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. A while ago I went to a benefit concert where Normie Rowe was performing. The audience were mainly find examples of middle-classdom like myself. Except right up the back was the Vietnam Vets motorcycle club. They were there for Normie, who said hello to them, as he always does.

    Not all motorcycle clubs are the same.

    But I suppose the problems with the bad clubs is that they don’t cooperate with the police, are a law unto themselves, and will intimidate witnesses to crimes.

  2. At various time since federation Australia has indulged itself with moral panics about Chinese, Japanese, Asians generally, Pacific Islanders, Australians of German or Italian descent, immigrants, Communists, Catholics, homosexuals, asylum-seekers, bikies and (according to Bob Carr) people who wear their caps reversed.

    Australia is the only democracy which does not have a constitutional or legislative bill of rights. NSW prohibited discrimination on the grounds of homosexuality 1977, but the sodomy offence remained until 1984. In other words, between 1977 and 1984 the only organisation in NSW allowed to discriminate against LGBT people was the parliament itself. And who had granted the parliament that right? The parliament itself.

    If we had a bill of rights we would probably still have moral panics. What we would have less of is moral panick-mongers trying to ride them into office. A country whose last 4 prime ministers were eager purveyors of one or another kind of moral panic really needs to pause a moment and think.

    The joke about these laws is that they almost exactly copy the South Australian laws that have already been thrown out by the courts. They are not being enacted with any intention of ever putting them into force. They are window-dressing, pure and simple.

  3. Bikies, at least the ones that have caused much criminal havoc, are essentially organised crime units, with a very difficult culture to penetrate. In other words, getting police people onto the inside of a (criminally behaving) gang is very risky to the people trying it. The gangs that are a problem get involved in the production and the trafficking of serious drugs, as well as arms, protection rackets, and bribery of officials (such as police on their beat, or security staff, etc). They are a corrosive element. However, such gangs aren’t any different in kind to the various mafia, triads, etc, except for the fact that there are both legitimate and illegitimate bike clubs. Handing the power to decide which groups are “threats” and which aren’t, directly over to politicians, is bat-sh*t crazy. They can’t even distinguish between legitimate work travel expenses and illegitimate ones!

  4. Eternal moderation is limiting my right to internet freedom! So, I’ll try Fran’s trick:

    I don’t think freedom of association should be absolute

    That is an astonishing thing to say.

    You are saying that, even if no actual crime is being committed (such as “affray”, “riot”, “disturb the peace”, “public nuisance”, “trespass” or any other of the more than plentiful laws we already have criminalising certain behaviour), there should be no “right” to assembly.

    Seriously? Joh banned groups of 3 or more. Beattie banned groups of 5 or more. In China it’s 5.

    The ALP applauded these laws (all seven of them voted – unnecessarily – with Newman on Tuesday night for), I’d love to hear the ALP cheersquad justify that. Seriously, the ALP supports criminalising groups of people wholesale?

    Last night in Mt Isa a 51 year old man who yelled abuse at some cops from a pub was arrested and, solely because he had a “Rebels” belt buckle (no, I’m not joking), the new laws were applied to deny him bail.

    The ALP supports this.

    As I wrote many times before the 2012 Qld ALP wipeout: “Everything that happens under Newman is the ALP’s fault.” I still believe it holds true, but I honestly didn’t expect the rump remaining ALP ‘Opposition’ to vote with him on stuff like this.

  5. Maybe this will get through?:

    Alan: Curiously, one of the crimes which invoke the 15-25 year additional non-parole jail term is under Section 208 of the Queensland Criminal Code 1899 (you’ll have to look it up, eternal-mod won’t let me use the word!).

    Bleijie didn’t write these laws. We have a version of the US “A.L.E.C.” at work in Australia and I’m trying to find out who is behind it. In parliament Liz Cunningham suggested Santoro’s fingerprints were all over the Workers’ Comp laws, so…..?

  6. OK, never mind.

    Look into the laws, Hansard from last week, the Criminal Code 1899 s.208, and ask yourself “who actually wrote these laws?”

  7. As I recall, the mechanism by which these anti-bikie laws are unconstitutional is state courts are receptacles for federal jurisdiction and cannot be used in ways that detracts from that high status, institutional integrity and the independence needs to be a receptacle for federal jurisdiction.

    Part of that is not setting up process that strip state courts of having the final say on the determination of rights and to be able to do so independently. The executive simply cannot enlist the courts to implement its decisions

    This link suggests that the new laws retain the independent role of the QLD courts

  8. Why not just legalise drugs and then let the drug dealers use the state run protection racket?

  9. Let’s go for the truly criminal class. No freedom of association for groups of three or more for those in suits – excepting only marriages and funerals.

  10. @Jim Rose

    What is the relevance of a High Court decision on a 2010 Act to the constitutionality of a 2013 Act with a completely different legislative scheme?

  11. @Megan

    Prof. J.Q. says “I don’t think freedom of association should be absolute”, and you Megan twist that into J.Q. saying “there should be no “right” to assembly”.

    The two statements are not equivalent. You seem to be missing the difference between absolute and non-absolute rights. As the BIHR (Bringing Rights to Life) UK site says;

    “Some human rights are absolute. They must never be limited or restricted in any way.

    However, the majority of rights are non-absolute and can be limited or restricted in certain circumstances where there is a need to take into account the rights of other individuals or wider society.”

    The right to assembly and association is indeed a right but not an absolute right. It is a qualified right. Allowing for differences between Australian and UK law (especially that we have no human rights bill), we can still fairly safely quote part of the next section and apply it to Australia;

    “Qualified rights can be restricted under more general circumstances – they can be balanced against the rights of others or the interests of the wider community. Examples of qualified rights include the right to respect for private and family life, the right to freedom of expression and the right to freedom of thought, conscience and religion.

    Any interference with a qualified right must be:

    Lawful – be allowed within existing legislation;
    For a legitimate aim, e.g. to protect the rights of others or wider society;
    Necessary in a democratic society and;
    Proportionate – appropriate and not excessive in the circumstances.”

    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.

  12. Following on from my post above, I would say that any law interferring with a qualified right (in this case the right to assembly and association) should be;

    1. Lawful – be allowed within existing legislation;
    2. Non-discriminatory;
    3. For a legitimate aim, e.g. to protect the rights of others or wider society;
    4. Necessary in a democratic society and;
    5. Proportionate – appropriate and not excessive in the circumstances.

    I have added non-discriminatory to the BIHR list.

    The new bikie laws appear to be disproportionate and discriminatory at the very least. For those and other reasons they should be struck down. A real danger exists of this attack on qualified rights being extended. Probably, we do need an organized crime bill but this needs to carefully crafted in the light of experience around the world and using examples like the RICO act. Standard criminal law and a carefully crafted organized crime bill are what is needed at most not this current approach which could end up threatening the rights of many other groups.

    I suspect that Newman et. al. are attempting to distract the people from other shortcomings in their approach to law and governance. For example, proper enforcement of criminal law COMBINED with proper regard for all citizens’ rights is more costly. It costs more to be firm AND careful. Better funding of law enforcement along with more carefully considered legislation is what is required.

  13. @Ikonoclast

    I get the distinction. But to say that association should be limited in circumstances beyond our myriad existing criminal laws, just “because”, I find astonishing.

    We already have plenty of laws (I listed some categories above) which, if can be proven according to the rules of evidence in an open judicial process to have been broken, cover absolutely everything we’re supposed to be worried about with bikies.

    I’m amazed at the complacency about, and even support for, laws that apply mandatory 25 years jail without parole for, literally, “guilt by association”.

    I believe Newman, and the ALP for that matter, know exactly what they’re doing.

  14. I have no idea why that comment is in eternal moderation? No links, not lengthy, no naughty words? Is it because it’s a “reply” to Ike?

  15. The problem with laws that restrict freedom of association is that it is difficult to frame them in such a manner as to go to the heart of the matter, without unduly affecting people who are merely being annoying. Laws that work on limiting the number of people who may gather together are open to serious abuse by (a small minority) of police—it is human nature. If the right to bail is also denied, then the situation may exist where a targeted individual is chucked in the can, released, and chucked straight back in the can, repeatedly, as “punishment.” Any group of people that can be identified in some way are open to targeting, whether they are a true threat to society or not.

    As for legalising drugs, while I agree with the notion, I’d frame it as being a bad idea, just not as bad as the idea of criminalising drugs. Drugs f*ck some people up, no doubt about it, but at least in a controlled and regulated environment it would be easier to reduce the harm done, and to assist those who suffer from addiction rather than being occasional users. Criminalised drugs simply increases the rewards for the gangs, and the risks to both users and innocent citizens (who get caught in the cross-fire of violence). Front line police suffer too. Gaols are stuffed full of people whose crime is drug-related, petty theft or being a small-time dealer to support their own habit—what is the point of it?

  16. @TerjeP

    Well then we agree on pretty much everything today. Your opening article regarding freedom of association was pretty much spot on. In NSW we have similar draconian ideas promoted by Labor and Liberal. It’s depressing how little dissent there is on these things.

  17. Another concern I have with such laws is the creeping nature of them. They get brought in to fix an unfixable problem—bikie gangs involved in organised crime—and make some small headway, only to stall; so, the solution is to beef up the laws, which work for a short while, and so on.

    We have already seen what can happen in a different context, namely the case of Cornelia Rau, locked up in indefinite detention because she was unable/unwilling to identify herself. The fact that she was in the grip of a major bipolar manic episode (with possibility of schizophrenia) at the time should have been apparent to any psychiatrist who examined her, yet that seemed to make no difference. It was the lack of identification, and her German speech, that targeted her. She was merely annoying, while manic, that is. Her case poses the problem of how to handle people who don’t match the exemplar for the laws; furthermore, it seems that she was not examined by a psychiatrist until well after her transfer to Baxter detention facilities.

  18. @John Quiggin

    Very much so. A legal regime would radically cut both the costs of enforcement and the corruption associated with regulating access to mood-altering substances. It would also allow people who were functional to persist in gainful employment.

    Those who really did have substance management issues could get treatment out of the funds raised by sales/savings in policing.

  19. @Alan

    True, Alan. Though I must say the idea of all our “suits” and “masters” having to find funerals to meet seems rather appropriate.

  20. @Megan

    The reply link itself seems to get counted as a link. Thus a reply link and another link seems to take the moderation algorithm over its apparent allowance of one link. The moderation algorithm also seems to score (by simple addition seemingly) potential problems like excess links, offensive and derodatory words. When this score breaches an obviously very low limit, the algorithm tosses the comment to moderation.

    The moderation algorithm is clearly very simplistic and crude. If programmers and/or system analysts had presented algorithms this crude in a project I was also involved in, I would not have been backward in pointing out the crudeness and ineffectiveness of said algorithms and suggesting better ones. It’s very poor work by whoever did it.

  21. @Megan
    Look into the laws, Hansard from last week, the Criminal Code 1899 s.208, and ask yourself “who actually wrote these laws?

    Megan, section 208 certainly looks archaic by contemporary standards, but it’s pretty typical of the compromises that were made to decriminalise consensual gay sex in the late 1980s (the particular Bill that inserted the current s208 was the work of the Goss Labor government in 1990). In order to overcome the resistance of socially conservative members of parliament, the strategy was adopted to decriminalise it in an unequal way (i.e. a higher age of consent), rather than to make the laws identical to those for straight sex. WA had similar provisions when decriminalisation occurred there a year earlier (1989). I don’t think any jurisdiction when for full equality in a single leap – the reforms have all been incremental.

    It’s worth remembering that those particular reforms occurred over 20 years ago, and public attitudes regarding homosexuality have advanced considerably during that time. The WA provisions were updated around a decade ago to remove the residual discrimination, but those amendments were controversial even then (at least within the Parliament). I don’t know why the Beattie/Bligh governments didn’t move to modernise the Queensland laws, but the fact that Anna Bligh was apparently unable to overcome the religious conservatives in her own party in order to decriminalise abortion is suggestive of the reason.

  22. @Megan
    When John Quiggin says that freedom of association should not be absolute, he is not saying that people should not have an unrestricted right to assemble even when no crime is being committed, he is saying that people should not have an unrestricted right to assemble in cases where crimes are being committed. So he’s saying the same thing you are, just with different phrasing and emphasis.

  23. @Ikonoclast

    A lot of the qualified v unqualified rights argument actually comes from constitutional mythology in the US. The US bill of rights appears to consists exclusively of unqualified rights. Sadly for believers in the myth there are whole rafts of exceptions that have been developed by the courts, many of which go further than in modern bills of rights like Canada or South Africa where qualifications are stated openly in the text.

  24. @Ikonoclast

    I was astonished to find that a country in the Horn of Africa that looks a lot like S0malia triggered the mod bucket. Then again, since it takes strings rather than words maybe it’s “S0ma” with an “o” that triggers it.

  25. @Jim Rose

    It’s an interesting claim but it’s not supported by the article you linked. That article cannot be relevant to the 2013 Act because it dates from July 2013, long before the legislation was even announced However, if one follows your link and reads the most recent articles, you find:

    Extreme Anti-Bikie Legislation Passed

    It is always best, when link-trolling, to check what the targeted link actually says.

  26. Given that they satisfy many of the criteria, I think anyone proved to be a member of the Catholic church who commits a crime should get an extra 15 years. Also, since Tony Abbott is only going to oppose the ACT gay-marriage laws in order to “protect the constitution”, I expect we will see a High Court challenge to these Queensland laws.

  27. Simplistic slogans like “legalise drugs” are about as useful as “stop the boats”. The category of “drugs” is a very broad and complicated category. Drugs (and poisons) have to be dealt with and legislated for on a case by case basis. Indeed, “the dose makes the poison”, as Paracelcus said. This is a principle of both toxicology and pharmacology. The categories of drug and poison overlap. All drugs are poisons at some dose and many poisons are efficacious drugs in the right doses in the right circumstances.

    It is also simplistic to speak of drugs (and poisons) being simply legal or illegal when there are many gradations of control over controlled substances. Alcohol and tobacco are called “legal” but there are many specific settings and situations where production, distribution, sale and consumption are illegal.

    So let us not have simplistic “legalise drugs” slogans. You need to propose workable specifics on a case by case basis and demonstrate net benefits to society. Currently proscribed or controlled substances are mostly proscribed or controlled for good reasons. Note, the word “mostly” does not mean “all”. It could be demonstrated that some changes are needed for soke substances. As I said, put a case with supporting data and workable specifics for each substance where the current level of control might be counter-productive for society.

  28. @Tim Macknay

    The point I was making was lost thanks to eternal mod and my attempts to avoid words that would trigger it.

    I was referring to s208 because, curiously, it is one of the “declared offences” under Schedule 1 to the legislation under discussion. I wasn’t aware that bikies were flaunting s208 to such an intolerable extent that they should get an extra 25 years just for who they associate with.

  29. @Megan
    I just read the “Vicious Lawless Association Disestablishment Bill” – ye gads, what draconian nonsense, and such Orwellian language – ‘vicious lawless associate’ WTF?

    It looks to me that s.208 was included because that section has been treated the same way as other provisions dealing with sexual offences involving minors and mentally impaired people (never mind the difference in the age of consent and the anachronism of singling out the particular physical act for an offence of its own).

    It’s difficult to see how the legislation will actually work for many of the scheduled offences – although it (disgracefully) puts the onus of proof on the accused to show that the relevant association was not formed for the purpose of the particular offence, I wouldn’t have thought it would be too difficult to prove, on the balance of probabilities, that a motorcycle club was not formed for the purposes of committing offences against s.208!

  30. @Tim Macknay

    Except that the applicable standard of proof is “beyond reasonable doubt” and, as you note, the reversal of onus of proof is not a good thing.

    That’s part of the reason I’m suprised at the general complacency about this.

  31. @Megan

    Except that the applicable standard of proof is “beyond reasonable doubt

    In criminal cases, where the accused is required to carry a legal burden of proof, the standard is the balance of probabilities (the prosecution is still required to prove its case beyond reasonable doubt).

  32. @Tim Macknay

    I stand corrected.

    But you will note that what the alledged “Lawless Violent Associate” has to prove under s5(2) is unrelated to the actual offence. They have to prove is a lack of involvement in ANY “declared offence”. So that still won’t get our hypothetical s208 offender off the hook. He has to prove the negative for ALL the listed offences to get that far.

  33. @Tim Macknay

    I just read the “Vicious Lawless Association Disestablishment Bill” – ye gads, what draconian nonsense, and such Orwellian language – ‘vicious lawless associate’ WTF?

    The acronym is “VLAD” — it’s vampires I tells ya!

  34. @Ikonoclast

    Simplistic slogans like “legalise drugs” are about as useful as “stop the boats”. The category of “drugs” is a very broad and complicated category.

    Well yes, but as this post isn’t really about drug laws, ‘legalise drugs’ is probably a reasonable approximation.

    Personally I favour a controlled supply regime for all mood-altering drugs with the controls reflective of the hazard associated with abuse, especially those that are physically addictive. So the most significant controls would be for heroin and speed and its relatives, and the lightest for ecstasy and marijuana.

    I would roll out alternative modes of delivery — patches and perhaps nasal sprays as preferred to IV …

  35. @Ikonoclast
    Although there are good reasons for controls on the sale and use of drugs, none of the drugs currently proscribed were proscribed for good reasons. There is no drug for which there is a net benefit from criminalising all uses of that drug.

  36. @J-D

    “…none of the drugs currently proscribed were proscribed for good reasons.”

    That sounds like a sweeping generalization to me.

  37. @J-D

    There is no drug for which there is a net benefit from criminalising all uses of that drug.

    Plainly, if someone administers a stupefying agent to another person without/against their consent then that’s criminal. That’s a form of assault, and perhaps even in the same category as GBH. Equally, being in control of dangerous machinery, or hazmat when under the influence is criminal. This is not about the drug itself but about the action of a person using the drug.

    Moreover, there are some drugs that are so immediately and palpably harmful that one could reasonably infer that no person in a position to make an informed choice would use them. Some versions of recreational drugs are prepared and distributed in ways that would fall very far short of suitable product standards. Distribution in such situations is contrary to the public interest in part because one can’t be confident that people know what they are self-administering.

    Considerations of this kind are precisely why there should be a well conceived and robust legal regime within which the desire of some people to use drugs to alter mood can be managed with a minimum of risk to those so inclined and secondary cost to everyone else.

  38. The reality is that the current raft of drug prescriptions were themselves the result of moral panics. Just about everybody,from Victoria down, was bombed to the eyeballs for most of the second half of the nineteenth century. They managed to build one or two bridges and railways, sewer the great cities of Europe and North America. and write lots about the theory of psychoanalyses. Australia had among the highest rates of opiate consumption in the nineteenth century and laws were carefully directed against evil Chinese smoking the stuff, not good Europeans drinking laudanum by the gallon.

    The opium ban had more to do with a moral panic raised against the Chinese and the cannabis ban was all about Mexicans in the US Southwest. In time the US tended to export temperance and prohibition laws by way of international agreements. Australia, for example, did not ban cannabis until 1926 when we ratified an international convention on the subject.

    You cannot condemn the work of moral entrepreneurs in 2013 while endorsing that of moral entrepreneurs in the 1920s.

    I have to add I am quite nervous about the various halfway house proposals that involve controlled delivery. Many of them seem to me to end up with social workers telling marginalised people what to do, and then calling the cops when the marginalised people don’t do as the social workers tell them.

  39. People who refer to the bikie clubs as “outlaw bikie gangs” seem to have little grasp of what constitutes outlawry. The Hell’s Angels are an Australian public company (ABN 17001312312), as are the Bandidos (ABN 97132958957). The Gypsy Jokers (ABN 43452287564) and the Finks (ABN 84799105546) are incorporated associations. Describing them as outlaws only feeds the romantic fantasies of overweight losers playing dressups.

    And in Queensland that doesn’t just apply to the police, either.

    Unless the minutes of the last Hell’s Angels Board meeting say something like “Increase heroin sales through tattoo parlours; Action – Big Merv” then the clubs, as such, aren’t committing crimes.

    If all the HA members decide to move over and become (say) members of the Northern Suburbs Croquet Club, does their outlawry move with them to the new association?

    Though there is apparently some difficulty registering one’s resignation from a VLAD with the authorities should one wish to do so.

  40. All bikies are equal, some bikies are more equal than others.

    Those of a military bent are just fine.

    Qld Police:

    Patriots Motorcycle Club – 2013 Coffs Harbour Run

    October 22, 2013 at 11:44 am

    Police would like to advise the community that the Patriots Motorcycle Club – South Queensland Chapter will commence a run this morning.

    Members from this social motorcycle club will be travelling from areas such as Brisbane, Sunshine Coast and Toowoomba down to Coffs Harbour in New South Wales.

    Police would like to further advise that while they are aware of the run, the public should not be concerned about these activities as the Patriots is not a criminal motorcycle gang.

    Police will continue to use laws effectively to ensure the safety of the community and dismantle criminal organisations within Queensland, including enforcement action against criminal motorcycle gangs.

    I’m still amazed at the complacency. And, quite frankly, the irony.

    For example, the Gold Coast ‘Finks’ HQ hasn’t been ‘declared’ as a VLAD location. I won’t go into scuttle-butt here about connections between Gold Coast police and the gang that supposedly started this whole moral panic….maybe it was just an oversight.

  41. According to Overland, Campbell’s new anti-bikie regime includes pink prison uniforms. Combine that with the s.208 stuff and we’re virtually in pink triangle territory.

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