Case Study Of C Parliamentary Sovereignty V Bikie Law

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C Parliamentary Sovereignty v Bikie Laws

The doctrine of separation of powers works alongside that of parliamentary sovereignty, in that the parliament decisions reign of all others. In practice, the parliament can enforce and create laws that override court decisions, which the court has to enforce. The laws being enforced in the case of R v Brown, enacted by the Queensland Parliament include mandatory requirements for the courts, such as mandatory refusal of bail. These target those who are alleged bikie members, bikie members or members by association. This limits the unfettered independent decisions of the courts, as they now must follow the obligatory sentences set by the laws of Parliament. This blurs the lines of separation of powers
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This changes the perception of the court as it gives the court less discretion, and they simply become a puppet of the legislature, co-opting the court to enforcing the mandatory requirements of the legislature. These laws follow closely that t in Kable, whereby the courts were limited in their discretion through conditions set in law. The High Court has recently held that there is no breach of the separation of powers, and that the laws are in line with the provisions of the Constitution. Regardless of this finding, the legislature has still gained a greater level of control over the judiciary, through the restrictions placed on the judiciary, on the power to decide whether to grant those alleged bikie member’s bail, as evident in R v Brown. This is through the presumption against bail for gang member. Although the powers of the judiciary have not been completely constrained to constitute a breach of the separation of powers, they have been limited in their decision-making abilities for matters of bail and …show more content…
The Crime and Misconduct Regulations 2005 (Qld) and the Criminal Code (Criminal Organisations) Regulation 2013 (Qld), both in Queensland have listed particular ‘gangs.’ The Vicious Lawless Association Disestablishment Bill 2013 (Qld) in particular sets out a further mandatory 15-year sentence on top of the sentence that would be given for the offence in question. The Tattoo Parlours Act 2013 (Qld) also bans the particular criminal organisations and members from owning, operating or working in tattoo parlours. These laws limit the freedom and liberties of members in our society. Australia is signatory to the International Covenant on Civil and Political Rights. Article 25 states that “every citizen shall have the right and the opportunity … to take part in the conduct of public affairs, directly or through freely chosen representatives … to have access, on general terms of equality, to public service in his country.” However, these laws are directly targeting certain members of society, thereby contradicting international law that we are signatory to. This non-compliance is a principle of Bingham’s eight principles of rule of law that international law must be complied with. Other principles of the rule of law proposed by Bingham are to “afford adequate protection of fundamental human rights” and laws which should apply equally to all

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