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Anti-association laws could be used to jail hundreds of thousands

24 October 2015 94 views No Comment

Despite bipartisan Labor and Liberal Party support, the highly respected president of the Victorian upper house, Bruce Atkinson — a long-serving member of the Liberal Party — voted against the Victorian Criminal Organisations Control Amendment (Unlawful Associations) Bill 2015. Nonetheless, it was passed on Thursday, October 8, in the Legislative Council of Victoria.

So why did this senior Liberal MP stand with Fiona Patten from the Australian Sex Party and members of the Greens to oppose this law?

Atkinson’s position was akin to crossing the floor, but many saw it for what it was: the wisdom of one of Australia’s most successful and truly independent upper house presidents, acting on his conscience rather than his party’s position.

Most states have had anti-consorting laws for a long time, but they’re not the same as these laws that criminalise the act of associating with others. Before being passed, there had been little consultation with the community at large.

If ever Australia lurches strongly to the left or the right, these laws could be used to persecute, shame and incarcerate hundreds of thousands of people simply because of the company they keep.

If Australia falls under the spell of some extreme faction of one of the major parties, these laws are the ones that could be used to detain people on the strength of a ­rumour or simply because someone was seen in the company of another.

These so-called “bikie laws have the potential to backfire on the community worse than any of the laws that saw Hollywood film stars of the 1940s shamed and prosecuted because they were supposed friends of communists, socialists and bohemians.

The stated aim of the new Victorian legislation is “to prohibit individuals associating with individuals convicted of serious criminal offences, for the purpose of preventing the commission of offences.

The bill’s purpose was noted as “appropriately targeted at disrupting the operations of criminal ­networks. It proposes to do this through a novel method of preventing two persons from associating with each other — one of whom must have been convicted of an applicable offence, meaning an offence under the Criminal Organisations Control Act 2012. But the notice is served on the other person, who may not necessarily have committed any offence or done anything wrong.

This legislation is problematic on so many levels.

Like most jurisdictions, Victoria already has laws to prevent the commission of offences, including conspiracy and attempt to pervert the course of justice, which seek to prevent crime before it occurs or before it can be completed.

If the police have enough evidence, why not charge people with these offences?

The Victorian laws require that anti-association notices are issued by a “senior police officer. In the pecking order of state police, as I recall it, a senior sergeant is halfway between a constable and a chief commissioner. When a law provides so much discretion, one would expect that only those in very senior positions, with years of experience, could be allowed to apply for such notices.

Giving the police powers to restrict citizens without any criminal record, then put them at risk of a criminal prosecution is utterly unfair and ignores basic civil liberties.

In addition to this, the only way to appeal is via an internal review. There is no unbiased third party to determine if the “proof of crime prevention is sufficient.

This is a denial of basic procedural fairness.

In NSW, similar laws were introduced in 2012. The NSW Ombudsman, reporting on these laws, found that 7 per cent of consorting warnings were directed at youth (13 to 17-year-olds) while Aborigines were subject to 40 per cent of all consorting provisions. More than half the consorting warnings given to women were to Aboriginal women. According to the 2011 census, Aborigines and Torres Strait Islanders comprise 2.5 per cent of the total NSW population. This shows that these laws can unfairly target disadvantaged groups, rather than achieving anything against senior members of criminal organisations.

These laws will create an industry of recruitment, where those higher up in criminal organisations use young, vulnerable individuals as shields or go-betweens. If caught, it is the junior members, not the ones running the show, who will be imprisoned.

Moreover, the terms of the bill (especially “that the commission of an offence is likely to be prevented) are vague and difficult to quantify. Indeed, even the Police Association of Victoria commented adversely on this vagueness, questioning what evidence would actually be required to prove prevention.

In her second reading speech on the bill, Patten claimed it was dangerously vague in describing what conduct would be prohibited and what conduct would be acceptable.

Patten said “the term associate is defined as meaning in company with or to communicate with by any means, including electronically. She added: “Does it mean to be on the same bus, to be on the same plane, to be in the same pub or to be at the same football oval? What if they are in the same Facebook group? What if they like the same football team on Facebook?

What’s more, the government claims the laws are directed at outlaw motorcycle gangs, without any specific reference to them in the legislation. One would have thought that legislation that was introduced primarily to control one element in society would at least reference them, even if only in the explanatory memorandum.

But the most worrying issue of all is that these laws create an offence of conduct that is otherwise lawful and protected in Victoria’s Charter of Human Rights and Responsibilities Act 2006.

If we want to control bikie gangs, we should legalise drugs. It’s a no-brainer. The extent of the ice “epidemic is talked about ad nauseam and, frankly, is being blown out of all proportion, especially in relation to alcohol-related harms. So if legislators believe ice is largely under the control of bikie gangs, why not take away their revenue stream rather than curtailing the people with whom they drink or play?

Perhaps the most frustrating point of this legislation is its complete lack of logic.

How can we tell people not to talk to convicted criminals or risk being sent to jail? If someone is susceptible to criminal influence, why are we looking to increase that influence by placing them in a jail environment, which is populated entirely by criminals?

This lack of logic isn’t just embarrassing, it’s dangerous.

Griffith University emeritus professor of history and politics Ross Fitzgerald is the author of 38 books, including his memoir ‘My Name is Ross: An Alcoholic’s Journey’, which is available as an e-book, and a talking book from Vision Australia.

The Weekend Australian, October 24-25, 2015, Inquirer p24.

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