Maritime Union of Australia v Minister for Immigration and Border Protection [2016] HCA 34

HIGH COURT OF AUSTRALIA

FRENCH CJ, BELL, GAGELER, KEANE AND NETTLE JJ

THE MARITIME UNION OF AUSTRALIA & ANOR PLAINTIFFS

AND

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR DEFENDANTS

Maritime Union of Australia v Minister for Immigration and Border Protection [2016] HCA 34 31 August 2016 S136/2015

ORDER

The questions stated by the parties in the special case dated 6 May 2016 and referred for consideration by the Full Court be answered as follows:

Question 1

Is paragraph 2 of Determination IMMI15/140, registered on the Federal Register of Legislative Instruments on 14 December 2015, invalid?

Answer

Yes.

Question 2

If the answer to Question 1 is "Yes", what relief, if any, should be granted?

Answer

It should be declared that paragraph 2 of Determination IMMI15/140, registered on the Federal Register of Legislative Instruments on 14 December 2015, is invalid and of no effect.

Question 3

Who should pay the costs of the Special Case?

Answer

The second defendant.

Representation

N J Williams SC with B K Lim for the plaintiffs (instructed by Slater and Gordon Lawyers)

S P Donaghue QC with A M Mitchelmore for the defendants (instructed by Australian Government Solicitor)

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

CATCHWORDS

Maritime Union of Australia v Minister for Immigration and Border Protection

Statutes – Delegated legislation – Validity – Migration Act 1958 (Cth) – Offshore resources industry – Where amendments to Migration Act had effect of extending migration zone to non‑citizens participating in or supporting offshore resources activity – Where amendments created specified visa requirements for such persons – Where amendments conferred power on Minister to make determination excepting operations and activities from extended migration zone – Where Minister's determination purported to except from migration zone, and specified visa requirements, all operations and activities to extent certain vessels or structures were used – Whether determination entirely negated operation of general rule in extending migration zone to non‑citizens participating in or supporting offshore resources activity – Whether determination beyond power and invalid.