Prognosis negative when this happens

AUSTRALIA: '...You can't keep people on end in detention in these very questionable circumstances and just say, "It's fine to hold them without charge and without testing the allegations." We're really getting to the point that enough is enough...'

 http://www.abc.net.au/lateline/content/2006/s1677844.htm

That was skanky ho Nicole Roxon talking about David Hicks but hang on a minute you defrag...what about all the prisoners of the ALP state regime's of indefinite administrative detention?

Why is it wrong for the Americans but A-OK for little ALP Lenins like Beattie and Bracks?

This is blatant ALP hypocrisy at its stinking worst.

Because it is a fundamental shift in philosophy to contemplate a law that imprisons people indefinitely for something they might do, not something they have done.

Queensland legislation does not give a role to the Director of Public Prosecutions. The Attorney General is required to bring a case, if there is a case to be made, for preventative detention or a supervision order.
Also, the Queensland legislation deals only with prisoners; it does not deal with people who have served their time and are again members of the community.

I ( G . Watson, see below) refer to an article authored by Professor Bernadette McSherry, published in Monash Magazine, a publication from Monash University. Professor McSherry refers to an application for continued detention that was granted under the Queensland legislation.
On an appeal, the High Court ruling upheld the powers of the Queensland legislation.

I assume that the government has decided to proceed with this legislation partly because the High Court ruled that this sort of legislation is not in breach of various rights in Australia. Professor McSherry states -

Until last year, keeping offenders in detention after the expiry of their sentence was considered unconstitutional. While judges were allowed to make indefinite detention orders for serious offenders at the time of sentence, the general rule was that offenders should be punished for what they had done, not for what they might do.

However, a majority of the High Court last year upheld Queensland’s Dangerous Prisoners (Sexual Offenders) Act 2003 in the Robert John Fardon case. The Act, introduced by the Queensland parliament prior to Fardon’s scheduled release, enabled the continued detention in prison of sex offenders after the expiry of their sentence. It also enabled continued supervision of such offenders if they were released into the community.

An application by the Queensland Attorney General under the Act had resulted in Fardon being detained after the expiration of his 14-year sentence for raping and seriously injuring a woman in 1988. This crime was committed just 20 days after Fardon had been released for the earlier rape of a 12-year-old girl and the assault of her 15-year-old sister.

The High Court decision signals the opening of the door for preventive regimes across Australia and may also lead to the enactment of legislation allowing for the preventive detention of other categories of prisoners.

That is another argument that we strongly support. Once we set a precedent regarding the classes of people who can be detained indefinitely, it is only a few small steps to argue that other classes of people should be detained indefinitely.

I refer also to the New South Wales briefing paper that I mentioned earlier. The briefing paper was produced in 1997 and is titled “Dangerous Offenders Legislation: An Overview”. It is a reasonably lengthy paper, but it is an excellent analysis

The paper refers to the problem of defining concepts of “dangerousness”, which is a key to this legislation. Page 3 of the paper contains the heading “Concept of dangerousness” and states -

Although ‘dangerousness’ can be said to involve the likelihood that a person will inflict serious harm on another, it is notoriously difficult to define exactly what the elements of ‘dangerousness’ are. The concept and its implications for the criminal law were discussed in detail in a United Kingdom report in 1981 (the Floud Report). Danger, notes Floud, ‘is a thoroughly ambiguous concept, and we may well ask whether it has any place in the administration of criminal justice, and, if it be conceded that it has, how are we to define and identify “dangerous” offenders for legal purposes’. Floud went on to observe that: ‘The question of penalties for serious offences - even for the worst cases of such offences - must not be confused with the question of protecting the public from the few serious offenders who do present a continuing risk and who are likely to cause further serious harm’.

This was based on the observation that few serious offenders repeat their serious offences, so that there is no reason, in most cases, to keep them out of circulation on that account for very long periods of time.

In fact, it has been argued that the concept of dangerousness is ‘so insidious that it should never be introduced in penal legislation’. Floud states that ‘dangerousness’ is a concept which is not at all objective, since what is dangerous is a matter of judgement or opinion - a question of what one is prepared to put up with. The Floud Report, having cited the problems of definition and prediction, commented:

It is worth noting that no-one dismisses the practical problem. That is, no-one denies the existence of a minority of serious offenders who present a continuing risk. The argument is all about degrees of risk, perceptions of danger and justifiable public alarm, the difficulty of deciding whether or not someone is ‘dangerous’ and the legitimacy of confining people for what they might do as well as for what they have actually done.

Attempts to determine if a person is ‘dangerous’ raise a number of difficult questions, including:

* What constitutes ‘serious harm’?
* How likely must it be that the offender will cause serious harm?
* How can the likelihood of the offender causing serious harm be predicted?

On the question of what constitutes ‘serious harm’, there is no doubt that a person who is likely to kill another, or commit a serious physical injury or sexual assault is a danger to members of the public.

Beyond these basic offences, however, it becomes less clear what potential harms make an offender ‘dangerous’. Not all activities resulting in serious physical harm attract similar levels of community concern. Floud asks, ‘Why is it that when someone mentions ‘dangerous offender’ we do not immediately think of drunken drivers, keepers of unsafe factories, tippers of toxic waste, vendors of unsafe cars or harmful pharmaceutical products?’

Among the crimes included in various categories of ‘serious offences’ or ‘serious harms’ have been those resulting in:

* death;
* serious bodily injury;
* serious sexual assault;
* severe or prolonged pain or mental stress;
* lasting psychological damage;
* loss or damage to property which causes severe personal hardship;
* damage to the environment which has a severely adverse effect on public health or safety,
* serious damage to the security of the state.

The paper goes on to raise some of the issues that are raised by the precautionary detention of offenders. The paper states -

One of the basic legal tenets inherited from the English common law is that citizens should only be deprived of their liberty as punishment for what they have done, not for what they may do in the future.

One of the major difficulties in dealing with ‘dangerous’ offenders is the problem of accurately predicting which offenders are likely to inflict serious physical harm on others.

According to Ashworth, the Floud Report’s survey of the available studies into dangerousness and recidivism revealed that no method of prediction had managed to do better than a 50 per cent success rate in predicting ‘dangerousness’. A fifty per cent success rate represents one false positive for every true positive predicted. Indeed, many of the prediction methods have only a one-third success rate.

I realise there is only one study, but this is very much the problem with this area of law and policy; that is, a lot of it is not based on evidence.

I will now refer to another report because it makes a similar point. This was a paper produced in Victoria entitled “Legislation in Victoria on sexual offenders: issues for health professionals”, and it states -

However, despite the popularity of these laws, we are unaware of any research that has yet demonstrated that they actually reduce rates of sexual offending against children.

That is a point. According to the research of the authors of that paper, these are popular laws, but they are not based on evidence. That is the problem with predicting dangerousness.

I turn to the issue of detaining offenders for what they might do rather than what they have done. Again, I refer to the New South Wales briefing paper, which states at paragraph 3.2 -

At common law, the courts cannot incarcerate a person simply to incapacitate him or her. Any sentence must be proportional to the crime, neither more or less severe than is warranted. This principle was affirmed by the High Court in Veen . . . holding that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender. A disproportionately long sentence imposed in order to incapacitate a dangerous offender would, it is said, amount to a sentence for a crime the offender did not commit, and which he or she may well not have committed.

There is also the danger of the utilitarian argument, which is mentioned in this paper. It states -

Utilitarians have constructed elaborate arguments regarding the comparative costs and benefits of the certain harm resulting from the release of an individual incorrectly judged to be ‘safe’ and the uncertain harm arising from the prolonged detention of an individual erroneously perceived to be dangerous. However, it remains an uncomfortable truth that, while the former attract considerable public concern, the latter remain largely inconspicuous. This is not least because detention denies them an opportunity to establish the accuracy of the judgment made about them one way or the other.

The briefing paper goes on to mention a quote of the Victorian Sentencing Committee, and states -

Research evidence simply does not support the view that by pursuing a policy of incapacitating groups of offenders, there will be any discernible drop in crime rates. So the old notion of extended or enhanced sentences for recidivists or sex offenders or the like, with the sole aim of reducing crime by incapacitating those offenders have now fallen into disrepute in most jurisdictions. They have tended to be replaced by an approach of selected incapacitation which aims at a very small group of offenders who are chosen on the basis of their particular characteristics.

The effectiveness of an individualised, selective approach to detention has also been questioned, on the basis of the relative rarity and difficulty of identifying a ‘dangerous type’ of person.

AND...

In some sections of the community, fear of violence from strangers tends to be greater than the actual risk of violence. Public fear may be exacerbated by media reports that give a distorted picture of the risk of injury from one of the small minority of repeat violent offenders. Some commentators have questioned whether public alarm in itself justifies exceptional protective measures regardless of whether the alarm is reasonable or excessive.

It is generally accepted that a sentence of imprisonment should be the last resort to be imposed only when no other sentence is appropriate.

If I have time, I will talk about some of the things that we consider acceptable when addressing the issue of serious offenders and the risk of them reoffending, including ensuring that the courts provide a more significant sentence in the first place. Surely that is the way to go if we are to avoid transgressing some of these principles of law. Provisions in the Sentencing Act - it was amended, as I remember, not that long ago - allow very significant prison sentences to be imposed on this type of offender. The question of indefinite sentences must also be addressed. The briefing paper states -

Indefinite sentences are penalties imposed without a finite termination date. Courts may impose such penalties ab inito or as an indefinite extension of a normal fixed sentence. Indefinite sentences are available in all jurisdictions of Australia except for New South Wales and the ACT . . .

The courts already have the capacity to provide an indefinite sentence if that is the path they choose to take. The briefing paper continues

The indeterminate sentence was said to be a ‘stark and extraordinary form of punishment’, made more problematic by the fact that it was terminable by executive not by judicial decision . . .

In this case the decision is made by the court. I might ask the parliamentary secretary to clarify that when we debate that particular part of the bill. The paper continues -

The New South Wales Law Reform Commission in its report on sentencing concluded that the arguments against indefinite sentences are compelling, and recommended that indefinite sentences should not be introduced into New South Wales. The Commission summarised the arguments for and against indeterminate detention in its report, and concluded that the difficulties of predicting which offenders are likely to commit violent offences made it ‘extremely difficult, if not impossible’ to satisfy the stringent requirements which would be necessary in imposing such a sentence. The Commission noted that it is difficult to prove the criteria as to dangerousness stipulated in existing legislation, and that the procedural safeguards in existing legislation fail to prevent the potential for injustice through predictive error.

Clause 3(b) of the Queensland act states that the objects of the act are “to provide continuing control, care or treatment of a particular class of prisoner”. That is similar to the object clause in this bill, although this (WA) bill refers not to “prisoner” but to “person”. However, the Queensland act also states “to facilitate their rehabilitation”.

Under the Queensland act applications need to be made by the Attorney General only...'

It is a step that the Greens argue has serious implications, particularly in the precedence it sets for establishing a class of person who can be indefinitely detained on a guess about whether a person in that class will reoffend. I believe it will be very difficult for a court to make an assessment of whether a person is likely to re-offend. I refer again to the paper titled “Legislation in Victoria on sexual offenders: issues for health professionals”, which, under the subheading “Who is at risk of reoffending?”, states -

Recidivism rates for sexual offenders are far lower than is popularly assumed. A meta-analysis of recidivism studies, acknowledging their generally limited periods of follow-up and reliance on reconviction rates (which underrepresent reoffending), suggests that the overall rate of sexual reoffending is 13.4%, which is much lower than for most other types of offending, such as theft and violent crimes.

Hon Simon O’Brien made an interesting point, and it is exactly the point that sent shivers up my spine; that is, why not have this legislation for all sorts of other offences as well?

That is exactly the argument that no doubt will be brought back into this Parliament with an amending bill for the adoption of additional measures, along with the usual litany of three strikes legislation and other mandatory sentencing proposals. It is really tackling the problem at the wrong end. FROM...

 http://www.mp.wa.gov.au/giz-watson/speeches/2006/dsob01.html

When considering how far to trust people who are such rank hypocrites that they will lie to your face perhaps we should consult with an insider...' one who knows...'

‘The ALP is increasingly seen as an entrenched part of the political establishment – that amalgam of institutions which tells people what to do. The days of social democracy’s embrace of a centralised, over-administered, nanny state need to end.’

‘Throughout the Western world, the traditional role of government is under question: the large, centralised bureaucracies of the welfare state appear to be out of step with an increasingly self-reliant electorate.’

‘The Left demonises global capital as distant and depersonalised, yet it turns a blind eye to the failings of government bureaucracy……………The politics of bigness will no longer suffice. As an institution the ALP is insoluble, a museum relic from a time when trade unions mattered and people cared about community politics. That time has passed ...'

Why is the Labor party stuffed?

MARK LATHAM: I think there's probably two fundamental reasons. One is that eh part power inside the party has moved away from the grassroots and it's concentrated in the hands of machine men, factional organisers, union secretaries, half a dozen of them can sit down in Victoria for instance and plan out whose going to get all the pre-selection for the next 20 years. Graham Richardson coined it as whatever it takes. Well that whatever it takes culture is very true and very real. Ah the second reason I think is that you know Labor's not there just to try and win elections. The whole idea is to produce social fairness, social justice in this country and there are some things government can't achieve.

I reached the conclusion that a lot of our problems are not so much material, they're not economic. Australia's a very prosperous nation. A lot of the problems are in the relations between people, the community and family breakdown, the isolation, loneliness, child sexual abuse, mental illnesses. A lot of these are social problems, where it's not so much what government can do for the people, it's what the community and what society needs to do for itself.

ANDREW DENTON: You paint a picture of the ...

MARK LATHAM: So you know there's limits there to what I think a modern social democratic party can achieve.

ANDREW DENTON: Dating back over the 11 years of your diary though, you paint a picture of a party that is morally and ethically and intellectually bankrupt. Can you explain to us, give us an example of how that bankruptcy works, how it plays itself out?

MARK LATHAM: Well, the whatever it takes culture does take on a life of its own where the people who've got the factional chiefs who've got the power exercise it in a way that sometime it's oblivious to human life... And other times it's just exercising the power for the sake of it.

In a speech at Melbourne University last night( sept 2005 ), the former Labor leader warned Australia's young people to abandon any plans of joining an organised political party.
LYNN BELL: Promoting his diaries at Melbourne University last night, Mark Latham told a crowded lecture theatre politics is now widely regarded as a dishonourable profession, ripe for media ridicule, public cynicism and distrust.

MARK LATHAM: In a gathering such as this I'm sure there are some young idealistic people interested in running for parliament. I have to say to you as frankly and sincerely as I can, don't do it.

It doesn't give me any pleasure to say this, but I need to be honest with you. The system is fundamentally sick and broken, and there are many more productive and satisfying ways in which you can contribute to society.

comment:

Cemented In
by Shackles Tuesday July 04, 2006 at 11:03 AM

Unlike its decisions invoving individual rights and freedoms, the High Court is ahead of the field when it comes to modern technology, and the Baker decision is available on the Internet simultaneously with Cheif Justice handing it down in Canberra.

I receive the news without leaving my Sydney office. The court has voted six judges to one, Justice Michael Kirby dissenting to abolish the Kable principal that Parliament should not recruit the state judiciary to facilitate a sentencing charade. The court has upheld the cement law even though ten 'never to be released' prisoners were previously entitled to a review of their sentences after eight years incarceration.

Gregory Kable would still be in jail if this court had its way and the 1994 Community Protection Act might have saved Premier John Fahey from electoral oblivion after all. Justic Kirby referred to the failed intervention on behalf of Bronson Blessington.

* At the time of the offence for which Mr Blessington was convicted and sentenced he was 14 years of age. He is now subject to the same legislation as that challenged in the appellant's case. He applied for leave of the Court to be heard as an intervener in the appellants appeal because of the direct relevance of the decision in the appellant's case to legal entitlements, which were pending. By majority, this Court refused that leave. As I indicated at the time of that refusal, I would have granted Mr Blessington the right to be heard. Principal, and effective lifetime of actual incarceration, warrented our consideration of counsel's supplementary submission estimated to take less than an hour. That submission bore on the extreme nature of the legislation under consideration in this case. It brought the appellant's arguments in even starker relief.

The application of the impugned provisions to Mr Blessington's sentence would appear to bring Australia into clear breach of the Convention on the Rights of the Child. By Article 37 of that Convention, to which Australia is party, it is provided relevantly that: "Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of age." On a true construction of the impunged law, a chimera, and deliberately so. If that is the case, the impunged law is in conflict with binding interntional obligations experessing universal human rights and fundermental freedoms.

Worrying to me is another decision of the High Court on the same issues as Baker and handed down on the same day. The Supreme Court of Queensland convicted Robert Fardon of rape, sodomy and assault. He was sentenced to 14 years jail, and just before the sentence was due to expire, the Queensland Parliament passed the Dangerous Prisoners (Sexual Offends) Act 2003. Like the ten 'never to be released' prisoners, Fardon was effectively 'cemented in' by this legislation. He was given and indefinite sentence by the executive government for a crime he might commit in the future.

Again in Fardon, Justice Kirby was the sole dissenting judge, and His Honour pointed out that Kable was supposed to offer some protection to minorities in circumstances where governments 'endevour to attract electoral support by attempting to spend the reputational currency of the independent courts in the pursuit of objectives which legislators deem to be popular'. The role of the High Court is to uphold the constitutional rights of minorities, and for Kirby, that role is particularly important in the case of unpopular minorities.

Given the proximity to the Al-Kateb decision, the decisions in Baker and Fardon cause serious questions to be asked about the direction in which the High Court is travelling. Indefinite detention at the pleasure of the executive government has been outlawed in every comparable jurisdiction in the world--the United States Government had to establish its terrorist allegation facility at Guantanamo Bay in Cuba--and yet here we are in Australia, lurching backwoods towards our convict jurisprudence for the benefit of politicians seeking to emulate the worst features of the Rum Corp. My assessement of the role of the judiciary in this process is quite pessimistic. Not only is the High Court giving the nod to indefinite detention of innocent refugees, it seems to be extending the idea to mainstream prisoners.

Chris Maxwell QC from civil rights group, Liberty Victoria, says the decisions mean State Parliaments have unlimited power to pass any law they please in the absence of statutory or constitutional Bill of Rights. 'Our Constitution, sadly, doesn't permit any real consideration of the fundermentally objectional nature of this kind of legislation'. Curiously, political leaders from the major parties decline to talk to McCutchen on the implications of the two decisions while they queue up to speak with the shock jocks of commercial radio. They run the risk of being 'brought down to size' or 'put in your place' with personal abuse from the presenters and their listeners, but the upside is a forum to dole out vengeance instead of just compensation for victims and the resources needed to educate and rehabilitate offenders.

Always remember that if prisons get 60,000 a year to rehabilitate then they say after all those years that it did not work on some clients then that is public fraud.

If you sent your car to the panel beater for repairs and they sent you back the car written-off then why would you pay the panel beater?

These laws are an umbrella based on the most unpopular person the government can find. They don't get any simpathy from the populist view and the government know it. Law and Order auctions and political grandstanding.

Then they open up the umbrella and slot you in it using the parrot press to make or form some example.

 http://melbourne.indymedia.org/news/2006/07/116102.php