Page:ASF17 v Commonwealth of Australia.pdf/35

Edelman J

94 In summary, neither the argument, nor the reasoning, nor the result in Plaintiff M47/2018 supports the proposition that for the purposes of assessing whether there is a real prospect of removing an alien from Australia in the reasonably foreseeable future, the alien will be deemed to cooperate (in the sense of "capitulate"), particularly to a demand that they consent to be returned to a country in which they have a genuine and well-founded fear of persecution, or alternatively a genuine fear of persecution.

No invalidity arises from the application of the first requirement

95 The first requirement should not be treated as satisfied by the creation of, and reliance on, a legal fiction. Nor should it be treated as satisfied by reference to the authority of Plaintiff M47/2018. Instead, the first requirement should only be applied where the end sought to be achieved by a law is punitive in the strict sense of punishment, rather than the loose sense in which the term was used in Lim as meaning a disproportionate means to achieve a legitimate end.

96 As the majority of this Court accepted in The Commonwealth v AJL20, the purposes of ss 189(1) and 196(1) of the Migration Act which are applied to authorise or require the detention of classes of aliens are "segregation pending receipt, investigation and determination of any visa application or removal" and those purposes are "legitimate non-punitive purposes". Not only does the purpose of removal of classes of aliens from Australia not change merely because it is not attainable (as a "real prospect") in every instance of its application in the reasonably foreseeable future, but to treat that purpose as capable of being deconstructed in this way undermines the foundational constitutional principle of representative democracy which requires latitude to be given to the Commonwealth Parliament to pursue broad and general ends, or purposes, in legislation. The purpose of laws must usually be expressed as a single purpose at a level of relative generality rather than as a series of purposes at the level of application to particular individuals.

97 A legislative purpose will only be a punitive purpose, and therefore illegitimate because it is contrary to the constitutional separation of powers, if the law empowers the executive to detain aliens in order to pursue "purposes of punishment" either as the sole purpose(s) or in addition to other, legitimate purposes. In this context, the concept of "punishment" is used in its strict sense