Maritime Union of Australia v Assistant Minister for Immigration and Border Protection [2014] FCA 993

Maritime Union of Australia v Assistant Minister for Immigration and Border Protection [2014] FCA 993

The Determination was valid. Section 9A(5)(a) and (b) state no limitation on the Minister's power to determine exceptions, and s 9A is a definitional provision capable of contraction or expansion by ministerial determination without destroying the statutory scheme. The Determination was also not the same in substance as the disallowed Regulation: the Regulation prescribed visa classes for s 41(2B)(b) while leaving the migration zone definition intact, whereas the Determination excepted activities from the definition of offshore resources activity and thereby had different legal consequences.

Jurisdiction
Australia
Judgment Date
15 September 2014
Procedural Posture
Administrative Law Proceedings Challenging the Validity of a Legislative Instrument, IMMI 14/077, Made Under S 9 A(6) of the Migration Act 1958 (cth) / Final Judgment After Hearing; Applications Dismissed With Costs
Outcome
Applications dismissed with costs.
Legal Topics
['validity of Delegated Legislation' 'definition of Offshore Resources Activity' 'migration Zone' 'ministerial Determination Under S 9 A(6) of the Migration Act 1958 (cth)' 'disallowed Legislative Instruments and S 48 of the Legislative Instruments Act 2003 (cth)']
['administrative Law' 'migration Law' 'statutory Interpretation'] ['validity of Delegated Legislation' 'definition of Offshore Resources Activity' 'migration Zone' 'ministerial Determination Under S 9 A(6) of the Migration Act 1958 (cth)' 'disallowed Legislative Instruments and S 48 of the Legislative Instruments Act 2003 (cth)']

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Procedural Posture

Administrative Law Proceedings Challenging the Validity of a Legislative Instrument, IMMI 14/077, Made Under S 9 A(6) of the Migration Act 1958 (cth) / Final Judgment After Hearing; Applications Dismissed With Costs

Legal Issues

  1. 1 ['Whether the Determination made under s 9A(6) of the Migration Act 1958 (Cth) was invalid because it excepted the whole of the defined content of offshore resources activity in s 9A(5)(a) and (b).' 'Whether the Determination was the same in substance as the disallowed Migration Amendment (Offshore Resources Activity) Regulation 2014 (Cth) and therefore had no effect under s 48 of the Legislative Instruments Act 2003 (Cth).']

Ratio Decidendi

The Determination was valid. Section 9A(5)(a) and (b) state no limitation on the Minister's power to determine exceptions, and s 9A is a definitional provision capable of contraction or expansion by ministerial determination without destroying the statutory scheme. The Determination was also not the same in substance as the disallowed Regulation: the Regulation prescribed visa classes for s 41(2B)(b) while leaving the migration zone definition intact, whereas the Determination excepted activities from the definition of offshore resources activity and thereby had different legal consequences.

Court Disposition

Applications dismissed with costs.

Orders

  • ['In NSD 780 of 2014, the application is dismissed with costs.' 'In NSD 792 of 2014, the application is dismissed with costs.']