Call for indefinite detention reform
JUDGES could soon have a better framework around declaring someone a dangerous criminal if a contentious Tasmanian law is reformed and brought into line with other jurisdictions.
A research paper by the Tasmanian Law Reform Institute, released yesterday, has outlined the need for reforms to legislation regarding the indefinite detention of “dangerous criminals’’.
The state’s Sentencing Act allows a judge of the Supreme Court to make an order for a prisoner to be held indefinitely for the protection of the public.
Victoria, Western Australia, Queensland, the Northern Territory and South Australia have similar laws in place.
While there is no set definition for a dangerous criminal, the Tasmanian legislation is generally reserved for very serious crimes and repeat offenders involved in serious violent crimes.
The paper assessed Tasmanian legislation against other Australian jurisdictions and provided 10 recommendations for reform.
The paper’s key findings and recommendations included: FLAWS in the current Tasmanian legislation are leading to a more lenient implementation of the system because judges are reluctant to make declarations, knowing they will remain in place indefinitely. Therefore very few applications are being made to have offenders declared dangerous criminals. A COMPREHENSIVE list of factors should be considered by the court when making a decision about whether to make a dangerous criminal declaration, and whether to overturn a declaration. COURTS should be able to impose both pre- and post-release conditions on discharge of dangerous criminal declarations, such as requiring offenders to undergo treatment programs, or participate in reintegration programs to equip them for re-entry into the community. A SYSTEM of periodic review of dangerous criminal declarations should be in place to ensure the appropriateness of the ongoing detention of offenders is reviewed at reasonable intervals.
We have some really outrageous examples in our current system of people who’ve been kept well beyond their date of imprisonment and ... they present little or no risk to the community
— GREG BARNS
This research paper will assist in this process — this is a very complex area of law reform and we will continue to take advice from numerous sources on the prospective changes
— MATTHEW GROOM
Law Reform Institute research paper author Taya Ketelaar-Jones said the proposed reforms were not necessarily designed to make the law any more lenient or strict.
“It’s designed to create a piece of legislation that operates as it was intended to operate,” she said.
“It means that individuals who do pose an ongoing risk to society may be declared a dangerous criminal and those who are declared dangerous criminals have the opportunity to undergo a rehabilitation program and be released if they’re deemed to be safe to be in the community again.”
There have been 12 applications made for dangerous criminal declarations in the state, with nine successful.
Once a declaration has been made, the only way an offender can potentially be released is if they launch an application themselves.
In other jurisdictions, a periodic review was conducted to ensure their ongoing incarceration was actually necessary, Ms Ketelaar-Jones said.
Notorious underworld figure Mark “Chopper’’ Read was the only criminal in the state’s history to have his dangerous criminal declaration successfully overturned.
Read’s application was made in 1994 and the declaration overturned just three years later.
“The authorisation of an indefinite term of detention is certainly something that is quite an extraordinary step to take and it is concerning there is legislation that we’ve had in Tasmania that has not been reviewed and the effectiveness of its operation has not been reviewed,” Ms Ketelaar-Jones said.
“It is hoped with this review it will prompt some reforms and much-needed attention on this issue.”
Prisoners Legal Service chairman Greg Barns labelled the law in its current form as “inhumane and inflexible.”
“It is out of step with other jurisdictions in Australia and around the world because it creates a bar that is almost impossible for any prisoner to meet for release,” he said.
“We have some really outrageous examples in our current system of people who’ve been kept well beyond their date of imprisonment and more importantly, they present little or no risk to the community.
“If we’re going to have such laws, we’re going to have to provide the possibility for them to be released.”
Acting Attorney-General Matthew Groom noted the release of the research paper and said the Government remained committed to updating the state’s dangerous criminal provisions “to better protect Tasmanians.”
“This research paper will assist in this process — this is a very complex area of law reform and we will continue to take advice from numerous sources,” he said.