Commonwealth Legislative Power and 'Non Punitive' Detention: A Constitutional Roadmap

Article excerpt

"Experience should teach us to be more on our guard to protect liberty when the Government's purposes are beneficent. The greatest dangers to liberty lurk in the insidious encroachments by men of zeal, well meaning but without understanding"

Justice Brandeis in Olmstead v United States (1) (US Supreme Court, 1928)

Abstract: In 2004 The High Court handed down a number of decisions concerning detention imposed for purposes allegedly unrelated to punishment. This paper outlines the way the Federal Constitution restricts (and also facilitates) the imposition of "non punitive detention" by our governments. Such laws (as passed by the Federal Legislature) are constitutionally valid provided they can be characterised as falling within a legislative head of power under section 51 of the Constitution. The power to detain for non punitive purposes can be reposed by the Legislature in the either the Executive or Judicial arms of government. Detention by the Executive is non punitive (and therefore does not offend the separation of powers) even though it involves a deprivation of liberty, provided it is imposed for "legitimate non punitive purposes". Legitimacy is in turn determined by reference to the section 51 heads of power. Detention for non punitive purposes by the judicial arm of government is constitutionally valid provided that (i) a "judicial process" is adopted and (ii) (arguably) there is some link (albeit tenuous) with a previous finding of criminal guilt. The continuing existence of the "constitutional immunity" from being detained by other than judicial order identified by the High Court in its 1992 decision in Lim v Minister for Immigration is called into question.


2004 was a very good year for the multifarious proponents of detention imposed for purposes unrelated to punishment (hereafter referred to as "non punitive detention"). (2) In 2004, eight litigants who were subject to some form of non punitive detention appeared in the High Court and in every case they lost. (3) It is possible to discern from this corpus of case law an emerging High Court jurisprudence relating to non punitive detention. This jurisprudence permits both analysis of how our present Constitution facilitates this exercise of power by our governments, (4) as well as speculation as to the restrictions, if any, that the Australian Constitution places upon its exercise.

Significantly, this emerging High Court jurisprudence is largely indigenous: in Australia, governments are untrammelled by limits on their powers which might flow from a Bill of Rights or a separate Charter on political freedoms. (5) The jurisprudence of consanguineous jurisdictions, such as the United Kingdom, Canada, the United States of America and New Zealand, (6) which have served as a traditional point of reference (or point of departure) (7) in the development of the Australian common law, is arguably therefore of limited relevance.

The focus of this article is upon non punitive detention and Commonwealth legislative power under the Constitution. This necessitates putting to one side the (not unimportant) inherent prerogative, or common law powers of the executive. (8) It can be justified however, by acknowledging that in our system of Parliamentary democracy, with its central constitutional notion of parliamentary supremacy, powers to detain for purposes other than punishment almost inevitably (and arguably must always (9)) find their origin in legislation:

"Since the common law knows neither lettre de cachet nor other executive warrant authorizing arbitrary arrest or detention, any officer of the Commonwealth executive who purports to authorise or enforce the detention in custody of such an alien without judicial mandate will be acting lawfully only to the extent that his or her conduct is justified by valid statutory provision" (10) (emphasis added)