Bikie laws sicken civil liberties

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Customised motorcycle with flame design

There is something unhealthy in the legislative air. In Queensland, a renewed effort has commenced against the bikie gangs that have plagued the law and order landscape of several states. Victoria and NSW are making murmurings that they might follow suit.

Last week, the Queensland parliament passed three bills that would effectively classify 26 bikie gangs as 'criminal organisations'. The implications of this designation are extensive and extend beyond the sunshine state. 'Bikie' members are prohibited from assembling. They will be a provision of a special 'bikie jail' termed colloquially a 'clubhouse' for convicted members. The terms of incarceration may also be mandatory; and there will be job bans. Special treatment will be meted out.

The Queensland Police Minister Jack Dempsey explained his rationale before parliament, citing that customary hearth and home image of security and protection. 'People need to know when they go to bed at night and the darkness of the evening comes over, that they can sleep safely in their beds.'

The flipside of such protective romanticism is that of arbitrariness. This was reflected in the views of Queensland Premier Campbell Newman who said, 'Frankly I don't care how these people go to jail.' Premature adjudication is a dangerous tendency in any process, but notably in one where legal fairness is considered the norm.

Political commentator Malcolm Farr, himself a bike enthusiast, termed such measures and rationales 'utter tosh'. It was a 'bogeyman story' to tell the frightened kids. It was irrational. And more to the point, such laws were dangerous to everyone. Farr is careful not to excuse bad behaviour on the part of the gangs. They are, for much of their part, 'frauds', 'thugs' and 'grubs'.

The medicine, however, is bound to kill that frail patient known as civil liberties. How to sort the wheat from the chaff in policing a special group of law- or non-law-abiding citizens? In Farr's words, 'these laws will be applied to others who wouldn't know a bikie from a brickie'.

What is being touted here is a police state response, rather than a measured, legal program. Broad brush strokes in legal responses tend to be disastrous. Selective punishment of groups, assaults on the assembly of individuals, and selective prisons are not expressions of sober policing but marauding heavy-handedness. In 2009, Moira Rayner, in a survey of the NSW government's attempt to rush through extreme bikie laws, noted that it was 'never a good idea to make law on the run'.

And we've seen it all before. In 1994, the New South Wales parliament enacted the Community Protection Act with a specific intent of permitting the NSW Supreme Court to order the continued detention of Gregory Wayne Kable, a prisoner slated for release. He had been deemed a threat to the public after being convicted for manslaughter for killing his wife. The High Court found in 1996 that the law was unconstitutional, citing that the Court had been vested with non-judicial powers offensive to Chapter III of the Constitution. The saga has persisted.

Thus began a string of decisions from the High Court finding organised crime control laws as incompatible with the State judicial process. Some cases such as South Australia v Totani and Wainohu v New South Wales found against them. Others, such as the Gypsy Joker's Motorcycle Club Inc case, found the laws compatible. The result has been unsatisfactory, giving us, in the words of Cheryl Saunders, a 'messy jurisprudence'.

The Kable principle remains as confusing as ever as to where the boundary lies in granting state courts powers excessive powers of crime control over specified groups. The High Court justices are reluctant to speak with one voice on the subject. It says much about the muddle-headed thinking on the subject of civil rights in this country. The states have profited in this climate of obtuseness. A legislative lottery has sprung up with attempts, like Newman's, to pass laws that push the bar in terms of how groups can be targeted as dangerous to the community.

In Victoria, laws have been drafted to be consistent with the High Court interpretation, though remain on the shelf because evidence is required in a court to demonstrate that a group is a criminal organisation. This, at least, is an inbuilt restriction. The Queensland laws, if they pass muster in any legal challenge, have no such limit. They will be bliss for the police state advocates. First came the bikies — then came everyone else.


Binoy Kampmark headshot

Dr Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne.

Bike image from Shutterstock

Topic tags: Binoy Kampmark, bike laws

 

 

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I strongly detest Eureka Street endorsing this article. Bikie gangs are destroying the moral fibre of this country, and this article implicating that the new bikie gang laws are curtailing civil liberties is absolutely rubbish.
Stanley D'Cruz | 28 October 2013


Fair comment. But talk is cheap. What has anyone done about the problem all this while? The police have a job to do, but it is really frustrating when those apprehended are released shortly after. Someone finally has the courage to address the problem that the silent majority in society is concerned about - not only the criminal organisations and their activities, but their strong recruitment efforts. It is clearly not a perfect solution but the courts will resolve this. Most important is to have wise legislation passed, not idealistic and ineffective ones.
DonaldD | 28 October 2013


So, how would you get rid of this scourge, Binoy? So twistedly Australian...authority is always wrong...how far back does that go?! These gangsters are a real danger to society and ordinary citizens! They are very bad people. Get off your high horse and be constructive; harping on does not help much.
Eugene | 28 October 2013


Eureka Street is out of touch with society yet again.Not only do the vast majority support these laws they also want the Judiciary, as well as Politicians to be accountable to the people. That circle of responsibility is where you will get your safeguard.
Mick Mombasa | 28 October 2013


Stanley - where's evidence for your assertion re "destroying moral fibre of this country". My evidence to the contrary resides in 2 daughters that have learnt right from wrong, and act accordingly. No bikie can lean on their code. They also know the value of freedom from a grandfather that witnessed military abuse, both Japanese and Australian. They are also aware of 'uniforms', 'suits' and 'officialdom' that exercises greed and corruptive practice every day of the week with impunity. 7billion and more, impacted negatively by corrupt practises of greedy people that created the GFC, have no indication that 'the system' that allowed this travesty will censure the pigs that have led so many to despair, wasting illness and yes, death. What are a few bikie thugs in the scheme of things? Is it a crime to be a grub? Is shooting the messenger (ES) re what you think is an "implication" your idea of free speech? Is free speech on your list of civil liberties? Freedom to meet, congregate, talk, protest, attend a church, a political rally, belong to an organisation, the list goes on, has all been compromised, made illegal through similar political legislation in the past.
Mick Cook | 28 October 2013


Now that the Newman government is making laws on the run against bikie organisations, does it mean that the QLD police have not been doing their job all this time? No doubt there are undercover cops within thebikie gangs involved in criminal activity since it appears that the police know where to raid and what to confiscate. Why then do we need new laws? That said, I hope the courts will not end up being a rubber stamp for the Newman government's reactive laws as oppose to responsive and discerned laws.
Jan | 28 October 2013


If members of bikie gangs break the law, they should charged with whatever crime they have committed. We should not need a law that makes criminal the act of riding a motorcycle, and associating with other people who also ride motorcycles. A criminal is a criminal because of what he does, not because of the club he belongs too.
vincenzo vittorop | 28 October 2013


Fantastic article. Looking forward to further critical insight from Mr Kampmark and other contributors.
Tim Graham | 28 October 2013


Thanks Eureka St, and learn some sense, Donald D.Quack quack! The law must be just, considered, and guaranteed to ensure that 'the end justifies the means' . Otherwise, more of the recent 'enactments' of coalition Vs asylum seekers, now demonised as 'illegal immigrants' and 'detainees', while thousands of immigrant children are still in detention. And bikie jails? Now that would really change the meaning of 'clubs', even if only one inmate emerged more criminalised than before being caged with more dangerous and sinister ones.
Elsie G | 28 October 2013


Remember this is the same state that bashed up the demonstrators under Premier Joe's reign some years ago. What is wrong with enforcing the pre-existing criminal law? Blanket type law is a concern to people who are interested in real justice. Hitler persecuted the Jews under such a law.
David | 28 October 2013


Stanley, you're just wrong. The moral fibre of this country may well be in danger, but not from bikie gangs. These new state laws won't stop bikies committing crimes, and they will endanger everyone's civil liberties, including yours and mine.
Joan Seymour | 28 October 2013


Do laws like this only continue to define who is in and who is out? Condemn behaviour if need be but let adopt a worldview that does not categorise some people as good, worthy, righteous, and others as bad, unworthy and unrighteous.
Liz | 28 October 2013


Naturally if a bikie breaks the law he should be charged and tried--like anyone else. The idea that his club itself is 'guilty' and membership of it punishable is obnoxious to the principles that underpin civilised society, at least in the Anglophone world. I expected such an expression of force when I noticed the new police uniforms and armament; the black shirts, the military equipment. Could there be an influence from American movies? Personally, I find a youthful policeman strutting around with an automatic pistol strapped to his thigh and a belt bristling with ancillary weaponry far more unsettling than an overweight, middle-aged, hairy and socially-inept motorcyclist. A predictable effect of the crackdown will be to make the bikies more desperate, perhaps sufficiently to tempt them to resist arrest. And then, well you can guess the rest. Violence begets violence. If there is more violence, more police are required. Should the two-wheeled criminal masterminds ever be actually vanquished rather than driven underground, what other threats to society will need to be subdued? There are those sinister organisations whose tentacles reach all over the country and that exist only in order to win power and control: the opposition political parties.
von Journo | 29 October 2013


Anyone who has had to deal with death threats, extortion and the effects of the drug trade would understand even if civil liberties were curtailed for the purpose of dealing with crime gangs operating under the guise of bikie gangs - then it's worth it. Yes, civil liberties are a right not a privilege - but crime gangs are exploiting the loopholes and it's a warlike situation. Just do whatever is necessary before it gets any worse and to the genuine motorbike club members - look beyond your own self-interests and make a sacrifice for the sake of your country.
AURELIUS | 30 October 2013


First they came for the bikies... Agreed Binoy, this is bad legislation: unjust and unfair.
DavidSt | 30 October 2013


I'm glad we still have a country where views such as those ably expressed by Mr Kampmark can be aired.. The other side of the coin is police frustration at their life threatening attempts to ensure the public's safety from thugs, Their risks no doubt sometimes get insufficient legal support.. Binoy has added the necessary note of caution to protect that fragile but precious gift of civil liberty without which "justice" can so easily become an agent of rampant prejudice. and repression.. I suspect that the undoing of gang crime is not as easy as a wave of a legal heavy fist unless it is finely tuned with checks and balances.
Sue Lambert | 01 November 2013


What garbage. I have ridden motorcycles for 20 years and these laws pose no threat to me. The bikies make it easy for us. They identify themselves as outlaws, 1%ers. In doing so they make it clear they have no respect for the laws of this nation and no intention of being bound by them. Therefore they cannot reasonably expect to be protected by these laws. This is not an attack on everyone’s civil liberties; it is an attack on everyone’s enemies.
OMG | 20 November 2013


Kable has nothing to do with these laws, the High Court only recently rejected a challenge from the bikies
Worker | 20 November 2014


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