Australian Law Research System - Essay Example

AUSTRALIAN LAW RESEARCH SYSTEM NAME OF THE LEGISLATION, DATE OF ASSENT AND COMMENCEMENT The Parliament of Queensland enacts the Dangerous Prisoners (Sexual Offenders) Act 2003 which permits convicted criminals to be detained in prison beyond their scheduled release date. This Act is assented to 6 June 2003 and commenced on the same date.1 PURPOSE OF THE LEGISLATION The growing community concern about the release of convicted sex offenders, not only because of the abhorrent nature of these offences, but because of the lack of evidence that some offenders have been rehabilitated, after refusing to participate in sexual offender treatment programs.2 Such concern is justified. Serious sex offenders who are not rehabilitated remain a significant danger to the community after their discharge from custody. These offenders have a high propensity to reoffend. The consequences of their offending are catastrophic for individual victims, victim’s families, and the community.² This Bill effectively addresses these concerns by enabling the Supreme Court to order the post-sentence preventive detention or supervision of sex offenders who pose a serious danger to the community if released at their sentence expiry date.² AMENDING LEGISLATION Section 17 was repealed and substituted by the amending provision of section 73 of the Justice and Other Legislation Amendment Act 2005 No. 70. Section 73 of the Justice and Other Legislation Amendment Act 2005 requires a judicial authority to give detailed reasons for making an interim detention order or interim supervision order. Currently the section only applies to a continuing detention order or supervision order. The objective of the Bill is to improve the operation of the justice system by making minor, technical or non-contentious amendments to certain justice portfolio legislation. However, this Act was amended at Bill stage on its passage through Parliament. WHO MAY MAKE AN APPLICATION FOR CONTINUED DETENTION AND TO WHOM MUST THE APPLICATION BE MADE? Section 5 of Division 1 provides that the Attorney-General may apply to the Supreme Court for a division 3 order (continuing detention order; supervision order) and orders under section 8 (risk assessment order; interim detention order) in relation to a prisoner.3 WHAT PROCEDURES HAVE TO BE ADOPTED FOR SUCH AN APPLICATION? Section (2) of Division 1 provides that the application must – (a) state the orders sought; and (b) be accompanied by any affidavits to be relied on by the Attorney-General for the purpose of seeking an order or orders under Section 8; and (c) be made during the last six months of the prisoner’s period of imprisonment.³ Section (3) of the said division provides that on the filing of the application, the registrar must record a return date for the matter to come before the court for a hearing (preliminary hearing) to decide whether the court is satisfied that there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a division 3 order.³ Section (4) of division 1 provides that the return date for the preliminary hearing must be within 28 business days after the filing. Subsection (5) provides that a copy of the application and any affidavit to be relied on by the Attorney-General must be given to the prisoner within 2 business days after the filing.4 WHAT FACTORS MUST THE APPROPRIATE AUTHORITY TAKE INTO ACCOUNT WHEN MAKING SUCH AN ORDER? Section (4) of Division 3 provides that in deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following – ⁴ (a) the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists; (b) any other medical, psychiatric, psychological or other assessment relating to the prisoner; (c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future; (d) whether or not there is any pattern of offending behaviour on the part of the prisoner; (e) efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs; (f) whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner; (g) the prisoner’s antecedent and criminal history; (h) the risk that the prisoner will commit another serious sexual offence if released into the community; (i) the need to protect members of the community from that risk; (j) any other relevant matter. IF AN ORDER IS MADE, CAN EITHER PARTY APPEAL, AND IF SO, WITHIN WHAT TIME FRAME? Section 31 provides that the Attorney-General or a prisoner in relation to whom a decision of the court under this Act has been made may appeal against the decision.³ Section 32 provides further that an appeal must be started within 1 month after the decision is made (appeal period). On application, the Court of Appeal may extend the appeal period.³ CAN AN APPLICATION BE MADE AFTER A PERSON HAS BEEN RELEASED FROM PRISON? Subsection (4) of division 1 ensures that the Act continues to apply to a prisoner the subject of an application even if the prisoner is released from custody prior to the application being finalized.³ IMPORTANT CASE ON THIS LEGISLATION Attorney-General v Fardon [2003] QSC 331 (2 October 2003)5 History of the Matter [25] On 17 June 2003, the Attorney – General filed an originating application under s 5 of the Act for an order that the respondent be detained in custody for an indefinite term for care, control and treatment pursuant to s 13 of the Act (a “continuing detention order”). [26] Upon the filing of an application, the Act provide a preliminary hearing must take place to determine whether there are reasonable grounds for believing the respondent is a serious danger to the community. If so satisfied at a preliminary hearing, the court must set a date for the hearing of the application for the continuing detention order and may order psychiatric reports (a “risk assessment order”) and the detention in custody of the respondent pending the final hearing (an “interim detention order”): see s 8. The Attorney-General’s originating application sought orders in those terms. [27] On 27 June 2003, Muir J ordered psychiatric reports and the interim detention of the respondent until 4:00 p.m on 4 August 2003, and set the date for the final hearing for 31 July 2003. [32] This date was later extended to 3 October 2003 and a further interim detention order was made by Philippides J to hold the respondent in custody until that date. The final hearing was again extended, however, to 22 September 2003 and then to 27 October 2003. With the interim detention order due to expire on 3 October 2003, the matter was brought before me on 22 September 2003. Mr. Fardon is currently being held in custody in the Townsville Correctional Centre pursuant to the interim detention orders made by this court on 27 June 2003 and 31 July 2003. AUTHORISED AND UNAUTHORISED REPORT CITATIONS AND UNREPORTED CITATION6 1) Attorney-General (Qld) v Hanlon [2006] QSC 227; BC200606702 2) Fardon v Attorney-General (Qld) [2006] QSC 005; BC200600148 3) Attorney-General v Pearce [2005] QSC 314; BC200508999 4) Attorney-General v W [2004] QSC 262; (2004) 148 A Crim R 393; BC200405278 5) Attorney-General v Fardon [2003] QSC 379; BC200306588 6) Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54 (2003) 197 ALR 241; (2003) 73 ALD 609; BC200301685 7) Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; (2003) 195 ALR 24; (2003) 77 ALJR 454; (2003) 24 (2) Leg Rep 2; (2003) 72 ALD 1; [2003] HCA 2; BC200300103 8) Williams v R (1986) 161 CLR 278; (1986) 66 ALR 385; (1986) 60 ALJR 636; (1986) 28 A Crim R 1; BC8601452 9) Wright v Wright (1948) 77 CLR 191; [1948] 2 ALR 565; (1948) 22 ALJR 534; BC4800340 CASES APPLIED OR FOLLOWED⁶ 1) Public Prosecutions, Director of v Serratore (1995) 38 NSWLR 137; (1995) 132 ALR 461; (1995) 127 FLR 320; (1995) 81 A Crim R 363; BC9505544 2) Watson v Marshall & Cade (1971) 124 CLR 621; (1972) ALR 83; (1971) 45 ALJR 449; (1971) 45 ALJR 444; BC7100260 JOURNAL ARTICLES⁶ 1) Child Sex Laws in Queensland – (2003) 23(10) Proctor 21 2) Doing Your Time – Time After Time – (2003) 23(8) Proctor 20 3) Indefinite and Preventive Detention Legislation: From Caution to an Open Door – (2005) 29(2) Crim L194 4) Legal and Psychological Controversies in the Preventive Incapacitation of Sexual Offenders – (2005) 28(1) INSWL1 299; (2005) 11(1) UNSWL1 33 5) New Visual Recording Offences – (2006) 26(4) QldLawyer 188 6) Pre-emptive Imprisonment for Dangerousness in Queensland under the Dangerous Prisoners (Sexual Offenders) Act 2003: The Constitutional Issues – (2004) 11(2) PPL 244 7) Preventive Detention Laws: High Court Validates Queensland’s Dangerous Prisoner’s Act 2003 – (2005) 30(2) AltL1 75 8) Queensland Criminal Law May Be Unconstitutional – (2004) 25(2) QldLawyer 85 9) Serious Sex Offenders – The Roles of the Judiciary – and the – Media – (2006) 26(10) Proctor 21 10) Time, Delay and Nonfeasance: The Dangerous Prisoners (Sexual Offenders) Act 2003 (Queensland) – (2006) 31(4) AltL1 198 11) Unfinished Matters: The Federal and State Supreme Courts on Constitutional Law – the 2003 Term – (2004) 27(3) UNSWLI 777 No article matches in the hein online even if the search was narrowed down through law journal library and the search index to periodical articles related to law database.7 None of these articles can be found in the Australian library collections.8 SIMILAR LEGISLATION IN OTHER STATES OF AUSTRALIA9 1) Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994 No. 96 (TAS). 2) Dangerous Sexual Offenders Act 2006 No. 1 (WA). 3) Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 No. 27 (SA). SUMMARY OF RESEARCH STRATEGY I Opened the website www.bond.edu.au and accessed through the databases. II Familiarise with the home pages and contents of 3 databases, namely, Austlii, Lawlex, and LexisNexis. III Clicked on the advanced search and looked for the legislation by using dangerous and offenders as search terms. Note that connectors in search terms such as and, or, w/n, pre/n must be present in the search terms otherwise, the search is invalid. Legislations can be found on all 3 databases. IV As to the cases narrowed the search by clicking on cases. Lawlex does not have sections for cases. The terms dangerous, prisoners, and offenders are most useful search terms. V For journals, the search was narrowed by clicking journals. VI Hein online and Australian libraries can be searched through the homepage of www.bond.edu.au Read More