The fragility of liberty in Australia

Last week the Queensland Attorney-General, Jarrod Bleijie MP, decided not to appeal two decisions of the Queensland Court of Appeal, handed down on 6 December last year, striking down the Criminal Law Amendment (Public Interest Declarations) Act.

The Public Interest Declarations Act, enacted on 17 October 2013, was the latest in a decade of reforms to the law governing the preventive detention of serious sex offenders.

The Act authorized the Attorney-General to "request" the Governor of Queensland "in Council" 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.

The Queensland Constitution requires that when the Governor is "in Council" that she acts on the advice of her Ministers including, of course, the Attorney-General. So, effectively, this law would have allowed the Attorney-General, via a procedure providing no genuine review criteria, to reverse a decision of the Queensland Supreme Court or the Queensland Court of Appeal.

Should politicians have the power to reverse a decision of a court?

Thankfully the Queensland Court of Appeal said "no". The fundamental constitutional reasons are that: 1. only a court can make a binding and authoritative decision of law; 2. only a court can order the imprisonment of a person; and 3. punishment can only be ordered after a judicial trial.

However the process leading up to the enactment of the legislation is worthy of closer attention. It indicates that the Queensland Parliament has become a weak link in the chain protecting civil liberties in Australia:

First, it is a unicameral assembly. There is no house of review, as in the other States. There are many examples of how upper houses in the other States have amended draconian legislation. Queenslanders lack this protection.

Second, independent committees have been eradicated. The committee system in Australian parliaments has at times been an effective way for Oppositions, minor parties and independents to ensure responsible government. But Governments find such committees embarrassing, so the Queensland Government has taken steps to stop them from operating.

Third, the Scrutiny of Legislation Committee was disbanded. This important Committee of the Queensland Parliament, though operating with a small budget, was able to regularly access independent, external, expert advisors to review legislation and ensure that parliamentarians were made aware of the impact of Queensland legislation on civil liberties and human rights. It published Legislation Alerts that were high quality and richly informed discussion and debate. There is still a system for what is called "technical scrutiny" but this process is much shorter and rarely involves external advice.

Fourth, parliamentary debates about this legislation were inappropriately short. Debate on the Public Interest Declarations Act in the Parliament – legislation which posed an unprecedented challenged to the separation of powers – lasted only about two hours. The debate was brought on without notice after an urgency motion passed on party lines. This truncated opportunity for serious review and effectively removed any prospect of considered amendment.

There needs to be a considered debate in Queensland about the way Parliament operates to ensure that it is mindful of our constitutional protections.

Introducing a house of review in the Queensland Parliament is very unlikely. But an independent committee system, reintroduction of the Scrutiny of Legislation Committee and/or provision for genuine debate in the Parliament would go a long way toward ensuring better government. Any of these measures would have provided an opportunity for the Public Interest Declarations Act to be carefully reviewed. Given the significance of the constitutional issues involved, this careful review was entirely necessary. If it had taken place, the Queensland Government would have likely been spared the humiliation of losing a constitutional case in the Court of Appeal. Queensland taxpayers would have been spared the expense of losing that case too, since the loser, the Government, must pay the winner's costs. The extreme expense of constitutional litigation warrants closer examination of the legislative process and reconsideration of some of the features of the system that have been abandoned in recent years.