Sex offender laws unconstitutional

By on Nov 20, 2015 in Constitutional Law

“Queensland’s Court of Appeal has declared unconstitutional the Newman Government’s recent laws about sex offenders that gave the Executive Government power to override Court decisions. See Attorney-General (Qld) v Lawrence [2013] QCA 364 and Attorney-General (Qld) v Fardon [2013] QCA 365.

The unconstitutional laws are ss.3 and 6 of the Criminal Law Amendment (Public Interest Declarations) Amendment Act 2013 (Qld). The cases concerned two sex offenders held in custody under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSOA).

The laws were introduced with promises to make Queensland’s sex offender laws the toughest in the nation and criticism of judges for not meeting community expectations. The Explanatory Notes to the Bill said that the Court was concerned only with whether an offender presented an unacceptable risk of committing another serious sexual offence. The Executive however could take into account a broader range of issues “including the likely reaction of the community to the release of the offender.”

The Declarations Act amended an old law, the Criminal Law Amendment Act 1945 (Qld) an Act considered “defunct” once the DPSOA came into effect.[1]

The 1945 Act allowed (among other things) a Court to order detention “at Her Majesty’s pleasure” of a person convicted of a sexual offence against a child under 16 years and shown on the evidence of two or more psychiatrists to be “incapable of exercising proper control over his sexual instincts”. The prisoner could only be released if the “Governor in Council is satisfied on the report of two legally qualified medical practitioners that it is expedient to release him.”

Section 6 of the Declarations Act inserted a swag of new provisions into the 1945 Act, allowing the Attorney-General, through the Governor in Council, to declare that a person detained under the DPSOA or released under a supervision order must be detained. That is, regardless of a judicial decision made under the DPSOA that an offender should no longer be detained but instead released under supervision, the Executive arm of government could decide to keep the person imprisoned anyway.

Section 3 changed the long title of the 1945 Act to reflect the effect of the amendments.

The Constitutional challenge was based on Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24. That case held that State Courts, especially Supreme Courts, have a constitutionally mandated position, and cannot be given powers repugnant to their institutional integrity as Courts. Thus the NSW Legislature could not validly legislate “for the preventive detention (by order of the Supreme Court made on the application of the Director of Public Prosecutions) of Gregory Wayne Kable” (s.3 Community Protection Act 1993 (NSW)) because that Act effectively made the Court a tool of the political arms of government, compromising its institutional integrity as a court.

The DPSOA was drafted with Kable in mind, and it was upheld by the High Court (Fardon v Attorney-General (2004) 223 CLR 575; [2004] HCA 46). The Act provides a regime for ongoing detention or supervised release of dangerous sexual offenders, subject to annual review by the Supreme Court and psychiatric assessment. The Court’s institutional integrity is not inveigled because the Court remains the judicial decision maker.

The Court of Appeal found that the Declarations Act had the effect of undermining the authority of the Supreme Court’s orders. A declaration effectively operated to reverse the Court’s order, normally only vulnerable on appeal to the Court of Appeal and the High Court.

The existence of the Declarations Act undermined the Court’s authority by impugning every DPSOA order, rendering each order provisional and contingent on whether the Executive Government used its power to nullify the order. The relevant sections of the Declarations Act were repugnant to, or incompatible with, the constitutional place of the Supreme Court, and beyond the State’s legislative power and therefore invalid.

The Attorney-General has 28 days to apply to the High Court of special leave to appeal. There is no guarantee that special leave would be granted.

Meantime, the Attorney-General has announced a review of the DPSOA.”

[1] Three prisoners are still held in Queensland jails under the 1945 Act. Two of them have challenged the validity of the Act on Kable grounds. The High Court is likely to hear the matter next year.


by Peter Bridgman (Barrister)