Antipodean perspectives on preventive justice: The High Court and Serious Crime Prevention Orders

Abstract

ABSTRACT Preventive justice as a field of scholarship emerged in response to the proliferation of preventive measures in the later part of the twentieth Century, and the threat preventive measures pose to individual liberties. Collectively, this scholarship seeks to articulate principled limits on state action to prevent harm. However, preventive justice remains an emergent field of scholarship, with many outstanding questions about its scope, utility and the expediency of its normative project. In the decision in Vella v Commissioner of Police (NSW) (2019) 93 ALJR 1236, the High Court, for the first time, engages with preventive justice scholarship. This article examines how the distinctions between the majority and minority treatment of the Kable principle in Vella illuminate many of the debates and challenges raised in the literature on preventive justice, the implications of this division across the Court and what it means more broadly for preventive justice in Australia.