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Continuing our popular review of recent High Court decisions, John Carroll, Colleen Tognetti and James McGregor take us through a selection of judgments delivered from mid-June to early September.

On 16 June a 5-2 majority of the court held in LibertyWorks Inc v Commonwealth [2021] HCA 18; (2021) 95 ALJR 490 that registration of entities under the Foreign Influence Transparency Scheme Act 2018 (Cth) did not infringe the constitutionally-implied freedom of political communication. The majority held that the Act’s purpose is to prevent or minimise the risk of foreign governments or other foreign principals exerting influence on the integrity of Australia’s political or electoral processes, and thus to support the processes necessary to Australian democracy.

 In another decision handed down on 16 June, the court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft  [2021] HCA 19; (2021) 95 ALJR 557  considered the awkward expression "behaviour concern non‑citizen" as defined in the Migration Act 1958 (Cth), s 5(1) and in particular what the words "removed ... from Australia" in para (d) of the definition. The respondent, a New Zealander, had previously been removed from Australia on a basis that was determined after the fact to have been wrongful.  When Ms Moorcroft returned to Australia, she was refused a special category visa because she did not satisfy the criterion in s 32(2) of the Act that she not be a "behaviour concern non‑citizen".  The High Court unanimously held that removal from Australia within paragraph (d) of the definition meant “removed in fact” and rejected an argument that para (d) should be read as if it contained additional words so as to refer, relevantly, to a non-citizen who has been removed from Australia lawfully in accordance with Pt 2, Div 8.

Price v Spoor [2021] HCA 20; 95 ALJR 607, handed down on 23 June, concerned the efficacy of a clause in a mortgage purporting to contract out of a statutory limitation period.  The mortgage, over Torrens title land in Queensland, was entered into in 1998 and ultimately due for repayment in 2000.  Despite default by the mortgagor, no attempt was made to enforce the security until 2017.  In proceedings before the Supreme Court of Queensland, the mortgagors’ successors argued that the claims were barred by the Limitation of Actions Act 1974 (Qld), ss 10(1)(a), 13, 24(1) and 26.  The mortgagees’ successors in title relied on a covenant in the mortgage which purported to exclude the operation of any statutory provision that could have “curtailed, suspended, postponed, defeated or extinguished” the mortgagee’s remedies.  The High Court unanimously affirmed the Queensland Court of Appeal’s decision (Spoor v Price (2019) 3 QR 176) that the right to plead a limitation defence is a benefit conferred by statute on individuals who may contract out of it or give it up.

Turning once again to the detention and removal of non-citizens in Commonwealth v AJL20 [2021] HCA 21; (2021) 95 ALJR 567, also delivered on 23 June, the court was divided as to what followed from a failure to remove a detained unlawful non-citizen "as soon as reasonably practicable" in accordance with the Migration Act 1958 (Cth), s 198(6).  The respondent’s detention was prolonged because officers were considering whether non-refoulement obligations applied to him. The court was unanimous in agreeing that by virtue of s 197C, that consideration was irrelevant to whether it was reasonably practicable to remove him; however, only a bare majority decided that the authority to detain in ss 189(1) and 196(1) was not conditioned on the actual achievement of removal as soon as reasonably practicable.

Workpac Pty Ltd v Rossato [2021] HCA 23, handed down on 4 August, held that a contractor employed by a labour-hire company in several successive assignments was a casual   employee.  Despite accepting that the respondent over time had a reasonable expectation of continuing employment on a regular and systematic basis, the court found there was no “firm advance commitment” to continuing employment beyond any particular assignment.  The plurality also held that the court’s characterisation exercise must not have regard to the entirety of the employment relationship, but only enforceable terms.  In so doing, it overruled the Full Court of the Federal Court in Workpac Pty Ltd v Skene (2018) 264 FCR 536.  Gageler J in a separate judgment agreed that the respondent was a casual employee but did not find it necessary to decide whether regard was to be had to the relevant contractual terms in determining his employment status.

KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA 24; (2021) 95 ALJR 666 concerned an application for constitutional writs made by an unlawful non-citizen in the court’s original jurisdiction. In a judgment delivered on 4 August 2021, Edelman J refused an extension of time and dismissed the substantive application. His Honour also refused an application made the day before the hearing to further amend the application to add an entirely new ground as well as two new prayers for relief.

On 12 August, a majority of the Full Court in Chetcuti v Commonwealth of Australia [2021] HCA 25 dismissed an appeal from a judgment of Nettle J (Chetcuti v Commonwealth (2020) 95 ALJR 1), which held that a man who was born in Malta in 1945 and resident in Australia since the age of three without being naturalised was an “alien” for the purposes of the Constitution, s 51 (xix). In coming to its decision, the court held that the concept of a distinctive Australian body politic, and that of the Crown in right of Australia, had evolved over a period of time during the 20th century with the result that British subjects without an Australian parent who did not avail themselves of Australian citizenship after the commencement of the Nationality and Citizenship Act 1948 (Cth) on 26 January 1949 fell within the aliens power.  The consequence for the appellant was that he was liable to be detained as an unlawful non-citizen and to deportation when his sentence of imprisonment was completed.

In Director of Public Prosecutions Reference No 1 of 2019 [2020] HCA 26, handed down on 1 September, the court considered the mental element of recklessness as expressed in the statutory offence of recklessly causing serious injury in the Crimes Act 1958 (Vic), s 17.  Since the 1995 decision of R v Campbell [1997] 2 VR 585; (1995) 80 A Crim R 461, Victorian courts have taken recklessness to mean foresight of the probability of serious harm resulting from the actus reus.  In Aubrey v The Queen [2017] HCA 18; (2017) 260 CLR 305, the High Court had interpreted recklessness in a similar, but not identical New South Wales provision, as meaning foresight of the possibility of serious harm occurring.  In upholding R v Campbell and distinguishing Aubrey v the Queen, a majority of the court held that the legislative history of s 17 and related sections indicated that the Victorian Parliament’s intention was informed by, and did not question the longstanding authority of R v Campbell, thus leaving the development of the meaning of recklessness in Victoria to the courts.

John Carroll
By John Carroll

John Carroll is a senior legal editor in Thomson Reuters ANZ Cases Team. He is a reporter of High Court cases and co-editor of the Australian Law Journal Reports.

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