There is a good constitutional reason for not allowing politicians to make decisions which result in imprisonment. It’s called the separation of powers and is meant to ensure that politics does not intrude into decisions which deprive people of their liberty. That’s what judges are for.
Yet the Queensland government has done just that. Attorney-general Jarrod Bleijie has taken decisions about detaining sex offenders in prison after their sentences have been served, away from the courts and into his own hands. Bleijie will now have the right to put serious offenders behind bars indefinitely.
Somewhat ironically, the release of sex offender Robert Fardon – who was the subject of the High Court case which tested the validity of the legislation and found that making these orders was part of the judicial role – is what spurred Bleijie to take this extreme step.
This may appease some sections of the media but does nothing for the promotion of community safety.
Mixing politics and justice
Court decisions are open to public scrutiny in a way that private decision-making is not. Politicians, on the other hand, are notoriously susceptible to pressure from lobby groups and the media.
One of the reasons the High Court approved the Queensland scheme (Fardon lost the appeal but was later released) was the presence of safeguards such as review and appeal. But there are no avenues for a review or to appeal the decisions under the Queensland model, and so any opportunity to improve or modify the system is lost. It remains to be seen whether the High Court will decide whether the new scheme is constitutionally palatable.
In any case, why is the Queensland government fiddling about with the method of determining detention when the real problems are a lack of vision and resources for rehabilitation?
Under this model, people can be detained forever. But for the vast majority of offenders who will be released, where is the attention to the conditions which will maximise their chances of staying offence free?
Allaying public concern
The whole dialogue about “sex offenders” increases the gap between media representations and reality. The fact remains that most people, including children, are sexually assaulted by someone they know, not the demonised “paedophile” of the popular media.
A colleague at Legal Aid once commented that the sex offenders’ prison at Long Bay was the most “normal” prison. Sex offenders are the most varied group of men in the prison system, coming from all classes and backgrounds. Another colleague called it the “grandfathers’ gaol”. They are also among the least likely to re-offend.
In the United States and Canada, sex offenders are often detained post-sentence by way of civil commitment laws. In other words, they have been recast as mentally ill. Most sex offenders are not mentally ill, even in the popular meaning let alone the more restricted medico-legal meaning. But the word “paedophile” has taken on a popular meaning beyond the medical diagnosis.
Uncertainties about psychiatric diagnosis are magnified when the outcome is imprisonment. These orders are based on speculative evidence (the risk of future offending) and so it is near to impossible to evaluate their efficacy – as they purport to prevent potential harm.
Australian jurisdictions have chosen to bypass the strict medical model, probably due to the enormous resource implications for a mental health system already stretched beyond capacity. Western Australia and Queensland have indefinite sentences for life sentence offences. But there are also problems with labelling offenders under “dangerous predator” laws – rehabilitation becomes more difficult when a fixed deviant identity has been imposed.
The title of Deidre Greig’s book sums up the dilemma: Neither Bad nor Mad.
Protecting the community
It’s important to remember that the whole point of these schemes is community safety. While locking people away may allay concerns in the short term, it creates more problems than it solves, due to the criminogenic or crime-producing nature of imprisonment.
Much of the evidence from prisoners in my forthcoming study, which included several high-risk sex offenders, indicates there are systemic problems with accessing rehabilitation in prison, not to mention the poor quality of the services.
The fact is that our so-called “correctional” system provides minimal opportunities for the kind of internal, personal change which is expected of offenders. Even those who accept responsibility for their offending are often alienated and frustrated by the lack of opportunities for rehabilitation.
Putting aside concerns about the fundamental human rights shortcomings of preventive detention, the community will be sold short if these schemes do not provide a well-resourced, well-thought-out rehabilitative program. There is next to no sentence management in Australian prisons and no attention to whether the processes and procedures are in fact complying with and contributing to the aims of the sentence.
Those advocating rehabilitation do not necessarily do so from sympathy for the offender but from the knowledge that inducing them to adopt a law-abiding lifestyle is the best way to protect the community. We need an approach to intractable offenders that relies on evidence of good and successful practice.
To think that concentrating the power to make decisions about serious offenders into the hands of a politician will improve community safety is misguided. Judges are clearly in the best position to assess the evidence and make decisions in a transparent, publicly accountable manner.
The polarised, irrational and unhelpful discourse of victims versus offenders encouraged by these moves does nothing for community safety.