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Editors --- "Legal Studies exercise based on 'Lim and the "voluntary" immigration detention of children'" [2004] AltLawJl 68; (2004) 29(5) Alternative Law Journal 227


JULES ALDOUS addresses the separation of powers based on the preceding article 'Lim and the ''voluntary" immigration detention of children'.

There have been a number of important questions raised by the provisions of the mandatory detention in the Migration Act 1958 (Cth). Although the issues are complex they provide an excellent example of the role of the courts and illustrate the doctrine of the separation of powers. This exercise aims to guide students in their reading of the article ‘The separation of powers – Lim and the “voluntary” immigration detention of children’ by Tania Penovic.

As a starting point, students need to be familiar with some of the key terms used in the article. Some students will find the reading difficult. This exercise is designed so that teachers can read through each section with the class. Students, working in small groups, complete the ‘Understanding the reading’ questions to check their comprehension and reflect on the issues raised by responding to the ‘Reflection’ questions.

Key terms

Using a dictionary, check your understanding of the following terms:

Judicial review

Separation of powers


Landmark decision






Common law


Due process







Mandatory detention


The beginnings of mandatory detention

Understanding the reading:

1. What changes to the Migration Act were introduced in 1992?

2. According to the Migration Amendment Act 1992 who had the power to decide if asylum seekers could be detained? Could this decision be reviewed?

3. Why were these amendments introduced?

4. What questions were raised in the case of Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (‘Lim’)?

5. What is the role of the High Court? Explain why this case would be heard in the High Court.

6. Explain the doctrine of the separation of powers.

7. Whey did the High Court consider the issue of the doctrine of the separation of powers in the case of ‘Lim’?

8. The High Court held that the provisions of the Migration Amendment Act 1992 were valid under the ‘aliens power’ in s51 (xix) of the Constitution. Under what circumstances can detention be seen as coming under the ‘aliens power’ in the Constitution?


The article states: ‘If detention was not limited to one of these alien powers purposes, it would be punitive in character and violate the separation of powers’. Why would detention that is ‘punitive in character’ be considered to be a judicial power?

The High Court found that the detention was in essence ‘voluntary’.

• How could an asylum seeker bring an end to their detention?

• To what extent do you think that detention was ‘voluntary’?

The current detention regime

Understanding the reading:

1. What is the current law for the detention of asylum seekers?

2. What were the facts in the Al Masri case?

3. Why was detention in this case seen as ‘punitive’?


How are concepts of human rights and common law rights reflected in the decision in this case?

Children within the constitutional framework

1. What action did the government take in response to the decision in the Al Masri case?


The article states that members of parliament were concerned that: ‘an unaccountable and unelected judiciary does not usurp the role of the elected government’. What is the relationship between Parliament and the courts in the law-making process?

So what is the future of judicial review of detention?

Understanding the reading:

1. What are the facts in the case of ‘M276’?

2. Outline the key arguments for and against the detention of children raised in this case.

3. What was the decision of the High Court in this case?


The author strongly argues against the notion of voluntary immigration detention. Using dot points, present a summary of the arguments presented. Do you agree? Why or why not?

JULES ALDOUS teaches legal studies at Shelford Anglican School in Melbourne and has written several legal studies text books for secondary school students.

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