The Attorney-General Learns About The Separation Of Powers

By PATRICK KEYZER, Professor of Constitutional Law.

On 18 October last year I tweeted that the Criminal Law Amendment (Public Interest Declarations) Act was unconstitutional.

For those of you who haven’t been following this debate, or haven’t been following it closely, on 17 October 2013 the Newman Government enacted legislation that authorised the Queensland Attorney-General (at present, Jarrod Bleijie), to ask the Governor to make a “public interest declaration” that a sex offender released from detention by the Queensland Supreme Court or the Queensland Court of Appeal should be returned to prison if it was in the public interest to do so.

Just repeating that for emphasis: a politician could have the Governor (who in our tradition of responsible government must act on the advice of that politician) to send a person back to prison when they have been released by a court.

In short: this law would allow a politician to send a person to prison.

Sound like something that would happen in a police state? This is exactly the sort of thing that happens in a police state.  Extra-judicial imprisonment and punishment is exactly what happens in nasty places overseas – not here, right?

The debate in the Queensland Parliament over the legislation does not give much hope for optimism.  It was not democracy’s finest moment.

On the 16th of October the Government, without notice, was given leave for the legislation to be debated as a matter of urgency.  That debate lasted eight minutes.

On the 17th of October, at midnight, debate on the legislation commenced.  The debate lasted a grand total of two hours.  Legislation that gave politicians unprecedented power to cause the imprisonment of people was debated over two meagre hours.

The debate was characterised by more heat than light.  Members of the Government repeatedly accused the Opposition of standing up for paedophiles, or wanting to release paedophiles into the community.  What a disgraceful and reprehensible slur.  The comments were withdrawn.  But why were they even made in the first place?  Behave like adults and treat each other with civility.

While the Opposition’s contributions in the debate also wallowed in a bit of political point scoring (including gratuitous references to Joh Bjelke-Petersen’s confused testimony about the separation of powers to the Fitzgerald Inquiry, etc) the central thesis of Anastacia Palaszczuk’s speech that night – that the legislation was a gross violation of the separation of powers – was right on the mark.  The most elementary reading of Australian constitutional law would yield the conclusion that the legislation was invalid.

For all you lawyers out there, here’s the link to a detailed opinion on the legislation Invalidity of the Criminal Law Amendment (Public Interest Declarations) Act 2013.  The gist of my advice is that the new law subverted the finality of judicial decision-making, and singled out a known group of people and exposed them to the spectre of imprisonment without a judicial trial.

It is an elementary proposition of Australian law that only a court can make a binding and authoritative decision of law.  The High Court of Australia said almost one hundred years ago.  If a politician could overturn such a decision, how could any decision be safe?  Where would the line be drawn?

It is an elementary proposition of Australian law that only a court can make an order sending a person to prison.  If a politician could send people to prison, where would the line be drawn?

The rule of law, the separation of powers, judicial independence and judicial review of the lawfulness of legislative and executive conduct are the bulwarks that protect liberty in Australia.  These principles operate because politicians respect them and the courts enforce them.

So the decision of the Queensland Government not to appeal from the decisions of the Queensland Court of Appeal on 6 December striking down these laws is a very welcome decision. One would hope that it is a mark of a new era in Queensland politics where the Government shows respect for the Constitution and the judges.

Professor Patrick Keyzer is a barrister and constitutional law specialist.  After he read the legislation he contacted Prisoners Legal Service to advise them that the law was unconstitutional.  He was advised by PLS that Dan O’Gorman SC of the Queensland Bar was representing Robert Fardon in a case before the Court of Appeal.  Keyzer contacted O’Gorman and offered his assistance and the offer was accepted.  Keyzer emailed the advice which appears on this blog to counsel in November.  Counsel for Mr Fardon adopted these arguments and kindly thanked Keyzer for his contribution to the submissions in Mr Fardon’s final submissions to the Court of Appeal.  The argument was also adopted by another prisoner who was likely to be affected by the law, Mark Lawrence.    

2 Responses to The Attorney-General Learns About The Separation Of Powers

  1. Concerned says:

    Shocking that parliamentary debate on such an important issue was so brief. Thanks for the nifty summary.

  2. As a CONSTITUTIONALIST (not a lawyer) I hold that the separation of power is too often clouded. See my blog at http://www.scribd.com/inspectorrikati. However regretfully the High Court of Australia failed to make clear that for example unauthorised arrivals cannot be detained as if they are prisoners (as currently is occurring) but must be held to a minimal period needed to clarify their status and then can be deported. In my view the above article by P Keyzer was indeed correct (regardless if the courts were to agree or not) but nevertheless in other matters like the purported infringement court we have the same applied, where a Registrar (not being an officer of the court) issue orders/warrants without any supervision of a judge, and refusing any review by a judge. We should never judge the application of law being justified or not as to against whom it may be directed, as any law that is in violation to constitutional required separation of power must be struck down.

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