Abuse of power does nothing to protect us

Politicians who cynically misuse the power of the state for personal or political benefit are a far greater threat to democracy than criminals, even organised gangs, write Gary W Crooke and Tony Fitzgerald, who were responsible for the Fitzgerald Inquiry.

Almost all politicians, even those who care only for ideology and power and who regard both democracy and "ordinary people" with contempt, claim to represent and speak for those "ordinary people".

Politicians also commonly manipulate and exploit the same "ordinary people". Long-established tactics include populist propaganda; appeals to ignorance, emotion, fear and prejudice; untestable claims to know, and unachievable promises to provide, what "ordinary people" want; lies; half-truths; omissions; and distractions. Unpopular groups are demonised and used as scapegoats. Crises are manufactured and exaggerated and used to justify immediate action and increased state power. Deliberation and rational discussion are scorned. Critics, including moderate, thoughtful people and institutions, are falsely accused of weakness, elitism, not understanding or caring about "ordinary people", failing in their duty and even improper conduct.

"Law and order" is a favourite issue for ambitious Queensland politicians seeking publicity and political advantage. The community wants to be safe, and is understandably angry at violent thugs, organised criminal gangs, the sexual abuse of children, murder, rape and a wide range of other anti-social behaviours. A perceived "law and order" crisis allows a government to bolster its electoral support through tough talk, a feigned macho image and extreme laws.

Queensland's political system facilitates this misuse of power. Its Parliament is based on the old, flawed Westminster model but, unlike Westminster and the other Australian jurisdictions, it has no second "review" chamber to inhibit the government of the day. The Government has almost unlimited power to make whatever laws it chooses. As Queenslanders know from bitter experience, it can even enact electoral laws which favour it and enable it to extend its time in power. Indeed, according to media reports, changes to the electoral system for the Government's benefit are in the background of its present multi-faceted faux law and order crisis.

A few months ago, the imminent release of a paedophile led to the Government enacting ss 3 and 6 of the Criminal Law Amendment (Public Interest Declarations) Act 2013, which were patently invalid. At about the same time, a well-publicised "bikie" brawl on the Gold Coast provided the Government with a "bikie" crisis.

Outlaw bikies and other organised crime groups have been around for years and such statistics as are publicly available suggest that bikie gangs are involved in less than 1 per cent of Gold Coast crime.

Nonetheless, that brawl was used to justify ill-considered, rushed, badly drafted and inevitably controversial legislation targeting bikies. Over the same period, the Government transformed the Crime and Misconduct Commission from a watchdog to a lapdog and peremptorily sacked the independent Parliamentary Crime and Misconduct Committee.

A Queensland Government can declare almost any conduct and any group illegal; set aside fundamental expectations such as presumption of innocence, fair trial and proof beyond reasonable doubt; and impose almost any penalty for breach. However, organised crime, which is a major international problem, won't be eradicated by local political vigilantes fantasising about "Dirty Harry" or enacting extreme laws which ignore evidence, experience and expertise; endorse anecdote-based ignorance and mindless fundamentalism; and oblige courts to act unfairly. Our criminal justice system, which has been carefully developed over many generations, balances the interest of the individual and the state and protects "ordinary people" against the exercise of arbitrary power by the state. Its principles are a cornerstone of our democracy and serve to distinguish our society from a totalitarian regime. Unjust laws are a particular concern for the judiciary which must enforce them. Lectures about the duty of other judges from ambitious junior judges whose decisions are liable to be over-ruled are presumptuous and divisive. No doubt South African judges were similarly reminded of their obligation to enforce apartheid laws. Respect for the courts is inevitably diminished if courts are instruments of state injustice.

Two of the objections that are raised to the bikie legislation are that it restricts the power of courts to grant bail to "bikies" who are charged, with those refused bail remanded in custody until they are tried and perhaps acquitted, and requires courts to impose grossly disproportionate sentences, in some circumstances an additional 25 years imprisonment, on "bikies" who are convicted. Worse, "bikies" remanded in custody pending trial who might be acquitted and bikies who have been convicted and sentenced to long periods of imprisonment can be routinely locked in their cells in solitary confinement for 22 hours a day based on untested information supplied by police to the Corrective Services Department, even if they have done nothing while incarcerated which constitutes any threat to anyone. As an eminent Supreme Court judge, Justice Applegarth, recently noted, it's widely acknowledged that solitary confinement is seriously harmful to mental health. The United Nations has called for the abolition of solitary confinement, which its Human Rights Committee describes as "a harsh penalty with serious psychological consequences and .. justifiable only in case of urgent need" and, except in exceptional circumstances and for limited periods, inconsistent with article 10 (1) of the the International Covenant on Civil and Political Rights, to which Australia is a signatory.

Having observed that its frequently deceptive bluster and boasting has increased, not dispelled, public disquiet about its law and order blitzkrieg, the government now proposes a public relations campaign paid for with public money. The purpose, according to the Premier, is to persuade Queenslanders that they have nothing to fear - that is to say nothing to fear from their own Government, a far from reassuring message. The Government obviously accepts that, although simply telling the public the truth wouldn't cost any money, it won't reassure the public and so "spin" is needed. It has not explained why, instead of wasting public money, it does not communicate its essential message by merely adopting the title of Joh Bjelke-Petersen's Memoirs, "Don't you worry about that", as its slogan.

It is incomprehensible that a modern, informed, civilised community like Queensland is unnecessarily imprisoning accused persons in solitary confinement before they have even been tried and unnecessarily incarcerating convicted prisoners in solitary confinement for years. Primitive punishment theories from the past based on the fallacy that state brutality and cruelty will deter crime have long been discredited and abandoned. Harsh departures from fundamental sentencing principles and basic notions of justice which have been developed through the collective wisdom of past generations might encourage unrealistic expectations in some voters but otherwise will do little except erode doctrines which are essential to protect "ordinary people" against the exercise of arbitrary power by the state and serve to distinguish democracies from totalitarian regimes. Arrogant, ill-informed politicians who cynically misuse the power of the state for personal or political benefit are a far greater threat to democracy than criminals, even organised gangs.

Whichever party is in government and whatever its motive, every abuse or misuse of power is profoundly wrong and every injustice in our name affects us all and diminishes us as a society. It's easy to ignore injustice when we're not personally affected, especially if we disapprove of those involved, but history shows that it's also unwise to do so. In a well-known poem, Friedrich Gustav Emil Martin Niemöller, a German Lutheran pastor and theologian whom the Nazis imprisoned in concentration camps from 1937 to 1945, succinctly summarised the bleakness of popular complacency in the face of injustice to others and subtly reminded us that oppression which starts with an unpopular scapegoat need not stop there.

First they came for the Socialists, and I did not speak out - Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out - Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out - Because I was not a Jew.
Then they came for me - and there was no one left to speak for me.

Gary W Crooke QC was senior counsel assisting the Fitzgerald Inquiry (1987-89) into Queensland Police corruption. View his full profile here. Tony Fitzgerald AC QC was chair of the Fitzgerald Inquiry. View his full profile here.

abc.net.au 3 Feb 2014