Labor faces minefield in changes to anti-bikie VLAD laws

The state government must navigate a minefield to establish the balance between civil liberties and fighting organised crime. Photo: Luis Enrique AscuiThe Palaszczuk government plans to scrap anti-association provisions within Queensland’s anti-bikie legislation and replace it with anti-consorting legislation instead – but it can’t say whether bikie members will once again be able to congregate publicly.
Nanjing Night Net

It is also yet to say how it will tackle the issue of clubhouses, which are included in the Newman government anti-association laws, as well as the powers for police to stop and search those they suspect of criminal gang activity.

The government wants to keep elements of the controversial Newman government laws, while removing and replacing large sections.

While it has committed to scrapping anti-association aspects and putting the focus back on the individual, rather than identified criminal gangs, Premier Annastacia Palaszczuk and Attorney-General Yvette D’Ath can’t say what that means for the ability of bikies to congregate – and for police to search them.

The lack of clarity left Queensland Police Union president Ian Leavers scratching his head following the report’s release.

“The Queensland Police Union was on the taskforce and disagree with a large number of the recommendations which are contained within the report itself, even if the recommendations themselves rather oddly have the word “unanimous” after them,” he said.

“The Premier contacted me over the weekend and asked me to meet with her as well as the Deputy Premier and Police Minister prior to Cabinet which I did.

“Over the course of an hour I explained that the Anti-Association provisions and the Stop Search & Detain powers are well liked and used by police.

“The QPU does not support repealing the VLAD laws, merely amending them in line with the proposal put forward by Deputy Commissioner Ross Barnett for an amended VLAD regime that he developed in consultation with Taskforce Maxima which champions mandatory sentencing for organised crime.”

Mr Leavers remained hopeful a common ground could be found.

“I explained that any amendments need to ensure there continues to be a “declared criminal organisations” list that ensures there will never again be OMCG “clubhouses” and “poker runs” and that the State Government should seriously consider adding emerging criminal groups to this list as well as broadening the target of these laws to target paedophiles as well and the Premier agreed.

“This taskforce was very much a differing of views divided along the lines of the theoretical and the views of the practical users of these laws.

“I have asked the Premier to side with the practical users of these laws, the police, who feel safer as a result of these laws and in turn are keeping Queenslanders safer.

“As a result the Premier has offered the Queensland Police Union a position on her legislative implementation group.

“As the Commissioner of Police has said to all police today “whilst the Report recommends a range of changes to the existing legislation relating to criminal organisations, it is important that officers are aware that the law of the State of Queensland remains unaltered’.”

How that will work is still a work in progress.

In October 2013, in response to a public brawl, the Newman Government rushed through legislation aimed at criminal gangs, in particular the state’s identified outlaw motorcycle gangs, passing the laws just weeks after they were first mooted, bypassing the Parliamentary committee review system.

Dozens of bikies were involved in the brawl at Broadbeach. Photo: Twitter/BorisCeko

The legislation, which included the sentencing instrument the Vicious Lawless Association Disestablishment act, known as VLAD, and anti-association laws, was challenged in the High Court the following year.

The court upheld the anti-association challenge and associated bans on tattoo parlour licences.  But it refused to hear a challenge against wider sections of the legislation, as the man who brought the challenge had not been charged under the legislation.

After first vowing to repeal the legislation, then review it, as public sentiment changed the Palaszczuk Government formed a Taskforce on Organised Crime Legislation in 2015, appointing retired Justice Alan Wilson to lead the review.

The LNP dismissed the taskforce as soon as the terms of reference, which included an instruction on how best to repeal or replace the laws, were released as having a pre-determined outcome.

On Monday, Justice Wilson’s report revealed the taskforce followed through on that instruction, recommending VLAD be repealed and replaced with other legislation, it says would withstand a High Court challenge.

The Newman laws, it warned, did not carry that same guarantee.

The government was still working its way through the 60 recommendations from the 400-plus page report on Monday and did not have a response for all of them.

But it did commit to repealing VLAD, replacing the anti-association laws, and amending the majority of the 2013 reforms, which will see police now focus on the individuals carrying out the crimes, rather than the over-arching criminal organisation itself.

That’s because the report found that the definition of a criminal organisation within the acts was too narrow, and not uniform, which provided loop holes.

Attorney-General Yvette D’Ath, who has had the report since Thursday, said Labor intended on closing those loopholes and preventing any losses in the High Court with “strong and robust” laws.

Attorney-General Yvette D’Ath. Photo: Glenn Hunt

“When I say strong and robust, I mean constitutionally, legally for getting convictions, but also, robust enough operationally on the ground for police and that is where the VLAD laws failed – the fact is, the definition is too narrow, the CCC said that, the taskforce and the taskforce members acknowledged that the definition of a criminal organisation is too narrow and consequently, as organisations change and as circumstances change, and new criminal organisation evolve that the code definition would not allow us to follow those people,” she said.

“So instead of focusing on the organisation we will focus on the individuals who are engaged with organisations – so that, no matter what that individual is doing and where they  are going and whatever organisation they call themselves, we can still follow that individual.

“We will move from anti-association provisions to targeted consorting laws.  The taskforce have been very clear that the anti-association laws as they exist currently are flawed and seriously at risk of constitutional challenge.”

The difference between the anti-consorting laws, which New South Wales uses, and Queensland’s anti-association laws, comes down to convictions.

In Queensland, you don’t have to have been convicted of a crime to be targeted under the laws – being a member of a criminal gang, or an associate, is enough. In NSW, a conviction is necessary before bans on who you can consort with, is put in place.

Ms D’Ath said that equated to convictions, with the NSW courts securing 20 convictions from 32 people charged last year, under the anti-consorting laws, compared with the 42 people charged in Queensland – and no convictions.

“What the taskforce shows is that there are real challenges in sufficiently meeting the evidentiary requirements to succeed in these cases,” she said.

“There are cases which have gone before the court and been withdrawn and cases which have not been successful.

“So any claims, and I put this to the Opposition, so any claims that we haven’t seen convictions is that they were on hold is not accurate.

“The fact is there are cases that have not been successful and there are cases that have been withdrawn due to evidentiary problems with the current laws.

“We believe that our proposed laws will ensure that those convictions can be received.”

But the government can’t say whether those changes will mean criminal gangs – of which outlaw bikie gang members have been overwhelmingly the most public presence   – will be able to once again gather in public.

“We are saying to you, that as a government, we are committed to ensuring we have laws that will deal with outlaw motorcycle gangs in public places, for example, mass rides up the roads,” Ms D’Ath said.

“So we are still to consider the 60 recommendations, we are not making a decision today on all the recommendations, but what we are saying is we will look at new laws to do that, because the anti-association laws do not stack up.

“The flaw in anti-association and the message that came through very clear from the public is those laws indiscriminately look at people, not based on their criminal activity, but based on their organisation.

“We will look at criminal activity, yes, because the public made the message very clear on that, that they believed the anti-association laws went too far.  We will tackle criminal activity.”

Which the Opposition said was just not good enough.

“The report’s recommendations and the Palaszczuk Government’s response is worse than expected – rather than watering down the VLAD Act, Labor is scrapping it altogether and putting Queenslanders safety at risk,” acting LNP leader John-Paul Langbroek said.

John-Paul Langbroek. Photo: Glenn Hunt

“The Premier’s rollback of laws will take away harsher sentencing for criminal gang activity, allow criminal gangs to again gather in large groups, as they did at Broadbeach in 2013, and will remove police powers to stop, search and detain people suspected of criminal activity.

“How can the Premier say she’s ‘tough on crime’ when she’s taking away the most powerful parts of the existing laws?

“The LNP will not support rolling out the welcome mat for criminal gangs and will oppose Labor’s plans every step of the way.”

The government, which also plans on introducing mandatory control orders, which will mean, those convicted of organised crime activity – not just bikies – will be subject to on-going surveillance, similar to counter-terrorism suspects and the State’s dangerous sex offenders, says it’s laws will be tougher than the LNPs.  But able to withstand legal challenges.

“A cornerstone of the new laws is making serious organised crime an aggravated circumstance with a mandatory jail penalty,” Ms D’Ath said.

“Offenders convicted of serious organised crime will also be subject to a mandatory organised crime order, which gives authorities the power to monitor offenders, similar to international counter terrorism laws, in a way which draws also on Queensland’s tough dangerous sex offenders supervision laws.

“I believe these laws will do what our current laws could never do – secure convictions for serious organised crime offenders.

“The laws rushed through parliament in 2013 were about exploiting fear for political gain, rather than facing the real challenges combating organised crime.

“The fight against organised crime should never be a gamble.

“This package will help police fight not only criminal bikie gangs, but all forms of organised crime in this state, and we know from the Byrne report [into organised crime] that child sex gangs, boiler room frauds and drug trafficking syndicates often exist in the underground.”

Premier Annastacia Palaszczuk, who now faces the task of selling the laws to not only a split public, but also the cross bench, also has to hose down suggestions her government’s election had given criminal gangs the opening they were waiting for.

Data published in the report found that over the last two years since the Newman Government legislation was introduced, 124 outlaw criminal bikie gang members have left the state, leaving about 800 remaining.

A Crime and Corruption Commission submission, left out of the taskforce report and not published publicly until NewsCorp was released a section under Right to Information legislation, was released in full by CCC Chair Alan MacSporran on Monday, following the Wilson report release.

It paid credence to those fears, which have been fanned by the LNP, that bikie gangs were waiting in the wings for Labor to weaken the laws.

“The timing of the recruitment activities suggests that, following the change of government in January 2015, it is perceived by clubs that there is a softening of the stance against OMCG activity,” Mr MacSporran wrote in the submission.

“While there has been no evidence obtained as to the particular factors which have contributed to this resurgence, it may be inferred that OMCGs perceive that the laws will be repealed or reduced, and are positioning themselves to take control of ‘turf once any relaxation occurs.”

Ms D’Ath said the proposal Labor was putting forward, refuted that idea.

“I want to make it very clear here today, to those outlaw motorcycle gangs and criminals out there who think that the doors are going to be re-opened, not only are they closed, but we are wedging them shut,” Ms D’Ath said.

Colours and insignias will also stay banned in licensed premises under the Labor legislation proposal.

“At the end of the day, colours are a very important issue and that is identified – at the end of the day, outlaw motorcycle gangs have not disappeared from Queensland, and let’s be clear of that, they are still there, but they are operating underground, they are operating behind the scenes,” Ms D’Ath said.

“We will retain the liquor act provisions to make it unlawful to be wearing any sort of prohibited items or carrying any prohibited items which includes colours and insignias and that kind of thing.

“Our cabinet has made a very clear decision, we do not want to see bikies riding en masse in their colours on our streets again, that is very clear.

“We will work through what the legal mechanism should be to deal with that public safety issue.   “But let’s be clear, we do not want to see that back on our streets.

“Now the taskforce has said the anti-association laws do not work properly, they are flawed laws.

“So we need to work through what the new laws would be, but let’s be clear, our position is we do not want to see outlaw motorcycle gangs wearing their colours, back on the streets in large numbers.

“We understand, and the taskforce recognises that even though they make up a small percentage of criminals and crimes in this state, they do intimidate people and the broader public that people have the right to go to a restaurant or a licensed venue and feel safe and not feel intimidated by that presence of outlaw motorcycle gangs.”

Premier Annastacia Palaszczuk. Photo: Robert Shakespeare

But any changes – which assumes the cross bench is on-board – will not be made until after August, with Ms Palaszczuk announcing the government plans on taking its time before introducing any legislation.

“This is the first time that a government is tackling serious organised crime,” the Premier said.

“I believe these will be the benchmark of laws that other states will follow.

“The former laws – parts of them worked, parts of them didn’t.

“In Queensland, you see they wanted workable, enforceable, robust laws.

“What my government is doing is taking it to the next step. Serious organised crime is a big issue – it is a big issue in this state, it is a big issue across the nation.

“So we want to make sure that we tackle all the elements of serious organised crime, whether it is outlaw motorcycle gangs, whether it is people involved in child exploitation, illicit drugs, money laundering – we are going to tackle this head on.

“There will be control orders, there will be mandatory sentencing.  We will get these laws right.

“We will not rush them, we will take our time, because that is what Queenslanders expect.”

As part of the government’s response to the taskforce report, the Premier announced funding of $37.4 million over four years to support the fight against organised crime.

Parliament will resume later this month.

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This story Administrator ready to work first appeared on Nanjing Night Net.

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