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
(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’[]
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About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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John Quiggin
John Quiggin
14 years ago

Thanks for this Ken. I’ve been concerned about these aspects of the law.

Unfortunately the case for concern isn’t helped by pieces like this one from Richard Ackland which surrounds the argument with the kind of sneers typically directed against “moral panics”, and which is implicitly opposed to any restriction on “freedom of association” (I don’t think he uses either term, but they are standard in the genre).

Even if the level of criminality among bikie gangs hasn’t changed much, the extent to which they operate as organised enterprises, with fortified headquarters and so on seems to have increased. That implies to me, a need for a legislative capacity to deal with continuing criminal organisations that isn’t easily satisfied by common law. But, as you say, that shouldn’t mean the removal of protections against misconduct by police and prosecutors.

I don’t know much about either but I’d be interested in a comparison with the Consorting Acts that were used to break up gangs in the 1920s, and also with the (civil) RICO legislation in the US.

14 years ago

I think, iirc, the point of RICO laws is that relatively minor offences can be charged as ‘racketeering’ instead of eg possession of a firearm, with much bigger penalties.

Joshua Gans
14 years ago

Strangely, the SA, NSW and NT anti-bikie laws have generated almost no debate in either the blogosphere or mainstream media.

There was actually plenty of discussion on ABC local radio in Sydney (if that meets your defnition of MSM). The NSW AG had to come on and defend the legislation in one hard interview, and sounded like a complete ass. How I would love to vote them out if there was a decent alternative.

Jack Strocchi
Jack Strocchi
14 years ago

Ken Parish says:

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.

The reason for that is that there is a common factor, namely the emergence of ethnic sectarian elements in both terrorist and out-law motorcycle gangs. Whats happening is that the old Anglo bikie are kind of growing old and dying out, ever notice how many grey beards and pot-bellies they sport? Younger Bikie gangs are turning into fronts for ethnic gangstas. The SMH for once mentions the unmentionable:

AN ANCIENT religious enmity is at the centre of a new conflict in the Sydney bikie scene, with a new gang comprised mainly of Sunni Muslims warring with a group of bikies with a Shiite Muslim background.

The president of Notorious is a Lebanese-Australian with a long-standing association with a bikie from a colourful Sydney Sunni Lebanese family. The two are among Sydney’s original “Nike” bikies – sporting white sneakers, fashionable T-shirts and clean-shaven instead of the traditional boots, dirty vests and bushy beards – and both are from Sunni families from Sydney’s west.

This problem seems to be getting worse, not better. SO authorities are sensibly trying to nip it in the bud. Better give up a little bit of liberty now than alot later.

Ken Parish says:

From my observations at least, there is little sign that bikie gangs are more prevalent or violent than in the past.

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.

Lets just do nothing like the Canadians, those lovely liberal people kind of like the Americans but without that nasty law and order dog whistle. They are always very precious about their civil rights. It took about 150 murders between mostly ethnic bikie gangs before they came to their senses.

Or the super-duper liberal Scandinavians who likewise have an ethnic bikie problem on their hands.

Lasse Wierup, a crime reporter at Sweden’s Dagens Nyheter newspaper, says that Swedish biker gangs have lost ground in recent years, often to competition from “immigrant gangs” from suburban projects.

Sweden’s justice minister, Beatrice Ask, recently said there was a need to “react very forcefully” to the threat, while her Danish counterpart, Brian Mikkelsen, announced “extraordinary steps,” including doubling jail sentences for gang-related offenses.

Whats missing from the media-academia liberal view is a grip on the reality of most suburban Australians. Alot of money tied up in real estate and 1.6 trophy kids. Also, so many Australians travel. Not wanting to risk “relaxed and comfortable” by an experiment with the interesting life led by foreigners in their “vibrant” urbs.

More generally the public long ago turned off on the subject of more rights for criminals and deviants. If civil rights liberals could for once stop playing their mournful violin solos over the treatment of scoundrels like Hicks then they might notice the changed mood on the street.

Peter Kemp
Peter Kemp
14 years ago

From Ken’s link
Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police[2008] HCA 4

(Kirby at 50, 51 etc, in dissent)

In deciding these questions, this Court is called upon, once again, to consider the ambit of the constitutional principle which it established in Kable v Director of Public Prosecutions (NSW)[35]. That principle[36]:

forbids attempts of State Parliaments to impose on courts, notably Supreme Courts, functions that would oblige them to act in relation to a person in a manner which is inconsistent with traditional judicial process[37]. It prevents attempts to impose on such courts proceedings [not] otherwise known to the law, that is, those not partaking of the nature of legal proceedings[38]. It proscribes parliamentary endeavours to compromise the institutional impartiality of a State Supreme Court[39]. It forbids the conferral upon State courts of functions repugnant to judicial process[40].

Experience teaches that governments and parliaments in Australia occasionally attempt to spend the reputational currency of the independent courts in the pursuit of objectives which legislators deem to be popular[41]. They sometimes seek to cloak their decisions in the neutral colors of judicial action[42]. Novel arrangements are then introduced into the law that impinge on the judicial process. When challenged, such arrangements should be the subject of strict scrutiny.

Hear hear, but Im not holding my breath for the HCA to apply the Kable v DPP principles against the NSW government.

What I find particularly disturbing is in the NSW legislation:

(3) In considering whether or not there are sufficient grounds to make the control order in relation to the person, the Court is to take into account:
(a) the affidavit from the Commissioner, or affidavits from one or more other senior police officers, that verified the contents of the application for the interim control order concerned, and
(b) the affidavit provided by the person with the notice of objection referred to in section 16, and
(c) any other information provided by the Commissioner or person to whom the order relates at the hearing.

s 20 The person to whom the control order relates may appear at the hearing of the application and make submissions in relation to the application Cripes, for a moment I thought I was in a middle ages Star Chamber time warp, but hey no the legislation contemplates a control order without the accused being present:

s19(4) The control order may be made whether or not the person concerned is present at the hearing of the application.

Trial in absentianow thats procedural fairness (not)
All that guff about affidavits suggests to me that the right of cross examination by an accused is absent. This appears to be worse than DOCS casesat least there is a right of cross examination in those proceedings, but damnation,I forgot: you cant see the intellegence report cos that would identify the source and thats public interest indemnity, the defence might find out its a load of cobblers, and that wouldnt do either for DOCs matters or these!

So, the Commissioner can write down all his secret reports from Police Intelligence (I submit from time to time a contradiction in terms, sorry I digress) on a piece of paper (affidavit)and present it as evidence for the annointed ones to contemplate for proscribing an organisation or issuing a control order. Thats hearsay evidence btw, just like the admissability of hearsay evidence in the Children and Young Persons Care & Protection Act proceedings in NSW.

Uh oh, I hadn’t read s13 (1) The rules of evidence do not apply to the hearing of an application for a declaration under this Part. Worse than I thought.

Summary: Prima facie its much worse than Star Chambers. (I just hope that the Department of Community Services doesnt get any funny ideas about wanting this sort of power and presenting hearsay evidence in secret.)

Kiss goodbye to transparency, procedural fairness, the Evidence Act etc etc and JUSTICE if this abominable legislation is allowed to go uncorrected by the HCA.

Peter Kemp
Peter Kemp
14 years ago

Let the mad bikies kill each other but charge them under the respective criminal legislation. If they can’t be charged it’s a question of police competence, not that the existing legislation is deficient. As I read somewhere, paraphrasing, if they thumb their noses at the law in relation to killing each other, what are the odds of them obeying laws which say they can’t sit down and have a beer together?

And what of the implied rights of political communication per Theophanous v Herald Weekly Times and Lange v ABC etc (Granted it’s a “shield” not a “sword”) If bikies get together to discuss this legislation will they not have this right of association and communication at least on those occasions? What if they discuss politics all the time, and can prove it?

Unlike Grollo and the telephone tapping warrant cases held not to be judicial functions (and a sinecure for the avalanche it seems of retired judges)there can be no doubt that a control order in the NSW regime is a judicial function but I would have grave doubts that a Judge annointed or sacked on the whim of the AG for the purposes of the legislation (let alone implied compliance to pressure from the AG to “go with the flow” or face the sack) is constitutional.

14 years ago

I would expect that in the rough world of rough justice, roughnecks are likely to be the best adapted to survive. Maybe a little tracing of the family history back to Lebanon might give some indication of the sort of conditions these guys are built to handle. The new laws merely guarantee that a slightly larger proportion of the drug money takings goes into bribery than it did before. The average surburbanite is less safe under these laws than they were before, but don’t take my word for it, study R J Rummel’s work.

I feel somewhat insulted to be told that when a man murders another man, slowly and deliberately, in one of the most closely monitored buildings in the country, with multiple witnesses, many security guards on hand, and video cameras from every conceivable angle; when the names of all parties concerned were checked and documented on various flight lists and none of those concerned made the slightest attempt to disguise their actions or use any form of stealth; I’m told that our laws as they stand are unable to deal with this situation and that we need new police powers to catch these guys. Fair enough that I’ve suffered many insults to my intelligence over the years (some of them from myself), but it gets beyond a joke when educated people start taking this logic seriously (or pretend to, for the public image).

If civil rights liberals could for once stop playing their mournful violin solos over the treatment of scoundrels like Hicks then they might notice the changed mood on the street.

The changing mood on the street is the scariest part of all this.

How I would love to vote them out if there was a decent alternative.

May I suggest the consideration of indecent alternatives, along the principles of “least worst”. May I also point out the importance of the upper house as a house of review (both at the state and federal level) and the benefit of minor parties in being able to stubbornly blockade stupid laws.

By the way, on the off chance that there are people round here in some way curious about the murder rate and what causes it, I’ll point out that the per-capita murder rate in Australia showed a general trend of steady decline until it reached a minima somewhere round about 1953 and showed a general trend of steady increase thereafter. Might be a complete coincidence that in 1953 diacetylmorphine became a prohibited substance, thus opening the door to undreamed of profits for drug dealers and the gangs that they require to operate their business. Yet another insult to my intelligence is being told that it is necessary that we have taxpaid soldiers guarding poppy fields in Afghanistan because somehow this is of benefit to the local peasants and they will appreciate our efforts (fortunately no one even pretends to believe this, so we can still have a good laugh, ha ha).

Paul Frijters
14 years ago

Hi Ken,

whilst being in general agreement with the sentiments you bring forward, I have a minor gripe about the murder rates. My understanding was always that murder rates have declined in the last 20 years or so, even below previous levels. The latest evidence I could dig up was

which indeed says in its abstract, when speaking about 2006-2007 ‘Australia wide, 260 incidents of homicide occurred in the year, taking 266 victims and involving 296 offenders. This was a decrease of 23 incidents and 45 victims from the previous year and is consistent with a significant long-range trend toward fewer incidents both per capita and absolutely since inception of the NHMP. ‘

The actual report shows a continuous, though not spectacular, decline in homicide rates since 1989.


14 years ago

The murder minima in Australia happened before, during and after the WWII years and got down to a fraction under 1 victim per year per 100k of population (why they measure in such strange units is beyond me, any other scientist or engineer would use parts-per-million, but I digress). This translates to around 200 victims per year taking the present Australian population in round figures as 20 million. The high peaks around the same time were about 1.4 v/y/100k translating to 280 victims per year at today’s population.

Thus, the 266 value would be on the high side compared with our historic low period and most recent years have been above that. The years around 1990 were probably the highest murder rate we have seen for 100 years so well done to whoever managed to get it to start going down again, but having a downward trend from the highest point probably isn’t exactly an awesome achievement. I dare say that the recent recession won’t make things any easier.

There’s some long term graphs in “Trends and Issues #61”

Paul Frijters
14 years ago

hi Tel,

fair enough though the difference between 200 per year and 266 this year seems rather low to me.
For the record, it is indeed Ken’s original post I broadly agree with.