The ‘Bikie Effect’ and Other Forms of Demonisation: The Origins and Effects of Hyper-Criminalisation

Luke McNamara   | Bio
Professor in the Faculty of Law at the University of New South Wales
Julia Quilter | Bio
an Associate Professor at the School of Law and a member of the Legal Intersections Research Centre at the University of Wollongong
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Abstract

The last decade has seen a significant expansion in the net cast by Australian criminal laws. In the name of crime prevention and risk management, legislatures around Australia have introduced various forms of ‘extreme’ criminalisation which push the criminal law beyond its traditional boundaries. This article presents four recent case studies of ‘hyper-criminalisation’ to show that law-makers have effectively deployed tropes of demonisation and danger – ‘bikies’ are the archetypal 21st century example – to justify expansion of the parameters of criminal law and the severity of its sanctions. We consider the implications of this type of law-making, given that, frequently, the resulting laws are not limited in their operation to the bikies or other ‘demons’ who were instrumental in their rhetorical justification.

References

1 Philip Stenning and Anna Stewart, ‘Editorial’ (2014) 47(1) Australia & New Zealand Journal of Criminology 3, 4.
2 See Loïc Wacquant, ‘Class, Race & Hyperincarceration in Revanchist America’ (2010) 139(3) Daedalus 74; Loïc Wacquant, ‘Deadly Symbiosis: When Ghetto and Prison Meet and Mesh’ in David Garland (ed), Mass Imprisonment: Social Causes and Consequences (Sage, 2001); Chris Cunneen et al, Penal Culture and Hyperincareration: The Revival of the Prison (Ashgate Publishing, 2013).
3 Pat O’Malley, Crime and Risk (SAGE Publications, 2010); Lucia Zedner, ‘Fixing the Future? The Pre-emptive Turn in Criminal Justice’ in Bernadette McSherry, Alan Norrie and Simon Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Hart Publishing, 2009).
4 Michalis Lianos and Mary Douglas, ‘Dangerization and the End of Deviance: the Institutional Environment’ in David Garland and Richard Sparks (eds), Criminology and Social Theory (Oxford University Press, 2000) 103, 110-111.
5 Stanley Cohen, Folk Devils and Moral Panics (Routledge, 3rd ed, 2002). Conscious that the term ‘moral panic’ has been much used and abused (see Scott Poynting and George Morgan, ‘Introduction’ in Scott Poynting and George Morgan (eds), Outrageous: Moral Panics in Australia (Australian Clearinghouse for Youth Studies Publishing, 2007), we emphasise that it is not our contention each of the case studies examined in this article necessarily represented a ‘moral panic’ in Cohen’s terms. Our more modest goal is to draw attention to the longer history of a relationship between anxiety and criminal law ‘reform’.
6 CCCS Mugging Group, ‘Some Notes on the Relationship Between the Societal Control Culture and the News Media: the Construction of a Law and Order Campaign’ in Stuart Hall and T Jefferson (eds), Resistance Through Rituals: Youth Subcultures in Post-war Britain (Hutchinson, 1976) 77. See also Chas Critcher, Media and Moral Panics (Open University Press, 2003); Amanda Porter, ‘Riotous or Righteous Behaviour?: Representations of subaltern resistance in the Australian mainstream media’ (2015) 26(3) Current Issues in Criminal Justice 289.
7 See John Pratt, Governing the Dangerous: Dangerousness, Law and Social Change (Federation Press, 1998).
8 Cohen, above n 5, xxiv.
9 Hence the title of this article: ‘The Bikie Effect …’.
10 Jonathan Simon, Governing Through Crime (Oxford University Press, 2007), 76.
11 Philip Corrigan and Derek Sayer, The Great Arch: English State Formation as Cultural Revolution (Blackwell, 1985).
12 See, for example, Amanda Glasbeek (ed), Moral Regulation and Governance in Canada: History, Context and Critical Issues (Canadian Scholars’ Press Inc, 2006); also Peter Squires and John Lea (eds), Criminalisation and Advanced Marginality (Policy Press, 2013).
13 Another obvious site for analysis of hyper-criminalisation is terrorism, which has been the subject of extensive research: see, for example, Andrew Lynch, Nicola McGarrity and George Williams, Inside Australia’s Anti-Terrorism Laws and Trials (NewSouth Publishing, 2015); Vicky Sentas, Traces of Terror: Counter-Terrorism Law, Policing, and Race (Oxford University Press, 2014).
14 Ilya Gridneff, ‘Bikie Little Threat to Society – Police Study’, Sydney Morning Herald (online), 7 May 2012 ; and below n 34.
15 Poynting and Morgan, above n 5, 3.
16 Editorial, ‘Zero Tolerance at Crime Ground Zero’, Daily Telegraph, 22 January 2012, 20.
17 See, for example, Felicity Sheppard and Michael Madigan, ‘Hurry Up and Ban Net Parties’, Courier Mail (Brisbane), 12 January 2014, 7.
18 Police Powers and Responsibilities and Other Legislation Amendment Act 2014 (Qld).
19 Julia Quilter, ‘One Punch Laws, Mandatory Minimums and “Alcohol-Fuelled” as an Aggravated Factor: Implications for NSW Criminal Law’ (2014) 3(1) International Journal for Crime, Justice and Social Democracy 81. See also David Brown, ‘Is Rational Law Reform Still Possible in a Shock-jock Tabloid World?’, The Conversation (online), 15 August 2014 .
20 Douglas Husak, Overcriminalisation (Oxford University Press, 2008); also David Brown, ‘Criminalisation and Normative Theory’ (2013) 25(2) Current Issues in Criminal Justice 605; Antony Duff et al (eds), Criminalization: The Political Morality of the Criminal Law (Oxford University Press, 2014).
21 Luke McNamara, ‘Criminalisation Research in Australia: Building a Foundation for Normative Theorising and Principled Law Reform’ in Thomas Crofts and Arlie Loughnan (eds), Criminalisation and Criminal Responsibility in Australia (Oxford University Press, 2015); Luke McNamara and Julia Quilter, ‘Public Intoxication in NSW: The Contours of Criminalisation’ (2015) 37(1) Sydney Law Review 1; Luke McNamara and Julia Quilter, ‘Turning the Spotlight on “Offensiveness” as a Basis for Criminal Liability’ (2014) 39(1) Alternative Law Journal 36; Julia Quilter and Luke McNamara, ‘Time to Define “The Cornerstone of Public Order Legislation’: The Elements of Offensive Conduct and Language under the Summary Offences Act 1988 (NSW)’ (2013) 36(2) University of New South Wales Law Journal 534.
22 Darryl Brown, ‘History’s Challenge to Criminal Law Theory’ (2009) 3(3) Criminal Law and Philosophy 271, 272.
23 McNamara, above n 21, 34.
24 Russell Hogg and David Brown, Rethinking Law and Order (Pluto Press, 1998) 20. See also David Brown, ‘Continuity, Rupture, or Just More of the “Volatile and Contradictory”?: Glimpses of New South Wales’ Penal Practice Behind and Through the Discursive’ in J Pratt et al (eds), The New Punitiveness: Trends, Theories, Perspectives (Willan Publishing, 2005) 27.
25 McNamara, above n 21, 39-42.
26 David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (Federation Press, 6th ed, 2015) 1211; Andrew McLeod, ‘On the Origins of Consorting Laws’ (2013) 37(1) Melbourne University Law Review 103.
27 Alex Steel, ‘Consorting in New South Wales: Substantive Offence or Police Power?’ (2003) 26(3) University of New South Wales Law Journal 567.
28 Crimes Act 1900 (NSW) s 93X(3).
29 Andrew Ashworth and Lucia Zedner, Preventive Justice (Oxford University Press, 2014).
30 Jane Sanders, ‘Consorting Law in NSW’ (2013) 38(2) Alternative Law Journal 130.
31 Lorana Bartels, ‘The Status of Laws on Outlaw Motorcycle Gangs in Australia’ (Research in Practice No 2, Australian Institute of Criminology, 12 June 2009).
32 See Crimes (Criminal Organisations Control) Act 2012 (NSW), and equivalents in other Australian jurisdictions.
33 See Nicola McGarrity, ‘From Terrorism to Bikies: Control Orders in Australia’ (2012) 37(3) Alternative Law Journal 166.
34 Terry Goldsworthy, ‘A Phony War: Bikies Aren’t the Only Problem on Queensland’s Glitter Strip’, The Conversation (online), 17 October 2013 ; Terry Goldsworthy, ‘The Revealing Facts on Bikie Laws and Crime in Queensland’, The Conversation (online), 20 January 2015 .
35 See Australian Crime Commission, Outlaw Motorcycle Gangs (July 2013) .
36 Andrew Clennell, ‘O’Farrell Returns Fire in Drive-by Shootings War’, Daily Telegraph (online), 13 February 2012 .
37 Editorial, ‘Zero Tolerance at Crime Ground Zero’, Daily Telegraph (online), 22 January 2012 < www.dailytelegraph.com.au/news/opinion/zero-tolerance-at-crime-ground-zero/story-e6frezz0-1226558523959>, 20.
38 NSW, Parliamentary Debates, Legislative Assembly, 15 February 2012, 8318 (Michael Daley).
39 Anna Patty, ‘O’Farrell’s Consorting Law Slammed as “Easy Politics”’, Sydney Morning Herald (online), 14 February 2012 , 7.
40 Andrew Clennell, ‘O’Farrell Returns Fire in Drive-by Shootings War’, Daily Telegraph (online), 13 February 2012 .
41 A point that was made by the Opposition, which nonetheless supported the bill: NSW, Parliamentary Debates, Legislative Assembly, 15 February 2012, 8300.
42 Hogg and Brown, above n 24, 28-29.
43 NSW, Parliamentary Debates, Legislative Assembly, 14 February 2012, 8131-8132 (Greg Smith).
44 Ibid.
45 Ibid, 8302 (Stephen Bromhead).
46 Ben Pike, ‘Police Crash Bikies’ Party’, Sunday Telegraph, 1 February 2015, 14; Mark Morri, ‘Nowhere to Ride, Nowhere to Hide’ Daily Telegraph, 23 February 2015, 14; Lia Harris, ‘Bikies Getting Run off the Road’, Sunday Telegraph, 15 March 2015, 22.
47 Stephen Jeffery, ‘Appeal as Anti-bikie Consorting Laws Snare Serial Shopper’, Sydney Morning Herald (online), 14 August 2012 , 7; Stephen Jeffery, ‘State’s First Consorting Verdict is Overturned’, Sydney Morning Herald (online), 15 August 2012 , 4.
48 New South Wales Ombudsman, ‘Consorting Issues Paper: Review of the Use of Consorting Provisions by the NSW Police Force’ (Working Paper, Ombudsman NSW, November 2013).
49 Ibid, 10.
50 Ibid, 28.
51 Ibid.
52 Ibid, 43. See also Anna Patty, ‘NSW Consorting Laws: About 100 Peoples Given Wrong Warnings by Police’, Sydney Morning Herald (online), 8 February 2014 .
53 Tajjour v New South Wales; Hawthorne v New South Wales; Forster v New South Wales [2014] HCA 35. See also Luke McNamara, ‘Careful Who You Chat With: It Could Turn You into a Criminal’, The Conversation (online), 14 October 2014 .
54 Louise Hall, ‘Controversial NSW Consorting Laws to Target Bikie Gangs Valid, High Court Finds’, Sydney Morning Herald (online), 8 October 2014 .
55 See Criminal Code Amendment (Homicide) Act 2008 (WA) which inserted the offence of ‘Unlawful assault causing death’ into Criminal Code (WA) s 281 and the Criminal Code Amendment (Violent Act Causing Death) Act 2012 (NT) which inserted the offence of ‘Violent act causing death’ into the Criminal Code (NT) s 161A. On the history of these provisions see Julia Quilter, ‘The Thomas Kelly Case: Why a “One Punch” Law is Not the Answer’ (2014) 38(1) Criminal Law Journal 16, 18-21.
56 See Crimes Act 1900 (NSW) ss 25A, 25B.
57 See Julia Quilter, ‘Responses to the Death of Thomas Kelly: Taking Populism Seriously’ (2013) 24(3) Current Issues in Criminal Justice 439; Quilter, above n 19; Julia Quilter ‘Populism and Criminal Justice Policy: An Australian Case Study of Non-punitive Responses to Alcohol Related Violence’ (2015) 48(1) Australian and New Zealand Journal of Criminology 24.
58 Originally the offence was s 302A, Ch 28 ‘Homicide’ after s 302 (murder). Late amendments to the Bill relocated the offence to the newly created Ch 28A ‘Unlawful striking causing death’.
59 For a discussion of the enactment of these laws see Julia Quilter, ‘Criminalisation of Alcohol Fuelled Violence: One-Punch Laws’ in Crofts and Loughnan, above n 21, 82-104. On recent Victorian high profile deaths see Appendix A in Paige Darby, ‘Research Note on One-Punch Laws and the Sentencing Amendment (Coward’s Punch Manslaughter and Other Matters) Bill 2014’ (Parliamentary Library and Information Service, Department of Parliamentary Services, Parliament of Victoria, No 3, September 2014).
60 See Paul Fairall, Homicide: The Laws of Australia (Thomson Reuters, 2012).
61 On the defining features and differences, see Quilter, above n 59, 86-87.
62 The NT offence provides that this component is strict liability: see Criminal Code (NT) s 161A(2).
63 In New South Wales, the mandatory minimum applies to an offender who is intoxicated: Crimes Act 1900 (NSW), ss 25A(2), 25B. See Julia Quilter, ‘More Law and Order on the Run’ (2014) 39(1) Alternative Law Journal 50.
64 For example, in New South Wales, the new assault causing death offence in s 25A of the Crimes Act 1900 (NSW) was the first substantive change since 1951 when infanticide (s 22A) was inserted by the Crimes (Amendment) Act 1951 (NSW). It is noted that the Victorian provision does not create a new offence but rather ‘deems’ certain acts to be dangerous (see Crimes Act 1958 (Vic) s 4A(6)) for the purposes of unlawful and dangerous act manslaughter.
65 Particularly unlawful and dangerous act manslaughter in the common law states. It is noted that arguments were made in the Code jurisdictions that there was a ‘gap’ in homicide laws in relation to ‘one punch’ manslaughters because of the operation of the defence of ‘accident’ which applies to manslaughter cases. These issues are further discussed in Quilter, above n 55. The accident defence does not apply in the common law states and furthermore, convictions for ‘one punch’ manslaughters were being achieved.
66 The Northern Territory offence provides that this component is strict liability: see Criminal Code (NT) s 161A(2).
67 For example, in the WA provision the accident defence is removed (Criminal Code (WA) s 28(2)) and in NT consent is no defence under the Criminal Code (NT) s 161A(3). The Queensland ‘unlawful striking causing death’ offence abrogates the major defences usually applicable to similar serious offences by expressly removing the accident defence (Criminal Code (Qld) s 23(1)(b)), and the excuse of being provoked and using reasonable force to prevent the repetition of an act or insults (Criminal Code (Qld) s 270). In New South Wales, the only remaining defences are self-defence (s 418), intoxication where it is not self-induced (s 25A(5)(a)) and if the accused had a significant cognitive impairment at the time the offence was alleged to have been committed (s 25A(5)(b)).
68 See Crimes Act 1900 (NSW) s 25B which includes a MMS of eight years for the aggravated offence under s 25A(2) and Sentencing Act 1991 (Vic) s 9C provides for a 10 year MMS if the court is satisfied beyond reasonable doubt of the aggravating factors contained in s 9C(3) and there are no ‘special reasons’ under s 10A.
69 The term ‘coward’s punch’ emerged in 2013-2014 to replace another colloquialism that was widely used to describe a random, surprise punch: a ‘king hit’. The adoption of the phrase ‘coward’s punch’ was a conscious disavowal of the implication that a ‘king hit’, with its royal connotations, might attract admiration or ‘hero-worshipping’.
70 Denis Napthine, ‘Coward Punch Killers to Face 10 years Jail’ (Media release, 17 August 2014).
71 Victoria, Parliamentary Debates, Legislative Assembly, 20 August 2014, 2823-2824 (Robert Clark).
72 See also Sentencing Act 1991 (Vic) s 9C(4)-(5).
73 Christie was assaulted on 31 December 2013 but remained in a coma until his family turned off life support on 13 January 2014.
74 See Quilter 2015, above n 57.
75 See Barry O’Farrell, ‘Lockouts and Mandatory Minimums to be Introduced to Tackle Drug and Alcohol Violence’ (NSW Government Media Release, 21 January 2014) .
76 New South Wales, Parliamentary Debates, Legislative Assembly, 30 January 2014, 26621 (Barry O’Farrell).
77 Queensland, Parliamentary Debates, 6 June 2014, 2234 (Campbell Newman) (emphasis added). See also the emphasis on alcohol-fuelled violence in the second reading speech to the Sentencing Amendment (Coward’s Punch Manslaughter and Other Matters) Bill 2014 (Vic): Victoria, Parliamentary Debates, Legislative Assembly, 20 August 2014, 2823-2824 (Robert Clark).
78 Safe Night Out Legislation Amendment Act 2014 (Qld) introduces an aggravating circumstance in Ch 35A of being ‘adversely affected by an intoxicating substance’ for certain assault offences, not including unlawful striking causing death.
79 On the problems with this approach, see Quilter, above n 19.
80 Jeremy Horder, ‘Rethinking Non-fatal Offences Against the Person’ (1994) 14(3) Oxford Journal of Legal Studies 335.
81 Ibid, 340.
82 RA Duff, ‘Penal Communities’ (1999) 1(1) Punishment and Society 27; RA Duff, Punishment, Communication and Community (Oxford University Press, 2001).
83 Criminal Code (Qld) s 314A(7).
84 For further details of ‘particularist’ drafting in the Victorian and New South Wales provisions, see Quilter, above n 59, 90-92.
85 If the accused’s breath or blood contains ‘a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood’: s 25A(6).
86 For alcohol testing within two hours after the commission of the alleged offence or four hours for a blood/urine sample for alcohol or drugs: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 138F(3) and 138G(3).
87 Possible steps are illustrated in the Criminal Code (WA) s 75B(4).
88 Criminal Code (WA) s 75B(1).
89 Police Powers and Responsibilities and Other Legislation Amendment Act 2014 (Qld).
90 See Police Powers and Responsibilities Act 2000 (Qld) s 53BC.
91 Queensland Association of Independent Legal Services, ‘How New Police Party Powers Could Affect Ordinary Queenslanders’ (2013) .
92 Queensland, Parliamentary Debates, 11 February 2014, 71 (Ian Berry).
93 ‘Last Drinks for Wild Parties as New Laws Permit Jailing of Organisers’, Courier-Mail (Brisbane), 10 February 2014, 7.
94 Western Australia, Parliamentary Debates, Legislative Assembly, 16 October 2012, 6911b-6955a (Martin Whitely).
95 Queensland, Parliamentary Debates, 11 February 2014, 70 (Bill Byrne).
96 Gabrielle Knowles and Natasha Boddy, ‘Rowdy Parties “Beyond a Joke”’, The West Australian, 2 April 2012, 11; Gabrielle Knowles, ‘Pictured Here? The Cops Want a Word’, The West Australian (Perth), 19 September 2012, 5; Gabrielle Knowles, ‘Yet Another Party Goes Feral’, The West Australian, 29 October 2012, 9.
97 Knowles and Boddy, ibid.
98 Phil Hickey, ‘Greater Police Powers on Rowdy Parties, Premier Tells Police Union Conference’, Perth Now (online), 25 June 2012 .
99 ‘Police to Shut Down Out of Control Parties’, Australian Broadcasting Corporation (online), 25 June 2012 .
100 Renee Viellaris, ‘Party Riot Host May Get Damage Bill as Brisbane Lord Mayor Graham Quirk Calls for “No Tolerance”’, Courier-Mail (online), 18 March 2013 .
101 Editorial, ‘Need for Laws to be Relevant’, Courier-Mail (Brisbane), 19 March 2013, 20.
102 Jacinda Tutty and Robyn Ironside, ‘Police Outwitted by a New Breed of Party Planners as Suburban Streets Become Alcohol-fuelled Battle Zones’, The Sunday Mail (online), 14 April 2013 .
103 Thomas Chamberlin and Stephanie Bennett, ‘Reforms Crack Down on Parents and Teens to Control Facebook Parties’, The Sunday Mail (online), 7 July 2013 .
104 Felicity Sheppard and Michael Madigan, ‘Hurry Up and Ban Net Parties’, Courier Mail (Brisbane), 12 January 2014, 7.
105 Western Australia, Parliamentary Debates, Legislative Assembly, 25 September 2012, 6426b-6427a (Liza Harvey).
106 Queensland Cabinet and Ministerial Directory, ‘New Laws to Help Keep Parties “In Control”’ (Media Statement, 10 February 2014).
107 Felicity Sheppard, ‘Newman Government Urged to Fast-track Planned laws, The Sunday Mail (online), 12 January 2014 .
108 Queensland, Parliamentary Debates, Legislative Assembly, 11 February 2014, 74 (Jann Stuckey).
109 Western Australia, Parliamentary Debates, Legislative Assembly, 16 October 2012, 6911b-6955a (Michelle Roberts).
110 Western Australia, Parliamentary Debates, Legislative Assembly, 16 October 2012, 6911b-6955a (Margaret Quirk).
111 Western Australia, Parliamentary Debates, Legislative Assembly, 16 October 2012, 6911b-6955a (David Templeman). In Queensland: ‘That is the problem; people go along to parties and this conduct erupts into circumstances which nobody really foresees. Somebody pulls out a knife and the next thing somebody is stabbed’ (Queensland, Parliamentary Debates, Legislative Assembly, 11 February 2014, 72 (Ian Berry)).
112 Queensland, Parliamentary Debates, Legislative Assembly, 11 February 2014, 71 (Ian Berry). Also: ‘Many participants in these out-of-control events become subject to mob mentality to the point that bottles, fence pailings and even bricks have been thrown at our police officers in the community’ (Queensland, Parliamentary Debates, Legislative Assembly, 12 September 2013, 3053 (Jack Dempsey)).
113 Gabrielle Knowles, ‘First Charges Laid Under Party Law’, The West Australian (Perth), 18 January 2013, 3.
114 Tayissa Barone, ‘Out-of-Control Party Test Case, The West Australian (online), 24 September 2013 .
115 Amanda Banks, ‘Police Case Over Wild Party Fails’, The West Australian (Perth), 25 October 2014, 14.
116 Government of Western Australia, Minister of Police, ‘Dogs Add Bite to Out of Control Party Crackdown’, Media Statement, 21 June 2015 .
117 Claire Bickers, ‘Police Dogs to Tackle Out-of-Control Parties in WA Government Crackdown’, PerthNow (online), 21 June 2015 .
118 Emma Williams, ‘Carnage at Out-of-Control Party’, Courier Mail (online), 28 June 2015 ; Brooke Baskin and Josh Dutton, ‘Facebook Party Goes Viral, then Feral as Police Assaulted, Teens Charged’, The Sunday Mail (online), 28 December 2014 .
119 Police Administration Amendment Act 2014 (NT). Curiously the Police Administration Amendment Bill contained a second amendment which would require police to compulsorily answer questions in relation to internal disciplinary investigations. Interestingly, in this context the second reading speech and debates discussed the safeguards that ought to be in place for police who might incriminate themselves, for example, provisions giving direct immunity in any criminal/civil proceedings.
120 See Thalia Anthony, ‘Paperless Arrests are a Sure-fire Trigger for More Deaths in Custody’ The Conversation (online), 28 May 2015 .
121 See combined effect of Police Administration Act (NT) s 133AA and Police Administration Regulations (NT) reg 19A.
122 ‘NAAJA and CAALAS’ Concerns with Paperless Arrests’ (2016) ; see also Human Rights Law Centre, High Court Case Against NT Government: Background Information (27 March 2015) .
123 See, for example, Summary Offences Act (NT) ss 53A(2), 53B(3) (failure to comply with undue noise direction) and s 76(2) (street musician who plays musical instrument after being asked to leave neighbourhood).
124 The person may however be released and issued with an infringement notice offence (s 133AB(3)(b)), released on bail (c) or brought before a justice or court for the infringement notice offence or another offence allegedly committed by the person (d).
125 Northern Territory, Parliamentary Debates, Legislative Assembly, 26 November 2014, 507-517 (Lynne Walker).
126 Anthony, above n 120. Anthony gives examples of the Northern Territory Emergency Response Act 2007 (Cth) in conjunction with s 95 of Liquor Act (NT) and powers to apprehend without warrant intoxicated persons in Div 4 of Pt VII of the Police Administration Act (NT) which are specifically to prescribed Aboriginal communities. See also Thalia Anthony, ‘Governing Crime in the Intervention’ (2009) 27(2) Law in Context 90. On the history of various intervention measures in relation to alcohol in Aboriginal communities in Northern Territory see also Heather Douglas, ‘The Curse of “White Man’s Water”: Aboriginal People and the Control of Alcohol’ (2007) 4(1) University New England Law Journal 3.
127 North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41; see Jonathon Hunyor, ‘Imprison Me NT: Paperless Arrests and the Rise of Executive Power in the Northern Territory’ (2015) 8(21) Indigenous Law Bulletin 3.
128 See DPP v Carr [2002] NSWSC 194, [35]: ‘This Court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendant’s name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective’.
129 Lake v Dobson (1981) 5 PS Rev 2221, 2223; DPP v Carr [2002] NSWSC 194, [35]. See also Vicki Sentas and Rebecca McMahon, ‘Changes to Police Powers of Arrest in New South Wales’ (2014) 25(3) Current Issues in Criminal Justice 785.
130 Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991). See also Rec 86a (arrest or charge should not be normally used for offensive language) and Rec 85 (decriminalisation of public drunkenness).
131 Sentas and McMahon, above n 129.
132 Northern Territory, Parliamentary Debates, Legislative Assembly, 26 November 2014, 507-517 (Johan (John) Wessel Elferink).
133 Ibid.
134 Ibid.
135 Ibid.
136 Ibid.
137 Ibid.
138 David Dixon, Law in Policing: Legal Regulation and Police Practices (Clarendon Press, 1997) 77; Robert Reiner, The Politics of the Police (Oxford University Press, 4th ed, 2010).
139 Northern Territory, Parliamentary Debates, Legislative Assembly, 26 November 2014, 507-517 (Johan (John) Wessel Elferink).
140 Sentas and McMahon, above n 129.
141 Simon Lauder, ‘NT Arrest Powers Under Scrutiny After Death in Custody’, ABC News AM, 25 May 2015 (Ruth Barson) .
142 Helen Davidson, ‘Indigenous Man’s Death in Custody Blamed on NT “Paperless Arrest” Powers’ The Guardian (online), 25 May 2015 .
143 Jane Bardon, NT Government dismisses coroner’s call to scrap paperless arrests after death of Kumanjayi Langdon’, ABC News (online) 14 August 2015 .
144 See Australian Bureau of Statistics, Prisoners in Australia 2013 (Media Release, 219/2013, 5 December 2013); Brown et al, above n 26; Amy McQuire, ‘In the NT, streamlined police paperwork takes priority over black deaths in custody’, The New Matilda, 12 June 2015 .
145 Anthony, above n 120.
146 Western Australia, Parliamentary Debates, Legislative Assembly, 16 October 2012, 6911b-6955a (Martin Whitely).
147 Richard Ackland, ‘O’Farrell Tries Newman’s Bike for Size’, Sydney Morning Herald, 8 November 2013, 22.
148 On the idea of a ‘permanent moral panic’, see Jock Young, ‘Slipping Away – Moral Panics Each Side of “The Golden Age”’ in David Downes et al (eds), Crime, Social Control and Human Rights: From Moral Panics to States of Denial. Essays in Honour of Stanley Cohen (Willan Publishing, 2007) 63-64.
149 See Brown, above n 20; McNamara, above n 21.
150 Luke McNamara and Julia Quilter, ‘Institutional Influences on the Parameters of Criminalisation: Parliamentary Scrutiny of Criminal Law Bills in New South Wales’ (2015) 27(1) Current Issues in Criminal Justice 21.
How to Cite
1.
McNamara L, Quilter J. The ‘Bikie Effect’ and Other Forms of Demonisation: The Origins and Effects of Hyper-Criminalisation. LiC [Internet]. 2018Dec.17 [cited 2021Oct.25];34(2). Available from: https://journals.latrobe.edu.au/index.php/law-in-context/article/view/38

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