Law: Adding illegality to injury

A worker, who turns out to be an illegal migrant without a work permit, is injured and claims compensation—and demonstrates why the law is so complicated.

The WorkCover Queensland Act 1996 and the Workers Compensation and Rehabilitation Act 2003 place preliminary requirements that must be met before an employee can progress a claim.

Increasingly complex criteria must be established from as early as the time an application is lodged.

The first is whether the claimant falls within the definition of a ‘worker’. To do so, there must be a valid contract of service between the parties.

The entitlements of persons regarded as unlawful non-citizens under the Migration Act have been considered recently. In the decision of Australia Meat Holdings vs Mainuddin Ahmed Kazi, the Supreme Court in Queensland considered for the first time issues that had been agitated before the courts of appeal in South Australia and NSW.

The issue revolved around the fact that the worker was an unlawful non-citizen and whether at the time of the injury there was a valid contract of service such that he could be a ‘worker’.

Kazi initially arrived in Australia on a visitor visa with a ‘no work’ condition.

He applied for a protection visa and was subsequently issued a bridging visa, again with a ‘no work’ condition. Later he was issued a further bridging visa, which was cancelled when it was discovered he had been working. He was deported.

Kazi had hidden his status from both the taxation department and Australia Meat Holdings by supplying incorrect personal information.

In the judgment, Justice Debra Mullins (having quoted a statement made in the High Court by Justice Michael McHugh in Nelson vs Nelson) found it was necessary to look to the statutory intention of the Migration Act when assessing whether a contract should be valid.

“The courts should not refuse to enforce legal or equitable rights simply because they arose out of or were associated with an unlawful purpose,” she said unless:

The statute discloses an intention that those rights should be unenforceable in all circumstances; or
The sanction of refusing to enforce those rights is not disproportionate to the seriousness of the unlawful conduct; the imposition of the sanction is necessary, having regard to the terms and the statute, to protect its objects or policies; and the statute does not disclose an intention that the sanctions and remedies contained within are to be the only legal consequences of a breach of the statute or the frustration of its policies.

Mullins then looked to relevant authorities in other Australian states for recent interpretations given to these provisions.

The full-length article appeared in the February 04 issue of National Safety, pp 24-25.

Posted: Thu, 22 Jan 2004 10:05:33 +1000 By: Amanda
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