10 March 2014
Queensland Government's crusade challenges right to work
In the important area of the right to work including the right to gain a living by carrying out one's chosen form of occupation, the Queensland Parliament has departed from the central principles of human rights law.
The Universal Declaration of Human Rights (the UDHR), the foundation document of modern human rights principles, starts its preamble with a statement that [IA emphasis]:
'... recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.'
Article 1 of the UDHR states:
'All human beings are born free and equal in dignity and rights.'
Article 2 of the UDHR states:
'Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.'
Article 7 of the UDHR states:
'All are equal before the law and are entitled without any discrimination to equal protection of the law.'
Article 10 of the UDHR states:
'Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations.'
When Australia ratified the International Covenant on Civil and Political Rights (the ICCPR), we promised, in article 2:
'... to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.'
In article 26, we promised that:
'All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.' When, at about the same time, Australia ratified the International Covenant on Economic Social and Cultural Rights (ICESCR),
we undertook, in article 2:
'... to guarantee that the rights enunciated in the Covenant [would] be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.'
In article 6, we promised to:
'... recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts.'
In article 11, we promised to:
'... recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.'
Each of these articles contain obligations to which we, as a nation, have freely bound ourselves.
It can be clearly seen that equality before the law is a central principle of human rights law. It can be equally seen that discrimination in the grant and protection of rights and liberties is anathema to human rights law.
I would like to share with you my concern that, in the important area of the right to work including the right to gain a living by carrying out one's chosen form of occupation, the Queensland Parliament has departed from these principles.
The Legislative Amendments
Papers have been written about the series of legislative changes by the Queensland Parliament since the beginning of October 2013, which have affected other aspects of equal treatment before the law.
The changes have included the passage of the Vicious Lawless Association Disestablishment Act 2013 (VLAD Act), changes to the Bail Act 1980, provisions preventing certain people from meeting in public on pain of imprisonment; and the discriminatory imposition of harsh and discriminatory prison regimes.
As indicated, it is discriminatory treatment in the field of earning a livelihood on which I want to focus and against which I want to rail.
Tattoo Parlours Act 2013 (Qld)
The idea that greater regulation of certain occupations was needed commenced with the Tattoo Parlours Act. The Tattoo Parlours Act was part of the first wave of government legislation introduced and marketed as a legislative crackdown on so-called criminal motor-cycle gangs. It was assented to on 17 October 2013.
The Tattoo Parlours Act (like the VLAD Act, for example) makes almost no mention of criminal organisations or motor-cycle gangs. It introduces a requirement (in section 6 of the Act) that operators of tattoo parlours and tattoo artists require a licence to operate. The requirement for a licence, in each case, commences on 1 July 2014, although the system of granting licences is already in place and, presumably, applications are being made.
The Act also introduces (in s4) of a concept of 'close associate' of a licensee who is effectively anyone in a position to exercise an influence in the business. Both the applicant for a licence and any close associate is investigated thoroughly, including by the applicant having to provide (s13) finger and palm prints to the police.
Unusually, for the introduction of a new licensing regime to an established industry, there are no grandfathering provisions. A person may have operated a business or devoted many years to work as an artist. Such a person starts from scratch and must go through the licensing process in the same way as newcomers to the industry.
A method used both in the Tattoo Parlours Act and in subsequently passed legislation controlling who may pursue certain occupations is the making of decisions on secret information from police files.
The Tattoo Parlours Act introduces (in s20 and Sch1) the concept of an 'adverse security determination'. An adverse security determination is a report by the Commissioner of Police to the chief executive who administers the Act, that the applicant or licensee is not a fit and proper person or it is not in the public interest for the person to be granted or to hold a licence.
An adverse security determination has the effect that the Chief Executive must (s17(2) refuse an application or (s34(1)) cancel a licence. The person who has lost their right to earn a livelihood, by that decision, has no right to know the basis for the refusal. Both the Commissioner of Police and the Chief Executive are (s22) exempted from any obligation to disclose any of the criminal intelligence or other criminal information on which these adverse decisions are made or even the fact of the existence of such intelligence or information.
And, although an appeal lies to (s56) the Queensland Civil and Administrative Tribunal (QCAT) the Act provides s57(2) for QCAT to receive this information in the absence of the parties.
The Tattoo Parlours Act superficially resembles other regulatory legislation with which people have long been familiar. Regulation through licensing is an acceptable way of seeking to ensure high standards in an industry.
However, no one should be excluded from their chosen occupation on the basis of information which has not been disclosed to them. A person cannot hope to answer allegations which have been kept secret from them. Such a system breaches the concept of a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations referred to in article 10 of the UDHR.
Occupation Exclusion Goes Mainstream
By 27 November 2013, the Criminal Law (Criminal Organisations Disruption) and other Legislation Amendment Act 2013 (Qld)( CODOLA Act) had passed through the Queensland Parliament and been given royal assent. While the tattoo parlour industry may have been considered by some to be something of a backwater industry plagued with particular integrity and quality issues, with the CODOLA Act, the new form of occupation regulation had gone mainstream.
One example of the newly affected industries is the liquor industry.
The Liquor Industry
The CODOLA Act (s114) amends the Liquor Act 1992 (by inserting s228B) that says that an individual is disqualified from holding a licence, permit or approval under the Liquor Act if and while the individual is an identified participant in a criminal organisation. The same provision states that a corporation is similarly disqualified if and while it is a criminal organisation.
The concept of a criminal organisation was created by an earlier specimen of legislation, the Criminal Law (Criminal Organisations Disruption) Act (CODA Act), which was assented to on 17 October 2013. The definition of 'criminal organisation' (inserted by s41 of the CODA Act to s1 of the Criminal Code) was has three alternative ways of being satisfied. For present purposes, I will focus on the alternative expressed by reference to paragraph (c) of the definition:
'... an entity declared by regulation to be a criminal organisation.'
This means that the Attorney-General can cause the Governor in Council to name any entity to be a criminal organisation. No evidentiary process is required.
It may be that some people in the entity may have committed offences on some occasions. Others may have led blameless lives. Or no one may ever have committed an offence. It is up to the minister. No evidence is required.
And we have seen this happen.
The Parliament, when it passed the CODA Act, declared 26 organisations to be criminal organisations. No evidence was required. The people affected were given no notice of the allegations. Those who were blameless were grouped with those who may have been guilty of criminal conduct.
Since an identified participant loses all his/her rights to hold a licence under the Liquor Act, one might think that a rigourous due process would ensue before that could happen.
One would be wrong. An identified participant in a criminal organisation is simply a person identified as such by the Commissioner of Police.
The meaning of 'participant' is very broad. It includes a person who has attended one gathering of persons who participate in the affairs of the organisation and a person who takes part in the affairs in any way. It includes (s60A(3) of the Criminal Code) a person who has asserted membership and a person who sought to be associated with the association.
What is not clear from the CODOLA Act amendments is whether there is any lawful limit on the Commissioner identifying participants on the basis of actions long in the past.
Can the disqualification take place notwithstanding that an individual has long since been severed their ties with old friends and associates?
There are some worrying indications on this question in other amendments effected by the CODOLA Act, this time to the Police Service Administration Act 1990 (Qld). These enable the Police Commissioner (s122-126 CODOLA Act) to disclose the criminal history of a person who has, at any time in the past, been a participant in a criminal organisation.
Self-restraint, in the circumstances, from the Commissioner is unlikely.
Under the new regime (s47B of the Liquor Act inserted by s92 CODOLA Act), the Commissioner for Liquor and Gaming, in any licensing decision under the Liquor Act, is to enquire of the Commissioner for Police as to whether a relevant person is banned as having been identified as a participant in a criminal organisation. This request goes not only to individuals seeking to be licensed, but to persons holding office in corporations, partnerships or unincorporated associations that are licensed or seeking to be licensed (s47B(1)(b),(c) & (d) Liquor Act).
The Police Commissioner must, under s47B(2) of the Liquor Act, provide the information he holds as to whether any relevant person is an identified participant. And the Commissioner for Liquor and Gaming must (s47B(s) Liquor Act) act on it.
And does the newly banned applicant or licensee get to know what struck them? Probably not. The usual rule (s27B Acts Interpretation Act) about receiving reasons for a negative decision is abrogated (s47C Liquor Act). And, although QCAT retains a jurisdiction (s21 Liquor Act) to hear appeals, both it and the Supreme Court (on appeals on matters of law from QCAT) are given a discretion (ss36-37 Liquor Act) to receive information in secret and to make their respective decisions without the appellant ever knowing the case she has to meet.
It probably takes some reflection to comprehend the wide variety of occupations affected by these amendments to the Liquor Act. Not only are licenses issued under the Act (s58) for commercial hotels, casinos and convention centres, licences are also issued (s66) for community clubs, restaurants and bars of many different varieties.
These licences are held by people and businesses who, under the law (s107 Liquor Act) that has existed for as long as I can remember, have been subject to scrutiny and found to be fit and proper people and possessed of the appropriate knowledge to be competent in operating the licensed activities. These are people who may have invested large amounts of money and time and built up thriving businesses or worked many years to keep struggling but socially useful businesses alive.
And some of these people are likely to have their license stripped away.
This is not because they have committed an offence. This is not because they are or have been members of an organisation that has been found by a court of law to have engaged in criminal activity. This is not even because they have been proven in an open court of law to be a member of an organisation deemed to be a criminal organisation.
It may be because some unreliable information on a police file, which has not been disclosed to the affected person, indicates that, some years ago, this respectable licensee was a member of an organisation which the Minister, without any requirement to receive reliable information, has caused the Governor to declare to be a criminal organisation.
This is not equality before the law. This is not a fair and public determination of rights and obligations.
The Electricity Safety Act 2002 (ESA)
For obvious reasons, a person may not (s55 ESA) perform or supervise electrical work unless the person is a holder of the appropriate licence.
Neither may (s56 ESA) a person conduct a business which involves the carrying out of electrical work without an electrical contractor's licence.
The opportunity to hold such licences are hard won with many years of training and study required to acquire the necessary skills.
The CODOLA Act (ss56-71) amends the ESA so that a person identified by the Commissioner of Police as a participant in a criminal organisation must be stripped of his/her licence and stripped of his/her ability to work as an electrician or conduct his/her electrical contractors business. The same secrecy applies as under the Liquor Act. The same inability to confront the information on which one has been identified is maintained. There is the same lack of any necessary connection between wrong doing on the part of the individual and the perceived wrongdoing that led to the organisation being deemed criminal.
Men and women who may never have been accused of a criminal offence will be stripped of their livelihood.
The distinctions are arbitrary. The rights of people to be treated equally before the law have been trampled upon.
But, even if a person has been convicted of an offence; even if a person has been required to serve time in a correctional institution, why does anyone think it makes sense to strip that person, once she has paid her debt to society, of her livelihood, a livelihood gained through hard years of apprenticeship and a business that may have been built up through many years of hard work and savings?
How can it make sense to say to a person that, although you are a competent tradesperson, because of some offence you have committed (or because, although you have been blameless, we do not like your friends), you are prevented from working at your chosen occupation.
Perhaps, when fishes flew and forests walked and figs grew upon thorn, it made sense, but hardly even then.
This madness does not stop with hoteliers and electrical contractors.
At least fifty-six different types of licensed building contractors, along with site supervisors face the same arbitrary disqualification regime. They include bricklayers, gasfitters, rooftilers and waterproofers.
A swathe has been cut through our skilled occupations.
The right to work at one's chosen occupation has been withdrawn.
Due process, open justice, proportionality, reasonableness, punishment for conduct as opposed to punishment for association or status, logic, the right to be heard in a fair and open tribunal and equality before the law have all been abandoned.
Beware of crusades.
Notes for a speech by Stephen Keim SC to a public forum on defending civil liberties at the Irish Club, Elizabeth Street, Brisbane on Thursday, 27 February 2014 at 7.00 pm. You can follow Stephen Keim on Twitter @StephenKeim1.
 The declared motorcycle clubs are the Bandidos, Black Uhlans, Coffin Cheaters, Comancheros, Finks, Fourth Reich, Gladiators, Gypsy Jokers, Hells Angels, Highway 61, Iron Horsemen, Life and Death, Lone Wolf, Mobshitters, Mongols, Muslim Brotherhood Movement, Nomads, Notorious, Odins Warriors, Outcasts, Outlaws, Phoenix, Rebels, Red Devils, Renegades, and Scorpions. The regulation was passed as schedule 1 to the CODA Act.
 Section 4 Liquor Act as amended by s. 87 CODOLA Act. Reference is made to s. 60A(3) of the Criminal Code, another amendment made by the CODA Act.
 Schedule 2 to Schedule 2 Queensland Building and Construction Commission Regulation 2003
 Section 31 Queensland Building and Construction Commission Act 1991
 Section 32AA Queensland Building and Construction Commission Act 1991
 Sections 127-137 CODOLA Act