Other places in other times know only too well how bad laws can quietly creep upon the citizenry, pile up one by one and then destroy the very fabric they sought to protect. If there is any smouldering doubt that the Rees Government's anti-bikie gang law is a bad piece of work, the NSW Director of Public Prosecutions, Nicholas Cowdery, QC, has extinguished it.
In a paper quietly slipped onto his website, he systematically exposed the dangerous qualities of this new regime, bits of which have been stolen from the anti-terrorism cupboard. He describes this piece of legislative handiwork as a "giant leap backwards" for the rule of law in NSW.
It was all knitted together in response to the public bludgeoning of the Hells Angels associate Anthony Zervas at Sydney Airport in March. It's one thing for bikies to slaughter each other in the peace and quiet of their tattoo parlours or the bubbling laboratories of their drug plants. It's quite another matter when the violence spills onto the concourse of property that governments assure us are secure.
Soon after, we were subjected to clunky stage-managed parades of the Premier and the Police Minister, flanked by the chief coppers, grimly nodding a chorus of agreement to expanded "gang squads" and tougher laws.
There didn't need to be new laws. There needed to be more rigorous policing and law enforcement of the panoply of legislation that already exists - specifically the anti-criminal group provisions passed in 2007.
The Crimes (Criminal Organisations Control) Act of 2009 is what we now have as a political stunt in response to the bad blood at the airport. The Opposition, too timid to resist, also helped with the nodding. Even so, it's interesting to note that a leader of the Comanchero Motorcycle Club, Mick Hawi, who was charged with affray after the bollard-wielding activities near the check-in counter, got out of Silverwater after a friend posted a $200,000 security. Five others are still inside, having been refused bail.
In a nutshell, the new legislation provides for a two-step shuffle. First step - the police commissioner can apply to the Supreme Court for a judge to make a declaration that an organisation is a criminal outfit, or more precisely that its members associate for engaging in "serious criminal activity". This is activity that can attract anything from five years' jail. The important thing here is that only "eligible" judges can do this dirty work. They have to nominate themselves to the Attorney-General and he has to approve their eligibility. So far 24 have been "approved". Theoretically, the law could equally apply to a group of Newtown goths illegally downloading software.
Step two - the police commissioner can then apply to any judge of the Supreme Court (eligible or non-eligible) for a control order against a member of a "declared" organisation. All that is required is that "sufficient grounds" exist for making a control order. The sufficient grounds are not spelled out. Once made, a person subject to a control order cannot associate with another "controlled" person. Exceptions are provided for "close family members", for education courses or where they associate while in the nick.
The onus is on controlled people to prove they fall within an exempted category. Jail awaits those who associate. A controlled person loses any state-granted licence to conduct a business.
Where Cowdery comes into his own is in spelling out what he modestly refers to as "troubling features". It is more like a lacerating exposure of a nasty and unnecessary law. There is no appeal of a declaration against an organisation or an order against an individual. Even where there has been a breach of the rules of procedural fairness, there is no right of appeal.
If the Police Commissioner classifies a bit of information as "criminal intelligence" then judges are required to hear that evidence in secret, in the absence of the parties to the proceedings and without their legal representatives.
The act says the rules of evidence do not apply to hearings associated with declarations of organisations. The prospect of an outfit being declared on the basis of hearsay evidence is quite possible. Eligible judges who make declarations are not required to provide reasons for their decisions.
On the two-tiered arrangement for Supreme Court judges, Cowdery picks his words carefully: "If an attorney-general should so desire, he or she has unfettered power to 'stack' the hearing of applications for declarations or organisations under the act with judges willing to enforce it". The attorney-general can revoke the eligibility of judges if they don't perform to "the Government's satisfaction".
In a letter to the Herald published on Wednesday, Hatzistergos said "allocation of judges is a matter for the courts". That's not entirely the picture. He has to approve those who hear applications for declarations.
It is understood at least one Supreme Court judge has told the Attorney-General he no longer wishes to be considered "eligible". The whole idea is utterly repugnant.
What concerns the DPP is that this combination of power vested in the police commissioner, along with the use of "approved" judges, is not just a frightening "aggrandisement of power", it is usurpation of judicial power by the executive.
Why isn't the judiciary making a huge stink about it?