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Preventative detention legislation breaches human rights

Australian legislation that allows for the preventive detention of high risk offenders has been held to breach international human rights law by the United Nations Human Rights Committee (UNHRC).

Legislation in four Australian States allows the Supreme Court to order that a person who has already served their sentence of imprisonment be returned to prison if they are considered to be a high risk of re-offending if released.

Professor Patrick Keyzer, Director of the Centre for Law, Governance and Public Policy at Bond University, prepared communications to the Human Rights Committee on behalf of prisoners in New South Wales and Queensland following an unsuccessful legal challenge in the High Court of Australia*.

The prisoners argued that although the Australian High Court had upheld the constitutional validity of the Act, the laws inflicted arbitrary detention and double punishment contrary to the International Covenant on Civil and Political Rights, which Australia signed in 1980.

After losing their High Court battle, the prisoners instructed Professor Keyzer, a constitutional lawyer and practising barrister, to take their complaint to the UNHRC, which recently upheld their complaint in an 11-2 decision.

Professor Keyzer says the decision means the State Governments of Queensland, New South Wales, Western Australia and Victoria are now obliged to respond.

“The United Nations Human Rights Committee has sent a very clear message to our governments that prison can only be used for the punishment of criminals, and cannot be used for post-sentence preventive detention,” Professor Keyzer said.

“The four states in question will need to work out a new approach to the management of high risk offenders that doesn’t involve the use of prison as a preventive measure. They will need to develop a system for the successful rehabilitation and graduated release of high risk offenders, and address the related social issues,” he said.

Professor Keyzer said the UNHRC decision was a catalyst for reform not only in Australia, but in all 165 countries that are parties to the International Covenant on Civil and Political Rights.

“The decision made a number of important statements about what is lawful and what is not; including a stipulation that if a prison sentence is for a fixed period of time, and once that period is over, the prisoner is entitled to their freedom. 

“This has an immediate effect on the international human rights law for every country party to the covenant. Each now has the responsibility to consider whether, and how, the decision applies to schemes in their countries. Some of these nations regularly practice the arbitrary detention of people in prisons after those people have completed their prison sentences,” Professor Keyzer said.

The Australian Government has until September to respond, indicating what measures have been taken to give effect to the UNHRC decision.

* (Fardon v Attorney-General (Qld) (2004) 223 CLR 575).

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