Bikies and Belly-aches

A friend is working on what promises to be an exemplary PhD dissertation regarding law about outlaw motorcycle gangs (OMG), which as noted recently in this blog have been the subject of interesting new legislation in New Zealand and Australia in the grand tradition of moral panics and ailing governments "being seen to do something".

One criticism of such legislation is that it is unecessary, given the adequacy of existing law (especially law that particular governments have failed to implement). Another criticism is that new statutes are overly broad, are inappropriately oppressive or simply won't work. They are reactive, a way of distracting public attention from ministerial sex scandals, leadership speculation and intractable problems such as deficiencies in public transport networks. Appearing to beat up bikers is a way of making the political belly-ache go away for the day.

I was thus interested to read 'The Legislation We Had to Have?: The Crimes (Criminal Organisations Control) Act 2009 (NSW)' by Arlie Loughnan in 20(3) Current Issues in Criminal Justice (2009) 457-465, available from SSRN here.

Loughnan comments that

In the wake of several high-profile incidents of outlaw 'bikie gang'-related violence, including a fatal bashing at Sydney Airport, the New South Wales Government has introduced new laws to expand police powers relating to 'criminal organisations', membership, and association. This Comment provides a critical overview and analysis of the Crimes (Criminal Organisations Control) Act 2009 (NSW), with reference to recent related legislation in other States and at federal level. The Act contains a number of problematic aspects, as it creates what are in effect status offences and makes compromises regarding conventional rules of procedure, proof and evidence. [It] must be understood in the broad context of penal popularism and that it is symptomatic of the dominance of 'law and order' politics in NSW. Revealing a clear debt to anti-terrorism legislation, an emphasis on risk and prevention, and the curtailment of individual rights in the larger interests of security, the Act is an unfortunate if not unexpected step in the ongoing process of criminal law reform in NSW.

Her article appears at a time when the South Australian government appears to be proposing to reverse the onus of proof through legislation that extends the Serious and Organised Crime (Control) Act 2008 (SA). The new law would "require people to account for any unexplained wealth" and authorise the Police Commissioner and Crown Solicitor "to secretly investigate people", irrespective of criminal convictions, including "motorcycle gang members and people who associate with known criminals". The nature of the "secret" investigation is unclear.

SA Attorney-General Michael Atkinson is reported as commenting that the proposed legislation is 'aimed at catching people who have managed to evade the authorities' -

"The police and the public look at them and think 'How on earth did a bloke who appears to do no work or no legitimate work acquire hundreds of thousands of dollars worth of cars or millions of dollars worth of real estate?" he said. "The answer is almost certainly drug dealing and extortion."

That has provoked queries by SA shadow Attorney-General Vickie Chapman, who says that she is worried about people needing to prove they are innocent.

"Normally you go along and the prosecution would set out their case and you'd have an opportunity to present the defence. The onus is on the prosecution," she said. "There is a reverse of onus here. So they come into court, the judge calls on the case and this is where it becomes 'Prove it or lose it'."

The reporting coincides with the Federal Attorney-General's announcement that the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 (Cth) will

strengthen existing laws by:
* introducing new criminal offences targeting those involved in organised crime;
* enhancing access to telecommunications interception for the investigation
of organised crime offences;
* enhancing money laundering, bribery and drug importation offences;
* enhancing search and seizure powers and the ability to access electronic data;
* strengthening criminal asset confiscation and anti-money laundering laws;
* improving the operation and accountability of the Australian Crime
Commission; and
* improving the operation of the National Witness Protection Program by
increasing protection for current and former participants and officers.

The announcement was wrapped in the usual references to a national security policy that addresses a pervasive and intangible threat from organised crime and terrorism.

Loughnan concludes that

The Crimes (Criminal Organisations Control) Act 2009 (NSW) contains a number of problematic aspects, as it creates what are in effect status offences and makes compromises regarding conventional rules of procedure, proof and evidence. [In] the broad context of penal popularism, it is representative of the triumph of 'law and order' politics in NSW. Beyond the global trends towards punitive and popularist criminal justice policies and practices which are amply illustrated in the new legislation, specific institutional and local factors relating to NSW must be taken into account. Particular domestic politico-economic structures, such as the two-party political system, are part of the conditions which foster the penal severity that the Act evidences, as both sides of politics pander to the ‘median’ voter. Further, in relation to the substance of the Act, it is clear that the new provisions owe a debt to anti-terrorism legislation, with its emphasis on risk and prevention and the curtailment of individual rights in the larger interests of security. This in turn suggests that terrorism has become something of a paradigmatic offence in the new criminal justice terrain.

The paper also coincides with Palermo On The Pacific Rim: Organised Crime Offences in the Asia Pacific Region, a 317 page UN study [PDF] by Andreas Schloenhardt that suggests "We must recognise the failure of the 'organised crime laws' to win the 'war on organised crime'".

It argues that

Offences designed to penalise criminal organisations constitute the most recent and perhaps most ambitious strategy to fight organised crime. The common feature of these offences is that they are designed to target the structure, organisation, members, and associates of organised crime groups. Their shared rationale is the view that disrupting criminal activities and arresting individual offenders does not dismantle the criminal organisations that stand behind these illegal activities.

Schloenhardt characterise four main types of organised crime offences in the region:

1. The conspiracy model, found in the Convention against Transnational Crime and in jurisdictions such as Australia, Singapore, Malaysia, Brunei Darussalam, and several Pacific Island nations;

2. The participation model stipulated by the Convention against Transnational Organised Crime, and also adopted in Canada, New Zealand, New South Wales, PR China, Macau, Taiwan, the Pacific Islands, and California;

3. The enterprise model based on the US RICO Act, which is also used in many US States, and the Philippines;

4. The labelling/registration model of Hong Kong, Singapore, Malaysia, Japan, New South Wales, and South Australia.