Guest blogger: Kate Galloway

The Queensland government has recently implemented a raft of legislation designed to deal with a ‘crisis’ of (bikie) gang related crime. The new laws:

• Declare certain organisations to be criminal organisations (Crime and Misconduct Regulations 2005; Criminal Code (Criminal Organisation) Regulations 2013)
• Criminalise attendance at prescribed premises (Criminal Code)
• Make it a crime for those who are members of a criminal organisation, to be ‘knowingly present in public’ in the company of two or more people who are also participants in a criminal organisation. The crime is of association alone. (Criminal Code Qld, s60A)
• Impose mandatory sentences for commission of certain crimes over and above the sentence for those crimes themselves (Vicious Lawless Association Disestablishment Act 2013 ‘VLAD’)
• Deny bail to participants in a criminal organisation unless they can prove that custody is unjustified (Bail Act 1980)
• Criminalise the wearing of clothing or jewellery marked with the insignia or names of a criminal organisation, in licensed premises (Liquor Act 1992)
• Allow detention of a person who is a member of a criminal organisation for the purpose of confirming their identity (Police Powers and Responsibilities Act 2000)
• Require owners and employees of tattoo parlours to be ‘fit and proper person(s)’ and to submit fingerprints and hand prints when applying for licenses (Tattoo Parlours Act 2013)

In terms of punishment of participants in criminal organisations, the government has established a ‘bikie super prison’ at Woodford, proposing inmates be held in 23 hour a day lockdown. With new bans on smoking in prison to be introduced in Queensland from May 2014 and a proposal that bikie inmates wear pink overalls to ‘embarrass’ them, the winding back of human rights of offenders seems almost complete.

Further legislation (Criminal Law Amendment (Public interest Declaration) Amendment Act 2013) has granted the Attorney-General the power to detain indefinitely a convicted sex offender, even if that person is released on parole or released by the Courts.

Parliament has also introduced the G20 Safety and Security Bill 2013. It has been criticised by the Opposition as not providing for harsh enough sentences for offences. However it is possible that the so-called ‘anti-bikie’ legislation will be used against G20 protestors.

This array of legislation extensively intrudes into civil liberties in Queensland. The Queensland Bar Association , Queensland Council for Civil Liberties  and myriad commentators have highlighted the poor process in enacting the laws, the failure to consider the consequences of the legislation and the effect on law abiding citizens. Indeed motorcycle enthusiasts are now invited to register their rides with the police to avoid police harassment.

On the other hand, the acting head of the Crime and Misconduct Commission has come out in favour of the laws, and the Queensland media – notably the Courier Mail – is promoting the laws as tough and necessary (see here and here). None of these parties seem familiar with the recommendations of the Fitzgerald Inquiry from over 20 years ago that include better scrutiny of criminal justice legislation, more time for public consultation, an Attorney-General who is separate from the Minister for Justice and who upholds a role independent of the politics of cabinet, and an independent and critical media.

While the panic about bikie gangs and sex offenders may limit the capacity to see beyond these unpopular groups, the laws will inevitably be used against other citizens.

Criminalising association is already affecting law-abiding citizens who are required to justify their lawful activities. As various commentators have pointed out, the broad drafting of ‘criminal organisation’ creates the potential for the imposition on other groups of the offences of association or the additional mandatory sentences.

For example, the approach of the Catholic Church – or parts of the Church – in dealing with sex-offender priests may bring the decision-makers within the new suite of laws. While it would be unlikely that the Church as a whole could be shown to have as its purpose ‘support for serious criminal activity’, the position of a committee making decisions about sex offender priests or religious, is less certain. There are numerous reports of sex offender priests or religious who have been shifted from parish to parish, or diocese to diocese. If such decisions have been taken by a group of three or more, that group could be ‘supporting’ a serious offence. Child sex offences, some sexual assaults and attempts to pervert the course of justice are all considered ‘serious criminal offences’. A group (three people or more) that has as its purpose or one of its purposes ‘engaging in, organising, planning, facilitating, supporting or otherwise conspiring to engage in serious criminal activity’ is a criminal organisation in terms of section 1 of the Criminal Code (Qld). If members of such a group gathered in a public place, each would commit an offence. Under the definition in s60A of the Criminal Code, ‘public place’ would include a church.

In another example, under the VLAD, obscene publications (involving a child under 16, or under 12) trigger the mandatory sentencing provisions. In 2008, a New South Wales exhibition by artist Bill Henson was raided by police, who confiscated 20 photographs on the basis of obscenity laws The question was whether the photographs were art or not. Ultimately, the DPP decided not to prosecute. Earlier this year, Bill Henson pulled an exhibition from display as part of the South Australian biennial after it was revealed a senior detective had urged the premier to intervene.  In Queensland, if the photographs were found to be ‘obscene’, the meeting of the art gallery board could be considered a ‘criminal organisation’ whose purpose was to commit a serious criminal offence. The members of the board would therefore be subject to an additional mandatory sentence.

Commission of a ‘serious offence’ will trigger additional mandatory sentences not only for bikies, but also for participants in any ‘associations’ of three or more who gather for purpose of committing or supporting the commission of a ‘serious offence’. It is feasible that these provisions may affect any protesters at the G20 in 2014 if they are charged with affray or riot – two of the serious offences listed in the VLAD.  Likewise, if protestors are found to be a participant in a criminal organisation, the presumption against bail and all the other anti-bikie provisions will be triggered. It is entirely possible that a variety of people would be caught up in such action, as has been documented in other jurisdictions. (See for example the Toronto experience.)

The Fitzgerald Report highlighted the complexity of the criminal justice system, and the need for the support of evidence and wide consideration of the issues and impacts of criminal law. Fitzgerald cautioned against the (then) prevalence of an Executive reactive to what are presented as ‘isolated dilemmas’. He observed that:

Passage of such a law usually, however, gives the Minister responsible a sense of accomplishment, leaves the bureaucracy in control, and gives the public an impression that the Government is alert and active. The media rarely examines the issues in any depth, often endorsing the view that problems have simple solutions which can be applied by quick legislation.

This could be written about Queensland today in its unwinding of civil liberties and the rolling out of unintended consequences.

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