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.

Criminal Law Amendment (Public Interest Declarations) Act Deemed Unconstitutional

By PATRICK KEYZER, Professor of Constitutional Law.

The Criminal Law Amendment (Public Interest Declarations) Act is almost certainly unconstitutional.  The High Court has said previously that the imprisonment of a person who is judged to be dangerous can only be ordered by a court reviewing the evidence.  This unprecedented law usurps the role of the Supreme Court of Queensland and the Queensland Court of Appeal, giving the Attorney-General the judicial power to order that a person should be imprisoned.

This legislation will certainly be subjected to a constitutional challenge.

The Criminal Law Amendment (Public Interest Declarations) Bill 2013 can be accessed here: Criminal Law Amendment (Public Interest Declarations) Amendment Bill