Double Punishment? Preventive Detention Schemes under Australian Legislation and Their Consistency with International Law: The Fardon Communication

By Keyzer, Patrick; Blay, Sam | Melbourne Journal of International Law, October 2006 | Go to article overview
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Double Punishment? Preventive Detention Schemes under Australian Legislation and Their Consistency with International Law: The Fardon Communication


Keyzer, Patrick, Blay, Sam, Melbourne Journal of International Law


[This commentary critically analyses legislation enacted by the Queensland Parliament that reincarcerates sex offenders who have already completed their terms of imprisonment. Despite the fact that the constitutional validity of this new style of "preventive detention' was upheld by the High Court of Australia, important questions remain regarding the international legal validity of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). In particular, a recently commenced UN Communication by prisoner Robert Fardon argues that the Queensland Act inflicts double punishment contrary to art 14(7) of the International Covenant on Civil and Political Rights. This commentary considers the issues raised by this communication.]

CONTENTS

I Introduction

II Preventive Detention Legislation in Australia
  A The History of the Debate
  B Preventive Detention in Practice
      1 Victorian Case Study: Garry David
      2 New South Wales Case Study: Gregory Kable
      3 Queensland Example: The DPSOA

III The DPSOA in Operation: The Fardon Case
  A The Offences
  B The Subsequent Proceedings
  C Does the DPSOA Inflict Double Punishment?
      1 The High Court's Response
      2 Is Preventive Detention in a Prison Necessarily Punitive?

IV Assessment at International Law
  A The 'No Double Punishment' Rule under International Law
  B The First Optional Protocol: The Avenue for Redress
  C The Comparative Strengths of Fardon's Complaint
      1 The Precedent of the New Zealand Communication
      2 Admissibility of Preventive Detention Complaints
      3 The Merits

V Conclusion

I INTRODUCTION

In 2004, the High Court of Australia dismissed an appeal by Robert Fardon, a prisoner at the Wolston Correctional Centre in suburban Brisbane, by upholding the validity of Queensland's Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ('DPSOA'). (1) Subsequently, Fardon instructed the Prisoners' Legal Service of Queensland to initiate a communication ('the Fardon communication') to the United Nations Human Rights Committee ('HRC'), (2) contending that the DPSOA is inconsistent with the double jeopardy provision contained in art 14(7) of the International Covenant on Civil and Political Rights. (3)

It is not unusual to incarcerate offenders for terms longer than those which may otherwise be imposed, as a 'preventive' measure designed to protect the community. Such forms of imprisonment are generally referred to as 'preventive detention' schemes. (4) However, the DPSOA is unique because it authorises the reincarceration of a sex offender who has served his or her term of imprisonment, but is judged by a court to represent a risk to the community if released. The key legal question that arises is whether re-imprisonment constitutes a 'second' imprisonment and, accordingly, double punishment for the initial offence.

This commentary argues that the DPSOA breaches the ICCPR provision on double jeopardy. It advances the view that the Fardon communication, which is currently before the HRC, is a critical test case of art 14(7). First, the commentary explores the historical debate surrounding preventive detention in Australia. Against this backdrop, the commentary considers three examples of preventive detention adopted by Australian states. In particular, the commentary will examine the DPSOA, revealing the unique nature of the legislation. The operation of the DPSOA in practice will be considered through an assessment of the High Court's approach in Fardon. Further, the commentary analyses the jurisprudence of the HRC and the central problems and issues concerning preventive detention. Here, it will be demonstrated that although imprisonment can be lawfully ordered for ostensibly 'non-punitive' purposes under the DPSOA, such imprisonment is plainly punitive and in breach of the ICCPR. It is argued that the HRC is likely to share this view when it considers the Fardon communication.

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