The South Australian government is poised to enact tough anti-bikie laws. Its bill, currently in the state parliament, mirrors aspects of the suite of laws enacted by the then-LNP government in Queensland in 2013.
South Australia has chosen to adopt those provisions that the High Court upheld in November 2014. But while the proposed laws may be constitutional, there are clear reasons why their introduction is at best premature – and at worst a very bad idea.
What does the South Australian bill do?
The bill copies a set of new criminal offences from Queensland’s laws. These offences focus on declared criminal organisations, which may be identified by a court or at the attorney-general’s discretion.
Former Queensland attorney-general Jarrod Bleijie identified 26 such organisations and said that his reasons for doing so may never be made public. An almost identical list is part of the South Australian bill.
However, the South Australian bill is broader than the Queensland laws when it comes to declaring criminal organisations. It provides that once an organisation is declared, a change in its name or even its membership will not affect its status as a criminal organisation. If members of the declared organisation re-form to create a new organisation, that group will also be a “criminal organisation”.
This vastly extends the bill’s reach. It may encompass groups well beyond the list of declared organisations.
The new offence provisions criminalise the wearing of anything – names, logos, symbols, insignia and so on – that indicates association with a declared criminal organisation on licensed premises. This offence carries onerous fines and potential terms of imprisonment. There is a A$10,000 penalty for persons responsible for the licensed premises (including employees) if they knowingly allow a person carrying one of these items to enter or remain on the premises.
Once organisations have been declared, its participants are prohibited from doing certain things. A participant is defined very broadly as anyone who takes part in the organisation’s affairs, attends more than one gathering of members, or in any way asserts or even seeks an association with the organisation.
Once a person qualifies as a participant in a criminal organisation, that label sticks. So, a person who attended two Hells Angels meetings in the 1970s, or sought membership of the Bandidos in the 1990s, or was seen wearing Gypsy Jokers colours thereby asserting some association with the group, will qualify as a “participant in a criminal organisation” today and into the future.
A participant in a criminal organisation commits an offence punishable by a term of imprisonment if they:
meet with two or more other participants in public;
recruit to the organisation; or
attend prescribed places or events (that non-participants are free to attend).
The Queensland experience
The High Court has upheld the Queensland laws as in keeping with the separation of powers under the Constitution. During that case, other states – particularly South Australia and Western Australia – indicated that they would consider enacting any laws that were upheld by the High Court.
While the new offence provisions withstood constitutional scrutiny, the experience in Queensland since then suggests that a cautious approach should be adopted to implementing similar provisions elsewhere.
No less than three government inquiries are currently on foot – two in Queensland and one in South Australia – on the organised crime threat and what kinds of measures would be effective to combat it. One of these inquiries is in the form of a high-level taskforce designed specifically to review the bikie laws enacted in Queensland and report on their effectiveness. The taskforce will also report on how the laws might be improved to better achieve their aims.
All three inquiries are due to report by the end of the year. A move to enact the South Australian bill seems pre-emptive in this context, and eschews an opportunity to enact better, more effective laws in a few months’ time.
Despite being in existence for nearly two years, the effectiveness of Queensland’s laws remains unproven. Two sets of charges for the offence of “participants in a criminal organisation meeting in public” have been dropped before the trial commenced. Success stories of prosecutions under the laws are notably absent.
Some have argued that the laws have not made any significant contribution to the fight against organised crime in Queensland. The laws may reduce the visibility of bikie gangs, but there is little evidence to suggest they have prevented serious crime.
The laws grossly impact civil liberties. Even the High Court acknowledged that their impact on citizens is severe and disproportionate. The laws highlight the absence of personal rights to associate, or to express oneself through clothing, or to attend events and places that most persons are free to attend.
The impact of the laws on civil liberties had considerable political consequences for the former Newman government. While a tough law and order stance is usually a successful political strategy, these laws arguably went too far. Protests against the laws occurred not only across Queensland but around the world.
During its successful state election campaign, Labor vowed to repeal the bikie laws. The government has convened the Organised Crime Inquiry and high-level taskforce to fulfil this promise.
Potential for executive overreach
The laws have been applied in a way that shows their capacity for executive overreach. While the rhetoric around the laws is aimed squarely at bikie gangs, the potential scope of the laws is far broader.
When Queensland’s laws were challenged in the High Court, Justice Hayne accepted that the attorney-general’s capacity to declare an organisation was effectively unreviewable. He accepted that it could extend to basically any organisation that the government decided to declare.
Already, the South Australian government has inadvertently named an amateur motorcycle club as a declared criminal organisation in the bill. This apparent slip could have grave consequences for participants in that club, who risk imprisonment for meeting in groups of three or publicising the club – regardless of whether they quickly leave the club or re-form under a different name.
Recent trends indicate that if South Australia enacts these laws, other states may follow regardless of the serious concerns raised above. Political pressure to look tough on crime and avoid becoming a haven for bikie gangs tends to outweigh concerns over the laws’ impact on society or actual effectiveness.