THE EXTENSION OF THE WOTTON APPROACH TO CH III: PREVENTING OR ENCOURAGING HERESY?

CONTENTS I Introduction II The Legislation-Centric Approach to Constitutional Freedoms III Constitutional Limits on Executive Detention A Detention as Exclusively Judicial B The Immigration Exception C Habeas Corpus IV AJL20 [...]
In its recent decision of Commonwealth v AJL20, the High Court of Australia determined that the prolonged detention of an 'unlawful non-citizen' under the Migration Act was lawful. This was despite an accepted failure by the executive to remove him from Australia 'as soon as reasonably practicable' as required by the legislation. In determining whether the circumstances of his detention went beyond established limits derived from ch III of the Constitution, the Court applied a 'legislation-centric approach' in which constitutional limits apply only at the level of statute, and not at the level of executive action taken pursuant to such statute. In this article, I argue that the extension of the legislation-centric approach--previously utilised only in constitutional freedoms' cases--to the ch III context is problematic. Courts conducting judicial review of administrative action must have the capacity to apply the constitutional limits derived from ch III directly, without consequently invalidating entire statutory provisions. I then explore the capacity of contemporary administrative law to do so, finding that in many immigration detention cases, such limits can be conceptualised within the requirement that executive officers act for a proper purpose.