The Australian anti-gang legislation basically works as follows:
1. The Attorney General (or a court), after examining certain evidence and weighing certain facts, declares an organization an “Outlaw Organization;”
2. An application can then be made to a court for a “Control Order” against a person who is found by the Court to be a member of the Outlaw Organization;
3. The Control Order prohibits the person from associating with any other person who is a member of the Outlaw Organization other than close family members; and
4. Any breach of the Control Order constitutes a criminal offense resulting in a prison sentence of two to five years (it varies depending on the Australian Territory/State).
Some of the main problems with the legislation are as follows:
1. This type of legislation is better suited to countries with large populations (millions of people) where members of gangs are not related. Since many gang members in Bermuda are closely related, the Control Order would not prevent a significant number of members from associating with each other, and therefore this type of anti-gang legislation would be less effective in Bermuda than in larger jurisdictions. Further, if the exception for close family members were dropped from the legislation, then the probability of the legislation being declared unconstitutional would increase substantially.
2. The Australian Courts have repeatedly declared the Australian anti-gang legislation to be unconstitutional on the basis that it violates the defendants’ constitutionally-protected right of free association. While Bermuda has stronger constitutional arguments to enforce anti-gang legislation than most other countries, these arguments are unlikely to overcome the principal requirement under Section 10(2) of the Bermuda Constitution that such restriction of freedom of association must be shown to be “reasonably justifiable in a democratic society” (i.e., there is no other reasonable way to protect the public interest). But there is a very reasonable way to protect the public interest without breaching the defendants’ right to freely associate: adopt the Canadian “Criminal Organization” legislation. The Canadian legislation has been constitutionally upheld by the Canadian courts and provides a more effective way to meet Bermuda’s unique gang violence problem. Therefore, it is unlikely that the Bermuda Courts would enforce any legislation (such as the Australian legislation) that breaches the fundamental right to freely associate.
3. The Australian legislation is only a short-term solution because gang members who breach the Control Order only go to prison for two to five years, which means that they are often back on the streets in no time. Any attempt to increase the mandatory prison sentence would only further increase the probability that the legislation would be declared unconstitutional. Further, since the incarceration time is minimal, the threat of incarceration is also minimal and therefore the Australian legislation (unlike the Canadian legislation) does not provide the police with the leverage needed to help convince gang members caught committing crimes to plea bargain for lesser sentences in return for testimony to put away the top gang leaders. As pointed out in “Why a Gang Truce Negotiated Now Will Fail,” (found on this Good Governance website) this type of significant leverage (as provided under the Canadian legislation) is essential to enforcing a lasting ceasefire.
The net result of the adoption of the Australian anti-gang legislation would likely be an expensive, time-consuming legal process that would tie up the courts and be found unconstitutional. A much more sensible and effective way to dramatically reduce gang violence in Bermuda would be to adopt the Canadian “Criminal Organization” legislation, which has been declared constitutional by the Canadian courts, has reduced gang violence in Canada, supports the ability of the police to gather valuable information and evidence from the community, and can be used to bring about a lasting ceasefire.
 The Australian legislation varies in each Territory and State.