15.
It is appropriate to identify the point of departure between our reasoning and the reasoning of the majority in Al-Kateb in support of the constitutional holding. In Al-Kateb,[1] McHugh J observed:
"A law requiring the detention of the alien takes its character from the purpose of the detention. As long as the purpose of the detention is to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community, the detention is non-punitive."
This Court is unanimous in concluding that this is an incomplete and, accordingly, inaccurate statement of the applicable principle. Two different approaches are taken to that conclusion. The first approach is taken by six of us and set out below. The second approach is taken by Edelman J.
The approach of six members of the Court
This statement of the scope of the power to detain aliens differs from that in Lim, which, as noted, has become authoritative. The application of the principle in Lim, although ultimately directed to a single question of characterisation (whether the power is properly characterised as punitive), requires an assessment of both means and ends, and the relationship between the two.[2] Applying that principle in circumstances where there is no real prospect of the removal of the alien from Australia becoming practicable in the reasonably foreseeable future, it cannot be said that, objectively determined, the "purpose of the detention is to make the alien available for deportation" or "to prevent the alien from entering Australia or the Australian community" pending the making of a decision as to whether or not they will be allowed entry.
Therein lies the reason why the constitutional holding in Al-Kateb, having been reopened, must be overruled. The Lim principle would be devoid of substance were it enough to justify detention, other than through the exercise of judicial power in the adjudgment and punishment of guilt, that the detention be designed
