Constitutionality of Organization Criminal Act - Coursework Example

Student’s name Course code+name Professor’s name University name City, State Date of submission Abstract This paper discusses the Organization criminal Act of 2009 which was passed by the Wales and South Australia parliament; it was majorly targeting the organized motor bike gangs. The gangs were terrorizing people and were posing a great threat to the national security. The paper gives the introduction of the Act, highlighting its major components before embanking in comparing the piece of the legislation in both the south Wales and Southern Australia the paper gives the relevant decided cases concerning the Act and also discusses the constitutionality of the law by comparing how it affect the fundamental rights of the people and the security of the country in general. It concludes by giving the major points of both the laws and how it ought to be applied in both states. Table of Contents Abstract ii Table of Contents iii 1.0 Introduction 1 1.2 Definition of organized criminal group 2 1. The declaration of the criminal organization 2 2. Definition under criminal code 3 a.Application 4 b.Consideration 5 c.Declaration 6 d.Expiration/Revocation 8 2.0 Australian ‘Bikie’ Laws Contradicts Bills of right 11 2.1 Issues of the constitutionality of the Bill 13 a.The infringement of peoples right to fair trial 13 b.Too much power vested in minister 15 c.Separation of power 16 3.0 conclusions 17 1.0 Introduction In October 29, 2009 New South Wales and South Australia en acted a legislation which was aimed at restricting and controlling motorcycles gangs who were outlawed, the gang were commonly referred to as “bikie” gangs1. The introduction of the criminal organization Bill in the year 2009 by the Minister attorney General of Queensland the Hon Cameron R Dick, was aimed at controlling, restricting and disrupting the functions and activities of criminal organization within the Queensland who were chaotic and could not respect the sanctity of humanity and the rule of law. The legislation had three major objectives which it aims to achieve. Firstly it aimed at sensitizing the public on the serious security threat which the organized criminal gangs pose to the people of Queensland. Secondly, the Bill was aimed at recognizing the presence of the existing scope of the liability for criminals law which was not best suited to prosecute organized criminals and lastly the continuous intimidation and violence which the gangs were using actually frustrates proper investigation of their conduct and their prosecution. This law came into force in the year march 15th 2010 after its passage in December. The bill was majorly derived and based on the New South Wales criminal organization Act of 2009 which was a product of the serious and organized crimes control Act of 2008 of the southern Australia2. The Act of Queensland created a society which was civil regime and it gave the supreme court of Queensland powers to make orders which was capable of restricting and disrupting their organization expansion and restricting their criminal activities. It also gives the police commissioner to apply to the Supreme Court to declare any organization which is criminal in nature to be declared illegal. The court has to be satisfied with the assertion of the police commissioner about the group and certain criterion has to be met before declaration, they include; There must exist a link between the organization and the serious criminal activity There must exist or prior conviction of some of its members on criminal issues 1.2 Definition of organized criminal group There are two distinct definition of a criminal organization according to the criminal organization Act 20093, firstly the Act establishes procedures and processes to be used in declaring that a particular organization is a criminal group and this is under the second schedule of the Organization Act 2009(Qld)4. Secondly it gives the definition of the criminal organization under the criminal code of conduct as a group composed of not less than three people and have common goal and objectives of carrying out criminal activities. The code also classifies the definition as follows before its declaration; 1. The declaration of the criminal organization It gives some particular threshold which a group must meet before a supreme court could declare an organization as a criminal organization. Part two of the Act in section 8-15 gives a clear system to be used in declaring that a particular organization is a criminal or not. The police commissioner has to follow these regulations when marking submission to the Supreme Court and the Supreme Court will make the declaration of a group as a criminal organization. 2. Definition under criminal code Under criminal code, in section one of the Acts defines an organization as a group of three or more persons who normally associated for a common course in planning, organizing, supporting and facilitating criminal activities, the same definition is given under the criminal organization Act 20095. Another definition of criminal organization is an association of people who poses security through their actions to the society. Under the same section of criminal Act 2009, under paragraph (a) of the Act, it contains the purpose, structure and outcome of the organization activities. Under the Criminal Code Act, it recognizes that the group must have at least three persons; the code goes further to include any association which have no formal structure. Common sense can have it that any association or gathering whose main purpose is to plan and execute criminal activities and cause chaos within the society hence causing the disharmony and security threats. Serious criminal offense is also defines in the section seven of the Act6. After all the thresh hold have been met, the police commissioner will institute criminal proceedings against the individuals in Supreme Court. If the court is satisfied by all the conditions as set aside in the organization crime Act 2009, the court will immediately declare the persons of the association as a criminal organization. The law of South Australia provides clear offenses which come from the criminal organization unlike the Queensland Act which does not specify the offenses7. One of the defaults in the criminal Act is that it does not declare the criminal organization but only persons. Most importantly, the first step to be done according to the Act is that the group must be declared first before constituting any criminal proceedings against any member of the criminal organization by the police commissioner. There are majorly four steps involve in making the declaration of any criminal organization, first step is application which must be made by the Queensland police commissioner to the supreme court of the Queensland. a. Application The application form, procedures are outlined in section eight of the Criminal organization Act 2009 and the same application must also be served to the alleged criminal organization by the police commissioner8. The application is lodged at the discretion of the commissioner and there are compulsory requirements to be met before submission but not minimum requirement. In the application the applicant must specify the grounds under which the application is made and also clearly state the characteristics of the alleged criminal organization to be declared and the alleged group must also given opportunity to respond to the allegation made by the Commissioner of police of Queensland under section 9 of the Act. The application form contains information which is so confidential and if any case given to the respondent then might jeopardize the police investigation hence bringing the legality and constitutionality of this Act into question. The burden of prove squarely lies with the police commissioner who has to prove his case beyond any reasonable doubt to the court and this merely depends on the proper investigation of case. Incase the investigation process has been compromise then there would be difficult for the commissioner to prove reasonably its case hence the justice process is also put into jeopardy. This is mainly because of the declaration of the identity of the informant of the group hence putting its life in danger. Part six of the criminal organization Act of 2009 provides that some of the information to be declared in the form should be given as criminal intelligent report by the commissioner and the commissioner must seek permission from the Supreme Court for that order to be granted. This process is long and usually slow down the pace at which the criminal gangs are dealt with within the Queensland prejudices the process of law enforcement agents and also endangering the life of people can not be amounted to the process of justice in the constitution. After successful application of the case, it moves to the second stage which is the consideration, b. Consideration The declaration of the criminal organization is made by the highest court of the Queensland and that is the supreme court, before that, there are a number of factors which the court has to put into consideration as stated in the section 10 subjection 2 of the criminal Organization Act of 20099. The mandatory factors to be considered include; The part of the information which tries to link the organization with any serious criminal activity which they have committed The information which clearly informs the court that the alleged criminal organization members have been vindicated in serious criminal activities which has resulted into their conviction and they must show the past criminal records Any past or present conviction of the group members. information suggesting members of an interstate or overseas chapter or branch of the organization associate for the purpose of engaging in, or conspiring to engage in, serious criminal activity; and Any other relevant information must be considered by the court and proper scrutiny be done before any verdict be done by the supreme court of Queensland The main aim of section 10(2) of the criminal organization Act 2009 in giving the above compulsory guidelines is to ensure that the allegation made by the commissioner of police must link the organization members with proven tract record in committing criminal activity either in Australia or overseas10. The court must exercise due care in giving its directions before declaring the organization The constitutionality of this Act is also brought into test if the constitution is championing for integrity and rights of the individual and respect of law, the Act should promote and uphold the supremacy of the constitution by protecting it and upholding the rights of everyone which is a constitutional right. The Act tries to impose a lot of restriction the administration of justice by imposing stiff and unrealistic conditions to deal with the gangs and group of motorbike riders to continuously deprive the society of the freedom of security and peaceful coexistence. After careful consideration of submission by the Supreme Court judges, then the Supreme Court makes declaration. c. Declaration After careful consideration of the fact given by the Supreme Court concerning the alleged group, the Supreme Court can either reject or accept the application made by the commissioner of police The court will declare the organization if; The respondent alleged meets the threshold of being called a group or organization The members of the organization have a proved track record of criminal activities or are conspiring to commit criminal activities. And lastly The group poses actual security threat to the society in which they are in Section 10(1) of the Criminal organization Action 2009 outlines the compulsory conditions which the supreme court must relies own before declaring an organization as criminal organization . In section 1 of the Organization of criminal Act 2009 the criminal code definition of criminal organization specify the organization structure, effect of the organization on the community and the purpose of the organization. The supreme court can only declare an organization as criminal if it meets the threshold set up in the 10 section of the organization criminal Act of 2009 basing their decision on this Act. The second schedule further gives guidelines and definition of a criminal organization which the Supreme Court should relies on. The definition includes; Criminal group as any incorporated or unincorporated of three or more people in any structure The group can also consist of resident who are just any ordinary resident or non resident of the Queensland. At a matter of convenience, the organization must consist of at least three members and whether the group is illegal or legal that doesn’t matter the association will pass the first test. According to the second schedule, it doesn’t matter the location of the members of the group member whether they are in Queensland or are not in Queensland. Another key area for the group to qualify as the criminal group is that the group must be planning, supporting and executing illegal activities. The Supreme Court must be satisfied that the group meets all the above criterion and definitions before it can be termed and declared as criminal organization. The court must also be satisfied that; All the members of the association have common criminal objective or only some part of the group members. Are all the members having the same criminal activity records or just some part of the group? Do the members of the organization associate for the same purpose The court can also act on the basis of the satisfaction that most members of the group associate mainly for the same purpose of criminal activity and also the Supreme Court is fully satisfied that the group’s common objectives are Consist of a significant number of the total number of group members and have the capacity and ability to influence the organization actions and behaviors. If all the above condition is met and the Supreme Court is satisfied so then the group may be declared as criminal organization. After the declaration of the group, the last stage is the Revocation or Expiration. d. Expiration/Revocation Section 12 and 13 clearly states that, if the organization has been declared by the supreme court of Queensland then the declarations will remain in force for at least five years unless it is revoked. The revocation procedures are contained in the section 13 and 15 of the Organization criminal Act 2009; it gives the members of the group to apply for the revocation after three years of declaration. The revocation must be gazette as provided in section 14 of the criminal organization Act. In the case of Totani v South Australia (2009)11 the Finks Motorcycle club was subjected to the declaration which was made by the attorney general according to the organization criminal Act of 2009 when the Supreme Court made a declaration of this group on the application by the police commissioner of Queensland. On June 4th 2009 the Queensland Police commissioner made an application for control order following the adjournment of Sandro Totani motion which was pending waiting for the decision of Supreme Court which was initiated by Mr. Hudson where he was contending of the constitutionality of section 14 subsection1 of the Act. It was common ground that both Hudson and Totani were members of the burned motorcycle group Finks. On the basis of the rule of infringement of Kable principle where the Supreme Court dismissed the case, similarly the appeal case by the executive state of Australia was again dismissed. The chief justice of the France outlined very limited role which could allow the judiciary to review the constitutionality of any legislation which could actually affect or have negative impact on the right of human. The act could be rightfully argued to give the central government power to limit and restrict the freedom of its citizen, these restricted freedom includes; freedom of expression and freedom of assembly. Through declaring groups and persons as a criminal organization, people are so much restricted by this law even though they could wish to meet and express themselves in accordance with the law. French chief justice argued that, the legislation was not constitutional and totally disregarded chapter three of the Australian constitutional as it authorizes the imposition of the state on organization whether the persons affected have ever engaged in the criminal activities or not or whether the person affected are actively associated with the group or in future or not. He dismisses the Act as unconstitutional12. The impact of the SOCC Act was all the serious within the South Australian state and the parliament considers it further if they could make amendment to it. The high court held that, they could not debate on the merits and demerits of that piece of legislation and judges could do little to change it. In its application of application of the principal of the legality, the court will come up with the statutes through which they could reduce the impact which they have on the human rights. The legislatures are free to make and amend legislations so that they can serve the right of the people but not go against their will and wishes. Whether, beyond that imposition, State legislative power is constrained by rights deeply rooted in the democratic system of government and the common law was a question referred to but not explored in Union Steamship Co of Australia Pty Ltd v King. In another case of determining the constitutionality of the Act, Lord Windeyer in his judgment in the case of Kotsis v Kotsis [(1970), he stated that both function and nature of court and court officers were well known all over the England before the colonization of Australia and as to the meaning of the word “court”, it is well documented in section 70, 71 and 73 of the constitution. The assumption of constitution by courts were further explained in the case of Garden Society Ltd Vs Parkinson in his judgment, Lord Fry LJ stated that the constitution is free and fair and full of impartiality which would characterized proceedings of any court and should be proper to any judge who function properly. As the constitution is the supreme law of the country, any other law which is found to be inconsistent with the constitution should be declared void and null13. 2.0 Australian ‘Bikie’ Laws Contradicts Bills of right The other school of thought argue from the angle of international human Bill of right point of view where they argue on the unconstitutionality of the Act due to its characteristics which deny people their basic human rights of association and freedom of speech. They argue that the parliament of Australia only relied on one group to pass the Act without considering the broader spectrum of other individuals and transferred the freedom of individuals in the hands of the state, though in the republic of new south Wales and that of Queensland, the declaration which was being made by the High court but not Attorney General and something notable was that the police commissioner was not a member of the parliament hence this was making him to be free from politics and election and also there was separation of power. Though one may argue that the police commissioner was a political appointee and must dance according to the government tune but this could not be used against him when he is discharging its constitutional duties. The constitution also recognizes that the judiciary is an independent body and does not being influenced by any person or body in discharging its duties and when the judiciary declares an organization and constitutional then the decision is upheld and does not show any biasness for the state in controlling the freedom of assembly, association and speech to its citizens. Though the constitutionality of the Act is also supported by some of the salient features of the constitution, which empowers the Magistrate Court powers to make crucial decisions in South Wales to declaration of groups and the Act delegates this function to the Supreme Court with allot of confidence to deliver its judgment without unlike in southern Australia. In upholding the constitutionality of section 14(6) normally requires court to consider the following issues when they are giving order which prohibits the groups in south Wales; To consider the past behavior of the defendant and determine if the defendant is involving himself in serious criminal activities The court should also determine to what extend its actions will assist the defendant in not engaging itself in criminal activities The court should also examine the previous criminal records of the association of defendant and if continuous relationship Is there any legitimate reasons why the defendant is associating with there association. The contradiction of the Act of the Southern Australian with the Bill of rights has brought a lot of contentious on the legality of the Act on the effect of the declaration of both members and non members of the group. First the declaration makes members of the group, who is the defendant not to associate with the outlawed group members; this in particular denies the person his right and freedom of association which is grounded in the constitution. Secondly this law may affect the non current member who has been member of the group who has engaged in the activities of the group and the defendant who in the past has been convicted in court for engaging in criminal activities. This basic infringement of basic right arguably is non constitutional as championed by human activist, but in the totality of the constitution it is valid and is being practiced for the best interest of the country. 2.1 Issues of the constitutionality of the Bill The discussion of the bill recently came up again I Australia where Brisbane stated to bring the contradiction of the law into question; Le Grand law questioned the intention of the law in its intention of fighting the organized crime within the south Wales. He describes the law as “This legislation represents the most complete abrogation of the citizen’s right to a fair trial that I have witnessed in four decades of practice14” Le Grand pointed the following areas as the main point of concern in the administration of this bill and how it infringed human rights hence unconstitutional. a. The infringement of peoples right to fair trial There are only two aspect of the law of South Australia to be discussed to show that this law actually denies people the right of due process of hearing, these are the use of criminal intelligent clause in the process of application by the police commissioner, the clause denies the respondent an opportunity to access of the information until the control order is issued by the Attorney General before he can be access the information which he can use to defend himself hence this is not a fair trial process as one party is being favored and that is the state. Though the high court accept that fair trial and hearing process is part and parcel of the Australian constitution, they have failed to enforce this fundamental right of the citizens which has been openly denied by the Act. In the case of Nicholas Vs The Queen the chief Justice Gaudon gave out the necessary steps to be followed in accordance with the chapter three of the constitution, in her ruling, Her honor stated that15; “Consistency with the essential nature of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with the rules and procedures which truly permit the facts to be ascertained, and in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law”16 In her conclusion she said that the above application can denies a person his fundamental rights of fair hearing. In the case of Thomas v Mowbray, the right of a person to full hearing and exhaustively defend themselves while giving full details of the information can only be denied on the ground of national security in general. This is the part which the parliament arguably enacted this law on, that the organized gang group poses national security threat. Le Grand in his final submission concluded that the criminal organization Act is offensive due to; i. The claim by the executive can actually remain unchanged due to lack of cross examination by the defendant. ii. It goes against the rule of natural justice where it gives the court powers to make control orders without hearing from the accused person hence lacking the integrity of fair process and hearing in administration of justice. b. Too much power vested in minister The South Australian law give ministers power and authorities to make for application not like in the south Wales where the powers given to the Police Commissioner. The Attorney General is a political figure and lack the merits of being neutral in his application hence will favor the executive under which he is working under, this actually go against the international law of human rights where the state is not to interfere with peoples rights but to promote it. In this case, the state is given the sole power to control the fundamental freedom of people. In the case of Australian Communist party vs. commonwealth17 judge Dixon stated that, incase democratic institution have been in any case unconstitutionally superseded, it is done selectively with those individuals who are in power to achieve their own interest. Another argument given to show the contradiction of the bill with the constitution is the separation of power argument. c. Separation of power There is a contradiction in the application of the south Australian law with that of Wales, where in Wales model the Supreme Court which makes the declaration, in South Australian, it is the Attorney General who makes the declaration. Attorney General is one of the government Ministers hence part of the executive; in this case the executive is the plaintive of the case and also the judgment of the case. There is lack of power separation as for any fair and just hearing to be made, then the antagonist party should not be part of the decision makers of the case otherwise biasness will automatically exist18. The Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs, the High court invalidated the part of provision which states that the accused person should not be released from the jail on the basis that his fundamental rights of freedom of movement and association was greatly breached. And they argue from their judgment that they were given the directions from the parliament hence they have to adhere to it. This case clearly shows how there was lack of separation of power from the three arms of the government; and in this case the parliament which is the legislature is giving the judiciary direction and decides for them on what to do concerning a case before them, this means that the courts are not independent and are being controlled by the legislators and the executive. This particular case actually lowers the public confidence in the judiciary. Other common and recent cases in Southern Australia includes the case of Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police,19 The high court judge actually invalidated that piece of legislation citing lack of judicial independency and n his view, the decision was an imposition by the executive on the judiciary hence not constitutional. In any democratic society where the constitutionally created institution, there must be a clear separation of power and each institution given mandate to perform and execute its functions freely and without any favor from any quarter, be it from political quarter, business community or any other group. If this happens then the rights of individual, small and big young and old, rich and poor will be given fair hearing and justice will be served equally regardless of the color, gender race, political status social status or religious status. The constitution should be the means of administering justice to all20. 3.0 conclusions In general, the criminal organization Act of 2009 contains some contentious clauses which need to be ironed out in order for it to be in line with the constitution. The Act should not be seen to be repugnant to justice and administration of law to all. There is need for clear separation of power so that any process of administering justice can be termed as free and fair. The bills of rights of individuals should always be protected as that is anchored in the; Through out the discussion there are some notable in the application of this Act both in the south Wales and Southern Australia. First, in the Wales it is the Supreme Court who makes the order on the criminal organization while in the southern Australia is the Attorney general who is also one of the minister who form part of the executive, it can be argued that, since the executive is party to the case and also participates in the decision of issues the order which limits individual rights and freedom; this is unconstitutional and goes against the common bills of right anchored in the chapter three of the constitution. In Wales it is constitutional because the Supreme Court is an independent body that makes the decision on their own hence is free from biasness. In Southern Wales the Act puts a lot of restriction on part of executive which makes it difficult for them to carry out their functions and bring justice to the people of the land, this is majorly brought about by the fact that the police commissioner while making application to the supreme court is forced to disclose some of the crucial information which the defendant can use to hide t?has known that the security officers are following them up, it can be so easy for them to hide which makes it so difficult for the security officers to do the investigation. Like wise in the southern Australia there is no independency of the judiciary hence the decisions of the court are to greater extent, wishes of the executive. The constitutionality of the Act is a still a subject of discussion with different schools of thoughts supporting their stands through out the debate. The constitution still remains the supreme law as it expresses the will and the wish of people, law is there to guide man in their relationship towards each other but not to infringed the basic freedom of people. Read More