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SA: bikie laws « Previous | |Next »
May 26, 2009

The local news in SA has reported that the first control order will be issued against a bike gang member ( the outlawed Finks motorcycle gang) in SA. The 42-member Finks, motorcycle gang, were declared SA's first criminal organisation earlier this month. Individual control orders ban them from contacting certain people and attending specific places. The legislation---The Serious and Organised Crime (Control) Act 2008 --- includes association laws to hit those who assist them - --- it is a crime to associate with a person subject to a control order.

The justification for the legislation is that cracking down on the bikie gangs will lower the crime rate and drugs---drug importation, amphetamine production and large-scale hydroponic cannabis cultivation and trafficking Law and order has become a big political issue in SA, and the "get tough on crime" legislation has been put in place by politicians saying on TV that they are they are sickened and disgusted by violence. The legislation outlaws organisations instead of focusing on criminal actions. Meanwhile, the usual state of chaos and lawlessness persists in South Australia.

My understanding is that under the legislation---Serious and Organised Crime Control Act 2008-- the Attorney-General has right to call an organisation, which could be anything from an informal group of people who meet at the local pub for a weekly drink through to a football club or a business, a Declared Organisation. The Attorney-General can use secret and untested evidence in making that declaration, and his decision can’t be challenged in the courts.

Secondly, the substantive issue of motorcycle gang criminality, namely, a criminal conspiracy to commit serious offences using violence or otherwise, is not dealt with by the accepted process of adducing evidence at trial. Rather it is dealt with by a quasi judicial process of prohibition of an organisation by declaration and the imposition of control orders on its members. Severe penalties are then visited upon controlled members who continue some form of contact, even remote contact by post, fax, phone or e-mail – two years imprisonment for a first offence, five years for a second or subsequent offence.

The only trial which is permitted deals with the fact that contact has occurred between persons subject to control orders and nothing else; even the opportunity to show that the contact was innocent, or would not have resulted in harm, is removed. In a democracy governed by the rule of law they are both unprincipled and counter-productive.

In a liberal democracy based on the rule of law these laws abrogate fundamental legal rights for the fair trial of persons accused of criminal offences. They cement in law the concept of guilt by association and would do nothing to lessen the problem of bikie gangs’ violence because they completely miss the point — which is that bikie gangs thrive on our refusal to decriminalise drugs. By continuing to criminalise drug use, the law and order poltiicians ensure that criminal gangs can make a serious buck out of flogging illegal product, with the super profits that inevitably go with it.

There do seem to be parallels between the anti-terrorism laws and the new bikie laws with their emphasis on risk and prevention and the curtailment of individual rights in the larger interests of security. Terrorism is becoming the paradigmatic criminal offence, and in recent months, both arsonists and bikies have been labelled as terrorists by Mike Rann, the Premier of South Australia. When the South Australian laws came into effect in 2005, Mike Rann, the South Australian Premier, said:

"To the civil libertarians let me say this: that we've got legislation across Australia that deals with the threat of terrorism, but these are terrorists within our community who think they can do what they like, and that's why we're standing up to them."

Is this an example of politicians using the language and laws of terrorism (within the body politic) to gain more powers?

Richard Ackland points out in the Sydney Morning Herald that:

If a defendant does not know what is in the statement and is therefore unable to challenge it, one might wonder how the courts can fairly undertake a process of reviewing or weighing. They can't.The authorities have been given the right to present one-sided evidence, the courts have the right to accept it against the defendant and the whole process can still be badged as a fair trial.

Though the legislation has been described as laws against “bikie gangs” and as “gang laws” it is not confined in its terms to “outlaw motorcycle gangs” and its potential reach is much broader.

| Posted by Gary Sauer-Thompson at 8:12 AM | | Comments (8)
Comments

Comments

Is there a history of successful prosecutions against gang members that might be used to justify this? Or is it all about imagery?

I would be surprised if bikie gangs had a stranglehold on the drugs market. They're not generally associated with the kind of wealth that drug trafficking generates.

Lyn,
by all accounts--according to the legal profession--- there is enough legislation on the books to deal with criminal behaviour through the procedures of the court system.

It is imagery..eg., "Red Hot" Nathan Rees rushed in very similar legislation after the Sydney airport killing. State governments have adopted a "tough on crime" at the expense of individual liberty during the last decade, and their authoritarian position generally goes with a big mocking of civil libertarians. Rann Labor, like the NSW crowd, is ruled by the Old Labor Right.

But it is more than TV imagery, given the modeling of this legislation on the anti-terrorism laws and it including a wider group than bikie gangs.

Isn't this very similar to the RICO laws being used in the US? Not sure if that makes it good or bad.

So the fact that bikie gangs haven't morphed into cruising yacht gangs on account of their trafficking fortunes means nothing. Their major crime is being unpredictable, unlike other people. The same way terrorists are unpredictable and not like other people.

If you eliminate all the people who are unpredictable, unlike other people, do you end up with a society made up of Mike Rann?

well, law and order is all about social control isn't it. Repression is the standard response to the social turbulence cause by the creative destruction of the market.

Mike Rann + Nathan Rees--- and Anna Bligh from what I understand--have bough into the conservative view that law is now the paramount agency of social control in that it has gradually replaced religion and morality as the basic instrument for achieving social order. Social control is necessary for preserving civilization since its main function is human control over "internal or human nature" which is absolutely necessary for the conquest of external, i.e. physical, nature. This control over human nature upholds civilized society and deters antisocial conduct which is at variance with the values of social order.

Hence more discipline and greater authority for the state.

its clear that you guys dont know anying thing about the the lebos trying to take over the brisbane drug scene and the police ignoring it while the bikies cleaned it up.

I can't say that I'm acquainted with the Brisbane drug scene (or any other, to be honest), but yeah it seems to me that this is just typical fascist legislation that is pretty common on all sides of politics in our 'brave new world' 21st Century.

I'm not saying that the bikies are cute and cuddly and I would guess that they've committed the odd crime or three, but an honest police force would just prosecute them for their crimes and if the problem is that they are hard to prosecute, surely we need smarter coppers, not repressive legislation.

Les,
I don't know about the drug scene in Brisbane. Politicians miss a key point — which is that bikie gangs thrive on our refusal to decriminalise drugs. By continuing to criminalise drug use, the law and order poltiicians ensure that criminal gangs can make a serious buck out of flogging illegal product, with the super profits that inevitably go with it.