Gageler CJ
Gordon J
Steward J
Gleeson J
Jagot J
Beech-Jones J
14.
of the separation of powers, the difference between involuntary detention and detention with the concurrence or acquiescence of the 'detainee' is vital".[1]
44 Properly understood, Plaintiff M47/2018 is a further illustration. There, the Court was unanimous in refusing to draw the invited inference that there was "no real prospect or likelihood that the plaintiff will be removed from Australia within the reasonably foreseeable future" in circumstances where the plaintiff, who had been in immigration detention for almost a decade, had failed to cooperate by providing accurate and verifiable information which might assist in his removal by establishing his identity and country of origin.[2] References in the reasons of Kiefel CJ, Keane, Nettle and Edelman JJ to the plaintiff having "no good reason" for his non-cooperation are fairly to be read in context as references to his failure to provide the requisite information not being explicable on the basis of incapacity by reason of, for example, any medical condition or mental illness.[3] The critical consideration was that it was within the "power" of the plaintiff to provide the information.[4] The reasons of Bell, Gageler and Gordon JJ were to substantially identical effect in recording that there was "nothing in the special case to suggest that the plaintiff suffers from a psychiatric or other medical condition which would affect his capacity to give a coherent, factual account of his background" and in drawing the inference that "the plaintiff has deliberately failed to assist the defendants in their attempts to establish his true identity".[5]
45 To sum up in language used by French J in WAIS v Minister for Immigration and Multicultural and Indigenous Affairs,[6] to which attention was drawn in NZYQ,[7] "[a] detainee cannot, in effect, create a circumstance which negatives any reasonable likelihood that he can be removed in the foreseeable future by withholding his consent or cooperation to a particular avenue for removal and
