Beware giving police a bigger stick

The politics of law and order is determined as much by what is implied as what is actually said in public.

Recent media reports have attributed a spate of violence in Sydney to bikie warfare, suggesting gang rivalries based on drugs and prostitution are behind the incidents. Such conflict is difficult to police because members of bike subcultures rarely speak to outsiders, let alone to the constabulary, even where one of their own is murdered or violently assaulted.

Public anxiety about organised crime is magnified by television dramas such as Underbelly and strengthens the case of those who seek to extend police powers.

It was no surprise, therefore, to hear the Police Commissioner, Andrew Scipione, call for the New South Wales State Government to enact legislation similar to the South Australian Serious and Organised Crime (Control) Act. Under this law, passed last year, Scipione's equivalent can ask the Government to declare a gang a "proscribed organisation" if it is deemed to be a front for criminal activities, and to empower police to limit the association between gang members. When asked about the police already having extensive powers under the criminal code, Scipione said those responsible for the violence were "terrorists".

In the post-September 11, 2001, world, Western governments have passed laws curtailing rights on the pretext that global terrorism requires extraordinary measures: the conventional armoury is insufficient to deal with those seeking to destabilise the state.

In recent years those from Muslim and, in particular, Middle Eastern backgrounds have endured unprecedented surveillance, and many law-abiding citizens, such as Mohamed Haneef, have been persecuted.

Scipione's gambit suggests that the definition of terrorism should be extended to include clan violence that has no apparent global or treasonous dimension. He is gesturing towards recent reports that Lebanese men are joining bikie gangs in large numbers. He is playing on popular fears that those from Middle Eastern backgrounds are a fifth column: that they seek to undermine the national way of life, regardless of the fact that many come from families which have lived in Australia for generations.

Nobody is suggesting Osama bin Laden has any association with bikie violence. Nor has anyone argued that it is directed at political destabilisation or generating mass anxiety. But those who play dog-whistle politics, such as Scipione, never let truth get in the way of the campaign for more police powers.

Under the SA legislation, members of a proscribed organisation would be liable to harsh penalties if they associated or communicated with each other. But what a gang is and whether it is a formal organisation are difficult to establish. These questions have preoccupied authorities since the moral panic of the late 19th century over larrikin street violence. Then, those who sought extended police powers were vague about the nature of the threat this extra muscle would be directed towards. Who were the larrikins and what sort of behaviour could be classified as larrikinism?

Similarly today the problem is that joining the Bandidos is not like joining the local RSL. These guys don't fill out forms. The evidence of affiliation must be circumstantial: wearing a certain item of clothing or a badge; undergoing an initiation ceremony in the presence of witnesses who can testify in court. Rarely is such evidence made available to police, and even if it were it is still legally dubious that such a collectivity could be deemed an organisation in the eyes of the law.

What happens where links between putative gang members extend beyond their bikie-criminal association? What if they are members of the same family? The SA legislation is reminiscent of Joh Bjelke-Petersen's criminal assembly laws of the 1970s under which Queensland police were entitled to define small public gatherings as protest marches and disperse them.

There is, of course, precedent for legislation prohibiting organisations. In 1950 the Menzies government passed a law to proscribe the Communist Party, but the High Court declared this unconstitutional. The grounds were that, while the Commonwealth had the power to deal with subversive activities it could not simply use legislation to declare an organisation guilty of such subversion.

While the SA law is different, it is also arguable that it has a greater potential for curtailing liberties. It gives the state power to regulate the social interactions of citizens simply by defining them as organisation members and independent of the need to establish their guilt in other criminal proceedings. Such a move is invidious and could only occur in a society habituated to the idea that these are extreme times requiring extreme measures.