Proposed changes to the Corporations Act to disqualify bikie gang members from holding company directorships have been met by concerns from legal experts who spoke to Lawyers Weekly on Wednesday.
The State Government is pushing for changes to the Federal law to prevent bikies, who are deemed to be part of a crime group, becoming company secretaries and other officers and automatically disqualifying them from controlling companies.
The changes aim to target the manufacture and distribution of drugs as well as money laundering activities
Professor Mark Findlay, deputy director of the Institute of Criminology at the University of Sydney, told Lawyers Weekly the suggested changes are problematic and that the legislative reform appears to be a moral panic about bikie violence.
"I think, basically, what we have is an example of politicians wanting to be seen to do something and they suggest the answer is in tinkering with fairly fundamental legal arrangements. Those who argue in favour of legislative change need to establish more convincingly that rebel bike gangs are using dummy corporations to advance their criminal activity. I don't think the evidence for that is clear," he said.
The ramifications of the proposed changes for companies in general should be seriously considered by the legal fraternity, said Professor Findlay.
"Because if government responds to concerns by, if you like, breaking down the privacy protections that relate to company transactions, then what's to stop them doing that in relation to any company activity which we identify in the future as being problematic," he said.
Associate Professor Michael Head from the University of Western Sydney agreed the powers could be misused.
"[A bikie] organisation can get caught up in these powers without being convicted of anything, but just on the basis of allegations. If it's now being said that the [powers] should be taken into corporations it's just magnifying the possibilities for use or abuse for other purposes that go far beyond certainly dealing with bikie gangs or genuine crime," he said
Professor Findlay also said there were already myriad regulatory options in Australia such as fairly comprehensive anti-money laundering legislations as well other regulations such as the Commonwealth Criminal Code, which could be used for prosecutions.
"I mean we haven't seen any prosecutions against companies that are supposedly operating as a shield for rebel bike gangs and I think that a part of that problem is that we don't have enough information - rather than enough power - to prosecute them," he said.
"To get that additional information there's an argument that could be said that perhaps we need to free up our police intelligence a little so that we know more about what it is that these organisations do," he said.
Dr Andreas Schloenhardt, from the University of Queensland TC Beirne School of Law, told Lawyers Weekly theidea behind the newly introduced laws and further proposals is to prevent members of outlaw motorcycle gangs (OMCG) influencing or taking over certain industries.
The new NSW laws bar persons under a control order from having gambling, firearms, liquor, and crowd control licences and the industries targeted are those that are seen as particularly vulnerable to OMCG infiltration, he said.
"There is a part of me that thinks that this measure is quite a useful and inexpensive way of sanctioning known organised crime figures that may have wider application," he said.
"On the other hand, more sophisticated groups, and more sophisticated individuals, would probably be smart enough to avoid having control orders imposed on them. For example by keeping connections to criminal gangs more clandestine."
The nation's attorneys-general will meet in Canberra Thursday and Friday, with the new proposal high on the agenda for discussion.
- Sarah Sharples