Wilson Report on VLAD Legislation

The Wilson Report (chaired by ex-Supreme Court Judge Alan Wilson) was charged with reviewing the 2013 anti-bikie (VLAD) legislation.

The Wilson Report said that it saw its job as one which also required the consideration of the VLAD laws in the context of framing effective anti-organised crime legislation for Queensland.

While the Report recommended the repeal of the greater part of the 2013 VLAD laws it has gone a further step and developed a renewed Organised Crime Framework which it describes as a package of laws which preserves some parts of the 2013 laws but overcomes what the Taskforce concluded were excessive, disproportionate or an unnecessary element of it.  The Report notes that its recommendations are better suited for combatting not just OMCGs but organised crime in all its forms.

The Terms of Reference asked the Taskforce to consider whether the provisions of the 2013 legislation were effectively facilitating the successful investigation, prevention and deterrence of organised crime but the Terms of Reference also asked the Taskforce to develop a new ‘serious organised crime’ offence with mandatory penalties.

This particular term of reference of the Taskforce dealing with ongoing mandatory penalties received very little publicity both in the Taskforce set up and during the course of the Taskforce’s work.

Chapter 1 notes that there are real questions about the nature and extent of OMCG crime in Queensland noting that one commentator argued it is as low as 0.17% of all crime and the 2015 Byrne Report on organised crime set it at 0.52% (criminologist Terry Goldsworthy said in respect of the Byrne Report that bikies actually commit far less than 0.52% of crime).

 

Terry O’Gorman

12 April 2016


Media Releases by Terry O'Gorma: Anti-Bikie Legislation

As Vice-President of the Queensland Council for Civil Liberties, Terry O'Gorman recently released the following two media comments.

 

30 March 2016

Queensland Police Minister Bill Byrne should direct Police Commissioner Ian Stewart to stop a now overt police political campaign to prevent any changes to the so-called bikie laws.

Queensland Council for Civil Liberties Vice President Terry O’Gorman said this today when commenting on reports in today’s Courier Mail by Superintendent Jim Keogh that three high profile gangs were waiting to reclaim their patch on the Gold Coast.

“For months there has been a ‘just below the surface’ police media campaign against any change to the so-called VLAD laws”, Mr O’Gorman said.

“Through selected favoured journalists Queensland Police have been anonymously campaigning against any change to the VLAD laws since the current Labor government came to power”, Mr O’Gorman said.

“Now, with today’s Courier Mail article, it appears that the police campaign has gone ‘directly overt’, and this must be with the full connivance and backing of the Queensland Police Commissioner, Ian Stewart”, Mr O’Gorman said.

“Mr Stewart should have learnt from the Joh Bjelke-Petersen era that police have no role in arguing for or against particular pieces of legislation, particularly contentious legislation”, Mr O’Gorman said.

Mr O’Gorman called on Police Minister Bill Byrne to immediately direct the Police Commissioner to stop Senior Executive Service police from publicly campaigning against any change to the VLAD laws.

“This is particularly important in the light of the report by ex Supreme Court Judge Wilson which is to be handed to the government tomorrow”, Mr O’Gorman said.

Mr O’Gorman said that the decision as to what was to happen to the VLAD laws was a decision for elected politicians, not unelected high ranking police mounting their own now overt political campaign.

 

6 April 2016

The Civil Liberties Council today again called on Police Commissioner Ian Stewart to direct Senior Police to stop their partisan political media campaign on bikies.

Civil Liberties Council Vice-President Terry O’Gorman said this today when referring to an article in today’s Courier Mail “State will pay dearly if gangs roll again”.

“For the last number of months, Senior Police have been regularly backgrounding selected journalists in their campaign against any changes to the VLAD laws. Last week this campaign became overt with Superintendent Jim Keogh, a former Gold Coast Senior Police Officer, being permitted by Commissioner Ian Stewart to make public comments directly aligning the Police Service with the LNP policy position in respect of bikies”, Mr O’Gorman said.

Mr O’Gorman said that Police, from the Police Commissioner down, as public servants should maintain neutrality in the current controversial politics of the VLAD laws.

“The Council calls on the Police Commissioner to immediately issue directives to Senior Police that they are not to participate in the ongoing political debate concerning the reform of the bikie laws”, Mr O’Gorman said.

The ‘Senior Police’ constantly quoted over the last 12 months in relation to the bikie laws have been consistently supporting and advocating the LNP position which is a direct contradiction of the proper standards in Queensland policing as outlined in the landmark Fitzgerald Report.

Mr O’Gorman can be contacted during business hours on 07 3034 0000 or after hours on 0418 787182


The Freedom of Speech and Wicked Campervan Slogans

Terry O'Gorman featured in a recent interview on New Zealand radio show Newstalk ZB regarding the controversial Wicked Campervan Slogans.

Listen to the interview here.


Royal Commission: Undermining the Privilege against Self-Incrimination

In January 2013, six Commissioners were appointed by the Australian Government to investigate instances of child sexual abuse while under the care of an institution. Since then, the Royal Commission into Institutional Responses to Child Sexual Abuse has received tens of thousands of phone calls, letters and emails. The Commission and its reports have been widely publicised over the last three years.

The Commission’s job is to ultimately make recommendations on how to improve laws and change policy. In the process of doing this, the Commission has encouraged thousands of people to come forward with their own experiences. In particular, the Commission has referred 857 matters to authorities – including the police.

Although the work of the Commission is much-needed, there are several difficulties with prosecuting and defending cases that have had their facts blurred by lengthy delay. Evidence changes or becomes completely unavailable, whether it’s the loss of documents or the passing of a relevant witness. Memories change and the accuracy of any evidence ought to be scrutinised.

Furthermore, commissions of inquiry such as this have a number of coercive powers which abrogate the fundamental and long-standing right against self-incrimination. It is generally argued that such a privilege impedes upon the prosecution’s ability to collect evidence in cases where such evidence is unavailable. However, the privilege against self-incrimination has been described by the Queensland Law Reform Commission as a cardinal principle of our system of justice, a bulwark of liberty, fundamental to a civilised legal system and an integral part of international human rights law. For criminal trials, the starting point is the presumption of innocence and secondly, that the Crown bears the onus of proof. It is concerning that these sorts of commissions undermine these fundamental aspects of our law.

There are many reasons for upholding the privilege against self-incrimination. One reason that will undoubtedly affect the validity of any conclusions drawn by a commission is the reliability of evidence that has been obtained coercively. According to the Australian Law Reform Commission, the quality of evidence is diminished when the privilege against self-incrimination is abrogated. A good lawyer will always warn about the risks of perjury proceedings if a client is summoned to appear and give evidence. Notwithstanding the extent to which a lawyer stresses this risk, a client may still prefer to lie than to expose himself to criminal prosecution. This is especially the case where the subject matter of the inquiry is a serious crime. Where lies are elicited under compulsion, the credibility of the trial system may be compromised by the increased existence of untruthful evidence.

Robertson O’Gorman Solicitors has played a vital role in defending the rights and interests of those that have been prosecuted or investigated as a result of the Royal Commission.

If you are at all concerned, you may seek legal advice from one of our experienced solicitors. We represent clients at all commissions, whether it’s the Crime and Corruption Commission, the Australian Crime Commission or any general commissions of inquiry.


Terror and Tertiary Education

On November 19 Terry O’Gorman delivered the National Tertiary Education Union’s 2015 Lecture.

Just days after terror attacks unfolded in Paris, Mr O’Gorman addressed an audience of academics and university representatives on the advancement and preservation of civil liberties in the age of terror.

As President of the Australian Council of Civil Liberties Mr O’Gorman placed particular emphasis on the risk that excessive measures and in particular counter-terrorism laws can pose to our basic rights and liberties.

The Lecture acknowledged the work of Australian universities since 9/11 in developing innovative and engaging curriculum. Mr O’Gorman saw the role of the university as far wider than research and teaching, imploring that institutions encourage vigorous debate of all opinions, even the most unpopular.

A video of the speech and a full transcript is available here.

NTEU ANNUAL LECTURE 2015

With the world still in the wake of what unfolded on the streets of Paris last weekend it is appropriate that tonight’s discussion focuses on the role of universities in protecting civil liberties in an environment increasingly defined by terrorism and greatly heightened security fears within Australia’s borders.

As someone who was once a student, although in decades far gone, and as someone who has, since graduating, involved much of my career in defending basic liberties and rights it is a pleasure to have been invited to contribute tonight to this dialogue. It is a discussion that combines issues I am not only most passionate about, but also most concerned about.  Our greatest hurdle in the coming decade is in dealing in a balance manner with the often conflated issue of terrorism and Islam and Australia’s Muslim population.

What we have all witnessed in Paris and even on Sydney streets is challenging and confronting.  Terrorism strikes at the core of our most fundamental human emotions and values.  But what we will learn in the coming months, and longer, is that our decisions in response both as individuals and as a nation, are just as crucial.  Just as terrorism is the enemy of many of our human rights, so too can our responses to terrorism threaten our civil liberties and any chance of maintaining social cohesion and progress.  Environments of terror and fear, much like the one we are living in, often elicit instant responses where society forgets to protect the very rights being threatened by the attacks.

This is where you as educators in Australian’s tertiary institutions have an important role.  Too often our politicians, community leaders and commentators foster an atmosphere of panic, creating greater divide and marginalisation in our communities than ever before. We have seen already within the space of days vitriol against those wearing burqas in the street and further heightened concern about our refugee intake.

As educators of the next generation your role in avoiding narrow minded commentary of these attacks, their causes and their perpetrators is important. Universities should be spaces where hysteria makes way for discussion and debate however unpopular.

In the wake of 9/11 and the 2005 London bombings academic publication on areas of terrorism and security increased by around 300 precent. A majority of our Australian universities now offer terrorism courses at both and undergraduate and postgraduate level. Many institutions also have specialised research centres such as UNSW’s Gilbert and Tobin Centre and teaching staff are increasingly specialised in the area. The study of terrorism specifically but also broader areas of peace and conflict and political science is well developed in Australian universities.

The creation of curriculums and dissemination of research is key and is something I would credit Australian universities with excelling at. Allowing debate is also crucial. Actively encouraging debate is what universities need to promote.

Looking back to the 60s and 70s we saw both staff and students writing about, debating and protesting the Vietnam War. The phenomenon of ‘teach ins’ became commonplace on most campuses with professors and students joining to discuss aspects of US and Australian involvement in that war. That legitimate dialogue was unsurprisingly disregarded for a long time in the wider community.  Entangled in the perception of these student protestors was the simplistic approach taken by many who should have known better including the then Victorian Education Minister as to who described protestors as ‘uncouth and unwashed’.

But Vietnam in hindsight is a strong reminder that so often society has regretted not giving credence to the legitimate concerns raised on campuses.  It is crucial we do not repeat the mistakes of the past.

And yet again after 9/11 when we needed debate more than ever before we saw universities struggle to conceptualise their role and their place in a heightened security environment. Faculties in the US in particular began to self-censor. Institutions such as the University of Colorado were condemned for anti-American teaching which was said to disrespect those who had lost lives in the Twin Towers and the later loss of soldiers’ lives in Iraq and Afghanistan.

There is a wealth of academic study now admitting US teaching has become far more militarised since 9/11. On a practical level curriculums are now more rigid and surveillance on campuses has arguably become excessive. On a broader level there is also concern for academic independence and the university’s autonomy. Often the only discourses being disseminated follow government policy and agenda leaving little room for constructive dissent.

Now with decades of hindsight there is no shortage of pedagogical commentary dedicated to how the Vietnam War should be taught. Schools and universities are still trying to find the perfect curriculum that balances discussion of US involvement and motives, continues to respect of the service of Australian soldiers and still critically discusses the climate of colonisation that motivated the Vietcong.

Universities are now well aware of the need for this neutrality in presenting Vietcong and US perspectives which has been a positive move. However it is arguably far too reactive. Vietnam therefore teaches us another lesson. University courses need to be fluid to allow neutral and varied discussion of current events. We cannot wait for the war on terror to finish to start structuring courses around the grievances of all parties involved. Curriculum regarding the Middle East needs to be proactively neutral and balanced.

It is only now with 14 years hindsight that the new Vice-Chancellor of Oxford has been able to, though still bravely, claim the US overacted to 9/11. At a conference on tertiary education in London, Vice Chancellor Richardson, herself a highly commended terrorism scholar, warned radical ideas needed to be canvassed, engaged with and challenged within lecture halls. She felt faculties needed to defend their right to do so fiercely.

Richardson noted the biggest risk the US would face was seeing the world in ‘black and white terms.’ The role of the university was to ask the hard questions the rest of society was avoiding, to be critical of Western responses and avoid the ‘over-simplified’ worldview that the terrorists themselves have often succumbed to.

Australian universities need to allow for the most unpopular of discussions. Lecturers must strike a balance between condemning attacks and also questioning our role. But isn’t it time we openly discuss the argument that the West’s invasion of Iraq and our role in the Middle East broadly over the past decade, may have made the ground more fertile for the growth of ISIL and its counterparts?

The uncertain part of studying, researching and teaching in these fields is that terrorism remains undefined. It is still a complex and morphing notion. With that in mind it is crucial universities allow definitions and therefore the field as a whole to grow in time and for students to think critically

Courses focusing on the Middle East need to take a varied approach, giving time to the complex forces and factors at play in these regions. But those more general terrorism courses also need not conflate the definition of terrorism and Islam. As a society we have already done this.

2011 saw the extreme right wing massacre in Norway yet this event does not feature significantly in terrorism texts or syllabus.

Just this year we saw the politically motivated Charleston massacre. An event that is clearly domestic terrorism but will remain isolated to discussions of gun violence not terrorism.

It is clear that many in Australian society have a tendency to conflate the strategy and act of terrorism with the ideology and religion of Islam alone. This tendency is at risk of becoming embedded habit after this week.

The academic papers being generated out of Australian Universities are making headway. The work of the Gilbert and Tobin Centre consistently reminds us to be cautious of ever expanding anti-terror and security laws.  After having spent much of my career warning of excessive police powers and the recent growing reach of Australia Border Force, this expertise is welcomed.

Just this past week we have seen Deakin University announce a new national research centre into radicalisation and extremism headed by Professor Barton and ANU’s Dr Jones.  Similarly, two academics from the University of Queensland have just yesterday received a significant two year research grant to partner with institutions in Berlin on the threat the Islamic State poses to ‘open societies.’

It is evident that in light of recent attacks there will not only be the audience for but indeed funding for greater university commentary on terrorism. It is important universities use this to research and political capital to report on all accepts of the Middle Eastern environment. The goal can not only to be preventing terrorist attacks here and abroad but to understanding and addressing the perceived grievances of those using these tactics.

Of course it would be naïve to ignore the arguments from critics of the very debate I am calling to occur on campuses. There are those that believe universities and the attainment of a tertiary qualification in itself fosters extremism.

With Australia having one of the largest populations of international students, with enrolments from Asia and the Middle East in particular rapidly rising, this argument is not only constant but also extremely dangerous.

The media coverage of young Australians travelling overseas to fight for ISIL is shallow and sensationalist. Reports about Adil Fayaz alleged that the young man was radicalised while studying his MBA right here in Brisbane.

Fayaz aged 26 is believed to have joined the civil war in Syria last year. Originally born in Kashmir reports focused heavily on the time he spent studying in Australia between 2009 and 2012.

No attempt was made to prove a causal link, rather resting on the assertion that our universities are breeding radical Jihadists. Similarly, the first facts we heard about the Tunisian beach attacks were that the culprit was a young man – with a university degree.

Research clearly disputes any clear correlation between education and terrorist tendencies. People will cause atrocity whether educated or not and our best tool in combatting and responding to those acts is indeed education itself.

On April 16 the Daily Telegraph published a full list of young Australians fighting in Syria and Iraq. The article warned that ‘extremist groups are targeting young Australians in their bedrooms and lounge rooms…urging them to carry-out home-grown terror attacks.’

It cannot be maintained that universities or our Muslim communities are breeding terrorists. Nor is the Telegraph’s statement that ISIL are somehow brainwashing students at home in their lounge room convincing.

What is true is that a number of young Australians are questioning the West, and indeed Australia’s role and actions. Just as young Australians questioned the US and were concerned for Vietnam’s struggle with continual colonisation. It is a reality that young Australia’s are taking an interest and some are indeed sympathising with groups like ISIL despite having spent their entire youth surrounded by Australian values.

What the telegraph and other popular media outlets and politicians fail to consider is why this is the case. For ISIL to be having any recruitment success there is evidently an environment where young minds are open to being persuaded.

Universities should be doing what academics like Deakin University’s counter terror expert Greg Barton has been making valiant efforts to do - refocusing media hysteria about Paris back into considerations of our schools and communities.

There has been great attention given to recent proposals that primary schools are the front line in stopping radicalisation and recruitment of young Australians. Barton has been working to champion that not only does attention need to be paid to curbing radicalisation of or Australian youth but also to build what he calls a stronger ‘counter narrative’ about Muslim Youth. In his view ‘anti radicalisation measures are not where they need to be.’

When most have been focusing on discussion of increased security and strong military responses in the past week, Barton was quick to note just this morning that ‘western authorities have largely dropped the ball on community engagement.’

In line with the recent work and comments of Professor Barton I would propose universities have a large role in looking at those early signs of radicalisation. Australians need to understand that the motive to join or at least sympathise with groups like ISIS is often a feeling that their grievances with western policy or their questioning of US and Australian involvement are ignored.

Our policies aimed at reducing home grown terror and radicalisation cannot be guided by political catch-crys and fear. Stopping young Australians suspected of sympathising with ISIS from travelling to those areas is necessary but understanding and addressing the motivation is critical.  Universities need to consider the points raised by these Australians and give them a platform for discussion on campuses and within courses in order to minimise the risk that students turn their disenchantment with Australia into something more extreme and radical.

Fears have also been raised that engaging in these debates makes universities targets. Throughout history universities have been the chosen stage for horrific attempts to quell debate and learning. Indeed in the Middle East itself universities are not the havens of safety we enjoy here in Australia were students attend classes without the fear of attack. Just this week, due to the Paris coverage, information has come to light about the April siege on a Kenyan University.

To temper lively debate in fear of attack is to leave universities and therefore society defenceless against challenges posed by terrorism itself. Safe universities are paramount, but just as Parisian journalists vowed to continue writing in the wake of the Charlie Hebdo territorial atrocity, faculties must continue to debate and discuss the complex issues of what motivates young Australians to want to go to ISIS held territories to fight.

Universities must also continue to support (but not uncritically) the dialogue of the Australian Muslim community, its leaders, academics and above all its students.

Asari Nomani, an Islamic author wrote in the London Times recently after a speech where she hoped to argue for a progressive, feminist interpretation of Islam was cancelled by Duke University for fear of excessive protest.

Nomani however made the pertinent point that the cancellation of her speech was akin to the controversy surrounding the cancelled screening of American Sniper at Michigan University.

The ban came after a petition suggested the movie condoned anti-Muslim sentiments. The University was quick to reverse their decision noting ‘the initial decision to cancel the movie was not consistent with the high value the University places on freedom of expression and our respect for the right of students to make their own choices in such matters.’

The United Kingdom is no exception. Warick University reportedly cancelled a speech by Maryam Namazie, an Iranian born human rights campaigner and vocal critic of sharia law, due to fears her comments could be ‘inflammatory.’

As noted by Nomani regardless of whether a university event champions new Muslim narratives, anti or pro American views, the importance is that the students can engage with the material and make informed choices. She called for campuses to allow ‘critical conversations, especially if they make people feel uncomfortable.’

Earlier this year the University of Sydney cancelled an Islamic Awareness Week event where noted radical Uthman Badar was due to speak. The University of Western Australia was quick to follow the cancellation.

These choices coincided with the controversy that ensued surrounding Zaky Mallah’s appearance on TV program Q and A after allegedly pleading guilty to threatening ASIO officers and being known for his violent tweets.

It is true that the cancellation of Badar’s appearances is an extreme example. Vice Chancellors were concerned his alleged justification of honour killings and other radical ideology were too disrespectful.  Ideology were too disrespectful towards women.  They might have been but the views should still have been allowed to be expressed.

But in light of the consequent discussions about censoring the ABC’s Q and A and Australian media generally it is more important than ever that Australian universities promote, without endorsing, contrarian views particularly on the often wrongly conflated issue of terrorism and the Islam religion.

But it is a balance hard to find for educational institutions. Top universities such as Yale are Missouri are currently struggling in the grips of controversy surrounding racial hate speech. The Washington Post has acknowledged that ‘universities are struggling to strike a balance as they seek to foster a climate that is at once tolerant of racial and cultural differences but also unafraid of a robust clash of viewpoints.’

In a statement on the issue President of Yale, Peter Salovey noted ‘we renew our commitment to this freedom not as a special exception for unpopular or controversial ideas but for them especially.”

Just as universities must not circulate only the populist mainstream agenda so too must they be careful to not selectively give voice to only those that are deemed publicly popular. It is a risk that universities take excessive caution in an age where most student articles and campus events come with ‘trigger warnings.’

I thought the President of Wesleyan College in the US made an important distinction to keep in mind when student safety is often a justification for limiting debates, protests and events;

‘…the institution has to protect people against attack that causes harm, but it should never protect people against ideas that are difficult to digest.’

If we cannot have these discussions and presentations on university campuses where can we have them? If anything we should be aiming for greater grass root integration with Muslim academics and leaders into classrooms on a more constant basis.

Dr Ali White, specialist in Middle Eastern Studies and an academic at the University of Western Sydney, the university with the highest enrolment of Muslim Australians warned in the wake of 9/11 and the Bali bombings of the demonization of many of his young students.

The insights that educators such as Dr White and his personal experience and expertise can provide into the experiences of Young Muslim students are crucial. In his view the harmful dichotomy of ‘us and them’ in relation to Sydney’s Muslim population emerged as early as 1998 when Bobb Carr denounced Lebanese gangs. Subsequent media and police frenzy has since lead to a strongly embedded stereotype of ‘Middle Eastern Youth Gangs.’ White warns of the internal identity war this can cause amongst young Muslims who abandon attempts to fit in with their Australian classmates and unconsciously isolate themselves further. He calls this the vicious circle whereby marginalisation and stigma by the most powerful sectors of Australian society push these youth to then deny their Australianness and thereby opening them to the accusation they are not participating in our society.

To refer again to Professor Barton’s expertise, it will be important to redefine a new Muslim narrative in Australia. In particular Barton noted at Monash University’s recent Counter Extremism Summit that relying on Muslim leaders is not enough. This is pertinent given current criticism that some Muslim leaders have been too slow or soft in their responses to Paris. Barton calls for us to engage with young leaders and new organisations in these communities rather than solely with established groups where collaboration is already strong.

It is true that universities may have networks and systems in place to support and engage marginalised students. Outreach to key leaders in the Muslim community does seem to be something faculties like those at UNSW have once again excelled at.

The issue to remember however is that students to be most concerned about, be they Muslim students feeling marginalised by the current environment or Australian born students feeling disenfranchised from Western values.  They are the ones the current approaches have not and won’t engage with.

Perhaps one point that all can agree on is that there is no one solution. Barton calls therefore for multiple approaches at multiple levels. Australian university educators agree universities are one of those key levels.

Drawing from his personal experience in teaching members of marginalised Muslim communities at UNSW, Dr White called for universities to decide whether they are ‘capable of, or willing to play a role in helping reverse the current of dangerous stigmatisation of Muslim Australian Youth.’

As I noted at the outset, Australian universities are more than capable with the curriculum, expertise and research frameworks now well established.

The past decade and a half since 9/11 has seen the emergence of a previously niche and unfunded field of study and research. We have leading academics here in Australia who are already working tirelessly to contribute to public debate that without them will remain uninformed and sensationalist.

Universities are often the first to warn of hysteria, calling for caution instead of knee jerk responses such as excessive counter terrorism measures which risk so many of our civil liberties.

We also do have leading academics who are already warning about excessive counter terrorism measures, the risk of home grown radicalisation and the need to reintegrate our Muslim youth. Tertiary education in Australia must continue to be a key stakeholder in the conversation going forward particularly about home grown terrorism and radicalisation especially to widen and balance the often simplistic public debate in this area.

There is no doubt universities are capable of reversing the stigma and marginalisation I have spoken about. I am also confident Australian universities are willing to.  It is time that we realise we are now in the 15th year of this so called war on terror. There is also inevitably at least a decade or more to go before it runs its course. We cannot be having the one-sided discussions we had about Vietnam 10 years from now in relation to terrorism issues.  It is true that hindsight is often of great aid and benefit in these situations but we simply cannot rely on it.

The next step for our universities is to see how far they can succeed in teaching students and broader Australian society, through a balanced, neutral and proactive approach that there is indeed a grey that exists between the black and white worldview that Professor Richardson of Oxford warned so strongly against.

So, universities of Australia you are doing it well.  But you have got some challenges ahead of you.

 

Terry O’Gorman

19 November 2015


New Chief Justice

On Tuesday the 8th of September Queensland's new Chief Justice was announced. In his role as Vice President of the Queensland Council for Civial Liberties, Terry O'Gorman issued the following media release

MEDIA RELEASE BY TERRY O’GORMAN

VICE-PRESIDENT, QUEENSLAND COUNCIL FOR CIVIL LIBERTIES

The Civil Liberties Council today congratulated the Premier Annastacia Palaszczuk and Attorney‑General Yvette D’Ath on restoring integrity to the process of appointing the Chief Justice.

Whilst welcoming the appropriateness of the appointment itself, the Civil Liberties Council particularly applauds a return to observing the proper processes, conventions and protocols which were so trashed by former Premier Newman and former Attorney‑General Jarrod Bleijie in the botched appointment of Justice Carmody.

“The apparent careful deliberation that accompanied the process leading to yesterday’s announcement of Justice Holmes as the new Chief Justice stands in stark contrast to the cowboy approach taken by the former LNP Government”, Mr O’Gorman said.

Mr O’Gorman also welcomed the balanced and professional approach taken by the Shadow Attorney‑General Ian Walker who graciously acknowledged the propriety of Justice Holmes’ appointment.

“Hopefully Mr Walker’s balanced and judicious approach to the appointment of Justice Holmes as Chief Justice marks an acknowledgement by the LNP Opposition that it got Justice Carmody’s appointment so woefully wrong”, Mr O’Gorman said.

Mr O’Gorman said that despite the proper conventions and protocols being followed by the Palaszczuk Government in the appointment of the new Chief Justice, the case still remains strong for the establishment of a Judicial Commission to deal with complaints against judicial officers, be they Magistrates, District Court Judges or Supreme Court Judges.


Sergeant Flori: Transparency Concerns

In the wake of increasing publicity regarding the charges against Sergeant Rick Flori, Terry O’Gorman, Director at Robertson O’Gorman Solicitors and Vice-president of the Queensland Council for Civil Liberties, has written to both the Commissioner of Police and the Crime and Corruption Commission (CCC).

Sergeant Rick Flori is facing criminal charges of misconduct after allegedly leaking a video of Gold Coast Police bashing a person in their custody.  According to the information currently available it seems no investigation has been commenced in relation to the officers involved in the initial bashing incident.

Mr O’Gorman has implored Mr Ian Stewart, Queensland Police Commissioner, to seek advice from an independent QC as to whether prosecution of Sergeant Flori should continue.

Mr O’Gorman has also raised concerns with Ms Ann Gummow, Acting Chairperson of the CCC, regarding the lack of publically available information. Issues include confidential settlements of civil actions and the fact this ‘police investigating police’ situation has led to no charges against those featured in the leaked video.

Extracts of both letters can be found below;

 

13 August 2015

Ms Ann Gummow

Acting Chairperson

Crime and Corruption Commission

Dear Ms Gummow

RE:      SERGEANT RICK FLORI

We write to make a public interest complaint in relation to the abovenamed.

On information currently available, Sergeant Flori has been charged with a criminal offence for allegedly leaking a video of Gold Coast Police bashing a person in Police custody.

The publicly available information does not indicate whether the CCC has had any input into the investigation of the Police bashing whether by way of actual participation in the investigation or by way of an overview of the concluded investigation.

There is growing public concern about the state of the Queensland Police complaints process as exemplified in this case where Police are caught on video in a Police Station carpark where they know a video is operating and where serious and gratuitous violence is inflicted on a person in Police custody and particularly inside a vehicle where that person is unable to defend himself.

Publicly available records would indicate that the individual concerned has sued the QPS and a confidential settlement has been reached.

This reflects an unfortunate growing trend in relation to the Police complaints process in Queensland where Police assaults and other misconduct growingly result in civil actions which are confidentially settled.  The outcome is that the Queensland public is denied information as to the nature and quantum of the settlements.

I enclose for your information a submission sent to the Police Commissioner Mr Ian Stewart today arguing that an independent QC should review the decision to prosecute Sergeant Flori.

This Council respectfully submits to you by way of a public interest complaint that the CCC should exercise its statutory jurisdiction and completely review and publish your report as to the following:

  • Was any Police investigation actually underway at the time that Sergeant Flori allegedly leaked the video to the media;
  • Why did the ‘Police investigating Police’ scenario in this matter result in none of the Police who are filmed assaulting the individual concerned being criminally charged; and
  • What were the terms of the confidential civil action and particularly, what was the dollar value of the payment made to the victim in this matter at the time of the settlement of his civil suit.

It would be appreciated if you could respond as soon as possible to this Submission particularly the core aspect of the Council’s contention that the entirety of the Police investigation of this matter should be reviewed particularly as to its publicly perceived inadequacies and that a public report should issue in that regard.

Yours faithfully

QUEENSLAND COUNCIL FOR CIVIL LIBERTIES

TERRY O’GORMAN

VICE-PRESIDENT

--------------------------------------------------------------------------------

13 August 2015

Mr Ian Stewart

Commissioner of Police

Queensland Police Service

Dear Commissioner

RE:      SERGEANT FLORI

I refer to recent publicity in relation to the abovenamed.

This Council notes that Sergeant Flori has been charged with an offence under the Criminal Code arising from an allegation that he leaked a video of Gold Coast Police bashing a person in Police custody.

On the information currently publicly available, the Prosecution of Sergeant Flori seen publicly is at best misconceived and, arguably, a miscarriage of justice.

On the facts currently in the public arena, Sergeant Flori was charged after a ‘Police investigating Police’ scenario against a background where it was at the time asserted that no investigation had been instituted by the Police Service in respect of the Police bashing until the media published the relevant video.

You have recently been quoted as indicating that you intend to get the advice of an independent QC before a decision is made whether to prosecute the parliamentarian, Billy Gordon.

In the Flori scenario of Police investigating Police it is even more pressing and appropriate that the advice of an independent QC be obtained as to whether the Prosecution against Sergeant Flori should be continued.

Information publicly available would indicate that the DPP was not consulted by the QPS prior to the charge against Sergeant Flori being instituted.  The public is, therefore, witnessing a scenario on the currently available information that Sergeant Flori has been charged against a background where Police Officers depicted in the video wantonly and viciously bashing a person arrested for a public nuisance offence have not been charged but where an apparent whistleblower has.

It is respectfully submitted to you that the independent QC whom we argue should review the matter in the light of the criteria in the published Queensland Prosecution Policy should be a QC who is not regularly briefed by the QPS and, desirably, a QC who has not been briefed at all by the QPS.

This Council awaits your advices in respect of this submission.

Yours faithfully

QUEENSLAND COUNCIL FOR CIVIL LIBERTIES

TERRY O’GORMAN

VICE-PRESIDENT


Anti-Bikie Legislation - Update

The following seminar paper is extracted from the attached material below.  See the full article here.

LEGALWISE CRIMINAL LAW CONFERENCE

UPDATE ON THE ANTI-BIKIE LEGISLATION BY TERRY O’GORMAN

1. On Tuesday 15 October 2013 without any consultation outside the circles of law enforcement the Attorney-General at 2.30 pm introduced the Vicious Lawless Association Disestablishment Bill. The Bill created a new Act that will, according to the Attorney-General’s introduction speech:

  • Disestablish associations that encourage, foster or support persons who commit serious offences.

2. The Attorney-General said this aim would be achieved by:

  • Imposing significant terms of imprisonment for vicious lawless associates who commit declared offences.
  • Removing the possibility of parole for vicious lawless associates serving terms of imprisonment except in limited circumstances.
  • Encouraging vicious lawless associates to cooperate with law enforcement agencies in the investigation and prosecution of serious criminal activity.[1]

3. The Attorney-General said that the new Act will apply to people who participate in the affairs of associations and who commit declared offences for the purpose of or in the course of participating in the affairs of the relevant association. The intention is to characterise persons as vicious lawless associates who belong to associations which encourage, support or foster the commission of offences and who are, therefore, persons who commit offences as part of their membership activities.

4. The Attorney-General said that a vicious lawless associate will be sentenced for the declared offence but will serve a further 15 years mandatory imprisonment, cumulative to any imprisonment imposed for the declared offence. If the vicious lawless associate was at the time of the commission of the offence an office-bearer of the relevant association, they will receive a further 10 years imprisonment, cumulative to the 15 years and the original term of imprisonment.[2]

5. The Attorney-General went on to say that the Bill makes clear that the extra punishment is mandatory and cannot be reduced by the sentencing Court. Further, parole will not apply to the extra punishment unless the associate cooperates with the police and other law enforcement agencies. This lever to induce informants to cooperate is a very important part of the punishment regime. An offender will only be able to mitigate (a) sentence via Section 13A of the Penalties and Sentences Act where the Police Commissioner is satisfied that the cooperation will be of significant use in a proceeding about a declared offence. This will ensure that only effective cooperation is rewarded.[3]

6. A review of the provisions contained in the Vicious Lawless Association Disestablishment Act will occur three years after commencement.[4]

7. The provisions of the VLAD Act are available in the Organised Crime, Corruption and Misconduct tab of Volume 3 of Carters. It is a quite short Act of only 11 sections.

8. The Act provides that a person is a vicious lawless associate if the person -

(a) commits a declared offence; and

(b) at the time the offence is committed or during the course of the commission of the offence is a participant in the affairs of an association; and

(c) did or omitted to do the act that constitutes the declared offence for the purposes of, or in the course of participating in the affairs of, the relevant association.

9. Section 5(2) provides that a person is not a vicious lawless associate if the person proves that the relevant association is not an association that has, as one of its purposes, the purpose of engaging in, or conspiring to engage in, declared offences.

In addition to the Vicious Lawless Associates Disruption Act, the paper addresses the Tattoo Parlours Act and both Criminal Law (Criminal Organisation Disruption) Amendment Acts.


Bikies in solitary confinement

In a case decided by Justice Applegarth of the Queensland Supreme Court on 12 December 2013 there was an extensive review of the solitary confinement conditions in which bikies are now being placed in Queensland prisons.

Justice Applegarth noted that the conditions under which a person will serve a term of imprisonment are relevant matters to be taken into account - at least where those conditions are shown to be different from, and more onerous than, the conditions undergone by other prisoners.

In reviewing the international literature in relation to solitary confinement, Justice Applegarth noted that the prospect that a prisoner will serve some of the period in solitary confinement will not always justify some reduction in sentence. Solitary confinement does not mitigate when it is caused by the offender, for example by attempting to escape.

Justice Applegarth referred to an affidavit by a high ranking official of Queensland Corrective Services in this case which notes that a person who is identified as a bikie is subject to the following conditions in jail and that all identified bikie prisoners whether remand, sentenced or protection will be subject to the following Restricted Management Regime:

  • No visits from other bikie members or affiliates (this also includes family members).
  • Bikies will only be entitled to a one-hour non-contact personal visit with family members per week.
  • Bikie prisoner phone calls are restricted to seven personal phone calls per week of six minutes duration.

Justice Applegarth noted that the adverse health effects of solitary confinement have been well established and that international instruments view it as “an extreme prison practice which should only be used as a last resort and then for only short periods of time”.

The judgment further noted that more recent studies have reaffirmed that solitary confinement has a profound, adverse impact on the health of prisoners and that research indicates that many who have been subject to solitary confinement are at risk of long term psychological damage.

The case notes that prisoners who are subject to solitary confinement for longer than ten days have demonstrated some negative health effects and that the probability of being admitted (for treatment) for psychiatric reasons was about 20 times as high as for a person remanded in non-solitary confinement for the same period of time.

Reputable bodies advocate that the use of solitary confinement should be reserved for extreme cases and for as short a time as possible.

The judgment refers to a 2007 Statement on the Use and Effects of Solitary Confinement adopted in December 2007 at the International Psychological Trauma Symposium where it was noted that it has been convincingly documented on numerous occasions that solitary confinement may cause serious psychological and sometimes physiological ill effects and that negative effects can occur after only a few days in solitary confinement and the health risks rise with each additional day spent in such conditions. The Statement noted that such practices can amount to torture in contravention of international law.

The Statement concluded that solitary confinement harms prisoners who were not previously mentally ill and tends to worsen the mental health of those who are.

CONCLUSION

This is the first Queensland Supreme Court consideration of the harsh law and order inspired jail practices initiated by the Queensland Attorney-General Bleijie. If any evidence was needed, this judgment clearly demonstrates that people treated like caged animals in jail will when released be severely mentally and probably physically health damaged. How is this consistent with rehabilitation.


Anti-Bikie Laws - reform or revenge?

When the Queensland government introduced its anti bikie laws it by-passed all the usual safeguards against bad law by passing them through the Parliament on the same one day.   The laws labelled bikies to be “vicious lawless associates” and declared bikie clubs to be criminal organisations.  The laws also introduced unprecedented mandatory prison terms of 15 to 25 years (to be served in prison without parole) added to any ordinary term of imprisonment imposed by the courts for bikies convicted of a broad range of offences.

The laws also amended the Bail Act to deny bikies the presumption in favour of bail and instead requiring the courts to refuse bail to bikies unless they can show why their imprisonment is not justified.  The grant of bail is ordinarily recognised by the courts as an important process in civilised societies which reject any general right of the executive government to imprison a citizen on mere allegation or without trial.

Faced with the devastating implications of these draconian laws many members of bikie clubs have resigned their club membership.

These mass resignations have achieved the government’s objectives of “disestablishing” bikie clubs as set out in the “Vicious Lawless Disestablishment Act 2013.”

The question now is whether the government wanted to introduce ‘reforms’ to improve community safety or whether it is conducting a witch-hunt on bikies.

It was legal to be a member of a bikie club in Queensland before 17 October 2013.  Appropriately the government stated that these laws only apply to people committing offences after 17 October.

On Friday 8 November a Supreme Court Judge interpreted the new anti bikie bail laws to mean that they only apply to people who were bikies at the time of making their bail application not to anyone who has been a bikie at any time in the past.  People who have resigned their membership of a bikie club (and who are not a participant in another criminal organisation) should therefore be entitled to the usual presumption in favour of bail.

If the government amends these laws to apply to people who were bikies in the past (when it was not illegal) it will expose its agenda to wield the power of its vast Parliamentary majority to enhance its popularity with total disregard for the Rule of Law.