Air Caledonie International v The Commonwealth

HIGH COURT OF AUSTRALIA

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

AIR CALEDONIE INTERNATIONAL v. THE COMMONWEALTH

(1988) 165 CLR 462

24 November 1988

Constitutional Law (Cth)

Constitutional Law (Cth)—Taxation—Law imposing taxation to deal with no other matter—Provisions dealing with other matters to be of no effect—Amending Act—Amended Act dealing with matters other than taxation—Validity—Fee imposed on air passengers to Australia for immigration clearance—Fee imposed on carriers—Right to recover from passengers—Whether tax—The Constitution (63 &64 Vict. c. 12),s. 55—Migration Amendment Act 1987 (Cth),s. 7—Migration Act 1958 (Cth),s. 34A.

Decision

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:

"34A. (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;

'overseas flight' means a flight that commenced at, or during which the aircraft called at, a place outside Australia;

'passenger' means a person (whether an Australian citizen or not) who travels to Australia as a passenger on an aircraft operated by an international air operator".

By reg.30A, which was inserted in the Migration Regulations on 21 December 1987, it was provided, for the purposes of s.34A(1), that the "prescribed fee" was five dollars and by reg.30B, inserted on the same day, that a person under twelve years of age was a "prescribed passenger".

2. Each of the plaintiffs is an "international air operator" which was, if s.34A was a valid enactment of the Commonwealth Parliament, liable to make payments to the Commonwealth pursuant to its terms. By statement of claim filed in the original jurisdiction of the Court and naming the Commonwealth as defendant, the plaintiffs sought a declaration that the provisions of the section were invalid. The Commonwealth filed a defence…