Criminal Law

By Peter Woodhouse


Proposed bikie laws are ill-thought-out and unlikely to be effective.

The ABC and Canberra Times is heralding the news this morning that the ACT Government is set to introduce a surprise Bill on Thursday targeting bikies and organised crime.

Apparently, under the new laws, people could be banned from any licensed venue if they’re caught fighting NEAR pubs and clubs.  The Bill also seeks to increase the maximum penalties for crimes committed by people who are members of bikie gangs or other organised crime groups.  The Attorney General said maximum penalties will be increased for a range of offences where the offence is committed either in connection with a criminal group or while the offender is associated with a criminal group.

Whilst the precise wording of the amendments is not known at this stage, the comments by the Attorney General are worrying.

What on earth does ‘associated with a criminal group’ mean?  Given our line of work, I (and the rest of the team at Aulich) could be said to be associated with a number of ‘criminal groups’.  Would that relationship be good enough?  If I get in a punch-up in Civic, would I fall within the new offence?

Also, banning people from licensed premises for fighting near pubs and clubs is just ridiculous.  The licensees of pubs and clubs and police already have sufficient powers to remove people from licensed venues, ask them to move on and take steps if they fail to comply.

Raising maximum penalties for offences is the easy way out for a Government.  It allows them to stand on their soap boxes with their chests puffed out and look as though they are tough on crime and, in this case, bikie gangs and associates of criminal groups.  They can pat themselves on the back until the cows come home, but that doesn’t mean squat.

Research shows that raising the maximum penalty of offences does not work to deter people from committing criminal offences.  That is particularly the case for offences that are committed on the spur of the moment with little or no premeditation – like fighting in a public place.  Deterrence theory is based on rational choice.  Rational choice assumes that people weigh up the costs and benefits of a particular course of action whenever they make a decision.  Deterrence theory relies on the assumption that offenders have knowledge of the threat of a criminal sanction and then make a rational choice whether or not to offend based upon consideration of that knowledge.  The theory of rational choice does not sufficiently account for those who are ‘irrational’ – including intoxicated or drug-affected people.

To put in bluntly people who get into fights in Civic with a belly-full of booze usually aren’t thinking that rationally and almost never give thought to the maximum penalty of the offence.

Speaking of not thinking rationally – the same could be said for the Government in this instance.  This is another example of ill-thought-out legislation to try and curry-favour with the electorate before we go to the polls next year.