Protecting us from the forces of evil: judicial and non-judicial detention in Australia

In recent times various pieces of legislation authorizing long-term detention of certain persons have been the subject of constitutional challenge in the High Court of Australia. The challenges relate to legislation that authorizes detention for purposes other than punishment for breaches of the criminal law. This paper will focus on a common argument running through all of these cases, that the legislation under challenge offends the judicial power of the Commonwealth as enshrined in the Australian Constitution. In most of these cases the constitutional challenge has failed. Particular attention will be given to the rationale underlying these decisions that supports the validity of these laws by emphasizing the need for protection: whether of the broader Australian community, or of the very individuals who have been detained. Detention for the purpose of providing such protection may be a legitimate use of legislative power, but it becomes less than clear whether such use of power is legitimate when it functions to deprive individual liberty in a punitive way.