Tough bikie laws for NSW

The NSW Parliament has rushed through legislation in response to the recent spate of bikie-related gang violence. On approval by a Supreme Court judge, a motorcycle gang may be declared a ‘criminal organisation’, allowing police to arrest members who associate with each other without prior warning.

Members tried under these laws face at least two years in prison.

Under the Crimes (Criminal Organisations Control) Act 2009, the police commissioner may apply to the Supreme Court for a control order, with approval subject to police evidence. The judge is not required to give reasons when making a declaration.

The laws were modelled on similar legislation introduced in South Australia, which had what NSW Premier Nathan Rees called “teething problems,” since some members of outlawed gangs proposed a High Court Challenge. Mr Rees said the laws had been carefully drafted with advice from the attorney-general and police minister to avoid such a challenge.

Constitutional law expert Nicola McGarrity of the University of NSW, believes there isn’t much scope for a successful constitutional challenge though, “there could be some room to argue that the court has been given a legislative or executive role rather than judicial” given that the court has the power to declare an organisation ‘criminal’. McGarrity said the argument was unlikely to be successful however.

There are also rumours some bikie gangs may form political parties, which could open up a constitutional challenge to the new laws on grounds of freedom of political communication.

The Greens voted against the new legislation. Greens MLC Lee Rhiannon said the laws provided police with “extraordinary discretionary powers” while also curtailing the right to freedom of association. They claim the laws could be abused.

Some, including independent MP Clover Moore, questioned the lack of debate and time to properly assess the legislation.

“The bill should lie on the table for 28 days, over the impending recess, to enable us to consult with our communities and to allow proper public debate to occur… I am not properly across the legislation… I am very disappointed that the Government is rushing this,” Moore said during the second reading debate.

The Law Society agrees Parliament was not given adequate time to consider the legislation and also holds grave concerns, deeming the legislation to be an “overreaction”.

The laws fall within an established pattern of “bidding wars”: getting ‘tough on crime’ has been an enduring theme in NSW politics, and since the late 1980s both major parties have struggled to outdo each other in the field of law and order.

Some commentators have judged the undue haste to enact the law as electioneering and a response to political pressure, rather than a measured response to the problem.

“There are enough laws that currently exist which deal with these issues in the Crimes Act,” said Law Society president Joe Catanzariti.

Attorney Generals from State and Federal governments met in Canberra recently to discuss a consistent set of state laws preventing gangs from crossing state boundaries for the purpose of avoiding criminal sanctions.

Federal Attorney General Robert McClelland described the meeting as a success.

“We’ve agreed to a nationally consistent set of principles that will prevent any jurisdiction becoming a safe haven for bikie gangs,” he said.

– By Joseph Hull