Supplmentary Explanatory Memorandum relating to sheet JC576
(Circulated by authority of the Attorney General, the Hon. Christian Porter MP)Outline
Government amendments in Schedule 8 of the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018 (the Bill) ensure that the appointment of a proclaimed port in the Territory of Ashmore and Cartier Islands contained in the Commonwealth of Australia Gazette No. GN 3, 23 January 2002 (the appointment) has always had the legal effect that was intended and that it was thought to have had, and to ensure that things done which relied on the validity of the appointment are valid and effective.
Specifically, the amendments in Schedule 8 of the Bill:
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- clarify that the term "appointment" will include a purported appointment;
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- clarify the geographical coordinates of the area of waters within the Territory of Ashmore and Cartier Islands specified in the appointment;
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- confirm that there was a properly proclaimed port at Ashmore and Cartier Islands at all relevant times; and
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- confirm the validity of things done under the Migration Act 1958 (such as actions taken or decisions made) which relied directly or indirectly on the validity of the appointment, before the commencement of this Act.
Financial Impact Statement
These amendments will have a no financial impact.
Notes on Individual Amendments in Schedule 8
Amendment 1 - Definitions
1. This amendment includes an item entitled "Definitions."
2. Amendment 1 inserts a definition for the word "appointment", providing that an appointment includes "a purported appointment."
3. The purpose of this amendment is to clarify that any references to the term "appointment" in the amendments in this Schedule 8 will include any purported appointment.
Amendment 2 - Validation of appointment of an area of water within the Territory of Ashmore and Cartier Islands as a port
4. Subamendment 2(1) provides that this applies to the appointment of an area of waters within the Territory of Ashmore and Cartier Islands under paragraph 5(5)(a) of the Migration Act 1958 by notice published in the Gazette on 23 January 2002. This Amendment identifies the appointment to which the validation relates.
5. Subamendment 2(2) provides that the appointment has, and is taken always to have had, effect as if all of the words from and including "the area of waters" to and including "point of commencement." were omitted and the following words were substituted:
the area of waters within the Territory of Ashmore and Cartier Islands commencing at a point on the Mean Low Water (MLW) line closest to Latitude 12 degrees 13.2 minutes South, Longitude 122 degrees 59.0 minutes East, then following the line of MLW in an anticlockwise direction so as to enclose a bay by bridging across islands of MLW at the entrance to the bay to close back to the point of commencement.
6. The effect of this subamendment is to clarify the geographical coordinates of the area of waters within the Territory of Ashmore and Cartier Islands specified in the appointment. The appointment inadvertently omitted the number "12" before the word "degree", and the letter "s" in the word "degrees" in the latitude coordinates and the word "Longitude" before "122 degrees 59.0 minutes...". In addition to correcting the inadvertent omissions in identifying the coordinates, the opportunity has been taken to clearly identify the specific quadrant on the Earth's surface in which the coordinates occur, by inclusion of the words "South," and "East," in the description. This is consistent with the intention of the original appointment.
7. Subamendment 2(3) of Schedule 8 confirms that the Migration Act 1958 has, and is taken always to have had, effect as if the area of waters specified in the appointment (as affected by subamendment (2)) were a port for the purposes of that Act.
8. Subamendment 2(4) confirms that this item does not, by implication, prevent amendment or revocation of the appointment.
Amendment 3 - Validation of things done under the Migration Act 1958
9. Subamendment 3(1) of Schedule 8 provides that this applies to a thing done under the Migration Act 1958 at any time before the day Schedule 8 commences, to the extent that the doing of the thing would, apart from this Act, be invalid or ineffective, directly or indirectly because of the validity of the appointment referred to in subamendment 2(1).
10. Subamendment 3(2) confirms that the thing done is as valid and effective, and is taken always to have been as valid and effective, as it would have been had this Act been in force at that time.
11. The purpose of this Amendment is to confirm the validity of things done (such as actions taken or decisions made) under the Migration Act 1958 which relied directly or indirectly on the validity of the appointment, before the commencement of this Schedule.
Amendment 4 - Act does not affect certain rights or liabilities
12. Amendment 4 of the Schedule provides that this Schedule does not affect rights or liabilities arising between parties to proceedings in which judgment has been delivered by a court before the commencement of this Schedule, if the validity of the appointment referred to in subamendment 2(1) was at issue in the proceedings; and the judgment set aside the appointment or declared it to be invalid.
13. The purpose of this Amendment is to confirm that this Schedule will not apply to cases where judgment has been delivered by a court before the commencement of this Schedule but only if the validity of the appointment was at issue in the proceedings and the judgment set aside the appointment or declared it to be invalid.
14. The effect of this Amendment will preserve any such decision of a court prior to the commencement of this Schedule.