Alternative Law Journal
PATRICK KEYZER and SUZANNE O’TOOLE[*]
The Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSOA) came into force on 6 June 2003. It authorises the Supreme Court of Queensland to order the re-imprisonment of a person serving a sentence for a serious sexual offence where the Court is satisfied there are reasonable grounds for believing there is an unacceptable risk the prisoner will commit a serious sexual offence if released from custody. A serious sexual offence is defined in the DPSOA as an offence of a sexual nature against children or involving violence. The Supreme Court has the power to determine whether to make a continuing detention order which has the effect of re-imprisoning the person for at least another year. Again, the effect of the legislation is that the person remains a prisoner despite the expiry of the term of their sentence.
The DPSOA was subject to a constitutional challenge in Fardon v Attorney-General (Qld) (‘Fardon’) where it was argued that allowing the judiciary to imprison someone without a criminal trial was beyond the powers of the judiciary as set out in Chapter III of the Constitution. The High Court upheld the validity of the legislation by a 6:1 majority, leaving open the door to new preventive detention regimes. New South Wales and Western Australia have since introduced such regimes.
The constitutional challenge has been traversed extensively elsewhere and we do not propose to repeat discussion of the issues raised in that challenge. Instead, this article critically analyses the practical effect of the DPSOA and argues that delay in producing originating applications under the DPSOA not only undermines procedural fairness but also subverts the purpose of the legislation. The article analyses the cases in which the issue of delay has been raised as a basis for objecting to an application under the DPSOA by the Attorney-General. It then proposes improvements to the practices of Queensland government departments that will help ensure proceedings under the DPSOA reflect the principles of procedural fairness. While the article focuses on Queensland, some of these issues are likely to arise in the preventive detention regimes in New South Wales and Western Australia and, where possible, cross-references to those interstate regimes are included in the footnotes.
The first case in which delay was raised as a ground for dismissing an application was Attorney-General v Watego (‘Watego’). Mr Watego was an inmate of the Palen Creek Correctional Centre. He was due for release on 31 October 2003, by which time the DPSOA had been in effect for over four months.
On 24 October 2003 the Attorney-General sought a continuing detention order pursuant to s 13(5)(a) of the DPSOA. Papers were served at about 5 pm that day. Legal aid was sought but was not approved until midday on Tuesday, 28 October. At about 3 pm on the Tuesday, just over 72 hours from his release time, Mr Watego met with his solicitor and provided instructions.
Prior to the determination of the substantive matters under s 13, a preliminary hearing, as required by s 8 of the DPSOA was held on 30 October 2003 in the Supreme Court of Queensland (then a day before Mr Watego’s scheduled release). The task of the Court at a preliminary hearing, where it is satisfied there are reasonable grounds for believing the prisoner is a serious danger to the community, and in the absence of a division 3 order (being either a continuing detention order or a supervision order), is to set a date for the hearing of the application for the division 3 order. The Court may also make either or both of the following orders:
• that the prisoner undergo psychiatric examination by two psychiatrists named by the Court who are to prepare independent reports (a 'risk assessment order')
• that the prisoner be retained in custody for the period stated in the order (an 'interim detention order') pending the determination of the division 3 order.
To establish that reasonable grounds existed for believing Mr Watego posed a serious danger to the community, the Attorney-General sought to rely on an affidavit including a report by Dr Prabal Kar, a consultant psychiatrist.
Mr Perkins, counsel for Mr Watego, submitted at the preliminary hearing that there had been inadequate time in which to take appropriate instructions or to consider the large volume of materials filed. There had not been time for the defence to arrange an interview and full assessment of Mr Watego by a second psychiatrist who might offer a different perspective. The best they had been able to do was to reply on a report by a psychiatrist, Dr De Leacy, which critically analysed the report by Dr Kar. The defence team had not had enough time or the resources to have Dr De Leacy interview Mr Watego personally.
It was accepted by Muir J of the Supreme Court of Queensland that the respondent had 'about one clear day in which to deal with issues of considerable scope and complexity'. Muir J also indicated that the respondent was ‘further handicapped in his ability to provide an effectual response to the applicant’s case by his limited intellectual capacity and the constraints imposed by his incarceration’. Muir J noted the DPSOA did not specify the time for service of the applicant’s material on a preliminary hearing beyond requiring that the preliminary hearing must be within 14 business days after filing. But Muir J went on to observe:
The maximum duration of notice is thus 10 business days. Section 6(2) however requires the respondent to give a copy of any affidavits to be relied on by the respondent on the hearing to the applicant at least three business days before the date of the hearing. It is necessarily implicit in sections 5 and 6, and the rules of natural justice require, that a respondent have a reasonable time within which to consider and, if necessary, respond to the applicant’s material. It is an essential principle inherent in the concept of natural justice that there be procedural fairness. A basic requirement of procedural fairness in court proceedings is that a party against whom an order is sought should have an appropriate opportunity to present to the court the reasons advanced by him against the making of such an order. Such an opportunity will not be afforded where a party has inadequate time in which to prepare his case.
His Honour went on to find that the principles of natural justice required that the application be dismissed as the respondent had been given inadequate opportunity to respond to the applicant’s case and to present his own.
The matter was appealed by the Attorney-General to the Queensland Court of Appeal and was heard on 11 November 2003. By this time, Mr Watego had remained incarcerated 11 days after his scheduled date of release, the earlier decision of Muir J having been stayed pending the appeal. On the question of natural justice, McPherson and Davies JJA and Mullins J stated the respondent’s difficulties in effectively opposing the application had only partly been offset by the time that had elapsed between service of the application and the hearing of the appeal. Their Honours were critical of the way the proceedings had been brought and asked:
[w]hy the decision to institute the proceedings was left as late as the last week before the respondent’s release is not accounted for; which is all the more surprising in view of the strictures on that subject that were delivered by MacKenzie J in the earlier case of Director of Public Prosecutions (Qld) v Ferguson …
While the Ferguson case referred to by their Honours predated the DPSOA and did not relate to the question of continued imprisonment following the expiry of a sentence, it did raise the similar issue of Crown delay in pressing an application for restraint of a sex offender. In Ferguson, MacKenzie J referred to the ‘considerable public interest in having the matter disposed of’ prior to release. However, in balancing the interests of justice — presumably issues of natural justice and procedural fairness — to be accorded to Mr Ferguson vis a vis the public interest in ensuring Mr Ferguson was supervised on release, MacKenzie J said:
The interests of justice would override the public interest if the two were in tension in a case where there had not been some satisfactory resolution that developed … It was fortuitous that events turned out in a way that enabled the conflict between the public interest and the interests of justice to be resolved as it was. That may not always be the case if matters are approached in the way in which this one appears to have been.
Ultimately in Watego the Queensland Court of Appeal upheld the decision of Muir J that there had been a denial of natural justice in the circumstances.
The second case for consideration, and in which a natural justice argument was raised, is Attorney-General v Nash (‘Nash’). The facts of Nash are remarkably similar to the facts of Watego. At 2.30 pm on Friday, 31 October 2003, less than one week before his final release date of 6 November 2003, Wayne Nash received an application under the DPSOA. A counsellor at the Capricornia Correctional Centre in Rockhampton called the Prisoners’ Legal Service (PLS) on behalf of Mr Nash and started faxing the documents to the PLS office in Brisbane. The application, which comprised 10 affidavits amounting to hundreds of pages, was still being received at 6.00 pm when a solicitor at PLS was able to take preliminary instructions by telephone from Mr Nash. The PLS solicitor advised Mr Nash that she could not guarantee him representation as solicitors employed by PLS are not permitted to engage in court proceedings without the prior approval of the organisation’s litigation subcommittee. The Capricornia prison was locked down for the weekend, and Mr Nash was left to ponder his options.
On the morning of Monday, 3 November, the PLS litigation subcommittee gave approval to the proposal for representation of Mr Nash. PLS then made an application to Queensland Legal Aid, and a barrister (the first co-author) was briefed. Legal aid approved the application at 4.30 pm and the PLS solicitor held a conference with the barrister at 5.00 pm. This was the first time the legal team was able to convene and discuss the case. The solicitor and the barrister telephoned Mr Nash in Rockhampton and were allowed to speak to him for 10 minutes before a correctional officer advised that the prison would be locked down in five minutes.
Later that evening, the legal team contacted a forensic psychologist who reviewed the affidavit evidence and assisted with a critical analysis of those materials.
The following day the matter was set down for hearing in the Supreme Court of Queensland. After a call-over in the morning the matter was placed at the end of the list as it was likely to take the longest amount of time. The hearing commenced at about 2.30 pm. McMurdo J heard oral argument that the case should be dealt with in the same way as Watego, but reserved his determination on the question of natural justice until he could gauge whether a hearing on the merits could be afforded to Nash. Ultimately, McMurdo J concluded that the brevity of the respondent’s preparation time materially affected his capacity to defend himself, and the application was dismissed.
The third case to consider is Attorney-General v Foy (‘Foy’). In this case, the Attorney-General’s application was made approximately six weeks before Foy’s release date. Nevertheless, Fryberg J dismissed the application. His Honour specifically noted that the DPSOA provides that applications can be made at any time in the six months prior to a person’s imprisonment, but that no explanation had been given for the fact that the application had been made so late within that period. On two occasions, his Honour pressed counsel for the Attorney-General for an explanation for this delay in producing an originating application, but an affidavit filed to that end was ‘ostentatiously silent on why there was delay prior to the bringing of the application and I can only conclude that this silence is deliberate’. Fryberg J indicated that he was ‘further influenced’ in his view that he should dismiss the Attorney-General’s application for an interim detention order pending the final hearing of the matter, and that these circumstances strengthened Mr Foy’s case that he should be at liberty, albeit under supervision (offered by way of undertakings) once his prison term had expired. This is an interesting decision because full compliance with the (admittedly tight) timetable contemplated by the DPSOA was possible at the time the application was filed. This could not have occurred in Watego or Nash.
We feel confident that the judgment in Attorney-General v Francis (‘Francis’) has been part of the reading diet of the government departments charged with the responsibility of the administration of the legislation. If it has not, then it probably should be.
This case was an ‘annual review’ application under the DPSOA. On 13 August 2004 Byrne J ordered that Mr Francis be re-imprisoned for an indefinite term for care, control and treatment. An application for an annual review of that order as required by the DPSOA was heard on 2–4 and 24 November 2005. On 21 December 2005, MacKenzie J ordered that Francis continue to be subjected to Byrne J’s order. However, it is plain that MacKenzie J was dissatisfied with the administration of the DPSOA over the period since the control order was made, and he was critical of the government on a number of counts.
MacKenzie J noted that Justice Byrne’s ‘strenuous efforts’ to develop a plan and ensure that it was capable of being implemented were not followed. MacKenzie J drew specific attention to an exchange that Byrne J had with counsel for the Attorney-General in which he opined that ‘if there isn’t a government commitment to facilitate the plan, then it is a question whether I should order his continuing detention to give effect to it’. MacKenzie J went on to outline in detail how the plan had not been implemented. His Honour then made the following remarks:
While there seems to have been an expectation that the General Manager of the Correctional Centre for the time being where the respondent was confined would be the coordinator [of the respondent’s rehabilitation plan], there was no evidence before me that the function was ever performed in the way envisaged by Byrne J. Two of the problems, in so far as evidence with regard to implementation of the plan is concerned, are firstly, that it is not obvious that there was a clear grasp in the department of the importance of a single person having responsibility for overseeing the process of putting the plan into effect. The need for someone with authority to do so which was fundamental to the plan was either not understood or was disregarded in favour of collective oversight of it. Secondly, it is not obvious, either, so far as the evidence goes, that there was a clearly defined understanding within the department of what was required to be done; some of those making reports were unaware of the existence of the plan. It may also be that assimilation of cases of this kind into the ordinary correctional management system, due to the absence of any regulatory framework specific to cases under the DPSOA, compounds the problem. There is a power to make regulations (s 53) which has not been used.
It cannot be lost sight of that the Act is concerned with preventative detention after the prisoner would otherwise have been released by effluxion of his finite sentence. Undue protraction of incarceration of the person because administrative procedures either do not exist to enable him to rehabilitate sufficiently to be released, or to prove that the actual risk in his case is not unacceptable, or because the administrative procedures unduly delay such rehabilitation or proof, is hard to convincingly justify.
Quite apart from the very serious issues of procedural fairness raised by the justices in Watego, Nash and Foy, these comments of MacKenzie J in Francis indicate the very serious potential for nonfeasance under the DPSOA as it is presently administered.
Clearly, a number of judges of the Queensland Supreme Court are anxious to ensure that prisoners dealt with under the DPSOA have a measure of equality before the law. And given that imprisonment is the most serious punishment that can be inflicted in our system of law, and the principles associated with the right to a fair trial are not available in the ‘civil detention’ regime constructed by the DPSOA, the principles of procedural fairness assume a very high degree of importance in ensuring that the prisoner can make their best case for liberty.
It is useful to set out a list of the specific factors that influenced the judges’ decisions in these applications:
• inadequate time to receive appropriate instructions
• time pressure making effective cross-examination less likely
• difficulties associated with digesting a large volume of filed materials
• difficulty in arranging for experts to interview the prisoner to offer evidence on behalf of the prisoner
• where the prisoner’s opportunity to advance their case is materially affected by the constraints imposed by incarceration or by their location
• where the prisoner has an intellectual disability, impeding their capacity to understand and give instructions.
How can these problems be better managed in future applications under the legislation? It is plainly time for the government departments involved in the administration of the DPSOA to develop a better coordinated working relationship with each other.
To minimise the possibility that public funds are needlessly wasted on dismissed applications, a memorandum of understanding (MOU) should be developed, published and acted on as a matter of urgency.
The MOU might require the Department of Corrective Services to develop a database of sex offenders due for release and involve sentence management teams in conducting reviews based on completion of sex offender treatment programs and other suitable activities recommended by appropriately independent experts. Further, information about sex offender release dates and management plans could be shared with an officer in Crown Law dedicated to the task of bringing applications under the DPSOA. Natural justice requires that prisoners who are the subject of applications under the DPSOA, and their legal representatives, be fully informed of all these processes and recommendations.
Following on from MacKenzie J’s observations in Francis about the regulation-making power, the Attorney-General and Minister for Corrective Services should consider using their regulation-making power to improve the administration of the DPSOA. One possible regulation might be that applications under the DPSOA must be made no later than three or four months from release, perhaps subject to an ‘exceptional circumstances’ qualification (if, for example, new evidence came to light that warranted an urgent application to be made). Such a regulation might operate as a stimulus to better performance by the various government departments, and would be very likely to accommodate the concerns expressed by the Supreme Court justices in Watego, Nash and Foy.
It is evident from the review of recent caselaw that more time is generally needed to process applications under the DPSOA. The Supreme Court has many responsibilities, and this significant (and now ongoing) new jurisdiction seems to have been imposed on it without any real consideration of the practical impact that it may have on the workload of the judges and on the hearing processes that are involved. A regulation imposing time strictures on Crown Law to bring applications a sufficient period before the release date (or indeed, before the annual reviews) would advance the prospects of natural justice for prisoners and help ensure that hearings can take place in an environment where practical equality before the law is more likely to be achieved.
A second regulation might require all applications under the DPSOA to include an affidavit from the Department of Corrective Services that clearly outlines the response made to the recommendations of the judges administering the scheme. This would also act as a stimulus to performance of the government departments involved. To do otherwise is plainly inconsistent with the orders of the Supreme Court judges made under the DPSOA. Such a regulation might also have the effect of speeding up hearings where a control order is sought. A cursory review of the cases in which supervision orders have been made reveals that a practice of developing detailed orders (very much like parole orders) has emerged, and this appears to have reduced the time taken by court processes in those cases.
Needless to say, the provision of appropriate and effective sex offender treatment programs must become a top priority for the Department of Corrective Services, and should not be restricted to some prisons, but include all prisons in which sex offenders are incarcerated. This would advance the objectives of care and treatment, not just control, under the DPSOA. It is in everyone’s interests that sex offenders receive appropriate, independent and professional attention and treatment.
Another matter of concern raised in the cases analysed in this article is that arrangements need to be made to increase funding for the agencies involved in the defence of prisoners under the DPSOA. This funding should extend to ensure that prisoners have the opportunity to engage expert witnesses who can critically review the work of the court-appointed psychiatrists. In making this recommendation, we acknowledge that many commentators have argued that the task of predicting risk of re-offending is so fraught with difficulty that it ought never be used, by itself, as a justification for the incarceration of a person. Indeed, Kirby J pointed out in his dissenting judgment in Fardon that ‘experts in law, psychology and criminology have long recognised the unreliability of predictions of criminal dangerousness’. However, on the assumption that the constitutional validity of the DPSOA (and NSW and WA regimes) has resolved this issue, we also argue that practical reforms to the present system should be adopted. In particular, ample time must be provided to ensure that this can be done, since there are few people with sufficient and relevant forensic experience, and even fewer who are willing to take on this sometimes challenging but enormously significant role.
Ultimately the prospects of developing an MOU, appropriate regulations and suitable resourcing fall to be determined by the Queensland government, which has oversight of all of the government departments implicated by the DPSOA. In that respect it is not out of place to observe that if the government’s intention has been to ensure the control of sex offenders then it has failed to achieve that objective on at least three occasions since the DPSOA was enacted for reasons relating to its own delay and nonfeasance. If the policy settings reflected in the legislation are accepted as appropriate, then the matters raised in this article should give the States that are experimenting with this new type of re-imprisonment cause for concern.
[*] PATRICK KEYZER teaches law at the University of Technology, Sydney and at Bond University, and is a barrister practising in NSW, Queensland and the Northern Territory.
SUZANNE O’TOOLE is a solicitor, researcher and consultant specialising in juvenile justice.
© 2006 Patrick Keyzer and Suzanne O’Toole
 For a brief account of the history of the legislation see P Keyzer, C Pereira and S Southwood, ‘Pre-emptive Imprisonment for Dangerousness in Queensland under the Dangerous Prisoners (Sexual Offenders) Act 2003: The Constitutional Issues’ (2004) 11(2) Psychiatry, Psychology and Law 244.
 DPSOA ss 5, 8 and 13. The question whether it is possible to accurately predict the risk of future offending is discussed in S Smallbone and J Ransley, ‘Legal and Psychological Controversies in the Preventive Incapacitation of Sexual Offenders’  UNSWLawJl 19; (2005) 28 University of New South Wales Law Journal 299 and references there cited.
 DPSOA Schedule.
 DPSOA, ss 14(1)(a), 50 and 51.
 DPSOA, ss 14(1)(a), 50 and 51.
 Fardon v Attorney-General (Queensland)  HCA 46; (2004) 210 ALR 50. Whether this regime inflicts double punishment and is therefore inconsistent with Australia’s obligations under art 14(7) of the International Covenant on Civil and Political Rights is a matter the subject of an active communication to the UN Human Rights Committee prepared by the first author of this article on behalf of the Prisoners’ Legal Service (Qld). See further P Keyzer and S Blay, ‘Questions Regarding the Compliance of Legislation that Arguably Inflicts Double Punishment on Sex Offenders: A Critical Analysis of Mr Fardon’s Communication to the United Nations Human Rights Committee’ (2006) Melbourne Journal of International Law, forthcoming.
 See the Crimes (Serious Sex Offenders) Act 2006 (NSW) (‘NSW Act’) and the Dangerous Sexual Offenders Act 2006 (WA) (‘WA Act’). Victoria has introduced a Serious Sexual Offenders Monitoring Act 2005 (Vic), but it does not authorise re-imprisonment of offenders.
  QSC 367; on appeal  QCA 512; (2003) 142 A Crim R 537.
 Under the NSW Act see s 14; under the WA Act see s 8.
 In NSW, provision is made for ‘interim detention orders’ (under s 16) and ‘continuing detention orders’ (under s 17). An application for either type of order must be made within six months of the date of release, as is the case in Queensland under the DPSOA (see NSW Act s 6(2)). In WA, the effect of s 8(3) of the WA Act is that an application for a ‘continuing detention order’ or supervision must be made in the last six months of imprisonment.
  QSC 367 .
 Ibid .
 Ibid , applying Lisafa Holdings Pty Ltd v Gaming Tribunal (1992) 26 NSWLR 391 at 406–407. Note that similar time strictures operate in Western Australia (see s 11(2) of the WA Act) but in New South Wales, s 15(3) of the NSW Act provides a 28-day period within which the hearing must be held.
  QCA 512; (2003) 142 A Crim 537 .
  QSC 377; (2003) 143 A Crim R 312.
 Ibid .
  QSC 428.
 The issue of whether undertakings may be given under the DPSOA is contentious. A submission to that effect was rejected in Attorney-General for the State of Queensland v Fardon  QSC 137 at .
  QSC 381; (2005) 158 A Crim R 399.
 DPSOA s 27.
 Francis  QSC 381; (2005) 158 A Crim R 399 .
 Ibid .
 Ibid , .
 Nash  QSC 377; (2003) 143 A Crim R 312 , .
 Watego  QSC 367 .
 Watego  QSC 367 ;  QCA 512; (2003) 142 A Crim R 537 : ‘the material in question extends over 1000 or more pages of the five volume record now before the Court, which it would have been virtually impossible for anyone to absorb in the time before the hearing of the application on this appeal’.
 Watego  QSC 367 ; ; Nash  QSC 377; (2003) 143 A Crim R 312 .
 Watego  QSC 367 .
 Nash  QSC 377; (2003) 143 A Crim R 312 .
 Watego  QSC 367 .
 Section 15(3) of the NSW Act provides for a 28-day period within which a preliminary hearing is held, rather than the 14-day period contemplated by the WA Act and DPSOA (see n 14 above, and accompanying text). The NSW provision doubles the preparation time for both sides, and is of critical importance to the respondent in preparing their case.
 See TW Campbell, ‘Sex Offenders and Actuarial Risk Assessments: Ethical Considerations’ (2003) 21 Behavioural Sciences and the Law 269–279, 275; R Rogers, ‘The Uncritical Acceptance of Risk Assessment in Forensic Practice’ (2000) 24(5) Law and Human Behavior 595; TW Campbell, ‘Sexual Predator Evaluations and Phrenology: Considering Issues of Evidentiary Reliability’ (2000) 18 Behavioural Sciences and the Law 111, 119; A Gray, ‘Standard of Proof, Unpredictable Behaviour and the High Court of Australia’s Verdict on Preventative Detention Laws’ (2005) 10 Deakin Law Review 178, 190; B Johnson, ‘Prophecy With Numbers’  UTSLawRw 6; (2005) 7 University of Technology, Sydney Law Review 117, 133; and D Ruschena, ‘Determining Dangerousness: Whatever Happened to the Rules of Evidence?’ (2003) 10 Psychiatry, Psychology and the Law 122.
 Fardon  HCA 46; (2004) 210 ALR 50, 96–102. This topic will be the subject of further analysis in a report being prepared for the Criminology Research Council: A Freiberg, B McSherry. and P Keyzer, ‘Preventive Detention for “Dangerousness” in Australia: A Critical Analysis and Proposals for Policy Development’ (Criminology Research Council-funded research-in-progress).