Melbourne criminal defence lawyer Andrew Trotter and Harry Hobbs, a human rights legal and policy adviser at the ACT Human Rights Commission, have published their paper The Great Leap Backward: Criminal Law Reform with the Hon Jarrod Bleijie, in the Sydney Law Review.
The introduction of a series of mandatory sentences fails to learn from an error made and swiftly undone in 1884
It puts Queensland government's law reforms in historical context “to illustrate that together they constitute a great leap backward that unravels centuries of gradual reform calculated to improve the state of human rights in criminal justice”.
Mr Bleijie said the government was just “keeping the promise we made to Queenslanders”, “that we would rebalance the scales of justice for victims of crime and make this state the safest place to raise a family”.
But the article singled out the government's unexplained wealth laws, admissibility of prior convictions, mandatory minimum sentences, VLAD and anti-gang laws, offender levy, sex offender laws, publishing offenders' details and G20 laws as impacting on the presumption of innocence, the right to a fair trial and the principle of a fresh start for offenders.
“Bleijie and his government are cutting red tape, green tape, and blue tape,” they wrote.
“To this we would add the 'golden thread' of the presumption of innocence, and the various other strands of gold tape meticulously woven over the course of centuries to restrain criminal proceedings from impinging upon human rights and ensure the fair administration of criminal justice.” they wrote.
“...The development of a government website to publish the photos of sex offenders is reminiscent of scarlet letters laws dating back to 1364. Unexplained wealth laws serve to further unravel the presumption of innocence, which the common law began weaving as early as 1468 and had more of less perfected by 1935.
“The introduction of an offender levy is akin to charges imposed on prisoners for their own penalties in the 16th and 17th centuries.
“The threat of 15 or 25 years extra imprisonment unless the prisoner produces information is not much more subtle than the extraction of such information by torture in England before 1640.
“Allowing juries access to the criminal histories of defendants undoes a refined framework that has stood in place since 1836. The largely unreviewable and unconstrained power to detain sex offenders after they have served their sentence is reminiscent of post-punishment penalties that were abandoned by 1837. The abolition of court-ordered parole and suspended sentences would derogate from the graded system of deterrent mechanisms that has gradually developed since 1840.
“The introduction of a series of mandatory sentences fails to learn from an error made and swiftly undone in 1884. The emergency G20 laws and the coercive police powers that support them repeat the Canadian mistake of 2010.”
The authors concluded that in “due course, steps must be taken to redress his great leap backward”.
Vice-president of the Queensland Council for Civil Liberties, Michael Cope, said the article “has the merit of just demonstrating the broad range and depth of the attack on basic principles of due process which were designed to limit the state's power to arbitrarily deprive people of their liberty”.
Mr Bleijie said the government would stay the course with its law reforms.
“All of the government's law and order reforms are firm but fair and they are working,” he said.
“We are ahead of the game compared to other states with the crime rates for certain offences on the Gold Coast significantly down following the implementation of our anti-gang legislation and sex offenders now face the toughest laws in the country.”