By -

Key decisions

  • Commonwealth of Australia v AJL20 [2021] HCA 21
  • WorkPac Pty Ltd v Rossato [2021] HCA 23

Constitutional law

Immigration – false imprisonment

In the High Court decision of Commonwealth of Australia v AJL20 [2021] HCA 21 (23 June 2021) the High Court was required to determine whether the respondent’s detention was unlawful and he was entitled to damages for false imprisonment.

The respondent is a Syrian citizen who arrived in Australia in 2005 as the holder of a child visa. In 2014 the responsible Minister cancelled the respondent’s visa on character grounds. As a result, the respondent became a ‘non-citizen’ and was detained under the Migration Act 1958 (Cth) (the ‘Migration Act’).

The purpose of the Migration Act is described in s 4 to include, among other things, to provide for the removal from Australia of non-citizens whose presence in Australia is not permitted under the Migration Act. To this end, s 189(1) of the Migration Act requires an officer of the Executive to detain unlawful non-citizens. Section 14 of the Migration Act defines an ‘unlawful non-citizen’ to be a non-citizen in the ‘migration zone’ (i.e., broadly Australia) and is not a ‘lawful non-citizen’. A ‘lawful non-citizen’ is defined by s 13 of the Migration Act to be a non-citizen in the migration zone who holds an effective visa. Section 196(1) of the Migration Act relevantly provides that an unlawful non-citizen is to be kept in immigration detention until removed from Australia pursuant to s 198 of the Migration Act. And s 198 of the Migration Act relevantly provides that an officer must remove, ‘as soon as reasonably practicable’, an unlawful non-citizen from Australia if the non-citizen’s application for the grant of a visa has been finally determined and refused.

In this case, although his application had been been finally determined and refused, the respondent’s detention was prolonged by some 14 months while officers considered Australia’s non-refoulment obligations (the obligation not to return an asylum seeker to a country in which they would be in likely danger of persecution). But, importantly, s 197C(1) of the Migration Act provides that whether or not Australia has non-refoulement obligations in respect of an unlawful non-citizen is ‘irrelevant’ to the operation of s 198 of the Migration Act.

The respondent successfully argued at first instance, in the Federal Court, that his prolonged detention was unlawful. The primary judge found that the Commonwealth had failed to remove the respondent ‘as soon as reasonably practicable’ as required by s 198 of the Migration Act. The primary judge went on to find that, as a result of this failure, the detention of the respondent was not for the purpose of his removal from Australia and was therefore unlawful.

The Commonwealth appealed. The appeal was removed to the High Court pursuant to s 40 of the Judicary Act 1903 (Cth) because the dispute necessarily involved the interpretation of the Constitution. By a narrow margin of 4 to 3, the High Court allowed the Commonwealth’s appeal.

The majority (Kiefer CJ, Gageler, Keane and Steward JJ), in a single set of reasons, held that the primary judge’s reasoning was flawed in two ways. The first was that the majority considered that the primary judge was wrong to read down s 196(1) of the Migration Act (at [39]). The primary judge approached the construction of s 196(1) ‘in light of’ Chapter III of the Constitution which provides for the separation of judicial power from the executive and legislative powers. In his Honour’s view the immigration detention scheme, contained in the Migration Act, could not be validly enacted, under s 51(xix) of the Constitution (naturalisation and aliens power), unless the Executive performed its duty, under s 198 of the Migration Act, to remove a detainee in any particular case as soon as reasonably practicable. The majority observed that the primary judge’s approach ‘conflated questions of constitutional validity with questions of statutory interpretation, and questions concerning the purpose of the [Migration] Act with questions concerning the purpose of the officers of the Executive bound by it’ (at [42]). The majority noted that: ‘If the statute, properly construed, can be seen to conform to constitutional limitations upon legislative competence without any neeed to read it down to save its validity, then it is valid in all its applications, and no further constitutional issue arises (at [43]). The question then is whether the executive action in question was authorised by the statute’.

The majority held that the immigration detention scheme was valid, and did not stray into judicial power, because the detention period was not determined by the Executive. Instead, the majority observed ‘the authority and obligation of the Executive to detain unlawful citizens is hedged about by enforceable duties, such as that in s 198(6), that give effect to legitimate non-punitive purposes. Upon performance of these duties, the detention is brought to an end’ (at [44]).

The second way in which the majority considered that the primary judge’s reasoning was flawed was in leaping to the conclusion that the Executive’s failure to remove the respondent, as soon as practicably possible, meant that the Executive was detaining the respondent for a purpose other than that permitted by the Migration Act (at [67]). The majority held that this leap was unjustified. And the majority held that the Executive’s failure to discharge their statutory duty simply affords a basis for orders requiring the Executive to do their duty (at [73]). The majority accordingly allowed the Commonwealth’s appeal.

But Gordon and Gleeson JJ, in a joint judgment, and Edelson J, in his own separate judgment, argued that the Commonwealth’s appeal should be dismissed. Gordon and Gleeson JJ defined the central issue in dispute as being ‘whether detention is lawful even though it continues beyond the time at which it should have come to an end’ (at [81]). And Gordon and Gleeson JJ considered that ‘it is not the event of removal, but a time by which removal must occur, that defines the lawfulness of detention’ (at [84]). Their Honours argued that the power to detain an unlawful non-citizen could only be understood by reference to ‘two interlocking dimensions – power and duration’ (at [87]). And their Honours contended that once it is accepted that the Executive’s power to detain under the Migration Act has ‘temporal bookends’, detention beyond the ‘terminating bookend’ is unlawful (at [98]). Edelman J comes to the same conclusion as Gordon and Gleeson JJ. His Honour muses that it would be very strange if the Migration Act were ‘an island of freedom’ in which the Executive could act for any purpose in the exercise of its powers no matter how far that purpose departs from the express or implied terms of statutory authority (at [108]). And his Honour also observes that the Executive could have simply given the respondent a bridging visa while they considered the Australia’s non-refoulment obligations (at [114].

Industrial law

Contract of employment

In the High Court decision of WorkPac Pty Ltd v Rossato [2021] HCA 23 (4 August 2021) the High Court was required to determine whether the first respondent (‘Rossato’) was employed by the appellant (‘WorkPac’) as a casual employee for the purposes of s 86 of the Fair Work Act 2009 (Cth) (the ‘FW Act’). It is worth noting here that the precedential value of this case is somewhat limited because the FW Act has now been amended to insert a definition of ‘casual employee’ where, before, no such statutory definition existed.

Rossato was an experienced production worker in the open-cut black coal mining industry employed by Workpac. On first commencing work with WorkPac, Rossato signed a single page document containing general terms of his employment (‘General Terms’). Rossato was then employed episodically, until his retirement, pursuant to a series of six contracts titled Notice of Offer of Casual Employment – Flat Rate (‘NOCE’). An enterprise agreement also regulated the terms of his work. In August 2018, the Full Federal Court of Australia delivered judgment in WorkPac Pty Ltd v Skene (2018) 264 FCR 536 (‘Skene’). The Full Court held that Mr Skene, who was employed by Workpac in much the same way as Rossato and treated as a casual employee, was, in fact, not a casual employee for the purposes of the FW Act and the applicable enterprise agreement. Relying on Skene, Rossato wrote to Workpac claiming that he had not been employed as a casual employee and sought payment of certain entitlements. WorkPac denied Rossato’s claims and commenced proceedings in the Federal Court of Australia. Allsop CJ, pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth), directed that the matter be heard by a Full Court. Allsop CJ also granted leave to the responsible Minister and the CFMMEU to intervene as well as the applicant in a class action against WorkPac.

The Full Federal Court, influenced by the decision in Skene, held that Rossato was not employed by Workpac as a casual employee. Both before the Full Court (and later the High Court) the parties agreed that the expression ‘casual employee’ in the FW Act refers to ‘an employee who has no firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work’ (see [32] of the High Court decision). But, in determining the nature of the work relationship, the Full Court favoured the approach adopted in Skene, and advanced by Rossato, of looking at the course of dealing between the parties and not only the written terms of the contract. The Full Court concluded that Rossato was not a casual employee because he had a firm advance commitment to his working hours in the WorkPac roster.

WorkPac successfully appealed to the High Court. In a unanimous decision, the High Court held that Rossato was employed by WorkPac as a casual employee. The High Court rejected the approach in Skene of looking at the course of dealing between the parties. Re-asserting the importance of freedom of contract, the plurality (Keifel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ), in their joint judgment, noted that ‘nothing less than binding contractual terms are apt to characterise the legal relationship between employer and employee’ (at [63]). The plurality reviewed the General Terms, each of the NOCEs, and the enterprise agreement. The plurality concluded that, on a plain reading of the terms of these agreements, Rossato was a casual employee because there was no firm advance commitment of work, for either party, beyond each assignment. Gageler J, in a separate, short, set of reasons, agreed with the plurality. And WorkPac’s appeal was allowed.



Dr Michelle Sharpe
is a barrister in Castan Chambers in Melbourne.