Pre-emptive Imprisonment for Dangerousness in Queensland under the Dangerous Prisoners (Sexual Offenders) Act 2003: The Constitutional Issues

Abstract

Unlike any other law in Australia, or as far as we have been able to research the common law world, Queensland law now authorises a court to imprison a citizen on the basis that he or she presents an 'unacceptable risk to the community'. This is not done as part of the sentencing process, but as a consequence of a procedure tacked onto the end of a person's sentence that bears no real relationship to a criminal trial. The imprisonment of a citizen, not for what they have done but for what they might do, represents a radical departure from traditional judicial functions. We contend that Queensland law significantly undermines the safeguards provided by traditional judicial processes, inflicting double punishment, and that this is unconstitutional. This article outlines the constitutional arguments presented to the High Court of Australia by the Appellant in Fardon v Attorney-General (Queensland), an appeal to the Full Court of the High Court of Australia that was heard in Canberra on March 2, 2004. The appeal was dismissed on October 4, 2004.