Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

PLAINTIFF S157/2002 PLAINTIFF

AND

COMMONWEALTH OF AUSTRALIA DEFENDANT

Plaintiff S157/2002 v Commonwealth of Australia

[2003] HCA 2

4 February 2003

S157/2002

ORDER

The questions reserved for consideration by the Full Court are answered as follows:

Question 1

Is section 486A of the Migration Act 1958 (Cth) invalid in respect of an application by the plaintiff to the High Court of Australia for relief under section 75(v) of the Constitution?

Answer

Upon its proper construction, s 486A does not apply to the proceedings the plaintiff would initiate. No question of the validity of s 486A arises in that regard.

Question 2

Is section 474 of the Migration Act 1958 (Cth) invalid in respect of an application by the plaintiff to the High Court of Australia for relief under section 75(v) of the Constitution?

Answer

Section 474 would be invalid if, on its proper construction, it attempted to oust the jurisdiction conferred on the High Court by s 75(v) of the Constitution. However, on its proper construction, it does not attempt to do so. Section 474 is valid but does not apply to the proceedings the plaintiff would initiate.

Question 3

By whom should the costs of the proceeding in this Honourable Court be borne?

Answer

The Commonwealth should pay 75 per cent of the costs of the plaintiff of the proceeding.

Representation:

D J Colquhoun-Kerr with G J Williams for the plaintiff (instructed by Parish Patience Immigration Lawyers)

D M J Bennett QC, Solicitor-General of the Commonwealth with N J Williams SC, S B Lloyd and G R Kennett for the defendant (instructed by Australian Government Solicitor)

Intervener:

B M Selway QC, Solicitor-General for the State of South Australia with C Jacobi intervening on behalf of the Attorney-General for the State of South Australia (instructed by the Crown Solicitor for the State of South Australia)