Judges Won't Do The States' Dirty Work


No one much likes bikie gangs. Since 2008 both the South Australian and New South Wales governments have been particularly focussed on trying to rub them out. Both States have passed draconian laws that allow bikie gangs to be declared criminal organisations and then outlawed. However both attempts have been struck down by the High Court which is developing a nagging insistence that States comply with the Constitution. With calls for national anti-bikie laws now being heard we need to reconsider the whole approach of criminalising association.

In 2009, NSW passed the Crimes (Criminal Organisations Control) Act 2009 (NSW).  This Act allowed Supreme Court judges to take on the role of declaring any organisation to be a criminal organisation, and therefore unlawful. It wasn’t limited to bikie gangs. It did not require any reasons to be given before a declaration was made. It didn’t even require the laws of evidence to apply: rumour, "criminal intelligence" and police suspicion were thought to be sufficient proof.

Derek Wainohu was a member of the Hells Angels Motorcycle Club in New South Wales. In July 2010 the NSW Police applied for a declaration under the Act outlawing the Hells Angels. Wainohu challenged the law in the High Court.

In June this year the High Court delivered a damning judgement which effectively declared the legislation invalid. What most offended the Court was that the Act used the good name of Supreme Court judges to do the dirty work of the state bureaucracy without requiring them to give reasons.

In 2008 South Australia tried a different tack which also ran aground in the High Court. Under the Serious and Organised Crime (Control) Act the SA Attorney General could declare an organisation to be unlawful and then have a magistrate impose control orders on the organisation and its members.

When this was done to the Finks motorcycle gang one of its members, Sandro Totani, appealed to the High Court which in 2010 declared the Act invalid. The Court found that the SA Act enlisted the Magistrates Court in implementing decisions of the executive and removed their independence. The High Court does not approve of legislation that turns a Court into the executive’s poodle.

When the NSW Act was introduced in 2009 it was championed by the then attorney-general John Hatzistergos the best method to stop the violence, illegality and drugs associated with bikie gangs. In the Parliament it received support from the then Labor Government, the opposition Coalition as well as the Shooters and Fred Nile. The only opposition came from the Greens and Clover Moore who raised concerns about its impact on civil liberties and its lawfulness.

The laws were fast-tracked through parliament to address media interest following a brawl at Sydney Airport in which a bikie associate was killed. As testament to the power of the 24-hour news cycle, the time between the brawl and the law being passed was less than a fortnight.

Then as now the legislation fundamentally offends basic civil liberties.

As the then Greens MLC Sylvia Hale said in parliament during the debate: "We should not criminalise any citizen by way of declaration or proclamation, or on the basis of merely associating with a member of a proscribed organisation". She continued, "if we want to arrest bikies it should be in relation to their involvement in crime, not because they have a beer together".

As the O’Farrell Government stumbles toward the next move in this saga we can only hope that it will not travel down the same sorry path of criminalising association. Recent calls by O’Farrell for national bikie gang laws do not bode well.

The Greens believe that the most effective response to criminal actions by bikie gangs is to target the criminal behaviour. Bolster the investigative ranks of the police and form highly skilled and well resourced police taskforces to undertake the task. We know this works based on past operations targeting bikie gangs such as Operation Ranmore which in 2008 delivered more than 1200 charges and over 500 arrests.

It may not sound as tough as anti bikie laws. It may not allow the Police Minister to rattle his chains and declare a war on bikies. However, good old traditional policing, with solid resources and a respect for the rule of law will always be the most dependable, and ultimately the most successful, way of cracking down on bikie-related crime. Parliaments and governments in a free society do the most good when they deliver a criminal justice system that targets criminal behaviour not so-called criminal classes. As the High Court has made clear, laws that criminalise association rarely work.


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