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35 U. Tas. L. Rev. 136 (2016)
Protecting Individual Liberty: Recent Applications of the Lim Principle

handle is hein.journals/utasman35 and id is 316 raw text is: Protecting individual liberty: Recent applications of the Lim principle BRYANNA WORKMAN* Abstract This essay received 2nd place in the national Sir Anthony Mason Constitutional Law Essay Prize competition in September 2016. It is included in Volume 35(2) of the University of Tasmania Law Review as a non-peer reviewed article. It explores two recent applications of the principle established in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs, which states that the executive can detain persons if the detention can 'reasonably capable as being seen as necessary' to achieve a non-punitive purpose. The essay argues that the majority in North Australian Aboriginal Justice Agency v Northern Territory applied the proportionality component of the test at an inappropriately low-threshold. It also argues that the form over substance approach taken by the majority in Plaintiff M68/2015 v Minister for Immigration and Border Protection limits the applicability of the Lim principle, and is contrary to the joint reasons in Lim. The essay concludes that, in its current form, the Lim principle is ineffective at preventing the executive from undertaking arbitrary detention and, ultimately, it is an inadequate protection of personal liberty. I INTRODUCTION In the absence of a Bill of Rights, the separation of powers doctrine implied into the Australian Constitution provides an important safeguard for individual liberty. The right to be free from arbitrary detention has been protected for centuries by the ancient writ of habeus corpus.' It has become a fundamental freedom that underlies Australia's constitutional framework.2 In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs,3 the High Court confirmed that the adjudgment and punishment of criminal guilt is an exclusively judicial function. The Commonwealth Parliament cannot confer upon the executive a power to detain which is punitive and not consequent upon a Third year BSc-LLB student at the University of Tasmania in 2016 and Editorial Board Member of the University of Tasmania Law Review in 2016. The author wishes to thank Ms Anja Hilkemeijer for her support and assistance in discussing matters raised in this essay. The author is responsible for any errors contained within. Re Bolton; Ex parte Beane (1987) 162 CLR 514, 520-1. 2 Ibid. See also Wilson v Ministerfor Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 11. 3 (1992) 176 CLR 1 ('Lim').

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