Australia’s Expanding Jurisprudence of Risk: Chasing Proportionality in preventive detention & supervision

Dr Darren O’Donovan has recently presented a paper, co-authored with the Dean of La Trobe Law School, Patrick Keyzer, in Onati, Spain. The article entitled Australia’s Expanding Jurisprudence of Risk: A critical analysis of the continuing growth of Australia’s preventive detention and post sentence supervision system is part of an international workshop on Comparative Perspectives on the Law and Practice  of Limiting Offenders in Fundamental Rights  Beyond Their Sentence, being held at the International Institute for the Sociology of Law at Onati. The abstract is as follows:

Australia’s “jurisprudence of risk” gained another entry in the past year with the passage of Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 – which permits preventive detention of terrorist offenders across a broad array of offenses – a number of which may be non-violent. This paper will discuss how Australian state and federal jurisdictions have created and maintained preventive detention regimes imposing criminal and punitive sanctions at civil standards. We will propose an analytical framework for understanding how these systems have taken root and expanded, and how they might be reformed.

The Legal Construction of Risk: We argue that Australian preventive detention  regimes often facilitate a normative drift. They are framed through overly broad, unstructured discretionary powers, despite sustained attempts of human rights lawyers to use the proportionality principle to structure the system.  The past decade of Australian statutory reform shows a recurring failure to adopt what High Court Justice Kirby “significant, genuine and detailed provisions…for care, treatment and rehabilitation” which are essential to avoiding arbitrary and punitive systems.

The Political Management of Fear: Preventive detention regimes rely upon and reinforce images of the “just in time” state, whereby visible, punitive interventions obscure the broader duty to build an infrastructure to respond to complex social problems. At a time when the welfare state in Australia faces enormous challenges, and where justice reinvestment advocacy is to the fore, we will critically analyse the political distancing and administrative closures which underpin the continuing emphasis upon post sentence preventive regimes. Australia, which has been subjected to direct condemnation and successful individual complaints before the United Nations human rights bodies, provides key insights into how preventive detention schemes are constructed and maintained politically.

The Obscured Realities of Administering Risk: Australia now possesses a defined landscape of preventive detention practice and administration which is not foregrounded in public debates. Recent research (Keyzer & McSherry, 2015) has begun to construct the empirical reality of preventive systems, through interviews with professional experts and staff in the system.  This study underlines the importance of professional cultures to any system of preventive detention; with growing evidence of practical deficiencies such as unclear functional divisions of labour, vague drafting of supervision orders and a lack of resourcing, competency and accountability on the day to day level.

Lise Leitner