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Gageler CJ Gordon J Steward J Gleeson J Jagot J Beech-Jones J

whether there is a real prospect of removal becoming practicable in the reasonably foreseeable future is derived. He argued that deliberate non-cooperation on the part of a detainee in the undertaking of an administrative process necessary to facilitate their removal from Australia suffices to prevent the constitutional limitation identified in NZYQ from being engaged so that no question arises as to whether there is a real prospect of removal becoming practicable in the reasonably foreseeable future. He argued in the alternative for the view adopted and acted upon by the primary judge.

30 The appeal should be dismissed for the following reasons.

The constitutional limitation

31 The constitutional limitation unanimously expressed in NZYQ in terms that the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia comes to an end when "there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future" was unanimously explained in NZYQ to follow directly from the principle in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs and to be an appropriate expression of the Lim principle in the context of the Act.

32 That explanation of the constitutional limitation was given in NZYQ against the background of the Lim principle having been unanimously explained to mean that "a Commonwealth statute which authorises executive detention must limit the duration of that detention to what is reasonably capable of being seen to be necessary to effectuate an identified statutory purpose which is reasonably capable of being achieved" and against the background of the application of the Lim principle having been further explained by six members of the Court to be