Robert Fardon was held in ‘preventive detention’ beyond the completion of a 14-year prison term for sexual offences. Queensland’s Dangerous Prisoners (Sexual Offenders) Act 2003 allows prisoners deemed a threat to the community to be gaoled indefinitely. The HRC found Mr Fardon’s continued imprisonment without a new conviction to be arbitrary, retroactive and a violation of his fair-trial rights. It constituted a breach of 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 Mr Fardon’s continuing imprisonment was reviewed did not meet due process guarantees. An appropriate remedy would include ending his preventive detention, which occurred in 2013.

At the conclusion of Mr Tillman’s 10-year sentence for sex offences, the NSW Attorney-General used new legislative powers to keep him, presumed a continuing threat to the community, in ‘preventive detention’ a further year under conditions identical to his imprisonment. The HRC found Mr Tillman had suffered arbitrary detention, penal in character, yet ordered by civil proceedings lacking due process, under legislation retroactively applied, without a fresh trial. It suggested he should be released from prison, which had already occurred.