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Bikie Legislation - Should we punish people for who they are or what they do?

MOTORCYCLE GANGS AND ORGANISED CRIME IN SOUTH AUSTRALIA - PUNISHING PEOPLE FOR WHO THEY ARE, NOT WHAT THEY DO?

 

INTRODUCTION

 

Traditionally criminal law has been created to charge, prosecute, and sentence individual offenders for their own criminal activities. For this reason, organised crime or ‘Bikie Gang Crime’ poses a challenge to the criminal justice system in South Australia.

 

In June 2007 South Australian Premier Mike Rann proposed new laws designed to suppress ‘bikie gang’ activities. This legislation has since been introduced in South Australia to attempt to crack down on ‘outlaw bikie gangs’ and ‘bikie crime’.[1]

 

The Serious and Organised Crime (Control) Act 2008 (The Act) aims to criminalise;

 

1. Organisations who engage in criminal activity (declared outlaw organisations)
2. Individual members of such outlaw organisations
3. Individuals who ‘associate’ with outlaw organisations

 

The Act is not limited to incorporated organisations or motorcycle clubs and can extend to include groups such as youth gangs, gangs formed in prison and syndicates who engage in criminal activities. The Act is not limited to ‘blue collar crime’ and can extend to ‘white collar crime’.

 

Michael Woods and Co is a criminal defence law firm who represent the interests and rights of persons who come to be accused of being members of, or associated with, an organised group, who are alleged to engage in criminal activity and pose a risk to public safety and order.   We believe you should only be prosecuted for what you do – not who you are. 

 

 

THE ACT

 

The Serious and Organised Crime (Control) Act vests power in the Attorney General to ‘declare’ an organisation to be an ‘outlaw organisation’ and in turn have its members and associates subject to ‘control orders’.

 

The power of the Attorney General to make a declaration, or request that a control order be made, is founded on he being satisfied that an association of people, who engage in criminal activity, pose a risk to public safety and order.

 

The Attorney General’s assessment is made at the request of the South Australian Commissioner of Police who provides the Attorney General with police intelligence supporting the request.[2]

 

This intelligence is generally not in the form of affidavits or sworn evidence given before a court of law. The intelligence is not tested under cross examination. Therefore, it is difficult for the intelligence to be properly assessed for its strength and credibility.

 

Often the information provided consists of broad allegations, involving unnamed persons, with limited information as to its source. We at Michael Woods and Co are concerned that The Act lacks safeguards and procedures to ensure that evidence is carefully assessed and individuals are not subjected to limits on their civil liberties on the basis of unfounded allegations.

 

Once the Commissioner of Police has requested the Attorney General to make a declaration, the application must be gazetted so that members of the public have the opportunity to respond within 28 days.[3] If you are a person alleged be a member of an organisation, or be associated with an organisation, that is subject to an application to be declared an outlaw organisation, we at Michael Woods and Co can assist you.

 

Once the Attorney General has considered the police intelligence and any written submissions he may ‘declare’ the organisation to be an ‘outlaw organisation’. If the organisation is ‘declared’ the court must then make control orders in relation to members of the organisation and may make orders in relation to any associates of the organisation.

 

Control orders may prohibit an individual from;

 

1. Associating or communicating with other people
2. Entering or being on premises
3. Possessing specified articles.

 

Control orders can have a significant impact on an individual’s freedom.

 

WIDE DEFINITIONS – GUILT BY ASSOCIATION

 

The Act fails to define ‘criminal organisation’. Effectively the Attorney General can declare an organisation if he is satisfied that members associate for organising, planning, facilitating, supporting or engaging in serious criminal activity and the organisation represents a risk to public safety and order. The decision is largely down to administrative discretion and often based on untested allegations.  

 

The term ‘membership’ is so broadly defined in The Act that it is virtually meaningless. It can include actual, perceived or desired association with a group.[4] If a group which you are a member of is ‘declared’ the court must then make a control order against you.

 

However, The Act also affects persons who are not members, but associates, of a ‘declared’ organisation. If you are associated with a declared organisation you also can be subject to a ‘control order’.

 

‘Association’ is broadly defined in The Act. It includes to associate, facilitate or support a group. The term encompasses meeting, coming together or communicating with a person who is known, or suspected, to be involved with a ‘criminal organisation’. It extends to persons very loosely associated with a declared organisation. For example, The Act sets out that association includes a person who, not less than 6 times in a 12 month period, associates with a person who they know, or suspect, is involved with a group who engage in criminal activity. By doing so one commits an offence punishable by imprisonment of up to 5 years.[5]

 

If found to be a member of a criminal organisation, the Attorney General must then determine if the organisation poses a, ‘risk to public safety and order’. ‘Risk to public safety and order’ is not defined in The Act. Indeed it is not clear if actual risk is required, or if mere perceived risk meets the threshold. When determining if a person is a risk their involvement in serious criminal activity and prior convictions are considered. This involvement or criminal history however need not directly relate to organised crime activities.

 

AN OPPORTUNITY TO RESPOND

 

We at Michael Woods and Co are concerned that the process by which a group is declared to be an ‘outlaw organisation’ or an individual subjected to a ‘control order’ lacks safeguards, checks and balances.

 

Once an application is made a statutory declaration is set out in support of the application. If you are a person who is a member or associate of a group who may be declared an outlaw organisation it may be in your best interest to respond to the application.

 

Depending on ones personal circumstances, it may be advisable to respond to the application. An individual can request that the Attorney General not ‘declare’ an organisation and can specifically refute any allegations about an individual’s membership or association with an organisation.

 

Michael Woods and Co have found that responding to allegations can be difficult. This is largely due to the limited information provided in the statutory declaration and particularly the source of this information. We at Michael Woods and Co have often found the information provided to include broad allegations and untested assertions. One’s ability to refute an allegation is hindered by this lack of information. It also leaves open for information to be misrepresented and misinterpreted. This is of great concern, given that if the allegations are accepted, orders can be made which place serious restrictions on a person’s freedom and civil liberties.

 

A concern is that The Act does not specifically require the Attorney General to make a critical assessment of the allegations or test the evidence when making a determination that can impinge on individual freedoms and rights.

 

CONTROL ORDERS – GUILY BY ASSOCIATION

 

A control order must be made by the court against any ‘member’ of an organisation that is declared to be an ‘outlaw organisation’ by the Attorney General. Further, a control order may be made against any ‘associate’ of an organisation that is declared to be an ‘outlaw organisation’ by the Attorney general.[6]

 

A control order is designed to prohibit the controlled person from communicating or associating with others, visiting premises or possessing certain articles. Certain categories of associates, including medical, legal and educational professionals are exempt.

 

The Act aims to punish people for who they associate with, not what they do (participation in actual crime). Indeed you may only suspect, not know, a person is involved in a criminal organisation, and by associating with them you commit an offence.[7]

 

CONCLUSION

 

The Serious and Organised Crime (Control) Act 2008 is a powerful piece of legislation. It allows one individual to make an order that can have a significant impact on another individual’s freedoms and liberties.

 

We at Michael Woods and Co believe that The Act lacks safeguards to ensure a cautious, critical and balanced assessment of allegations against organisations and individuals is made. Untested allegations should not be the basis upon which ones basic civil liberties are restricted. 

 

We at Michael Woods and Co are concerned that The Act concentrates power in a single individual, has broad criteria for making declarations and lacks proper safeguards to ensure that the power is not misused.

 

The Act aims to restrict associating with persons involved in organised crime and in doing so we are concerned that it has the potential to severely infringe on individual freedoms.

 

The validity of the Serious and Organised Crime (Control) Act 2008 SA is currently being challenged in High Court of Australia.[8]

 

In meantime, if you are affected by this legislation, or are concerned that you may be in the future, we are here to act in your best interests and fight for your legal rights.

 

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