26 March 2014

Queensland's Great Leap Backwards

The passionate 'The Great Leap Backward: Criminal Law Reform with the Hon Jarrod Bleijie' by Andrew Trotter and Harry Hobbs in (2014) 36 Sydney Law Review [PDF] discusses the deeply problematical G20 Act and comments that 
On 3 April 2012, the Honourable Member for Kawana, Jarrod Bleijie MP, was sworn in as Attorney-General for Queensland and Minister for Justice. In the period that followed, Queensland’s youngest Attorney-General since Sir Samuel Griffith in 1874 has implemented substantial reforms to the criminal law as part of a campaign to ‘get tough on crime’. Those reforms have been heavily and almost uniformly criticised by the profession, the judiciary and the academy. This article places the reforms in their 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.
The authors state -
Human rights in the criminal law were in a fairly dire state in the Middle Ages. Offenders were branded with the letters of their crime to announce it to the public, until that practice was replaced in part by the large scarlet letters worn by some criminals by 1364. The presumption of innocence, although developed in its earliest forms in Ancient Rome, does not appear to have crystallised into a recognisable form until 1470. During the 16th and 17th centuries, it was common to charge the families of a prisoner sentenced to death a fee for their execution, but by the 18th century prisoners had largely been relieved of the indignity of paying for their punishment. The coercive force of the state was a common and accepted tool for extracting incriminating information until torture was abolished in England in 1640, and from the early 18th century in other parts of Europe. Prosecutors were free to use a defendant’s criminal history against him in a criminal trial until about 1715. It was not until 1836 that reference to such evidence was statutorily restricted to cases where it served some purpose — either to respond to credibility attacks by the defendant or as similar fact evidence. Criminals whose acts sufficiently shocked the public conscience would be repeatedly punished, sometimes beyond death, with their disinterred cadavers subjected to further humiliation. This practice finally ceased in Ireland in 1837. 
By 1840, the concept of supervised release and reintegration of prisoners was developing, which would lead to the establishment of the parole authorities and court-ordered parole.8 Mandatory sentences were relatively common in the 18th and 19th centuries, but the last widespread network of minimum sentences was abandoned in 1884 after it became clear that they had a tendency to cause injustice. By 1915, suspended sentences had been introduced in some Australian courts, providing another means of sentencing offenders and deterring future offending. Emergency legislation providing for extraordinary offences and police powers had become unfashionable. 
By the turn of the 21st century, the criminal law had come a long way. 
Since coming to office in Queensland on 3 April 2012, Attorney-General Bleijie has, with remarkable efficiency, undone the better part of these developments in that State. From 20 June 2012, he reintroduced mandatory minimum sentences for various crimes, ranging from child sex offences to graffiti. On 21 August 2012, he introduced a levy charging sentenced offenders to ensure they ‘contribute to the justice system’. On 15 March 2013, he announced reforms to reveal defendants’ criminal histories to juries. On 1 May 2013, legislation he had introduced passed, authorising the seizure of ‘unexplained wealth’ and abrogating the presumption of innocence to require an explanation. On 31 July 2013, he announced a plan to abolish court-ordered parole and suspended sentences. On 20 August 2013, he introduced legislation to criminalise the possession of various innocuous objects during the G20 Conference and equipped police with emergency coercive powers. On 21 September 2013, the Queensland government moved to establish a website to announce the identity of certain offenders to the public. On 15 October 2013, he introduced legislation establishing crushing terms of imprisonment to be imposed for crimes committed in groups, which can be avoided only by providing inculpatory information. On 17 October 2013, he purported to give himself power to detain sex offenders indefinitely, after the expiration of their sentence, if, in his substantially unreviewable discretion, he considered it in the public interest. He has noted that there are roughly 6000 prisoners in Queensland, and room for about 500 more. There are, no doubt, more reforms to come. 
Each of these ‘reforms’ is an aspect of a broader policy to be tough on crime. There is no occasion in this article for a full exploration of the effectiveness of such a strategy: it is sufficient to observe that harsher punishments have been repeatedly and categorically demonstrated not to have the desired deterrent effect. Tough-on-crime movements have failed many times before. However, there is something troubling in Bleijie’s approach to reform. He has frequently cited community sentiments in support of harsher criminal laws. His focus on ‘victims’ rights above and beyond the offender’s rights’ comes at the expense of proper consultation and a balanced approach to law reform. The almost uniform opposition of an overwhelming majority of interested organisations with considerable expertise has been disregarded, and a body of experts established specifically for the purpose of considering and advising on proposed sentencing reforms has been abolished. As early as 1820, Frenchman Charles Cottu expressed his dismay at the English system of the time ‘confiding its punishment entirely to the hatred or resentment of the injured party’. It would be profoundly undesirable to return to such a time. This article traverses the historical background to each of Bleijie’s proposed and legislated endeavours. These endeavours disregard lessons learnt through centuries of reform and return the criminal law to a state from which it had long and happily departed.
In concluding they comment
For most of their history, baked beans have gone unnoticed by the criminal law. Haricot beans were introduced to Europe from Native America in the 16th century. They were used in ‘bean hole’ cooking, common in logging camps in Maine, and canned beans with pork: one of the early convenience foods. The first serious controversy came when this was attacked by consumers for not containing sufficient pork, until the United States Food and Drug Administration authoritatively determined that it ‘has for years been recognised ... that [it] contains very little pork’. The first recipe for baked beans was published in 1829 and designed to help poor families through the depression of the 1820s. By 1841 they were no longer a food for the poor, but for the industrious who were ‘growing rich’. Heinz Baked Beans came onto the market in the United Kingdom in 1898 and enjoyed a relatively uncontroversial existence for a time. By the 1930s, they were losing their connotation of frugality and gaining one of ‘health, spirituality and autonomy’. 
Admittedly, recent years have been slightly more turbulent. In 2007, Hugh Grant was arrested after an allegation that he assaulted the paparazzi with baked beans. In 2013, a woman was jailed for 20 months after ransacking a friend’s home with baked beans. In light of such incidents, it could be considered alarming that, in just four days in Britain, the same number of cans of baked beans is consumed as the number of guns manufactured in the US in an entire year. However, 2.3 million people in Britain continue to eat them every day, for the most part without incident. 
Then, on 20 August 2013, the Queensland government introduced legislation providing extraordinary powers for the policing of the G20 Heads of Government Summit in Brisbane on 15 and 16 November 2014. The Explanatory Notes to the Bill admit to ‘a number of provisions of the Bill that are not consistent with fundamental legislative principles’. An examination of those offending provisions occupies the next 12 pages of the Explanatory Notes. 
The G20 Act prohibits a number of items, including categories of weapons as well as antique firearms, knives, swords, spear guns, blowpipes, explosive tools, flares and cattle prods. However, the list includes more mundane items, including glass bottles or jars, eggs, reptiles and insects, two-way radios, urine, remote-controlled toy cars, manually operated surf skis, surfboards, kayaks, boats or canoes, flotation devices, and, relevantly, metal cans or tins. In case anything has been omitted, a catch-all provision extends to anything ‘that is not a weapon but is capable of being used to cause harm to a person’. With the passage of the G20 Act, the can of baked beans has achieved a new level of criminality. The breadth of this provision is ‘plainly absurd’. 
It is prohibited, without lawful excuse, to possess, attempt to take into, or use a prohibited items in a ‘security area’. This includes vast areas of both central Cairns and Brisbane, extending from South Brisbane across Spring Hill to Breakfast Creek, encompassing ‘tens of thousands of homes and businesses’. A child operating a remote-controlled toy car in their backyard, a family using a knife to consume food at a barbecue on South Bank, or construction workers using explosive tools to carry out their work, will have a ‘lawful excuse’. However, the Bill reverses the presumption of innocence. Any person carrying a tin of baked beans at Kangaroo Point is prima facie guilty of an offence and must provide a lawful excuse for their possession. 
Certain searching and other coercive powers are conferred on police officers and other ‘appointed persons’, who may be anyone who the Commissioner is reasonably satisfied ‘has the necessary expertise or experience to be an appointed person’. A police officer may enter and search any non- residential premises in a restricted area without a warrant in order to find that tin of baked beans. They may then conduct a ‘basic’ or ‘frisk’ search on anyone in the premises, or indeed anyone attempting to enter, about to enter, in, or leaving, a security area. An appointed person could search such a person’s bag in certain security areas for the prohibited haricots. If the police reasonably suspect that the person is in possession of a can of Heinz without lawful excuse, they may conduct a strip search or medical X-ray to locate the beans. If the person refuses, the police officer can arrest that person without a warrant. If the person is then charged with ‘attempting to disrupt any part of the G20 meeting’, the presumption in favour of bail is reversed. In any event, the Queensland courts will be closed for the week of the conference. 
In addition, a person can be prohibited from entry into any security area if the Police Commissioner is reasonably satisfied that he or she may disrupt any part of the G20 meeting. Unless it is ‘reasonably practicable to do so’, the person need not be notified of the prohibition; and the list need not be made public. If the person enters or is in a prohibited area, he or she is liable to be removed by police or appointed persons. If the person lives in the security area, the cost of their alternative accommodation will fall to the Queensland government. 
The use of extraordinary police powers during G20 summits is not new. In 2010, the Ontario government came under fire for using an obscure 1939 Act, which had originally been enacted to protect Ontario’s hydroelectric facilities against Nazi saboteurs, to pass a regulation giving police broad arrest powers during the summit. This was done despite the Federal Deputy Minister of Public Safety’s advice to his Provincial counterpart that existing police powers were ‘sufficient’. The Ontario Provincial Police also considered that additional powers were unnecessary. The same could be said of the Queensland laws. 
With the benefit of those coercive powers, authorities ‘fuelled the belief’ that any person within five metres of the summit security fence would be required to provide identification and submit to a search. In reality, this power could only be exercised within the security fence. In response to allegations that the widespread misunderstanding of the regulations had a chilling effect on the rights of citizens and emboldened police, Toronto Police Chief Bill Blair was unrepentant, explaining that he ‘was trying to keep the criminals out’. During the summit, 1100 people were arrested, of whom 779 were released without charge, 204 had charges stayed, withdrawn or dismissed, and 40 others ended without a conviction. By contrast, more than 30 police officers were recommended for full disciplinary hearings. 
The history of emergency legislation is characterised by legislative excess in times of panic and emergency. Fear has never been a good legislator. In his powerful dissent in Korematsu v United States, Jackson J warned that every emergency power, once conferred ‘lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need’. It is positive that the G20 legislation will expire on 17 November 2014, but the potential for excesses of the Canadian variety is concerning. …. 
Bleijie and his government are cutting red tape, green tape,and blue tape. 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. This article has traversed history to illustrate centuries of improvement to the criminal justice system and to human rights — undone with each snip of the legislative scissors. 
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 or 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. 
If this historical context is not enough to illustrate the thorough undesirability of the criminal reforms legislated and foreshadowed by the Attorney-General, there is no shortage of practical and policy objections to supplement it. Some of these have been mentioned in the case of each reform, but they only graze the surface of the criticisms that have been more fully aired in the various submissions on each Bill, the academic discussion and the public objections of civil libertarians. 
The role of the institution of criminal punishment is ‘a very old and painful question’. The tension between the ‘passionate, morally toned desire to punish’ and the ‘administrative, rationalistic normalising concern to manage’ can be traced back to the famous disagreement between Plato and Aristotle on whether the function of the criminal law was to punish past wrongs or moderate future conduct. It is clear that there is an ‘obligation of the government to protect’, which has been characterised by the United States Supreme Court as ‘lying at the very foundation of the social compact’. However, it is clear also that human rights must ‘tame the excesses of political pursuits of security and public protection’. There is a delicate balance to be struck. Bleijie’s approach to reform, and his reforms themselves, have failed to strike this balance. The roll-back of human rights in Queensland, primarily instigated by the Attorney-General, must be noted in detail. In due course, steps must be taken to redress his great leap backward.