Under the Serious and Organised Crime (Control) Act 2008 (SA) the Commissioner of Police can apply to an eligible Judge [s 8] for a declaration to be made that an organisation become a ‘declared organisation’ [s 9].

The Act has been substantially overhauled following a decision in the High Court that part of the Act was unconstitutional [see South Australia v Totani (2010) 242 CLR 1 ] and also after NSW anti-association laws were found to be unconstitutional [see Wainohu v New South Wales (2011) 243 CLR 181]. The Act and other anti-association laws in other States were challenged by ‘outlaw motorcycle gangs’ (‘bikie gangs’), and this Act is therefore often referred to as the bikie law, however, the law covers serious and organised crime groups generally.

Declarations

The Commissioner of Police can apply to Supreme Court of South Australia for an organisation to become ‘declared’. The application has to set out in writing the grounds on which it is based and be supported by affidavit/s from a police officer/s. A copy of the application must be made available for inspection by a person who satisfies the Commissioner of Police that they are a representative of the organisation, a person alleged in the statutory declaration to be a former member of the organisation and other people who satisfy the Commissioner that they are a current or former member of the organisation or otherwise would be directly affected by the outcome of the application [see s 9].

The Commissioner has to publish a notice in the Gazette and a State circulated newspaper about the location, time and date of the hearing. The notice has to also explain that there may be serious consequences for members of the organisation if the organisation becomes a declared organisation; the notice also has to invite submissions from interested parties to be made to the Court and explain how the application can be inspected [see s 10].

The Court can make a declaration if it is satisfied that:

Once a declaration is made a notice has to be published in the Gazette and a State circulated newspaper [s 12].

See also Chapter 3 Part 13 of the Uniform Special Statutory Rules 2022 (SA).

Change of name of the declared organisation does not affect declaration

A change of name of a declared organisation does not change its’ status as declared [s 20]. The declaration is in force until it is revoked [ss 13-14] and a subsequent declaration can be made after revocation [s 17].

Membership presumed if tattoos or clothes of the organisation

The Act also has a presumption of membership of an organisation. In the absence of proof to the contrary, if a person wears insignia of an organisation (whether on a tattoo or on clothing etc), they are taken to be a member of that organisation at the time of wearing the insignia [s 39Z].

Joint and several liability for members of declared organisations

If a member of a declared organisation is found to be liable in civil proceedings for damage or loss resulting from conduct in connection with (for the benefit of, directed by, associated with etc) the declared organisation, each member of the organisation is jointly and severally liable for the damage or loss [s 39X].

Control orders

Control orders may be made by the Supreme Court of South Australia on application from the Commissioner of Police [s 22, see also Chapter 3 Part 14 of the Uniform Special Statutory Rules 2022 (SA)].

Where an organisation has been made a declared organisation this provides the legal trigger for a control order to be made on a member of that organisation [s 22].

Control orders can also be made for former members of declared organisations and others who have been or are involved in serious criminal activity who associate with members of declared organisations and also those who have been or are involved with serious criminal activity who associate with others that also have been or are involved with serious criminal activity [see generally s 22].

Control orders cannot be made on a child who is under 16 [s 39V (2)].

The effect of a control order

A control order may prohibit a person from one or more of the following:

The Court can also authorise confiscation of items and search premises and take possession of weapons etc [s 22E].

Control orders can be varied or revoked on application [s 22C]. If the order was made because of the person’s membership of a declared organisation, and if the declaration is no longer in force, then the control order is revoked [s 22H].

Breach or failure to comply with control order

It is an offence to breach or fail to comply with a control order [s 22I].

Maximum penalty: 5 years imprisonment

Corresponding declarations and control orders

The Act provides for declarations and control orders made in other States to be registered in South Australia, so as to have the same affect as if the declaration/control order was made under this Act [see ss 39 – 39S].

Public safety orders

Under s 23 of the Serious and Organised Crime (Control) Act 2008 (SA) a senior police officer (an officer of or above the rank of inspector) can make a public safety order where he or she is satisfied that a person or group of persons poses a serious risk to public safety or security and it is appropriate in the circumstances.

A public safety order can prohibit a person or group of persons from being at specified premises, attending a specified event or being in a specified area [s 23(3)].

Where a public safety order has been issued for a period of more than 7 days, a person who is the subject of the order may lodge a notice of objection with the Court [s 26(1)].

See also Chapter 3 Part 15 of the Uniform Special Statutory Rules 2022 (SA).

Breach or failure to comply with public safety order

It is an offence to breach or fail to comply with a public safety order [s 32].

Maximum penalty: 5 years imprisonment

Where a public safety order prohibits a person from entering or being in a specified area but they had a reasonable excuse for entering or being there, this can constitute a defence to a charge of failure to comply [s 32(3)].

Power to search vehicles or premises

Where a public safety order has been issued the police have powers to search vehicles or premises if they have reasonable grounds to suspect that the person identified in the order is on the premises or in the vehicle [s 33].

Tattoo Industry Control

Declared organisations and their members and associates , as well as those subject to control orders are also prohibited from providing tattooing services - see: Tattoo Industry Control.

Criminal associations - Offences

A person who is the owner, occupier or lessee of a premises must not knowingly permit the premises to be habitually used as a place of resort by members of a declared organisation [s 34A(1)].

Maximum penalty : 2 years imprisonment

A person must not be knowingly concerned in the management of any premises habitually used as a place of resort by members of a declared organisation [s 34A(2)].

Maximum penalty : 2 years imprisonment

A person must not associate 6 times or more within 12 months with a person/ people who is/are subject to a control order or a member of a declared organisation, knowing that the other person is subject to a control order or a member of a declared organisation [ss 35(1)-(2), (5)].

Maximum penalty: 5 years imprisonment

A person who has a criminal conviction of a major indictable offence or equivalent or an offence under the Serious and Organised Crime Act 2008 (SA), or conspiracy or attempt of any of those offences, must not associate 6 times or more within 12 months with a person/people who also has/ have such a criminal conviction (provided that they know about the criminal conviction) [ss 35(3)-(5)].

Maximum penalty: 5 years imprisonment

The following are exceptions to the offence of the criminal associations (above) unless the prosecution proves that the association was not reasonable in the circumstances:

The Criminal Law Consolidation Act 1935 (SA) has a number of laws against participation in criminal organisations [Part 3B - ss 83D - 83GG].

This includes:

In these sections criminal organisation means --

(a) a criminal group; or

(b) a declared organisation

criminal group means - a group consisting of 2 or more persons is a criminal group if --

(a) an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence of violence (or conduct that would, if engaged in within this State, constitute such an offence); or

(b) an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence (or conduct that would, if engaged in within this State, constitute such an offence) that is intended to benefit the group, persons who participate in the group or their associates.

The Summary Offences Act 1953 (SA) also contains anti-association laws. One of these is a law against consorting (associating) with particular people.

Under section 13 of the Summary Offences Act 1953 (SA) :

A person who:

is guilty of an offence.

Maximum penalty: 2 years imprisonment

If the consorting was with:

the defendant satisfies the Court that the consorting was reasonable in the circumstances, then it is to be disregarded for the purposes of this offence.

What is a fortification?

The Summary Offences Act 1953 (SA) defines a fortification as any security measure involving a structure or device forming part of, or attached to, premises that:

Fortification removal orders

Under section 74BB of the Summary Offences Act 1953 (SA) the Commissioner of Police can apply to the Magistrates Court for an order requiring the fortifications be removed or modified within a fixed time period.

The Commissioner must show that the premises named in the application are fortified. In addition, the Commission must also show that:

Fortification removal orders must be served on the occupier(s) of the premises with a copy to be served on the owner if they are not named in the order. Service of the order can be personally or by registered post. If service cannot be accomplished by these means then it is sufficient for the Commissioner to fix a copy of the order to the premises at a prominent place at or near the entrance.

Criminal intelligence can be presented by police in support of these applications and the Court, on application from the Commissioner, must takes steps to maintain the confidentiality of that information, including hearing argument and receiving evidence in private, without the parties to the proceeding being present [see s 74BGA]. Criminal intelligence is defined as relating to actual or suspected criminal activity, the disclosure of which could reasonably be expected to prejudice criminal investigations, to enable the discovery or existence of a confidential source of information, or to endanger a person's life or safety [s 74BA].

Removal orders are governed by Chapter 3 Part 4 of the Uniform Special Statutory Rules 2022 (SA).

Right of objection

A person served with a fortification removal order may lodge a notice of objection with the Magistrates Court. The notice of objection must be lodged within 14 days of service of the order.

Enforcement of fortification removal order

The Commissioner of Police can enforce a fortification removal order where it has not been complied with. For this purpose police can enter the premises the subject of such an order without a warrant to make the modifications or removals specified in the order. The Commissioner can also seize anything that can be salvaged in the removal of those fortifications and can recover costs of the removal of the fortifications from whoever caused the fortifications to be created [see generally s 74BI].

Hindering removal or modification of fortifications

It is an offence under s 74BJ of the Summary Offences Act 1953 (SA) for a person to do anything to prevent or delay the removal or modification of fortifications as provided in a fortification removal order.

Maximum penalty: $2 500 or 6 months imprisonment

Liability for damage

A property owner has no action against the Crown for damage to property resulting from enforcement of a fortification removal order. However, it may be possible for a property owner to recover reasonable costs associated with the repair or replacement of property damaged as a result of the removal of fortifications as a debt from any person who created the fortifications to be created.

Under the Serious and Organised Crime (Unexplained Wealth) Act 2009 (SA) the Crown Solicitor, upon request of the Director of Public Prosecutions, may apply to the District Court for a declaration that a person or an incorporated body has unexplained wealth. These orders are called unexplained wealth orders [s 9].

Whilst the Criminal Assets Confiscation Act 2005 (SA) allows for the proceeds or instruments of crime to be forfeited to the State, this can only occur where:

Unexplained wealth orders, however, provide the authorities with increased powers to seize property connected to illegal activity but without having to establish a direct link between the property concerned and a specific criminal offence.

What is wealth?

Under the Act wealth includes all property a person owns or controls, or has previously owned or controlled, and this extends to property acquired before the commencement of the legislation [s 3].

Property covered by an unexplained wealth order

If an unexplained wealth order is granted the property the subject of the order will be those components of a person’s property which have not been lawfully acquired. This property then forms the basis of a debt from the person to the State with the effect that it is surrendered to the government [ see s 9 generally].

Further powers

It is also possible for the authorities to apply for investigative (for example monitoring orders [s 14]) or restraining orders preventing the disposal of property [see s 20] before or after an application for an unexplained wealth order has been made.

Appeals

Appeals against an unexplained wealth order or a restraining order can be made to the Supreme Court [ss 10, 26].

Under the Tattooing Industry Control Act 2015 (SA) some people are automatically prohibited from providing tattooing services, and additionally, the Commissioner for Consumer Affairs can disqualify a person from providing tattooing services.

Tattooing services is defined broadly and includes owning the business or even tattooing someone for no fee or reward [s 4].

The main groups automatically disqualified under the Act include:

In addition to this, the Commissioner for Consumer Affairs has broad power to disqualify a person from providing tattooing services if the person has been involved in various types of criminal activity. This includes some drug offences, indictable offences involving violence, some assault offences, some Firearms offences, and those with links to serious and organised crime [see s 8 and reg 4 Tattooing Industry Control Regulations 2016 (SA)].

A disqualified person who provides tattooing services is guilty of an offence [s 7 Tattooing Industry Control Act 2015 (SA)].

Maximum penalty:

Natural person - 4 years imprisonment

Body corporate - $250 000

Anyone who proposes to be a provider of tattooing services has to give notice to the Commissioner for Consumer Affairs [s 13].

Maximum penalty: Natural person - 1 year imprisonment ; Body corporate - $100 000

Any person starting employment (paid or unpaid) providing tattooing services must notify the Commissioner for Consumer Affairs within 28 days [s 14].

Maximum penalty: $100 000 or 1 year imprisonment

There are also provisions for record keeping and failing to follow directions of authorised officers which also have high penalties [see for example s 12, s 16].

Keeping some items, such as firearms, weapons or explosives in a place where tattooing services are provided is an offence [s 21].

Maximum penalty: 2 years imprisonment

Exemptions

A tattooing service is exempt from the provisions of the Act if it consists of only cosmetic tattooing (resembling makeup), or tattooing performed on a person in the course of medical treatment [reg 8 Tattooing Industry Control Regulations 2016 (SA)].

Additionally, the Minister can grant exemptions under the Act [s 23].

Forms and more information:

See the Consumer and Business Services website: http://www.cbs.sa.gov.au/