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Legislative Assembly for the ACT: 1998 Week 4 Hansard (25 June) . . Page.. 1173 ..

custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. Every citizen is "ruled by the law, and by the law alone" and "may with us be punished for a breach of law, but he can be punished for nothing else" Dicey, Introduction to the Study of the Law of the Constitution, 10th ed (1959), p 202.. As Blackstone wrote 61 Commentaries, 17th ed (1830), Bk 1, pars 136-137., relying on the authority of Coke 62 Institutes of the Laws of England (1809), Pt 2, p 589.:

"The confinement of the person, in any wise, is an imprisonment. So that the keeping [of] a man against his will ... is an imprisonment ... To make imprisonment lawful, it must either be by process from the courts of judicature, or by warrant from some legal officer having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a habeas corpus."

There are some qualifications which must be made to the general proposition that the power to order that a citizen be involuntarily confined in custody is, under the doctrine of the separation of judicial from executive and legislative powers enshrined in our Constitution, part of the judicial power of the Commonwealth entrusted exclusively to Ch III courts. The most important is that which Blackstone himself identified in the above passage, namely, the arrest and detention in custody, pursuant to executive warrant, of a person accused of crime to ensure that he or she is available to be dealt with by the courts. Such committal to custody awaiting trial is not seen by the law as punitive or as appertaining exclusively to judicial power. Even where exercisable by the Executive, however, the power to detain a person in custody pending trial is ordinarily subject to the supervisory jurisdiction of the courts, including the ancient common law" jurisdiction, "before and since the conquest, to order that a person committed to prison while awaiting trial be admitted to bail 63 See Blackstone, op cit, Bk 4, pay 298.. Involuntary

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