New South Wales Criminal Law and Outlaw Motorcycle Clubs

Is it an offence to be in a motorcycle club?

The short answer (which you would only get from a lawyer), currently no. But potentially yes.

The New South Wales Government has in the past enacted legislation aimed specifically at motorcycle club members. ln April 2009 the NSW Government introduced legislation to control the behaviour of club members. This followed an incident at Sydney airport in which Hells Angel Anthony Zervas was tragically and callously killed.

The Crimes (Criminal Organisations Control) Bill 2009 (NSW) was assented to on 3 April 2009. The High Court however ruled that this legislation aimed at outlawing motorcycle club members, passed by NSW Parliament in 2009, was invalid. The Supreme Court had been asked by police to issue a declaration under the Act outlawing the Hells Angels motorcycle club in NSW. A member of the club, Derek Wainohu, applied to have the law declared invalid. See Wainohu v New South Wales [2011] HCA 24, 23 June 2011 for details about this High Court decision. The High Court deemed the legislation as invalid because it allowed Judges of the Supreme Court of New South Wales to make a declaration, that being a declaration that a club is a criminal organisation, without actually giving reasons as to how or why that finding came about.

The High Court on appeal was of the view that the legislation created the appearance of a judge of the Supreme Court making a declaration while denying a hallmark of that office, the requirement to give reasons, and that this perception was to the detriment of the Court itself.

More recently the abovementioned piece of legislation was given an overhaul by NSW Parliament who enacted the Crimes (Criminal Organisations Control) Act 2012 (NSW). The new Act empowers an eligible judge to make the declaration sought by the commissioner of police if the eligible judge is satisfied 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 New South Wales. A judge who declares an organisation as a criminal organisation can make orders controlling members by disallowing them from associating or communicating with each other. If a person is deemed a controlled person by the Court, the Court can also suspend or cancel that person’s authorisation to carry on certain businesses like security businesses, racing, casinos, motor traders, repairers and tow trucks.

Where do the Police Get Their Evidence From? How Do They Build Their Case?

An interesting thing about the Crimes (Criminal Organisations Control) Act 2012 (NSW) is Section 28, Part 4 of the Act. Which allows the Court to treat information or ‘intelligence’ as confidential and consider the information without the parties to the case hearing or seeing the evidence nor their legal representatives. Sounds like a Star Chamber I know, but read the section if you don’t believe me:

Section 28(3): A determining authority is to take steps to maintain the confidentiality of information that the determining authority considers to be properly classified by the Commissioner as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives and the public.

The section is controversial for various reasons. But it becomes apparent that a concern is the safety of the sources of information. When a source of information is protected and kept hidden, that source of information keeps the information coming. The section is also inherently prejudicial. If a Court accepts evidence without the sources of evidence being known by parties, parties lack a basic aspect of the ability to test that evidence. It also suggests if evidence is accepted in accordance with the section that the group or persons under review by the court are too dangerous to know where the information came from.

The law could indicate that undercover operatives seek better protection and concealment under law, or that people generally are reticent to give evidence in these types cases.

Are there any laws that I should know about if I’m in a club (Consorting)?

Definitely. Apart from what has been mentioned above, you should be familiar with section 93x of the Crimes Amendment (Consorting and Organised Crime) Act 2012. The section makes it a crime for any person who habitually consorts with two or more convicted offenders on two or more separate occasions. This means that if a person on two or more occasions consorts with a person who is a convicted offender and that person after having been given an official warning by the police in relation to each of those convicted offenders continues to consort with convicted offenders, will be guilty of a criminal offence. The maximum penalty is 3 years imprisonment.

This law is incredible and so overly wide in scope that it means that just being in the company of or associating with two or more people who are convicted offenders on two or more occasions will be committing a crime, if the police have warned that person that the people they’re hanging around are convicted offenders.

This law enables the police to disclose to the person being warned that the person they’re associating with has a criminal record. So if you have a criminal record from years ago but you’ve put it behind you, it could be disclosed by the police if they decide to officially warn someone that they are consorting (associating) with a convicted offender, that being you. Or say for example you’re consorting with your best mate from childhood who has been convicted of an offence, you could receive an official warning by the police & if it happens again (you consort with someone else on another occasion) you could be liable to imprisonment.

There are defences to a charge under this section however the defences just like the offence itself are crude, unsophisticated and lack forethought by our legislature.

If you have any questions arising from this article feel free to contact us or call us on 0450 953 884 today!

Disclaimer: This article is for research purposes only and does not substitute legal advice. Everyone’s situation is different. You should seek the advice of a qualified and experienced legal practitioner within your jurisdiction. You should not rely on the contents of this article.

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