BILLS DIGEST NO. 75, 2013–14              23 May 2014

Migration Amendment (Offshore Resources Activity) Repeal Bill 2014

Mary Anne Neilsen
Law and Bills Digest Section 

Date introduced: 27 March 2014

House:  House of Representatives

Portfolio: Immigration and Border Protection

Commencement: The day of Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The purpose of the Migration Amendment (Offshore Resources Activity) Repeal Bill 2014 (the Bill) is to repeal the Migration Amendment (Offshore Resources Activity) Act 2013 (ORA Act).[1] The ORA Act received Royal Assent on 29 June 2013 and its operative provisions are due to commence on 30 June 2014. The Bill is intended to repeal the ORA Act before it commences operation.

Background

The Migration Amendment (Offshore Resources Activity) Act 2013

The ORA Act  was the Labor Government’s response to the Federal Court decision Allseas Construction S.A. v Minister for Immigration and Citizenship [2012] FCA 529 (Allseas).[2] The purpose of the ORA Act was to overcome a gap in Australian immigration law identified in Allseas, so as to bring persons participating in or supporting an ‘offshore resource activity’ within the ambit of the Migration Act 1958 [3] thereby requiring them to hold visas.

The following background on the ORA Act is from the Bills Digest for the Migration Amendment (Offshore Resources Activity) Bill 2013 (2013 Bill), and provides the context for the decision to repeal the ORA Act.[4]

The Allseas case

Justice McKerracher handed down Allseas on 22 May 2012.[5] Two vessels were engaged in pipe-laying work offshore, in connection with two gas fields some 65 kilometres and 130 kilometres northwest of Barrow Island, off the Western Australian coast. The employees on the vessels were mostly non-citizens. The question the Court had to consider was whether it was necessary for them to have work permits.

To answer this question, it was necessary to consider whether the vessels had ‘entered Australia’ when the pipe-laying work was taking place. His Honour noted that at common law, the area of a state consists of:

•       the land to the seashore at the low water mark and

•       any inland waters and adjacent parts of the sea which are sufficiently landlocked to be regarded as inland waters and part of the state.[6]

In contrast, his Honour noted the migration zone under the Migration Act comprises:

•       land that is part of a state or territory to the average low water mark on the coast

•       adjacent parts of the sea which are sufficiently landlocked to form part of a state or territory - and which are also within the limits of a proclaimed port (both criteria must be satisfied)

•       piers or similar structures connected to such land or to ground under such sea and

•       ‘Australian resources and sea installations’.[7]

Resources installations are either:

•       resources industry fixed structures or

•       resources industry mobile units.[8]

His Honour found the vessels in question were not resources industry fixed structures[9] and came within an exception contained in the Migration Act, which meant they were not resources industry mobile units.[10] As according to the Migration Act the vessels were neither resources installations nor Australian resources installations, subsection 5(6) (which deems persons on such installations to have entered Australia) did not apply to the non-citizens working on them.[11]

As a result, the non-citizens on the vessels did not require permission to work on the vessels under Australian immigration law, as they had not entered Australia. This decision was interpreted by some as exposing an inconsistency (or ‘gap’) in Australian immigration law as, for example, non-citizens working on offshore resource installations required visas with work rights, while those on nearby pipe-laying vessels did not.

In the wake of the ruling in Allseas, the Department of Immigration and Citizenship established a Migration Maritime Taskforce (Taskforce) to review options for a possible legislative response to the case.[12] The Taskforce recommended to the Minister that all offshore resource workers, including support staff, should be taken to be in the migration zone when involved in activities regulated by Australian law (such as those relating to Australia’s natural resources).[13] The 2013 Bill sought to do precisely that.

Passage of the 2013 Bill through the Parliament

The 2013 Bill was introduced into the previous Parliament on 30 May 2013 and on 18 June 2013, the 2013 Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report.[14]

The majority of the Committee recommended that the 2013 Bill be passed.[15] The Coalition Senators on the Committee did not.[16]

In their dissenting report, Coalition Senators stated that Allseas exposed no gap or inconsistencies in Australian immigration law.[17] They were of the view that the 2013 Bill was introduced at the urging of the Maritime Union of Australia, and feared the passage of the 2013 Bill would further empower what they considered to be an already over-empowered organisation.[18] They also considered the 2013 Bill would have an adverse economic impact.[19]

The Coalition Senators also expressed concern that the 2013 Bill’s potential reach could extend beyond limitations contained in the United Nations Convention on the Law of the Sea 1982 (UNCLOS), to which Australia is a signatory.[20] In their view, this could mean that certain actions taken by the Minister under the ORA Act could be in breach of Australia’s treaty obligations.

Two trade unions, the Australian Institute of Marine and Power Engineers (AIMPE) and the Maritime Union of Australia (MUA) provided submissions to the Committee, and supported the 2013 Bill. However, the AIMPE was concerned there was no explicit definition of the area to which the proposed amendments were to apply.[21]

In contrast, Shipping Australia Limited (SAL) and the Australian Mines and Metals Association (AMMA) opposed the 2013 Bill as the amendments were considered unnecessary.[22] AMMA was concerned that the Ministerial determination power under subsection 9A(6) of the Migration Act was an inappropriate delegation of legislative power.[23]

The 2013 Bill passed the House of Representatives on 17 June 2013 and the Senate on 27 June 2013. The 2013 Bill was then assented to on 29 June 2013. Without passage of the current Bill, the substantive provisions of the ORA Act will commence on 30 June 2014 along with regulations providing for the implementation of a new visa requirement specific to offshore resources workers.[24]

Key provisions of the ORA Act

The key provision is section 9A, inserted into the Migration Act by item 6 of the ORA Act. This provides for ‘offshore resources activities’ in subsection 9A(5). A person is taken to be in the migration zone while he or she is in an area to participate in offshore resources activities (subsection 9A(1)).

‘Offshore resources activity, in relation to an area’, is defined in subsection 9A(5) to be either:

•       a regulated operation within the meaning of section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (OPGGSA)[25] that is being carried out, except for any operation determined by the Minister under subsection 9A(6) (discussed below)

•       an activity performed under a licence or special purpose consent within the meaning of section 4 of the Offshore Minerals Act 1994 (the OMA)[26] that is being carried out, except for any activity determined by the Minister under subsection 9A(6) or

•       an activity, operation or undertaking being carried out under a Commonwealth, state or territory law determined by the Minister under subsection 9A(6) and within an area determined by the Minster.

Subsection 9A(6) empowers the Minister to make determinations for the purposes of subsection 9A(5). Such determinations are legislative instruments for the purposes of the Legislative Instruments Act 2003, however the disallowance provisions in section 42 of that Act are not to apply.

The Minister therefore has executive powers under the ORA Act to make determinations excluding various activities from the operation of the Migration Act, as well as expanding its operation beyond petroleum, greenhouse gas storage and offshore mining activities to anything carried out under Australian law.

Subsection 9A(8) confirms that a person will be involved in an offshore resources activity in relation to an area whether the person is on an Australian resources installation in the area, or is otherwise in the area to participate in or support the activity.

Section 41 of the Migration Act provides that the regulations may set out conditions to be attached to visas.[27] The sorts of conditions might include limits on subsequent visa applications which may be made onshore[28] and work limitations.[29] It is possible to waive the need for compliance with certain visa conditions.[30]

Subsection 41(2B) (inserted by item 8 of the ORA Act) provides that a visa-holder’s permission to work is not to extend to offshore resources activities in relation to an area unless the visa is a permanent visa or the visa is of a type prescribed in the regulations for this purpose. The effect of this is that holders of temporary visas who have work rights will be unable to participate in offshore resources activities unless the type of visa they have is prescribed.

The Bill before the Parliament

Policy commitment

While the Coalition in opposition had presented a dissenting Senate Committee report on the 2013 Bill, it would seem that it gave no indication in its election commitments prior to the 2013 election that it would repeal the ORA Act.

Furthermore, the MUA submission to the current Senate inquiry into the Bill (see below) states that there had been constructive discussions with the Department of Immigration and Border Protection in December 2013, to sort out the detail of the special offshore resources visas that would be prescribed under the ORA Act. The Regulation Impact Statement (RIS) attached to the Explanatory Memorandum states that the Mid-Year Economic and Fiscal Outlook 2013–14 of December 2013 included a decision to reverse funding for the Reform of the Migration Zone for Offshore Workers and on 12 February 2014, the Assistant Minister for Immigration and Border Protection gave policy approval to repeal the ORA Act.[31]

The Government’s rationale for the current Bill given in the explanatory materials is based heavily on the arguments it put in the dissenting Committee report referred to above, arguing that the ORA Act would increase the regulatory burden on the resources industry and will have significant impacts for businesses and investors.[32]

The RIS attached to the Explanatory Memorandum argues that the requirement for a new dedicated work visa for the offshore resources industry is unnecessary, noting that workers on foreign vessels:

… are not recruited by project and are all remunerated in common packages as per international maritime industrial law and standards. The workers would be a range of low to highly skilled occupations and would reflect broad international nationalities, which may require visas depending on their status as Australian/citizens, already holding a visa (eg 457) or non-visaed.

The visa therefore, is simply a red tape, bureaucratic process to confirm the status of a foreign national in the migration zone.[33]

Committee consideration

Senate Legal and Constitutional Affairs Legislation Committee

The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 6 June 2014 (the Senate inquiry). Details are at the inquiry web page.[34]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights has considered the Bill and raises concerns about the Statement of Compatibility with Human Rights issued by the Government.[35] In particular it takes issue with the Government’s argument that the Bill is compatible with human rights as it ‘seeks to continue existing arrangements and as such, does not raise any human rights implications’ (see below). The Committee notes that while the specific measures of the ORA Act are yet to commence, the Act itself is an operative Commonwealth law. In the Committee's view, the effect of the Bill is therefore properly characterised as being to remove measures that would otherwise enter into force. The Committee continues:

Where a Bill seeks to repeal existing arrangements, the committee's usual expectation is that the statement of compatibility provide an assessment of whether the repeal of those arrangements may reduce or remove human rights protections, and whether remaining or proposed arrangements in place of the repealed measures may offer equivalent or greater protection of human rights.

The committee notes that the statement of compatibility for the ORA Act identified the right to work and rights to work as being significantly engaged by the then proposed imposition of visa requirements on foreign workers involved in offshore resource activities in the migration zone. That assessment concluded that the measure was ‘directly supportive of the right to work of Australian citizens and permanent residents, and…[was therefore] a permissible limitation on the rights of non-citizens.’

The committee therefore requests the advice of the Minister for Immigration and Border Protection as to the compatibility of the Bill with the right to work and rights at work.[36]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government concluded that the Bill is compatible with human rights as it seeks to continue existing arrangements and as such, does not raise any human rights implications.[37]

Policy position of non-government parties

Given the previous Labor Government enacted the ORA Act, it would be expected that the Labor Party in opposition will oppose the Bill. Similarly, the Australian Greens supported the 2013 Bill and it is assumed they will oppose the current Bill.[38]

Position of major interest groups

The responses to the Bill by the major interest groups are predictably consistent with their responses to the 2013 Bill. Those that supported the 2013 Bill (namely union groups) oppose the Bill and those that opposed the 2013 Bill (mining, shipping and business groups) support the current Bill.

For example, the AMMA in its submission to the current Senate inquiry supports the Bill, arguing the ORA Act should be repealed with urgency as it ‘is a purposeless, fundamentally redundant but damaging re-regulation for regulation’s sake’.[39]

The Business Council of Australia considers that the repeal of the ORA Act will remove a source of unnecessary delays and other regulatory costs on offshore resource projects that rely on a skilled and globally mobile workforce:

Retaining the 2013 Act will continue to reduce our international competitiveness in this sector and reduce future Australian jobs.

No specific problem has been identified to justify a dedicated work visa for the offshore resources industry as required under the 2013 Act. As the Regulatory Impact Statement for the Repeal Bill 2014 notes, non-citizens working on offshore resource installations already require valid visas when they transit through Australia.[40]

The MUA opposes the Bill, arguing that the ORA Act is a necessary to protect Australian jobs from exploitation from offshore resources companies and to ensure overseas workers receive Australian wages and employment conditions.[41]

The AIMPE strongly opposes the Bill on the basis that all Australian jobs should be regulated by Australian law, including the Migration Act where appropriate.[42]

The Australian Maritime Officers Union (AMOU) opposes the Bill. Referring to its submission on the 2013 Bill, AMOU notes that it had stated that the Allseas decision had undermined the employment opportunities for Australian seafarers and deprived the Australian Taxation Office of at least $187,500 for each week the vessel was engaged in Australian waters in income taxation receipts alone.[43]

Financial implications

The Explanatory Memorandum states the financial impact of these amendments will be low and that implementation costs can be met from existing Departmental existing funding.[44]

Key issues and provisions

There is only one amendment, item 1 of Schedule 1 of the Bill. Item 1 repeals the whole of the ORA Act.

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[1].              Migration Amendment (Offshore Resources Activity) Act 2013, accessed 9 May 2014.

[2].              Allseas Construction S.A. v Minister for Immigration and Citizenship [2012] FCA 529 (Allseas), accessed 9 July 2013.

[3].              Migration Act 1958 (Cth), accessed 9 May 2014.

[4].              M Biddington and I McCluskey, Migration Amendment (Offshore Resources Activity) Bill 2013, Bills digest, 10, 2013–14, Parliamentary Library, Canberra, 2013, accessed 30 April 2014. The links to the Bill, Explanatory Memorandum and second reading speeches can be found on the Bill’s home page, accessed 9 May 2014.

[5].              McKerracher J made his orders in this matter on 18 May 2012, that is, his reasons where handed down four days later.

[6].              Allseas, op. cit., at [62].

[7].              Ibid., at [63].

[8].              Ibid., at [65]. See section 5 of the Migration Act 1958, accessed 9 May 2014.

[9].              Ibid., at [66].

[10].              Ibid., at [81].

[11].              Ibid.

[12].              Senate Legal and Constitutional Affairs Legislation Committee, Migration Amendment (Offshore Resources Activity) Bill 2013 [Provisions], The Senate, Canberra, 26 June 2013, p. 1, accessed 12 May 2014.

[13].              Ibid.

[14].              For details of the inquiry, see: Senate Legal and Constitutional Affairs Legislation Committee, Migration Amendment (Offshore Resources Activity) Bill 2013, The Senate, Canberra, accessed 12 May 2014.

[15].              Ibid., pp. vii and 10.

[16].              Ibid., p. 20.

[17].              Ibid., p. 12.

[18].              Ibid.

[19].              Ibid.

[20].              Ibid., pp. 15–17.

[21].              Senate Legal and Constitutional Affairs Legislation Committee report, op. cit., pp. 6–7.

[22].              Ibid., p. 7.

[23].              Ibid., p. 16.

[24].              New subsection 41(2B) of the Migration Act, inserted by the ORA Act (item 8) provides that a visa-holder’s permission to work is not to extend to offshore resources activities in relation to an area unless the visa is a permanent visa or the visa is of a type prescribed in the regulations for this purpose.

[25].              The term is defined in section 7 of the OPGGSA as follows:

‘regulated operation means:

(a)              an activity to which Chapter 2 applies; or

(b)              an activity to which Chapter 3 applies.

For the purposes of paragraph (b), assume that each reference in subsection 356(1) to a substance were a reference to a greenhouse gas substance.’ Chapter 2 of the OPGGSA concerns activities relating to petroleum, and Chapter 3 applies to the injection and storage of greenhouse gas substances.

[26].              Licence is defined in section 4 of the OMA as follows:

licence means:

(a)              an exploration licence; or

(b)              a retention licence; or

(c)              a mining licence; or

(d)               a works licence.

A special purpose consent is defined in section 4 to be a consent granted under Part 2.6 of the OMA. In this Part (sections 315–327 of the OMA), special purpose consents are defined in sections 315 and 316 to be, in essence, exploration permits. There seems to be some potential for overlap between special purpose consents and exploration licences.

[27].              Subsections 41(1) and 41(3) of the Act.

[28].              Paragraph 41(2)(a).

[29].              Paragraph 41(2)(b).

[30].              Subsections 41(2A).

[31].              Explanatory Memorandum, Migration Amendment (Offshore Resources Activity) Repeal Bill 2014, Attachment A, Regulation Impact Statement, p. 3, accessed 12 May 2014.

[32].              Explanatory Memorandum, p. 4.

[33].              Ibid., Attachment A, Regulation Impact Statement, p. 3.

[34].              Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Offshore Resources Activity) Repeal Bill 2014 [Provisions], The Senate, Canberra, March 2014, accessed 21 May 2014.

[35].              Parliamentary Joint Committee on Human Rights, Sixth report of 2014, The Senate, Canberra, May 2014, pp. 24–25, accessed 21 May 2014.

[36].              Ibid., paragraphs 1.110–1.112, pp. 24–25.

[37].              The Statement of Compatibility with Human Rights can be found at Attachment B of the Explanatory Memorandum to the Bill.

[38].              A Bandt, ‘Second reading speech: Migration Amendment (Offshore Resources Activity) Bill 2013', House of Representatives, Debates, 17 June 2013, p. 5843, accessed 1 August 2013.

[39].              Australian Mines and Metals Association, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Offshore Resources Activity) Repeal Bill 2014, 28 April 2014, p. 4, accessed 10 May 2014.

[40].              Business Council of Australia, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Offshore Resources Activity) Repeal Bill 2014, April 2014, accessed 10 May 2014.

[41].              Maritime Union of Australia, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Offshore Resources Activity) Repeal Bill 2014, 28 April 2014, accessed 10 May 2014.

[42].              Australian Institute of Marine and Power Engineers, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Offshore Resources Activity) Repeal Bill 2014, 28 April 2014, accessed 10 May 2014.

[43].              Australian Maritime Officers Union, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Offshore Resources Activity) Repeal Bill 2014, 28 April 2014, p. 1, accessed 22 May 2014.

[44].              Explanatory Memorandum, p. 2.