Page:NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/24

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

to achieve an identified legislative objective that there is no real prospect of achieving in the reasonably foreseeable future.

Translated to the case at hand, if the only purposes peculiarly capable of justifying executive detention of an alien are, as was said in Lim, removal from Australia or enabling an application for permission to remain in Australia to be made and considered, then the absence of any real prospect of achieving removal of the alien from Australia in the reasonably foreseeable future refutes the existence of the first of those purposes.

Faced with that fundamental difficulty, the primary submission of the defendants was that a legitimate and non-punitive purpose of detention of an alien can be properly identified as separation from the Australian community pending removal (if ever). The defendants sought to support that submission by reference to passages in the reasoning of the majority in AJL20. Recalling that the majority in AJL20 specifically recorded that the correctness of the constitutional holding in Al-Kateb did not arise for consideration, none of those passages can be read as having been directed to that constitutional issue.

The purpose of separation of an alien from the Australian community is outside the limited range of legitimate purposes identified in Lim, and repeatedly affirmed in cases following Lim. The separation of an alien from the Australian community by means of executive detention was identified in Lim as permissible not as an element of some more expansive purpose but only as an "incident" of the implementation of one or other of the two legitimate purposes of considering whether to grant the alien permission to remain in Australia and deporting or removing the alien if permission is not granted. To the extent that reasoning of the