About Article

There have been recent calls for the parliament to re-introduce a system of internment of those suspected of future terrorist activ ity. Preventive detention regimes have a long history within the common law, and to some extent our laws still contain preventive detention aspects. International legal materials would arguably generally prohibit such regimes; however, they also contain excep tions permitting governments to derogate from fundamental human rights in times of emergency or war. This article considers whether, if the Australian Parliament were to implement such a scheme, it would be constitutionally valid. This involves determin ing whether the Commonwealth’s defence power would support such a law, and the nature of the power to preventively detain an individual. Could such a power be exercised by a government minister, or would it need to be exercised, if at all, by a court?