In October 2013, after numerous accounts of gang related brawls, the Newman Government introduced three new laws, the Vicious Lawless Associate Disestablishment Act (VLAD), Tattoo Parlours Act, and the Criminal Law (Criminal Organisations Disruption) Amendment Act. These are all concerning Outlaw Motorcycle Gangs (OMCGs) and the subsequent crimes that were committed by the gangs in question, especially in mid 2013. The crimes they are most known for are drug related; dealing, supplying and violent acts committed as a result of these transactions associated with illegal substances. The most recent research shows that there are more than forty Outlaw Motorcycle Gangs in Australia with about 6000 members nationwide (Australian Crime Commission, 2014). The introduction of these laws saw numerous accusations and debates that the laws are unconstitutional and in breach of the separation of powers. The lack of outside consultation, the speed at which the laws were passed and the aspect of mandatory sentencing all show that the new laws are unconstitutional. This essay will explain the separation of powers and its relevance to the Queensland law making system, investigate the issue of mandatory sentencing as a breach of the separation of powers, as it detracts from the powers vested in the Judicial branch. It will also discuss the lack of scrutiny from third party advisors in the making of the bills that were passed in October 2013, and finally, how Queensland’s unicameral government system is relevant to the separation of powers.
The separation of powers doctrine is a central part of the Australian Constitution and Queensland’s law making process. This doctrine divides the power of governing into three parts; judicial, legislative, and executive. Legislative is the power to make laws, and this is given to the parliament of Queensland. They examine, debate, and vote on bills in parliament. The judicial branch is the judges and court system, who hear cases and make decisions by applying the relevant law to facts. The final branch is the executive power, which is the branch that decides policy, and enforces and administers the acts. This is given to the prime minister, and other ministers in charge of government departments (Dosen et al, 2013). The separation of powers is fundamentally, a way of ensuring that one group of people does not have excess amounts of power, in comparison to others. It ensures that checks and balances are kept in place for all aspects of law (Republik Österreich Parlament, 2015), which is especially relevant in Queensland as there is no upper house to keep the balances in place, as was seen with the introduction of the three bikie laws introduced.
In October 2013, three laws in Queensland were passed involving outlaw motorcycle gangs with the intention to prevent more criminal activity. The VLAD Act has caused the most interest in regards to this issue- the objects of the act are found in section two of the VLAD Act and are to “disestablish associations that encourage, foster or support persons who commit serious offences; increase public safety and security by the disestablishment of the associations; and deny to persons who commit serious offences the assistance and support gained from association with other persons who participate in the affairs of the associations.” This act also includes mandatory sentencing, in section seven the act states that “a court sentencing a vicious lawless associate for a declared offence must impose all of the following sentences… a sentence for the offence under the law… a further sentence of 15 years’ imprisonment served wholly in a corrective services facility”
It is rare to have legislation with mandatory sentencing, and is such one reason why this law is so controversial. Mandatory sentencing can be seen to take away powers from the judiciary branch of the separation of powers (Patty, 2014). The second act, the Tattoo Parlours Act 2013 states that Tattoo Parlour owners must have a licence to operate tattoo businesses, as a further measure to reduce bikie gang related crime which is prevalent in and around tattoo parlours (Mann, 2013). The final piece of legislature is the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013, which states in section 60A that “Any person who is a participant in a criminal organisation and is knowingly present in a public place with two or more other persons who are participants in a criminal organisation commits an offence.” These laws all created a stir in the OMCG community and widespread community, especially with the added speculation of whether these laws did or did not breach the separation of powers (Appleby, 2013).
The lack of an upper house in the Queensland Parliament is a distinct reason that these laws are in breach of the separation of powers. The unicameral parliament system in Queensland results in a concentration of authority, and can easily breach the separation of powers (Nelson, 2015). The issues regarding Outlaw Motorcycle Gangs are a distinct breach of the separation of powers, as it completely omitted impartial, third party scrutiny that is obtained by having an upper house. In October 2013, when the laws were passed, opposition leader Annastacia Palaszczuk stated "[It's] a hastily pulled together response that plays up to populist rhetoric," were presented and passed in only three days (Ryan et al, 2013). According to the Queensland Legislation Handbook (2014), a small bill (20 pages or less) should take at least three months to be passed, so in regards to the multiple acts passed concerning Outlaw Motorcycle Gangs in such a short amount of time, it is clear that there was not enough time put into review from impartial third parties. Dr Jonathan Crowe said “The Queensland Government doesn’t have some of the checks and balances you have in other states… We don’t have an upper house of parliament, for example. The executive of the day is pretty much in charge of the parliamentary process because they will have a majority in the lower house.” He then went on to say that because of this, some of the Newman governments controversial decisions, ie. The bikie laws in question, did not come under proper scrutiny (Nelson, 2015). This shows that without the upper house in the bicameral parliament system, it is very difficult to abide by the separation of powers, as was seen in October 2013 when the bikie laws were passed. As was previously stated, the separation of powers ensures that one branch of government does not have too much power, and in this instance, the legislative branch of the separation of powers exercised too much control for one section, which was caused by Queensland’s unicameral parliament system.
The next major indicator that the three laws are a breach of the separation of powers is the mandatory sentencing as described in the VLAD laws. It can be seen that mandatory sentencing deprives the judicial branch of their right to interpret and analyse the law made by the legislature branch. In most cases, the legislative makes a law and the judiciary analyse and apply it to the case they are dealing with, allowing them to dispense punishments as they believe is necessary (Dosen et al, 2013). In late 2014, Stefan Kuczborski, a member of the Hell’s Angels Motorbike Gang, challenged the high court that the laws infringe the integrity of Australia’s constitution, and therefore breach the separation of powers. Kuczborski challenged the VLAD laws for a few main reasons reasons; that they were an attack on freedom of association and that they damaged the integrity of Quensland’s court system (Kampmark, 2014). In regards to the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld), the court upheld the credibility that it was not unconstitutional, but refused to comment on the other two acts. The government maintained that the laws were necessary for the safety of the community. This would have the general public led to believe that in their refusal to comment, they were quietly admitting that they were in fact a breach to the constitution (Ananian-Welsh, 2014). The main function of the judiciary branch is to hear cases and give out penalties to the offenders. Mandatory sentencing takes away that power by having the compulsory 15 years’ imprisonment as shown in the VLAD laws. Therefore, at least two out of the three laws passed in regard to the Outlaw Motorcycle Gangs in Queensland are in breach of the separation of powers.
Looking to the future, it is likely that there will be reviews of the three acts introduced to determine whether or not they are suitable as Queensland advances as a state.
Queensland premier Annastacia Palaszczuk and a taskforce has launched a review into the VLAD legislation, and will continue to make amendments as needed (O’brien, 2015).
It has been found that because of Queensland’s unicameral parliament system, the laws were passed without sufficient review from an impartial third party, and therefore breach the separation of powers. The Upper House of the parliament is crucial to evaluate the laws that have been put forward by the lower house, and without it there is a concentration of power which is unconstitutional.
The lack of outside consultation, the speed at which the laws were passed and the aspect of mandatory sentencing all show that the new laws are unconstitutional.