Involuntary Detention and the Separation of Judicial Power

Published date01 March 2007
Date01 March 2007
Stephen McDonald
The power of the Commonwealth Parliament to authorise involuntary detention (that
is, detention without the consent of the detainee) by the executive government has
fallen for consideration by the High Court in a series of recent cases.1 The Court has
also examined the circumstances in which courts may make orders for detention.2 The
aim of this article is to discuss some of the issues which have arisen in these cases,
including those over which there has been apparent disagreement between the Justices
of the High Court. It argues for a conceptually coherent approach to detention, which
favours substance over form while giving effect to the strict separation of judicial
power from legislative and executive power required by the Commonwealth
Part II of the article considers the nature of the power to order involuntary
detention in the context of the separation of powers. Because the function of
punishment for criminal guilt is seen as exclusively judicial, the imposition of
detention which in substance amounts to punishment cannot be imposed by the
Parliament or the executive in a system operating under a strict separation of powers.
Detention orders for purposes other than punishment, on the other hand, generally
involve no adjudication or settling of disputes, and are regarded as an executive act.
In Part III, it is argued that where the nature of the power to detain depends upon
the purpose or object of the detention, some form of proportionality test is necessary to
determine whether detention can really be said to be for its asserted purpose. The kind
of inquiry which is appropriate, including the relevance of possible alternative
measures, is discussed.
Part IV of the article explores the limits of detention by the executive. Consideration
is given to areas of disagreement which emerge from recent cases, including whether
segregation from the community and deterrence can ever be legitimate non-punitive
BCom, LLB (Hons) (Adelaide). I would like to thank Dr Wendy Lacey and an anonymous
referee for their comments on earlier drafts of this article.
1 Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004)
219 CLR 486 ('Behrooz'); Al-Kateb v Godwin (2004) 219 CLR 562 ('Al-Kateb'); Minister for
Immigration and Multicultural and Indigenous Affairs v Al Khafaji (2004) 219 CLR 664 ('Al-
Khafaji'); Re Woolley; Ex parte Applicants M276/2003 (by their next friend GS) (2004) 225 CLR 1
('Re Woolley'); Vasiljkovic v Commonwealth (2006) 80 ALJR 1399 ('Vasiljkovic').
2 Fardon v A-G (Qld) (2004) 223 CLR 575 ('Fardon'); Baker v The Queen (2004) 223 CLR 513.
26 Federal Law Review Volume 35
objects. The possible consequences for traditional forms of punishment other than
incarceration are also explored.
Part V considers the potential scope for investing the courts with powers to order
detention. The limitations on federal courts imposed by the separation of powers are
reviewed, and it is argued that certain instances of detention — those which may be
described as arbitrary in a strict sense — can never be imposed by either the
Commonwealth Parliament or executive government on the one hand, or by the
federal judiciary on the other. The possible limits of detention imposed by federal
judges acting persona designata and by State courts is also examined, with reference to
the incompatibility doctrines applied in Wilson v Minister for Aboriginal and Torres Strait
Islander Affairs3 and Kable v Director of Public Prosecutions (NSW).4
Imposition of detention by a court in the exercise of the judicial power
It is well established that '[n]o part of the judicial power can be conferred in virtue of
any other authority or otherwise than in accordance with the provisions of Ch III'.5
Only the courts identified in s 71 of the Constitution, namely, the High Court of
Australia, the other courts created by the Parliament and the courts of the States (and
territories) invested with federal jurisdiction, may exercise 'the judicial power of the
Although 'it has never been found possible to frame a definition [of judicial power]
that is at once exclusive and exhaustive',6 there are certain functions which may fairly
be identified as 'exclusive and inalienable exercises of judicial power'.7 The central
conception of the judicial power is the settlement of a legal controversy between
parties through 'an authoritative determination by means of the judicial method, that
is, an enforceable decision reached by applying the relevant principles of law to the
facts as found.'8
3 (1996) 189 CLR 1 ('Wilson').
4 (1996) 189 CLR 53 ('Kable').
5 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 ('Boilermakers'), 270
(Dixon CJ, McTiernan, Fullagar and Kitto JJ); aff'd A-G (Cth) v The Queen (1957) 95 CLR 529;
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR
1 ('Chu Kheng Lim'), 26-7 (Brennan, Deane and Dawson JJ).
6 R v Davison (1954) 90 CLR 353, 366 (Dixon CJ and McTiernan J).
7 Brandy v Human Rights and Equa l Opportunity Commission (1995) 183 CLR 245 ('Brandy'), 258
(Mason CJ).
8 Ibid. See also R v Davison (1954) 90 CLR 353, 356–9, 368–70 (Dixon CJ and McTiernan J);
Huddart Parker & Co Ltd v Moorehead (1909) 8 CLR 330, 357 (Griffith CJ); R v Trade Practices
Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 ('Tasmanian Breweries'), 374
(Kitto J); R v Local Government Board [1902] 2 IR 349, 373 (Palles CB); Precision Data Holdings
Pty Ltd v Wills (1991) 173 CLR 167, 188–90 (Mason CJ, Brennan, Deane, Dawson, Toohey,
Gaudron and McHugh JJ).
2007 Involuntary Detention and the Separation of Judicial Power 27
It has long been recognised that the 'adjudgment and punishment of criminal guilt'
is an exclusively judicial function.9 The adjudgment of guilt, and the determination of
the punishment to be imposed as a consequence, fall within the central conception of
judicial power. A criminal trial represents a controversy or dispute between the
community (or the state or sovereign) and an accused person. The power exercised by
the court (whether by judge alone or split between judge and jury) is a power to
conclusively determine the guilt or innocence of the accused by applying the principles
of law to the facts as found, and, upon a finding of guilt, to impose punishment — the
consequence imposed by law for breach of the criminal law. The conclusiveness of the
power is reflected in the doctrines of autrefois acquit, autrefois convict and res
judicata.10 The effect of the exercise of the power is to establish a 'new charter' by
which the accused and the community are bound unless and until the decision is set
Although the exclusively judicial function of determining criminal cases is
frequently described simply as the imposition of 'punishment', that term can be
ambiguous. 'Punishment' is capable of bearing several possible meanings. For example,
in Re Woolley; Ex parte Applicants M276/2003 (by their next friend GS),12 Gleeson CJ said:
The proposition that, ordinarily, the involuntary detention of a citizen by the State is
penal or punitive in character was not based upon the idea that all hardship or distress
inflicted upon a citizen by the State constitutes a form of punishment, although
colloquially that is how it may sometimes be described. Taxes are sometimes said, in
political rhetoric, to be punitive. That is a loose use of the term. Punishment, in the sense
of the inflicting of involuntary hardship or detriment by the State, is not an exclusively
judicial function.13
In Re Nolan; Ex parte Young,14 Gaudron J referred to the exclusively judicial power
to punish for criminal guilt in the following terms:
[I]t is beyond dispute that the power to determine whether a person has engaged in
conduct which is forbidden by law and, if so, to make a binding and enforceable
declaration as to the consequences which the law imposes by reason of that conduct lies
at the heart of exclusive judicial power.15
Gummow J referred to that definition with approval in Fardon v Attorney-General
(Qld).16 By focusing on the essential character of the court's function in sentencing, this
formulation deflects arguments as to whether the judgment of guilt to which the
consequences relate is 'criminal' or 'civil' in character: it does not matter provided the
9 W aterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434, 444 (Griffith
CJ); Federal Commissioner of Taxation v Munro (1926) 38 CLR 153, 175 (Isaacs J); Brandy (1995)
183 CLR 245, 258 (Mason CJ); Chu Kheng Lim (1992) 176 CLR 1, 27 (Brennan, Deane and
Dawson JJ); Re Woolley (2004) 225 CLR 1, 23 [53] (McHugh J).
10 For discussion of these doctrines, see, eg, R v Carroll (2002) 213 CLR 635; Pearce v The Queen
(1998) 194 CLR 610; Rogers v The Queen (1994) 181 CLR 251.
11 Tasmanian Breweries (1970) 123 CLR 361, 374 (Kitto J).
13 Ibid 12 [17].
15 Ibid 497.
16 (2004) 223 CLR 575, 611 [76].

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