Fardon v Australia (HRC, 2010)

Violations: ICCPR art 15(1), ICCPR art 9(1), ICCPR art 10(3), ICCPR art 14

Remedy's assessment: Remedied

The UN says:

The State party is under an obligation to provide the author with an effective remedy, including termination of his detention under the DPSOA.

HRC (2010)

Australian citizen Robert Fardon was held in indefinite ‘preventive detention’ for nearly 10 years beyond the completion in 2003 of a 14-year prison term for sexual offences (punctuated by two periods of of conditional release of less than 12 months each). Queensland’s Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA) allows prisoners deemed a threat to the community to be gaoled indefinitely. Their ‘continuing detention’ is reviewed annually by a judge in civil proceedings.

The HRC criticised Australia for failing to adopt 'meaningful measures' for the reformation and rehabilitation of Mr Fardon during the 14 years of his prison sentence, as required by Article 10(3). It found his continued imprisonment without a new conviction to be arbitrary, retroactive and a violation of his fair-trial rights. It constituted a breach of article 15(1), the prohibition on imposing ‘a heavier penalty … than the one that was applicable at the time when the criminal offence was committed’. Further, the civil proceedings by which Fardon’s continuing imprisonment was reviewed did not meet the due process guarantees required by article 14. An appropriate remedy would include ending his ‘preventive detention’.

In March 2013, the HRC deemed Australia’s response unsatisfactory and described follow-up dialogue as ongoing.

In December 2013, by order of the Queensland Court of Appeal, Mr Fardon was released and transferred to ‘supervised accommodation … subject to strict conditions including curfews and electronic monitoring’.

Remedy Australia deems Australia to have failed to respond in good faith to the Committee’s Views in Fardon v Australia. It did not guarantee the termination of his arbitrary detention, nor any other effective remedy. Rather, the State of Queensland continued vigourously to oppose Mr Fardon’s efforts to secure his own release from detention. As a consequence, Mr Fardon suffered an additional three years and nine months in detention beyond receipt of the Committee’s Views.

However, the Queensland Court of Appeal recently ordered Mr Fardon be released from detention under the terms of the DPSOA, which the HRC had requested. Instead, he is now a prisoner under the Corrective Services Act, residing in supervised accommodation on prison property.

For source details, see Remedy Australia's 2014 Follow-up Report (PDF 1.3Mb).

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