The full text of a widely reported and highly significant speech delivered by Stephen Keim, SC, to the Queensland conference of Australian Lawyers’ Alliance on 14 February 2014 at the Marriott Hotel in Surfers Paradise.
It is interesting that, if you search ‘good governance’, the results of your search will lead you to references to human rights and rule of law principles.
A news report of a conference in Pakistan on 'The Importance of Judicial Education' quoted the Chief Justice of the Supreme Court of Pakistan, Tassaduq Hassain Jillani, saying that good governance and the rule of law are interrelated and that both are essential to tackling the changes faced by his country.
An American Bar Association White Paper concluded that rule of law factors are positively associated with economic growth, social stability, and the promotion of democracy and the protection of civil and human rights.
The United Nations Office of the High Commissioner for Human Rights expressed the view that good governance is the process whereby public institutions conduct public affairs, manage public resources, and guarantee the realisation of human rights in a manner essentially free of abuse and corruption and with due regard for the rule of law.
In this paper, I will address aspects of the welter of legislation rushed through Parliament, normally without consultation, and generally defended on the basis of the necessity to combat an urgent law and order problem constituted by the existence of certain motorcycle groups.
The evidence of a pronounced law and order problem appears weak.
This is not a theoretical discussion of the rule of law. But, in respect of my examples, I will discuss why the approach represents poor governance, including by reference to Human Rights instruments. One extraordinary aspect of the legislation wave is that it is so voluminous. Separate research specialties are required to cover all of its impacts.
Hopefully, this selection will be representative and give a feel for the government’s new affection for a radical approach to governance.
The Vicious Lawless Association Disestablishment Act 2013 (“the VLAD Act”) was part of the first wave of legislation passed rapidly through Parliament in mid-October 2013. It was assented to and became law on 17 October 2013.
The VLAD Act is directed at associations of three or more people whose coming together may be formalised in some way or may be totally informal. A person may become part of an association simply by taking part in the association’s activities on one occasion.
The VLAD Act’s central effect is to make use of massive, minimum sentences which may not be ameliorated by parole (except for police approved informers or super-grasses) for a wide range of offences committed while being part of the association’s activities.
Unless the offender proves that the association did not have, as any part of its purposes, the commission of offences, the offender is sentenced to her normal sentence (which may be as little as a fine or a good behaviour bond) and then must be sentenced to 15 years imprisonment, to be served without chance of parole.
If the offender is an office bearer of the association, the minimum extra sentence becomes 25 years in jail without parole.
The well named VLAD Act (it may well impale the hopes and dreams of generally law abiding families on a stake of injustice) has been marketed as impacting only upon the activities of vicious career criminal gangs. However, because of its loose wording and the wide list of offences to which it applies, it is triggered by many relatively benign incursions onto the wrong side of the criminal law. A group of fisherman who take some joints with them to share on a weekend trip, or a group of petrol heads who drag their vehicles on the deserted roads of Pinkenba, could find themselves facing 15 or 25 years each.
The High Court in October last year, in Magaming, issued its latest confirmation mandatory minimum sentences are not inconsistent with chapter 3 of the Commonwealth Constitution. The decision concerned mandatory minimum sentences of five or eight years for people smugglers in the Migration Act 1958 (Commonwealth).
Perhaps the VLAD Act has crossed a line beyond which Chapter III of the Constitution cannot bear to go?
In any event, such legislation appears to be in breach of article 14 of the International Covenant on Civil and Political Rights (“the ICCPR”), in that the imposition of 15 years extra penalty for being associated with others does not involve equality before the law or the court and the mandatory nature of the additional penalty means that the criminal charge is being determined by the legislature and not by a fair and public hearing by a competent, independent and impartial tribunal established by law.
Mandatory penalties are also bad governance because they are counter-productive.
Mr Cowdrey warned of behaviour of arresting police officers to inflate the statement of facts they prepare when they arrest and charge somebody; of fewer guilty pleas; of higher courts clogged by unnecessary trials; and of state revenue tied up in building more gaols.
It’s not rocket science.
The use of massively unjust sentences to encourage informing is also likely to be counter-productive as well as unjust. Australia’s experience with Richard Seary and the UK’s recent experience with Gary Eaton should warn legislators that super-grass legislation is bound to result in expensive farce.
CODA: this piece ends in ridicule
The Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (“the CODA Act”) amended the Criminal Code to invent and define the concept of a participant in a criminal organisation.
A criminal organisation can consist of as little as three people if the group ‒ whatever number they be ‒ has, as one of its purposes, the carrying out of certain criminal activity. While the criminal activity involved is described as “serious”, the list of offences included is such that, like the VLAD Act, this legislation can be triggered by offences as trivial as sharing a joint and actions that might attract only fines or good behaviour bonds.
This new Code definition of criminal organisation has an added requirement that the group, by their association, represent an unacceptable risk to the safety, welfare or order of the community.
While evidence would be needed to establish this element, it could be satisfied without any evidence of previous criminal misconduct by the defendant. Of course, the evidence based definition is redundant for many citizens, because the CODA Act, without any due process, simply deemed 26 organisations to be criminal for the purpose of the Act. The definition picks up, as an alternative basis, any organisation so deemed to be criminal.
The CODA Act went on to create new offences and increased punishments (for existing offences) based on the new status.
A new s60A Criminal Code offence, created by CODA, involves participants in criminal organisations (it does not need to be the same organisation) who knowingly gather together in public in a group of three or more persons. The section imposes a maximum penalty of three years imprisonment and a mandatory minimum penalty of six months imprisonment.
The creation of status offences in this way offends many human rights principles. It offends the concept of the equal right of men and women to the enjoyment of all civil and political rights in article 3 of the International Convention on Civil and Political Rights (“the ICCPR”). It also, arguably, offends the right to freedom of association with others in article 22 of the ICCPR.
However, one criterion of good governance I am prepared to promulgate is that you must not make yourself; the State; or the law appear to be ridiculous. With the aid of this law, the police and the government of Queensland have offended against this criterion.
One example of this descent into ridicule concerns the arrests of five men having a quiet beer at the Yandina Hotel.
Another concerns five men buying ice-creams during a family holiday on the Gold Coast. Bill Potts described the latter as making a crime out of childhood friends coming to the Gold Coast for a holiday and simply walking down the street.
I think it was the eating of ice-creams that particularly brought Queensland into the land of ridicule.
Bailed Up or Bailed Out
The principles concerning bail draw upon the presumption that all accused persons are presumed innocent until convicted in a court of law. There is an acceptance that persons accused of criminal conduct should be allowed to be free in the community unless and until they are convicted.
Bail is also concerned with ensuring that accused persons do indeed present themselves to face trial and with protecting the community from further criminal actions by people who are accused of having already broken the law.
Dealing with applications for bail, therefore, involves a tension between these competing principles.
The details of the Bail Act 1980 has involved legislative statements about when and how weight is to be given to one or other of the principles. Bail is generally to be granted unless the judicial officer is satisfied that there is an unacceptable risk to the community. Unacceptable risk is a sliding scale and factors identified by the Parliament as relevant include the seriousness of the offence, the history of the previous grants of bail and the strength of the evidence in the case.
In certain offences, normally identified for their seriousness or indicating an inherent increased risk that the accused will fail to appear, the onus is reversed and the defendant needs to show cause why she should not be kept in custody.
What is noticeable is that, previously, apart from culturally appropriate provisions for Indigenous Australians, all persons have been treated the same and, where the rules for obtaining bail were made more difficult, a rational connection existed between the criteria added and the underlying principles which apply to grants of bail.
In late 2013, by a combination of the CODA Act and the Criminal Law (Criminal Organisations Disruption) and Other Legislation Amendment Act (“the CODOLA Act”), an irrational element has been added to the Bail Act.
Subsection 16(3A) places the onus on the defendant to prove that continued detention is not justified. The reversal of onus is dependent upon an allegation by police that the defendant is or has been at some time in the past, a member of a criminal organisation. The subsection also requires that the defendant, if granted bail, surrender her passport.
The definition of criminal organisation is that discussed above and includes those 26 organisations deemed by schedule 1 to the CODA Act to be criminal organisations.
I say “irrational”, because it is specified:
- there is no requirement to bring evidence that the person is or was a member;
- membership may have been decades ago — so long as to have no relevance to public risk;
- the seriousness of the alleged offence is irrelevant — it may be a parking offence;
- there is no requirement that the alleged offence and alleged membership overlapped in time; and
- there need be no connection ‒ rational, spiritual or physical ‒ between the alleged membership and the alleged offence.
The result is that bail is made much more difficult to attain for a particular group of people.
This is done for reasons that have no relevance to the principles that should underpin every application for bail. And it is done where the criterion involves no allegation of wrong doing on the part of the person concerned.
The situation has been made practically more difficult following a practice direction issued by the Chief Magistrate that, effectively, means that most bail applications have to be heard by His Honour and the number that may be heard is severely restricted.
This has reduced the relevance of His Honour’s court, as many citizens have been choosing to go straight to the Supreme Court to make their bail applications.
Article 9 of the ICCPR enshrines the right against arbitrary detention.
It provides that it shall not be the general rule that persons awaiting trial shall be detained in custody but permits consideration of guarantees to appear for trial.
The irrational nature of the criminal organisation bail provisions put that legislation in danger of being in breach of article 9, as well as numerous other human rights provisions which require equality before the law.
All that Study: All that Work
The primary role of the CODOLA Act is to prevent persons who may have never been accused of breaking the law from carrying out their lawful occupations.
These include occupations that may have involved years of study and years of time spent as a lowly paid apprentice. The occupations may involve successful businesses that have been built up through years of hard work and investment of savings made through much family sacrifice.
The mode of operation of these provisions can be seen from amendments to the Electrical Safety Act 2002 (“the ESA”) — the Act under which electricians and electrical contractors are licensed to carry out electrical work.
Under the amended legislation, the regulator under the ESA must cancel or refuse electrical licences if the holder or applicant is a prohibited person.
A prohibited person is someone who, according to the Police Commissioner, is an identified participant in a criminal organisation.
The definition of criminal organisation is that in the Criminal Code referred to earlier. It includes organisations deemed by regulation including the 26 named in schedule 1 to the CODA Act.
The CODOLA Act also draws on the additional definition of “criminal organisation”, based on a group of three or more persons that has, as one of its purposes, the carrying out of certain criminal activity, labelled as serious but, often in practice, is quite trivial. In the case of expulsion from one’s occupation, the added requirement that the group, by their association, represent an unacceptable risk to the safety, welfare or order of the community, is hardly a safeguard since the decision in this regard is made on unreviewable police intelligence.
The amendments to the ESA do not define the term “identified participant”. Of great concern are amendments to the Police Service Administration Act 1990 (“the Police Act”) (also contained in the CODOLA Act) that permit the Commissioner to disclose the criminal history of a person who has, at any time in the past, been a participant in a criminal organisation.
This suggests that the term “identified participant” and, therefore, a prohibited person, may include a person identified as a result of activities that occurred in the distant past.
People may be thrown out of their chosen and hard earned occupation, not for having done anything wrong, but for having shared an interest with other people in the distant past. The implications for people who are seeking to lead a blameless life have been explained by Union Secretary, Peter Simpson.
The CODOLA Act is not restricted to sparkies.
Amendments are made to the legislation affecting the liquor industry; the building industry (building contractors and site supervisors); the racing industry; affecting pawnbrokers and second hand dealers; security providers and tow truck operators. Whole swathes of occupations through which people can contribute to society and support their families are to be removed from citizens on the basis of nothing more than an association, including, in some cases, associations in the distant past.
It is difficult to see how legislation of this kind can do other than harm.
A clear concern, apart from the sheer injustice, is that there will be little alternative for persons affected by the legislation to do anything but embark on a life of crime.
The right to work is enshrined in article 6 of the International Covenant on Economic, Social and Cultural Rights (“ICESCR”). It provides for the right to work, which includes the right of everyone to the opportunity to gain her living by work which she freely chooses or accepts.
The CODOLA Act amendments to Queensland’s occupational statutes appear to be in breach of article 6 of the ICESCR.
Prison as Punishment not for Punishment
The CODOLA Act includes amendments to the Corrective Services Act 2006 (Qld), which stipulate that a ‘criminal organisation segregation order’ (‘COSO’) must be made if the Police Commissioner advises that a prisoner is an identified participant in a criminal organisation.
Press reports indicate the harsh regime will include wire mesh walls up to five metes high.
In his reasons, His Honour refers to an affidavit by an Acting Deputy Commissioner of the Queensland Corrective Services, which states that all identified (criminal motorcycle gang) prisoners (including some on remand and including prisoners on protection) will be subject to a Restricted Management Regime (at Woodford Correctional Centre), which includes:
- out of cell time restricted to at least two daylight hours a day with the other 22 hours spent in solitary confinement;
- no visits allowed from CMG members or affiliates (this includes family members);
- no television;
- only one hour non-contact personal visit with family members per week; and
- phone calls restricted to seven personal phone calls per week of six minutes duration.
Justice Applegarth emphasises in his reasons that the adverse health effects of solitary confinement have been well-established and international instruments view it as
“… an extreme prison practice which should only be used as a last resort and then only for short periods of time.”
He further notes that the current research indicates people who have been subject to solitary confinement are at risk of long-term psychological damage.
Article 16 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (“the CAT”) prohibits all other acts of cruel, inhuman or degrading treatment or punishment which fall below torture.
It is very likely that the indefinite prison regime introduced by the CODOLA Act amounts to, at least, a breach of article 16.
The harsh prison regime amounts to bad governance for another reason.
It constitutes one more simplistic aspect of the legislative and policy strategy employed in the wave of legislation currently under consideration — impose harsh punishment, without much regard to their full effects, in order to achieve an instant fix.
While no instant fix is likely to emerge any time soon, the mental health effects of long term solitary confinement are likely to create a new series of law and order problems in the future as well as adding health costs to future budgets.
The bright spot in the premier’s political strategy is that there is so much bad governance in his assault on good governance, no one can remember it all.
However, passing laws which allow you to lock people up for 25 years and to impose a good behaviour bond for the offence of sharing a bong while going fishing with your mates is worth remembering.
Actually, locking five people up for sharing an ice-cream will be remembered.
Destroying equality before the law in eligibility for bail is a sad legacy for either a premier or an attorney-general. Few people will want to be remembered as the Dick Cheney of Queensland and the Guantanamo Music Festival is a strange name for any cultural event.
But throwing workers out of their chosen occupations on the basis of past innocent associations may be the act of bad governance that really sticks.
After all, WorkChoices has a hollow ring about it, seven years down the track.
You can follow Stephen Keim, SC, on Twitter @StephenKeim1.
 There are two alternative definitions for criminal organisation. That considered is the most open ended one although many organisations were deemed to be criminal organisations by being named in schedule 1 to the CODA Act.
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