Unlawful Association Laws for Children in Victoria: Analysis

The Victorian Government’s Proposal to Extend Unlawful Association Laws to Children – A Necessary Response?

Introduction

In recent years, the Victorian criminal justice system has been characterised by a proliferation of legislative enactments expanding the powers of police.[1] In a recent attempt to combat youth offending, the Victorian Government has introduced the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill[2] proposing to ‘widen the net’[3] to subject children between the ages of 14 and 17 to unlawful association notices.

As ‘dangerousness and prevention’[4] are ‘hallmarks’[5] of the current crime control field, the amendments strive to function to inhibit vulnerable children from participating in organised crime and accordingly, disrupt ‘the expansion and establishment of criminal networks’.[6]  However, it is argued that the Bill severely undermines the interests of children and thus, despite its preventative aim, is likely to increase a child’s susceptibility to criminal activity.

Moreover, the extension of police powers may create a sense of isolation through disproportionately targeting vulnerable youth groups and further ‘mobilis[ing] prejudice around identity’.[7] Furthermore, it is contended that the proposed scheme represents a ‘fundamental’[8] violation of the civil rights and liberties of a child.

Whilst the Bill incorporates specific safeguards to strengthen police accountability, this paper seeks to maintain that such measures afford insufficient protection against the potential for abuse of power. Further, it is argued that the ‘immediate trigger’[9] for the statutory response is attributable to public anxiety as opposed to the ‘reality’[10] of youth offending and as such, the suggested amendments are not justified.

Ultimately, this paper will seek to argue that the amendments, namely, the lowering of the age limit for unlawful association notices, represents an unnecessary and ineffective response to counteract youth crime.

The Proposed Amendments

The Bill seeks to broaden the unlawful association provisions in the Criminal Organisations Control Act[11]in order to police youth.

The proposed legislation will enable children between 14 and 17 years of age to be served with an unlawful association notice by a senior police officer[12] upon a reasonable belief that the child has, on at least one occasion, associated with a convicted criminal or a child who has been convicted of a serious youth offence.[13] The notice will remain in effect for 12 months after the date of issue.[14]

Further, the statutory amendments provide for a child to be charged with the offence of unlawful association if they associate with two or more convicted offenders on at least two occasions at the same time or separately, upon receiving a notice prohibiting them from associating with such persons.[15] A child convicted of unlawful association is liable to a three-year term of imprisonment.[16]

Crime Prevention or Crime Creation?

Victorian Attorney-General, Martin Pakula asserted that the legislative changes reflect the ‘unfortunate reality’[17] that criminal ‘gangs…thrive by recruiting others to their lifestyles of crime’,[18] particularly ‘young clean skins’.[19] Therefore, the proposed scheme aims to ‘target serious and organised crime’[20] and proactively prevent the ‘formation, maintenance and expansion’[21] of criminal networks through prohibiting children from associating with criminals. The increased police powers have the potential to ‘turn off the supply of oxygen’[22] that effectively allows youth gangs ‘to breathe’.[23] Accordingly, Victoria’s proposed amendments have been heralded a necessary tool to inhibit vulnerable youth from ‘being sucked into a life of crime’.[24]

However, while the disruption caused to organised crime may be likely, such is nominal in comparison to the disruption caused to the prospects of rehabilitation of those who have spent time in a youth detention facility.[25] In such circumstances, whilst social inclusion and connection are vital, the prospective provisions ‘threaten to dismantle such opportunities’[26] by impacting ‘a whole raft of ordinary pro-social activity’[27] and severing social relationships that attempt to support a child in ‘making a fresh start’.[28] Similar sentiments were echoed by the National Children’s Commissioner in relation to the proposed lowering of the age limit for control orders under the Counter Terrorism Legislation Amendment Bill (No 1).[29] The Commissioner argued that the imposition of control orders could be counterproductive by ‘effectively shutting down communication avenues’[30] and further alienating children who are isolated and disaffected.[31] The Victorian Aboriginal Legal Service expressed the view that the amendments effectively remove a ‘vital platform’[32] for rehabilitation and is contrary to the spirit of the Children, Youth and Families Act[33] that emphasises rehabilitation. The changes may also provide an avenue for young children to be ‘tagged’ for life as ‘gang members’ or ‘gang associates’ which may consequently, ‘close doors to employment and other positive opportunities’.[34] As a result, children may be ‘brand[ed]…as a serious future criminal’[35] and ‘trapped’ in a system that effectively injures them.

Moreover, the proposed amendments extend police powers to issue notices to children irrespective of their criminal history. Therefore, as Victoria’s Commissioner for Children and Young People correctly observed,the prospective changes may lead to ‘the criminalisation of [children] who have not been in the system’.[36] In light of the ‘unacceptably high rates of recidivism’[37] among Victorian children who have served a custodial sentence, the Victorian Commission for Children and Young People found it ‘difficult to see’[38] how establishing a ‘new entry point’[39] for children into the criminal justice system will reduce youth crime. Similar sentiments were echoed by Mayer who reasoned that anti-gang initiatives will ‘bring pain to those who have done…nothing to warrant society’s wrath’[40] and once having suffered ‘they will bring further suffering to the rest of us’.[41] The findings of a report by the New South Wales Ombudsman regarding the operation of similar laws in the state, confirmed that laws of this nature draw vulnerable youth further into the criminal justice system.[42] The report found no evidence that these laws reduced crime rates among New South Wales youth and as Victoria’s Commissioner for Children and Young People reasoned, there is ‘nothing to suggest a different outcome for Victorian children will eventuate’.[43] Accordingly, as Victoria’s Commissioner for Children and Young People opined, the new laws do not ‘champion children’s interests’.[44]

Ultimately, it is contended that despite its preventive aims, the amendments function ‘as a means of crime creation’[45] and are therefore inept to counteract youth gang crime.

Marginalisation and the Erosion of Civil Liberties

Whilst pre-crime laws appear neutral, in practice, they can be disproportionately directed towards certain youth groups.[46] The proposed amendments remove the requirement that a police officer must reasonably believe that issuing a notice will prevent the commission of further offences. Thus, as McCulloch and Pickering observed, this approach can lead to ‘race, ethnicity, and religion…[being]…used as proxies for risk’.[47] As a result, the changes may ‘intensify criminalisation…of communities of colour’[48] despite there being ‘no hint of wrongdoing’.[49] For instance, the Sudanese community already experience over-policing as a consequence of ‘the unchallenged hysteria of the media’.[50] The new laws may ‘further undermine trust in police’[51] within the Sundanese community.

Similarly, the increased police powers may be used in a racially discriminatory way to unreasonably target Aboriginal youth and further exacerbate their over-representation in the criminal justice system.[52] The New South Wales Ombudsman report found Aboriginals to be subject to 40 per cent of all consorting provisions[53] even though, according to the 2011 census, they comprised of only 2.5 per cent of the state’s population.[54] Moreover, two thirds of young people aged between 13 and 17 that were reprimanded under the legislation were Aboriginal.[55] In view of the New South Wales experience, the prospective changes are likely to have a similar disproportionate impact on Aboriginal children in Victoria. Ultimately, the amendments are likely to ‘criminalise entire communities and entire generations’[56] and endorse the message that such communities ‘are outside the law’[57] and ‘outside the protection of human rights’.[58]

Moreover, the proposed powers allow police to restrict a child from communicating with the prohibited person. Youthlaw raised the concern that the powers enable police to constrict a child’s ability to engage in legitimate activities such as participating in sporting, cultural and social events.[59] As such, the amendments further ‘thin the mesh’[60] of social control through the criminalisation of ‘ordinarily harmless’[61] and ‘seemingly innocent behaviour’.[62] Accordingly, the changes curtail multiple rights under the Victorian Charter of Rights and Responsibilities[63] including a child’s right to freedom of association,[64] right to freedom of movement[65] and right to freedom of expression[66] which may be arbitrarily restricted.

Furthermore, the Bill requires that an accused prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence. As such, the changes violate the presumption of innocence.[67] Additionally, a child may be exposed to criminal punishment merely on the basis of who they have associated with, as opposed to a potential crime they have committed, in order to ‘forestall imagined harms becoming reality’.[68] Thus, the Bill creates ‘a novel attack’[69] on the presumption innocence in that it introduces the concept of guilt by association consequently widening the parameters of criminal responsibility. Ultimately, this ‘excessive’[70] increase in police powers ‘takes a deep cut’[71] to the ‘fundamental tenets of a liberal society’[72] and represents a ‘dangerous legislative overreach’[73] by the Victorian Government.

The Proposed Safeguards

The Bill introduces safeguards to protect against the potential adverse impact that the amendments may have.

The Independent Broad-Based Anti-Corruption Commission (IBAC) will have the power to monitor the operation of the scheme and review the making of unlawful association notices.[74] Further, the Chief Commissioner of Police will be required to report the number of issued notices to IBAC on a quarterly basis.[75] Attorney-General, Martin Pakula contended that such oversight powers will ‘protect against the inappropriate use of the scheme’.[76]

Additionally, the Bill creates safeguards for ‘vulnerable’ persons, namely, children, Aboriginal people and persons with an impaired ability to understand their rights with a view to reduce the likelihood of vulnerable groups being disproportionately targeted.[77] For instance, the amendments provide that only a police officer at, or above, the rank of Senior Sergeant can issue a notice to vulnerable persons[78] consequently increasing the scrutiny placed on the issuing of notices.[79] Further, the unlawful association notices issued to such persons expire after 12 months as opposed to three years.[80] Although notices may be reissued upon expiration, Attorney-General, Martin Pakula reasoned that a shorter duration will cause the use of the powers to be reviewed more regularly thereby lessening the likelihood that such notices are issued arbitrarily.[81] Thus, the amendments acknowledge the hardship suffered by children once they enter the criminal justice system and the over-representation of Aboriginals in the criminal justice system.[82]

However, the Bill inserts s 124FA(2) which provides that a notice issued to a vulnerable person will not be invalid by reason of it being issued for three years or issued by an officer other than a senior sergeant.[83] Therefore, as the Victorian Commission for Children and Young People respectfully asserted, s 124FA(2) reduces the incentive for police to observe the proposed safeguards.[84] Accordingly, whilst the Bill articulates a differentiated approach to the duration of notice and rank of issuing officer, such a safeguard is undermined by the inclusion of s 124FA.[85]

Ultimately, it is argued that the safeguards fail to adequately address the potential adverse outcomes that the lowering of the age limit for unlawful association notices may yield.

‘Fiction’ versus ‘Fact’

Over the last several decades, Victoria has seen the ‘politicisation of criminal justice’[86] and the ‘wholesale embrace of “law and order”’.[87] In view of this ‘tough on crime’[88] agenda, it is contended that the ‘sweeping extension of police powers’[89] are merely a rhetorical response to moral panic. As McNamara and Quilter reasoned, in such circumstances, governments appear to ‘actively exploit’[90] the latitude afforded by public anxiety to implement changes that they would ordinarily find difficult to justify ‘absent the extraordinary…or novel’[91] situation. For instance, in New South Wales, whilst there was a serious degree of gang violence, a ‘dangerisation’[92] narrative was constructed around the imagery of the ‘razor gang’.[93] Sylvia Hale, when speaking against the proposed New South Wales ‘bikie laws’ stated that ‘[t]he fear of terrorism and crime’[94] were being used by the media to ‘promote a permanent state of emergency’.[95] Accordingly, the pressure exerted by such intense media scrutiny and agitation coupled with the notion of moral panic, ultimately allowed the New South Wales Government to enact ‘broad-ranging’[96] criminal association laws.[97]

Similarly, the ‘youth crime tsunami’,[98] particularly associated with the ‘heavily demonised’[99] Sundanese gangs in recent media discourse have been constructed as ‘something akin to a disease or a military attack’,[100] effectively suggesting that the state is facing a youth gang problem which must be controlled through restrictive state intervention. As a result, a ‘do something mentality’[101] has permeated society with Victorians criticising the state government for being ‘soft’ on crime. Thus, the ‘draconian’[102] laws represent a ‘symbolic piece of legislation’[103] intended to show society that the Victorian Government is doing something to address the crisis.

However, according to Victoria’s Crime Statistics Agency, there has been a decrease in criminal incidents in Victoria with the overall rate of youth offending in the Victorian community having declined despite ‘law and order problems’[104]  involving African youth.[105] Moreover, despite the widespread public concern around Sudanese youth, crime statistics evidence that Sudanese-born offenders were involved in only 1.5 per cent of criminal offending in the state.[106] Therefore, the media’s portrayal of the Sudanese community is ‘simply not borne out by the data’.[107] As the Commissioner for Children and Young People appropriately observed, the focus on youth offending has been ‘incredibly far-reaching’.[108] Ultimately, the prospective amendments are unnecessary as the ‘massive youth crime problem’[109] shaped through media and political discourse is ‘not matched by the facts [and] the reality’.[110]

Conclusion

In the interests of crime prevention and risk management, the Victorian legislature has introduced various forms of pre-emptive legislation that confer increasing powers on the police, consequently highlighting the perennial tension between community welfare and individual autonomy inherent within the criminal justice system.

The Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill proposes to allow police to issue unlawful associations notices to children between the ages of 14 and 17 in an attempt to divert children from criminal activity. However, the Bill fails to support the interests of youth, particularly those endeavouring to reintegrate into society, thereby rendering the amendments counterproductive in terms of crime prevention.

Moreover, the changes would ‘further tear at the fabric of the Victorian community’[111] by allowing prejudice and stereotypes, ‘rather than objective facts’[112] to ‘animate law enforcement’.[113] From a civil liberties perspective, the severity of the measures denote a significant detraction from the civil rights and freedoms to be afforded to children.  

Although the Bill encompasses particular safeguards, such safeguards fails to afford adequate protection to pre-empt racial vilification and the arbitrary infringement of civil liberties. Moreover, the proposed amendments are a result of ‘moral panic-driven’[114] haste to satisfy ‘tabloid “law and order” demands’[115] due to the exaggerated media coverage of youth crime. Accordingly, the prospective changes are unwarranted.

This paper ultimately sought to argue that subjecting children between the ages of 14 and 17 to unlawful association notices is unnecessary and merely represents ‘a placebo of tough sounding legislation’[116] to address youth gang crime.

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[1] See eg, Bronwen Merner et al, ‘Criminal Organisations Control Bill 2012’ (Research Brief No 10, Parliamentary Library, Parliament of Victoria, 2012). See generally Stephen Monterosso, ‘From Bikers to Savvy Criminals. Outlaw Motorcycle Gangs in Australia: Implications for Legislators and Law Enforcement’ (2018) 69(5) Crime, Law and Social Change 681; Andreas Schloenhardt, ‘Mafias and Motorbikes: New Organised Crime Offences in Australia’ (2008) 19(3) Current Issues in Criminal Justice 259.

[2] 2018 (Vic). See also, Explanatory Memorandum, Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018 (Vic); Martin Pakula, ‘Strengthening Laws to Disrupt Criminal Gangs’ (Media Release, 24 July 2018).

[3] See also George Morgan, Selda Dagistanli and Greg Martin, ‘Global Fears, Local Anxiety: Policing, Counterterrorism and Moral Panic Over “Bikie Gang Wars” in New South Wales’ (2010) 43(3) Australian & New Zealand Journal of Criminology 580, 591.

[4] Arlie Loughnan, ‘The Legislation We Had to Have? The Crimes (Criminal Organisations Control) Act 2009 (NSW)’ (2009) 20(3) Current Issues in Criminal Justice 457, 463.

[5] Ibid.

^[6] ABC Radio National, ‘Victoria Introduces New Anti-Gang Laws’, The World Today, 24 July 2018 (Lisa Neville) <http://www.abc.net.au/radio/programs/am/victoria-introduces-new-anti-gang-laws/10028616>. See also Victoria, Parliamentary Debates, Legislative Assembly, 25 July 2018, 2333-4 (Martin Pakula, Attorney-General).

^[7] Jude McCulloch and Sharon Pickering, ‘Future Threat: Pre-Crime, State Terror, and Dystopia in the 21st Century’ (2010) 81(1) Criminal Justice Matters 32, 34, quoted in Carmel O’Sullivan and Mark Lauchs, ‘A Spoiled Mixture: The Excessive Favouring of Police Discretion over Clear Rules by Queensland’s Consorting Laws’ (2018) 42(2) Criminal Law Journal 108, 110.

[8] Youthlaw, Submission to Scrutiny of Acts and Regulations Committee, Parliament of Victoria on the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018, 3 August 2018, 3.

[9] Luke McNamara and Julia Quilter, ‘The “Bikie Effect” and Other Forms of Demonisation: The Origins and Effects of Hyper-Criminalisation’ (2016) 34(2) Law in Context 5, 11.

^[10] ABC Radio National, ‘Youth Advocates Challenge Need for Victorian Anti-Association Laws’, Correspondents Report, 27 July 2018 (Liana Buchanan) <http://www.abc.net.au/radio/programs/pm/youth-advocates-challenge-need-victorian-anti-association-law/10045196>.

[11] 2012 (Vic).

[12] See the Bill cl 3, amending Criminal Organisations Control Act 2012 (Vic) s 3(1). The definition of ‘senior police officer’ is expanded to include a police officer at or above the rank of sergeant.

[13] See the Bill cl 7(1), amending Criminal Organisations Control Act 2012 (Vic) s 124D.

[14] Ibid cl 9(2), amending Criminal Organisations Control Act 2012 (Vic) s 124F. See also the Bill cl 3 (definition of ‘vulnerable person’).

[15] See the Bill cl 5(1), amending Criminal Organisations Control Act 2012 (Vic) s 124A.

[16] Ibid cl 5(1B), amending Criminal Organisations Control Act 2012 (Vic) s 124A.

[17] Victoria, Parliamentary Debates, Legislative Assembly, 25 July 2018, 2334 (Martin Pakula, Attorney-General).

[18] Ibid 2333 (Martin Pakula, Attorney-General).

[19] 3AW, ‘Consorting Laws for Kids: Stopping Teens Communicating with Hardened Criminals’, 3AW Breakfast with Ross and John, 24 July 2018 (Lisa Neville) <https://www.3aw.com.au/consorting-laws-for-kids-stopping-teens-communicating-with-hardened-criminals/>.

[20] Victoria, Parliamentary Debates, Legislative Assembly, 25 July 2018, 2334 (Martin Pakula, Attorney-General).

[21] Ibid 2327 (Martin Pakula, Attorney-General).

[22] Rick Sarre, ‘Doubtful Measures in Crime Control: Anti-Association Laws Have Not Proved Their Effectiveness’ (2013) 51(8) Law Society Journal 68, 70.

[23] Ibid.

[24] ABC Radio National, ‘Victorian Government Says Youth Crime Laws Are Not Discriminatory’, Breakfast, 25 July 2018 (Martin Pakula) <http://www.abc.net.au/radionational/programs/breakfast/victorian-government-says-youth-crime-laws-dont-discriminate/10032840>.

[25] Alastair Nicholson et al, ‘Ten Laws That Need to Change in 2015’ [2015] (8) LSJ Law Society of New South Wales Journal 24, 34. For a detailed discussion on youth rehabilitation see Caitlin Grover, ‘Youth Justice in Victoria’ (Research Paper No 2, Parliamentary Library, Parliament of Victoria, 2017). See also Ross Homel et al, ‘Preventing the Onset of Youth Offending: The Impact of the Pathways to Prevention Project on Child Behaviour and Wellbeing’ [2015] (481) Trends & Issues in Crime and Criminal Justice 1.

[26] Youthlaw, Submission to Scrutiny of Acts and Regulations Committee, Parliament of Victoria on the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018, 3 August 2018, 2.

[27] ABC Radio National, ‘Youth Advocates Challenge Need for Victorian Anti-Association Laws’, Correspondents Report, 27 July 2018 (Liana Buchanan) <http://www.abc.net.au/radio/programs/pm/youth-advocates-challenge-need-victorian-anti-association-law/10045196>.

[28] Youth Affairs Council Victoria, YACVic Responds to the Victorian Government’s Association Law: Our 14-year-olds Belong in Schools and Communities Not Prisons (24 July 2018) <https://www.yacvic.org.au/advocacy/yacvic-responds-to-victorian-governments-association-law-our-14-year-olds-belong-in-schools-and-communities-not-prisons/>.

[29] 2015 (Cth) (‘the Bill’). See also Explanatory Memorandum, Counter Terrorism Legislation Amendment Bill (No. 1) 2015 (Cth); Commonwealth, Parliamentary Debates, Senate, 12 November 2015 (Megan Mitchell); Department of Parliamentary Services (Cth), Bills Digest, No 80 of 2015-16, 15 February 2016.

[30] Megan Mitchell, ‘The Human Rights of Children are at Risk if Control Orders are Placed on 14-year-olds’, The Sydney Morning Herald (Sydney) 16 October 2015.

[31] See also Muslim Law Network, Submission No 11 to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, 10 December 2015 where similar concerns were raised.

[32] Youthlaw, Submission to Scrutiny of Acts and Regulations Committee, Parliament of Victoria on the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018, 3 August 2018, 2.

[33] 2005 (Vic).

[34] Youthlaw, Submission to Scrutiny of Acts and Regulations Committee, Parliament of Victoria on the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018, 3 August 2018, 2.

[35] Ibid.

[36] ABC Radio National, ‘Youth Advocates Challenge Need for Victorian Anti-Association Laws’, Correspondents Report, 27 July 2018 (Liana Buchanan) <http://www.abc.net.au/radio/programs/pm/youth-advocates-challenge-need-victorian-anti-association-law/10045196>.

[37] Commission for Children and Young People, Submission to Scrutiny of Acts and Regulations Committee, Parliament of Victoria on the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018, 6 August 2018, 3.

[38] Ibid.

[39] Ibid.

[40] Jeffrey Mayer, ‘Individual Moral Responsibility and the Criminalization of Youth Gangs’ (1993) 28(4) Wake Forest Law Review 943, 986.

[41] Ibid.

[42] See generally, New South Wales Ombudsman, Parliament of New South Wales, The Consorting Law: Report on the Operation of Part 3A, Division 7 of the Crimes Act 1900 (2016) 71-84. See also Kimberley Shirley, ‘The Cautious Approach: Police Cautions and the Impact on Youth Offending’ (Research Paper No 9, Crime Statistics Agency, September 2017).

[43] Commission for Children and Young People, Submission to Scrutiny of Acts and Regulations Committee, Parliament of Victoria on the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018, 6 August 2018, 3.

[44] ABC Radio National, ‘Youth Advocates Challenge Need for Victorian Anti-Association Laws’, Correspondents Report, 27 July 2018 (Liana Buchanan) <http://www.abc.net.au/radio/programs/pm/youth-advocates-challenge-need-victorian-anti-association-law/10045196>.

[45] Nicholson et al, above n 25, 35.

[46] O’Sullivan and Lauchs, above n 7, 110.

[47] McCulloch and Pickering, above n 7, 34, quoted in O’Sullivan and Lauchs, above n 7, 110.

[48] Police Accountability Project, Predictable, Ineffective and Dangerous: Impacts of Anti-Association Laws (30 July 2018) <http://www.policeaccountability.org.au/racial-profiling/predictable-ineffective-and-dangerous-impacts-of-anti-association-laws/>.

[49] Liberty Victoria, Scrap Frightening New Laws Says Human Rights Group (24 July 2018) <https://libertyvictoria.org.au/content/scrap-frightening-new-laws-says-human-rights-group>.

[50] Police Accountability Project, Predictable, Ineffective and Dangerous: Impacts of Anti-Association Laws (30 July 2018) <http://www.policeaccountability.org.au/racial-profiling/predictable-ineffective-and-dangerous-impacts-of-anti-association-laws/>.

[51] Ibid.

[52] Commission for Children and Young People, Submission to Scrutiny of Acts and Regulations Committee, Parliament of Victoria on the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018, 6 August 2018, 4.

[53] New South Wales Ombudsman, Parliament of New South Wales, The Consorting Law: Report on the Operation of Part 3A, Division 7 of the Crimes Act 1900 (2016) 115.

[54] Ibid 62.  

[55] New South Wales Ombudsman, Review of the Use of the Consorting Provisions by the NSW Police Force, Issues Paper (2013) 10.

[56] Police Accountability Project, Predictable, Ineffective and Dangerous: Impacts of Anti-Association Laws (30 July 2018) <http://www.policeaccountability.org.au/racial-profiling/predictable-ineffective-and-dangerous-impacts-of-anti-association-laws/>.

[57] Ibid. 

[58] Ibid.

[59] Youthlaw, Submission to Scrutiny of Acts and Regulations Committee, Parliament of Victoria on the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018, 3 August 2018, 1.

[60] Morgan, Dagistanli and Martin, above n 3, 591.

[61] New South Wales Ombudsman, Parliament of New South Wales, The Consorting Law: Report on the Operation of Part 3A, Division 7 of the Crimes Act 1900 (2016) 12.

[62] Ibid.

[63] 2006 (Vic).

[64] Charter of Rights and Responsibilities 2006 (Vic) s 16 (‘Charter’). For a further discussion of the freedom of association in the context of anti-consorting laws see Anthony Gray, ‘Freedom of Association in the Australian Constitution and the Crime of Consorting’ (2013) 32(2) University of Tasmania Law Review 149.

[65] Charter s 12.

[66] Ibid s 15.

[67] Ibid s 25(1).

[68] Julie Ayling, ‘Pre-emptive Strike: How Australia is Tackling Outlaw Motorcycle Gangs’ (2011) 36(3) American Journal of Criminal Justice 250, 259.

[69] Law Institute of Victoria, Federation of Community Legal Centres and Human Rights Law Centre, Joint Submission to Scrutiny of Acts and Regulations Committee, Parliament of Victoria on the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018, 3 August 2018, 6.

[70] Human Rights Law Centre, Andrews Government Rushes in Dangerous and Excessive Anti-Democratic Laws (24 July 2018) <https://www.hrlc.org.au/news/2018/7/23/andrews-government-rushes-in-dangerous-and-excessive-anti-democratic-laws>.

[71] Monique Mann, A Story of Organized Crime: Constructing Criminality and Building Institutions (PhD Thesis, Griffith University, 2014) 140.

[72] Ibid.

[73] ABC Radio National, ‘Victoria Introduces New Anti-Gang Laws’, The World Today, 24 July 2018 (Melanie Poole) <http://www.abc.net.au/radio/programs/am/victoria-introduces-new-anti-gang-laws/10028616>.

[74] See the Bill cl 19, inserting Criminal Organisations Control Act 2012 (Vic) pt 5A div 4.

[75] See the Bill cl 19, inserting Criminal Organisations Control Act 2012 (Vic) pt 5A div 4 sub-div 3.

[76] Victoria, Parliamentary Debates, Legislative Assembly, 25 July 2018, 2329 (Martin Pakula, Attorney-General).

[77] See the Bill cl 3 (definition of ‘vulnerable person’).

[78] The Bill cl 7, amending Criminal Organisations Control Act 2012 (Vic) s 124D(3).

[79] Victoria, Parliamentary Debates, Legislative Assembly, 25 July 2018, 2329 (Martin Pakula, Attorney-General).

[80] The Bill cl 7, amending Criminal Organisations Control Act 2012 (Vic) ss 124D(4), s 124F(a)(v)(A)(B).

[81] Victoria, Parliamentary Debates, Legislative Assembly, 25 July 2018, 2329 (Martin Pakula, Attorney-General).

[82] Ibid.

[83] See the Bill cl 10.

[84] Commission for Children and Young People, Submission to Scrutiny of Acts and Regulations Committee, Parliament of Victoria on the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018, 6 August 2018, 4.

[85] Ibid 4-5.

[86] Loughnan, above n 4, 462.

[87] Ibid.

[88] Monique Mann, A Story of Organized Crime: Constructing Criminality and Building Institutions (PhD Thesis, Griffith University, 2014) 53.

[89] ABC Radio National, ‘Victoria Introduces New Anti-Gang Laws’, The World Today, 24 July 2018 (Melanie Poole) <http://www.abc.net.au/radio/programs/am/victoria-introduces-new-anti-gang-laws/10028616>.

[90] McNamara and Quilter, above n 9, 34.

[91] Ibid.

[92] Ibid 33.

[93] Alex Steel, ‘Consorting in New South Wales: Substantive Offence or Police Power?’ (2003) 26(3) University of New South Wales Journal 567, 567.

[94] New South Wales, Parliamentary Debates, Legislative Council, 2 April 2009, 14348 (Sylvia Hale).

[95] Ibid. See generally Morgan, Dagistanli and Martin, above n 3.

[96] Steel, above n 93, 587.

[97] Similar circumstances led the Queensland Government to enact the Criminal Organisation Act 2009 (Qld). For a detailed review of the legislation see Andreas Schloenhardt, ‘Banning the Bikies: Queensland’s Criminal Organisation Act 2009’ (2011) 31(2) Queensland Lawyer 100; Neil Morrissey, ‘The Queensland Anti-Bikie Laws: Good Governance or a Human Rights Disaster?’ (2014) 41(4) Brief 28.

[98] ABC Radio National, ‘Youth Advocates Challenge Need for Victorian Anti-Association Laws’, Correspondents Report, 27 July 2018 (Liana Buchanan) <http://www.abc.net.au/radio/programs/pm/youth-advocates-challenge-need-victorian-anti-association-law/10045196>.

[99] McNamara and Quilter, above n 9, 33.

[100] Mayer, above n 39, 954.

[101] Karen Katz, ‘The Enemy Within: The Outlaw Motorcycle Gang Moral Panic’ (2011) 36(3) American Journal of Criminal Justice 231, 233; Terrence Goldsworthy, Submission to the Crime and Public Integrity Policy Committee, Parliament of South Australia, Inquiry into Serious and Organised Crime Legislation, 26 October 2015, 5.

[102] ABC Radio National, ‘Youth Advocates Challenge Need for Victorian Anti-Association Laws’, Correspondents Report, 27 July 2018 (Liana Buchanan) <http://www.abc.net.au/radio/programs/pm/youth-advocates-challenge-need-victorian-anti-association-law/10045196>.

[103] Goldsworthy, above n 101, 5; Julie Ayling, ‘Haste Makes Waste: Deliberative Improvements for Serious Crime Legislation’ (2013) 46(1) Australian & New Zealand Journal of Criminology 12, 13.

[104] Loughnan, above n 4, 462.

[105] ‘Crime Statistics Victoria’ (Report, Crime Statistics Agency, 2018); Melanie Millsteed and Paul Sutherland, ‘How Has Youth Crime in Victoria Changed Over the Past 10 Years?’ (Research Paper No 3, Crime Statistics Agency, July 2016); Melanie Millsteed and Paul Sutherland, ‘Downward Trend in the Number of Young Offenders, 2006 to 2016’ (Research Paper No 1, Crime Statistics Agency, March 2016).

[106] ‘Crime Statistics Victoria’ (Report, Crime Statistics Agency, 2018).

[107] ABC Radio National, ‘Youth Advocates Challenge Need for Victorian Anti-Association Laws’, Correspondents Report, 27 July 2018 (Liana Buchanan) <http://www.abc.net.au/radio/programs/pm/youth-advocates-challenge-need-victorian-anti-association-law/10045196>.

[108] Ibid.

[109] Ibid.

[110] Ibid.

[111] Police Accountability Project, Predictable, Ineffective and Dangerous: Impacts of Anti-Association Laws (30 July 2018) <http://www.policeaccountability.org.au/racial-profiling/predictable-ineffective-and-dangerous-impacts-of-anti-association-laws/>.

[112] Ayling, above n 68, 259.

^[113] Ibid.

[114] Mayer, above n 39, 943.

[115] Steel, above n 93, 586.

[116] Katz, above n 101, 242.