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Queensland and NSW Preventive Detention Laws Inconsistent with International Human Rights Law

The United Nations Human Rights Committee have released their decisions in cases brought by Ken Tillman (NSW) and Robert Fardon (Queensland). Fardon was sent to prison in 2003 under the Dangerous Prisoners (Sexual Offenders) Act 2003. Tillman was sent to prison in 2007 under NSW legislation, the Crimes (Serious Sex Offenders) Act 2006. These laws allow the Supreme Court to order that a person who has already served their sentence of imprisonment can be sent back to prison if they are judged to be a high risk of re-offending if released.

The Dangerous Prisoners (Sexual Offenders) Act 2003, which was the subject of an unsuccessful constitutional challenge in 2004 (Fardon v Attorney-General (Qld) (2004) 223 CLR 575).

Tillman and Fardon argued that although the Australian High Court had upheld the constitutional validity of the Queensland law, the NSW (and Queensland) laws inflicted arbitrary detention and double punishment contrary to the International Covenant on Civil and Political Rights. Australia signed this Covenant in 1980.

The United Nations Human Rights Committee, in an 11-2 decision, said that the further imprisonment of Fardon and Tillman under these laws was inconsistent with the Covenant, because:

The author had already served his 10 year term of imprisonment and yet he continued, in actual fact, to be subjected to imprisonment in pursuance of a law which characterises his continued incarceration under the same prison regime as detention. This purported detention amounted, in substance, to a fresh term of imprisonment which, unlike detention proper, is not permissible in the absence of a conviction for which imprisonment is a sentence prescribed by law.

The upshot of this decision is that the regimes in New South Wales, Queensland, Western Australia and Victoria which contemplate the post-sentence re-imprisonment of sex offenders are all inconsistent with international human rights law, to the extent that prison is used as a venue for post-sentence preventive detention.

Australia is now under an obligation to release offenders who have been re-imprisoned under these regimes.

The Australian government, which lost the case, has been given 180 days to respond, indicating what measures have been taken to give effect to the Committee’s decision.

To comply with the Covenant, the four State governments will need to adopt preventive detention policies that do not use prison, which is punitive in character, as a venue for treatment. 

The UN communication was prepared by Professor Patrick Keyzer, of the Centre for Law, Governance and Public Policy at Bond University.

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