Tough new Bikie laws or something more sinister?
Sunday
NSW Premier Nathan Rees has vowed to push ahead with laws to make it illegal for bikies to associate with one another, despite objections from legal and civil liberties groups.
The proposed NSW laws, enabling Supreme Court judges to ban bikie gangs, have the firm backing of police and the NSW opposition.
Mr Rees and NSW Attorney-General John Hatzistergos on Sunday outlined tough new legislation calling for jail terms of two to five years for bikie gang members caught associating with one another after a gang is banned.
"Where a gang is proscribed, that particular gang, of itself will become illegal, the association with it or with its members will also become illegal," Mr Rees told reporters in
He said not every bikie gang would necessarily be targeted.
"Where the police have intelligence and where the police have evidence an application will be made to a Supreme Court judge and that evidence and intelligence can be brought to bear on the judge's decision and form the judge's decision as to whether a gang will be proscribed."
He acknowledged there were concerns over people's freedom of association but said it was appropriate if the government got "the balance right".
"This is about bikie gangs and bikie gang-related violence".
Mr Rees said the government would draw on advice from the Solicitor-General to prevent a High Court challenge.
The proposal follows last Sunday's fatal brawl between the Hells Angels and rival gang the Comancheros at
Mr Hatzistergos said the NSW approach would differ in several ways from the strategy adopted in
He said a NSW Supreme Court judge would decide whether a bikie group should be banned.
"It will require an application by the police commissioner based on intelligence to identify the particular group in question and to identify the individuals who form part of that group," he said.
Bikies who continued to associate with each other would be given no warning before charges were laid, he said.
Australian Federal Police Commissioner Mick Keelty said the proposed laws were "very appropriate", noting that NSW had a particular problem with bikie gangs because half of the nation's 40 outlawed groups reside in the state.
But University of NSW Associate Professor of law Andrew Lynch said the laws would be difficult to prosecute.
"Courts are very reluctant to outlaw groups just on the basis of assertions from the executive," Dr Lynch told the ABC.
Both the NSW Council of Civil Liberties and the Law Society said current laws were sufficient.
"Where is the defect in the current laws that says (criminals) can't be dealt with?" NSW Law Society president Joe Catanzaeriti told Fairfax Media.
So, you might agree that “bikie gangs” should be dealt with – what has it got to do with me?
1st: The criminal code is sufficient now to deal with any illegal activity by anyone in the community, including ‘bikies’.
2nd: The new laws have NOTHING to do with ‘bikies’ at all. It could be used against a religious organization or any organization the state deems unfit. All it requires is someone to secretly accuse any group or organization of illegal activity (without proof) and the organization can become “a proscribed organization.” It is up to the ‘proscribed organisation’ to then prove it’s innocence. The whole process is done in secret, your lawyers will not be notified, your phone calls can be tapped and all business documents can be seized. There is no jury, no judge except at the Supreme court level, but there are harsh penalties, gaol, the inability to trade and the resultant stigma even if the organization is innocent!
3rd: You may have contact with people whom you do not know are part of a proscribed group (they may not know either!) which puts you under suspicion but more so, you can be investigated and charged under these draconian laws.
4th: The laws are unconstitutional and against everything theWestminster system of government is to be.
ANDREW CLENNELL STATE
THE Director of Public Prosecutions, Nicholas Cowdery, QC, has condemned the Government's new bikie laws as "very troubling legislation" that could lead to a police state and represent "another giant leap backwards for human rights and the separation of powers - in short, the rule of law".
Mr Cowdery's warning comes after a second wave of anti-bikie laws passed through Parliament this week, this time providing for penalties of up to five years' jail for members of a proscribed gang who "recruited" members.
The Act introduces a system of control orders whereby members of declared organisations can be ordered not to associate with other members subjected to control orders. This is not legislation directed, in terms, at "bikie gangs" - it can apply to any organisation, defined in a manner to include any formal or informal grouping of persons, wherever it may be based and wherever those persons may reside.(so there is nothing in the legislation about 'bikie gangs' at all - this can apply to ANY organisation or group)
The machinery of the Act works in two stages. First, the Police Commissioner may apply to have an organisation declared under the Act by an "eligible" Supreme Court judge. That judge must be satisfied (section 9(1)) that members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity and the organisation represents a risk to public safety and order in NSW. "Serious criminal activity" is defined to connect with "serious indictable offences" which are offences punishable by imprisonment for 5 years or more.
Secondly, once a declaration is made against an organisation, any judge of the Supreme Court can, on application by the Police Commissioner, make an interim and then a final control order against a person, if the court is satisfied that the person is a member of a particular declared organisation and that "sufficient grounds exist for making the control order". (The Act gives no useful guidance as to what constitute "sufficient grounds").(don't forget the police commissioner is a politically appointed position)
Section 26 of the Act makes it an offence for a controlled member of a declared organisation to associate (simpliciter) with another controlled member of the same organisation. The purpose of any such association is irrelevant to liability.(In other words you may just happen to know someone & you don't know their 'proscribed status yet you are now a criminal!)A first offence is punishable with a maximum penalty of 2 years imprisonment; a second or subsequent offence is liable to a maximum penalty of 5 years imprisonment. Certain reasonable circumstances of association are exempted (for example, between "close family members" or in the course of a lawful occupation, business or profession, during education courses, etc - including in lawful custody), but the onus is on the controlled person to prove that the association falls within such a reasonable exemption. The making of a final control order has the effect of revoking any authority or licence that the person had to carry on any prescribed activity (for example, operating a pawn broking business, a tow truck, selling or repairing motor vehicles, selling liquor, possessing a firearm, acting as a security agent, operating a casino).
The legislation has a number of troubling features, including the following.
" The legislation does not apply only to bikie gangs, but to any "particular organisation" in respect of which the Police Commissioner chooses to make an application. Where will the line be drawn? This legislation could be applied to any, even small, informally organised group whose members the Commissioner alleges "associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity". These words cast a very wide net - far wider than the elements of conspiracy, one of the most broadly defined crimes in the criminal calendar. Why should the responsibility for identifying which organisations warrant being declared under the Act be vested in the Police Commissioner, an unelected official? The spectre of a police state lurks here - an unacceptable slide from the separation of powers by linking the powers of the Police Commissioner with those of "eligible" judges.
It is curious to note that the Act does not apply to organisations organising, planning, facilitating, supporting or engaging in criminal activity that does not satisfy the definition of "serious criminal activity" - arguably for example, gangs of organised shoplifters or street drug dealers.
" Only an "eligible" Supreme Court judge can declare an organisation under the Act. To be eligible a judge must first consent to being declared eligible for this purpose and then be so declared by the Attorney General, who has the power to declare (or not to declare) him or her eligible and to amend or revoke the declaration of eligibility at any time.
In other words, if an Attorney General (another non elected government official) should so desire, he or she has unfettered power to "stack" the hearing of applications for declarations of organisations under the Act with judges willing to enforce it and to revoke or qualify the authority of a judge to determine applications for declarations if he or she does not perform to the government's satisfaction. This may not be the intention of the present Attorney General, but a provision so drafted left on the statute books is extremely dangerous and potentially open to serious misuse. It is also doubtful that the power to declare an organisation under this legislation is merely an administrative one - its ramifications for the organisation and its members are so serious that such an exercise of power may, in reality, more properly be regarded as an exercise of judicial power as the procedures laid down would seem to suggest. Indeed, these provisions may offend the doctrine of the separation of powers also for that reason.
" Whereas section 24 of the Act creates a right of appeal against the making of a control order against a person, section 35 purports, in the widest possible terms, otherwise to oust any review by the Supreme Court or any other review body (excepting investigations or proceedings under the Independent Commission Against Corruption Act) of a declaration or order made against an organisation or a person and to deny any right of appeal or review even when there has been a breach of the rules of procedural fairness (natural justice). (so there is NO RIGHT OF REVIEW OR APPEAL even if there have been falsifications, fabrications, innuendo, false declarations, edited 'evidence' or any other faults and failures in the whole proceedings such as stacking the court!)
In combination with the power vested in the Police Commissioner by the Act and the use of "eligible" judges, this alarming provision constitutes a frightening aggrandisement of power - in effect judicial power - to the executive.
" An eligible judge (in the case of an application for a declaration against an organisation) or any Supreme Court judge (in the case of an application in respect of a control order against a member of a declared organisation) hearing an application, is by section 28(3) "to take steps to maintain the confidentiality of information that [they consider] to be properly classified by the Commissioner as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives and the public". One can only wonder what "argument" there can possibly be when affected parties and their legal representatives are excluded from the proceedings.
" Part 3 of the Act empowers any judge of the Supreme Court to make control orders against an individual member of an organisation. The definition of "member" of an organisation in section 3 is alarmingly wide - for example, it includes a "prospective member (however described)". It also includes "a person who is treated by the organisation or persons who belong to the organisation, in some way, as if he or she belonged to the organisation". This is extraordinarily broad-reaching - this criterion could be fulfilled without the person himself having any intention of being part of the organisation and could be established without any direct evidence of that person's actual involvement with the organisation.
It is curious to note, however, that the definition of "member" does not include former member. Accordingly, it would seem that if a member received notice of a control order being sought against him or her, all that would be required for the entire process to be frustrated at that point would be for the member to resign.
" Section 13 provides that the rules of evidence do not apply to hearings of applications for a declaration of an organisation. Are organisations to be declared on the basis of hearsay upon hearsay, or a police intelligence officer's "hunch", or a report of an anonymous telephone call?
" Section 32 provides that "Any question of fact to be decided in proceedings under this Act is to be decided on the balance of probabilities" (this does not apply to proceedings for offences under the Act). Such a standard is insufficiently rigorous for the removal of a right as fundamental as the right to freedom of association. Indeed, the Act purports to remove the rights to freedom of association and expression in circumstances that do not come within the permissible exceptions described in the International Covenant on Civil and Political Rights (ICCPR) - for national security, public order, etc.
" Section 13(2) of the Act provides that an "eligible" judge is not required to provide any grounds or reasons for his or her decision in respect of a declaration against an organisation (except to the Ombudsman conducting a review under section 39). This is entirely contrary to the general practice in modern jurisprudence that judges should give public reasons for their decisions.
" The placing of the burden of proof upon a controlled person to establish that an association with another controlled person falls within the exemptions under the Act (for example, close family members), is a draconian measure, reminiscent of reverse onus provisions that were in place for a time in Northern Ireland during the "troubles". This is highly unusual and almost always inappropriate in the context of legislation creating criminal consequences.
" The Act criminalises conduct other than by rules of general application in the community - another infringement of the rule of law.
Further legislation has been introduced targeting the recruitment of a person to be a member of a declared organisation, enabling the substitute service of notices on those subject to applications to be placed under control orders and authorising search warrants to be issued by eligible judges upon reasonable suspicion (rather than reasonable belief).
At the end of her term as President of the NSW Bar Association in 2001, Ruth McColl SC (now a Judge of Appeal in NSW) sounded a timely warning for us all. In her final column in the Bar's monthly newsletter she wrote:
"Lawyers tend to take these core values [i.e. the rule of law and democratic principles] for granted. We work with the Rule of Law every day. We should not lose sight of the fact that the Rule of Law is not as concrete and ever-present a phenomenon to some members of the community as it is to us. At times, the transient, but regrettably politically significant influence of opinion polls can push the Rule of Law to one side and allow pragmatism to prevail over principle.
The corrupting force may not be just responses to opinion polls. These influences may be exerted openly or covertly by politicians, the media or rulers and policy makers of all kinds.
It matters not that the motives of the urgers or policy makers may be honourable. Justice Brandeis in 1928 warned in Olmstead v United States (277
"Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent… The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."
We all need constantly to be alert to the erosion of rights and be proactive in preventing it. In 2000 Justice Arthur Chaskalson, National Director of the Legal Resources Centres in South Africa and inaugural President of the Constitutional Court of that country, addressed a Public Interest Advocacy (PIAC) dinner in Sydney. He said:
"… (C)ourts are the institutions to which people in democratic societies turn for the protection of their rights and no one has greater responsibility for promoting and protecting human rights than judges and lawyers. If that protection is lacking, if institutions fail, the consequences can be catastrophic.
… Although
… (F)irst incursions into the protection of human rights are often the most dangerous, for they begin a process of erosion which is difficult to stop once it has begun.
… (T)he erosion of the power and independence of courts, and the lack of vigilance by lawyers, judges, and organs of civil society, permit those who should be held accountable for their conduct, to go free."
This is especially a time for vigilance in NSW. Someone once described it as the price of liberty.
Anti-bikie gang laws: wrong and dangerous
By Dale Mills
Every week it seems as if a new law in NSW is passed which rolls back civil liberties. This time it is "anti-bikie" gang laws which, despite assurances, can be used against any sort of organisation, including activist or pressure groups. Other states have said they may copy the laws.
Organisations may be banned and control orders issued against the members. It will be an offence "to associate" with other members on the police list. That list can be hundreds or thousands of names long.
Unlike the South Australian anti-bikie laws, the NSW law has no protection for political parties. A political party can be banned under the new law.
Completely peaceful activist groups may be caught up in the laws. An April 2 article in the Daily Telegraph was the first some MP's heard about the legislation before it was put before parliament. But it was rushed through parliament and passed into law within a single day.
Reading the parliamentary minutes is chilling. In breach of normal rules for urgent legislation, MPs did not have 5 days' notice.
One MP was already on his feet speaking about the legislation before he had a copy of the government paper supporting it in his hands.
Several MPs, even Liberal opposition leader, Barry O'Farrell (an ex-copper), complained that they were voting for the legislation "on trust" because they had not had enough time to properly read the proposed law. Many MPs did not receive the usual briefing made for important legislation, because of the lack of notice.
The anti-bikie law has been opposed by civil libertarians, academics and journalists. The government has refused to listen, and has allowed no opportunity for public consultation.
A first offence for "associating" with a listed person — a phone call will do — allows for a maximum of two years imprisonment, with five years for subsequent offences.
But why the new laws? What exactly was missing from existing laws against violent crime?
Bashing someone to death (allegedly) at
And that's not to mention the wider question. If drug dealing is the basis of bikie gangs' criminal activity, perhaps it's time to question a war on drugs which has failed for the last 60 years.
The idea of banning organisations and issuing control orders is borrowed directly from repressive anti-terrorism laws. Civil libertarians and other defenders of human rights were afraid this would happen — the over-policing law-and-order brigade said it could never happen.
Already, there is a maximum penalty of two years in prison and a $22,000 fine for "trespassing" at the Opera House to take part in a protest.
Anyone can get five years in prison for refusing to cooperate with ASIO on a questioning warrant, even if not suspected of an offence.
Laws passed in NSW in March allow police to secretly search your home and not tell you about it for years — for suspected offences. Videoing of all people at a political protest — regardless of how quiet, respectful and peaceful it is — is now a routine matter.
The Rees government's anti-bikie laws are just the latest in a growing list of attacks on civil liberties in
The NSW Director of Public Prosecutions, Nicholas Cowdery, has raised concerns about the law, warning against an erosion of people's rights.
The law allows the judge to hear certain information, such as police intelligence, in closed court and not make that information available to the targeted organisation or its lawyers.
