THE PROBLEM WITH PUNITIVE POWERS: A CONSIDERATION OF THE HIGH COURT’S DECISION IN EGH19 v COMMONWEALTH OF AUSTRALIA

This article considers the High Court’s decision in EGH19 v Commonwealth of Australia, the latest development in the constitutional limits on executive restraints imposed on non-citizens following NZYQ and YBFZ. It argues that EGH19 is significant not merely because the Commonwealth’s amended monitoring and curfew regime was again held invalid, but because the judgments expose deeper instability in the Lim doctrine and the constitutional characterisation of punitive power. Although the amended provisions were more carefully tailored than their predecessors, a majority held that they still impermissibly conferred punitive power on the Executive. The Court divided, however, on why that was so. The judgments reveal unresolved tensions concerning the relationship between punishment and protection, the relevance of past offending to future risk, the role of procedural safeguards, and the meaning of the ‘exceptional cases’ recognised in Lim. Ultimately, EGH19 suggests that the difficulty with schemes of this kind may not be cured by legislative refinement alone, and that comparable restraints may need to be imposed by courts.