Law society warns about projecting news laws on the past
IF laws against hitting a school child became retrospective, the floodgates could open for all those students ever caned to take their teachers to court.
While that is not likely to ever happen, it is that fundamental principle of making legislation restrospective which concerns the Queensland Law Society.
Attorney-General Jarrod Bleijie introduced a bill into Queensland Parliament this week to allow acquitted people to be retried from decades prior if fresh and compelling evidence was presented and it was in the interests of justice.
It would only apply to offences that carried a minimum 25 years or life imprisonment.
QLS president Ian Brown said the society had a long-held view that retrospectivity in legislation should always be avoided.
"You may well have said, done or acted in certain ways in the past that were perfectly appropriate or legal; retrospectivity can make those actions unlawful, illegal or subject to some other adverse outcomes," he said.
"This is the challenge faced in any kind of legislation is taking the past and projecting onto the past what we know now.
"In relation to the context we're facing here, a defence to a particular criminal charge conducted several years ago may be very different to how a defence would be conducted today."
Governments around Australia scrapped laws preventing someone from being tried again in 2007 but Queensland was the only state which did not make it retrospective.
"Victims of crime and the community can be justifiably outraged where new evidence in an old case is obtained and the double jeopardy exception regime would otherwise have applied but for a mere accident of timing," Mr Bleijie said.
"Advances in forensic and scientific technology and the high quality and reliability of subsequent evidence means that, without retrospectivity, the potential advantage in applying new and advancing technology to old cases is lost.
"There is a strong public interest in pursuing convictions for the most heinous unsolved crimes, in particular the offence of murder."
Mr Brown said the concept of fresh and compelling new evidence was uncertain - questioning whether it was evidence not gathered at the time due to police incompetence, new witnesses coming forward or technological or scientific advancements.
"If a person is acquitted because of police incompetence, is it fair for that to be revisited," he said.
"We will be making it very clear to the government that we generally object or have strong reservations about retrospective legislation."
A new offence for serious animal cruelty targets those who intentionally inflict severe pain and suffering on animals - torture - and will carry a maximum seven years' jail.
"This type of offending is abhorrent and, to ensure offenders are appropriately punished, the new offence carries a maximum penalty of seven years imprisonment," Mr Bleijie said.
"The government shares the community's frustration when offenders who have done terrible things to animals walk free without any jail time."
Mr Brown said he was concerned only that the bill gave RSPCA animal welfare officers greater power to investigate the new offence.
"In the society's view the Director of Public Prosecutions is best placed to undertake those kinds of prosecutions when the potential outcomes are so significant," he said.
Mr Bleijie has also given himself the ability to directly appeal magistrate decisions on minor offences, which means he has reach to appeal across all criminal jurisdictions in Queensland.
Mr Brown said QLS has always believed public prosecutions should run appeals so the process was perceived publicly to be completely independent.
ONLINE GUILTY PLEAS
The legislation also allows for accused people to enter guilty pleas online instead of sending in written forms.
Mr Brown said he suspected the process could enhance access to justice because there could be prompts to trigger people to include required and extra information such as character references.
But he said, in feedback QLS has already provided to the government, there must be information explaining potential consequences for their guilty plea.
"What might seem like a reasonably straightforward conviction might affect a greencard or security licence," he said.
MATCH-FIXERS, LOOTERS, SEX OFFENDERS
The Queensland Government also has its sights set on match-fixing, looters and dangerous sex offenders.
Cheats who interfere with sporting events would face a maximum penalty of 10 years jail for match-fixing conduct and two years for using inside information.
The bill would extend the offence for looters stealing from a disaster declared area until residents have returned to their property - not just when the declaration ends.
Dangerous sex offenders will now be subject to a maximum five years' jail for removing or tampering with GPS tracking devices, or similar, with at least one year behind bars.
The Criminal Law Amendments Bill has been sent to committee for consideration.