Cunliffe & Anor v The Commonwealth of Australia

The plaintiffs, Cunliffe and others, brought proceedings in the High Court of Australia against the Commonwealth of Australia. The dispute concerned the validity of Part 2A of the *Migration Act 1958* (Cth), introduced by the *Migration Amendment Act (No 3) 1992* (Cth), which established a registration scheme for migration advisers. The scheme prohibited unregistered persons from engaging in specified conduct related to immigration assistance, with significant penalties for contravention. The Attorneys-General for Tasmania, South Australia, Western Australia, New South Wales, and Victoria intervened in support of the defendant.

The central legal issue before the Court was whether Part 2A of the *Migration Act*, as introduced, was a valid exercise of the Commonwealth's legislative power. Specifically, the Court was required to determine if the provisions of Part 2A, particularly those defining "immigration assistance" and "immigration legal assistance" and their nexus with the definition of "entrance applicant," were sufficiently connected to the Commonwealth's constitutional power concerning aliens and immigration to be valid. The plaintiffs contended that the scope of the prohibitions extended beyond the constitutional reach of the Commonwealth.

The Court considered the broad definitions of "immigration assistance" and "immigration legal assistance" and the definition of "entrance applicant," which included persons seeking a visa, entry permit, or a refugee determination. The plaintiffs argued that the operation of Part 2A was too broad, extending to conduct that might occur before a formal application was lodged or after a visa had been granted, thereby exceeding the Commonwealth's constitutional authority. The Court's reasoning focused on the constitutional nexus between the impugned provisions and the head of power relating to aliens and immigration, examining whether the defined conduct and the class of persons affected fell within the scope of that power.