Amendments to SA Serious and Organised Crime Bill and Effectiveness of Bikie Laws

Thursday 30 July 2015 @ 10.32 a.m. | Crime | Legal Research

The South Australian Statutes Amendment (Serious and Organised Crime) Bill 2015 which, when enacted, would target criminal organisations (mostly, bikers and motor-cycle gangs) with similar measures as Commonwealth laws targeting terrorist organisations, have in recent weeks, it is reported, come under attack from the SA opposition, which is seeking to amend the proposed legislation to allow a judicial review of the declarations declaring an organisation for the purposes of the legislation. This again raises concerns with respect to the potential for the authorities to exceed power and over-reach under legislation of this type.

To Recap on What the Bill Proposes

The Bill, which has passed the SA Assembly, and was as at the 18 June 2015 being debated in the Council (Upper House) would amend the:

Criminal Law Consolidation Act 1935;
Liquor Licensing Act 1997; and
Summary Offences Act 1953;

enacting new offences, mirroring those enacted in Queensland, in both the Queensland Criminal Code and Queensland Liquor Act which were declared valid by the High Court (see Assistant Commissioner Condon v Pompano Pty Ltd & Anor [2013] HCA 7; Tajjour v State of New South Wales [2014] HCA 35; Kuczborski v State of Queensland [2014] HCA 46).

The proposed law also modifies the SA consorting provisions and contains the same provisions as Queensland enacted, specifying declared criminal organisations and prescribed places. Namely, Schedule 1 proposes to make the Criminal Law Consolidation (Criminal Organisations) Regulations 2015 as regulations under the Criminal Law Consolidation Act 1935 which, on the commencement of Schedule 1, stop being a provision of the Act proposed by the Bill and become regulations made under the Criminal Law Consolidation Act 1935. While Schedule 2 proposes to make the Liquor Licensing (Declared Criminal Organisations) Regulations 2015 as regulations under the Liquor Licensing Act 1997 which, on the commencement of Schedule 2, stop being a provision of the Act proposed by the Bill and become regulations made under the Liquor Licensing Act 1997. Both of the proposed regulations list Organisations declared to be declared criminal organisations for the purposes of the regulations.

The effect of the regulations would be to ban two or more gang members from meeting in public or members from entering licensed premises while displaying club colours and logos. The laws are expected to directly affect ten existing motor-cycle clubs in SA and a further seventeen interstate clubs if and when such clubs cross the border into SA.

In introducing the Bill, the the SA Attorney-General Mr Rau compared the Bill to Federal laws dealing with terrorist organisations saying:

"The Commonwealth Parliament has used a similar method to this, to deal with groups like Al Qaeda, Jemaah Islamiyah and other groups . . . It says in the legislation these groups are unsatisfactory groups, and people who are members of these groups have certain aspects of their liberty constrained."

See more at SA Anti-Bikie Gangs Bill Amended To Remove Locations Listed As Prescribed Places, andSouth Australia to Introduce Tough Anti-Bikie Laws.

What the SA Opposition Wants Amended

The SA Opposition Leader Mr Steven Marshall is reported as saying the opposition wanted ". . . the criminal intelligence used to justify the bans to be shared with State Parliament's crime and public integrity committee . . ." and was quoted as saying:

"We want to make sure there are checks and balances in place and we think the amendments we are going to move will strengthen parliamentary oversight, . . . They're logical and the Government should agree to them."

The SA Government's response through Attorney-General Mr Rau is reported as indicating that the amendments proposed by the opposition would ". . . effectively make the legislation useless . . ." and that the Bill already allowed judicial review, he was quoted as saying:

"I think it's a gutless position for them to take, . . . If the Opposition wants to inject the courts back into that process again, all they're going to do is guarantee that one, we'll be in court forever, two, we'll waste a great deal of money and three, we're going to achieve nothing."

It should be noted that without the support of the Liberal opposition in the SA Legislative Council, the Labor Government will need cross-bench support to get the Bill passed, making its enactment more difficult.

Are the Laws Effective? Will they Work?

In a recent article "Why Australia’s war on bikies will inevitably end in failure", The Conversation makes the following observations about the Queensland laws (currently the subject of a review by the new Queensland Government) - laws from which the SA proposed laws are said to be derived - the article observes that:

"For the police, the numbers of arrests and charges are indicators of success. This is due to this being the part of the criminal justice process that police have most control over. Once a matter moves beyond this point, the police’s ability to influence the outcome is diminished...In reality, though, a more forensic analysis is required. Previous analysis has shown that bikie gangs have limited involvement in organised crime and that they make a small contribution to general crime."

To actually prove the efficacy of such laws the article suggests the real matters to consider are indicators like, the number of successful prosecutions, evidence that gang numbers are reducing, whether there is "an evidence base that proves association laws stop the criminal elements of bikie gangs meeting" among others listed in the article.

On the question of "successful prosecutions" for example, the article indicates that from April 2008 to April 2014 in Queensland around 20% of charges against bikies failed to result in a successful prosecution. While on the question of "gang numbers reducing" the point is made that:

"Australian Crime Commission (ACC) data indicated that in 2012 there were 4483 bikie gang members across Australia. Current ACC data shows that there are now approximately 6000 members – a 34% increase in three years."

Certainly in the view of The Conversation article, the laws, while resulting in more arrests, are not necessarily resulting in more successful prosecutions or reductions in gang membership.

Bikie Laws Not Analogous to Terrorism Laws

The point is also made in The Conversation article that unlike the Anti-Terrorism laws ". . . there has been a distinct lack of community engagement by authorities with at-risk groups." Unlike the response to the “war on terror” by the Australian government with its Countering Violent Extremism Programme, focusing on early intervention and counter-radicalisation programs, namely; strategies to prevent crime through education and community engagement, the Queensland laws dealt with the bikie gangs’ by implementation of curfews and banning. In other words as the article says a "one–dimensional" approach focused on enforcement.

Next Up

It will be interesting to see the extent to which the SA proposed laws are amended before being enacted and the actual recommendations of the review into the Queensland laws commissioned by the new Labor government and due in September 2015.

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