This is an important article that raises a number of issues. I think that the following are some of the more important ones.

1. The last election produced a huge majority for the LNP but with only half of the vote. One way to safeguard against an abuse of power generated by the electoral system is to reform the system to one of proportional representation.

2. The abuse of power by a Queensland government whose commitment to democratic accountability is at best tenuous would be constrained by a Bill of Rights that enshrined constitutional protections not easily abused by governments.

3. The actions of the Queensland government since its election and set out in dismaying detail by Professor Keyser is able to be maintained because we lack a fourth estate that should perform a role of monitoring and criticising the abuses set out in the article. One could not seriously argue that the Courier Mail performs that function.

These criticisms apply, ceteris paribus, to the Federal system, which at least has the saving grace of an upper house that does actually act as a restraint on the wilder (and almost invariably undemocratic) ambitions of the government of the day.

I actually prefer that politicians have the power to reverse a decision of a court. We elect them to make decisions in the national interest and we can vote them out.

If these politicians don’t like the way the laws are applied or interpreted, they can change them. I expect no less as that is the way it should be.

The judiciary, university academics, human rights activists and legal professionals on the other hand, were not voted in and cannot be voted out. If these groups make decisions that I feel are contrary to the resolutions of public interest for which I voted, they become an obstacle to public interest.

There are many Queenslanders who feel we are being “abused” by criminal activity, who feel we have the “right” to end this abuse and would like some of that “protection” to which you keep referring.

Curiously, the hypocritical rhetoric seeks to suppress the real public rights in favor of the criminals and the progressive non-elected squalk-a-tariat.

It is always the path of least resistance to adopt such rhetoric as “abuse of power”, Bill of Rights” and “enshrined constitutional protections”. Such rhetoric invokes for me the question, who is abusing whom? To whose rights are you referring and just who are you protecting?”

Have your say by all means but please examine your rhetoric for common sense before you spew it into the public domain.

Should politicians have the power to reverse the decision of a court? Of course they should. It is done all the time. It is called legislation. The politicians are elected by the people, represent the people, and must have the power to override unelected judges, otherwise we are at the mercy of the political elite.

There was a recent case in NSW when the high court struck down political donation legislation enacted by the O'Farrell government. The basis they claimed for this were "implied" clauses in the Constitution which the court discovered several years ago. These clauses have never been approved by the people at a referendum. Moreover, several referenda attempting to enact some of these principles have been defeated by the people by significant margins. And yet the constitution says that it shall not be changed except by the procedure outlined in Section 128.

I am surprised that, following the conspicuous failure of the people to vote for a republic, the elite don't request the High Court to rule that the existing provisions relating to the Queen are temporary provisions, and that there are implied clauses providing for a President elected by a two thirds majority of parliament.

Perhaps we need a referendum that would declare that there no implied clauses in the Constitution, and that the failure of any Justice, in the opinion of the Governor-General, to interpret the Constitution other than by the ordinary meaning of the words contained therein, shall constitute proved incapacity under the terms of Section 72.

There have been several occasions in the history of this country when the people have been able to ram a red hot political poker up the political back passage of the elite, the best one being the conscription referendum in 1916. Perhaps it is time for another.

We don't seem to have a good system when you look at the number of injustices perpetrated every day by all three branches of the government. But it is a good idea to try and have separation of powers where - as far as I understand it - to change a court decision would mean parliament revisiting the law. However, it should be much easier for people to appeal court decisions - judges are capable of errors, prejudices, bias etc and it is appalling that a victim of such human foibles should not have the chance to appeal without the permission of the original judge and not merely on points of law. But wot do I know??. beyonhttp://www.peo.gov.au/students/fact_sheets/separation_powers_parliament_executive_judiciary.html

this article would not even be necessary if judges acted in accordance with public interest rather than contempt for victims. Yes Politicians are open to corruption however judges are open to treachery. Many murdered and raped woman would agree.

Indeed mongrielle,

As you so eloquently put it << But wot do I know? >>

You have offered a range of possible solutions but left out just one small issue and that is, what was the problem?

I find it difficult to reconcile the opinions of some who propose answers but fail utterly to articulate or understand any questions.

It amazes me people like spindoc who would rather trust a politician, (under enormous public and media pressure, and worrying about being voted in at the next election) to make a decision regarding their liberty rather than a judge (who has no such pressures) who can apply the law in an impartial manner and must given written reasons for doing so. Or maybe spindoc thinks such powers can only be used on other people. Personally I would prefer an impartial judge any day.
A system where a politician gets to decide who goes free and who gets locked up is the very antithesis of the rule of law.

spindoc asks "what is the problem?
The problem is that when a politician decides to lock someone up, they may be under a lot of pressure to do so. They may not look at the evidence to decide whether the person has actually committed a crime. They may not be interested in the actual evidence. They may be more concerned about quelling public hysteria rather doing justice. They may perhaps harbour certain predjudices which sway their opinion. That is the problem. People should not be punished on the say so of politicians. A weak judiciary and a powerful executive lead to regimes such as existed in Nazi Germany. As much as judges make mistakes and our system is not perfect, the rule of law is far preferable to the arbitrary rule of politicians.

If we want justice we need trial by jury, a jury with the appropriate background in order to make an informed decision. Nothing as idiotic as having an inner city jury to deal with a country matter & vice versa. Have trades people deal with trade level cases etc etc.
Have shop keepers deal with hold ups & criminal assault with a jury made up of medical staff.
That would go a little step towards some liberty rather than the present hiding in a gilded cage. Liberty in Australia is not fragile, it is fragmented.

Either the people's parliament has the authority to over ride court decisions which plainly contravene the people's will, or local judges should be elected as they are in the USA, so that activist judges can not ignore the will of the people without considering the cost to themselves.

For too long in Australia, some notorious judges with activist ideologies have acted with the imperiousness of absolute monarchs, ignoring the lowly peasants and their representatives.

What this author is really whining about is that the Queensland government is making itself popular by over riding judicial decisions which the public finds outrageous. The recent case of the famous "road rage" incident in Queensland where the offender received a trivial sentence is a case in point. Here in NSW, the public has been incensed at the lenient treatment of offenders who apparently wander around the streets punching people in the face for fun. At least two boys have died from injuries sustained from these senseless attacks.

The entire town of Burke, NSW, once turned out en masse at Burke airport to demonstrate against the "visiting" magistrates from Sydney who routinely gave the lightest possible sentences to repeat offender aboriginals who's endless unpunished crimes were in danger of turning Burke into another white free ghost town like Wilcannia.

It is a pity that with a couple of exceptions the discussion about Professor Keyzer's important article has already degenerated into the usual suspects giving vent to their ill-informed prejudices arising out of some perceived wrongdoing by a particular judicial officer(s).

If they stopped for a moment and actually engaged their brains they would see the incredible dangers of the policies they want. They need look no further then the current appalling situation in Nauru when the politicians are doing exactly what some of the commenters would wish the Queensland government (and others) to be able to do.

They may wish to live in a society where the rule of law is superceded by politicians, in which case they are more than welcome to go elsewhere. South Sudan springs to mind.

What is really dangerous James O'Neill, is that unelected judges, & other members of the legal profession think they are above the parliament, & the rest of us.

Trust a politician before a judge, bloody right I would. In fact the only people I would trust less than a judge would be Professor Chris Turney, & the rest of the global warming brigade

Their are "incredible dangers" in havint a branch of the administration that routinely frustrates the will of the peple who it is supposed to represent and who pay for it's upkeep, James O'Neil. The recent rash of judicial decisions which plainly were contrary to public expectations appear to be the means by which the unelected judiciary are telling the public that they are in control, not the public.

The decision of the present Queensland government to reign in this pseudo aristocratic class on behalf of the electorate is exactly the right thing to do. If judges are more concerned about their power and privileges than doing their jobs, then it is the duty of the parliament to do whatever it takes within the Constitution to remind them that the will of the people is the only sovereign power.

Mandatory sentences is one way the people can deliver the message to judges that they are in control, not judges. We the people, bestow upon the unelected judiciary wide ranging powers on the provision that they use them wisely. But when they look down their noises at the people who pay their wages and who they are supposed to serve, and act in ways which seem calculated to offend us, then it is time to take some of that power away and return it to the people's parliament.

What is the one thing these statements have in common? They all operate from a collectivist platform. Statists believe in the “social contract” theory. The idea that through the constitution, through using public roads, and having a birth certificate, you are inherently under the authority of the government. However, these arguments are severely flawed.
http://www.thedailysheeple.com/do-you-consent-to-be-governed-myths-and-facts_012014
Firstly, for a contract to be valid, it must be done under full disclosure, it must contain the signature of the contract creator and the wet signature of the customer who agrees to its terms, nor can a valid contract be created under duress. The birth certificate, nor does the constitution abide by these basic contract rules. And as far as using government services, when the government has claimed eminent domain and has successfully monopolized most of societies essential services, we are left with little choice on whether or not we should use them, if we want to have productive lives. It’s not like private companies are allowed to compete with government provided services. However, even as a man who does not pay income taxes, he will still fund the roads, since the taxes collected on gasoline are apportioned towards infrastructure. Sales taxes, excise taxes, etc…..are unavoidable for the general population, even among so called “illegal immigrants.” Everyone pays taxes, not by choice, but because the mafia (government) forces us into their protection racket scheme either directly or indirectly to some degree or another.

Now, this brings me to address the title of this post. Do we truly consent towards being governed and does the state even exist, or is it merely just a corporate title? The answer is obvious. We are the coerced clients of a monopolized insurance company known as the Government.

Dear Rhys Jones,

Lets look at some of the misdirection’s in your post just to examine your grasp on reality.

Firstly you adopt the same falsity as the author when you use the words “politician” as a substitute for an “elected government”. We are not referring at all to individual politicians.

Politicians do not “lock up” people, the courts do that. People are not punished by politicians, they are punished by the judiciary who apply and interpret the laws the elected government enacts.

You say << It amazes me people like spindoc who would rather trust a politician >>.

Not true. Politicians as individuals are powerless to act in the manner you describe. Elected governments do have the power to enact, modify or remove laws. What I trust is the elected government. If don't like what they do I will vote against them.

It would be no surprise to anyone that you are “amazed” at your own false premise.

The elected QLD government has not overruled any court decision. They have considered two options. One is an appeal the courts decision to a higher court and the other is to invoke “The Public Interest Declarations Act” which, by a “quirk” of Queensland’s constitution, allows the QLD government to attempt to use that Act to effectively change the application of standing legislation.

The QLD Court of Appeal then ruled against the Act and the government.

It may suit your overhyped rhetoric to attempt to draw attention away from the facts however, you still have choices. You might wish consider comprehension, critical thinking and reality rather than adopting someone else’s “public hysteria”.

Bye the way, how’s that research going into King Edward I campaigns against the marauding savages behind the Welsh “Marches”?

The doctrine of the separation of powers divides the institutions of government into three branches: legislative, executive and judicial. The legislature passes the laws, the executive puts those laws into operation, and the judiciary interprets the laws. This doctrine is an essential cornerstone of democratic government.

In the Australian context the distinctions are blurred because the executive and the legislature are essentially one and the same. This raises the relative importance of an independent judiciary and also a Senate that can act as a brake on an arbitrary exercise of power by the legislature/executive. The significance of this is of course relevant in the Queensland case.

As early as 1915 (the Wheat Case) the High Court affirmed that the strict insulation of judicial power was a fundamental principle of the Constitution. One result of this is a recognition that the legislature should not interfere with judicial functions and vice versa.

I understand Professor Keyzer's article to be drawing attention to the dangers posed to these well established doctrines by the actions of the Queensland government, compounded as it is by the unicameral nature of the Queensland legislature and the authoritarian instincts of the present government. This is a legitimate concern.

The debate is not advanced by attacking an allegedly biased/elitist/unelected etc judiciary. Such criticism, apart from being profoundly ignorant, entirely misses the point of the article.

Dear James,

I note you keep telling us just how << important >> this article is, that there are << incredible dangers >> and that we should be << dismayed >>.

The fact that it is generated by constitutional law academia as yet another manifestation of alarmism should be noted. I would be very surprised if anyone outside the progressives and fellow travelers had the slightest interest in it, it is pure hyped up rhetoric designed to frighten and alarm those of us who are so stupid that we don’t understand the “very serious” nature of what is going on with our Newman government.

It is based entirely on the rhetoric of Ethos ( I’m important would I lie to you?) Pathos (This is how good this will be for you) and Logos (Here’s heaps of “really interesting facts” I’ve prepared to alarm you).

Australians are increasingly tuned in to this type of MO. We get it from the progressive Squalk-a-tariat every single day. If you did spot it but failed to draw our attention to it, that makes you a “like” progressive. If you didn’t spot it that makes you a “useful idiot”.

Any more catastrophic, dangerous, terrifying or alarming developments you wish to bring to our attention?

The saddest thing about reading many of the comments to a thread like this is that it does not result into a discussion of how our democracy works and why it has been so successful. There seems to be very little understanding of the roles our various Constitutions have and why they need to be interpreted. There also seems very little understanding of how our legal system, Common Law, works and operates.

I'm not clear how slapping an epithet, like 'progressive' or a ridiculous name on someone with whom you do not agree with supports any argument. You're falling for the silly tribal tropes politicians are so fond of as it requires no effort to articulate any idea or concept, Conservative or Progressive.

Just suppose an elected government can just change laws without independent oversight from the Judiciary, and the government of the day enacts "the Voters Act", which states that only those who own property can vote. There'll be a little debate on that, on Forum perhaps. Then comes the "The Property Ownership Act".

the current appalling situation in Nauru
James O'Neill,
have you thought about the very strong possibility that this juddge who, btw is Australian might have been ousted due to incompetence ? Judging by the way judges operate here I'd gueess that's what happened in Nauru. I'd say actual Justice not just some pretence was served there.

No Yvonne, the fact is that we are sick to death of a bunch of the legal profession, who have the totally mistaken idea that they know best.

Granted they may know how best to get out of trouble of their own making, by hiding facts, & having others in the profession protect them. They are so far out of mesh with the society that funds them that it as if they are from a different planet.

There will be no justice in Oz until we the public chose our judges, & can kick them out when they prove unsuitable.

Yes we have the thing called the LAW, controlled by people like this author, who obviously have no interest in justice, or the will of the people. In fact, it is probably fair to say he despises the will of the people, & is terrified it might come to pass.

what protects our democracy is not a bill of rights, not the will of the people, but a judiciary independent of the executive and independent of the government. the ussr had a wonderful bill of rights guaranteeing freedoms, tell that to the millions who died in the gulags and they will laugh, it was not a deficiency in the bill of rights it was the insipid judiciary which bent to the will of the executive. those that want politicians reversing decisions will only do so when they disagree with the judgement, look at the outcry over derryn hinch's jailing. he could have jeopardised a trial, it could have led to a murderer being out on the streets because of ego, sure if he wanted to criticise the justice system he could but after the trial. i would hate to lose a loved one because a murderer was set free because a moronic media ego thought he knew best

Hasbeen, your comments about our judiciary and legal system are infantile and ignorant. Please inform yourself on how Common Law works. Try and curb your paranoia about anybody with an education level past year 8 (in Queensland) when you do so.

yvonne,
You've obviously never been a victim otherwise you woudn't contradict Hasbeen.

how Common Law works.
yvonne,
We underlngs not only know how the Law is supposed to work we also know how it actually works.
My personal experiences have shown me that the guidelines & policies & legislations are nothing like actual procedures.
I find it utterly appalling how someone can study Law for so many years & once in Court it's all forgotten. Imagine if trades people were like that. Imagine a carpenter or a bricklayer working in their trade like a Magistrate or Judge work in Law. Every building would collapse at the first breeze.

Individual, a victim of what? And how can it be obvious to you that I've never been a victim? If you are talking about being a 'victim' of someone within the legal profession, I can regale you with stories, many stories, of being a 'victim'; for instance of tradesmen and mechanics. Inept, maybe turning up when agreed and at times resulting in great costs to fix up. So what? And, besides all that, I've had, unfortunately, more than a couple of times had to rely on the legal profession for their skill. For both private and business reasons. I've had good and bad experiences. Just like with tradies. Except, percentage wise, more positive with the legal profession than with tradies, but that could just because I lived on the Gold Coast.

What does your 'victim' experiences have to do with the value of the separation of powers that our democracy and liberty hinges on?

to do with the value of the separation of powers that our democracy and liberty yvonne,
that's all nice & academic & bureaucratic. reality is vastly different. By having been a victim I mean victim of crime & then again as a victim of incompetenet judiciary & again as a victim of stalling by outfits like the CJC until the statute of limitation has passed. Separation of powers ? Definitely powers separate from justice & integrity.
The judiciary is not seen to be adhering to its own rules. It's pretty sad when a Government has to step in to get justice when the judiciary fails so miserably. Like the Peadophile releases & just last week 8 years for a one punch murder. If anyone wants to kill someone now they just coward hit & spend 8 years in jail getting all their qualifications & medicals for free. I think it appalling a mere 8 years for murder. It really says all about that fake separation of powers gobbledeegook. How can we ever have justice with a judiciary like that ? How about a new slogan like "The judiciary, the criminals' friend"

Nothing, anybody ? Surely I must be wrong ?

Onya Spindoc.

To Mr O'Neill.

Your little speech regarding the separation of powers did not address the crucial issue of what happens when the judiciary, which through a quirk of history, abuses its independence and frustrates the will of the people who own the legal system and who's taxes pay for it.

The USA has exactly the same separation of powers but at least in the lower courts those judges who constantly push extreme and deviant views through court decisions can be removed by the people that they are supposed to serve. An independent judiciary is a wonderful concept provided that judges are impartial and not political. But that is never going to happen. Everything is political, and the judiciary must be held accountable to the people's wishes or else we will end up with a judiciary which resembles the ABC in both outlook and in the promotion of "progressive" causes.

Here in NSW, the decisions of "aboriginal" judge Pat O'shane has enraged the public, at one time she even castigated a police officer who was wounded in the "White City" shootout with a notorious Lebanese criminal for "ethnic profiling." Then there was the case, a few years ago, when a family Court judge ordered the release of all "children" in detention centres, thereby over riding the Minister for Immigration and the Immigration Act. Such a judge would be out on his ear in the next election, had this been the USA.

It is not a strength but a weakness that courts in Australia are not answerable to the people. If political judges with social agendas wish to frustrate the people's parliament, then the Parliament, with the people's consent, has the authority to over ride judicial politicking by introducing such measures as mandatory sentences. If the judges don't like it, then they should remember just who the piper and once again make judicial decisions more in keeping with public expectations.

there is no separation of power in Australia, only a conglomaration of good & bad power in the interest of power by power mongers. Our Judiciary is so out of synch with normal daily life it needs to be replaced asap. Our judiciary are gradually morphing into loose wheel off track.

Dear Professor Keyzer,

You declare that
"1. only a court can make a binding and authoritative decision of law; 2. only a court can order the imprisonment of a person; and 3. punishment can only be ordered after a judicial trial."

Is this in the constitution or is it common law?

If common law then isn't it made null and void by legislation if the legislation is explicit in knowingly overriding the common law.
Ergo wasn't the Qld appellate court acting illegally in invalidating the legislation?

The first congressman to battle the NSA is
QUIETLY..dead. No-one noticed, no-one cares.

liberties ?
FRAGILE?

JUST DONT MENTION ITS A REAL WAR*
[its time you knew..some are dead serious..about our liberties

others not
http://pando.com/2014/02/04/the-first-congressman-to-battle-the-nsa-is-dead-no-one-noticed-no-one-cares/

Last month, former Congressman Otis Pike died, and no one seemed to notice or care. That’s scary, because Pike led the House’s most intensive and threatening hearings into US intelligence community abuses, far more radical and revealing than the better-known Church Committee’s Senate hearings that took place at the same time.

That Pike could die today in total obscurity, during the peak of the Snowden NSA scandal, is, as they say, a “teachable moment” —one probably not lost on today’s already spineless political class.

god bless our heoes of liberty
http://www.youtube.com/watch?feature=player_embedded&v=xP3it6U7oew
http://www.activistpost.com/2014/02/why-occupy-bangkok-is-working-and.html

@Edward Carson. You pose some very large questions to Professor Kayzer and I will not presume to answer them on his behalf. May I say very briefly that the law is found in both statute and common law (the constitution has a different role).

The Courts have long resisted, with good reason, attempts to oust their jurisdiction, and attempts by the legislature, whether Queensland or elsewhere, generally come to nought.

One ofd the dangers we face in Queensland was exemplified by the Premier who when asked about the doctrine of the separation of powers responded "isn't that some American thing". If he is truly so ignorant then be afraid, be very afraid.