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Public Submission re: "Declaring" the FINKS Bikie gang

PUBLIC SUBMISSION
To Attorney-General (South Australia), regarding the
Serious and Organised Crime (Control) Act, 2008 (SA)

Preface:

Outline:
From the outset, let it be absolutely and irretrievably clearly understood that NOTHING in this submission will sanction or suggest that unlawful behaviour be condoned, supported or that any concession/s ought to be available to “Criminals”. The FULL FORCE of the LAW ought to be available and utilised to detect, investigate and prosecute ANYONE who engages in UNLAWFUL activity, without exception.

Often there appears to be a fine line between immoral and unlawful activity. Only UNLAWFUL activities are prosecutable. The often known practice of “baiting”, “entrapment”, “stitch-up”, “frame-up” or “setting-up” is often utilised to “entice” immoral persons, rather than “criminals”, to cross the line and engage in unlawful activity, thus “creating criminals”.

The other age old practice of “collective” bargaining, or organised association has been with us for centuries. Political parties, labour organisations, religions, social clubs, charitable organisations, etc. are of the same ilk. They are normally formed for a legitimate purpose/s, where the members have a “common purpose”. Unfortunately, sometimes their leadership or membership will be infiltrated by persons who use a lawful association, (and under the cover of that association) to conduct or engage in illegal activities.

This submission will not make any assumptions regarding the lawfulness or otherwise of any association, including that of the FINKS Motorcycle Club (Inc.). This Submission does not and cannot make any valued judgments about the activities of the abovementioned association or any of its individual members.

It has become clear over the past years that there has been a very well oiled and smooth “campaign” to vilify “outlaw motorcycle gangs”. And the truth is that these identified organisations have probably engaged in less than acceptable and/or savoury conduct. The key Question is HOW does the Parliament, the Executive and the Judiciary, let alone the public deal with such organisations.

Finally : Let it be absolutely clear from the outset, that the author has NEVER knowingly been associated with any member/s of the abovementioned association or club, and quite frankly the author does not have any desire to ever, either knowingly or by association, have any contact with any member/s of the abovementioned motorcycle club or the club itself or similar types of clubs.

The Author’s views are that the more force that is used (against these persons), the more reactionary, elements of society will become. Force will not prevail, however education and diplomacy will. This Submission is not intended to be a “critique” of the applicable legislation, although commentary will inevitable be unavoidable.
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Part A - Legislation

Serious and Organised Crime (Control) Act, 2008 (SA) [Act No 13 of 2008]
There appears to be no need to repeat this Act – however some commentary of certain provisions of the Act ARE NECESSARY.

Section 3 – The Definition Clause is extremely important as it tries to interpret various “descriptions”. The following are of extremely serious concern.
“control order”
“criminal intelligence”
“member”
“public safety order”
“serious criminal activity”
and while there is no definition for “associates”, this word is probably the MOST troublesome.

Section 5 – The Burden of Proof Clause.
This clause removes the normal standard of proof in Criminal Matters from that of “Proof Beyond Reasonable Doubt”, to the much lower “civil” standard of proof on a “Balance of Probabilities”. This is a major shift in criminal jurisprudence. This Standard of Proof – at such a low threshold could almost “capture” an entire community of otherwise lawful citizens.

Section 10 – The Attorney General may make Declaration - and the considerations to be taken into account by the Attorney in making such Declaration.
sub-Section (1) provides as follows (inter alia):

If the Attorney-General is satisfied that—
(a) members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity(my emphasis) ; and
(b) the organisation represents a risk to public safety and order in this State,
the Attorney-General may (my emphasis) make a declaration under this section in respect of the organisation.

sub-Section (3) provides as follows (inter alia):
In considering whether or not to make a declaration under this section, the Attorney-General may (my emphasis) have regard to any of the following:
(a) any information suggesting that a link exists (my emphasis) between the organisation and serious criminal activity;
(b) any criminal convictions recorded in relation to—
(i) current or former members of the organisation; or
(ii) persons who associate, or have associated, with members of the organisation;
(c) any information suggesting (my emphasis) that—
(i) current or former members of the organisation; or
(ii) persons who associate, or have associated, with members of the organisation,
have been, or are, involved in serious criminal activity (whether directly or indirectly and whether or not such involvement has resulted in any criminal convictions (my emphasis));
(d) any information suggesting that members of an interstate or overseas chapter or branch of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity (my emphasis);
(e) any submissions received from members of the public in relation to the application in accordance with section 9;
(f) any other matter the Attorney-General considers relevant (my emphasis).

sub-Section (4) provides as follows (inter alia):
The Attorney-General may(my emphasis), for the purposes of making a declaration under this section, be satisfied that members of an organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity—
(a) whether or not all the members associate for that purpose (my emphasis) or only some of the members (provided that if the Attorney-General is satisfied that only some of the members associate for that purpose, the Attorney-General must be satisfied that those members constitute a significant group within the organisation, either in terms of their numbers or in terms of their capacity to influence the organisation or its members); and
(b) whether or not members associate for the purpose of organising, planning,
facilitating, supporting or engaging in the same serious criminal activities (my emphasis) or different ones; and
(c) whether or not the members also associate for other purposes (my emphasis).

Section 13 – Disclosure of reasons and criminal intelligence
sub-Section (1) provides as follows (inter alia):
If the Attorney-General makes a declaration or decision under this Part, the
Attorney-General is not required to provide any grounds or reasons for the declaration or decision (my emphasis).

Part 3—Control orders
sub-Section (1) provides as follows (inter alia):
The Court must (my emphasis), on application by the Commissioner, make a control order against a person (the defendant) if the Court is satisfied that the defendant is a member of a declared organisation.

Part 4—Public safety orders
Section 23 – Senior police officer may make public safety order
sub-Section (1) provides as follows (inter alia):
A senior police officer may (my emphasis) make an order (a public safety order) in respect of a person or a class of persons (my emphasis) if satisfied that—
(a) the presence of the person, or of persons of that class, at any premises or event, or within an area, poses a serious risk to public safety or security; and
(b) the making of the order is appropriate in the circumstances.

Section 21 –Criminal Intelligence
sub-Section (1) provides as follows (inter alia):
No information (my emphasis) provided by the Commissioner to a court for the purposes of proceedings relating to the making, variation or revocation of a control order may be disclosed (my emphasis) to any person (except to the Attorney-General, a person conducting a review under Part 6, a court or a person to whom the Commissioner authorises its disclosure) if the information is properly classified by the Commissioner as criminal intelligence (my emphasis).

Section 29 – Disclosure of reasons and Criminal Intelligence
sub-Section (1) provides as follows (inter alia):
Subject to section 30, if a senior police officer decides to make, vary or revoke a
public safety order, the officer is not required to provide any grounds or reasons (my emphasis) for the decision to a person affected by the decision (but is required to provide such grounds or reasons to a person conducting a review under Part 6 if that person so requests).

Section 40 – Immunity from Liability
No civil or criminal liability attaches (my emphasis) to—
(a) the Attorney-General, the Commissioner, a police officer or other person exercising powers and functions under this Act; or
(b) the Crown, in respect of an act or omission in good faith in the exercise or discharge, or purported exercise or discharge, of a power, function or duty conferred or imposed by or under this Act.

Part B – Comment on Legislation

While this legislation is far more encompassing than what the author has outlined above, the highlighted issues are the areas that are of more grave concern. And these powers available to Police are exactly what the Minister and/or the Commissioner and maybe even what the Premier wanted – to try to “smash” these so-called Criminals and their gangs.

Of even more concern is that it is almost certainly going to ensure that the targeted “defendants” will be fully aware of the scope and magnitude of this legislation – which will “drive” them and their activities even further underground, making detection, surveillance and prosecutions even more expensive, difficult and fraught with real danger for members of any authority who enters the realm of their bastion.

It is clear from the legislation, that the most dangerous provision of this Act is that part where the Crown (meaning the Attorney-General, the Commissioner of Police, any Police Officer or any other person performing functions under this Act) is immune from civil or criminal liability whatsoever. Such provisions would be tantamount to a declaration of war – by both sides. The sad reality is that innocent civilians will inevitably be caught up in this WAR between the two sides (the bikies & police).

Police Officers will be allowed to act in ANY MANNER whatsoever, (even if their actions be criminal), and continue to stand immune from any prosecution, simply because they hold a badge or a warrant card.

The legislation is so broad, that all the Police will do is “issue” Public Safety Orders, rather than appear before a Magistrate or a Judge and argue (ex-parte) for a Control Order. Why would a Police Officer want to go to the trouble of seeking a Control Order, when all he/she needs to do is find an Inspector, who will sign off on a piece of paper for a Public Safety Order. The Police officer need prove NOTHING to the Inspector (or higher rank) to obtain the Public Safety Order. This process is asking/begging for abuse.

Having said that; it is clear that Police will probably seek Control Orders against the more high profile members of these “gangs” as part of a public relations exercise. However, these persons would be ready (and waiting) for these Control Orders to be brought against them – and would have their chain of command issues well sorted by the time such Control Orders are obtained and served on them.

The thrust of this legislation is that the Police (in many cases) don’t need to “prove” anything, need no evidence and the reality is that Police can now operate with immunity (under this Act) in dealing with persons they perceive to be “criminals” under the pretext of being “bikies”.

Part C – Collective association

Normally, there are Laws which allow incorporated associations to function completely lawfully, and usually persons with similar ideals and objectives would set up what is commonly referred to as an “association”. These bodies would have a charter, or constitution, or rules which would govern its lawful functions. In South Australia these incorporated organisations are governed under the ASSOCIATIONS INCORPORATION ACT 1985, (SA).

Sometimes these “loose associations” would not be incorporated, however the conduct of “members” of such unincorporated association are significantly more difficult to regulate and administer, let alone police. It’s more in these “unincorporated” bodies which make it more difficult to administer; both from a criminal and a civil application.

In the case in question, it is suggested (in the publication advertising the Commissioner’s application to the Attorney-General) that the FINKS Motorcycle Club is in fact an “incorporated” association (presumably pursuant to the Associations Incorporation Act 1985 (SA), so the State already has significant powers to deal with them and their activities under that legislation.

There is and can be no denial that based on a raft of “community” knowledge, that persons who make themselves known as “bikies” (like the Finks – or the other ‘bikie’ gangs mentioned in Hansard) are a band of people that normal law abiding citizens would be very cautious of mixing with and who have a “reputation” in the community for being violent, and who probably engage in criminal activities.

The key to all this “community knowledge” is almost certainly based on gossip, innuendo and assumptions – not Proof.

However, if there is any truth in such “community knowledge” then the community as a whole has become a breeding ground for such persons. It is a “community” problem and a “community” responsibility to educate, cultivate and engage these “gangsters” into behaving in acceptable behaviour and to integrate these persons back into responsible and co-operative and acceptable behaviour.

It is unacceptable for members of the community to allow our politicians to “hi-jack” the Parliament into a House of “good” or “evil”. It is the author’s view that the Act under discussion is pure “evil”. The Act disenfranchises certain citizens and creates “classes” of citizens – who are effectively being banished from mainstream society. It is a community responsibility to ensure that all of Government, and the broader community, have the moral fortitude to recognise the reality of the day where the community has become so weak and alienated from some citizens, that it results in an “us and them” mentality and standoff.

We live in a country that has long upheld the ideals of a “fair go”; Law and Order; the Rule of Law, equity and an equal opportunity for everyone. We have an abundance of Laws which are completely capable of dealing with “warlords” or “thugs” or “criminals”. The Act under discussion completely disenfranchises anyone who is a “target” of any police officer’s wrath. No evidence need be provided, no proof, no decision is effectively challengeable, and no bail is possible. It smacks of utter and complete oppression and looks like the type of legislation that someone like Robert Mugage of Zimbabwe would enact. This legislation is utter sanctioned thuggery (on the part of the Police), against ANYONE who in the “opinion” of a Police Officer, represents a possible link to a perceived “bikie gang”, with an absolute and complete immunity from prosecution (both civil and/or criminal)


Part D – Implementation

It is abundantly clear that the Attorney-General is almost certainly going to pronounce the Finks Motorcycle Club (Inc) a declared organisation, based on the public rhetoric which the Government has espoused in the media and that Control Orders (and Public Safety Orders) would almost inevitably flow from that Declaration.

The Author has deep concerns that the context and spirit of this Act, and more importantly the implementation and declaration pursuant to this Act will lay the seeds of seditious behaviour in certain elements of our community – and possibly persons directly affected by this legislation. The flow-on effect could even affect certain minority groups of sub-cultures in society who might feel they will be targeted next. The consequences of such a Declaration (if made), and the resultant outcome of any actions by the Police is likely to result in bloodshed, death and serious (and probably) permanent harm and injury, NOT ONLY to persons falling within the terms of this legislation but also to Police Officers, Politicians, government employees, Judges, Magistrates, contractors and including their wives, lovers, girlfriends, children and further extended family members. There is absolutely no way these persons (criminals) who find themselves at the brunt of this legislation will sit back and submit to this completely unjust and oppressive legislation – without retribution.

The Author is extremely worried that the retribution will be extreme. That it will be HARSH, that it will be BRUTAL, and that it will be HEART WRENCHING, but sadly it will probably come to the innocent and the defenceless. South Australia is not a fort, and nor should it be. Everyone in the community should feel safe – and to be able have and foster social and community interactions with Police officers, including accompanying them on holidays, play team sports with them, go shopping with them, and have normal day-to-day functions with them, without fear that our “proximity” to such persons could place us, as members of the community, in harm’s way. These types of sentiments have already been canvassed in Parliament by the current Leader of the Opposition (Martin Hamilton-Smith) in the debates (in Hansard) which saw the introduction of this Bill (now Act).

Similarly, the Act creates an “innuendo” that normal citizens could find themselves deemed as “associates” of “bikies” where they unknowingly (of their ‘bikie’ ties) befriended them or had social or community interactions with such people.

Force and Violence against these people will bring with it probably unequalled Force and Violence, in areas never before envisaged or expected. It will come to the “soft targets”. It will come to the innocent, defenceless and weak and may not be apparent immediately. This entire problem is magnified where the Crown is acting without any liability. It can be clearly envisaged that Police Officers in the course of their duty will be “hooded” to conceal their identity – from possible recriminations like Mexican drug lords.

We, as a community, cannot simply follow former soldiers or politicians with personal egos who advocate that we simply “get rid of them”. We are NOT in battle. We all live in a harmonious society where everyone seeks to make a better life for themselves. We have a responsibility to all fellow citizens to firstly recognise that we have a huge problem. Once we arrive at that conclusion, we ought to work on ways and means to ensure how these people who are themselves humans, workers, consumers, lovers, husbands, wives, fathers/mothers, drivers, homeowners, mortgage holders, renters to participate in a real community.

The Attorney-General is on public record (in Hansard) vilifying these so-called “gangs” and suggesting oblivion. There is no question that the task is massive. There is no doubt that the task is daunting, but we need to treat everyone in a humane and dignified manner – even if they are Criminals. The Laws in place before the introduction of this Act were (and are) more than adequate to deal with these persons. It just seems as though a very good “snow job” has been done to isolate these people, then name them as a “class” of persons, and then try to run them out of town (and State). Do the politicians seriously think that the other States of Australia will simply just welcome these people into their States – if they are “displaced”, and not themselves enact similar legislation?

The Attorney-General is implored, that in his deliberations, when he makes the decision to Declare this Organisation that he is also mindful of the consequences that will inevitably flow from those actions. That he will have in the forefront of his mind the harm that will almost inevitably flow from the Government’s actions, the possible sabotage that will damage government property, the wrecked and irreconcilable harm and damage that will flow to families, when a real, and proper, and effective alternative is and was clearly available to Government. The community wants to be able to engage, interact, and foster relationships with all parties, including the Police officers, the Government staff and the so-called “bikies” in a co-operative and healthy constructive manner to deal with all these perceived problems. Not commence a WAR.

There appears to be all the ingredient for civil unrest. Some may call this legislation a brave stance against “bikies” but to the author it is a potential recipe for anarchy.

It is not like we are dealing with Hostage takers, or Terrorists who are making ‘demands’. These are humans who may be off the rails at present, but we owe it to everyone (including them and their families) to arrive at a healthy and positive resolution – without violence and also without creating an atmosphere which will inevitably escalate the friction.



Signed ..................................
Rowan Timms


Wednesday, 28 January 2009 - 3:35pm