Can the government still enforce my visa rules if part of the law is found to be unconstitutional?

The situation

I am currently living in Melbourne, Victoria, on a temporary work visa that I obtained back in February 2022. My employer, a local logistics firm, has been paying my salary into my Australian bank account for the last two years without any issues. However, I have been reading some news reports lately suggesting that certain parts of the federal migration laws might actually go beyond what the Commonwealth government is legally allowed to do under the Constitution. This has me incredibly stressed. I have already spoken to my HR manager about my job security, and they told me to just keep working as normal, but they didn't have any real answers. If a court eventually decides that a specific rule in the migration laws is invalid because it exceeds the government's power, does that mean the entire rule is scrapped for everyone, or could the rule still be applied to me if my specific situation falls under a part of the law that is actually valid? I am worried that if the law is partially broken, my whole visa status might become uncertain or invalid overnight. I need to know if the law can be 'split' so that it still works for some people even if it's illegal for others.

Detailed Analysis

Under the Migration Act 1958, the law is designed to prevent a single unconstitutional part from destroying the entire system.

Section 3A provides a mechanism for 'splitting' the law. It states that if a provision "would, apart from this section, have an invalid application; but... also has at least one valid application; it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application"^[1]. This means that if a court decides a rule exceeds the Commonwealth's power (an 'invalid application') for certain people, the rule is not automatically scrapped for everyone. Instead, the law continues to apply to any person or situation where that rule is legally valid^[1].

For your situation in Melbourne, this means your temporary work visa status would not necessarily become invalid overnight just because a piece of the law is challenged. If the rules governing your specific visa and your specific circumstances are found to be within the Commonwealth's legal power, those rules will continue to apply to you^[1].

However, there are two main reasons why this might not happen. First, if it is clear from the context that Parliament only intended the rule to work if every single part of it was constitutional, the whole rule might fail^[1]. Second, if the way the law works for you would be 'different in a substantial respect' from how it would have worked if the whole law were valid, the rule might not apply to you^[1]. Because these exceptions depend on interpreting the 'purpose or object' of the Act, the exact impact on your visa remains uncertain until a court makes a specific ruling.

Statutory Citations

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