Gageler CJ
Gordon J
Edelman J
Steward J
Gleeson J
Jagot J
Beech-Jones J
14.
purpose. In other words, detention is penal or punitive unless justified as otherwise.[1]
The purpose of the law in this context, as elsewhere in constitutional discourse, must be identified at an appropriate level of generality.[2] So identified at the appropriate level of generality, the purpose is that which the law is designed to achieve in fact.[3] For an identified legislative objective to amount to a legitimate and non-punitive purpose, the legislative objective must be capable of being achieved in fact. The purpose must also be both legitimate and non-punitive. "Legitimate" refers to the need for the purpose said to justify detention to be compatible with the constitutionally prescribed system of government. Consistently with the principle in Lim, the legitimate purposes of detention – those purposes which are capable of displacing the default characterisation of detention as punitive – must be regarded as exceptional.[4]
Consistency with the Lim principle accordingly entails that "a Commonwealth statute which authorises executive detention must limit the duration of that detention to what is reasonably capable of being seen to be necessary to effectuate an identified statutory purpose which is reasonably capable of being achieved".[5]
- ↑ North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at 611–612 [98]; Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 342 [24], 344 [33]; Benbrika v Minister for Home Affairs [2023] HCA 33 at [35], [63]; Jones v The Commonwealth [2023] HCA 34 at [43], [78], [153].
- ↑ Alexander v Minister for Home Affairs (2022) 96 ALJR 560 at 584 [103], 612 [242]; 401 ALR 438 at 462, 498–499.
- ↑ Brown v Tasmania (2017) 261 CLR 328 at 392 [209]; Unions NSW v New South Wales (2019) 264 CLR 595 at 657 [171].
- ↑ Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27–28.
- ↑ CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at 625 [374]. See also Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 111 [184], 163 [392].
