Rough justice for roughnecks: the Phantom theory of justice in Australias state of exception

About 10 days ago all State and Territory Attorneys-General agreed to enact uniform anti-bikie gang laws. The new uniform national regime will be modelled on the Victorian regime which is broader than three very similar laws recently enacted in South Australia and New South Wales and a yet-to-be-enacted bill in the Northern Territory.  The Age reports that ‘attorneys baulked at adopting South Australian laws aimed specifically at bikie gangs and went instead for a broader approach’.

Although the Victorian regime represents a significant extension of existing police powers in numerous ways, it is less extreme in terms of erosion o basic civil liberties than the SA, NSW and NT regimes, which are the main subject of this post.  However, South Australia and New South Wales seem determined to maintain their recently enacted laws, and the NT equally has given no indication that it will do anything other than push ahead with enacting its own version of the SA law.  It appears that the only reason other Attorneys-General opted for the Victorian model is that Victoria itself refused to sign up to the more draconian SA/NSW/NT model.

Strangely, the SA, NSW and NT anti-bikie laws have generated almost no debate in either the blogosphere or mainstream media.  I say strangely because NSW Director of Public Prosecutions Nicholas Cowdery QC recently described them in the following terms:

“very troubling legislation” that could lead to a police state and represent “another giant leap backwards for human rights and the separation of powers – in short, the rule of law”.

Presumably the reason for the lack of public debate about these laws is that there is understandably little or no community sympathy for bikie gangs and their members. Most would no doubt agree with the Phantom of comic book fame that rough justice for roughnecks is the appropriate response for both legislators and police. However, maybe if people understood that these laws can potentially target any group (not just bikie gangs) and its members who police suspect of ‘organised crime’ involvement, they might begin to share Nicholas Cowdery’s view that the laws are dangerously threatening to the rule of law and that eternal vigilance is the price of liberty.

If they also learned the extent to which these laws allow police to prohibit suspect groups and impose drastic restrictions on the freedom of their members without those people having any real opportunity to defend themselves or even know what is alleged against them, at least some would certainly be alarmed, although no doubt most will still complacently think  “it could never happen to me” and dismiss articles like this one as just the rantings of a bleeding heart ratbag.

The NSW law, closely modelled on the 2008 South Australian example, was hastily enacted following a recent homicide where a melee between two bikie gangs in the arrivals hall at Sydney airport allegedly resulted in one bikie being clubbed to death by another with a metal bollard in front of a horrified crowd of onlookers.  The NT Bill was also avowedly drafted as a result of that incident.

All three State laws are clearly modelled on federal anti-terrorism laws passed in 2005 providing for groups engaging in or supporting terrorism to be prohibited, and for individuals to be subjected to ‘preventative detention orders’ and ‘control orders’.  These provisions were used in the cases of ‘Jihad’ Jack Thomas and Mohammed Haneef.  All three current state anti-bikie laws are closely similar regimes whereby a bikie gang (and more generally any group engaging in serious criminal activity or representing a risk to public safety and order ) may be designated a declared organisation and its members then subjected to control orders which may place severe restrictions on their freedom of movement and association.

The South Australian Act also contains a regime for public safety orders prohibiting persons, especially those who are or have been members of a declared organisation or subject to a control order, from being present at any premises or event, or within an area where a senior police officer is satisfied that their presence poses a serious risk to public safety or security.  The NT Bill contains a regime for public safety orders essentially the same as the SA Act, and for good measure adds a regime for fortification removal orders modelled on the Western Australian provisions considered and held valid by the High Court last year in Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police .

Here are some of the features of these laws that especially worry me.  First, the NSW and NT laws designate ‘eligible judges’ to make decisions to prohibit groups as ‘declared organisations’.  That might seem reassuring until you discover that the Attorney-General has the power to hand-pick the list of judges who will perform these functions and delete any judges from that list at whim:

Mr Cowdery says the fact the Attorney-General has the power to declare which “eligible” Supreme Court judge could hear an application to proscribe a gang meant an attorney-general could have “unfettered power to ‘stack’ the hearing of applications for declarations of organisations under the act with judges willing to enforce it”.

The Attorney-General could also “revoke or qualify the authority of a judge to determine applications for declarations if he or she does not perform to the Government’s satisfaction’.

Provisions like this (allowing the A-G to alter a list of approved judges whenever he/she likes) are unprecedented in Australia as far as I know, and may well ultimately be held unconstitutional.

Secondly, all decisions under these Acts (including prohibition of groups and control orders on their members) are protected by extreme legislative ouster clauses which make them effectively almost completely immune from judicial review.  In New South Wales, even a failure to afford basic natural justice cannot be reviewed by the courts for legality.

Thirdly, and perhaps most disturbingly, all three Acts permit (and to an extent require) ‘eligible judges’ hearing applications to prohibit an organisation, and courts hearing applications for control orders, to consider secret criminal intelligence evidence whch must not be disclosed either to the accused suspect or his lawyers.  In all cases the provisions read:

In any proceedings under this Act, the Commissioner, the Court ¹ or the Supreme
Court
(a) must, on the application of the Commissioner of Police, take steps to maintain the confidentiality of information classified by the Commissioner of Police as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives;

Fortunately the High Court recently held (in K-Generation Pty Limited v Liquor Licensing Court ) that a clause like this one does not completely prevent courts from deciding whether evidence really is criminal intelligence information, nor does it necessarily require the court to order absolute non-disclosure.  To compel courts to act in that way would probably be unconstitutional. Almost certainly, however, the default ruling will be that an accused person’s barrister will be allowed access to the secret evidence only if he gives an undertaking not to disclose it to his client.  Given that such evidence will almost always be centrally relevant and probably determinative of the case, barristers will face the invidious choice of either refusing to give such an undertaking and thereby leaving their client completely undefended, or giving the undertaking and thereby lending an appearance of fairness and legitimacy to a process that is likely almost by definition to be a hollow charade of justice.

The common law has always allowed secret criminal intelligence information to be withheld under the doctrine of public interest immunity (once called Crown privilege), and for very good reason.  Allowing organised criminals access to such information might well sabotage police investigations and in some cases result in informants and undercover agents being fitted with concrete boots and sent for a bracing swim in deep waters.  However, the result of a successful police claim to public interest immunity is that the secret intelligence information is completely excluded and cannot be used in evidence at all.  The ‘secret evidence’ provisions of the state anti-bikie gang laws, by contrast, are aimed at allowing police to ‘have their cake and eat it too’.  They get to keep the evidence secret from the suspect while the court still holds it against that person.  Many years ago, former High Court Chief Justice Sir Gerard Brennan commented on the likely effect of similar provisions in AAT legislation if used in this way:

²f an applicant is not given a full opportunity to deal with confidential information adverse to his interests, the probative force of the information must be particularly cogent if that information is to be acted upon. There are notorious risks in failing to hear an opposing view – slender proofs may falsely seem irrefragable, and the scales of justice may falsely seem to be tipped by the weight of insubstantial factors.

Yet such a process is now to be the designated norm of ‘justice’ for groups the police deem beyond the pale.  It might be a situation we should reluctantly accept if satisfied that the objective threat of bikie gangs to civil order is so overwhelming that society itself would be threatened without such a law.  But is that really the case?  Surely at the very least the case has to be made by police and governments.  From my observations at least, there is little sign that bikie gangs are more prevalent or violent than in the past.  The Milperra massacre was 25 years ago and it wasn’t followed either by wholesale social chaos or demands for draconian laws like the ones now being enacted.  The recent Sydney airport fatal melee was just a pale echo of the Milperra massacre.  As far as I can see, bikie gangs mostly only bash, shoot or stab each other, and the customers for the drugs they peddle are consenting adults who would buy them elsewhere if things are made too hot for existing gangs.

It raises the interesting question of why such draconian and liberty-threatening laws are being enacted now? Perhaps this tendency can best be explained by reference to Giorgio Agambens notion of the state of exception:

Because the sovereign power of the president is essentially grounded in the emergency linked to a state of war, over the course of the twentieth century the metaphor of war becomes an integral part of the presidential political vocabulary whenever decisions considered to be of vital importance are being imposed. Thus, in 1933, Franklin D. Roosevelt was able to assume extraordinary powers to cope with the Great Depression by presenting his actions as those of a commander during a military campaign

Agamben defined the state of exception as a situation in which the emergency becomes the rule, and the very distinction between peace and war (and between foreign and civil war) becomes impossible.   September 11 has made state of exception rhetoric and solutions very popular, and not only in terrorism situations.  Another obvious recent example of this tendency of governments to impose repressive and extreme regimes under ’emergency’ rhetorical cover was the Howard governments labelling of the situation detailed in the NT governments Little Children Are Sacred report as an emergency justifying its military-supported Northern Territory Emergency Response.  It was labelled an emergency notwithstanding that every element of the situation had been well known and largely ignored for at least 30 years despite numerous previous reports to similar effect, and that most elements of that situation are manifestly long-term problems not amenable to solution by short-term emergency measures.

1. or ‘eligible judge’[↩]
2. I[↩]