An attack on freedom of association
Fabiano Cangelosi says Tasmania’s bid to clamp down on so-called outlaw motorcycle gangs is seriously flawed
THE Tasmanian Government has released a position paper arguing for reforms to Tasmania’s consorting laws to allow police to issue notices to prevent people who have been convicted of serious offences from consorting.
Legislation of this kind has a corrosive effect on democracy and its enactment must be resisted.
The first thing that must be said is that such consorting notices prevent free, consenting adults from associating with each other in ways that are not against the law, solely on the basis of their past convictions.
In a liberal democracy it is not for the police to tell us with whom we may spend time, especially when we are not otherwise breaking the law.
Consorting laws are not merely contrary to the fundamental idea that police exist to investigate substantive crimes and apprehend suspects. They undermine democracy.
After all, if a person does not agree with a law, democratic participation requires him or her to associate with others, and the people most likely to want to democratically agitate against a law are the people it directly affects.
In the case of consorting laws, it is the democratic right of people who are or could be subject to consorting notices to associate with each other to bring about political opposition. The very existence of consorting laws tends to stifle the ability to exercise that democratic right to muster political opposition.
The alleged criminality of so-called outlaw motorcycle gangs is argued by the Hodgman Liberal Government to be a valid enough reason to warrant giving police undemocratic powers over not only members of motorcycle clubs but anyone else who meets the proposed conviction-test.
Even if police could be trusted to exercise their new powers only against the targets — and they cannot be, as will shortly be demonstrated — the notion that members of motorcycle clubs are in especial need of the abuse of their fundamental rights is misconceived.
The position paper is alarmingly inaccurate about motorcycle clubs.
Even basic information as to why motorcycle clubs are described as outlaw is misrepresented. Contrary to the Government’s claims, the designation “outlaw” referred to a split in the membership of the American Motorcycle Association — clubs that did not operate with the sanction of the AMA were described as outlaw. Outlaw clubs became associated with certain hierarchies and styles of motorcycles, and today, clubs in Australia that use the designation choose to identify with that culture and aesthetic.
Whatever its inaccuracies, the position paper falls short of any express claim that motorcycle clubs use their organisational structure to facilitate the commission of crime. This is significant.
Drawing attention to the incidence of crime in any population inevitably gives the impression that crime is rife in that population. But in the absence of comparative statistics for other equivalent populations, the limited evidence is meaningless.
If motorcycle clubs are not using their organisational structure to commit crime, then in what way does their situation differ from any other organisation whose members happen to have broken the law? The answer is that they do not differ. Crime exists in all social strata, in all occupations, and across all age groups. That it exists in those groupings does not justify subjecting members of those groupings to arbitrary restrictions on their liberty.
In relation to the NSW legislation on which the proposed consorting law is modelled, the NSW Ombudsman said in his 2016 report, The Consorting Law, that: “The broad framing of the consorting law and the absence of any requirement for police to suspect or prove a link between use of the consorting law and crime prevention increase the risk that already marginalised people will be disproportionately and inappropriately affected by the operation of the consorting law.”
It is the NSW experience that the consorting law is largely used to target persons not suspected of involvement with outlaw motorcycle gangs or organised crime.
The NSW Ombudsman also said: “Nearly 80 per cent of people subject to the consorting law were affected as a result of an interaction with general duties officers [as opposed to the specialist Gang Squad].”
The Ombudsman revealed one NSW local area command, in a bid to clean up its district “targeted people in open, public areas and seated on public benches or at bus stops, often during daylight hours. A number of people experiencing homelessness were subject to the consorting law in this area.”
If the Government wants to expand the power of police to
interfere in the movement of innocent people in public, whose behaviour presently falls short of criminal, that is a debate unrelated to the supposedly pressing need of curbing outlaw motorcycle gang activity in Tasmania.
Tasmanians should not be deceived by efforts at painting a section of the community as criminal — because if that effort succeeds, and the proposed consorting law is passed, then we will have succeeded in demolishing a bulwark of liberty that protects us all, leaving us all exposed to the arbitrary whims of the state.