Bikie Laws – An explanation of the tough new legislation

You’ve seen it on the news, you’ve read it in the papers – the Queensland Government has passed severe laws, which are currently being used against Queensland based motorcycle organisations. A “significant suite” of legislation has been debated and passed, raising the eyebrows of many prominent legal minds. Whilst the laws are currently being used against motorcycle clubs, they can be used against any association the government chooses.

The three acts included in these legislative changes are:

• Vicious Lawless Association Disestablishment Act 2013 (VLAD)
• Tattoo Parlours Act 2013
• Criminal Law (Criminal Organisations Disruption) Amendment Act 2013.

Much of the uproar surrounding the new legislation and the amended legislation arises from the broad interpretation of many of the new laws. The new laws erode the freedom to association, and encroach on the fundamental checks and balances of our Westminster democracy.

The following article seeks to clarify the new laws, and outline some of the initial problems that legal minds around the country are identifying.

What is all the fuss about?

Irish Bentley Lawyers have identified a number of primary key issues with the new legislation and amendments. Initially, it must be argued that these laws go against the protection enshrined in Australia’s constitution and in fact defy the separation of powers doctrine.

Broad definition of ‘association’: Under the new legislation, the definition of ‘association’ is so broad that, if the Government wanted to, they could impose this definition on unions, work places, or social clubs. The definition of ‘participant’ is also just as broad as the term ‘association’. As stated in a recent press conference, Zeke Bentley of Irish Bentley Lawyers stated that “someone who had been a member of a bike club in the 1960’s that had not ridden a bike or associated with anyone since this time, can still fall under the definition of an associate.”

Mandatory Sentencing: The integrity of the judicial system rests in the hands of judges exercising their judicial discretion. Mandatory sentencing and restrictions on bail powers interferes with the judicial system. Separating the justice system from the government is an essential check and balance in our democracy. Judges are trained in understanding the individual and mitigating circumstances of each case, and imposing mandatory sentences could lead to unfair convictions and injustices. His Honour Justice Fryberg SCJ raised his concerns about this in a recent Supreme Court matter. For more details click here. His Honour went on record stating “most people know that in the absence of a statutory authority, judges are not permitted to take community expectations into account in deciding cases… That would affect the institutional integrity of this Court.” Check out the full decision here.

Changes to the Bail Act: The new legislation imposes an immediate presumption against bail for alleged participants in a criminal organisation. This would extend to small and simple offences that usually would not incur a sentence of imprisonment. The issue is that alleged members of a criminal organisation may be imprisoned and remanded in custody for offences that would usually not warrant doing so.

Additional powers given to the Minister: Under the new legislation, the Minister is now empowered to make new decisions regarding declaring an organisation a criminal gang. This essentially leaves the Minister free to declare anyone he wishes to a criminal organisation, and no explanation has been given as to the safeguards or checks and balances in place to ensure this is done correctly and without prejudice.
The discussion below outlines in more detail specific provisions made under the new laws.

The effect of the Acts

In summary, the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013:

• Adds an additional limb enabling the Minister to recommend that an entity be declared a criminal organisation by regulation.
• Introduces three new offences that are targeted at preventing members of criminal motorcycle gangs from gathering in groups, associating with each other, recruiting for their organisation, promoting their organisation, or entering certain venues and prescribed locations.
• These new offences, as well as the offence of a driver failing to stop a motor vehicle when the driver is a participant in a criminal organisation, will attract a minimum 6 month sentence and the vehicle being used during, after or before the offence confiscated and crushed.
• Increases in penalties (and the imposition of a minimum penalty) for the following offences:
  • offences of affray;
  • misconduct in relation to public office;
  • grievous bodily harm;
  • serious assault; and
  • obtaining or dealing with identification information.
• Mandatory disqualification of license for three (3) months for offences related to driving a vehicle, for certain prescribed offences in which the offender is a participant in a criminal organisation.

In addition to these new laws, the following acts have been amended to incorporate the following changes:

Bail Act 1980

• An immediate presumption against bail is assumed if the defendant is a member of a criminal organisation. This even applies to indictable, simple and regulatory offences.

Crimes and Misconduct Act

• Includes a new provision that enables the Crime and Misconduct Commission (CMC) to hold meetings referred to as “intelligence function hearings” to discuss the activities of criminal organisations or a specific member of these organisations.
• Expands the exceptions to the ‘use immunity’ in section 197 to allow the use of information from any CMC investigation or hearing to be used in confiscation proceedings;
• Clarifies that a ‘reasonable excuse’ does not include the persons’ fear of retribution to the person, where that person is a participant in a criminal organisation and the crime investigation or intelligence hearing is about a criminal organisation or participant in a criminal organisation.
• Imposes mandatory imprisonment for the punishment of contempt when the contempt involves a refusal to take an oath, answer a question or produce a stated document or thing at any CMC hearing;
• Authorises the CMC to request a police officer to detain a witness in contempt of the presiding officer pending the issue of a warrant of apprehension and the bringing of the person to court to deal with the contempt;
• Allows a Magistrate to issue an arrest warrant under section 167;
• Permits the CMC to not disclose any intelligence information to a defendant for the purposes of a criminal prosecution under section 201; and
• Provides that legal assistance for crime investigations approved under section 205 do not apply to crime investigations authorised under the immediate response function.

Police Powers and Responsibilities Act 2001

• Provides additional powers to search (without a warrant) any person reasonably suspected of being a participant in a criminal organisation and/or a vehicle in that person’s possession or use;
• Requires a person who is reasonably suspected of being a participant in a criminal organisation or a person found at a prescribed place or event to state their name and address to police;
• Expand the vehicle impoundment regime to incorporate the new Criminal Code offences of sections 60A, 60B, and 60C of the Criminal Code offence of affray with the new circumstances of aggravation to be inserted by the Bill, enabling a vehicle used in the commission of these offences to be impounded, and forfeited to the State upon conviction; and
• Increases the mandatory minimum penalty for the offence of failing to stop a motor vehicle to:
  • 50 penalty units for 50 days’ imprisonment to be served wholly in a correctional services facility or
  • 100 penalty units for 100 days’ imprisonment for an offender who is a participant in a criminal organisation, to be served in a wholly correctional services facility.

Vicious Lawless Association Disestablishment Act 2013

• Sets out three elements that must be satisfied in order for a person to be deemed a vicious lawless associate – namely:
  • Commits a declared offence;
  • At the time the offence is committed, or during the course of the commission of the offence, is a participant in the affairs of, the relevant association; and
  • For the purposes of the association, or in the course of participating in the affairs of the association, did or omitted to do the act which constitutes the declared offence.
• Subclause (1)(b) of the Act states that in addition to the base sentence, the courts must impose a further sentence of 15 years imprisonment for someone that falls within the definition of ‘vicious lawless associate’.
• In additional to this extra 15 years sentence, another 10 years is added to the sentence if the vicious lawless associate was an office bearer of the association.
• Someone that is deemed to be a vicious lawless associate is not eligible for parole during any period of the imprisonment for a further sentence. The only circumstance in which parole will be considered is if the offender has offered to cooperate with Police investigations and the Commissioner of Police has accepted this offer in writing.
• The declared offences to which these laws apply are: including, but not limited to, murder, money laundering, wounding, affray, assault occasioning bodily harm, attempting to pervert justice and possessing dangerous drugs.