Australian 'Bikie' Laws in the Absence of an Express Bill of Rights

• Author: Anthony Gray
• Position: Associate Professor of Law University of Southern Queensland Anthony.Gray@usq.edu.au
• Pages: 274-286

Page 274

I Introduction

In this article, I discuss the so-called 'bikie' legislation introduced already in some Australian states and suggested in others. I will use this convenient name for the legislation,¹ though the Acts do not name 'bikie' or 'bikie gangs' as being the object or target of the legislation. In discussing the supposed need for such legislation, politicians often use the 'problem' of bikie gangs as a reason for such legislation, although as has been commented upon elsewhere, the perception of the connection between gangs and crime is often false.² Legislation has already been passed in South Australia (SA) and New South Wales (NSW); it is being canvassed in other States. Here I will focus largely on the South Australian model of legislation (and explain its New South Wales counterpart, where there are important differences), and consider the constitutionality of such legislation, given its impact on fundamental human rights. This discussion takes place in a context where Australia is one of the few western nations without an express Bill of Rights,³ and has not enacted the International Covenant on Civil and Political Rights into legislation.

2. Serious and Organised Crime (Control) Act 2008 (SA)

Section 8 of the Act allows the Commissioner of Police to apply to the Attorney-General for a declaration. The application must be in writing, identify the organisation the subject of the request, set out the supporting information for the application, and details of any previous application. Once the Attorney receives the application, they must publicly advertise that the application has been made, and invite members of the public to comment on it.⁴ There is no requirement to give the organisation the subject of the request a specific notice of the application.

2. 1 When a Declaration can be made

If the Attorney-General thinks members of the organisation associate for the purposes of organising or planning serious criminal activity (we will call this a 'criminal purpose'), and the organisation represents a risk to public Page 275 safety and order in the State, they may make a declaration about the organisation. Serious criminal activity mostly means indictable offences. In considering whether or not to make the declaration, relevant factors are:

(a) information suggesting a link between the organisation and serious criminal activity;

(b) criminal convictions recorded against current or former members of the organisation, or those who associate, or have associated, with members of the organisation;

(c) information suggesting that current or former members of the organisation, or those who associate, or have associated, with such members, have been or are involved in serious criminal activity (directly or indirectly, and regardless of whether the conduct has resulted in any criminal convictions);

(d) information suggesting members of an interstate or overseas chapter or branch of the organisation associate to organise or plan serious criminal activity;

(e) public submissions on the matter; and

(f) other relevant matter.⁵

It doesn't matter whether all or only some members of the association associate for the criminal purpose, provided those that do form a 'significant group within the organisation' either in terms of numbers or influence. It doesn't matter whether they associate for other non-criminal purposes as well. It doesn't matter whether the association for the criminal purpose relates to the same serious criminal activities or different ones.⁶ If the Attorney-General makes a declaration, they are not required to provide reasons⁷.

2. 2 The Effect of the Declaration

The making of a declaration affects members of the declared organisation or associates of members.

(i) how it affects members

Section 14 of the South Australian legislation provides that the Court must, on application by the Commissioner, make a control order against a defendant if they are satisfied on the balance of probabilities that they are a member of the declared organisation. It is not necessary to give notice to any person before a control order is made.⁸ If the defendant is a member of a declared organisation, the order must prohibit the defendant from associating with others who are members of declared organisations, and possessing dangerous articles or prohibited weapons.

(ii) how it affects current non-members

The court may also make an order against a person (a) who has been a member, (b) who has engaged in or engages in serious criminal activity and regularly associates with members of the declared organisation, or (c) the defendant has engaged in serious criminal activity and regularly associates with others who do the same.

The control order may prohibit the defendant from associating or communicating with certain persons of a certain class, enter or be near the specified premises or those of a specified class (e.g. premises belonging to a 'bikie' group), or from having specified articles or those of a particular class (e.g. weapons).⁹ Relevant factors include whether the defendant's behaviour, or history of behaviour, suggests that they will engage in serious criminal activity, whether the order might stop the defendant engaging in serious criminal activity, the defendant's prior record and that of any of their associates named in the application, any legitimate reason the defendant might have for associating with a person specified in the application, and other relevant matters.¹⁰ Page 276

A control order must be directed at the person specified in the application, set out the terms of the order, including a statement of reasons, and set out rights of objection.¹¹ However, information that meets the definition of 'criminal intelligence' must not be disclosed in giving reasons, as I discuss below. The order must be served on the person personally.¹² The person can appeal the making of the order to a magistrate who might confirm, vary or revoke the order.¹³ The magistrate's decision can be further appealed to the Supreme Court.¹⁴ It is an offence to not comply with a control order, with a maximum five year jail term. It is a defence if the person did not know that they were contravening the control order as long as they were not reckless.¹⁵

Section 27 of the New South Wales Act provides a further consequence of the making of a control order in relation to a person; that any authorisation they possess to carry on a 'prescribed activity' is automatically suspended until the interim or control order is revoked. The person cannot apply for permission to conduct a 'prescribed activity' while the order is in place. The section provides examples of prescribed activities including work in the security industry, carry on a pawnbroker business, work as a commercial agent, operate a tow truck business, sell motor vehicles, work as a mechanic and sell liquor, or work in the racing industry.

2. 3 Disclosure of Certain Types of Evidence - Criminal Intelligence

Section 21 of the South Australian law (with similar provisions in s28 of the New South Wales Act) provides that no information provided by the Commissioner to a court for these proceedings may be disclosed to any person (other than the Attorney-General or the court), if the information is 'criminal intelligence'. This is defined in s3 as information relating to actual or suspected criminal activity (in the State or elsewhere) where disclosure could reasonably be expected to prejudice criminal investigations, enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement, or to endanger a person's life or physical safety.

2. 4 Public Safety Orders

Section 23 of the South Australian law allows a senior police officer to make a public safety order if they believe that the presence of the person, or persons of that class, at any premises or event, or within an area, poses a serious risk to public safety and security. Relevant factors include whether persons of that class have previously behaved in a way that poses serious risk to public safety or security or have a history of engaging in serious criminal activity, and whether they are or have been members of a declared organisation, subject to control orders or associated with such people. If the reason for the gathering if to conduct a protest, dissent or strike, the public interest in maintaining freedom to participate in such activities must be considered. It is also relevant to consider the risk involved in allowing the individuals to be there, whether they have legitimate reasons for doing so, whether other measures are available to manage the risk, and to what extent the order will mitigate the risk.

Any order made must contain reasons, unless they relate to 'criminal intelligence' as already defined. The maximum period of a public safety order is 72 hours.

2. 5 Criminal Associations

Section 35 of the South Australian law provides that a person who associates at least six times during a period of 12 months with a person who is a member of a declared organisation or the subject of a control order is guilty of an offence. The maximum penalty is five years' jail. The person accused must know the other person is a member of a...