The NSW Government's attempts to tackle bikie gangs has been described as shaky and underdeveloped by legal experts who spoke to Lawyers Weekly after a new law was proposed yesterday by Premier Nathan Rees to ban bikie gangs recruiting new members.
The new offence, which builds on legislation measures enacted in the last sitting of Parliament, carries a maximum penalty of five years imprisonment for recruiting a member to a declared organisation.Dr
Andreas Schloenhardt, associate professor at the University of Queensland TC Beirne School of Law, told Lawyers Weekly the new offence showed that the first proposal was clearly not well developed given that an amendment was needed within four weeks.
"The details of the new offence are not out yet, but it seems that the NSW Government, like South Australia, is starting to model this after the federal terrorism laws. Step one: prescribing organization. Step two: [prescribing] certain offences in relation to the organisations. In April it was associating, now it is recruiting. I wonder what is next?" he said.
Associate Professor Michael Head from the University of Western Sydney said the new provisions indicated that the Government wass making it up as it goes along.
"It's just adding more powers, before any attempt to justify the powers already adopted. Every provision is more vague and uncertain than the previous one," he said.
"I mean 'recruiting new members'? What does that actually mean? How do you prove that or how easy would it be to accuse somebody of that without any clear evidence? What would 'recruit' mean? It just extends the web of these provisions even further."
A spokesman for Rees said any charges laid would be based on evidence police collected during investigations into declared bikie clubs.
Professor Mark Findlay, deputy director of the Institute of Criminology of the University of Sydney, said the new offence was probably less likely to succeed in prosecution than the earlier set and that "they were shaky enough".
"How you could prove recruiting is problematic enough? But it would be unacceptable to make it a strict liability offence and, if not, I don't know on who should rest the determination of 'knowledge'," he said.
"Knowledge, in relation to the purposes of recruiting and being recruited - who has to know what? Recruiting has no other comparison in criminal law except for soliciting and that clearly requires knowledge of the purpose for which someone is solicited."
Rees also said the new legislation would include a "substitute service", which would allow police to serve a notice on people even if the police were unable to find them.
Findlay described this as making a complete joke of the service requirement. "While there are many examples of substituted service in civil law, it is almost unheard of in criminal - it takes away from the fundamental commitment that the prosecution needs to give the accused a reasonable opportunity to answer the charge," he said.
Head added that substituted service was objectionable because a person could be effectively criminalised by being subject to orders without notice of them.
The new offence comes after the State Government pushed for changes to Federal law to prevent bikies holding company directorships.
NSW Parliament's Legislation Review Committee has been among the critics of the existing bikie gang laws, expressing concerns that fundamental rights to a presumption of innocence and freedom of association might be eroded.
- Sarah Sharples