In an effort to reduce repeat sexual offending, some Australian jurisdictions have introduced legislation providing for the restriction of a sex offender's liberty in anticipation of future predicted crimes. The operation of preventive detention legislation relies centrally upon forensic clinician assessments of risk for future sexual offending. This legislation has raised important research questions related to the validity of the laws' assumptions on sexual recidivism and risk prediction, the characteristics of sex offenders submitted to post-sentence orders, and clinicians' standard of practice of risk assessment in this legal context. This thesis conducted a series of theoretical and empirical investigations linked to these research areas. The first study consisted of a psycho-legal analysis whereby the assumptions underpinning the laws' provisions were evaluated in light of the empirical evidence on risk prediction, sex offender recidivism, and sex offender rehabilitation. Together, the findings revealed that many of the laws' assumptions are invalid; this has implications for the efficacy of the legislation to protect the community from sexual offending. The second study empirically examined the demographic, developmental, clinical, and criminal characteristics of a sample of 50 sex offenders under post-sentence orders in Western Australia, New South Wales, and Victoria. Data was obtained from court-ordered clinical risk assessment reports. The findings described a group of demonstrably dangerous men who exhibited an early onset of sexual offending and complex psychiatric presentations, with a high prevalence of sexual deviance and antisociality. Their developmental histories were characterised by early exposure to multiple vulnerability factors such as abuse, illicit substance use, and social dislocation. Their complex and varied needs require a comprehensive treatment approach. The early onset of their offending suggests that well resourced early intervention services, such as those offered by mental health professionals, can play a critically important role in any effort to alter offending trajectories such as those exhibited in this sample. The third study empirically evaluated the standard of risk assessment practice amongst experts retained in preventive detention proceedings. Eighty-six court-ordered forensic evaluation reports prepared by 23 mental health professionals were obtained and analysed. Overall, the findings were mixed. Positively, valid structured risk assessment tools were commonly utilised. Also, there was good agreement between experts on the final risk assessment outcome, suggesting a consensus in relevant areas relating to risk assessment. However, a number of concerning results were also found (e.g., some evaluators adopted invalid risk assessment methodologies; others incorrectly applied and interpreted otherwise valid risk tools). Taken together, the findings suggest that the standard of practice of risk assessment must be raised. Recommendations for best practice were proposed.

This thesis found that a provision of Australia's counter-terrorism policy, preventative detention, does not comply with a major international treaty, the ICCPR. This thesis provides an alternative model by which the Australian Government could achieve the legitimate purposes of preventative detention within the existing constraints of the Australian criminal law.

Preventive detention as a counter-terrorism tool is fraught with conceptual and procedural problems and risks of misuse, excess and abuse. Many have debated the inadequacies of the current legal frameworks for detention, and the need for finding the most appropriate legal model to govern detention of terror suspects that might serve as a global paradigm. This book offers a comprehensive and critical analysis of the detention of terror suspects under domestic criminal law, the law of armed conflict and international human rights law. The book looks comparatively at the law in a number of key jurisdictions including the USA, the UK, Israel, France, India, Australia and Canada and in turn compares this to preventive detention under the law of armed conflict and various human rights treaties. The book demonstrates that the procedures governing the use of preventive detention are deficient in each framework and that these deficiencies often have an adverse and serious impact on the human rights of detainees, thereby delegitimizing the use of preventive detention. Based on her investigation Diane Webber puts forward a new approach to preventive detention, setting out ten key minimum criteria drawn from international human rights principles and best practices from domestic laws. The minimum criteria are designed to cure the current flaws and deficiencies and provide a base line of guidance for the many countries that choose to use preventive detention, in a way that both respects human rights and maintains security.

Preventive detention law is a subject which continues to receive great international attention. In recent years the legal rights of detainees have been more and more frequently litigated, and significant new approaches have been developed.

This book analyses the preventative confinement of suspected terrorists with regard to different models of counter-terrorism policy within the context of international human rights law. The book is written from a global perspective drawing on cases and practice from different jurisdictions including the US, the UK and Australia.

In a regional, national and global response to terrorism, the emphasis necessarily lies on preventing the next terrorist act. Yet, with prevention comes prediction: the need to identify and detain those considered likely to engage in a terrorist act in the future. The detention of ‘suspected terrorists’ is intended, therefore, to thwart a potential terrorist act recognising that retrospective action is of no consequence given the severity of terrorist crime. Although preventative steps against those reasonably suspected to have an intention to commit a terrorist act is sound counter-terrorism policy, a law allowing arbitrary arrest and detention is not. A State must carefully enact anti-terrorism laws to ensure that preventative detention does not wrongly accuse and grossly slander an innocent person, nor allow a terrorist to evade detection. This book examines whether the preventative detention of suspected terrorists in State counter-terrorism policy is consistent with the prohibitions on arbitrary arrest and detention in international human rights law. This examination is based on the ‘principle of proportionality’; a principle underlying the prohibition on arbitrary arrest as universally protected in the Universal Declaration of Human Rights, and given effect to internationally in the International Covenant on Civil and Political Rights, and regionally in regional instruments including the European Convention on Human Rights. The book is written from a global counter-terrorism perspective, drawing particularly on examples of preventative detention from the UK, US and Australia, as well as jurisprudence from the ECHR.