Bligh’s Bikie Bill
What The Crime fighters say

Posted on November 23, 2009 | Filed Under Biker News | Comments Off

Statement by Mark Le Grand on the Proposed Criminal Organisations Bill

The proposed bikie gang laws in Queensland are deeply concerning on two bases, first, the proposed laws would lead to the abrogation of basic legal rights which have been central to the operation of the common law for hundreds of years, including the fundamental right to a fair trial, and second, that there is little evidence that these laws are required in Queensland or that they are likely to be effective.

1. Removal of fundamental human rights

The proposal is an attack on the right of freedom of association. At this point, the targets are said to be bikie groups. Whether this is deserved or not, and whether it fairly reflects on the attitudes of the majority of such groups, is not the point. The point is that any group of citizens, however innocent the purpose of their association, can find themselves subject to like laws if they fall into disfavour. Rather than an interest in motorcycles, the shared interest might be in politics. Are we to deploy the law against the bizarre or extreme or even against those with whom we disagree?

We are told that the legislation is specific to outlaw motorcycle gangs and their members. Patently it is not.

This type of legislation fundamentally alters the balance between the state and its citizens, between investigator and suspect, and between prosecutor and defendant. In doing so it has swept aside many basic common law protections.

The legislation removes the rules of evidence; reduces the standard of proof to the civil standard; denies the rules of natural justice in discovering, testing and responding to adduced information classified as criminal intelligence and/or ‘protected submissions’; introduces anti-association laws and refuses employment to a controlled person in certain occupations without a conviction for any criminal offence and perhaps on the basis of criminal intelligence only.

It is alien to the administration of justice in a democratic society governed by the rule of law effectively to declare a person guilty because of his/her associations, and without a fair trial on a specific charge of wrongdoing. This is especially the case where the ostensible purpose of that association is innocent and not, for example, the sponsorship of terror.

The High Court of Australia has declared repeatedly that the principles of natural justice require that a person is entitled to know the case against him/her and to have a fair opportunity to be heard in response. A proscription of the members of a group leading to their prosecution solely for the act of associating with other members, the removal of the presumption in favour of bail upon being charged with such an association, and the confiscation of their assets because of that association would represent a wholesale abrogation of these fundamental rights.

2. No evidence that these laws are needed in Queensland

There is no evidence that these laws are necessary in Queensland or that they are likely to be effective.

Law reform, particularly such drastic reform as that proposed, must be evidence based. Law reform without evidence leads to flawed laws and unjust outcomes.

The practical effect of these laws is the real risk that they will ultimately force these activities underground making investigation much more difficult. Identifiers will no longer be worn, membership not recorded, club houses abandoned for clandestine meetings in secret places, assets held by proxies and front companies established.

These reservations have been expressed by the two peak organised crime investigating bodies operating in the State, namely, the Australian Crime Commission and the Crime and Misconduct Commission. Further, the CMC has expressed concern that the re-introduction of consorting laws may encourage the return of Police corruption.

Under consorting laws police have the means to franchise crime. Certain offenders can be given free reign in return for corrupt payments, while the competition is arrested and charged. The number one priority for organised crime is the corruption of officials, with police officers being the number one target. The findings of the Report of the Fitzgerald Inquiry in Queensland in 1989 provided a detailed exposition of institutionalised police corruption in the licensing branch of the police service based upon the association of police and criminals in the franchising of criminal activity known as “The Joke”. Surely the present government would be extremely reluctant to do anything which might risk the return of that era.

Another risk with the proposed laws is the possible erosion of internal law enforcement efficiency and effectiveness. These laws could have the insidious affect of rewarding lazy policing and de-skilling police investigators who learn to rely upon the collection of criminal intelligence as an end result rather than the more difficult task of collecting admissible evidence.

One would have thought that in a democracy, before such fundamental rights are removed, an open and public inquiry would have been held and that resulted in the discovery of empirical facts demonstrating an overwhelming case for such action. To the contrary, it would appear that action is being taken as a reflex response to events in other jurisdictions.

Police already have a plethora of powers and facilities to fight organised crime and gang activity in Queensland such as:

• The use of the coercive powers of the Crime Division of the CMC when it is judged that police investigation would not be effective, in particular, through the use of secret compulsory interrogations under oath;

• The electronic interception of communications by the use of listening devices and now through telephone intercepts;

• The use of warrantless searches, covert search warrants and electronic tracking devices authorised under the Police Powers and Responsibilities Act 2000;

• The use of undercover operations (controlled operations) authorised and protected under Chapter 11 of the Police Powers and Responsibilities Act 2000;

• The seizure and confiscation of assets used to commit crime, and the forfeiture of the proceeds of that crime, under the Criminal Proceeds Confiscation Act 2002; and

• The tracing of the money trail using the facilities of the Australian Transaction Reports and Analysis Centre acting under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006(Cth).

Conclusion

The unsatisfactory experiences of interstate police in their failure to control motorcycle gangs may well have resulted, not from a lack of laws, but from a lack of police training, or management, or endeavour, or resources and manpower. An inquiry to determine this issue should precede the wholesale abrogation of fundamental rights.

In Franz Kafka’s famous novel “The Trial”, Josef K is arrested one morning for reasons that are never revealed to him and is prosecuted for an unspecified crime. Eventually he is executed without knowing the nature of the crime he is alleged to have committed. The parallels to the proposed legislation are extremely concerning.

Mark Le Grand
Barrister
23 November 2009

Mark Le Grand is a senior Brisbane barrister who was once a member of the former National Crime Authority and of Queensland's Criminal Justice Commission.

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