This article analyses High Court’s decision in Minister for Home Affairs v Benbrika [2021] HCA 4; 388 ALR 1; 95 ALJR 166, particularly the extent to which protective detention mechanisms are responsive to the federal judicial power. Specific focus is paid to the implications of the decision on the principle originally propounded by Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affair (1996) 189 CLR 1 at 11-13, known as ‘the Lim Principle’. The Court’s categorisation of the preventative detention scheme in Div. 105A of the Criminal Code (Cth) as being ‘non-punitive’ will also be explored.
The article is available at this link.
Douglas Freeburn
Barrister, Higgins Chambers
29 October 2024