A year of eroded rights for Queensland

03 March 2012 By Lawyers Weekly

The rights of Queenslanders have been eroded after a year of inadequate public consultation on tough new laws that have undermined public confidence in the justice system, writes Tim MeehanTwo…

The rights of Queenslanders have been eroded after a year of inadequate public consultation on tough new laws that have undermined public confidence in the justice system, writes Tim Meehan

Two measures during 2009 - controversial telephone tapping laws and so-called "anti- bikie gang" legislation - pushed Queensland toward a dangerous blend of McCarthyism and a state with "Big Brother" eavesdropping powers.

Politicians exploited the scare tactics of rampant gangs exploiting vulnerable Queensland to generate fortunes in illegal earnings. The public had little say in what should be done.


Armed with the spectre of Bogeymen gangs using Queensland for drug operations, state legislators pushed through laws which significantly reduced Queenslanders' civil liberties and rights.

Criminal defence lawyers expressed dismay at the laws which gave tough new powers to Queensland police, with no real safeguards against abuse.

It was a shock to many that "phone tap powers" meant more than just listening to landline calls. It meant police could apply through the courts to eavesdrop on all forms of private electronic communications - emails, mobile phone calls and text messages, posts on Facebook and social network sites.

Anti-gang laws and telephone tap powers were not the only contentious law changes in 2009 but they are significant because both were pushed through on the basis of perception rather than a real need for them.

Both were "sold" on the scare tactic of being needed to fight criminal gangs allegedly using Queensland legal loopholes to conduct drug activities. Lawyers' claims that existing laws were adequate were ignored by legislators.

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Although pushed as "anti-outlaw motorcycle gang" laws, the legislation has no specific reference to bikie gangs - thus it can be applied to any group or individual the police want to target.

The police can go to the courts and seek anti-association orders for gang or gang-associated people, which could effectively impact on innocent members of the public.

Any law which suggests a guilt by association measure is a worrying erosion of the public's rights because it could treat them on the same level as terrorists.

In theory, police applications for anti-association orders or phone taps are monitored by Queensland's Public Interest Monitor - a state-appointed watchdog officially there to safeguard the public's rights, but apparently with no official powers to veto applications.

The phone tap interception law issue was controversial because lawyers feared that the sweeping new powers, given to Queensland police in May, have no real safeguards against abuse.

The PR "spin" accompanying the laws avoided mention that the new telecommunications interception laws gave police the power to eavesdrop on all communications, be they speech, music or sounds, data, text, images or signals. Anything and everything is part of the phone tap power laws.

The police say these powers will make it easier to catch criminals but phone tap recordings and intercepted emails and texts can be manipulated, so any such evidence is going to be challenged in court. It will, in some cases, prolong trials rather than shortening them.

Meanwhile a significant issue yet to be tested in the anti-gang legislation involves the definition of "association" with an illegal organisation.

Queensland laws suggest you could be regarded as a criminal merely for having contact with a so-called illegal group, rather than actually committing any criminal act.

This substantially redefines the principles of criminal liability. The erosion of the public's rights, once started, can accelerate as police argue they need more powers to pursue criminal organisations because these laws will drive criminal organisations deeper underground.

If you label a specific group and anyone associated with them outlaws, it fosters the sort of environment which encourages McCarthyism. We don't need a 1950s-like "Reds under the bed" witch-hunt in 21st Century Queensland.

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

Under the new laws, is it illegal for someone to take their bike to a business run by a gang member and be deemed to be associating with them? If so, could the business owner sue the Australian Government for lost business?

What about this scenario - a motorcycle gang member charged with offences has an anti-association bail condition. But he runs a motorcycle service and repair business. Is he forbidden to accept legitimate work from customers if they have a gang association?

Welcome to Queensland where, in 2010, the skies are clear and the laws are murky.

Tim Meehan is a Brisbane criminal defence lawyer and managing partner of criminal defence law firm Ryan and Bosscher Lawyers

A year of eroded rights for Queensland
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