Bikie Laws: QCCL Submission to the Legal Affairs and Community Safety Committee

Terry O’Gorman on behalf of the Queensland Council for Civil Liberties wrote a submission to the Legal Affairs and Community Safety Committee regarding the recent Serious and Organised Crime Legislation Amendment Bill 2016.

This can be viewed here. 

A copy of the submission is produced below for convenience.

 

6 October 2016

The Research Director

Legal Affairs and Community Safety Committee

Parliament House

Brisbane QLD 4000

By email: lacsc@parliament.qld.gov.au

 

To the Honourable Members of the Legal Affairs and Community Safety Committee,

SERIOUS AND ORGANISED CRIME LEGISLATION AMENDMENT BILL 2016

The Queensland Council for Civil Liberties (the Council) thanks the Legal Affairs and Community Safety Committee for the opportunity to make a submission on the Serious and Organised Crime Legislation Amendment Bill 2016.

The Committee’s Briefing paper claims that the legislation implements the ‘ethos’ of the Taskforce’s Report.[1] However, the Council is concerned that key warnings contained within the Wilson report have been ignored by the Government. The Council is also unconvinced with the limited justification given in the Explanatory Memorandum in line with section 4(2) (a) of the Legislative Standards Act 1992.

In particular the Council makes the following observations;

1.1.    New Consorting Offence

The Bill replaces 2013’s anti association offence with a new consorting offence.[2] This provision is claimed to reflect ‘in principle’ Recommendation 18 of the Wilson Report.[3] It draws heavily on the equivalent NSW provisions as noted in Committee’s briefing note.[4]

The Wilson report noted that the NSW laws have been used by police to ‘disproportionately target marginalised groups.’[1]The NSW Ombudsman’s study revealed that 38% of issued warnings were for Aboriginal people and that the provisions had been enforced disproportionately against, for example, youth.[2] Concerns exist that NSW’s ‘wide net’ approach ‘creates an extremely fertile ground’ for corruption.[3] It was against this background the Taskforce took ‘careful note’ of the risks associated with a NSW Model in constructing their proposal.[4]

Therefore, the Council is concerned that the proposed consorting offence does not pay due regard to the issues that arose in NSW and the Taskforce’s consequent suggestions for appropriate safeguards.

i)       Definition of Recognised Offender

The proposed Queensland provision differs from NSW on the basis that for a warning to be given a person must be convicted of an indictable offence punishable by a maximum of 5 years.[5] This departure from the NSW model is claimed to allay the issues raised by the NSW Ombudsman.[6] However, the Council points out that the majority of other Australian jurisdictions require the offence to be punishable by 10 years.[7]

Similarly, the Taskforce considered that it was important that the offence be limited so not to apply to those convicted with ‘objectively low-level’ offences that qualify as consorting simply by virtue of their penalty.[8] The Report called for the explicit exclusion of offences such as small scale drug offences.[9]The provision proposed by the Bill does not exclude any such offences.

In fact, provision is made for offences carrying a maximum lower than 5 years to be included in certain circumstances.[10]The Council is concerned that although the 5 year requirement is an improvement on NSW’s ‘wide net’ approach it continues to risk catching low level offending.[11] In echoing the NSW Council for Civil Liberties concerns it is our view that, should a consorting offence exist at all, it should be sufficiently specific. This will ensure the consorting offence only captures the most serious offending, such as that punishable by 15 years.[12]

ii)       Defence of Reasonable Excuse

The proposed offence includes various defences to consorting such as family and work interactions.[13] The Taskforce recommended that, in addition, a general defence should be included for those situations that, although reasonable, may not fall into a specific category.[1] Despite such a recommendation, a general defence of reasonable excuse is not included in the proposed provision.  The Council submits that a general defence of reasonable excuse is necessary to ensure that everyday lawful conduct does not equate to consorting. The NSW Ombudsman Issues Paper pointed out that an insufficient defence scheme led to situations such as travelling to hospital with friends to visit a patient being unreasonable.[2] A general defence is crucial in avoiding such absurd situations.

i)       Onus of Proof

The Council is concerned with the reversed onus of proof in relation to the defences of reasonable excuse. We would echo our NSW colleague’s submissions to the NSW Ombudsman which also reflects the Law Society of NSW’s rejection of a reversed onus of proof.[3] The reversal of the onus of proof is inappropriate and wrong and is, as the Taskforce noted, ‘fundamentally (opposed) to the historically evolved, sophisticated system’ we have.[4]

1.1.    Mandatory Sentencing

i)       Generally unjust

The majority of the Taskforce reported they were ‘fundamentally opposed’ to mandatory minimum sentencing.[5]

The Council agrees with the submission by the conservative Rule of Law Institute that

“…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.”[6]

The Council refers the committee to the Wilson Report’s extensive summary of the negative practical impacts of mandatory sentencing.[7] As pointed out by Melbourne Age police reporter and ex-Victorian Police Officer John Silvester recently, Australian States seem to be walking the ‘failed path’ of mandatory sentencing which the United States is starting to retreat from.[8]

No discussion of the Taskforce’s rejection of mandatory sentencing occurs in the Bill’s Explanatory Memorandum. The Council submits that although the proposed reduction of the mandatory term from 15 to 7 years is slightly less severe, the fundamental injustices and serious unfairness of a mandatory scheme remain.

Of particular note is the likelihood that mandatory sentencing leads to ‘charge-bargaining’ whereby discretion is removed from the court and given to the Prosecution.[1] Similarly the Taskforce outlined the risks, as acknowledged by the Queensland Police Service itself, of promises or inducements by authorities.[2]

Your attention is drawn to the comments of the Chief Justice of the High Court of Australia in Kuczborski quoted in the Taskforce Report at page 111:

“Under the VLAD Act it is quite possible that a person who would not receive a custodial sentence in the lower range of seriousness would nevertheless… be sentenced to a mandatory 25 years imprisonment”

It is the Council’s position that this observation by the Chief Justice is applicable to the new mandatory minimum scheme of 7 years.

The fact that the VLAD law injustices adverted to by the Chief Justice is replicated in the Serious and Organised Crime Bill 2016 is reflected in a statement made in the Explanatory Notes namely:

• If the base component does not require the offender to immediately serve a sentence of imprisonment in a Corrective Services facility, the offender is to immediately begin to serve the mandatory component… (see page 121 Explanatory Notes).

i)       Incentive for False Information and Fabrication of Evidence

The Council strongly shares the Taskforce’s concern that this provision is a ‘strong incentive’ for an accused ‘to provide false information in the hope that they can avoid the mandatory sentence.’[3] This risk was also identified by the Bar Association in their submission.[4] As noted by the Taskforce, when one considers the severity of the mandatory sentencing regime, such a concern cannot be disregarded as ‘fanciful or exaggerated.’[5] The Council would remind the committee of the issues that emerged both in the UK in the 1970s and 1980s but also domestically after the Fitzgerald Inquiry with informers or what were colloquially referred to as ‘grasses.’[6]

The Council also notes that these concerns are heightened when one considers these informers are dealt with in closed court. The Supreme and District Court Benchbook confirms that ‘openness of our courts is a fundamental principle of our judicial system.’[7] It is well settled that ‘secret courts are regarded as having a propensity to spawn corruption and miscarriages of justice.’[1] The Council warns that in light of the Taskforce’s position on the incentive to provide false information the nature of closed courts leaves little room for accountability or oversight under this proposed legislation.

Enclosed is a relatively recent article from the 2013 UK publication Criminal Law Review which notes that the use of supergrass evidence (which will occur under the current 7 year mandatory minimum regime) has been marred by a troubled past.. (and) it was ultimately discredited by damning findings of police corruption (and) the use of particularly unfavourable supergrasses.

For those who did not live through the 70s and 80s both in the UK and this country and who did not witness the misuse of supergrasses the enclosed article is informative.

1.1.    Restricted Premises and Police Powers

These amendments allow a senior police officer to make an application to a Magistrate to have premises declared ‘restricted’ on the basis that there are reasonable grounds for suspecting that ‘disorderly activity’ is occurring on those premises or that ‘prescribed offenders attend the premises.[2]The Council considers the definition of ‘disorderly activity’ to be not only particularly far reaching but also vague.

The Council is particularly concerned that a restricted premises order, which can last for up to two years, allows for police searches to be undertaken without a warrant.[3] Such a provision ignores the crucial policy considerations underpinning provisions of the Police Powers and Responsibilities Act which safeguard against police misconduct.

1.2.    Control Orders

The Bill proposes that a mandatory control order be applied where there is a conviction under the new Serious Organised Crime circumstance of aggravation. Discretionary control orders can also be sought by the prosecution for any other indictable offence.[4]

The Bar Association did not support the Taskforce’s recommendation for mandatory control orders.[5] The Council echoes those concerns particularly when one considers the impact an order will have on an accused’s work prospects.

The Explanatory Memorandum notes that control orders ‘are intended to become relevant in the assessment of a person’s suitability for a licence, permit, certificate or other authority under the affected occupational licensing Acts.’[6] The Explanatory Memorandum conceded the provision infringes on, for example, a right to work[1] and will be a consideration when someone applies for a wide range of work licences.[2]

The Council is concerned that although the court’s discretion may allow for minimal conditions for less serious circumstances, a control order will still unfairly impinge on a person’s right to work. The safeguard which makes conditions discretionary is made redundant by the mandatory nature of the order in relation to serious organised crime circumstances of aggravation offences.

This unjustifiably leads to the grave potential to affect a person’s ability to work, or attain the requisite licences to work.

5. General Concerns regarding Legislative Scrutiny

The Explanatory Memorandum, pursuant to section 4(2) (a) of the Legislative Standards Act 1992, provides an explanation of how each of the above provisions will impinge on various civil liberties and rights.

However, it is the Council’s view that the justifications given are insufficient. Beyond claiming that provisions, for example, are ‘justified to punish and signal the community’s disapproval of serious and organised crime’[3] little substantive discussion of the affected rights occurs.

The ‘nebulous’ effect of Legislative Standards Act has been highlighted by the current Human Rights Inquiry.[4] In our submission more should be done to justify why the provisions’ concepts of necessity and public safety outweigh fundamental legislative principles and civil liberties.

It is noted that a submittee to the recent Queensland Parliamentary Inquiry into a possible Human Rights Act for Queensland noted:

• The Legislative Standards Act 1992 (Qld) Section 4 (3) contains a relatively nebulous requirement that legislation should have ‘sufficient regard’ to the rights and liberties of individuals.  The enumerated rights and liberties cohere with several, traditional, common law rights (eg. natural justice) and ‘Rule of Law’ concepts (eg. clear and precise legislative drafting).  But the scope of rights to be considered by Queensland’s (portfolio) committees when examining bills and subordinate legislation is thin compared to legislative review processes under statutory human rights internationally and in Victoria and the ACT (see submission number 468 page 9 to the Human Rights Inquiry).

The Parliamentary Committee Briefing Note in relation to the Serious and Organised Crime Legislation Amendment Bill 2016 notes (and this is particularly relevant to the still absurd 7 year mandatory minimum):

The Government’s Regime implements the ethos of the Taskforce recommendations, and the recommendations of the Commission but makes enhancements and adaptations aimed at balancing the legal challenges emphasised by the Taskforce where the operational needs of

• law enforcement agencies (emphasis added) (see Parliamentary Committee Briefing Note page 7).

What has in fact occurred (particularly by reference to page 241 of the Taskforce Report) is that despite the Taskforce Chair, the Bar Association, the Queensland Law Society and the Public Interest Monitor being opposed to a mandatory sentence regime for the new serious organised crime circumstances of aggravation offence, subsequent to the production of the Taskforce Report the views of the Police have reigned supreme, euphemistically described in the extract from the Parliamentary Committee Briefing Note (above) as ‘enhancements and adaptations’.

After the release of the Wilson Taskforce Report it appears only the Police have been consulted by the Government. The Bar Association and the Queensland Law Society have been briefed once policy decisions were made by the Government after secret police briefings.

The Taskforce over numerous pages in its report detailed a large number of instances in other States of Australia where mandatory minimum sentences have wreaked injustice.

Despite the detailed and careful work of the Taskforce law and order populism rather than the carefully reasoned arguments of the Taskforce Report wins out in a way that is inevitably going to produce serious injustices.

The Council cannot emphasise enough the dangers presented by the new 7 year mandatory minimum.

Conclusion

The Council respectfully submits that the proposed provisions in the Serious and Organised Crime Legislation Amendment Bill 2016 do not reflect the far-reaching and detailed work leading to the Taskforce’s Report. The failure to implement key safeguards proposed by the Wilson Report results in the continuation of harsh outcomes particularly with the 7 year mandatory minimum. Without the full force of the recommendations in the Taskforce’s Report many of the unjust concerns that arose under the VLAD laws will continue to occur, especially in relation to the mandatory minimum 7 year extra sentence on top of the base offence for the serious organised crime circumstances of aggravation offence.

Yours faithfully

QUEENSLAND COUNCIL FOR CIVIL LIBERTIES

TERRY O’GORMAN

VICE-PRESIDENT