Executive detention as a site for creative constitutional interpretation in Australia

The Australian High Court’s ‘Lim principle’–that punitive detention must remain an exclusively judicial function–has evolved through phases that have confined it narrowly and then, more recently, reinvigorated it with new scope and potential. In inhospitable constitutional terrain, the evolution of these restrictions on executive detention should be viewed as an achievement, rather than a failure of law to protect the most powerless of constitutional others. Recent developments, considered here, indicate that the protection could be further strengthened and expanded, whilst also undermining any suggestion that the Court is directly amenable to populist pressure.