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Migration Legislation Amendment Act (No. 6) 1995

No. 102 of 1995

An Act to amend the Migration Act 1958, and for related purposes

[Assented to 18 September 1995]

The Parliament of Australia enacts:

Short title etc.

Short title

1.(1) This Act may be cited as the Migration Legislation Amendment Act (No. 6) 1995.

Principal Act

(2) In this Act, "Principal Act" means the Migration Act 19581.

Commencement

General

2.(1) Subject to this section, this Act is taken to have commenced immediately before the commencement of section 19 of the Migration Reform Act 1992.

Subsection 1(2) and sections 5, 8 and 9

(2) Subsection 1(2) and sections 5,8 and 9 are taken to have commenced on 1 November 1989.

Sections 6 and 7

(3) Sections 6 and 7 are taken to have commenced immediately after the commencement of the Migration Amendment Act (No. 4) 1992.
Sections 13 to 18

(4) Sections 13 to 18 commence on the day on which this Act receives the Royal Assent.

Object of section 5

3. The object of section 5 is to ensure that, if a provision of the Principal Act would have both a valid and an invalid application, then the provision applies to the extent that it is valid.

Object of sections 8 and 9

Background

4.(1) Judicial decisions have determined that section 88 (previously section 36) of the Principal Act has a particular operation. That operation does not accord with the intention of the Parliament or with the previous understanding of the Minister and the Department. Prior to those judicial decisions, none of the persons subject to custody under section 88 sought to challenge their custody under that section on the basis of the interpretation that section was found to have in those decisions.

Object of amendment

(2) The object of sections 8 and 9 is to ensure that sections 87 (previously section 35) and 88 of the Principal Act have, and since 1 November 1989 have had, an operation that is consistent with the operation that the Minister and the Department previously understood those sections to have had and that the Parliament intends those sections to have.

Difference from previous understanding

(3) Section 9 also provides appropriate time limits to apply to the custody of persons under section 88 of the Principal Act in cases where the custody may otherwise be indefinite.

Insertion of new section

5. After section 4 of the Principal Act the following section is inserted:

Act not to apply so as to exceed Commonwealth power

"4A.(1) Unless the contrary intention appears, if a provision of this Act:
(a) would, apart from this section, have an invalid application; but
(b) also has at least one valid application;
it