Gageler CJ
Gordon J
Steward J
Gleeson J
Jagot J
Beech-Jones J
10.
"ultimately directed to a single question of characterisation",[1] though one which requires an assessment of both means and ends.[2]
33 The precise question of characterisation to which the question whether there is a real prospect of removal of an alien from Australia becoming practicable in the reasonably foreseeable future is directed is whether the detention of the alien under ss 189(1) and 196(1) of the Act is justified, at the point in time when an application for a writ of habeas corpus is determined, as reasonably capable of being seen to be necessary for the identified statutory purpose of removing the alien from Australia under s 198(1) or s 198(6) of the Act. The question is one of characterisation in that, unless the detention is justified at that time on the basis of there then being a real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future, the application of ss 189(1) and 196(1) of the Act to authorise the continuing detention of the alien must be characterised by reference to the default characterisation of detention as "penal or punitive" and for that reason as repugnant to Ch III of the Constitution.[3]
34 The notions of practicability and of the reasonably foreseeable future embedded in the expression of the constitutional limitation were unanimously explained in NZYQ to be "essential to anchoring the expression of the constitutional limitation in factual reality"[4] and to accommodate "the real world difficulties that attach to such removal".[5]
35 For the removal of an alien from Australia under s 198(1) or s 198(6) of the Act to be practicable, there must first and foremost be identified a country to which that alien might be removed, and removal of that alien to that country must be permissible under the Act. Before noting the range of difficulties of a practical nature that can attach to removal of an alien detainee under s 198(1) or s 198(6) of the Act, it is appropriate to turn attention to the statutory constraint on the duties
