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

Article excerpt

[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.]


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


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'. …