Page:NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/26

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

exclude the non-citizen extends to a power to investigate and determine an application by the non-citizen for permission to remain, and to hold the noncitizen in detention for the time necessary to follow the required procedures of decision-making. The non-citizen is not being detained as a form of punishment, but as an incident of the process of deciding whether to give the non-citizen permission to enter the Australian community. Without such permission, the non-citizen has no legal right to enter the community, and a law providing for detention during the process of decision-making is not punitive in nature."

The approach of Edelman J

The approach of Edelman J is slightly different, although perhaps only because it disaggregates the concept of punishment as used in Lim, an approach which has not yet been recognised by this Court. His approach begins with the premise that Lim uses the concept of punishment in two different senses. The core instance of the first sense is where harsh consequences are imposed based upon classic criminal notions of just desert. Chapter III of the Constitution extends beyond these classic criminal notions of punishment based upon just desert to other, analogous instances of "protective punishment". The purpose of a law which is concerned with punishment in this sense would be illegitimate.

A second, and separate, sense of punishment was also recognised in Lim. The separate sense is a novel conception of punishment which concerns forms of detention that have been described as "prima facie" punitive, or which have been deemed to be punitive, because the detention imposed is disproportionate to, in the sense of being not reasonably capable of being seen as necessary for, a