Queensland bikie laws breach
international fair trial standards
From Amnesty International: 5 November 2013
Queensland's new bike
laws do away with the notion of innocent until proven guilty which could lead
to arbitrary detentions and an undermining of the independence of the
judiciary.
Mandatory sentences
The laws give
mandatory sentences of up to 25 years in addition to a standard sentence where
a person is accused of being a member and/or officer of a criminal association.
“The laws passed are
aimed at cracking down on ‘outlaw bikie gangs’ but potentially affect a wider
group of people, including those that aren’t affiliated with bikie groups,
something the Queensland government has failed to acknowledge,” said Michael
Hayworth, Amnesty International Australia spokesperson.
“We share concerns
already voiced by the Queensland Law Society, Australian Lawyers for Human
Rights and Queensland Council for Civil Liberties."
Broad laws cover all
associations not just bikies
“One of the major
issues we have is the language of the Act is so broad that in Amnesty
International’s experience, they are open to abuse,” said Hayworth.
The laws focus on
associations of people which include corporations, unincorporated associations,
clubs or leagues or any other group of three or more people whether the group
is legal or illegal.
Covering more than
just ‘bikie gangs’ the laws define people as ‘participants’ in associations
where they are a member, sought to be a member, attended more than one meeting
or participated in any other way in the affairs of the association.
There is no mention of
bikes or criminal activity in the definition of association.
A participant is
deemed to be a ‘vicious lawless associate’ when they commit a declared offence
while they are participating in the association.
The laws reverse the
burden of proof, forcing those accused of being ‘vicious lawless associates’ or
‘office bearers’ of the association to prove that they are not participants in
criminal associations. This severely undermines the right to be presumed innocent
until proven guilty that all Queenslanders enjoy.
Michael Hayworth, Amnesty International
Australia spokesperson
The difference here is
that the individual must prove that the association doesn’t exist for the
purposes of engaging in declared criminal offences.
A ‘vicious lawless
associate’ is then sentenced to 15 years jail on top of the sentence they
receive for the declared offence.
If the person is an
officer of the association and cannot prove otherwise they are liable to a
further ten years.
Guilty until proven
innocent?
“The laws reverse the
burden of proof, forcing those accused of being ‘vicious lawless associates’ or
‘office bearers’ of the association to prove that they are not participants in
criminal associations,” Hayworth said.
“This severely
undermines the right to be presumed innocent until proven guilty that all
Queenslanders enjoy.”
The combination of the
broad definitions and the requirement for the accused to prove their innocence
makes any sentence under these new laws fundamentally unfair .
Arbitrary detention
“Along with a right to
be presumed innocent until proven guilty, everyone has the right to liberty.
But these laws turn this concept upside down.”
This means the state
can only put someone in prison (and therefore remove their liberty) when they
have proved beyond a reasonable doubt that that person is guilty of a
recognized criminal offence.
The changes to the
bail laws mean that courts have little option but to refuse bail to those
accused of participating in criminal organisations, unless the person
demonstrates reasons that they should not be in jail.
“There are two
problems here: (1) the burden of proof is reversed, meaning the accused person
has to prove they should not be in custody rather than the state proving they
should be in jail; and (2) people have the right not to be in prison, even
before a trial, unless it is proven to be necessary,” Hayworth warned.
Pre-trial detention
under these circumstances could potentially be arbitrary and inconsistent with
the most basic standards of human rights law.
Interference with the
judiciary
“The unfairness of
trials, arbitrary detention and attacks on the presumption of innocence are not
the fault of the courts. They are a direct result of the government’s attempts
to crack down on criminal associations.
“These laws and the
government’s statements on cases before the courts represent a significant
overreach of parliamentary and executive power.
“Amnesty International
is calling for the legislation to either be reversed or completely overhauled
to address these serious breaches of human rights,” Hayworth added.
From the
Queensland Government website:
New laws
target criminal gangs
New laws have been introduced targeting the illegal
activities of criminal gangs, including criminal bikie gangs, in Queensland.
The reforms introduce new offences, increased penalties, enhanced powers for
Police and the Crime and Misconduct Commission and stricter bail laws.
About the reforms
The new Vicious Lawless Association
Disestablishment Act 2013 (the Act) provides strong mandatory sentences
for members and associates of criminal gangs who commit serious offences as
part of their participation in a gang, such as a criminal bikie gang. A new
mandatory sentencing regime will be complemented by the ability of the court to
reduce sentences where an offender cooperates with law enforcement.
Through significant mandatory terms of imprisonment
and the motivation of sentence reduction for cooperative offenders, the Act
will target individuals who offend with the support and encouragement of a
criminal gang. This, in turn, will aim to seriously disrupt the gang as an
organisation.
Limiting the activities of criminal gangs
The Tattoo Parlours Act 2013 will ban members
of criminal organisations and their associates from owning, operating or
working in body art tattoo parlours. The Act introduces a new occupational
licensing and regulatory framework. This will ensure that people authorised to
operate in the Queensland tattoo industry have been subject to rigorous
identification and probity requirements.
Amendments have also been made to liquor legislation
to prevent members of certain prescribed criminal gangs from entering or
remaining at licensed premises while wearing items aligned with a criminal
organisation (such as bikie gang patches or club colours).
Changes to the criminal law
The Criminal Law (Criminal Organisations
Disruption) Amendment Act 2013 contains a range of criminal gang-targeted
amendments, including the creation of new offences, increased penalties for
existing offences and increased police powers. New offences include:
- three or more members of a criminal gang
(including those listed by regulation), being together in a public place
- a member of a criminal gang being at a banned
location, such as a criminal bikie gang clubhouse, or banned event
- a member of a criminal gang recruiting, or
attempting to recruit, another person to the gang.
Increased penalties include:
- a mandatory minimum penalty of one year’s imprisonment
for a member of a criminal gang who commits a serious assault on a police
officer acting in execution of the officer’s duty
- increasing the mandatory minimum penalty for
evading police to $5,500 or 50 days of actual imprisonment; or for an
offender who is a member of a criminal gang, $11000 or 100 days of actual
imprisonment
- increasing the maximum penalty for the offence of
affray to seven years imprisonment with a mandatory minimum six months of
actual imprisonment where the offender is a member of a criminal gang
- automatic minimum three month driver licence
disqualification following conviction of one of the new offences or the
new aggravated affray offence
- automatic motor vehicle confiscation and crushing
following conviction for one of the new offences, the new aggravated
affray offence, or the new aggravated evade police offence where the
offence was committed in relation to the motor vehicle. This will include
where the vehicle is used to drive to or from the place where the offence
is committed.
The changes include amendments to enhance police
powers:
- Impoundment laws have been expanded to target the
motor vehicles of criminal gangs.
- Existing powers to require name and address and
to search without warrant will be extended where the person concerned is
known or suspected to be a member of a criminal gang.
Changes to bail laws impose additional conditions on
members of criminal gangs:
- Where the defendant is a member of a criminal
gang, the defendant will be in a show cause situation – for any offence.
- Where the defendant is a member of a criminal
gang, and bail is granted, the bail undertaking must include a condition
that the defendant surrenders their passport; and they will be detained
until compliance with the condition.
Additional powers for the CMC to allow hearings to be
conducted to gather intelligence about criminal organisations; and to
investigate or hold hearings to respond to an immediate threat to public safety
from criminal organisations. A participant in a criminal organisation will not
be able to rely upon a threat to his personal safety or property to refuse to
answer a question or produce a document at a hearing that involves a criminal
organisation. The punishment for contempt at a CMC hearing, which will apply to
all witnesses, will be mandatory imprisonment (and for a second or third
offence a mandatory minimum of 2 ½ years and 5 years respectively) if a witness
refuses to take an oath, answer a question or produce a stated thing or
document at the CMC hearing.
Report a crime
Anyone with information regarding the activities of
criminal gangs can report it anonymously to Crime Stoppers (
http://www.qld.crimestoppers.com.au/home.jsp ) on 1800 333 000 (24 hours, 7
days).
Cash
rewards (
http://qld.crimestoppers.com.au/crime/campaigns/criminal_motorcycle_gangs.jsp ) of up to $50,000
are available if you provide anonymous information to Crime Stoppers that helps
police to arrest a member of a criminal gang.
More information on reporting
a crime (
http://www.qld.gov.au/law/crime-and-police/report-to-police/report-a-crime ).
Contact
Report
information anonymously through the community organisation Crime Stoppers (
http://www.qld.crimestoppers.com.au/home.jsp ) on 1800 333 000 or online (
https://qld.crimestoppers.com.au/crime/report_cmg_information.jsp ).
Updated
6 November 2013
Peter’s
Piece
Amnesty International is a long-standing, highly
respected world-wide organization. Their opinion should be listened to and
acted upon.
The State of Queensland, on the other hand, has a long
history as a police state and a place where jobs for the boys, rolls of cash for
the back pocket and oppression of minorities are a way of life.
So here is my suggestion for amending this draconian law:
(a) Delete
‘bike’ and insert ‘government limo.’
(b) Delete
‘criminal organization’ and insert ‘political party.’
(c) Delete
‘known criminal’ and insert ‘member of parliament.’
(d) Delete
‘gang clubhouse’ and insert ‘parliament house.’
(e) Delete
‘prison term’ and insert ‘term of natural life in Antarctica.’
Problem solved.
VOTE
FREDDIE FUDDPUCKER
FOR
QUEENSLAND PREMIER
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