Can Charters of Rights Limit Penal Populism?: The Case of Preventive Detention

Monash University Law Review (Forthcoming)

Sydney Law School Research Paper No. 18/44

66 Pages Posted: 6 Aug 2018

See all articles by Andrew Dyer

Andrew Dyer

The University of Sydney Law School

Date Written: August 3, 2018

Abstract

A comparison between United Kingdom (UK) and Australian law concerning preventive detention indicates that the presence of a human rights charter in a jurisdiction can produce improved protections for offenders against penal populism. While there have been many constitutional challenges to Australian indefinite detention and post-sentence preventive detention regimes, only two of these – the attack on the truly extraordinary legislation at issue in Kable v DPP (1996) 189 CLR 51 and Attorney-General v Lawrence (2014) 2 Qd R 504 – succeeded. On the other hand, the UK and Strasbourg courts have required preventive detention to have a reintegrative focus; and in the UK and Europe, unlike in those Australian jurisdictions that lack a charter of rights, the judiciary must review the continuing need for such detention. Therefore, it seems that charters do protect unpopular groups from the excesses of majoritarian democracy, and that claims to the contrary should not be accepted.

Keywords: Preventive detention and human rights, penal populism, Chapter III of the Commonwealth Constitution, constitutional restrictions on preventive detention in Australia, restrictions on preventive detention in Europe, effectiveness of human rights charters, judicial reasoning

JEL Classification: K10, K30

Suggested Citation

Dyer, Andrew, Can Charters of Rights Limit Penal Populism?: The Case of Preventive Detention (August 3, 2018). Monash University Law Review (Forthcoming); Sydney Law School Research Paper No. 18/44. Available at SSRN: https://ssrn.com/abstract=3225579

Andrew Dyer (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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