It’s hard to keep up with NSW police ministers.
Carl Scully resigned after misleading parliament over the Cronulla riots. David Campbell’s association with the "sex for development" scandal in Wollongong meant that he was the next to go. Then Matt Brown lasted just three days before resigning after a sexy, underpants-clad dance in Parliament House. Right now Michael Daley has the job.
But we’ve skipped one notable occupant of the office: Tony Kelly. And it was police minister Kelly who in March this year was asked an interesting question in parliament by Greens MLC Lee Rhiannon.
Rhiannon asked: "Will the Minister guarantee that he will wait until there has been a proper evaluation of the 2008 South Australian [anti-bikie] laws — described as draconian and reminiscent of the McCarthy era by civil libertarians in the South Australian Law Society — to test their effectiveness before enacting new laws designed to boost the law and order image of this Government?"
Kelly responded, in part: "As the member rightly pointed out, the part of that law that outlaws gangs is still being tested … We have a long way to go to ensure whether those South Australian laws are effective." Rhiannon persisted, again pressing the minister, but was interrupted by ALP whip Michael Gallagher on a point of order. It was upheld by the president, and the question slipped into the annals of parliamentary history.
Less than a month after that early objection to taking the South Australian route, the NSW Crimes (Criminal Organisations Control) Act 2009 was rushed through Parliament by the NSW Government. It rode the familiar waves of sensational headlines that characterise the dangerous tabloid-political complex that has emerged in Australian law-making, as politicians react to terrifying newspaper images to convey an impression they are doing something about them.
But although "bikie violence" justified the laws to the public, the NSW Act doesn’t actually mention motorcycles. The reportage gave rise to blanket legislation that now pertains to every individual in the state — pending testing in the courts.
The legislation received little opposition from the NSW Liberals, who are also keen to come across as tough on crime. Opposition Leader Barry O’Farrell signalled just how little he cared for the principles of good law-making when he told parliament: "I would have no problem if you put all the motorcycle gang members in two rooms and allowed them to shoot themselves to death."
Half a year on, South Australian Supreme Court judges (by a majority of two to one) have declared that state’s Serious and Organised Crime (Control) Act 2008 invalid, and ordered the Government to pay the bikies’ court costs. Australian Lawyers Association South Australian president, Anthony Kerin, said, "This decision represents a positive step for democracy, civil liberty and common sense. Freedom of association is a basic human right". The SA Government is now busy reframing their laws, and no doubt this time NSW will be used as a model for their legislation.
The unconstitutional component of the South Australian legislation — the part which brought it down — read: "The court must, on application by the commissioner, make a control order against a person (the defendant) if the court is satisfied that the defendant is a member of a declared organisation." (My italics.)
The NSW Attorney General, John Hatzistergos, was quick to point out that the NSW legislation differs in key areas from the SA model, which means that it may not be so easily declared unconstitutional.
The main difference is that while the SA legislation obliges a magistrate to make a control order banning association and communication between individuals if they are proven to be a member of a declared organisation, in NSW the law uses the word "may" instead of "must". This gives judges the power to weigh up pros and cons when adjudicating a control order, even if individuals are deemed to be a member of a declared organisation. They have the discretionary power to reject an application according to individual evidence.
In South Australia, such control orders would be signed off by the Attorney-General. In NSW, control orders would be signed off by the courts after an application by the Police Commissioner, giving more power to the judicial arm of government, rather than to the executive.
But not complete power. Barrister Gabrial Wendler, an expert in constitutional and criminal law, notes, "the Attorney-General nominates who can hear these cases. Although they’re judges, they act as an administrative official". The concern is that by hand-picking judges, the Government may be able to influence court outcomes. So in NSW, as in South Australia, politicians are arguably putting themselves in a position to interfere with the practice of the courts, which may be deemed unconstitutional.
A key aspect of both pieces of legislation is yet to be tested in a court — namely, the question of whether the constitution allows for individuals to be held guilty simply for associating. That is likely to be the next test, and bikies, as the most probable first targets of such laws, are surely getting plenty of advice on how to proceed in that event.
As Wendler says, "you could make a pre-emptive strike by going straight to the High Court if you had information your organisation was going to be proscribed. You would injunct the Police Commissioner, the Attorney-General and the state of NSW … [It’s] reminiscent of Nazism — you don’t attack individuals, but groups, and it’s not a good law."
The legislation will likely make its way to the High Court of Australia, where it will ultimately be settled whether the belief of a police commissioner and one government-nominated Supreme Court Judge is sufficient to ban people from talking to each other.
And, although the NSW legislation doesn’t restrict itself to motorbikes, as in the South Australian experience "outlawed bikies" will be pitted against politicians in court, ensuring a flowing media narrative.
Meanwhile in the NSW Government, the police minister who Lee Rhiannon quizzed a few months back has himself been moved on. Tony Kelly was dumped just a few weeks ago after an industrial dispute, and just days after the McGurk tapes emerged.
The newly sworn-in Police Minster, Michael Daley, has kept up the political rhetoric. He told NSW parliament in September: "Police from local area commands are targeting bikies … They’re driving them crazy … The statistics are impressive: 400 arrests and 800 charges to date." But all the arrests the Minister brags about have been made under old laws, rather than the new ones that were supposedly brought in to serve exactly this purpose.
As noted by Nicholas Broadbent in New Matilda earlier this year, the SA and NSW laws represent a move towards a "terrorist paradigm" in Australian legislation. Freedom of association in Australia is not protected by a bill of rights, but governments want power to declare that Australians may not associate freely.
This line-up of hapless police ministers in NSW is presiding over what one of them has proudly referred to as the fourth-largest police force in the Western world, and yet they have shown themselves to lack the experience and ability to effectively tackle organised crime. It is difficult to avoid the conclusion that the bikie laws are less about good policy than about good press and lazy policing.
But none of that is likely to matter much to Michael Daley. If history is any guide, he won’t be around for long anyway.
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