Protecting the Rights of High Risk Offenders

“Australia’s jurisprudence of detention and imprisonment requires significant change to protect the principle that people should only ever be punished after due process of law”
– Patrick Keyzer

Society currently faces many challenges to civil liberty. In our efforts to enhance security we need to avoid slipping into an Orwellian nightmare.

The Australian Research Council has recently granted $279,000 in funding for 2008 – 2010 for research into how the Australian criminal justice system could best deal with the preventative detention of ‘high risk’ offenders.

Professor Patrick Keyzer, a Deputy Dean in the Faculty of Law at Bond University, and a team of highly regarded scholars from Monash University, the University of Technology Sydney, Florida and Scotland, will use the funding for a project called Preventive Detention of High Risk Offenders: The Search for Legitimate Parameters.

The project aims to look at the way in which preventative detention laws operate internationally, and whether they are consistent with national and international civil rights principles.

It will critically evaluate the international law, constitutional and criminal justice dimensions of current Australian preventive detention schemes.

Alternative international approaches to the management of high risk offenders, such as orders for lifelong restriction and treatment programs mandated though mental health legislation, will also be analysed in order to find the most effective and workable strategies.

One approach that will receive particular attention is the approach taken in Queensland.

Professor Keyzer said The Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) raises serious human rights issues and constitutional concerns regarding the legitimacy of further detention of a person after their sentence has been served.

“What’s different with this new approach that has been taken in Queensland and now in New South Wales and Western Australia is that the people who are subjected to these regimes are being sent to prison, even though they have committed no fresh crime, there has been no fresh criminal trial and no fresh finding of criminal guilt,” he said.

Traditionally, imprisonment has been regarded as an extreme form of punishment, and since the death penalty was removed in Australia, it is the most extreme form of punishment.

In 1973, the High Court of Australia said; “We cannot understand how imprisonment, either with or without hard labour can, however enlightened a prison system, be regarded as anything other than a severe punishment”.

Professor Keyser said the ongoing detention of someone after they have served their time on the basis that they might re-offend can be considered double punishment and a violation of the International Covenant of Civil and Political Rights.

“Our High Court’s approach to that legislation is that even though Australia has signed that treaty we don’t have to apply it in constitutional cases in Australia,” he said.

“This raises serious questions about the protection of civil rights and the integrity of the exercise of judicial power.

“The division of power that really counts in Australia is the division between the courts and the parliament and the executive, so we have to make sure that the courts are independent, that they have institutional integrity and that they not be vested with powers that are fundamentally inconsistent with the proper role of courts.

“Conferring power on a court to send a person to prison, other than on a finding of criminal guilt is wrong,” he said.

The obstruction of liberty and civil rights of an individual, no matter how their offence is deemed morally, by detaining someone in a punitive environment after they have served their sentence, can only be seen as further punishment.

While further detention is in some cases a necessary action, Professor Keyzer said it should be done so in a non-punitive environment unless a fresh crime and criminal finding of guilt has been found.

“This legislation has opened the door of prisons to purposes other than the punishment of criminal guilt. Because prison is a punitive environment we have to be careful about how it is used, otherwise we have a problem with governments simply using prisons to warehouse the undesirables.

“While there is little doubt a sex offender about to be released from custody is a member of a hated minority, that doesn’t mean that they are any less deserving of civil rights and the civil right of freedom once their sentence is completed,” Professor Keyzer said.

Professor Patrick Keyzer joined Bond University in 2007. He is a barrister who has argued cases in the High Court of Australia, has written seven books, edited ten books, and has previously received grant funding from the Australian Research Council and the Criminology Research Council for projects examining the topics of liberty and detention.