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Court Rebukes Detention of Children
Created 01.08.2003 - 17:11

The Family Court that detaining children is unlawful. Affirming a previous decision, Justice Strickland said he had "determined prima facie that children are unlawfully in detention and there is a real issue to be tried about that." Counsel for the children applied for their immediate release pending a full trial which is due to begin on September 15.

"The court has made a decision which we believe is flawed," he said.

"We are of the view that this is not an order for Family Court determination and the court is acting in excess of [its] power and we have appealed that decision."

The balance between an overly cautious judiciary and one which bucks at every decision of Parliament has yet to be found in the Australian courts. While the Family Court techinically has the power to decide a case in contravention to illegitimate legislation, such practices are generally frowned upon as being 'activist'.

At the same time, the need for in our administration of government is highlighted by cases like these. Clearly, the reigning majority of the Liberal party in the lower house cannot be allowed to canter out of speed with the views of the public and the international humanitarian community. An active process of consideration and regular invocation of (autonomous) judicial power is necessary if we are to maintain a balanced and representative democracy.

The government is appealing Strickland J's finding to the High Court.

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Cite as: Jaani Riordan, ‘Court Rebukes Detention of Children’ (2003) Jaani.net Internet Law and Technology <http://www.jaani.net/view/2003/08/01/child-detention-illegal>.
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