the legislative arrangements to outlaw serious and organised crime groups – of which so-called “outlaw motorcycle gangs” (OMCGs) have been targeted in recent legislation.

For example, the Serious and Organised Crime (Control) Act 2008 recently came into effect in South Australia, where a group or club can be declared an ‘organised crime group’ , which enables various orders to be made to restrict the movement and association of the group’s members.

This legislation was specifically introduced to suppress bike clubs.

On 14 May 2009, the South Australian Attorney-General, Michael Atkinson, declared the Finks Motorcycle Club to be a criminal organisation for the purposes of the Act, the first and only such declaration made under the legislation.

Subsequently, eight members of the Finks have been made subject to control orders. Those members have challenged the constitutionality of the legislation. Therefore, there are no control orders yet in effect in SA.

The terms of reference for the inquiry included examining the effectiveness of such legislative attempts to disrupt and dismantle serious and organised crime groups and associations with these groups, with particular reference to:

(a) International legislative arrangements developed to outlaw serious and organised crime groups and association to those groups, and the effectiveness of these arrangements;
(b) The need in Australia to have legislation to outlaw specific groups known to undertake criminal activities, and membership of and association with those groups;
(c) 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;
(d) The impact and consequences of legislative attempts to outlaw serious and organised crime groups, and membership of and association with these groups on:
(i) Society
(ii) Criminal groups and their networks
(iii) Law enforcement agencies; and
(iv) The judicial/legal system
(e) 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.

In its findings, the parliamentary committee noted differences of opinion, both within law enforcement and the community generally, about the effectiveness and appropriateness of anti-association laws, but also said that law enforcement agencies both within Australia and internationally are unanimous that criminal assets recovery laws are an effective way of combating organised crime at the highest level.

The committee concluded that strong criminal asset recovery laws are a significant way forward, such as the introduction of the federal Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009, which was introduced into parliament on June 24 and is an amendment to the Proceeds of Crime Act 2002. It’s claimed the recovery laws:

•    Prevent crime from occurring by ensuring criminal profits cannot be reinvested in further criminal activity;
•    Disrupt criminal enterprises;
•    Target the profit motive of organised criminal groups to deprive them of this incentive; and
•    Ensure that those benefiting most from organised crime – i.e. those receiving financial gain – are the ones captured by the law, which they are often not under ordinary criminal laws, and proceeds of crime laws which require a link to a predicate offence.

In its report, the committee acknowledged that while OMCGs present a “very public and threatening face of serious and organised crime” it also heard, during the inquiry, a number of alternative methods for both restricting association and for preventing serious and organised crime.

The committee declared that while some of these approaches share many of the benefits in South Australia’s law, they are without “some of its difficulties, complexities and costs”.

The committee urges that any legislative developments be “considered and evidence-based rather than politically driven”.

Click on the following link to read the full report into the legislative arrangements to outlaw serious and organised crime groups.