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Issue #1568      10 October 2012

NSW violent offender proposals fail fairness test

Proposed laws announced by NSW Attorney-General, Greg Smith, enabling violent offenders to be kept in prison beyond the term imposed by a court or only released subject to strict limits on their freedom, failed the fairness test, the Australian Lawyers Alliance says.

ALA criminal law spokesman, Greg Barns, said the inherent flaw in Mr Smith’s proposal was that it undermined a fundamental principle in our justice system – that a person was entitled to know, when sentenced to a term of imprisonment, what that term would be.

“What Mr Smith is proposing is that a further sentence of some years, towards the end of a sentence, be imposed, presumably at the behest of the attorney-general in order to keep a prisoner in jail for a longer period.”

This amounts to depriving a person of their liberty. Not for what they have done and for which they have been punished, but for what they might do in the future. “Once again, this is fundamentally unfair,” Mr Barns said.

“Mr Smith said that his proposals were based on Queensland laws that allowed for indefinite detention of sex offenders. He noted the High Court upheld those laws in Fardon v Attorney-General of Queensland in 2004. But while such laws were compatible with federal judicial powers, Justice Kirby argued at the time that the law was punitive and offending of the principles of double jeopardy,” he said.

“The composition of the High Court has changed markedly since that case was decided. In other words it is far from certain that, if challenged, Mr Smith’s proposals would be upheld by the present High Court,” Mr Barns said.

He said what was also disturbing, about the proposal, was that there was no empirical evidence that recidivism rates of violent offenders was of such a high magnitude as to in any way justify continued detention. And Mr Smith failed to supply any such evidence.

Finally, despite Mr Smith asserting that his proposals did not undermine the authority of the parole board in NSW, this was not the case.

“The parole board’s decision-making process already includes a rigorous assessment of the risk of recidivism by all offenders that have been released into the community. A standard condition among Australian parole authorities is to place restrictions on parolee movements, including forbidding them from attending hotel bars,” Mr Barns said.

“The ALA strongly urges the NSW government to rethink this dangerous undermining of fairness in the criminal justice system. It is the task of the courts to sentence a person, taking into account all factors,” he said.  

Next article – Defending the public sector – 2012 CPSU/CSA Union Delegates Convention – WA

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