On 29 July 2014 I attended a lecture delivered by Professor Lucia Zedner FBA Law Fellow, Corpus Christi College and Professor of Criminal Justice, University of Oxford, Conjoint Professor, Faculty of Law, UNSW.  The lecture presented by Professor Zedner and delivered by the Australian Academy of Law analysed the balancing act between protecting society from harm and the rights of the individual.  It also explored the roles of lawyers, Judges and academics in “distinguishing and delimiting preventive measures”.

During the course of the lecture the words “What if we are wrong?” rang through my ears.

Preventive justice is supposed to detect and anticipate when someone will likely commit an offence and then put into place protective features to stop them from doing so.  It is not supposed to be anticipatory punishment but rather a protective mechanism for society.

Our policy writers hold the overwhelming power associated with installing preventive laws into our justice system.  As we know, with great power comes great responsibility.  More recent legislative reforms would have us question whether this responsibility is being appropriately managed.  The introduction of the VLAD legislation, amendments to our Penalties and Sentences Act 1992 and the wide powers provided to star chambers are all cause for great concern.

In Queensland we have many preventive justice mechanisms embodied within our laws.  They range in terms of their implications.  The most basic form exists within our Police Powers and Responsibilities Act 2000 and Criminal Code.  In Chapter 2, Part 6 “breaches of the peace, riots and prevention of offences” for example provide the police with powers to detain people and suppress riots where they assess that there is “an imminent likelihood” that something is about to occur.  How is this power balanced to ensure that a full assessment is undertaken and not abused?  How is the deprivation of citizen/s liberty balanced with the protection of society?  What training do the police have to assess imminent risk on the fly?  What consequences exist if this preventive power is inappropriately applied?

In the Child Protection (Offender Reporting) Act 2004 those who have committed certain offences of a sexual kind are subject to strict reporting requirements for either 8 or 15 years.  The purpose of the Act is to “require particular offenders who commit sexual, or particular other serious, offences against children to keep police informed of their whereabouts and other personal details for a period of time after their release into the community:- (a) to reduce the likelihood that they will re-offend; and (b) to facilitate the investigation and prosecution of any future offences that they may commit.”  Many hold the view that the legislation provides another punitive measure imposed by the State in addition to the penalty imposed by the Judiciary at sentence.  The unfortunate reality is that there is no sliding scale on which the Act is assessed or implemented.  It is an all or nothing register which restricts the individual, waters down their privacy and also costs our State a great deal to implement.

The VLAD laws are the most frightening of all preventive measures taken to date.  These laws operate to discriminate unfairly against particular persons within our society.  The appropriate checks and balances of allowing the laws to be scrutinised by the legal community did not occur.

Without adequate debate and scrutiny we run the risk that we are wrong and that our laws will be vague and applied erratically or in a manner which is open for abuse.  Poorly assessed preventive laws do not offer our community security, they deprive citizens of their liberty, their rights and fosters injustice.

What if we are wrong?