High Court of Australia
AIR_CALEDONIE INTERNATIONAL AND OTHERS
THE COMMONWEALTH
JUDGMENT GAUDRON J.
AIR _CALEDONIE INTERNATIONAL AND OTHERS
ve.
THE COMMONWEALTH
Until its repeal with effect from 1 July 1988 s.34A of
the Migration Act 1958 (Cth) ("the Act") provided, in
sub-ss(1) to (4), as follows:
"(1) Where a passenger, other than a_ prescribed passenger, travels to Australia on an overseas flight, the passenger shall pay the prescribed fee for immigration clearance of that passenger by an officer at the airport at
which the passenger _ intends to enter Australia.
(2) The fee shall be collected by the international air operator operating the
flight.
(3) The international air operator shall pay to the Commonwealth the amount of the fee payable by a passenger, whether or not the operator has collected that amount from the passenger.
(4) An amount payable to the Commonwealth by an international air operator under subsection
(3) is a debt due to the Commonwealth and may be recovered in a court of competent
jurisdiction."
The plaintiffs, international airline operators, have brought proceedings challenging the validity of s.34A of the Act and seeking, inter alia, a declaration that no amounts are payable to the Commonwealth (the defendant) pursuant to s.34A(3) of the Act. The defendant has demurred to the
plaintiffs' statement of claim and has _ counter-claimed
a
severally against each 'plaintiff for the amount of the prescribed fees. Alternatively, it has counter-claimed severally against each plaintiff for the amount of fees prescribed and collected from passengers as "moneys had and received by the plaintiff and not paid by it to the
defendant." From argument in these proceedings it is clear
that that is intended to be understood as "moneys had and
received to the use of the defendant".
By amended defence to counter-claim the plaintiffs admit that they have collected the prescribed fee from some Passengers, and that they have not paid the fees so collected to the defendant. They do not admit that they have collected fees from all passengers other than prescribed passengers. Otherwise, they deny the allegations contained in the counter-claim. Additionally they assert
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