The Queensland Government is rashly legislating away fundamental rights and freedoms in order to obtain short term law enforcement objectives that it won't achieve, says prominent Brisbane barrister Stephen Keim SC.
The Queensland sickness
Before I went to the wedding in a velodrome in Melbourne, and a subsequent journey into the manicured walking tracks, convict built bridges, and museums, and art galleries of Tasmania, I had prepared a beautifully developed set of speaking notes on climate change, climate justice and human rights.
While I was away, the Queensland sickness – a disease with symptoms which cause politicians to cosy up to the police service and write and deliver their own mutual Christmas lists – a disease that had appeared to have been fairly well suppressed since 3 July 1989 when a certain “Report of a Commission of Inquiry Pursuant to Orders in Council” was published – broke out again. Since we know so well how badly that previous cosy relationship between law enforcement and law creators ended, one might have been excused for believing that the worst aspects of the disease had been supressed.
But, last week, we saw such a stream of legislating away of rights, rights thought fundamental to a land of the free, in order to obtain short term law enforcement objectives, that we can only assume that the Queensland disease is back in a more florid form than ever previously observed.
And, so, climate change and human rights and climate justice got the boot. I have put the notes (of a talk that was never delivered) on my portal on academia.edu. And, if that kind of thing takes your fancy, you can not only access that paper but you can read my 36,000 words on adventuring in Mexico while you are there.
And, so, I plan to say something about the latest swathe of legislation emanating from the Queensland Parliament, at the behest of the Attorney-General, but with the strong support of the Premier.
I agree with many of the comments which have already been made about this legislation.
I agree, for example, with Mr Roger Traves QC, president of my professional association, who spoke of the Criminal Law (Public Interest Declarations) Amendment Act 2013, which provides the Governor in Council, on the advice of the Attorney General of the moment, the power to declare that a relevant person must be detained indefinitely. Mr Traves said that the executive ought not to decide who stays in prison and who goes. That is the role of the court. The Parliament should never put decisions about sentencing in the hands of the executive, particularly where the only test is an ill-defined test of “public interest”.
I agree with Mr Callaghan SC, President of the Law and Justice Institute (Qld) Inc. who said of the same legislation that it shifts a corner stone of our democracy. Mr. Callaghan also said, correctly, I think, that the processes that safeguard against injustice are being treated with contempt.
I agree with New South Wales barrister, Mr Baffsky, who was primarily discussing the Criminal Law (Criminal Organisations Disruption) Amendment Act, which deems a number of named organisations as criminal organisations and, thereby, subjects the alleged members thereof to a number of discriminatory provisions including the abolition of the right of assembly for those members. Mr Baffsky said that the legislation went further than necessary and was unprecedented anywhere in the world in the last 50 years.
And I agree with the president of the Queensland Law Society, Ms. Bradfield who criticised the Vicious Lawless Association Disestablishment Act as so broad it could apply to virtually any type of club or association. Ms Bradfield noted that, once an allegation was made, the defendant had to disprove that the organisation is for a criminal purpose and also noted the 15 year minimum extra sentence that resulted if one failed in the disproving task. An offence that resulted in a fine or good behaviour bond could give rise to an additional 15 (or in the case of office bearers) a 25 year sentence, without the possibility of parole.
And I agree with Richard Chesterman QC when he says that the Criminal Law (Public Interest Declarations) Amendment Act 2013 represents a strange departure for Parliament in taking power from the independent courts to bestow it on the executive. This is particularly strange in that the course of parliamentary democracy, including the great Acts which are enshrined in the Queensland Constitution, has been a struggle to curtail the whim and cruelty of the executive and to establish the rule of law to be upheld by the judges.
It follows that I think the legislation, in its parts, and in its entirety, is ill-considered, was passed without the safeguards of consultation, destroys the balance of the inherently British institution of our state with its built in rule of law and separation of powers and is fundamentally unjust.
It is Counter-Productive
But that is not the point I wanted to make, this morning.
The fundamental point about the Queensland Government’s actions over the last two weeks is that it will fail in its avowed objectives to stop organised crime; to ensure Queensland is the safest place in Australia to raise a child and to get rid of associations of people that foster or support the commission of serious offences and to, thereby, increase public safety.
When increased minimum criminal penalties were attached to the crime of murder and to a number of child sexual offences, earlier in the term of the government, many groups urged the government that this would be counter-productive. Victims would be under increased pressure not to complain and, thereby, send a family member away for twenty years or more. And perpetrators might, on occasion, since they were already facing life in prison, make the horrible choice that they “may as well be hanged for a sheep as a lamb”.
Those worrying factors are only increased in their intensity by the recent changes to the Criminal Law (Public Interest Declarations) Act.
Second, the government, in recent days, has taken to putting pressure on police officers to allow the government to exercise the common law discretion of those officers, as police constables, as to how the law should be enforced. The government is placing the police service in a position where they may well lose the support of the public, perhaps, the most important weapon any police service in a democratic country can have. The government is also doing its best to lose the respect and support of serving police officers. This is an asset that the state can ill afford to lose. The government is also doing its best to ensure that those police who least respect the law will be those who stay and thrive in the police force. This is a regrettable step in the direction of the Terry Lewis School of Policing. Third, making organisations illegal will make them go underground so that they are more difficult to observe and make the law more difficult to enforce against them. Whether it concerns paramilitary groups in Northern Ireland; insurgency groups in Iraq; or partisan resistance groups in war torn Europe, illegal status and harsh penalties do little to prevent the persistence and strength of the organisations concerned. We have already seen carefully choreographed actions by reputed members of biker organisations signing statutory declarations saying they are no longer members of those organisations.
These are general and obvious observations which are strengthened by the large amount of anecdotal evidence already emerging of police officers being forced to hassle law abiding citizens to impress the government.
Specifically, the VLAD Act
I wanted to focus on two other aspects of the counterproductive nature of what is being done. These are perhaps less obvious. And I will concentrate on the Vicious Lawless Association Disestablishment Act (“the VLAD Act”).
The strategy of this piece of legislation is clear.
It relies on the creation of unusually harsh penalties (15 or 25 years hard labour with no prospect of parole) for offences that may, in themselves, require no more than a fine. The first half of the strategy is to create a deterrent by creating a very punitive response to criminal conduct of variable seriousness.
The second half of the strategy is to use the punitive regime in order to create a strong incentive for persons caught in the mesh to become informers. That is because s. 9(2) VLAD Act allows a sentencing court to reduce the otherwise minimum (no prospect of parole) sentences of 15 or 25 years in response to an accepted undertaken to cooperate with authorities. In the past, attempts to use informers to cripple secret and largely impenetrable criminal organisations have been described as “supergrass” policies. Since, in this case, the harsh penalties to be inflicted have no relationship to the seriousness of the crime being prosecuted, the policy might be better described as the pseudo or mini-supergrass policy.
This strategy is based upon two policy approaches – harsh penalties and informer encouragement – which have been shown to be fraught with unacceptable risk and likely to be worse than counterproductive.
Harsh Sentences as a Means of Deterring Crime
It might be thought that non-Indigenous Australians whose presence in this country occurred as a result of a highly punitive justice system that patently failed to deter crime might be less inclined to rely on tough penalties as a means of reducing perceived serious crime threats.
If experience from 200 years ago is not sufficiently persuasive, policy makers may also have recourse to the numerous studies that show that getting tough on crime by imposing longer sentences does not reduce recidivism.
A number of these studies are considered in a 2010 review study by Valerie Wright. Ms. Wright concluded, after reviewing research from the United Kingdom, Canada and the United States, that the evidence does not support any benefit in terms of public safety by increasing the severity of sentences by imposing longer terms. In addition, punitive policies like California’s Three Strikes law and mandatory minimum prison terms burden state budgets but fail to enhance public safety. The money would be better spent on prevention and treatment, including within the prison system.
The most surprising criticism of the resort to harsh penalties to increase public safety is Right on Crime, a conservative think tank and lobby group supported by such notables as Grover Norquist, Jeb Bush, Newt Gingrich, Rick Perry and Rand Paul. The organisation is most concerned by the increase in the imprisonment rate in the United States from one in 400 people in 1970 to one in 100 now and the resulting enormous costs to state and federal budgets with little or no return in terms of public safety.
Rather than advocating harsh penalties and increased imprisonment, Right on Crime urges increased use of alternatives to custody such as probation and parole, including mandatory drug addiction treatment and mental health counselling; release programs based on prisoners’ increasing age (geriatric release); elimination of mandatory minimum sentencing laws for non-violent offences; increased reliance on the specialist knowledge and skills of judges; and incentives for prisons to reduce recidivism.
These two different critiques agree that resort to harsh penalties is unduly expensive and likely to be counterproductive. Both agree that less punitive approaches and expenditure on non-custodial supervisory programs are likely to be more effective. On this ground alone, the VLAD Act is likely to prove to be bad legislation enshrining bad policy.
Informer Based Justice
All justice systems use informers when this is appropriate.
It is always important that the use of informers is consistent with the values of the justice system as a whole. Most importantly, the use of informers must be attended with safeguards provided by the justice system, including effective pre-trial procedures, trial by jury, requirements for corroboration, transparency at all stages of the process and proper accountability for the processes by which the agreements to provide evidence are arrived at.
When large scale use of informers has been used in order to solve more difficult law enforcement challenges, the likelihood of disaster and scandal has loomed large.
Australia has had its own unfortunate experience with the use of informer Richard Seary to solve the Hilton Hotel bombing case, by convicting three members of the Ananda Marga movement. Seary’s evidence was found to be unreliable and the three defendants were pardoned.
The large scale resort to supergrass testimony to prosecute paramilitary groups in Northern Ireland and England from the 1970s until the 1990s resulted in scandal and disaster. In Northern Ireland, the adverse findings included police corruption; the use of particularly unsuitable informers; and major failures in the witness protection system.
The same policy in England during the 1980s was, perhaps, more disastrous with the courts bringing the process to an end by a wholesale rejection of informer evidence and setting aside of convictions.
In 2005, the British Parliament went back to the same poisoned well by passing the Serious Organised Crime and Police Act (“the SOCPA”). This attempted to create a more transparent system by which informer evidence could be utilised to obtain convictions. Again, disaster and scandal has resulted. In early 2012, in Northern Ireland, a five month trial of 13 defendants allegedly linked to the Ulster Volunteer Force resulted in the acquittal of all defendants.
Meanwhile, in London, two trials based on the evidence of supergrass, Gary Eaton, ended in collapse with Mr. Eaton described as a pathological liar. Chief Constable Jon Murphy, head of the Senior Police Officers Association, described the use of supergrasses as “dancing with the devil”.
If you put informers under great prosecution pressure and offer them a way out, they will almost always minimise their own involvement and upgrade the wrongdoings of others. Investigating police officers tend to be dragged into the moral morass of assisting in the creation of dishonest evidence. The greater the pressure, the more likely injustice will occur and the law enforcement system will, eventually, be shown to be a scandalous failure.
The strategy behind the VLAD Act is to create as much pressure as possible by making even minor offenders subject to sentences greater than one would receive for murder. The system ensures that, to avoid their own punishment, the informer must come up with a version of events saucy enough to satisfy the police commissioner.
I cannot think of a strategy more disposed to produce lies, perjury, injustice, wrongful convictions, waste of public money, scandal and, ultimately, disrepute for the police force, the courts and the Parliament.
The Queensland Parliament has passed a stream of Acts in the last fortnight, each of which is poorly thought out and likely to produce injustice while destroying the safeguards of the United Kingdom style, unwritten constitution which form the paradigm of the Queensland Constitution.
This legislation has been rightly criticised by a wide group of observers.
When looked at more closely, it becomes apparent that the legislation is also bad policy and likely to be counterproductive to the objectives of the authors of the legislation.
This paper has focussed on the VLAD Act. Experience with its two planks: punitive sentencing and incentives for large scale informing has been very negative. The Act is likely to produce large amounts of unproductive government expenditure through the need to maintain a hugely increased prison population. In addition, however, the attempt to create incentives for informers is likely to undermine the justice system in Queensland and result in scandal and institutional disaster.
This speech – 'Justice and the Law: Recent Perspectives: notes for a Breakfast Talk to the Justice and the Law Society' – was delivered by Stephen Keim SC on Friday, 25 October 2013 at Royal on the Park, Alice Street, Brisbane.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
 Section 7(1)(b) VLAD Act: participant in affairs of association and offence occurs in the course of participating
 Section 7(1)(c) VLAD Act: a de facto office bearer of the association
 See s.8(1) VLAD Act
 In accordance with s. 13A Penalties and Sentences Act 1992
 See also s. 9(7) VLAD Act
 The decision whether or not to accept the offer is within the unfettered discretion of the commissioner of police.