Australia’s Expanding Jurisprudence of Risk (original) (raw)

Fundamental Rights and Legal Consequences of Criminal Conviction, 2019

Abstract

[Extract] In this chapter, we focus upon the post-sentence consequences that have flowed from the growth of preventive and data-driven policing in Australia. The existence of a past conviction can result in entry into a complex web of supervisory mechanisms, including the deprivation of liberty and incarceration, according to opaque procedures of risk assessment. As discussed throughout, Australia’s ‘jurisprudence of risk’ extends from predictive policing of those with an existing criminal record to extensive schemes of preventive detention and supervision. The ‘risk-based’ consequences of conviction also extend to the immigration system, where upon completion of their sentence, offenders also face possible preventive deportation. We argue that the use of opaque risk-centred criteria threatens to displace the principle of proportionality, resulting in a diminution of fundamental rights. The chapter offers an analytical framework for understanding how these systems have taken root and expanded, and how they might be reformed

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