south australia continues to push the presumption of guilt

Following on from the recent bikie-gang violence at Sydney airport, there has been a chorus of praise for South Australia’s abhorrent anti-association laws (summarised here at Larvatus Prodeo, who rightly point out the idiocy of presuming guilt based on a person’s mode of transportation, but overlook the fact that in fact the SA laws are not limited to bikie gangs).

Despite the fact that (a) the laws have nothing to do with bikies per se and can be applied to virtually any organisation in an unreviewable and arbitrary manner and (b) the fact that there is no evidence so far that they actually work at all, and indeed evidence that laws like this don’t work, it seems the South Australian government now well and truly has the bit between its teeth.

Today the SA Police Commissioner has indicated that there are more laws on the way which assume guilt and require the accused witch and/or bikie to prove his or her innocence. It sounds like these ones will be based on prior convictions, whereby a person who has “unexplained” assets and has previously been convicted of a criminal offence will be liable to have those assets seized unless they can prove how they came by them.

You need to look at seizing their assets; we’re looking at new laws, one of them is about unexplained wealth, where you don’t have to prove the connection with committing crime, where you’ve got somebody with a criminal history and they have a certain amount of assets and no known income,

Commissioner Mal Hyde tells us.  He goes on to explain that:

…it should be up to them to show that it has been legitimately acquired and, if not, then it should be able to be seized, so that’s one of the new pieces of legislation being considered

Now, based on Mal’s offhand remarks, I’m guessing that Magna Carta and the Universal Declaration of Human Rights aren’t part of the SA Police basic training program, but here are some tips, Mal:

• Article 17 of the Universal Declaration states that “(1) Everyone has the right to own property alone as well as in association with others” and “(2) No one shall be arbitrarily deprived of his property.”  If you are wondering, Mal, the Universal Declaration is an international document setting out the commonly agreed basic rights to which all humans are entitled.  For the avoidance of doubt, people who ride motorbikes, criminals, and Commissioners of Police are all examples of “humans”.
• Magna Carta, Mal, although of mostly symbolic relevance today in that it underpins the common law and many of the basic premises of liberal democracy, clearly pointed out in its 1297 iteration that it’s not ok for the police to roll around seizing stuff from people they don’t like the looks of: “No constable or other bailiff of ours shall take the corn or other chattels of any one except he straightway give money for them, or can be allowed a respite in that regard by the will of the seller. “
• Magna Carta also pointed out a few home truths about the problems which arise when arbitrary executive decisions replace due process: “No bailiff, on his own simple assertion, shall henceforth any one to his law, without producing faithful witnesses in evidence. “
• And of course, Magna Carta 1297 (did I mention that it is “widely regarded as one of the most important documents in the history of democracy” according to the UK National Archives, Mal?) stated more fundamentally that “NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs…”

So, to summarize, because we don’t like organised crime (and despite what various members of the SA Government would say in light of the foregoing, I don’t like it either), we propose to abandon wholesale:

• the presumption of innocence (again);
• the notion that no-one will be deprived of property without due process of law;
• the crazy idea that the state actually prove that someone acquired something illegally before it is taken from them by force of law; and
• the notion that it should not be within the power of law enforcement to arbitrarily seize and retain assets.

This goes along with those things we have already abandoned:

• freedom of association;
• presumption of innocence more generally and the notion that actual evidence is generally required before personal freedoms are interfered with;
• the idea that if rights and freedoms should ever be interfered with by a law, it should be with maximum oversight and to the smallest extent possible to achieve the objective of the law in question.

Greg Barns helpfully summarises the effect of SA’s current anti-association laws as follows:

The new law gives the Attorney-General the right to call an organisation, which could be anything from an informal group of people who meet at the local pub for a weekly drink through to a football club or a business, a declared organisation. The Attorney-General just has to be satisfied that he thinks that members of the organisation associate for the purpose of planning, organising, facilitating or engaging in serious criminal activity-which is basically anything except traffic offences-and that the organisation represents a risk to public safety and order. The Attorney-General can use secret and untested evidence in making that declaration, and his decision can’t be challenged in the courts.

The Commissioner of Police can ask a court to make a Control Order against a person if that person is a member of a declared organisation, or regularly associates with members of the declared organisation. A Control Order may be issued by a court without giving any notice to the person affected and the Order can stop people from even speaking with members of a declared organisation or going anywhere near where members might happen to be. Once again, these Orders can be made on secret evidence that the person affected cannot see.

And if a friend of yours is subject to a Control Order or is a member of a Declared Organisation and you meet with them six times or more in one year you can go to jail for up to five years.

And finally, the icing on the cake. The SA police have the power to make a Public Safety Order if they are satisfied that a person or a group of people pose a serious risk to public safety or security.

Even if a person or a group is gathered somewhere for a protest rally or a strike action, the police can still make a Public Safety Order and have them removed from the area. These Orders can even be made on the spot, verbally, by the police.

I looked at the Act back in early 2008 when it was still a bill.  And of course I’ve mentioned before that this same benevolent SA Government is the one which is spying on random ‘citizens of interest’ for no known reason.

No doubt these new laws will be tailored to address the particular problem with the same level of care and attention to detail as the current SA “bikie” laws, i.e. none.  Although of course, by some strange quirk the legislation will be inapplicable to current and former politicians and high profile business people.