Anti-bikie laws erode public rights

03 March 2012 By Lawyers Weekly

Inadequate public consultation on tough new anti-bikie laws will push Queensland into a dangerous era of "McCarthyism", writes Tim Meehan, and could impact on the livelihoods of innocent people…

Inadequate public consultation on tough new anti-bikie laws will push Queensland into a dangerous era of "McCarthyism", writes Tim Meehan, and could impact on the livelihoods of innocent people

There are serious questions around a state government decision to deny the general public any consultation on the new anti-bikie gang laws, with the draft legislation going only to key law, justice and civil liberties bodies for comment.

As a criminal defence lawyer I have serious concerns about elements of the proposed legislation, especially the idea of anti-association orders for gang members which could effectively impact on members of the public.


Any law which even suggests a guilt by association measure is a radical and worrying erosion of the public's rights. At the very least, members of the public should have a right to express their views on a law that could treat them on the same level as terrorists. If the public is to be ignored, then criminal defence lawyers need to be their voice and speak for them, because defence lawyers would be the people they would turn to if charged under this legislation.

The state's headlong rush to enact laws against so-called outlaw motorcycle gangs smacks of political manoeuvring - exploiting the politics of fear and a state government showing its "get tough on crime" stance in order to appease voters.

Unless the legislation is thoroughly examined and debated, there is a real risk it could contain loopholes which could penalise innocent members of the community.

There is a real fear that elements of the draft legislation could effectively criminalise mere association with a motorcycle gang member, rather than any active participation, membership, or involvement with gangs.

Despite assurances that law-abiding members of the public have nothing to fear, these laws take us closer to a state in which you could be regarded as a criminal merely for having contact with so-called outlaw bikers, rather than actually committing any criminal act.

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This substantially redefines the principles of criminal liability and the reality of kneejerk laws such as this is that once you start tinkering with the legislation, it becomes a vote-catching process.

The erosion of the public's rights, once started, can quickly accelerate because police will argue they need more powers to pursue criminal organisations, because, inevitably, laws such as these will drive criminal organisations deeper underground and have a reverse effect on policing and law enforcement.

Any change to criminal laws needs to be thought through, because changing the law in a knee-jerk fashion can set up a whole raft of unforeseen problems that could adversely affect innocent people. There is a real risk anyone who rides a motorbike will be labelled a bikie.

If you single out a specific group and label them and anyone associated with them as outlaws, it fosters the sort of environment which encourages McCarthyism.

McCarthyism is the term for making unsubstantiated accusations against people without proper regard for evidence. The term is named for 1940s and 1950s' Communist witch-hunt American senator Joseph McCarthy.

The McCarthy era of obsessively hunting for "Reds under the beds" spawned a mindset of attributing a group of society's ills to a perceived section of the populace, without regard for the facts.

This is not about defending the rights of bikie gangs - it's about protecting innocent members of the community who could find themselves swept up in some witch-hunt against anyone who rides a motorbike.

There are legitimate and law-abiding clubs of motorcycle enthusiasts. How will an anti- bikie gang law differentiate between these enthusiasts and the target gangs?

Anti-bikie laws such as anti-association and anti-fortification laws only complicate the issue. How do you legally define a "bikie gang" for terms of an anti-association law, without in effect saying that any and all groups of motorcycle enthusiasts cannot associate in a group environment?

Could the laws be circumvented if the bikies switched to cars? It sounds ridiculous, but the wording of a law can be crucial to whether it can be enforced.

And if you include car groups, does this then outlaw innocent car enthusiast groups? Law changes have consequences and these need to be thought through.

Many people own high-performance motorcycles but are not members of gangs, yet they have their bikes serviced at legitimate businesses run by gang members.

Under the new laws, would it be illegal for someone to take their bike to a business run by a gang member and be deemed to be associating with them? And, if so, could the business owner then sue the government for lost business?.

Or, if a motorbike gang member took his bike to a business run by a non-gang person for servicing or repair, would it mean the person doing the work would be regarded as associating with an illegal organisation?

These are the sorts of issues about which the government needs the feedback from the public, not just professional groups.

I wonder whether a law which bans fortifications could backfire on the government because many homeowners in Queensland employ some form of security fortification around their homes?

Would an anti-fortification law mean homeowners have to remove security screens and bars from their windows and doors if the person living there is somehow regarded to be a member of or associating with outlaw gangs? That's the sort of unexpected side effect that could evolve from a hastily conceived law.

You can expect the new laws to be tested in the courts. Existing police powers are sufficient to deal with gang issues and passing tough new legislation will not in itself solve the problem.

Imposing orders which restrict where someone can go or who they can associate with - even if they have no criminal conviction - is quite scary and the opposite of what Queenslanders take for granted as their rights in a democratic society.

Eroding the public's rights is bad for Queensland.

Tim Meehan is a Brisbane criminal defence lawyer and CEO of Ryan and Bosscher Lawyers

Anti-bikie laws erode public rights
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