Riders intercepted by police have been advised to record the conversation, no matter where they are. But it is crucial in Queensland where police now have greater powers to detain and search under the world’s toughest bikie laws.
Accredited criminal law specialist Kurt Fowler of Fowler Lawyers says an amendment to the Queensland Police Powers and Responsibilities Act basically allows police to search people for things such as tattoos.
While all the attention of the Queensland Government’s anti-bikie laws has been on the draconian Vicious Lawless Associations Disestablishment (VLAD) Act, this amendment has largely gone unnoticed.
“The amendment to section 29 of the Act authorises police to detain and search persons who they reasonably suspect might be a member of a criminal organisation,” Kurt says. “There was previously no right to do anything but demand you to identify yourself such as with a driver’s licence, but police had no right to insist a person remove clothing to check for tattoos, unless they were arrested. The key expression here is ‘reasonably suspect’, so clearly that would include the concept that while a person is riding around on a bike without patches they might have tattoos that identify themselves as members of declared criminal organisations.”
That means anyone on a bike or wearing biker clothing can be reasonably suspected to have criminal associations in Queensland. That is nothing short of discrimination and “profiling”, yet it is now enshrined in Queensland law.
“The difficulty with that is a police officer can say to a person that they have a reasonable suspicion, but in reality that would be totally unreasonable,” Kurt says. “I have been looking at this new act for a number of people who are perceived to be bikies and what is disturbing is I’ve seen footage of people at the side of the road where they have their shirts off and police are taking photos of their tattoos. When you think about it, if you were walking down the Queen St Mall on your way to have dinner and the police pulled you over and asked you to remove your shirt to check for tattoos that would be an extraordinary invasion of your privacy.
“What if it’s a female or someone who is particularly modest? They would find that incredibly unreasonable. However, it would be difficult on the side of the road to challenge the police for fear of being arrested.”
Some Australians may be confused about their rights based on Hollywood movies, says Kurt. “The difference over there (USA) is that they have a Bill of Rights which enshrines rights of free speech and freedom of association etc. We don’t have a Bill of Rights,” he says. “We have a Constitution which may be interpreted as a Bill of Rights but it’s not specifically enshrined. You hear people in America talk about their Constitutional rights, but what they are really talking about is the Bill of Rights.”
Unfortunately, Kurt says the best advice is to comply with the police. “If they refuse, undoubtedly they would be charged with obstructing a police officer in the execution of their duty and would have to appear in court where, typically, they could cop a fine of a few hundred dollars,” he says. “The other issue is if a person was to challenge it and say ‘no, I’m not going to take my shirt off as I don’t think you have reasonable grounds’, a court would not accept that in defence. The proper procedure is you let them do it and then challenge it in court; but, of course, the horse has already bolted then.”
So it’s a Catch 22.
However, you can improve your chances of challenging the matter in court if you have suitable evidence such as a video or audio recording of the interception, Kurt says. “Fundamentally they should comply with the police, but they are entitled to say to a police officer ‘on what basis do you reasonably suspect I might be a member of a criminal organisation?’. In many cases their answer will be because you are riding a motorbike. I can’t see how it would do any harm to video or record that conversation.”
Kurt says you are legally entitled to record the conversation and you do not have to ask the police permission to record. “If you walk up to me in the street and start a conversation, I don’t have to disclose to you that I am recording it. Over a phone it is different,” Kurt says. “The police do it all the time, so why can’t you?
“The only times they aren’t running recorders is where their behaviour is circumspect. I can’t see why people wouldn’t want to record their interception by police these days. If the police are as transparent as they say they are, they shouldn’t complain or refuse. Plus, if they know they are being recorded, they will treat you differently.”
Kurt says riders pulled over by police can expect to be questioned, based on anecdotes from his clients. “Police will start asking – and being quite blunt – who are you, where are you from, are you a member of a club and being fairly direct,” he says.
If you believe the police have acted inappropriately, you can have your day in court to exonerate yourself, but don’t expect the police to cop any fines or penalties.
Brisbane solicitor Jim Feehely, there are many provisions that make the police immune to criminal misconduct when exercising powers and discharging responsibilities. “Police are also generally immune from civil liability as long as they think they are acting under some legislative authority,” he says.
“It also seems that in acting under the criminal organisations legislation, the police can refuse to identify themselves by name, rank and number, or at all.” He says that if you are arrested, the best advice is to contact a lawyer.
So if you believe you may be pulled over, make sure you have the name and contact details of your lawyer in your phone when you head out for your ride. If you need to find a solicitor in Queensland, click here.
Meanwhile, the Australian Motorcycle Council has established a fighting fund to support any High Court challenge to any of the anti-bikie legislations. To read more about the fund and to donate, click here.