Harsh bikie law threatens basic legal rights and freedoms

If you or I had been in the same place at the same time as Stefan Kuczborski we would not be facing a minimum six-month jail sentence for just being there.

Unfortunately for Kuczborski, he is a member of the Hell's Angels bikie gang. And he was in the company of two other members of the same gang in public in Queensland. And that gang is a "declared criminal organisation", one of 26 listed by the Queensland Attorney-General under the Criminal Organisations Disruption Act.

Kuczborski challenged that law and the risibly named Vicious Lawless Association Disestablishment Act 2013 and last week was unsuccessful in the High Court. The court in a 6-1 decision upheld the constitutionality of the law – decidedly holding its nose while doing so.

Only Justice Kenneth Hayne saw any constitutional difficulty.

All the judges stressed that it was not their job to decide on the politics of the law or its obvious severity, harshness or excessiveness. But Australians more broadly should condemn these bikie laws which are becoming more and more repressive.

As any given state's laws pass the very narrow grounds for constitutional objection, other states then follow suit in a race to be tougher on "crime" than anyone else, each premier vying for victory in the battle against bikies.

Research by Rebecca Ananian-Welsh, of the University of Queensland, and George Williams, of the University of NSW, has shown how marked this trend has been and how it threatens basic legal rights and freedoms.

This is a very warped jurisprudence. It is in the mould of South Africa's apartheid era and the early Nazi regime in Germany. The jurisprudential mould is as follows.

The executive government isolates a class of people and then creates offences peculiar to that class of people or denies them rights which everyone else in society has. It is a dangerous path.

Kuczborski's lawyers argued the law breached the independence and integrity of the Queensland judiciary because the executive government (the minister) determined whether an organisation was "criminal" and the minimum sentence was mandatory.

The majority held that because the law provided a defence upon which a judge could decide, the independence and integrity of the Queensland judiciary was not breached by the law.

The defence, by the way, was for the bikie to prove that the organisation did not have a criminal purpose.

Again, this is offensive jurisprudence. Reverse onuses of proof in cases where the liberty of the citizen is at stake are abhorrent and belong more in totalitarian states. It is bad enough that we have to tolerate effective reverse onus in traffic cases in Australia, but where liberty is at stake it should not be tolerated.

At stake here is the doctrine of separation of powers. The legislature enacts laws for all. The executive gives practical application to those laws. The judiciary supervises that application and interprets the application of the law case by case.

None of the three branches should usurp the role of any of the other branches. These are fundamental principles. Legislation should apply the law equally to all.

Independent judges should determine whether executive action applying the law is done according to law. And independent judges should determine sentences in criminal cases.

Under Queensland law, it would be enough for Kuczborski to be having an ice-cream with two of his Hell's Angels mates for the three of them to be banged up for six months. Just wearing insignia of the gang is proof of membership, by the way.

The answer to the problems with bikie gangs is not to deal with their members arbitrarily for just being associated with other members in public, but to do proper police work to get the evidence together to charge them with the serious charges they are alleged to have committed - drug running, rape, assault, money laundering and the like.

But the High Court appears to have held otherwise. Some will now take that as a stamp of approval for such laws, but they would be wrong to do so because four judges in a joint judgment said, "The possible reach of these laws is very wide and even their operation may be excessive and harsh."

However, that hasn't stopped other states from lining up in a race to the bottom in what they call "getting tough" on crime.

But these laws are not "getting tough on crime". Rather they are getting tough on guilt by association which might be totally innocent. Meanwhile, the real crimes go unpunished and governments and police forces can pretend they have dealt with the problem.

Clearly, our constitution as interpreted by the High Court does not go far in protecting rights.

If we ignore the flawed jurisprudence in the bikie laws because they are only bikies, we cannot complain if the laws get ever more harsh with wider application, especially in Queensland where there is only one house of Parliament.

With the High Court's narrow interpretation of the separation of powers and the need for judicial independence, we need a bill of rights in our constitution. Bear in mind our constitution still permits Commonwealth laws which are discriminatory on the grounds of race.