The main objection is that every case is different and judges require sentencing discretions to tailor punishment to a particular offender's objective level of criminality. Nonetheless, the High Court in the people smuggler sentence case effectively affirmed mandatory sentencing, despite argument about the impairment of the courts' institutional integrity. Depending on how the mandatory sentencing law is framed, it could create an incentive or disincentive to plead guilty to offences involving gun crimes. For this purpose it's interesting to see how the new VLAD law works in Queensland. Peter Callaghan, SC, and Jeff Hunter, QC, from the Queensland bar, have done quite a bit of work on the Vicious Lawless Association Disestablishment Act and identified how it really will function. For instance, if three 17-year-olds were caught smoking a joint in a park, they would be up for a fine (with no conviction recorded) for drug possession. In addition, they would be exposed to a mandatory sentence of 15 years because they have been empaled by VLAD.

So this is a great bargaining chip for the coppers to extract guilty pleas for some of the offences caught under the new legislation, including possession of drugs and assault causing actual bodily harm. It is likely the mandatory lengthy term of imprisonment would rarely be imposed because Sergeant Plod can say: ''Would you like to plead guilty to this offence rather than be charged with the gangs law circumstance of aggregation?'' The answer invariably would be ''yes''. It's nifty: you're guilty without having been found guilty. So we look forward with excitement to the fine details of Barry's Bullet Biting law. You will recall NSW had a crack in 2009 at controlling criminal gangs. The High Court didn't like it because the law stomped all over judicial independence. The draftspeople must have forgotten about the constitution when they cobbled together the Criminal Organisations Control Act.

An amended law came in last year, along with new measures on firearms and consorting. As far as I can see, this hasn't made the slightest difference to gang members doing everyone a public service and trying to bump each other off. There is already plenty of laws to help the police fight bikies and their trade in amphetamines, at both state and federal level. Crime agencies also have wide powers to intercept phones, plant listening devices and put suspects under surveillance. What's happening in Queensland with gang laws and the stand-off between the judiciary and the government is instructive south of the Tweed. On October 31, Justice George Fryberg stayed an application by the Crown to review bail given to an alleged Bandido gang member said to have been involved in a public brawl.

In other words, this person is still out on bail, with the judge refusing to hear the application because of comments by Premier Campbell Newman that are still ringing in Queenslanders' ears. Newman is frantically beating the law'n'order drum and insisted that judges should do what the ''community wants''. The Judicial Conference of Australia has been gingerly making diplomatic statements about the government's right to govern, but also keeping an eye on judicial independence. Fryberg thought Newman should withdraw his comments about judges doing what the community wants. His stay will be reviewed on Friday by the Court of Appeal. If the stay is lifted, it could well give the impression that the court has surrendered some of its patch and that doing what the community wants is more pressing than what the law requires.

Separation of powers has long presented conceptual difficulties for Queensland premiers with deep law'n'order convictions. Who can forget the priceless performance of Sir Johannes Bjelke-Petersen, at the Fitzgerald inquiry, when asked by cross-examining counsel: ''What do you understand by the doctrine of the separation of powers under the Westminster system?'' Bjelke-Petersen: The Westminster system? The stock? Q: The doctrine of the separation of powers under the Westminster system. Bjelke-Petersen: No, I don't quite know what you're driving at. The document? … I don't know which doctrine you refer to …

Q: There is only one doctrine of the separation of powers. Bjelke-Petersen: I believe in it very strongly, and despite what you may say, I believe that we do have a great responsibility to the people who elect us to government. Q: I'm sure you're trying to be responsive to the question, but the question related to the doctrine of the separation of powers or the principles … Bjelke-Petersen: Well, the separation of the doctrine that you refer to, in relation to where the government stands, and the rest of the community stands, or where the rest of the instruments of government stand? Is that what … Loading

Q: No. Bjelke-Petersen: Well, you tell me. And I'll tell you whether you're right or not. Don't you know?