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Imprisonment and the separation of judicial power: a defence of a categorical immunity from non-criminal detention.

B What is the Nature of the Relationship between Valid Detention and the Constitutional Immunity?

To summarise, the legislative power of the Commonwealth conferred on Parliament by s 51 is plenary and, considered on its terms alone, extends to authorising executive detention. However, the power to imprison a person is incidental to the judicial power of the Commonwealth. Therefore, a law that effects or results in involuntary imprisonment will usually be invalidated because ch Ill requires that the judicial power of the Commonwealth be exercised by courts alone.

The use of the word 'usually' in the last sentence indicates an ambiguity in these propositions. The ch III prohibition is not absolute, and the purpose of this section is to implement ch III's usual invalidation of laws effecting imprisonment. Typically, when a prohibition exists that can be overcome in narrow circumstances, the appropriate jurisprudential tool is the rebuttable presumption. Being a burden-shifting device, it does not provide a substantive answer, but it does furnish a suitable framework of analysis. (168)

In the executive detention context, there are two rebuttable presumptions at play. The first is the presumption of constitutionality, that is, that the burden is on the plaintiff to prove that a law is unconstitutional. The analysis in the foregoing sections shows that this initial presumption is rebutted where a citizen proves that the impugned legislation effects imprisonment. The burden then shifts to the Commonwealth to prove that the legislation does not offend ch III. In this section, a reference to 'the presumption' is a reference to the latter presumption.

The substantive question to be confronted, then, is this: how is the presumption to be rebutted? There are two competing answers. First, the case law discloses what can broadly be called a proportionality or balancing approach. It consists in determining whether the detention is proportionate to a legitimate governmental objective. It has been expressed as whether the detention is 'reasonably necessary' for securing a legitimate governmental objective, (169) or whether it is 'reasonably capable of being seen as necessary' for securing the objective. (170) Another variation on the formula is the 'appropriate and adapted' test (although that phrasing was adopted by Gaudron J in respect of the erroneous s 51 immunity). (171) Leslie Zines observed that 'proportionality would appear to be a useful criterion' when deciding the punitive question. (172) Stephen McDonald also defended a proportionality approach, validating detention that is 'reasonably capable of being seen as necessary, appropriate or proportionate to the fulfilment of a legitimate end unconnected with punishment'. (173) The general proportionality approach weighs imprisonment against the legitimate governmental objective in order to determine whether, in pursuit of the objective, imprisonment is excessively burdensome. It balances 'the relative intensity of the interference with the importance of the aim sought'. (174)

If a court is tasked with balancing the burden of imprisonment against a legitimate governmental objective, it has to ascertain the justification of the imprisonment and the desirability of the governmental objective, attach weights to each, and decide which is weightier. (175) This approach involves a constant reference to background principles and justifications. (176) It is highly fact-specific, requiring balancing in each individual case, and so is not conducive to setting precedent; it places interpretive power in the precedent-following courts. It is well-equipped to deal with situations where a plurality of values is at play and where underlying values are disputed. (177) In the constitutional sphere, it is especially suited to the more fluid norms that require a high degree of adaptability and sensitivity to changing circumstances.

The second methodology, adopted by Brennan, Deane and Dawson JJ in Chu Kheng Lim, relies on categorisation. (178) In contrast to the proportionality approach, categorisation does not permit the court to weigh on a case-by-case basis the relative harms and benefits of imprisonment as compared to the governmental objective. Rather, the question is restricted to whether the detention authorised by the statute falls within a set of preordained categories of permissible detention. Thus, in Chu Kheng Lim, Brennan, Deane and Dawson JJ noted the existing categories (179) and justified the category that was under consideration (the detention of aliens for the purposes of determining their eligibility for entry into Australia). (180)

The categorisation approach prohibits balancing in each case and forbids reference to any background justifications. (181) It places interpretive power in the precedent-setting court, with the lower courts' discretion limited to deciding whether the facts fall within certain 'outcome-determinative lines'. (182) All the fundamental interpretive work is done by the superior court at the outset. (183) It is best equipped to deal with core constitutional values which are constant and generally accepted, usually to the point of consensus. This has been expressed as a requirement of close proximity to deeply embedded constitutional values. (184)

The choice of methodology will therefore depend on the strength of the presumption of invalidity of laws authorising non-criminal imprisonment. By this stage, it should be apparent that the presumption is very strong, one of those 'edifices of extraordinary strength and durability which would take a powerful array of arguments to overcome.' (185) Constitutional doctrine governing non-criminal detention is 'best understood as reflecting a strong presumption that the criminal process is the preferred means for addressing socially dangerous behavior'. (186) The history of non-criminal imprisonment, tracing the development of the Magna Carta, the Petition of Right and the Habeas Corpus Act 1679, as well as the separation of judicial power embedded in Australia's Constitution, all point to freedom from arbitrary imprisonment as a core constitutional assumption that can be overcome only in very limited circumstances. (187)

Moreover, the diversity of the subject matters addressed in s 51 bespeaks a difficulty with a proportionality approach. In advocating a process of 'weighing' the burden of imprisonment against a legitimate governmental objective, a proportionality approach assumes that the burden and the objective are resolvable along a common axis, that is, that there is 'a common metric in the weighing process'. (188) This requires adherence to a conception of value commensurability, so that the interests share some common measure. (189) This is unwise, not only because it makes constitutional adjudication dependent on the truth of a controversial theory in moral philosophy, but also because it 'strip[s] the balancing approach of much of its theoretical motivation.' (190) The proportionality approach is suited when a plurality of various conflicting values are involved, but '[i]f all values are reducible to a common metric, the problem that gave rise to the need for a balancing method dissolves.' (191) Thus, it is difficult to weigh the burden of imprisonment against the multitude of purposes that is suggested by the variety of the heads of legislative power in s 51, and the difficulty and uncertainty surrounding such a task is a formidable prospect for day-to-day judicial decision-making. The importance of the prohibition against arbitrary imprisonment dictates that the relevant balancing be done in advance by the High Court, to ensure that its structural and historical priority is duly maintained.

In reducing various interests to a common scale, the proportionality approach appears surprisingly rudimentary. (192) The interests posed are the individual's against the state's, but '[n]o system of identification, evaluation, and comparison of interests has been developed'. (193) The attendant uncertainty is dangerous because it shows that the proportionality approach is capable of routine manipulation, and that a person may be detained so long as it is good social policy to do so. Leslie Zines, despite expressing support for a proportionality approach, conceded that it was used in A1-Kateb to undermine the ch III immunity itself:
   In weighing the object of the power with the object of Chapter III
   it is clear that the majority gave weight to the former. Rather
   than the invalidity of executive detention being a prima facie
   assumption as suggested above, the reverse seems the case. (194)

This lends some support to an argument that a proportionality approach threatens the idea of constitutional supremacy. (195) Under a proportionality approach, a court's validation of a law 'might only show that the Court and the legislature used the same calculator'. (196) Under a categorical approach, the judiciary holds the political branches to their constitutional duty to refrain from non-criminal imprisonment.

Accordingly, categorisation is the appropriate methodology to rebut the presumption. The suspicion of arbitrary imprisonment is so deeply ingrained in Australia's constitutional narrative that it should not be susceptible to being routinely overridden by governmental interests; rather, it should be categorically protected by the High Court. It is not a fluid constitutional norm, but an assumption upon which our very constitutional architecture is built. Chapter III's prohibition of non-criminal detention cannot evaporate when the government shows that imprisoning a person or class of persons survives an ad hoc balancing of relative social costs and benefits. Indeed, ch III reflects the judgement that the benefits of restrictions on the executive outweigh the costs. (197) It is simply too important to leave to the variations and fluctuations that are sure to follow from a proportionality approach. (198)

C What is the Typology of the So-Called 'Exceptional Cases'?

In Kruger, Gaudron I argued that the recognised exceptions do not fall within precise and confined categories. (199) Gleeson CJ agreed in Vasiljkovic v Commonwealth. (200) This section is devoted to demonstrating the contrary: the recognised exceptions to the ch III immunity are sufficiently precise and confined so as to justify the 'categorical' epithet. The exceptions identified by Brennan, Deane and Dawson JJ in Chu Kheng Lim will be outlined, commencing with the aliens exception itself.

1 Aliens

The existence of this exception was justified in Chu Kheng Lim. To summarise, Brennan, Deane and Dawson JJ proceeded in two steps. First, they appealed to judgments of the Privy Council, House of Lords and High Court, as well as international law and prominent text-writers, to conclude that the power to detain an alien for the purposes of deportation is executive in nature. (201) This established the category. Second, they held that the legislation under consideration was valid because the detention it required and authorised was 'limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered'. (202) This step placed the particular legislation within the established category. Vital to the law's validity was that the detention was seen as ultimately voluntary (a detainee could request removal from Australia, so a failure to request removal was an election to remain imprisoned in Australia). (203) There were also other limiting provisions recognised by Brennan, Deane and Dawson JJ: a statutory upper limit on the length of detention (273 days), a two-month deadline to make an entry application (with removal from Australia upon expiration of the deadline), and removal as soon as practicable if an entry application had been refused (and all avenues of appeal exhausted). (204) These elements sufficiently circumscribed the detention so that it could be reasonably described as necessary for the limited purposes of entry or removal.

2 Quarantine

Section 51(ix) of the Constitution confers legislative power on the Commonwealth Parliament with respect to quarantine, and the exercise of that power resulted in the Quarantine Act 1908 (Cth) ('Quarantine Act'). The Quarantine Act grants broad powers to the executive to take quarantine measures in respect of persons. Section 4(1)(a) sets out the scope of quarantine measures, which includes examination, exclusion, detention, segregation, isolation, treatment and regulation of human beings; s 4(1)(b) restricts the object of such measures to the prevention or control of the introduction, establishment or spread of significantly damaging diseases or pests. Where the Governor-General makes a proclamation in the event of an epidemic under s 2B(1), the Minister may 'give such directions and take such action as he or she thinks necessary to control and eradicate the epidemic, or to remove the danger of the epidemic, by quarantine measures or measures incidental to quarantine'. (205) Alternatively, where the Minister is of the opinion that 'an emergency has arisen that requires the taking of action not otherwise authorised under this Act', he or she
   may take such quarantine measures, or measures incidental to
   quarantine, and give such directions, as he or she thinks necessary
   or desirable for the diagnosis, for the prevention or control of
   the introduction, establishment or spread, for the eradication, or
   for the treatment, of any disease or pest. (206)

Section 12A(2) makes it an offence to fail to comply with any direction given under s 12A(1).

Thus, in the case of an epidemic or emergency--the existence of which depends on the opinion of the executive--the Quarantine Act's posture towards detention is very assertive. Under ordinary circumstances, s 18(1) lists the persons who are 'subject to quarantine', including: every person who is infected with a quarantinable disease or pest; every person who a quarantine officer reasonably suspects is infected with a quarantinable disease or pest; every person who has been in contact with or exposed to infection from any person subject to quarantine; and every person who is ordered into quarantine. Also subject to quarantine is every person who enters Australia unlawfully. (207) A person who is 'subject to quarantine' may be apprehended without warrant by any police officer. (208) Section 35(1) provides that a person may be ordered into quarantine 'whether subject to quarantine or not', so long as the quarantine officer believes that the person is or is likely to be infected with a quarantinable disease or pest. The consequences that follow are set out in s 45(1):

(1) All persons ordered into quarantine shall perform quarantine, and for that purpose may:

(a) be detained on board the vessel or installation;

(b) be detained upon the premises upon which they are found;

(c) be removed to and detained in a quarantine station; or

(d) be removed to and detained in any suitable place or building approved by a quarantine officer (which place or building shall, for the purposes of this Act, be deemed to be a quarantine station);

until released in accordance with this Act or the regulations; and while so detained shall be subject to the regulations regulating the performance of quarantine and the government of quarantine stations.

The first legislative exercise of a quarantine power occurred in the 18th century: Quarantine Act 1710. (209) It prevented persons coming to shore who were on board ships or vessels that originated in places infected with the plague (s I); where a person left a quarantined vessel and came to shore, it authorised 'Persons appointed to see the Quarantine duly performed to compel and in case of Resistance by Force and Violence to compel such Person or Persons to return on board such Ships and there to remain during the Time of Quarantine' (s III); and, once the quarantine had been duly performed, every person and persons on the vessel 'shall be liable to no further Restraint or Detention' (s VII). Blackstone classified offences associated with quarantine as offences 'against the public health of the nation; a concern of the highest importance' (210) and documented the revision of the quarantine legislation during the 18th century. (211)

Even prior to the Quarantine Act 1710, there existed an independent quarantine power in the executive. So much is acknowledged in the statute of 1710, the object of which was 'to oblige Ships coming from Places infected, more effectually to perform their Quarentine [sic]'. (212) The statute was required to strengthen a prior exercise of the royal prerogative, which consisted in 'several Orders' made by the Queen in Council, as well as a 'Royal Proclamation' requiring 'a Quarentine [sic] to be performed by all Ships and Persons coming from Places infected'. (213) In 1684, the prerogative of the Crown to order quarantine was recognised by Lord Jeffreys CJ:
   both by the law of nations, and by the common law of England, the
   regulation, restraint and government of foreign trade and commerce,
   is reckoned 'inter Jura Regalia,' ie is in the power of the king:
   and it is his undoubted prerogative ... (214)

The Lord Chief Justice accepted that 'the king might prohibit his subjects to go or trade beyond the seas in cases of wars or plagues'. (215) As Cox noted, '[w]ith respect to the latter prerogative, it may be observed that the laws of Quarantine are now regulated by statute.' (216)

Acting in concert with the recognition of the prerogative of the Crown to order quarantine is the consistent acknowledgment by courts that quarantine was a legitimate form of detention precluding the issue of habeas corpus. In 1758, Wilmot J (answering questions posed by the House of Lords) said that were the writ to be issued 'of course' (that is, without the need of showing cause), then:
   it would have been suffering this great remedial mandatory writ to
   have been used as an instrument of vexation and oppression; it
   would have become a weapon in the hands of madmen, and of
   dissolute, profligate and licentious people, to harass and disturb
   persons acting under the powers which the law had given them.--One
   most frightful instance occurs: the case of a crew performing
   quarantine.--If this writ were to issue of course, it might bring
   back pestilence and death along with it. (217)

In 1818, Lord Eldon LC cited this with approval, noting that if it were otherwise, 'the most serious mischiefs might ensue; supposing, for example, that they were confined on board of ship subject to quarantine.' (218)

Therefore, historically the power to order detention in the performance of quarantine was seen as a prerogative of the Crown, until legislative enactment displaced exercise of the prerogative in 1710; and so it falls within the legislative power to authorise quarantine detention. However, history also shows abuses of the quarantine power, (219) and so detention authorised in the performance of quarantine must be strictly circumscribed. By the beginning of the 19th century, the general English practice of quarantining every inbound vessel had been discarded in favour of a policy to detain only where there was communicable disease aboard during the voyage, or where such existed on arrival. (220) Thus, quarantine legislation will be valid if the detention it requires and authorises is reasonably capable of being seen as necessary for preventing and containing the spread of a specific and currently threatening infectious disease.

This is not the place to undertake a sustained analysis of the validity of the Quarantine Act 1908 (Cth), but a few observations are in order. Diseases are designated by proclamation as 'quarantinable diseases', and are relatively few in number, (221) suggesting that the legislation is directed to those specific diseases only. The width of the powers conferred by the Quarantine Act, however, is cause for concern. In particular, the only formal requirement of an order into quarantine is that it must be in writing, (222) although it should be noted that a person ordered into quarantine may seek an independent medical assessment (223) and must be informed of this right by the quarantine officer. (224) In order to strictly adhere to the required purpose of preventing and containing the spread of a specific and currently threatening infectious disease, the Quarantine Act should require the order to specify the quarantine location, the date and time when the quarantine will begin and end, and a statement setting out scientific principles and evidence of exposure or infection that form the basis of the order. (225) Finally, the Quarantine Act contains no temporal hint in respect of release: s 46 provides that '[w]hen quarantine has been performed' a person 'shall forthwith be released from quarantine'; and s 35B provides that a person ordered into quarantine by reason of an infectious disease 'must be released from quarantine once the person receives a certificate of release from a quarantine officer'. No objective statutory guidance is given as to when quarantine has been performed or when an officer must issue a certificate of release, and there is no entitlement to periodic review. A person's continued detention is entirely at the discretion of the executive. (226)

3 Mental Illness

The civil commitment of the mentally ill is governed by the states. (227) In the states, where the separation of judicial power is not constitutionally entrenched, the limitation on state legislative power that derives from ch III of the federal Constitution is correspondingly much weaker. Accordingly, the implementation of a regime of involuntary detention and treatment in mental health facilities is largely left to the state political process. That is not to say that the federal government could not, conformably with ch III, institute a regime of civil commitment of the mentally ill (assuming, of course, the existence of the necessary legislative power). (228) The historical legitimacy of the power to imprison in such circumstances lies in the government's capacity as parens patriae, as well as the consistent historical recognition that mental illness precludes the issue of habeas corpus.

4 Contempt of Parliament

Section 49 of the Constitution provides:
   The powers, privileges, and immunities of the Senate and of the
   House of Representatives, and of the members and the committees of
   each House, shall be such as are declared by the Parliament, and
   until declared shall be those of the Commons House of Parliament of
   the United Kingdom, and of its members and committees, at the
   establishment of the Commonwealth.

The legislative power conferred by s 49 was not exercised until the Parliamentary Privileges Act 1987 (Cth). Section 5 continues the powers, privileges and immunities of each House 'as in force under section 49 of the Constitution immediately before the commencement of this Act'. Section 7(1) declares a power of each House to 'impose upon a person a penalty of imprisonment for a period not exceeding 6 months for an offence against that House determined by that House to have been committed by that person'. Section 4 defines 'an offence against a House' as 'an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member's duties as a member'.

In 1955, the Speaker of the House of Representatives issued warrants ordering the imprisonment of Fitzpatrick and Browne for three months on account of them 'being guilty of a serious breach of privilege'. (229) The full High Court refused the applications of Fitzpatrick and Browne for writs of habeas corpus. Dixon CJ delivered the judgment of the court, holding that in the UK 'it is for the courts to judge of the existence ... of a privilege, but ... for the House to judge of the occasion and manner of its exercise'; (230) and one of the most important privileges of the House of Commons is the privilege of committing for contempt by warrant stating generally that a contempt had taken place. (231) As a warrant 'would clearly be sufficient if it had been issued by the Speaker of the House of Commons', so it was sufficient by the language of s 49. (232)

The warrants were challenged on a separation of powers ground, namely that
   the power exercised by resolving upon the imprisonment of two men
   and issuing a warrant to carry it into effect belonged to the
   judicial power and ought therefore not to be conceded under the
   words of s 49 to either House of the Parliament. (233)

To counter this, Dixon CJ merely observed that 'in unequivocal terms the powers of the House of Commons have been bestowed upon the House of Representatives', and 'a general view of the Constitution and the separation of powers is not a sufficient reason for giving to these words, which appear to us to be so clear, a restrictive or secondary meaning which they do not properly bear'. (234) Dixon CJ also noted the historical and analytical approaches to judicial power, and the potential of those conceptions to diverge:
   throughout the course of English history there has been a tendency
   to regard [the House of Commons'] powers as not strictly judicial
   but as belonging to the legislature, rather as something essential
   or, at any rate, proper for its protection. This is not the
   occasion to discuss the historical grounds upon which these powers
   and privileges attached to the House of Commons. It is sufficient
   to say that they were regarded by many authorities as proper
   incidents of the legislative function, notwithstanding the fact
   that considered more theoretically--perhaps one might even say,
   scientifically--they belong to the judicial sphere. (235)

Had s 49 been absent from the Constitution, the challenge to the House's power to commit for contempt should have succeeded. The power to adjudicate upon a complaint of contempt is not necessary for the exercise of Parliament's functions and can be performed with the assistance of the judiciary. (236) The only reason that the House of Commons enjoys the power to punish for contempt is 'by virtue of ancient usage and prescription; the lex et consuetudo Parliamenti'. (237) It follows that, without s 49, the Commonwealth Parliament may not have had any historical analogy because 'the Legislative Assemblies in the British Colonies have, in the absence of express grant, no power to adjudicate upon, or punish for, contempts committed beyond their walls'. (238) With no relevant custom to fall back on, and with unanimous analytical recognition that the power is judicial, ch III would require punishment for contempt to be meted out by the courts alone. (239)

5 Courts-Martialand Service Tribunals

Courts-martial or service tribunals routinely punish members of the defence forces for breaches of military discipline, issuing declarations of guilt and sentences of imprisonment. Standing outside the requirements of ch III and yet purporting to convict individuals of criminal guilt, these tribunals have vexed the High Court on several occasions because they appear to fly in the face of Chu Kheng Lim's classification of the adjudgment and punishment of criminal guilt as exclusively judicial. All of the challenges brought to the High Court have a common posture: a member of the defence forces has been charged with or convicted of an offence (or offences) before a court-martial or service tribunal and seeks an order in the nature of habeas corpus or prohibition and a declaration that the legislation conferring jurisdiction on the court-martial or service tribunal is invalid.

Two themes have emerged from the High Court's rejection of the separation of powers objection. The first is that a military and naval justice system is necessary and essential to the defence forces. In R v Bevan; Ex parte Elias and Gordon ('R v Bevan'), Starke l held that s 51(vi) of the Constitution together with ss 69 and 51(xxxix) are 'legislative provisions special and peculiar to' the armed forces 'in the way of discipline and otherwise, and indeed the Court should incline towards a construction that is necessary, not only from a practical, but also from an administrative point of view'. (240) In R v Cox; Ex parte Smith, Dixon J held '[t]o ensure that discipline is just, tribunals acting judicially are essential to the organization of an army or navy or air force'. (241) However, such tribunals 'do not form part of the judicial system administering the law of the land.' (242) In Re Tracey; Ex parte Ryan ('Re Trace),'), Mason CJ, Wilson and Dawson JJ noted that even though s 51(vi) does not expressly provide for enacting rules to regulate the armed forces, 'so much is necessarily comprehended by the first part of s 51(vi) for the reason that the naval and military defence of the Commonwealth demands the provision of a disciplined force or forces'. (243) Notwithstanding that s 51(vi) is expressly subject to ch III, 'the proper organization of a defence force requires a system of discipline which is administered judicially, not as part of the judicature erected under Ch III, but as part of the organization of the force itself'. (244) Similarly, Brennan and Toohey JJ held that the creation of a military jurisdiction to discipline army personnel is an 'essential concomitant' of the power to establish the permanent armed forces of the Commonwealth. (245) In White v Director of Military Prosecutions ('White'), Gummow, Hayne and Crennan JJ recognised that military and naval justice systems are directed to the maintenance of 'the defining characteristic of armed forces as disciplined forces organised hierarchically.' (246)

The second theme is the High Court's heavy reliance on history for the validation of military tribunals outside the requirements of ch III. The significance of history is that it 'forms part of the context relevant to the construction of the Constitution and, in particular, to an understanding of the relationship between s 51 (vi) and Ch III'. (247) It was not until Re Tracey that the historical ground was thoroughly traversed. Mason CJ, Wilson and Dawson JJ acknowledged that 'the pre-1900 legislative history of the power of courts-martial to try members of the forces for civil offences is relevant to the consideration of the scope of s 51(vi).' (248) Brennan and Toohey JJ extensively reviewed the history of courts-martial (249) and considered that, by the time of federation, the statutory encapsulation of the 'scope of naval and military law and of the special jurisdictions to enforce that law ... reflected the resolution of major constitutional controversies.' (250) They concluded that 'the creation of a military jurisdiction to discipline army personnel has been regarded since the first Mutiny Act to be the essential concomitant of the raising and keeping of a standing army'. (251) Thus, history and established practice have placed the execution of military justice by military authorities outside ch III, and '[h]istory and necessity combine to show that courts-martial and other service tribunals, though judicial in nature and though erected in modern times by statute, stand outside the requirements of Ch III'. (252) In White, Gummow, Hayne and Crennan JJ held that
   [t]o attribute to the presence in the Constitution of Ch IIIa
   rejection of service tribunals ... would be to prefer 'abstract
   reasoning alone' ... to an appreciation of the content of 'the
   judicial power of the Commonwealth' which must have been
   universally understood in 1900. (253)

These two themes of necessity and history have legitimised courts-martial despite the strong similarity between the power exercised by courts-martial and judicial power. In R v Bevan, Starke J expressed this similarity by saying that courts-martial exercise 'judicial power' but not 'the judicial power of the Commonwealth', the phrase used in ch III. (254) Mason CJ, Wilson and Dawson JJ adopted this distinction in Re Tracey and said that '[t]here has never been any real dispute' over whether a court-martial exercises judicial power; rather, '[t]he question is whether it is exercising the judicial power of the Commonwealth under Ch III of the Constitution'. (255) They also thought that 'no relevant distinction can, in our view, be drawn between the power exercised by a service tribunal and the judicial power exercised by a court.' (256) Brennan and Toohey JJ relied on English authority holding that courtsmartial exercise judicial power, but 'the imposition of punishments by service authorities as for the commission of criminal offences in order to maintain or enforce service discipline has never been regarded as an exercise of the judicial power of the Commonwealth.' (257)

The most recent case, Lane v Morrison, (258) both affirmed the High Court's heavy reliance on history and cast doubt upon its previous assurance that the power exercised by a court-martial is indistinguishable from the judicial power exercised by a court. In 2006, in response to human rights concerns with the existing system of service tribunals, Parliament created the Australian Military Court ('AMC') with a view to strengthening the independence of the defence force's disciplinary decision-making. The AMC was to perform the disciplinary functions previously entrusted to service tribunals, but, unlike service tribunals, the AMC's decisions were not subject to confirmation or review within the defence force's chain of command. This was to ensure that penalties were imposed upon members of the defence forces by an independent and impartial tribunal. It was this distinguishing feature that took the AMC out of the 'historical stream' (259) to which courts-martial and service tribunals belonged, and upon which the High Court struck down the legislation that conferred jurisdiction.

French CJ and Gummow J took a historical approach, surveying the legislative history back to 1866 and holding that 'the AMC was designed to make a break' with the traditional location of courts-martial within the chain of command. (260) This break with tradition made the legislation 'vulnerable to the attack now successfully made upon the validity of the AMC.' (261) On the other hand, Hayne, Heydon, Crennan, Kiefel and Bell JJ preferred to take a largely analytical approach, holding that the feature of courts-martial setting them apart from the exercise of the judicial power of the Commonwealth was that '[t]he decisions of courts-martial were not "definitive" of guilt; the punishments awarded by courts-martial were subject to confirmation or review.' (262) This robbed the power exercised by courts-martial of finality and authoritativeness, which are crucial to an analytical perspective of judicial power:
   Courts-martial were convened only by order from within the chain of
   command; conclusions of guilt and determinations of punishment were
   subject to review or confirmation within that chain of command. A
   court-martial did not make a binding and authoritative decision of
   guilt or determination of punishment. A court-martial did not
   enforce its decisions. Enforcement of any decision, other than
   acquittal of the accused, depended upon the outcome of review of
   the decision within the chain of command. (263)

   a central purpose of the creation of the AMC was to have the new
   body make binding and authoritative decisions of guilt and
   determinations about punishment which, without further intervention
   from within the chain of command, would be enforced. (264)

It followed that the AMC was to exercise the judicial power of the Commonwealth and yet was not constituted in accordance with ch III. (265) This was sufficient to prove its invalidity.

The central proposition of Lane v Morrison is that a service tribunal will not exercise the judicial power of the Commonwealth, and will therefore be supported by s 51(vi), only if it is a part of the chain of command, that is, if it is a part of the very entity whose individual members it purports to discipline. Since a place in the chain of command is necessary to the service tribunal's validity, it follows that s 51(vi) does not support a 'parallel' court system located outside both the defence force and the federal judiciary contemplated by ch III. In the words of French CJ and Gummow J, s 51(vi) does not support the existence of a system of 'legislative courts' akin to the art I tribunals in the US. (266) Hayne, Heydon, Crennan, Kiefel and Bell JJ, in offering a distinguishing analytical feature of the power exercised by courts-martial, placed Lane v Morrison in tension with the earlier case Re Tracey, where a majority of the High Court failed to discern any theoretical difference between the respective powers of service tribunals and courts. (267)

A related aspect of the tension between Re Tracey and Lane v Morrison is the latter case's disavowal of the distinction between 'judicial power' and 'the judicial power of the Commonwealth', first suggested by Starke J in R v Bevan and later adopted by a majority in Re Tracey. In Lane v Morrison, French CJ and Gummow J held that the distinction ought to be discarded because 'the only judicial power which the Constitution recognises is that exercised by the branch of government identified in Ch III'; (268) and Hayne, Heydon, Crennan, Kiefel and Bell JJ stated that the distinction distracted from, and did not assist in answering, the relevant constitutional question. (269) Coupled with Kirby J's strident criticism of the distinction in White, (270) it can now safely be regarded as officially discarded.

D Creation of New Categories

Chapter III 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. (271) The fundamental purpose of the separation of judicial power is to prevent arbitrary imprisonment at the will of the political branches. (272) Scalia J recognised in Hamdi:
   To be sure, certain types of permissible noncriminal
   detention--that is, those not dependent upon the contention that
   the citizen had committed a criminal act--did not require the
   protections of criminal procedure. However, these fell into a
   limited number of well-recognized exceptions--civil commitment of
   the mentally ill, for example, and temporary detention in
   quarantine of the infectious. (273)

If the legislature attempts to authorise, outside the ordinary procedures of the criminal law, the involuntary detention of a person, then a rebuttable presumption of unconstitutional detention arises. This presumption can be overcome by proving that the detention falls within one of the traditional categories: detention for the purposes of determining a person's eligibility to enter Australia; detention for the purposes of preventing and containing the spread of a specific and currently threatening infectious disease; civil commitment of the mentally ill; detention for contempt of Parliament; and detention resulting from conviction by a court-martial or service tribunal.

Freedom from arbitrary detention is one of the most fundamental aspects of the system of justice in Australia, and for this reason the exceptions to the ch III prohibition are few and strictly defined. Courts must be very slow to recognise new categories of cases in which non-criminal detention is permitted. However, categories can rot with age. A category may no longer align with the underlying constitutional values that it was originally designed to protect. (274) Courts must be sensitive to the possibility of a novel category of non-criminal detention arising. This section will consolidate some themes of the existing categories and develop a response to the possibility that a new exceptional category may be identified. Broadly speaking, a new exceptional category will be admitted if history and necessity combine to show that a specific kind of detention may be authorised other than by the exercise of criminal jurisdiction. (275)

It may be that there are some categories of non-criminal detention that enjoy the imprimatur of history but have not yet been specifically identified or discussed in the case law. For a historical analysis to weigh in favour of a 'new' category, it must indicate that the power to order the particular species of detention has traditionally been viewed as legitimately non-judicial. This will be done if history discloses that detention has been perceived as ancillary or incidental to legislative or executive power. To take the logical inverse of Kitto J's statement in R v Davison, where the action to be taken had come by 1900 to be so consistently regarded as peculiarly appropriate for legislative or executive performance, then the power to take that action, even though judicial in appearance, will be within the concept of executive or legislative power conferred by chs I and II of the Constitution. (276)

The aliens, quarantine and military justice categories all exhibit this historical or traditional association with executive or legislative power. In Chu Kheng Lim, Brennan, Deane and Dawson JJ were at pains to identify the consistent recognition that the power to detain an alien for the purposes of entry or deportation is incidental to, and takes its character from, the executive powers to exclude, admit and deport. (277) The variety and status of the sources that Brennan, Deane and Dawson JJ referred to are revealing. Thus, the judgment of 'a strong Judicial Committee of the Privy Council', which in turn referred to Vattel, establishes the traditional position of international law that the executive power to exclude or expel an alien is an incident of territorial sovereignty. (278) Brennan, Deane and Dawson JJ cite Blackstone, who said, 'it is left in the power of all states, to take such measures about the admission of strangers, as they think convenient'; (279) and Chitty, who pointed out, 'the Crown, even at common law, and by the law of nations ... possesses a right to order [aliens] out of the country, or prevent them from coming into it, whenever his Majesty thinks proper.' (280) Similarly, as noted above, the power of quarantine before 1710 was seen as exclusively executive in character, but was subsequently regulated by statute. Finally, the ability of the legislature to institute military tribunals to discipline members of the armed forces dates to 1689 (the first Mutiny Act passed in the aftermath of the Glorious Revolution). (281)

Two points should be made about the required historical analysis. First, the historical practice must be continuous, or at least, it must not have fallen into disuse or been consciously discarded. Thus, it is not possible to resurrect imprisonment for the non-payment of a contractual debt, because in 1869 Parliament provided that 'no person shall ... be arrested or imprisoned for making default in payment of a sum of money'. (282) Second, it is not sufficient to prove the mere historical existence of the species of non-criminal imprisonment. The historical material must disclose not only the bare fact of exercise of the power of detention, but also the historical recognition of the necessity of the imprisonment for the exercise of the executive or legislative power. For example, there is ample historical evidence for the traditional view that a system of military justice is necessary for the maintenance of order and discipline in the armed forces. Lord Loughborough said in 1792:
   The army being established by the authority of the Legislature, it
   is an indispensable requisite of that establishment that there
   should be order and discipline kept up in it, and that the persons
   who compose the army, for all offences in their military capacity,
   should be subject to a trial by their officers. That has induced
   the absolute necessity of a mutiny act accompanying the army ... It
   is one object of that act to provide for the army; but there is a
   much greater cause for the existence of a mutiny act, and that is,
   the preservation of the peace and safety of the kingdom: for there
   is nothing so dangerous to the civil establishment of a state, as a
   licentious and undisciplined army; and every country which has a
   standing army in it, is guarded and protected by a mutiny act.

As noted above, the High Court has consistently cited the necessity of a military justice system existing outside the ch III judiciary. (284)

In some instances there may be historical precedent acknowledging the fact that a traditional power of non-criminal imprisonment is not necessary for the executive or legislative function. In Kielley v Carson, (285) notwithstanding the House of Commons' power to punish for contempt, Parke B denied the same power to the House of Assembly of Newfoundland. The Commons' power to punish for contempt is a peculiar privilege that exists only 'by virtue of ancient usage and prescription; the lex et consuetudo Parliamenti' (286) and is 'by no means essentially necessary for the exercise of its functions by a local Legislature'. (287) Of course, explicit constitutional authorisation trumps any contrary tradition. (288)

This leaves the situation where a proposed category of detention is completely novel in that it enjoys no substantive historical support. In such a case the new category can be admitted in one of two ways. (289) First, it will be admitted if it is strictly necessary to achieve a vital and urgent governmental objective. The question is whether that objective can be achieved in any way without resorting to non-criminal imprisonment. Where, for example, a state of total war imperils the Constitution itself, it is conceivable that s 51(vi) can expand to contemplate involuntary detention. In such a case, ch III would not vanish, but its protections may weaken. Otherwise, where it is possible that the power to imprison can be conveniently achieved via the criminal law, then that is what ch III requires. An analogous point was made by Parke B in Kielley v Carson, saying that the functions of a legislature can be 'well performed' without the 'extraordinary power' (290) of 'punishing any one for past misconduct as a contempt of its authority'. (291) That power is best left to the 'ordinary tribunals'. (292)

Second, a new category might be admitted if it is very closely analogous to an existing category and shares the same rationale. If this process of reasoning is to succeed, the analogy must be very close indeed. Consider, for example, the claim that the continued indefinite detention, after expiration of sentence, of persons convicted with sexual offences is analogous to the civil commitment of the mentally ill. Despite an apparent coincidence of rationales (protection of the community), the analogy must be tightened if it is to succeed. The recognised exception of civil commitment of the mentally ill exists because the criminal law is unintelligible when applied to those who are dangerous and yet lack the capacity to form the requisite mental states. In the case of a dangerous sex offender whose release is imminent, if the notion of a 'guilty mind' can be given content, then it is impermissible to detain beyond sentence. A conviction for a criminal offence acknowledges legal culpability and assumes that the offender is not mentally ill. In order to invent novel categories by analogical reasoning, the analogy must be strong. The stringency of the methods for admitting novel categories of detention is consistent with the fundamental status of the freedom from arbitrary detention.

It is hoped that the above offers a principled approach to the circumstances of permissible non-criminal detention. Christos Mantziaris has argued:
   the interplay of historical and analytical approaches defeats the
   expectation of consistency. New forms of decision-making might
   qualify as analogous or 'ancillary' to historical examples of
   judicial power, but fail the analytical test. Older forms of
   decision-making might tall within the historical concept of
   judicial power, but be excluded from the judicial power of the
   Commonwealth because they fall into a recognised exception (for
   example, military justice) ... (293)

He contends that this invites an 'inconsistent use of the historical and analytical approaches to the concept of "judicial power"'. (294) No doubt the interplay of the historical and analytical approaches to 'judicial power' is complicated, but it is necessarily so. For one thing, the historical and analytical approaches are not mutually exclusive. The concept of 'judicial power' is a human invention, and so any 'purely' analytical approach must have a historical ancestor. But further, the expectation of consistency is preserved because the basic thesis of this article can be succinctly stated (295) and is closely moulded to Australia's core constitutional commitments.


The prevailing political climate inevitably strains existing categories of permissible non-criminal detention. The government's response to a person or class of persons it perceives as threatening will invariably include an assertion of power to detain outside the criminal process. Terrorism is an exemplary challenge for modern constitutional democracies committed to the separation of powers. In the 19th century, Dicey posed a hypothetical to illustrate that the authority of judges 'cuts down the discretionary powers of the Crown' and 'prevents the English government from meeting public danger by measures of precaution which would as a matter of course be taken by the executive of any continental country':
   Suppose, for example, that a body of foreign anarchists come to
   England and are thought by the police on strong grounds of
   suspicion to be engaged in a plot, say for blowing up the Houses of
   Parliament. Suppose also that the existence of the conspiracy does
   not admit of absolute proof. An English Minister, if he is not
   prepared to put the conspirators on their trial, has no means of
   arresting them, or of expelling them from the country. In case of
   arrest or imprisonment they would at once be brought before the
   High Court on a writ of habeas corpus, and unless some specific
   legal ground for their detention could be shown they would be
   forthwith set at liberty. (296)

Things have changed since Dicey wrote those words in 1885. Few would now regard that as a permissible constitutional position. Almost every academic article dealing with non-criminal detention in the last decade commences with a narrative of the terrible events of September 11, 2001, and the gathering consensus is that nations like the UK, US and Australia possess the constitutional tools necessary to thwart nascent terrorist plots where the available evidence will not and may never secure a criminal conviction. Adhering to Dicey's absolute position, according to one scholar, 'is not a realistic response'. (297)

In Thomas v Mowbray, (298) the High Court upheld the validity of div 104 of the Criminal Code Act 1995 (Cth) sch ('Criminal Code'), which authorised the Federal Court of Australia, the Family Court of Australia and the Federal Magistrates Court to make 'interim control orders' in relation to a person if the court was satisfied on the balance of probabilities that an order would 'substantially assist in preventing a terrorist act' (299) and was 'reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act'. (300) A 'terrorist act' was defined as an action or threat of action of specified kinds which is done with the intention of 'advancing a political, religious or ideological cause' and with the intention of 'coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country' or of 'intimidating the public or a section of the public'. (301)

Section 104.5(3) catalogued the various 'obligations, prohibitions and restrictions' that the court may impose by a control order, including: being at specified areas or places; leaving Australia; communicating or associating with specified individuals; accessing or using telecommunication or other technology; possessing or using specified articles or substances; and carrying out specified activities (including in respect of the person's work or occupation). Section 104.5(3) also permitted the imposition of requirements that the person: remain at specified premises between specified times each day or on specified days; wear a tracking device; report to specified persons at specified times and places; allow himself or herself to be photographed; allow fingerprints to be taken; and participate in specified counselling or education.

Although placed in the Criminal Code, control orders are preventive, and may be imposed without contemplation of a criminal trial at all (indeed, the standard of proof adopted in div 104 is the civil standard). (302) Among the various ch III issues raised by div 104, a majority of the High Court summarily rejected the submission that the power to impose restrictions on liberty by a control order exists only as an incident of the declaration and punishment of criminal guilt. That is because control orders merely impose a restraint on liberty rather than a wholesale deprivation. Gleeson CJ held that '[i]t may be accepted that control orders may involve substantial deprivation of liberty, but we are not here concerned with detention in custody'. (303) The restraints that div 104 enabled were more appositely compared to apprehended violence orders. The Chief Justice thought that it is 'too broad' to say that restraints on liberty (as distinct from full-blown detention in custody) exist only as an incident of adjudging and punishing criminal guilt. (304) Similarly, Gummow and Crennan JJ refused to transmute the ch III prohibition into the control order context: '[d]etention in the custody of the State differs significantly in degree and quality from what may be entailed by observance of an interim control order'. (305) Callinan J agreed generally with Gummow and Crennan JJ, (306) adding that div 104 'makes and implies the usual indicia of the exercise of judicial power'. (307) Heydon J agreed with Gleeson CJ, Gummow and Crennan JJ, and Callinan J. (308)

Only Kirby J (in dissent) was of the opinion that div 104 had the potential to effect 'virtual house arrest'. (309) Christos Mantziaris observed that it is possible to 'imagine a set of control orders with prohibitions and restrictions so onerous as to amount to constructive detention'. (310) It is hard to disagree with this view, especially given that s 104.5(3)(c) expressly authorises 'a requirement that the person remain at specified premises ... on specified days'. The Constitution is concerned with substance and not mere form, (311) and Blackstone counts house arrest as imprisonment; (312) the phrase 'detention in custody by the State' aptly includes a command from the government to remain in one's house for some days. The phrase 'in custody' has been given a liberal interpretation in the US, where persons not within the physical control of the government have been held to be 'in custody' for the purposes of habeas corpus. (313)

Assuming, then, that div 104 authorises imprisonment outside the criminal process, a rebuttable presumption of invalidity arises. The majority in Thomas v Mowbray offered some historical analogies to suggest that control orders are not entirely novel to the judicial function: binding over orders, the writ of supplicavit, apprehended violence orders, bail and sentencing. (314) However, the majority also conceded the limitations of the analogies that they tendered. Gleeson CJ remarked that they were 'not exact', (315) and Gummow and Crennan JJ said that the historical considerations did not 'furnish any immediate analogy to the modern legislative regime ... now under challenge'. (316) Kirby J's analysis is most persuasive:
   Each of the propounded analogies is distinguishable from the orders
   for which div 104 provides. Each is decided on the basis of the
   past conduct of the person to be subject to the order and each is
   directed against what that particular person might do in the
   future. They are not directed, as orders under div 104 may be, at
   what third parties not subject to the order might do.

   In the case of bail proceedings, the court may consider the
   protection and welfare of the community. However, it will only do
   so having regard to the nature and seriousness of the offence with
   which the accused is charged with having committed and any other
   offences that may be taken into account. The court may only
   consider possible future offences in defined circumstances. The
   protection of the community is only one of a great number of
   otherwise strict and ascertainable criteria to be considered in
   bail proceedings. It is not the only factor. (317)

It may be added that the analogy to bail and sentencing is plainly inadequate because bail is imposed as a consequential step in the adjudication of criminal guilt, and 'at the point of sentencing, liability has already been determined as a result of a judicial process which has involved the adjudication of criminal guilt.' (318)

Since the control orders envisaged by div 104 enjoy no substantive historical support, they will be constitutionally valid only if they are strictly necessary or if they are very closely analogous to an existing category of permitted non-criminal detention. As regards strict necessity, the importance of protecting the public from a terrorist act is undeniable. But given the stringency of the obligations, prohibitions and restrictions envisioned by s 104.5(3), it is not self-evident that house arrest is really necessary to prevent a terrorist act. Presumably, detention is truly necessary to prevent a terrorist attack only where an attack is imminent or near certain, that is, where a person is already criminally liable for inchoate offences such as attempt or as an accomplice, conspirator or principal. In such a case, the criminal law offers a sufficient mechanism by which a suspect ought to be detained. This lends support to the argument that div 104 was inserted in pt 5.3 of the Criminal Code, under the heading 'Terrorism', in order to circumvent the criminal process altogether. As Lynch and Reilly argue, if the court is satisfied on the balance of probabilities that making a control order would substantially assist in preventing a terrorist act, then surely the same evidence would ground criminal liability under the 'very wide preparatory offences' in divs 101-3. (319) An argument of strict necessity therefore fails.

The final option is to find an analogy in the pre-existing categories. The most promising candidate for analogy is the civil commitment of the mentally ill, because it exists for the protection of the community from potentially dangerous individuals. This analogy, however, is unsound. Civil commitment of the mentally ill is permitted because the mentally ill will never be criminally responsible. They lack the requisite intent and are incapable of being deterred from future criminal conduct. Accordingly, not being amenable to the criminal justice system, and posing a danger to society, they are held to receive proper treatment and rehabilitation. On the other hand, presumably a person the subject of a control order is capable of being held criminally guilty and is capable of being deterred. For this reason, the analogy is unreliable.

It follows that, insofar as div 104 purports to authorise constructive detention or house arrest, it is invalid. It is certainly arguable that s 104.5(3)(c) can be read down to preclude the possibility of constructive detention, or that it is severable. If severed, it is similarly arguable that as a matter of statutory construction div 104 does not authorise imprisonment. These questions are beyond the scope of this article. It is also beyond the scope of this article to determine whether ch III is engaged by restrictions on liberty which amount to something less than constructive imprisonment. (320) At the very least, s 104.5(3)(c) is invalid because it invests courts with the jurisdiction to make these curious control orders, which purport to authorise non-criminal imprisonment and are foreign to Australia's common law heritage.


Imprisonment is a civil death reflecting society's judgement that a person is not entitled to liberty. (321) The decision to imprison must be cautious and considered, providing the full panoply of protections of the criminal law. There is a limited number of narrow exceptions to this rule, and courts should be slow to create new exceptional categories. That is because the government must treat those under its jurisdiction 'with the respect and dignity that adult members of the community claim from each other.' (322) Necessarily, even the narrow exceptional categories run afoul of this principle. That is why those in immigration detention often protest that '[w]e have not committed a crime' and that '[w]e are not criminals'. (323)

Imprisonment almost always accompanies a judgment of criminal guilt, and as the latter forms a core part of judicial power, so any attempt by the legislature or executive to detain by circumventing the criminal process should be prima facie invalid. The fact of non-criminal imprisonment raises a rebuttable presumption against the validity of that confinement, which may be overcome by proving that a person's detention falls within a categorical exception. Underlying objections to the categorical approach is a conviction that the criminal law is unwieldy, unrealistic, and not appropriate to meet the security challenges of the 21st century. But, as Gummow J in Al-Kateb (324) and Scalia J in Hamdi (325) amply demonstrated, a categorical approach is not only workable but also required under our shared constitutional traditions.

(1) (2004) 219 CLR 562.

(2) Ibid 648 [258].

(3) (2004) 225 CLR 1, 24 [57].

(4) Aboriginals Ordinance 1918 (NT) s 6.

(5) (1997) 190 CLR 1.

(6) Ibid 110.

(7) George Winterton, 'The Separation of Judicial Power as an Implied Bill of Rights' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (Federation Press, 1994) 185, 192-3.

(8) G J Lindell, 'Recent Developments in the Judicial Interpretation of the Australian Constitution' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (Federation Press, 1994) 1, 35 n 136.

(9) (1992) 176 CLR 1, 27-9.

(10) Ibid 27.

(11) Katherine Nesbitt, 'Preventative Detention of Terrorist Suspects in Australia and the United States: A Comparative Constitutional Analysis' (2007) 17 Boston University Public Interest Law Journal 39, 51.

(12) Al-Kateb (2004) 219 CLR 562, 648-9 [258] (Hayne J); Re Woolley (2004) 225 CLR 1, 24 [57] (McHugh J).

(13) Kruger (1997) 190 CLR 1, 110-11 (Gaudron J).

(14) Chu Kheng Lim (1992) 176 CLR 1, 27-9 (Brennan, Dearie and Dawson JJ); Fardon v A-G (Qld) (2004) 223 CLR 575, 611-12 [77]-[80] (Gummow J)('Fardon').

(15) Chu Kheng Lim (1992) 176 CLR 1, 55 (Gaudron J); Kruger (1997) 190 CLR 1, 110 (Gaudron J); Al-Kateb (2004) 219 CLR 562, 648-9 [258] (Hayne J).

(16) Chu Kheng Lim (1992) 176 CLR 1, 65-7 (McHugh J); Re Woolley (2004) 225 CLR 1, 24-6 [57]-[61] (McHugh J).

(17) Al-Kateb (2004) 219 CLR 562, 649 50 [263]-[265] (Hayne J). Cf Re Woolley (2004) 225 CLR 1, 25-6 [60]-[61] (McHugh J).

(18) Al-Kateb (2004) 219 CLR 562, 612 [136] (Gummow J); Fardon (2004) 223 CLR 575, 612-13 [81] (Gummow J).

(19) Chu Kheng Lim (1992) 176 CLR 1, 57 (Gaudron J), 65-6, 71 (McHugh J).

(20) Ibid 28-9 (Brennan, Deane and Dawson JJ).

(21) Christos Mantziaris, 'Commonwealth Judicial Power for Interim Control Orders--The Chapter Ill Questions Not Answered' (2008) 10 Constitutional Law and Policy Review 65, 68, 73.

(22) 233 F Supp 2d 564, 591 (SD NY, 2002).

(23) 542 US 507 (2004).

(24) See, eg, Monica Hakimi, 'International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict--Criminal Divide' (2008) 33 Yale Journal of International Law 369, 383-6; Stella Butch Elias, 'Rethinking "Preventive Detention" from a Comparative Perspective: Three Frameworks for Detaining Terrorist Suspects' (2009) 41 Columbia Human Rights Law Review 99, 156-9; John Ip, 'Comparative Perspectives on the Detention of Terrorist Suspects' (2007) 16 Transnational Law & Contemporary Problems 773, 808-9.

(25) Tung Yin, 'Ending the War on Terrorism One Terrorist at a Time: A Noncriminal Detention Model for Holding and Releasing Guantanamo Bay Detainees' (2005) 29 Harvard Journal of Law and Public Policy 149, 182-3.

(26) David Cole, 'Out of the Shadows: Preventive Detention, Suspected Terrorists, and War' (2009) 97 California Law Review 693, 695.

(27) Chu Kheng Lim (1993) 176 CLR 1, 3.

(28) Ibid 1. The definition of 'designated person' is now contained in Migration Act s 177.

(29) This section has since been repealed and substituted: see Migration Act s 178(1), which states that 'a designated person must be kept in immigration detention'.

(30) Chu Kheng Lim (1992) 176 CLR 1, 10 (Mason CJ), 14-38 (Brennan, Deane and Dawson JJ).

(31) Ibid 26 (Brennan, Deane and Dawson JJ).

(32) Ibid 32.

(33) Ibid 28.

(34) Ibid 27 (citations omitted).

(35) Ibid 27.

(36) Ibid 28.

(37) Ibid 32.

(38) Ibid 29.

(39) Ibid 30 (citations omitted).

(40) Ibid 30-1.

(41) Ibid 29.

(42) Ibid 32.

(43) Ibid, citing Re Yates; Ex parte Walsh (1925) 37 CLR 36, 60-1 (Knox CJ), 96 (Isaacs J); O'Keefe v Calwell (1949) 77 CLR 261, 278 (Latham CJ); Koon Wing Lau v Calwell (1949) 80 CLR 533, 555 (Latham CJ); Chu Shao Hung v The Queen (1953) 87 CLR 575, 589 (Kitto J) ('Chu Shao Hung'). In Re Yates; Ex parte Walsh (1925) 37 CLR 36, 60, Knox CJ was of the opinion that deportation is 'clearly preventive and not punitive in its nature'. Isaacs J acknowledged the existence of a parliamentary discretion to impose deportation as a punitive measure, noting that where deportation 'is enacted as punishment for a crime, it necessarily falls to the judicial department', but where it is enacted 'as a political precaution, it must be exercised by the political department--the Executive': at 96. Chu Shao Hung (1953) 87 CLR 575 concerned s 5(6) of the Immigration Act 1901 (Cth), which provided that any person deemed a prohibited immigrant was guilty of an offence and imposed a penalty of '[i]mprisonment for six months, and, in addition to or substitution for such imprisonment, deportation from the Commonwealth pursuant to an order made in that behalf by the Minister': quoted at 588 (Kitto J). Kitto J said that 'deportation is a matter for executive decision by the Minister, and, if ordered, it does not in any sense partake of the character of a punishment': at 589. As regards detention pending deportation under s 5(6), Kitto J noted that 'there may be no purpose to be served by the imprisonment except that of keeping the "offender" available for immediate deportation in the event of the Minister's deciding upon that course, and it is quite right, therefore, to say that the provision for imprisonment is ancillary to the provision with respect to deportation'.

(44) Chu Kheng Lim (1992) 176 CLR 1, 33.

(45) Migration Act s 54P(1), cited in Chu Kheng Lim (1992) 176 CLR 1, 33-4. This section has since been repealed and substituted: see Migration Act s 181(1).

(46) Chu Kheng Lim (1992) 176 CLR 1, 34. Of course, it is questionable whether s 54P(1) rendered the detention actually voluntary: see Mary E Crock, 'Climbing Jacob's Ladder: The High Court and the Administrative Detention of Asylum Seekers in Australia' (1993) 15 Sydney Law Review 338, 347-8; Tania Penovic, 'The Separation of Powers: Lim and the "Voluntary" Immigration Detention of Children' (2004) 29 Alternative Law Journal 222.

(47) Chu Kheng Lim (1992) 176 CLR 1, 34.

(48) Ibid 10 (Mason CJ).

(49) Ibid 47 (citations omitted).

(50) Ibid 55.

(51) Ibid 57.

(52) Ibid 65-6, 71.

(53) Ibid 67, 71.

(54) Ibid 65-6, 71.

(55) Ibid 26.

(56) Ibid.

(57) Ibid 57 (Gaudron J).

(58) (1997) 190 CLR 1, 111. Hayne J and McHugh J agree with Gaudron J. In Al-Kateb (2004) 219 CLR 562, 649 [259], Hayne J said that "[a]t least in many cases it will be right to say that a law authorising detention divorced from any breach of the law is not a law with respect to a head of power and for that reason is invalid'. In Re Woolley (2004) 225 CLR 1, 27 [63], McHugh J

said '[t]he federal Parliament has no general power to make laws with respect to imprisonment or detention ... [M]ost heads of federal legislative power do not seem expansive enough to justify a law that authorises or requires detention divorced from a breach of law'.

(59) (1948) 76 CLR 1, 333.

(60) Ibid.

(61) Sir Owen Dixon, 'Two Constitutions Compared' (1942) 28 American Bar Association Journal 733,734.

(62) Chu Kheng Lim (1992) 176 CLR 1, 26 (Brennan, Deane and Dawson JJ).

(63) Al-Kateb (2004) 219 CLR 562, 611 [133]. Gummow J's example with respect to s 51(xvii) is especially salient, as the United Kingdom ('UK') only abolished imprisonment for civil debt in 1869: Debtors Act 1869, 32 & 33 Vict, c 62, s 4.

(64) Stephen McDonald, 'Involuntary Detention and the Separation of Judicial Power' (2007) 35 Federal Law Review 25, 36.

(65) Chu Kheng Lim (1992) 176 CLR 1, 55.

(66) Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 162 (Higgins J) ('Engineers' Case'), speaking of s 51(xxxv).

(67) Kruger (1997) 190 CLR 1, 110.

(68) Ibid 111; Re Woolley (2004) 225 CLR 1, 27 [63] (McHugh J).

(69) That is, the aliens exception was established by Chu Kheng Lim (1992) 176 CLR 1, and in no other High Court decision has the establishment of an exception constituted ratio decidendi.

(70) 'The power and jurisdiction of parliament, says [S]ir Edward Coke, is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds': William Blackstone, Commentaries on the Laws of England (Clarendon Press, 1765-69) vol 1, 156.

(71) See generally Northern Pipeline Construction Co v Marathon Pipe Line Co, 458 US 50 (1982).

(72) Re Woolley (2004) 225 CLR 1, 27 [63] (McHugh J).

(73) Melbourne Corporation v Commonwealth (1947) 74 CLR 31, 79 (Dixon J).

(74) Chu Kheng Lim (1992) 176 CLR 1, 27.

(75) Ibid.

(76) There is a third 'functional' approach, in which each arguable breach of the separation of judicial power is examined on an ad hoc basis to determine whether the judiciary's exercise of its functions has been impaired. An abstract discussion of functionalism is unnecessary here. Most functionalists agree that there is 'a nucleus of activities that uniquely belongs to each of the three branches' and that functionalism is inapt for those core activities: Thomas W Merrill, 'The Constitutional Principle of Separation of Powers' [1991] Supreme Court Review 225, 232-3. This article contends that imprisonment and the criminal process are core aspects of judicial power (that is, part of the nucleus of uniquely judicial activity), and so a functional approach should not be adopted. See also Peter Gerangelos, 'Interpretational Methodology in Separation of Powers Jurisprudence: the Formalist/Functionalist Debate' (2005) 8 Constitutional Law and Policy Review 1; M J C Vile, Constitutionalism and the Separation of Powers (Liberty Fund, 2nd ed, 1998) 402; William B Gwyn, 'The Indeterminacy of the Separation of Powers and the Federal Courts' (1989) 57 George Washington Law Review 474.

(77) 'Many attempts have been made to define judicial power, but it has never been found possible to frame a definition that is at once exclusive and exhaustive': R v Davison (1954) 90 CLR 353, 366 (Dixon CJ and McTiernan J). See also Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, 188-9 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 267 (Deane, Dawson, Gaudron and McHugh JJ); Yanner v Minister for Aboriginal and Tortes Strait Islander Affairs (2001) 108 FCR 543,553 [37] (Sackville J); Australian Communications Authority v Viper Communications Pty Ltd (2001) 110 FCR 380, 403 [96] (Sackville J); Merrill, above n 76, 233, noting that '[f]ormalism is often attacked on the ground that the definitions of the legislative, executive, and judicial powers are elusive and lead to a question-begging analysis'; Vile, above n 76, 402, arguing that '[i]t was clear many years ago that attempts to allocate particular functions precisely to particular branches of government must fail'; Richard H Fallon Jr et al, Hart and Wechsler's The Federal Courts and the Federal System (Foundation Press, 6th ed, 2009) 49, observing that 'there is no intrinsically correct or universally accepted idea of appropriate judicial power'.

(78) See P H Lane, A Manual of Australian Constitutional Law (Law Book, 6th ed, 1995) 189-203; Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 357 (Griffith CJ); Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434, 463 (Isaacs and Rich JJ).

(79) In R v Quinn; Ex parte Consolidated Food Corporation (1977) 138 CLR 1, 12, Jacobs J argued that where legislation confers a discretionary power to affect traditionally basic legal rights, 'the judicial nature of the power springs from the effect which the exercise of the decision-making function under the legislation will have upon the legal rights'.

(80) Ibid 11.

(81) Ibid.

(82) Ibid. See also Nathan S Chapman and Michael W McConnell, 'Due Process as Separation of Powers' (2012) 121 Yale Law Journal 1672, 1682-4, 1688, 1692.

(83) Re Nolan; Ex parte Young (1991) 172 CLR 460, 497. Similarly, in Polyukhovich v Common wealth (1991) 172 CLR 501, 705, Gaudron J said that the ascertainment of guilt or innocence 'is the function of criminal proceedings and the exclusive function of the courts'.

(84) See Chu Kheng Lim (1992) 176 CLR 1, 27.

(85) Ibid 55 (Gaudron J).

(86) Kruger(1997) 190 CLR 1, 110.

(87) Ibid 111.

(88) Ibid 110.

(89) Gaudron J argues that 'it is difficult to assert exclusivity except within a defined area and, if the area is to be defined by reference to exceptions, the exceptions should be clear or should fall within precise and confined categories': ibid.

(90) Ibid.

(91) Ibid.

(92) See R v Porter (1933) 55 CLR 182, 186-7 (Dixon J); Michael Louis Corrado, 'Sex Offenders, Unlawful Combatants, and Preventive Detention' (2005) 84 North Carolina Law Review 77, 100-10.

(93) (1933) 55 CLR 182, 186.

(94) R v Quinn; Ex parte Consolidated Food Corporation (1977) 138 CLR 1, 11 (Jacobs J); Re Yates; Ex parte Walsh (1925) 37 CLR 36, 79, where Isaacs J deduced two corollaries of the Magna Carta: first, 'that there is always an initial presumption in favour of liberty, so that whoever claims to imprison or deport another has cast upon him the obligation of justifying his claim by reference to the law', and second, 'that the Courts themselves see that this obligation is strictly and completely fulfilled before they hold that liberty is lawfully restrained'. See also Alexander Kaufman, 'Incompletely Theorized Agreement: A Plausible Ideal for Legal Reasoning?' (1996) 85 Georgetown Law Journal 395, 398-400.

(95) Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 11-12 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ); Plaut v Spendthrift Farm Inc, 514 US 211, 239-40 (Scalia J, for Rehnquist CJ, O'Connor, Scalia, Kennedy, Souter and Thomas JJ) (1995). See also Chapman and McConnell, above n 82, 1682-94.

(96) (1992) 176 CLR 1, 27.

(97) Ibid 32.

(98) (2004) 225 CLR 1, 24 [57] (emphasis in original).

(99) Ibid 24-6 [58]-[60].

(100) Ibid 26 [60].

(101) Ibid 27 [62].

(102) Leslie Zines, The High Court and the Constitution (Federation Press, 5th ed, 2008) 289.

(103) Al-Kateb (2004) 219 CLR 562, 648 [258] (Hayne J).

(104) Hayne J finds that 'at its root, the answer made to the contention that the laws now in question contravene Ch III is that they are not punitive' (emphasis in original): ibid 649-50 [263].

(105) Al-Kateb (2004) 219 CLR 562,650 [265], quoting H L A Hart, Punishment and Responsibility (Clarendon Press, 1968) 4-5.

(106) Al-Kateb (2004) 219 CLR 562, 650 [265].

(107) Ibid 650 [266].

(108) Ibid.

(109) Re Woolley (2004) 225 CLR 1, 26 [60] (McHugh J).

(110) 372 US 144 (1963) ('Mendoza-Martinez').

(111) Ibid 168-9 (Goldberg J) (citations omitted).

(112) Ibid 169.

(113) Wayne A Logan, 'The Ex Post Facto Clause and the Jurisprudence of Punishment' (1998) 35 American Criminal Law Review 1261, 1282.

(114) Christopher Moseng, 'Iowa's Sex Offender Residency Restrictions: How the Judicial Definition of Punishment Leads Policy Makers Astray' (2007) 11 Journal of Gender, Race and Justice 125, 134.

(115) Ibid 147.

(116) George Fletcher, 'The Concept of Punitive Legislation and the Sixth Amendment: A New Look at Kennedy v Mendoza-Martinez' (1965) 32 University of Chicago Law Review 290, 300.

(117) Logan, above n 113, quoting Bell v Wolfish, 441 US 520,565 (Marshall J) (1979).

(118) Daniel L Feldman, 'The "Scarlet Letter Laws" of the 1990s: A Response to Critics' (1997) 60 Albany Law Review 1081, 1088.

(119) Moseng, above n 114, 137.

(120) Ibid 147.

(121) Note, 'Punishment: Its Meaning in Relation to Separation of Power and Substantive Constitutional Restrictions and its Use in the Lovett, Trop, Perez, and Speiser Cases' (1959) 34 Indiana Law Journal 231, 287, quoted in Note, 'Prevention Versus Punishment: Toward a Principled Distinction in the Restraint of Released Sex Offenders' (1996) 109 Harvard Law Review 1711, 1724.

(122) See Maria Foscarinis, 'Toward a Constitutional Definition of Punishment' (1980) 80 Columbia Law Review 1667, 1672 3.

(123) (1951) 83 CLR 1.

(124) See ibid 258 (Fullagar J): 'A power to make laws with respect to lighthouses does not authorize the making of a law with respect to anything which is, in the opinion of the lawmaker, a lighthouse'.

(125) See, eg, Trop v Dulles, 356 US 86, 95 (Warren CJ, for Warren CJ, Black, Douglas and Whittaker JJ) (1958).

(126) It could be argued that the force of this criticism is limited, because in other contexts the High Court has approved a greater level of parliamentary control over constitutional requirements. For example, the consistent interpretation of s 80 of the Constitution's guarantee of a jury for the 'trial on indictment of any offence' has been restricted to those offences that Parliament deems indictable: R v Archdall; Ex parte Carrigan (1928) 41 CLR 128, 136 (Knox CJ, Isaacs, Gavan Duffy and Powers JJ), 139-40 (Higgins J). This literalist approach has been forcefully criticised: see, eg, Zines, above n 102, 571-3. The emasculation of s 80 is not a paragon of constitutional interpretation.

(127) Al-Kateb (2004) 219 CLR 562,650 [265]-[266].

(128) Hayne J's insistence on 'an offence against legal rules' is similar to Frankfurter J's insistence on a declaration of guilt for a law to constitute a bill of attainder in United States v Lovett, 328 US 303, 318,323 (1940) (see United States Constitution art I [section] 9). John Hart Ely labelled this a literalist approach, noting that it 'would of course permit a legislature, merely by omitting its ground of condemnation, to avoid having invalidated as a bill of attainder a statute imprisoning named parties': Comment, 'The Bounds of Legislative Specification: A Suggested Approach to the Bill of Attainder Clause' (1962) 72 Yale Law Journal 330, 336-7. (Although unattributed, the comment in the Yale Law Journal was authored by John Hart Ely: see Alan M Dershowitz, 'In Memoriam: John Hart Ely' (2004) 117 Harvard Law Review 1743, 1743-4.)

(129) Al-Kateb (2004) 219 CLR 562, 649-50 [260]-[263].

(130) See R v Federal Court of Bankruptcy; Exparte Lowenstein (1938) 59 CLR 556, 582 (Dixon and Evatt JJ): 'There is high authority for the proposition that "the Constitution is not to be mocked"'.

(131) See Al-Kateb (2004) 219 CLR 562, 650 [265]. Although Hayne J cites H L A Hart, Punishment and Responsibility (Clarendon Press, 1968), ch 1 of Punishment and Responsibility first appeared as H L A Hart, 'Prolegomenon to the Principles of Punishment' (1959) 60 Proceedings of the Aristotelian Society 1, a paper read before the meeting of the Aristotelian Society on 19 October 1959.

(132) Hart, above n 105, 5.

(133) Al-Kateb (2004) 219 CLR 562,650 [265].

(134) Ibid 650 [266].

(135) Hart, above n 105, 5.

(136) Hayne J's second reason--that preventing a non-citizen making landfall is non-punitive, so segregating those who unlawfully make landfall is similarly non-punitive--does not absolve his reasoning from the definitional stop. That is because it is unclear the extent to which Hayne J's second reason is related to the standard or central case of punishment set out by Hart. Insofar as Hayne J employed Hart's definition, he committed the definitional stop.

(137) Zines, above n 102, 289-90.

(138) Hart, above n 105, 1.

(139) Ibid 6.

(140) Zines, above n 102, 288. See also Leslie Zines, 'A Judicially Created Bill of Rights?' (1994) 16 Sydney Law Review 166, 174, where he argues that 'one should, at least, begin with a suspicion that incarceration by legislative decree is, in effect, a legislative punishment, placing the onus on the Commonwealth to show that (outside the accepted categories) it is not.'

(141) The invocation of effects and impacts is not a reference to the constitutional significance of the harshness of detention conditions. The High Court has held that inhumane conditions do not of themselves render imprisonment unlawful: Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486.

(142) See Doe v Pataki, 919 F Supp 691, 693 (Chin J) (SD NY, 1996): 'Nonetheless, no matter how compelling the reasons, no matter how pure the motive, constitutional protections for individuals--even unsympathetic ones--cannot be cast aside in the name of the greater good.'

(143) Victor s Navasky, 'Deportation as Punishment' (1959) 27 University of Kansas City Law Review 213, 217-18 (citations omitted).

(144) Al-Kateb (2004) 219 CLR 562, 612 [137] (Gummow J), citing Blackstone, above n 70, vol 1,132.

(145) Al-Kateb (2004) 219 CLR 562, 612 [137], quoting Hamdi, 542 US 507, 554-5 (Scalia J, for Scalia and Stevens JJ) (2004).

(146) Al-Kateb (2004) 219 CLR 562, 612-13 [138], quoting Witham v Holloway (1995) 183 CLR 525, 534.

(147) (2004) 223 CLR 575, 612 [79], quoting Chief Executive Officer of Customs v Labrador Liquor Wholesale Pry Ltd (2003) 216 CLR 161, 178-9 [56].

(148) (2007) 233 CLR 307, 429-30 [352]-[353].

(149) Comment, 'The Bounds of Legislative Specification: A Suggested Approach to the Bill of Attainder Clause' (1962) 72 Yale Law Journal 330, 355. (This comment was written by John Hart Ely: see above n 128.)

(150) Norval Morris, 'Introduction' (1967) 13 McGill Law Journal 534, 538, quoted in Fardon (2004) 223 CLR 575, 613 [82] (Gummow l).

(151) Al-Kateb (2004) 219 CLR 562, 612 [136] (Gummow J).

(152) Blackstone, above n 70, vol 1, 132.

(153) Ibid.

(154) On the difference between detention in custody and 'preventive restraints on liberty by judicial order," see Thomas v Mowbray (2007) 233 CLR 307, 330 [18] (Gleeson CJ). See also at 356 [116] (Gummow and Crennan JJ), 459-60 [444] (Hayne J). It is beyond the scope of this article to offer a principled schema for determining whether a person has been imprisoned. See, eg, Sonia R Farber, 'Forgotten at Guantanamo: The Boumediene Decision and Its Implications for Refugees at the Base under the Obama Administration' (2010) 98 California Law Review 989, 1010.

(155) (1992) 176 CLR 1, 28-9 (citations omitted).

(156) Kruger (1997) 190 CLR 1, 110-11.

(157) Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (Yale University Press, 1919) 36, 58-63.

(158) Hohfeld argues that the best synonym for 'immunity' is 'exemption': ibid 62.

(159) Winterton, above n 7, 192-3.

(160) Al-Kateb (2004) 219 CLR 562,648 [258] (emphasis in original).

(161) Ibid 648-9 [258].

(162) Re Woolley (2004) 225 CLR 1, 24 [57] (emphasis in original).

(163) See Winterton, above n 7, 192-3 n 55, who placed emphasis on the words 'or by the law of the land' in ch 39 of the Magna Carta. Presumably, the emphasis was to point out that 'lawful judgement of his peers' (that is, conviction by a jury) was not the only manner in which a person could be incarcerated. But, interestingly, 'or' was probably mistranslated into English from the original Latin. The Latin phrase is 'per legale judicium parium suorum vel per legem terre'. In this context, the Latin word 'vel' was most likely equivalent to 'et', meaning 'and' rather than 'or': see William Sharp McKechnie, Magna Carta: A Commentary on the Great Charter of King John (James Maclehose and Sons, 1905) 436, 442-3; Rodney L Mott, Due Process of Law (Bobbs-Merrill, 1926) 3-5 n 8. Moreover, the phrase 'by the law of the land' in the Magna Carta soon evolved into a due process requirement, which, in turn, came to be epitomised by the criminal trial. The first known use of the phrase 'due process' occurred in 1354: Statute of Westminster of the Liberties of London 1354, 28 Edw 3, c 1 (providing that the Great Charter 'be kept and maintained in all Points'), c 3 (providing 'That no Man of what Estate or Condition that he be, shall he put out of Land or Tenement, nor taken nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law'). 'A long course of development produced a conception of the judicial process which placed the court in the position of a detached tribunal entertaining and determining civil and criminal pleas brought before it': R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556, 588 (Dixon and Evatt JJ). Thus, where a person's liberty is at stake, the requirement of due process is a requirement of criminal process. See also Chapman and McConnell, above n 82, 1682-94; Amanda L Tyler, 'The Forgotten Core Meaning of the Suspension Clause' (2012) 125 Harvard Law Review 901, 923-9, 932-3.

(164) Chu Kheng Lim (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ) (emphasis added).

(165) Fletcher, above n 116, 290.

(166) See Fardon (2004) 223 CLR 575, 612 [80].

(167) Chu Kheng Lim (1992) 176 CLR 1, 55 (Gaudron J); Kruger (1997) 190 CLR 1, 110 (Gaudron J), 162 (Gummow J); Veen v The Queen [No 2] (1988) 164 CLR 465,495 (Deane J); Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486, 527-8 [121] (Kirby J); Al-Kateb (2004) 219 CLR 562, 646 [251] (Hayne J); Fardon (2004) 223 CLR 575, 613 [83] (Gummow J), 633-4 [154] (Kirby J), 653-4 [214]-[215] (Callinan and Heydon JJ); Re Woolley (2004) 225 CLR 1, 30 [69] (McHugh J), 65-6 [182] (Kirby J).

(168) Judge J Harvie Wilkinson Ill, 'Towards a Jurisprudence of Presumptions' (1992) 67 New York University Law Review 907, 908.

(169) Chu Kheng Lim (1992) 176 CLR 1, 65, 71 (McHugh J).

(170) Ibid 33 (Brennan, Deane and Dawson JJ). There is probably no difference between the 'reasonably necessary' and 'reasonably capable of being seen as necessary' formulations. In Al-Kateb (2004) 219 CLR 562,610-11 [126]-[132], Gummow I approved both.

(171) Chu Kheng Lim (1992) 176 CLR l, 57. See also Kruger (1997) 190 CLR 1, 109-11.

(172) Zines, above n 102,289.

(173) McDonald, above n 64, 53.

(174) Stavros Tsakyrakis, 'Proportionality: An Assault on Human Rights?' (2009) 7 International Journal of Constitutional Law 468, 474.

(175) Joseph Blocher, 'Categoricalism and Balancing in First and Second Amendment Analysis' (2009) 84 New York University Law Review 375, 381.

(176) Kathleen M Sullivan, 'The Supreme Court, 1991 Term--Foreword: The Justices of Rules and Standards' (1992) 106 Harvard Law Review 22, 58, cited in ibid 381.

(177) Blocher, above n 175,428.

(178) Chu Kheng Lim (1992) 176 CLR 1, 28.

(179) The categories are: the committal to custody, pursuant to executive warrant, of a suspect awaiting trial; involuntary detention in cases of mental illness or infectious disease; the traditional powers of the Parliament to punish for contempt; and the powers of military tribunals to punish for breach of military discipline: ibid.

(180) Ibid 29.

(181) Blocher, above n 175, 381-2.

(182) Ibid 381.

(183) Kathleen M Sullivan, 'Post-Liberal Judging: The Roles of Categorization and Balancing' (1992) 6 3 University of Colorado Law Review 293,293, cited in ibid 382.

(184) Blocher, above n 175,393.

(185) Wilkinson, above n 168, 907. The strength of a presumption depends on 'its rootedness in the rule of law', and so '[t]hose presumptions that are deeply rooted in constitutional or statutory text are by far the most difficult to overcome': at 908.

(186) Cole, above n 26, 697.

(187) See generally Tyler, above n 163,923-44, 952 4.

(188) Tsakyrakis, above n 174, 471.

(189) A general discussion of value incommensurability is beyond the scope of this article. See, eg, Joseph Raz, 'Value Incommensurability: Some Preliminaries' (1986) 86 Proceedings of the Aristotelian Society 117. Perhaps the central thesis of the present article can be characterised as an exercise in weak, reasoned incommensurability, that is, an argument in favour of the priority of ch III's prohibition of non-criminal detention over the conferral of legislative power--covering a variety of subject matter--in s 51. See Jeremy Waldron, 'Fake Incommensurability: A Response to Professor Schauer' (1994) 45 Hastings Law Journal 813, 818. The implications of this characterisation cannot be explored here.

(190) Tsakyrakis, above n 174, 471.

(191) Ibid 472.

(192) T Alexander Aleinikofl; 'Constitutional Law in the Age of Balancing' (1987) 96 Yale Law Journal 943,982.

(193) Ibid.

(194) Zines, above n 102,289.

(195) Aleinikoff, above n 192,991.

(196) Ibid.

(197) See United States v Stevens, 130 S Ct 1577, 1585 (Roberts CJ, for Roberts CJ, Stevens, Scalia, Kennedy, Thomas, Ginsburg, Breyer and Sotomayor JJ) (2010).

(198) Contrary to Russell Blackford's view, it is not sufficient for the High Court to 'simply ask whether there are good historical grounds to identify an exceptional case, or convincing practical reasons for custody that negate an appearance of punishment': Russell Blackford, 'Judicial Power, Political Liberty and the Post-Industrial State' (1997) 71 Australian Law Journal 267, 280.

(199) (1997) 190 CLR 1,109-10.

(200) (2006) 227 CLR 614, 631 [37], saying that 'those exceptions do not fall within precise and confined categories'. Cf Thomas v Mowbray (2007) 233 CLR 307, 330 [18] (Gleeson CJ): 'It is true that the circumstances under which restraints on liberty may be imposed by judicial order other than as an incident of adjudging and punishing criminal guilt are carefully confined, both by the Parliament and by the courts'.

(201) Chu Kheng Lim (1992) 176 CLR 1, 29-32.

(202) Ibid 33.

(203) Ibid 34.

(204) Ibid.

(205) Quarantine Act s 2B(2).

(206) Ibid s 12A(1).

(207) Ibid s 18(1)(e).

(208) Ibid s 31.

(209) 9 Anne, c 2.

(210) Blackstone, above n 70, vol 4, 161 (emphasis in original).

(211) Ibid 161-2.

(212) Quarantine Act 1710, 9 Anne, c 2, preamble (emphasis added).

(213) Ibid s I.

(214) The East-India Co v Sandys (1684) 10 St Tr 371,530.

(215) Ibid 532. See also W S Holdsworth, 'A Neglected Aspect of the Relations between Economic and Legal History' (1927) 1 Economic History Review 114, 117-18.

(216) Homersham Cox, The Institutions of the English Government (H Sweet, 1863) 611 n (b).

(217) Opinion on the Writ of Habeas Corpus (1758) Wilm 77, 92 (Wilmot l).

(218) Crowley's Case (1818) 2 Swans 1, 61-2; 36 ER 514, 531 (Lord Eldon LC).

(219) For example, between 1900 and 1920, some American states enacted laws subjecting prostitutes to quarantine, detention and internment. 'The crackdown on prostitutes constituted the most concerted attack on civil liberties in the name of public health in American history ... Although this story is not well known, the parallels to the internment of Japanese Americans during World War II are unavoidable.' Allan M Bran&, 'AIDS: From Social History to Social Policy' in Elizabeth Fee and Daniel M Fox (eds), AIDS: The Burdens of History (University of California Press, 1988) 147, 151-2.

(220) J M Eager, 'The Early History of Quarantine: Origin of Sanitary Measures Directed against Yellow Fever' (Bulletin No 12, Yellow Fever Institute, 1903) 24.

(221) 'Quarantinable Diseases' under the Proclamation are: cholera, highly pathogenic avian influenza in humans, human swine influenza with pandemic potential, the plague, rabies, severe acute respiratory syndrome, smallpox, viral haemorrhagic fevers and yellow fever: Quarantine Proclamation 1998 (Cth) s 21.

(222) Quarantine Regulations 2000 (Cth) reg 36.

(223) Quarantine Act s 35C(1).

(224) Ibid s 35(1C).

(225) See Michelle A Daubert, 'Pandemic Fears and Contemporary Quarantine: Protecting Liberty Through a Continuum of Due Process Rights' (2007) 54 Buffalo Law Review 1299, 1347-8.

(226) See generally Scott Guy and Barbara Ann Hocking, 'Times of Pestilence: Would a Bill of Rights Assist Australian Citizens Who Are Quarantined in the Event of an Avian Influenza (Bird Flu) Pandemic?' (2006) 17 Current Issues in Criminal Justice 451; Christopher Reynolds, 'Quarantine in Times of Emergency: The Scope of s 51(ix) of the Constitution' (2004) 12 Journal of Law and Medicine 166.

(227) See, eg, Mental Health Act 2007 (NSW) ch 3.

(228) So much was acknowledged by the inclusion of civil commitment of the mentally ill as a qualification to the ch III immunity in Chu Kheng Lim (1992) 176 CLR 1, 28 (Brennan, Deane and Dawson JJ).

(229) R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157, 158 ('Fitzpatrick and Browne').

(230) Ibid 162.

(231) Ibid 163.

(232) Ibid 164.

(233) Ibid 166.

(234) Ibid 167.

(235) Ibid.

(236) Kielley v Carson (1842) 4 Moo PC 63, 88-9; 13 ER 225, 235 (Parke B for Lords Lyndhurst LC, Brougham, Denman, Abinger, Cottenham, Campbell, Shadwell V-C, Tindal CJ, Parke B, Erskine I and Dr Lushington).

(237) Kielley v Carson (1842) 4 Moo PC 63, 89; 13 ER 225, 235.

(238) Doyle v Falconer (1866) 4 Moo PC NS 203,217; 16 ER 293,298 (Sir James W Colvile for Lord Westbury, Sir James W Colvile and Sir Edward Vaughan Williams).

(239) In the US, the power of Congress to commit for contempt is considered incidental to the legislative power if limited to self-preservation, that is, preventing acts which obstruct the discharge of legislative duty: Marshall v Gordon, 243 US 521 (1917). In Australia, Anne Twomey has challenged the reasoning of Fitzpatrick and Browne (1955) 92 CLR 157, and has argued that s 49 should be read down so that the powers of Parliament only apply to the extent that they are necessary to support the functions of Parliament: Anne Twomey, 'Reconciling Parliament's Contempt Powers with the Constitutional Separation of Powers' (1997) 8 Public Law Review 88.

(240) (1942) 66 CLR 452, 467-8 (citations omitted).

(241) (1945) 71 CLR 1, 23.

(242) Ibid.

(243) (1989) 166 CLR 518, 540.

(244) Ibid 541.

(245) Ibid 563-4.

(246) (2007) 231 CLR 570, 599 [61].

(247) Ibid 583 [9] (Gleeson CJ).

(248) Re Tracey (1989) 166 CLR 518,541.

(249) Ibid 554-62.

(250) Ibid 562.

(251) Ibid 563-4.

(252) Ibid 573.

(253) White (2007) 231 CLR 570, 598 [58] (citations omitted).

(254) (1942) 66 CLR 452, 466-7.

(255) (1989) 166 CLR 518, 540.

(256) Ibid 537.

(257) Ibid 572.

(258) (2009) 239 CLR 230.

(259) Ibid 250 [61] (French CJ and Gummow J).

(260) Ibid 250-1 [62].

(261) Ibid.

(262) Ibid 257 [86].

(263) Ibid 261 [97] (citations omitted).

(264) Ibid.

(265) See ibid 237 [9] (French CJ and Gummow J), 251 [65] (Hayne, Heydon, Crennan, Kiefel and Bell JJ), noting that the Military Judges appointed to the AMC did not have the tenure and security of remuneration required of federal judges by s 72 of the Constitution.

(266) Ibid 243 [30] (French CJ and Gummow J).

(267) Lane v Morrison (2009) 239 CLR 230, 261 [97]. Cf Re Tracey (1989) 166 CLR 518, 537, 540 (Mason CJ, Wilson and Dawson JJ), 572 (Brennan and Toohey JJ).

(268) (2009) 239 CLR 230, 247-8 [48].

(269) Ibid 260-1 [96].

(270) (2007) 231 CLR 570, 616-19 [123]-[133].

(271) Fardon (2004) 223 CLR 575, 612 [80] (Gummow J).

(272) 'The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive': Hamdi, 542 US 507, 554-5 (Scalia J, for Scalia and Stevens JJ) (2004), quoted in Al-Kateb (2004) 219 CLR 562, 612 [137] (Gummow J).

(273) Hamdi, 542 US 507, 556 (Scalia J, for Scalia and Stevens JJ) (2004) (emphasis in original).

(274) 'Rules get interesting ... when some member of the category is within the category as stated but not within the background justification': Frederick Schauer, 'Rules, the Rule of Law, and the Constitution' (1989) 6 Constitutional Commentary 69, 75, quoted in Blocher, above n 175, 427.

(275) See Re Tracey; Ex parte Ryan (1989) 166 CLR 518, 573, where Brennan and Toohey JJ said '[h]istory and necessity combine to show that courts-martial and other service tribunals, though judicial in nature and though erected in modern times by statute, stand outside the requirements of Ch III of the Constitution'.

(276) In R v Davison (1954) 90 CLR 353, 382, Kitto J classified a power as judicial if by 1900 it had come to be 'so consistently regarded as peculiarly appropriate for judicial performance that it then occupied an acknowledged place in the structure of the judicial system'.

(277) (1992) 176 CLR 1, 29-31.

(278) Ibid 29-30 (Brennan, Deane and Dawson JJ), quoting A-G (Canada) v Cain [1906] AC 542, 546, citing in turn M de Vattel, Le Droit des Gens ou Principes de la Loi Naturelle (1758) book I [section] 231, book II [section] 125.

(279) Chu Kheng Lim (1992) 176 CLR 1, 30 n 71, citing Blackstone, above n 70, 251.

(280) Chu Kheng Lim (1992) 176 CLR 1, 30 n 71, citing Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown and the Relative Duties and Rights of the Subject (J Butterworth, 1820) 49.

(281) MutinyAct 1689, 1 Wm & M, c 5.

(282) Debtors Act 1869, 32 & 33 Vict, c 62, s 4.

(283) Grant v Gould (1792) 2 H Bl 69, 99; 126 ER 434, 450.

(284) See especially Re Tracey (1989) 166 CLR 518,557-8 (Brennan and Toohey II).

(285) (1842) 4 Moo PC 63; 13 ER 225.

(286) (1842) 4 Moo PC 63, 89; 13 ER 225, 235 (Parke B for Lords Lyndhurst LC, Brougham, Denman, Abinger, Cottenham, Campbell, Shadwell V-C, Tindal CJ, Parke B, Erskine J and Dr Lushington).

(287) (1842) 4 Moo PC 63, 88; 13 ER 225,235.

(288) See, eg, Constitution s 49.

(289) The following is adapted from R v Kwok (2005) 64 NSWLR 335, 341-2 [14]-[21] (Hodg son JA) and A-G (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635, 639-42 [28]-[41] (Hodgson JA).

(290) (1842) 4 Moo PC 63, 89; 13 ER 225, 235.

(291) (1842) 4 Moo PC 63, 88; 13 ER 225, 235.

(292) (1842) 4 Moo PC 63, 89; 13 ER 225, 235.

(293) Mantziaris, above n 21, 68.

(294) Ibid 73.

(295) See above Part IIA(3)(d).

(296) A V Dicey, Lectures Introductory to the Study of the Law of the Constitution (Macmillan, 1885) 239.

(297) Cole, above n 26, 695. The commentary highlights three features of the criminal process to demonstrate its inaptness to combat terrorism. First, it is said that the criminal law is retrospective in focus, whereas fighting terrorism requires the ability to prevent future attacks. Second, evidence obtained to justify detention of terrorist suspects is often inadmissible in a criminal trial, and the open trial format can compromise intelligence sources and methods. Finally, the criminal process is incapable of dealing with the transnational aspects of terrorism, with nations often unwilling to share evidence with one another. See, eg, Monica Hakimi, 'International Standards for Detaining Terrorism Suspects: Moving beyond the Armed Conflict-Criminal Divide' (2008) 33 Yale Journal of International Law 369, 383-6; Stella Burch Elias, 'Rethinking "Preventive Detention" from a Comparative Perspective: Three Frameworks for Detaining Terrorist Suspects' (2009) 41 Columbia Human Rights Law Review 99, 156-7; John Ip, 'Comparative Perspectives on the Detention of Terrorist Suspects' (2007) 16 Transnational Law and Contemporary Problems 773, 808-9. These perceived inadequacies have generated a kind of judicial anxiety in the US. For example, in Esmail v Obama, 639 F 3d 1075, 1077-8 (DC Cir, 2011), Judge Silberman said:
   In the typical criminal case, a good judge will vote to overturn a
   conviction if the prosecutor lacked sufficient evidence, even when
   the judge is virtually certain that the defendant committed the
   crime. Rat can mean that a thoroughly bad person is released onto
   our streets, but I need not explain why our criminal justice system
   treats that risk as one we all believe, or should believe, is

   When we are dealing with detainees, candor obliges me to admit that
   one can not help but be conscious of the infinitely greater
   downside risk to our country, and its people, of an order releasing
   a detainee who is likely to return to terrorism. One does not have
   to be a 'Posnerian'--a believer that virtually all law and
   regulation should be judged in accordance with a cost/benefit
   analysis--to recognize this uncomfortable fact.

(298) (2007) 233 CLR 307.

(299) Criminal Code s 104.4(1)(c).

(300) Ibid s 104.4(1)(d).

(301) Ibid s 100.1.

(302) This also distinguishes the control order regime of div 104 from the state legislative scheme upheld in Fardon (2004) 223 CLR 575. The Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) div 3 authorised the Supreme Court of Queensland to order the continued detention in custody of a prisoner serving imprisonment for a 'serious sexual offence'. Division 104 contains no requirement that the subject of a control order be serving a sentence of imprisonment for a previously committed offence. See Andrew Lynch and Alexander Reilly, 'The Constitutional Validity of Terrorism Orders of Control and Preventative Detention' (2007) 10 Flinders Journal of Law Reform 105, 126.

(303) Thomas v Mowbray (2007) 233 CLR 307, 330 [18].

(304) Ibid.

(305) Ibid 356 [116].

(306) Ibid 509 [600].

(307) Ibid 508 [599].

(308) Ibid 526 [651].

(309) Ibid 430 [354].

(310) Mantziaris, above n 21, 67 (emphasis in original).

(311) Chu Kheng Lim (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ).

(312) Blackstone, above n 70, vol 1, 132: 'The confinement of the person, in any wise, is an imprisonment. So that the keeping of a man against his will in a private house ... is an imprisonment'.

(313) For a discussion of 'constructive custody' in the US, see Stephen I Vladeck, 'Deconstructing Hirota: Habeas Corpus, Citizenship, and Article III' (2007) 95 Georgetown Law Journal 1497, 1539-40.

(314) See, eg, (2007) 233 CLR 307, 328-9 [16] (Gleeson CJ), 355 [109], 356 7 [116]-[118] (Gummow and Crennan JJ), 507 [595] (Callinan J).

(315) Ibid 329 [17].

(316) Ibid 357 [120].

(317) Ibid 425 [338] (emphasis in original) (citations omitted).

(318) Mantziaris, above n 21, 71 (emphasis in original).

(319) Lynch and Reilly, above n 302, 127. Offences in divs 101-3 include offences for: providing or receiving training connected with terrorist acts; possessing things connected with terrorist acts; collecting or making documents likely to facilitate terrorist acts; preparing for or planning terrorist acts; directing the activities of, being a member of, recruiting for, training or receiving training from, funding or receiving funding from, providing support to, or associating with, a terrorist organisation; and financing terrorism.

(320) See Lynch and Reilly, above n 302, 121: 'The imposition of conditions which fall short of a total deprivation of an individual's liberty cannot be assumed to be immune from difficulty'. Cf Thomas v Mowbray (2007) 233 CLR 307, 330 [18] (Gleeson CJ): 'It is not correct to say, as an absolute proposition, that, under our system of government, restraints on liberty, whether or not involving detention in custody, exist only as an incident of adjudging and punishing criminal guilt'.

(321) '[T]he power of loco-motion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct': Blackstone, above n 70, vol 1, 130.

(322) Ronald Dworkin, Taking Rights Seriously (Duckworth, 1977) 11.

(323) Australian Human Rights Commission, 2011 Immigration Detention at Villawood (2011) <> 6.

(324) (2004) 219 CLR 562, 611-14 [135]-[140].

(325) 542 US 507, 554-8, 563-9, 572 n 3,573 (Scalia J for Scalia and Stevens JJ) (2004).

JEFFREY STEVEN GORDON, BSc (Adv) (Hons), LLB (Hons) (Syd), LLM (Columbia). Sincerest thanks to Peter Gerangelos for reading a draft, for generous advice, and for sparking my interest during his fascinating course on Advanced Constitutional Law at the University of Sydney. I am grateful to the two anonymous referees and the Review's Editorial Board for their comments and suggestions. All errors are mine. This article is dedicated to the memory of the Hon Justice D H Hodgson AO.
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Title Annotation:II Legislative Power, Judicial Power and Imprisonment B What is the Nature of the Relationship between Valid Detention and the Constitutional Immunity? through IV Conclusion, with footnotes, p. 72-103
Author:Gordon, Jeffrey Steven
Publication:Melbourne University Law Review
Date:Apr 1, 2012
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