JULIE AYLING
canberratimes.com.au
Much deeper thinking is needed after states' legislative setbacks.
Images of grinning Hells Angels, Finks and other bikies celebrating the demise of laws they regard as an infringement of their civil liberties have recently appeared on our television screens.
In two decisions - South Australia v Totani (November 2010) and Wainohu v NSW (last week) - the High Court has held that laws in South Australia and NSW targeting outlaw motorcycle gangs are unconstitutional.
However, the South Australian and NSW governments have vowed to ''go back to the drawing board'' and redraft the laws. They are keen to continue the crackdown on bikies that escalated after the March 2009 murder of Anthony Zervas at Sydney domestic terminal during a brawl between rival bikie gangs.
! Both the South Australian and NSW laws have in common a two-step process, the first step involving an administrative ''declaration'' of an organisation that serves as a necessary precondition for the second step the judicial imposition on members of a declared organisation of control orders which limit his or her associations and communications. The main aim is to prevent members of criminal organisations planning and engaging in criminal activities, and by doing so, break up the groups and deter recruits.
The High Court held invalid a section of South Australia's Serious and Organised Crime (Control) Act 2008 and the whole of NSW's Crimes (Criminal Organisations Control) Act 2009. Each case turned on small parts of the legislation in question.
In Totani, the court invalidated one section of the South Australian law which made it mandatory for the Magistrates Court, when the police applied for a control order, to impose that order. The High Court said that, because this section ''requires the Magistrates Court to make a decision largely pre-ordained by an executive declaration'', it ''impairs the decisional independence of the Magistrates Court from the executive in substance and in appearance'' and is incompatible with that court's institutional integrity.
The Wainohu decision concerned the integrity of the NSW Supreme Court. Under the NSW law, the judge making a first-step declaration is not obliged to give reasons for that decision. This, the High Court said, uses the general public confidence in the impartiality and reasonableness of judges to ''support inscrutable decision-making'' in a way that is detrimental to the Supreme Court. Because the section is integral to the way the rest of the Act works, the whole Act was held invalid.
The deficiencies in the laws identified by the High Court are easily remedied. A minor amendment to the South Australian laws could ensure the Magistrates Court has sufficient discretion in making control orders so that no question of pre-ordination arises. And the High Court made clear that NSW's constitutional problem would disappear if an obligation were imposed on the judge to provide reasons for any decision to make or not make a declaration.
! But are minor amendments the best option? These cases have cost the taxpayer hundreds of thousands of dollars; $300,000 alone will go in costs to Wainohu, until recently a Hells Angel. These taxpayer dollars would have been available for more pressing needs had the two governments expended sufficient effort and time to ensure these laws could withstand legal challenges.
In particular the NSW law, largely modelled on the South Australian legislation, was passed only 10 days after the airport murder hardly time for a proper debate on its merits. In doing this, NSW jumped the gun on an ongoing inquiry into the legislative arrangements to outlaw serious and organised crime groups by the Parliamentary Joint Committee on the Australian Crime Commission set up specifically to look at the need for, effectiveness of and impact of legislation of the type already passed in South Australia.
Had the NSW Government waited for the committee report in August 2009, it could have taken account of the committee's observation that some other approaches to preventing serious and organised crime ''share the benefits of South Australia's laws without some of its difficulties, complexities and costs'', and heeded the committee's exhortation that new laws be ''evidence-based rather than politically driven''.
The deficiencies in the laws identified by the High Court are easily remedied. A minor amendment to the South Australian laws could ensure the Magistrates Court has sufficient discretion in making control orders so that no question of pre-ordination arises. And the High Court made clear that NSW's constitutional problem would disappear if an obligation were imposed on the judge to provide reasons for any decision to make or not make a declaration.
! But are minor amendments the best option? These cases have cost the taxpayer hundreds of thousands of dollars; $300,000 alone will go in costs to Wainohu, until recently a Hells Angel. These taxpayer dollars would have been available for more pressing needs had the two governments expended sufficient effort and time to ensure these laws could withstand legal challenges.
In particular the NSW law, largely modelled on the South Australian legislation, was passed only 10 days after the airport murder hardly time for a proper debate on its merits. In doing this, NSW jumped the gun on an ongoing inquiry into the legislative arrangements to outlaw serious and organised crime groups by the Parliamentary Joint Committee on the Australian Crime Commission set up specifically to look at the need for, effectiveness of and impact of legislation of the type already passed in South Australia.
Had the NSW Government waited for the committee report in August 2009, it could have taken account of the committee's observation that some other approaches to preventing serious and organised crime ''share the benefits of South Australia's laws without some of its difficulties, complexities and costs'', and heeded the committee's exhortation that new laws be ''evidence-based rather than politically driven''.
The setbacks of the High Court's two decisions now provide time for both governments to draw breath, revisit the committee's report and ponder the value of the approach embodied in these laws, without the pressure of the kind of ''moral panic'' over bikies that followed the airport murder. Issues beyond constitutionality should be considered, issues that include the proportionality of the laws to their aims, the likely effectiveness of limits on associations in controlling criminal activity, the impacts of the laws on bikies and their families and on police resources, and any possible unintended consequences of the laws.
Alternative options for controlling crime that employ civil laws and practices could be considered. Legal experts familiar with the advantages and disadvantages of other jurisdictions' laws should be consulted so as to provide an evidence base for any new legislation. South Australia and NSW could take this opportunity to create a systematic and innovative approach to serious and organised crime that would be regarded as a model around the world.
Without thorough and sustained deliberation, though, these governments may simply find themselves generating expensive opportunities for criminal groups to again take them back to the drawing board in the future.
Julie Ayling is at the ARC Centre of Excellence in Policing and Security at the Australian National University.
Alternative options for controlling crime that employ civil laws and practices could be considered. Legal experts familiar with the advantages and disadvantages of other jurisdictions' laws should be consulted so as to provide an evidence base for any new legislation. South Australia and NSW could take this opportunity to create a systematic and innovative approach to serious and organised crime that would be regarded as a model around the world.
Without thorough and sustained deliberation, though, these governments may simply find themselves generating expensive opportunities for criminal groups to again take them back to the drawing board in the future.
