Page 2465 - Week 06 - Thursday, 24 June 2010
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With those words, and before I go to the detail of the bill, I make the observation that this legislation, along with the Crimes (Surveillance Devices) Bill which we debated earlier today, is complex. There are complex legal and moral issues to be considered when coming to a view as to its efficacy. To give you an idea, the scrutiny of bills committee gave this bill preliminary consideration in its report No 20, dated 15 March 2010. It devoted almost 11 pages to its preliminary analysis of the bill. Then, a week later, in report No 21 of 22 March, the scrutiny committee gave a further three pages of analysis.
This is not analysis of simple bills; it is in-depth analysis that looks at national and international law and jurisprudence. It takes a frank and fearless approach to the provision of advice to ensure that all the bases are covered. The end game is to try and minimise the risk that this complex legislation might cause for the ACT further down the track.
This bill introduces a range of new offences, including affray, participation in a criminal group and recruitment of people to criminal activity. It expands the offences relating to the protection of people involved in judicial proceedings. It reintroduces the concepts of “joint criminal enterprise” and “knowingly concerned in the commission of an offence”.
Participation in a criminal group engages the Human Rights Act provisions that allow the right to freedom of association. The Attorney-General’s presentation speech and explanatory statement addressed this matter in some detail. The offence of participation can only be made if it can be shown that the person actually participated in the group, that the person knew that the group was a criminal group and that the person knew or ought to have known that their participation would contribute to a criminal activity or was reckless as to that participation.
The definition of a “criminal group” captures the cross-jurisdictional nature of such groups. It is interesting to note that a group of three or more people can be a criminal group, even if only one of the people involved in the group is involved in the actual criminal activity of the group.
In relation to the penalty for recruiting people to engage in criminal activities, which carries a maximum penalty of seven years, the bill particularly creates an offence, with a penalty of 10 years, for recruiting a person who is under the age of 18. There is also an offence of “causes or threatens to cause” a detriment to a participant in a criminal investigation either directly or indirectly. This offence carries a maximum penalty of 500 units or five years imprisonment.
The “knowingly concerned” offence extends the provisions in the criminal code relating to complicity and common purpose and is based on case law that suggests that its omission from the criminal code creates an unintended gap. The “joint criminal enterprise” provision also closes a potential gap by capturing circumstances in which two or more people agree to commit a crime and then carry out the agreement. It also captures the offence committed in the course of carrying out the agreement.
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