Outdated and “cruel” legislation is resulting in dangerous criminals languishing in prison despite no longer being a threat to society, a Tasmanian barrister says.
Tasmania’s Sentencing Act enables a judge to declare an offender a “dangerous criminal”, which renders them ineligible for release until the declaration is discharged.
The late Mark ‘Chopper’ Read was one of nine people locked up indefinitely under the legislation, after he moved to Tasmania in 1991 and was convicted of the shooting of Sidney Collins in 1992. He was the only one to successfully have the status removed when his application was accepted in 1994.
The Tasmania Law Reform Institute has released a research paper on the indefinite detention of dangerous criminals following a request from Tasmanian barrister Greg Barns to review the state’s legislation.
Report author Taya Ketelaar-Jones said flaws in the current legislation meant it was being underutilised.
“Courts in Tasmania have long had the power to detain prisoners indefinitely, but the Tasmanian dangerous prisoner regime has never been reviewed despite it receiving criticism from various quarters, including the Supreme Court bench,” she said.
Currently, the court cannot impose conditions upon discharge, and there are no provisions for periodic review.
The paper’s key findings and recommendations include:
- Judges are reluctant to make dangerous criminal declarations, knowing they will remain in place indefinitely
- There should be a comprehensive list of factors considered by the court when making a dangerous criminal declaration
- The court should be able to impose both pre- and post-release conditions on discharge of dangerous criminal declarations
- There should be a system of periodic review of dangerous criminal declarations
- The prosecution should bear the onus of proof on applications for a dangerous criminal declaration, and for discharge, as well as for a periodic review of a dangerous criminal declaration
- No separate provisions for sex offenders should be enacted
Indefinite jailing invented by Nazis, lawyer says
Mr Barns, chairman of the Prisoners Legal Service, said the current law was “cruel”.
“The current law means that there are people languishing in our prison who are little or no threat to anyone in our society and who are being kept in prison simply because the law in Tasmania is desperately in need of reform,” he said.
“It’s a law which makes it almost impossible for any person who is held under this legislation to be released.
“The first legislation of this kind in the world was in Nazi Germany.”
Mr Barns said people imprisoned under the legislation often stayed behind bars longer than necessary.
“These people who are kept under this legislation are in the main, people who’ve been in prison well beyond the date in which they should have been released,” he said.
“They present little or no risk to society and the community could be assured that they would be safe if these people were released.”