Patrick Keyzer's article puts anothe chill through my bones. Still it does provide some hope that a sustainable argument for finding Ruddock's terror legislation is constitutionally invalid. For instance - it is clear from S.73 of the Australian Constitution that the imposition of judicial order and sentences are functions (or powers) of both State and Federal Courts. If the doctrine of separation of functions (or powers) is to apply to those Courts, then no Parliament should be able to impose any form of punitive detention made by proxy under the pretext of a judicial order.
I don't know if such an argument has ever been made - no doubt there is plenty of precedent for mandatory sentences - but whether such precedents had the argument applied under our Constitution is doubtful.

I fully agree with Patrick's point in regard to statutory Bills of Rights. They would be no more effective under the Howard regime than the effect ratification of the ICCPR currently has. But the High Court is not much protection against rights abuses either. It won't even sustain indidvidual rights to vote in federal elections (despite emphatic wording in S.41).
I also agree that ordinary people need a speedy means of having Constitutional matters heard by a superior Court without facing punitive costs and charges when they lose. We should not be made subject to laws of dubious constitutional validity without a practical means of testing them. Perhaps a specific Constitutional Court should be established for that purpose.

The possible answer to this problem is the same as that to the IR reforms (see my previous posts [ http://forum.onlineopinion.com.au/thread.asp?article=68#19711 ] & [ http://forum.onlineopinion.com.au/thread.asp?article=3687#19583 ]), the Court must re-embrace strict legalism, as opposed to making value driven judgments, as epitomized by that of Gleeson CJ in the CFMEU case in 2000 [ http://www.austlii.edu.au/au/cases/cth/HCA/2000/34.html ]. Ironically, this conservative credo, could possibly prevent a great deal of the current legislation being upheld by the HCA (see this article by John Gava [ http://www.austlii.edu.au/cgi-bin/disp.pl/au/journals/MULR/2003/7.html ]).

Perhaps it is possible, if hitherto thought unrealistic, to seek in strict legalism, the salvation of the implied freedoms of association and free speech (for the nature of these freedoms see the article by Elisa Arcioni [ http://www.austlii.edu.au/cgi-bin/disp.pl/au/journals/SydLRev/2003/17.html ]; also Adrienne Stone[ http://www.austlii.edu.au/cgi-bin/disp.pl/au/journals/MULR/2001/13.html ]; and Dan Meagher [ http://www.austlii.edu.au/cgi-bin/disp.pl/au/journals/MULR/2004/14.html ]).

The approach typifying the legalistic approach to ultra vires laws, particularly those impinging upon political association and free speech, is demonstrated in the Communist Party Case [ http://www.austlii.edu.au/au/cases/cth/HCA/1951/5.html ], where the Commonwealth purported to make it illegal to belong to a proscribed organization (which incidentally bears more than a passing resemblance to this issue).