Involuntary Detention and the Separation of Judicial Power

Abstract

The power of the Commonwealth Parliament to authorize involuntary detention (that is, detention without the consent of the detainee) by the executive government has fallen for consideration by the High Court in a series of recent cases. The Court has also examined the circumstances in which courts may make orders for detention. The aim of this article is to discuss some of the issues which have arisen in these cases, including those over which there has been apparent disagreement between the Justices of the High Court. It argues for a conceptually coherent approach to detention, which favors substance over form while giving effect to the strict separation of judicial power from legislative and executive power required by the Commonwealth Constitution.

The article considers the nature of the power to order involuntary detention in the context of the separation of powers, and adopts a classification of detention as administrative or judicial based upon whether it amounts in substance to 'punishment'. The article argues that where the nature of the power to detain depends upon the purpose or object of the detention, a proportionality test is necessary to determine whether detention can really be said to be for its asserted purpose, and explores the nature of this inquiry. The article explores the limits of detention by the executive and by the judiciary, including areas of disagreement which emerge from recent cases.

Keywords: separation of powers, detention, constitutional law, Australian Constitutional Law, judicial power, executive power, administrative power, involuntary detention