High Court Judgments

Dr Michelle Sharpe

Castan Chambers, Melbourne

Constitutional Law

Implied freedom of political communication

In the High Court decision of LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18 (16 June 2021) the High Court was required to determine whether the Foreign Influence Transparency Scheme Act 2018 (Cth) (FITS Act) was invalid, to the extent that it imposed registration obligations with respect to communications activities, because it infringed an implied freedom of political communication.

The stated object of the FITS Act is “to provide for a scheme for the registration of persons who undertake certain activities on behalf of foreign governments and other foreign principals, in order to improve the transparency of their activities on behalf of those foreign principals”. Relevantly, s10(c) of the FITS Act defines “foreign principal” to mean, inter alia, a “foreign political organisation”. The FITS Act, under s18, provides that if a person undertakes a “registerable activity” on behalf of a foreign principal that person becomes liable to register under the FITS Act. A “‘registerable activity” is defined to include, in s21(1) of the FITS Act, a “communications activity”. A “communications activity” is defined, under s13(1), to consist of the communication, distribution or production (for communication or distribution) of material to the public or a section of the public. A person who is registered under the FITS Act has certain responsibilities. These include, among other things, keeping records and to giving disclosure of the foreign principal. The FITS Act includes provisions creating offences, which may result in a penalty (including imprisonment), arising from breaches of the act.

The plaintiff (LibertyWorks) is an incorporated association and has been described, at [1], as “a private think-tank with an aim to move public policy in the direction of increased individual rights and freedoms, including the promotion of freedom of speech and political communication”. Since incorporation, LibertyWorks has organised political conferences, made submissions to parliament and maintains a website promoting individual freedom in public policy. A not dissimilar organisation to LibertyWorks was established in the United States of America: the American Conservative Union (ACU). The stated purpose of the ACU, at [2], is to influence politics and politicians, in the United States, from a “conservative/ classical liberal perspective”. In order to “harness the collective strength of the conservative movement and support the campaigns of conservative candidates”, the ACU organises an annual multi-day political conference in the United States called the Conservative Political Action Conference (CPAC). The immediate past president and vice-president of the United States and government officials have attended CPAC. In 2018, LibertyWorks and the ACU agreed that they would collaborate in a CPAC event to be held in Sydney, Australia in August 2019. The event was widely marketed by LibertyWorks. It featured speakers from Australia and overseas and included politicians (past and present), media personalities, members of “think tanks”, economists and social commentators. The promotional material described the ACU as the ‘Think Tank Host Partners” and a “co-host” with LibertyWorks. Another event was proposed to take place in Australia in November 2020. But in August 2019, a Deputy Secretary of the Commonwealth Attorney-General’s Department wrote to LibertyWorks and asked LibertyWorks to consider whether it was required to register its arrangements with the ACU under the FITS Act. The Deputy Secretary subsequently issued a notice to LibertyWorks, under s45 of the FITS Act, requiring LibertyWorks to provide information to assist the Deputy Secretary to determine whether registration under the FITS Act was required. LibertyWorks did not respond to the notice. Instead, LibertyWorks issued proceedings in the High Court, in its original jurisdiction, seeking a declaration that the registration provisions under the FITS Act were beyond the power of the Commonwealth Parliament to enact because they contravened the implied constitutional freedom of political communication. But the High Court in a 5:2 split rejected LibertyWorks’ claim. All members of the High Court, save for Steward J, recognised the existence of an implied freedom of communication on matters of politics and government: Keifel CJ and Keane and Gleeson JJ at [44], Gageler J at [99], Gordon J at [131]-[132] and Edelman J at [198]. Keifel CJ and Keane and Gleeson JJ explain, at [44], that the basis for the implication is “well settled” and the freedom is “necessarily implied because the great underlying principle of the Constitution is that citizens are to share equally in political power and because it is only by a freedom to communicate on these matters that citizens may exercise a free and informed choice as electors”. But Steward J expressed, at [249], skepticism about the existence of such an implied right. His Honour declared “it is arguable that the implied freedom does not exist. It may not be sufficiently supported by the text, structure and context of the Constitution and, because of the continued division within this Court about the application of the doctrine of structured proportionality, it is still not yet settled law”. The plurality went on to recognise (indeed the Commonwealth conceded) that the registration provision under the FITS Act did burden the implied freedom. But, the plurality considered that the burden was justified. The plurality held that the FITS Act had a legitimate purpose to achieve transparency and obviate the risk that foreign principals will exert influence on the integrity of Australia’s political processes and the registration provisions were proportionate to that purpose: Keifel CJ and Keane and Gleeson JJ at [76]-[85], Edelman J at [198] and Steward J at [287]. Gageler and Gordon JJ, in dissent, considered that the registration provisions of the FITS Act impermissibly burdened the implied freedom.

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 s4 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, s189(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 noncitizen in the “migration zone” (ie, broadly Australia) and is not a “lawful non-citizen”. A “lawful non-citizen” is defined by s13 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 s198 of the Migration Act. And s198 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 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, s197C(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 s198 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 s198 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 s40 of the Judiciary 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 way, the majority considered at [39] was that the primary judge was wrong to read down s196(1) of the Migration Act. The primary judge approached the construction of s196(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 s51(xix) of the Constitution (naturalisation and aliens power), unless the Executive performed its duty, s198 of the Migration Act, to remove as soon as reasonably practicable. The majority observed at [42] 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”. The majority noted at [43] that: “If the statute, properly construed, can be seen to conform to constitutional limitations upon legislative competence without any need to read it down to save its validity, then it is valid in all its applications, and no further constitutional issue arises. 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 at [44] “the authority and obligation of the Executive to detain unlawful citizens is hedged about by enforceable duties, such as that in s198(6), that give effect to legitimate non-punitive purposes. Upon performance of these duties, the detention is brought to an end”. The second way in which the majority considered, at [67], 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. The majority held that this leap was unjustified. And the majority held at [73] that the Executive’s failure to discharge their statutory duty simply affords a basis for orders requiring the Executive to do their duty. 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 at [81] 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”. And Gordon and Gleeson JJ considered at [84] that “it is not the event of removal, but a time by which removal must occur, that defines the lawfulness of detention”. Their Honours argued at [87] that the power to detain an unlawful non-citizen could only be understood by reference to “two interlocking dimensions – power and duration”. And their Honours contended at [98] 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. Edelman J comes to the same conclusion as Gordon and Gleeson JJ. His Honour muses at [108] 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. And his Honour also observes at [114] that the Executive could have simply given the respondent a bridging visa while they considered the Australia’s non-refoulment obligations.

Limitation of Actions

Exclusion by agreement

In the High Court decision of Price v Spoor [2021] HCA 20 (23 June 2021) the High Court was required to determine whether a mortgagor’s promise not to plead the Limitation of Actions Act 1974 (Qld) (Limitation Act) as a defence to an action brought by the mortgagees was enforceable.

The respondents (mortgagees) brought proceedings in the Supreme Court of Queensland in which they claimed more than $4 million as money owed under, and secured by, two mortgages and possession of the mortgaged land. The appellants (mortgagors) raised two allegations in defence. First, the mortgagors alleged that the mortgagees were statute-barred from bringing an action for debt by ss10, 13 and 26 of the Limitation Act. Second, the mortgagors alleged that the mortgagees’ title under the mortgages had been extinguished by virtue of s24(1) of the Limitation Act. The mortgagees, in reply, alleged that cl 24 of each mortgage amounted to a promise by the mortgagors not to plead the defence of limitation and, as such, the mortgagors were estopped from pleading it.

The mortgagees brought an application for summary judgment. At the hearing of their application, the mortgagees conceded that if the Limitation Act did apply their claims would be defeated. The primary judge went on to dismiss the mortgagees’ application and enter judgment for the mortgagors. The mortgagees then successfully appealed to the Court of Appeal and obtained judgment in their favour. The mortgagors, in turn, appealed to the High Court but the High Court unanimously dismissed their appeal. As to the mortgagors’ first allegation (that the mortgagees’ claim was statutebarred), the High Court held that cl 24 of the mortgages prevented the mortgagors from raising this defence. In reaching this conclusion, the High Court first had to consider whether a right to plead the Limitation Act as a defence is a right that can be surrendered and, then, whether properly construed, cl 24 of the mortgages had the effect of surrendering that right. In a joint judgment, Keifel CJ and Edelman J, citing The Commonwealth v Mewett (1997) 191 CLR 471 at 534 and The Commonwealth v Verwayen (1990) 170 CLR 394 (Verwayen) at 405, observed, at [10], that limitation provisions, like those in the Limitation Act, have been construed to “bar the remedy but not the right”. That is, the Limitation Act does not extinguish the claim (or underlying right) but, rather, arms the defendant with a defence (which must be pleaded). Their Honours also observed, at [11]-[12], that a person may renounce any right conferred on them by statute unless it would be contrary to the statute to do so. Their Honours were guided by the conclusion reached by Mason CJ, in Verwayen, that the right (in the equivalent Victorian act) was not dictated by public policy; it was an individual right conferred on the defendant and, accordingly, it could be given up by the defendant. Gageler and Gordon JJ broadly make the same observations and reach the same conclusion at [39]-[41], as does Steward J at [85]-[86]. In construing, cl 24 of the mortgages, the High Court took an objective approach and determined the meaning of its terms by reference to what a reasonable person would have understood those terms to mean: Keifel CJ and Edelman J at [27], Gageler and Gordon JJ at [42] and Steward J at [65]-[67]. The High Court concluded that cl 24 was drafted in such a way as to capture the effect of the Limitations Act and prevent the mortgagors from pleading the act as a defence: Keifel CJ and Edelman J at [28]-[31], Gageler and Gordon JJ at [47]-[49] and Steward J at [65]-[67]. Unsurprisingly, the High Court rejected the mortgagors contention that, if cl 24 was enforceable, the mortgagees could only sue for damages for breach of contract. Their Honours noted the availability of in relief equity to restrain the mortgagees from breaching cl 24: Keifel CJ and Edelman J at [32]-[35], Gageler and Gordon JJ at [50]-[51] and Steward J at [100]-[106]. As to the mortgagors’ second allegation (that the mortgagees’ title was extinguished by s24(1) of the Limitation Act), the High Court held that s24 does not operate automatically or independently from s13 of the Limitation Act and will not extinguish title in the absence of a defence that a claim is statute-barred: Keifel CJ and Edelman J at [21]-[25], Gageler and Gordon JJ at [37] and Steward J at [107]-[118].

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 s86 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 s20(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 at [63] that “nothing less than binding contractual terms are apt to characterise the legal relationship between employer and employee”. 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 Victorian barrister practising in general commercial, disciplinary and regulatory law, ph 9225 8722, email msharpe@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au.