Maritime Union of Australia v Minister for Immigration and Border Protection

The Maritime Union of Australia brought proceedings against the Minister for Immigration and Border Protection in the Full Court of the Federal Court of Australia concerning the validity of a legislative instrument. The dispute arose from amendments to the *Migration Act 1958* (Cth) that extended the migration zone to non-citizens participating in or supporting offshore resources activity, thereby creating specific visa requirements for such individuals. The Minister issued a determination that purported to except certain operations and activities from this extended migration zone, which the Union argued effectively negated the general rule established by the Act.

The court was required to determine whether the Minister's determination was beyond the scope of the power conferred by the *Migration Act 1958* and therefore invalid. Specifically, the central legal issue was whether the determination, by excepting all operations and activities to the extent certain vessels or structures were used, entirely nullified the operation of the general rule that extended the migration zone to non-citizens engaged in offshore resources activity.

The Full Court reasoned that the purpose of section 9A(1) of the *Migration Act 1958* was to subject all non-citizens participating in or supporting offshore resources activity to the visa regime outlined in sections 41(2B) and (2C), unless specific operations or activities were excepted. The court found that the 2015 Determination, by its broad exception, purported to negate the effect of section 9A(1). Consequently, the court concluded that the determination was beyond the Minister's power and thus invalid. The court ordered that paragraph 2 of Determination IMMI15/140, registered on 14 December 2015, be declared invalid and of no effect, with the second defendant to pay the costs of the special case.