UNITED MOTORCYCLE COUNCIL - FREEDOM TO ASSOCIATE

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Police ROAD BLOCK an S.A. Poker run Oct '08 - Note the Truck / Hiab in foreground for grabbing bikes ?

You think your motorcycling lifestyle isn't being threatened at a national level - Read below !

Quote :

"What the government is good at is collecting taxes, taking away your freedoms and killing people.

It's not good at much else."

Quote :

"A Bill of Rights is what the people are entitled to against every government on Earth... and what no just government should refuse."

"The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by an endless series of hobgoblins."

"I think many years ago an advanced civilization intervened with us genetically and gave us just enough intelligence to develop dangerous technology but not enough to use it wisely. Then they sat back to watch the fun. Kind of like a human zoo. And you know what? They're getting their money's worth" - Quote:- George Carlin

Video 29th Sept - Mike Rann spruking his "Bikie Bill" on New Zealand TV here

The South Australian Parliament recently passed the Serious and Organised Crime (Control) Bill 2007. It will become an Act upon proclamation.

This is an Act which the Parliament has implemented with the objective to disrupt and restrict the activities of criminal organisations, their members and their associates.

What is important to note is that these laws don't just relate to members of "Outlaw Motorcycle Groups". These laws apply to everyone. They also apply to people in States and countries other than South Australia.

These laws allow the police to apply for Control Orders against individuals which will result in people being restricted from socialising with friends, attending events, entering premises - including premises which they may actually own or lease. The law will make it a crime to associate with members of a declared organisation, and associating has been defined to include communication by telephone, letter, facsimile, email and other electronic means.

These laws have supposedly been implemented in order to prevent serious criminal activity from occurring. What is of concern is that in achieving this it is likely to cost dearly in every day civil rights that we take for granted. In effect, the law assumes guilt by association, it assumes that once you have committed an offence you are always a criminal and past offences can be relied upon to convince the Attorney General and/or the Court that you are likely to go on to commit further offences. It restricts freedom of movement, it restricts your right to peaceful enjoyment of your own property. Forget about freedom of association.

These laws ignore the concept of "innocent until proven guilty" and instead, decisions can be made based on the fact that a person was charged with a crime previously, regardless of whether or not that charge resulted in a conviction.

These laws assume that if one member of a declared organisation commits a crime, then all members are likely to do so. On top of that, if an ex-member who left the organisation 20 years ago committed a crime, that can be taken into account for the purposes of Declarations and Control Orders.

Whilst the law is as yet untested it is not really possible to see how it will work in practice. The following is not a detailed analysis of the law, but rather an initial overview and summary of some of the provisions it contains. The details in regard to the actual procedures to be followed in relation to the provisions contained in the Act have been omitted.

The first step is for the Commissioner of Police to make an Application to the Attorney General for a declaration, i.e a declaration that a certain group is a criminal organisation. The organisation does not have to be an incorporated body, and it does not have to be based in South Australia, and may consist of people who are not ordinarily resident in South Australia.

The Commissioner of Police must put a Notice in a paper with circulation throughout the State advising that they are making an application for a declaration, and interested persons/groups etc will have 28 days to make submissions in regard to that Application. This means that members of the public are entitled to make submissions within 28 days of the Notice appearing in the paper.

Information that the Commissioner provides to the Attorney General in support of the Application will not be provided to any other party if it has been classified as "criminal intelligence". So, submissions will need to be made in response to information the person making the submission is not actually aware of.

The things that the Attorney General must or may consider are set out in the Bill, and therefore should be referred to by parties making submissions. The considerations include:

· Any information suggesting a link exists between an organisation and serious criminal activity;

· Any criminal convictions recorded in relation to current or former members of the organisation; or persons who associate or have associated with members of the organisation.

· Any information suggesting that current or former members of the organisation, or 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;

· Any information suggesting 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;

· Any submissions received from members of the public in relation to the Application;

The Attorney General may be satisfied that members of an organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity:

· whether or not the members associate for that purpose in regard to the same serious criminal activities or different ones; and

The "facts" that are relied upon only have to be proven on the balance of probabilities - as opposed to the Criminal Jurisdiction burden of proof, beyond a reasonable doubt.

If the Attorney General makes a Declaration that an organisation is a "declared organisation", i.e. an organisation that participates in, plans, facilitates, or engages in "serious criminal activity" then Members of that organisation may be subjected to Control Orders, limiting who they can associate with and where they can go etc.

The legality or validity of a Declaration can not be challenged or questioned in any proceedings and cannot be the subject of a judicial review. Once the Declaration is made the only person who can vary it or revoke it is the Attorney General.

The Act does not allow any judicial discretion when it comes to making Control Orders as against members of a declared organisation, the Act states that if the Commissioner makes an Application the Court must make a Control Order on a member of a declared organisation.

However, the law also applies to people who have been members in the past, or to people who associate with Members of declared organisations. But the Court has some discretion in this area, the Court may make a control order if it is satisfied that the person has been a member of an organisation or engages or has engaged in serious criminal activity and regularly associates with members of a declared organisation.

The Court may also make a Control Order against a person who engages or has engaged in serious criminal activity and regularly associates with other persons who engage or have engaged in serious criminal activity. Note that this does not require the individual to be associated with any particular organisation.

Interestingly, an Application for a Control Order does not have to be notified to the person who it will apply to. Once the Application is granted, the Control Order must be served upon the person and the rules in regard to service are different under this Act than under usual methods of service of summonses etc. For example, the Order can be served on the person anywhere, and if the person serving it has reason to believe that the person is on certain premises then it can be left there in a prominent area, rather than be served upon the person personally.

Once served with the Control Order the person who it applies to can lodge an objection to the order in Court, but whilst that is being heard the Control Order stands, and you are bound by it and can be charged with an offence if you breach it.

If charged with an offence under the Act, the criminal burden of proof applies. So, whilst proving that you are a Member of a Declared Organisation only has to be proved on the balance of probabilities, but proving that you have committed an offence under the Act, For example - If you (regardless of whether or not you are a member yourself) associate with a member of a declared organisation more than 6 times in twelve months, when you know that person is a member, you are guilty of an offence and may be imprisoned for up to 5 years - must be proved beyond a reasonable doubt.

Interesting to note that associations with close family members are not included, working at the same place is not included, training and education in prescribed courses - not included, rehabilitation, counselling and therapy - not included, being jailed together is also alright.

Also interesting, - those six associations do not have to be proven to have occurred for any particular purpose, or that the association would have led to the committing of an offence.

The Act also contains provisions for Public Safety Orders - these orders can be applied for by a senior police officer (Inspector or higher), again, no notice of the Application has to be given to the person/s the Order will apply to.

These orders can only be made for periods of up to 72 hours, or the duration of a defined event. The effect of the Order is to prevent an event occurring or to prevent people from attending certain premises if the presence of that person, or persons of that class, at any premises or within an area, poses a serious risk to public safety or security. This can include premises that the person holds a legal or equitable interest in (i.e. ownership or a lease), but cannot include a principle place of residence.

A senior police officer can vary or revoke a Public Safety Order, and the Commissioner also has the power to revoke it if satisfied that the grounds for making it no longer exist.

If the Public Safety Order is going to apply for a period longer than 7 days then an objection can be lodged in relation to it. This will be heard by the Court, and the Courts decision can be appealed to the Supreme Court.

The law specifically states that the powers contained in it are not to be used to diminish the freedom of persons in SA to participate in advocacy, protest, dissent or industrial action.

There is also a clause (Section 23(5)) which states that a senior police officer must not make a Public Safety Order that would prevent people from being present on premises etc if that person or persons are members of an organisation formed for, or whose primary purpose is non-violent advocacy, protest, dissent or industrial action and the officer believes that advocacy, protest, dissent or industrial action is the likely reason for those persons to be present at the premises or event.

Admittedly this is speculation... but gone are the days of Poker Runs, they are likely to be slapped with a Public Safety Order, forget about having Friday night drinks as a regular at the local pub, you could be associating with a member of a declared organisation, tattoo shows at the local Clubhouse? - well, there wont be any members there because they will be subjected to Control Orders, if the event isn't stopped pursuant to a Public Safety Order.

Enjoy a regular cruise on your sports bike with a mate who enjoys the same thing? Only five times a year if you both happen to have previous criminal convictions. Six times and you could be found guilty of a criminal association and sentenced to up to 5 years jail, and the Prosecution would not have to prove that you associated with that person for any particular purpose, or that the association would have led to the commission of an offence.

Ironically, if you both end up in jail, you can associate as much as you like. Seriously.

Society puts many severe restraints in our paths and there are those that refuse to conform to these restraints.
The non conformers are tolerated for a time until society needs scapegoats then it does not matter if the non conformers are guilty or not.
Because people that do not conform make easy targets for blame.