Last week saw the introduction and speedy passing of some extraordinary Bills in the Queensland parliament. A trio of laws targeting criminal associations follow a widely reported brawl between two bikie gangs outside a Broadbeach restaurant in late September, while a further law targeting sex offenders comes as the Attorney-General appeals against a ruling that same day permitting the release into the community of Robert Fardon, the first man detained as a dangerous sex offender following the expiry of his sentence. Foreshadowing the new bikie gang laws last week, Premier Campbell Newman reportedly told the media:
“We know that some of these things will be challenged… We know that some may be overturned. It doesn’t matter. We are going to continue to try again. There are many mechanisms that we are going to use.”
Indeed, High Court judgments both past and future loom over each law.
The most eye-opening aspect of the new bikie gang laws is their heavy use of mandatory sentencing. Notably, the Vicious Lawless Association Disestablishment Act 2013 provides that people who commit one of a list of (mostly) serious violence offences in furtherance of or in the course of participating in any association must have a mandatory sentence of 15 years without parole (or 25 for officers) added to any other sentence, unless they can either prove that the members of their association do not have a purpose of committing such crimes or the police service accept an undertaking from the offender to cooperate with law enforcement agencies. The Bill for the VLAD Act was introduced on the Monday after the High Court’s Magaming judgment last Friday, re-affirming the validity of mandatory sentences under federal law.
Parliamentarians debating the new laws in the early hours of Wednesday morning mentioned the High Court some 25 times, not in relation to mandatory sentencing, but rather in reference to the mixed record of bikie gang laws in the Court. Many noted that, in the Pompano decision earlier this year (discussed here), Queensland’s law survived a challenge under the Kable doctrine that felled NSW and South Australian laws; however, the opposition noted that the new laws may not be so fortunate. One possible area of vulnerability of the laws is the High Court’s judgment striking down South Australia’s laws on the basis that those laws ‘enlist the court of a State… in carrying out legislative policy’. Potentially vulnerable provisions in the new laws include ones banning members of a statutory list of organisations (all named bikie gangs) from gathering in groups of three or more in public or attending at a statutory list of addresses (all presumably gang premises). To no-one’s surprise, representatives of the bikie gangs have already announced their High Court challenge.
The separate new bill targeting sex offenders in general and the possible release of Robert Fardon in particular comes nine years after the High Court upheld laws permitting the courts to order the detention of dangerous offenders after the expiry of their prison sentences against a challenge by Fardon himself. The new law creates a parallel scheme that allows the executive, rather than the courts, to make such orders. While this scheme is less protective of the rights of sex offenders than the earlier judicial one, it is also paradoxically less clearly vulnerable to constitutional challenge in Australia, because the Kable doctrine usually applies when the executive misuses the courts, rather than when Parliament bypasses them altogether. However, if the law is struck down, an offender detained by executive order will be better placed to seek damages for false imprisonment than one detained by judicial order; in mid-year, the High Court ruled that Kable himself could not make such a claim in the face of a ‘judicial order’, even though the order was made legislation the Court itself had held to be invalid for co-opting the judiciary to implement a legislative agenda.