Like medicine, law is replete with axioms of prevention. ‘Prevention is better than cure’ has a long pedigree in both fields. 17th century jurist Sir Edward Coke observed that ‘preventing justice excelleth punishing justice’. A century later, Sir William Blackstone similarly stated that ‘preventive justice is ...preferable in all respects to punishing justice’. This book evaluates the feasibility and legitimacy of state attempts to regulate prevention. Though prevention may be desirable as a matter of policy, questions are inevitably raised as to its limits and legitimacy, specifically, how society reconciles the desirability of averting risks of future harm with respect for the rule of law, procedural fairness and human rights.
While these are not new questions for legal scholars, they have been brought into sharper relief in policy and academic circles in the wake of the September 11 terrorist attacks. Over the past 15 years, a body of legal scholarship has tracked the intensified preventive focus of anti-terrorism law and policy, observing how this focus has impacted negatively upon traditional legal frameworks. However, preventive law and policy in other contexts, such as environmental protection, mental health, immigration and corruption has not received sustained focus. This book extends that body of scholarship, through use of case studies from these diverse regulatory settings, in order to examine and critique the principles, policies and paradoxes of preventive justice.
"Whereas earlier scholars looked upon preventive justice as a source and means of regulation, the powerfully argued contributions to this volume provide forceful reasons to consider whether we would do better talk about regulating preventive justice."
Professor Lucia Zedner, Oxford University
Table of Contents
Foreword Lucia Zedner Part I The Preventive Justice Concept 1. Critical Reflections on Preventive Justice Tamara Tulich 2. Preventive Justice, the Precautionary Principle and the Rule of Law Jocelyn Stacey 3. Amendments to the Australian Terrorism Control Order Scheme: A Precautionary Tale Susan Donkin Part II Preventive (in)justice: Case Studies in Mental Health, Security and Migration 4. Preventive Justice, Risk of Harm and Mental Health Laws Bernadette McSherry 5. Policing Persons with Mental Illness: Preventive Justice or Preventing Injustice? Helen Punter 6. Protection Seekers and Preventive Justice: Preventive Immigration Detention in Australia and the United Kingdom Peter Billings and Dallal Stevens 7. Preventive Justice Principles for Countering Violent Extremism Keiran Hardy 8. Combatting Terrorism in Australia Through Preventative Detention Orders Svetlana Tyulkina and George Williams Part III Evaluating Preventive Justice: Assessing Legitimacy and Effectiveness 9. A New Preventive Justice Framework for Assessing Counter-Terrorism Law and Policy: Integrating Effectiveness and Legitimacy Tim Legrand and Teneille Elliott 10. ‘‘If at first you don’t succeed…’: Effectiveness and the Evolution of Preventive Organised Crime Measures Rebecca Ananian-Welsh 11. Preventive Justice, the Courts and the Pursuit of Legitimacy Sarah Murray 12. Regulatory Bargaining in the Shadows of Preventive Justice: Deferred Prosecution Agreements Simon Bronitt