Adding to the list of punitive “law and order” measures that has been implemented in Victoria over the past few years is the latest installment of this agenda: the proposed “anti-bikie” laws, which are inspired in part by the federal “anti-terrorism” laws.
While popularly justified on the basis of combating “bikie gangs”, the Criminal Organisations Control Bill 2012 is better understood as a bill that can limit the ability of citizens to engage in democracy, civil society, and of citizens to associate with one another.
The bill is aimed at organisations and individuals who may be found guilty during a hypothetical criminal trial of “serious criminal activity”. That is, offences that involves two or more people; substantial planning and organisation; and that is part of possible systemic criminal activity undertaken for profit, power, influence, or child sexual abuse.
Section 4(2) specifies a list of offences that constitutes “serious criminal activity”. The individuals involved in the organisation may be past, present or future members.
Under the bill, the Supreme Court has the power to “declare” an organisation or individuals once the Commissioner of Police has made a civil application. The court must be satisfied beyond reasonable doubt that a “declared organisation” has engaged in, is organised in, or facilitates “serious criminal activity” or that two or more people are using or have used the organisation, or their relationship to the organisation or its members for “serious criminal activity”.
On the balance of probabilities though, the court must also be satisfied that the organisation’s or individual’s and other members’ activities “pose a threat to public safety and order”. For an individual to be declared, the process is similar.
Once an individual or organisation has been declared, the commissioner may apply to the court to have a control order implemented. The objective of a control order is to place restrictions or orders on an organisation or individual.
The kinds of conditions that can be placed by the court, at the request of the commissioner, is ultimately at its discretion. However, some possibilities may include the prohibition of wearing particular clothing or symbols, engaging in particular activities of the organisation, or associating with particular people.
To grant a control order, the court needs to be satisfied that it is likely to prevent or disrupt “serious criminal activity”. Breaking a control order may lead to a jail term, fine or the confiscation of assets. And control orders can be placed on an organisation, members of an organisation, or individuals, if the court believes it will disrupt or prevent “serious criminal activity”.
To make a declaration or control order, a range of evidence can be used, including criminal history and criminal intelligence. The bill allows the court to consider the past, current or possible future criminal history of members, former members or future members of an organisation.
It also allows the commissioner to refer to or present “criminal intelligence”. Criminal intelligence is any information collected by law enforcement that relates to actual or suspected criminality, which may “harm” an investigation, or endanger the safety of covert officers or an informant, or reveal the identities of such people.
Hearsay, for instance, can be classed as criminal intelligence.
The commissioner may make an application to the court to have the information dealt with in secret, particularly without the knowledge of the respondent and their lawyer. The bill presumes that any criminal intelligence will be dealt with in secret though. If the commissioner’s application is upheld by the court, it will appoint a “special counsel” to represent the respondent in their absence.
In addition, the bill allows for the commissioner to make an application to uphold a declaration control order made in other Australian states.
The ideology that underpins Victoria’s anti-association bill is one that has come to dominate law creation and enforcement: the militaristic doctrine of preemption. Rather than putting people before courts for real crimes they have committed, preemption measures target people before a crime has actually occurred.
In effect, they are put through the court on the basis of possibility and their reputation. Further, in such a control culture, authorities view activities essential to the functioning of democracy and civil society as a potential threat.
According to the continuum view of “terrorism”, it is but a small step from a march to a bomb. During this climate, associating with fellow citizens becomes an act worthy of suspicion and intervention.
Victoria’s proposed anti-association law has the real potential to be used against people and organisations other than bikies. With the majority that the Victorian Government holds in both Houses, there is little doubt that it will pass the bill.
However, what we in the “left” need to understand is that what can be done to one unpopular group of people can be done to another, including us. Perhaps it is time to forge new alliances and fight these laws together, in thetrue spirit of solidarity.
[David Vakalis is completing his Masters thesis in Criminology on the 2008 SA “anti-bikie” laws.]