Toward a new economy of suspended rights: sex offenders and post-sentence confinement and control

Abstract

Giorgio Agamben has recently described the state of exception as a new ‘paradigm of government’ while Judith Butler writes of ‘the new war prison’ in which terror suspects and other ‘detainees’ face an indefinite detention suspended beyond or outside law. Less remarked upon has been the recent entry into Australian politics of a new penal form: schemes that provide for the post-sentence detention (continued imprisonment) of sex offenders who have completed a finite sentence of imprisonment and who would otherwise be returned to society as free citizens. First introduced in 2003 in Queensland, where such detention may be indefinite, three Australian states now have extended supervision and detention arrangements, while Victoria is currently drafting legislation to add continued detention to its current extended supervision provisions. This paper examines these measures that aim to excise, quarantine or exclude certain categories or groups of people from society through the lens of liberty rights. Particularly significant within the structure of justification for these measures, it will be suggested, is the status of justice rights. The focus of the paper is upon one recent case, Director of Public Prosecutions (WA) v GTR [2008], wherein key movements occurred in an emerging jurisprudence of security and architecture of control.