From Terrorism to Bikies

Australian Crime Commission, Organised Crime in Australia (2011) 2.

Serious and Organised Crime (Control) Act 2008 (SA); Crimes (Criminal Organisations Control) Act 2009 (NSW); Serious Crime Control Act 2009 (NT); Criminal Organisation Act 2009 (Qld).

Criminal Organisations Control Bill 2011 (WA). See WA Attorney-General's Department, Media Statements, 13 November 2011. The Bill was returned to the Legislative Council, with proposed amendments, on 22 May 2012.

For a detailed overview of the laws and relevant provisions of each, see McGarrity Nicola , ‘Designing Control Orders for Serious Crime Groups after Totani and Wainohu: Table’ (Paper presented at 2012 Constitutional Law Conference, G+T Centre of Public Law, 17 February 2012) <http://www.gtcentre.unsw.edu.au/sites/gtcentre.unsw.edu.au/files/2011_con_law_conf_table_n_mcgarrity.pdf>.

For example, s 35(1) of the Serious and Organised Crime (Control) Act 2008 (SA) makes it an offence to associate, on at least six occasions during a period of 12 months, with a person who is a member of a declared organisation (regardless of whether a control order has been issued in respect of that person).

South Australia v Totani (2010) 242 CLR 1.

Wainohu v New South Wales (2011) 243 CLR 181.

Legislative Assembly, Western Australian Parliament, Parliamentary Debates, 23 November 2011, 9678 (Christian Porter).

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

Wainohu v New South Wales (2011) 243 CLR 181 [52] ( French CJ and Kiefel J ).

Ibid [44].

Ibid [54]–[59].

South Australia v Totani (2010) 242 CLR 1 [62], [69] ( French CJ ).

Ibid [226] ( Hayne J ).

See, eg, Bagaric Mirko , ‘The Revived Kable Doctrine as a Constitutional Protector of Rights?’ (2011) 35(4) Criminal Law Journal 197; Gray Anthony , ‘Constitutionality of Criminal Organisation Legislation’ (2010) 17(4) Australian Journal of Administrative Law 213; Southwood Elizabeth , ‘Extending the Kable Doctrine: South Australia v Totani’ (2011) 22(2) Public Law Review 89; Welsh Rebecca , ‘“Incompatibility” Rising? Some Potential Consequences of Wainohu v New South Wales’ (2011) 22(4) Public Law Review 259.

Bagaric , above n 15, 199.

This is unsurprising. As early as 2004, the High Court decided that use of preventative detention orders to, for example, detain sexual offenders indefinitely was constitutional (Fardon v Attorney-General (Qld) (2004) 223 CLR 575). Then, in the 2006 case of Thomas v Mowbray (2007) 233 CLR 307, the High Court held that the anti-terrorism control order regime in Div 104 of the Criminal Code Act 1995 (Cth) did not breach the separation of powers at the federal level.

South Australia v Totani (2010) 242 CLR 1 [69] ( French CJ ).

Ibid.

Wainohu v New South Wales (2011) 243 CLR 181 [70] ( French CJ and Kiefel J ); [108] ( Gummow Hayne Crennan and Bell JJ ).

This came into operation on 17 June 2012.

There are, however, statutory Bills of Rights in the ACT (Human Rights Act 2004) and Victoria (Charter of Human Rights and Responsibilities Act 2006).

Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 136 ( Mason CJ ).

The ‘moral panic’ generated in the bikie context is discussed in Morgan George Dagistanli Selda and Martin Greg , ‘Global Fears, Local Anxiety: Policing, Counterterrorism and Moral Panic over “Bikie Gang Wars” in New South Wales’ (2010) 43 Australian and New Zealand Journal of Criminology 580.

Legislative Council, New South Wales Parliament, Parliamentary Debates, 2 April 2009, 14334 ( Kaye John )

McGarrity Nicola and Williams George , ‘When Extraordinary Measures Become Normal: Pre-Emption in Counter-Terrorism and Other Laws’ in McGarrity Nicola Lynch Andrew and Williams George (eds), Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11 (2010) 143–144.

Some Australian jurisdictions have taken steps in this direction by legislating for covert searches of private property.

Legislative Assembly, New South Wales Parliament, Parliamentary Debates, 27 September 2007, 2518 ( Campbell David ).

Powell Damien , ‘Serious and Organised Crime in South Australia’ (2009) 70(4) Royal Canadian Mounted Police Gazette 1, 20.

See, eg, Schloenhardt Andreas , ‘Mafias and Motorbikes: New Organised Crime Offences in Australia’ (2008) Current Issues in Criminal Justice 19.

Evidence to Parliamentary Joint Committee on the Australian Crime Commission, Commonwealth Parliament, Canberra, 4 July 2008, 4–5 (Leonard Roberts-Smith).

ABC News, ‘NSW bikie crackdown useless: Defence lawyers,’ 31 March 2009 ( Daniel Sue ).

Evidence to Parliamentary Joint Committee on the ACC, above n 31, 6.

Ibid.

Legislative Assembly, New South Wales Parliament, Parliamentary Debates, 9 June 2005, 16940 (Bob Debus).

The National Security Legislation Amendment Act 2010 (Cth), which was an omnibus of amendments to Australia's anti-terrorism laws, failed to make any significant amendments to these regimes.

ABC Radio National, ‘South Australia's Plans to Obliterate Outlaw Bikie Gangs,’ The Law Report, 6 May 2008 http://www.abc.net.au/radionational/programs/lawreport/south-australias-plans-to-obliterate-outlaw-bikie/3254212.

Building and Construction Industry Improvement Act 2005 (Cth). See Williams George and McGarrity Nicola , ‘The Investigatory Powers of the Australian Building and Construction Commission’ (2008) 21 Australian Journal of Labour Law 244.

New South Wales Parliament, Legislative Assembly, Parliamentary Debates, 19 November 2002, 6979, 6980 (Bob Carr).

Law Enforcement (Powers and Responsibilities) Amendment (Search Powers) Act 2009 (NSW).

This is so in the context of organised crime (see, eg, SOCCA and COCCA) and in applications for liquor licences (see, eg, legislation under consideration in K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501.

Martin Greg and Scott-Bray Rebecca , ‘Closing Down Open Justice in the United Kingdom?’ (2012) 37(2) Alternative Law Journal 126.

ABC News, ‘Banning Bikie Colours “Won't Stop Shootings”, AM, 22 April 2012 ( Griffiths Meredith ).

Ibid.