The events of a week in mid October in the Queensland Legislative Assembly were quite remarkable. Within one week the Liberal National Government introduced and passed urgent legislation to effect significant legislative reforms namely the Vicious Lawless Association Disestablishment Act 2013 (Qld) (“VLAD Act”) and the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013. This legislation has been the subject of much comment since its enactment by the Queensland Parliament, the judiciary and, of course, the media. Its affect on individuals in Queensland must be understood and appreciated given its fundamental reforms.
The VLAD Act was passed on the 17th October 2013 with immediate effect. It provides that an “association” is a corporation, unincorporated association, club or league or any other group of three or more persons by whatever named called, whether associated formally or informally and whether the group is legal or illegal. The first concern is the broadness of the definition of an “association”. There is nothing specific in the legislation to say that it only applies to outlaw motorcycle gangs which was the apparent intent of its enactment.
The VLAD Act further provides a broad definition for a participant to such an association. It defines a “participant” as:
- Whether by words or conduct, or in any other way asserts, declares or advertises his or her membership of, association with the association;
- Whether by words or conduct, or in any other way seeks to be a member of, or be associated with, the association;
- Has attended more than one meeting or gathering of persons who participate in the affairs of the association in any way; or
- Has taken part on any one or more occasions in the affairs of the association in any other way.
One can see by this definition that there may reasonably be circumstances where an individual can by one discrete overt act be deemed to be part of an association in which they haven’t been received into formal membership. Again, its broad definition leaves the application of the legislation unclear and subject to potential abuse.
The VLAD Act further defines an “officer bearer” of an association as being any person who is President, Vice President, Sergeant at Arms, Treasurer, Secretary, Director or any other office bearer or shareholder of the association. The provision further goes on to include a person whether by words or conduct or in any other way asserts, declares or advertises himself or herself to hold a position of authority of any kind within the association. It is not difficult to imagine a circumstance again where an “office bearer” may be extended to ordinary individuals where by such a broad statement they are caught under this legislation. For instance if three teenagers commit an assault on another person and they plan that assault, they may fall within the definition of an “association”. If one of those persons were older and perhaps gave directions to the other two, the older teenager may be considered as an “office bearer” of the “association”.
The VLAD Act then prescribes the punishment of a “vicious lawless associate”. S.5(1) provides that a “vicious lawless associate” is a person who:
- Commits a declared offence;
- 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
- Did or omitted to do an act which constitutes the declared offence for the purposes of, or in the course of participating in the affairs of the relevant association.
The reason why there has been much debate played out within the media in terms of the enactment of this legislation is not only in terms of how there was a lack of consultation with the Queensland Law Society or other representative stakeholders in terms of its drafting, but prescriptive, unreasoned and disproportionate penalties which result. A “declared offence” is defined as an offence in Schedule 1 of the VLAD Act, includes the offences of affray, dangerous operation of a vehicle, serious assault, receiving tainted property, producing dangerous drugs, possession of dangerous drugs, possession of weapons. These offences amongst others, are offences which may ordinarily be heard and dealt with before a Magistrate where the maximum penalty which can be imposed is a period of 3 years imprisonment.
The effect of the legislation pursuant to S.7 is that a sentencing Court of a person who is considered to be a “vicious lawless associate” for a “declared offence” must on sentence, without regard for any other punishment that would ordinarily be imposed, have a further sentence of 15 years imprisonment to be served wholly in a corrective services facility imposed. If the individual is an office bearer of that relevant association, a further sentence of 10 years imprisonment to be served wholly in custody must be served in addition to that of the sentence which would ordinarily be imposed as well as the 15 years for being a “vicious lawless associate”.
The legislation makes clear that its effect is that an office bearer must serve 25 years actual time in custody in addition to what any other citizen of Queensland would have imposed by a judicial officer. The above offences including affray or a possession of a small amount of cannabis would generally attract a small fine with no conviction recorded for a first offence. The legislation makes clear that the sentence imposed on the individual is intended to remove any discretion from a judicial officer hearing the matter to have regard to personal circumstances or the seriousness of the offence when imposing such terms of lengthy imprisonment.
The legislation has yet to be tested before a superior Court and to the writer’s knowledge no one has been sentenced pursuant to the new provisions. The judgment of the Honourable Justice Fryberg on 31 October 2013 which was widely commented upon referred to the reversal of onus changes pursuant to the Criminal Law (Criminal Associations Disruption) Amended Act 2013. The judgment took note of Premier Newman’s remarks as reported as commenting on a Magistrate on the Sunshine Coast grant of Bail to a person who was alleged to be a bikie gang member and participant of a criminal organisation. His Honour’s comments highlight the principle that judicial officers should have reference only to established principles and should not give effect to expectations either by particular members of Parliament or perceived community concerns.
The provisions within the Penalties and Sentences Act 1992, which judicial officers consider in passing sentence, are broad in nature to accommodate the wide degree of offences that come before the Courts and the varied circumstances of each defendant are to be taken into account. As the legislation currently stands, not only must a judicial officer impose a sentence that accounts for these differences, but they must not have regard to the affect that 15 years (participant) or 25 years (office bearer) in actual custody may have on an individual for a summary offence when such terms are usually reserved for a conviction of murder.
The legislation offends against embedded concepts of criminal punishment. It fails in specificity of the intended objectives of the legislation (i.e. to specifically relate to bikies). In the writer’s view an individual’s punishment should be solely based upon the seriousness of each offence and the antecedents of each defendant.
