Gageler CJ
Gordon J
Edelman J
Steward J
Gleeson J
Jagot J
Beech-Jones J
13.
majority in Al-Kateb. Using again the language of French CJ in Wurridjal, reopening Al-Kateb "does not require the taxonomy of 'truth' and 'error'" but rather reflects "an evolving understanding of the Constitution albeit subject to the conservative cautionary principle referred to earlier".[1]
Having regard to the importance of continuity and consistency in the application of fundamental constitutional principle, the legislative reliance and implicit legislative endorsement which weighed in favour of not reopening the statutory construction holding in Al-Kateb necessarily assumes less significance in considering reopening of its constitutional holding. The same is true of administrative inconvenience. Adapting what was said by Dixon CJ, McTiernan, Fullagar and Kitto JJ in R v Kirby; Ex parte Boilermakers' Society of Australia,[2] whilst considerations of legislative reliance and administrative inconvenience are appropriately treated as considerations having weight, "it is necessary to stop short of treating them as relieving this Court of its duty of proceeding according to law in giving effect to the Constitution which it is bound to enforce".
The weight of the consideration of continuity and consistency in the application of constitutional principle ultimately compels the conclusion that leave to reopen the constitutional holding in Al-Kateb should be granted.
Reconsidering Al-Kateb in light of the Lim principle
The question whether the constitutional holding in Al-Kateb should be overruled is to be determined by reference to the consistency of that holding with the Lim principle as stated in Lim itself and as understood and applied in subsequent cases.
Expressed at an appropriate level of generality, the principle in Lim is that a law enacted by the Commonwealth Parliament which authorises the detention of a person, other than through the exercise by a court of the judicial power of the Commonwealth in the performance of the function of adjudging and punishing criminal guilt, will contravene Ch III of the Constitution unless the law is reasonably capable of being seen to be necessary for a legitimate and non-punitive
