the Constitution
of the Commonwealth of Australia, a third from ancillary
powers and a fourth from a special case involving members of a class.
Migration Act 1958
Minister for Immigration v Mayer
involved s6A(1)(c) of the Migration Act
1958 (Cth).
271
Section 6A(1)(c) stated one of the conditions on which an entry
permit could be granted to a non-citizen after his entry to Australia. The
condition was that "he is the holder of a temporary entry permit which is in
force and the Minister has determined, by instrument in writing, that he has the
status of refugee”. In essence the second part of the condition was that the
Minister had determined that the person was a refugee. This had two possible
meanings. (i) Did this provision merely state one precondition for issue of an
entry permit, namely that the Minister had given the person refugee status? On
this interpretation the Minister's actual power to determine refugee status had
to come from another source, for example the royal prerogative. (ii) Or did the
provision not only lay down the precondition that the Minister had given
refugee status, but also by an implied extension confer power on the Minister
to determine refugee status? It is the second interpretation that is an implied
extension of the provision. It was also the view taken by a 3-2 majority of the
High Court.
272
Constitution Section 92
Section 92 of the Commonwealth Constitution provides that trade, commerce
and intercourse between the [Australian] states shall be absolutely free. It has
two omissions. First, while decreeing freedom, it omits, famously and
completely, to say from which interference trade and commerce shall be
absolutely free.
273
Second, s92 omits to say from whose interference interstate trade and
commerce shall be free. There are two broad possibilities. (i) Section 92 could
be addressed to governments. If so, is it Commonwealth or State
governments, or both? And, which organs of government does it address -
parliament, courts, executive or a combination. (ii) Section 92 could be
271
Minister for Immigration v Mayer (1985) 61 ALR 609
272
An unsuccessful attempt to
argue an implied extension of another part of
the Migration Act 1958
was made in Dallikavak v Minister for Immigration
(1985) 61
ALR 471.
273
Given the commitment of the High Court to separation of powers, there is a
strong argument that filling a gap of this size is a legislative task that is beyond
the constitutional capacity of a court to repair. Yet in the leading case on s92 of the
Commonwealth Constitution, Cole v Whitfield (1988) 165 CLR 360 the Court did not
even contemplate this possibility.
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