Critical Analysis of the VLAD Act and its Problematic

Question: Critical analysis of the VLAD and its problematic when judged against the principles of the rule of law. Answer: Definition of Vicious Lawless Associate Pursuant to section 5 of the Vicious Lawless Association Disestablishment Act 2013, there are three conditions that must be met to classify a person (Allan) as a vicious lawless associate. An individual will be deemed a vicious lawless associate if the following three conditions are fulfilled. The first condition is that the person in question (Allan) must have committed a declared offense. The appropriate offense as outlined in Schedule 1 of the VLAD Act. The highlighted offense comprise serious offences such as murder and many sexual offences. They also incorporate offences of affray including participating in a fight in public. This is a misdemeanor that attracts a maximum penalty of one-year imprisonment. Another offence is dangerous operation of a motor vehicle including being a recipient of a tainted property as well as processing dangerous drugs.[1] Relating these offences to Allans case, it is evident that harvesting cannabis amounts to taking part in the production of a dangerous drug. The second condition that must be satisfied is that a person must have been a participant in the affairs of the relevant association at the time of committing the offence. As reflected in the case of Kuczborski v Queensland [2014] HCA 46, a relevant association is not a criminal bikie organization. A relevant association describes any corporation, unincorporated association, league or club, or group of three or more individuals. The relevant associations definition does not entail any requirement of a corporation, three friends, group or club be involved in illegal activity. Relating this condition to Allans case, Amanda, Craig and Jonathon friends (group of three friends) and subsequently this gro up becomes a relevant association. Accordingly, it is apparent that despite Allan not being a member of the group, he was a participant in the affairs of a relevant association.[2] The third condition that must be met is that the offence must be committed in the course of participating in the dealings of the relevant association. In this case, Allan committed the offense in the course of assisting the three friends (Craig, Amanda and Jonathon) to produce a dangerous drug. Allan has admitted to have knowingly assisted the three friends to harvest their extensive cannabis crop (a dangerous drug). Where these conditions are met, an individual will be deemed to be vicious lawless associate unless he can prove that involvement in a given offence is not one of the purposes of the relevant association. Explain the application of relevant principles of statutory interpretation There are three key rules of statutory interpretation which are also been used in other common law jurisdictions. These include the literal rule, the golden rule as well as the mischief rule. In the case of Allan, the most relevant principle of the statutory interpretation will be the mischief rule.[3] There is a need to determine the intentions of the legislatures when the VLAD law was being drafted. The determination of the defect of the mischief which the underlying statute has established to remedy alongside the determination of what particular ruling would efficiently implement the remedy will help defend Allan. As reflected in Heydons Case (1854), a true and sure interpretation of the statute results, where the following are discerned and considered effectively.[4] There must be a determination of what the common law was prior to drafting VLAD Act. The mischief and defect for which the common law failed to address should also be considered. The remedy that the Legislature has resolved and appointed to cure and the true rationale for the remedy will also help Allan builds a strong defense team. By focusing on the determination of the real intention of the VALD Act, it will make the judges to easily provide an effect to the legislative purpose of underlying statute.[5] Other relevant principles applicable to Allans case is to subject the VLAD Act such as interpretations that ensure it does not interfere with the already vested legal rights (in this case association), as well as ensuring that the Act does not oust the jurisdiction of the courts (unnecessarily giving the police commission a discretion to introduce a mandatory 25 years on tops of sentence). Finally, it would be appropriate to determine whether VLAD Act detracts from constitutional law or international law and that it does not operate retrospectively with respect to substantive as oppose to procedural law. Discuss the operation of any potential defense Alan might have under the VLAD Act Allan can focus his defense on the relevant association linked to the group of three friends; Amanda, Craig and Jonathon. First Allan was not a member of this association even though he participated in harvesting cannabis. He can argue that his participation was influenced by his desire to achieve his mentorship since he feared he could lose ties with his mentor yet he was promised he would be a successful lawyer. Allan can also argue that he did not know anything about the surveillance of the three friends and that he never knew what goal the harvested cannabis was to meet. Critical analysis of the VLAD and its problematic when judged against the principles of the rule of law The focus of the VLAD laws is on the vicious lawless associate which describes people convicted under the act. However, this makes a mockery of the well-laid principle of the proportionality in sentencing. The definition of the criminal associations, participants as well as office bearers remains too broad as per VLADs laws.The Act, therefore, stimulates the punishment of minor crimes that can lead to a person receiving 25 years for a small-scale drug possession. VLAD laws is used to impose excessive mandatory sentences to accomplish the political objective of the legislature of being tough on crimes. Nevertheless, it is incompatible with the operations of the rule of law in Australia.[7] VLAD law provides for association as the premise for an additional penalty on top of the head sentence. In this case, VLAD Act will trigger sentences of imprisonment that are manifestly extreme. The extreme punishments which does not commensurate with the crime will inevitably decline the confidence of the public in the legal system to deliver justice. The operation of the Act should remain within the context of the politics in which it was enacted. At its inception, VLAD Act, the Newman government meant that the judges needed to utilize the laws in compliance with the policy objectives of the legislature. The Act is also ineffective since it gives the police commissioner the unnecessary discretion to add a compulsory 25 years to jail sentences for the crimes committed in aid of criminal gangs. In this context, the VLAD Act tends to eliminate the independence of the judges. Even though organized crime remains undisputed issues in Queensland, VLAD Act remains an inappropriate interven tion. Bibliography Article/Books Geddis, Andrew, and Bridget Fenton. "Which Is to Be Master-Rights-Friendly Statutory Interpretation in New Zealand and the United Kingdom." Ariz. J. Int'l Comp. L. 25 (2008): 733. Graham, Randal N. "A unified theory of statutory interpretation." Statute Law Review 23, no. 2 (2002): 91-134. Healy, Michael P. "Legislative Intent and Statutory Interpretation in England and the United States: An Assessment of the Impact of Pepper v. Hart." Stan. J. Int'l L. 35 (1999): 231. Phillimore, John George. The History and Principles of the Law of Evidence: As Illustrating Our Social Progress. William Benning Company, 1850. Trotter, Andrew, and Harry Hobbs. "The great leap backward: criminal law reform with the Hon Jarrod Bleijie." (2014). Legislation Vicious Lawless Association Disestablishment (VLAD) Act (Queensland). 2013. Cases Heydons Case; [1584]) 3 Co Rep 7a, [1584] EWHC Exch J36, 76 ER 637, Pasch 26 Eliz, 20 Eliz Rot 140 [1] Trotter, Andrew, and Harry Hobbs. ("The great leap backward: criminal law reform with the Hon Jarrod Bleijie." (2014).pp.50 [2] Healy, Michael P. ("Legislative Intent and Statutory Interpretation in England and the United States: An Assessment of the Impact of Pepper v. Hart." Stan. J. Int'l L. 35 (1999): 231).pp.80 [3] Geddis, Andrew, and Bridget Fenton. ("Which Is to Be Master-Rights-Friendly Statutory Interpretation in New Zealand and the United Kingdom." Ariz. J. Int'l Comp. L. 25 (2008): 733).pp.54 [4] (Heydons Case; [1584]) 3 Co Rep 7a, [1584] EWHC Exch J36, 76 ER 637, Pasch 26 Eliz, 20 Eliz Rot 140).pp.39 [5] Graham, Randal N. ("A unified theory of statutory interpretation." Statute Law Review 23, no. 2 (2002): 91-134).pp.38 [6] Phillimore, John George. (The History and Principles of the Law of Evidence: As Illustrating Our Social Progress. William Benning Company, 1850).pp.40 [7] (Vicious Lawless Association Disestablishment (VLAD) Act (Queensland). 2013).pp.30.