Statutory Interpretation Problem - Coursework Example

Statutory Interpretation The Statutory Interpretation Problem should be answered as a problem using the IRAC method  The question at hand is whether or not Sydney Bikieboys could be a decalred organization under the purview of the Criminal Organisations Control Act 2009. The Act is better known as ‘The Serious and Organised Crime (Control) Act, 2009’ and defines a declared organization as one that has been subject to a declaration by the Magistrates of Court under Section 11. The Crimes (Criminal Organisations Control) Act 2009 is also known as “the Act”. Many like Cowdry (2009) believe that the act has become law without an appropriate amount or level of consultation with community1. there is some consensus in relation to the idea that there needed to be some action taken on the criminalization of biker groups mostly in cases wherein there is an involvement with drug manufacture and supply and crimes of violence the manner of legislation and its subsequent clauses have raised the hackles of human rights groups. As far as the case at hand is concerned, there needs to be therefore an innate understanding of the troubling clauses of the law so that David could make an informed decision. The relevant sections of the act state that: 1) The commissioner may apply to the Court for a declaration in relation to an organization. This would also mean that the Commissioner would have to inform the Attorney-General that an application has been made and the name of the organization in respect of which it has been made. Section 11 of the Act again states that “If the court is satisfied that members of the organization associate for purposes including organising, supporting or engaging in serious criminal activity the Court may make a declaration under this section in respect of the organization2.” 2) The Act makes an introduction of a number of control orders that would in essence restrict the association and meeting of the members of the ‘declared organisation’. This would mean again that the meetings would be subjected to approval by concerned authorities. In essence the legislation is not aimed specifically at bikie gangs but to any number of organizations that could prove in the long run to be a formal or an informal grouping of persons, wherever it may be based and wherever those persons may reside as long as there is a chance that the group might get be involved in criminal activities or any such activity that could be illegal or troublesome.  In the term of law, the legislation states that it could be applicable to even small, informally organised group whose members the Commissioner alleges “associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity”3. This would therefore mean that even in cases where there is no actual proof of wrong doing as long as there is a ‘hunch’ that the commissioner might have the organization can be deemed to be declared. Serious criminal activity is any activity that would demand a 5 yr penalty or more. In conclusion therefore it can be stated that there is a level of surety with which one could say that given the nature of the membership that the group has there is a possibility that the group could very well be made a declared one. One must also remember the fact that although the application of the law is not restricted to biker gangs, on an unofficial level there is a tendency to deal with biker gangs more strictly as compared to other organizations given the crime related prejudices that these gangs arouse. 2) In case the organization is in fact made a declared group there would be the lighting of problems over every single one of its members. There is the issue of the members of the group being perceived as all being involved in the activity for which the organization has been made a declared one in the first place. Section 12 of the Act states that a control order can be passed on a member of the declared organization or group. A controlled member “of a declared organisation means a person to whom an interim control order, or a control order, that is in force relates”. This order would prohibit the defendant from “a) associating or communicating with specific persons of a declared group of a declared organization; or b) Possessing a dangerous article or prohibited weapon…4” In conclusion therefore it may be summarised that there is a possibility that Danny might be named a controlled member given the fact that his uncle, through whom Danny is infact associated with the group is an ex-convict and is also in association with another convict and a member if the group as well. So in all chances Danny could come under the scanner by virtue of association. 3) The third point of concern is whether or not being a controlled member of a declared organization would mean that Danny would have to lose his job. One needs to place under consideration the simple fact that being a member of a declared organization would put Danny in a negative light in front of his employers in the first place. Then there are issues of the provisions of the act that need to be placed under consideration. Section 27 of the act states that “Prohibition on carrying on of certain activities when interim control order or control order takes effect 1) Any authorisation to carry on a prescribed activity that is held by a controlled member of a declared organisation is automatically suspended on the taking effect of an interim control order in relation to the person… 4) A controlled member of a declared organisation is prohibited from applying for any authorisation to carry on a prescribed activity so long as an interim control order or control order in relation to the member is in force5”. These are the two points that would indicted Danny indirectly if not in a direct manner. The point of concern would therefore have to be that no business owner would want a employee whose every action or inaction is the point of focus of the commissioner or legal authority6. There is also the case where in if the duties of his job include any activity that clash with a prescriptively controlled action there would automatically be the case wherein Danny would have to quit even if he was not removed from his job. In conclusion therefore it may be stated that chances of Danny loosing his job in case he is a controlled member of a declared organization are high in terms of probability. This would therefore mean that there would be strict imposition of restrictions on Vadim’s activities if he is declared a controlled member and this could thus have a manifestation wherein he could lose his job as well. 4) In case Danny and Graham are both charged under the controlled section of the act, there would arise the question of whether or not Danny would then be indictable under s 26(1) of the act. In order to understand whether or not S 26 (1) is applicable one would first have to figure out whether or Danny and Graham associate in terms of the law. In the language of the law, "associate with" means: (a) to be in company with, or (b) to communicate with by any means (including by post, facsimile, telephone and email or any other form of electronic communication). Section 26 (1) makes it an offence for a controlled member of a declared organisation to associate (simpliciter) with another controlled member of the same organisation. Nevertheless Danny and Graham are related and could claim that they are close in terms of the bon d that exists between the two of them. Under such circumstances the law makes a provision for exemption in terms of them being “close family members”. There would thus be no criminal standing of this allegation even if Danny and Graham were both declared controlled members. In conclusion therefore it may be stated that there would could be a charge of indictment based on s 26(1) of the Act but chances are the that the charges would not stand given the fact that there is a defence in place given the fact that they are related to each other. 5) The final point of consideration is whether or not an association on Danny’s part with any of the other members of the group would bring an indictment under the aegis of s 26(1) of the Act. (Refer ans 4) If other members were also declared controlled members and despite this if Danny continued his association with them he could be indicted under s 26(1) given the fact that there would be no standard exemption applicable as is applicable in Graham’s case7. In conclusion therefore it can be stated that given the fact that there are no proven relationships that Danny shares with nay of the other members that could be defined as relative or even work oriented an association could lead to an indictment. Reference: Cowdry N, (2009), Comments of Organization and Association legislation, Bikie Gangs, accessed October 12, 2009, < http://74.125.155.132/search?q=cache:emjA3jsdDY0J:www.odpp.nsw.gov.au/speeches/Organisation%2520-%2520association%2520legislation.DOC+Criminal+Organisations+Control)+Act+2009+(NSW)+(‘the+Act’),+Definition,+Associate+with&cd=2&hl=en&ct=clnk&gl=in> Crimes (Criminal Organisations Control) Act 2009 No 6, accessed October 12, 2009, < http://www.legislation.nsw.gov.au/fullhtml/inforce/act+6+2009+cd+0+N> Brassil B, 2000, Excel preliminary legal studies, pub, Pascal Press, pp22-25 Loughnan A, 2009, The Legislation We Had to Have?: The Crimes (Criminal Organisations Control) Act 2009 (NSW), pub, Current Issues in Criminal Justice, Vol. 20, No. 3, pp. 457-465 Crimes Control Act, Section 3, accessed October 13, 2009, < http://austlii.law.uts.edu.au/au/legis/nsw/consol_act/coca2009391/s3.html> Crimes Control Act, Section 27, accessed, October 13, 2009, < http://www.austlii.edu.au/au/legis/nsw/consol_act/coca2009391/s3.html#member> Serious and Organized Crime Control Act, 2009, Section 11, accessed October 13, 2009, < http://docs.google.com/gview?a=v&q=cache:7_MacdP2vk8J:www.ypsa.org.au/__files/f/1070/Serious%2520and%2520Organised%2520Crime%2520Control%2520Bill%25202009.pdf+Definition,+Declared+Organization,+iminal+Organisations+Control)+Act+2009&hl=en&gl=in&sig=AFQjCNE33PjVDBsb0MNY15_URQ_iYfsRbw&pli=1> Read More