On Friday May 25 2018, officers of the Queensland Police smashed their way into a bikie clubhouse in a shed used for car repairs in Lawnton, just north of Brisbane. The clubhouse belonged to the Rebels, an “Outlaw Motorcycle Gang” in government parlance. The only objects the police found threatening enough to confiscate was band equipment, flags and other paraphernalia, alcohol (allegedly sold illegally), and a cash register. Nonetheless, the nine occupants of the clubhouse could be facing fines of between $50,000 to $63,000 or imprisonment for between three and five years, based purely on their presence together. The police served a “public safety order” on all nine occupants, banning them from returning to the clubhouse for two days. Police will use the confiscated material to apply for a “restricted premises order” on the clubhouse.
This incident was the first application of new laws passed by the state Labor government to replace the Liberal National Party’s (LNP) highly contested Vicious Lawless Association Disestablishment (VLAD) laws. The VLAD laws were criticised when introduced in 2013 by the Anti-Discrimination Commission, the Human Rights Commission, Australian Lawyers for Human Rights, the Queensland Council for Civil Liberties, the Queensland Law Society and many others. They came under fire for undermining civil liberties such as freedom of association, freedom of expression and because of the inclusion of mandatory minimum sentences in the legislation. While Labor’s Serious and Organised Crime Legislation Amendment Bill 2016 did away with some of the worst aspects of the LNP’s policies, the new laws introduce elements worthy of concern.
Broadly the new laws can be divided into two parts: 1) enhanced penalties for members of criminal organisations, and 2) new powers for police and courts to restrict access to public and private property.
Since 2013, the Attorney-General (i.e. the Queensland government) has had the power to name an entity as a “criminal organisation” under the Queensland Criminal Code without the need for a court to approve their declaration. For the government to exercise this power, they need information to suggest a “link” between an organisation and “serious criminal activity” (meaning simply any crime which carries a maximum of at least seven years imprisonment). What they don’t require is that members of an organisation have been found guilty of committing these offences.
Even though in 2016 Labor made a great fanfare about targeting a special category of graver offences like murder, extortion and grievous bodily harm, the government can use a very wide range of crimes as an excuse to declare a criminal organisation. Crucially, the Criminal Code also contains political offences which meet the definition of “serious criminal activity”. For example, a second conviction for sedition, (“to promote feeling of ill will and enmity between different classes of Her Majesty’s subjects”), or for demands with menaces upon agencies of government (“[demanding] anything be done or omitted to be done” by the government “with threats of detriment of any kind,” including “substantial economic loss”). Thus, under Labor’s laws, any group with “links” to any of these offences could be classified as a “criminal organisation”.
The latter charge of “demands with menaces upon agencies of government” was only legislated from 1984 by Bjelke-Petersen and criticised by Labor at the time as clearly directed against trade union leaders. Sedition was the charge used to jail thirteen leaders of the 1891 Shearer’s Strike for three years at the prison island of St Helena. Australian governments have not been shy in the past to criminalise radical political organisations, such as the International Workers of the World during World War One or the attempt to ban the Communist Party in 1951. It is easy to imagine a Queensland state government embroiled in an industrial dispute using these laws to classify unions as “criminal organisations.” The recently dropped charges of “blackmail” levelled against CFMEU leaders John Setka and Shaun Reardon for their militant industrial strategy are a reminder that governments constantly uses legal attacks to weaken our unions.
Once classified as a criminal organisation, a raft of anti-association laws apply, as well as the mandatory minimum sentences attached to particular “prescribed offences”. A member of a criminal organisation who recruits another person to the organisation faces a $63,000 fine or five years jail. A member of a criminal organisation who appears in public wearing a “prohibited item” (currently bikie gang colours) faces a fine of $5,000 or six months jail, escalating to $12,000 or a year in prison for the third and subsequent offences. If a public gathering of three or more members of a criminal organisation occurs, any members participating are liable to imprisonment for three years. Any member of a criminal organisation who enters a “restricted place” faces the same penalty. Any member of a criminal organisation who commits an offence can be subject to a control order that forces them to report to police frequently, limit their movements and restrict who they associate with.
LABOR MADE THESE LAWS
Most of these charges have existed for participants of “criminal organisations” in some form or another since Labor introduced the first form of the legislation in 2009. The legislation has substantially stiffened since then with the LNP’s addition of bans on public gatherings and the wearing of “prohibited items.” Labor’s recent legislation expanded those bans from applying only to licenced premises (e.g. pubs) to the public realm generally.
Labor has also not repealed the power for the government to nominate “criminal organisations” described above. From 2009 until 2013, this power was reserved for a court which had to be convinced that an organisation existed to carry out serious criminal activity and was an “unacceptable risk to the safety, welfare or order of the community.” Because the court required proof, few bikie gangs (and no other organisations) were listed under the legislation.
Bikies and their associates were charged with 2% of assaults and less than 1% of all other categories of crime in South East Queensland from January to May 2013, prior to the VLAD laws. The vast majority of the 26 bikie gangs are only listed as criminal organisations because of the LNP’s 2013 amendments. Labor has not only maintained this list, but under the pretence of cracking down on bikies has introduced new laws that apply to people who aren’t even in “criminal organisations”.
In 2016 Labor introduced a new charge of “consorting”. Consorting means seeking out the company of another person who is considered a “recognised offender”. This refers to a person who has been convicted of an indictable offence with a maximum sentence of at least five years. After receiving an official warning from police, someone who seeks out the company of at least two “recognised offenders,” either together or separately, can be charged with “habitually consorting” leaving them liable for a $38,000 fine or three years jail. Being found guilty of consorting also leaves you classified as a “recognised offender” to boot. This criminalises someone purely based on association. The charge of “consorting” was applied to the 9 people present at the Rebels clubhouse in Lawnton.
If this wasn’t dangerous enough, the new powers that the Labor government has granted to police are even more worrying.
NEW POLICE POWERS
Any commissioned police officer can make a “public safety order” which prevents any person or group of persons from entering any location (public or private), if they “are satisfied” that the presence of the person(s) “poses a serious risk to public safety and security.” The Peace and Good Behaviour Act 1982 specifies that the officer must have regard to whether the subject of the order is a member of, or associated with, a criminal organisation or if they have associated with a “recognised offender” as defined by the crime of consorting. The officer must have regard to the “public interest” for any protest activity the order may disrupt, but also must have regard to how the order will improve “traffic management.” The making of a public safety order is not subject to appeal if the duration of the order is 72 hours (three days) or less. While the police can make these orders for up to seven days, a court can implement an order of up to six months. To enforce the order the police have the power to search vehicles going to the location where the ban is in effect and remove anyone who is subject to the order. Anyone who contravenes a public safety order faces a $38,000 fine or three years imprisonment. This power was used with the group of nine people at Lawnton to ban them from returning to the location of the clubhouse for two days.
Public safety orders have problematic implications for the right to demonstrate. The preamble to the Act reads: “it is not Parliament’s intention that powers under this Act be exercised in such a way that diminishes the freedom of persons in the state to participate in advocacy, protest, dissent or industrial action.” But the police powers afforded by the Act do just that. These orders could be applied against indigenous protestors (as we saw a heavy-handed state response using Commonwealth games legislation during recent Stolenwealth games protests at the Gold Coast) or environmental demonstrators who block traffic (traffic management being a consideration in determining if “public safety” is threatened). A public safety order is ordinarily meant to be served upon a person before it can take effect, but in “urgent cases” it may be communicated verbally (at say, a protest).
Under Labor’s amendments to the Peace and Good Behaviour Act, any premise can be listed as “restricted” by a court if any “disorderly activities” are found to have taken place there. “Disorderly activities” can be as minor as selling alcohol unlawfully (as seems to have occurred at the clubhouse in Lawnton). The presence at a location of any “recognised offenders” or associates as defined by the consorting charge is also enough to argue that “disorderly activities” have occurred and to justify “restricting” premises. Once restricted, any “disorderly activity” that occurs onsite incurs a fine of $19,000 or 18 months jail for the first offence and $38,000 or three years jail thereafter. A restricted premise can be searched at any time by Police without a warrant and any locks onsite can be unlocked by police, including phone and computer passwords.
NEITHER THE LNP NOR LABOR WILL GUARD OUR CIVIL LIBERTIES
The laws described above, which allow the State Government to nominate criminal organisations, and afford new powers to the police, erode the basic rights of bikies and threaten the civil liberties of every Queenslander. In particular they allow people to be punished based purely on association. When the Liberal National Party introduced the VLAD laws, it was correctly remarked from many quarters that the laws attacked basic freedoms for the bikies but with implications for everyone. But as Labor’s retention of many elements of VLAD show, Labor is just as committed to laws with negative implications for civil liberties. In fact, it was Labor who got the ball rolling with the Criminal Organisation Act 2009 which VLAD only built upon. Even if we charitably assume that a Labor Government would not extend the application of the laws beyond bikies, the past legacy of conservative governments in Queensland leaves little doubt that others will.
Duncan is a member of Socialist Alternative active in Brisbane. Currently an elected councillor in the UQ Union and working as a cleaner, he has written on civil liberties, retail unionism and Marxist politics for Red Flag, New Matilda, The Age, Brisbane Labour History and Marxist Left Review.