The report of Queensland’s Taskforce on Organised Crime Legislation, chaired by former Queensland Supreme Court Justice Alan Wilson, was made publicly available last week.
The Taskforce was announced a few months after the 2015 Queensland elections, which saw Campbell Newman’s LNP government — responsible for some of Australia’s strongest anti-bikie legislation — lose office to Labor.
The Taskforce’s role was to review the various anti-organised-crime and anti-bikie laws passed by the Newman government in 2013, report on their efficacy, and advise on their repeal and possible replacement with a new ‘serious organised crime‘ offence.
The Rule of Law Institute made a submission to the Taskforce in August 2015, available here.
The Institute’s submission
The Institute’s submission focused one of the Newmans government’s main anti-bikie laws: the Vicious Lawless Association Disestablishment Act 2013, also known as the VLAD Act.
The Institute made three key criticisms of the Act:
- The name of the Act was “ridiculous and emotively charged”, and made the ambit of the Act seem narrower than it actually was;
- The mandatory extra 15- and 25-year penalties imposed on ‘vicious lawless associates’ were convicted of criminal offences was “manifestly excessive”; and
- Critical definitions within the VLAD Act were unclear or “too broad”.
The Institute’s recommendation was that:
The Act should be repealed and the current Queensland Government should consider a principled approach to the mischief the Act was intended to address.
The Institute’s submission was quoted three times in the Taskforce’s report, and the Taskforce endorsed the Institute’s criticisms of the VLAD Act.
The name of the VLAD Act
The Taskforce noted that the name of the VLAD Act had come in for judicial criticism from both Chief Justice French and Justice Hayne in Kuczborski v Queensland  HCA 46, both of whom made the same points as the Institute:
Both the Rule of Law Institute of Australia and Dr Ananian-Welsh highlight in their respective submissions to the Taskforce, concerns regarding the language used in the title of the Act; and, draw attention to the comments of the judges in Kuczborski.
In Kuczborski, Chief Justice French said that:
The term ‘vicious lawless association’, which appears in the title to the VLAD Act, is not defined and appears nowhere in the body of the Act. It is a piece of rhetoric which is at best meaningless, and at worst leads as to the scope and substance of the law.
Justice Hayne said that:
Perhaps it was thought to reflect the stated political objective of dealing with criminal gangs, but it is an expression which is likely to mislead in at least two ways. First, it is an expression which suggests a much narrower focus for the Act than its provisions require. Second, it is an expression which at trial can only create prejudice and divert attention from the issues which a jury would have to decide.
The Taskforce concluded:
The Taskforce was unanimous in its resolution that, in light of the High Court’s pointed criticism, whatever else might become of the constituent parts of the 2013 suite the name of the VLAD Act would have to be changed.
Excessive mandatory penalties
The Taskforce also reviewed the operation of the VLAD Act’s mandatory extra penalty regime, and questioned its compatibility with the principle of proportionality in sentencing.
The regime imposed a mandatory 15-year additional imprisonment (on top of the base sentence) for ‘vicious lawless associates’ found guilty of designated criminal offences, and an additional 10-year imprisonment for OMCG office-bearers (on top of the base sentence and the 15-year mandatory addition).
The Taskforce noted the Institute’s submission, saying:
The Rule of Law Institute, in its submission to the Taskforce, argues vehemently that the VLAD Act “… make(s) a mockery of the well established principles of proportionality in sentencing. The use of law to impose excessive mandatory sentences to achieve the political objectives of the Parliament to be ‘tough on crime’ is incompatible with the operation of the rule of law in Australia.”
The Taskforce pointed out that the principle of proportionality in sentencing:
Ensures that citizens can only be punished for their criminality, and prevents the state from further punishing them as a means to achieving any other end… [while] the VLAD Act punishment regime is apparently engineered to gain assistance to law enforcement, which is later relied upon by the state under the criminal justice system to prosecute others – that is, an end goal which goes beyond those accepted limitations.
“Creep” effect of the VLAD regime
One of the other most important findings of the Taskforce illustrated the “creep” concerns that many critics of the Act had when it was first introduced. The Taskforce found that, of the 202 people charged under the VLAD Act between October 2013 and December 2015, 10.4% were members of ‘outlaw motorcycle gangs’ (OMCGs), 7.4% were associates of OMCGS, and the overwhelming majority — 82.2% — had “no known linkage to OMCGs”. In addition, only 2 people were sentenced as ‘vicious lawless associates’ under the Act, and neither of them had links to OMCGs.
In other words, legislation that was presented to the public as a necessary step in the battle against bikie-led organised crime seems to have been used in many circumstances outside of that. This “creep” effect fits the statistics from anti-organised-crime legislation from other states too. According to the NSW Ombudsman, New South Wales’ anti-consorting laws — again, billed as a necessary tool for police in the fight against criminal gangs — seem to be being used disproportionately against Indigenous youth and the homeless.
VLAD and the rule of law
The Taskforce’s report was a thorough review of the Newman Government’s 2013 reforms, and endorsed the Institute’s longstanding criticisms of those laws.
With its focus on removing what the Taskforce called the “unnecessary, excessive and disproportionate elements of the 2013 suite while maintaining a strong legislative response to organised crime in all its forms, including OMCG crime,” the report will prove to be a major step in improving the compatibility of Queensland’s anti-organised-crime legislation with rule of law principles.
The onus now rests on the Palaszczuk Labor Government to respond to the Taskforce’s painstaking and detailed report, and end this unfortunate chapter in Queensland’s legislative history.
— William Shrubb
‘Queensland Government’s new regime to tackle serious organised crime in Queensland‘, QLD Department of Justice
‘Submission regarding the VLAD Act‘, Rule of Law Institute of Australia
‘What will scrapping Qld’s anti-bikie laws mean for organised crime?‘, Brisbane Times