Serious and Organized Crime (Control) Act 2008: Theoretical Analysis

This report provides a comprehensive analysis of the Serious and Organized Crime (Control) Act 2008 (SA), also known as anti-association legislation. It defines the Act's purpose in restricting criminal activities and explores its historical context, highlighting criticisms and constitutional challenges. The report examines the Act's objectives, including the declaration of criminal organizations, and references key court cases like South Australia v Totani (2010) and Wainohu v New South Wales (2011). Furthermore, it presents real-life scenarios, such as the Sydney airport fight between criminal gangs, to illustrate the Act's practical application and effectiveness in preventing organized crime. The analysis also includes references to academic literature examining the Act's impact and effectiveness in controlling criminal activities.

Theoretical Approach:
The Serious and Organized Crime (Control) Act 2008 (SA) has been referred to as the anti-
association legislation. In this presentation, the theoretical approach of Serious and Organized
Crime Act 2008 can be discussed.
1. Definition:
The Serious and Organized Crime (Control) Act 2008 (SA) has been considered as a form of
Anti-Association legislation1. This is due to the reason that the Act was forming interplay
between the legislative, executive and the judiciary. The purpose of the Act is to make certain
declarations and orders for restricting the existing criminal activities.
2. Historical perspective:
Traditionally, the nature of the Serious and Organized Crime (Control) Act 2008 (SA) was such
that, it raised a number of issues. These laws were considered to be rogue and harsh as it created
strict restrictions upon the individuals which disrupted their peace and freedom of association.
3. Why was the Act enacted?
It is evident that in recent era, the Australian government, from the beginning, was concerned
with targeting the activities of serious crime groups associated with certain criminal
organizations. Therefore, in order to reduce the activities of such criminal gangs, the Serious and
1 Serious and Organized Crime (Control) Act 2008 (SA).

Organized Crime (Control) Act 2008 (SA) was enacted. Due to this reason this legislation is
referred to as the anti-association legislation.

4. Criticisms:
The Serious and Organized Crime (Control) Act 2008 (SA) being an anti-association legislation
was criticized by various scholars. In this regard, a number of issues have been raised which
actually questioned the nature of the constitutional validity of the Act. Some critics also
measured the procedural fairness of the Act.
5. Objectives of the Act:
In order to achieve its objectives, the anti-association legislation seeks to declare an organization
to be a criminal organization, if such organization is involved in criminal activities. However,
without substantial evidence, the legislation cannot consider any organization to be a criminal
organization2.
6. The constitutionality of the Anti-association legislation:
The Act was considered to be unconstitutional after a decision was held in the High Court in the
case of South Australia v Totani (2010) 242 CLR 1. The NSW anti association laws were also
held to be unconstitutional after the decision in the case of Wainohu v New South Wales (2011)
243 CLR 181 was passed.
2 Goldsworthy, Terry, and Laura McGillivray. "An examination of outlaw motorcycle gangs and their involvement
in the illicit drug market and the effectiveness of anti-association legislative responses." International Journal of
Drug Policy 41 (2017): 110-117.

Real-Life Situation:
It is worthwhile to refer here that, anti-association laws are applicable in real life
situations. However, in regard to certain changes, the legislation would prove to be beneficial for
the police department in preventing criminal activities. On 22 March 2009, a fight emitted at
Sydney residential aircraft terminal between two criminal cruiser posses (OMCGs), the Hells
Angels and Comancheros, amid which a member was wounded and beat to death with a metal
bollard before voyagers. A couple of days after the fact his sibling, a Hells Angel who had
likewise partaken in the mêlée, was shot and genuinely injured outside his home. The
phenomenal open viciousness at the air terminal was the subject of exceptional media
consideration as of now pulled in by longstanding strains between the Hells Angels and
Comancheros and episodes of furnished clash between match OMCGs the Bandidos and
Notorious3.
OMCG fights over respect and medication 'regions' have been pretty much constant since
OMCGs first moved toward becoming pulled in to the lucrative benefits associated with the
medication trafficking business in the late 1960s/70s. Sporadically this competition has turned
out to be open, most famously in the 1984 'Milperra Massacre'. The slaughter, started by the
Bandidos break from the Comancheros in the mid 1980s, prompted a firearm fight including
around 60 pack individuals in a lodging auto stop in Sydney's west. The encounter brought about
the shot passing of four Comancheros, 2 Bandidos and a 14-year old female spectator; 20 others
were injured by gunfire. Forty-three individuals were accused of murder and different offenses
and the preliminary was one of Australia's biggest criminal cases (Harvey and Simpson 1989).
Subsequently, changes in New South Wales guns laws were made however, the inheritance of
3 Appleby, Gabrielle & Reilly, Australian Public Law (Oxford University Press, 2018

that occasion has held on. Quickly, and with some level of over-improvement, this authoritative
model contains two primary advances4.
The first is the affirmation of an association either by the Attorney-General can be made
if the creator is fulfilled that the association's individuals relate to organize, arranging,
encouraging, supporting or taking part in genuine criminal movement and the association itself
speaks to a hazard to open security and request. An affirmation is of no restrictive power of
itself. It does not 'prohibit' the association, nor does it have any impact on the association, its
property or undertakings (Mr Justice Bleby in Totani and Anor v The State of South Australia
[2009] SASC 301, para 39)5.
4 Ayling, Julie M. "Preventing organised crime Australian-style." (2016).
5 Totani and Anor v The State of South Australia [2009] SASC 301, para 39).

Reference:
Appleby, Gabrielle & Reilly, Australian Public Law (Oxford University Press, 2018)
Ayling, Julie M. "Preventing organised crime Australian-style." (2016).
Goldsworthy, Terry, and Laura McGillivray. "An examination of outlaw motorcycle gangs and
their involvement in the illicit drug market and the effectiveness of anti-association legislative
responses." International Journal of Drug Policy 41 (2017): 110-117.
Serious and Organized Crime (Control) Act 2008 (SA)
South Australia v Totani (2010) 242 CLR 1
Wainohu v New South Wales (2011) 243 CLR 181