Serious and Organised Crime Legislation Amendment Bill 2016

Introduced: 13/9/2016By: Hon Y D'Ath MPStatus: PASSED with amendment

Justice & Rights Safety & Emergency Children & Families

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Plain English Summary

This is an omnibus bill covering multiple policy areas.

Overview

This bill dismantles Queensland's 2013 anti-bikie laws and replaces them with a new Organised Crime Regime. It repeals the VLAD Act and Criminal Organisation Act 2009, removes mandatory minimum penalties targeting gang members, and introduces a new consorting offence, control orders, public safety orders and a mandatory seven-year jail 'top-up' for serious organised crime. It also toughens laws on online child exploitation, boiler-room fraud and drug trafficking, and restores fair process rights for people applying for licences in regulated industries such as tattooing and security.

Who it affects

Members and associates of criminal organisations and outlaw motorcycle gangs, people with serious criminal records, and workers in licensed industries (tattoo, liquor, security, tow truck, motor dealing) are most directly affected. The general public is affected by new bans on wearing gang colours in public places and by new police powers to issue public safety orders.

Repeal of the 2013 anti-bikie laws

The bill scraps the VLAD Act and the Criminal Organisation Act 2009 entirely, along with the mandatory minimum penalties, reverse-onus bail rules and prisoner segregation orders introduced in 2013. The Taskforce on Organised Crime Legislation found these laws to be unfair, constitutionally risky and largely ineffective.

VLAD Act repealed in full
Criminal Organisation Act 2009 repealed in full
Show-cause bail presumption for alleged gang members removed
Criminal Organisation Segregation Orders for prisoners abolished
Anti-association (s60A) and clubhouse (s60B) offences repealed after a two-year transition

New consorting offence and control orders

Replaces the old anti-association offence with a new misdemeanour of habitually consorting with 'recognised offenders' (people with convictions for serious indictable offences) after police warn you twice. Sentencing courts can also impose Organised Crime Control Orders lasting up to five years, restricting who a convicted offender can see or meet.

Consorting with two recognised offenders after police warnings: up to three years jail
Defences for family, work, education and health consorting (including Aboriginal and Torres Strait Islander kinship)
Police can stop, search and take ID from suspected consorters
Control orders can ban association, restrict movements, and last up to five years
Public Interest Monitor oversees consorting warnings and reports annually to Parliament

Mandatory extra jail term for serious organised crime

If a person is convicted of a listed serious offence and the court is satisfied they were a participant in a criminal organisation acting at its direction or for its benefit, the court must impose an extra seven-year jail term to be served cumulatively and wholly in prison without parole. The only escape is significant cooperation with law enforcement.

Mandatory seven-year cumulative jail 'top-up' for prescribed offences with the Serious Organised Crime aggravation
Director of Public Prosecutions must consent to charging the aggravation
Cooperation with police can reduce or remove the mandatory term (assessed by the sentencing judge)
Mandatory control order also applies on top of the sentence

Public safety, restricted premises and fortification orders

Creates three new police-led schemes in the Peace and Good Behaviour Act: public safety orders (up to 7 days by police, longer by court), restricted premises orders covering so-called clubhouses and other disorderly premises, and fortification removal orders requiring owners to tear down excessive security features.

Inspector-rank police can ban people from an area or event for up to 7 days
Court-ordered restricted premises orders allow warrantless police searches of those premises
Existing 'prescribed premises' (bikie clubhouses) automatically become restricted for two years
Stop-and-desist notices can pause fortification works for 14 days while police apply for an order
Breach of a public safety order: up to three years jail

Ban on wearing colours in public

Extends the 2013 ban on wearing bikie colours in licensed premises to all public places. Wearing or carrying the colours or insignia of a listed organisation (initially the same 26 OMCGs) in a way they can be seen is now an offence, with escalating penalties.

Wearing colours in any public place (including visible from a vehicle): up to 6 months jail or 40 penalty units first offence
Second offence: up to 9 months or 60 penalty units
Third or later offences: up to 12 months or 100 penalty units
Defence for genuine artistic, educational, legal or law enforcement purpose
Licensees get a new defence if removing a colour-wearer would be unsafe or impractical

Child exploitation material and online crime

Creates three new Criminal Code offences aimed at people who run or promote child exploitation websites or teach others how to evade detection, increases existing maximum penalties, and adds an aggravation for using anonymising tools or the dark web.

New 14-year offences for administering or promoting child exploitation websites
Making or involving children in making child exploitation material: maximum lifted from 14 to 20 years
New 'hidden network / anonymising service' aggravation (up to 25 years for worst offences)
Police and CCC can order access to passwords and device contents; refusing is a new 5-year offence

Fraud, identity crime and drug trafficking

Responds to the Organised Crime Commission's findings on boiler-room investment fraud and illicit drug markets by raising maximum penalties and creating new aggravated offences.

New 20-year aggravated fraud offences for frauds over $100,000 or carrying on a business of fraud
General aggravated fraud maximum increased from 12 to 14 years
Identity crime penalties increased from 3 to 5 years
Trafficking Schedule 2 drugs maximum increased from 20 to 25 years
Mandatory 80% non-parole period for drug trafficking removed

Occupational licensing reforms

Repeals 2013 provisions that automatically refused licences to people alleged to be criminal organisation participants, restores appeal and review rights, and prohibits the use of secret criminal intelligence in most licensing decisions. Renames the Tattoo Parlours Act 2013 as the Tattoo Industry Act 2013 and opens up the framework to mobile and visiting tattooists.

People refused licences under Liquor, Motor Dealers, Racing Integrity, Second-hand Dealers, Security Providers, Tow Truck or Tattoo Parlours Acts must now be given reasons
Judicial review and merits review restored for licensing decisions
Criminal intelligence prohibited from occupational licensing decisions (except Weapons Act)
Tattoo Parlours Act renamed Tattoo Industry Act 2013 with licence renewals and mobile tattooing allowed
Planned 2017 amendments to Electrical Safety, QBCC and WHS Acts repealed before commencement

CCC and Public Interest Monitor oversight

Repeals the 2013 mandatory minimum contempt penalties for people compelled to give evidence at the CCC, restores the fear-of-retribution defence, and gives the Public Interest Monitor new oversight of the CCC's immediate response function and police-issued orders.

Fixed mandatory minimum jail terms for CCC contempt replaced with escalating maximum penalties
Fear of retribution restored as a reasonable excuse for refusing to answer CCC questions
CCC can no longer absolutely refuse to disclose potentially exculpatory evidence
Public Interest Monitor oversees consorting warnings and police public safety orders, with annual reports tabled in Parliament
Right to apply for legal assistance funding extended to all people appearing at CCC coercive hearings

How this affects you

Justice & Rights

•The VLAD Act and the Criminal Organisation Act 2009 are repealed, along with mandatory minimum jail terms for alleged bikie offencesParts 5, 6 and related repealsThe Bill reflects the unanimous recommendation of the Taskforce to repeal the VLAD Act in its entirety and the Criminal Organisation Act 2009.
•Police can warn you off associating with people who have serious criminal records, and if you keep meeting with them you can be jailed for up to three yearsNew consorting offence (Criminal Code)It will be a misdemeanour for a person to consort with two recognised offenders after having been given an official warning by police with respect to each, with a maximum penalty of three years imprisonment or 300 penalty units.
•If you are convicted of a serious offence while involved in organised crime, the court must add a mandatory extra seven years in prison with no parole on top of your sentenceNew Part 9D of Penalties and Sentences Act 1992The court must impose a fixed cumulative jail term of seven years served wholly in prison without parole release, unless the offender provides cooperation of significant use to a law enforcement agency.
•People refused a licence to run a tattoo studio, security business, tow truck, pub or pawnbroker business regain the right to be told why and to have the decision reviewed in courtParts amending Liquor, Tattoo Parlours, Security Providers, Tow Truck, Motor Dealers, Racing Integrity and Second-hand Dealers ActsThe Bill contains amendments to restore appeal and review rights affected by the 2013 suite, and to ensure that a person adversely affected by a licensing decision is entitled to be given reasons for the decision.

Safety & Emergency

•Wearing bikie colours or insignia in any public place, not just in pubs, now becomes a criminal offence carrying up to 12 months in jail for repeat offendersNew offence in Summary Offences Act 2005The maximum penalty will be six months imprisonment or 40 penalty units, increasing to nine months for a second offence and 12 months for any subsequent offence.
•A senior police officer can ban a person or group from an area, event or premises for up to seven days if they pose a serious risk to public safetyNew Public Safety Orders in Peace and Good Behaviour Act 1982A Commissioned police officer (rank of Inspector or above) can make a public safety order of up to seven days duration where there is a serious risk to public safety and the order is appropriate.
•Police can get a court order to search a 'restricted premises' such as a clubhouse any time without a warrant, and to force owners to remove excessive fortificationsNew restricted premises and fortification removal ordersPolice officers are empowered under a restricted premises order to search premises without warrant on an unlimited number of occasions for the duration of the order.
•Licensees and bar staff are no longer at risk of prosecution for failing to eject a colour-wearing patron if doing so would put their safety at riskAmended section 173EB of Liquor Act 1992A licensee, permittee or employee does not commit an offence if they reasonably believed their safety would have been endangered if they had refused entry to, or excluded or removed, a person wearing colours.

Children & Families

•People who run websites that share child exploitation material, or who promote or teach others how to use them, face new offences carrying up to 14 years in jailNew sections 228DA, 228DB and 228DC of the Criminal CodeNew offences target persons who administer websites used to distribute child exploitation material, encourage or advertise such websites, and distribute information about how to avoid detection, each with a maximum penalty of 14 years imprisonment.
•Filming or involving a child in child exploitation material now carries up to 20 years jail, or 25 years if the offender used the dark web or other anonymising toolsAmended Criminal Code sections 228A and 228BMaximum penalties for Involving child in making child exploitation material and Making child exploitation material increase from 14 to 20 years, with a new circumstance of aggravation of 25 years where a hidden network or anonymising service is used.
•Police and the Crime and Corruption Commission can now order suspects to hand over passwords to their phones and computers, with a new five-year jail penalty for refusingAmendments to Police Powers and Responsibilities Act 2000 and Crime and Corruption Act 2001A new offence is created when a person contravenes an order about information necessary to access information stored electronically, with a maximum penalty of five years imprisonment.

Bill Journey

Introduced13 Sept 2016

First Reading

Committee

Committee Report1 Nov 2016

Committee report tabled

Second Reading

In Detail

Third Reading

Royal Assent9 Dec 2016

Referenced Entities

Sectors Affected

Corrective Services Courts Criminal Law Policing Liquor

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