Page:ASF17 v Commonwealth of Australia.pdf/28

Edelman J

73 Although Kennett J loosely described the disapplication in NZYQ of ss 189(1) and 196(1) of the Migration Act—a process concerned with not applying statutory meaning rather than "reading" (or interpreting) the meaning —as the "[r]eading down" of ss 189(1) and 196(1), Kennett J correctly held that NZYQ required that those provisions be disapplied so as not to require the detention of AZC20. His Honour reached this conclusion because AZC20 "has had mental health problems over a lengthy period" as a result of which Kennett J was "not persuaded that it is realistically within [AZC20's] power to change his approach to one of cooperation with removal to Iran".

74 Also correctly, Kennett J did not treat ss 189(1) and 196(1) of the Migration Act as requiring disapplication in a case in which "an alien who has no legal right to remain in Australia … [attempts] to engineer their own release into the community by frustrating the efforts of officers to carry out their duty [to remove the alien]". The application of ss 189(1) and 196(1) to such aliens is reasonably capable of being seen as necessary for the purpose of their removal from Australia. It is a valid premise, upon which the Commonwealth Parliament can legislate, that if persons in that category are capable of assisting in their removal and are not in need of protection in the country to which they would be removed, then there is a real chance that they will provide the required assistance in the reasonably foreseeable future (especially if provided with counselling, advice and relocation assistance).

75 The primary judge in this case, however, considered the reasoning of Kennett J to be plainly wrong. The primary judge took a different approach by which he introduced a legal fiction that deemed it to be "practicable" to remove an alien in the reasonably foreseeable future whenever the alien fails to "cooperate" in achieving their removal. If "cooperate" is taken in the sense in which the Solicitor-General of the Commonwealth submitted that it had been intended by the