Gageler CJ
Gordon J
Edelman J
Steward J
Gleeson J
Jagot J
Beech-Jones J
9.
did not contravene Ch III of the Constitution contained three statements of background principle which have come to be regarded as authoritative.
The first principle was that "any officer of the Commonwealth Executive who purports to authorize or enforce the detention in custody of … an alien [subject to qualification in the case of an enemy alien in a time of war] without judicial mandate will be acting lawfully only to the extent that his or her conduct is justified by valid statutory provision".[1] That was a more specific statement of the fundamental and long-established principle that no person – alien or non-alien – may be detained by the executive absent statutory authority or judicial mandate.[2]
The second principle was that the effect of Ch III is that, exceptional cases aside, "the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt".[3] That statement of principle reflects that Ch III is concerned with substance and not mere form, and that it is the involuntary deprivation of liberty itself that ordinarily constitutes punishment.[4] It also recognised that it is not sufficient merely that detention be in consequence of an exercise of judicial power; other than in exceptional cases, it is necessary that the detention be in consequence of the performance of the "exclusively judicial function of adjudging and punishing criminal guilt".[5] Although the statement of principle in Lim referred to a "citizen", the principle has been held to apply to an alien albeit that an alien's status, rights
- ↑ (1992) 176 CLR 1 at 19. See Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 at 230–231 [24]; Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 101–102 [147]–[149], 105–106 [162]–[163], 158 [372].
- ↑ See Williams v The Queen (1986) 161 CLR 278 at 292; Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 520–521, 528.
- ↑ (1992) 176 CLR 1 at 27. See Minister for Home Affairs v Benbrika (2021) 272 CLR 68 at 90–91 [18]–[19], 108 [65], 130–131 [130]–[134], 159–160 [207]–[208].
- ↑ (1992) 176 CLR 1 at 27–28.
- ↑ See Minister for Home Affairs v Benbrika (2021) 272 CLR 68 at 110–111 [71].
