This morning the High Court of Australia delivered judgment in Pollentine v Bleijie, in which it upheld a challenge to the validity the Queensland regime for the indefinite detention of a person found guilty of an offence of a sexual nature committed upon or in relation to a child.
In 1984 the plaintiffs each pleaded guilty to charges of sexual offences committed against children. In each case, on the report of medical practitioners, the District Court declared that the plaintiffs were incapable of exercising proper control over their sexual instincts and directed that they be detained in an institution during Her Majesty's pleasure.
Section 18 of the Criminal Law Amendment Act 1945 (Qld) provides that a judge presiding at the trial of a person found guilty of an offence of a sexual nature committed upon or in relation to a child may direct that two or more medical practitioners to inquire as to the mental condition of the offender, and in particular whether the offender "is incapable of exercising proper control over the offender's sexual instincts". The section further provides that if the medical practitioners report to the judge that the offender "is incapable of exercising proper control over the offender's sexual instincts", the judge may, either in addition to or in lieu of imposing any other sentence, declare that the offender is so incapable and direct that the offender be detained in an institution "during Her Majesty's pleasure". An offender the subject of a direction to detain is not to be released until the Governor in Council is satisfied on the further report of two medical practitioners that it "is expedient to release the offender".
The plaintiffs challenged the validity of section 18 of the Act on the ground that it was repugnant to or incompatible with the institutional integrity of the District Court of Queensland, as a repository or potential repository of Federal jurisdiction, thereby infringing Chapter 3 of the Constitution. The High Court upheld the validity of the provision, noting that while a court may direct the detention but not the release of an offender under section 18, the court has discretion whether to direct detention. Furthermore, while the release of an offender was subject to the exercise of executive discretion, that discretion was informed by medical opinion about the risk of an offender reoffending, and the exercise of the discretion was subject to judicial review. Section 18 was therefore not inconsistent with the institutional integrity of the District Court.