Proposal to extend NSW prison terms could be unconstitutional

21st Feb 2013

The New South Wales government’s proposed continuing detention laws for serious sex offences or violent crimes are possibly unconstitutional and are likely to meet a High Court challenge, the Australian Lawyers Alliance said today.

ALA Criminal Law spokesman, Greg Barns, said the proposed laws, introduced by Attorney-General Greg Smith yesterday, allow for the NSW Supreme Court to order additional sentences of up to five years for prisoners who have completed their terms, but are deemed an unacceptable risk of committing serious violent offences in the future.

Mr Barns said that the High Court had looked at similar laws in Queensland in 2005 in a case called Fardon v Attorney-General of Queensland.

“The High Court declared the law to be constitutional at the time, but a strong and cogent dissent by former High Court Justice, Michael Kirby, might prompt a different response by the High Court today,” Mr Barns said.

“Justice Kirby rightly said in Fardon’s case; ‘Properly informed, the public understands the role of judges in ordering the deprivation of liberty on the basis of proved breaches of the law in the past. The introduction of a power to deprive persons of liberty, and to commit them to prison potentially for very long, even indefinite, periods on the basis of someone's estimate of the risk that they will offend in the future, inevitably undermines public confidence in the courts as places exhibiting justice to all, including those accused and previously convicted of serious crimes’,” Mr Barns quoted.

“Mr Smith’s proposed laws undermine the role of the Supreme Court of NSW by turning it into an institution which imprisons people not for what they have done, but what they might do. This is inconsistent with the role of the courts and might be unconstitutional,” he said.

“The High Court of 2013 is different from the one that sat on Mr Fardon’s case in 2005 and it may well be that the majority of the Court now views what Justice Kirby said, eight years ago, as being the appropriate benchmark for judging whether continuing detention laws, like the ones proposed by Mr Smith, are constitutional,” Mr Barns said.

Tags: Human rights NSW Criminal justice