Post-Sentence Detention Incompatible with Prohibition against Arbitrary Detention

Tillman v Australia, UN Doc CCPR/C/98/D/1635/2007 (12 April 2010)

Fardon v Australia, UN Doc CCPR/C/98/D/1629/2007 (12 April 2010)

The UN Human Rights Committee has held that the post-sentence detention of two men convicted of sexual offences, Kenneth Tillman in New South Wales and Robert Fardon in Queensland, was incompatible with the prohibition against arbitrary detention under art 9(1) of the International Covenant on Civil and Political Rights.

The Committee also opined, without deciding the matter, that the post-sentence detention of Tillman and Fardon may contravene the prohibition against double punishment under art 14(7) and against retroactive punishment under art 15(1).



Kenneth Tillman was convicted of a number of serious sexual offences on 6 March 1998.  He was sentenced to ten years’ imprisonment.  One week prior to his release in April 2007, the Attorney-General of NSW filed an application under the Crimes (Serious Sex Offenders) Act 2006 (NSW) requesting that Tillman be detained for a further five years.  The Supreme Court of NSW granted an interim order in April 2007 and then, on 18 June 2007, a further order that Tillman be detained in prison for a further year.


On 30 June 1989, Robert Fardon was sentenced to 14 years’ imprisonment for a number of serious sexual offences.  His sentence expired on 30 June 2003.

On 6 June 2003, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) came into force and, on 17 June 2003, the Attorney-General of Queensland filed an application under that Act seeking that Fardon be detained indefinitely.  Pursuant to a series of decisions by the Supreme Court of Queensland, Fardon was subject to a continuing detention order until 4 December 2006, after which he was released and made subject to a conditional supervision order.

Both Tillman and Fardon complained that their post-sentence detention was incompatible with:

  • the prohibition against double punishment under art 14(7) of the ICCPR; and
  • the prohibition against arbitrary detention under art 9(1) of the ICCPR.



In both cases, the Committee held that the facts disclosed a violation of art 9(1), in light of which they did not consider it necessary to consider the complaints separately under art 14(7).

In accordance with art 2(3) of the ICCPR, the Committee held that Australia is under an obligation to provide Tillman and Fardon with an effective remedy for this breach, including the termination of their detention.

Admissibility: Exhaustion of Domestic Remedies

The Optional Protocol to the ICCPR requires that an author first exhaust domestic remedies in order that a complaint is deemed admissible to the Committee.  Rejecting Australia’s assertion that Tillman had not exhausted domestic remedies because he did not seek a writ of habeas corpus or seek leave to appeal to the High Court (unlike Fardon, who sought and was granted leave but was unsuccessful in the event), the Committee stated:

For the purposes of the Optional Protocol, an author is not required to exhaust domestic remedies if the jurisprudence of the highest domestic tribunal has decided the matter at issue, thereby eliminating any prospect of success of an appeal to the domestic courts.

Article 9(1): Prohibition of Arbitrary Detention

In both cases, the Committee concluded that the post-sentence detention of the authors was incompatible with art 9(1) for a number of reasons, including that:

  • The authors had already served their terms of imprisonment yet continued to be detained.  The Committee stated that this ‘detention amounted, in substance, to a fresh term of imprisonment which…is not permissible in the absence of a conviction for which imprisonment is a sentence prescribed by law’.
  • Imprisonment is penal in character and ‘can only be imposed pursuant to a conviction for an offence in the same proceedings in which the offence is tried’.  In the present cases, the Committee stated that the authors’ further terms of imprisonment were the result of court orders made 10 and 14 years, respectively, after the authors’ convictions and sentences ‘in respect of predicted future criminal conduct which had its basis in the very offence for which [they] had already served [their] sentences’.  The Committee stated further that these new ‘sentences’ fell within the prohibition against retroactive punishment and subjection to a ‘heavier penalty than was applicable at the time when the criminal offence was committed’, contrary to art 15(1) of the ICCPR.  They concluded that detention pursuant to proceedings which themselves contravene art 15(1) is ‘necessarily arbitrary’ within the meaning of art 9(1).
  • The process pursuant to which the court orders for continuing detention were made was designed to be ‘civil in character’ and did not, therefore, ‘meet the due process guarantees required under art 14…for a fair trial in which a penal sentence is imposed’.  Again, detention pursuant to proceedings which themselves contravene art 14 is necessarily arbitrary within the meaning of art 9(1).

Limitations on Rights: The Requirement of ‘Minimal Impairment’

Finally, the Committee stated that in circumstances where a person is preventatively detained because they are ‘feared’ to be a ‘danger to the community…and for the purposes of rehabilitation’, the ‘State Party must demonstrate that rehabilitation could not have been achieved by means less intrusive than continued imprisonment’.

The requirement of any limitation being a minimal impairment is closely connected both with the state’s obligation to avoid arbitrariness under art 9(1) and the ‘continuing obligation under art 10(3)…to adopt meaningful measures for the reformation’ of prisoners.

Relevance to the Victorian Charter

This decision is particularly pertinent to the scope and application of s 21(2) (right to freedom from arbitrary detention), s 26 (right not to be tried or punished more than once) and s 27 (retrospective criminal laws) of the Victorian Charter.

The decision is also apposite to the human rights compatibility of Victoria’s Serious Sex Offenders (Detention and Supervision) Act 2009, which is substantively similar to the NSW and Queensland Acts which were the subject of the Committee’s consideration.  This is particularly so given that the predecessor to the current Act, the Serious Sex Offenders Monitoring Act 2005 (Vic), was held to be incompatible with the Charter by Ross J of the County Court in Secretary to the Department of Justice v AB [2009] VCC 1132 (28 August 2009).

The Committee’s decisions are available at

Phil Lynch is Executive Director of the Human Rights Law Resource Centre