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Ananian-Welsh, Rebecca; Williams, George --- "The New Terrorists: The Normalisation and Spread of Anti-Terror Laws in Australia" [2014] MelbULawRw 17; (2014) 38(2) Melbourne University Law Review 362

THE NEW TERRORISTS: THE NORMALISATION AND SPREAD OF ANTI-TERROR LAWS IN AUSTRALIA

REBECCA ANANIAN-WELSH[*] AND GEORGE WILLIAMS[†]

Since September 11, Australia’s federal Parliament has enacted a range of exceptional measures aimed at preventing terrorism. These measures include control orders, which were not designed or intended for use outside of the terrorism context. What has followed, however, has been the migration of this measure to new contexts in the states and territories, especially in regard to what some have termed the ‘war on bikies’. This has occurred to the point that this measure, once considered extreme, has become accepted as a normal aspect of the criminal justice system, and has in turn given rise to even more stringent legal measures. This article explores the dynamic by which once-exceptional measures become normalised and then extended to new extremes. It explores these issues in the context of the role that constitutional values have played in this process.

CONTENTS

I INTRODUCTION

The ‘war on terror’ that arose after the September 11 attacks in the United States triggered an expansion of international[1] and domestic legal frameworks[2] directed at the prevention of terrorism. Today, that conflict appears to be waning, but in many respects the expanded frameworks remain intact. This is enabling processes of ‘normalisation’ by which such measures come to be treated as unexceptional, rather than as extreme measures that ought to be strictly limited in their application. In this form, they are more readily adapted to other areas of the legal system. Outside of the anti-terror context, the now-normalised measures can give rise to even more extreme laws that further challenge fundamental values. In this sense the legal responses to the war on terror can continue indefinitely outside of the anti-terror context and have a permanent impact on constitutional values.

We explore this dynamic by focusing on an Australian case study, namely the migration of control orders from the anti-terror context to the body of legislation that has emerged in what might be called a ‘war on bikies’.[3] Control orders are civil orders that empower courts to impose a wide range of restrictions and obligations on an individual, such as curfews, limits on communication, and the like, for the purpose of preventing future criminal acts. A person may be the subject of a control order, and therefore subject to a deprivation of liberty, without any finding that they have transgressed the law. In this way, control orders operate independently of any concept of guilt or innocence.

We begin in Part II by introducing Australia’s response to the global threat of terrorism and the rhetoric of urgency, exceptionalism and war that attended the enactment of a host of anti-terror laws following the 9/11 attacks, including control orders. In Part III, we document the proliferation of control order-like schemes across Australia, tracing their migration from the anti-terror context to the fight against serious and organised crime. This process of migration and subsequent normalisation has not gone unnoticed. Writing in 2010, Gabrielle Appleby and John Williams observed the ‘creep’ of anti-terror laws to the law and order context,[4] and one of us writing with Nicola McGarrity said: ‘counter-terrorism laws have become a permanent fixture of the legal landscape. ... Over time, what were once seen as extraordinary laws have become accepted as “normal”’.[5]

Not only has the control order device itself migrated across contexts, but it has provided a vehicle for the more subtle migration of certain characteristic features of national security laws. Hence, the expanded use of secret evidence, crimes of association and preventive constraints on liberty have also gone through a similar process of normalisation.[6]

In Part IV, we explore more recent developments that signal the next phase of the migration and normalisation process. In the ongoing political race to be ‘tough on crime’, the adaption of once-extreme measures has given rise to the extension of these measures into new, even more extreme territory. In Part V, we reflect on this process of migration, normalisation and extension and examine the role played by constitutional values in both checking and facilitating such trends.

II AUSTRALIA’S WAR ON TERROR AND CONTROL ORDERS

A Enacting Anti-Terror Laws

Prior to 9/11 Australia had no national laws dealing specifically with terrorism. Since then, the Australian government has enacted more than 60 such laws,[7] an approach Kent Roach aptly described as one of ‘hyper-legislation’.[8] Australia’s national anti-terror laws are striking not just in their volume, but also in their scope.[9] They include provisions for warrantless searches,[10] the banning of organisations,[11] preventive detention,[12] and the secret detention and interrogation of non-suspect citizens by the Australian Security Intelligence Organisation (‘ASIO’).[13] The passage of these laws was eased by Australia’s lack of a national bill or charter of rights. It was also assisted by a rhetoric of urgency and exceptionalism that enabled the laws’ speedy enactment.

In March 2002, federal Attorney-General Daryl Williams introduced the first package of anti-terrorism legislation to parliament. In doing so, Mr Williams conceded that the measures being introduced were ‘extraordinary’[14] but, he noted, ‘so too is the evil at which they are directed’.[15] The federal government justified these measures by emphasising both the grave harm threatened by terrorism and the goal of terrorists to disrupt or even destroy government institutions. These two factors were harnessed to demonstrate why the existing criminal law provided an insufficient legal response to the problem of terrorism. Simply put, the state could not afford to wait until a terrorist act had been committed, but must prevent it from occurring in the first place. To this end, anti-terror laws aimed at the prevention of future acts of terror were introduced.[16]

The passage of the federal anti-terror control order provisions reflected this same approach. Control orders were introduced as part of a much larger package of legislation, the Anti-Terrorism Act (No 2) 2005 (Cth), in the wake of the terrorist bombings in London in July 2005. This sizable statute also created preventative detention orders (‘PDOs’)[17] and updated sedition offences.[18] Attention was drawn to the London attacks, as well as to earlier bombings in Spain, Bali and the United States, throughout the course of its enactment.[19] These acts of terror, it was argued, highlighted the grave threat that faced Australians both at home and overseas and the pressing need to prevent future crimes of this nature. As Senator Stephen Conroy argued:

the substance of legislation of this kind is a response to a new threat, not a response to community fear. Let me be clear: the threat of a terrorist attack in this country is real. This is not hyperbole or scaremongering. The events of New York, Madrid, London, Bali and Singapore ought to make it patently clear that no country is immune from the current danger.

As I said earlier, suicide bombers pose a new and unique threat to the security of individual Australians. Terrorism poses a grave threat to the basic right to security of every individual in Australia. That is the context of the current debate.[20]

The Anti-Terrorism Bill (No 2) 2005 (Cth) was introduced into Parliament on 3 November 2005. It was accompanied by a statement by Attorney-General Philip Ruddock that ‘the government would like all elements of the anti-terrorism legislation package to become law before Christmas’.[21] This abbreviated process left little time for parliamentary scrutiny or deliberation, let alone close consideration by parliamentary committees. The Senate Legal and Constitutional Legislation Committee conducted an inquiry into the Bill, however this inquiry allowed only a 6-day period of calling for submissions, 3 days of hearings, and 10 days to prepare the final report.[22] The Anti-Terrorism Act (No 2) 2005 (Cth) was passed on 7 December 2005.[23] In retrospect this urgency appears unjustified. The sedition provisions have never been used. PDOs were first used in September 2014, and the first control order was not issued until late 2006.[24]

At the time of enactment, concerns raised in relation to the derogation of anti-terror laws from basic constitutional and criminal justice principles were typically met by legislators on two fronts:

First, using rhetoric such as the ‘war on terror’, they claimed that the threat posed by terrorism was both extraordinary and temporary.[25] As soon as the threat was eliminated — a question of ‘when’ and not ‘if’ — anti-terror laws would cease to be necessary and could be repealed.[26] Second, legislators distinguished between terrorism and ‘ordinary’ criminal activity.[27]

This is demonstrated in Mr Ruddock’s statement introducing the Anti-Terrorism Bill (No 2) 2005 (Cth) to Parliament:

[We all understand the proposition] that it is better that 10 guilty men go free than one innocent person be convicted. If you are going to extrapolate that to say that it is better that large numbers of civilians be killed by terrorist acts because we are unwilling to put in place measures that might reasonably constrain ... yes, control orders are new; they are very different. The burden of proof is different. It is certainly not within the criminal code as we would normally understand it, with the normal burdens of proof that follow, because what we are seeking to do is to protect people’s lives from possible terrorist acts. ... Yes, we are dealing with something that is very different and that is not understood in the context of criminal law as we know it. But in our view the circumstances warrant it. That is the justification.[28]

Emphasising the unique nature of the terrorist threat served to justify the introduction of special anti-terror laws, with existing criminal laws being cast as inadequate to deal with the threat posed by terrorism. This form of justification also served to reassure people that the new laws would only be used in the anti-terror context.

B Control Orders

The control order provisions introduced into the Criminal Code Act 1995 (Cth) sch (‘Criminal Code (Cth)’) div 104 can be used to impose far-reaching restrictions or obligations on an individual for the purpose of preventing terrorism. The terms of a control order may relate to the person’s presence at certain places, contact with certain people, use of telecommunications or technology, possession of things or substances, activities, wearing of a tracking device, reporting to certain people at particular times and places, fingerprinting and photographing for the purpose of ensuring compliance with the order, and participation in consensual counselling or education.[29] Although the restrictions and obligations available under a control order fall short of imprisonment in a state facility, the orders may inhibit a person’s liberty even to the point of imposing house arrest.[30]

Civil preventive orders were not unknown in Australia prior to the enactment of the Anti-Terrorism Act (No 2) 2005 (Cth). The key instances of such orders involved the continued incarceration and supervised release of persons convicted of serious sex offences at the completion of their sentences.[31] Such orders could only be imposed on persons serving a term of imprisonment for a serious offence, and were contingent upon an assessment that the individual posed a continuing danger to the community. Control orders, on the other hand, exist entirely outside the criminal justice system. Control orders may be imposed on persons neither convicted of, nor even charged with, a criminal offence, and the orders are not directly concerned with the likelihood that the individual will commit serious offences in the future.

Control orders under div 104 of the Criminal Code (Cth) may be issued in respect of adults not suspected of involvement in criminal wrongdoing. A child aged 16 or 17 years may also be subject to an order if he or she is suspected of involvement in a terrorism-related crime.[32] The maximum duration of a control order is 12 months from the date the interim order is served on the person.[33] There are no limits on seeking consecutive control orders over an individual.[34]

Division 104 enables the Australian Federal Police (‘AFP’) to seek two kinds of orders from a federal court. With the consent of the Attorney-General, the AFP may first seek an interim control order from an issuing court.[35] Interim orders are issued ex parte and without notice to the affected person. They may be issued where a court is satisfied, on the balance of probabilities, that the order would ‘substantially assist in preventing a terrorist attack’,[36] or ‘that the person has provided training to ... [or] received training from a listed terrorist organisation’.[37] In 2014, amendments to the control order provisions introduced further grounds on which an order may be issued, including where a person has engaged in a hostile activity in a foreign country, or has been convicted of a terrorism offence in Australia or a foreign country.[38]

Additionally, each term of the control order must be ‘reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist attack’.[39] A distinctive quality of control orders is that the subject of an order need not have been found guilty of any criminal wrongdoing unless the control order is issued under the final ground which captures those convicted of terrorism offences. In this sense, control orders may provide an alternative, rather than an adjunct, to the criminal justice system.

If an interim control order is issued, the AFP must then elect whether to seek a confirmed control order. Confirmation proceedings take the form of an open and contested hearing before an issuing court, and will occur as soon as practicable (but at least 72 hours after the interim order is made, and at least 48 hours after the interim order is served on the person).[40] The same grounds for issuing control orders apply at both the interim and confirmation stages.[41]

The term ‘listed terrorist organisation’ is central to the grounds on which control orders may be issued. This phrase refers to organisations declared to be terrorist organisations by the Attorney-General, once he or she is satisfied on reasonable grounds that the relevant organisation is directly or indirectly engaged in, preparing, planning, assisting in, fostering or advocating the performance of a terrorist act (whether or not the terrorist act has occurred or will occur).[42] Amendments to the Criminal Code (Cth) in 2002 created serious offences in connection with listed terrorist organisations, including support, membership and training offences.[43] It is also an offence to associate on two or more occasions with members, or with persons who promote or direct a listed terrorist organisation.[44] Penalties for these offences are severe, extending in some cases to imprisonment for up to 25 years.[45] The Attorney-General’s decision to list a terrorist organisation is subject to review by the courts (on the basis of the legality but not the merits of the decision), by Parliament and its committees (on a discretionary basis) and by the Attorney-General.[46] A terrorist organisation may also be declared by a court, applying the same criteria as listed above, in the course of a criminal trial involving terrorism offences.[47] As will be seen below, this technique of pairing the executive designation of criminal organisations with novel offences and serious penalties has had a considerable influence on recent developments in criminal law reform in the states.

At each stage of the control order process, information may be withheld on the basis of national security concerns. For example, in obtaining written consent to request an interim control order, the AFP must provide the Attorney-General with certain background and supporting information including a summary of the grounds for making the interim order.[48] However, the legislation provides that information may be withheld from the summary of grounds if its disclosure would be ‘likely to prejudice national security’ within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (‘NSIA’).[49] Under the NSIA, ‘likely to prejudice national security’ is defined as ‘a real, and not merely a remote, possibility that the disclosure will prejudice national security’,[50] and ‘national security’ is broadly defined as ‘Australia’s defence, security, international relations or law enforcement interests’.[51] Information that is served on the person or relied upon in court may be withheld on the same grounds.[52] Additionally, information may also be withheld from the person if it is assessed as likely to be protected by public interest immunity, or if its disclosure would be likely to put at risk ongoing operations by law enforcement agencies or intelligence agencies, or the safety of the community, law enforcement officers or intelligence officers.[53]

Two individuals have been subject to control orders in Australia under div 104 of the Criminal Code (Cth): Joseph Thomas and David Hicks.[54] The former Independent National Security Legislation Monitor (‘INSLM’), Bret Walker SC, reported that the AFP had, by the end of 2012, considered the commencement of control order proceedings against 23 other individuals. In almost half of these instances, the control order was considered as a response to there being insufficient evidence on which to prosecute the person for terrorism offences.[55] Despite the AFP electing not to seek a control order in these instances, the INSLM strongly criticised the possibility that a control order might be sought in such circumstances as being offensive to the rule of law.[56]

Joseph Thomas, known as ‘Jihad Jack’ in contemporary media, was an Australian citizen who travelled to Pakistan in 2001 where he undertook three months of paramilitary training with Al Qa’ida at the Al Farooq training camp.[57] Thomas was captured, imprisoned and interrogated in Pakistan before being returned to Australia. Upon his return in 2006, Thomas was charged with two counts of providing support to a terrorist organisation, each of which led to an acquittal in the Supreme Court of Victoria.[58] In a step that Andrew Lynch suggested may be criticised as an instance of ‘jurisprudential context-shopping’,[59] less than two weeks after the acquittals, the AFP relied on the same evidence in order to obtain an interim control order against Thomas in the Federal Magistrates Court.[60]

A control order was issued in respect of Hicks upon the completion of his sentence for providing material support for terrorism handed down by United States Military Commission in 2007. Hicks pleaded guilty to this charge, which has since been held not to have been a valid offence under international law at the relevant time.[61] Prior to Hicks’ Military Commission hearing he was held by United States forces at Guantánamo Bay for five years without charge.[62]

The control orders issued in respect of Thomas and Hicks required, in general terms, that the individual stay at his residence between midnight and 5:00 am or 6:00 am respectively, report to the police three times a week, not contact members of terrorist organisations, not use unapproved email, mobile phone or internet technology, not leave the country without permission, and not possess weapons or military training materials.[63] During Thomas’ interim control order proceedings, Mowbray FM reportedly said that some of the requested restrictions were ‘silly’, such as the inclusion of Osama bin Laden’s name on the list of individuals Thomas would be prohibited from contacting.[64] This original list of names totalled over 300 pages and was reduced to some 50 names in the eventual order.[65]

Only Hicks’ control order was confirmed. The interim control order imposed upon Thomas did not reach confirmation stage because, before this could occur, Thomas commenced proceedings in the High Court challenging the constitutional validity of the scheme. This challenge had two parts. First, Thomas alleged that the provisions were beyond the constitutionally enumerated lawmaking powers of the federal government. Secondly, he argued that the provisions violated the strict separation of judicial power implied from ch III of the Constitution. The High Court had interpreted ch III to preclude non-judicial powers from being vested in federal courts (unless they were incidental or ancillary to a judicial function).[66] In the absence of a national bill or charter of rights, ch III has played an increasingly important role as a limit on government power, as well as a source of rights protection for citizens and states.[67] Thomas claimed that the power to issue control orders was not judicial in nature and therefore the provisions were invalid insofar as they vested that power in federal courts.

In 2007 in Thomas v Mowbray, Thomas’ High Court challenge failed on both grounds[68] — subject to the strong dissenting opinions of Kirby J and Hayne J.[69] For a majority of the Court, div 104 was an appropriate use of the federal government’s power to make laws with respect to the defence of the nation.[70] Their Honours also held that, while the power to issue control orders differed from the traditional conception of judicial powers, it was nonetheless in keeping with the fundamental constitutional value of judicial independence, and was sufficiently analogous to other powers exercisable by courts so as to justify its classification as a valid judicial power.[71]

The decision in Thomas v Mowbray dealt with complex areas of Australian constitutional law. Our focus rests not with the decision itself, but with its aftermath. In particular, the decision has been used to provide legal authority for the notion that these kinds of preventive orders are in keeping with constitutional values. In this way, the case paved the way for the migration of control orders, as well as the related schemes of secret evidence and declared criminal organisations, beyond the anti-terror context.[72]

III CONTROL ORDERS MULTIPLIED: THE WAR ON BIKIES

Writing in 2002, Lucia Zedner and Janne Flyghed noted the potential for the migration of national security measures to the law and order context. For Zedner, the most serious threats to security provide ‘the underlying rationale and licence for measures that tackle much lesser risks but pose no small threat to basic liberties’.[73] Flyghed similarly observed that once new coercive measures have been introduced to counteract extremely serious forms of crime, such as terrorism, ‘there follows a slide towards their employment in connection with increasingly minor offences’.[74] Following the High Court’s decision in Thomas v Mowbray, this slide began to play out across Australia.

When Thomas v Mowbray was handed down, political leaders in the Australian states had for some time been adopting hard-line, tough on crime policies. As Appleby and Williams observed:

Being tough on law and order is important politically. Law and order consistently rates highly in surveys of community concerns, and receives a large amount of media coverage which tends to call for greater police presence, new offences and harsher sentences ... The States undoubtedly perceive there to be a political need to respond to these calls.[75]

As a result, the decision in Thomas v Mowbray, and its validation of control orders as providing a permissible means of imposing harsh restrictions on ‘would-be criminals’, fell on fertile ground.

Within a year of Thomas v Mowbray giving the constitutional ‘thumbs up’ to control orders, the South Australian Parliament enacted the Serious and Organised Crime (Control) Act 2008 (SA) (‘SOCCA’). This statute was touted as an ‘anti-bikie law’ and marketed as part of the State’s efforts to combat outlaw motorcycle gangs.[76] Whilst South Australian law already provided for criminal profits confiscation, fortification removal notices and regulations aimed at preventing bikies from working in certain industries, control orders marked a significant new step in Premier Mike Rann’s ‘highly successful policy platform’ of taking a hard-line approach to law and order.[77]

In introducing the SOCCA, Rann not only adopted the legal model of anti-terror control orders but reproduced the same rhetoric of urgency, war and extreme threat to support the enactment of the measures. Legislation specifically modelled on the federal anti-terror laws was necessary according to Rann ‘because [organised crime groups] are terrorists within our community’.[78] Denouncing bikie gangs as ‘an evil within our nation’, Rann claimed that the South Australian control order legislation would not only ‘lead Australia in the fight against bikie gangs’, but be the toughest in the world.[79]

The SOCCA draws directly upon the Commonwealth’s national security laws — control orders for individuals are only made once their membership of, or association with, a ‘declared organisation’ is established. Both the process by which an organisation is declared and the basis on which the declaration can be issued resemble the federal provisions for listing terrorist organisations.[80] Under the SOCCA control order scheme as it was originally introduced in 2008, organisations were declared by the South Australian Attorney-General, just as terrorist organisations are declared by the federal Attorney-General (in amendments discussed below, this process has since been moved to the judicial sphere).[81]

The basis for declaring a criminal organisation under the SOCCA is a finding that ‘members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity’ and ‘the organisation represents a risk to public safety and order in [South Australia]’.[82] Similarly, a terrorist organisation may be declared on the basis that it is directly or indirectly engaged in, preparing, planning, assisting in, fostering or advocating the performance of a terrorist act.[83]

Both the SOCCA and the federal anti-terror control order schemes capture organisations that commit criminal acts, as well as those that engage in preparatory or supportive conduct towards the commission of those acts. The language of the two declaration schemes is not identical, but there is significant overlap in, for example, the references to ‘advocating’ and ‘supporting’, ‘fostering’ and ‘facilitating’, and ‘preparing’ and ‘organising’. The SOCCA’s declaration scheme qualifies the basis on which an organisation may be declared by providing that the organisation must also pose a risk to public safety. However, this additional requirement would not be difficult to establish once the connection between the organisation and the commission of serious criminal acts is made out. The clearest distinction between declared criminal organisations and listed terrorist organisations is that the latter is concerned only with the commission of terrorist acts, whereas the former is concerned with the commission of serious crimes more broadly. In all, the declaration scheme in the SOCCA bears a strong resemblance to both the process and grounds by which terrorist organisations are declared under the Criminal Code (Cth).

While the declaration processes are much the same under the SOCCA and the federal anti-terror laws, the consequences are not. South Australia did not incorporate terrorist organisation-style offences — such as membership or promotion — but limited the relevance of the declarations to civil control order proceedings. It will be seen in Part IV that reforms in Queensland have now taken this extra step of importing organisation-based criminal offences.

The effect of bikie control orders under the SOCCA is to restrict members of declared organisations from associating with other members of the organisation or carrying on certain activities.[84] Like anti-terror control orders, a wide range of potential obligations and restrictions on a person’s behaviour and associations may be imposed by a court, first in ex parte proceedings and then, if the person lodges an objection to the order, in a contested hearing.[85] The terms of a bikie control order may be broadly phrased, prohibiting a person from associating with a class of persons, or being in the vicinity of certain kinds of places, or carrying objects of a certain kind.[86] Breach of the terms of a control order has the potential to result in criminal prosecution and imprisonment.[87]

Secret evidence plays an integral part in both declaration and control order processes under the SOCCA. The Attorney-General was not required to provide reasons for his or her decision to declare an organisation.[88] Information provided to the Attorney-General that was classified by the Commissioner of Police as ‘criminal intelligence’ was not to be disclosed except to specifically authorised persons.[89] Criminal intelligence was defined as

information relating to actual or suspected criminal activity (whether in [South Australia] or elsewhere) the disclosure of which could reasonably be expected to prejudice criminal investigations, to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or to endanger a person’s life or physical safety.[90]

Criminal intelligence has a different focus to ‘national security information’ in the NSIA.[91] However, it bears close resemblance to other grounds on which information may be withheld from a person under div 104 of the Criminal Code (Cth), in particular where the information would be likely to put at risk ongoing law enforcement or intelligence operations, or risk the safety of the community, law enforcement officers or intelligence officers.[92]

Once the Commissioner has classified information as criminal intelligence, a court is empowered to assess whether the information was ‘properly’ so classified. High Court litigation in 2008 concerning Western Australian fortification removal notices issued in respect of bikie gang premises had determined that this form of discretionary judicial review is necessary to ensure the constitutional validity of secret evidence provisions.[93] If properly classified, the court is obliged to maintain the confidentiality of the information,[94] including by removing criminal intelligence information from the statement of the grounds on which the control order was issued.[95]

Criminal intelligence provisions generally involve a claim for secrecy being heard in closed proceedings from which the person and his or her representatives are excluded. If the application is successful, then the information may form a basis for the judge’s determination but will still be withheld from the person and his or her representatives. Provisions of this kind strike the balance between the competing interests of secrecy and procedural fairness more heavily in favour of secrecy as, in effect, a party is no longer able to know or meet significant aspects of the case against him or her.

Increased reliance on secret evidence has been identified as an inevitable consequence of the intelligence-led approach adopted by many governments to meeting the threat of transnational terrorism following 9/11.[96] As state control orders aimed at serious organised crime were adapted from the federal national security context, it is little surprise that secret evidence plays a key role in both declaration and control order processes. That said, removed from the national security context, it is less apparent why such a high and pervasive degree of secrecy is required, as opposed to existing principles and doctrines such as public interest immunity.[97]

The SOCCA was the first of many state organised crime control order schemes. Similar schemes have now been introduced in every state and territory but for Tasmania and the Australian Capital Territory.[98] Following the SOCCA’s enactment in 2008, the next year saw the introduction of the Crimes (Criminal Organisations Control) Act 2009 (NSW), the Serious Crime Control Act 2009 (NT) and the Criminal Organisation Act 2009 (Qld), and in 2012 the Criminal Organisations Control Act 2012 (WA) and the Criminal Organisations Control Act 2012 (Vic) were enacted. The governments of Western Australia and Victoria delayed the commencement of their control order statutes so as to await High Court decisions on the validity of existing control order schemes, in the hope of designing ‘challenge-proof’ provisions.[99]

Each control order statute was supported by a ‘tough on crime’, ‘war on bikies’ rhetoric that emphasised the imminent threat posed by these groups. This was particularly the case with the earliest laws, the South Australian SOCCA and New South Wales Crimes (Criminal Organisations Control) Act 2009 (NSW). In the parliamentary debates concerning these laws, the language of terror and terrorism was employed by governments, drawing analogies between the bikie laws and anti-terror laws. Bikies’ ‘reign of terror’ was referred to repeatedly throughout the debate concerning the New South Wales Crimes (Criminal Organisations Control) Act 2009 (NSW), such as by Opposition Leader, and later Premier, Barry O’Farrell.[100] In the context of asking for more detailed scrutiny of the provisions and for the South Australian legislation to be more closely copied,[101] Greg Smith, later appointed New South Wales Attorney-General, emphasised that the ‘extraordinary’ powers in the statute were necessary to fight the ‘war’ on bikies. He said:

In some ways this bill is akin to the terrorist legislation ... Something must be done in response to the recent crisis of lawlessness between comparatively small groups — almost a civil war. ...

Being humble servants of this Parliament and the community, my leader and I will do our best. We do not oppose the legislation because it would be inappropriate to stop some action from being taken to end this current war. ...

The Opposition wants to do what can lawfully be done to protect the community from gangs that are urban terrorists, which is why the Opposition will not oppose the conferring of extraordinary powers.[102]

The rhetoric of urgency was at times given additional support by outbreaks of violence at the hands of bikie gangs. The speedy enactment of the New South Wales legislation — the Crimes (Criminal Organisations Control) Act 2009 (NSW) was introduced, debated and enacted on 2 April 2009 — was assisted by a violent episode at Sydney Airport, in which a clash between rival gangs resulted in a man being bashed to death.[103] Similar violent clashes in South Australia[104] and Queensland[105] helped to bring the ‘war on bikies’ to the forefront of political debate and provided a rationale for governments to implement tougher laws aimed at preventing future gang-related crime. Like Rann in South Australia, Western Australian Attorney-General Christian Porter lauded his State’s Criminal Organisations Control Act 2012 (WA), which was described as the ‘toughest ... in the country’,[106] a claim that has since been taken up by Queensland.[107]

As control order schemes became more common, governments focused less on establishing a pressing need for these measures and instead invoked the existence of such laws in other jurisdictions both as a justification for like laws and as an argument for the state to avoid becoming a safe haven for bikie gangs. In this way, once control orders became accepted and no longer appeared to be extreme measures, the task for governments became one of bringing the laws of their state or territory into line with surrounding jurisdictions.[108]

Under the New South Wales, Queensland and Northern Territory statutes, as under the later Western Australian and Victorian statutes, the bases for declaring organisations, the nature of control orders and the provisions concerning criminal intelligence were much the same as in the South Australian SOCCA.[109] The key difference between the schemes existed at the declaration stage. In Queensland and Victoria organisations were declared by the Supreme Court.[110] In New South Wales, the Northern Territory and Western Australia,[111] declarations were made by an ‘eligible judge’ or ‘designated authority’, being a judge or former judge acting in a personal capacity.[112] Only under the SOCCA were organisations declared by the Attorney-General. Beyond these differences, the schemes were largely identical insofar as they provided for secret criminal intelligence evidence throughout declaration and control order processes, and for wide-ranging preventive restraints on liberty to be ordered on the basis of a person’s links to a declared organisation. The Victorian scheme — Victoria being the only jurisdiction to enact control order provisions and be subject to a human rights charter[113] — contains additional protections in the form of a special counsel to assist the respondent in respect of criminal intelligence applications.[114]

In developments that may have appeared surprising after Thomas v Mowbray, in 2010 and 2011 the High Court found that aspects of the South Australian and New South Wales control order schemes respectively, offended the constitutionally protected independence and integrity of state Courts. The High Court’s reasons for striking down these laws did not relate to the vague or predictive criteria on which declarations or control orders are issued, the impact of the control orders on individual liberty or the schemes’ provisions for secret evidence. As in Thomas v Mowbray, the issue concerned the separation of judicial power. Although the state court system does not observe the strict separation of powers that binds federal courts under the Constitution, state courts are not immune from its consequences as they are part of a nationally integrated judicial system. A consequence of this is that state courts are able to exercise non-judicial power, but only insofar as this is not ‘incompatible’ with their fundamental independence and integrity.[115]

In South Australia v Totani (‘Totani’) the High Court held that s 14(1) of the SOCCA was invalid on the basis that it was incompatible with the independence and integrity of the South Australian Magistrates Court.[116] The Court’s finding of incompatibility was derived solely from the obligation placed on the Magistrates Court to issue a control order against a person once the Court had determined that the person was a member of the declared organisation — the latter classification having been made by the Attorney-General. According to the High Court, this obligation impermissibly rendered the Magistrates Court an instrument of the executive government.[117] Whilst merely amending the SOCCA to replace the obligatory phrase ‘must’ with a discretionary ‘may’ might well have saved the provisions from invalidity, in response to the High Court’s decision, the South Australian government amended the SOCCA to provide that declarations would be made by an ‘eligible judge’ acting in his or her personal capacity (as in the New South Wales, Western Australian and Northern Territory schemes).[118]

Notwithstanding the absence of any similar obligations being placed on the eligible judge or the Supreme Court under the New South Wales control order scheme, in Wainohu v New South Wales (‘Wainohu’) the High Court found that the Crimes (Criminal Organisations Control) Act 2009 (NSW) was incompatible with judicial independence.[119] Like in Totani, the basis of this decision rested on a single provision. However, in Wainohu the High Court found that the entire statute, not merely the offending provision, was constitutionally invalid. The finding of invalidity stemmed from s 13(2), which removed the eligible judge’s duty to give reasons for his or her decision to declare an organisation. A majority of the High Court held that the express removal of this obligation not only damaged the integrity of the judge, but ultimately damaged that of the Supreme Court in the subsequent control order proceedings to the point that the scheme as a whole was repugnant to the separation of judicial power.[120] The New South Wales government responded to the decision by amending the offending provision to require that reasons be given by the eligible judge for his or her decision to declare an organisation.[121]

By making findings of constitutional invalidity in Totani and Wainohu, the High Court indicated that control order schemes would need to be carefully drafted so as to comply with constitutional values. However, by grounding invalidity in very narrow bases that seemed to overlook some of the more troubling features of control order schemes (such as their imposition of preventive restraints on liberty on the basis of secret evidence and predictive, even vague, criteria), the Court also seemed to indicate that the control order framework was not necessarily at odds with these values. The states harnessed this latter suggestion and continued to implement control order schemes that were designed to address the points of invalidity without compromising the overall nature or impact of control orders. This was reflected, for example, in a statement by Western Australian Attorney-General Michael Mischin when he introduced that State’s control order scheme to Parliament in 2012. For Mischin, the High Court in Wainohu ‘found that there is nothing constitutionally or legally objectionable about the principal underlying objectives of these laws’.[122]

When Queensland’s Criminal Organisation Act 2009 (Qld) was challenged before the High Court in 2012, organised crime control order schemes had been enacted in almost every Australian state and territory, in addition to the federal anti-terror control orders. In fact, pressure was beginning to mount on the federal government to take control of the issue of organised crime from the states and to itself enact tough national anti-bikie laws.[123] It seemed well-established that the imposition of broad, preventive restraints on liberty on the basis of a person’s relationship to a particular organisation, was constitutionally permissible. The fact that the declaration of an organisation could occur in secret, and that a court could impose a control order on the basis of untested evidence, also appeared to pose no problems of invalidity.

In Assistant Commissioner Condon v Pompano Pty Ltd (‘Pompano’) the High Court squarely faced the issue of secrecy in control order proceedings and upheld Queensland’s Criminal Organisation Act 2009 (Qld).[124] The case for invalidity in Pompano rested upon the assertion that withholding criminal intelligence evidence from the respondent amounted to a breach of procedural fairness and was, therefore, incompatible with the independence and integrity of the Supreme Court of Queensland. This argument failed.

The validity of the Criminal Organisation Act 2009 (Qld) rested on the Supreme Court’s capacity to independently review the secret classification of the evidence, and the lack of any obligations as to the use of that evidence. Additionally, validity flowed from the Supreme Court’s retention of sufficient independence in declaration and control order proceedings to enable it to remedy any potential unfairness arising from the use of secret evidence.

French CJ suggested that the Supreme Court’s existing discretion enabled the Court to ‘refuse to act upon criminal intelligence where to do so would give rise to a degree of unfairness in the circumstances of the particular case’.[125] In a joint judgment, Hayne, Crennan, Kiefel and Bell JJ suggested that the Supreme Court could remedy potential unfairness by attributing less weight to the secret, and hence unchallenged, evidence.[126] Gageler J adopted the same general approach, but concluded that the only effective means by which the Supreme Court might be able to counter any unfairness arising from the secret evidence would be to order a stay of proceedings.[127] Therefore, for Gageler J, it was the Supreme Court’s capacity to order a stay of proceedings that preserved the validity of the scheme.

The focus of the High Court’s treatment of the tension between control orders and constitutional values rested squarely on the role of the courts, and not on the impact of the scheme on individuals. Discussion of principles such as open justice and procedural fairness was overshadowed by an emphasis on judicial power, traditions and independence. As such, no guiding principles with respect to minimum disclosure were developed beyond ensuring the court is capable of independently reviewing the basis of non-disclosure and the suggestion by Gageler J that a court may stay proceedings in certain circumstances. Likewise, the liberty-infringing nature of a control order proved largely irrelevant to the High Court’s assessments of constitutional validity throughout the control order cases.[128] The protection of the rights of the person subject to the control order, the preservation of those qualities of the judicial process central to the integrity of the court, and the maintenance of the rule of law, therefore hinge entirely upon the judge’s ability to exercise his or her inherent jurisdiction to maintain control of proceedings.

In the control order cases the High Court reinforced the importance of constitutional limits on state powers, prompting the South Australian and New South Wales governments to significantly enhance the involvement of the judiciary in declaration processes and other state and territory governments to reflect on how their control order provisions impact constitutional values. In fact, following Pompano, both New South Wales and South Australia further amended their control order schemes to mirror Queensland’s Criminal Organisation Act 2009 (Qld). Those States now require both declarations and control orders to be issued by the Supreme Court.[129] Despite these amendments, the cases reveal the limited potential for the High Court to restrict legislative innovation as governments try to outdo one another in being tough on crime. The grounds for invalidity were narrow and could be overcome without altering the nature or impact of control orders. In any event, in Pompano, the Court accepted the validity of state control orders, lending the framework the constitutional legitimacy that appeared to have been undermined by the findings of invalidity in Totani and Wainohu.

Following Pompano, the process of normalisation seemed to be complete in respect of bikie control orders. Declaration and control order schemes aimed at serious and organised crime have been enacted in most jurisdictions across Australia, and the prospect of a successful constitutional challenge no longer poses a significant threat. It did not take long, then, for a government to find further inspiration in the federal anti-terror laws and to once again extend the bounds of preventive justice in order to lay claim to having the strongest laws and being the toughest on crime.

IV CONTROL ORDERS SURPASSED: NEW DIRECTIONS IN THE WAR ON BIKIES

After Pompano, the Queensland government abandoned its only control order application under the Criminal Organisation Act 2009 (Qld). To date the provisions of the Criminal Organisation Act 2009 (Qld) remain unused. A change in government in 2012 saw Queensland’s control order scheme criticised as a failure and, under the leadership of Liberal National Party (‘LNP’) Premier Campbell Newman and Attorney-General Jarrod Bleijie, new measures were introduced under the banner of being the ‘toughest’ in the country and even the ‘toughest in the world’.[130]

The reforms to the criminal justice system introduced by the Newman government are far-reaching. They include the introduction of mandatory minimum sentences for crimes such as child sex offences and graffiti,[131] reforms to allow the criminal histories of certain persons to be revealed to any entity (including the public),[132] unexplained wealth laws,[133] and a reform (since declared unconstitutional) to permit the Attorney-General to order the potentially indefinite incarceration of a person at the expiration of his or her sentence for sexual offences.[134] In addition to these measures, new anti-bikie laws were introduced and have formed a particularly controversial aspect of the Newman government’s tough on crime policies.

In one week in October 2013 the Newman government enacted a suite of anti-bikie laws. These laws adopted and expanded the attributes of secrecy, crimes of association and preventive restraints on liberty contained in control order schemes. In doing so, they harnessed other aspects of the federal anti-terror laws. As former detective Tim Priest argued:

The Queensland government hopes its world-first legislation will succeed where other jurisdictions failed. ...

Perhaps we need to treat certain groups of outlaw motorcycle gangs as domestic terrorists and treat them in the same manner as we treat political or religious terrorists in this country.

Given the outstanding performance of ASIO and the various state counter-terrorism units in dealing with home-grown violent jihadists, maybe we need to bring the same methodology and legislation to fight this new domestic terror threat — the outlaw motorcycle gangs — before the problem is irreversible.[135]

As Priest’s statement underscores, the rhetoric of urgency, grave threat and even terrorism supported the Newman government’s implementation of new extreme measures. A closer look at two particularly controversial schemes — the Vicious Lawless Association Disestablishment Act 2013 (Qld) (‘VLAD Act’) and the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld) (‘CODA’) — reveals that both the processes by which these laws were introduced and the nature of the laws themselves bear striking resemblance to the federal and state control order schemes discussed above. This analysis suggests that these new measures reflect the next stage in the migration and normalisation of anti-terror laws in the organised crime context, namely, the extension of these measures to new extremes.

During the 15 October 2013 sitting of the Queensland Parliament, between 2:30 pm and 3:00 am, the VLAD Act and the CODA were introduced, debated and enacted.[136] The VLAD Act imposes mandatory minimum sentences of 15 or 25 years’ imprisonment on ‘vicious lawless associates’ for the commission of ‘declared offences’, in addition to the sentences for the offences themselves.[137] The CODA imposes a range of reforms, including the criminalisation of three or more participants in a declared organisation meeting in public.[138] We return to the details of these schemes below.

At the time of enactment, there had been no public consultation in respect of these laws because, the government said, ‘of the need to respond urgently to the significant public threat these associations pose in Queensland’.[139] The emphasis on urgency, war and threat that had supported the federal Anti-Terrorism Act (No 2) 2005 (Cth), the SOCCA and New South Wales Crimes (Criminal Organisations Control) Act 2012 (NSW), was now being employed to justify the rapid enactment of new extreme measures. As Peter Callaghan SC, the President of the Law and Justice Institute of Queensland, said: ‘These laws are urgently needed, we are told, because this is nothing less than a war on bikies’.[140]

In the face of concerns raised by Callaghan and others with respect to the swift enactment of the laws and their impact on civil liberties, the government emphasised the extraordinary and unique threat posed by these groups and the ‘war’ in which the State was engaged. In the 15 October debate, the LNP member for Broadwater, Verity Barton, for instance, said:

We have drawn a line in the sand. We have declared a war on bikies. Queenslanders want us to do something. Action needs to be taken and it is being taken. It has taken this government to stand up and introduce the right suite of legislation that we need to put a stop to these criminal motorcycle gangs.[141]

Barton’s views echoed an advertising campaign funded by the Department of Justice and Attorney-General in the lead-up to the introduction to the laws. This campaign, which reportedly cost the Department almost $800 000, referred to bikie wars and gang violence, and emphasised that the government’s ‘tough new laws’ were ‘drawing a line’ on criminal bikie gangs.[142] The bikie laws that were enacted under this familiar banner of urgency, war and grave threat extend legal frameworks beyond the control order paradigm by adapting aspects of these civil orders to the criminal sphere.

The VLAD Act imposes a mandatory minimum sentencing regime on ‘vicious lawless associates’. As French CJ and Hayne J later acknowledged, a person need not qualify as either vicious or lawless in order to be a vicious lawless associate under the VLAD Act.[143] In fact, for French CJ, ‘[t]he term “vicious lawless association”, which appears in the title to the VLAD Act, ... is a piece of rhetoric which is at best meaningless and at worst misleads as to the scope and substance of the law’.[144]

A person qualifies as a vicious lawless associate if three conditions are met. First, he or she must participate in the activities of a group — that is, any legal or illegal group of three or more people.[145] Secondly, the person must commit a ‘declared offence’ whilst participating in, or for the purposes of, that group.[146] The schedule to the VLAD Act contains a list of 69 declared offences, including robbery, sexual and violent offences, possession of dangerous drugs or weapons, unlawful assembly, dangerous operation of a vehicle, obscene publications and exhibitions, bomb hoaxes, and money laundering.[147] Thirdly, the purposes of the group must include the commission of the declared offence. This final condition will be presumed and the onus rests with the person to prove that the group does not have the relevant purpose.[148] If these three conditions are met then the person will not only be sentenced according to the usual sentencing principles, but will face an additional mandatory minimum sentence of 15 years’ imprisonment without parole.[149] Persons who are office bearers (a criterion that includes those who formally hold an office as well as those who those who assert, declare or advertise themselves as authority figures within the group) face an additional mandatory sentence of 10 years’ — a total of 25 years’ — imprisonment without parole.[150] Parole may be granted only at the (unreviewable) discretion of the Police Commissioner if the person cooperates with police and the Commissioner is satisfied that his or her cooperation is of significant use in a proceeding about a declared offence.[151]

The VLAD Act is politically aimed at bikie gangs,[152] but like the state control order schemes discussed in Part III, it clearly has the potential for a much broader reach.[153] Vicious lawless associates could include child pornography rings, thieves who work in groups, people who use or sell drugs in groups, drag racers, or a protest group that orchestrates an unlawful assembly or riot. A person who commits any one of the extensive list of declared offences in a group of three or more people will face the task of positively proving that the group did not have the purpose of committing the declared offence, or face 15 (or 25) years’ imprisonment in addition to the usual sentence for the crime. In this context, the Police Commissioner’s capacity to shorten that additional sentence in return for cooperation may appear irresistible.[154]

Although distinct from existing control order and terrorist organisation offences, the mandatory sentencing scheme under the VLAD Act rests on the same rationale that a person’s links to a criminal group justify the imposition of significant restraints on his or her liberty. It is hard to say whether the mandatory term of imprisonment is an additional punishment on the basis of group membership — as Bleijie suggested when introducing the VLAD Act to Parliament and the High Court later indicated — or a preventive restraint on liberty.[155] The VLAD Act avoids the declaration process and directly penalises the group-based nature of a criminal offence, leaving the final decision as to a group’s criminal nature with the court — as in terrorism prosecutions that allow for the ad hoc declaration of organisations by the judge. In this and other ways (such as through the mandatory nature of the sentences and the reversal of the onus of proof) the VLAD Act reflects the harnessing of community fear and the rhetoric of war to expand and challenge existing criminal justice frameworks.

The CODA compliments the VLAD Act by, among other things, creating a new criminal offence of ‘[p]articipants in a criminal organisation being knowingly present in public places’.[156] This offence is committed if three or more people are together in a public place and each of them is identifiable as a participant in a declared organisation. A person ‘participates’ in a declared organisation by, inter alia, in any way asserting or seeking membership of the organisation.[157] For example, a participant may be identified by saying he or she would like to be part of the organisation, or by carrying a card or wearing the insignia of the organisation. As under the original SOCCA control order scheme and the federal scheme for listing terrorist organisations, the CODA provides that organisations may be declared by the Attorney-General.[158] To date Bleijie has declared 26 such organisations.[159] These declarations are not subject to judicial review and are made in secret. Bleijie has stated that the reasons for his decisions to declare the organisations may never be made public.[160] The fact that the courts are kept out of the declaration process under the CODA distinguishes the declaration scheme from existing state and territory control order statutes. This approach also avoids many of the separation of powers issues that supported the High Court challenges in Wainohu and Pompano.

The punishment for committing the offence of ‘participants in a criminal organisation being knowingly present in public places’ is a mandatory minimum sentence of six months’ imprisonment without parole.[161] A person may defend the charge by proving that the declared organisation does not have a purpose of engaging in, or conspiring to engage in, criminal activity.[162]

The CODA has been applied in a number of instances. In one case Sally Kuether — a librarian, mother of three, and community service award holder with no criminal history — met her fiancé and his friend at a local hotel for a drink. Kuether was wearing the insignia of the Life and Death motorcycle gang, to which her fiancé and his friend allegedly belonged. The police arrested all three under the CODA, opposed bail and raided Kuether’s home.[163] She now faces a mandatory minimum sentence of six months’, and up to three years’, imprisonment. Following her release on bail, Kuether said to the media: ‘I can’t see what I’ve done wrong, all I did was have a beer with my partner and my mate’.[164]

In 2014, Stefan Kuczborski, a member of the Hells Angels Motorcycle Club, challenged the constitutional validity of the VLAD Act and the CODA, as well as other aspects of the Newman government’s anti-bikie laws, such as amendments to the Liquor Act 1992 (Qld) and Bail Act 1980 (Qld).[165] Kuczborski had not been charged with offences created by or invoking the impugned provisions. Nonetheless he argued that as a member of the Hells Angels (a declared organisation), he had an interest in the laws that surpassed that of the general public.

In Kuczborski v Queensland (‘Kuczborski’), the High Court held that Mr Kuczborski lacked sufficient standing to challenge all but the CODA and amendments to the Liquor Act 1992 (Qld) relating to the wearing of insignias or carrying certain items onto licensed premises.[166] As to these provisions, a majority of the Court (Hayne J dissenting) upheld their validity. For the majority justices, the creation of offences under the CODA, including the offence of ‘participants in [a] criminal organisation being knowingly present in public places’,[167] did not enlist the judiciary to give effect to parliamentary or executive intention,[168] or ‘cloak the work of the legislature or executive in the neutral colours of judicial action’,[169] or usurp judicial power.[170] Whilst the executive unilaterally declares which organisations are criminal organisations, this declaration alone is insufficient to establish criminal guilt. That all-important determination is made by a court according to ordinary judicial processes, considering each element of the offence as established by evidence and legal argument in an open hearing.[171] Thus, for the majority justices, the independence and institutional integrity of Queensland courts was preserved.

By this reasoning the High Court in Kuczborski gave constitutional legitimacy to schemes in which organisations are declared by the executive (as is the case under the federal anti-terrorism laws and the original SOCCA) by a secretive, unreviewable process. That declaration may give rise to criminal proceedings against affiliates of the organisation based on seemingly innocuous behaviour, such as meeting in public and wearing certain clothes or emblems, provided that the trial adheres to usual judicial processes and the independent discretion of the judge is maintained.

The VLAD Act and the CODA bear important similarities to control orders and federal anti-terrorism laws. Each hinges criminal consequences on a person’s links to an organisation, rather than focusing on the conduct of the individual. This approach of attaching serious legal consequences to a person’s mere involvement with a criminal organisation is characteristic of control orders. However, every control order scheme vested the final decisions as to whether to issue the order and the appropriate terms of the order with a court. Both the VLAD Act and the CODA remove the court’s discretion in the latter respect by coupling notions of criminal organisations with mandatory sentencing.

The VLAD Act and the CODA adapt fundamental aspects of the control order paradigm to the criminal justice sphere, magnifying the severity of the provisions and their impact on traditional frameworks and fundamental values. The CODA harnesses the framework for declared organisations and the idea of placing significant restraints on a person’s liberty on the basis of his or her connection with such an organisation. The VLAD Act expands this idea to declared offences, as well as drawing on the provisions of the Criminal Code (Cth) that allow courts to declare terrorist organisations in the context of terrorism prosecutions. Like those ad hoc declarations, the VLAD Act envisages that criminal organisations can be identified and their members punished even when the Attorney-General did not declare the organisation earlier.

Whilst an attraction of control orders was their civil nature, and thus the avoidance of criminal burdens of proof,[172] the Newman government had moved the paradigm to the criminal sphere and avoided having to meet the criminal standard by reversing the onus of proof in crucial ways. Thus, control orders first emerged as an alternative to the criminal justice process, given concerns about that process, but are now being adapted and reintegrated within that criminal justice system in ways that throw up a range of new concerns.

The VLAD Act and the offence of participants meeting in public were just two facets of the Newman government’s much broader scheme of tough anti-bikie laws.[173] In other reforms, abandoned in the lead-up to the state election in January 2015,[174] individuals imprisoned under the bikie laws would have been forced to wear fluorescent pink overalls in prison because, Newman said, ‘[w]e know that telling them to wear pink is going to be embarrassing for them’.[175] Moreover, imprisoned members of criminal organisations would also have been subject to ‘criminal organisation segregation orders’ requiring their separation from other prisoners — that is, solitary confinement.[176]

The Queensland Crime and Corruption Commission has been given additional powers to conduct closed, secret hearings into the range of issues referred to it (including organised crime, terrorist activity and other serious crime). At these hearings, individuals face mandatory minimum terms of imprisonment for refusing to answer a question or produce a thing without a reasonable excuse.[177] Fear of retribution has been specifically excluded as a reasonable excuse in this context.[178] In addition, the Newman government’s reforms prevent participants in criminal organisations from being employed in a range of positions, such as electricians, builders and tattoo artists,[179] and provide for the public disclosure of their criminal histories.[180] Indeed this disclosure is authorised in respect of anyone who has ‘at any time been’ a participant in a declared organisation.[181] These reforms build upon the idea of guilt by association established by the introduction and spread of control order schemes.

Andrew Trotter and Harry Hobbs have argued that Bleijie and Newman have orchestrated a ‘great leap backward’ for the criminal justice system in Queensland.[182] Their critique demonstrates the gravity of the reforms as viewed in a broad historical context. However, by looking at more recent history — since 9/11 — we can see that the roots of these reforms lie in federal anti-terror laws. Queensland has built upon and now significantly extended federal and state laws that began with the terrorist organisation offences enacted in 2002 and the Anti-Terrorism Act (No 2) 2005 (Cth). Certainly the process by which the laws were enacted bears a strong resemblance to the Howard government’s response of ‘hyper-legislation’ following 9/11, and the laws themselves build directly upon the declaration processes that migrated with control orders and the organisation offences that originally accompanied the federal terrorist organisation provisions.

V NORMALISATION AND THE ROLE OF CONSTITUTIONAL VALUES

In the context of the global war on terror, the federal Parliament enacted a suite of exceptional measures aimed at preventing terrorism. These measures, including control orders and the declaration of terrorist organisations, were not designed or intended for implementation outside the terrorism context. The debate around the laws linked the schemes’ exceptional nature with the extraordinary threat posed by terrorism. What has followed, however, is the steady migration of these measures to new contexts at the state and territory levels.

The processes of migration and normalisation described have been multidimensional. First, the control order paradigm itself migrated across contexts and jurisdictions. Anti-terror control orders became serious and organised crime control orders — in each case providing an alternative to the criminal justice system and permitting a wide range of potential obligations and restrictions to be placed on a person for the purpose of preventing criminal activity. This enabled control orders to evolve from an exceptional and extreme measure to an established paradigm of preventive justice. As a result it is well-accepted today, at least by the majority of Australia’s Parliaments, that preventive restraints on an individual’s liberty may be justifiably imposed by reference to that person’s links to a widespread, amorphous threat, particularly one presented by fearsome groups such as terrorist cells or outlaw motorcycle gangs.

Secondly, more subtle aspects of the control order framework also migrated and normalised. By focusing on a person’s association with a criminal organisation, control order schemes require companion processes by which those organisations may be identified. The first state control order scheme, the SOCCA, simply adapted the federal approach by which the Attorney-General declares terrorist organisations. Later schemes and amendments moved this process into the judicial sphere in order to provide a better safeguard and to align more closely with constitutional values, including the separation of judicial power that underpinned the High Court’s decisions in Totani and Wainohu. The latest Queensland laws have shifted the responsibility for declaring organisations back to the Attorney-General, returning to the design of the original anti-terror laws. The scheme of ad hoc declarations by courts during terror trials has also been adapted. The scheme under the VLAD Act of imposing additional mandatory minimum sentences on persons who commit declared offences in groups reflects aspects of the federal anti-terror laws which allow courts to identify criminal organisations in the context of certain prosecutions. This suggests that the idea of declared organisations providing a precursor to proceedings against participants in those organisations has both migrated and normalised. However, the fact that different jurisdictions have adopted different approaches to reconciling the declaration process with the separation of powers indicates that no single model has been settled upon and that the design of declaration processes may continue to evolve.

The underlying rationale behind declaration proceedings has also undergone a process of normalisation. The declaration of organisations is linked strongly with the imposition of restraints on the liberties of persons linked to that organisation. In this way, the process embodies ideas of guilt by association — that certain people ought to be controlled and restricted simply because they associate with a certain group. In the control order schemes a person’s links to a declared organisation prompt a potentially vast set of obligations and restrictions being imposed by the judiciary. The new Queensland laws are built upon the same rationale. However, these reforms harness this underlying notion to impose criminal sanctions that are largely determined by the executive. Thus, the normalisation of the rationale behind control orders has supported the extension of the notions of guilt by association and preventive justice from the civil to the criminal sphere.

In addition to the notions of declared organisations and control orders migrating across contexts, the secrecy that imbues each stage of the anti-terror framework has also spread. In order to combat future threats posed by complex criminal networks, the government has asserted time and time again that it must act in secret. Thus, the intelligence–evidence overlap and its consequence of greater secrecy in judicial proceedings, as observed by Roach and others in respect of anti-terror laws,[183] has now become a characteristic of organised crime laws across Australia. Instead of ‘national security information’ providing the basis of secrecy in declaration and control order proceedings, provisions in state and territory laws now routinely provide for ‘criminal intelligence’ to be withheld from the person and his or her representatives. A pervasive emphasis on secrecy is familiar in the national security context, but was relatively unheard of in the ordinary criminal justice system which is built upon fundamental principles such as open justice and adversarialism.

Finally, not only the laws themselves, but the process by which extreme measures are enacted, has migrated across contexts. The language employed to support the enactment of extreme anti-terror measures by the Howard government seems to have provided a template for the successful enactment of extreme organised crime measures in the states and territories. Emphasising the serious threat posed by feared groups and the need for urgent action, legislators push for an attenuated parliamentary process that may involve limited public consultation and scrutiny. The consistency with which phrases like ‘war’ and ‘terror’ have been used in support of these measures is striking. This rhetoric has clear roots in the anti-terror context, and has now been paired with the ‘tough on crime’, ‘toughest in the country’ and even ‘toughest in the world’ claims of state governments so as to facilitate the rapid enactment of organised crime measures. The longer term impact of the war on terror is clearly visible in the language that continues to surround the introduction and justification of extreme measures. Bikies, it would seem, are the new terrorists.

In these ways we have seen the migration and normalisation not only of exceptional laws, but also of their more subtle, inherent, aspects and even of the process by which they are introduced and enacted. In 2005, there was no reason to suspect that this process of migration of anti-terror laws, let alone their normalisation or extension, was intended or foreseen by political actors. How then did this unintended consequence occur?

There is little to suggest that the migration of control orders from the anti-terror to the organised crime context was a consequence of the measure being particularly effective at preventing crime. Only two anti-terror control orders have ever been issued, and only the control order over Hicks reached the confirmation stage. As Lynch argued, there were strong reasons to suspect that neither Hicks nor Thomas necessarily posed any danger to the Australian community or was likely to be contacted by a terrorist group.[184] In his 2012 report on the control order provisions and their use, the INSLM recommended that the provisions be repealed on the bases of their ineffectiveness and the availability of more appropriate intelligence gathering and criminal justice measures.[185] The INSLM observed that agencies preferred to pursue intelligence activities rather than control orders as ‘surveillance surely promises better value for money’[186] and, he said, there is currently ‘no ground to believe that [control orders] have any demonstrated efficacy as a preventive mechanism’.[187]

One demonstrated advantage of anti-terror control orders is that they enable prolonged preventive restraints on liberty to be placed on individuals in circumstances where there is insufficient evidence on which to prosecute the person for an offence. The INSLM’s investigation revealed that this advantage is well-known to the AFP and has motivated 40 per cent of instances in which that organisation has considered seeking a control order.[188] This advantage may have appeared attractive to state and territory governments wishing to look tough on crime but remaining frustrated by the high thresholds and procedural safeguards of the criminal justice system.

A reason behind the migration of the control order paradigm seems also to lie in the interaction between the states’ tough on crime policy platforms and High Court decisions that lent the schemes the appearance of constitutional legitimacy. The High Court’s decision to uphold anti-terror control orders in Thomas v Mowbray kickstarted the migration of control order schemes and led to their normalisation and expansion. In Thomas v Mowbray, the High Court created a ‘loaded weapon’ of precedent that, as Jackson J famously warned in his dissenting opinion in Korematsu v United States, ‘lies about ... ready for the hand of any authority that can bring forward a plausible claim of an urgent need’.[189] It did not take long for state and territory governments, driven by politically successful tough on crime policy platforms, to point to an urgent need to stop the ‘urban terror’ perpetrated by bikie gangs, and to take this loaded weapon in hand to fight a ‘war on bikies’.

Following Thomas v Mowbray, control orders presented an attractive, and apparently constitutionally permissible, means of cracking down on feared groups within the community before crimes had necessarily been committed. In enacting these schemes, state and territory governments harnessed the rhetoric of urgency, war, terror and serious threat that had accompanied the enactment of the federal anti-terror laws and paired it with their longer-running tough on crime claims. Together these strategies served to justify the swift implementation of exceptional measures, and fed on community fear and concerns in order to attract popular support.

The later cases of Totani and Wainohu slowed this process of migration and normalisation by appearing to undermine the constitutional legitimacy of control orders. However, the cases only indicated that particular provisions were constitutionally repugnant. These provisions could be easily amended without impacting the overall aims or nature of control orders or declaration proceedings. The schemes as a whole, from their onerous potential to inhibit liberty to their severe impositions on fair process, seemed to be outside the concern of constitutional limits on government powers. Thus, these decisions only prompted state governments to experiment with their control order schemes, seeking to comply with constitutional principles whilst maintaining strong law and order policies.

This experience reveals the capacity for constitutional values to have a legitimising effect that facilitates the migration, normalisation and extension of exceptional measures across contexts. However, these values have also played an important role in checking this same process. Constitutional challenges followed each attempt by a government to use its control order provisions for the first time. Whilst the federal and Queensland control order schemes survived constitutional challenge, the South Australian and New South Wales schemes did not, prompting those governments to refine their approaches so as to better comply with the constitutionally mandated separation of judicial power. In fact, both the South Australian and New South Wales governments took significant steps to judicialise the declaration processes in each State, above and beyond what the High Court had indicated was required to remedy the causes of invalidity. The Western Australian government openly refrained from finalising its control order scheme until it could be sure that its provisions would comply with the High Court’s guidance on valid control orders.[190] Despite the decisions in Totani and Wainohu resting on narrow grounds, the cases propelled governments to involve courts in declaration proceedings and to justify the schemes by reference to constitutional values.[191]

With the validation of Queensland’s Criminal Organisation Act 2009 (Qld) in Pompano, a template for valid provisions arose and Western Australia and Victoria let their ‘challenge-proof’ schemes commence with little need for the same emphasis on urgency or imminent threat. In fact, the adoption of control order schemes from 2012 no longer appeared particularly ‘tough’, but instead simply brought their laws into line with those of surrounding jurisdictions.

One might have expected that the migration and normalisation of control orders to the ordinary criminal law would have been cemented when Pompano was handed down in 2012; the control order paradigm had spread across Australia and gained constitutional legitimacy. However, two factors complicated this situation and led to the next stage: that is, the expansion of the control order paradigm into new territory. First, the governments of most states and territories have continued to vie for the mantle of ‘toughest on crime’.[192] This contest requires new reforms and innovations in order for each government to demonstrate that it is tougher, stronger and less tolerant of criminal behaviour as compared to both previous governments and the governments of surrounding jurisdictions. In addition, the effectiveness of control orders at preventing crime still has not been demonstrated — the provisions have failed to produce tangible, politically popular results in any jurisdiction. Without being able to point to past success, governments are driven to implement new reforms to exhibit their hard-line criminal justice policies.

This was the context in which the Newman government labelled control orders as a failure and introduced the ‘toughest [laws] in the world’ to fight its war on bikies.[193] The language of urgency, war and severe threat were again invoked, not only in parliamentary debate but in a widespread and costly advertising campaign. Even with the close of the global war on terror the Queensland government continued to invoke the language of terror and terrorism to support its suite of extreme measures.

Like the earlier control order cases, Kuczborski’s challenge to the VLAD Act, the CODA and other aspects of the Newman government’s anti-bikie laws drew upon the separation of judicial power. As the High Court was unanimous in its finding that Kuczborski lacked sufficient standing to challenge the VLAD Act and Bail Act 1980 (Qld), the validity of these measures remains unresolved. However, the decision gives legitimacy to the CODA and to the anti-bikie provisions of the Liquor Act 1992 (Qld). Past experience would suggest that a process of migration, normalisation and even extension of these extreme measures may soon follow. Indeed, there are hints that this process has already begun. Within weeks of the enactment of Queensland’s new bikie laws, the Western Australian government introduced legislation criminalising participation in, and recruitment to, criminal organisations.[194] Each of these crimes is punishable by 5 years’ imprisonment, which looks meagre in comparison to Queensland’s harsh mandatory minimum terms of 15 or 25 years’ imprisonment. Following the decision in Kuczborski, not only the Western Australian Attorney-General, but his counterparts in South Australia and the Northern Territory indicated that they would be considering the decision very carefully, with an eye to proposing tougher bikie laws in their own jurisdiction.[195]

Even without litigation, constitutional values have a crucial role to play in controlling the processes of migration and normalisation. The language of fairness, democracy and the rule of law featured heavily in the political debate and outcry over the anti-bikie laws, as reflected in Peter Callaghan’s statement on the VLAD Act.[196] In a rare instance of opposition, some judges in Queensland have expressed their concerns with the new anti-bikie laws.[197] This prompted Chief Magistrate Tim Carmody, since appointed Chief Justice of Queensland, to publicly warn newly admitted magistrates that ‘[i]t is clearly wrong ... for judges to deliberately frustrate or defeat the policy goals of what they might personally regard as unfair ... laws’.[198]

Carmody’s comments underscore the tension that exists for judges, and others, in weighing their fidelity to apparently competing constitutional values. On the one hand, the bikie laws challenge fairness, openness, proportionality, justice, judicial integrity, and the rule of law. On the other hand, they represent Parliament responding to a political issue by legislative means that, on present authorities, appear to be in keeping with the constitutional rules and principles enunciated by the High Court.

Now that the CODA has survived a constitutional challenge, it is very likely that Western Australia and other states and territories may well bring their laws into line with those of the Newman government. It appears that either a strong assertion of constitutional values or a shift away from tough on crime policy platforms will be required in order to check the ongoing normalisation and expansion of extreme measures. In the absence of direct constitutional protection for rights or liberties — Australia being the only democratic nation without any form of national bill or charter of rights — and little indication of a waning in the tough on crime policies in the states, the trends observed in this paper may continue to evolve for some time.

VI CONCLUSION

In the years since 9/11, Australia has experienced significant shifts in its traditional legal frameworks. The federal government’s ‘hyper-legislative’ response to the global war on terror has proven to be only the beginning of that shift. Through the interplay between hard-line law and order policy platforms in the states and territories and High Court cases that seemed to lend constitutional legitimacy to extreme measures, Australia has witnessed a multidimensional migration and normalisation of anti-terror laws to new contexts. Once a novel and exceptional measure, control orders have now been implemented in every state and territory but for the Australian Capital Territory and Tasmania, rendering those two jurisdictions outliers in terms of their criminal justice frameworks. This migration and normalisation of control orders has occurred in parallel to the spread of frameworks for declaring criminal organisations, secret evidence in judicial proceedings, and expanded notions of preventive justice and crimes of association. Even the process by which control orders were enacted, particularly the rhetoric that supported the rapid passage of the provisions, has been replicated across jurisdictions. The ‘war on terror’ has become a ‘war on bikies’, with bikies regularly labelled ‘urban terrorists’ and accused of perpetrating a reign of terror on the community.

Developments in Queensland demonstrate the next stage in the migration and normalisation process: namely, the extension of these measures to new extremes. The Newman government’s anti-bikie laws are built upon the same underlying rationale as the anti-terror laws and subsequent control order schemes, and harness the same political rhetoric to garner community and political support. The unsuccessful constitutional challenge to some of those laws in Kuczborski may signal the continuation of a cycle by which extreme measures migrate, normalise and may even give rise to new extremes.

All this demonstrates how the rhetoric used initially to justify anti-terror laws such as control orders, including the notion of a temporary war in which extreme measures were justified, was misleading. With the end of the international war on terror, the legal weapons deployed in aid of that conflict remain with us. The frameworks that extended into new territory to meet the threat of terror have become an established part of the legal landscape. Now these frameworks are being adapted to meet new threats — threats within the ordinary criminal justice sphere. With the benefit of hindsight we can see that during times of community fear, staunch adherence to fundamental values throughout the legislative process is imperative in protecting fundamental rights from long-term erosion.

This story of legitimisation, migration and normalisation highlights the difficult position of Australian courts in seeking to prevent constitutional values from legislative incursion. The High Court’s approach, constrained as it is to structural judicial review based on legislative capacity and the separation of powers, has succeeded in preserving the judiciary’s decisional independence — a government cannot force a judge’s hand. However, the control order cases failed to address some of the clearest problems arising from the provisions and ultimately played a role in facilitating the migration and normalisation of once-extreme measures.

Without explicit protections for liberty or fairness in the Constitution, judges must rely on implications arising from the separation of judicial power (itself an implied doctrine) to preserve fundamental liberties and values. The control order cases demonstrate that the separation of powers is a far from perfect tool in the protection of basic rights. The High Court’s focus on the independence with which these powers were exercised was inevitable, given the limited scope of Australia’s judicially enforceable constitutional values, but ultimately proved distracting and tangential in light of the severe impositions on liberty and fairness effected by the schemes.[199] For example, in Pompano the Chief Justice recognised that secret criminal intelligence evidence was ‘antithetical’ to the ‘method of administering justice’ that lies at the heart of the common law tradition.[200] However, the Court was bound by existing precedent and by the Constitution’s focus on judicial independence, and so these unfair[201] provisions were upheld and thereby gained an appearance of constitutional legitimacy.

Clearly, the Court’s decision in Kuczborski has the capacity to facilitate the further migration and extension of extreme measures. But this decision has a limited scope and invites further litigation to test the VLAD Act and other aspects of the Newman government’s suite of anti-bikie laws. Constitutional values playing out in the legal and political spheres may yet succeed in checking and even winding back the process of migration, normalisation and extension that has seen anti-terror laws adapted to the organised crime context. However, the High Court has little to work with in the absence of explicit constitutional protections for human rights or fair process.

Our analysis has focused on the Australian experience. It is coloured by the system of Australian federalism in which the states bear primary responsibility for law and order, and by the uncommon absence of a national bill or charter of rights. However, the processes of migration and normalisation discussed have global relevance.[202] The war on terror had a sweeping impact on legal frameworks. Indeed, Australia’s original anti-terror control orders were adapted from the United Kingdom.[203] The United Kingdom’s definition of terrorism has similarly migrated to Canada, Singapore, Israel and other jurisdictions, including Australia.[204] Within the United Kingdom the control order framework also underwent a process of migration with, for example, the enactment of serious crime control order schemes.[205] The tensions between constitutional values and preventive anti-terror measures have been experienced widely and have given rise to a substantial body of critique and jurisprudence. Within this broader context, the Australian experience provides a cautionary tale as to the potential for extreme measures to not only migrate and normalise, but to lead to new extremes within a relatively short timeframe. In this way, the war on terror can have an impact that transcends jurisdictional and contextual boundaries.


[*] BA, LLB (Hons) (Wollongong), PhD (UNSW); Lecturer, T C Beirne School of Law, The University of Queensland.

[†] BEc, LLB (Hons) (Macq), LLM (UNSW), PhD (ANU); Anthony Mason Professor, Scientia Professor and Foundation Director, Gilbert + Tobin Centre of Public Law, Faculty of Law, The University of New South Wales; Australian Research Council Laureate Fellow; Barrister, New South Wales Bar. This article is based on a paper presented to the International Association of Constitutional Law World Congress on 17 June 2014 at the University of Oslo.

[1] For example, the United Nations Security Council’s Resolution 1373 of 2001 has been described as Security Council ‘legislation’ on the basis of its unilateral, mandatory, general and novel nature: C H Powell, ‘The United Nations Security Council, Terrorism and the Rule of Law’ in Victor V Ramraj et al (eds), Global Anti-Terrorism Law and Policy (Cambridge University Press, 2nd ed, 2012) 19, 23, 29–30, citing SC Res 1373, UN SCOR, 56th sess, 4385th mtg, UN Doc S/RES/1373 (28 September 2001). See also SC Res 1624, UN SCOR, 60th sess, 5261st mtg, UN Doc S/RES/1624 (14 September 2005).

[2] Andrea Bianchi, ‘Security Council’s Anti-Terror Resolutions and Their Implementation by Member States: An Overview’ (2006) 4 Journal of International Criminal Justice 1044, 1051; George Williams, ‘A Decade of Australian Anti-Terror Laws’ [2011] MelbULawRw 38; (2011) 35 Melbourne University Law Review 1136; Bernadette McSherry, ‘Terrorism Offences in the Criminal Code: Broadening the Boundaries of Australian Criminal Laws’ [2004] UNSWLawJl 26; (2004) 27 University of New South Wales Law Journal 354; Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge University Press, 2011); Kent Roach, ‘The Criminal Law and Its Less Restrained Alternatives’ in Victor V Ramraj et al (eds), Global Anti-Terrorism Law and Policy (Cambridge University Press, 2nd ed, 2012) 91.

[3] The earlier migration of control orders from the United Kingdom to Australia has been explored in, for example, Andrew Lynch, ‘Control Orders in Australia: A Further Case Study in the Migration of British Counter-Terrorism Law’ (2008) 8 Oxford University Commonwealth Law Journal 159; Andrew Lynch, Tamara Tulich and Rebecca Welsh, ‘Secrecy and Control Orders: The Role and Vulnerability of Constitutional Values in the United Kingdom and Australia’ in David Cole, Federico Fabbrini and Arianna Vedaschi (eds), Secrecy, National Security and the Vindication of Constitutional Law (Edward Elgar, 2013) 154; Lisa Burton and George Williams, ‘What Future for Australia’s Control Order Regime?’ (2013) 24 Public Law Review 182.

[4] Gabrielle Appleby and John Williams, ‘The Anti-Terror Creep: Law and Order, the States and the High Court of Australia’ in Nicola McGarrity, Andrew Lynch and George Williams (eds), Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11 (Routledge, 2010) 150.

[5] Nicola McGarrity and George Williams, ‘When Extraordinary Measures Become Normal: Pre-emption in Counter-Terrorism and Other Laws’ in Nicola McGarrity, Andrew Lynch and George Williams (eds), Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11 (Routledge, 2010) 131, 132.

[6] Ibid; Lynch, Tulich and Welsh, above n 3.

[7] George Williams, ‘The Legal Legacy of the “War on Terror”’ [2013] MqLawJl 11; (2013) 12 Macquarie Law Journal 3, 6–7; Williams, ‘A Decade of Australian Anti-Terror Laws’, above n 2, 1140–5.

[8] Roach, The 9/11 Effect, above n 2, 309.

[9] Williams, ‘The Legal Legacy of the “War on Terror”’, above n 7, 7–10; Williams, ‘A Decade of Australian Anti-Terror Laws’, above n 2, 1146–53.

[10] Crimes Act 1914 (Cth) s 3UEA.

[11] Provided that the Attorney-General is satisfied on reasonable grounds that the organisation ‘is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act’ or ‘advocates the doing of a terrorist act’ (discussed further below): Criminal Code Act 1995 (Cth) sch (‘Criminal Code (Cth)’) ss 102.1(2)(a)–(b).

[12] Criminal Code (Cth) div 105.

[13] Australian Security Intelligence Organisation Act 1979 (Cth) pt III div 3.

[14] Commonwealth, Parliamentary Debates, House of Representatives, 21 March 2002, 1936.

[15] Ibid.

[16] See generally McGarrity and Williams, above n 5, 131.

[17] Criminal Code (Cth) div 105, as inserted by Anti-Terrorism Act (No 2) 2005 (Cth) sch 4 item 24.

[18] Criminal Code (Cth) div 80, as amended by Anti-Terrorism Act (No 2) 2005 (Cth) sch 7 items 5–12.

[19] See, eg, Commonwealth, Parliamentary Debates, Senate, 5 December 2005, 19 (George Brandis), 120 (Mark Bishop); see especially at 30, where Robert Hill said:

Perhaps the government is focusing on the 88 innocent Australians who were killed while enjoying a holiday in Bali. ... [I]nnocent Australians — men, women and children — who were slaughtered by those who sought to use them as political pawns in an international terrorist operation. The Australian government believes that we should do all within reason to protect Australians from this sort of threat. If it means that there will be a loss of some civil liberties, so be it.

See also Commonwealth, Parliamentary Debates, House of Representatives, 29 November 2005, 56 (Stuart Henry), 89 (Philip Ruddock).

[20] Commonwealth, Parliamentary Debates, Senate, 5 December 2005, 129. At this time Conroy was Deputy Opposition Leader in the Senate.

[21] Commonwealth, Parliamentary Debates, House of Representatives, 3 November 2005, 102.

[22] Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Provisions of the Anti-Terrorism Bill (No 2) 2005 (2005) 1. The Committee advertised for submissions on 5 November 2005 in The Australian newspaper. The deadline for submissions was set at 11 November 2005, to assist the committee to meet its reporting deadline of 28 November 2005. Three days of hearings were held in Sydney on Monday 14, Thursday 17 and Friday 18 November 2005.

[23] For discussion of the enactment of the Anti-Terrorism Act (No 2) 2005 (Cth), see Williams, ‘A Decade of Australian Anti-Terror Laws’, above n 2, 1165.

[24] Andrew Lynch, Nicola McGarrity and George Williams, Inside Australia’s Anti-Terrorism Laws and Trials (NewSouth Publishing, 2015) 133, 181. For discussion of the necessity and use of control orders and PDOs, see Independent National Security Legislation Monitor, Declassified Annual Report (2012) 13–25, 38, 45.

[25] For a discussion of this in the United States context, see Lee Jarvis, ‘Times of Terror: Writing Temporality into the War on Terror’ (2008) 1 Critical Studies on Terrorism 245.

[26] This is evidenced in Australia by the inclusion, in some pieces of counter-terrorism legislation, including the control order regime, of sunset clauses or a requirement that a review be held after a specified period of time has elapsed, or both. However, such mechanisms may prove to be of limited effectiveness: Nicola McGarrity, Rishi Gulati and George Williams, ‘Sunset Clauses in Australian Anti-Terror Laws’ (2012) 33 Adelaide Law Review 307.

[27] McGarrity and Williams, above n 5, 131.

[28] Commonwealth, Parliamentary Debates, House of Representatives, 29 November 2005, 100–1; see also at 56–7 (Stuart Henry); Commonwealth, Parliamentary Debates, Senate, 5 December 2005, 19 (George Brandis), 120 (Mark Bishop), 129 (Stephen Conroy). Also, for example, in introducing the Terrorism Legislation Amendment (Warrants) Bill 2005 (NSW) into the New South Wales Parliament, the Attorney-General of that State, Bob Debus, said:

The threat posed by terrorism clearly poses unique challenges. ... General criminal activity has never aimed to perpetrate the mass taking of life, the widespread destruction of property, or the wholesale disruption of society in the way that terrorism does. The powers in the bill are not designed or intended to be used for general policing.

New South Wales, Parliamentary Debates, Legislative Assembly, 9 June 2005, 16 940.

[29] Criminal Code (Cth) ss 104.5(3), 104.5(6).

[30] For criticism, see, eg, Paul Fairall and Wendy Lacey, ‘Preventative Detention and Control Orders under Federal Law: The Case for a Bill of Rights’ [2007] MelbULawRw 40; (2007) 31 Melbourne University Law Review 1072; Burton and Williams, above n 3.

[31] See, eg, Community Protection Act 1994 (NSW), which was found invalid in Kable v DPP (NSW) (1996) 189 CLR 51; Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), which was found valid in Fardon v A-G (Qld) [2004] HCA 46; (2004) 223 CLR 575; Serious Sex Offenders Monitoring Act 2005 (Vic), as repealed by Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) s 200. For discussion of these orders as contrasted to Australia’s preventive anti-terror schemes, see Tamara Tulich, ‘Prevention and Pre-emption in Australia’s Domestic Anti-Terrorism Legislation’ (2012) 1 International Journal for Crime and Justice 52.

[32] See Criminal Code (Cth) s 104.28.

[33] Ibid s 104.16(1)(d).

[34] Ibid s 104.5(2). In his 2012 report the Independent National Security Legislation Monitor (‘INSLM’) reasoned that the proceedings with respect to Joseph Thomas demonstrated that ‘once a person has trained with a terrorist organisation that person will always meet the requirements for a [control order]’: INSLM, above n 24, 24. This observation highlights the likelihood and ease with which consecutive control orders may be obtained.

[35] Issuing courts are the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia: Criminal Code (Cth) s 100.1 (definition of ‘issuing court’). The court receives the application in the same form it was presented to the Attorney-General, subject to any changes required by the Attorney-General, as well as information sworn by the applicant and the written consent of the Attorney-General: at s 104.3.

[36] Ibid s 104.4(1)(c)(i).

[37] Ibid s 104.4(1)(c)(ii).

[38] Ibid ss 104.4(1)(c)(iii)–(v). The additional grounds were introduced by the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth) and the Counter-Terrorism Legislation Amendment Act (No 1) 2014 (Cth).

[39] Criminal Code (Cth) s 104.4(1)(d).

[40] Ibid ss 104.5(1A), 104.12(1)(a).

[41] See ibid ss 104.4(1)(c)–(d), 104.16(1)(a).

[42] See ibid ss 100.1 (definition of ‘listed terrorist organisation’), 102.1 (definition of ‘terrorist organisation’). There are 10 organisations now officially listed, all of them Islamic-based and many of them Al Qa’ida-related: Criminal Code Regulations 2002 (Cth) pt 2.

[43] Security Legislation Amendment (Terrorism) Act 2002 (Cth) sch 1 item 4, inserting Criminal Code (Cth) ss 102.3–102.7.

[44] Criminal Code (Cth) s 102.8.

[45] See ibid div 102 sub-div B. On the difficulties in prosecuting terrorist organisation offences experienced in Australia’s terrorism trials to 2010, see Nicola McGarrity, ‘“Testing” Our Counter-Terrorism Laws: The Prosecution of Individuals for Terrorism Offences in Australia’ (2010) 34 Criminal Law Journal 92, 100, 126.

[46] Andrew Lynch, Nicola McGarrity and George Williams, ‘The Proscription of Terrorist Organisations in Australia’ [2009] FedLawRw 1; (2009) 37 Federal Law Review 1, 10–12.

[47] Ibid 7.

[48] Criminal Code (Cth) s 104.2(3)(f). The AFP’s request must also address: the proposed order, facts supporting the making of the order, and a history of control order and PDO proceedings in which the individual has been involved: see generally at s 104.2(3).

[49] Ibid s 104.2(3A).

[50] NSIA s 17.

[51] Ibid s 8.

[52] Criminal Code (Cth) s 104.12A(3)(a).

[53] Ibid ss 104.12A(3)(b)–(d).

[54] For discussion, see Burton and Williams, above n 3, 191–3.

[55] INSLM, above n 24, 13.

[56] Ibid 31.

[57] See Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, 310.

[58] DPP (Cth) v Thomas [2006] VSC 120 (31 March 2006), cited in Andrew Lynch, ‘Thomas v Mowbray: Australia’s “War on Terror” Reaches the High Court’ [2008] MelbULawRw 37; (2008) 32 Melbourne University Law Review 1182, 1187. Thomas was convicted on two lesser charges of intentionally receiving funds from a terrorist organisation and possessing a falsified passport: see Criminal Code (Cth) s 102.6(1); Passports Act 1938 (Cth) s 9A. Each of these convictions was quashed on appeal: R v Thomas [2006] VSCA 165; (2006) 14 VR 475.

[59] Lynch, ‘Thomas v Mowbray’, above n 58, 1188, quoting Lucia Zedner, ‘Seeking Security by Eroding Rights: The Side-Stepping of Due Process’ in Benjamin J Goold and Liora Lazarus (eds), Security and Human Rights (Hart Publishing, 2007) 257, 265. See also Helen Fenwick, Civil Liberties and Human Rights (Routledge-Cavendish, 4th ed, 2007) 1340–2; INSLM, above n 24, 17.

[60] Jabbour v Thomas [2006] FMCA 1286; (2006) 165 A Crim R 32. The Federal Magistrates Court has since been renamed the Federal Circuit Court.

[61] Hamdan v United States, 696 F 3d 1238, 1251 (DC Cir, 2012) (Judge Kavanaugh).

[62] Hicks had been detained as a consequence of his involvement with Al Qa’ida forces in Afghanistan. The control order over Hicks expired in 2008. For critique, see Timothy L H McCormack, ‘David Hicks and the Charade of Guantánamo Bay’ [2007] MelbJlIntLaw 15; (2007) 8 Melbourne Journal of International Law 273.

[63] Jabbour v Thomas [2006] FMCA 1286; (2006) 165 A Crim R 32, 43–6; Jabbour v Hicks [2007] FMCA 2139; (2007) 183 A Crim R 297, 309–11.

[64] ‘Thomas Control Order “Silly”’, The Age (online), 31 August 2006 <http://www.theage.com.au/news/national/thomas-control-order-silly/2006/08/31/1156817006116.html> .

[65] See Jabbour v Thomas [2006] FMCA 1286; (2006) 165 A Crim R 32, 39 [56] (Mowbray FM), 45.

[66] R v Kirby; Ex parte Boilermakers Society of Australia [1956] HCA 10; (1956) 94 CLR 254, 271–2 (Dixon CJ, McTiernan, Fullagar and Kitto JJ).

[67] See George Williams and David Hume, Human Rights under the Australian Constitution (Oxford University Press, 2nd ed, 2013) 325–8; James Stellios, ‘Reconceiving the Separation of Judicial Power’ (2010) 22 Public Law Review 113, 119–20; George Winterton, ‘The Separation of Judicial Power as an Implied Bill of Rights’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines (Federation Press, 1994) 185.

[68] [2007] HCA 33; (2007) 233 CLR 307.

[69] Though Hayne J agreed with the majority justices that the provisions were supported by s 51 of the Constitution: ibid 459–60 [444].

[70] See Constitution s 51(vi); Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, 324–6 [7]–[9] (Gleeson CJ), 359–64 [132]–[148] (Gummow and Crennan JJ), 449–60 [411]–[445] (Hayne J), 504–6 [585]–[590] (Callinan J); Lynch, ‘Thomas v Mowbray’, above n 58, 1189–96; Hernan Pintos-Lopez and George Williams, ‘“Enemies Foreign and Domestic”: Thomas v Mowbray and the New Scope of the Defence Power’ [2008] UTasLawRw 4; (2008) 27 University of Tasmania Law Review 83.

[71] Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, 327–8 [15] (Gleeson CJ), 347–8 [78]–[79] (Gummow and Crennan JJ), 506–7 [591]–[596] (Callinan J). For discussion and critique of the case, see Denise Meyerson, ‘Using Judges to Manage Risk: The Case of Thomas v Mowbray(2008) 36 Federal Law Review 209; Lynch, ‘Thomas v Mowbray’, above n 58; Christos Mantziaris, ‘Commonwealth Judicial Power for Interim Control Orders — The Chapter III Questions Not Answered’ (2009) 10 Constitutional Law and Policy Review 65.

[72] See Lynch, ‘Control Orders in Australia’, above n 3; Lynch, Tulich and Welsh, above n 3.

[73] Zedner, above n 59, 264.

[74] Janne Flyghed, ‘Normalising the Exceptional: The Case of Political Violence’ (2002) 13 Policing and Society 23, 28.

[75] Appleby and Williams, ‘The Anti-Terror Creep’, above n 4, 151.

[76] See Gabrielle J Appleby and John M Williams, ‘A New Coat of Paint: Law and Order and the Refurbishment of Kable[2012] FedLawRw 1; (2012) 40 Federal Law Review 1, 1–4.

[77] Ibid 3.

[78] ABC Radio National, ‘South Australia’s Plans to Obliterate Outlaw Bikie Gangs’, The Law Report, 6 May 2008 (Mike Rann).

[79] ‘SA Government to Ban Bikie Gangs’, The Sydney Morning Herald (online), 20 November 2007 <http://www.smh.com.au/news/National/SA-government-to-ban-bikie-gangs/2007/11/20/1195321747018.html> .

[80] See generally SOCCA pt 2; Criminal Code (Cth) div 102.

[81] SOCCA s 10; Criminal Code (Cth) ss 100.1 (definition of ‘listed terrorist organisation’), 102.1(1) (definition of ‘terrorist organisation’), 102.1(2). Declarations by the South Australian Attorney-General are made following an application by the Commissioner of Police. Under the federal scheme, the Attorney-General may act on his or her own initiative but, in practice, relies on advice from ASIO: Lynch, McGarrity and Williams, ‘The Proscription of Terrorist Organisations in Australia’, above n 46, 6.

[82] SOCCA s 11(1).

[83] Criminal Code (Cth) s 102.1(2).

[84] SOCCA ss 22(5), 22I(1). See also Crimes (Criminal Organisations Control) Act 2012 (NSW) ss 267.

[85] SOCCA ss 22, 267.

[86] Ibid s 22(5).

[87] Ibid s 22I. See also Crimes (Criminal Organisations Control) Act 2012 (NSW) s 26.

[88] SOCCA s 13(1) (as originally enacted).

[89] Ibid s 13(2). The exceptions were for a person conducting a review of the legislation or a person specifically authorised by the Commissioner.

[90] Ibid s 3 (definition of ‘criminal intelligence’). This definition is retained in the current version of SOCCA.

[91] The definition was in fact adopted from South Australian laws also aimed at limiting the criminal conduct of bikie gangs and upheld as constitutionally valid in early 2009: see KGeneration Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501.

[92] Criminal Code (Cth) ss 104.12A(3)(c)–(d).

[93] Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532, 560 [39] (Gummow, Hayne, Heydon and Kiefel JJ). See also K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 295 ALR 638.

[94] SOCCA s 5A(1)(a).

[95] Ibid s 15(4).

[96] See Aileen Kavanagh, ‘Special Advocates, Control Orders and the Right to a Fair Trial’ (2010) 73 Modern Law Review 836, 837 (discussing United Kingdom); Kent Roach, ‘The Eroding Distinction between Intelligence and Evidence in Terrorism Investigations’ in Nicola McGarrity, Andrew Lynch and George Williams (eds), Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11 (Routledge, 2010) 48 (discussing Canada and Australia).

[97] See Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Security Sensitive Information, Report No 98 (2004) 379–80 [10.8].

[98] Crimes (Criminal Organisations Control) Act 2012 (NSW); Serious Crime Control Act 2009 (NT); Criminal Organisation Act 2009 (Qld); SOCCA; Criminal Organisations Control Act 2012 (Vic); Criminal Organisations Control Act 2012 (WA).

[99] John Ferguson, ‘Law Institute Questions “Challenge-Proof” Bikie Laws’, The Australian (online), 15 November 2012 <http://www.theaustralian.com.au/national-affairs/state-politics/law-institute-questions-challenge-proof-bikie-laws/story-e6frgczx-1226516938560?nk=919c77607f3d36882bb447df540486d6> ‘State Targets Bikies with New Laws’, The West Australian (online), 29 October 2013 <https://au.news.yahoo.com/thewest/latest/a/19591840/state-targets-bikies-with-new-laws/>. This intention was also flagged in the second reading speech for the Criminal Organisations Control Bill 2011 (WA): Western Australia, Parliamentary Debates, Legislative Council, 22 March 2012, 1149 (Michael Mischin):

Given the financial and legal resources available to organised crime gangs, the government is fully aware that every step of this legislation is likely to be litigated, and possibly some parts subject to constitutional challenge. Given the onerous and time-consuming nature of such challenges, it is the government’s intent with this bill that its key features be sufficiently targeted, stringent and varied to make the legislation a worthwhile tool for our state’s police and prosecution authorities.

[100] New South Wales, Parliamentary Debates, Legislative Assembly, 2 April 2009, 14 449–51.

[101] Ibid 14 455; see also at 14 464 (David Campbell).

[102] Ibid 14 455–6.

[103] Rebecca Welsh, ‘“Incompatibility” Rising? Some Potential Consequences of Wainohu v New South Wales(2011) 22 Public Law Review 259, 259–60.

[104] Appleby and Williams, ‘The Anti-Terror Creep’, above n 4, 152, citing South Australia, Parliamentary Debates, Legislative Council, 7 May 2008, 2759 (M Parnell).

[105] Greg Stolz, ‘Another Bikie Brawl on Gold Coast as Rivals Clash at Smoothie Shack at Nobbys Beach, Gold Coast’, The Courier-Mail (online), 1 October 2013 <http://www.couriermail.com.au/news/queensland/another-bikie-brawl-on-gold-coast-as-rivals-clash-at-smoothie-shack-at-nobbys-beach-gold-coast/story-fnihsrf2-1226730295951> .

[106] ‘Western Australia to Introduce Toughest Bikie Laws’, news.com.au (online), 13 November 2011 <http://www.news.com.au/national/breaking-news/western-australia-to-introduce-toughest-bikie-laws/story-e6frfku9-1226193812926> .

[107] ABC Television, ‘Queensland to Introduce the World’s Toughest Bikie Laws’, Lateline, 30 September 2013 (Jarrod Bleijie).

[108] See, eg, Ferguson, above n 99; Northern Territory, Parliamentary Debates, Legislative Assembly, 11 June 2009 (Delia Lawrie) <http://notes.nt.gov.au/lant/hansard/hansard11.nsf/WebbyDate?OpenView & Start=1 & Count=300 & Expand=6.3.2#6.3.2> :

If interstate gangs relocate to the Northern Territory as a result of the tough stance taken in South Australia and New South Wales, it could be expected that illegal operations and violence would increase here. We are taking steps to ensure that the Northern Territory is not faced with similar problems.

See also Western Australia, Parliamentary Debates, Legislative Council, 22 March 2012, 1148 (Michael Mischin):

Across Australia communities have had enough of these activities, and governments across the nation, both state and commonwealth, have acted using appropriately tough but highly targeted legislation. Whilst the introduction of this legislation in two other states, South Australia and New South Wales, has been the subject of successful challenges in the High Court, Western Australia has the advantage of the High Court decisions providing us here in Western Australia with guidance about the most constitutionally valid approach. More importantly, the New South Wales decision found that there is nothing constitutionally or legally objectionable about the principal underlying objectives of these laws.

[109] Crimes (Criminal Organisations Control) Act 2009 (NSW) ss 9(1), 268; Serious Crime Control Act 2009 (NT) ss 18, 27, 73; Criminal Organisation Act 2009 (Qld) ss 10, 19, pt 6; SOCCA ss 5A, 11(1), 22; Criminal Organisations Control Act 2012 (Vic) ss 19, 45, pt 4; Criminal Organisations Control Act 2012 (WA) ss 13, 58, pt 5.

[110] Criminal Organisation Act 2009 (Qld) ss 10, 18, sch 2 (definition of ‘Court’); Criminal Organisations Control Act 2012 (Vic) ss 3(1) (definition of ‘Court’), 19.

[111] Crimes (Criminal Organisations Control) Act 2009 (NSW) ss 5, 9; Serious Crime Control Act 2009 (NT) ss 6 (definition of ‘eligible judge’), 14; Criminal Organisations Control Act 2012 (WA) ss 3(1) (definition of ‘designation authority’), 13.

[112] This distinction is of integral importance in the Australian context, where the strict separation of judicial power prevents the conferral of non-judicial functions, such as the administrative task of declaring an organisation, on courts. Whilst this rule, derived from the Constitution, only prevents state courts from undertaking those non-judicial tasks that are incompatible with their independence and integrity, the rule accounts for parliaments’ reticence to give the role to a court. For authority on these principles as they apply in the federal and state contexts respectively, see Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1; Wainohu v New South Wales (2011) 243 CLR 181. The New South Wales scheme has now been amended to vest the declaration role with the Supreme Court: see Crimes (Criminal Organisations Control) Amendment Act 2013 (NSW).

[113] See Charter of Human Rights and Responsibilities Act 2006 (Vic).

[114] Criminal Organisations Control Act 2012 (Vic) s 71.

[115] Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51, 82 (Dawson J), 103 (Gaudron J). See also Fardon v A-G (Qld) [2004] HCA 46; (2004) 223 CLR 575, 591 [15]–[18] (Gleeson CJ), 655 [219] (Callinan and Heydon JJ); K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501, 529 [84]–[85] (French CJ); Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, 579–81 [94]–[100] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[116] [2010] HCA 39; (2010) 242 CLR 1.

[117] See, eg, ibid 21 [3]–[4] (French CJ).

[118] Serious and Organised Crime (Control) (Miscellaneous) Amendment Act 2012 (SA) s 6.

[119] (2011) 243 CLR 181.

[120] Ibid 192 [6] (French CJ and Kiefel J), 229–30 [107]–[109] (Gummow, Hayne, Crennan and Bell JJ).

[121] Crimes (Criminal Organisations Control) Act 2012 (NSW) s 13(2).

[122] Western Australia, Parliamentary Debates, Legislative Council, 22 March 2012, 1148.

[123] Lanai Vasek, ‘NSW Has Called on the Federal Government to Implement National Anti-Bikie Laws’ The Australian (online), 13 January 2012 <http://www.theaustralian.com.au/news/nation/nsw-has-called-on-the-federal-government-to-implement-national-anti-bikie-laws/story-e6frg6nf-1226243540490> . In developments since then, Queensland and other states have resisted referring their powers in this respect to the federal government: Michael McKenna, ‘Row Brews on Bikie Wealth Laws’, The Australian (Sydney), 9 October 2013, 3. Nonetheless, the Abbott government has designed a policy to tackle crime which includes a range of measures aimed at organised and gang-related crime: Liberal Party of Australia, The Coalition’s Policy to Tackle Crime (2013) 6–8.

[124] (2013) 295 ALR 638.

[125] Ibid 666 [88].

[126] Ibid 684 [166]–[168].

[127] Ibid 694 [212].

[128] Except to say it falls short of imprisonment in a state facility: see, eg, Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, 330 [18] (Gleeson CJ), 356 [116] (Gummow and Crennan JJ), 459 [444] (Hayne J); Totani [2010] HCA 39; (2010) 242 CLR 1, 83 [212] (Hayne J), 171 [474] (Kiefel J).

[129] Crimes (Criminal Organisations Control) Act 2012 (NSW), as amended by Crimes (Criminal Organisations Control) Amendment Act 2013 (NSW); SOCCA, as amended by Serious and Organised Crime (Control) (Declared Organisations) Amendment Act 2013 (SA).

[130] See Jarrod Bleijie, ‘How to Win War with Bikie Gangs’, The Australian (Sydney), 20 December 2013, 10; Queensland, Parliamentary Debates, Legislative Assembly, 15 October 2013, 3114 (Campbell Newman), 3120 (Jarrod Bleijie).

[131] Criminal Law (Two Strike Child Sex Offenders) Amendment Act 2012 (Qld) s 7; Criminal Law Amendment Act 2012 (Qld) ss 3, 7; Criminal Law and Other Legislation Amendment Act 2013 (Qld) ss 47, 83; Criminal Code (Criminal Organisations Disruption) Amendment Act 2013 (Qld) ss 43, 45, 46.

[132] Criminal Law (Criminal Organisations Disruption) and Other Legislation Amendment Act 2013 (Qld) s 123.

[133] Criminal Proceeds Confiscation (Unexplained Wealth and Serious Drug Offender Confiscation Order) Amendment Act 2013 (Qld).

[134] See Criminal Law Amendment (Public Interest Declarations) Amendment Act 2013 (Qld) s 6; A-G (Qld) v Lawrence [2013] QCA 364; (2013) 306 ALR 281. For further discussion of these reforms, see Andrew Trotter and Harry Hobbs, ‘The Great Leap Backward: Criminal Law Reform with the Hon Jarrod Bleijie’ [2014] SydLawRw 1; (2014) 36 Sydney Law Review 1.

[135] Tim Priest, ‘Bikies Find Money Talks’, The Australian (Sydney), 18 October 2013, 10. See also Tim Priest, ‘A Global Bikie War Is About to Land on Our Shores’, The Daily Telegraph (online), 9 October 2013 <http://www.dailytelegraph.com.au/news/nsw/a-global-bikie-war-is-about-to-land-on-our-shores/story-fni0cx12-1226735021791?nk=6dfc7737d3d87b3748269b3f2d1e3a6f> . Tim Priest has been criticised for his views: see, eg, Miranda Devine, ‘Injustice Rolls On — Over the Messenger’, The Sydney Morning Herald (Sydney), 23 February 2006, 13.

[136] Queensland, Parliamentary Debates, Legislative Assembly, 15 October 2013, 3158–269.

[137] See VLAD Act ss 3 (definition of ‘declared offence’), 7(1).

[138] CODA s 42, inserting Criminal Code Act 1899 (Qld) sch 1 (‘Criminal Code (Qld)’) s 60A.

[139] Explanatory Notes, Vicious Lawless Association Disestablishment Bill 2013 (Qld) 3.

[140] Peter Callaghan, ‘Peter Callaghan, Head of Queensland Law and Justice Institute, Slams New Bikie Laws’, The Courier-Mail (online), 15 October 2013 <http://www.couriermail.com.au/news/opinion/peter-callaghan-head-of-queensland-law-and-justice-institute-slams-new-bikie-laws/story-fnihsr9v-1226740346105?nk=b81ecbe800cf4ae2c15f60a68bacdb37> , quoted in Queensland, Parliamentary Debates, Legislative Assembly, 15 October 2013, 3232–3 (Curtis Pitt). Pitt referred to the statement ‘to ensure that we have on the parliamentary record at least one legal opinion — certainly not the opinion of the Attorney-General or someone who has been involved in the legislative drafting process’: at 3232.

[141] Queensland, Parliamentary Debates, Legislative Assembly, 15 October 2013, 3236.

[142] Amy Remeikis, ‘Queensland Spends Big to Get Anti-Bikie Message Across’, The North West Star (online), 20 October 2013 <http://www.northweststar.com.au/story/1852100/> Terry Goldsworthy, ‘The Battle to Win Hearts and Minds in Queensland’s Bikie War’, The Conversation (online), 21 February 2014 <http://theconversation.com/the-battle-to-win-hearts-and-minds-in-queenslands-bikie-war-23283> .

[143] Kuczborski v Queensland [2014] HCA 46; (2014) 314 ALR 528, 536 [13] (French CJ), 548 [67] (Hayne J).

[144] Ibid 536 [14].

[145] VLAD Act ss 3 (definition of ‘association’ para (d)), 5(1)(b).

[146] Ibid ss 3 (definition of ‘declared offence’), 5(1)(a), 5(1)(c).

[147] Ibid sch 1.

[148] Ibid s 5(2).

[149] Ibid ss 7(1)(b), 8.

[150] Ibid ss 3 (definition of ‘office bearer’), 7(1)(c), 8.

[151] Ibid s 9.

[152] See Queensland, Parliamentary Debates, Legislative Assembly, 15 October 2013, 3115 (Jarrod Bleijie).

[153] See, eg, Charmaine Kane, ‘VLAD Laws Target Non-Bikies for First Time’, ABC Gold Coast (online), 27 March 2014 <http://www.abc.net.au/local/stories/2014/03/27/3973032.htm> .

[154] See Trotter and Hobbs, above n 134, 38.

[155] See Kuczborski v Queensland [2014] HCA 46; (2014) 314 ALR 528, 546 [57] (Hayne J), 568 [168] (Crennan, Kiefel, Gageler and Keane JJ). In introducing the VLAD Act, Bleijie labelled it a ‘punishment regime’ and referred to the mandatory sentence as ‘extra punishment’: Queensland, Parliamentary Debates, Legislative Assembly, 15 October 2013, 3115. In a more nuanced description, Bleijie also said:

The bill is intended to deter individuals from participating in these criminal organisations, encourage persons involved in such organisations to cooperate with law enforcement to avoid severe penalties, and break the morale of members in criminal motorcycle gangs.

[156] CODA s 42, inserting Criminal Code (Qld) s 60A. The CODA and a related piece of legislation, the Criminal Law (Criminal Organisations Disruption) and Other Legislation Amendment Act 2013 (Qld), contained a range of reforms including providing additional powers to the Crime and Corruption Commission and regulating the involvement of participants in criminal organisations in electrical, liquor, racing, tattoo, building, tow truck, pawnbroking, and other industries.

[157] CODA s 42, inserting Criminal Code (Qld) s 60A(3) (definition of ‘participant’ paras (b)–(c)).

[158] CODA s 49, inserting Criminal Code (Qld) s 708A.

[159] Criminal Code (Criminal Organisations) Regulation 2013 (Qld) reg 2.

[160] Marty Silk, ‘Bikie Evidence to Be Secret Forever’, Brisbane Times (online), 15 January 2014 <http://www.brisbanetimes.com.au/queensland/bikie-evidence-to-be-secret-forever-20140115-30vg3.html> .

[161] CODA s 42, inserting Criminal Code (Qld) s 60A(1).

[162] CODA s 42, inserting Criminal Code (Qld) s 60A(2).

[163] Frank Robson, ‘Crack Down’, Sydney Morning Herald (online), 14 June 2014 <http://www.smh.com.au/lifestyle/crack-down-20140613-39rul.html> .

[164] Brooke Baskin, ‘Librarian and Accused Bikie Sally Louise Kuether Freed on Bail’, The Courier-Mail (Brisbane), 31 January 2014, 3.

[165] In addition to the VLAD Act and the Criminal Code (Qld) ss 60A–60C, Kuczborski challenged the Liquor Act 1992 (Qld) ss 173EB173ED, the Criminal Code (Qld) ss 72(2), 92A(4A), 320(2) and 340(1A), and the Bail Act 1980 (Qld) ss 16(3A)16(3D).

[166] [2014] HCA 46; (2014) 314 ALR 528. See Liquor Act 1992 (Qld) ss 173EB173ED.

[167] Criminal Code (Qld) s 60A.

[168] Kuczborski [2014] HCA 46; (2014) 314 ALR 528, 577–8 [219]–[227] (Crennan, Kiefel, Gageler and Keane JJ).

[169] Ibid 579 [229]; see generally at 579 [228]–[231].

[170] Ibid 579–81 [232]–[238].

[171] Ibid 579–81 [230]–[238].

[172] See the INSLM’s comments cited above about control orders being considered primarily in circumstances where there was insufficient proof upon which to mount a conviction: see above n 55 and accompanying text.

[173] See Trotter and Hobbs, above n 134, 3.

[174] ‘Newman Tipped to Lose Seat Despite LNP Win’, Brisbane Times (online), 22 July 2014 <http://www.brisbanetimes.com.au/queensland/newman-tipped-to-lose-seat-despite-lnp-win-20140722-zvrt9.html> Amy Remeikis, ‘Queensland State Election: Campbell Newman Promotes VLAD Laws’, Brisbane Times (online), 7 January 2015 <http://www.brisbanetimes.com.au/queensland/queensland-state-election-2015/queensland-state-election-campbell-newman-promotes-vlad-laws-20150107-12jafx.html> .

[175] ‘Pink for Punks: Queensland Plan to Embarrass Bikies in Jail’, The Guardian (online), 21 October 2013 <http://www.theguardian.com/world/2013/oct/21/pink-for-punks-queensland-bikies> .

[176] Criminal Law (Criminal Organisations Disruption) and Other Legislation Amendment Act 2013 (Qld) s 14.

[177] Crime and Corruption Act 2001 (Qld) s 198(4), as inserted by CODA s 28. These terms are at the court’s discretion for the first charge, two years and six months for the second, and five years for the third: Crime and Corruption Act 2001 (Qld) s 199(8B), as inserted by CODA s 30.

[178] Crime and Corruption Act 2001 (Qld) s 74(5A).

[179] Criminal Law (Criminal Organisations Disruption) and Other Legislation Amendment Act 2013 (Qld) pts 8, 14, 19.

[180] Ibid pt 13.

[181] Ibid s 123, inserting Police Service Administration Act 1990 (Qld) s 10.2AAA (definition of ‘current or former participant’).

[182] Trotter and Hobbs, above n 134.

[183] See above n 96 and accompanying text.

[184] See Lynch, ‘Thomas v Mowbray’, above n 58, 1187. Lynch refers to Thomas, but the point relates equally to Hicks.

[185] INSLM, above n 24, 43–4.

[186] Ibid 28.

[187] Ibid 38.

[188] Ibid 13.

[189] [1945] USSC 43; 323 US 214, 246 (1944).

[190] Emily Moulton, ‘WA Police and Perth Courts Have Greater Powers in Fight against Bikies’, Perth Now (online), 29 October 2013 <http://www.perthnow.com.au/news/western-australia/wa-police-and-perth-courts-have-greater-powers-in-fight-against-bikies/story-fnhocxo3-1226749205819?nk=6dfc7737d3d87b3748269b3f2d1e3a6f> Western Australia, Parliamentary Debates, Legislative Council, 22 March 2012, 1148–9 (Michael Mischin).

[191] See, eg, Northern Territory, Parliamentary Debates, Legislative Assembly, 11 June 2009 (Delia Lawrie) <http://notes.nt.gov.au/lant/hansard/hansard11.nsf/WebbyDate?OpenView & Start=1 & Count=300 & Expand=6.3.2#6.3.2> Victoria, Parliamentary Debates, Legislative Assembly, 15 November 2012, 5070–3 (Robert Clark).

[192] See, eg, Queensland, Parliamentary Debates, Legislative Assembly, 15 October 2013, 3114 (Campbell Newman), 3120 (Jarrod Bleijie).

[193] Ibid 3114 (Campbell Newman).

[194] Criminal Organisation Control Act 2012 (WA). See also Michael Mischin, ‘Crackdown Set to Begin on WA’s Criminal Gangs’ (Media Statement, 29 October 2013).

[195] Cleo Fraser, ‘States, NT May Adopt Qld Anti-Bikie Laws’, news.com.au (online), 14 November 2014 <http://www.news.com.au/national/breaking-news/court-rejects-challenge-to-qld-bikie-laws/story-e6frfku9-1227122720200> .

[196] For instance:

For example, it contains more provision for mandatory imprisonment — yet another attack on the concept of judicial discretion.

A responsible debate would involve questions about respect for the separation of powers, evidence proving the need for such a provision, and whether any appeals against the inadequacy of sentences imposed on bikies have been lost.

Callaghan, above n 140, quoted in Queensland, Parliamentary Debates, Legislative Assembly, 15 October 2013, 3232 (Curtis Pitt).

[197] See, eg, Justice Philip McMurdo, ‘Statement by the Judicial Conference of Australia on the Queensland Vicious Lawless Association Disestablishment Act 2013’ (Media Release, 24 October 2013).

[198] Sarah Vogler, ‘Pull Your Heads In, Chief Judge Tells Colleagues’, The Courier-Mail (Brisbane), 30 January 2014, 4.

[199] See generally Williams and Hume, above n 67, 325–8.

[200] (2013) 295 ALR 638, 640 [1] (French CJ), quoting A L Goodhart, ‘What Is the Common Law’ (1960) 76 Law Quarterly Review 45, 46.

[201] Pompano (2013) 295 ALR 638, 692 [202] (Gageler J), though for Gageler J the provisions were saved by the capacity for the Court to order a stay of proceedings for want of fairness — an eventuality his Honour may have envisaged would not be rare.

[202] See, eg, Laura K Donohue, ‘Transplantation’ in Victor V Ramraj et al (eds), Global Anti-Terrorism Law and Policy (Cambridge University Press, 2nd ed, 2012) 67.

[203] See generally Susan Donkin, Preventing Terrorism and Controlling Risk: A Comparative Analysis of Control Orders in the UK and Australia (Springer, 2014); Lynch, ‘Control Orders in Australia’, above n 3; Lynch, Tulich and Welsh, above n 3; Burton and Williams, above n 3.

[204] Roach, The 9/11 Effect, above n 2, 443. See also Clive Walker, ‘The Reshaping of Control Orders in the United Kingdom: Time for a Fairer Go, Australia!’ [2013] MelbULawRw 11; (2013) 37 Melbourne University Law Review 143.

[205] Roach, The 9/11 Effect, above n 2, 444. However, in the United Kingdom control orders were far more frequently used than in Australia, and have since been repealed and replaced with a similar scheme of Terrorism Prevention and Investigation Measures (‘TPIMs’): see generally Clive Walker and Alexander Horne, ‘The Terrorism Prevention and Investigations Measures Act 2011: One Thing but Not Much the Other?’ [2012] Criminal Law Review 421; Helen Fenwick, ‘Preventive Anti-Terrorist Strategies in the UK and ECHR: Control Orders, TPIMs and the Role of Technology’ (2011) 25 International Review of Law, Computers & Technology 129.