NSW preventive detention law inconsistent with international human rights law
The United Nations Human Rights Committee have released their decision in _Tillman v Australia _No 1635/2007.ï¿½ Tillman was sent to prison in 2007 under NSW legislation, the Crimes (Serious Sex Offenders) Act 2006, which allows the NSW Supreme Court to order that a person who has already served their sentence of imprisonment can be sent back to prison if they are judged to be a high risk of re-offending if released.ï¿½ Tillman is presently in remand, awaiting a court decision in relation to alleged breaches of a supervision order under that law.ï¿½
The NSW legislation was modelled on a Queensland law, the Dangerous Prisoners (Sexual Offenders) Act 2003, which was the subject of an unsuccessful constitutional challenge in 2004 (Fardon v Attorney-General (Qld) (2004) 223 CLR 575).
Tillman argued that although the Australian High Court had upheld the constitutional validity of the Queensland law, the NSW law inflicted arbitrary detention and double punishment contrary to the International Covenant on Civil and Political Rights. The arguments are set out in articles published in volume 16 of the journal Psychiatry, Psychology and Law (vol 16(2), pp 262-270) and volume 7 of the _Melbourne Journal of International Law _((2006) 7 MJIL 407-424.
The United Nations Human Rights Committee, in an 11-2 decision, said that the further imprisonment of Ken Tillman under the NSW law was inconsistent with the Covenant, because:
_The author had already served his 10 year term of imprisonment and yet he continued, in actual fact, to be subjected to imprisonment in pursuance of a law which characterises his continued incarceration under the same prison regime as detention.ï¿½ This purported detention amounted, in substance, to a fresh term of imprisonment which, unlike detention proper, is not permissible in the absence of a conviction for which imprisonment is a sentence prescribed by law.ï¿½ _
The committee said that Australia is under an obligation to release offenders who have been re-imprisoned under these regimes.
The Australian Government, which lost the case, has been given 180 days to respond, indicating what measures have been taken to give effect to the committeeâs decision.
To comply with the covenant, the four state governments, including NSW, will need to adopt preventive detention policies that do not use prison, which is punitive in character, as a venue for treatment.ï¿½ï¿½ï¿½
The UN communication was prepared by Professor Patrick Keyzer, a member of the NSW Bar.ï¿½ For further information contact the Centre for Law, Governance and Public Policy at Bond University on (07) 5595 2087.
**21 April 2010 **
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