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University of New South Wales Law Journal

Faculty of Law, UNSW
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Rienstra, Anna --- "Editorial" [2015] UNSWLawJl 21; (2015) 38(2) UNSW Law Journal 619



Liberty is a fundamental right,[1] which forms the basis of other rights.[2] While any kind of imprisonment has severe consequences for individual rights, detention imposed for purposes other than criminal punishment raises the question of whether these consequences are justified, and in addition, challenges key legal principles such as fair process, the separation of powers and the rule of law. This is reflected in the general rule, expressed in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs, that ‘the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt’.[3] However, liberal use has been made of the exceptions to this general rule, and the legal regimes for detention in Australia are numerous and varied.

Asylum seekers and other non-citizens without visas are subject to mandatory immigration detention, the validity of which has been upheld on several occasions.[4] Individuals can be detained to prevent an imminent terrorist attack, or to preserve evidence of a recent terrorist act, for up to 48 hours by the Australian Federal Police,[5] and for up to 14 days under state and territory legislative schemes.[6] The continuing detention of sex offenders and other high risk offenders who have served their sentences is permitted,[7] provided the relevant legislation does not compromise the institutional integrity of the court authorising detention.[8] Mentally ill persons can be detained if they are unfit to be tried, if they are acquitted on the grounds of insanity or automatism,[9] or following a civil commitment.[10] Further, in criminal justice contexts, detention is utilised for questioning[11] and remand.[12] In all of these cases, it is argued that restricting the liberty of the person detained is justified by the need for some form of community protection.

This thematic component aims to facilitate analysis of the theory and practice of detention, with a view to generating insights into the appropriateness of particular forms of detention and the use of detention in the Australian legal system more broadly. At the intersection of public law and criminal law, the thematic component juxtaposes perspectives on detention that may not have otherwise been considered together.

The seven articles in the thematic component focus on some of the most topical forms of detention: immigration detention, the detention of suspected terrorists and the continuing detention of high risk offenders. They explore the significance of the High Court’s recent decision in Plaintiff S4/2014 v Minister for Immigration and Border Protection;[13] the legality of detaining Australia’s asylum seekers in Nauru;[14] the detention of asylum seekers at sea prior to their entry into the migration zone;[15] the purpose and appropriateness of anti-terrorism preventative detention orders;[16] the relationship between anti-terrorism preventative detention orders and the separation of judicial power;[17] the legal framework for and practical challenges relating to the continuing detention of sex offenders;[18] and the nature and implications of post-sentence preventive detention and extended supervision of high risk offenders.[19]

Despite the diversity of subject matter, there are important points of resonance between the articles. To note just one example, articles relating to both immigration detention[20] and anti-terrorism preventative detention orders[21] refer to Justice Gummow’s statement that ‘[t]he very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite detention at the will of the Executive’.[22]

This Issue has come to fruition through the dedication of many people, to whom I am deeply grateful.

First, I would like to thank Dr Nicola McGarrity, Dr Vicki Sentas and Dr Paul Kildea from the UNSW Faculty of Law for their assistance with the development of the thematic topic. Their direction and encouragement have been invaluable, and the thematic component has benefitted greatly from their expertise. I would also like to thank Professor David Dixon, Dean of the UNSW Faculty of Law, for his ongoing encouragement, and Associate Professors Michael Handler and Lyria Bennett Moses, the Journal’s Faculty Advisors, for their wise counsel throughout the publication process.

I would like to acknowledge the anonymous peer reviewers for their considered assessments of the articles submitted to this Issue. Without their help, a student-run journal could not ensure the publication of high-quality submissions and provide each submitting author with constructive feedback.

Special thanks go to the members of the Executive Committee for their unwavering support, good humour and friendship. It has been a pleasure to work with these people and their contribution to this Issue has been enormous. I would particularly like to thank the Executive Editor James Norton for his guidance and commitment to the Journal. Thanks must also go to the members of the Editorial Board, who have edited each article with diligence and tenacity.

I am extremely grateful to Dr Michael Grewcock from the UNSW Faculty of Law for writing the Foreword to the thematic component, and to Julian Burnside AO QC for delivering the keynote address at the launch of the Issue at Allens on 21 May 2015. The Journal is honoured by their respective contributions.

I would also like to extend my gratitude to our Premier Sponsors: Allens, Herbert Smith Freehills and King & Wood Mallesons. Their generous support is greatly appreciated.

Finally, I would like to thank the authors for their wide-ranging and insightful contributions to the general and the thematic components of this Issue. It has been a privilege to prepare these articles for publication.

[*] Editor, Issue 38(2), 2015.

[1] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 9; Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) arts 3, 9.

[2] Sir William Blackstone, Commentaries on the Laws of England (Clarendon Press, first published 1765, 1966 ed) vol 1, 130.

[3] (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ).

[4] See, eg, Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562.

[5] Criminal Code Act 1995 (Cth) sch 1 s 105.4.

[6] Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT) pt 2; Terrorism (Police Powers) Act 2002 (NSW) pt 2A; Terrorism (Emergency Powers) Act 2003 (NT) pt 2B; Terrorism (Preventative Detention) Act 2005 (Qld); Terrorism (Preventative Detention) Act 2005 (SA); Terrorism (Preventative Detention) Act 2005 (Tas); Terrorism (Community Protection) Act 2003 (Vic) pt 2A; Terrorism (Preventative Detention) Act 2006 (WA).

[7] See, eg, Crimes (High Risk Offenders) Act 2006 (NSW).

[8] Kable v DPP (NSW) [1996] HCA 24; (1997) 189 CLR 51; Fardon v A-G (Qld) [2004] HCA 46; (2004) 223 CLR 575.

[9] See, eg, Mental Health (Forensic Procedures) Act 1900 (NSW) ss 17(3)(a), 27(a).

[10] See, eg, Mental Health Act 2007 (NSW) ch 2.

[11] See, eg Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) pt 9.

[12] See, eg, Bail Act 2013 (NSW).

[13] Joyce Chia, ‘Back to the Constitution: The Implications of Plaintiff S4/2014 for Immigration Detention’ [2015] UNSWLawJl 23; (2015) 38 University of New South Wales Law Journal 628.

[14] Azadeh Dastyari, ‘Detention of Australia’s Asylum Seekers in Nauru: Is Deprivation of Liberty by Any Other Name Just As Unlawful?’ [2015] UNSWLawJl 24; (2015) 38 University of New South Wales Law Journal 669.

[15] Patrick Emerton and Maria O’Sullivan, ‘Rethinking Asylum Seeker Detention at Sea: The Power to Detain Asylum Seekers at Sea under the Maritime Powers Act 2013 (Cth)’ [2015] UNSWLawJl 25; (2015) 38 University of New South Wales Law Journal 695.

[16] Svetlana Tyulkina and George Williams, ‘Preventative Detention Orders in Australia’ [2015] UNSWLawJl 26; (2015) 38 University of New South Wales Law Journal 738.

[17] Rebecca Ananian-Welsh, ‘Preventative Detention Orders and the Separation of Judicial Power’ [2015] UNSWLawJl 27; (2015) 38 University of New South Wales Law Journal 756.

[18] Patrick Keyzer and Bernadette McSherry, ‘The Preventive Detention of Sex Offenders: Law and Practice’ [2015] UNSWLawJl 28; (2015) 38 University of New South Wales Law Journal 792.

[19] Tamara Tulich, ‘Post-Sentence Preventive Detention and Extended Supervision of High Risk Offenders in New South Wales’ [2015] UNSWLawJl 29; (2015) 38 University of New South Wales Law Journal 823.

[20] Chia, above n 13, 628.

[21] Ananian-Welsh, above n 17, 769.

[22] Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, 612 [137] (Gummow J), quoting Hamdi v Rumsfeld, [2004] USSC 2730; 542 US 507, 554–5 (Scalia J) (2004).

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