The South Australian government describes their newly passed Serious and Organised Crime (Control) Act 2008 as, “An Act to provide for the making of declarations and orders for the purpose of disrupting and restricting the activities of criminal organisations, their members and associates; to make related amendments to the Bail Act 1985, the Criminal Law Consolidation Act 1935, the Freedom of Information Act 1991 and the Summary Offences Act 1953; and for other purposes.”
Otherwise known as the “Anti-Bikie” law, this legislation has aroused much concern and many protests from concerned members of the public, the motorcycle-riding community, politicians of various ilks, civil libertarians, the Law Society as well as many members of the legal profession.
Of course the mainstream media haven’t helped with their “Shock! Horror!” approach to reporting this issue. The Adelaide Advertiser typified this in an article earlier this year titled, “Bikies invited into Parliament” which said in part that, “Democrats MP Sandra Kanck has ‘plunged herself into another controversy’ by inviting bikies to a seminar at Parliament House. Members of the Gypsy Jokers, Finks and Hells Angels were among guests at a briefing yesterday on new laws being introduced by the State Government to combat outlaw motorcycle clubs. Under the laws South Australians who have contact with bikies at least six times a year will face a minimum of five years in jail.
The Serious and Organised Crime (Control) Bill 2007 also will enable the Police Commissioner, Mal Hyde, to obtain orders from the Attorney-General, Michael Atkinson, declaring bikie gangs illegal. Anyone involved with the gangs, or who has any contact with them, can then be served with orders restricting their movements based on police intelligence, which must remain secret.”
In a very reasonable response Ms Kanck defended the presence of the Finks, Gypsy Jokers and Hells Angels members, saying people who were affected by legislation should be consulted.
Prominent criminal defence lawyer Craig Caldicott, expressed the views of many South Australians when he said that the new laws were an attempt “to use a sledgehammer to crack a walnut. They are basically overkill,” he said. “It is the only piece of legislation in Australia aimed at a group of people who wear leather jackets.”
The Bar Association and the Law Society say aspects of the Serious Organised Crime Control Bill undermine the presumption of innocence and are not fair. The bill enables the Attorney-General or Police Commissioner to declare organisations illegal, without allowing any challenge or appeal. The Bar Association and Law Society say the legislation removes fundamental civil and political rights.
Speaking to a Senate Committee, Mac Hays from the Longriders Christian Motor Cycle Club expressed the views of many motorcyclists when he said, “It is my belief and the belief of many I have spoken with, that there has been a carefully orchestrated plan by those in power to manipulate the media to demonize “bikies” in order to create a climate of fear among the public so that when the “bikie bill” was introduced – which incidentally, as we would all be aware does not mention the words Bikie or motorcycle club – the public would naively accept it in the misguided belief that it would keep them safe from the “bikie menace.” Those very “bikies” that our premier Mr Rann has described on public record as “pond scum” and “all thieves and murderers.”
John Goldberg (President of the Law Society of SA) wrote a clear explanation outlining some very real concerns about the bill; “How the bikie legislation fails all of us” which was published in The Advertiser on 4/11/2008. “Benjamin Franklin said: ‘Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety’ Now that you know where I stand, let me tell you a little more about the anti-bikie legislation. First, it is modelled on laws against terrorism; laws which are still quite controversial even when they are applied to alleged terrorists. The anti-bikie legislation, called the Serious and Organised Crime (Control) Act, applies those laws to crimes other than terrorism.
In addition, it applies not just to outlaw bikie gangs but to any group characterised as involved in serious and organised crime. People who may be innocent can, under this legislation, have the following essential liberties undermined or removed:
PRESUMPTION of innocence.
ABILITY to know the detail of the allegations against them.
RIGHT to silence.
ABILITY to challenge the accusations against them in court.
FREEDOM of assembly.
RIGHT to a trial by jury.
NEED for proof beyond reasonable doubt.
The legislation will lead to otherwise ordinary and innocent behaviour, such as associating with other people or being on premises, becoming a criminal offence with a maximum jail term of five years. And the reason for this conduct becoming a crime can be kept secret from the person affected if it is classified as “criminal intelligence'”.
And who gets to apply this law which takes away so many fundamental liberties? The answer is the attorney-general of the day. Well, what is wrong with trusting the liberty of the individual to whoever the government of the day appoints as its attorney-general?
Quite a lot. Unlike a judge, the attorney-general is not appointed for a fixed term, he has to maintain favour with the party that put him there and he has to contest an election every now and again and prove his worth to his electorate. If the government has a strong law-and-order agenda, he will want to be seen to be making a contribution to it. The attorney-general is, after all, a politician.
Let me give you one more quote, this time from John Adams: ‘There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.’ But what of the argument that the people being targeted are organised criminals and this is the only way to bring them under control?
If that is seriously put forward, why did we give murderer Bevan von Einem a fair trial, or the notorious serial killer Ivan Milat? Well, without a trial you have not determined whether or not they are guilty and without a trial the community can never be sure that the right person has been locked up. If we are to abandon that fundamental rule for bikies, where does it end?
Should we torture people to get the names of their accomplices? Should we do what the Thai government is alleged to have done back in 2003 and set up police hit squads to slaughter hundreds people suspected of being criminals? I have no problem with being tough on crime, provided that our essential liberties are protected. If they are not, we risk throwing out the baby with the bathwater.”
Residents of other states and territories needn’t think that they are immune from this as there are apparently moves afoot to make this legislation apply throughout Australia.
To read the Act in its entirety go to: http://www.legislation.sa.gov.au/LZ/C/A/SERIOUS%20AND%20ORGANISED%20CRIME%20(CONTROL)%20ACT%202008.aspx and select either the .pdf or RTF format.
Post script: Action is already beginning to be taken with the first Application for Declared Organization sent to the South Australian Attorney General on December 16th, 2008.
