Preventive detention laws: High Court validates Queensland's Dangerous Prisoners Act 2003

Abstract

In the case of Fardon v Attorney-General (Qld), the High Court declared that preventive detention legislation passed by the Queensland Parliament in 2003 was constitutionally valid. Put simply, preventive detention laws allow a person to be detained in prison, not merely because of something they have done in the past, but based on an assessment they may re-offend in future, if released. This assessment of likely recidivism may be based on a number of factors, including reports of psychiatrists, past criminal behaviour, rehabilitation, and any statement of intention by the offender. This legislation has clear national implications, with some state governments apparently planning similar-styled, electorally popular, preventive detention regimes in the light of the High Court's verdict on the issue. Such laws raise real concerns about civil liberties, and raise the issue of the role of judges in protecting fundamental rights and freedoms from attack by parliament.