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Gageler CJ
Gordon J
Edelman J
Steward J
Gleeson J
Jagot J
Beech-Jones J

19.

legitimate purpose.[1] In this sense, the law is treated as punitive because it employs means that are disproportionate to its legitimate purpose.

The approach of Edelman J treats the relevant purpose of ss 189(1) and 196(1) as legitimate. His Honour would express the purpose by adapting the phrase used by the Solicitor-General of the Commonwealth, based on words of Dixon J[2] – "detention pending removal" – to what the provisions are designed to achieve in fact. As so expressed, the purpose is detention pending removal to ensure that the unlawful non-citizen will remain "available for deportation when that becomes practicable".[3] It is possible for Parliament to enact a law which seeks to achieve a purpose by measures which, at the boundaries, might have very little, or no, effect in advancing the purpose. In this respect, parliamentary purposes are no different from those of other groups. If a specialist sports squad implements a program with a purpose of training to reach the Olympics, that remains a genuine purpose even if under that program some members of the squad have no real prospect of achieving that goal in the reasonably foreseeable future. There is a difference between a purpose and its implementation. It is a difference between ends and means.

The problem, for Edelman J, with the decision of their Honours in the majority in Al-Kateb does not arise from their recognition of the purpose of ss 189(1) and 196(1) as legitimate but arises because they either ignored or paid insufficient attention to the proportionality requirement of Lim. As McHugh J said in Re Woolley,[4] "[n]one of the Justices in the majority in [Al-Kateb] applied the 'reasonably capable of being seen as necessary' test as the determinative test for ascertaining whether the purpose of the detention was punitive". For instance, Hayne J in Al-Kateb[5] focused only on the first sense of punishment in Lim and did "not consider that the Ch III question which is said now to arise can be answered

  1. ↑ Jones v The Commonwealth [2023] HCA 34 at [149].
  2. ↑ Koon Wing Lau v Calwell (1949) 80 CLR 533 at 581.
  3. ↑ Al-Kateb v Godwin (2004) 219 CLR 562 at 584 [45], approved in The Commonwealth v AJL20 (2021) 273 CLR 43 at 64 [25].
  4. ↑ (2004) 225 CLR 1 at 30–31 [71].
  5. ↑ (2004) 219 CLR 562 at 650 [265]–[266].
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