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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.
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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.