View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Deakin University: openjournals@Deakin STANDARD OF PROOF , UNPREDICTABLE BEHAVIOUR AND THE HIGH COURT OF AUSTRALIA ’S VERDICT ON PREVENTIVE DETENTION LAWS ANTHONY GRAY * [Preventive detention laws authorize courts to order the continued detention in prison of a person who has served their allocated term of imprisonment, but who are thought to be at risk of re-offending if released. They raise fun- damental issues about the separation of powers, the purpose of incarcera- tion, and the standard of proof which is/should be required to authorize detention. They assume that it is possible to predict, with a satisfactory rate of success, whether or not a past offender would if released commit further offences. Recently, a majority of the High Court of Australia validated such legislation. The author in this article explains his reasons for disagreeing with the verdict of the Court in this matter. ] I INTRODUCTION A recent attempt by a State Parliament to introduce preventive detention, allowing for the continued detention of an offender after their original term of sentence has expired, raises fundamental constitutional law and criminal procedure issues. Chief among them are whether the doctrine of separation of powers permits a State Court to be part of such a process, if so what the relevant standard of proof should be, and how it compares with the traditional criminal standard of beyond reasonable doubt, and current thinking on the predictability of future behaviour. This article addresses * Acting Head of Department and Lecturer in Law, Faculty of Business, University of Southern Queen- sland. 178 DEAKIN LAW REVIEW VOLUME 10 NO 1 each of these issues, and submits that the recent majority High Court decision validating such preventive detention laws is, with respect, flawed on many counts. In October 2004 the High Court of Australia, by a verdict of 6-1, upheld the validity of Queensland preventive detention legislation. 1 The 2003 law allows the Queen- sland Attorney-General to apply to the Supreme Court for an order that a person who has been convicted of a serious sexual offence be detained in prison for a further indefinite period after the end of the sentence which they were previously given. 2 In other words, further incarceration may be authorized not because of something the prisoner has done, but based on an assumption of what they may do if released. For many, this was an unexpected result. In an earlier article in the Deakin Law Review ,3 published prior to the High Court’s ruling, the author expressed his strong belief that the legislation should, consistent with the High Court’s own ruling in the Kable decision in 1995, 4 be struck down on constitutional grounds. The legislation may also be said to run counter to funda- mental legal principles, such as the rule of law and the common law right to liberty. Some see the legislation as running counter to the fundamental notion of presump- tion of innocence. It has been suggested that, as a result of the High Court’s deci- sion in this case, other State Parliaments are planning preventive detention regimes. The issue of the validity of such schemes, and how far a State Parliament (or possi- bly the Federal Parliament) may constitutionally be able to proceed along this path, is likely to remain a contentious issue in the foreseeable future. This article is split into several parts. Part II outlines the previous law in Australia on preventive detention regimes, based on the principle of separation of powers, and compares it with the High Court’s view in the Fardon case. An aspect of the law requires that the Queensland Government prove that the offender be likely to re-offend ‘at a high degree of probability’. The decision in Fardon implies that this is an acceptable standard of proof as a basis for further incarceration. Part III of the article outlines current models on the predictability of future behaviour. Part IV elaborates on the concept of reasonable doubt, and comparisons are made with the Fardon standard and the criminal standard of proof. Part V draws upon other arguments to suggest that such regimes are problematic and ill-conceived, including the suggestion that Fardon -type laws are in fact criminal in nature rather than civil. Other ways of dealing with the problem that those kinds of laws purport to address will be briefly considered. 1 Fardon v. Attorney-General (Queensland), (2004) 210 ALR 50 (High Court of Australia, 2004) (Far- don). 2 Dangerous Prisoners (Sexual Offenders) Act 2003, s 13. 3 Detaining Future Dangerous Offenders: Dangerous Legislation, 9 DEAKIN L. REV . 243 (2004). 4 Kable v. DPP, (1996) 189 CLR 51 (High Court of Australia, 1996) (Kable). 2005 Preventive Detention Laws 179 II KABLE AND THE PRINCIPLE OF SEPARATION OF POWERS A Kable A similar law to the one challenged in Fardon was passed by the New South Wales in 1994. Specific details of that legislation challenged in the Kable case appear in the earlier Deakin Law Review article. Suffice to say for present purposes that the challenged law allowed the State Attorney-General to apply to that State’s Supreme Court for an order that (in the end, a particular named offender) be detained indefi- nitely, if the court was satisfied that the person was more likely than not to commit a violent offence if released. The Act was couched in terms of community protec- tion. 5 Only the civil standard of proof was required in terms of making out a case under the legislation, and the court was not bound by traditional rules of evidence in assessing the application. A majority of the High Court in that case struck down the legislation as being offensive to the Commonwealth Constitution. The judges accepted that there was no separation of powers in individual State Constitutions, 6 but a majority found that as State Courts exercised federal jurisdiction, they were part of the federal court structure, and as such the formal separation of powers that clearly did exist in the Commonwealth Constitution was drawn down to State courts in the federal hierar- chy, including State Supreme Courts. It is necessary to elaborate on the reasoning of the majority in that case in order to assess the judgments in the recent Fardon decision. 7 1 Toohey J His Honour noted that the preventive detention regime in the Act differed from existing recognized categories of non-punitive (or civil) detention, including mental illness, infectious disease, the traditional power to punish for contempt, or military discipline tribunals. 8 He noted that preventive detention was an end in itself. It was not an incident of the exclusively judicial function of adjudging and punishing criminal guilt. He found the Act infringed the Grollo principle, 9 in that it asked a judicial body to undertake non-judicial functions of such a nature that public confi- 5 It was entitled the Community Protection Act 1994, and s3 of the legislation stated its object was to protect the community, and that in interpreting the legislation, the need to protect the community was to be given paramount consideration. 6 An orthodox view – see for example Clyne v. East, (1967) 68 SR (NSW) 385, Builders’ Labourers’ Federation of New South Wales v. Minister for Industrial Relations, (1986) 7 NSWLR 372. 7 See also Peter Johnston & Rohan Hardcastle, State Courts: The Limits of Kable, 20 SYDNEY L. REV . 216 (1998) 8 Kable v. DPP, (NSW) (1996) 189 CLR 51, 98 (High Court of Australia, 1996); considered in Chu Kheng Lim v. Minister for Immigration, (1992) 176 CLR 1(High Court of Australia, 1992). 9 Grollo v. Palmer, (1995) 184 CLR 348, 365 (High Court of Australia, 1995). 180 DEAKIN LAW REVIEW VOLUME 10 NO 1 dence in the integrity of the judiciary as an institution would be diminished. He said that the law infringed the principle of separation of powers because It requires the Supreme Court to participate in the making of a preven- tive detention order where no breach of the criminal law is alleged and where there has been no determination of guilt. On that ground I would hold the Act invalid. 10 2 Gaudron J Gaudron J agreed with the proposition that a State Parliament could not confer on its Supreme Court powers which were repugnant to or incompatible with their exercise of the judicial power of the Commonwealth. 11 She noted that the proceedings contemplated by the Act were not proceedings ordinarily known to the law. Acknowledging the Act attempted to dress them up as legal proceedings by referring to the rules of evidence, they did not partake of the nature of legal proceedings. This was because they did not involve the resolution of a dispute between contesting parties as to their respective legal rights and obligations … The applicant is not to be put on trial for any offence against the criminal law. Instead, the proceedings are directed to the making of a guess - perhaps an educated guess, but a guess nonetheless – whether, on the balance of probabilities, the appellant will commit an offence of ‘serious violence’ … The power ... requires the making of an order .. depriving an individual of his liberty, not because he has breached any law, but because an opinion is formed, on the basis of material which does not necessarily constitute evidence admissible in legal proceed- ings, that he is more likely than not to … commit a serious acts of violence. That is the antithesis of the judicial process, one of the central purposes of which … is to protect the individual from arbitrary punishment and the arbi- trary abrogation of rights by ensuring that punishment is not inflicted and rights are not interfered with other than in consequence of the fair and impar- tial application of the law to facts which have been properly ascertained.