Preserving due process or warehousing the undesirables: To what end the separation of judicial power of the Commonwealth?
Date of this Version
The High Court has decided that Australian courts can order imprisonment for ‘non-punitive purposes’. This paper attacks this conclusion. Imprisonment is always punitive, and to the extent that the High Court’s recent decisions ignore this, they are incorrect, inconsistent with precedent, and inconsistent with the methodology the Court has previously applied to the characterisation of laws alleged to infringe Ch III of the Constitution. The principle that a person can be punished only for a breach of the law is fundamental to the separation of judicial power under the Constitution, and an incident of that principle is that punishment can be ordered only by a court after a criminal trial. This principle should be applied in Australia whenever an order is made relegating a person to a punitive environment.
This document has been peer reviewed.