Maritime Union of Australia v Minister for Immigration and Border Protection

The High Court has decided a challenge in its original jurisdiction to two ministerial determinations on ‘offshore resources activity’ and associated vessels, both of which impact on the visa conditions of non-citizens involved in work in various offshore resources industries. The initial challenge was to the Minister’s decisions made in March 2015 under ss 9A(6) and 33(2)(b)(ii) of the Migration Act 1958 (Cth), which respectively empower the Minister to make a determination to define an ‘offshore resources activity’ and to declare various classes of people entitled to temporary special purpose visas. The applicant unions claimed that these decisions would have effectively allowed non-citizens to work in Australia’s offshore resource industries without permanent or prescribed visas and thus were contrary to the text and overall scheme of the Migration Act. On 2 December 2015 the Minister made a new determination under s 9A(6), which became the subject of this matter, that relevantly provides:

a. for the purposes of paragraph 9A(5)(a) of the Act, a regulated operation (within the meaning of section 7 of the Offshore Petroleum and Greenhouse [Gas] Storage Act 2006), [is not a regulated operation] to the extent that the operation uses any vessel or structure that is not an Australian resources installation;

b. for the purposes of paragraph 9A(5)(b) of the Act, an activity performed under a licence or a special purpose consent (both within the meaning of section 4 of the Offshore Minerals Act 1994), [is not a regulated activity] to the extent that the activity uses any vessel or structure that is not an Australian resources installation

A unanimous Court (French CJ, Bell, Gageler, Keane and Nettle JJ) held that the determination exceeded the limits of the Minister’s statutory power and consequently was invalid for a range of reasons. The Court noted that while the determination was drafted in the singular (referring to ‘a regulated operation’ and ‘an activity’) its purported effect is to except all operations and activities to the extent that they use any vessel or structure that is not an Australian resources installation (at [20]). Turning to the reasons for invalidity, the Court noted, first, that the power of exception under s 9A is a power to except a specific operation or activity from the operation of the relevant sections: while that may allow excepting multiple operations or perhaps a class of operations, its wording is ill-adapted to excepting an operation or activity to a particular extent (here, the extent of using a vessel or structure that is not an Australian resources installation): at [21]. Secondly, the Determination effectively deprives s 9A(1) of all content, negating the operation of the general rule (at [22]–[23]). Thirdly, the Determination is opposed to the statutory purpose of s 9A(6), which, while allowing the Minister to take into account a broad range of factors, is not unconstrained, is not intended to be used to enabling an entire negation, and to the contrary its text and context suggest it is intended to be used to provide limited exceptions for particular activities and operations (at [24]–[25]). The Court rejected several arguments made by the defendants against this construction of the provisions (see [26]–[34]). The Court’s answers to the questions stated in the special case were:

Question 1: Is paragraph 2 of Determination IMMI15/140, entered on the Federal Register of Legislative Instruments on 3 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, entered on the Federal Register of Legislative Instruments on 3 December 2015, is invalid and of no effect.
Question 3: Who should pay the costs of the Special Case?
Answer: The second defendant.

High Court Judgment [2016] HCA 34 31 August 2016
Result Determination invalid
High Court Documents MUA v MIBP
Full Court Hearing [2016] HCATrans 158 19 July 2016
Directions Hearings [2015] HCATrans 341 14 December 2015
[2015] HCATrans 280 28 October 2015

[2015] HCATrans 201 19 August 2015
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.