Page:NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/20

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

Nothing said in Al-Kateb has been taken subsequently to detract from the significance of Lim. To the contrary, in Plaintiff M76/2013, Crennan, Bell and Gageler JJ restated and reaffirmed the constitutional principle for which Lim remained authority after Al-Kateb in terms that "conferring limited legal authority to detain a non-citizen in custody as an incident of the statutory conferral on the executive of powers to consider and grant permission to remain in Australia, and to deport or remove if permission is not granted, is consistent with Ch III if, but only if, the detention in custody is limited to such period of time as is reasonably capable of being seen as necessary for the completion of administrative processes directed to those purposes".

During the 20 years since Al-Kateb, the Lim principle has been repeatedly acknowledged and frequently applied. The principle was most recently applied in Alexander v Minister for Home Affairs, in Benbrika v Minister for Home Affairs and in Jones v The Commonwealth.

The consequence is that the constitutional holding in Al-Kateb has come increasingly to appear as an outlier in the stream of authority which has flowed from Lim. In language used by French CJ in Wurridjal, deriving from that of Dixon CJ in Attorney-General (Cth) v Schmidt, the authority of the constitutional holding in Al-Kateb has been "weakened" by later decisions to a degree that weighs strongly in favour of its reopening. To reopen the constitutional holding in Al-Kateb, and to do so on the first occasion on which the facts of a case squarely engage the constitutional holding, involves no disrespect for the approach of the