Preventative Detention of Terrorist Suspects in Australia and the United States: A Comparative Constitutional Analysis

Since the September 11 terrorist attacks, the United States and Australian governments have asserted that the threat of terrorism requires the adoption of preventative detention strategies to authorize the arrest and detention of terrorists before they carry out their horrific acts. The two countries' approaches to preventative detention, however, have been distinct. In the United States, the Bush Administration has adopted pretextual measures that authorized the preventative, and potentially indefinite, detention of terrorist suspects as enemy combatants or as material witnesses. In Australia, Parliament placed preventative detention directly into its Criminal Code, authorizing the imposition of preventative detention and control orders in cases of terrorism. This Article examines and compares these unique preventative detention strategies employed by the U.S. and Australia in the war on terrorism, and analyzes their constitutionality in light of the U.S. Supreme Court and Australian High Court precedent addressing administrative detention. In the United States, the Supreme Court, armed with the Bills of Rights, has been more assertive than its Australian counterpart in striking down detention schemes which authorize indefinite regulatory detention without charges. Nevertheless, the preventative detention strategies employed by the United States are far more intrusive of individual liberties than the Australian legislative model. Yet, while the Australian measures incorporate more procedural protections and safeguards from abuse than their U.S. counterpart, and therefore are the more favored approach, neither scheme is consistent with the fundamental principles and values underlying both the U.S. and Australian systems of criminal justice and due process.