The State of Personal Liberty in Australia after M47: A Risk Theory Analysis of Security Rights

Abstract

In Plaintiff M47/2012 v Director General of Security, the High Court of Australia unanimously applied a test of compatibility with human rights related statutory responsibilities to an impugned public interest criterion. A clear majority of the High Court appeared willing to consider whether the right to personal liberty in Australia has constitutional protections extending to refugees. This article applies Ulrich Beck’s risk theory to recent preventive, administrative detention of refugees under adverse security assessments to examine the relationship between liberty rights and the decision-makers responsible for assessing, and for managing, national security risk. Risk theory casts light on how the collective right to national security relies on respecting every individual’s right to liberty and security of person. The High Court’s formal, values-based method of statutory interpretation is endorsed as an effective accountability mechanism capable of protecting fundamental values expressive of human rights.