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May 2016

CRU intern, TIMOTHY SMARTT, has contributed the following blog post:

Senator Jacqui Lambie’s proposal to introduce legislation providing for the forced rehabilitation of drug addicts has stimulated a great deal of public debate. The tentative proposal is for legislation that would allow parents of ice-addicted children (including those aged above 18) to arrange for the Commonwealth government to involuntarily detain and detox their children. While the focus has been on the desirability of such legislation, a preliminary question arises as to whether it would be constitutionally valid. This blog post considers the constitutionality of the proposal and its prospects of surviving a High Court challenge. While recognising the unreliability attending predictions of this nature, I guardedly conclude that the proposed legislation could be written so as to survive a challenge before the High Court.

Does the Commonwealth Parliament have the power to pass the legislation?

All Commonwealth legislation must fall within the scope of the Commonwealth’s legislative power prescribed by the Constitution. Since the legislation can only realistically fall within the Commonwealth’s power to legislate with respect to ‘external affairs’, this post will restrict itself to analysing the legislation’s connection to this power.

The external affairs power empowers the Commonwealth Parliament to enact legislation that implements treaties to which Australia is party. For present purposes, the treaty most conducive to validity is the Single Convention on Narcotic Drugs of 1961 (‘the Treaty’), a multilateral treaty with 185 parties and to which Australia became party in 1972. On the strength of current High Court jurisprudence, the legislation would likely have to satisfy three tests to be supported by the external affairs power.

First, the legislation must be capable of being reasonably considered as appropriate and adapted to implementing the Treaty: Victoria v Commonwealth (1996) 187 CLR 416, 487 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ). Naturally, that inquiry requires regard to the obligations imposed by the Treaty. Article 4 imposes a general obligation on parties with respect to the control of narcotics. It provides:

The parties shall take such legislative and administrative measures as may be necessary: (a) To give effect to and carry out the provisions of this Convention within their own territories

One relevant provision is Article 38, which stipulates that:

The Parties shall give special attention to and take all practicable measures for the prevention of abuse of drugs and for the early identification, treatment, education, after-care, rehabilitation and social reintegration of the persons involved and shall co-ordinate their efforts to those ends.

It seems that detaining individuals for the sole purpose of providing addiction treatment is capable of being reasonably considered as appropriate and adapted to rehabilitating drug abusers. While views could differ on the proposal’s effectiveness, any difference of opinion is immaterial to the legislation’s constitutionality, so long as the legislation is capable of being reasonably considered as directed at the goals in Article 38. And in view of the intuitive connection between involuntary detoxification and rehabilitation (and any empirical evidence the Commonwealth wishes to rely on), it seems that the proposed legislation could be written in a way that is so capable.

Secondly, the proposed legislation must implement Treaty obligations defined ‘with sufficient specificity to direct the general course taken by signatory states’: Victoria v Commonwealth (1996) 187 CLR 416, 486 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ). The Treaty does exactly that. Article 38 provides the goals for which signatories should strive, and Article 4 directs use of legislation to achieve these goals. Consequently, this obligation is significantly more specific than a number of treaty obligations under consideration in Victoria v Commonwealth, which did not mention legislation but were nevertheless found sufficiently specific to support provisions of the Industrial Relations Act 1998 (Cth).

Third, the Commonwealth must not have entered into the Treaty ‘merely as a means of conferring legislative power upon the Commonwealth Parliament’: Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 260 (Brennan J). The Treaty is a multilateral convention with 185 parties, ratified by Australia in 1972, and is thus nothing like a sham bilateral Treaty designed to confer power on the Commonwealth.

As the jurisprudence currently stands, it therefore appears that the Commonwealth could show that the external affairs power supports the legislation. The next issue, then, is whether the Commonwealth could adequately respond to another likely argument of a challenger, which is that the legislation infringes the Constitution’s separation of powers.

Separation of powers

The Constitution’s structure contemplates a division between government branches: Chapter I assigns functions to the Parliament, Chapter II assigns functions to the Executive and Chapter III assigns functions to the Judicature. To maintain this separation, Parliament cannot vest any branch of government with a function that belongs exclusively to another branch. As held by Brennan, Deane and Dawson JJ in Chu Kheng Lim (1992), one of those functions is the ‘punitive’ detention of citizens, which is exclusively reserved to the judiciary. It would therefore be wise for the Commonwealth to show that the detention mandated by the proposed legislation is not ‘punitive’ (if the involuntary rehabilitation is to be ordered by a person or body other than a court).

It seems that the Commonwealth could succeed on this point. That is because the joint reasons of the aforementioned judges in Chu Kheng Lim explicitly identify ‘detention in cases of mental illness’ as an example of ‘non-punitive’ detention that the executive can order. Moreover, it appears that there is a sufficient similarity between severe addiction to hard drugs and psychotic disorders that are classically regarded as meriting detention for the protection of the sufferer and the community. Both involve psychological states that sever the connection between the sufferer and reality. Both involve the possibility of maladaptive behavior that can seriously injure the sufferer. And both involve the possibility of violence perpetrated against other members of the community. Thus, so long as the proposed legislation targets addiction with a sufficient level of analogy to severe psychotic illness, there is a strong argument for the detention’s classification as ‘non-punitive’.

Conclusion

For the preceding reasons, it appears at this inchoate stage of the proposed legislation’s life that it could be drafted to avoid constitutional invalidity. The ultimate outcome will depend very much on the specific provisions of the legislation. But considering Senator Lambie’s idea at a high level of abstraction, this post takes the position that the proposed legislation is probably constitutional and could therefore withstand a challenge.

SUGGESTED CITATION: Timothy Smartt, 'The Constitutionality of Senator Lambie's Proposed Involuntary Detox Laws' Constitutional Critique, 2 May 2016 (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).