Delimiting detention

The detention of persons in residential care in Australia has received little recognition. Given also the absence of human rights frameworks in most Australian jurisdictions, it has been argued that Australian governments resist the idea of deprivation of liberty in social care settings. However, the South Australian case of Public Advocate v C, B (‘Public Advocate Case’) may signal a turning point. This article analyses developments in South Australia and nationally to consider whether Australia is resisting social care detention and associated deprivation of liberty. It engages with the complex legal landscape, covering federal-state care schemes, tort law, guardianship and human rights law, and makes two main arguments: first, that the Public Advocate Case can be read as a formative step in recognising social care detention in Australia; and, second, that subsequent developments leave care providers at risk of liability, and care receivers without the full protection of their human rights.