Protecting Us from the Forces of Evil: Judicial and Non-Judicial Detention in Australia

Francesca Dominello

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Protecting Us from the Forces of Evil: Judicial and Non-Judicial Detention in Australia

In: State Power and the Legal Regulation of Evil

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Francesca Dominello

Francesca Dominello
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Type:: Chapter

Pages:: 55–65

DOI:: https://doi.org/10.1163/9781848880290_007

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[T]hese animals represent pure evil. These animals deserve never to see the exit sign at the prison gate. These animals are reviled and shunned by anyone who has ever heard of their heinous crimes. There is not a person in our community who does not need protection from these animals and the security of knowing they will never again be free.

Australia has a history of detaining persons with (and without) judicial orders. 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 chapter 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 also functions in a punitive way.

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State Power and the Legal Regulation of Evil

E-Book ISBN:: 9781848880290

Publisher:: Brill

Print Publication Date:: 23 Apr 2010

Subjects
- Philosophy
  - Ethics & Moral Philosophy
  - Social & Political Philosophy

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Protecting Us from the Forces of Evil: Judicial and Non-Judicial Detention in Australia

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State Power and the Legal Regulation of Evil

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