ADVANCED LEGAL PROCESS & RESEARCH

QUESTION

The requirements for a grade of HD are met if the assignment demonstrates to a high standard all of the following criteria:-

Relevant and accurate knowledge and application of the rules of statutory interpretation; and

Clear, concise communication of statutory interpretation approaches

Ability to plan and record your research strategy and to provide evidence of your research

Ability to critically evaluate your own work, and to provide notes on your evaluation

SOLUTION

Part 1 – Statutory Interpretation

1. 1.               Can Toowoomba Revheads be made a Declared Criminal Organization under the Criminal Organization Act 2009?

Ans: The Crime Control Act, 2009 grants the power to a Commissioner of police who can apply to the Atty. Gen. requiring a declaration. This application has to be in writing and it should identify the organization which forms the subject matter of the application. It should also provide all the supporting evidence on which the application is based and also the details of any application made earlier. Once the application is received by the Atty. Gen., a public advertisement should be given providing information that such application has been made and the general public should be invited to give their comments on such application. There is no requirement in the act to provide the organization which forms the subject matter of the request with any specific notice of such application being made against it (Aidan Ricketts, 2002).

The Atty. Gen. can make this declaration if it feels that the members of that organization are associated with the purpose of organizing and planning serious criminal activities which are called a criminal purpose. The Atty. Gen. must also think that the organization poses a significant risk to the public safety and the situation of law and order in the state. In such cases the Atty. Gen. can make a declaration regarding the organization against which such application has been made by the Commissioner of police. In this context serious criminal activity means indictable offenses (Helen Irving, 2004). The factors which need to be considered by the Atty. Gen. before making such declaration are:-

1. If there is sufficient information present which suggests that there is a link between serious criminal activities and the organization;
2. If there are criminal convictions which are recorded against the present or the goal is to former members of the organization; or against those who are associated with the members of the organization are have associated in past with members of such organization;
3. If there is information present which suggests that the present or former members of such organization or others who are associated with our have been associated with the members of the organization in past have been involved in serious criminal activities. This involvement could either be direct or indirect and declaration can be made in this case regardless of the conduct which has resulted in such criminal convictions;
4. If there is information present which suggests that any members of the interstate or overseas branch or chapter have been associated with or planned or organized any serious criminal activity;
5. If there are public submissions related with the matter;
6. and if there is other relevant matter or material present regarding such a declaration by the Atty. Gen.

In this case it is not significant if all or only some of the members of the Association are associated with serious criminal activities provided that members do not make a noteworthy group within the organization itself. Such group can be formed in terms of influence or numbers that of such members. Similarly in this case it does not matter if these members have associated within the organization for any other non-criminal purpose. It also does not matter at all if such group is formed for a criminal purpose related with the same serious criminal activity or if it is related with any others. In case the Atty. Gen. decides to make such a declaration, they’re not required to provide any reasons for making this declaration. In the present case a declaration can be issued against Toowoomba Revheads as Alice, Sam’s Auntie who is a member of this group has been involved in serious criminal activity and has spent three years in prison. Similarly, as per the facts given in the assignment, Annabel, a friend of Sam’s Aunty who was also in prison with her is also associated with the group (David Freedman, 2006). Therefore in the circumstances a declaration can be made against the Toowoomba Revheads.

1. 2.               Can Sam be subject to a control order under the Act?

Answer:  Under the Crime Control Act, 2009, a court can make an order against a defendant an application given by the Commissioner of police it is satisfied on the basis of balance of probabilities that such person is a member of a declared organization. In such cases it is not necessary to give any notice to such person before passing a control order against that person. In case the defendant is considered as a member of the declared organization, the control order meets to prohibit such from other members of the declared organization. The control order should also prohibit from possessing prohibited weapons or other dangerous articles (Joo-Cheong Tham, 2004).  Such a control order can prohibited the person against whom it has been made from communicating or associating with certain persons belonging to a certain class. It may also prohibited the person from entering or being near any specified premises or from possessing specified articles for example weapons of a particular class. The relevant factors which need to be consider while deciding if a person or persons would engaged in serious criminal activity include the behavior of the defendant and the history of such behavior and also the fact that such order could prohibited the person or persons from engaging in serious criminal activity. The prior record of defendant along with the names mentioned as associates of the defendant should also be considered along with the legitimate reasons which the defendant might have for explaining his association with the person or persons mentioned in the application for passing a control order (Sarah Joseph, 2004).

3.         If Sam is subject to a control order, would he lose his job under the Act

Answers: The control order could also affect the job of Sam because in case a person, they automatically lose any authorization because this is for carrying on any prescribed activity. Some examples of prescribed activities have been provided in the Act itself. These include working as a commercial agent, carrying on the pawnbroker business, selling motor vehicles, operating the business of tow trucks, working in racing industry, selling liquor or working in the security industry. In the present case as Sam works part-time with a company that installs security alarms, in case a control order is passed against Sam be may lose his job as he was engaged in a prescribed activity. An interim control order can be passed by a court till it decides finally the application requesting a control order. An interim control order can be passed by the court regardless of the fact that the defendant / respondent is present are absent or makes any submission in the court. An interim control order can also impose restriction on their respondent. These restriction include restriction regarding associating with other control person but in case there is a personal relationship between the two such order can be made (Jenny Hocking, 2003).

1. 4.               If both Sam and Alice are subject to a control order, could Sam be charged under s 24 of the Act?
2. Ans.     Section 24 prescribes the conditions under which a control order or another registered corresponding control order can be contravened by a person. When a control order is passed against a person he may be prohibited from associating with a person or persons of a particular class. This includes the persons against whom a control order has already been passed by the court. In the present case if a control order is passed against Alice and later on a control order is also passed against Sam, they can be prohibited from associating with each other but as there is a personal relationship existing between the two such order may not apply to them. Though it does not matter what was the reasons behind the person associating with another person and contravening the condition of the control order but the existence of a personal relationship could provide and exception (Jeremy Kirk, 1995). Similarly it does not matter if the association was related or not with the commission or possible commission of any offence and the only exception provided under the Act is related with personal relationship. It is the responsibility of the person against whom a control order has been passed to prove the balance of probability about the existence of a personal relationship with the other person and such personal relationship should exist at the relevant time. Therefore in case a control order is passed against Alice and Sam they may not be prohibited from associating with each other due to the existence of a personal relationship between the two. However this personal relationship has to be proved by them.

1. If other members of a ‘fortheloveofrevs’ are subject to control order could Danny be charged under Section 24 of Act.
2. Ans.     A control order can be passed if the members of the organization associate with the purpose of planning or organizing serious criminal activities and if the activities of the organization pose a significant risk to public safety. In this regard any information which suggests that members of the organization including its members of overseas branches or chapters are associated with a view to organize or plan any serious criminal activity, a declaration can be made against such organization and a control order can be passed against its members. However in the present case the fact suggest that the organization called fortheloveofrevs. Is only an online social forum with a large membership and which provides general information regarding bikes and related social events. It simply provides a platform for discussions through its discussion boards and active blog. Earlier conviction of Sam under ‘Drugs’ misused Act 1986 can not result in any adverse implication for this group. Similarly this earlier convention could invite no adverse implication under the Criminal Organization Act for the family and friends of Sam (Joo-Cheong Tham, 2004).

1. 6.               Reflection
2. Ans.     While conducting an interview of the parties involved there are some question which need to be asked. These questions include the nature of association with the members of    Toowoomba Revheads. Similarly the personal relationship between Sam and Alice also need to be explored (Sarah Joseph, 2004). The nature of offence for which Alice was convicted also needs to be considered. Another question could be regarding the earlier convention of Sam under the Drug Misuse Act 1986. The activities of the group called fortheloveofrevs. Also have to be explained as it is only a online social group.

1. 7.         Amendments of legislation
2. Ans.     The parliament of Queensland authorized to make new laws and amend the existing ones. The parliament can also delegate its authority of law making to another body. This way for creating any new legislation or making amendments in the existing one the Legislative Assembly of Queensland has to pass a bill and then Royal Assent is obtained for the bill. After obtaining the Royal Assent, Bill becomes and Act. This Act could be introducing a new law or making amendments in any existing law. There are following stages in the preparation of a bill. These are policy development, making the draft, under going the parliament process and obtaining the Royal Assent.

1. 8.         Redrafting legislation
2. Ans.     Section 24 of the Criminal Organization Act 2009 (Qld) defines the existence of personal relationship as the fact which has to be proved by the person against whom a control order has been passed by the Court. (Jeremy Kirk, 1995). The responsibility to prove the balance of probability regarding the existence of a personal relationship with other persons has to be proved by the defendant. Similarly it also has to be proved by the respondent / defendant that the personal relationship was in existence at relevant time.

Part – II

Status Law Research

1. 1.         Locating and using legislation: Locate the most current electronic reprint of the Criminal Organization Act 2009 (Qld)
2. Ans.     The latest electronic reprint of the Criminal Organization Act 2009 (Qld) can be found at

www.legislation.qld.gov.au/LEGISLTN/ACTS/2009/09AC053.pdf.

1. 2.         When did the criminal organization Act 2009 (Qld) commenced and how did you locate this information?
2. Ans.     The criminal organization Act 2009 (Qld) commenced on the 15^th of the April 2010. The purpose of this Act was to restrict and disrupt the activities of the organizations which are involved in serious criminal activities. This information was obtained from the website of the Department of Justice and Attorney General, Government of Queensland. The address of the website is

www.justice.qld.gov.au./corporate/general-publications/annual-report/09-10-annualreport/performance/output3/reforms-safer-community

1. 3.               Updating and backdating Legislation

Until what date have amendments been incorporated into the latest reprint of the Criminal Organization Act 2009 (Qld) and what is the most recent amending Act listed in the Endnotes ?

1. Ans.     The latest amendments have been incorporated in the Act in through the Amendment of Parliament of Queensland Act, 2011

1. 4.         Are there further pending Amendments to the criminal organization Act 2009 Queensland, which are yet to be incorporated into the reprint
2. Ans.     The Criminal Organization Amendment Bill 2011 aims at amending the Criminal Organization Act, 2009 to clarify that the police commissioner can seek from the Supreme Court a declaration that any information provided by any agency other than the police service of Queensland can be treated as Criminal Intelligence for the purpose of Criminal Organization Act 2009. The information was obtained from the website of the government of Queensland at the following address : www.legislation.qld.gov.au/Bills/53PDF/2011/CriminalOrgAB11Exp.pdf.

1. 5.         What is the history of Section 59 of The Criminal Organization Act 2009 (Qld)
2. Ans.     Section 59 provides the definition of Criminal Intelligence which relates to the information or intelligence provided by the informants. It is information of such nature that can be reasonably expected to prejudice criminal investigation, lead to the identification of confidential informants and police officers working covertly and endangered their life or physical safety. Therefore the commissioner of police can make an application to declare particular information as criminal intelligence.

1. 6.         Judicial consideration of legislation
2. Ans.     On of the recent cases under the Criminal Organization Act 2009 (Qld) is Totani and Another v the State of South Australia [2009] SASC 301. The case was found from the website of Australian government’s Australian Institute of Criminology at the address www.aic.gov.au/publications/criminalseries/rip/1-10/~media/publications/rip/rip/02_v2.pdf.

1. 7.         Briefly describe the intended purpose of the bill, as out lined in the explanatory memorandum
2. Ans.     The main purpose of Crime Bill 2002 is to established and Assets Recovery Agency and to provide orders for confiscation in relation to persons who have been unduly benefited through criminal conduct and to issue restraint orders which prohibited any kind of dealing with such property. The Act allows for the recovery of such property which has been obtained or represents property obtained with the help of unlawful conduct. The Act also allows confiscation of property which is intended for use in any unlawful conduct or in money laundering. The provisions empower the authorities to give effect to overseas requests in such cases and orders can be made where the property is found to be or reasonably believed to be obtained with the help of criminal conduct or any other related purposes. The power to confiscate property from defendants who were convicted with a view to deprive them from the benefits of their crimes was first of all introduced when the law enforcement agencies failed to recover the proceeds of a drug trafficking racket and the proceeds were later traced in the hands of the offenders. The agencies had to return these funds as the House of Lords decided that the powers which allowed the agencies to forfeit the property used in the commission of a crime do not allow them to forfeit the money from the drug traffickers. The Act applies to cash forfeiture, money laundering and confiscation. The process of money laundering involves the conversion of proceeds of crime into legitimate looking assets which allow the criminals to retain them permanently or to use these assets in future criminal enterprises. The Criminal Justice (International Co-Operation) Act granted a new power to the law enforcement agencies. It allowed the officer of Police and customs the seize any cash found on import or export and which can be reasonably suspected of being generated by or is to be used in drug trafficking. An application can be made by agencies in the Court of Magistrate to confiscate such cash later on. In case of such forfeiture no conviction is required and the proceedings of forfeiting such cash are civil proceedings. This standard of proof applied in these cases is also of civil standard. The purpose of confiscation is to recover financial benefits obtained by an offender through unlawful means and with help of his criminal conduct. The Court can calculate the value of such benefits obtained by the offender and then order the offender to pay the same. Any amount that has been confiscated by the authorities is deducted from this amount. In some cases the Court can even presume that the income and expenditure and whole assets of the defendant during the period of 6 years immediately before the proceeding were started, have been derived through the criminal conduct of the defendant. In such cases the Court can calculate the amount of assets derived by the defendant these 6 years and order confiscation accordingly.
3. 8.               Which minister introduced this Bill into the House of Representatives and presented the second reading speech.
4. Ans.     The Bill was introduced in House of Representative by Mr. Brendan O’connor the minister for home affairs and minister for justice. He also presented the second reading speech in the house.

References:

Aidan Ricketts ‘Freedom of Association of Guilt by Association: Australia’s New Anti-Terrorism Laws and the Retreat of Political Liberty’ (2002) 6 Southern Cross University Law Review 133

David Freedman ‘The New Law of Criminal Organizations in Canada’ (2006) 85 Canadian Bar Review 171

Helen Irving ‘Advisory Opinions, The Rule of Law and the Separation of Powers’ (2004) Macquarie Law Journal 6

Jenny Hocking ‘Counter-Terrorism and the Criminalisation of Politics: Australia’s New Security Powers of Detention, Proscription and Control’ (2003) 49 Australian Journal of Politics and History 355

Jeremy Kirk ‘Constitutional Implications from Representative Democracy’ (1995) 23 Federal Law Review 37, 55

Joo-Cheong Tham ‘Possible Constitutional Objections to the Powers to Ban Terrorist Organisations’ (2004) 27(2) University of New South Wales Law Journal 482, 484

Joo-Cheong Tham ‘Possible Constitutional Objections to the Powers to Ban Terrorist Organisations’ (2004) 27(2) University of New South Wales Law Journal 482, 496                        

Sarah Joseph ‘Australian Counter-Terrorism Legislation and the International Human Rights Network’ (2004) 27(2) University of New South Wales Law Journal 428, 437

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