Status Offences: A threat to Civil Liberties?

There has been a great deal of media attention of late surrounding organised crime in Australia, after the 2009 death of Hells Angels bikie Anthony Zervas at Sydney Airport (Brown et al 2011) and the highly popular Underbelly series. This is only set to continue upon the announcement that the Herald will be releasing a special series in its new iPad edition about the history of organised crime. (Duffy 2011) Shortly following Zervas' death NSW parliament passed new legislation: Crimes (Criminal Organisations Control) Act 2009, in response to the "escalation in violent crime involving outlaw motorcycle gangs that has spilled into public places" (Rees, in Brown et al 2011, p.1068). This law has been openly criticised as being a threat to our civil liberties. It represents an overzealous response to an unlikely threat which is already dealt with under the Crimes Act 1990. The most controversy lies in Section 26 which criminalises association regardless of the action or intention of the accused, it is essentially a status offence. A status offence is one where criminal liability lies  in the fact that someone is found in a particular position. (Brown 2011) I argue that this type of law is a threat to our liberty. One should be free to associate with whomever they choose so long as they act within the law. It is perfectly reasonable in my opinion for one to associate with a member of an outlawed gang without having any involvement in their criminal activities. Furthermore there have been movements to ban bikie colours and trademark insignias. I understand that we do not have a bill of rights in this country, but once we begin encroaching on basic rights: freedom of association, freedom of movement, freedom of expression, (Universal Declaration of Human Rights, in Cowdery, 2001) where does it end?


Mill's harm principle may be widely accepted as the foundations of criminal law. he states "the only purpose for which a power can be rightfully exercised over another member of a civilized community, against his will, is to prevent harm to others." Basically a persons liberty should only ever be restricted at the expense of a greater liberty. In my view banning someone from associating with who they choose or from expressing themselves through their attire is a restriction of liberty. It is not in keeping certain company or wearing certain clothes that you are harming another individual. The public concern surrounding bikie gangs is their association with the illicit drug industry and the level of violence that comes with such organised crime. By all means crack down on these offences to the full extent of the law, but let us not lose sight of the fact that we live in a free and equal society. As such we should not criminalise anyone prematurely.


References

Brown, D et al. 2011, Criminal Laws, The Federation Press, Sydney


Cowdery, N 2001, Getting justice wrong: Myths, media and crime, Allen & Unwin, Crows Nest, Australia

Duffy M 2011, 'Banning popular pleasures led to the rise of the Mr Bigs', National Times, 31 May
http://www.smh.com.au/opinion/society-and-culture/banning-popular-pleasures-led-to-rise-of-the-mr-bigs-20110530-1fctv.html

Fife-Yeomans J 2009, 'Pubs, clubs ban bikies' colours', The Daily Telegraph, 7 November http://www.dailytelegraph.com.au/news/pubs-clubs-ban-bikies-colours/story-e6freuy9-1225795176272

Schonsheck J 1994, On criminalisation, Kluwer Academic Publishers, The Netherlands