Christopher Levingston Blog

Imagine this scenario....Your client made an application for a 457 before 17 April 2017 and it was refused and you are on appeal at the AAT.

The substantive issue was an assertion by DOHA that the position was not genuine.

However, you are now at the AAT and you are winning on the genuine position issue and then the Tribunal ambushes you by saying words to the effect, '...however, notwithstanding that the subject position is genuine it is subject to a caveat and you do not meet that requirement."

What do you do?

You argue this....(do it in writing)

IMMI17/060 and IMMI18/004 which purports to repeal IMMI 17/060 are invalid to the extent of the first instrument (IMMI 17/060) and its purported retrospectivity with the subsequent legislative instrument (IMMI 18/004) also being invalid by reason of its purported intent to repeal IMMI17/060 yet save the retrospective effect incorporated into the Legislative instrument. 

Both scenarios are prohibited by the Legislation Act, 2003. 

My reading of the legislative instrument, IMMI/17/060,[https://www.legislation.gov.au/Details/F2017L00848] and applying the golden rule of  statutory interpretation ( the plain meaning of words) appears to require consideration of a caveat.

I am aware that there has been a subsequent legislative instrument come into effect IMMI 18/004 

[https://www.legislation.gov.au/Details/F2018L00044]

The significance of that fact is that at page 20 of IMMI18/004 there is a purported saving of the provisions that relate to nominations made before 17 January 2018.

That being the case, the legal position is as follows:

1. The Legislative instrument IMMI17/060 has been repealed.
2. It is not possible to repeal an instrument and then save it for a particular purpose,
3. The purported saving provision has a retrospective effect which is prohibited under the Legislative Act 2003 in that it prohibits the derogation of existing rights:

12  Commencement of legislative instruments and notifiable instruments

When do legislative instruments and notifiable instruments commence?

             (1)  A legislative instrument or a notifiable instrument commences:

                     (a)  at the start of the day after the day the instrument is registered; or

                     (b)  so far as the instrument provides otherwise—in accordance with such provision.

Note:       The instrument may provide for its commencement by enabling a commencement instrument to be made: see subsection (5).

Retrospective application

             (2)  A provision of a legislative instrument or notifiable instrument does not apply in relation to a person (other than the Commonwealth or an authority of the Commonwealth) if the provision commences before the day the instrument is registered, to the extent that as a result:

(a)   the person’s rights as at that day would be affected so as to disadvantage the person; or

(b)  liabilities would be imposed on the person in respect of anything done or omitted to be done before that day.

             (3)  However, subject to subsection (2), a legislative instrument or notifiable instrument

                    may provide that a provision of the instrument commences before the day the

                    instrument is registered.

             (4)  The effect of subsection (2) or (3) in relation to an instrument is subject to any

                    contrary provision in an Act.

I hope you all have a happy and safe Christmas and thank you for all of your support throughout 2018!