They say a week is a long time in politics, but in NSW we’ve rarely seen one as busy as that leading up to the enacting of the new bikie laws.
In the wake of the recent high-profile incidents of bikie gang-related violence, including the fatal bashing of Anthony Zervas at Sydney airport, the NSW Government introduced new laws to expand police powers relating to "criminal organisations" and individual members of those organisations. Within seven days, the NSW Government had declared its intention to pass new laws to deal with the crime and violence linked to bikie gangs, drafted the legislation, passed it in both houses, and had the Bill enacted.
The unquestioned rush to criminalisation exposes the overly-enthusiastic and even cavalier attitude that successive state governments have adopted in their recourse to criminal law as a means of control.
Despite indicating initially that the new legislation would not be in place until June, the laws were drafted and passed within a matter of days. This has meant that there has been no reflective consideration of whether they are indeed necessary, no community consultation and no critical evaluation of the experience in other jurisdictions.
Even independent of a consideration of the content of the new legislation, its rapid passage, amid fever-pitch mass media attention, is a concerning yet familiar feature of state-level legislative activity in the area of criminal justice: knee-jerk reactions to high-profile and exceptional criminal offending.
It doesn’t seem too fanciful to posit that the NSW Government was awaiting another chance to "get tough on crime", perhaps a welcome distraction from the more intractable problems of the economy.
Equally concerning is that aspect of the political rhetoric surrounding the introduction of the new legislation that reveals one-upmanship in the "law and order" stakes between Australian states. The Attorney-General, John Hatzistergos, championed the NSW legislation as tougher than that of South Australia (the South Australian Act served as a model for the NSW laws).
Now the Queensland Government has indicated that it will enact legislation along the lines of that existing in South Australia and NSW. The issue of parallel national legislation is reported to be on the agenda of the next meeting of all attorneys-general.
It’s unfortunate that, in the current era of multifaceted cooperation between the Commonwealth and the states, with the Labor party in power in all jurisdictions except Western Australia, the Commonwealth shows signs of aping the States’ populist approaches on criminal justice. If this happens it would be a missed opportunity to reverse this legislative trend, which runs counter to the tone of the inaugural Federal Criminal Justice Forum held in Canberra in 2008, where it seemed a new direction in criminal justice might emerge.
The new law makes it possible for the police to apply to proscribe organisations and to make association between members of those organisations an offence. An organisation can be made a "declared organisation" if the judge is satisfied that a significant subset (measured in terms of numbers or influence) of its associates plan or engage in serious criminal activity and the organisation represents a risk to public safety and order.
Once an organisation is proscribed, a control order can be issued preventing any association — by phone, email, or meeting in person — between a controlled member and another controlled member. A breach of a control order is a criminal offence punishable by imprisonment for up to two years or five years for the second offence. The control order also prevents the affected individual from working in any of the high-risk industries listed in the Act, including the security industry. There is no time limit on a control order — it remains in force until it is revoked.
Despite the serious consequences for individuals under the Act, it makes significant compromises on the rules of evidence and procedure that apply to the exercise of power under it. Even though a breach of a control order is a criminal offence, the crucial stage of taking evidence and deciding the terms of the order occurs in the civil context, where the standard of proof is lower. When a decision is made under the Act, the Judge is not required to provide any grounds or reasons for the decision. Evidence used in making an organisation a "declared organisation" or issuing a control order may be "protected" and kept secret from the people affected by the orders.
Last week, Premier Rees defended the new legislation as a proportionate response to the escalation in violence involving bikie gangs. But it is not clear that these new laws were necessary. In the spate of police activity by Strike Force Raptor in the last few days, police have been relying not on the new laws but on existing laws relating to arrest, and affray and firearms offences.
In addition, there are real questions to be raised about the likely efficacy of the new laws. In relation to bikie gangs, where codes of honour and loyalty to the group are prominent organisational features, the stringency of the new laws may even serve to unproductively alienate affected groups. The passage of similar laws in South Australia last year lead to the unprecedented event of all bikie gangs uniting for a protest against them.
Further, there is a possibility that affected groups will be pushed underground, making policing a more difficult task despite the new police powers. This means that it is possible that the additional powers could actually make it harder for police to predict and prevent a recurrence of the violence that has been seen in recent weeks.
Why then has the Government introduced these new laws? It seems that the answer is in part because they can. The inclusion of anti-terrorism laws at State and Federal level has created a new model for the construction of criminal laws and procedures. Indeed, as Nicholas Broadbent observed in a newmatilda.com piece last week, the new bikie legislation owes a considerable debt to anti-terrorism laws. Despite the almost universal political consensus in place since 9/11 which sees terrorism as an exceptional offence requiring exceptional legal responses, the new bikie legislation shows that it has become a model for legislative regimes relating to other types of offending.
Like the bikie legislation, terrorism laws outlaw membership of proscribed organisations, criminalise individuals who associate with members of such organisations, place burdens of proof on the accused as opposed to requiring that the prosecution prove all points in their case, and provide for the use of secret evidence at trial. The recent amendment to police search powers introduced to Parliament in March this year extends powers previously restricted to the investigation of terrorism offences to investigation of a number of other specified serious offences, such as sexual offences.
These types of provisions came in for criticism from the UN Human Rights Council last week, with the Council warning Australia that measures such as the reverse burden of proof appear to be incompatible with non-derogable rights. Given the parallels between the anti-terrorism laws and the new bikie laws, this warning might provide support for a challenge to the validity of the legislation in the courts.
With its emphasis on risk and prevention, and the curtailment of individual rights in the larger interests of security, the new legislation is a regrettable (if not unexpected) step in the ongoing development of the criminal justice regime in NSW.
The new laws expose this classic slippery slope to the large-scale erosion of procedural and substantive protections in the criminal law that began with the treatment of terrorism offences as "exceptional".
Just as security is becoming the chief preoccupation of state governments and criminal justice actors and agencies, so it seems that terrorism is becoming the paradigmatic criminal offence. In recent months, both arsonists and bikies have been labelled as terrorists by the Premier of South Australia, Mike Rann. It seems as though we are all terrorists now.