Wakim Ex parte McNally and Ors

The applicants, Wakim and others, sought a writ of prohibition against the respondent, McNally, who was acting as a magistrate. The dispute concerned the validity of certain charges laid against the applicants under the *Migration Act 1958* (Cth). The applicants contended that the charges were invalid because the prosecution had failed to comply with a condition precedent to the laying of those charges, namely, the requirement for the Minister to be satisfied that the applicants were not Australian citizens.

The central legal issue before Gaudron J was whether the prosecution had discharged its burden of proving that the Minister had formed the requisite satisfaction regarding the applicants' non-citizenship. This involved an examination of the evidentiary requirements for establishing the Minister's state of mind, particularly in the context of statutory preconditions for criminal proceedings.

Gaudron J reasoned that the prosecution bore the onus of demonstrating that the Minister had been satisfied of the relevant facts. In the absence of any evidence presented by the prosecution to establish this satisfaction, the condition precedent to the laying of the charges had not been met. Consequently, the charges were vitiated. The legal principle applied was that where a statute imposes a condition precedent to the exercise of a power or the institution of proceedings, that condition must be demonstrably fulfilled for the power to be validly exercised or the proceedings to be lawfully commenced.

The orders made were that the writ of prohibition should issue, preventing the magistrate from proceeding with the charges.