Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 945

Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 945

The gazettal notice published by the Minister is not a valid exercise of power under s 503A(9) of the Migration Act 1958 (Cth) because it fails to specify, with the required clarity and precision, any particular body, agency or organisation as required. However, by operation of s 46(1)(b) of the Acts Interpretation Act, the invalid portions can be severed so that, at minimum, the specification of criminal investigation agencies in Australia, including the Western Australia Police Service, is valid and effective.

Jurisdiction
Australia
Judgment Date
30 July 2002
Procedural Posture
Judicial Review / Judgment on Separate Determination of Questions Under O 29 R 2 of Federal Court Rules
Outcome
The notice is invalid but, after severance, validly specifies the Western Australia Police Service as a gazetted agency.
Legal Topics
['gazettal of Agency Under S 503 a Migration Act' "meaning of 'specify' in Delegated Legislation" 'acts Interpretation Act S 46(1)(b) and S 46(2)' 'validity and Severance of Legislative Instruments']
['administrative Law' 'migration Law' 'statutory Interpretation'] ['gazettal of Agency Under S 503 a Migration Act' "meaning of 'specify' in Delegated Legislation" 'acts Interpretation Act S 46(1)(b) and S 46(2)' 'validity and Severance of Legislative Instruments']

Case Brief

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Procedural Posture

Judicial Review / Judgment on Separate Determination of Questions Under O 29 R 2 of Federal Court Rules

Legal Issues

  1. 1 ['Whether the gazettal notice published by the Minister is a valid exercise of power under s 503A(9) of the Migration Act 1958 (Cth)' 'Whether, if invalid, the improper parts are severable such that the notice validly specifies the Western Australia Police Service as a gazetted agency']

Ratio Decidendi

The gazettal notice published by the Minister is not a valid exercise of power under s 503A(9) of the Migration Act 1958 (Cth) because it fails to specify, with the required clarity and precision, any particular body, agency or organisation as required. However, by operation of s 46(1)(b) of the Acts Interpretation Act, the invalid portions can be severed so that, at minimum, the specification of criminal investigation agencies in Australia, including the Western Australia Police Service, is valid and effective.

Court Disposition

The notice is invalid but, after severance, validly specifies the Western Australia Police Service as a gazetted agency.

Orders

  • ['The questions for separate determination be answered: (a) The notice is not a valid exercise of power; (b) The invalid parts are severable so that the notice specifies the Western Australia Police Service for the purposes of s 503A(9) of the Migration Act 1958 (Cth).' 'The costs of the parties be reserved.' 'The...