Proctor : April 2018
14 PROCTOR | April 2018 Protecting legal rights: Every lawyer’s business Fundamental principles disappear from new legislation The QLS Advocacy team is made up of policy solicitors and support staff who coordinate the Society’s 27 hard-working policy committees. This places the team in a unique position to observe developments across a number of policy areas. Many of these developments cause us concern due to their effect on the rule of law and other well-established legal principles, and because they have been replicated in several pieces of legislation such that we now consider that they are trends. We often discuss these trends at team meetings, at policy committee meetings, in our submissions, at public hearings and with government representatives and other stakeholders. We have recently had cause to collate these trends. A keynote speaker at last month’s QLS Symposium was Emeritus Professor Gillian Triggs, who is acutely aware of breaches of the rule of law that take place within Australia, including those intentionally enshrined in legislation. However, given that much of our work is state-focused, we considered it useful to provide Professor Triggs with a snapshot of recently introduced Queensland legislation which contains provisions that threaten to erode established rights and liberties. This ‘snapshot’ includes legislation which: • abrogates the right to claim privilege against self-incrimination • reverses the onus of proof • enables the exercise of judicial power by authorities • excludes legal representation • imposes unjustifiably severe penalties • allows an overreach of inspectorate powers • imposes mandatory detention offences • is drafted to respond to a specific instance or incident, rather than being a measured policy response • imposes broad powers of entry, seizure of information and compulsion. To think that this legislation only targets serious criminal activity, or is limited to an area in which there is a serious risk to community safety, is erroneous. These provisions are finding their way into legislation that has an effect on people’s lives and their livelihoods. Examples include legislation regulating land access rights, 1 schemes established to monitor the safety of building products2 and the supply of labour,3 and operational processes for the Commonwealth Games 2018. 4 The objects of these Acts, and their explanatory notes, often provide little or no justification for the erosion of these rights. The normative effect of passing this type of legislation is significantly underestimated. Passing just one piece of legislation which unjustifiably erodes a right shifts community and political expectations and paves the way for similarly objectionable provisions to be replicated in other pieces of legislation as ‘model provisions’. This is done in spite of genuine concerns raised by stakeholders such as QLS. QLS opposes the erosion of rights, and the imposition of unfair penalties, without appropriate justification. We advocate for evidence-based policy which ensures that the rule of law is respected and that laws are fair, balanced and ultimately upheld. QLS has made submissions in respect of several pieces of recent legislation which have introduced wide powers of entry and requirements to provide documents and information, without a warrant or consent in some cases, and despite that fact that doing so may incriminate the person. Such compulsion will deprive the person of the right to claim privilege against self-incrimination and lead to derivative use of evidence. These provisions were placed in the following Bills introduced in 2017: 1. Labour Hire Licensing Bill 2017 2. Building and Construction Legislation (Non-conforming Building Products – Chain of Responsibility and Other Matters) Amendment Bill 2017 3. Work Health and Safety and Other Legislation Amendment Bill 2017 4. Land, Explosives and Other Legislation Amendment Bill 2017 5. Tow Truck and Other Legislation Amendment Bill 2017. The first three Bills were introduced into Parliament, referred to a committee for consideration and then ultimately passed with the provisions remaining, despite QLS and other bodies raising these issues during the inquiry stage. The last two Bills have been reintroduced into the new parliament with substantially the same provisions, again, despite our submissions. Considering these issues in more detail, we turn to section 4(3)(e) of the Legislative Standards Act 1992 (Qld) which requires that legislation should generally confer power to enter premises, and search for or seize documents or other property, only with a warrant issued by a judge or other judicial officer. However, under the Land, Explosives and Other Legislation Amendment Bill 2017 and now the Land, Explosives and Other Legislation Amendment Bill 2018, an authorised officer is granted a blanket right to enter land, including leasehold land, based on a reasonable belief that any term or condition of a “trust, lease, licence, permit or reservation applying to the land” is not being complied with. QLS voiced concern about the breadth of the concept ‘reasonably believes’ and the lack of specificity around which ‘term’ might give rise to the exercise of this power. Some terms are more significant than others and entry to a place will not be required to determine compliance with some terms. No warrant would be required to exercise these powers and there is no requirement to obtain consent or give notice. This provision would override a landholder’s contractual rights under the relevant trust, lease, licence, permit or reservation. Under another proposed provision in that Bill, which replicated provisions in the Work Health and Safety and Other Legislation Amendment Act 2017, the Labour Hire Licensing Act 2017 and the Building and Construction Legislation (Non-conforming Building Products – Chain of Responsibility and Other Matters) Amendment Act 2017, an authorised officer would be entitled to enter a place on the basis that the place was ‘open for business’ in lieu of obtaining the consent of the occupier. The schemes established under this legislation are broad in application and will potentially affect a wide range of businesses and individuals. What is evident from these extraordinary powers is that those persons affected will likely be caught ‘off guard’ given the nature of the legislation.