Page 2471 - Week 06 - Thursday, 24 June 2010
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Clause 9.
MR RATTENBURY (Molonglo) (4.56): I move amendment No 1 circulated in my name [see schedule 3 at page 2486].
Today’s government bill creates the new offence of “participation in a criminal group”. At the outset, it should be noted that this is better and more robust than any anti-bikie law, the point I made earlier and that Mr Corbell touched on in his comments just a moment ago. Anti-bikie laws prescribe an organisation as criminal and criminalise participation in a group outright. This is contrasted with the proposal today, which requires a group to be actually planning and preparing to commit a serious crime. This is a better construction of the offence and is a vast improvement.
Nevertheless, there is still one key unresolved issue in the construction of this offence. The Greens’ concern is that the proposed construction of the crime leaves the door open for criminalisation of innocent participation in a group. This cuts directly across the principle that you should be charged with the crime you commit, not the group you belong to.
There is, however, an appropriate and relatively simple way to fix this issue and close the door on that danger, and the amendment that I am proposing on behalf of the Greens would do just that. This issue is that one element of the crime is that the defendant must have known or, in the words of the section, “ought to have known” that their participation in the group contributed to criminal activity. The danger in this proposal is in the wording “ought to have known”. As the government’s explanatory statement sets out, the “ought to have known” test will be satisfied in a court where it can be proven that, had the accused thought about it, they ought to have known that there was a real chance of their behaviour contributing to a crime. Therefore, a person who acts in haste, is naive or is simply slow minded could be caught up in this definition; that is, they should have known they were contributing to a crime but they did not actually know at the time.
The question is whether we as a legislature want to criminalise someone who acts in haste or is perhaps simply naive, and to set a prison term of five years for their behaviour.
The Greens’ position is clear: we must not leave the door open to criminalise that sort of behaviour. Our amendment would retain the crime of participation but require that the defendant be proven to be reckless to the fact of whether or not their behaviour contributed to the criminal activity. The vital difference in this definition is that, for the reckless element to be made out, the defendant must be proven to have known at the time that their behaviour could contribute but chose to ignore that fact and act regardless. We believe that is a far more appropriate test.
There are other similar criminal offences that use this exact same test of recklessness. The government use the same text in the very next two clauses of the bill. At one level, the Greens have asked whether it is simply a typographical error that we are fixing. However, the government have tabled a revised explanatory statement that confirms they do in fact mean to use the phrase “ought to have known”.
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