Gageler CJ
Gordon J
Edelman J
Steward J
Gleeson J
Jagot J
Beech-Jones J
11.
of an alien must be limited to a period that is "reasonably capable of being seen as necessary" for one or other of two legitimate and non-punitive purposes, identified in terms of removing the alien from Australia or enabling an application by the alien for permission to remain in Australia to be made and considered, is difficult to reconcile with the constitutional holding in Al-Kateb that ss 189(1) and 196(1) of the Migration Act have valid application to an unlawful non-citizen in respect of whom there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future. The statements of background principle in the reasoning in Lim are also difficult to reconcile with some passages in the reasoning of the majority in Al-Kateb which can be read as suggesting that Ch III of the Constitution has diminished application to the detention of an alien pursuant to a law of the Commonwealth Parliament enacted under s 51(xix) of the Constitution.[1]
The tension between Al-Kateb and Lim was highlighted by McHugh J in Re Woolley; Ex parte Applicants M276/2003.[2] Addressing the potential for ss 189(1) and 196(1) of the Migration Act to result in indefinite detention, McHugh J nevertheless said in Re Woolley:[3]
"In Lim, Brennan, Deane and Dawson JJ regarded the prescribed maximum time limit on detention for which the Act then provided as one element that rendered the Executive's powers of detention under the Act reasonably capable of being seen as necessary for the purpose of making and considering entry applications … No doubt cases may also arise where the connection between the alleged purpose of detention and the length of detention becomes so tenuous that it is not possible to find that the purpose of the detention is to enable visa applications to be processed pending the grant of a visa. If the law in question has such a tenuous connection, the proper inference will ordinarily be that its purpose is punitive. The fact that the law may also have a non-punitive purpose will not save it from invalidity."
