In recent cases in which prisoners have used Chapter III of the Commonwealth Constitution to challenge draconian legislation, the High Court of Australia (‘HCA’) has deployed formalistic reasoning when rejecting their claims. The latest such case was Minister for Home Affairs v Benbrika (‘Benbrika’), where a majority upheld the continuing detention order scheme created by Division 105A of the Criminal Code Act 1995 (Cth), essentially on the basis that imprisonment is not necessarily punishment. Judges should never use such reasoning to avoid striking down laws that breach Chapter III. When they do so, they fail properly to hold power to account. However, the result in Benbrika seems largely justified. Judges are rightly cautious about using Chapter III to strike down punitive laws; and, as Edelman J showed, the Court in Benbrika could exercise restraint without resorting to formalistic evasion. His Honour correctly acknowledged that the HCA has only a limited ability to protect unpopular minorities.

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(2022) 45(1) UNSWLJ 209: https://doi.org/10.53637/WWJH7374.