Moral panic on bikies

I won’t say much about Queensland’s new anti-bikie laws since they are so obviously indefensible, and will surely be struck down by the High Court. Unless AG Jarrod Bleijie was deliberately seeking this outcome, it seems that he is as wet behind the ears as his public appearances suggest and as his legal experience (limited to conveyancing it is said) would suggest. A couple of observations

First, although bikies are involved in crime, it appears to be limited to things like taking rake-offs from drug dealing (who would be at least as common if they were independent operators not obliged to pay off gang leaders) and to rackets around tattoo parlours. The public brawling we’ve seen recently, and the various piece of inter-gang violence seem to be controllable by ordinary law enforcement

Second, I don’t think freedom of association should be absolute. If it can be proved, in open court, that an organization is engaged in facilitating crime, there ought to be legal remedies (US RICO legislation is a possible model, though it has its problems). But the Queensland Legislation simply declares a large number of bikie clubs to be illegal, without any chance to have their day in court. Such laws could be applied to political parties, trade unions, companies or even individual groups of friends. Menzies tried this with the Communist Party (which at least had aspirations to be dangerous to the existing order of society, unlike, say the Bandidos) and was rightly rejected both by the High Court and the Australian people

68 thoughts on “Moral panic on bikies

  1. @Fran Barlow
    The case you make suggests that for some drugs there may be a net benefit from criminalising some uses of that drug. It is still true that there is no drug for which there is a net benefit from criminalising all uses of that drug.

  2. @J-D

    If we were to make laws based on the principle of net benefit from all uses then who should ‘scape whipping? Iko gives quite a good test for laws that derogate from human rights above. I’d ask which of the drug prohibitions meet the test he sets out?

    I don’t think this is a drug thread, but it is a human rights thread. Previous bikie laws from fallen to the very limited human rights now guaranteed by our constitution, although the high court needed to get there by a slightly strange route. They would be an open and shut case under a modern charter of rights.

  3. @J-D

    Oh I agree. Moreover, if a legal regime were available for mood-altering drugs I daresay most would move away from those to which most concern attaches.

  4. As far as I am aware no-one on this thread has said anything about drug legalisation for under 18s, but I could be wrong. There’s certainly a dangerous leftie here somewhere who is all in favour of cocaine in the kindergarten.

  5. @Alan
    Ikonoclast’s test was net benefit.

    The way you refer to ‘net benefit from all uses’ makes me think that you are confusing the issue of the effect of the drugs with the issue of the effect of the laws. Changing the laws (one way or the other) doesn’t change the effects of the drugs themselves (one way or the other).

    The idea that it’s impossible to make a law that is beneficial (on balance) is ridiculous, but if that were a real problem the solution would be not to make laws.

    There is a net benefit, just to give one example, from the law that mandates the wearing of seatbelts.

    There may be practical difficulties in estimating reliably whether there is a net benefit from a law, but then there may be practical difficulties in estimating the effects of any choice we have to make, and the solution to that problem is to do the best we can.

  6. Net benefit from all uses is by no means the same as net benefit and the human rights issue cannot be excluded on crude utilitarian grounds. Rather human rights has to be part of the basic scheme of any law.

    The Ikon test is:

    Analysed in this fashion, it is clear Prof. J.Q’s formulation is just, reasonable and workable in a democratic society with common and legislated law.

    That is a fairly standard test. Canada’s charter of rights says:

    Rights and freedoms in Canada
    1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

    South Africa says:

    Section 36 Limitation of rights

    (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including –
    (a) the nature of the right;
    (b) the importance of the purpose of the limitation;
    (c) the nature and extent of the limitation;
    (d) the relation between the limitation and its purpose; and
    (e) less restrictive means to achieve the purpose.
    (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

    The scheme of the Queensland act tries to cure the defects of previous laws. In those laws there was a declaration by the police and then all that remained for the courts was to enforce the police declaration. The high court struck them down as vesting judicial power in an executive agency. It’s hard to see why a parliamentary declaration is going to be held to be any less an exercise of judicial power by a non-judicial body, especially in light of the Communist Party case which used an identical scheme, parliamentary declaration, and was truck down for that reason.

    If a charter of rights served only to spare us the ludicrous rhetoric offered by moral entrepreneurs it would be a very good thing.

  7. @Alan
    Ikonoclast wrote (and I quote the exact words): ‘You need to propose workable specifics on a case by case basis and demonstrate net benefits to society.’

    Those are Ikonoclast’s words, not mine.

    Ikonoclast made that observation not in connection with the original subject of Queensland’s anti-gang law but in connection with the subject of drug legalisation.

    I agree with Ikonoclast that the way to justify making laws about drugs is to demonstrate net benefits to society from making those laws.

    If you think you can demonstrate net benefits to society from a law that criminalises all uses of a drug (whichever drug it may be), please go ahead and do so. If you think the concept of human rights is useful in making that demonstration, please show how.

    But if you don’t want to discuss drug laws and instead want to analyse the Queensland law in the light of human rights considerations, please don’t pretend it’s a response to what I have been contending, because it obviously isn’t.

  8. I think human rights is a fundamental consideration in drug legislation. Laws that fall on the poor and the marginalised in a discriminatory manner have a much higher test to meet than laws that do not. I think I said earlier that I regarded the drug laws, exactly like the bikie laws, as the product of moral panic.

  9. @Alan
    If you think this is supposed to contradict my position, I don’t see how. (As far as results go, and as far as I can tell, it seems that we’re both against existing drug prohibition laws.)

    I have to admit I’m not clear on which human rights it is that you think drug laws infringe, but if they do infringe on human rights, that should be taken into account as one of the factors against them in weighing whether there are net benefits to society, because infringement of human rights is a harm to society.

  10. I don’t have numbers from Australia. In the US the drug laws fall disproportionately on African-Americans, Native Americans and Hispanics. So much so they have bend called the New Jim Crow. Naturally that is a fairly controversial analysis, and certainly truer in the US (where the level of felony disfranchisement among African-Americans is a considerably greater number than the margin of victory in presidential elections) than in Australia. Nevertheless it is simply indisputable that, although drug use is rethought it be relatively evenly distributed among different ethnic groups, the number of prosecutions and subsequent incarcerations among American-Americans in particular, Native Americans and Hispanics to a lesser extent, far exceeds the level of prosecution and incarceration among whites for the same offences. The US even manages to discriminate among particular drugs, imposing harsher penalties for ‘African-American’ crack cocaine compared with ‘white’ regular cocaine.

    One estimate is that

    Felony convictions restrict 13 percent of the country’s black male population from voting, prompting critics to portray felon disenfranchisement as an heir to the voter-suppression tactics of the Jim Crow era.

    Australia doesn’t impose life disfranchisement but you will recall the Howard government’s enthusiasm for prisoner disfranchisement. Which population groups in Australia are severely over-represented among prisoners? And what kinds of offences put them there?

  11. There is a story on ‘Brisbane Times’ under this headline:

    East Brisbane office housed Hells Angels: police

    The gist is that 2 Vicious, Lawless etc.. etc.. bikies and an ex-Broncos footballer committed major serious crimes. Bearing in mind my low opinion of Murdoch’s vile hate machine and its central role in this moral panic and the resulting laws criminalising just about everyone as an “associate”, and also remembering that Murdoch owned the Broncos at the time – I wonder if News Ltd will be hoist on their own petard:

    Bruno and Nuno Da Silva – Portuguese-born twins who have featured on the professional poker circuit – won a business achiever’s award from News Corp’s City South News in 2008.

    Under the headline “Brothers find keys to riches” the pair was praised for growing their business from a one-man operation to a company employing six locksmiths in five years.

    Looks an awful lot like “promoting” the enterprise! We really need a sweeping police operation against this vicious lawless propaganda organisation.

  12. I tried to get these guys to cut a key for me a few years ago. They were hopeless. I ended up have a shouting match with one of them, and demanding my money back. Got most of it, too. I was kind of worried when I found out not long after that they were HA.

  13. The mention of the broncos above and the problems various football clubs have had with rape and sexual assault does raise the question whether football clubs (rugby league clubs in particular) would/should be captured under the “vicious lawless etc” association laws, according to those laws’ stated purposes.

  14. @Tim Macknay

    We’ll get some idea, hopfeully tomorrow, when the Chief Magistrate gives his decision on whether these guys are ineligible for bail under VLAD.

    I imagine either side will appeal and then it’s probably off to the High Court after that.

    I’m guessing that the prosecution said: ‘You can’t grant bail because VLAD applies’. And the Defence said: ‘They need to prove that VLAD applies, and its unconstitutional anyway’.

    Re: NRL: I can see how it could be argued that the “purpose” of the group is not confined to their stated purpose but is an objective test. In that case I can think of a few ways they could be caught up by VLAD. My comment about News Ltd was only half-joking!

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s