Bikie laws fall foul of law of unintended consequences

Recent protests against Queensland’s anti-bikie laws will find no comfort in previous court rulings that uphold legislators’ power to infringe freedom of association. AAP/Kym Agius

This week in Brisbane, police charged five Victorian men under Queensland anti-bikie legislation, which makes it an offence for gang members to congregate in groups.

But do we actually enjoy freedom of association in Australia? We don’t have anything in writing that says that we do, but in 1997 three judges of the High Court commented that freedom of association was a right that was capable of being implied from the Constitution.

Seven years later, two other judges of the High Court concluded that freedom of association might be linked to freedom of communication, but it was not necessarily a “free-standing” right. In his judgment, High Court Justice Michael Kirby tied the right principally to freedom of political association.

What has this got to do with outlaw motorcycle gangs? It has a lot to do with them. Parliaments around Australia have seriously constrained freedom of association as part of a general crackdown on bikies and their nefarious practices.

A legislative lottery

The legislation on this point is not uniform, however. For example, under the Crimes (Criminal Organisations Control) Act 2009 in NSW, a person who is subject to a “control order” commits an offence if he or she associates on three or more occasions within a three-month period with another controlled member of a “declared organisation”. There is a virtually identical section in the Criminal Organisations Control Act 2012 in Western Australia.

The Serious and Organised Crime (Control) Act 2008 in South Australia has a similar “number of occasions plus time-frame” approach, but it goes a little further. The act makes it an offence for any person to associate with a member of a “declared” organisation on more than six occasions over a 12-month period so long as he or she knew that person was such a member.

The Criminal Organisation Act 2009 in Queensland is less specific. It says that a condition of a control order may be one that prohibits the person subject to the order from associating with any person who is a member of a “criminal organisation”. Victoria’s Criminal Organisations Control Act 2012 reads similarly.

Finally, the Serious Crime Control Act in Northern Territory simply says that

“a controlled person must not associate with another controlled person”.

There is a problem, of course, in trying to separate meetings for legitimate reasons from illegitimate ones. For that reason, in some acts there are exceptions, but the wording is inconsistent and the exemptions are plentiful.

For example, the South Australian act makes associations between close family members exempt. So are associations occurring in the course of a lawful business, at a training course, at a counselling session, or when the subjects are in custody. One could speculate that these exemptions make the legislation unworkable, for many illicit associations could be carried on under the guise of any of these liaisons.

So much for freedom of association

There have been a number of legal challenges against the bikie laws generally, with some success. But the provisions prohibiting persons from meeting with their associates have remained untouched by judges.

A challenge to the anti-association section of the NSW law was made in 2011 but was dismissed by the High Court. It said that if there was a clear legislative intention to override the freedom to associate, then the legislature’s mandate would prevail.

The law is thus now clear: parliaments can, without fear of constitutional challenge, outlaw liaisons between whomever they like, even in the absence of evidence that their targets are meeting specifically for illegal or improper purposes.

Relying on a false assumption

If this issue is no longer laced with legal uncertainty, it is most certainly laced with criminological uncertainty. This is because the laws rely upon an assumption that stopping people from meeting with each other will render unlikely their pursuit of criminal activities.

Is that so? Will these sections actually work to reduce the nefarious deeds of “controlled” criminal organisations? I can find no evidence in the academic literature to indicate that would happen. Nor can reseachers Monique Mann and Julie Ayling and Ayling again.

Indeed, Canadian research suggests that the criminal activities of members tend to occur independently from the formal structure of the motorcycle organisations.

Reducing the visibility of gang membership does not necessarily reduce criminal activity. AAP/NSW Police

Targeting associates, too, is likely to usher in a lean period for intelligence-gathering. Former Victorian police commissioner Christine Nixon was reported to have told a federal parliamentary enquiry that the new laws will:

“…merely drive the visible appearance of organised motorcycle gangs underground, where the criminal activity will continue to function”.

It would be far better for crime control if all Australian governments simply followed the broad national response to illegal gang activities being developed by the Australian Crime Commission. It regularly releases its Organised Crime Threat Assessments. The aim of these assessments is to direct law enforcement agencies to target the key players and their lifestyles.

In short, arresting people who gather together without evidence of any other criminal purpose would seem to be pointless, if not counterproductive. While the recent arrests may serve some short-term political purpose, they are unlikely to make any serious inroads into organised crime.