Australian Maritime Officers' Union v Assistant Minister for Immigration and Border Protection [2015] FCAFC 45

Australian Maritime Officers' Union v Assistant Minister for Immigration and Border Protection [2015] FCAFC 45

The Minister's power under s 9A(6) to make exceptions for offshore resources activities does not extend to wholly extinguishing the content of activities identified in s 9A(5)(a) and (b); such a power was intended by Parliament to be limited to excepting particular activities or operations, not to render the deeming provision and associated visa requirements otiose. The relevant Determination, by excepting all activities and thus eviscerating the operative provisions, is ultra vires and invalid.

Parties
Appellant: Australian Maritime Officers' Union; Appellant: The Maritime Union of Australia; First Respondent: Assistant Minister for Immigration and Border Protection; Second Respondent: The Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
26 March 2015
Procedural Posture
Appeal / Full Court Decision (on Appeal From Primary Judge)
Outcome
Appeals allowed
Legal Topics
Migration Zone, Ministerial Powers, Validity of Delegated Legislation, Ultra Vires, Offshore Resources Activity, Visa Requirements for Offshore Workers
Administrative Law Statutory Interpretation Migration Zone Ministerial Powers Validity of Delegated Legislation Ultra Vires Offshore Resources Activity Visa Requirements for Offshore Workers

Case Brief

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Parties

Australian Maritime Officers' Union

Appellant

The Maritime Union of Australia

Appellant

Assistant Minister for Immigration and Border Protection

First Respondent

The Commonwealth of Australia

Second Respondent

Procedural Posture

Appeal / Full Court Decision (on Appeal From Primary Judge)

Legal Issues

  1. 1 Whether the Determination (IMMI 14/077) made under s 9A(6) of the Migration Act 1958 (Cth) was valid or ultra vires
  2. 2 Proper construction and scope of the Minister's power under s 9A(6) to except 'offshore resources activity' from s 9A(5)
  3. 3 Whether the Minister may wholly except all operations or activities and thus render the provision otiose

Ratio Decidendi

The Minister's power under s 9A(6) to make exceptions for offshore resources activities does not extend to wholly extinguishing the content of activities identified in s 9A(5)(a) and (b); such a power was intended by Parliament to be limited to excepting particular activities or operations, not to render the deeming provision and associated visa requirements otiose. The relevant Determination, by excepting all activities and thus eviscerating the operative provisions, is ultra vires and invalid.

Court Disposition

Appeals allowed

Orders

  • The appeals are allowed.
  • The orders made by the primary judge on 15 September 2014 are set aside.