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High Court Bulletin

Produced by the Legal Research Officer,
High Court of Australia Library

[2021] HCAB 5 (25 June 2021)

A record of recent High Court of Australia cases: decided, reserved for judgment, awaiting hearing in the Court’s original jurisdiction, granted special leave to appeal, refused special leave to appeal and not proceeding or vacated

1: Summary of New Entries
2: Cases Handed Down
3: Cases Reserved
4: Original Jurisdiction
5: Section 40 Removal
6: Special Leave Granted
7: Cases Not Proceeding or Vacated
8: Special Leave Refused

1: Summary of New Entries

2: Cases Handed Down

Case	Title
Commonwealth of Australia v AJL20	Constitutional Law
LibertyWorks Inc v Commonwealth of Australia	Constitutional Law
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft	Immigration
Matthew Ward Price as Executor of the Estate of Alan Leslie Price (Deceased) & Ors v Christine Claire Spoor as Trustee & Ors	Limitation of Actions

3: Cases Reserved

Case	Title
Palmer v The State of Western Australia; Mineralogy Pty Ltd & Anor v The State of Western Australia	Constitutional Law
Hamilton (a pseudonym) v The Queen	Evidence
Ridd v James Cook University	Industrial Law
Addy v Commissioner of Taxation	Taxation

4: Original Jurisdiction

5: Section 40 Removal

6: Special Leave Granted

7: Cases Not Proceeding or Vacated

8: Special Leave Refused

2: Cases Handed Down

The following cases were handed down by the High Court of Australia during the June 2021 sittings.

Constitutional Law

Commonwealth of Australia v AJL20

C16/2020; C17/2020: [2021] HCA 21

Judgment delivered: 23 June 2021

Coram: Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ

Catchwords:

Constitutional law (Cth) – Immigration – Tort – False imprisonment – Where respondent "unlawful non-citizen" detained by Executive under ss 189(1) and 196(1) of Migration Act 1958 (Cth) – Whether period of executive detention authorised and required by ss 189(1) and 196(1) ceases when removal of "unlawful non-citizen" from Australia should have occurred had Executive acted with all reasonable despatch in performance of s 198(6) duty to remove, or continues until actual event of removal or grant of visa – Whether Parliament's power to authorise and require detention until actual event of removal or grant of visa limited by implications of Ch III of Constitution – Whether non-performance by Executive of statutory duties erases legitimate non-punitive statutory purposes which those duties support.

Words and phrases – "aliens", "deportation", "duty to remove", "exclusive vesting of the judicial power of the Commonwealth", "executive detention", "executive power", "executive purpose", "false imprisonment", "habeas corpus", "hedging duty", "judicial power", "lawful non-citizen", "legitimate non-punitive purposes", "Lim principle", "mandamus", "non-refoulement", "Parliamentary supremacy", "reading down", "removal", "remove as soon as reasonably practicable", "separation of powers", "statutory duty", "statutory purposes", "terminating events", "unlawful non-citizen", "visa".

Constitution – s 51(xix), Ch III.

Migration Act 1958 (Cth) – ss 4, 13, 14, 189, 196, 197C, 198.

Removed from Full Court of the Federal Court of Australia under s 40 of the Judiciary Act 1903 (Cth).

Held: Appeals allowed with costs.

Return to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] HCAB 5
Decision Date

CaseChat Overview and Summary

The High Court heard and handed down decisions in several cases in its most recent sitting, including decisions in LibertyWorks Inc v Commonwealth of Australia, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft, Matthew Ward Price as Executor of the Estate of Alan Leslie Price (Deceased) & Ors v Christine Claire Spoor as Trustee & Ors and Commonwealth of Australia v AJL20. In LibertyWorks Inc v Commonwealth of Australia, the Court considered the constitutionality of the Foreign Influence Transparency Scheme Act 2018 (Cth). LibertyWorks Inc challenged the constitutionality of the Act on the basis that it effectively burdened the implied freedom of political communication. The Court found the Act to be constitutional and to impose a legitimate burden on the implied freedom of political communication. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft, the Court considered the meaning of "removed or deported from Australia" in the Migration Act 1958 (Cth). The Court found that the relevant phrase required a physical removal from Australia in accordance with the Act, and not a removal in fact. In Matthew Ward Price as Executor of the Estate of Alan Leslie Price (Deceased) & Ors v Christine Claire Spoor as Trustee & Ors, the Court considered the meaning of an agreement not to plead a defence under the Limitation of Actions Act 1974 (Qld). The Court found that the agreement did not prevent the mortgagors from pleading any defence under the Act and did not extinguish the mortgagees' title under the mortgages. In Commonwealth of Australia v AJL20, the Court considered whether the period of executive detention authorised and required by ss 189(1) and 196(1) of the Migration Act 1958 (Cth) ceased when removal of the "unlawful non-citizen" from Australia should have occurred had the Executive acted with all reasonable despatch in performance of s 198(6) duty to remove, or continued until the actual event of removal or grant of visa. The Court found that the period of executive detention ceased when the removal of the "unlawful non-citizen" from Australia should have occurred had the Executive acted with all reasonable despatch in performance of s 198(6) duty to remove.

Orders