‘Frankly, I don’t care how these people go to jail,’ Queensland Premier Campbell Newman declared. He was defending his attorney-general’s unprecedented attack on civil liberties, which was publicly announced last week and rushed through parliament in less than 24 hours.
The focus for the latest law and order campaign is bikie gangs – a target so obviously and intrinsically evil that critics of authoritarian laws can be dismissed as hand-wringing macchiato-sippers. As Malcolm Farr (himself a motorcycle enthusiast) put it:
This is the sort of bogeyman story you tell to scare kids who don’t know better. It’s not a rational explanation of laws which could prove dangerous to anyone, whether bikie gang member or not, whether in broad daylight or when the darkness of the evening comes over … [Outlaw bikie gangs] are vile. But there is nothing they do which is not already covered by existing law. They are not inventing new crimes; they are committing the old ones.
These new laws are the latest in a series of state government attempts to circumvent civil rights, which can be traced back to a NSW law aimed at jailing a named individual. Through some creative interpretation, the High Court imposed a limit on how much the separation of judicial, legislative and executive powers could be blurred. Because the Commonwealth constitution allows federal judicial power to be vested in state courts, those courts must meet a minimum level of judicial integrity. The NSW law was ruled invalid.
Alas, the full extent of this Kable principle remains ill-defined, and the states have been experimenting with different formulas to see how far they can push. But so far, the core principle has held up reasonably well. In Victoria, laws drafted to be consistent with the High Court’s rulings haven’t been used by the police, because they are required to provide a court with evidence to support their claim that a group is a criminal organisation.
But the Newman government, unconstrained by an upper house or a functioning opposition, is prepared to adopt a more aggressive approach. The unconstitutional laws will be enforced until individuals fight to have them overturned. Already police are being threatened with the sack after questioning the legality of some of their orders under the bikie crackdown.
The barrage of surprise legislation is a deliberate strategy: ‘Legislation will be challenged; in some cases it may be overturned. But we will keep trying. We will come back again and modify it. We will try different approaches, every possible approach.’
Throw enough shit at the wall and some of it will stick.
Indeed, the Queensland laws have been drafted in scatter-gun fashion. None of the legislation is limited to bikie gangs. The Vicious Unlawful Association Disestablishment Act, for instance, includes references to ‘any other group of 3 or more persons by whatever name called, whether associated formally or informally and whether the group is legal or illegal’. The Queensland Law Society notes this could include sporting groups and book clubs; the onus will be on the accused, rather than the state, to prove that ‘the relevant association is an association whose members do not have as their purpose, or one of their purposes, engaging in, or conspiring to engage in, declared offences’.
This reliance on ‘declared offences’ is a concern. The initial list of crimes includes ‘unlawful sodomy’, which, thanks to the state’s homophobic age of consent laws, includes sex that would be legal in any other part of Australia. A group of young men who meet for sex would be liable to an automatic 15 years’ jail, with no parole and no judicial discretion.
The process of listing ‘prescribed places’ is similarly flawed. Most addresses specify unit numbers, while others are nominated broadly so as to include not only clubhouses but also nearby flats. The first two bikies arrested under the new laws were reportedly arrested after they arrived at home. Their flats were allegedly prescribed places, there is no grace period to allow them to retrieve belongings and make alternative living arrangements, and they now face mandatory imprisonment with no judicial discretion.
Meanwhile, the Finks’ clubhouse on the Gold Coast isn’t on the list, despite their relationship with the US Mongols club being given as one of the reasons for the rushed legislation.
Of course, the government will correct that oversight. These lists of declared offences and prescribed places are not fixed. They can be altered without parliament’s input, and there is no limit as to the nature of what is included. It is trite to cite Niemöller but he was right: while the operation of the laws will be tested on scary bikies, they can be quickly and quietly extended to other groups. The Newman government’s planned crackdown on G20 protests shows its disdain for civil liberties is not limited to criminal organisations.
Trade unions should also be worried. Bleijie is also in charge of anti-union laws so egregious that even the IPA has condemned them. It is not fanciful to suggest he might adopt similar tactics in his battle with two groups he despises, or that other conservative governments might take up the new weapons he is developing. Liberal Party propaganda is already linking unions to bikie gangs. The application of anti-bikie laws to unions is a real possibility.
One area to watch is the extension of ‘star chamber’ powers to break down solidarity within targeted groups. Bleijie’s Crime and Misconduct Commission will have unprecedented powers to jail anyone who refuses to answer questions – even if the commission is not investigating a crime, but merely ‘gathering intelligence’. The ABCC had weaker coercive powers – abused by John Lloyd and Nigel Hadgkiss, Abbott’s picks to head the revived agency — and it is certainly possible that Bleijie’s model will be adopted by the federal government.
The legal community is incensed. The Law Society says the laws are ‘going back to our colonial days’; the Council for Civil Liberties notes Bleijie ‘was a conveyancer before he went into Parliament – that lack of experience is clearly showing’. Even the lawyer who moved Bleijie’s admission to practice has condemned his protégé’s authoritarian tactics: ‘What’s on the agenda after bikies? Who else will be for the truth serum?’
These are bad laws even when they are aimed at bikies, and they must be overturned now, before they are normalised and used against the rest of us. But, as the Queensland government knows, polite outrage from civil society won’t change the laws, and neither will High Court challenges prevent all the intrusions into judicial power.
Ultimately, this is a political problem created by the collapse of the Left in Queensland electoral politics, and it won’t be rectified without grassroots organising to rebuild.
The best defence of your freedom of association is to use it.