The thought of Federal Parliament having a sniff of parliamentary supremacy without a Bill of Rights standing in its way is enough to make you want to bend over and puke.

Given the recent prison term served by the redhead in the sunshine state it may not be wise to quote Mr Beattie on anything. His legal advice would seem to be worthless.

And may we, the great unwashed, sit in judgement of our high court. When will the high court judge who offended the NSW Crimes Act 1901 for 13 continuous years remove himself from the bench. Until that happens the high court is tainted.

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It’s a shame that such a well thought out and educated piece of comment such as this will soon be discussed and ridiculed by intellectual troglodytes in their never ending quest to make sense of themselves to themselves. They'll accuse him of being Leftist, elitist, and humanitarian and then descend into their usual debates with others about how nihilistic short sightedness and ignorant they are. This is what re-elected Howard and what infests Labor culture. Watch it all unfold before your eyes -again.
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Part 1
In comparing the Howard preventative detention laws for suspected terroists and the QLD Govts laws to detain dangerous prisoners some important facts need to be made clear.

Prior to the introduction of the Queensland Act there already existed state legislation that enabled indefinite detention of sex offenders. (Criminal Law Amendment Act 1945) However it was limited in its capacity to deal with all situations.

An order for continued detention could be made at either sentencing or during the prisoners term.

However there were two preconditions, the prisoner had to be medically incapable of controlling their sexual urges and be capable of treatment.

This meant that a prisoner who was capable of controlling sexual urges but had a psychological disorder (not psychiatric) or chose not to control his actions could not be detained.

It also meant that a prisoner with a medical condition that led to him not being able to control his urges and where medical science had no treatment could not be detained.

Part 2
The Queensland laws mentioned by Patrick cannot be applied unless you have first of all been found gulty through due process of law. It then will only come about if the prisoner is assessed as having a high risk factor of reoffending, again this is argued before the courts with full appeal rights.

In our justice system each sentence serves three purposes, punishment, community protection and rehabilitation.

At the time of sentencing the factor relating to punishment is the easiest to determine. Community safety and rehabilitation is the most difficult. That is why over time we have seen the evolution of the parole system. Generally parole becomes eligible at the half way point of the head sentence. The prisoner is assessed by a board independant of the executive government that comprises legal, medical/psychological and community representatives. They determine if the prisoner is safe to go back into the community.

Judges can have some idea of the prospects of minimising community risk and maximising rehabilitation prospects which they use to determine the head sentence but the likelihood that they can some years in advance accurately make this judgement is unlikely, hence the parole board.

All the QLD legislation does is take this assessment of community risk one step further for specific types of offenders. In all good conscious how can anyone object to a system that says for serious sex offenders who have been assessed (usually more than once) by the parole boards that they pose too great a risk of being released into the community that a court will determine if they should remain in prison.

This is vastly different to the Federal Proposals to detain people who may not have even committed an offence.

Is the purpose of the federal proposal to remove a risk from the community or to interrogate potential suspects without public scrutiny? In the Queensland law the person subject to the proposed continued detention has the right to legal representation at all times not so with the federal preventative detention laws.

The current application of law allows those so detained, as in Fardon v Attorney General, to have contact with legal advisors,family, the press, etc. As I haven't seen the text of the new proposed laws, I can only guess as to their content. If I am detained, I may only call someone to say "I'm Safe", and after two weeks, if I am allowed to return to real life, I cannot tell anyone where I've been or what I've been doing.
History shows that this level of power held by governments is always, always eventually abused. Is a police state really necessary for our safety? Is it wise to tempt government (made up of the merely human) into a descent into tyrrany? Look up the Stanford Prison Experiments. Read The Gulag Archipelago.
Be very afraid of this legislation.

Patrick Keyzer's article puts anothe chill through my bones. Still it does provide some hope that a sustainable argument for finding Ruddock's terror legislation is constitutionally invalid. For instance - it is clear from S.73 of the Australian Constitution that the imposition of judicial order and sentences are functions (or powers) of both State and Federal Courts. If the doctrine of separation of functions (or powers) is to apply to those Courts, then no Parliament should be able to impose any form of punitive detention made by proxy under the pretext of a judicial order.
I don't know if such an argument has ever been made - no doubt there is plenty of precedent for mandatory sentences - but whether such precedents had the argument applied under our Constitution is doubtful.

I fully agree with Patrick's point in regard to statutory Bills of Rights. They would be no more effective under the Howard regime than the effect ratification of the ICCPR currently has. But the High Court is not much protection against rights abuses either. It won't even sustain indidvidual rights to vote in federal elections (despite emphatic wording in S.41).
I also agree that ordinary people need a speedy means of having Constitutional matters heard by a superior Court without facing punitive costs and charges when they lose. We should not be made subject to laws of dubious constitutional validity without a practical means of testing them. Perhaps a specific Constitutional Court should be established for that purpose.

The possible answer to this problem is the same as that to the IR reforms (see my previous posts [ http://forum.onlineopinion.com.au/thread.asp?article=68#19711 ] & [ http://forum.onlineopinion.com.au/thread.asp?article=3687#19583 ]), the Court must re-embrace strict legalism, as opposed to making value driven judgments, as epitomized by that of Gleeson CJ in the CFMEU case in 2000 [ http://www.austlii.edu.au/au/cases/cth/HCA/2000/34.html ]. Ironically, this conservative credo, could possibly prevent a great deal of the current legislation being upheld by the HCA (see this article by John Gava [ http://www.austlii.edu.au/cgi-bin/disp.pl/au/journals/MULR/2003/7.html ]).

Perhaps it is possible, if hitherto thought unrealistic, to seek in strict legalism, the salvation of the implied freedoms of association and free speech (for the nature of these freedoms see the article by Elisa Arcioni [ http://www.austlii.edu.au/cgi-bin/disp.pl/au/journals/SydLRev/2003/17.html ]; also Adrienne Stone[ http://www.austlii.edu.au/cgi-bin/disp.pl/au/journals/MULR/2001/13.html ]; and Dan Meagher [ http://www.austlii.edu.au/cgi-bin/disp.pl/au/journals/MULR/2004/14.html ]).

The approach typifying the legalistic approach to ultra vires laws, particularly those impinging upon political association and free speech, is demonstrated in the Communist Party Case [ http://www.austlii.edu.au/au/cases/cth/HCA/1951/5.html ], where the Commonwealth purported to make it illegal to belong to a proscribed organization (which incidentally bears more than a passing resemblance to this issue).