A blameless person could go to jail under the new, catch-all ‘bikie’ legislation now operating in two States. The President of the Law Society of South Australia, John Goldberg, explains how easily the oppressive laws could send an innocent man or woman to jail.
Breaking the law by association
By John Goldberg, President of the Law Society of South Australia
Did you ever see the Tom Cruise movie Minority Report? In that film people were arrested and imprisoned for crimes that they had not yet committed, but might commit in the future.
Well I have a better plot than that, although I must admit that it is even more fanciful.
You are a law abiding citizen. You have not had any criminal convictions and for all of your adult life you have worked as a crash repairer. Three of your cousins are members of a club called the Free Riders. They introduce you to other members of their club and from time to time you repair dents in their motorbikes. As a result of this relationship the Free Riders let you know that you are welcome to attend their members’ only clubroom anytime even though you do not ride a motorbike.
A senior member of the government, let’s call him Mick, receives an application from the Commissioner of Police that the Free Riders be outlawed. The Commissioner sends Mick a secret dossier containing information from a police informant that two of the Free Riders have planned serious criminal activity. The secret information could never be used in a court of law. The informant is a convicted criminal and con man.
After inviting submissions from both the public and the Free Riders (but not letting anyone know about the secret police information), Mick decides that the Free Riders do plan criminal activity and are a risk to public safety and order. He outlaws them without giving any reasons.
You become aware of this but you continue to repair their bikes and you speak to them about bike repairs. Over the next 12 months you also have the following communications with your three cousins in the Free Riders. Cousin number one: you speak to him twice on the phone about his son who is in hospital. Cousin number two: you send him three emails; all relating to a family picnic. Cousin number three: you send him a text message reminding him about your grandmother’s birthday.
You are arrested and charged with associating with members of a declared organisation on six occasions in 12 months. You are told that your association was unlawful because your cousins are not close family members, the association was not in the course of a lawful occupation and you have no defence of reasonable excuse because you yourself are a member of the organisation because they treat you as one. You are refused bail.
Your lawyer tells you that you can go to gaol for up to five years. You say, “What have I done wrong”? Your lawyer says, “You have broken a new law.
Rather than prosecuting gang members for committing crimes, they are now prosecuted for communicating with each other. As they treat you as one of them, you will have to join them in gaol. You will be pleased to know, however, that you can associate with them in gaol without breaking the law”.
Is my plot too far fetched? Well it is hard to believe, but read the Serious and Organised Crime (Control) Act. It is all possible, every little bit.
This article first appeared in the Adelaide Advertiser on 18 May 2009