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RUBY:

From Schwartz Media I’m Ruby Jones, this is 7am.

If you’re ever found guilty of a crime, you’d hope that you do your time in jail and get released at the end of it.

For a small number of people who pose an exceptional risk to society, like sexual offenders and terrorists, that hasn’t always been the case – in some jurisdictions they can be kept in jail or given harsh restrictions long after they leave.

But now that’s expanding – suddenly less serious offences are becoming subject to what is called ‘preventative detention’.

Today - journalist Kieran Pender, on the question of who gets to walk free at the end of their sentence.

It’s Tuesday September 27.

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RUBY:

Kieran, this story is about two men, Peter Gallet and Derek Ryan. So can you start by telling me about who they are?

KIERAN:

Sure. So Peter Gallet and Derek Ryan are both Aboriginal Australians from Western Australia. They're both Noongar men. Peter was in his early twenties in 2017 when he broke into a house pretending to be armed and stole $20 and a pendant necklace. He pleaded guilty and was given a custodial sentence of about three years. Derek Ryan also committed robbery offences and served about 12 years in jail. And they both got to the end of their sentences. And you'd imagine they then be set free, released into the community, only that didn't happen. Their freedom was not granted.

RUBY:

Right. Okay. So once their sentences were completed, they weren't actually free to go. So why is that?

KIERAN:

While Mr. Gallet and Mr. Ryan were imprisoned in Western Australia, the WA Government passed a new law. That law was called the High Risk Serious Offenders Act of 2020.

Archival tape -- John Quigley:

“The bill introduces the term “high risk offender” to expand the current cohort of offenders under the Dangerous Sexual Offenders Act to include offenders…”

KIERAN:

And it allowed the government to go to court and apply for orders imposing ongoing restrictions on the liberty of people that were deemed high risk serious offenders.

Archival tape -- John Quigley:

“A continuing detention order is an order that provides for a high risk offender to be detained in custody for an indefinite term for control, care or treatment.”

KIERAN:

A law that enabled the government to seek to keep people behind bars or even if released, seek to keep them subject to restrictions on their liberties. Things like curfews, monitoring, restrictions on movement and travel, a huge incursion on their liberty even after these people had served their time. So, you know, there had in the past been laws like this that applied to terrorists and to serial sex offenders, for example. And this law took that idea of what's called preventative detention, protecting the community by keeping people deemed to be dangerous, in inverted commas, away from the community. It took that and applied it to a much broader category of offences. And in the case of Mr. Gallet and Mr. Ryan, to people who were convicted of robbery, so they'd serve their time. But in the case of Gallet, he was kept behind bars for over six months. And in the case of Ryan, he was released but was subject to this curfew that restricted his movements.

RUBY:

Right. Okay. And so this idea of preventative detention, of keeping people locked up or placing further restrictions on them after they've fulfilled their sentence, things like a curfew. Presumably this is about trying to stop people from committing a further crime, but that seems to be highly problematic and punitive in and of itself, because how do you decide who is and who isn't likely to go on and commit another crime? But even if you were to accept that maybe there are applications for something like this, perhaps if you're talking about someone who's convicted of serial killing or something like that, it doesn't seem like it is a principle that should be applied to anything but the most serious of offenders.

KIERAN:

That's exactly right. So this concept of preventative detention, preventative justice, I guess, is predicated on this idea of keeping the community safe from future criminal offending. So the law's architect, the Western Australian Attorney General John Quigley, he said that WA people have the right to feel safe. These laws enable courts to keep the most dangerous criminals behind bars. But that is a huge shift in the traditional criminal law process, which is that you are convicted of a crime, you're sentenced, you serve your time, and then you go free. In the last few decades, there has been some exceptions, some encroachments on that traditional principle. And suddenly, in the case of this WA law, we have that being stretched far beyond these isolated, serious exceptions and applied to what you might describe as sort of everyday criminal offending.

RUBY:

Mm hmm. Okay. And so if we come back then to Peter and Derek, who found themselves falling under the remit of this new law, what are their options to try and appeal against the decisions that were made?

KIERAN:

Well, both Gallet and Ryan went to the High Court. So Gallet challenged the constitutional validity of this Western Australian law. Ryan joined in his case as a friend of the court, given his similar interests in the issue. And they argue that this ongoing restrictions on their liberty in the case of Gallet, his ongoing detention, in the case of Ryan, the ongoing limitations on his movement, the curfew, they were contrary to the Constitution. But a few weeks ago, they lost. And five judges of the high court said that actually this law was constitutional and rejected these concerns about what this meant for liberty and criminal process in Australia.

But not everyone agrees with that. So there were two judges who dissented in the case, and they were extremely critical of the majority decision. A Justice Michelle Gordon said, this is not justice. I've spoken to other people who have expertise on these issues. They describe this law as racist. They thought it would be disproportionately used against Indigenous Australians in custody, that the prison population of WA is 40% Indigenous when the general population of WA is only 4% indigenous. So I guess in some respects it's no surprise that the two people challenging this law were both first nations Australians. And the fact that this law has now been upheld means there are serious concerns this law will be used in a discriminatory, racist way.

RUBY:

We'll be back after this.

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RUBY:

Kieran, There are two men, Peter and Derek, who have found themselves subject to legislation that allows for ongoing detention. After they've served an entire sentence, they go to the High Court to try and appeal that decision on the basis that doing this is unconstitutional, but things don't go their way. The High Court rejects their appeal. So talk me through why that is.

KIERAN:

So it for a long time has been a fundamental Australian legal principle that detaining people against their will is punitive and can only take place as a result of the judicial criminal process. And that's known as the Lim Principle coming from a case called Lim.

So this principle stems back to a case in 1992 where the High Court said unless in exceptional circumstances, Australians have a right not to be imprisoned, except as a result of judicial process in a criminal proceeding. So in other words, you can't be imprisoned unless a judge sentences you as part of a finding of criminal guilt. And when that sentence expires, you're free. And I mentioned exceptional circumstances. That's things like quarantine or mental health related orders. And so that's one reason. For example, hotel quarantine as a result of COVID was never challenged on constitutional grounds because that was being pursued not for a punitive purpose, but for a health purpose. But other than in those rare, exceptional categories, the high court in Lim is saying you're entitled to your liberty except when you're found by the judiciary to be guilty of an offence under criminal law, and then a sentence by a judge and not the executive and not the Parliament. They are not allowed to send you to prison. Only the judiciary is.

RUBY:

So what you're saying then is that there was this case 30 years ago now that really should have been able to protect these two men who are convicted of robbery in WA from continued detention after they'd finished their sentences. So if that is the case, what happened? What changed?

KIERAN:

Well, in the last three decades we've seen governments around Australia seize on this policy idea of preventative detention in exceptional cases. And we've seen really the undermining of this Lim Principle, this protection of liberty. And we first saw that in the mid-nineties in New South Wales, a case called Cable, where the New South Wales Government passed a law trying to keep a convicted person, Gregory Cable, in prison after he'd served his sentence for manslaughter of his wife. And the legislation named Cable and basically said that guy stays in jail, an application to the court and that went to the High Court and the High Court didn't like that. They said this undermines the institutional integrity of the New South Wales Supreme Court, which was enlisted by the New South Wales Parliament, to carry out this scheme. And we don't like that. So again, a continuation of this Lim Principle. But ever since then, we've seen this principle be slowly eroded.

So firstly in Queensland, in a case called Fardon, a case involving sort of convicted serious sex offenders, the High Court upheld a post sentence preventative detention regime on the basis that it was preventative. It was aimed at protection of the community. It wasn't punitive. Quite a radical and significant shift. And then a year ago, at a federal level, a similar law in relation to convicted terrorists also was upheld as constitutional by the High Court. So we've got this erosion of this liberty protecting principal in Lim first in relation to sex offenders, then in relation to terrorists. But the WA law was exceptional because it went from these serious high risk offences and took it down to, in the case of Mr. Gallet, an offence that saw him serve three years in prison for robbery. And so that was what was in issue in the High Court in this case.

RUBY:

Right. And so what was the rationale for that then for upholding this legislation that really goes to these much less serious offences of robbery?

KIERAN:

Well, the majority of the High Court said that ultimately these are decisions for the Government for Parliament to make. So they said that Mr. Gallet had a history of offending in the youth detention system. He had drug and alcohol issues. And so they rejected this idea that robbery could never be a sufficiently serious offence to allow an exception to this Lim Principle. And so the judge has said, look, this law is materially indistinguishable from this Queensland law in this sex offender case. And therefore the challenge that was brought by Mr. Gallet couldn't succeed because this other case blocked the road to a finding that the law was unconstitutional. And that was really a decision of deference. So the judge has said, look, it's up to Parliament to decide what offences are sufficiently serious, what offences the community needs protection from, and we defer to them. And so they upheld the law.

RUBY:

Mm. Okay. And as you said both Peter and Derrick, they’re Aboriginal men and the concern here as you've said, is that the law will disproportionately affect people like them, Indigenous people. And I suppose it's a legitimate concern because how could that not be the case given what we already know about the statistics around Indigenous incarceration?

KIERAN:

Exactly. So we know that criminal law and the detention system, the criminal justice system has a disproportionate impact on Indigenous Australians. As I've already said, 40% of the WA prison population is Indigenous. That number is going to continue to grow. When you have people like Mr. Gallet and Mr. Ryan being detained or being subject to post detention conditions, not because they've committed other crimes, not because they've been judged guilty of other crimes, but because of this law that says they're more likely to re-offend. And that's dangerous. And it's this wider shift away from a justice system based on findings of criminal guilt towards effectively trying to predict future offending and keep people locked up. And that's a fairly dystopian future, where judges are empowered by the parliament, by law, to pick and choose and try and protect the community from people, not because of what they've done, but because of what they might do. And that's alarming. And it's particularly alarming because in this case, and in a whole range of these cases, the impact is disproportionately felt by First Nations Australians.

And so in some ways we're blaming the wrong person or the wrong institution. It's not necessarily the fault of the High Court, although as I said, there are dissents that were very critical in this case. But we should also reflect on what the WA Parliament is doing. Why is it enacting these laws? Why is it following this seemingly desirable path that other legislatures are following towards this system of preventative justice? And on one hand, it might seem superficially attractive. People who we consider high risk offenders of reoffending. We keep them in jail. What that actually says is that the justice system is failing. It's not rehabilitating people. And if we're taking these laws that once applied to serious terrorists and sex offenders and applying them to the prison population writ large, the justice system has failed. And what is parliament doing?

RUBY:

Kieran, thank you so much for your time.

KIERAN:

Pleasure.

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RUBY:

Also in the news today,

Elections in Italy over the weekend appear to have delivered a far-right coalition to government, for the first time since the end of World War Two.

The highest share of votes went to the nationalist Brothers of Italy party, lead by Giorgia Meloni, who has a history of stirring anti-immigrant sentiment and criticising the European Union.

While the new government won’t be formed for weeks, Meloni is on track to become Italy’s first female prime minister.

And back home,

Cybersecurity Minister Clare O’Neil says that if Optus was based in another country and had been hacked in a similar way, it could be facing hundreds of millions of dollars in fines.

Yesterday, she warned the government could tighten data restrictions in the wake of the affair. Saying, quote: “One significant question is whether the cybersecurity requirements we place on large telecommunications providers in this country are fit for purpose.”

I’m Ruby Jones, this is 7am. See you tomorrow.

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