Vroom, Vroom ... Qld magistrates go on red alert for bikie menace ... Court of Appeal to decide on separation of powers ... Or will appeal judges do "what the community wants"?
Justice (Gorgeous) George Fryberg: stay awhile
Friday (Nov. 8) is the day Qld Appeals will get to grips with the fundament of the issue - the bullying of judges by the government.
The separation of powers thing has stumped Queensland politicians for yonks (see below).
Can-Do has taken a fig-leaf out of Bjelke-Petersen's book: increased police powers; phoney law 'n' order beat-ups; mad-cap legislative schemes; and squelching civil liberties.
Where Qld Uni's Prof Jim Allan when you need him?
The very name of the main legislative adventure tells you that this has to be a stunt - the Vicious Lawless Association Disestablishment Act, 2013.
Last Wednesday (Oct. 30) Justice (Gorgeous) George Fryberg stayed proceedings on a Crown application to review the grant of bail for Jarrod (The Bikie) Brown.
He did so because the Premier had told the ABC that the judiciary should start realising what the community wants and to act accordingly.
"What we now need to see is those involved in the court system, the insiders in the legal system, start to realise that that's what the community wants and they need to act accordingly to protect the community."
The idea that judges should do what the community wants was skittled some time ago by no less an authority than the High Court.
Tasmanian QC, the late Michael Hodgman, in the course of a special leave application in an extradition case, told the court:
"Most Australians would be astonished to learn that they could be sitting at home on a Sunday night watching 60 Minutes only to have two federal policemen bursting in and seizing them ..."
Only to be interrupted by Smiler Gleeson:
"Mr Hodgman, it is not our function to decide what would astonish most Australians. It is our function to decide this case according to the law."
Fryberg laid it down pretty clearly. He was not going to decide the bail issue with the instructions of the pint-sized premier still ringing in everyone's ears.
Newman should withdraw his comments or there should be an explanation by the Crown, which is another name for the State of Queensland.
Of course, he put it all very nicely - see here.
Justice Margaret McMurdo listed the appeal against the stay for Friday, saying:
"Although it is a matter of public importance and it does involve big issues, it isn't a complicated matter."
If the judges go soft on this they will have surrounded their patch to the Bjelkiests.
[This sounds like telling the court what to do? Ed.]
In the meantime, former copper Tim Carmody, who is the new hand-picked chief magistrate, has decreed that all contested bail applications, to which s.16(3a) of the Bail Act applies, will be listed in court 20 in the Brisbane Madges' Court, with no more than two listings a day.
Chief Magistrate Carmody and Jiving Jarrod Bleijie
This has been widely interpreted as centralising the relevant applications into the hands of the Chief Madge and anyone selected by him.
The Bowen Hill Bugle said:
"Queensland's 88 magistrates have been stripped of their ability to hear contested bail applications for alleged members of outlaw bikie gangs in a move which is set the inflame the judiciary."
The Queensland bar agrees. President Roger (No Waves) Traves made some ripples, saying:
"The Bar Association of Queensland does not support a practice by which applications brought by particular classes of citizens are brought before a particular judicial officer ...
The principles of fairness and equality before the law are best served by the court as a whole dealing with these applications, not a designated judicial officer."
Early last month Carmody emailed the state's magistrates urging them not to grant bail to bikies.
He described this directive on how his troops should exercise their discretions as a "helpful aid to the state's busy magistrates".
It was strongly endorsed by the AG, Jiving Jarrod Bleijie, seen here in action.
The Judicial Conference of Australia in response to the Chief Madge's practice direction on bail today (Nov. 5) made some soothing noises:
"It would not be appropriate for the Judicial Conference of Australia to intrude upon the internal management of the business of a court ...
The expressed primary object of the practice direction is consistent with judicial independence and impartiality. Nor would it be appropriate for the JCA to express a view on the likely efficacy of this direction.
It is to be noted that the practice direction does not require that all such applications be heard by a certain magistrate or magistrates. It will be a matter for the Chief Magistrate, as the head of that jurisdiction, to decide upon the allocation of these cases within a court of highly respected and experienced judicial officers."
It was signed by Justice Philip McMurdo (Margaret McMurdo's hubby) as prez of the JCA.
The JCA has treated the whole affair far too gingerly.
Everyone knows the fix is in, but the restrained noises from the judges' lobby fail to reflect the extent to which the judicial patch is imperilled.
See JCA on the Vicious Lawless Association Disestablishment Act
See JCA on the Public Interest Declarations Act
As Gorgeous George said, separation of powers is the issue here.
It's something with which Qld politicians have long grappled, as we saw during the Fitzgerald inquiry when Campbell Newman's spiritual godfather, Johannes Bjelke-Petersen, batted away his impertinent interlocutor so brilliantly:
Michael Forde (counsel examining Bjelke-Petersen): What do you understand by the doctrine of the separation of powers under the Westminster system?
Bjelke Petersen: The Westminster system? The stock?
Forde: The doctrine of the separation of powers under the Westminster system?
Bjelke-Petersen: No, I don't quite know what you're driving at. The document?
Forde: No, I'll say it again. What do you understand by the doctrine of the separation of powers under the Westminster system?
Bjelke-Petersen: I don't know which doctrine you refer to.
Forde: There is only one doctrine of the separation of powers.Bjelke-Petersen: I believe in it very strongly, and despite what you may say, I believe that we do have a great responsibility to the people who elect us to government. And that's to maintain their freedom and their rights, and I did that - sought to do it - always.
Forde: I'm sure you're trying to be responsive to the question, but the question related to the doctrine of the separation of powers or the principles - - -
Bjelke-Petersen: Between the government and the - is it?
Forde: No, you tell me what you understand.
Bjelke-Petersen: Well, the separation of the doctrine that you refer to, in relation to where the government stands, and the rest of the community stands, or where the rest of the instruments of government stand. Is that what - - - ?
Forde: No.
Bjelke-Petersen: Well you tell me. And I'll tell you whether you're right or not. Don't you know?
Justinian