Bikie gangs: outlawing the 'outlaws'

It reads like the plot for a Hollywood Mafia movie. The police go to court armed with rushed legislation, and ask the courts to officially declare a particular group of people to be a criminal organisation.

If they can get the courts on side, police can then order the organisation be dismantled and anyone involved with it or associating with members can face prosecution.

Forget presumption of innocence, forget the onus on proving to a court that a person is guilty of specific illegal acts. In Australia now, there are laws being tested which could make a person guilty by association.

This is especially not a good time to be a motorcyclist and above all, not one associated with a motorbike club or group.

In a McCarthyesque frenzy of spin doctoring, legislators in various states around Australia have zeroed in on “outlaw bikie gangs” as the reason for vote-catching “get tough on crime” policies.

Unfortunately the crackdowns may sweep up innocent people and ruin livelihoods. Anyone riding a motorcycle or who is part of a motorcycle group or is providing services to a member of a motorcycle group is now vulnerable.

Recently the New South Wales police went to the Supreme Court to order the dismantling of the Hells Angels gang there and declare it an outlaw organisation, using tough new anti-bikie laws passed last year.

But in a surprise move the Hells Angels Club is now legally challenging the constitutionality of the state's so-called anti-bikie laws. The move is likely to delay the attempt by police to have the group declared a “criminal organisation”.

The High Court is already considering a challenge to similar laws in South Australia, brought by the South Australian government, which wants to overturn a Supreme Court decision ruling that the state's anti-gang laws are illegal. The High Court has reserved its decision. The state wanted to have a bikie gang there declared a criminal organisation.

Other states with similar legislation on their books are closely watching the New South Wales and South Australian moves. Queensland, whose legislators have often cloned other state laws, will be especially monitoring the saga.

It is politically fashionable at the moment to be “down” on so-called outlaw bikie gangs. The frenzy has influenced the Federal election campaign too, with the leaders spruiking their “crackdowns on crime” policies.

Tony Abbott went public with claims a very significant percentage of the drug trafficking in this country was gang related, promising a Coalition government would crack down on gang warfare.

This kind of talk fuels debates but also stirs up the stereotyping, so much so there is a real fear anti gang laws could push Australia into an era of McCarthyism; a “reds under the beds” mindset where anyone who rides a motorbike is perceived to be a criminal.

And this is where the laws get difficult, because they do not specifically target just bikies. Lawyers are very worried the laws could equally be applied to other groups.

The NSW Police application to have the Hells Angels declared a criminal organisation - if successful - would allow the police to then apply to have individual members stopped from associating with each other.

Even the NSW Director of Public Prosecutions, Nicholas Cowdery, was reportedly alarmed by the move, and was quoted in the media as warning against an erosion of people's rights.

Especially worrying is the provision for a judge to hear certain information, such as police intelligence, in closed court and not make that information available to the targeted organisation or its lawyers.

This is an unbelievable denial of basic rights and evokes Franz Kafka’s surreal The Trial where a man is tried for a crime but never told what he is charged with.

As a criminal defence lawyer it is crucial we take a slow and cautious approach to laws of this nature, especially anti-association measures because it could cripple the livelihoods of innocent people. We need to take the heat and emotion out of the issue and consider the widest impact on the whole community.

This argument is not about defending gangs, it’s about how rushed laws could unexpectedly impact on innocent people, especially any restrictions on people from associating with a gang declared a criminal organisation.

Any law which even suggests a guilt by association measure is a radical and very worrying erosion of the public’s rights because it effectively treats them on the same level as terrorists.

Having a gang declared a criminal organisation plays well to the voters but has anyone thought through the possible ramifications?

The concept plays to the politics of fear and a “get tough on crime” stance, but what about possible loopholes which could penalise innocent members of the community?

Could a person whose business is servicing or selling motorbikes be punished for selling a bike to or repairing a gang member’s motorbike?

What about the servo proprietor who sells fuel to biker gang members? Is this associating with a criminal organisation? Or a landlord who rents a property to a gang member? Where does this end?

There’s a real concern anyone riding a motorbike could be unfairly penalised. The principles of criminal liability are at question here and once you start tinkering with the legislation, it becomes a dangerous, vote-catching process.

There’s another issue at play as well: it is about the whole “essence” of trying to declare groups/gangs illegal organisations. Rather than charge people with committing a crime, the states want to, instead, charge people with merely associating with people who might have committed crimes.

The whole basis of our justice system is proving to a court that a crime has been committed, otherwise a person is entitled to the presumption of innocence. Anti-association orders effectively argue you can be charged with interacting with a person who might have committed a crime, and this interaction in itself becomes a criminal act.

This is a very worrying trend. Shades of Germany in the 1930s.

Let’s get some reality into the matter too. Inevitably outlawing a gang will only drive the organisations deeper underground and therefore have a reverse effect on policing and law enforcement.

As a Queensland criminal defence lawyer I am urging our state to make sure it does not inadvertently sweep up innocent members of the community in some witch hunt against anyone who rides a motorbike.