On Tuesday 6 January 2015 a Queensland election was called for Saturday 31 January 2015.
On Thursday 8 January 2015 Iain Fogerty was charged with public nuisance after standing next to next to Liberal National Party campaigners in Brisbane wearing an “I’m with stupid” T-shirt. Mr Fogerty is the operator of a parody Campbell Newman Twitter account ( @can_do_campbell ). It was reported (here and here ) up to ten (10) police, including three (3) patrol cars and a paddy wagon, arrived to arrest Mr Fogerty.
Public Nuisance Offence
The Public Nuisance offence is found in Section 6 of the Summary Offences Act 2005 (Qld)
(1) A person must not commit a public nuisance offence.
(a) if the person commits a public nuisance offence within licensed premises, or in the vicinity of licensed premises—25 penalty units or 6 months imprisonment; or
(b) otherwise—10 penalty units or 6 months imprisonment.
(2) A person commits a public nuisance offence if—
(a) the person behaves in—
(i) a disorderly way; or
(ii) an offensive way; or
(iii) a threatening way; or
(iv) a violent way; and
(b) the person’s behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public.
(3) Without limiting subsection (2)—
(a) a person behaves in an offensive way if the person uses offensive, obscene, indecent or abusive language; and
(b) a person behaves in a threatening way if the person uses threatening language.
(4) It is not necessary for a person to make a complaint about the behaviour of another person before a police officer may start a proceeding against the person for a public nuisance offence.
(5) Also, in a proceeding for a public nuisance offence, more than 1 matter mentioned in subsection (2)(a) may be relied on to prove a single public nuisance offence.
The decision of the Queensland Police to arrest and charge Mr Fogerty rather than caution him and ask him to move on should not be viewed in isolation. It occurred against a background of a number of events which collectively threaten the Rule of Law in Queensland.
A Crisis of Confidence
In my article, A Crisis of Confidence, I said the process of appointing Tim Carmody QC DCJ to be the Chief Justice of the Supreme Court of Queensland had been compromised and his governance of the Supreme Court had been coloured because the following four (4) important principles no longer enjoyed confidence
- The integrity, reputation and standing of the Courts is paramount;
- The Judiciary must be independent from the other arms of Government;
- The Judiciary must clearly and unquestionably be seen to be independent from the other arms of Government;
- Any person who is appointed to lead the Supreme Court of Queensland ought to have the general respect of the legal profession and the Judges of the Supreme Court.”
On Friday 25 July 2014 I wrote a related article, Criminal Law – The Role of The Judge and of The Prosecution, after Stephen Johnson AAP via Yahoo!7 News reported that: “On Friday [25 July 2014], Treasurer Tim Nicholls, a former solicitor, suggested judges had a duty to help the government tackle gang and drug-related crime.”
I concluded in that article, “in my submission as criminal jurisprudence currently stands in Queensland judges do not have “a duty to help the government tackle gang and drug-related crime.” That role stops with the police and the prosecution. Imposing such a duty upon judges compromises the independence and impartiality of the Courts, the judiciary and the judicial process.”
Controversial Judicial Appointment
Not chastened by the controversy attendant with the appointment of Tim Carmody QC DCJ to be the Chief Justice of the Supreme Court of Queensland, the government was considering inviting more controversy by appointing Brisbane barrister John Miles as a magistrate at Charleville.
On Tuesday 16 December 2014 it was reported that:
- Brisbane barrister John Miles, a man convicted of tax offences and also a former Liberal party official, was the favoured candidate of the Queensland government for a job as a magistrate at Charleville.
- In September 2012 Mr Miles was found guilty in the Brisbane Magistrates Court of seven (7) charges of failing to lodge GST returns with the Australian Tax Office.
- Magistrate Anne Thacker sentenced Mr Miles to a good behaviour bond of $6,000 for 18 months and did not record a conviction.
- Queensland Police defended the sponsorship of two (2) police vehicles by coal seam gas company, Santos, rejecting claims of a conflict of interest.
- Queensland police have been permitted to engage in “special duties”, where off-duty officers are paid by private companies to oversee protests or events, including demonstrations against CSG.
- In 2012 Arrow Energy reportedly hired about 100 police to attend a tense protest at a gas well in Kerry, in south-east Queensland. They made fifteen (15) arrests.
The role of the police is to be impartial and to investigate and prosecute wrongdoing by the government, government members and government sponsors, if necessary. Who investigates claims of wrongdoing and illegality by sponsors of the Queensland Police? The Queensland Police are compromised.
The Rule of Law
I said in my A Crisis of Confidence article, “Queensland is a democratic society. Within that democracy Queensland has chosen to make the rule of law a constituent part of its justice system and therefore its societal structure. In its simplest form the rule of law endeavours to ensure justice for all according to law by placing no one above the law. Adhering to such a societal structure does not always come easy and is not without its challenges. However a society without rules quickly becomes no society at all.
“The rule of law underpins constitutional power in Queensland. At any given time within a community embracing the rule of law there will be debate as to what is and is not, may or may not be correct and proper for that community. So long as that debate is confined to adhering to the structure that ultimately defines the rule of law, the society can continue to function. Once a decision is taken to go outside that structure, the result can be that the system fails to operate to uphold its own foundational concept, namely the rule of law, and then the system itself undermines its own existence. In that case the society finds itself without any system of rules to guide it as to its behaviour.”
The Independence and Impartiality of the Courts, the Judiciary and the Judicial Process
In relation to the issue of the independence and impartiality of the Courts, the judiciary and the judicial process, Dr Gabrielle Appleby, Senior Lecturer, Adelaide Law School at the University of Adelaide said:
- “the High Court has found that state courts must still maintain a number of characteristics of independence and impartiality to continue to fit the constitutional description of courts.”
- Laws that compromise “the independence and impartiality of the state judiciary or the judicial process” can be found to be unconstitutional.
- The abovementioned statement by the Treasurer Tim Nicholls, a former solicitor, fundamentally misunderstood the role of The Judge and of The Prosecution in the Queensland criminal justice system.
- His contention compromises the independence and impartiality of the Courts, the judiciary and the judicial process.
- A compromised process of appointing judicial officers compromises the judicial appointment and erodes faith in the judicial process
- A compromised police force investigates and prosecutes only those matters its masters desire
As I said earlier, the decision of the Queensland Police to arrest and charge Mr Fogerty rather than caution him and ask him to move on should not be viewed in isolation. It occurred against a background of a number of events which collectively threaten the Rule of Law in Queensland. Up to ten (10) police, including three (3) patrol cars and a paddy wagon, arrived to arrest Mr Fogerty for standing next to next to Liberal National Party campaigners in Brisbane during an election campaign wearing an “I’m with stupid” T-shirt.
The perception is clear the compromised Queensland Police will be used to silence government critics and put them before a judicial system which arbitrarily applies the doctrine of precedent.
The public nuisance is not wearing an “I’m with stupid” T-shirt during an election campaign. It is the sustained attack to which the Rule of Law has been subjected by the current government.