Queensland laws on bikie gangs and sex offenders will fail: Tony Fitzgerald
- AAP
- October 28, 2013
Tony Fitzgerald QC has warned Queenslanders not to be duped by laws he views as dangerous.
This month, the government gave itself the power to bypass the courts and keep some sex offenders in jail indefinitely.
Parliament also passed new laws that mean judges must now impose two sentences on criminal bikie gang members who commit a serious crime - one for the crime itself and another for being part of a declared criminal gang.
Mr Fitzgerald says Queenslanders should understand the gravity of the laws, which he warns are likely to fail.
New laws will fail, Fitzgerald says
"History teaches us that claims that repressive laws will reduce serious crime are usually hollow and that laws which erode individual freedom and expand a state's power over its citizens are fraught with peril," he writes in an opinion piece in The Courier-Mail.
He says parliament could chose to enact any law.
But parliamentarians "don't have a 'mandate' to give effect to prejudices and ill-informed opinions, ignore ethics and conventions or attack fundamental values such as personal freedom or essential institutions such as the judiciary".
Mr Fitzgerald says both sets of laws are populist and suggests they exploit the fears of less-educated Queenslanders.
He cites Wikipedia's definition for a demagogue, saying it provides an uncomfortable insight into modern politics.
"A demagogue ... is a political leader in a democracy who appeals to the emotions, fears, prejudices, and ignorance of the less-educated citizens in order to gain power and promote political motives."
Mr Fitzgerald is also scathing about how the government has handled concern about its laws.
Last week, Premier Campbell Newman called critics of the sex offender laws "apologists" for pedophiles.
"It is extremely arrogant and socially destructive for politicians to slander citizens who disagree with their 'political solution' or to denigrate the judicial branch of government and its generally conservative judges, who must make sometimes unpopular decisions in accordance with the law and available evidence and their oath of office," Mr Fitzgerald writes.
"And it is incomprehensible that any rational Queenslander who is even remotely aware of the state's recent history could for a moment consider reintroducing political interference into the administration of criminal justice, even to the point of making decisions about incarceration."
Mr Fitzgerald said he wrote the piece as a private citizen who was not aligned with any political party.
"I am a private citizen who has noticed that more problems are solved by thoughtful discussion than political grandstanding and personal abuse," he said.
The premier's office declined to directly address Mr Fitzgerald's criticisms today.
A spokesman for Mr Newman said the government was simply delivering on its plan to make Queensland safe.
Queensland laws on bikie gangs and sex offenders will fail: Tony Fitzgerald
- AAP
- October 28, 2013
Tony Fitzgerald QC has warned Queenslanders not to be duped by laws he views as dangerous.
This month, the government gave itself the power to bypass the courts and keep some sex offenders in jail indefinitely.
Parliament also passed new laws that mean judges must now impose two sentences on criminal bikie gang members who commit a serious crime - one for the crime itself and another for being part of a declared criminal gang.
Mr Fitzgerald says Queenslanders should understand the gravity of the laws, which he warns are likely to fail.
New laws will fail, Fitzgerald says
"History teaches us that claims that repressive laws will reduce serious crime are usually hollow and that laws which erode individual freedom and expand a state's power over its citizens are fraught with peril," he writes in an opinion piece in The Courier-Mail.
He says parliament could chose to enact any law.
But parliamentarians "don't have a 'mandate' to give effect to prejudices and ill-informed opinions, ignore ethics and conventions or attack fundamental values such as personal freedom or essential institutions such as the judiciary".
Mr Fitzgerald says both sets of laws are populist and suggests they exploit the fears of less-educated Queenslanders.
He cites Wikipedia's definition for a demagogue, saying it provides an uncomfortable insight into modern politics.
"A demagogue ... is a political leader in a democracy who appeals to the emotions, fears, prejudices, and ignorance of the less-educated citizens in order to gain power and promote political motives."
Mr Fitzgerald is also scathing about how the government has handled concern about its laws.
Last week, Premier Campbell Newman called critics of the sex offender laws "apologists" for pedophiles.
"It is extremely arrogant and socially destructive for politicians to slander citizens who disagree with their 'political solution' or to denigrate the judicial branch of government and its generally conservative judges, who must make sometimes unpopular decisions in accordance with the law and available evidence and their oath of office," Mr Fitzgerald writes.
"And it is incomprehensible that any rational Queenslander who is even remotely aware of the state's recent history could for a moment consider reintroducing political interference into the administration of criminal justice, even to the point of making decisions about incarceration."
Mr Fitzgerald said he wrote the piece as a private citizen who was not aligned with any political party.
"I am a private citizen who has noticed that more problems are solved by thoughtful discussion than political grandstanding and personal abuse," he said.
The premier's office declined to directly address Mr Fitzgerald's criticisms today.
A spokesman for Mr Newman said the government was simply delivering on its plan to make Queensland safe.
Queensland laws on bikie gangs and sex offenders will fail: Tony Fitzgerald
- AAP
- October 28, 2013
Tony Fitzgerald QC has warned Queenslanders not to be duped by laws he views as dangerous.
This month, the government gave itself the power to bypass the courts and keep some sex offenders in jail indefinitely.
Parliament also passed new laws that mean judges must now impose two sentences on criminal bikie gang members who commit a serious crime - one for the crime itself and another for being part of a declared criminal gang.
Mr Fitzgerald says Queenslanders should understand the gravity of the laws, which he warns are likely to fail.
New laws will fail, Fitzgerald says
"History teaches us that claims that repressive laws will reduce serious crime are usually hollow and that laws which erode individual freedom and expand a state's power over its citizens are fraught with peril," he writes in an opinion piece in The Courier-Mail.
He says parliament could chose to enact any law.
But parliamentarians "don't have a 'mandate' to give effect to prejudices and ill-informed opinions, ignore ethics and conventions or attack fundamental values such as personal freedom or essential institutions such as the judiciary".
Mr Fitzgerald says both sets of laws are populist and suggests they exploit the fears of less-educated Queenslanders.
He cites Wikipedia's definition for a demagogue, saying it provides an uncomfortable insight into modern politics.
"A demagogue ... is a political leader in a democracy who appeals to the emotions, fears, prejudices, and ignorance of the less-educated citizens in order to gain power and promote political motives."
Mr Fitzgerald is also scathing about how the government has handled concern about its laws.
Last week, Premier Campbell Newman called critics of the sex offender laws "apologists" for pedophiles.
"It is extremely arrogant and socially destructive for politicians to slander citizens who disagree with their 'political solution' or to denigrate the judicial branch of government and its generally conservative judges, who must make sometimes unpopular decisions in accordance with the law and available evidence and their oath of office," Mr Fitzgerald writes.
"And it is incomprehensible that any rational Queenslander who is even remotely aware of the state's recent history could for a moment consider reintroducing political interference into the administration of criminal justice, even to the point of making decisions about incarceration."
Mr Fitzgerald said he wrote the piece as a private citizen who was not aligned with any political party.
"I am a private citizen who has noticed that more problems are solved by thoughtful discussion than political grandstanding and personal abuse," he said.
The premier's office declined to directly address Mr Fitzgerald's criticisms today.
A spokesman for Mr Newman said the government was simply delivering on its plan to make Queensland safe.
Queensland party crackdown out of control
Updated
For all the absurdities of Queensland's anti-bikies legislation, its bill cracking down on parties is probably worse, writes Chris Berg.
Every government has a reform program of some description. The reform program of Campbell Newman's Queensland government is to expand, to a ludicrous and dangerous extent, the powers of the police.
Admittedly, the title of the Police Powers and Responsibilities and Other Legislation Amendment Bill doesn't have the same sort of grunting aggression as the Vicious Lawless Association Disestablishment Bill, which was passed earlier this year to target bikies.
But for all the absurdities of the anti-bikies legislation, the bill currently being considered by the Queensland parliament is probably worse.
The bogey-man in this bill is "out-of-control" parties. No doubt you can conjure up such a threat to public order in your mind. Hundreds of drunk teenagers spilling out on the street and damaging nearby property.
But according to the draft bill, a party is a gathering of twelve or more people. And it is considered out-of-control if three people at that party do something like be drunk in a public place, cause excessive noise, unreasonably block the path of a pedestrian, litter in a way that might cause harm to the environment, or use "indecent" language.
The punishment for holding a party that gets out-of-control? A $12,000 fine or a year's jail. In other words, a party host is punished for the actions of party guests. For good measure, the bill allows police to enter property uninvited without a warrant.
Out of control parties are a classic moral panic. They involve teenagers. They involve alcohol. They involve new technologies - house parties are now being organised on social media. This apparently makes them worse than they used to be.
Of course before Twitter and Facebook there was the text message. People panicked about text message parties too. And before text messages? Well, teenagers clearly found some way to organise wild parties that ended in arrests.
Modern police forces have existed since the nineteenth century. For two centuries parliaments have been loading the criminal statutes up with new offenses. According to the government, "the ever increasing size, frequency and societal impact of these out-of-control events in recent times has necessitated the development of specific legislation". Yet everything that makes an out-of-control party out-of-control is illegal already.
It is already illegal to be drunk and disorderly. It is already illegal to riot. It is already illegal to harass pedestrians, use indecent language, breach the peace, be a public nuisance, threaten another person, throw a bottle, damage property, assemble unlawfully, supply minors with alcohol, fight, show your private parts in public, be a hoon, light fireworks, endanger the safety of another individual, litter, trespass, and be excessively noisy.
A recurring feature so many legislative proposals in our modern era is that they mirror existing offenses. At best, this makes them redundant. At worst - as in this anti-party bill - they offer prosecutors and law enforcement officers a menu to pick and choose whatever charge will meet with the greatest punishment.
In other words, they vest police officers and prosecutors with enormous discretion to act, arrest, and charge however they like. It has to. There's no way the Queensland police could enforce the law, as written, on any of the innumerable parties that occur every weekend across the state. Three people swearing at a party of more than a dozen guests that annoys the neighbours? Hard to imagine a party that wouldn't fit this criteria.
A basic tenet of liberal democracy is that politicians - the representatives of the people - write the laws to shape the society they want. The permanent, administrative arm of government merely enforces those laws, neutrally and consistently.
That's the ideal, anyway. But not all statutes are enforced equally. The police, and their prosecutors, have an enormous amount of discretion about what laws they chose to focus on. (Hence the periodic "crackdowns" on jay-walking or speeding. If all laws were enforced at all times, there would be no need for crackdowns.)
No matter how many rules we impose on police work, discretion is inevitable. Inevitable but not desirable. A liberal democracy is a government of laws, not a government of men, as James Adams said. As far as possible, we don't want to trust justice and our liberty to the judgment of fickle individuals.
Police officers are no better or worse than the rest of us. There are bad eggs in law enforcement, as there are in the general public. And good eggs can sometimes have bad days. Queensland's anti-party legislation empowers good eggs and bad eggs alike.
As does the anti-bikies legislation, which is so over-blown that it borders on surrealism. Such laws invite the sort of miscarriages of justice that a liberal democratic legal system should strive to avoid Australians who don't live in Queensland should be paying attention too.
One feature of Australian federalism is that states learn from each other. A law in one state is apt to be copied by another state. We saw anti-bikies laws replicated across the country earlier this decade. No question that all state governments will consider imposing Queensland-style laws themselves.
Defending his out-of-control parties bill, the Queensland Police Minister has argued that "the majority of people who do the right thing have nothing to fear". Well, that's not the way the bill is written. Not if the letter of the law is enforced. No free society should rest their liberties on the discretion of the agents of the state.
Chris Berg is a Research Fellow with the Institute of Public Affairs. His most recent book is In Defence of Freedom of Speech: from Ancient Greece to Andrew Bolt. Follow him on Twitter: @chrisberg