Page:ASF17 v Commonwealth of Australia.pdf/32

Edelman J

habeas corpus. If the legislative purpose of removing classes of aliens from Australia were truly to be "refuted" in individual cases where there is no real prospect of that purpose being achieved in the reasonably foreseeable future, then the reason that there is no real prospect should be irrelevant. Either the purpose is practically capable of being achieved (in which case it remains an extant purpose) or it cannot be (in which case the Commonwealth Parliament has failed to demonstrate a legitimate purpose).

86 This Court held in NZYQ that the notions of "practicability" and "the reasonably foreseeable future" are matters of "factual reality". They are issues of what is "capable of being achieved in fact". If "the absence of any real prospect of achieving removal of the alien from Australia in the reasonably foreseeable future refutes the existence of the [purpose of removal of classes of aliens from Australia]" then it should not matter what the factual basis is for that refutation. According to this strict logic, if the Commonwealth Parliament cannot have a purpose to achieve something which there is no real prospect of achieving as a matter of fact, then the factual basis which renders the purpose practically unachievable should not matter.

87 ASF17's primary submission illustrates one of the flaws in treating the general purpose of a law that permits or requires the detention of classes of aliens for the purpose of removal from Australia as "refuted" in particular cases based on factual matters in those cases. The submission would logically also extend to allow any alien within those classes to undermine the exercise of a core sovereign power of this nation by an unreasonable, irrational, and intransigent refusal to be removed to a country that does not accept involuntary removals.

The attempt to distinguish the asserted logic of NZYQ

88 The primary judge sought to avoid the asserted logic of ASF17's submission by reasoning that if an alien chooses not to "cooperate" in achieving their removal then the "removal of th[at] person remains 'practicable' in the foreseeable future". But that conclusion could only be reached by a legal fiction that deems an alien to be "cooperative" in the assessment of whether there is a real prospect