Time,Delay and Nonfeasance

For a brief account of the history of the legislation see Keyzer P Pereira C Southwood S , ‘Pre-emptive Imprisonment for Dangerousness in Queensland under the Dangerous Prisoners (Sexual Offenders) Act 2003: The Constitutional Issues’ (2004) 11(2) Psychiatry, Psychology and Law 244.

DPSOA ss 5, 8 and 13. The question whether it is possible to accurately predict the risk of future offending is discussed in Smallbone S Ransley J , ‘Legal and Psychological Controversies in the Preventive Incapacitation of Sexual Offenders’ (2005) 28 University of New South Wales Law Journal 299 and references there cited.

DPSOA Schedule.

DPSOA, ss 14(1)(a), 50 and 51.

DPSOA, ss 14(1)(a), 50 and 51.

Fardon v Attorney-General (Queensland) (2004) 210 ALR 50. Whether this regime inflicts double punishment and is therefore inconsistent with Australia's obligations under art 14(7) of the International Covenant on Civil and Political Rights is a matter the subject of an active communication to the UN Human Rights Committee prepared by the first author of this article on behalf of the Prisoners' Legal Service (Qld). See further Keyzer P Blay S , ‘Questions Regarding the Compliance of Legislation that Arguably Inflicts Double Punishment on Sex Offenders: A Critical Analysis of Mr Fardon's Communication to the United Nations Human Rights Committee’ (2006) Melbourne Journal of International Law, forthcoming.

See the Crimes (Serious Sex Offenders) Act 2006 (NSW) (‘NSW Act’) and the Dangerous Sexual Offenders Act 2006 (WA) (‘WA Act’). Victoria has introduced a Serious Sexual Offenders Monitoring Act 2005 (Vic), but it does not authorise re-imprisonment of offenders.

[2003] QSC 367; on appeal (2003) 142 A Crim R 537.

Under the NSW Act see s 14; under the WA Act see s 8.

In NSW, provision is made for ‘interim detention orders’ (under s 16) and ‘continuing detention orders’ (under s 17). An application for either type of order must be made within six months of the date of release, as is the case in Queensland under the DPSOA (see NSW Act s 6(2)). In WA, the effect of s 8(3) of the WA Act is that an application for a ‘continuing detention order’ or supervision must be made in the last six months of imprisonment.

[2003] QSC 367 [36].

Ibid.

ibid [39].

Ibid [42], applying Lisafa Holdings Pty Ltd v Gaming Tribunal (1992) 26 NSWLR 391 at 406–407. Note that similar time strictures operate in Western Australia (see s 11(2) of the WA Act) but in New South Wales, s 15(3) of the NSW Act provides a 28-day period within which the hearing must be held.

(2003) 142 A Crim 537 [6].

(2003) 143 A Crim R 312.

Ibid [12].

[2004] QSC 428.

The issue of whether undertakings may be given under the DPSOA is contentious. A submission to that effect was rejected in Attorney-General for the State of Queensland v Fardon [2005] QSC 137 at [25].

(2005) 158 A Crim R 399.

DPSOA s 27.

Francis (2005) 158 A Crim R 399 [21].

Ibid [27].

Ibid [30], [33].

Nash (2003) 143 A Crim R 312 [6], [11].

Watego [2003] QSC 367 [35].

Watego [2003] QSC 367 [35]; (2003) 142 A Crim R 537 [7]: ‘the material in question extends over 1000 or more pages of the five volume record now before the Court, which it would have been virtually impossible for anyone to absorb in the time before the hearing of the application on this appeal’.

Watego [2003] QSC 367 [35]; [42]; Nash (2003) 143 A Crim R 312 [6].

Watego [2003] QSC 367 [36].

Nash (2003) 143 A Crim R 312 [11].

Watego [2003] QSC 367 [36].

Section 15(3) of the NSW Act provides for a 28-day period within which a preliminary hearing is held, rather than the 14-day period contemplated by the WA Act and DPSOA (see n 14 above, and accompanying text). The NSW provision doubles the preparation time for both sides, and is of critical importance to the respondent in preparing their case.

See Campbell TW , ‘Sex Offenders and Actuarial Risk Assessments: Ethical Considerations’ (2003) 21 Behavioural Sciences and the Law 269–279, 275; Rogers R , ‘The Uncritical Acceptance of Risk Assessment in Forensic Practice’ (2000) 24(5) Law and Human Behavior 595; Campbell TW , ‘Sexual Predator Evaluations and Phrenology: Considering Issues of Evidentiary Reliability’ (2000) 18 Behavioural Sciences and the Law 111, 119; Gray A , ‘Standard of Proof, Unpredictable Behaviour and the High Court of Australia's Verdict on Preventative Detention Laws’ (2005) 10 Deakin Law Review 178, 190; Johnson B , ‘Prophecy With Numbers’ (2005) 7 University of Technology, Sydney Law Review 117, 133; and Ruschena D , ‘Determining Dangerousness: Whatever Happened to the Rules of Evidence?’ (2003) 10 Psychiatry, Psychology and the Law 122.

Fardon (2004) 210 ALR 50, 96–102. This topic will be the subject of further analysis in a report being prepared for the Criminology Research Council: Freiberg A Freiberg B McSherry Keyzer P , ‘Preventive Detention for “Dangerousness” in Australia: A Critical Analysis and Proposals for Policy Development’ (Criminology Research Council-funded research-in-progress).