Page:ASF17 v Commonwealth of Australia.pdf/37

Edelman J

discourse. This purpose remained legitimate even though Gageler J also recognised that the means adopted to achieve this legitimate purpose might not permit some third-party campaigners "meaningfully to compete on the playing field". In other words, it is a different question from that of legitimacy of purpose to ask whether the means by which a law implements Parliament's purpose are proportionate, including where the purpose is contradicted or frustrated in some of its applications.

101 In the absence of established and clear precedent and in the absence of any stream of authority, I maintain the view that I expressed in NZYQ that the Commonwealth Parliament in ss 189(1) and 196(1) of the Migration Act is ursuing only the legitimate purpose of removal of classes of aliens from Australia. Indeed, that view is consistent with the approach to the interpretation of ss 189(1) and 196(1) taken by Hayne J (with whom McHugh J and Heydon J agreed on this point) and Callinan J in the majority of this Court in Al-Kateb v Godwin, which was upheld in NZYQ in relation to the statutory interpretation holding. On that question of interpretation, this Court in NZYQ did not accept the minority approach of Gummow J, whose articulation of the statutory purpose of ss 189(1) and 196(1) was the removal of aliens from Australia "which is reasonably in prospect". In short, the purpose of ss 189(1) and 196(1), properly articulated, is the general removal of classes of aliens from Australia. It is not a purpose to be further qualified or deconstructed according to the individual circumstances of particular aliens. This general purpose therefore is not refuted simply because the removal of ASF17 from Australia is not practicable in the reasonably foreseeable future.

Application of the second requirement to this appeal

The requirement arising from Lim

102 The second requirement that must be satisfied for the validity of a law that authorises the detention of aliens is that the law be "non-punitive". In relation to this second requirement, "punitive" is used in a novel sense to describe a law that adopts means (detention) that are "disproportionate" to its legitimate end or