A comparative review of national legislation for the indefinite detention of ‘Dangerous Criminals’, Tasmanian Law Reform Institute Research Paper No 4

Courts in Tasmania have long had the power to detain prisoners indefinitely. The Tasmanian dangerous prisoner regime, contained in the Sentencing Act 1997 (Tas), has never been reviewed. This is despite it receiving criticism from various quarters, including the Supreme Court bench. There are several differences between the Tasmanian indefinite detention provisions and those of other Australian jurisdictions. The implications of these legislative anomalies have not been explored. This paper examines the operation of the Tasmanian scheme by undertaking a cross-jurisdictional analysis of dangerous prisoner legislation in Australia. Problematic aspects of the current provisions are examined, and potential areas for reform are identified. This is done so with a view to the modernisation of the law and a shift towards uniformity with other Australian jurisdictions.

This paper first provides a brief history of indefinite detention regimes and outlines the nature of the exercise of the discretion to impose an indefinite sentence. The paper proceeds with an assessment of the various problematic aspects of the Tasmanian indefinite detention regime contained in the Sentencing Act 1997 (Tas). The first section considers the issues associated with the making of a dangerous criminal declaration, including the test and standard of proof for imposition of a declaration and whether separate indefinite detention provisions applying specifically to sex offenders should be introduced. The paper recommends that the test for the imposition of a declaration in the Sentencing Act 1997 (Tas) be amended to reflect the common law test. In addition, it recommends that the Act should explicitly provide for the standard of proof and provide a comprehensive and mandatory list of factors to be considered when determining whether to make a dangerous criminal declaration. Further, the Act should be amended to clarify that it is intended to operate as a post-sentence preventative detention regime, as well as an indefinite (at the time of sentencing) regime. Finally, the introduction of separate indefinite detention provisions for sex offenders is not recommended.

The second section considers the issues associated with the discharge of a dangerous criminal declaration. Key issues discussed in this section are the test for the discharge of a dangerous criminal declaration, the inability of the court to impose conditions upon discharge, and the absence of provisions for periodic review of a declaration. The key recommendations are that the Sentencing Act 1997 (Tas) be amended to mandate a system of periodic review of a dangerous criminal declaration. On a review of a declaration, or on an application for discharge of a declaration, the prosecution (rather than the offender) should retain the onus of proof. The assessment should be guided by the same principles applicable to the exercise of the discretion to impose the declaration at first instance. Finally, the court should be empowered to impose conditions upon the discharge of a dangerous criminal declaration.