Do the ‘bikie laws’ breach rights?
What does CLA think of the SA legislation – the ‘bikie laws’ – now being considered, on appeal, by the High Court. Does the Act breach an individual’s human rights, we were asked by a student?
Dear Ms XXXXX,
Serious and Organised Crime (Control) Act 2008 in SA
Thank you for your email to Civil Liberties Australia (CLA). I apologise for the delay in replying. We have recently received many requests from students seeking comment on various topics. There are currently a number of articles and comment pieces on the CLA website (http://www.cla.asn.au) which may be of use to other students. We update our website regularly to address many of the issues raised by students. And students are welcome to join CLA.
Q. Do you believe the Act has gone against an individual’s fundamental human rights? and if so which rights do you believe it has breached?
In summary, CLA believes that the Serious and Organised Crime (Control) Act 2008 of South Australia breaches a number of fundamental rights, including:
1) The right to be considered innocent until proven guilty
2) The right to a fair trial, before an impartial judge
3) The right to confront ones’ accusers
4) The right to free association
Furthermore, the provisions of the legislation – while publicly directed towards organised criminal activity – set a dangerous precedent, potentially allowing a future parliament to ban lawful protest movements or industrial action (such as strikes). It sets up a system of ‘guilt by association’ (ie. your friend is a criminal and, by remaining his friend, you are a criminal as well). Finally, it breaches the ‘separation of powers’, allowing the ‘executive’ (ie. the Government) to dictate to the courts how they should operate. This makes it, not only an affront to human rights, but unconstitutional.
A ‘fair go’ means that a person should be considered innocent until proven guilty. This means three things: first, that unless a person has been found guilty of an offence they are – and should be considered – innocent of the offence for the purposes of law enforcement. Second, a person should not be punished – and denied their liberty – without first being found guilty of an offence. Finally, a person should only be found guilty of a crime if the state proves the offence beyond a reasonable doubt.
Under the Act, these three principles are undermined. First, the Act allows the Attorney General to declare an organisation an outlawed organisation (or ‘declared organisation’) on the basis of confidential police information or anonymous tips (s 10) – none of which has been tested in court and may be baseless or malicious. It is certainly hearsay evidence (a weak form of evidence not usually allowed in any trial).
It is not a decision based on sound evidence, but on whether the Attorney Generals is satisfied ‘the organisation represents a risk to public safety and order’ and that ‘members’ ‘associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity’. You might think that requiring the Attorney General to be ‘satisfied’ is a good safeguard – after all, it suggests they can’t make the decision without considering all the evidence fairly. If that is the case, then why does the government seek to shield itself from inquiry by denying the courts any right to investigate whether the Attorney-General’s decision was justified, reasonable or even lawful (s 41)?
And yet, once the organisation has been outlawed (even illegally) it becomes an offence – punishable by 5 years imprisonment – to remain or become a member of the organisation.
Once an organisation has been made unlawful, the police commissioner can apply for a control order: which restricts where a person can go; who a person can associate with or speak with; and even what that person owns or uses (need a computer for your assignment? Sorry, you may use it to associate with criminals, it’s prohibited).
A control order constitutes a deprivation of liberty – a punishment – and punishment should only be imposed by an independent ‘trier of fact’ (ie. a judge). This is an important constitutional protection and the High Court has criticised governments who breach it: see the cases of Thomas v Mowbray: http://www.austlii.edu.au/au/cases/cth/HCA/2007/33.html
The International Financial Trust Case
http://www.austlii.edu.au/au/cases/cth/HCA/2009/49.html
and in Al-Kateb http://www.austlii.edu.au/au/cases/cth/HCA/2004/37.html
Summaries of these cases can be found here: http://www.highcourt.gov.au/publications_04.html
However the Act demands that a judge ‘must’ impose a control order on a member of an outlawed organisation if the police commissioner asks (s 14(1)). An application for a control order is made in secret – without the person being informed that their liberty is about to be curtailed (s 14(3)). There is no opportunity to challenge the police commissioner’s evidence before a control order is issued. The Court has no discretion to refuse to make a control order against a member of an unlawful association.
If there is no discretion then a judge is not acting independently. They are being commanded by the state to punish an individual who has never had an opportunity to defend themselves (or even test the evidence against them). They are no longer an independent tier of fact.
In order to lift a control order a person must prove their innocence (s17 (1)). Worse still, an application to set aside a control order has to respond to the allegations made against the person, which will likely be ‘criminal intelligence’ and therefore can’t be disclosed to the individual! You have to refute allegations to prove your innocence – but you can’t know what those allegations are.
If you have ever associated with a member of an outlawed organisation (or were once a member) then you can have a control order slapped on you too (s 14 (2)). An associate may include a partner, spouse, child, family member or a classmate. Even if you have never committed a crime in your life you can have a control order slapped on you based on your relationship with a member of an unlawful association. This is guilt by association – except without the bothersome requirement for the state to prove that anyone is actually guilty of anything.
Through all this process the state has never had to prove anything beyond a reasonable doubt: the usually ‘burden of proof’ required in a criminal process. While the Attorney-General has denied that this process is criminal, the restriction of liberty is clearly punishment. In our opinion it is a criminal matter and the necessary safeguards should apply to ensure a fair trial (see Articles 9 and 14 of the International Convention on Civil and Political Rights)
http://www.austlii.edu.au/au/other/dfat/treaties/1980/23.html
Q. Do you think this Act is breaching Social cohesion (which are laws that protect and preserve societal values and human rights) and how is this going to reflect on Social Progress (future)?
Yes, for the reasons above. Social cohesion requires a balance between the expectation of the community that the government will keep them safe, and the rights of the individuals and the community at large that laws be designed to minimise their impact on fundamental rights and liberties. Too often that balance is tipped in favour of the police and we move towards a police-state: where police have wide, discretionary powers which they can use with little oversight and where the cry “if you’ve done nothing wrong you’ve got nothing to hide” is used to infringe privacy and liberty.
When everyone is a suspect; when secret evidence can be used against you; when the police do not need to justify their actions in court social cohesion is likely to break down.
Q. Do you think it should have been passed by Parliament? Overall, what is your opinion on this legislation?
No, for the reasons discussed above.
South Australia’s Supreme Court agreed and in late 2009 struck down the legislation as unconstitutional
http://www.austlii.edu.au/au/cases/sa/SASC/2009/301.html
The fate of the legislation is now in the hands of the High Court.
http://www.austlii.edu.au/au/other/HCATrans/2010/95.html
However, even if the High Court upholds the law as constitutional, CLA believes that the Act is so offensive to basic notions of human rights and a fair go that it should be repealed by the South Australian Government.
I hope this assists your students with their assessments. We have many more articles on civil liberties on our website, all of which are free to view and download. http://www.cla.asn.au
If you are interested in getting involved you can always join Civil Liberties Australia. Our membership is $10 for students and $25 for adults.
Date: 11 June 2010