The Preventive Detention of Sex Offenders: Law and Practice

In Australia, as in many other countries, there have long existed various legislative schemes governing ‘dangerous’ offenders, persons considered to be incapable of controlling their sexual instincts and ‘habitual’ criminals. These legislative schemes have been cyclical, falling in and out of favour in response to community concerns and governmental ‘law and order’ policies.As well as indefinite detention laws for high risk offenders in general, Queensland and South Australia have specific schemes for the indefinite detention of sex offenders. In addition, over the past decade, post-sentence preventive detention and supervision schemes for sex offenders have been enacted in four Australian states as well as in the Northern Territory.Hundreds of police and corrections officers, social workers, lawyers, psychologists and psychiatrists now work within the preventive detention and community supervision systems that have developed to manage these prisoners and supervisees. As the Queensland regime enters its 11th year of operation, there is considerable interest in how these regimes actually operate in practice, and what each jurisdiction can learn from the experience of others.This article examines both the law and practice of preventive detention of those considered to be at high risk of re-offending in Australia. It draws on the results of empirical research on the views of those involved in implementing post-sentence preventive detention regimes for sex offenders. The first half of the article provides an overview of current Australian laws on indefinite and preventive detention, outlining three regimes: indefinite detention for ‘dangerous offenders’, special indefinite detention for sex offenders, and post-sentence preventive detention and supervision. It also examines the constitutionality of, and judicial responses to, these schemes.The second half of the article focuses on the practice of post-sentence preventive detention of sex offenders, presenting the views of professionals who work in the area on what they think are the strengths and weaknesses of these schemes. These views reflect 86 in-depth interviews with police officers, corrective services officials, social workers, lawyers, psychologists and psychiatrists experienced in the operation of the schemes in Queensland, Western Australia and New South Wales. The interviews were conducted as part of an Australian Research Council Discovery Project (DP0877171) entitled Preventive Detention of High Risk Offenders: The Search for Effective and Legitimate Parameters. The objective of the interviews was to determine how post-sentence prevention and supervision sex offender schemes are working in practice in the states of Queensland, Western Australia and New South Wales. In particular, this article analyses interviewees’ perspectives concerning treatment, resources, accommodation, monitoring of offenders, and breaches of supervision orders.It is argued that while the legal parameters of preventive detention schemes may be settled, members of the judiciary have cautioned that they must be used sparingly and there is evident judicial reluctance to impose indefinite sentences. Most importantly, the views expressed by those implementing post-sentence preventive detention and supervision schemes reveal that there are serious concerns about their operation.