the Act to require that visa application processes had to be completed within a reasonable time.
Gummow J said that the Act did contain temporal limitations on detention, because it allowed a person
detained to request immediate removal (as in Lim), and it only permitted detention where there was a
reasonable prospect of removal.
One interpretation of this ﬁnding is that Gummow J may have
looked at the legislation differently in terms of constitutionality if there had been no such temporal
limitations to detention.
There is some debate regarding whether questions of proportionality are relevant in assessing
whether the challenged legislation is within a head of power, and whether it is contrary to Ch III (for
instance, that it has a punitive purpose). In relation to the heads of power, there has been some use of
the concept of proportionality, as well as some criticism, and the orthodox view is that proportionality,
if relevant at all to consideration of heads of power,
is of relevance to so-called “purposive” heads of
power, such as the defence power and the external affairs power,
rather than the “topic” heads of
power, although the Constitution itself does not suggest different interpretative techniques according to
whether a power is considered purposive or non-purposive in nature
and some justices appear to
support the use of proportionality in relation to “topic” powers.
There are examples of the use of
proportionality in relation to limits on power,
for example in s 92 jurisprudence,
and in relation to
It is argued that proportionality can be relevant in assessing whether a law is
compatible with the requirements of Ch III.
For example, a law providing for executive detention
may be said to be for a non-punitive purpose. However, if it is considered to be disproportionate to the
achievement of such purpose, it may be considered to be in fact a punitive law, and thus offensive to
Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 38.
Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 52.
Leask v Commonwealth (1996) 187 CLR 579 at 594-595, where Brennan CJ agreed with the view of Dawson J in the same
case that proportionality was not relevant in assessing whether a law was one within a head of power, with respect to
non-purposive powers (at 605-606), Gummow J agreed (at 626) and Toohey J did not favour its use (at 615).
Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 88 ALJR 690 at 697-698 (French CJ, Hayne,
Crennan, Kiefel, Bell and Keane JJ); in relation to s 51(xxix), see Commonwealth v Tasmania (1983) 158 CLR 1 at 259-260
(Deane J); Richardson v Forestry Commission (1988) 164 CLR 261 at 311 (Deane J), 346 (Gaudron J); in relation to s 51(vi),
see Thomas v Mowbray (2007) 233 CLR 307 at 359 (Gummow and Crennan JJ) (with whom Gleeson CJ agreed), 384 (Kirby J),
453 (Hayne J). In Victoria v Commonwealth (1996) 187 CLR 416 at 488, Brennan CJ, Toohey, Gaudron, McHugh and
Gummow JJ found that the concept of “reasonable proportionality” would not always be helpful in determining whether a law
was within a head of power (or, at least, the external affairs power or a purposive power); Cunliffe v Commonwealth (1994) 182
CLR 272 at 321-322 (Brennan J), 355 (Dawson J); Nationwide News v Wills (1992) 177 CLR 1 at 89 (Dawson J).
Leask v Commonwealth (1996) 187 CLR 579 at 635, Kirby J reﬂected unfavourably on the suggestion that interpretative
techniques should differ according to whether the power was considered purposive or non-purposive.
Cunliffe v Commonwealth (1994) 182 CLR 272 at 296-297 (Mason CJ); Nationwide News v Wills (1992) 177 CLR 1 at 29
(Mason CJ), 94 (Gaudron J); Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270 at 286 (Deane and
Gaudron JJ), 295 (McHugh J). In Davis v Commonwealth (1988) 166 CLR 79 at 100, Mason CJ, Deane and Gaudron JJ did not
use the word “proportionality” but they applied a “reasonably appropriate and adapted” test often equated to proportionality. In
Leask v Commonwealth (1996) 187 CLR 579 at 616, Gaudron J said proportionality was relevant in assessing whether a law
was with respect to a head of power, and in whatever context purpose was relevant; McHugh J thought that proportionality
could be useful in deciding whether sufficient connection existed between a law and a head of power (at 616); Kirby J also
thought it a useful concept (at 635).
Leask v Commonwealth (1996) 187 CLR 579 at 595 (Brennan CJ); Cunliffe v Commonwealth (1994) 182 CLR 272 at 376
Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 472 (Mason CJ Brennan Deane Dawson and Toohey JJ).
Nationwide News v Wills (1992) 177 CLR 1; Lange v Australian Broadcasting Corp (1997) 189 CLR 520; Roach v Electoral
Commissioner (2007) 233 CLR 162 at 199 (Gummow, Kirby and Crennan JJ); Rowe v Electoral Commissioner (2010) 243 CLR
1 at 20 (French CJ) and an extensive discussion by Kiefel J (at 131-145); Tajjour v New South Wales (2014) 88 ALJR 860
at 875-876 (French CJ), 888 (Crennan, Kiefel and Bell JJ), 893 (Gageler J); Kiefel S, “Proportionality: A Rule of Reason”
(2012) 23 PLR 85; Michaelson C, “Reforming Australia’s National Security Laws: The Case for a Proportionality-Based
Approach” (2010) 29(1) U Tas LR 31.
McDonald, n 51 at 44-50; “because of the nature of the Chapter III limitation, the relevant question is whether the law is for
a non-punitive object or purpose. That question must be answered by applying a test of proportionality” (McDonald, n 51 at 45);
Zines L, The High Court and the Constitution (5th ed, Federation Press, 2008) p 289; Gordon, n 51 at 73-74.
The Australian quarantine and biosecurity legislation: Constitutionality and critique
(2015) 22 JLM 788 799