The Rehabilitation of Preventive Detention

The right to liberty is a fundamental human right, entrenched as a customary right and enshrined in numerous international right covenants through the protection of the individual against arbitrary interface by the State. Nevertheless, the right to personal liberty is not absolute, with the state also having the legitimate right to ensure public safety. Over the last few decades, however, legislatures around the world have increasingly implemented preventive detention regimes, and in a wider variety of circumstances. This chapter begins with an overview of the right of liberty and its particular application to indefinite and preventive detention measures. It provides short histories of the indefinite and preventive detention regimes in Germany and Australia and the recent findings of both ECHR and the UNHRC that the use of preventive detention in both countries was incompatible with human right covenants. It concludes with an outline of how indefinite detention measures can continue to be implemented in a manner that is also compatible with human rights.