Legal and Non-Legal Responses (HSC SSCE Legal Studies): Revision Notes

Legal and Non-Legal Responses

Introduction to responses

The issue of Outlaw Motorcycle Gangs (OMCGs) is addressed differently across Australian jurisdictions. Each state and territory has chosen its own approach to managing OMCG-related criminal activity. Both legal and non-legal responses have been developed, with varying degrees of success and controversy. The legal responses involve legislative changes and law enforcement operations, while non-legal responses include actions by interest groups, the media, and the general public. Understanding these different approaches helps evaluate their effectiveness in addressing organised crime whilst protecting fundamental civil liberties.

Legal responses

Australian jurisdictions have developed three main categories of legal responses to address the challenge posed by OMCGs. These approaches differ in scope, intrusiveness, and constitutional implications.

Three categories of legal responses

The three types of legal responses employed against OMCGs are:

First, laws targeting individual crimes enable prosecution of specific criminal acts such as money laundering, drug trafficking, assault, or murder. This traditional approach prosecutes individual OMCG members for discrete criminal offences under standard criminal law provisions.

Second, establishing police task forces involves creating specialised law enforcement agencies with enhanced investigative powers. These task forces receive additional authority to collect intelligence, conduct surveillance, and coordinate operations targeting OMCG activities.

Third, laws criminalising organisations represent the most controversial approach. These laws aim to criminalise the motorcycle clubs themselves or make membership in them an offence, rather than simply prosecuting individual criminal acts.

Laws targeting individual crimes

All Australian states and territories maintain statutory offences enabling prosecution of OMCG members for criminal acts. Standard criminal laws covering assault, murder, firearms offences, and drug dealing apply equally to OMCG members. For example, prosecutions arising from violent incidents like the Sydney Airport brawl would proceed under these conventional criminal statutes.

Consequently, Australian jurisdictions have shifted focus toward criminalising the types of activities in which OMCGs engage. Legislative frameworks now target their businesses and profits through several mechanisms:

Money laundering offences make it illegal to conceal or disguise the origins of illegally obtained funds. These provisions help prosecutors trace criminal proceeds through legitimate businesses.

Trafficking and smuggling offences specifically target the movement of illegal drugs, weapons, or other contraband across borders or between jurisdictions.

Financial transaction reporting orders require businesses and individuals to report certain financial transactions to authorities, making it harder for criminal organisations to hide their profits.

Proceeds of crime legislation aims to deprive criminals of benefits derived from their offences, prevent reinvestment of criminal proceeds into further illegal activities, and enable law enforcement to trace those proceeds. The Proceeds of Crime Act 2002 (Cth) exemplifies this approach at the federal level.

Task forces and intelligence gathering

Enhancing law enforcement powers to investigate, disrupt, and prevent organised crime represents another significant response to OMCG-related problems. Special law enforcement agencies, known as task forces, receive establishment specifically for studying and addressing particular criminal problems.

These specialised agencies receive powers that extend beyond standard police authority, including:

Intercepting telecommunications allows monitoring of phone calls, text messages, and other electronic communications used by suspected criminals to plan or coordinate illegal activities.

Using surveillance devices permits installing cameras, listening devices, or tracking equipment to monitor suspects' movements and activities.

Search warrants with expanded scope enable searching properties and seizing evidence related to organised crime activities.

Special coercive powers grant authority normally reserved for courts, such as compelling witnesses to give evidence or produce documents. These powers can force individuals to testify even if they would normally exercise their right to silence.

Inter-agency intelligence sharing facilitates cooperation across state, national, and international jurisdictions, allowing different law enforcement bodies to coordinate their efforts more effectively.

National and state task forces

In $2006$, the Australian Crime Commission responded to increasing reports of OMCG activity by designating OMCGs as a 'high-risk crime group'. This led to establishment of the OMCG National Intelligence Task Force to investigate membership and activities of OMCGs and develop national policies for addressing identified issues. In $2008$, this was replaced by the Serious and Organised Crime National Intelligence Task Force, which maintains strong focus on OMCGs whilst also addressing other organised crime areas. This body works with agencies across different Australian jurisdictions and encourages collaboration.

Beyond federal initiatives, numerous states have established operations and task forces targeting organised crime:

In March $2009$, NSW Police established Strike Force Raptor to target illegal OMCG activities. By the end of April, more than $50$ arrests had been made with $120$ charges laid, and substantial quantities of amphetamines and firearms seized.

Operation Ranmore commenced in New South Wales in $2007$ as part of an OMCG crackdown, enabling police to raid clubhouses of the Finks, Rebels, Lone Wolf, and Fourth Reich to obtain evidence for laying charges.

Following a series of drive-by shootings in Sydney's southwest by the Hells Angels and Nomads OMCGs in $2012$, law enforcement conducted simultaneous raids on $18$ different properties across the Sydney metropolitan area. This coordinated action involved police from Operation Kinnarra, Strike Force Raptor, other State Crime Command squads, Metropolitan Region Commands, the Riot Squad, Police Dog Unit, and Rescue and Bomb Disposal Unit.

In Queensland, OMCG Task Force Hydra was established to target OMCGs and resulted in numerous charges for criminal activities.

Since September $2014$, a national anti-bikie gang task force called Operation Morpheus has operated with officers from all state and territory police agencies, plus the Australian Crime Commission, Australian Federal Police, and other bodies.

Laws targeting organisations and membership

Introducing legislation that targets and criminalises motorcycle clubs themselves, rather than individual crimes, represents perhaps the most controversial approach to the OMCG issue. The most contentious version involves criminalising individual membership of clubs or association with them.

Civil liberties groups argue that criminalising people's association with illegal groups creates unnecessary police powers and may initiate cycles of police targeting other protest groups, such as environmentalist groups engaging in illegal activities like trespass.

This approach faces fundamental legal difficulties, with Australian jurisdictions addressing issues in different ways. The central question involves the method and process by which a group becomes defined as criminal, and what level of individual involvement becomes criminalised. For example, would four teenagers entering a store to shoplift a DVD constitute a 'criminal organisation'? Would all four be equally guilty? Who should make this determination and what crimes should be covered?

Four key issues in defining criminal organisations

Many commentators acknowledge risks this approach poses to fundamental and accepted interpretations of criminal law, especially to individual civil rights. Serious questions raised include:

• Should an organisation be criminalised if its members only appear to be potential offenders, rather than actually committing or intending to commit an offence?
• Should government officials or police have power to declare an organisation criminal, or should this only be determined by a court? Should the organisation's members be given an opportunity to respond?
• Should a person be criminally liable for participating in such an organisation when they have not committed any other offence?
• Should a person be criminally liable for simply associating with a member of such an organisation?

Challenges to fundamental legal principles

Two central legal concepts face challenges from this approach:

The rule of law (introduced in Chapter $1$) embodies the principle that nobody is above the law. This can be seen in the requirement that governmental authority must be used in line with written, publicly disclosed laws, for which established procedural steps (due process) have been taken in adoption and enforcement. The danger of criminalising organisations, especially where police or government officials can make determinations without court oversight, is that law may be used to target individuals or individual associations rather than being applied equally to all.

The second problem affects a person's fundamental freedom to associate by introducing laws of guilt by association – under which a person may be found criminally liable simply by associating with another person who commits a crime, even though that person has committed no crime themselves.

Three Australian states have recently attempted to enact laws incorporating elements of these approaches. In Queensland, the first bill failed to pass but a second bill succeeded in $2009$. In South Australia and New South Wales, bills were passed and enacted into law.

Queensland approach

In $2007$, the Queensland State Opposition introduced the Criminal Code (Organised Criminal Groups) Amendment Bill 2007 (Qld) into state parliament. The bill's purpose was to extend existing laws beyond parties to offences and make it an offence to 'participate' as a member of an organised criminal group.

Key provisions included:

• Defining an organised criminal group as three or more people with an 'objective' of committing a serious crime for material benefit or committing a serious violent offence
• Imposing penalties of up to five years' imprisonment for participation as a member of that organisation, if the person knew it was a criminal organisation and their participation contributed to criminal activity occurrence
• Defining 'member' to include anyone identifying themselves as such, for example by wearing the club's insignia, patches, or colours

The bill did not receive sufficient support to pass. However, following Anthony Zervas's violent killing at Sydney Airport in $2009$, the Queensland Government announced preparation of new laws enabling police to apply to the Supreme Court for orders prohibiting identified members of outlaw motorcycle gangs from associating with one another. This was subsequently enacted in the Criminal Organisation Act 2009 (Qld). In June $2012$, Queensland police applied to the Supreme Court under this Act to ban members of the Finks club from associating with each other.

By $2013$, the Queensland Government had introduced three new acts designed to curb bikie power and criminal activity: the Vicious Lawless Association Disestablishment Act 2013 (Qld), the Tattoo Parlours Act 2013 (Qld), and the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld). New tougher penalties included fines of up to $1000 per day, mandatory prison sentences, and stricter checks on tattoo parlour ownership.

South Australian approach

Following numerous violent incidents involving OMCGs, including the death of a gang member at an Adelaide nightclub, the South Australian Government enacted the Serious and Organised Crime (Control) Act 2008 (SA). The SA laws aimed to disrupt OMCG and other criminal organisation activities and protect the public from their violence. By $2015$, the Statutes Amendment (Serious and Organised Crime) Act 2015 (SA) was in force.

The Act banned wearing gang logos in bars and pubs and effectively banned clubs as legal entities. It gave unprecedented new powers to government, allowing it to declare an organisation a criminal organisation and allowing police officers to make control orders preventing individual members from doing specified acts or being in specified places. The laws resemble special terrorism laws introduced by the federal government following the $11$ September terrorist attacks. For example, the Anti-Terrorism Act (No. 2) 2005 (Cth) introduced two new Divisions into the Criminal Code 1995 (Cth) allowing control orders and preventive detention orders against individuals.

The SA Act is not restricted to OMCGs but can apply to any declared organisation. A 'declared organisation' is one whose members associate for the purpose of organising or engaging in serious criminal activity, and that represents a risk to public safety and order, according to the SA Attorney-General.

Critical provisions of the SA Act

Legal challenges to the SA Act

The Act attracted substantial criticism for its severe restrictions and lack of adherence to long-standing principles of criminal law. The Law Society of South Australia argued the legislation went too far, stating it 'undermines the presumption of innocence; restricts or removes the right to silence', and does not allow courts to 'challenge possibly biased, unfounded, or unreasonable decisions of the Attorney-General or Commissioner of Police'. Individuals may have no right to know the reasons for an order or to challenge the truth or reliability of those reasons.

New South Wales approach

In New South Wales, relevant legislation has been amended many times since the $1984$ Milperra Massacre. In $2005$, after several gang-related incidents including the December $2005$ Cronulla riots, the New South Wales Government introduced the Crimes Legislation Amendment (Gangs) Act 2006 (NSW). This Act introduced reforms specifically aimed at organised crime and OMCGs.

Key features included:

• Increased penalties for activities connected to organised crime
• Increased police powers in applying for search and seizure warrants, including power to remove fortifications or surveillance cameras designed to stop police entry, powers to pacify guard dogs, and even to block drains (to prevent flushing drugs down sinks or toilets)
• New offences for involving another person in performing or helping in criminal activity
• New offences for knowingly taking part in a criminal organisation. The definition of a criminal organisation was almost identical to the Queensland bill. Significantly, the NSW Act did not include an offence for simply being a member of the organisation.

Response to the Sydney Airport incident

As an immediate response to the $2009$ killing of Anthony Zervas at Sydney Airport, NSW Premier Nathan Rees introduced new laws said to be even stricter than those in South Australia. The Crimes (Criminal Organisations Control) Act 2009 (NSW), which more specifically dealt with OMCGs, was quickly passed through parliament.

Important changes included:

• Police can make an application to the Supreme Court to have an organisation declared criminal. This provision for court oversight stands in stark contrast to the SA law, where the Attorney-General makes the declaration.

• Membership of a declared organisation is an offence, as is 'association' between members of a declared organisation who are under control orders. 'Association' includes either being in company with someone or communicating with someone by any means. Declared gang members who continue to associate can face two years' imprisonment for a first offence or five years for a second.

• The Act contains new offences for recruiting members of a declared organisation, said to prevent establishment of younger 'feeder groups' for the organisations.

• It authorises new search warrants to make it easier for police to seize items connected to criminal organisations.

Constitutional challenges and reforms

The High Court of Australia handed down a decision in $2011$ that invalidated the Crimes (Criminal Organisations Control) Act 2009 (NSW). The court found the law was contrary to the separation of powers by undermining institutional integrity of the state's Supreme Court (see Wainohu v NSW (2011)). The court also held the law was outside the legislative powers of the NSW Parliament. As the law conferred wide-ranging powers to enforcement authorities within the state and pre-empted decisions that could be made in the Supreme Court, it was criticised as infringing fundamental civil liberties.

The NSW Parliament responded by enacting the Crimes (Criminal Organisations Control) Act 2012 (NSW). This Act is very similar to the $2009$ Act, but makes amendments to overcome constitutional shortcomings. For instance, this new Act requires that if an eligible judge makes a declaration or decision under the Act, this eligible judge must provide reasons for making the declaration.

Additionally, the Crimes Amendment (Consorting and Organised Crime) Act 2012 (NSW) was introduced that increased penalties for those involved in firing a weapon at a dwelling or house as part of an organised criminal activity.

Non-legal responses

Beyond responses from law-makers and law enforcement agencies, numerous other actors have responded to the OMCG issue. These include the general public, the media, politicians, interest groups, and the OMCGs themselves. These non-legal responses often significantly influence the development and implementation of legal responses.

Media and politics

A key aspect of political responses to OMCGs has been how public opinion is shaped by media reports. The media provides wide coverage of violent incidents, including those related to OMCGs, and politicians are usually eager to convince the public they are being 'tough on crime'. This dynamic can be observed in cases like the New South Wales Government's action to strengthen organised crime laws immediately after the Sydney Airport murder.

The media enables public discussion of proposed laws – both advantages and disadvantages – and can significantly influence how legislatures and police deal with issues. Media coverage of OMCG activities can influence public perception and support for proposed laws. Politicians often respond to media-driven public concern by introducing or strengthening legislation, sometimes with limited time for thorough consideration of constitutional or civil liberties implications.

Public demonstrations

Various sectors of the public have voiced opinions on OMCGs and the law's response through demonstrations. These protests have come from both those opposing OMCGs and those concerned about civil liberties implications of anti-OMCG legislation.

In another form of protest, in response to Queensland's Operation Hydra aimed at curbing criminal OMCG activities, several OMCGs met to discuss tactics to fight fines issued to motorcyclists. One tactic was a campaign to fight all fines in court to create backlogs in the system, with the aim of forcing police to reduce fines for traffic infringements.

In July $2015$, motorcyclists around the country held rallies to protest against anti-association laws, demonstrating continuing concern about civil liberties implications of OMCG legislation.

Forming political parties

In one unique response to the OMCG issue, members of the South Australian public who were strongly opposed to the Serious and Organised Crime (Control) Act 2008 (SA) and its implications for civil rights decided to make their voice heard by establishing a new political party, the F.R.E.E. Australia Party.

The party obtained formal political status on $19$ March $2009$ and is open to anyone registered to vote in South Australia. Among its members are motorcyclists concerned about introduction of the Act. Party spokesperson Paul Kuhn said the party opposes the Act but is concerned about several other issues as well: Freedom, Rights, Environment and Education (FREE).

The party ran in the $2010$ and $2014$ South Australian state elections but did not gain significant results. It is not currently registered as a political party, but its Facebook page suggests it plans to contest the $2017$ state election.