The Proposal
The Queensland Parliament has recently made a proposal for new changes to legislation that will place an overriding power on the Attorney General to overrule any previous court decision and detain individuals who are deemed a ‘risk to the public’ indefinitely, despite the fact they have completed their original sentence.
The legislation will allow the Attorney General’s ruling to be final and conclusive, with no review or legal appeal avenues available for the individuals. This new legislation has been deemed by Attorney General Jarrod Bleijie as necessary to keep the “worst of the worst” criminals in jail for life, giving him the power not only to keep rapists, pedophiles and dangerous sex offenders behind bars but also has the power to incarcerate already released offenders who he believes are a danger to the public. As such, under this new legislation, the prisoner does not have to reoffend to be dealt with under this Act.
The legislation offers a punitive punishment to individuals who the court believes might commit crimes if released, and further does not provide for rigorous enough mechanisms to determine if a person is likely to re-offend. Under new legislation, two psychiatrist appointments can be deemed sufficient to determine the likelihood of re-offending, with this review conducted annually and offenders will have no choice in regards to their psychologist or changing the amount of time for which reviews are conducted.
The proposed legislation, the Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013 is applicable to any relevant person who is subject to a previous order made under the Dangerous Prisoners (Sexual Offenders) Act 2003. The effect of this legislation will be that any individual deemed to be a ‘risk to the public’ will be detained indefinitely if it is deemed by the Attorney General to be in public interest.
One of a number of reasons why such legislation is problematic is that it fails not only to define the term ‘public interest’ but that it fails to provide statutory procedures and guidelines on how the governor general should determine whether detention is in the public interest or not. Such lack of clarity gives opportunity for the Governor to establish public interest as the reactions by the community and politicians which is often heavily exaggerated by mainstream media. It is for this, and a number of other reasons that the proposed legislation has been widely criticized by the courts and academics alike.
This form of preventative detention amounts to both an increase in punishment and a new punishment for the original offence. The proposed changes disregards the rights and liberties of the individuals subject to this Act, and disregards the separation of powers that is fundamental to the operation of Australia’s legal system. Lastly the proposed changes breach a number of Australia’s human rights obligations, specifically the principle of double jeopardy, an obligation under article 14(7) of the ICCPR which states the following:
7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
The case of Robert Fardon
One such individual who could be detained under this proposed legislation is Robert Fardon. Robert Fardon first came into contact with the courts in 1967 at the age of 18, and again for another offence he was convicted in 1978 and sentenced to 13 years imprisonment for raping and indecently dealing with a 12-year-old girl. Since this date he has been released and again detained numerous times, however has not been convicted of any offence since 1988. He has spent most of his life in gaol. Despite this he has been labeled as the face of sex offenders in Queensland. In 2003 an order was made under the Dangerous Prisoners (Sexual Offenders) Act 2003 to detain him for an indefinite period of time once he had completed his sentence. Unlike the new legislation, this initial legislation allowed the court to decide if individuals should be released into the community, often based on psychiatrist’s reports. If dealt with under the most recent proposed changes, Robert Fardon could potentially be held in prison indefinitely for the rest of his life, subject to the ultimate decision of the Governor. Queensland’s current Attorney General has openly announced he intends to target individuals such as Robert Fardon under this new legislation.
There are currently more than 90 of 132 individuals declared under the ‘Dangerous Offenders’ title in Queensland, currently in the community on supervision orders. This legislation gives the Attorney General the power to retract these supervision orders if he deems these individuals a ‘risk to the community’ and place these individuals back in prison for indefinite periods, outside of the reach of any legal avenues, even if they have not reoffended.
A Better Response
A much better response is circles of support within the community. Community based approaches to rehabilitating sex offender’s is much more effective as opposed to a punitive solution which simply alienates individuals and releases them at a later date. This concept is echoed by an article in the Green Left Weekly newspaper from a women’s rights perspective who argue that continued punishment for sex offenders will not solve the problem.
Community based approaches were part of Justice Action’s proposal to the NSW Government more than four years ago in regards to Dennis Ferguson. Amongst a detailed plan to tackle sex offending were suggestions such as ‘Circle of Accountability’ programs, which are implemented in other countries such as the UK. These programs offer a network of support consisting of counselors, clinical psychologists, psychiatrists and community representatives to prevent reoffending.
True rehabilitation can only come from increased sex education, therapeutic programs and equality between both sexes, not from increased punishment for sex offenders. One method in particular that is worth mentioning is Cognitive Behavioural Therapy. This form of therapy is effective in the rehabilitation of sex offender’s as it teaches them that it is possible to have control over their thoughts, feelings, and behaviours. It helps the person challenge and overcome automatic beliefs by using practical strategies to modify their behaviour, with the result of increased positive feelings, leading to increased positive thoughts and conduct.
The case of Dennis Ferguson
A similar issue of legislation being introduced to target particular sexual offenders was seen in the case of Dennis Ferguson. The NSW government was effective in passing legislation which allowed Housing NSW to terminate the public housing lease of convicted sex offenders, following the public response to Ferguson being granted a housing lease in Ryde, NSW.
What is perhaps the most problematic thing about such legislation, and the media hype surrounding not only these two men, but people like Darren Anthony Francis, and Mark Anthony Foy is that by creating deviancy amplification, and labeling these men as “monsters” and the “worst of the worst” the media and government are detracting attention away from the bigger issues surrounding sexual assault and sexual violence. In exerting their attention into one person like Robert Fardon, they are avoiding raising awareness of harms that are actually occurring and ways that they can be prevented. Greater education about the occurrences of abuse and the likely causes and preventative measures that we as individuals and society can take should be put on a higher priority than monstering pedophiles who fit the visual representation that the tabloid media presents to us.
This has been argued on the 16th of October by the socialist alliance who are critical of law and order politicians, police and prison operators who are continuing to address sexual violence with punitive measures. “Sexual violence will not be ended by locking up dangerous and alienated men after they have committed atrocities and then releasing them, unaccountable and unsupported to commit more and worse offences after further dehumanization in jail” (Green Left Weekly). The proposal, therapeutic work with offenders, restorative justice and violence programs that demand accountability from violent men and challenge private and public sexism.