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Migration Amendment (Offshore Resources
Activity) Repeal Bill 2014
Portfolio: Immigration and Border Protection
Introduced: House of Representatives, 27 March 2014
Purpose
1.102 The Migration Amendment (Offshore Resources Activity) Repeal Bill 2014
(the bill) seeks to repeal the Migration Amendment (Offshore Resources
Activity) Act 2013 (ORA Act).
1.103 The purpose of the ORA Act, which would take effect from 30 June 2014,[1] is to
provide that foreign workers must hold a relevant visa when they participate
in, or support, offshore resource activities taken to be in the migration zone.
1.104 The proposed repeal of the ORA Act will therefore have the effect of
maintaining existing arrangements in relation to visa requirements for offshore
resource activities.[2]
Committee view on compatibility
Right to work and rights at work
1.105 The right to work and rights at work is contained in articles 6(1), 7
and 8(1)(a) of the International Covenant on Economic, Social and Cultural
Rights (ICESCR).
1.106 The UN Committee on Economic Social and Cultural Rights has stated that
the right to work affirms the obligation of States parties to the covenant to
assure individuals their right to freely chosen or accepted work, including the
right not to be deprived of work unfairly. Under article 2(1) of ICESCR, State
parties are obliged to take steps, to the maximum of available resources, to
progressively achieve the full realisation of this right.
1.107 This right may be subject only to such limitations as are determined by
law and compatible with the nature of the right, and solely for the purpose of
promoting the general welfare in a democratic society. Such limitations must be
proportional, and must be the least restrictive alternative where several types
of limitations are available.
Effect of repealing measures
1.108 The statement of compatibility for the bill states that it is compatible
with human rights as it seeks to continue existing arrangements and, as such,
does not raise any human rights implications'.[3]
1.109 However, 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. This view would appear to be supported by the stated intention of the
bill, which is to '[remove] unnecessary and disproportionate regulation
impacting on industry’.[4]
1.110 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.[5]
1.111 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.[6] 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.’[7]
1.112 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.
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