Gageler CJ
Gordon J
Steward J
Gleeson J
Jagot J
Beech-Jones J
13.
question of whether there is a real prospect of removal of the detainee from Australia to that country becoming practicable in the reasonably foreseeable future is a question of whether there are steps which are practically available to be taken which, if taken, can realistically be predicted to result in the removal of the detainee to that country in the reasonably foreseeable future. The steps practically available to be taken can be expected frequently to include administrative processes directed to removal which require the cooperation of the detainee and in which the detainee has the capacity to cooperate. That such steps are to be regarded as remaining practically available to be taken in circumstances where the detainee refuses to cooperate in the taking of them reflects the nature of the constitutional limitation to which the inquiry is directed.
42 The short point is that, conformably with the Lim principle, continuing detention for a non-punitive purpose that is occurring because of a voluntary decision of the detainee cannot be characterised as penal or punitive. The non-punitive statutory purpose of removing an alien detainee from Australia under s 198(1) or s 198(6) of the Act remains a non-punitive purpose that is reasonably capable of being achieved if and for so long as removal could be achieved in the reasonably foreseeable future were the detainee to decide to cooperate in the undertaking of administrative processes necessary to facilitate that removal.
43 The point is illustrated by the reasoning in Lim itself. As summarised by McHugh J in Re Woolley; Ex parte Applicants M276/2003,[1] "[i]n Lim, the Court regarded the ability of a detainee to bring about the end of his or her detention by requesting removal to be a critical element with respect to the constitutionality of the detention regime". In concluding that the continuing detention of long-term alien detainees under the regime considered in Lim was properly characterised as "non-punitive", Brennan, Deane and Dawson JJ, with whom Mason CJ relevantly agreed, stressed with reference to the precursor of s 198(1) of the Act[2] that it lay within the "power" of a detainee to bring their detention to an end by requesting to be removed with the result that detention could continue only if the detainee "elect[ed]" to remain in Australia by failing to make that choice.[3] McHugh J referred to the same provision as making it "impossible to regard [the regime] in its ordinary operation as a punishment", adding that "for the purpose of the doctrine
