Rule of Law Institute of Australia Submission on the Vicious Lawless Association Disestablishment Act 2013

The Rule of Law Institute of Australia (RoLIA) appreciated the opportunity to make a submission to the current review of organised crime legislation in Queensland.

RoLIA is an independent, non-political and not-for-profit body. It does not receive any government funding. The objectives of the Institute include promoting the importance of separation of powers, the independence of the judiciary, open and transparent government, and the presumption of innocence as a check on the powers of government.

Comments on The Vicious Lawless Association Disestablishment Act 2013

The Vicious Lawless Association Disestablishment Act 2013 (VLAD Act) contains broad definitions. This enables the executive arm of government a significant discretion in determining who to prosecute. The Act also removes the independence of the judiciary, and makes a mockery of the well-established principle 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.

There is no dispute that organised crime is an issue that is worthy of a serious response by government, however, the VLAD Act is an inappropriate response to this issue. A law which provides for association as the basis for an extra penalty in addition to the head sentence will lead to sentences of imprisonment which are manifestly excessive. Excessive punishments, which do not fit the crime, will inevitably diminish the public’s confidence in the legal system to deliver justice.

The Institute makes the following comments about the provisions of the VLAD Act:

  • The title of the Act, ‘Vicious Lawless Association Disestablishment Act’, is a ridiculous and emotively charged title and which trivialises the serious matters the Act itself deals with. Of primary concern is the term ‘vicious lawless associate’ which is given to a person who falls afoul of the Act. The inappropriateness of this designation is at odds with proportionality in sentencing given the broad range of conduct which can be used to support the imposition of a penalty under the Act.
  • The critical definitions of ‘association’, ‘office-bearer’ and ‘participant’ in s 3 and 4 of the Act are too broad.
  • The ‘declared offences’ in Schedule 1 of the Act contain a wide range of offences, both minor and serious. In determining the head sentence, a judge is required to consider the seriousness of the crime in terms of the facts of the case, precedent as well as aggravating and mitigating factors, however, those factors are not relevant in determining the additional mandatory sentence under the Act.
  • Section 7 of the Act requires judges to impose a mandatory sentence that is not necessarily proportionate to the crime committed. This provision of the Act severely limits the role of the judiciary in imposing a penalty which fits the crime, and applying the law based on the facts of the case, and other well established principles of sentencing in statue and common law. For example, a person who is convicted of an offence for possessing a small quantity of a prohibited drug can receive an additional 15 or 25 years imprisonment under the Act, depending on whether they are found to be a member or an office bearer of a relevant association.

The Constitution of Queensland does not expressly provide for such a strict separation of powers as the Australian Constitution. However, the concept that each arm of government should not interfere with the role of the other is widely accepted, and well established in convention in Queensland and other states within the Commonwealth of Australia. Queensland is the only state who has a Constitution which refers to the rule of law. The rule of law mandates an independent and impartial judiciary.

At the time the VLAD Act was passed the Newman Government implied that judges should apply the laws according to the policy objectives of the parliament and in addition publically critiqued judges’ and their role in the ”failing judicial system”. The VLAD Act should be seen in this context.

The Hon Kevin Lindgren AM QC said during a lecture in 2013 regarding the Kable doctrine and the Rule of Law:

“The effect of Kable has been far reaching and is continuing. It has marked a recognition and entrenching of the institutional integrity of State courts as an essential part of Australia’s federal constitutional structure. In doing so, Kable can be seen also to have entrenched within the State sphere an aspect of the rule of law, namely, a constraint on the exercise of political power.

State governments wishing to “crack down on crime” and politicians wishing to vaunt their “law and order” credentials must not assume that they can simply conscript the State courts as their instruments. The “Kable doctrine” or “Kable principles” have shown that not only convention, but also the Constitution itself, demands that the institutional integrity of State courts as “courts”, and, in particular, as the potential repositories of federal judicial power, be respected, acknowledged and preserved.”

The VLAD Act seriously risks infringing this principle. The Act should be repealed and the current Queensland Government should consider a principled approach to the mischief the Act was intended to address.