Bikies and Civil Rights: Legal Activism, Police States and Liberties in Australia

Binoy Kampmark

Cartoon caption, noted in Andrew Lynch, “Terrorists and Bikies,” Alternative Law Journal 34, 4 (2009), at 241. [Fig.1]

“Every criminologist I know agrees that legislation is not the way to go. The answer is for the police to do their job and seize members of clubs threatening war and do not allow the clubs to reform until they can prove that they have purged the criminal elements and found effective measures for conflict resolution–apart from war.”[1] The words of American motorbike enthusiast Arthur Veno, a student and specialist of motorbike culture, were not heeded by several Australian states which have introduced an assortment of punitive control laws targeting “bikie” gangs. Writing in the aftermath of laws introduced in South Australia, his warning would again be pertinent four years later in a state that had gone further than most.

Motorcycle jacket with the No Club patch. [Fig.2]

The so-called Queensland Bikie Laws were introduced in September 2013, when Bandido motorcycle gang members on the Gold Coast broke out into two public brawls that resulted in 18 arrests.[2] The youthful Attorney-General of Queensland, Jarrod Bleijie, proved aggressive in his response. “The Government is drawing a line in the sand and saying to outlaw motorcycle gangs, and those engaged in criminal enterprise in Queensland: you have had your day.” [3]

Broadly speaking, the changes included the following: additional penalties for individuals convicted of declared offences deemed participants in organisations not shown to lack a criminal purpose; provisions increasing penalties for persons convicted of various offences against the Criminal Code where they are deemed members of criminal organisations; a “public place element” targeting participants in a designated criminal organisation who are knowingly present in a public place with two or more participants in a criminal organisation, who enter prescribed places or attend prescribed events or recruit participants in a criminal organisation; and amendments to the Tattoo Parlours Act making it an offence to remain in or enter licensed premises wearing or carrying items bearing insignia or markings of such organisations.[4]

Not even the state’s Bail Act was spared, collectivising purported criminality by linking the individual to the organisation, rather than looking at the individual culpability behind the act in question. Specific attention was paid to mandatory jail terms–between 15 to 25 years, even for members convicted of lesser crimes. Membership of a motorcycle club effectively multiplied the gravity of the offence. The onus was reversed: it was gang members who had to convince courts to grant them bail by the mere fact of their status, rather than the prosecution’s task of proving any viable risk to the community.

An interim report released by the Strategic Monitoring Team (SMT) responsible for the anti-bikie strategy to the Queensland Security Committee in April 2014 sought to approach the outlawing of motorcycle gangs on six fronts: legislative reform; enforcement and prevention; denial of economic opportunity; involving the community with the help of a public relations strategy; restricting criminal activity while serving sentence; and various security and anti-corruption measures.[5]

The source of inspiration behind the legislative push was, according to Bleijie, US law. “We are looking at particular laws the United States have introduced, racketeering laws which they call RICO.” In this sense, it was perversely fitting–the bikie gang culture had itself been encouraged by its American equivalents, and law enforcement authorities were looking for similar precedents to follow in combating it. The attorney-general also claimed legal inspiration from neighbouring New South Wales, which had been involved in “banning of colours from the Night club district”.[6]

To promote its message, the Queensland government retained a public relations firm at a cost of $500,000 to, in the words of the tender, “correct current community misperceptions… ease concerns of the law-abiding public [and] counteract future negative media coverage with positive messages.”[7]

With the drafters seeking some rhetorical punch, the suite of laws became known as the Vicious Lawless Association Disestablishment laws (VLAD). There was always going to be some doubt about the legality of such laws, given the inconsistent train of jurisprudence on the subject.[8] The issue came up for debate in the High Court case of Kuczborski v Queensland.[9] The decision’s implications proved ominous to motorcycle enthusiasts but it meant that individuals deemed outside the law have become, in a sense, a focal point of protecting liberties within it. Lawless agents, in short, have become, important contributors to disputes over civil liberties and public interest litigation. From the margins of self-proclaimed freedom, Australia’s marginalised bikies have moved to the centre of the civil rights milieu, articulating the dangers involved in undermining the rule of law.

This piece, to that end, describes that legal cultural transformation, effectively the emergence of a distinct pedigree of “bikie activism” in Australia, and argues that the bikie argument has far greater implications for Australian liberties than the specifics of gang culture, or even its purported criminality. In its broadest sense, the bikie argument brings into play a serious overplaying of suspicious state regulation at the expense of freedom of association.

Bikie culture and legislative emergency

Australian bike culture itself paralleled, to a large extent, American models, though it was always heavily reported as a recreational variety exploiting Australia’s vast natural geography. Visits to such sites as the Yarrangobilly Caves are noted in local papers, with the reassuring note that no “incident” was reported.[10] Even prior to the Second World War, Australian newspapers are filled with descriptions of its extensive motorcycling culture, emphasising a club atmosphere of racing events, competitions and engagements.[11] They come, as they are bound to, with the usual risks, regrettable fatalities and speculations on the part of authorities how to regulate it.

Home grown variants of the spicier American pedigree sprouted up with the Gladiators in Sydney (1963), while US clubs also founded Australian chapters. The Hells Angels did so in Melbourne and Sydney in 1969. As with their American equivalents, Australian bikies would position themselves as “the last free people in society”, operating outside the rules of legislatures and the tedious wishes of authorities. “We are the modern day heroes, like Ned Kelly,” noted an Australian Hell’s Angel member, linking the emancipation of the motorcycle with the rebellious spirit of Irish bushranging.[12] “Mr Average would be happy being told by the government what to think, when to drink, when to fuck. That’s not us.”[13] In response, they have cultivated an intense, rule-based system, violation of which brings with it consequences of varying severity.[14] They also provide a social refuge, an antidote to alienation. In the words of Melbourne youth crusader Les Twentyman, their popularity is put down, in part, to the structure of brotherhood itself: “if you are disconnected and can’t find a job, you’re going to be protected because you’re in this group and they are going to watch your back.”[15]

The negative image of the free-spirited bikie did not take long to become a conspicuous target on the policy landscape. Motorcycle enthusiasts were initially prevented from using grounds. Facilities were circumscribed in favour of less disruptive pastimes. An irate letter to the Canberra Times in 1970 took issue with the specific targeting of bikie culture, erroneously associated with the “long-haired bikies” generally sponsored by “the fund-raising activities of the Hollywood film industry, rather than by personal observation.”[16] The letter was prompted by moves depriving motorcycle clubs of their sports arena in the Canberra environs. While yachtsmen were given use of the shore of Lake Burley Griffin, and hockey players the use of facilities without the harassment of officialdom, the motorcycle enthusiast had been singled out, despite an immaculate safety record and healthy vision of life.

The violent streak did eventually make its spectacular appearance in police reports and news headlines. Much was made of such incidents as the Milperra Massacre in 1984, involving firearm exchanges between the Comancheros and former members who had split to form the Bandidos Motorcycle Club. Six men and a 14-year-old girl died from inflicted wounds. The NSW Premier, Neville Wran, promised an extension of police powers after the incident, while also tightening gun laws. “The proposed new gun laws for NSW,” editorialised the Canberra Times, “appear eminently sensible.”[17] The police control over gatherings was, however, treated with greater caution. Defining a dangerous or offensive gathering was nigh impossible, a situation that would lead to a violation of civil liberties. And for all that, bikie gangs did not quite come near in their violence as the anti-social razor gangs of the 1920s, which saw Sydney’s suburbs bloodied by skirmishes of underworld figures.[18]

Wran’s response was something the NSW president of the Council for Civil Liberties, John Marsden, deemed a “knee-jerk reaction”. “While we abhor what happened at Milperra, the increased police powers would have done nothing to prevent it.”[19] Foreshadowing future problems with such broadening of powers, Marsden noted that the application of consorting laws would extend beyond the bikie groups. Had they been in place at the time, they could have been used “against members of his [Mr. Wran’s] own party who took part in demonstrations during the Vietnam War.”[20] Ironically, it was precisely such incidents that saw, not so much a diminishing of their appeal but an increase in interest.[21]

The Queensland “bikie” crisis was similarly drawn out as one of existential “emergency”. Police correspondence in the form of a disclosed email, according to the Queensland Police Union, proved grim. “Government considers that we–the Qld Police Service Senior Executive–have failed to adequately and professionally respond to this matter–consider this in all your communication and thinking.” The police forces had found it pressing to consider the issue of motorcycle gangs and law enforcement as “a crisis” comparable to terrorism. There was, to that end, one clear mission: “to rid Queensland of motorcycle gangs […] to be achieved in conjunction with normal business, priorities and the current change process”. Those working for the police had to consider their options in what was nothing short of an ideological crusade: “if this is not personally acceptable to you, consider your future with the QPS.”[22]

The Queensland media, as a result, produced a profusion of “operational police stories” heavily flavoured with QPS media releases. The message seemed to have an inner tension: successful operations on the one hand were mentioned in the same breath as the pressing threat posed by bikies, one that seemingly refused to abate. Prior to the election, the anti-gang laws were said to have netted 1700 “criminal gang participants” despite Right to Information data showing only 900 gang members in Queensland in 2013.[23]

Murdoch papers such as the Courier-Mail expressed unqualified and unabashed support for “the crackdown on outlaw bikie gangs, reflecting genuine fear among Queenslanders who were terrorised by these thugs acting like they ran the state.” The editor had little time for the “ramblings of absurdly conflicted civil libertarians and bikie groups”.[24] Unsurprising, then, to find that coverage run on the gangs in that paper and its New Corp companion The Sunday Mail, featured police opinion and analysis in 60 percent of instances, as to non-police sources amounting for a mere 20 percent.[25]

Legal activism: Bikies and the High Court

Central to targeting bikie culture has been the pre-emptive dimension of control. Bikies have, along with other marginalised members of the committee (sex offenders, terrorist suspects) become the subject of preventive orders. Organised crime laws passed at the state level in 2009 attempted to enshrine this principle of anticipated criminality.[26] Legal analysis here suggests that the Australian High Court has been instrumental in allowing such “pre-crime” schemes to take effect.[27] This has effectively undermined the cardinal principle of the separation of judicial power from the executive drive to detain individuals, as the “involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.”[28]

The Kable case affirmed that targeting an individual by means of a protective justification, detaining him indefinitely on the mere probability that acts of serious violence might be committed, could not be justified. Effectively, the courts were being asked to serve the executive’s functions, something which compromised judicial independence.[29] Unfortunately, Kable was duly limited in its scope by what effectively became a jurisprudence of control. As the progressive High Court Justice Michael Kirby would ruefully remark, the case proved to be “a constitutional guard-dog that would bark but once.”[30] Even case law challenging the South Australian Serious and Organised Crime Control Act in South Australia provided only qualified acceptance that such regulations exceeded executive power.[31]

The case of Kuczborski was, however, a severe blow. It proved significant on various levels in demonstrating how Kable, and effectively the claims by bikies and similarly targeted “pre-crime” groups, had been muzzled. The case signalled a concerted challenge by a plethora of biking organisations to the validity of a range of laws made by the Newman government. It also incorporated various narratives of liberties, of which the bikies formed the constituent part.

The challenge was mounted by Stefan Kuczborski of the United Motorcycle Council (UMC), on behalf of 17 Queensland clubs. The parties were attempting to overturn the VLAD laws on the grounds that the legislative scheme, in targeting the 26 outlaw motorcycle clubs in question, constituted an attack on freedom of association and the integrity of the Queensland court system. Of particular concern were the insertions into the Criminal Code by the Tattoo Parlours Act 2013 (Qld), covering participants in a “criminal organisation”, and those wearing symbols of membership of a “declared criminal organisation”. Furthermore, the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld), set out mandatory minimum penalties while increasing the maximum penalties across a range of existing offences for individuals proven to be a “participant in the affairs of an association”.

The Queensland government, in response, cited the safety of the community as paramount, and had the support of the attorney-generals in five states, the territories and the Commonwealth. Australia’s entire law enforcement network had been effectively mobilised against the bikie phenomenon. The High Court, by majority, ruled against Kuczborski, claiming that there was no standing to seek a declaration that the laws were incompatible with the institutional integrity of the Supreme Court of Queensland.

Kuczborski’s argument was firstly a technical one, framed along the lines of Kable. The High Court was not convinced that the Kable test had been made out in this instance, noting that even such a hardline policy as that taken against the bikies did “not mean that the court’s enforcement of those laws is incompatible with its institutional integrity”.[32] The plaintiff’s argument, in other words, was simply too broad in suggesting that the courts had effectively become the policy making arm of government.

Part of the High Court’s justification for taking such a stance lay in reasoning which diminished the exceptionality behind the case–that it involved a targeted, legally designated set of individuals who had provoked the ire of Queensland’s legislators. Cases such as Australia Conservation Foundation Inc v Cth[33], narrow what interests will be claimed suitable to sue upon. In the words of Justice Mason, “an interest, for present purposes, does not mean a mere intellectual or emotional concern”. In his words, “satisfying a right or a wrong, upholding a principle or winning a contest”, are insufficient considerations.[34] This conservative definition was accepted by the four member majority in Kuczborski.[35]

The judges failed to see how the plaintiff was distinguishable “from that of any member of the public who is a participant in the affairs of any association.” He and his co-plaintiffs had no “real interest in the subject matter of the proceedings which exceeds that of a member of a general public”.[36] Much of this was because the declared offences were assumed to have been valid to begin with.

Effectively, the High Court in Australia was determining the extent a group of citizens, targeted by a set of executive rules formulated as legislative acts, might be permissibly prosecuted. In ruling in favour of the government on the issue, the judges inflicted a significant blow to public interest and civil liberty litigation. The bikies, in so being treated, were effectively clarifying a vital aspect of public interest challenges: to what extent can citizens challenge laws that impugn liberties without directly damaging people in question at first instance? By effectively dismissing such standing, a good argument can be made that the bikies became legal martyrs.

It is hard to see what Kuczborski could have done short of actually committing an act in violation of the VLAD laws, and being convicted as a result. The suggestion by the judges was that one can only appeal after the fact. Chief Justice French did concede that the “risk” factor for the plaintiff may well have been greater than other members of the public, suggesting a troubling evasion of the issue. But overall, he would not be swayed. “The risks so based should not be accepted as founding a sufficiently concrete claim for declaratory relief”.[37]

The failure of such a challenge resembles other jurisprudence that favours intrusive legislation that cannot be invalidated on the ground of hypothetical damage. Hypothetical scenarios can’t ground remedies–courts tend to prefer concrete, verifiable damage before plaintiffs take up the case before the bench. Such reasoning invariably suspends hopes that broader, more detrimental laws can be rendered invalid. By way of illustration, the US surveillance case of Clapper v Amnesty International USA (2013), the plaintiffs could not show to the court’s satisfaction that the secret wire tapping of US citizens under the FISA (Foreign Intelligence Surveillance Act) Amendments Act of 2008 had, in fact, inflicted “real, and unavoidable injury”.[38] Amnesty International USA and the various joined applicants could not demonstrate to the court’s satisfaction “an objectively reasonable likelihood that their communications with their foreign contacts” would be intercepted.

Victims and protectors

Commentators rallied around the bikers, seeing their concerted targeting by the Queensland government as a disturbance of the rule of law. Back in 2009, with new South Australian legislation similar in spirit to the Queensland model in place, the chairman of the National Human Rights Consultation Committee Frank Brennan observed that, all bikies “have human rights.” Rather feebly, he would consider, without exactly specifying how, “Someone has to weigh individual rights and the common good in the balance.”[39]

According to barrister and civil liberties defender Greg Barns, the bikie laws of the Newman government did not chip so much as shred the rule of law altogether. The bikie gangs were becoming, in effect, the talismanic reference points for liberties more broadly speaking, agents requiring protection, despite certain criminal pasts. Being forbidden from even seeing the evidence marshalled against them, bikie groups and their legal representatives were told that a criminal organisation public interest monitor would suffice. For Barns, scrutiny of the content of the laws was minimal–Queensland lacked an upper house of review. The very language of the Vicious Lawless Association Disestablishment Bill was deemed “Orwellian”.[40]

Barns also had an eye for pools of corruption forming in the wake of such provisions as provided by the Tattoo Parlours Act. Its primary aim of closing down tattoo parlours because such venues might be used for criminal purposes would constitute a cover, posed Barnes, for institutional criminality. “Like other pieces of legislation built on the premise of prohibition this one could lead to police taking bribes in exchange for turning a blind eye.” [41]

Sinister overtones were also noted in the philosophy of detention once bikie members were convicted. In a manner reminiscent of the legal exceptionality practiced in such prisons as that of Guantanamo Bay, bikies were going to be kept in a specifically designed compound adapted to their specific circumstances. Such conditions, fumed Barnes, “offend against Australia’s international human rights obligations such as the Minimum Standards on the Treatment of Prisoners.” [42]

The newly appointed human rights commissioner, Tim Wilson, having held the post of director of the conservative Institute of Public Affairs for seven years, argued that, “Bikies have just as much right to freely associate as other Australians.” Being inconsistent with such a right, the laws needed to be repealed. Freedom of association was not going to be trampled upon to make the “job of the police easier to investigate.” [43]

The secrecy element behind Bleijie’s approach added succour to arguments of authoritarian inspiration. “Queenslanders may never know why 26 bikie gangs have been declared criminal organisations.” [44] Police evidence and criminal histories would be relied upon in making the declaration, but these were not up for scrutiny. Making them public, argued the attorney-general would probably “jeopardise police operations or public safety.”[45] The lack of any requirements to produce reasons for designating a bike group criminal troubled the veteran Australian Council for Civil Liberties President, Terry O’Gorman. “There’s nothing stopping him declaring any group a criminal organisation, and we have no clear reason.”[46] Furthermore, relevant associations so outlined in the VLAD Act do not have to be criminal bikie organisations, namely, the designated 26 on the Queensland Police Service list. They could include “any corporation, unincorporated association, club or league, or group of three or more persons.”[47]

The courts had, effectively, been circumvented, becoming mere instruments of government policy. “In our adversarial system of law,” noted University of Sydney’s Greg Martin, “if someone makes an allegation against you, you can challenge it in court. But if you don’t know what the allegation is, how can you defend yourself?”[48]

Punishing the bikie groups became a powerful statement of encroaching tyranny, a leitmotif of totalitarian paranoia. “The bill, some lawyers say, is so widely framed that it could lead to prosecutions for over-exuberant family gatherings.” [49] It also led to the Newman government proposing to target parties–defined as a gathering of 12 or more people who could be fine up to $A12,000 if three or more guests “interfere with the public,” by way of using offensive language or littering. [50]

The flavour of such laws has a predictable reflect on the legal and civil liberties cognoscenti, who found it appropriately sinister that such laws should be passed in Queensland, with a political culture suspicious of minorities and marginal groups. In being targeted, the bikies were also bringing forth reflections about overreaching powers and enthusiastic followers of the authoritarian state. Articles noted the historical context of “Deep North” Queensland, which had been historically ruled “with an iron fist by a colourful, far-right politician, Sir Joh Bjelke-Petersen, who enforced a repressive law-and-order regime” keen on crushing dissent with police state enthusiasm.[51]

In such troubled soil, a populist agenda could be revived, one that involved an assault on the judiciary, and an attack on the anti-corruption body, the Crime and Misconduct Commission. The assault on bikies constituted, effectively, a return to those “dark days of political caprice and corruption,” to cite the words of former corruption investigator Tony Fitzgerald, one designed to garner “redneck” votes within the mindset of a “one-party state”.[52]

Gary Crooke, QC, who had been senior counsel assisting the Fitzgerald Inquiry which had been instigated to investigate claims of institutional corruption at the end of the 1980s in Queensland, was colourfully hyperbolic. He found the laws “reminiscent of Soviet Russia or Hitler’s Germany.” Queensland, it was surmised, produced the populists, the reactionaries, the politically stunted. Queensland, argued Crooke, “seems to be a sort of a breeding ground for rednecks.”

Examples do exist of unnecessary implication, with bystanders caught in the prosecutorial net. As one anonymous bikie noted, “They are just against the social structure of Australia. You should be able to talk to who you want, visit who you want.”[53] In 2014, David Chung was arrested and charged under the VLAD provisions after being caught up in a drug-trafficking raid on a restaurant. He was a non-club motorcycle rider without a previous criminal record or formal connection with the gangs present on the premises. The fact that one is seen associating with two members of a targeted gang is sufficient to trigger the laws.[54]

It was, however the case of the “Yandina Five” which gave politicians, and activists, troubling food for thought. The case involved the arrests of several Rebel bike members and was precipitated by a hapless Joshua Carew, who was arrested when delivering a pizza to the Yandina hotel on the Sunshine Coast in November 2013. Having taken a pizza from Pizza Max, part owned by Carew, the deliverer greeted members of his family at the hotel in question who so happened to be members of the Rebels motorcycle gang. In court documents, he explained that he never owned a Harley-Davidson, attended club functions or ridden with a motorcycle gang.

Other members of the Five included Steven Smith, his brother Scott Conly, step-brother Dan Whale, and Paul Lansdowne. The incident prompted Independent MP Peter Wellington to attend a protest against the VLAD laws outside the Maroochydore Court. Being initially enthusiastic about its passage, he worried that the legislation could be used to prevent “ordinary Queenslanders visiting a relative in hospital, going to a funeral or going to a wedding.”[55] In February 2014, two more were added to the list, bringing the total to seven. The best police could come up with was the discovery of gang “paraphernalia” at the homes of the two men, which showed, in the words of Taskforce Maxima Detective Inspector Brendan Smith, the QPS “commitment to disrupting the criminal activities of these gangs, with the goal of driving them from Queensland.”[56]

The inconsistent achievements arising from such arrests did not deter the chief press defender of the VLAD laws from issuing smug dispatches about the “gang past” of the Yandina five. One article in The Courier Mail goes so far as to note, without necessarily illuminating any current legal problems, the past of the members. Central to this was Rebel membership, which was deemed the truly inculpating issue.[57]

Despite formidable press support, padded and nursed by police press releases, the response to the bikie laws stimulated a spate of grassroots activism. The specific targeting of a group by the legislature and executive proved ominous. A political party, the Motorcyclists Australia Party, with its founding president Paul Keyworth, attempted to broaden political resistance to the measures. The brunt of their opposition lay in targeting overzealous regulation–at least of the heavy-handed variety. This, argued Keyworth, was “Nanny-Statism” run wild. The party constitution underscored the MAP’s mission to seek a change in the three tiered government system.

Keyworth, however, faced considerable trouble getting the required committee numbers, despite reaching the requisite 500 signatures required to create the party.[58] Within bikie resistance to such laws came scepticism, if not fear, that taking the political route would somehow normalise radical behaviour. Such club types were to resist the pull of the mainstream, idealising the social periphery. A questioning Mark Hinchliffe hoped that bikies were resisting the urge to become more political. “One of the best things about a ride is leaving all that behind us and just enjoying the freedom of the road and the camaraderie of good mates.”[59]

Despite such sectarian concerns, the MAP’s platform reverberated far beyond the specific dimension of bikie control and preventive punishment. A Facebook group titled Free the Yandina Five attracted over 15,000 “likes” and continues to have an active following with regular posts and discussions about law reform.[60]

Physical demonstrations off the social media space have also taken place. A gathering of 2000 in January 2014 found voice at Brisbane’s Emma Miller Place, a park named after a pioneer suffragette and unionist who had campaigned on a “one adult, one vote” platform in the early twentieth century. Assembled protesters demanded the release of the “Yandina Five.”[61] Rallies took place in King George Square, Brisbane, a month later, numbering 400 strong, claiming this to be a return to the days of the authoritarian “Joh” administration. Aboriginal activist Sam Watson provided a curious, if somewhat contradictory spectacle of resistance, waiving the American Confederate flag as a “nod” to the Rebels Motorcycle Club.[62] In O’Gorman’s fighting, and warning words, simply finding drugs on a bikie would not merely lead to a fine, but a jail sentence of 15 years.[63] Club office bearers faced mandatory jail periods of 25 years. “A paedophile gets less!” interjected a protester.[64]

Collectives also issued invitations to debate the issue and gathered an assortment of activists. The Cloudland Collective, in February 2014, hosted an assortment of speakers in Brisbane filled which highlighted how the issue of bikie liberties had been transcended. It included the established civil rights lawyer Stephen Keim SC, known for his defence of Dr. Mohammed Haneef on wrongful terrorism charges in 2008, while also featuring Bob Carnegie, a community and self-touted working class activist, and Debbie Kilroy, a prisoner advocate and CEO of Sisters Inside.[65]

We are all bikies now

With the defeat of the Newman government, the succeeding Labor Government announced replacement laws for the VLAD legislation, though its own previous proposals had done little to dispel the tyrannous temptations of government control. In April, it was reported that 30 people still faced charges under the various laws. “Just because its constitutional,” observed the new attorney-general Yvette D’Ath, “doesn’t make it a good law.”[66] Organised crime, argued the Labor Leader Annastacia Palaszczuk, was not merely a case involving bikies alone, but was more “holistic” in its operation.[67] In the meantime, the case of the now enlarged Yandina Seven has been delisted pending the completion of the review.[68]

The new government, whose members had shown mixed reactions to the VLAD regime, proved cautious, with D’Ath announcing a commission of inquiry costing $A6 million running parallel to a task force consisting of members of the Law Society, Bar Association and Queensland Police Union.[69] “One of the directives of the taskforce will be to look at developing a new chapter to go into the criminal code that will create penalties for the most serious organised crime offences that will carry up to a life sentence.”[70] It is anticipated that the legislation will be drafted and introduced at the end of the year.[71]

The treatment of Australia’s motorcycle clubs reveals the extent the state has intruded into general liberties, using law and order as the cudgel of policy. Poorly drafted laws have meant that the bikies, while being singled out as criminal figures, have become talismanic targets of a more dangerous tendency in the expansive state. Even more troubling, such measures have been given approval by the country’s highest tribunal, thereby justifying shoddy executive discretion and judicial compliance. Such rulings have further weakened public interest litigation whilst deferring authority to the executive.

As the CEO of Liberties Australia explained, bad laws tend to suffer from punitive spread and invidious scope. The statutes “criminalise the innocent, and demean all citizens of a state because they involve the abuse of state power to legislate. When the state over-legislates, we are all diminished.”[72] This has meant, somewhat ironically, that Australia’s motorcyclists have become citizen activists, keen to express a high octane, stubborn version of freedom on the one hand, while embracing a far more orthodox, mainstream view of liberty. The brittle nature of such freedoms has become all too apparent, lending merit to the idea that we are all, irrespective of our association with motorcycles, bikies now.


Works cited

Case law

Baker v R (2004) 223 CLR 513.

Chu Keng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.

Clapper, Director of National Intelligence, et al v Amnesty International USA et al 568 US 2013

Kuczborski v Queensland [2014] HCA 46

Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA)(1995) 183 CLR 552.

Legislation

Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld).

Crimes (Criminal Organisations Control) Act 2009 (NSW).

Police Powers and Responsibilities and Another Regulation Amendment Regulation (No. 1) 2013 (Qld).

Serious and Organised Crime (Control) Act 2008 (SA)

Tattoo Parlours Act 2013 (Qld)

Vicious Lawless Association Disestablishment Act (VLAD) 2013 (Qld)

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The Editor (2014) “Premier Campbell Newman has delivered real results for Queensland,” The Courier Mail, Dec 15.

Veno, Arthur and Edward Gannon. (2009) The Brotherhoods: Inside the Outlaw Motorcycles Clubs, 3rd ed. Sydney: Allen & Unwin.

Veno, Arthur. (2009) “Taming the beast: inside bikie culture,” The Drum, Apr 3, http://www.abc.net.au/news/2009-04-03/30480.

Vogler, Sarah. “Attorney-General Yvette D’Ath seeks removal of mandatory sentencing from controversial VLAD bikie laws,” The Courier Mail, Feb 18, 2015.

Waters, Kim. (2015) “Bikie speaks about laws, says club members are good blokes,” Daily Mercury, Feb 15.

Notes

[1] Arthur Veno, “Taming the beast: inside bikie culture,” The Drum, Apr 3, 2009, http://www.abc.net.au/news/2009-04-03/30480.

[2] Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld); Tattoo Parlours Act 2013 (Qld); Vicious Lawless Association Disestablishment Act (VLAD) 2013 (Qld); Police Powers and Responsibilities and Another Regulation Amendment Regulation (No. 1) 2013 (Qld).

[3] ABC News, “Queensland Police declare crackdown on bikies after massive Gold Coast brawl,” Sep 29, 2013.

[4] Human Rights Law Centre, “High Court upholds Queensland ‘anti-bikie laws’,” Nov 14, 2014, http://hrlc.org.au/high-court-upholds-queensland-anti-bikie-laws/; and amendments to the Criminal Code 1899 (Qld).

[5] Terry Goldsworthy, “Crime stats provide reality check in Queensland’s bikie crackdown,” The Conversation, Sep 1, 2014. For discussions of the Strategic Monitoring Team, so to: http://mypolice.qld.gov.au/blog/2013/12/06/strategic-monitoring-team/.

[6] ABC News, “Queensland Police declare crackdown on bikies after massive Gold Coast brawl,” Sep 29, 2013.

[7] Kristina Silva, “Public Relations company hired by motorcycle council threatens to sue government,” Brisbane Times, Jan 24, 2014.

[8] For an overview, see Binoy Kampmark, “The Temptations of Demagoguery: The Newman Government’s Bikie Laws,” Rule of Law Institute of Australia, Nov 4, 2013, http://www.ruleoflaw.org.au/temptations-of-demagoguery/.

[9] [2014] HCA 46, available at http://www.austlii.edu.au/au/cases/cth/HCA/2014/46.html.

[10] The Murrumbidgee Irrigator, “Motorcyclists Ride to Mountains,” Sep 16 1949, 4.

[11] See, for instance, The Telegraph (Brisbane), “A Busy Month Ahead For Local Motorcyclists,” Sep 7, 1936, 8; “High Gear”, “Motorcyclists Keen on Trial; Prize Money Allotted,” The Telegraph (Brisbane), Mar 18, 1935, 20.

[12] After Australia’s famed bushranger who was convicted for horse theft and murder of police officers but celebrated as a proto-nationalist figure.

[13] Noted in Arthur Veno and Edward Gannon, The Brotherhoods: Inside the Outlaw Motorcycles Clubs, 3rd ed (Sydney: Allen & Unwin, 2009).

[14] Arthur Veno and Edward Gannon, The Brotherhoods: Inside the Outlaw Motorcycles Clubs, 3rd ed (Sydney: Allen & Unwin, 2009).

[15] Blanche Clark, “Bikies tell why they’ve been lured to join Australia’s growing ranks of outlaw motorcycle gangs,” Herald Sun, Jun 26, 2014”

[16] C. J. Shepherd, “Banning Bikies,” Letters to the Editor, The Canberra Times, Jul 4, 1970, 2.

[17] Editorial, “Tightening Gun Laws,” The Canberra Times, Sep 11, 1984, 2.

[18] See NSW Gallery Records, Tilly Devine & the Razor Gang Wars, 1927-31, at http://gallery.records.nsw.gov.au/index.php/galleries/people-of-interest/tilly-devine-the-razor-gang-wars-1927-31/.

[19] The Canberra Times, “‘Overreaction’ to bikie massacre,” Sep 6, 1984, 8.

[20] The Canberra Times, “‘Overreaction’ to bikie massacre,” Sep 6, 1984, 8.

[21] Clark, “Bikies tell why they’ve been lured to join Australia’s growing ranks of outlaw motorcycle gangs.”

[22] Rowlings, “Bikie laws criminalise innocents in Qld.”

[23] Goldsworthy, “The revealing facts on bikie laws and crime in Queensland.”

[24] The Editor, “Premier Campbell Newman has delivered real results for Queensland,” The Courier Mail, Dec 15, 2014.

[25] Goldsworthy, “The revealing facts on bikie laws and crime in Queensland.”

[26] Serious and Organised Crime (Control) Act 2008 (SA); Crimes (Criminal Organisations Control) Act 2009 (NSW).

[27] Andrew Lynch, “Terrorists and Bikies: The Constitutional License for laws of control,” Alternative Law Journal 34, 4 (2009): 237-242, 237.

[28] Chu Keng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 27 per Brennan, Deane and Dawson JJ.

[29] Kable v DPP (NSW) (1996) 189 CLR 51, at 103 (Gaudron J); 114 (McHugh J) and 139 (Gummow J).

[30] Baker v R (2004) 223 CLR 513, 535.

[31] See Totani v South Australia [2009] SASSC 301.

[32] Kuczborski, at 220.

[33] (1980) 146 CLR 493.

[34] Kuczborski, at 530.

[35] Kuczborski, at 177.

[36] Kuczborski, at 177.

[37] Kuczborski, at 19.

[38] Clapper, Director of National Intelligence, et al v Amnesty International USA et al 568 US 2013 at 8-24. http://www.law.cornell.edu/supremecourt/text/11-1025.

[39] Frank Brennan, “Human rights are there for bikies, too,” The Age, Apr 6, 2009.

[40] Greg Barns, “Queensland’s ‘war’ on bikie gangs goes too far,” The Drum, Oct 16, 2013.

[41] Greg Barns, “Queensland’s ‘war’ on bikie gangs goes too far,” The Drum, Oct 16, 2013.

[42] Barns, “Queensland’s ‘war’ on bikie gangs goes too far.”

[43] Catherine Armitage, “New human rights commissioner Tim Wilson calls for bikie laws repeal,” The Age, Jan 9, 2014.

[44] Marty Silk, “Bikie evidence to be secret forever,” Brisbane Times, Jan 15, 2014.

[45] Silk, “Bikie evidence to be secret forever.”

[46] Silk, “Bikie evidence to be secret forever.”

[47] Anna Cappellano, “Are you a Vicious Lawless Associate?” Independent Australia, Nov 8, 2013.

[48] Silk, “Bikie evidence to be secret forever.”

[49] Kathy Marks, “Australian State of Queensland Adopts Populist, Hard-Line Laws ‘Reminiscent of Soviet Russia and Hitler’s Germany’,” The Independent, Jan 5, 2013.

[50] Marks, “Australian State of Queensland Adopts Populist, Hard-Line Laws ‘Reminiscent of Soviet Russia and Hitler’s Germany’.”

[51] Marks, “Australian State of Queensland Adopts Populist, Hard-Line Laws ‘Reminiscent of Soviet Russia and Hitler’s Germany.’”

[52] Marks, “Australian State of Queensland Adopts Populist, Hard-Line Laws ‘Reminiscent of Soviet Russia and Hitler’s Germany.’”

[53] Kim Waters, “Bikie speaks about laws, says club members are good blokes,” Daily Mercury, Feb 15, 2015, http://www.dailymercury.com.au/news/personal-look-into-impact-of-states-new-bikie-laws/2171363/.

[54] Amos, “Are Australia’s Anti-Bikie Laws Good for Crime Fighting or an Abuse of Power?” Ride Apart, Jul 8, 2015.

[55] Michael Madigan, “Police grilled pizza delivery guy not outlaw, claims lawyer in ‘Yandina Five’ case,” The Courier Mail, Jan 7, 2014.

[56] Kristian Silva, “Yandina Five becomes Yandina Seven,” Brisbane Times, Feb 13, 2014.

[57] John Robertson, “Gang past of Yandina Five revealed,” The Courier Mail, Jan 16, 2014.

[58] Mark Hinchliffe, “Motorcyclists Australia Party stalls,” Motorbike Writer, Dec 12, 2013.

[59] Mark Hinchliffe, “Turning the party into politics,” Motorbike Writer, Oct 10, 2013.

[60] Free the Yandina Five–Power to the People, https://www.facebook.com/yandina5.

[61] Amy Remeikis, “2,000 strong protest against Qld bikie laws,” Sydney Morning Herald, Jan 26, 2014.

[62] Cameron Atfield, “Hundreds protest Queensland’s anti-bikie laws,” Brisbane Times, Feb 11, 2014.

[63] Atfield, “Hundreds protest Queensland’s anti-bikie laws”; Vicious Lawless Association Disestablishment Act 2013 (Qld), s. 7(1)(b).

[64] Atfield, “Hundreds protest Queensland’s anti-bikie laws.”

[65] Law & Justice Institute, “Taking Liberties: ‘Punitive Populism’ and the Neo-Liberal Agenda of the Newman Government,” Cloudland Collective, 27 February 2014, Harp Room, Qld Irish Club. http://ljiq.asn.au/2014/02/24/taking-liberties-punitive-populism-and-the-neo-liberal-agenda-of-the-newman-government/.

[66] Nancy Haxton, “Queensland Attorney-General to replace anti-bikie laws,” PM (ABC), Feb 17, 2015, http://www.abc.net.au/pm/content/2015/s4181821.htm.

[67] ABC News, “Replacement VLAD ‘anti-bikie’ laws expected by end of 2015, Queensland Attorney-General Yvette D’Ath says,” Radio 612 ABC, Feb 17, 2015, http://www.abc.net.au/news/2015-02-17/taskforce-to-have-replacement-vlad-laws-by-end-of-year/6126626.

[68] Janine Hill, “Yandina Seven hearing postponed indefinitely pending review,” Sunshine Coast Daily, Jun 19, 2015.

[69] Department of Justice and Attorney-General, Taskforce into organised crime legislation 2015, Last reviewed Jun 15, 2015, http://www.justice.qld.gov.au/taskforce-into-organised-crime/terms-of-reference.

[70] Quoted in Sarah Vogler, “Attorney-General Yvette D’Ath seeks removal of mandatory sentencing from controversial VLAD bikie laws,” The Courier Mail, Feb 18, 2015.

[71] ABC News, “Replacement VLAD ‘anti-bikie’ laws expected by end of 2015, Queensland Attorney-General Yvette D’Ath says,” Radio 612 ABC, Feb 17, 2015, http://www.abc.net.au/news/2015-02-17/taskforce-to-have-replacement-vlad-laws-by-end-of-year/6126626.

[72] Bill Rowlings, “Bikie Laws Criminalise Innocents in Qld,” Civil Liberties Australia, Oct 28, 2013.

Image Attributions
[Fig.1] Cartoon caption, noted in Andrew Lynch, “Terrorists and Bikies,” Alternative Law Journal 34, 4 (2009), at 241. http://www.austlii.edu.au/au/journals/AltLawJl/2009/69.html.
[Fig.2] Motorcycle jacket with the No Club patch image courtesy of Sheila Malone, IJMS.


Dr. Binoy Kampmark is a Senior Lecturer in the School of Global, Urban and Social Studies at RMIT University, Melbourne. He was a Commonwealth Scholar at Selwyn College, Cambridge, and is a contributing editor to CounterPunch.

Email: bkampmark[AT]gmail[DOT]com

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