In June 2012, 21-year-old Charlie Forster was found guilty of associating with criminals, and sentenced to 12 months in jail. Forster had prior convictions, but no links with organised crime or gang violence. He merely made the mistake of associating with other convicted offenders: his housemate and some long-time friends. The offence was punishable by up to three years’ imprisonment under New South Wales’ “consorting” laws, after changes in February 2012 that then-Premier Barry O’Farrell declared would “make it harder for criminal gangs to engage in planned criminal activity”.
Earlier this month, Forster took his case to the High Court, the latest in a series of challenges to laws targeting criminal organisations and, particularly, outlaw motorcycle (or “bikie”) gangs. State and Territory governments across the country have enacted increasingly draconian measures directed at this perceived threat. Organised crime is a significant problem. It costs the Australian economy an estimated $15 billion every year. But these laws seriously erode fundamental rights and freedoms, such as equality before the law, due process, freedom of movement, and freedom of association.
In several cases, successful legal challenges have been brought against these laws. Australian courts have a number of tools with which to protect human rights from legislative overreach: statutory interpretation, the separation of powers, implied constitutional freedoms. These tools are inherently limited, however. If we take seriously this threat to human rights and civil liberties, the strongest shield is public debate and political action.
Every State and Territory (bar the Australian Capital Territory) has enacted anti-gang legislation in one form or another. Four broad approaches emerge from these schemes: control orders, consorting laws, mandatory sentencing, and changes to the process of justice.
Control orders permit serious interference with a person’s liberty if found to be a member of a “declared organisation”. Under South Australia’s scheme, to be declared, an organisation must be for criminal purposes and “a risk to public safety”. Based solely on membership, a person can then be prohibited from associating with particular people, going to certain places, or even using or possessing a phone. There is no requirement that they have committed any crime, or that the order would be likely to prevent criminal conduct. If they knowingly breach the order, however, they can be imprisoned for up to five years.
Consorting laws criminalise association with particular classes of people. They intrude starkly on freedom of association, effectively placing the onus on the individual to justify his association with particular people, rather than the government to prove that such association is wrongful. The New South Wales scheme that caught Charlie Forster targets individuals who “habitually consort” with people convicted of an indictable offence. Indictable offences include murder and rape, but also much less serious crimes like stealing and assault. “Habitually consort” is defined loosely. It does not require face-to-face contact. It does not require any unlawful purpose. Speaking online to two convicted offenders, on two occasions, is sufficient. If the consorting continues after a warning from police, it is punishable by up to three years in jail, unless the defendant can demonstrate that they fall into one of a small number of specified exceptions.
Both Queensland and Western Australia require mandatory minimum sentences for offences linked to organised crime. Queensland’s regime is scarily broad. It requires a mandatory minimum sentence of 15 years for certain offences, including assault or dangerous operation of a motor vehicle, committed while “participating” in the affairs of an “association”. An “association” includes anycorporation, informal association, or group of three or more people. The onus then shifts to the defendant to prove that the “association” does not exist for the purpose of engaging in these kinds of offences. This system corrodes several fundamental aspects of criminal justice. First, it prevents the judge from dealing with a case on its merits. The punishment cannot be proportionate to the crime, if a particular sentence is required irrespective of the seriousness of the conduct. Second, it undermines the presumption of innocence, by relieving the prosecution of the burden of proving that the association exists for criminal purposes.
Changes to the process of justice
These changes include a range of moves to weaken traditional protections enjoyed by defendants, for the purpose of facilitating the conviction of gang members. New South Wales recently weakened the right to remain silent. Juries are permitted to draw “unfavourable inferences” from a suspect’s failure to mention a fact during questioning if it is then raised in her defence. Then-Police Minister Mike Gallacher argued that this change would prevent the right to silence from being “exploited by criminals”. In South Australia, in certain court proceedings, the Police Commissioner may prevent any information provided to the court from being disclosed, even to the applicant challenging the order. This is inconsistent with the opportunities both to know the opposing case and to present a full case in court, which are essential requirements of natural justice.
Anti-gang legislation casts a long shadow across the freedoms constitutive of Australian life. This shadow stretches further because many of these schemes are not limited, in their terms, to bikie gangs. The Hells Angels and the Bandidos might be good targets for politicians trying to whip up concern about law and order. After all, who is willing to stand up for the rights of bikies? But the breadth of this legislation means that virtually anyone could be caught up. People like Charlie Forster have faced prosecution and conviction for consorting in New South Wales. Already, recreational motorcyclists in Queensland have been asked to register their rides with police beforehand to “prevent misunderstandings”.
So what protection does our legal system provide against these legislative depredations? What tools are available to lawyers and judges to challenge these laws and limit their interference with human rights?
First, when reading legislation, judges presume that Parliament does not intend to interfere with fundamental rights and freedoms, unless it makes the contrary intention very clear. This is known as the “principle of legality”. It requires Parliament to own up to, and face the political consequences of, any attempt to diminish those rights. In K-Generation Pty Ltd v Liquor Licensing Court, several members of the High Court used this principle to limit the scope of the South Australian Police Commissioner’s power (discussed above) to block disclosure of information in court. The ultimate decision whether to disclose information was held to remain with the court, in an attempt to preserve central elements of the legal process, such as openness and fairness.
The principle of legality, however, is merely a presumption. This limits its power as a tool to protect human rights. If Parliament makes clear that it intends to permit interference with rights and freedoms, the presumption is redundant.
Second, the Constitution reserves the exercise of judicial power to the judiciary, and limits legislative interference with this task. It establishes an Australian court system distinct from the legislature and executive (government ministers), giving rise to the doctrine of the separation of powers. To this end, courts cannot be deprived of their defining characteristics as courts, such as independence and fairness.
Where the principle of legality is fragile, the separation of powers is more robust. In South Australia v Totani, the challenged control order scheme was clearly intended to permit significant intrusion on individual liberty. That was the central purpose of the scheme. But it effectively required the court to act as a rubber stamp for the government’s decision to impose a control order, without any independent adjudication. The scheme was constitutionally invalid, because it grossly undermined the court’s independence.
Decisions like Totani have helped maintain judicial oversight of control orders. Under the current South Australian system, a court must determine independently whether to declare that an organisation exists for criminal purposes, and then again whether a control order is justified. An order cannot be imposed merely at the whim of the executive. The separation of powers provides little substantive protection, however, against interference with human rights. Whether a control order is effectively made by a Minister or a judge, its consequences should concern human rights advocates.
Third, the Constitution guarantees freedom of political communication. This freedom is necessary for the system of representative government it establishes. To be able to make an informed choice in elections, citizens must be free to communicate about government.
The implied freedom forms the basis of Charlie Forster’s current challenge to the New South Wales consorting laws. The laws quite clearly burden freedom of communication. To have them struck down, however, Forster will need to overcome several hurdles. First, the freedom only extends to political communication. By prohibiting Forster from seeing or speaking to his friends, do the laws burden his “political communication”? Second, the freedom is not absolute. Parliament may curtail political communication, provided it is pursuing a legitimate, democratic purpose in a reasonable way. These limitations cast some doubt on the strength of the implied freedom as a shield for human rights. Whatever the decision, Forster’s case – Tajjour v New South Wales – will shed important light on this question.
Last year, the Speaker of the South Australian Parliament, Michael Atkinson, asserted that Australia required “extraordinary laws to deal with an extraordinary criminal formation”: the bikie gang. As the above analysis shows, this is not empty rhetoric. Across the Australian federation, anti-gang laws have encroached on fundamental rights and freedoms. Lawyers and judges have several tools with which to resist these intrusions, but their limitations indicate that any more comprehensive protection must come from political debate and legislative reform.
Jack Maxwell is a law student at the University of Melbourne. He previously completed an honours degree in philosophy.