Happiness is about as far removed as you can get from the way many people feel about the State Government granting Attorney-General Jarrod Bleijie the power to overturn judges’ decisions and keep “the worst of the worst” offenders behind bars.
Even Premier Campbell Newman says he’s uncomfortable with the Attorney-General wielding such power to overturn judges’ decisions, but he says the community is calling for tougher sentences and that if you don’t like it, you’re “an apologist for paedophiles.”
But cast your mind back to high school and you’ll probably remember being taught that our parliamentary system is based on what’s called The Separation of Powers – the Executive, the Legislature and the Judiciary.
In other words, having made the laws, the parliament should leave it to the courts to apply those laws. No-one is being an apologist for child sex offenders. The concern here is the precedent this sets for governments targeting certain groups and then acting as judge, jury and executioner.
But is it possible the Queensland Government is in fact well within its rights to take ignore the Separation of Powers?
A nuance that seems to have escaped most was pointed out on 7.30 Queensland by QUT Senior Law Lecturer Peter Black.
Peter Black explained that whilst the Queensland Constitution states that the Supreme Court has unlimited jurisdiction, it can be overruled “either explicitly or implicitly” by a subsequent Act.
“The Queensland Constitution is just an ordinary piece of legislation. It doesn’t have any special status like the Commonwealth Constitution.”
Federally, says Peter Black, it would be a different story: “The Commonwealth Constitution would probably prohibit those laws taking place at a federal level.”
So, would the High Court attempt to shut down this legislation? Peter Black says: “It would require the High Court to extend its existing doctrine.
“But these laws I think are so provocative and arguably so offensive that this is the sort of case that might tempt the High Court to extend their existing doctrine so that they do have a mechanism by which they could restrict and strike down the constitutionality of these laws.”
Of course all this leads to the question – how else can we keep “the worst of the worst” behind bars? Jarod Bleijie himself admitted on 4BC that a better way would be for the parliament to pass tougher laws, equipping judges with tougher penalties.
There’s also been talk of introducing a US-style system where we would get to elect (presumably tougher) judges. Perhaps all of this will lead to judges taking the hint about society’s expectations and the Attorney-General will never have to use his new-found power. What do you think?