Shaw v MIMA, Ex parte Attorney-General of the Cth

The Attorney-General of the Commonwealth sought leave to appeal to the High Court of Australia from a decision of the Federal Court of Australia concerning the validity of a deportation order made against Mr Shaw. The dispute centred on whether Mr Shaw, a citizen of New Zealand, had been convicted of a "serious offence" for the purposes of the Migration Act 1958 (Cth), which would render him liable for mandatory detention and deportation.

The High Court was required to determine whether the offence of which Mr Shaw had been convicted, namely the possession of a prohibited drug, constituted a "serious offence" as defined by the Migration Act. This involved an interpretation of the statutory definition, particularly the requirement that the offence be punishable by a term of imprisonment of at least 12 months.

The Court reasoned that the statutory definition of a "serious offence" was to be applied by reference to the maximum penalty prescribed by law for the offence, not the penalty actually imposed or likely to be imposed in a particular case. Applying this principle, the Court found that the offence of possession of a prohibited drug, which carried a maximum penalty of imprisonment for 10 years, fell within the definition of a "serious offence" under the Migration Act. Consequently, Mr Shaw was liable for deportation.

Leave to appeal was granted, and the appeal was allowed. The decision of the Federal Court was set aside, and the matter was remitted to the Federal Court for further consideration.