Indefinite or Preventive Detention for Serious Sex Offenders Analysis

This essay critically examines the practice of indefinite or preventive detention for serious sex offenders in Australia. It begins by introducing the context of the criminal justice system's response to dangerous offenders, particularly those with a history of sexual offenses. The essay delves into the legal framework, including the Hazardous Prisoners (Sexual Offenders) Act 2003 and similar legislation in various Australian states, discussing the conditions under which preventive detention can be applied after a sentence has been served. The essay also analyzes the legal and ethical debates surrounding the practice, particularly concerning the balance between community safety and individual human rights. It explores the implications of international human rights agreements, such as the International Covenant on Civil and Political Rights, and the critiques from the United Nations Human Rights Committee. The conclusion reiterates the purpose of preventive detention to protect the community while acknowledging the ongoing debates and legal challenges related to the practice.

RUNNING HEAD: INDEFINITE OR PREVENTIVE DETENTION FOR SERIOUS SEX
OFFENDERS
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INDEFINITE OR PREVENTIVE DETENTION FOR SERIOUS SEX OFFENDERS
Contents
INTRODUCTION:...............................................................................................3
INDEFINITE OR PREVENTIVE DETENTION FOR SERIOUS SEX
OFFENDERS:......................................................................................................3
CONCLUSION:...................................................................................................7
References.............................................................................................................8
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INTRODUCTION:
That the criminal justice system in whole Australia had action with the more chronic issue
related to the dangerous offenders and their potentiality for reoffending. Basically the
discussion about the sex offences against the children and also against the growing
community which creates the fear over safety (de Zayas, 2005). This type of reports, forces
the Australian government to focus on the management of the serious offenders in Australia
and particularly about the legal issues and policies brocaded by the post sentence preventive
detention. The serious sexual offenders are those persons who had convicted either of two or
more sexual offenses. While confinement of the offender, after the conclusion of the trial,
disables an wrongdoer by removing him from the community and the only issue is after the
completion of sentence what to do with the offender (Drenkhahn, 2013). On this point there
are various suggestions such as to release the wrongdoer subject to the extended supervision
and the other is to continued in the preventive detention even the sentence was expiry after
declaration. These are the basic principle related to detention of preventive legislation is to
safeguard the community. The Hazardous Prisoners (Sexual Offenders) Act, 2003 had prime
time made an try to confine the person on the ground of the dangerousness even after the
expiry of the sentence. There are also many other legislations which deals with these issues.
It is submitted that the legislation relating to the preventive detention required to be
differentiated from the power of the court which enables a decision related to punishment
which is indefinite sentence at the time of result.
INDETERMINATE OR PREVENTIVE ARREST FOR SERIOUS SEX
OFFENDERS:
That it is always a matter of great concern about to manage the serious offenders whose
sentence is going to expire. The post sentence preventive detention means to detain the
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INDEFINITE OR PREVENTIVE DETENTION FOR SERIOUS SEX OFFENDERS
serious offenders even after they have served their total sentence awarded by the court.
Various states of Australia such as New South Wales, Western Australia and the Queensland
is having a legislations with regard to the post sentence preventive detention after the
sentence comes to an end (Felthous & Saß, 2013). The basic purpose for enabling the law is
to safeguard the interest of the society and also to give the lasting control, treatment or care of
the particular classes of the offenders to facilitate their rehabilitation. Now the question arises
at on which offenders the preventive detention order is applicable. The Queensland
Parliament in the year 2003 had passed the legislation the Hazardous Prisoners (Sexual
Offenders) Act, 2003 (qld) which appeal to the law breaker who are under the imprisonment
for the serious sexual offense. It does not effect as whether or not that person was imprisoned
before or after the existence of act, meaning thereby the act i.e. Dangerous Prisoners (Sexual
Offenders) Act, 2003 gave the retrospective effect (Frelick, 1993). The serious sexual offense
is the offense which involves the sexual offense against the children, sexual incursion having
no consent and sexual offences on the mentally retarded persons. It is pertinent to mention
that in all the three States, the limitation for filling the application is half year which came to
end related to judgement of prisoner (Hickman, 2005). The Queensland law gives to sure that
the offender is liable to take the full benefit of any other opportunities for rehab which was
given during the term of sentence.’ As per Section 5, the Hazardous Prisoners (Sexual
Offenders) Act 2003 (Qld) for continuance of the custody of an wrong doer currently
remained in imprisonment for a serious sexual misdemeanour, the State lawyer might appeal
to the first court which is Supreme Court of the proper jurisdiction. As per the Victorian
law, a court must be satisfied about the highness of possibility that the wrongdoer related to
perform a sexual crime if the same may be liberate in the society after declaring a prison
judgement (Janus, 2013). The Hon’ble Court in Secretary v TSL associated to the
Department of Equity or Justice [2006] VSCA 199. In this, the Callaway AP had specifically
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observed the expression ‘giant degree of possibilities’ should not be taken in the general
such as the ‘balance of possibilities’ or ‘beyond rational doubt’ except it must be connected
to the word ‘likely’.The Court interprets section 11(1) of the act associated to the court must
be quenched that their must be a top level of possibilities that related to wrong doer would
perform the crime. Furthermore the Hon’ble Court of Appeal of Queensland in Attorney-
Francis [2006] v General (Qld) QCA 324 at section [39] the Queensland Judicature of Retrail
observed are as follow:
“The query is either the safeguard of thesociety is sufficiently assured but in management
related to the offender is to ensure appropriate security, with consider to the danger to the
society posed by the wrong doer, then an command for release must be preferred to a
immortal custody command on the foundation that the instruction of legislation as the
subject of liberty of are unusual, and the freedom of the theme should be left not to higher
increase than is assured by legislation which permit such restriction.”
That it is pertinent to mention here that the laws by the Australian Government with regard to
the preventive and indefinite detention raise the following policy issue in relation to the
traditional legal concept and Human International rights(McHugh, 2014). It is furthermore
relevant to mention here that the committee of the human rights had made and argument on
the custody regimes such as the double jeopardy and double sentencing policy ("Purposes of
Obstructive Detention", 1951). In the year 2010, the committee of the United Nations
associate with Human rights (UNHCR) had formed the sovereign on two “transmission”
which was given by peoples of Australia about can be maintain was the illegality of their
obstructive custody in New South Wales and Queensland respectively. The board in United
Nations interconnected with human rights make their applications valid and declared that
their custody is illegal by morality of its apprehending a voilation of Article 9, subdivision 1,
Article 14, subdivision 1, and Article 15, subdivision 1, of the International Contract on
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Political and Civil Rights. The resolution has important clarfications for the obstructive
custody system in the law of Queensland (Saito, 2018). The General Announcement of
Human Rights finalize the ‘in human family all the members have ancient self respect and
not transferrable rights’ and sets out a parts of rights as ‘a general quality of the
accomplishment for all nations and peoples’. The Government of Australia has even passed
various international aggrement that fixed the financial, religious and social rights, such as
the right to heared, as well as known as political and civil rights such as the right to a fair
case (Slobogin, 2008). There are number of international human rights have imposed into the
people of Australia, particularly by the Equal Opportunity and Human Rights Commission
Act 1986 (Cth). The rights of wrong doers and their license to transperacy in legal system are
integerated in the following number of instruments internationally like the United Nations
Standard Least Rules to cure wrongdoers and the United Nations Convention Against Cruel
and Other Torture, Punishment or Inhuman or Degrading Treatment (Slobogin, 2012). The
almost correct Covenant to preventive custody project is the International Convenant on Civil
and Political Rights (ICCPR) to which the government of Australia is a signer. It is
furthermore relevant to mention here that the said covenant is signed on 18th December 1972
and the same was amended on 13 August 1980. The concerned authority has fixed the some
rights for dupe in its Statement of normal concept of Justice for dupe of Abuse and Crime of
the Power. Any infraction of the concerned authority is not straight implemented in courts of
Australia as the agreement has not directly implemented into the consideration of laws of
Australia. Hence, the person whose followings rights are reportedly mistreat may now be
the Rights of Human Board of the United Nations associated to the Act of the First Optional
Agreement to the ICCPR which approach into existence 25th of December 1991 in Australia.
It is pertinent to note that Robert Fardon is the first person to be sent in jail under the
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Hazardous Prisoners (Sexual Offenders) Act 2003 (Qld), had filed the appeal to the Human
Rights Board (Keyzer & Blay 2006).
CONCLUSION:
Eventually, it is concluded that the basic purpose for the preventive detention for the serious
sexual offenders are to protect the community. Many states in Australia had passed the
legislation with regard to the preventive detention but the said legislation had become the
matter of big debate as the United Nations of Human Rights Commission many times had
declared the detention of the offenders unconstitutional. Somehow, in my considered view
the legislation with regard to the preventive detention and indefinite detention is legally valid
as to safeguard the interest of the community.
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References
De Zayas, A. (2005). Human rights and indefinite detention. International Review Of The
Red Cross, 87(857), 15.
Drenkhahn, K. (2013). Secure Preventive Detention in Germany: Incapacitation or
Treatment Intervention?. Behavioral Sciences & The Law, 31(3), 312-327.
Felthous, A., & Saß, H. (2013). Introduction to this Issue: International Perspectives on
Preventive Detention. Behavioral Sciences & The Law, 31(3), 307-311.
Frelick, B. (1993). Preventive detention. Peace Review, 5(3), 305-310.
Hickman, T. (2005). Between Human Rights and the Rule of Law: Indefinite Detention and
the Derogation Model of Constitutionalism. Modern Law Review, 68(4), 655-668.
Janus, E. (2013). Preventive Detention of Sex Offenders: The American Experience versus
International Human Rights Norms. Behavioral Sciences & The Law, 31(3), 328-343.
McHugh, D. (2014). Policing Indefinite Detention. SSRN Electronic Journal.
Purposes of Preventive Detention. (1951). The Lancet, 258(6695), 1168-1169.
Saito, N. (2018). Indefinite Detention, Colonialism, and Settler Prerogative in the United
States. Social & Legal Studies, 096466391876936.
Slobogin, C. (2008). Defending Preventive Detention. SSRN Electronic Journal.
Slobogin, C. (2012). Preventive Detention in Europe and the United States. SSRN Electronic
Journal.
Vars, F. (2011). Rethinking the Indefinite Detention of Sex Offenders. SSRN Electronic
Journal.
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