Evaluating the judicial interpretation of civil commitment schemes for serious sex offenders

In general terms, civil commitment describes a process for the control of a person for a therapeutic or public health purpose using civil rather than criminal processes. An obvious and widely used example is the involuntary detention for treatment of a person assessed as mentally ill. A less obvious example is the civil commitment of people who pose a risk to public health. These two forms of civil commitment have been used for more than a hundred years. Western democratic societies have tolerated those limited forms of civil commitment of those suffering illness or disease because of the high standing of the medical profession administering the procedure and the advice that civil commitment in certain situations might be good for the health and safety of both patient and public. Those forms of civil commitment have a clear therapeutic objective. However, civil commitment has more recently been extended to detain certain criminal offenders after their sentence has expired. In such schemes, offenders who are already imprisoned for an offence are detained for a further period of detention on the grounds that they are likely to commit a further offence if they were released. The rationale for such laws is that this course of action is necessary to protect the community from the risk of such offenders committing further serious offences. Such laws have been subject to extensive criticism because they allow detention and other punitive consequences, without trial according to basic tenets offered to those accused of criminal offences such as proof beyond reasonable doubt, proportionality, restricting punishment only in relation to past conduct, having finality of sentence, and strict evidentiary rules. In the past four years laws have been passed in several Australian states to address the purported need to detain sexual offenders for longer than other offenders. The new laws have been justified by a belief that this category of offenders poses an unacceptable risk to the community, who need to be protected. The laws are the Dangerous Prisoners (Sexual Offenders) Act 2003 in Queensland (the 'Qld Act’), the Crimes (Serious Sex Offenders) Act 2006 in New South Wales (the 'NSW Act'), and the Dangerous Sexual Offenders Act 2006 in Western Australia (the 'WA Act'). Such schemes have been assessed by the High Court in Fardon v Attorney General for Queensland as constitutionally valid – a decision which has also been the subject of criticism, primarily based upon the argument that the Court mischaracterized the schemes as not imposing punishment but instead only community protection? This paper assesses the judicial interpretation of these three schemes by their respective State courts. The paper first discusses the nature of the schemes and then argues that the courts' interpretation and application of the schemes highlight the disadvantages and deficiencies of such schemes. They reveal concerns with procedural fairness, concerns about the availability and effectiveness of rehabilitation programs both in prison and in the community, the problematic nature of risk assessment and confusion about the standard of proof. They also raise contentious issues about the ethical and legal responsibility of Government to ensure that adequate programs are available for rehabilitation.