History shows that governments seeking to protect the state will often do so by restricting the liberty of those persons who are perceived as a threat. At such times, there is a marked shift in the relationship between the judiciary and the executive. This traditionally involves an expansion of executive power so as to order the detention of individuals with a corresponding contraction in the ability of courts to review the exercise of these powers, but it may also involve the courts being required to exercise powers of detention in an extension of their judicial functions. In both instances, the power to detain or control the movements of persons without charging them with any criminal conduct, presents a stark challenge to the very essence of the rule of law. Experience from earlier emergencies has been that altering the balance between the executive and judicial branches in this way, to allow executive detention, amounts to a disproportionate response of little benefit to national security. There are signs, however, that recent attempts at redefining executive and judicial power to enforce new laws restricting individual liberty will not go wholly unchecked by the courts.
The purpose of this article is to assess whether the forms of detention which the Commonwealth Parliament has introduced into Australian law are valid in light of what that separation demands. The issue is one which arises from the face of the law itself since both types of order are made with the involvement of judicial officers — either sitting as a federal court (for COs) or acting in a purely personal capacity (for PDOs).
Date of this Version
Andrew Lynch and Alexander Reilly, "The Constitutional Validity of Terrorism Orders of Control and Preventative Detention" (March 2007). University of New South Wales Faculty of Law Research Series. Working Paper 20.