Should people be kept behind bars because they might commit a crime in the future?

How would you feel if Parliament passed a law specifically to keep you in prison, even after you had done your time, based on a speculation that you might commit further crimes if released?

And what if the legislation even mentioned you by name – as the only person that it applied to?

Can the government really be allowed to do this?

One man, Gregory Wayne Kable, found himself in exactly this situation many years ago.

The Kable case

In 1989, Kable was accused of stabbing his wife following a bitter child custody battle.

The attack resulted in her death, and at trial, Kable pleaded guilty to manslaughter. He was sentenced to imprisonment for five years and four months.

While in prison, Kable wrote several threatening letters to his children’s carers. Although he was not violent in prison, the letters alarmed prison authorities who feared he might do something violent when released.

So the NSW government thought the best thing would be to keep him in prison, even after his sentence had expired.

Parliament then passed the Community Protection Act, which allowed for the Director of Public Prosecutions (DPP) to apply to the Supreme Court of NSW to detain a person if satisfied on reasonable grounds that:

• The person was more likely than not to commit a serious offence; and
• It was appropriate for the protection of a particular person or persons in the community that the person be held in custody.
• The maximum extension of imprisonment that could be granted was six months– but this could always be extended upon further application.

On top of this, section 3 of the Act made it clear that the law would apply to one man only – Gregory Wayne Kable; the stated purpose of the act being “to protect the community by providing for the preventative detention… of Gregory Wayne Kable.”

Once this Act was in place, the DPP duly filed an application against Mr Kable, which was granted by the Supreme Court. Kable objected to this discriminatory legislation and launched an appeal.

Fortunately for Kable, the Justices of the High Court were not fans of the legislation either. Four out of the six found the legislation invalid – and one of the Justices who found the Act to be valid questioned its wisdom.

One of the major concerns with the legislation was that it attempts to punish a person for a crime that they might commit in the future. This goes against a fundamental principle of punishment – that it should only be imposed if somebody has actually done something wrong, rather than might do something wrong.

There are some exceptions to this – such as people on remand awaiting trial, or detention of people with mental illness or an infectious disease. Clearly though, the legislation intended to keep Kable behind bars did not fit into any of these exceptions.

Justice Toohey characterises the Act as “a detention order where no breach of the criminal law is alleged and where there has been no determination of guilt.”

The legislation also meant that Kable would be stripped of the usual protection of defendants in criminal matters – where the onus of proof normally rests on the prosecution. Instead of having to prove that Kable would commit a violent crime “beyond a reasonable doubt”, all that was necessary was for it to be “more likely than not”, which is far easier to show.

Even more concerning, as Justice McHugh pointed out, was that although the applications are only for six months of extended imprisonment, the fact that there is no limit on the number of applications meant that Kable could be imprisoned for life – all without even being accused of a crime.

And while Parliament does have the power to make laws, even regarding the imprisonment of a particular individual, they cannot use the Supreme as a tool for carrying out its legislative plan.

As Justice Toohey noted, the court must be independent from the executive branch of government – and any application made under the Community Protection Act was too far removed from usual judicial process. Applications made under the Act could give the impression that the judiciary was not independent of the legislature.

The law today: can people be imprisoned for crimes they are not charged with?

Despite the decision in Kable’s case, there are still circumstances where a person can be imprisoned without having been charged with a crime.

One example is preventative detention orders (PDOs), which were brought in along with a range of police powers for dealing with terrorism contained in the Terrorism (Police Powers) Act 2002. PDOs allow police to detain a person for up to 14 days without being charged with any offence.

But what about even longer periods of time? Continuing detention orders in NSW are a little more analogous to the Community Protection Act – although they are not targeted towards any particular individual.

The Crimes (Serious Sex Offenders) Act 2006 and Crimes (High Risk Offenders) Act 2006 allow for people who are deemed at “high risk” of reoffending to be kept in detention even after they have served their time.

Kable’s case was heard about twenty years ago – and it appears that times have changed.

Although not the sole reason for invalidating the Kable legislation, several judges have commented on the unfairness of keeping a person imprison due to what is essentially speculation that they will offend some time in the future.

Legality of preventative detention

Having said that, the High Court has found that Queensland legislation mandating preventative detention is legally valid. And since then, similar legislation has been replicated in various states in Australia, including the two NSW examples mentioned above.

And although the High Court may endorse such laws, they have garnered significant criticism from civil rights groups because of the obvious undermining of the objectives of punishment and the presumption of innocence.

Preventative detention has been criticised as unfair because it punishes people for acts that have not even occurred yet. One might ask what’s next – do we imprison those who are deemed by authorities to have a propensity towards certain criminal acts?