The inclusive potential of ‘judicial power’: Australian developments

Australia’s tough stance on undocumented migration is well known. At their most extreme, these policies have seen thousands of asylum seekers, including children, languish for years in prison-like detention centres. Given their insulation from populist politics, Australian judges are uniquely placed to use their power to directly affect the course of government policy on migration and have done so in a number of tangible ways.
This paper focuses on one particular judicial device that has served to humanise detained asylum seekers, even while it has often not vindicated their specific legal claims. That device, in its simplest terms, has been to define the ‘judicial power’ conferred by the Australian Constitution in a way that makes the ordering of punitive detention an exclusively judicial function. From this position the High Court of Australia, has been able to insist that the executive government has no power to engage in detention that can be characterised as punitive.