Page:ASF17 v Commonwealth of Australia.pdf/22

Edelman J

reasoning in NZYQ. For the further reasons below, I maintain my opposition to that reasoning.

58 In NZYQ, I relied upon a separate basis for disapplying ss 189(1) and 196(1) of the Migration Act. In NZYQ, all members of this Court referred to the decision in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs ("Lim") as requiring that a law enacted by the Commonwealth Parliament for the non-judicial detention of a person must be "reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose". The reference to the purpose being required to be non-punitive in addition to legitimate was the foundation for my reasoning. That foundation is solidly based in the reasoning in Lim. In Lim, four members of this Court held that a law would be "punitive" (in the sense of being disproportionate to a legitimate purpose) and invalid if it authorised detention that was not reasonably capable of being seen as necessary for a legitimate purpose. Since near-exhaustive searches had revealed that there was no country which would accept the removal of NZYQ, the detention of NZYQ was "not reasonably capable of being seen as necessary" for the legitimate purpose of removal from Australia where there was no real prospect of removal of NZYQ from Australia becoming practicable in the reasonably foreseeable future.

59 This reasoning additionally applies to circumstances where: (i) the consent of aliens to their removal is required because the only country that will accept the aliens does not permit involuntary removal, but (ii) the aliens are incapable of providing that consent for reasons including psychiatric illness. In such circumstances, the detention required by ss 189(1) and 196(1) will not be "reasonably capable of being seen as necessary" for removal from Australia.

60 This reasoning also applies to aliens whose refusal to consent to removal under the Migration Act is based, in part or in whole, upon circumstances reflected in a "protection finding" made in relation to them under the Migration Act, including a protection finding made on the basis that the alien has a genuine and