Futile and costly bikie laws have not addressed ‘organised’ crime but then, they didn’t need to
Despite chest-beating from
law and order politicians, bikie laws have failed. The
required legislation we needed was already in existence
And that applies in most Australian states, despite the chest beating from law and order politicians.
Former Supreme Court judge Alan Wilson’s report, which he finished in December last year, on the Queensland Criminal Organisation Act (COA) has just been released by the government and it makes for gripping reading. It is accompanied by another doorstopper of a report from the taskforce on organised crime.
Wilson and the taskforce are saying that the clutch of anti-bikie laws introduced by the Newman government in 2013 and the earlier Labor government’s criminal organisation legislation are not working effectively and there should be another shot at a “renewed organised crime framework”.
These laws were at the time accompanied by some high pitched braggadocios from the premiers. In 2009 Anna Bligh said: “We will not be left behind Queensland will match any state in regard to the toughness of our laws to deal with the threat of outlaw motorcycle gangs.”
In 2013 premier Campbell Newman when introducing the Vicious Lawless Association Disestablishment Act (VLAD) and associated measure, went full-throttle: “Today we will introduce to this parliament the toughest laws against these thugs this state has ever seen. Indeed, they will be the toughest in the world. They are not designed to just contain or manage the gangs; they are designed to destroy them.”
The outcome presents a different picture. Law enforcement has been delayed by test case litigation in the high court, proceedings turned out to be so costly that they were abandoned on the basis that police resources could be better deployed elsewhere, and the procedures under the Act proved to be frustratingly slow and cumbersome.
Take the case of the Finks Motorcycle Club. Under the COA the Queensland police made an application to have it declared a criminal organisation. Vast amounts of criminal intelligence had been prepared which went to a judge who was to assessed it. This was done in secret, without the Finks being part of the process or permitted to see or test the criminal intelligence.
The Finks then challenged the COA in the high court, in what is known as the Pompano case, arguing that they could not know the substance of the allegations against them because it was based on secret police material. The criminal justice system was being asked to depart “to a significant degree from the methods and standards which have characterised judicial activities in the past”.
The high court upheld parts of the legislation but did not address other issues, such as the rights of parties to have acts of the executive reviewed.
In any event, the Finks thwarted the entire procedure by simply disbanding and “patching over” to the Mongols. The police application was abandoned, but not before a great deal of time and around $2m of QPS money had been expended to get precisely nowhere. That was the ignominious end to the one and only application to outlaw a motorcycle gang under the Criminal Organisation Act.
As Alan Wilson pointed out, “A sufficiently agile respondent can, therefore, continually evade the operation of the COA.” The VLAD law and other associated legislation did not pick-up where COA dropped off. Wilson said that the Liberal government’s 2013 “suite of legislation” is similarly infected with “serious deficiencies”. A high court challenge against VLAD failed because the applicant hadn’t been charged with any offence, so he lacked standing. A substantive challenge to VLAD remains a possibility and four of the high court judges suggested that a challenge would be inevitable because the law sought to categorise people as criminal simply by an executive act.
Wilson also raises the irreconcilable differences between the use of “criminal intelligence” and “evidence”. Criminal intelligence might be a contradiction in terms – it is based on hearsay, often from unreliable sources. The court is required to assess its worth before it can be declared as “criminal intelligence”. As such it is not evidence, but when ticked-off by the judge it effectively takes on the nature of evidence as part of the criminalisation process.
Wilson says the application of criminal intelligence in this way, “subverts long-established procedures within our adversarial system of justice”.
The emphasis of the legislation is on attacking organisations through the “novel medium of criminal intelligence”. The outcome is not viable when weighed against the costs of the proceedings. Instead, the former judge suggests the law should focus on criminal activity by outlaw motorcycle gang members, as opposed to organisations, using existing laws which deal with problems like drugs, sexual assaults, theft of property, standover activities, and the like. “These long-settled laws provide a logical starting point and a sound foundation.”
The conspicuous acts of “barbarian violence” in public by motor cycle gangs were dealt with under established laws, not special anti-bikie legislation: the Milperra massacre in 1984, the Ballroom Blitz at Royal Pines on the Gold Coast in 2006, and a riot at Sydney airport in 2009 where Anthony Zervas, the brother of a member of the Hells Angels, was killed. There was also a riot at Broadbeach in 2013.
Even within associations that are assumed to be criminal in nature, not all members are engaged in organised criminal activities. At the time of the VLAD laws, the Australian Crime Commission said that most outlaw motorcycle gang chapters do not engage in organised crime as a collective unit.
Rather, small numbers of members conspire with other criminals for a common purpose, but overall outlaw motorcycle club gang members account for less than 1% of the crime in Queensland.
In other states legislative attempts to tackle organised crime have been only rarely successful, with the possible exception of public safety orders in South Australia. Control orders do have some utility and the UK’s version of these orders, known as serious crime prevention orders, are effective because they focus on serious crime rather than organised crime – consequently there is no necessity to show the existence of a criminal organisation. SCPOs are mostly used as a post-conviction sentencing option.
NSW has just come up with its own version of serious crime prevention orders with new legislation that is to be debated early next month. It gives wide powers for police, prosecutors and the crime commission to apply for orders that prohibit or restrict the activities of anyone convicted of a serious offence, or has engaged in “serious crime related activity” whether charged or convicted, or not.
The legislation has appalled the legal profession, which calls it draconian and a breach of fundamental liberties. Normal standards of proof have been discarded, and hearsay criminal intelligence is permitted. It will certainly be the subject of a high court challenge should the bill be passed.
NSW has the longest history of legislation seeking to disrupt criminal organisations, starting with the Pistol Licensing Act in 1927, which saw gang members abandon pistols for razors. The Crimes (Criminal Organisations Control) Act was introduced in 2009, just after the Sydney airport affray. Supreme court judges could be appointed as “eligible judges” to make declarations against organisations. Their deliberations were in secret and there was no requirement to provide reasons. The high court found the scheme was repugnant to the integrity of the supreme court and struck it down.
The legislation was re-stoked in 2013 to address the shortcomings found by the high court. The year before new consorting offences were also introduced, aiming to deter people from associating with criminals. The intention was to combat criminal gangs, but Alan Wilson says the evidence suggests that police have used the consorting powers to disproportionately target marginalised groups.
The NSW ombudsman found that Aboriginal people accounted for 38% of all people issued with an official warning under the consorting legislation. Some 83 children have also been issued with warnings. Homeless people too are more likely to be targeted under the new powers.
In NSW there has only been one abortive attempt to declare a criminal organisation and that was in 2010 when the acting police commissioner applied to an “eligible judge” to have the Hells Angels declared. It failed because the high court found the legislation invalid.
Where to next? Wilson asks whether special anti-organised crime legislation is actually necessary and warranted – he recommends abandoning the use of criminal intelligence because it doesn’t work in an adversarial framework.
The next legislative attempt to address organised crime should be evidence based, using existing criminal laws dealing with drugs, child pornography, homicide, theft, break and enter, and so on and focusing much more on individuals and individuals in concert – rather than the costly, compromised and, in the end, futile efforts to nail “organisations”.