Responses by State and Territory parliaments to violent incidents involving criminal organisations has led to the passing of laws which raise rule of law concerns.
Diminishing the presumption of innocence through anti-association laws and modifying the right to silence, as well as removing procedural fairness and transparency by using closed hearings are issues of concern from a rule of law perspective.
Key Issues and Further Reading
Anti-association laws are those which make being in company with another person, for any reasons, an offence. Across nearly all State and Territories in Australia, governments have introduced laws which make it a crime for people to associate. These laws tend to diminish the presumption of innocence and in some cases are exceedingly broad in their application. Cases with regard to some of these laws have raised issues of procedural fairness and institutional integrity of the courts as well as questions about the separation of powers between the executive and the judiciary.
NSW
- Andrew Mcleod of Sydney University Law School on The Origin of Consorting Laws in Australia
- RoLIA’s interview with LexisNexis which discusses the ‘trickle-down’ effect of terrorism laws in the creation of anti-association laws
- RoLIA Vice President, Malcolm Stewart’s, speech on balancing the rights of individuals with the imperatives of the state
- Former NSW Director of Public Prosecutions, Nicholas Cowdery AM QC, on the NSW control order laws, statement
- Prof Alex Steel from UNSW on Consorting in NSW and whether it is a substantive offence or police power, journal article
- ABC’s Lateline video on Charles Foster, the first person charged under the new consorting offence in 2012
- High Court judgment summary and video news report about Wainohu v NSW [2011] HCA 24
Queensland
- Research brief from the Queensland Parliamentary Library on regulating bikie gangs
- Prof Anthony Gray of USQ on Australian Bikie laws in the absence of an express bill of rights, article
- High Court judgment summary in Michael James Condon v Pompano Pty Ltd [2013] HCA 7
Victoria and South Australia
- Research brief from the Victorian Parliamentary Library Research Service on the Victorian criminal organisations laws passed in 2012
- ABC Law Report transcript on the defeat of the South Australian laws, and judgment summary of South Australia v Totani [2010] HCA 39
New South Wales in early 2013 modified the right to silence for those arrested for serious offences. A judge can now instruct a jury to draw an ‘unfavourable inference’ should an accused have refused to answer questions of the police in the presence of their lawyer, or if they provide different information at trial than what they did when first questioned. This has been introduced to bring down the ‘wall of silence’ faced by police when prosecuting members of criminal organisations. Similar changes introduced in the United Kingdom were not found to lead to an increase in conviction rates. This modification diminishes the presumption of innocence and makes no allowance for the many circumstances where a person may good reason to remain silent.
- RoLIA press release and media article on modifications to the right to silence and pre-trial disclosure in NSW
- Media article evaluating the effectiveness of the changes to the right to silence in NSW
- Letter from the NSW Bar Association to the NSW Department of Attorney General and Justice
