In the following post, barrister Anna Cappellano discusses the effect of the state government’s recent Vicious Lawless Association Disestablishment Act 

The Vicious Lawless Association Disestablishment Act 2013 (“VLAD”) was the first piece of the Queensland Government’s controversial anti-bikie legislation.[1]

What does the VLAD Act do?

The VLAD Act is an unprecedented mandatory sentencing regime. It provides that people who are defined as “vicious lawless associates” will automatically have to serve 15 years in prison in addition to their standard sentence.[2]  If they are deemed to be an officer bearer of the relevant association, they will automatically be required to serve 25 years in custody in addition to their standard sentence.[3] The mandatory additional sentence of 15 or 25 years imprisonment must be imposed even if the person is not sentenced to a period of imprisonment for the original offence.

Unless the person becomes an informer, they are not eligible for parole during the additional sentence and accordingly will have to serve the entire 15 or 25 years in custody.

Relevance to “Bikies”

The recent anti-bikie legislation, including the VLAD Act, has been sold to the public as a necessary piece of legislative artillery in the Queensland Government’s “war on bikies”.  In the first week post the introduction of the Bills, the government has spent close to $800,000 on an extensive advertising campaign spreading the message that they have “drawn the line” on “Criminal Bikie Gangs.”

Contrary to the political spin, the extensive mandatory detention powers in the VLAD Act are not limited in any way to alleged “criminal bikie gangs”.  You do not have to be a member or associate of one of the 26 motorcycle clubs which have now been declared as criminal organisations to be classed as a vicious lawless associate. The declaration of these 26 clubs as criminal organisations and the resulting new criminal offences and increased penalties for their participants (such as the prohibition on 3 or more alleged bikies being together in a public place, an offence for which a person must now spend at least 6 months in custody if convicted) are part of a separate legislation scheme contained in the Criminal Law (Criminal Organisations Disruption) Amendment Act (“CLCOD”).  The ambit of the VLAD is in no way limited to members or associates of these clubs.

So then, who is a Vicious Lawless Associate?

A person is deemed to be a vicious lawless associate[4] if the following three conditions are satisfied:

1. The person commits a declared offence.

The relevant offences are listed in Schedule 1 of the VLAD. The listed offences include serious offences such as murder and various sexual offences but also include the offences of affray (which is taking part in a fight in public, a misdemeanour for which the maximum penalty is one year imprisonment); assault;[5] dangerous operation of a motor vehicle; receiving tainted property and possessing dangerous drugs.  It is not unusual for people with limited or no criminal history to be fined or to be sentenced to community based orders such as probation or community service rather than be imprisoned for these latter offences.

1. The person was a participant in the affairs of a relevant association when the offence was committed.

As flagged earlier, a relevant association is not a criminal bikie organisation. It is any corporation; unincorporated association; club or league; or group of 3 or more persons. The definition of a relevant association does not contain any requirement that the group, corporation, club, or 3 friends as the case may be, engaged in illegal activity. Groups such as school P&Cs, swimming clubs and RSLs are all relevant associations under the VLAD Act definitions.  As Queensland Law Society President Annette Bradfield noted, the legislation was so broad that it could apply to virtually any type of club or association.

1. The offence was committed in the course of participating in the affairs of the relevant association.

If these conditions are satisfied, a person is deemed to be a vicious lawful associate unless they can prove that engaging in certain offences is not one of purposes of the relevant association.

Our natural inclination may be to think that regardless of the broad initial definitions, the act will only catch career criminals who are in organisations whose clear purpose is to engage criminal behaviour, as has been alleged about by certain bikie clubs.  I think that it is highly unlikely that there is any organisation in existence in which declares that engaging in criminal activities is one of its purposes.  But significantly, the police and prosecution do not have to prove that one of the purposes of an organisation is engaging in criminal activities, the charged individual must prove that this is not the case.

Here are some practical examples of how the Act may apply in relatively minor situations.

Example 1

John Smith is a member of the Yeronga Bulls Rugby Union Club. After losing the elimination final to the Sherwood Falcons, John and his teammates head to the RE hotel for their official end-of-season function.  A number of the members of the Sherwood Falcons are also having (celebratory) drinks at the RE. During the course of the evening an argument breaks out between the two groups about the afternoon’s game. The argument turns physical and John is arrested for the offence of affray. John is an engineering student, with no criminal history. He pleads guilty in Brisbane Magistrates Court and receives a $1,500 fine with no conviction recorded.  Unfortunately for John, the VLAD act is enlivened.  His football club is a relevant association and he has committed the declared offence of affray while participating in the teams affairs at their official function.  Unless he can prove otherwise, he is a vicious lawful associate and will be required to serve 15 years in prison.

As mentioned previously, a natural reaction perhaps is to assume that John wouldn’t have a problem, as engaging in fights in public is not likely to be regarded to be one of the purposes of the Yeronga Bulls Reserves. But the Prosecution do not have to prove that it is. It is up to John to prove that this is not the case. Imagine then that John or any of his teammates had been involved in an altercation after a game on a previous occasion or that there had been any vaguely threatening text messages or face-book updates (from any of the team-mates) concerning the Sherwood Falcons or any other teams.  In those circumstances, there is a real prospect that John would be not be able to prove that he isn’t a vicious lawless associate, and accordingly the judge or magistrate would have no choice but to sentence John to 15 years imprisonment in addition to the fine.  If John happened to also be a treasurer of the club, he would be spend the next 25 years in jail.

Example 2

Daniel Jones is a member of the Northern Suburbs Commodore Car Enthusiasts Club.  Daniel engages in online forums on the organisation’s website and displays his car at the regular show and shine events. On one Thursday evening, during the show and shine, Daniel gets in his car and performs a burnout on the road.  He is seen by a passing police patrol and followed. Daniel attempts to evade the police for a short period of time during which he speeds. After being overtaken by the police vehicle he pulls over and is charged and pleads guilty to the offence of dangerous operation of a motor vehicle.  He is sentenced to a 6 month wholly suspended sentence in the District Court but because the offence was committed while he was participating in the affairs of the car club, unless he can prove otherwise he will be regarded as a vicious lawless associate and spend the next 15 or 25 in prison.  Again, if the police had previously been required to shut down show and shine events due to street racing or there were posts on the online forums in which burnouts, racing or other dangerous racing were boasted about, Daniel may have difficulty proving that dangerous driving was not a purpose of the club and will automatically spend 15 to 25 years in custody.

Concluding thoughts

The government has sold the VLAD Act to the public as a highly targeted piece of legislation, designed to disrupt and dismantle the illegal activities of outlaw motorcycle clubs. As the examples given in this article show, this is clearly not the case[6]. The incredibly broad drafting of the legislation and the fact that the onus of proof is on the defendant to prove that the association does not purposefully conduct illegal activities means that the act will apply in a whole host of circumstances which were never envisaged by the government, and individuals, who are by and large law abiding citizens, could find themselves behind bars for up to twenty-five years as a result of committing relatively minor offences.

The public debate on this issue has been largely characterised by unhelpful name calling and hyperbole and amidst all this noise much of the real import of the legislation seems to have been glossed over. One thing that both sides would agree on, however, is that the legislation marks a significant change to Queensland’s legal landscape. That being the case, it is vitally important that the public is made aware of the ramifications of the new laws, so that it can engage in a considered and fully informed debate on the issue.

If you'd like more advice or assistance with this matter, the Brisbane criminal lawyers at Guest will be happy to assist you. Get in touch with our experienced criminal lawyers to get help with a criminal offence.