a roll of the dice

I just became aware of this piece of legislation, recently introduced into the South Australian Parliament: the Serious Crime (Control) Bill 2007 (SA). You can see the bill here in Rich Text Format or here in PDF.

This legislation is ostensibly aimed at bikie gangs, but it goes a lot further than that, and doesn’t direct itself specifically towards them. In addition, even insofar as it does apply to bikie gangs, it contains some extraordinarily broad incursions into civil liberties with very few restrictions.

The gist of the bill is that it allows the Commissioner of Police to ‘declare’ certain organisations for the purposes of the Act (s 8). Once an organisation is declared, the door is open for some startling consequences. Pursuant to Part 3:

The Court must, on application by the Commissioner, make a control order against a person (the defendant) if the Court is satisfied that the defendant is a member of a declared organisation.

Note the use of the word ‘must’. And note, also, that the finding that the Court must make is nothing to do with the merits of the declaration - it’s simply whether the person in question is a member of an organisation which is a declared organisation.

It Gets Worse

Control orders can include restrictions on who a person may see, where they may go, and (somewhat extraordinarily) what they may own. There do not appear to be any real restrictions on the nature of the orders.

It Gets Much Worse

Perhaps even more extraordinary, a control order can be obtained in respect of someone who is not a member of a declared organisation, but has merely been a member of an organisation in the past, or simply associates with someone who is a member of an organisation:

The Court may, on application by the Commissioner, make a control order against a person (the defendant) if the Court is satisfied that—

(a) the defendant—

(i) has been a member of a declared organisation or engages, or has engaged, in serious criminal activity; and
(ii) regularly associates with members of a declared organisation; or

(b) the defendant engages, or has engaged, in serious criminal activity and regularly associates with other persons who engage, or have engaged, in serious criminal activity, and that the making of the order is appropriate in the circumstances.

And of course, all of this can be done without any warning or any of the notice and opportunity to defend oneself which would typically accompany a criminal trial:

(3) A control order may be issued on an application made without notice to any person.

Et Cetera

Some other features of the bill are powers for the Police Commissioner to ban a person or “class of persons” from a premises or event, and the creation of an offence of associating with a person whilst being reckless as to whether they are a member of a declared organisation. Presumably this last item means that if, for example, a gentleman resembling a bikie comes into your corner shop or restaurant or bar more than a few times in a year then you are guilty of a criminal offence.

Presumably all of this flows from this High Court decision, in which the High Court in their wisdom decided that control orders were constitutional and along the way gave a fairly general endorsement to the concept of laws which seriously interfere with liberty without any actual criminal offence taking place. The timing of this South Australian Bill suggests that the states will now feel free to draft these types of laws in pursuit of whatever ends they see fit (particularly in the absence of meaningful political opposition, as is the case in SA). Let’s hope that the High Court knew what it was doing.