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Edelman J

have a less restrictive effect". The expression "reasonably capable of being seen as" emphasises the degree of latitude, or margin of appreciation, afforded to Parliament in formulating laws to advance a legitimate purpose.

105 In Lim, the joint judgment gave an example of a provision which would be "punitive" in this novel sense of disproportionate. It was the provision that was then s 54Q of the Migration Act, which empowered the executive to detain a "designated person" for up to 273 days for processing of an application, even if the person had already been held in detention for years previously. The otherwise disproportionate effect of that provision was only removed by s 54P, which required a designated person to be removed from Australia as soon as practicable if that person requested removal.

Application of the second requirement to ss 189(1) and 196(1) of the Migration Act

106 In this appeal, the Commonwealth relied heavily on the reasoning of the joint judgment in Lim, concerning what was then s 54P of the Migration Act, by which the validity of the legislative scheme was preserved because "it always lies within the power of a designated person to bring his or her detention in custody to an end by requesting to be removed from Australia". But their Honours in Lim were not contemplating, or addressing, a scenario where a person is not capable (for medical reasons or due to psychiatric illness) of requesting removal from Australia. Nor were they contemplating, or addressing, a scenario in which an alien did request removal from Australia but refused to consent to removal to a particular country in circumstances where that person had been found to have a well-founded belief that their removal would result in persecution (including execution).