On 15 October
2013, the Queensland Government introduced legislation to the
Parliament which can only be said to be shocking,
draconian and unprecedented.
This paper serves to spell out in plain English
some of the highlights and lowlights
of
the Government's decision
to introduce this
legislation and their
proposed crackdown
on what they
term Criminal Motor Cycle
Gangs. This term was invented very recently
to replace another Government invented term of
Outlaw Motor Cycle Gang. It seems
the Government is determined to pass laws which,
on the face of it, are neither
constitutional nor compliant with anti
discrimination laws in Australia.
The Laws seem open to challenge on any number of
fronts.
Rather than go through the lengthy process to prove
an organisation is involved in
"serious criminal
activity", the Government has decided they can simply declare
certain groups to be "criminal organisations", and bypass the power of the
Supreme
Court.
The Queensland
Government, through enacting a regulation, has declared the
following groups to
be criminal organisations:
Bandidos MC, Black Uhlans MC, Coffin Cheaters MC,
Comancheros MC,
Finks MC, Fourth Reich MC, Gladiators MC, Gypsy
Jokers MC, Hells Angels
MC, Highway 61 MC, Iron Horseman MC, Life and
Death MC, Lone Wolf
MC, Mobshitters MC, Mongols MC, Muslim Brotherhood Movement
MC,
Nomads MC, Notorious MC, Odins Warriors MC, Outcasts MC,
Outlaws MC,
Phoenix MC, Rebels MC, Red Devils MC, Renegades MC,
Scorpions MC.
Liability limited by a scheme approved under
professional standards legislation
When the Finks MC contested the laws in the High
Court the High Court said the
Supreme Court could declare a group a "criminal organisation", after and only after
proper material was placed before the Court and the
Police went through a number of
checks and balances. This is different from
the new laws. This is the Government saying they can declare any group a criminal
organisation. This will need
to be contested in the High
Court. Until the point is taken with the High Court the new laws will remain
in force. Urgent action is required
for those who value their
rights.
Changes to the Criminal Code
The Government has introduced new Sections 60A, 60B and
60C. Section 60A makes
it an offence for participants in criminal
organisations being knowingly present in
public places. The penalty is a minimum 6 months
imprisonment to a maximum of 3
years imprisonment.
The elements of the offence for "unlawfully
associating" are:-
• A
participant in a criminal organisation;
• Is
knowingly present in a public place;
• with
2 or more other participants in a
criminal organisation
To be
a participant in a criminal organisation means, in effect, anyone who asserts,
declares or advertises his
or her membership or association with the
organisation (for
example colours or tattoos). It also includes a person who seeks to be a member or
associated with the organisation or a person who has been to more than 1 meeting of
the organisation. A public place
takes its normal meaning and
includes places such as hotels, bars, sporting facilities, parks and the like.
Section 60B makes it an offence for a member,
nominee or prospect, associate
or
"hang around" to go to any of the premises set
out in the schedule -
essentially any
clubhouse. The penalty is a minimum of 6 months
actual jail.
Section 60C makes it an offence to recruit new club
members, and also carries the 6
month penalty. These laws also apply to people in prison. All
letters, phone calls and visits
are likely to be monitored for evidence of recruiting and
intelligence gathering.
Some scenarios to consider
Scenario 1
Persons A, B and C go to the Breakfast Creek
Hotel. Person A and B are members of
a motorcycle club declared to
be a criminal organisation. Person C is not a member of
any club. When they walk into the hotel they see, in
another part of the hotel, persons
D,
E and F. Person
D is also a member of a declared club.
Person Eisa nominee or
prospect for the club and person F is a "hang
around". What happens?
Persons A,
B, D, E
and F commit an offence under Section
60A of the Criminal Code.
They must go to jail for 6 months as a minimum and
up to 3 years. Person C commits
no offence.
If persons D, E and F are not on friendly terms and
a fight breaks out, all 6 persons
may be charged with fighting in public (the offence
of affray). This offence was
amended to carry a minimum penalty of 6 months jail
and a maximum penalty of 7
years jail. If this happens, persons
A, B,
D, E
and Fare liable to 6 months jail under
Section 60A (association), a
further 6 months jail under Section
72 (affray) and a
further mandatory minimum of 15 years jail for being
a participant in a criminal
organisation. If any of A, B, D,
E or F are an office bearer of a declared criminal
organisation, a further period of 1 0 years
imprisonment must be imposed.
So if person A is the vice president of his club,
person B is not and person D is the
Sergeant of Arms of his club then Person A and D do
a statutory minimum of 26 years
in prison. Person B, E
and F are sentenced to a minimum of 16 years in prison. Person
C is sentenced to a period of 6 months imprisonment.
The Court has no power what
so ever to impose any sentences other than these.
This is the case even if person C
started the whole thing.
Scenario 2
Person A, Band Care going to have a BBQ. Person A is
the Vice President of a Club.
Person B is a life long friend of person A and has
been to the club house 3 times for a
social drink. Person C is a school teacher. They
need a gas bottle for their BBQ so all
3 get in to person C's car and drive to 11 Frodshan
Street Albion. At the clubhouse, all 3 go to the backyard and
retrieve an empty gas bottle which is to be taken and filled. Person A and B commit an
offence under Section 60B of the Criminal Code and must serve a minimum of 6
months in prison. Person C commits no offence at all. If they leave the club house and person A drives the
motor vehicle, runs a red light and is chased by Police then he suffers the
following:-
1. A fine of 100 penalty units or 100 days
imprisonment (Section 754 of the
Police Powers
and Responsibilities
Act;
2.
A charge of dangerous operation
of a motor vehicle
under Section 328A
of the
Criminal Code and consequent periods of
imprisonment;
3. As a member of a declared organisation a
mandatory period of a further 15
years m pnson;
4.
Person C's motor
vehicle gets
impounded and then crushed.
Scenario 3
Person A is driving person
B' s motor vehicle. Person B
is a member of a declared
organisation and the motor vehicle is registered
to him. Person A is not a member,
nominee, prospect or hang around. The Police can (Section 29
of the Police Powers
and Responsibilities Act) stop
the car, detain person A, search them and hold them
with out a warrant if they suspect person A is a
participant in a declared criminal
organisation. If the Police do
not believe person A when he states his full and correct
name, they
can hold and detain him
until such time as they can confirm his identity.
Vicious Lawless Associate
The Laws in relation to additional imprisonment apply if you
commit an offence at
the time of being a "participant". It is not all offences, there is a list of them,
however
it covers
a greater percentage of common offences such a affray, riot,
prostitution
offences, assault
occasioning bodily harm, serious assault, rape, kidnapping, stalking,
stealing, robbery,
extortion, burglary, receiving
tainted property and almost any drug
offence and money laundering. If you commit
any of those offences and at the time of
committing the offence and are proved to be a member
or associate of a criminal
organisation you are
declared a "Vicious Lawless Associate".
This brings in the 15
years cumulative
imprisonment without parole for being a participant and a further
10
years (in other
words 25 years) if you
are an office bearer. An offence of murder committed by a participant
in a declared organisation
would see a person
sentenced to an absolute
minimum non parole period of 35 years for
a member or 45 years for an officer bearer.
There is
now a presumption against granting bail
for anyone charged as a
participant
(member, hang
around, associate). This applies whether you are charged with a
criminal offence
(eg. an assault), a simple offence (possession
of tainted property) or a
regulatory offence (shoplifting). If you are granted bail you must surrender your
passport. There is no longer a right to bail. We are of the view that is unconstitutional
and unlawfully discriminates against a group of persons who, at the time of being charged,
can only be presumed to be not
guilty.
Tattoo parlours
In his opening statement to parliament last night,
the Premier indicated the
Government had the intention of shutting motorcycle
club members out of tattoo
parlours. The legislation suggests that owners or
artists must obtain a license or permit
to conduct their business. They are subject to a "fit and
proper person" test. The Police can investigate whether someone is a "fit and
proper person". If they decide you are not a "fit and
proper person" they do not have to give reasons why they
made that decision.
The Attorney General then told parliament that the Tattoo Parlours Bill introduces
a
licensing regime for body tattoo
parlours and tattooists. He said the first phase of this
legislation will ban members of criminal
organisations from owning,
operating or
working in body art tattoo parlours.
The licensing scheme for the tattoo parlours commences on 6 January 2014. The
compliance with the new Laws commences 1 July 2014. In other words you have
until 1 July 2014 to obtain the relevant permits and licenses. The Government can't
stop someone from earning their livelihood in this way. The mere
membership of a
club ought not determine whether you can earn a living or not.
This issue should be
challenged.
In Summary, our best advice is, as always, don't make admissions to
Police. Assume
they are recording every conversation, including in jail cells. A person should not admit, say, claim or boast that the person
is a member or associated with, or an office bearer of any of the declared
organisations. Do not say that anyone else is a member or office bearer either.
We expect police to immediately start serving notices to attend
at the CMC to answer
questions. If this happens to you, or anyone you know, legal
advice is imperative. The
CMC has even greater power now than ever before, and terms of
imprisonment and
immediate detention can occur.
These new laws attempt to prevent weekly meetings, club runs,
charity events and
tattoo shows for the time being, and until they are properly
challenged in court by
specialists in the area.
We remain available at your convenience to assist with advice
and representation.
Andrew Bale (Accredited Specialist, Criminal Law)
Stuart Bale (Consultant)
John Cook (Associate)
Evan Corcoran (Associate)
Eric Halden (Associate).
