from Crikey ….. 

'The stuff of nightmares': when who you are becomes a crime

As states continue to roll out anti-gang legislation with gay abandon, it is easy to think that police are no longer concerned about what we do, but who we are and who we chose to associate with.

During the past decade governments have expanded and strengthened "status" and "association" offences. Despite human rights concerns, it is a trend that continues to build political momentum, bolstered by fear-mongering rather than proven operational effectiveness.

Nowhere is this more apparent than Queensland. In response to a bikie brawl on the Gold Coast last month, Premier Campbell Newman’s government used its legislative majority in the Parliament’s only chamber to pass several measures targeting members of "criminal" organisations. The government has declared 26 organisations, all motorcycle clubs, "criminal".

The measures have included extraordinarily long mandatory prison terms for associates of a criminal organisation, new offences prohibiting members meeting in a public place, entering a clubhouse, wearing the club "colours" or recruiting into the club. Other measures reverse the presumption of bail for members and remove the privilege against self-incrimination. Rather than rely on existing legislation, some of which had been specifically introduced to target bikie-related violence, the government introduced new, untested measures.

In New South Wales the gang-related shooting of a girl last week has raised political interest in new offences targeting gangs. Premier Barry O’Farrell quickly flagged the introduction of mandatory minimum sentences for gang members caught carrying guns. This follows on the back of new legislation allowing the police to stop and search gang members without a warrant if a Firearm Prohibition Order has been made.

These trends have been building for some time. Today’s anti-gang laws can be traced to former prime minister Robert Menzies’ unsuccessful attempt to ban the Communist Party at the start of the Cold War. In a case that has become an iconic judgment in defence of the rule of law, the High Court struck down the legislation because it unilaterally declared the party illegal, with no opportunity for the court to review that assessment. Unfortunately, the constitutional brakes that the High Court was able to apply to Menzies in 1951 don't apply to state premiers. States are subject to fewer and narrower constitutional safeguards.

The modern trend in criminalising status and association started in earnest with the federal response to the threat of terrorism after the September 11 attacks. The new federal legislation focused on preventative measures because of the enormous risk to life and property posed by terrorists. The measures were introduced as "extraordinary" legislation. Bob Debus, then New South Wales Attorney-General, said the powers "are not designed or intended to be used for general policing".

However, it wasn’t too long before the states introduced similar measures in ordinary policing. State legislation targeted the public face of organised crime; bikies. Former South Australian premier Mike Rann declared bikies "terrorists within our community". But Rann’s rhetorical analogy between organised crime and terrorism is flawed. Organised crime is motivated by profit, lacking the political, religious or ideological motives associated with terrorism. Organised crime-related violence is predominantly targeted at other organised criminals or their associates, with members of the public harmed as collateral damage, not because they were the primary target.

Curiously, preventative measures were not adopted into the organised crime sphere because they were operationally effective against terrorism. Indeed, only one anti-terrorism control order had been issued at the date a similar scheme was adopted in SA. Rather, preventative measures have been adopted in the states because they have proved to be politically popular.

SA started the trend in 2008, introducing a system of control orders that could be made against members of associations declared to be criminal by the Attorney-General. The High Court struck down a key provision of the legislation because it required the courts to act at the dictate of the government. A similar fate awaited the NSW control order legislation. However, earlier this year the High Court upheld Queensland’s slightly modified version of the scheme. The Queensland law has now been largely replicated in other states, although no organisation has yet been declared criminal under it.

States haven’t stopped at control orders. Members of declared organisations are targeted by new offences, restrictions on access to certain industries, and mandatory minimum sentences. In NSW and SA, the old crime of consorting with criminals has been reintroduced, although the NSW consorting law is under challenge by the Nomads motorcycle gang on the basis it breaches the constitutionally protected freedom of political communication and association.

These preventative policing trends have deservedly attracted widespread criticism from lawyers and civil rights groups. Status and association offences offend fundamental civil and political rights including the right to freedom of communication, association and movement, the right not to be subject to arbitrary or unjust detention and the right to a trial before a fair, impartial judge.

Then there's the increased reliance by prosecutors on police "intelligence". Prosecutors are often relying on "confidential" information, procured by police while undercover or from ongoing police operations, to prove the risk posed by an individual or a group. Defendants are being denied the opportunity to test the veracity and relevance of information used against them. An English law lord once described a similar regime as "the stuff of nightmares". This alone is such an egregious breach of the right to a fair trial that it throws serious doubts on the preventative model.

Many of our state governments, it seems, share none of these doubts. Politicians continue to talk up the threat of organised crime and the effectiveness of the measures they are introducing to combat it, with apparent disregard for any hard evidence behind either claim.