Air Caledonie International v Commonwealth [1988] HCA 61

High Court of Australia Mason C.J. Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ. Air Caledonie International v Commonwealth [1988] HCA 61

ORDER Demurrer overruled with costs. Declare that s. 34A of the Migration Act 1958 Cth was invalid. Stand over the action for mention before a single Justice.

Cur. adv. vult.

The Court delivered the following written judgment:—

Nov. 24 Mason C.J., Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ.

Section 7 of the Migration Amendment Act 1987 Cth purported, as from 1 January 1988, to impose a liability to pay what was described as a "fee for immigration clearance" in respect of international airline passengers entering Australia. It did this by adding s. 34A to the Migration Act 1958 Cth. Putting to one side evidentiary provisions (sub-s.(5)), s. 34A was in the following terms:

(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.

(6) In this section: "international air operator" means a person, organisation or enterprise operating an overseas flight on which passengers are carried or, where that person, organisation or enterprise does not have an office or place of business in Australia, the Australian agent of that person, organisation or enterprise;