Skip to main content
Article
Preserving due process or warehousing the undesirables: To what end the separation of judicial power of the Commonwealth?
Sydney Law Review (2008)
  • Patrick Keyzer, Bond University
Abstract
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.
Keywords
  • judicial power,
  • Commonwealth,
  • imprisonment,
  • High Court
Disciplines
Publication Date
March 1, 2008
Publisher Statement
Keyzer, P. (2008). Preserving due process or warehousing the undesirables: To what end the separation of judicial power of the Commonwealth? Sydney Law Review, 30(1), 101-114.

Access the journal

2008 HERDC submission.

© Copyright Sydney Law Review and Patrick Keyzer 2008
Citation Information
Patrick Keyzer. "Preserving due process or warehousing the undesirables: To what end the separation of judicial power of the Commonwealth?" Sydney Law Review (2008)
Available at: http://works.bepress.com/patrick_keyzer/8/