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What makes this ex-QLS president ‘angry’ about the criminal law discourse
In a recent conversation with Lawyers Weekly, a former Queensland Law Society president and firm partner recently reflected on the trends and challenges that will impact Queensland-based lawyers in 2025, including how state legislative updates are changing the landscape for practitioners.
Kace O'Neill
Jasper Fogerty Lawyers partner and Queensland Law Society (QLS) immediate past president Rebecca Fogerty recently spoke on The Lawyers Weekly Show about what lawyers across Queensland should expect in the year to come.
According to Fogerty, in criminal law especially, the space is highly polarised and can become extremely political, which often shrouds the true state of affairs.
“Not just in Queensland, but all around Australia where we’re having these discussions about crime, this broader public discourse about crime, which is polarised; it’s very political, and it doesn’t necessarily reflect the true state of affairs.
“It’s very easy for politicians to talk big on toughened crime and be tough on crime, and that’s happening in Queensland, in Western Australia, in the Northern Territory. But the reality is that crime is a complex social product. It comes about because of fundamental inequalities and fundamental tensions in our communities. And if governments don’t meaningfully address that, then there’s always going to be the crime issue,” Fogerty said.
“What makes me angry as a criminal defence lawyer and what drives the desire to contribute as well is I think a lot of the discourse about crime in our communities is based on misunderstandings.
“There is a lack of engagement with what really happens in the courts and with our system of justice. And that has tremendous potential then to create miscarriages of justice and to undermine the rule of law in fundamental ways which affects everybody.”
This frustration, of cours,e can make it extremely difficult for lawyers to keep pushing, especially when there is that fundamental misunderstanding of the space in which they operate. Fogerty, however, believes that most criminal defence lawyers are motivated by a true belief in law itself – which leads to them not becoming disgruntled by these narratives.
“I think most criminal defence lawyers are motivated fundamentally by a belief in the rule of law, a belief in the separation of powers and these broader high concept ideas that you’re presumed innocent until proven guilty, that you are entitled to a fair trial, that the sentencing process should be open and objective and impartial.
“Those are core, fundamental principles that protect our community, and it’s seeing the way that they can become undermined through politicisation, through cynical lawmaking by politicians,” said Fogerty.
“Case in point: I think at the moment what’s happening in Queensland with the ‘adult crime, adult time’ in youth justice, and this idea that the sentencing process should reflect the impact on victims above all else just doesn’t reflect the reality that the sentencing synthesis has to take into account victims experiences.”
Further, Fogerty believes that, more importantly, the justice system must serve the broader interests of the community.
“But there’s other things that the justice system serves as well. The broader interests of the community, the subjective mitigating circumstances of the defendant,” said Fogerty.
“If emotion were to reign in sentencing, then we don’t have an objective system, we don’t have an impartial system, we don’t have a system where every person, no matter where they come from or what they look like, what they’ve done or what language they speak, is treated equally. And that I think is really hard as a criminal lawyer to see the potential for that to be eroded through cynicism and the dissemination of misinformation.”
