Executive detention and the Australian Constitution

Article

Gray, Anthony. 2014. "Executive detention and the Australian Constitution." Australian Journal of Administrative Law. 22 (1), pp. 43-62.
Article Title

Executive detention and the Australian Constitution

ERA Journal ID36744
Article CategoryArticle
Authors
AuthorGray, Anthony
Journal TitleAustralian Journal of Administrative Law
Journal Citation22 (1), pp. 43-62
Number of Pages20
Year2014
PublisherLawbook Co.
Place of PublicationAustralia
ISSN1320-7105
Web Address (URL)https://sites.thomsonreuters.com.au/journals/2015/01/13/australian-journal-of-administrative-law-update-november-2014/
Abstract

This papers considers constitutional arguments regarding the executive detention of individuals, in light of the Queensland Government's Criminal Law Amendment (Public Interest Declarations) Act 2013 (Qld), which reposed power to order the detention of individuals within a particular class in the Queensland Governor, upon the recommendation of the Queensland Attorney-General. It argues the High Court should invalidate legislation which confers such powers upon the executive, since detention is almost always a punitive act, and punitive detention is an exclusively judicial function. It further argues that to confer such powers on members of the executive undermines the institutional integrity of Queensland courts contrary to the requirements of Chapter III.

KeywordsChapter III; preventive detention; Kable; Fardon; institutional integrity
Contains Sensitive ContentDoes not contain sensitive content
ANZSRC Field of Research 2020480702. Constitutional law
Public Notes

This article was first published by Thomson Reuters in the Australian Journal of Administrative Law and should be cited as Anthony Gray, Executive detention and the Australian Constitution, (2014) 22 AJ Admin L 43. For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at https://www.thomsonreuters.com.au/en-au/contact.html. The official PDF version of this article can also be purchased separately from Thomson Reuters at http://sites.thomsonreuters.com.au/journals/subscribe-or-purchase.

Byline AffiliationsSchool of Law and Justice
Institution of OriginUniversity of Southern Queensland
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Gray, Anthony. 2009. "Options for the doctrine of Crown immunity in 21st century Australia." Australian Journal of Administrative Law. 16 (4), pp. 200-210.
Mockery and jury trial in Australia
Gray, Anthony. 2008. "Mockery and jury trial in Australia." Malleswari, V. B. (ed.) Jury trial: a legal concept. Hyderabad, India. Icfai University Press.
Workplace relations reform: summary and constitutionality
Gray, Anthony. 2006. "Workplace relations reform: summary and constitutionality." Queensland Lawyer. 26 (5), pp. 257-267.
Alert and alarmed: the National Security Information Act (Cth) 2004
Gray, Anthony. 2007. "Alert and alarmed: the National Security Information Act (Cth) 2004." University of Tasmania Law Review. 24 (2), pp. 1-23.
Mockery and the right to trial by jury
Gray, Anthony. 2006. "Mockery and the right to trial by jury." QUT Law Review. 6 (1), pp. 66-88.
Queensland criminal law may be unconstitutional
Gray, Anthony. 2004. "Queensland criminal law may be unconstitutional." Queensland Lawyer. 25, pp. 75-85.
A head for business regulation: the corporations power and the federal government's workplace relations reforms
Gray, Anthony. 2006. "A head for business regulation: the corporations power and the federal government's workplace relations reforms." Commercial Law Journal. 1 (1), pp. 56-67.
High court validates federal government's IR reforms
Gray, Anthony. 2006. "High court validates federal government's IR reforms." Commercial Law Journal. 1 (3), pp. 15-23.
High court validates restrictions on lawyer advertising
Gray, Anthony. 2005. "High court validates restrictions on lawyer advertising." Queensland Lawyer. 26 (3), pp. 131-139.
Religious freedom and Section 116 of the Australian Constitution: would a banning of the hijab or burqa be constitutionally valid?
Gray, Anthony. 2011. "Religious freedom and Section 116 of the Australian Constitution: would a banning of the hijab or burqa be constitutionally valid?" Forum on Public Policy: a journal of the Oxford Round Table. 2011 (2), pp. 1-33.
Constitutionality of criminal organisation legislation
Gray, Anthony. 2010. "Constitutionality of criminal organisation legislation." Australian Journal of Administrative Law. 17 (4), pp. 213-228.
Sustainable juries : thinking outside peer jury criminal trials
Gray, Anthony and Barnett, Eola. 2010. "Sustainable juries : thinking outside peer jury criminal trials." Journal of Judicial Administration. 20 (1), pp. 18-38.
Police power to conduct a search without reasonable suspicion in Australia: a comparative perspective
Gray, Anthony. 2011. "Police power to conduct a search without reasonable suspicion in Australia: a comparative perspective." European Public Law. 17 (2), pp. 331-347.
Why vicarious liability must be abandoned
Gray, Anthony. 2011. "Why vicarious liability must be abandoned." Australian Business Law Review. 39 (2), pp. 67-84.
The rule of law and reasonable suspicion
Gray, Anthony. 2011. "The rule of law and reasonable suspicion." Australian Journal of Human Rights. 16 (2), pp. 53-79.
Enforcement of punitive damages awards in the convention on choice of court agreements
Gray, Anthony. 2009. "Enforcement of punitive damages awards in the convention on choice of court agreements." Willamette Journal of International Law and Dispute Resolution. 17 (1), pp. 105-156.
Federal spending power in three federations: Australia, Canada and the United States
Gray, Anthony. 2011. "Federal spending power in three federations: Australia, Canada and the United States." Common Law World Review. 40 (1), pp. 13-39. https://doi.org/10.1350/clwr.2011.40.1.0215
Immunity of the Crown from statute and suit
Gray, Anthony. 2010. "Immunity of the Crown from statute and suit." Canberra Law Review. 2010 (1), pp. 1-35.
The common law and the Constitution as protectors of rights in Australia
Gray, Anthony. 2010. "The common law and the Constitution as protectors of rights in Australia." Common Law World Review. 39 (2), pp. 119-156.
Unfair contracts and the Consumer Law Bill
Gray, Anthony. 2009. "Unfair contracts and the Consumer Law Bill." QUT Law Review. 9 (2), pp. 155-175.
Provocation and the homosexual advance defense in Australia and the United States: law out of step with community values
Gray, Anthony. 2010. "Provocation and the homosexual advance defense in Australia and the United States: law out of step with community values." The Crit. 3 (1), pp. 53-72.
Forum non conveniens in Australia: a comparative analysis
Gray, Anthony. 2009. "Forum non conveniens in Australia: a comparative analysis." Common Law World Review. 38 (3), pp. 207-244.
Extending time limits in sexual abuse cases
Gray, Anthony. 2009. "Extending time limits in sexual abuse cases." Common Law World Review. 38 (4), pp. 342-384. https://doi.org/10.1350/clwr.2009.38.4.0199
Reform of rules of private international law in Manitoba: a comparative perspective
Gray, Anthony. 2009. "Reform of rules of private international law in Manitoba: a comparative perspective." Journal of Politics and Law. 2 (4), pp. 26-38.
A guaranteed right to trial by jury at state level?
Gray, Anthony. 2009. "A guaranteed right to trial by jury at state level?" Australian Journal of Human Rights. 15 (1), pp. 97-125.
State-based business licensing in Australia: the Constitution, economics and international perspectives
Gray, Anthony. 2009. "State-based business licensing in Australia: the Constitution, economics and international perspectives." Deakin Law Review. 14 (2), pp. 165-188.
Due process, natural justice, Kable and organisational control legislation
Gray, Anthony. 2009. "Due process, natural justice, Kable and organisational control legislation." Public Law Review. 20 (4), pp. 290-305.
To give and to receive: the Australian government's proposed electoral finance reforms
Gray, Anthony and Jones, Nicky. 2010. "To give and to receive: the Australian government's proposed electoral finance reforms." University of Tasmania Law Review. 28 (2), pp. 182-209.
Australian 'bikie' laws in the absence of an express Bill of Rights
Gray, Anthony. 2009. "Australian 'bikie' laws in the absence of an express Bill of Rights." Journal of International Commercial Law and Technology. 4 (4), pp. 274-286.
Excise taxation in the Australian federation: a legal and economic perspective
Gray, Anthony. 2009. Excise taxation in the Australian federation: a legal and economic perspective. Berlin, Germany. VDM Verlag Dr. Muller.
Human rights in Australia: looking forward, looking back
Gray, Anthony. 2009. Human rights in Australia: looking forward, looking back. Berlin, Germany. VDM Verlag Dr. Muller.
The regulation of electoral financing
Gray, Anthony. 2009. "The regulation of electoral financing." Oxford University Comparative Law Forum. 2009, pp. 1-21.
Criminal sanctions for cartel behaviour
Gray, Anthony. 2008. "Criminal sanctions for cartel behaviour." QUT Law Review. 8 (2), pp. 364-379.
Time to abolish the rule in Searle v Wallbank for negligence and nuisance claims
Gray, Anthony. 2008. "Time to abolish the rule in Searle v Wallbank for negligence and nuisance claims." Deakin Law Review. 13 (2), pp. 101-130.
Legal studies in action 2: Queensland
Gray, Anthony, Young, Karyl and Kenman, Sandra. 2009. Legal studies in action 2: Queensland. Brisbane, Australia. John Wiley & Sons.
Getting it right: where is the place of the wrong in multinational torts cases?
Gray, Anthony. 2008. "Getting it right: where is the place of the wrong in multinational torts cases?" The Sydney Law Review. 30 (3), pp. 537-550.
Loss distribution issues in multinational torts claims: giving substance to substance
Gray, Anthony. 2008. "Loss distribution issues in multinational torts claims: giving substance to substance." Journal of Private International Law. 4 (2), pp. 279-309.
Choice of law: the presumption in the proof of foreign law
Gray, Anthony. 2008. "Choice of law: the presumption in the proof of foreign law." University of New South Wales Law Journal. 31 (1), pp. 136-157.
Reinterpreting the trade and commerce power
Gray, Anthony. 2008. "Reinterpreting the trade and commerce power." Australian Business Law Review. 36 (1), pp. 29-46.
Policing price fixing in petroleum markets
Gray, Anthony. 2007. "Policing price fixing in petroleum markets." Australian Business Law Review. 35 (6), pp. 398-406.
FOI and the freedom of political communication
Gray, Anthony. 2007. "FOI and the freedom of political communication." Deakin Law Review. 12 (1), pp. 193-217.
The guaranteed right to vote in Australia
Gray, Anthony. 2007. "The guaranteed right to vote in Australia." QUT Law Review. 7 (2), pp. 178-197.
An exploratory study to determine students' perceptions of the value of interaction in an Australian classroom context and the perceived impact on learning outcomes
McDonald, Jacquelin, Birch, Dawn, Gray, Anthony, Gururajan, Raj, Hingst, Raymond D. and Maguire, Michael. 2005. "An exploratory study to determine students' perceptions of the value of interaction in an Australian classroom context and the perceived impact on learning outcomes." CRLL 2005: What a Difference a Pedagogy Makes: Researching Lifelong Learning and Teaching. Glasgow, Scotland 24 - 26 Jun 2005 London, United Kingdom.
Legal studies in action 1: Queensland (3rd edition) (includes teacher support manual)
Gray, Anthony and Herlihy, Gail. 2008. Legal studies in action 1: Queensland (3rd edition) (includes teacher support manual). Brisbane, Australia. John Wiley & Sons.
How Welfare to Work and WorkChoices will change womens' lives
Collins, Pauline and Gray, Anthony. 2006. "How Welfare to Work and WorkChoices will change womens' lives." Bailey, Janis, Broadbent, Kaye, Edwards, Linda, McDonald, Paula and Whitehouse, Gillian (ed.) Our Work .... Our Lives: National Conference on Women & Industrial Relations (2006). Brisbane, Australia 12 - 14 Jul 2006 Brisbane, Australia.
Legal studies in action 1 (2nd ed)
Herlihy, Gail and Gray, Anthony. 2004. Legal studies in action 1 (2nd ed). Brisbane, Australia. John Wiley & Sons.
Legal studies in action 2 (2nd ed)
Kenman, Sandra and Gray, Anthony. 2003. Legal studies in action 2 (2nd ed). Brisbane, Australia. John Wiley & Sons.
Remedy issues in multinational tort claims: substance and procedure and choice of law
Gray, Anthony. 2007. "Remedy issues in multinational tort claims: substance and procedure and choice of law." University of Queensland Law Journal. 26 (1), pp. 1-26.
The interplay of Welfare to Work and WorkChoices
Gray, Anthony and Collins, Pauline. 2007. "The interplay of Welfare to Work and WorkChoices." Hecate: an interdisciplinary journal of women's liberation. 33 (1), pp. 126-140.
The rise of Renvoi in Australia: creating the theoretical framework
Gray, Anthony. 2007. "The rise of Renvoi in Australia: creating the theoretical framework." University of New South Wales Law Journal. 30 (1), pp. 103-126.
Conflict of laws in international torts cases: the need for reform on both sides of the Tasman
Gray, Anthony. 2006. "Conflict of laws in international torts cases: the need for reform on both sides of the Tasman." Yearbook of New Zealand Jurisprudence. 9, pp. 113-140.
Freedom from disclosure of information
Gray, Anthony. 2007. "Freedom from disclosure of information." Alternative Law Journal . 32 (1), pp. 7-10.
Worry to women of Welfare to Work and WorkChoices
Collins, Pauline and Gray, Anthony. 2006. "Worry to women of Welfare to Work and WorkChoices." 61st Conference of the Australasian Law Teachers' Association (ALTA 2006). Melbourne, Australia 04 - 07 Jul 2006 Sydney, Australia.
Detaining future dangerous offenders: dangerous law
Gray, Anthony. 2004. "Detaining future dangerous offenders: dangerous law." Deakin Law Review. 9 (1), pp. 243-259.
Flexibility in conflict of laws multistate tort cases: the way forward in Australia
Gray, Anthony. 2004. "Flexibility in conflict of laws multistate tort cases: the way forward in Australia." University of Queensland Law Journal. 23 (2), pp. 435-463.
Preventive detention laws: High Court validates Queensland's Dangerous Prisoners Act 2003
Gray, Anthony. 2005. "Preventive detention laws: High Court validates Queensland's Dangerous Prisoners Act 2003." Alternative Law Journal . 30 (2), pp. 75-79.
Precedent and policy: Australian industrial relations reform in the 21st century using the corporations power
Gray, Anthony. 2005. "Precedent and policy: Australian industrial relations reform in the 21st century using the corporations power." Deakin Law Review. 10 (2), pp. 440-459.
Standard of proof, unpredictable behaviour and the High Court of Australia's verdict on preventive detention laws
Gray, Anthony. 2005. "Standard of proof, unpredictable behaviour and the High Court of Australia's verdict on preventive detention laws." Deakin Law Review. 10 (1), pp. 177-207.