Commonwealth of Australia v AJL20 [2021] HCA 21

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ

COMMONWEALTH OF AUSTRALIA APPELLANT

AND

AJL20 RESPONDENT

Commonwealth of Australia v AJL20

[2021] HCA 21

Date of Hearing: 13 April 2021

Date of Judgment: 23 June 2021

C16/2020 & C17/2020

ORDER

Matter No C16/2020

1. Appeal allowed.

2. Set aside the orders made by the Federal Court of Australia on 29 September 2020 and, in their place, it be ordered that the proceeding be dismissed with costs.

3. The respondent must pay the appellant's costs of the appeal to this Court.

Matter No C17/2020

1. Appeal allowed.

2. Set aside the orders made by the Federal Court of Australia on 11 September 2020 and, in their place, it be ordered that the application filed in the Federal Circuit Court of Australia on 12 May 2020 and transferred to the Federal Court of Australia on 27 May 2020 be dismissed with costs.

3. The respondent must pay the appellant's costs of the appeal to this Court.

Representation

S P Donaghue QC, Solicitor-General of the Commonwealth, with G R Kennett SC, C J Tran and N A Wootton for the appellant and for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

J T Gleeson SC with N M Wood and J E Hartley for the respondent (instructed by Human Rights for All)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Commonwealth of Australia v AJL20

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.