Warnings against introducing anti-bikie laws into NSW have been issued by legal experts around Australia, with many disturbed that the first response to recent outbreaks of bikie gang-related violence in Sydney has been to 'beef up' existing law, writes Sarah Sharples
NSW Premier Nathan Rees has vowed to push ahead with draft laws banning bikie gangs after a man was bashed to death at Sydney Airport two weeks ago, during a brawl between rivals Hells Angels and the Comancheros.
He has also promised the legislation, modelled on South Australian (SA) laws, will stand up to High Court scrutiny. Motorcyclists, including members of bikie gangs, have formed a political party called Free Australia, to fight the laws in SA, with barristers instructed to take the challenge to the country's top court if necessary.
Last year, the SA Government introduced the Serious and Organised Crime Act 2008. The idea came from similar laws in Hong Kong, where authorities were attempting to combat Chinese tribes.
Associate Professor Michael Head, from the University of Western Sydney, is opposed to the introduction of the laws, describing them as "draconian".
"We are presented with an emergency type of situation, as we did with the terrorism scenarios, to create a climate where these powers are handed over to governments which are really quite far-reaching," he says.
Under the SA Act, the Attorney-General can make the decision to outlaw an organisation if he is satisfied that members are associating for the purpose of a serious criminal activity and pose a threat to public safety. NSW Attorney-General John Hatzistergos says the NSW approach will differ to the strategy adopted in SA, with a Supreme Court judge making the decision, with an application by the Police Commissioner required, based on intelligence gathered.
George Mancini, barrister and chair of the Criminal Law Committee in SA says the High Court has ruled in other cases that police intelligence is not required to be made available to the defendant.
"[The decision to outlaw] is a secret process, organisations don't have the right to properly challenge the evidence against them in any meaningful way, and of course that intelligence and its reliability and quality may be debatable because that's the very nature of police intelligence," he says.
In SA, after an organisation is proscribed as unlawful, police can then apply to the Magistrate's Court to have an individual declared as a member. From there, police are entitled to issue a control order prohibiting the declared member from associating with others involved in the organisation, an offence that carries up to five years imprisonment.
Mancini says both the Law Society and the Bar Association of SA opposed the introduction of the laws, with the legislation aimed at criminalising what is usually an ordinary legal activity.
"It strikes at association as a crime - now that's just abhorrent," says Mancini. "It interferes with people who are in an organisation and their freedom to go about their ordinary everyday activities, social or business or otherwise ... as a device to try to make them stop being members of such organisations.
"I think [the legislation] has arbitrary and discriminatory elements that are based on using laws for political purposes rather than for proper crime prevention and policing purposes."
Meanwhile, Head believes that the legislation could be used for more sinister purposes that are politically motivated.
"People might think it's far-fetched but just say, for example, you had an organisation that was planning to protest against a political event, such as what we had in Sydney with the APEC [summit]. These powers could be invoked then to say they are a threat to public safety and order, we will therefore declare ... the anti-APEC group such an [outlawed] organisation under these powers," he says. "It can become a vehicle for political use."
Dr Andreas Schloenhardt, from the University of Queensland TC Beirne School of Law, says politicians need to examine why bikie gangs exist in the first place, especially their involvement with illicit commodities, drugs, gambling and loan sharking, which is on the rise due to the current economic climate.
"They're in it to make money so that's what we need to go after, that is, their main purpose. They use violence and so on to enforce their contracts and to do their business," he says.
The wealth, power and influence of the organisations need to tackled, says Dr Schloenhardt, rather than compounding the problem by banning them.
"It will only make matters worse because the groups who are then outlawed will not wear any identifiers to show off that they belong to the Finks, the Rebels or the Hells Angels, and they will remove their tattoos and insignia. They will maybe temporarily go across the border into another jurisdiction, but of course, this doesn't dismantle the drug market of Adelaide or Sydney," he says.
"There is still a lot of money that can be made but they will operate deeper underground and will probably become a lot more clandestine, and through that a lot more dangerous."
Andrew Martin, a barrister who helped prosecute the "Milperra Massacre" in 1984 where seven people were killed as a result of a clash between motorcycle gangs the Comancheros and the Bandidos, agrees the proposed laws are nonsense and that the answers lie elsewhere. He suggests increased police surveillance to penetrate the organisations to determine the identity of the inner clique.
"There's a good chance you'll break all sorts of little rackets all over the place but the willingness to do that hasn't been there and changing the law, giving the police another tool, which is potentially oppressive on other groups, that's not going to change that whatsoever," he says.
"What you need is a closer association between the Crime Commission and the police in regard to this issue being treating as one of organised crime."
Dr Schloenhardt suggests legislation could be modelled on that in Canada or the United States. In Canada, a jury determines whether to outlaw a group, while amendments in 2001 now make it illegal to direct or finance outlawed organisations, allowing police to target key leaders. Also, a person who commits an offence on behalf of an organised group will receive a penalty additional to that of the original crime.
"The argument behind [the additional penalty] is that it may deter people from getting involved in criminal organisations and they have been able to pretty much dismantle parts of the Hells Angels, particularly in Ontario and in British Columbia," he says.
In the United States, the Nixon administration introduced the Racketeer Influenced and Corrupt Organisations Act 1970, which is designed to go after the money criminal gangs generate, rather than outlawing organisations and associations. Dr Schloenhardt describes it as an amazing tool, which pretty much dismantled the Italian Mafia in the 1990s, as well as targeting bikie and Asian gangs.
Mancini predicts that there will be protracted legal wrangling over the validity of the SA legislation and eventually it will fall over because it "overreaches itself and it will be too cumbersome, too resource hungry and too protracted to have any real efficacy in crime prevention".
Alternative solutions suggested by Mancini include better resourcing of traditional policing for investigations and surveillance, as well as modelling control orders such as those used on parolees and paedophiles, where evidence is presented in court openly and transparently, while also allowing the right to challenge.
Meanwhile, Dr Schloenhardt says an Australian parliamentary enquiry is currently examining the problem of bikie gangs and is due to report in the second half of the year, with particular reference to the Canadian and US models.
"I would advocate we need a thorough response that takes some time to develop and we need to work out how to actually fit [a response] into our criminal justice system, and that's not done overnight," he says.