Ask a candidate: would you protect our freedoms or take them away?

As candidates throw themselves at your doorstep and shopping centre, here’s a question to ask them, says Richard Griggs: what would you do with our liberties and freedoms? Would you legislate to give us more, or take them away as has been done for the past decade? Be prepared for interesting responses!

Ask a candidate: would you protect our freedoms or take them away?

By RICHARD GRIGGS*

Australians are highly likely to come face to face with a host of real-life political candidates over the next 12 months.

In Tasmania, they’re in danger of drowning in them, from candidates in May contesting one of the three Tasmanian Upper House seats (Nelson, Pembroke and Montgomery), the September Federal election or the Tasmanian Lower House election due in March 2014.

Anyone running into a candidate anywhere in Ausgtralia may wish to quiz her or him on freedom of association, the ability to meet with who ever you like without having to seek Government approval. If your earnest candidate was elected to parliament, would they vote for freedom or would they vote to curtail it in the name of protecting us from crime?

The danger when Prime Minister and Premiers meet is not what is covered in the headlines, but what slips through, often unrecorded. Hot topic at the Council of Australian Government (COAG) meeting in April was education funding. It dominated the media and will become a recurring theme in the federal campaign. So it should, as crucial for Australia.

But freedom came under siege virtually unnoticed and unremarked. Also on the COAG agenda was PM Julia Gillard’s proposal that all the States and Territories give her power to impose national anti-association laws, over-riding state laws. The powers would allow police to request a judge to outlaw organisations and order individual members of the outlawed group not meet. The judge’s ruling could be based on information that the outlawed organisation is banned from reading, knowing about, or challenging.

Secret, non-transparent “intelligence” presented to a court should seriously concern any Australian who values the freedom to meet with friends and acquaintances you choose, and who believes in the presumption of innocence until proven guilty. Politicans claim the laws target bikies, but they aren’t written that way: the same laws could target any group getting under the skin of the government of the day, from anti-abortion protestors to environmental activists.

Anti-association laws previously passed by parliaments in NSW and South Australia were subsequently invalidated by the High Court as being ‘repugnant’ (the very term used by the High Court in the NSW case) to judicial independence from executive government. Suprisingly to close observers, the High Court has recently validated Queensland’s newer version of the same law.

The outcome of COAG on 19 April 2013 was murky, with leaders agreeing that:

“the Standing Council on Law and Justice would further examine options to fight nationally gang violence and organised crime, in consultation with the Standing Council on Police and Emergency Management and recommend options for consideration at its next meeting”.

Putting aside the grammatical ugliness (which of the two standing councils will consider the options at its next meeting?), COAG’s decision is a reprieve and allows people who care for important freedoms to make their displeasure known to their State and Federal MPs, and to ask political candidates for their view on the issue.

 In a letter to the PM and circulated to State and Territory leaders in the lead up to COAG, Civil Liberties Australia explained that the proposed anti-association laws would:

 repress freedom of association (groups can only meet if the government approves);

• completely overturn the presumption of innocence until proven guilty;
• risk contravening the Constitutional separation between the Courts and the Government;
• drive criminals further underground and make them harder to catch;
• risk sending innocent people to jail; and
• ignore study after study which confirms the best way to tackle crime is increase the likelihood of criminals being detected and charged by police.

While CLA awaits a response from the PM, we encourage you to take up the issue with the next political candidate you come across. If you want to keep things simple, you could spark the converstation by saying to the candidate: “I believe that in Australia we charge people with the crime they commit, not the group they belong to. What do you think?”

Candidates may claim: “We can’t become a safe haven for criminals. We can’t be the only State without the ability to ban dangerous crimial groups.” But don’t be put off. That’s just a media line which doesn’t hold up to scrutiny.

It is a poor argument because no state is at risk of becoming a safe haven if we reject these laws. Police everywhere already have perfectly adequate powers to disrupt people planning to commit a criminal act before the act is actually committed, under the crime of conspiracy. In plain english, consipiracy occurs whenever two or more people meet to plan carrying out a crime in the future.

 Conspiracy ended ‘Underbelly’

So, if police believe a group is dangerous and planning a crime, they can already step in and charge the members involved with conspiracy. Conspiracy is a far more traditional and understood legal concept than anti-association laws (it was used by police decades ago to end the ‘Underbelly’ era in Sydney and Melbourne). We should focus on using existing laws before imposing dangerous new ones.

The truth of the PM’s proposal is that anti-association laws are not needed to fight organised crime: her move is a poor attempt to appear to be doing something about crime, to beat the ‘law-n-order’ drum in the lead-up to an election. The danger is that other parties start to beat the same drum, and we end up with repressive laws for which there is no need and which further inhibit Australians’ freedoms and civil liberties.

Study after study has shown the best way to reduce crime is to increase the prospect of detection and conviction. Anti-association laws actually drive in the opposite direction because they push criminals further underground which makes detencing and convicting them harder, not easier.

So, please prepare for that knock on the door by political candidats by readying a probing question or two on anti-association laws, and what extra rights the candidate will campaign for. It’s time political parties and candidates gave us a ‘liberties-n-rights’ auction, rather than the direct opposite. When was the last time a political party promised us more power to question bureacrats, to rein in police excesses, or to probe for misbehaviour of politicians themselves?

For those especially afronted by anti-associaion laws and keen to make the most of face-to-face time with a political candidate, here are six key concerns.

1. The laws would repress freedom (groups can meet so long as the government approves)

 We have a right to meet with whomever we choose. That principle is integral to a free and democratic country. It is not the role of the national government to tell people who they can meet with. Such a law would allow governments to regulate all sorts of meetings of any group: bikies this year, anti-abortion protests outside parliament next year, mining protesters after that. The federal government has no place attempting to regulate these meetings.

 Any group planning criminal activities while meeting is already covered by the crime of conspiracy, so there is no need to criminalise the actual act of meeting itself.

 2. Anti-association laws reverse the presumption of innocence until proven guilty  

 The principle of innocent until proven guilty is the beating heart of our justice system. The proposed law would twist this principle on its head: any time a group the government doesn’t like holds a meeting, it would have to prove it is acting innocently. A politician could name and shame any group she or he didn’t like, and have them outlawed on secret whispers, so-called “intelligence” (not necessarily fact) which only the politician and the police, not the entire court, is allowed to see. Australians don’t want politicians to have such power.

 3. The laws risk contravening the Constitutional of powers principle

 The proposed laws are repugnant to judicial independence under the Australian Constitution. They would force judges to accept the word of politicians and police without anybody being able to check the accuracy of “intelligence” provided secretly to the court.

 The High Court has ruled that SA and NSW criminal organisations laws are invalid. Six out of the seven High Court judges ruled the NSW laws were repugnant to the concept of judicial independence under the Australian Constitution. For the Commonwealth to attempt these laws again across the entire country is worrying[1].  We note a recent decision in favour of Queensland in the High Court, but Civil Liberties Australia believes the High Court will itself rein in what is seen in the community as giving excessive power to the police and the state. However, since it is obvious from the High Court decision that states (and territories) have more power than needed, there is even less reason for a national law.

 4. Anti-association laws drive criminals underground and make them harder to catch

 The proposals would push criminals further underground and out of police reach. Criminals would no longer associate in visible ways, operate licensed venues, or have visible business together. It is not immediately apparent to Civil Liberties Australia why the Prime Minister would seek to make the job of police harder, not easier.

 5. Anti-association laws risk sending innocent people to jail

 The PM’s proposal assumes that every single member of an outlawed group is engaged in planning crime. That’s a dangerous assumption, almost certainly just plain wrong. It would only take one innocent member of any group the government doesn’t like to meet with another member, after outlawing, for the innocent person to be put in jail. Cousins could be stopped from meeting with each other, mates with mates. If that is the kind of country the PM wants, it is not a vision she has yet shared with the Australian people.

 6. Anti-association laws ignore study after study which confirms the best way to tackle crime is increase the likelihood of criminals being detected and charged by police

 Serious and organised crime needs a better response than the PM’s proposed COAG anti-association laws. It requires resourced, dedicated police teams. It needs a coordinated response driven from the police executive. It needs the PM and Premiers, along with Police/Justice Ministers, to require Police Commissioners to devote appropriate resources to tackling organised crime. Police already have ample funding and appropriate resources: if the Australian PM and Premiers want action on organised crime, they should instruct their police forces to concentrate on organised crime, and monitor their performance.

 Civil Liberties Australia concluded our letter to the PM by stating:

 “Prime Minister, Civil Liberties Australia believes COAG has on its table a silly, election-driven proposal unworthy of you and the government. It is not worth wasting COAG’s time on it, if the outcome will simply be a falsetto media campaign against states and territories which choose not to adopt such a staged national idea.”

 While thankful the proposal did not get approved at COAG, the job of those who care about freedom of association is far from over. As the saying goes – bad things happen when good people stand back and stay silent. Please don’t not stay silent.

 

• Richard Griggs is the Tasmanian spokesperson and Director for Civil Liberties Australia. He is a corporate lawyer in the academic world, and keen bushwalker. You can reach him at: mailto:tas.media@cla.asn.au