Imprisonment and the Separation of Judicial Power: A Defence of a Categorical Immunity from Non-Criminal Detention

Gordon, Jeffrey Steven, Melbourne University Law Review

[The fundamental principle that no person may be deprived of liberty without criminal conviction has deteriorated. Despite a robust assertion of the principle by Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration, subsequent jurisprudence has eroded it and revealed stark division amongst the Justices of the High Court. This article clarifies the contours of the disagreement and defends the proposition that, subject to a limited number of categorical exceptions, ch III of the Constitution permits the involuntary detention of a person in custody only as a consequential step in the adjudication of the criminal guilt of that person for past acts. This article proposes a methodology for creating new categories of permitted non-criminal detention and applies that methodology to test the constitutionality of the interim control orders considered in Thomas v Mowbray.]

CONTENTS

I  Introduction
II Legislative Power, Judicial Power and Imprisonment
    A From Which Section Does the So-Called 'Constitutional Immunity'
      from Executive Detention Originate?
         1 Does the Legislative Power of the Commonwealth
           Conferred by Section 51 Extend to Authorising
           Imprisonment Generally?

         2 Does Chapter III Have Any Operation When Parliament
           Enacts a Law Authorising Imprisonment?

         3 Does Chapter III Create a Constitutional Immunity from
           Executive Detention?
           (a) The Dominant View: Punishment and Cognate Terms
           (b) The Correct Approach: Effects and Impacts
           (c) Is 'Immunity' the Correct Characterisation?
           (d) Refining the Expression
    B What is the Nature of the Relationship between Valid Detention
      and the Constitutional Immunity?
    C What is the Typology of the So-Called 'Exceptional Cases'?
        1 Aliens
        2 Quarantine
        3 Mental Illness
        4 Contempt of Parliament
        5 Courts-Martial and Service Tribunals
    D Creation of New Categories
III Contemporary Challenges: Interim Control Orders
IV Conclusion

I INTRODUCTION

The fundamental principle that no person may be deprived of liberty without criminal conviction has deteriorated. Evidence of the deterioration pervades judicial decisions and academic articles. In Al-Kateb v Godwin ('Al-Kateb'), the High Court validated the indefinite detention of a stateless asylum seeker who had been refused entry into Australia yet could not be deported. (1) Hayne J declared as 'open to doubt' the assumption that there is 'only a limited class of cases in which executive detention can be justified.' (2) In Re Woolley; Ex parte Applicants M276/2003 ('Re Woolley'), a case concerning the immigration detention of four Afghan children, McHugh J said that it goes 'too far' to maintain that involuntary confinement can only be achieved as the result of the exercise of judicial power. (3) The Aboriginals Ordinance 1918 (NT), which authorised the removal of Indigenous Australian children to institutions and reserves, (4) was validated in Kruger v Commonwealth ('Kruger'). (5)

Gaudron J held that a law authorising detention is not, of itself, offensive to the separation of judicial power. (6) These arguments hold sway in academe. George Winterton doubted the 'assumption that all involuntary detention (except the recognised exceptions) is necessarily punitive.' (7) Geoffrey Lindell found the suggestion that ch III prevents laws being passed to authorise executive detention 'strained and unconvincing'. (8)

Faced with such trenchant opposition, this article defends a general prohibition of non-criminal detention, subject to a small number of precisely limited exceptions. In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs ('Chu Kheng Lim'), Brennan, Deane and Dawson JJ recognised a constitutional immunity from being imprisoned without conviction. (9) The rationale for the immunity was that involuntary detention is punitive and 'exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt'. (10) In subsequent cases, the High Court has 'dismantled the Chu Kheng Lim opinion, dismissing its rule of constitutional immunity from detention outside the criminal process'. (11) The plain-and-simple denial of the immunity implicates several subsidiary questions, but these can be gathered under an inquiry concerning the proper role of ch III of the Constitution when the federal legislature purports to authorise the involuntary confinement of a person, divorced from the criminal guilt of that person for past acts.

In the cases subsequent to Chu Kheng Lim, no dominant methodology for evaluating non-criminal imprisonment has emerged. In fact, there is nearchaotic division amongst the High Court Justices on every subsidiary issue. Some Justices believe that there is no 'immunity' from non-criminal detention; (12) another believes that an immunity stems from the limited enumeration of legislative power in s 51 of the Constitution; (13) and still others argue that the immunity derives from the strict separation of judicial power embodied by ch III. (14) In addition, there is dispute over the proper role of ch III: some Justices argue that ch III has little or no role, (15) and another retains a substantial role for ch III (but one that does not extend so far as to guarantee an immunity). (16) Any discussion of the separation of judicial power engages the punitive/non-punitive distinction, and whether the operation of ch III is characterised by the prohibition of laws conferring penal powers on non-judicial organs. The Justices who accept the punitive/non-punitive distinction advocate differing approaches to that distinction, (17) and another proposes discarding the distinction altogether. (18) Finally, if it is accepted that there is a constitutional immunity, there is disagreement over precisely how that immunity should be implemented: proportionally (weighing the burden of imprisonment against the pursued governmental objective) (19) or categorically (permitting non-criminal detention only if it falls within a predetermined class of permissible detention). (20)

This article disentangles the jumble of questions. Its project is to re-organise and answer them by asserting that, subject to certain categories of permissible non-criminal detention, ch III permits the involuntary detention of a person only as a consequential step in the adjudication of criminal guilt. It invokes the tradition of the common law and draws from the United States ('US') experience to establish this position. It develops a principled methodology for admitting new exceptional categories, thereby meeting the criticism that a methodology sensitive to both the historical and analytical approaches to judicial power is unworkable and defeats the expectation of consistency. (21) As far as the author's research has disclosed, this article is the first sustained academic defence of a categorical immunity from non-criminal imprisonment.

In the US, there has been a parallel decline of the principle that imprisonment can only be effected via the criminal process. In Padilla ex rel Newman v Bush, Judge Mukasey (later Attorney-General) held that the assumption that indefinite non-criminal confinement is per se unconstitutional 'is simply wrong'. (22) In Hamdi v Rumsfeld ('Hamdi'), the Supreme Court held that the executive could detain a citizen captured on a foreign battlefield and subsequently brought to US soil without engaging the criminal process. (23) Academic commentators are convinced that the criminal process is a poor weapon to combat the threat of terrorism. (24) The notion that enemy combatants must either be criminally charged or released 'is simply inconsistent with US law', because 'we confine persons against their will for reasons other than punishment in a variety of circumstances'. (25) Adherence to the practice of charging or releasing detainees is 'not a realistic response'. (26)

This article tracks the modern Australian doctrine of non-criminal detention. Commencing with Chu Kheng Lim, it argues that while legislative power in s 51 generally authorises non-criminal imprisonment, ch III prohibits any law from effecting involuntary non-criminal confinement unless such confinement falls within a categorical exception: detention for the purposes of determining a person's eligibility to enter Australia; detention for the purposes of preventing and containing the spread of a specific and currently threatening infectious disease; the civil commitment of the mentally ill; detention for contempt of Parliament; and detention resulting from conviction by a court-martial or service tribunal. This article also develops a methodology for admitting new exceptional categories, one that is sensitive to analytical and historical approaches to the concept of judicial power.

II LEGISLATIVE POWER, JUDICIAL POWER AND …

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Publication information: Article title: Imprisonment and the Separation of Judicial Power: A Defence of a Categorical Immunity from Non-Criminal Detention. Contributors: Gordon, Jeffrey Steven - Author. Journal title: Melbourne University Law Review. Volume: 36. Issue: 1 Publication date: April 2012. Page number: 41+. © 2008 Melbourne University Law Review. COPYRIGHT 2012 Gale Group.

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