CPA - The Guardian

Outspoken NSW Public Prosecutor, Nicholas Cowdery, has attacked the state’s laws to ban bikie groups, and other organisations that the government deems to be criminal.

In the wake of the recent savage bikie brawl in Sydney Airport, the NSW, Victorian, Queensland and South Australian governments have enacted or are about to enact laws to ban organisations deemed to be criminal, rather than banning criminal behaviour itself.

Cowdery maintains that existing police powers would have been entirely adequate to deal with threats to public order, and has called for “better enforcement rather than for legal powers”. He has described the NSW Crimes (Criminal Organisations Control) Act, enacted in extreme haste after the airport fight, as “another giant leap backwards for human rights and the separation of powers – in short, the rule of law”.

Ever since Australian Prime Minister Robert Menzies failed to ban the Communist Party in 1954, conservative governments have hankered for the means to apply legal bans on organisations.

Menzies’ referendum failed because the horrors of the fascist regimes, which were all preceded by the banning of communist parties, were within very recent memory. However, in their rise to power these regimes subjected judiciaries to mandatory government requirements.

And now, as Nicholas Cowdery has pointed out, by reducing the independence of the judiciary, the NSW Act has also increased the possibility for the future establishment of a neo-fascist police state.

In order for action to be taken under the Act, the police Commissioner must apply to the Supreme Court for a judge to declare the organisation criminal in intent. And there’s the rub. Judges who wish to be involved in such cases have to apply to the Attorney General to be deemed eligible to do so.

Cowdery commented: “If an Attorney General should so desire, he or she has unfettered power to ‘stack’ the hearing of applications for declarations of organisations under the Act with judges willing to enforce it”. He also noted that the Attorney-General could “revoke or qualify the authority of a judge to determine applications for declarations if he or she does not perform to the government’s satisfaction”.

Vast and sinister power

The publicity surrounding the Act has focused on criminal elements within bikie groups. However, the Act itself can apply to any organisation whatsoever.

Cowdery pointed out , the NSW law “does not apply only to bike gangs but ‘to any particular organisation’ in respect of which the NSW Police Commissioner chooses to make an application (for a banning order). … These words cast a very wide net. Why should the responsibility for identifying which organisations warrant being declared under the Act be vested in the Police Commissioner, an unelected official?”

Moreover, the law itself breaches long-held principles of justice, including the presumption of innocence, freedom of association, and the right to contest evidence, and imposes savage penalties for breaches.

Once an “eligible” judge has deemed an organisation to be criminal in intent, i.e. that its members associate in order to engage in serious criminal activity, the Police Commissioner can apply to the Supreme Court for a control order against any member of the organisation.

These orders can be granted on unspecified “sufficient grounds” for doing so. With few exceptions, anyone subject to a control order may not associate with another “controlled” person, on penalty of imprisonment.

Moreover, he or she immediately loses any state-granted licence to conduct a business. In many cases that would constitute the loss of a family income, a savage penalty imposed for no criminal offence.

Organisations declared criminal under the Act, and persons subject to control orders, have no right of appeal, even where there has been a breach of rules of procedural fairness.

In cases being heard in court, any information described by the Police Commissioner as “criminal intelligence” must be heard in secret. Persons or organisations that are the subject of the hearings are not entitled to be present, or to contest, the evidence.

Under the Act the normal rules of evidence do not apply. The door is wide open for the presentation of hearsay evidence, and the person or organisation that is subject to an application has no right to object.

A grim future

The existing laws other than the new Crimes Act are sufficient to launch prosecutions against those involved in the Sydney Airport brawl. Significantly, the laws have not yet been used. It is entirely possible that it will be used rarely and that it will be held in reserve for future occasions when the public has forgotten all about their existence.

Cowdery has declared frankly: “The spectre of a police state lurks here: an unacceptable slide from the separation of powers by linking the powers of the Police Commissioner with those of ‘eligible’ judges”.

In the meantime, just to prove the points he made about state interference in the judicial process, the NSW government has enacted legislation to limit the tenure of future Directors of Public Prosecutions to ten years, rather than a permanent appointment. In time they will probably reduce that time frame, so that they can more easily rid themselves of any other outspoken DPP.

Next article —Editorial - Spectre of a police state

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