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A TOP Australian prosecutor has slammed a decision by the New South Wales government to introduce legislation aimed at detaining a man beyond the expiration of his prison sentence.
The law, brought in late last year through the Community Protection Act, was inspired by the case of Gregory Kable, a prisoner convicted of the manslaughter of his wife.
Nicholas Cowdery QC, New South Wales Director of Public Prosecutions, says the decision to pass the legislation was reached after Kable made a series of threats to relatives caring for his children.
Kable, who has been assessed as mentally stable, threatened the relatives and others with "dire consequences" if he was not awarded custody of the children on his release.
Cowdery says that the Act meant he was forced to apply to the Supreme Court for permission to detain Kable, proving there was a "reasonable likelihood" of him being a danger to others.
The maximum period of detention allowed under the Act is six months and Kable has been held since the completion of his prison sentence in November last year.
At the end of each detention period the DPP can reapply for another order.
"Because of the evidence that was available I was obliged to make an application to the Supreme Court for the detention of this fellow," says Cowdery. "It puts the responsibility for making applications on to me, which I don't like."
Cowdery says two other avenues were originally open to lawyers - filing for an apprehended violence order, which entitles a court to place a person on a bond, or prosecuting Kable for each threat he has made. These options were negated by the legislation.
"This new law is appalling," says Cowdery. "I think it is unprecedented and it is contrary to the principle that a person should be detained only for the commission of a crime that has been proven.
"It amounts to a form of preventative detention which our courts have vigorously opposed for a very long time."
Cowdery says Judge David Levine, who heard the application, was "very critical" of the legislation but because of the weight of the evidence presented he was bound to keep Kable in prison.
Kable turned to the Court of Appeal, but the order was upheld by three judges, who were also "extremely critical" of the law.
He has now lodged an appeal with the High Court challenging the constitutionality of the legislation.
UK barrister Ben Emmerson, a human rights specialist with London's Doughty Street Chambers, says the extended detention of violent prisoners is not unique to Australia, with discretionary life prisoners in the UK, typically those convicted of manslaughter, rape or arson, often being held beyond the punitive phase of their sentence. Those prisoners are
detained until the parole board considers them "safe" to release, he says.
But Emmerson says international human rights law only permits preventative detention if the prisoner has a mental illness or personality disorder, or if there is a high risk they would commit offences "dangerous to life or limb" on
"Like the UK, Australia is a State which is party to the International Covenant on Civil and Political Rights. This new legislation appears to put Australia in breach of its obligations," Emmerson says.