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Abstract
In 2010 The Human Rights Committee of the United Nations (the UNHCR) made rulings on two “communications” submitted by Australian citizens, Robert Fardon and Ken Tillman, about what they contended was the unlawfulness of their preventive detention in Queensland and New South Wales respectively. The UNHCR upheld their applications and declared their detention unlawful by virtue of its constituting a breach of Article 9, paragraph 1, Article 14, paragraph 1, and Article 15, paragraph 1, of the International Covenant on Civil and Political Rights. The decision has major ramifications for the preventive detention systems in Queensland, New South Wales, Victoria, and Western Australia. It provides a fillip for a new rehabilitative, non-penitential focus for such regimes and raises ethical issues for mental health practitioners currently functioning in and advising in relation to such systems.
Notes
*The UN communications considered in this note were prepared by Keyzer with the assistance of Reeanna Maloney (Fardon) and Eveline Crotty (Tillman).
1. See generally B McSherry and P Keyzer, Sex Offenders and Preventive Detention: Politics, Policy and Practice (The Federation Press, Annandale 2009).
2. Fardon v Attorney-General (Queensland) (2004) 223 CLR 575 at 576.
3. Attorney-General v Fardon [2006] QCA 512
4. Attorney-General v Fardon [2007] QSC 299.
5. At [22].
6. J O'Loan, ‘Notorious Pedophile Robert John Fardon Has Been Locked Up Until at Least 2018’ (14 May 2010) The Courier Mail < http://www.couriermail.com.au/news/possible-life-sentence-for-fardon/story-e6fre on6-1225866798556> accessed 25 June 2010.
7. Attorney-General v Fardon [2003] QSC 200.
8. Attorney-General v Fardon [2003] QCA 416.
9. Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575; (2004) 210 ALR 50; (2004) 78 ALJR 1519; see generally P Keyzer and S Blay, ‘Double Punishment? Preventive Detention Schemes under Australian Legislation and their Consistency with International Law: the Pardon Communication’ (2006) 7(2) Melbourne Journal of International Law 407; O Roos, ‘Baker v The Queen, Fardon v Attorney-General for the State of Queensland’ (2005) 10(1) Deakin Law Review 271; A Gray, ‘Detaining Future Dangerous Offenders: Dangerous Law’ (2004) 9(1) Deakin Law Review 245.
10. The arguments put by Fardon in the High Court are set out in P Keyzer, C Pereira and S Southwood, ‘Pre-Emptive Imprisonment for Dangerousness’ (2004) 11(2) Journal of Psychiatry, Psychology and the Law 244–53. The judgement of the High Court is criticized by P Keyzer in ‘Preserving Due Process or Warehousing the Undesirables? To What End the Separation of Judicial Power of the Commonwealth?’ (2008) 30 Sydney Law Review 101–114.
11. R v Tillman [1999] NSWCCA 164.
12. Attorney-General for the State of New South Wales v Tillman [2007] NSWSC 356.
13. Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119.
14. Attorney General for the State of New South Wales v Tillman [2007] NSWSC 528.
15. State of New South Wales v Tillman [2008] NSWSC 1229.
16. Attorney-General for the State of New South Wales v Tillman [2007] NSWSC 605.
17. State of New South Wales v Tillman [2008] NSWSC 1293.
18. Justice Kirby had upheld this argument in his dissenting judgement in Fardon v Attorney-General (Queensland) (2004) 223 CLR 575 at 632.
19. P Keyzer, ‘The Preventive Detention of Serious Sex Offenders: Further Consideration of the International Human Rights Dimension’ (2009) 16(2) Psychology, Psychiatry and Law 262–70.
20. Citing A Carroll, M Lyall and A Forrester, ‘Clinical Hopes and Public Fears in Forensic mental Health’ (2004) 15(3) Journal of Forensic Psychiatry and Psychology 407 at 411.
21. Re Fardon at [7.3].
22. Re Fardon at [7.4(1)].
23. “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.”
24. Re Fardon at [7.4(2)].
25. Re Fardon at [7.4(4)].
26. “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.”
27. Contrast P Keyzer and S Blay, ‘Does the Dangerous Prisoners (Sexual Offenders) Act 2003 (Q) inflict double punishment, contrary to the International Covenant on Civil and Political Rights?” (2006) 7 Melbourne Journal of International Law 407–24.
28. [2004] HCA 46; (2004) 223 CLR 575; (2004) 210 ALR 50; (2004) 78 ALJR 1519. And, correspondingly, the arguments put by counsel on behalf of Fardon in that case.
29. Azzopardi (2001) 205 CLR 50 at 65 [36].
30. Kable (1996) 189 CLR 51 at 98 per Toohey J.
31. Precisions Data Holdings Pty Ltd v Wills (1991) 173 CLR 167 at 188. See also Ha (1997) 189 CLR 465 at 503–504.
32. The grant of quia timet injunctions constitutes an example.
33. See Lowndes v The Queen (1999) 195 CLR 665 at 670 [11]; McGarry v The Queen (2001) 207 CLR 121 at 123–24 [1], 149–50 [84].
34. See McGarry v The Queen (2001) 207 CLR 121.
35. Power v The Queen (1974) 131 CLR 623 at 627. See also Witham v Holloway (1995) 183 CLR 525.
36. Tillman v Australia CCPR/C/98/D/1635/2007 at [7.4]
37. See the discussion in S Blay and R Piotrowicz, ‘The Awfulness of Lawfulness: Some Reflections on the Tension between International and Domestic Law’ (2000) 21 Australian Yearbook of International Law 1–20, 10.
38. In McSherry and Keyzer (n 1) p 34.