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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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