For South Australians
DON’T PANIC!!
Regarding the Serious and Criminal (Control) Gangs Bill 2008.
1. Spent Convictions:
The “Spent Convictions” Acts and regulations does not apply in SA jurisdiction. In Commonwealth terms the Spent Convictions only apply to those offences against the Commonwealth committed in the States and does not apply to State offences.
State Laws maybe applicable in WA, Qld, ACT and NT. (Bear in mind, each state can override these if they bring in a “Bikie Bill&rdquo
Ref:
CRIMES REGULATIONS (AMENDMENT) 1998 NO. 68
Explanatory Statement
Statutory Rules 1998 No. 68
Issued by the Authority of the Minister for Justice
Crimes Act 1914
Crimes Regulations (Amendment)
http://www.austlii.edu.au/cgi-bin/sinodisp/au/legis/cth/num_reg_es/cr1998n68298.html?query=spent%20conviction
Therefore, this suggests that the “Bikie Bill” has no restriction on time or [non-C/W] offence.
2. Anti-Discrimination.
Again, is covered under the Commonwealth [various] Acts and regulations but is clearly aimed at such things as Workplace and Employment, (age, sex, religion etc) and Civil Aviation.
3. Human Rights as determined by the Commonwealth:
Currently, nothing exists in this area of consequence in this matter. Most things such as evidentiary rules apply to C/W matters only. Fortunately the C/W currently has a Bill in place called the:
2002-2003 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time
See:
http://www.austlii.edu.au/cgi-bin/sinodisp/au/legis/cth/bill/ahrclb2003495/ahrclb2003495.html?query=Anti%20discrimination
It does indeed refer to numerous other Acts, mostly non-helpful in dissent of the Bikie Act and this Bill is to bring it into line with the new position of the Human Rights and Equal Opportunities Commission and Ombudsman.
However, since this Bill is currently before Federal parliament it may be helpful to impress upon our various Fed Reps the issues at stake here.
There is also an option to enquire to a C/W Human Rights Ombudsman for scrutiny,
BUT it would appear that this is mostly to do with concepts of discrimination (see above).
4. [Some] Options in defence of unintended victims of this Bikie Bill.
The Bill/Act itself makes clear the Object of the Act.
Part 1,
4–Objects:
(1) The Objects of this Act are –
(a). To disrupt and restrict the activities of:
(i) organisations involved in serious crime; and
(ii) the members and associates of such organizations; and
(b). to protect members of the public from violence associated with such
criminal organisations.
(2) Without derogating from subsection (1), it is not the intention of the parliament that
the powers in this Act be used in a manner that would diminish the freedom of
persons in this State to participate in advocacy, protest, dissent or industrial action.
Regarding the HD forum riders in this, take confidence in continuing activities as normal; as section (1) does not apply. (Section 2 is only with regard to advocacy, protest, dissent or industrial action – none of which the riders here are involved with their motorcycles - therefore does not apply.)
If you are involved in serious crime, planning, carrying out etc, then yes, this is aimed at those people. If you belong to a group which is seen as existing for criminal purposes, then again this is what this Act is for. If you do not belong to a group then you have no worries (..yeah.. right..) BUT if you are charged and you do not belong to said group, then you have an appeal avenue available.
Furthermore:
Section 10 allows for the Attorney-General to make declaration but cannot do so until 28days notice has expired (section 9) from date of gazette and public paper notices. During this period you may apply to the A-G for reasons not to continue to declaration.
S10 then goes to state the A-G must be satisfied of certain conditions before he can make declaration. Those conditions are determination of criminal activities, public risk etc, the purpose of the organizations must be determined as such.
A declaration in contradiction, or a declaration where the subject has reason to object, of these conditions would clearly be subject to Judical appeal to the Supreme Court (S19). Where Judicial appeal cannot occur is on control orders on individuals after a period of time from serving (14 days)..
The MRA, Longriders, CMC, Honda Riders, Triumph Owner Group, Harley Owners Group, et al, do NOT fall within the scope of this document.
The question then arises should a number of declared persons then ride with or partake in MRA (or other clubs) activities.
Again, due to the outline above, the MRA and/or it’s office holders are not exposed to legal culpability by design or recklessness.
The most important fact here is that the MRA (and others) were never formed, (and can amply demonstrate by past and present deed) for criminal or nefarious intent.
Should declared person partake of our activities, our activities in themselves are not for illicit purposes specified under this Act nor can be construed as same. We have nothing to fear.
The question then becomes: what if an overzealous police officer undertakes a declaration? S19 applies in our overturning of that declaration and will hold due to S10, S9.
The case of an individual member of the MRA (or other).
Part 5--Offences
35—Criminal Associations
(1) A person who associates, on not less than 6 occasions during a period of 12
months, with a person who is—
(a) a member of a declared organization; or
(b) the subject of a control order
is guilty of an offence.
Herein lies the problem as individuals.
Subsection 7 allows for a court hearing to make a determination if that association was reasonable, but only in as far as the defendant has no prior. (This is where some members of Longriders may well run into a snag, they cannot apply for judical decision.) However, they may purport their association is strictly for the purpose of counseling which can be demonstrated by deed and action. Should they be charged under this section, it would seem the charge has been brought inappropriately and improperly due to this fact which would then allow a court to intervene upon application both under this section and of the intent of the Act under S5, S9 and S10. Longriders are also in a very strong position to claim Australian Constitutional right under freedom of religion and the practice of their beliefs (C/W Aust Const. S116).
Interestingly enough, an MRA member who has a prior may NOT claim this as defence and would have to rely on S4 exclusively.
Groups like Honda Riders, HOG, Triumphs etc will have to appeal under S4 (Objects) and make argument they are NOT the intent of this Act and in all reason I would expect this to be the case.
However, this section 35 has an unusual legal oxymoron in it’s own wording, so a legal opinion will only be properly construed after an argument has been judicially determined.
I am continuing to work on the passed Bill and will advise further outcomes as they come to light.
Please do not hesitate to ask questions and I will either answer them directly or refer you to legal counsel.
This does not alter the fact that the execution and support of this Bill in South Australia by SAPOL will invariably impinge up on a number of expectations of rights. For example the idea of keeping files on innocent people for the determination of 6 associations raises the legal moral and ethical question of privacy, government sponsored spying and so on.
It is a legal minefield.
