Preventative Detention: A Necessary National Security Tool

Abstract

In the last 20 years governments around the world have asserted that the threat of terrorism requires the adoption of preventative detention strategies to authorise the detention of terrorism suspects before they carry out their intended actions. In Australia, the United Kingdom and Canada, parliaments have amended their respective criminal codes to authorise preventative detention in cases of terrorism. This paper examines the preventative detention strategies employed in those jurisdictions, as well as the human rights implications and interaction between the criminal law and terrorism law. It then examines the preventative detention measures adopted in all three jurisdictions including the safeguards to in place to ensure restrictions are consistent with the fundamental principles and values underlying the criminal justice system and human rights obligations relevant in those jurisdictions. Finally, the paper outlines some of the policy challenges which remain to be addressed if New Zealand considered the introduction of preventative detention.