KEY PROVISIONS OF THE BILL AND ISSUES RAISED
The Bill contains one schedule comprised of two Parts. Part 1 of
Schedule 1 sets out the operative provisions, and Part 2 deals with the
application of the amendments.
Key provisions of the Bill
Proposed new section 9A (item 6 of Schedule 1) will create a new
framework to provide that persons in an area who participate in, or support, an
'offshore resources activity' are taken to be in the migration zone. Proposed
new subsections 9A(1) and 9A(3) operate as the deeming provisions and proposed
new subsection 9A(5) further defines what is an 'offshore resources activity'.
Proposed new subsection 9A(6) will enable the Minister to make a determination,
by legislative instrument, that further defines what is an 'offshore resources
activity' for the purposes of proposed new subsection 9A(5).
The intended effect of proposed new section 9A is to bring persons
participating in, or supporting, an 'offshore resources activity' within the
ambit of the Migration Act, thereby requiring these persons to hold visas.
Proposed new subsections 41(2B) and 41(2C) (item 8 of Schedule 1) will then
operate to ensure that all non-citizens engaged in an 'offshore resources
activity' hold a specific visa or a permanent visa to participate in, or
support, the relevant activity.
The Explanatory Memorandum (EM) explains that the policy intent of
proposed new subsections 41(2B) and 41(2C) is to enable the Department of
Immigration and Citizenship (DIAC) to identify the number of non‑citizens
working in the offshore resources sector and obtain information about the work
they are doing. The EM advises that 'without a specific visa for this work,
this will not be possible'.
Issues raised during the inquiry
The committee received evidence in respect of proposed new section 9A
(item 6 of Schedule 1). Issues raised by stakeholders related to the proposed
new definition of 'an area' (proposed new subsections 9A(1) and 9A(5)) and the
proposed power to enable the Minister to make determinations with respect to
the definition of 'offshore resources activity' (proposed new subsection 9A(5)).
Concern about the definition of 'an
Proposed new section 9A (item 6 of Schedule 1) will have the effect of
bringing persons participating in, or supporting, an 'offshore resources
activity' within the operation of the Migration Act by ensuring that persons
participating in, or supporting, an 'offshore resources activity' in a relevant
area are required to hold a visa to work.
The meaning of 'an area' is not defined in proposed new subsection 9A(1).
The EM states that the term has been left 'deliberately broad' and proposed new
subsection 9A(1) relies on the definition set out in proposed new subsection
9A(5) to determine whether an 'offshore resources activity' is in 'an area':
New paragraphs 9A(5)(a) and 9A(5)(b) do not attempt to
exhaustively define the areas in which Australia has the jurisdiction to govern
offshore resources activity. Instead new paragraphs 9A(5)(a) and 9A(5)(b) rely
on the existing processes applied in the Offshore Petroleum Act and the
Offshore Minerals Act, which authorise activities to be carried out in
Australia's offshore maritime zones, to suppose that these activities are
carried out within Australia's jurisdiction. In other words, the limits of the ―area
are intended to be determined with reference to a regulated operation or
activity performed under a licence or a special purpose consent issued under
these two Acts. These areas would include areas within Australia's [Exclusive
Economic Zone (EEZ)] (beyond the limits of the territorial sea) and above
Australia's extended continental shelf.
While supportive of the Bill, the Australian Institute of Marine and
Power Engineers (AIMPE), criticised the lack of a definition of 'an area' in
proposed new subsection 9A(1) and suggested that rather than the words 'an
area', the proposed section refer to the EEZ:
[The Bill]...should be improved to ensure that Australia's
migration laws are effective in their application to persons working on
offshore resources vessels throughout Australia's EEZ.
The Maritime Union of Australia (MUA) disagreed with this suggestion
however, stating that in its view the Bill '[d]oes not seek to over-reach
Commonwealth regulation in relation to vessels navigating through the
Australian EEZ to get to the area in which those vessels need to operate'.
The MUA informed the committee that the Bill would provide certainty and
should be passed 'immediately without amendment':
It provides the certainty that the workforce, resource
owners, operators and contractors have been seeking for a long time, and will
ensure that tendering for offshore construction work will be undertaken on the
basis of certainty as to what Australian labour relations arrangements apply,
thus creating a basis for tenderers to have a known labour cost structure which
cannot be undercut by competitors.
Not all submitters however were supportive of the Bill. Shipping
Australia Limited (SAL) informed the committee that in its opinion the
amendments 'set out in the Bill are unnecessary as the current Act is
consistent with international standards of practice in the offshore resource
SAL called on the committee to retain the status quo, stating that, in its
opinion, the Migration Act 'sufficiently [covers] visa requirements for special
skilled workers when operating within Australia's territorial seas and on
Similarly, the Australian Mines and Metals Association (AMMA) contended
that the Migration Act does not require amendment in respect of offshore
resource workers as the relevant provisions:
...already clearly require a non-Australian person working on a
vessel to hold a visa if the vessel enters Australia's territorial sea or the
non-citizen transits through Australia in order to join or depart the vessel.
Mr David Wilden, Acting First Assistant Secretary, Migration and Visa
Policy Division, from the Department of Immigration and Citizenship (DIAC),
advised the committee that if a person enters the migration zone they require a
The reason for this bill is that there was a presumption, I
guess because it had never been tested, that international crew on these
certain vessels were already holding visas...and the anomaly was when it became
apparent that they were not. ...The purpose of this [Bill] is purely and simply
to regulate those people who, by the Allseas decision, are deemed not to be in
the migration zone; to amend the migration zone, which has not been an
irregular occurrence over the years, to include them.
DIAC further explained that the changes proposed by the Bill 'clarify
the situation around foreign workers in Australia's offshore maritime zones'.
Submitters also commented on proposed new subsection 9A(6), which
provides the Minister with the authority to make a determination with respect
to the definition of 'offshore resources activity'.
The EM states that the inclusion of proposed new subsection 9A(6):
Provide[s] the Minister with the flexibility and ability to
exempt certain activities administered by the Offshore Petroleum Act and the
Offshore Minerals Act from the definition of offshore resources activity...[and
provides] the Minister with the ability to capture certain other activities not
administered by these two Acts but administered by a law of the Commonwealth, a
State or a Territory...[and]...will also provide the Minister with an additional
tool to ensure that any future emergency can be effectively dealt with and to
exclude any unintended consequences which may breach Australia's international
The AMMA considered proposed new subsection 9A(6) to be an inappropriate
delegation of legislative power. The AMMA were of the view that as the
determination made by the Minister (pursuant to proposed new subsection 9A(6))
will be a legislative instrument exempt from disallowance,
it does not provide sufficient parliamentary scrutiny of the legislative power delegated
to the Minister.
Representatives from DIAC explained that proposed subsection 9A(6)
provides for the Minister to respond to the unknown and to do so promptly:
[A] power for the Minister to make a determination in writing
for the purposes of defining offshore resources activity...will provide the
Minister with flexibility to declare certain activities administered by other
regulatory schemes as offshore resource activities for the purposes of the new
deemed migration zone.
The committee notes the value of the liquefied natural gas (LNG)
industry to Australia.
As the growth of the offshore petroleum industry is accompanied by a skills
the committee takes the view that Australia's migration and visa regime must
facilitate the flexibility required to attract the appropriate skills to the
sector and provide certainty and clarity for the industry. The committee
considers that the Bill will provide the necessary certainty and flexibility.
The committee considers that the Bill will also ensure that the
employment conditions of foreign workers undertaking activities involved in the
exploration and exploitation of Australia's natural resources are being
The committee notes the concerns raised by stakeholders in relation to
the government's consultation process however is satisfied that the Taskforce
did consult with a wide range of stakeholders including:
...the Australian Maritime Officers Union, the Maritime Union
of Australia, the AMWU...the AIMPE, the AWU, the Australian Petroleum Production
and Exploration Association, Allseas, McDermott, Saipem, Woodside, Chevron, the
Chamber of Commerce and Industry of Western Australia, and a long list of
departments as well, at both state and Commonwealth level.
The committee further notes that DIAC confirmed that a future
consultation process will occur on the 'mechanics' of the visa:
...the next consultation period [will go] to the mechanics...the
way [the visa] would probably work...that goes to the specific issues of
e-lodgement, a suitable visa charge and...the mechanism[s] behind it.
The committee takes the view that the concerns of stakeholders in
relation to uncertainty will be addressed through this next round of
consultation. Further, the committee is satisfied that the introduction of the
new specified visa (the details of which will be set out in Regulations after
industry consultation) will not result in a significant burden for the offshore
resources industry nor will it affect investment.
The committee notes that the commencement provisions set out in the Bill
allow adequate time for DIAC to consult with key stakeholders and States and
Territories for the purposes of developing the special visa, defining 'offshore
resources activity' and exempting certain activities. The committee takes the
view that this should enable the concerns raised by stakeholders to be resolved
prior to the commencement of the provisions.
The committee also notes Australia's sovereign rights under the United
Nations Convention on the Law of the Sea Australia (UNCLOS) to apply its
immigration laws to foreign nationals on foreign-flagged and Australian-flagged
vessels which are engaged in the exploration and exploitation of natural
resources and which are located in Australia’s territorial sea, contiguous
zone, EEZ or in the waters above its extended continental shelf.
The committee recommends that the Bill be passed.
Senator Trish Crossin
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