BY: Ralph Bonig
Source: adelaidenow.com.au
http://www.news.com.au/adelaidenow/
Bikie protests against tougher laws have been common in recent years.
THE Government has released its latest package of Bills on "Serious and Organised Crime" for discussion.
In the past, legislation of this nature has been referred to as the "bikie legislation". That reference is inaccurate as the laws that were passed had a far greater application than to just "bikies". The Government's first attempt was of course ultimately found by the Supreme Court and High Court to be seriously flawed.
The latest package proposes amendments to at least five existing pieces of legislation and is even more far-reaching than the previous laws. While maybe not infringing on the principles that brought the previous legislation undone, namely the interference by the Government in the independence of the Courts, the latest package is objectionable for other reasons.
As a starting point, you should be concerned about the breadth of the legislation.
Despite being trumpeted as being targeted at "serious and organised crime" it can capture quite minor criminal activity including some summary offences in respect of which the power to make what are called "control orders" is entirely disproportionate.
You may also be guilty by entirely innocent association. A control order is a form of restraint which would prohibit you from associating with other members of an organisation that has been declared by the Attorney-General as one which facilitates or engages in serious criminal activity.
The order could prohibit you from associating with suspected members or attending at certain premises. The proposal is that these orders are indefinite and you or the organisation would need to apply to have them lifted.
When an application is made to a court for a control order, that application and the order can be made without giving the target of the order any prior notice or a right to be heard. In some instances, the ordinary rules of evidence are excluded and will not apply nor will the so-called "evidence" that is relied upon be the subject of testing by cross examination.
Even when you do get a right to be heard then you may not be given all of the materials that the police have and in some circumstances, the onus of proof is reversed and you will need to prove in effect why an order should not be made.
The use of secret "criminal intelligence" is permitted. Other aspects of the package include a revision of some aspects of the law of "consorting". Under this proposal a police officer could issue you with a notice prohibiting you from association with or communicating with an identified person if that person has in the three years prior been found guilty of one of a range of offences. This does not of course take into account the fact that you have not committed any offence.
The Attorney-General states that his intention is to "strengthen serious and organised crime laws to target every person who knowingly contributes to the criminal activities of a criminal group". Unfortunately, the proposed legislation goes far wider than that and not only has the potential to capture innocent or minor offending but also in some areas, radically intrudes into recognised rights of innocence and natural justice.
Ralph Bonig is SA Law Society president
