The case for a bill of rights in Queensland

 

Unlike many jurisdictions internationally, neither Australia nor the states operate under a bill of rights - with the exception of Victoria and the ACT.  While there is currently an investigation into 'traditional' freedoms at the instigation of the Commonwealth Attorney-General, there is no sign that a bill of rights will be coming any time soon at the national level. Indeed it is Coalition policy to do away with the human rights framework. The Prime Minister is reported as having said: 'Bills of rights are left-wing tricks to allow judges to change society in ways a parliament would never dare.'

But the question of a bill of rights can be framed a little differently in the Queensland context. Perhaps in recognition of that, following the 2015 Queensland election the government has indicated that it will seek advice from the Department of Justice and Attorney-General to allow 'public discussion' on the question of a bill, or charter, of rights. I think a public discussion on a bill of rights in Queensland is important and overdue. In this post I explain why.

Law reform is a 'frontline service'

Integrated frontline services

Under the Legal Profession Act 2007 (Qld) ('LPA'), the Minister may approve grants for the purpose, amongst other things, of 'the advancement of law reform.' Grants come from the Legal Practitioner Interest on Trust Accounts Fund ('LPITAF'). In 2012 the Attorney-General ordered a review of the application of these funds ('LPITAF Review'). The focus of the review was the alignment of fund distribution with the government's strategic objectives of 'front line' service delivery.

On 26 November, the Queensland government introduced the Justice and Other Legislation Amendment Bill 2014 ('Bill'). The omnibus bill seeks to amend over 30 Acts including s289(1)(h) of the LPA - the provision for grants to advance law reform. Instead, the proposal is that funds may be applied under this subsection only for the purpose of:

facilitating access to the legal system, legal information and education and legal services for members of the community, particularly economically or socially disadvantaged members of the community.

This captures many of the previous purposes of the grants, but not the advancement of law reform.  The Bill states that this amendment

reflect[s] changes as a result of the implementation of recommendations resulting from the Review of the Allocation of Funds from the Legal Practitioner Interest on Trust Accounts Fund

The LPITAF Review, however, did not recommend removing law reform from the purview of the fund. Even if it did so, this amendment ignores substantial evidence about the strategic nature of investment in law reform work in the efficient and effective delivery of justice, particularly to economically and socially disadvantaged members of the community.

In other words, the proposed amendment directly contradicts the government's stated strategic objectives. This proposed amendment should be rejected.

Planning law is not property: Sea level change in Queensland

The Torres Strait is already suffering sea level rises*

Queensland's Infrastructure Minister, Jeff Seeney, has ordered a local government authority to remove from its regional plan any references to climate change induced sea level rise. The stated objective of this directive is 'to ensure residents' rights to build and develop their properties were maintained and not restricted by their local council'. The Minister confirmed that he had intervened to protect property rights.

I suggest that instead, the Minister has a confused understanding of appropriate government authority to regulate land use, thus undermining government's own legitimacy in this area. Additionally he has generated a dissonance between the real-world market practice of insurers and the ideological myth of property as dominion. In doing so he may be exposing the local authority (and state government) to liability in the future. All in the name of property.

Does his argument have foundation? Or does it simply reflect an ideological position?

The cost of 'regular' freehold over Indigenous land in Queensland

Opening up land for development*

There is perhaps a tension within the way we understand these communities as both an expression of Indigenous autonomy but also with a more oppressive colonial past. This tension is implicit in the complicated relationship between ideas of being treated the same - having a 'regular' freehold title - and recognising communal title and traditional ownership as prevailing norms within Indigenous communities.

The Queensland government has now passed the Aboriginal and Torres Strait Islander Land (Providing Freehold) Act 2014. The Act's primary purpose is to enable the freeholding of land in Aboriginal and Torres Strait Islander communities. Presently much of this land is held as Aboriginal or Torres Strait Islander freehold or on trust for the community. The current arrangements limit the grant of these interests to traditional owners or other Aboriginal or Torres Strait Islander inhabitants of the community. The existing freehold is therefore a limited type of freehold.


The aims of this reform is to 'introduce the option of ordinary freehold title into Aboriginal and Torres Strait Islander communities'. According to the government, this will 'provide greater economic development opportunities and remove barriers to home ownership in Aboriginal and Torres Strait Islander communities.' While this may well be the effect, it raises the question: at what cost?

Queensland to reintroduce gendered statutory language

On 19 March, the Queensland Attorney-General, Jarrod Bleijie, introduced the Crime and Misconduct and Other Legislation Amendment Bill 2014 to Parliament. The Bill is designed to respond to two inquiries into the working of Queensland's Crime and Misconduct Commission. The Bill has been roundly criticised - not least by Tony Fitzgerald QC, who has described it as 'a gross abuse of power'.

In this post however, I will examine the legitimacy of a lower profile change proposed by the Bill: the renaming of the head of the CMC from 'chairperson' to 'chairman'. See eg clause 35:

35 Amendment of s 224 (Qualifications for appointment as the chairperson)

(1) Section 224, heading, ‘as the chairperson’—
omit, insert—

chairman and deputy chairman

(2) Section 224, ‘chairperson if’—
omit, insert—
chairman or deputy chairman if

How Queensland is failing to measure up to standards of accountability

Checks and balances at risk in Queensland*

Following its findings of extensive corruption in Queensland government and police service, the Fitzgerald Inquiry recommended an independent body be established, charged with investigation of corruption and crime in Queensland. 

Detailed analysis of the various common instances of other prevalent official misconduct is not called for in this report. It is sufficient to record that the evidence before this Inquiry plainly established common and, apparently, growing manifestations of other official misconduct and its central importance in facilitating major and organized crime.

The seriousness of that other official misconduct must not be overlooked. Rather it is the plainest demonstration of the need for the researched and integrated approach to organized and major crime mentioned earlier in this report.

One possible model explored by the Report was an independent commission against corruption. This was rejected because of the myriad tensions inevitably associated with it. Instead, a Criminal Justice Commission ('CJC') was recommended, to be overseen by a parliamentary Criminal Justice Committee [Part 10.2]. In 2002, the CJC merged with the Queensland Crime Commission to form the Crime and Misconduct Commission ('CMC').

As the functions of the original CJC have evolved, it is instructive, particularly in light of recent political events in Queensland, to revisit Fitzgerald's discussion of the tensions and challenges in having an independent commission against corruption. Many of his observations seem pertinent to the CMC and its relationship with the government.

In this post I will use Fitzgerald's report to provide context for why developments in Queensland are so troubling.

Is the Queensland government man enough to really get 'tough on crime'?

The Queensland government has launched a new phase in its 'war on bikies' through a raft of new regressive legislative provisions that criminalise association and provide for mandatory additional sentencing and automatic refusal of bail. In its 'unapologetic' 'crackdown' on 'criminal gangs' the government acknowledges that there will be 'some inconvenience' to law abiding citizens, but that if we have 'done nothing wrong, there is nothing to fear'.

In this post I ask why, if the government is really serious about getting 'tough on crime', it is not engaging in open discussion about, and introducing 'tough new measures' to deal with, domestic violence, sexual violence, violence against women. Is the law and order agenda in Queensland a gendered one?

Are there boundaries to freedom of contract?

Contract law recognises the application of power

Does contract as we know it continue to exist? That it may not is a fairly bold proposition...greatly discussed of course since Grant Gilmore's 'The Death of Contract' in 1974. Gilmore argued that:

The most dramatic changes touching the significance of common law in modern life also came about, not through internal developments in common law, but through developments in public policy which systematically robbed contract law of its subject matter…removing from ‘contract’ transactions and situations formerly governed by it... [p6]

In August this year, a Queensland Court of Appeal decision provided evidence to support Gilmore's thesis, upholding a purchaser's right to end an otherwise valid residential land purchase. The reason? The vendor's solicitors, in sending the contract to the purchaser's solicitors, failed to draw their attention to the warning statement attached to the front page. This breached s368A(2) of the Property Agents and Motor Dealers Act 2000 (Qld) ('PAMDA').

Does this provision, and its interpretation, really protect consumers? Or is it instead a blunt instrument that erodes all the assumptions we make about the foundations of contract law?

The Ecology of Land Regulation in Queensland

In the last couple of weeks, the Queensland government has passed changes to tree clearing legislation and introduced provisions allowing cattle to graze in certain national parks and reserves. Both changes represent a regulatory shift in land use priorities relating to biodiversity and conservation and the ecological sustainability of industrial farming that threaten legislative and policy progress on ecological sustainability.

Women in Queensland. Back to the Future.

The public and private lives of women have come under scrutiny in Queensland in the last couple of months, including in a series of statements by LNP parliamentarians and advisers.  What is the status of women in Queensland in mid 2012, a few months after the swearing in of the Newman government?