Campbell Newman, like Vladimir Putin, has forgotten there is more to democracy than winning elections, says Peter Callaghan SC.
There is actually more to democracy than winning elections. We know that the Newman/Bleijie government won an election last year – so did Vladimir Putin's. What makes our democracy different is respect for conventions like judicial independence, engagement with the parliamentary process, and adherence to the rule of law.
the way a government behaves towards the democratic process is only a manifestation of the way they would behave towards each of us individually
With its rash of mandatory sentencing provisions and petulant outbursts about judges, the government revealed its attitude towards judicial independence. It is, for them, a plaything to be tossed around for sport, and discarded when inconvenient.
And today we can again gauge, precisely, the amount of respect that the government has for parliamentary process. A parliamentary committee that ought to be given at least a month to look at these laws has all of one day. That task cannot be completed in that time, at least not with intellectual rigour. One senses that even this act of tokenism is viewed as an inconvenience. You can almost hear muttering to the effect that Putin does not have to worry about the scrutiny of parliamentary committees.
It is not as if the Bill is uncontroversial. In fact, it cloaks daggers aimed at the heart of the rule of law. For example, once this law is passed, a citizen's liberty will potentially be affected not just by what they did, or what they belonged to at the time of an alleged offence. Freedom is now to be threatened if a person is or at any time has been a member of a relevant organisation. It is sickening to think that the language of Joseph McCarthy is now part of the Law of Queensland. And remember, “organisations” are not limited to groups of “bikies”.
It is just wrong to change someone's status in the eyes of the law because of something they did long ago, back when that something was perfectly legal. At any given time, the law must be certain. All citizens are entitled to know the laws that apply to them on any given day, and not to have their conduct condemned years after the event.
It is sheer folly to claim that such a change can ever be justified because of an “emergency”. An executive government that thinks it can legislate retrospectively is a government for which anything is possible, because it can provide its own definition of “emergency”. If it thinks it can legislate retrospectively, there is nothing to stop it from removing long-standing pension entitlements because of a financial “emergency”, or retrospectively invalidating a well-established planning law because of a housing “emergency”.
It is hard to see how the fact that someone belonged to a motorcycle club 40 years ago could create a sense of panic in anyone. It is actually doubtful whether the majority of Queenslanders were feeling any sense of “emergency” that could justify a law like this. But a different sort of problem does now confront us, as it does any society that allows legislation of this kind.
Retrospective legislation is condemned by every civilised nation in the world. These countries hold to the values expressed in Article 15 of the International Covenant on Civil and Political Rights, a Covenant supported by most countries on the planet. However, there is a short list of places in the world – such as North Korea – where the beliefs that underpin that Covenant are clearly not valued.
It cannot be good for Queensland's "brand name" to be associated with the countries on that list. But we are now a place where, at any given time, the law should be considered uncertain. That is not good for business.
It would be nice to think that the discussion about this issue could take place in language at least worthy of a high school debate. Instead, we can anticipate repetition of clichés and parroting of the term “tough new laws”. Understand this – our laws were always tough. Whether the police and the CMC were sufficiently resourced to enforce them is another matter. The same politicians who control those resources should not be allowed to distract from their failings by describing retrospective legislation as “tough”. Call it – and the rest of this nonsense - what it is: radical, disproportionate and obnoxious.
It should be remembered that the way a government behaves towards the democratic process is only a manifestation of the way they would behave towards each of us individually – by definition, we are the democracy.
And when any one of us senses that we are being treated with utter disrespect, it does not take long for that feeling to become mutual.
Peter Callaghan SC is president of the Law and
Justice Institute (Qld) Inc.