The Queensland Labor government has announced that the anti-bikie legislation implemented in the state by the Newman LNP government in 2013 is to be overturned and a new raft of legislation introduced in its stead. The announcement comes after the Taskforce on Organised Crime Legislation, led by Alan Wilson, a former judge of the Supreme Court of Queensland, finalised its report into the legislation.
The Taskforce was commissioned to investigate the effectiveness of Queensland’s anti-bikie legislation in the ‘detection, investigation, prevention and deterrence of organised crime’, and to provide the government with advice as to whether or not to retain the legislation. The terms of reference also required that they develop an offence of ‘serious organised crime’. In all, the report made 60 recommendations though Premier Annastacia Palaszczuk has indicated that not all will be implemented by the government.
The current regime, commonly known as ‘VLAD’ (an acronym drawn from the primary piece of legislation implemented in 2013, the Vicious Lawless Association Disestablishment Act 2013), has been extensively criticised by various facets of the community, including the legal profession. The primary concern was the harshness of the legislation and the significant infringements on personal liberties of those who are even suspected of falling within its ambit.
The Taskforce took into consideration the numerous submissions made during its investigative period. One of the apparently more significant submissions came from the CCC. They warned, in part, that there was evidence to suggest that criminal organisations had been active in recruitment activities since the last state government election as they had anticipated that the laws would be softened once the Newman government was voted out of parliament. However, Attorney-General Yvette D’Ath believes the new laws will be tougher and more effective than those that are being replaced. Miss D’Ath stated, ‘I want to make it very clear here today for those in outlaw motorcycle gangs and criminals out there who think that the doors are going to be reopened. Not only are they closed, but we’re wedging them shut.’
The Taskforce was primarily concerned with the anti-bikie Acts passed by the Newman government in 2013, collectively titled in the report as the ‘2013 suite’. This included:
The terms of reference of the Taskforce involved consideration of a significant number of legislative instruments. Primarily, though, efforts were focussed on the Acts passed by the Newman government in 2013, identified collectively in the report as the ‘2013 suite’, and which included:
- the Vicious Lawless Association Disestablishment Act 2013 (the VLAD Act)
- the Tattoo Parlours Act 2013
- the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (CLCODA Act)
- the Criminal Code (Criminal Organisations) Regulation 2013 (the Regulation), and
- the Criminal Law (Criminal Organisations Disruption) and Other Legislation Amendment Act 2013 (CODOLA Act).
These primary Acts introduced amendments to many other legislative instruments including:
The primary piece of legislation in the 2013 suite, or at least that to which reference is most often made in relation to anti-bikie legislation, is the VLAD Act. This Act ‘target[ed] the illegal activities of criminal gangs, including criminal bikie gangs’ with the ultimate aim being ‘to seriously disrupt the gang[s] as … organisation[s]’. The Act defined the people targeted by the regime, imposed limitations on the availability of parole, and set harsher sentences for particular offences. These offences, known as ‘declared offences’ are listed in the Act. It rendered illegal any organisation declared to be criminal (‘criminal organisations’) as well as certain properties, known as ‘prescribed places’, both of which are specifically identified in the Regulation.
Perhaps the most controversial aspect of the legislation was the imposition of mandatory sentences (in addition to any other penalty) of imprisonment of 15 or 25 years (depending upon their role within the gang) for anyone who committed a serious offence where that person is a member or associate of a criminal gang and the offence is committed as a result of their participation in the gang.
The CLCODA and the CODOLA Acts then introduced a multitude of changes to existing legislation to give effect to the VLAD Act. They granted Police and the Crime and Corruption Commission (CCC) more extensive powers in dealing with criminal gangs, and created new offences, such as rendering it illegal for any more than 2 members of a gang to gather together in a place accessible to the public, and for a member of a gang to attend their clubhouse or recruit a new member. They also increased penalties for offences such as affray, evading police, and assaulting a police officer.
Changes to the Bail Act 1980 through the CLCODA and CODOLA Acts made bail more difficult to obtain in cases involving a member of a criminal organisation. The amendments mean that a member of a criminal organisation who is charged with an offence must show cause as to why bail should be granted, and that they must surrender their passport.
The Acts also empower police to impound motor vehicles belonging to gangs or members of gangs, and to search without a warrant if a person is known or suspected to be a member of a criminal organisation. The CCC (at the time, the Crime and Misconduct Commission or CMC) was permitted to conduct intelligence activities about, or respond to immediate threats by, criminal gangs by conducting hearings or carrying out investigations. Those called before the CCC to give evidence can no longer rely on threats to their safety or their property so as to avoid answering a question or providing evidence; otherwise, they face a mandatory term of imprisonment.
Amendments to the Corrective Services Act 2006 allowed for segregation of members of a criminal organisation whilst imprisoned, while changes to liquor legislation serve to prevent members or associates of criminal gangs from going into any licensed establishment while wearing anything indicative of their involvement in a criminal organisation.
The Acts also made changes to, for example, the Criminal Proceeds Confiscation Act 2002, the District Court of Queensland Act 1967, the Supreme Court of Queensland Act 1991, the Justices Act 1886, the Evidence Act 1977, and the Penalties and Sentences Act 1992, as well as the Electrical Safety Act 2002, the Queensland Building Services Authority Act 1991, and the Racing Act 2002.
The 2013 suite also saw the introduction of the Tattoo Parlours Act. This Act effectively banned members and associates of criminal organisations from ownership or operation of, or employment in, tattoo or body art parlours through the restriction of licensing.
The report submitted to the government contained 60 recommendations in relation to the anti-bikie legislation, though not all were unanimous amongst its panel members. It did not recommend the repeal of the entire 2013 suite of legislation, and the amendments made to other pieces of legislation. Instead, it contains a mix of recommendations for repeal and retention of various aspects of the legislation, though not all recommendations were unanimous. It also recommends the creation of new provisions.
Perhaps the primary outcome of the report is the recommendation for implementation of mandatory control orders, based on systems already in place for terrorism offences and sex offences. These orders bear some similarities with the existing scheme, in that they would prevent offenders from associating with members of a criminal organisation, or from going to particular places. However, the difference is that police are allowed the option of warning offenders rather than arresting immediately. Control orders could also prevent offenders from using some forms of technology.
Also of note is the recommended repeal of provisions which have had the effect of reversing the onus of proof for those accused of anti-bikie offences, and those which require an accused to ‘show cause’ as to why bail should be granted.
Additional recommendations include the repeal of a number of provisions, retention of others, and the implementation of some new processes and provisions. Recommendations for repeal included:
- all amendments to the Bail Act 1980 which arose through the 2013 suite, apart from those which relate to the use of audio-visual technology
- sections 60A-60C of the Criminal Code, all of which relate simply to physical presence in particular places or recruitment activities, to be replaced with a consorting offence and consensus scheme, as well as replacement of the recruitment offence with one already in operation under section 100 of the Criminal Organisation Act 2009, and
- mandatory minimum sentences for contempt in relation to the CCC, and the exclusion of fear of reprisal as an excuse
- provisions relating to police powers to stop, request identification from, search, and detain because of a reasonable suspicion of involvement in a criminal organisation.
Aspects of the legislation which the Taskforce recommended be retained include:
- expanded intelligence functions
- increased penalties for failing to comply with the CCC Act
- confidentiality of particular proceedings under the CCC Act, and
- the Tattoo Parlours Act 2013, but the Taskforce recommends references to ‘parlour’ be altered.
The recommendations also included the implementation of several new processes or provisions including:
- the construction of a new Organised Crime Framework
- the creation of a circumstance of aggravation involving Serious Organised Crime which would apply to a defined list of offences, all of which should proceed by way of indictment and only if the Director of Public Prosecutions consents. The circumstances of aggravation should have no effect in increasing maximum penalties for the offences, but is to form part of a new ‘targeted sentencing regime’ involving the mandatory application of control orders. The only way to avoid control orders would be to cooperate with investigators.
- enactment of a new sentencing guideline whereby the court must consider (and must document their consideration) whether or not the offence in question was committed in the context of the activities of a criminal organisation.
Although the ambit of the new legislation remains unsettled, Ms Palaszczuk claims that whatever her government introduces ‘will be the benchmark for laws that other states will follow.’
The draft new laws are due to be introduced into parliament by August for implementation before the end of the year.
This article reflects the state of the law as at 6 April 2016. It is intended to be of a general nature only and does not constitute legal advice. If you require legal assistance, please telephone 1300 636 846 or request a consultation at gotocourt.com.au.