It's never a good idea to make law on the run.
Right after the murderous scrum at Sydney Airport that ended in a man's violent death the NSW Government rushed 'the toughest anti-bikie laws in the country' through Parliament.
These laws create new offences and give extraordinary powers to ban organisations and issue control orders against their members. It's an offence 'to associate' with other members on a police list of unknown size and origin. Based on the Commonwealth's anti-terrorism laws, they were introduced and passed in a single day without proper or adequate parliamentary debate.
On 30 April the NSW Parliament enacted even more draconian laws, prohibiting 'recruitment' to gangs, allegedly because bikie gangs were said to be targeting new members from 'street gangs'.
There has been a chorus of support from law enforcement officers in other states, and a chorus of objections from not only 'civil libertarians' (blackguarded as 'rights for crims' activists), but authoritative black-letter lawyers, including Nicholas Cowdery QC, NSW's Director of public Prosecutions.
The objections are both in principle — that the laws are an undue interference with ordinary civil rights — and pragmatic: that they will not deliver the desired result, because they are 'complex, expensive to apply, and not yielding the desired results'.
What are the desired results? Certainly more than shouting that beating a man to death in a public place is a crime, or that 'conspiring' to do it is unlawful. It already is.
The astonishing fact is that, despite airline staff warning Sydney Airport that there was likely to be trouble on landing, there was no adequate police intervention. You might think that Sydney airport, an obvious terrorist target, would have contingency plans for threatened violence, but it didn't. In the time it takes you to read this, a man was murdered in front of families and children while the poor saps in uniform waited for reinforcements.
The legislation outlaws particular criminal organisations, rather than minimising criminal activity. Yet the thing about criminal gangs is that their activities don't stop at state boundaries. So we need an effective national approach to interstate or even international organised crime activities.
This need for a national approach — re-voiced by South Australian premier Mike Rann, supported in principle by the federal Attorney General Robert McClelland last week — does not logically require the 'toughest' laws.
South Australia has its own organised crime legislation based roughly on the WA model enacted in 2003. Both emphasise effective policing. WA's Police Commissioner can apply for extraordinary powers from WA's Corruption and Crime Commission, authorising covert surveillance, assumed identities and other policing aides for particular cases, and power to issue notices to remove 'fortifications' to gang headquarters, a problem then, but not now.
South Australia's law gives proscription power to its Attorney General rather than WA's independent body who may also restrict contact between members of such organisations.
NSW is urging the adoption of its model, but Rob Hulls, Victoria's Attorney General, says that 'focusing on membership of bikie gangs, rather than the criminal behaviour of their members, is not sufficient to address serious and organised crime.'
Victoria first proposed national anti-bikie laws in 2000, and its own, measured response — coercive questioning powers, power to confiscate property, a ban on 'consorting' for the purposes of organised crime, legislated surveillance, controlled operations and other investigation techniques — has worked well.
But organised crime is exactly what it says, and therefore responsive
to challenge, adaptive and resilient. Hence national organised crime policing initiatives must be constantly reviewed to see whether they are useful, and adapted to new developments.
Each state government has particular 'law and order' responsibilities, and continue to disagree on uniform anything. What is most likely to work is law enforcement officers working smarter, not harder, with the powers and resources they have.
The new police commander in NSW has had great success, in recent weeks, in doing just that. There has been a spate of arrests and charges over the shooting of Sydney crime boss Abdul Darwiche, drug hauls, and of four men allegedly involved at the Sydney airport fracas: they were followed to their cars by a 'concerned citizen', who told the police, who traced them and charged them with existing criminal offences.
Cowdery said the NSW laws offended against the rule of law, and he has to be taken seriously. The power to 'proscribe' organisations is not limited to 'bikie gangs.' They could include political, lobbying and protest groups. Thousands of ordinary people could be tainted by association.
Involving NSW Supreme Court judges 'administratively' (in the process of proscribing organised crime groups) yet 'judicially' (when dealing with individuals) imperils the essential separation of the judicial arm of government from the executive side. And it isn't necessary.
Federal prosecution authorities have a poor track record in getting convictions under the model for the NSW laws, the counter-terrorism laws passed after the 2001 terror attacks in the US. It is time to reconsider them 'to better reflect the balance between the rights of the individual and the protection of the community'. As it is, biker groups have formed to challenge them in court, which is not the action of a bunch of gangsters.
No 'group' — of bikies or otherwise — can be assumed to be full of criminals. Men form friendships out of common and innocuous interests.
A few years ago I was at a bush festival that was gate-crashed by 'bikies', who roared up and down yelling 'yippee'. Far from (in the vernacular of the time) 'freaking out', the organisers invited them to sit down and explain what issues they had. We shared an afternoon sitting and listening to stories of the shared experience, of feeling 'on the edge' of mainstream society, and being judged outlaws by reason of looking different.
One big burly guy with a big beard and tatts, a huge Harley and a forbidding face teared up as he talked about his 'family.'
We had a lot in common then, and as fellow citizens, we still do.
Moira Rayner is a barrister and writer. She is a former Equal Opportunity and HREOC Commissioner. She is principal of Moira Rayner and Associates.