Bikies crackdown: did the Constitution fail Queensland?

Adelaide Law School’s Dr Gabrielle Appleby writes for The Conversation on Queensland’s new law and order measures. 

Last week, Queensland’s state government introduced a number of tough new law and order measures targeting serious sexual offenders and bikies.

Under the new laws, bikie gang members in Queensland face being locked up in maximum security jails for a minimum of 15 years unless they co-operate with police. Jail terms also apply for riding in groups or wearing club colours to a hotel.

In the name of community safety, the new legislation makes very large and serious incursions into fundamental human rights, including the right to be free from arbitrary detention, the right to a fair trial before an independent judge and the right to free speech and association.

The legislation – and the way in which it was pushed through Queensland’s parliament – highlight the inherent dangers in Australia’s constitutional system, which relies heavily on democratic institutions for the protection of individual rights.

What does Australia’s Constitution protect?

Australia’s Constitution does not contain a comprehensive bill of rights. High Court justice Patrick Keane once described Australia’s Constitution as “only a small brown bird”, not forged from bloody civil war or revolution, but by men with great confidence in the parliamentary institutions of England to protect the rights of individuals against the arbitrary rule of the government.

In practice, what this has meant is that the courts have limited tools with which to scrutinise legislation that intrudes on individual liberties.

The High Court has found some implied protections, such as of judicial power and the independence and impartiality of the courts, in the sparse provisions of the Constitution. At the Commonwealth level, this prevents the federal government and parliament from exercising judicial power, such as the power to punish individuals. It prevents the judiciary from exercising anything other than judicial power, and protects the integrity of the judicial process.

At the state level, there is no equivalent separation of powers, but the High Court has found that state courts must still maintain a number of characteristics of independence and impartiality to continue to fit the constitutional description of courts.

Since the states’ “war on bikies” began in earnest in the 2000s, the High Court has found a significant proportion of anti-bikie measures unconstitutional because they compromised the independence and impartiality of the state judiciary or the judicial process.

Why is the Constitution unlikely to prevent the Queensland laws?

One of the important planks of Queensland’s anti-bikie legislation is the Vicious Lawless Association Disestablishment Act 2013.

This Act places mandatory additional sentences on associates of criminal gangs: 15 years for an ordinary associate and 25 years for an office bearer. While serving a further sentence, prisoners are not eligible for parole unless they co-operate with law enforcement agencies.

Mandatory sentences are historically unusual. They severely limit a judge’s ability to consider the full circumstances of a case in determining an appropriate penalty. Nonetheless, just days before the Queensland legislation passed, the High Court affirmed that mandatory minimum sentences (in that case, for people smugglers) were constitutional.

The High Court accepted that the determination of a sentencing yardstick, both upper and lower limits, was a legislative judgment for the democratic institution of parliament.

Another major part of the Queensland legislation was to introduce an indefinite detention regime for serious sex offenders after their sentence has expired. This responded to the imminent release of Robert John Fardon, a notorious Queensland sex offender. His release in 2003 instigated the enactment of Queensland’s original regime for the preventative detention of serious sex offenders.

Under the original Act, the Queensland Supreme Court decides whether an individual is a serious danger to the community and needs to remain in detention. Under the new act, this power is, in effect, vested in the state attorney-general. The legislation is a direct result of the Supreme Court’s refusal of the attorney-general’s previous applications for Fardon’s detention.

The High Court has been able to use the Constitution to ensure that when governments create regimes involving the courts, the integrity of the judicial process is maintained. However, at the state level, this doesn’t prevent these powers from being removed from the courts altogether. To stop that, the High Court would have to come up with a new implication.

It is not the High Court that failed Queensland, but the assumptions on which Australia’s Constitution was built. Our founding fathers failed to realise that such a poor state of democracy would manifest.

Queensland’s unicameral system

In Queensland, the upper house of state parliament voted itself out of existence in 1922, and the High Court found nothing in the Constitution to prevent this from happening. This removed a fundamental check and balance on governments with overwhelming majorities in the lower house and parliamentarians well-trained in party discipline.

The laws in Queensland were introduced and passed in the course of parliament’s three sitting days last week. Each bill was declared urgent. No outside consultation or committee scrutiny occurred. The debate on one bill commenced at midnight and finished in the early hours of the morning.

This is certainly not the first time that we have seen this type of fearmongering and abuse of parliamentary processes to pass extreme measures that erode fundamental liberties of the few in the name of protection of the many. This reflects a failure of the community as well as a failure of the parliament and, ultimately, the Constitution.

This article was originally published at The Conversation.

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