Page:NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/28

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

by asking whether the law in question is … 'reasonably capable of being seen as necessary' to the purpose of processing and removal of an unlawful non-citizen". More specifically, if there is no real prospect of removal of some unlawful noncitizens becoming practicable in the reasonably foreseeable future, it is not reasonably capable of being seen as necessary to detain them to ensure that they are available for removal when practicable.

Expressing the constitutional limitation

For the reasons already given, expressing the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia as coming to an end when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future follows directly from the principle in Lim. This is the appropriate expression of the applicable constitutional limitation under a statutory scheme where there is an enforceable duty to remove an alien from Australia as soon as reasonably practicable.

Nevertheless, there is a need to explain why variations of the expression of the applicable constitutional limitation proffered by the defendants and by certain amici must be rejected.

The defendants, as a fallback from their primary submission, submitted that the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia should be simply expressed as coming to an end when there is no real prospect of the removal of the alien from Australia. The notions of practicability and of the reasonably foreseeable future were said to be unnecessary distractions. They are not. They are essential to anchoring the expression of the constitutional limitation in factual reality.

At the other extreme, the Human Rights Law Centre and the Kaldor Centre for International Refugee Law submitted that the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia should be expressed as coming to an end at any point when it can be determined to be more probable than not that the alien will not be removed from Australia in the foreseeable future. Quite apart from this leaving the constitutional limitation to have an unstable operation as probabilities of removal