Last week, the High Court upheld Queensland’s controversial criminal association laws, which had been challenged by the Gold Coast Chapter of the Finks Motor Cycle Club and Pompano Pty Ltd.
The challenge stemmed from June 2012, when the Queensland Assitant Police Commissioner, Mike Condon, asked the Supreme Court to declare the Finks and Pompano to be a criminal organisation.
The respondents challenged the declaration on the basis that it relied upon criminal intelligence, which they argued denies procedural fairness. Under the Act, whether information constitutes criminal intelligence must be determined in a special closed hearing; if the court does declare information to be criminal intelligence, any part of the substantive application (to have the organisation declared criminal) which involves that intelligence, must also be heard in a closed hearing. The consequence of all this is that the criminal intelligence is withheld from those who would wish to defend themselves against it.
Similar laws in South Australia and New South Wales were declared unconstitutional in 2010 and 2011 respectively. But on Thursday, the High Court found that while the Queensland provisions do constitute a departure from usual procedure and judicial process, they do not affect the integrity of the Supreme Court and therefore do not violate the constitution. The application to declare the Finks and Pompano as criminal organisations may now proceed.
Thursday’s decision is especially significant in the wake of the federal government’s announcement that it intends to target organised crime groups. The government intends to bring in a raft of laws, including unexplained wealth laws, reforms to combat the illegal firearms market, and, relevantly (and unfortunately), control orders.
Even though control orders, which are used to limit the activities of members of organisations declared to be criminal, have already been successfully used against suspected terrorists, Thursday’s High Court decision will no doubt be encouraging for the federal government and its plan to use the same tool to spearhead its attack on organised crime.
It is worrying, however, that reactions to Thursday’s decision have again confirmed that “serious organised crime” often appears to be synonymous with bikie gangs.
In the wake of the decision, Queensland Premier Campbell Newman said:
This means that we can wage the fight against criminal outlaw motorcycle gangs - people who deal in drugs, people who are involved in prostitution and organised criminal matters.
What Newman said appeared to confuse who the legislation is intended to fight: does it target organised crime, or just bikie gangs? Because while some outlaw motorcycle gangs might engage in organised crime, the two are not exactly one and the same, and the organised crime threat is not limited to bikies.
Premier Newman’s comments were not the first time we’ve seen a conflation of bikie gangs and organised crime generally in Australia.
Admittedly, anyone who’s watched the news over the past fortnight will know that bikie gangs tend to get the lion’s share of the organised crime limelight in Australia, mainly because of their propensity to engage in public displays of violence.
But the reality is that outlaw motorcycle gangs are not the only or necessarily the most dangerous organised crime groups operating in Australia. This was proven in 2007, when a shipment of 15 million ecstasy tablets to Melbourne from Naples was seized, hidden in cans of tomatoes and with an estimated street value of $122 million. Though an alleged founding member of bikie gang the Black Uhlans was convicted of involvement in this, the world’s largest ecstasy haul, the operation was actually masterminded by members of an Australian branch of the Calabrian ’ndrangheta.
The community will not tolerate […] massive commercial exploitation of the younger members of our community, to enable you or others like you, to accumulate vast amounts of money. This is what is referred to as organised crime, it has international links, it is professional, it is contemptuous of our police, our laws and our society, and it cannot and will not be tolerated by our society, Parliament or the courts. It merits punishment.
There is no doubt that organised crime deserves punishment. Unfortunately, however, our legislation has not served us well to this point. It poses obstacles to extradition and therefore also to international efforts to fight organised crime, and fails to deter organised crime groups of foreign origin from setting up camp in Australia.
As Italian Prosecutor Franco Roberti has pointed out, speaking about the transnational spread of organised crime groups of Italian origin, Italy doesn’t export its mafias – rather, countries such as Australia with inadequate organised crime legislation, attract it.
Know your enemy
The fact that the government has finally decided to act on organised crime does not guarantee the approach will work.
There is a risk that the dominance of bikie gangs in Australia’s organised crime discourse could lead to the international element of the threat being overlooked.
Another threat to the development of optimal legislation to tackle organised crime relates to timing. Legislation that emerges from election campaigns (as the proposed initiatives look to have done, given that the problem of organised crime did not suddenly emerge two weeks ago in Punchbowl), is unlikely to produce the best solutions.
The federal government would do well to engage in some serious evaluation before deciding on the right laws to fight organised crime.
But before this, we must determine exactly where the organised crime threat is coming from. If Australia is to be serious about addressing crime, we need to get over the idea that organised crime = bikie gangs, and take proper account of the other organised crime groups operating within our borders.