Like thunder gonna shake the ground… VLAD isn’t all bad #auspol #auslaw #qldpol

Image:Queensland Government Logo.svg (Photo credit: Wikipedia)

There’s a bit of a strategy to releasing controversial legislation: do it all at once.  In any given capital city, there are three newspaper front pages to worry about.  If you release seven pieces of controversial legislation on a wide range of topics at once, there’s no way they can keep up.  Chumps.

It appears the Queensland Government has recently adopted this strategy.  One of the recently released bills is called the Vicious Lawless Association Disestablishment Bill, and it’s caused a bit of a stir.

[tweet https://twitter.com/BernardKeane/status/389982189334441984]

The hyperventilation from the left has — as usual — stopped anybody from having a meaningful discussion about the Bill.  It’s not perfect, but it’s not apocalyptically bad.  Unfortunately, the minister who is supposed to lead the public discussion, is… well…

[tweet https://twitter.com/JarrodBleijieMP/status/389991967125299201]

It turns out that if you don’t have a bicameral parliament, actually being able to conduct a public debate becomes a bit of a triviality.  Although I am extremely critical of the way the discussion was conducted, here’s the argument for why I don’t mind VLAD.

The policy intent of the legislation is to stop people from forming and joining organisations which have the purpose of committing particularly heinous acts (a ‘declared offence’).  The declared offences are all listed in Schedule 1 (although other offences can be added through regulations).  They include things like manufacturing kiddie pr0n, facilitating prostitution, conspiracy to murder, &c., &c., &c.

The problem with a lot of the commentary so far is that it’s read the short description in Schedule 1 without checking the referring legislation.  Thus, people were upset that if you form an organisation with the intent to hold an ‘unlawful assembly’, you could be caught under this law.  Doesn’t that include NGOs protesting against the government?  What about Occupy?  Would Occupy be caught?

The ‘unlawful assembly’ reference is to s122(2) of the Corrective Services Act.  It refers only to prisoners:

A prisoner must not take part in a riot or mutiny. [Source]

So the answer is ‘Clearly not’.  Unless it was ‘Occupy the Prison by Holding a Riot’.

VLAD works in a particularly interesting way.  The first step is that the person is pinged for a declared offence.  This is important: VLAD isn’t a fishing trip for people to lock up.  It only applies to people who have been found guilty of a declared offence.

The second step is that the person is a ‘participant’ in the affairs of a ‘relevant association’ (which we will cover later).  It’s difficult to trip over your shoelaces and accidentally become a ‘participant’ of one of these associations: the State has to show that you’ve declared yourself to be a member, or have sought to become a member, or have attended meetings of the association.

Third, the State has to show that the person committed the declared offence for the purposes of or in the course of participating in the affairs of the relevant organisation.  It’s a bit clunky — and an ideal Act would make it a bit clearer — but, if you commit a declared act and you happen to be a member of the local RSL or whatever, the State has to show that the declared offence and the association are related through purpose or participation.

This entirely rebuts the criticism that VLAD targets ‘every’ association of three or more members.

[tweet https://twitter.com/AltLJ/status/390311416118652929]

It doesn’t.  It only targets relevant associations.

Once these thresholds have been met, the burden shifts to the defence to show that the association does not have the purpose of committing a declared offence.  So the defence actually has a two options.  It can argue that the State has not established the three elements have been met (they’re not a person being pinged for a declared offence; they’re not a participant of a relevant association; they didn’t commit the declared offence for purpose/participation of the association).  The second option is to accept that the State has established the three elements and then accept the burden of proof to show that the association does not have the relevant purpose.

This isn’t terribly unreasonable.  The third element which shifts the burden is almost impossible to prove unless the association has the purpose of committing a declared offence.  The shifted burden, if anything, is a pretty good safeguard: if you can show that you were able to perform a declared offence for the purposes of an association/participating in the affairs of an association without the association actually having the purpose of committing a declared offence, then you shouldn’t go to prison for the association.

What’s weird is that if you remove the section which shifts the burden, you make it easier for the State to lock people away for longer.

Finally, there’s the question of mandatory sentencing.  Mandatory sentencing is such a large issue that I couldn’t cover it all here.  If you accept that mandatory sentencing can be okay sometimes, then the question is whether mandatory sentencing is appropriate for the policy goal trying to be achieved.  The answer appears to be yes.  The policy intent is to stop the formation of these associations, so creating an automatic penalty in the form of a mandatory sentence to be served on top of any penalty arising from a declared offence makes sense.

Where it perhaps makes less sense is that VLAD throws a mandatory sentence at a person even if the court wasn’t going to hand down jail time for the base offence…

Ultimately, the mandatory sentencing question isn’t an issue specific to VLAD.  If you’re comfortable with mandatory sentencing, this isn’t a particularly egregious example.  If you’re against mandatory sentencing, then this aspect of VLAD will outrage you.  Unfortunately, we’re not having a broader discussion about mandatory sentencing (I’m officially a fence-sitter on this question); we’re having a very specific debate about VLAD.  In a sense, the mandatory sentence part of VLAD is just a side issue.  I don’t think anybody who’s in favour of the rest of VLAD is going to exclaim: ‘Wait!  VLAD has a mandatory sentencing provision?!  Nope, now I completely withdraw my support.’  Further, I don’t think anybody who was against VLAD would be happy with it if the mandatory sentencing provisions vanished.  It’s a side issue.

In short, why shouldn’t we make it as unattractive as possible to join one of these associations which are created for the purpose of declared offences?  That’s what I don’t get about this debate.  The people who get pinged by it are going to be terrible people, yet we’ve framed the discussion in terms of ‘What would happen if saints and angels come within its remit?’  We should frame it in the correct context: people who are forming groups for the purpose of committing atrocities.  Should there be legislation to give the State greater options for dealing with these groups?  I think so.  Is this particular mechanism a hideous attack on the reasonable limits of law enforcement?  I don’t think so.

VLAD shows what happens when our conversations about legal issues are cast to the winds of social media campaigns, and when politicians are unwilling to calm the conversation down.  I’m not sure that it’s helping our ability to discuss these issues productively.

Thanks to the various folk on Twitter for the vigorous discussion of this topic, particularly @julesmoxon, @Cacotopos, @nomadiquemc, and @JonoLee81.

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