Page:ASF17 v Commonwealth of Australia.pdf/36

Edelman J

as based upon notions such as retribution and deterrence and some analogous circumstances of "protective punishment".

98 An extreme hypothetical example where the first requirement is contravened might be where legislation authorised the executive to detain aliens who have committed an offence for a period to be chosen by the executive based on the offence. An inference might be drawn that the true purpose of the law is to confer on the executive a power of executive punishment. Alternatively, an inference that the true purpose of a law is to permit executive punishment might arguably be drawn if, in the absence of provisions in the Migration Act such as ss 197C and 198(5A), the executive had the power or duty to remove an alien who had committed an offence to a place where the alien had been found to have (or was awaiting a finding concerning) a need for protection.

99 Where the circumstances do not support such an inference of executive punishment (using "punishment" in its strict sense), the general legislative purpose of removal of classes of aliens from Australia is not "refuted" because it applies in a blunt manner. As members of this Court have correctly said of the power of removal which the purpose seeks to support, "[o]ne would expect any sovereign legislature to have such a power, which is essential to national security". The importance of that power precludes any narrow, deconstructed approach to the purpose for which it exists. The legitimate purpose of removal of classes of aliens from Australia does not vanish merely because the law which effects that purpose might, at the boundaries and in limited cases, "have very little, or no, effect in advancing the purpose".

100 An analogy that illustrates this point is the decision of Gageler J in Unions NSW v New South Wales. In that case, his Honour was one of only two members of the Court positively to uphold the legitimacy of the purpose of s 29(10) of the Electoral Funding Act 2018 (NSW). His Honour held that the legitimate purpose of the provision was to achieve a level playing field for all participants in political