Queensland's new bike laws do away with the notion of innocent until proven guilty which could lead to arbitrary detentions and an undermining of the independence of the judiciary.
Amnesty is concerned prosecutions under the new Queensland bikie laws
fail to meet international fair trial standards.
The laws give mandatory sentences of up to 25 years in addition to a standard sentence where a person is accused of being a member and/or officer of a criminal association.
“The laws passed are aimed at cracking down on ‘outlaw bikie gangs’ but potentially affect a wider group of people, including those that aren’t affiliated with bikie groups, something the Queensland government has failed to acknowledge,” said Michael Hayworth, Amnesty International Australia spokesperson.
“We share concerns already voiced by the Queensland Law Society, Australian Lawyers for Human Rights and Queensland Council for Civil Liberties."
Broad laws cover all associations not just bikies
“One of the major issues we have is the language of the Act is so broad that in Amnesty International’s experience, they are open to abuse,” said Hayworth.
The laws focus on associations of people which include corporations, unincorporated associations, clubs or leagues or any other group of three or more people whether the group is legal or illegal.
Covering more than just ‘bikie gangs’ the laws define people as ‘participants’ in associations where they are a member, sought to be a member, attended more than one meeting or participated in any other way in the affairs of the association.
There is no mention of bikes or criminal activity in the definition of association.
A participant is deemed to be a ‘vicious lawless associate’ when they commit a declared offence while they are participating in the association.
The laws reverse the burden of proof, forcing those accused of being ‘vicious lawless associates’ or ‘office bearers’ of the association to prove that they are not participants in criminal associations. This severely undermines the right to be presumed innocent until proven guilty that all Queenslanders enjoy.
The difference here is that the individual must prove that the association doesn’t exist for the purposes of engaging in declared criminal offences.
A ‘vicious lawless associate’ is then sentenced to 15 years jail on top of the sentence they receive for the declared offence.
If the person is an officer of the association and cannot prove otherwise they are liable to a further ten years.
Guilty until proven innocent?
“The laws reverse the burden of proof, forcing those accused of being ‘vicious lawless associates’ or ‘office bearers’ of the association to prove that they are not participants in criminal associations,” Hayworth said.
“This severely undermines the right to be presumed innocent until proven guilty that all Queenslanders enjoy.”
The combination of the broad definitions and the requirement for the accused to prove their innocence makes any sentence under these new laws fundamentally unfair .
“Along with a right to be presumed innocent until proven guilty, everyone has the right to liberty. But these laws turn this concept upside down.”
This means the state can only put someone in prison (and therefore remove their liberty) when they have proved beyond a reasonable doubt that that person is guilty of a recognized criminal offence.
The changes to the bail laws mean that courts have little option but to refuse bail to those accused of participating in criminal organisations, unless the person demonstrates reasons that they should not be in jail.
“There are two problems here: (1) the burden of proof is reversed, meaning the accused person has to prove they should not be in custody rather than the state proving they should be in jail; and (2) people have the right not to be in prison, even before a trial, unless it is proven to be necessary,” Hayworth warned.
Pre-trial detention under these circumstances could potentially be arbitrary and inconsistent with the most basic standards of human rights law.
Interference with the judiciary
“The unfairness of trials, arbitrary detention and attacks on the presumption of innocence are not the fault of the courts. They are a direct result of the government’s attempts to crack down on criminal associations.
“These laws and the government’s statements on cases before the courts represent a significant overreach of parliamentary and executive power.
“Amnesty International is calling for the legislation to either be reversed or completely overhauled to address these serious breaches of human rights,” Hayworth added.