296 International Journal of Criminology and Sociology, 2013, 2, 296-305 The Preventive Detention of “Dangerous” Sex Offenders in Australia: Perspectives at the Coalface Patrick Keyzer1 and Bernadette McSherry2* 1 Centre for Law, Governance and Public Policy, Bond University, Gold Coast, QLD, 4229, Australia 2Melbourne Social Equity Institute, University of Melbourne, Parkville, VIC 3010, Australia Abstract: Four Australian states, Queensland, New South Wales, Western Australia and Victoria as well as the Northern Territory have enacted laws that enable the continued detention in prison of “dangerous” sex offenders beyond the completion of their sentence. This has proved to be a popular response from a political and social policy perspective, with the New South Wales government recently extending its scheme to include serious violent offenders. While the Queensland scheme has been upheld by the High Court of Australia as constitutional, preventive detention laws raise human rights issues and problems with implementation. This paper outlines the results of 86 interviews carried out with psychiatrists, psychologists, social workers, former corrective services officials, lawyers and police officers who have firsthand experience with the operation of the Australian schemes. The results indicate that those at the “coalface” in relation to post-sentence preventive detention schemes are critical of a number of matters such as the general reliance on preventive detention rather than rehabilitation, the reliance on and use of risk assessment tools as well as media reporting of sex offenders. Keywords: Preventive detention, sex offenders, dangerousness. INTRODUCTION Under the Queensland legislation, the first of its type in Australia, the Attorney-General may apply to the On 30 December 2012, Dennis Ferguson was found state’s Supreme Court for a continuing detention order dead in his Department of Housing apartment in central during the last six months of a sex offender’s term of Sydney. In 2003, he had been released from imprisonment. Under section 13, the Supreme Court Brisbane’s Wolston prison after serving 14 years for the must be satisfied to a high degree of probability that the kidnapping and assault of three young children. The prisoner is a “serious danger to the community”, that is, community outrage that followed Ferguson’s release that there is an “unacceptable risk that the prisoner will led to his being hounded from town to town in both commit a serious sexual offence” if released from Queensland and New South Wales (McSherry and custody. The court has some discretion: – it can make Keyzer, 2009). It also led to the enactment in Australia a “continuing detention order” for indefinite detention or of legislation, first in Queensland and then in three a “supervision order” where the prisoner is released other states and the Northern Territory, that enables from custody but is subject to certain conditions such the continued detention in prison of “dangerous” sex as reporting to and receiving visits from a corrective offenders beyond the completion of their sentence services officer. (Keyzer, Pereira and Southwood, 2004). Ironically, because he had already been released, Dennis Section 3 of the Queensland legislation states that Ferguson was unable to be detained under the the objects of the Act are: Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The Australian post-sentence detention schemes (a) to provide for the continued detention in custody differ from those that enable indefinite prison terms at or supervised release of a particular class of the time of sentence because they come into play just prisoner to ensure adequate protection of the prior to the prisoner’s release (Keyzer, 2008). They community; and also differ from United States “sexually violent predator (b) to provide continuing control, care or treatment schemes” which enable the civil commitment of offenders with “mental abnormalities” for treatment and of a particular class of prisoner to facilitate their rehabilitation. control (La Fond 2005, 2011; Janus, 2006) in that the Australian schemes are not tied to any diagnostic The majority of the High Court of Australia in Fardon criteria. v Attorney-General (Qld) (2004) held that the Queensland Act was constitutional. Similar schemes have subsequently been enacted in other Australian *Address correspondence to this author at the Melbourne Social Equity Institute, University of Melbourne, Parkville, VIC 3010, Australia; jurisdictions by the Dangerous Sexual Offenders Act Tel: 61 3 90357434; E-mail: [email protected] E-ISSN: 1929-4409/13 © 2013 Lifescience Global The Preventive Detention of ‘Dangerous’ Sex Offenders in Australia International Journal of Criminology and Sociology, 2013 Vol. 2 297 2006 (WA); the Crimes (Serious Sex Offenders) Act social workers, former corrective services officials, 2006 (NSW); the Serious Sex Offenders (Detention lawyers and police officers who have firsthand and Supervision) Act 2009 (Vic) and the Serious Sex experience with the operation of the Australian Offenders Act 2013 (NT). The New South Wales Act schemes. Because the project was focused on those has been amended by the Crimes (Serious Sex who work with the schemes, victims or representatives Offenders) Act 2013 such that it now relates to “high of victim groups were not included in the interviews. risk sex offenders and high risk violent offenders”, but the main features of the scheme remain the same. The interviewees were questioned in relation to their attitudes to (1) preventive detention schemes for sex While the schemes vary in detail across the states offenders; (2) risk assessment for the purposes of such and the Northern Territory (McSherry and Keyzer, schemes; and (3) the role of the media in the operation 2009), they share the same primary purpose of of the schemes. Interviewees were randomly selected community protection. For example, section 4 of the from a review of the case reports published by the Western Australian Act follows the objects section of Australasian Legal Information Institute using a the Queensland Act set out above, but omits any legislation name “note up” function available at that mention of rehabilitation. Section 3 of the New South resource. Snowball sampling was then used to ensure Wales Act mentions encouraging serious sex offenders coverage of key professional groups and stakeholders to undertake rehabilitation, but omits any mention of (prosecution and defence) along with geographical control, care or treatment, focusing instead on “the spread across and within the three State jurisdictions of safety and protection of the community”. There are Queensland, Western Australia and New South Wales. other differences in the language used regarding, for example, the risk of harm (McSherry, 2014), but the Table 1 Sets out the number of participants main features of these schemes are very similar. interviewed by role and jurisdiction. There is a developing literature on the legal and The interviews were entirely voluntary and were human rights implications of the Australian preventive conducted on the basis that the identity of the detention schemes (McSherry and Keyzer 2009; participants would not be revealed in any publications Keyzer, 2009; Keyzer, 2010; McSherry 2012), but little without the prior consent of the participant concerned. has been written about the perceptions of those “at the The interviews were conducted on a one-to-one basis coalface” of the operation of such schemes concerning between the interviewer and participant. All interviews their advantages and disadvantages. were tape recorded and transcribed by a transcription service. The interviewees were asked to comment on This article analyses the results of 86 interviews four very general questions: conducted as part of an Australian Research Council Discovery Project (DP0877171) entitled Preventive • What are some of the practical issues that have Detention of High Risk Offenders: The Search for arisen in implementing the preventive detention Effective and Legitimate Parameters. Eighty-six semi- and supervision scheme? structured interviews were conducted in Queensland, Western Australia and New South Wales over a two- • What have been the expectations (hopes and and-a-half year period with psychiatrists, psychologists, fears) in relation to the preventive and detention Table 1: Interview Participants Position Title Queensland New South Wales Western Australia Psychologists 6 6 8 Lawyers 9 11 12 Police and Corrections 2 3 6 Social Workers 2 2 4 Criminologists 2 1 3 Psychiatrists 2 4 3 Total 23 27 36 298 International Journal of Criminology and Sociology, 2013 Vol. 2 Keyzer and McSherry and supervision scheme and have they been perceived problem”. Concern was expressed by many borne out? interviewees about the feasibility of the system in the long term. “If you lock people up for a longer period of • What are some of the issues relating to time you’re naturally going to stop them reoffending,” a assessing the risk of future harm to the Queensland psychologist observed, but “you’ve got to community? let them out at some point in time”. • Are there any other specific issues relating to Preventive detention, one New South Wales lawyer preventive detention and supervision schemes stated, “focuses on the wrong end of prevention”, and you think should be addressed by the project? is a “political or short-term strategy but it’s not a long- term solution towards keeping the community safe” Interviews lasted about an hour to ninety minutes. because “it targets known offenders and ignores the The main justification for asking such general questions majority of next offenders or present offenders who and leaving so much time to answer them was that it aren’t known to the system”. The same interviewee would allow the interviewees latitude to identify issues argued that “if we really want to protect the community, that were important to them, and scope to develop we have to look at where the majority of risk comes points they wanted to make as they emerged. from, and it doesn’t come from the sentenced offender, The transcripts were analysed using the software it comes from everywhere else”.