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Preventative detention orders: the horse has already bolted

By Patrick Keyzer - posted Friday, 4 November 2005

There has been considerable debate in the last couple of weeks about the constitutional validity of proposed anti-terrorism legislation. This was sparked by the Premier of Queensland, Peter Beattie, who expressed his fear that a constitutional challenge may undo the deal made by the Commonwealth and states that would have referred key state powers to the Commonwealth to regulate this topic. In particular, Premier Beattie flagged the Queensland Solicitor-General’s opinion that the legislation may be invalid because it would compromise the impartiality of the judge given power to make a preventive detention order. Consequently, a number of academic commentators expressed their doubts about the constitutional validity of the proposals.

However despite the assertion attributed to one academic in last weekend’s Australian that it might be unconstitutional to ask judges to make a preventive detention order in anticipation of an offence, that assertion is not well supported.

There can be no serious doubt that judges can be vested with jurisdiction to make preventive detention orders, that is, orders that people who have committed no fresh crime should be imprisoned because they are regarded to be dangerous. Orwellian as this may seem the power to imprison a person without a criminal trial was conferred on the Queensland Supreme Court by legislation enacted by the Beattie Government in 2003. Of much importance to people attempting to predict the outcome of a future High Court challenge to this aspect of the anti-terrorism legislation is the fact that the High Court decided in July last year that this Queensland legislation was constitutionally valid.


Consequently, a judge can be authorised to imprison a person after their term of imprisonment has expired in the absence of a fresh crime or conviction if the court decides that their release would constitute a risk to the community. That is the effect of Queensland’s Dangerous Prisoners (Sexual Offenders) Act. A prisoner who took the legislation to the High Court, arguing (among other things) that courts in Australia do not and ought not have power to incarcerate people for dangerousness in the absence of the commission of a fresh criminal offence and a conviction for that offence, lost his constitutional challenge 6:1 (Fardon v Attorney-General (Queensland) [2004] HCA 44).

That prisoner is still in prison, almost 2½ years after the expiry of his sentence, and he has been joined by a number of others whose putatively finite sentences for sexual offences have now become indefinite, by court order after a process that bears no real relationship to a criminal trial.

The High Court said nothing about this new “principle” - that a person may be imprisoned without a fresh crime - being limited to the imprisonment of sex offenders. So why wouldn’t this power be applied to suspected terrorists or terrorist conspirators? In my opinion the Commonwealth and the states can advance this policy if they make sure of a number of things:

  • First, if judges are given jurisdiction to make preventive detention orders, then the rules of evidence will need to be applied. The anti-terror laws could authorise judges to make orders that are illegal under international law, but as long as the judges are able to authorise these awful things in an impartial matter, free from government influence, then the laws are very likely to survive challenge. On this score, the courts will most likely require that they be shown all of the evidence relating to the suspected terrorism or terrorism conspiracies. The governments may submit otherwise, but the High Court has required that it must have control of the facts upon which its decisions of law are made. To accommodate the national security concerns of the executive governments, judges could hear the evidence in secret and use anonymous identifiers for the persons subject to control orders, if this were considered necessary to protect their privacy. The implications of these techniques for reportage of these events is obvious.
  • Second, the process developed under the legislation must not compromise the independence and impartiality of the judges making the preventive detention orders. Again, it must be stressed that in Queensland the fact that a Supreme Court judge is authorised to send a person back to prison even though they have not committed a fresh offence does not qualify as an attack on judicial impartiality (even though the Queensland law requires a judge to have regard to past offences in making their assessment of risk, and the person may be ordered to go to prison a second time for reasons connected to their original offence). To be subject to a successful constitutional challenge, it is likely that the preventive detention regime would have to attack judicial independence, perhaps by directing the manner in which the jurisdiction was exercised, or by seeking to engineer a result.

In his judgment in Fardon’s case Chief Justice Gleeson pointed out that Australia has no Bill of Rights. A Bill of Rights modelled on the International Covenant on Civil and Political Rights would almost certainly protect people from imprisonment without conviction for a crime. Certainly double punishment is forbidden by Article 14 of the Covenant. But at present, if the states band together with the Commonwealth to authorise legislation that limits civil liberties (the territories’ role is less significant here, since they are subject to Commonwealth control), then there is precious little people can do about it in this country, until an election or a referendum.

Needless to say, a constitutional system that only offers the protection of rights taken for granted in many democratic countries when the conscience of the majority is pricked at a time that is sufficiently close to an election (let alone a referendum) is a patently defective constitutional system. When six out of seven High Court judges hold that a person can be imprisoned because they represent a risk to the community - without a crime and a conviction - then the need for a Bill of Rights is apparent.


As far as that is concerned, proposals by some commentators that the Commonwealth should enact a statutory Bill of Rights completely miss the point. Constitutional change is required. Any proposal that falls short of that lacks credibility and courage.

One extra point. The anti-terrorism debate (and indeed, the debate over the WorkChoice legislation) also reinforces the need for a speedy and efficient way of enabling the High Court to deal with constitutional questions. The court needs jurisdiction to accept references of questions about the constitutional validity of legislation from any member of the public (including the Queensland Solicitor-General) who can develop a good argument that such laws may be invalid. That jurisdiction would be consistent with the purpose of a constitution including a Bill of Rights: the protection of the civil rights of everyone, including prisoners who have already served their terms of imprisonment, and suspected terrorists. The right of liberty should never be sacrificed except after due process of the law.

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About the Author

Patrick Keyzer is a Professor of Constitutional Law and the Deputy Dean of Bond University Faculty of Law.

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