DISSENTING REPORT BY
COALITION SENATORS
The Migration Amendment
(Offshore Resources Activity) Bill
Introduction
1.1
The Migration Amendment (Offshore Resources Activity) Bill 2013 (the
Bill) amends the Migration Act 1958 (the Act) to provide that persons who
participate in, or support, an offshore resources activity are taken to be in
the migration zone as defined by section 5 of the Act.
1.2
The Bill also proposes to insert a new section 9A of the Act which
creates a new framework that provides that persons in an area participating in,
or supporting, an offshore resources activity are taken to be in the migration
zone (the deeming provision).
1.3
New section 9A further clarifies how this new framework operates by
deeming when persons are taken to be in Australia, taken to travel to
Australia, taken to enter Australia and or taken to leave Australia.
1.4
The Bill was introduced by the Government to override the decision of
the Federal Court in Allseas Construction S.A. v Minister for Immigration
and Citizenship [2012] FCA 529 in which McKerracher J inter alia
held that section 5(13)(b) of the Act excludes vessels that are wholly or principally
engaged in operations relating to the installation of offshore pipelines.
1.5
Paragraph 5(13)(b) of the Act excludes a vessel that is used or is to be
used wholly or principally in operations or activities associated with, or
incidental to, activities of manoeuvring a resources installation, or in
operations relating to the attachment of a resources installation to the
Australian seabed.
1.6
The Federal Court decision has the effect of excluding foreign workers
aboard exempted vessels from the visa requirements applicable to vessels
entering the "migration zone" as defined in the Act.
The purpose of the Bill
1.7 The purpose of the Bill is to regulate foreign
workers participating in offshore resources activities by bringing those
persons into the migration zone and thereby requiring them to hold a visa under
the Act.[1]
1.8 In the Second Reading Speech the Minister claims
the Bill will overcome a "loophole" identified in the Allseas
case which needed to be closed.
1.9 Coalition Senators consider that an objective
reading of the Allseas case indicates that no loophole was opened by Allseas,
and that the decision of the Federal Court provided clarity and allowed the
industry to proceed consistent with previous Australian and international
practice.
1.10 The Allseas litigation was initiated to
confirm a standing interpretation of Australian law, which was consistent with
international law.
1.11 Contrary to the claims of the Minister there was no
loophole that needed to be closed.
1.12 Coalition Senators are concerned that the Bill is
not being introduced as a measure of considered public policy, but rather it is
being introduced for ideological purposes, at the urging of the Maritime
Workers Union (MWU) who have been significant donors to the Labor Party over
many years, to override the decision of the Federal Court in Allseas
Construction S.A. v Minister for Immigration and Citizenship [2012] FCA 529.
The value of the offshore oil and gas industry
1.13 Coalition Senators acknowledge the value of the
offshore oil and gas industry to the national economy and are concerned that
the additional regulatory burden and associated costs the Bill introduces may
discourage further investment in this productive sector.
1.14 The Minister in the Explanatory Memorandum (EM)
tabled with the Bill acknowledges the economic value of exploration and
exploitation of the natural resources in the offshore maritime zones:
The exploration and exploitation of the natural resources in
Australia's offshore maritime zones contributes significantly to the Australian
economy and employs thousands of Australian workers.[2]
1.15 The Australian Mines and Metals Association (AMMA)
in their oral evidence to the inquiry stated:
Annually, Australia's oil and gas industry contributes 2½ per
cent of our GDP, generates $28 billion in revenue and yields almost $9 billion
in direct tax payments. Offshore oil and gas meets 58 per cent of Australia's
primary energy needs and is critical to our current and future energy security.
Australian jobs and our overall economic success relies on a
confident, growing offshore oil and gas industry able to do business consistent
with international laws and practices on, for example, specialist access to
infrastructure and services. With this much at stake, it is vital that
sectional interests do not come before the national interest and that
parliament delivers sustainable, proportionate and balanced regulation
affecting offshore operations.[3]
Uncertainty of the actual offshore area subject to the Bill
1.16 Coalition Senators are concerned that the specific
offshore area subject to the Bill is not defined.
1.17 Coalition Senators do not consider the Senate should
agree to legislation which is to apply to an "unknown or uncertain"
offshore area.
1.18 Coalition Senators note that the uncertainty of the
area, the subject of the Bill, was raised in the written submission of the
Australian Institute of Marine and Power Engineers (AIMPE).
1.19 The AIMPE expressed its concern in the following terms:
It is submitted that the way to avoid the enforcement
nightmare and ensure comprehensive application of Australia’s migration laws to
personnel on vessels engaged in offshore resources activity is the delete the
references to "in an area" and replace them with the concept of the
Exclusive Economic Zone.[4]
1.20 Mr Scott Barklamb, Executive Director, AMMA, in his
oral evidence to the inquiry also expressed his concern at the uncertainty of
the extent of the area to be subject to the provisions of the Bill in the
following terms:
We say that it is also important to understand the
significance of what is being proposed. The exclusive economic zone is larger
than our entire landmass. This Bill would expand Australia's legal territory
for the purposes of migration by 10 million square kilometres.
The proposal to extend our federal laws, including the Fair
Work Act, to this vast area does not amount to a mere tweaking or closing a
loophole. It is a radical change that would more than double the reach of our
Australian laws, and would do so in a manner unknown and inconsistent with our
international legal obligations. Whether this is reach or overreach is a live
point, and it is considerably enlivened, we say, by both the legal and
regulatory concerns we raised.[5]
Uncertainty of the number of foreign workers in the offshore maritime zone
1.21 Coalition Senators are concerned that the Government
is unable to quantify the number of foreign workers in the offshore maritime
zone which appears to be related to the inadequate consultative process with
industry and other parties.
1.22 The inability of the Government or the Minister to
quantify, or even estimate, the potential number of foreign workers in the
offshore maritime zone casts doubt on the veracity of other statements
contained in the Second Reading Speech and associated documents tabled in the
Senate:
Under the current legislative framework, the Government has
an incomplete picture of the number of foreign workers in the offshore maritime
zone.[6]
Uncertainty of the cost to industry
1.23 Should the Bill be passed by the Parliament in its
current form it will give greater control of employment of foreign workers on
vessels within the migration zone to the MWU.
1.24 Coalition Senators are concerned that the MWU will
seek to use the additional power this Bill will bestow on the union to impose
outrageous wage demands on employers who are required to rely on union labour.
1.25 The recent demands of the MWU in seeking to have
cooks on offshore
north-west gas projects paid $230,000.00 annually is evidence of the tactics
employed by the MWU.[7]
1.26 Coalition Senators are concerned that the Regulation
Impact Statement (RIS), tabled by the Minister with the Bill, is unable to
quantify the potential cost impact on employers and the number of people who
are likely to be affected by the provisions of the Bill.
1.27 This uncertainty is reflected in the RIS which
indicates that:
...according to Western Australian Government figures,
somewhere between 6000 and 8000 workers are currently employed in the offshore
resources sector, but it is unclear how many of these workers are non-citizens.[8]
1.28 Whist the Government is unable to quantify the
number of foreign workers caught by the provisions of the Bill, the RIS makes
it clear that additional fees will be payable by operators for visas required
by the foreign workers.
1.29 Whilst the quantum of the relevant fees is not yet
settled, Coalition Senators note that 457 visas will increase from $455.00 to $900.00
on July 1st 2013.
1.30 At the committee's public hearing on 21 June 2013,
Senator Cash sought further comment from the AMMA on the statement, in their
written submission to the inquiry, relating to cost pressures on the resource
industry in which they stated:
Enactment of the Bill would place untenable cost pressures on
the resource industry. The cost pressures would be both direct and indirect, in
terms of compliance and administration costs.[9]
1.31 Mr Scott Barklamb, AMMA, stated:
The particular piece of infrastructure work at hand is highly
specialised international vessels that sail global waters and assist with the
laying of pipes, the moving of infrastructure and the assembly of
infrastructure in international waters. If we either delay or complicate or
render more costly those inputs to our built offshore infrastructure we
complicate, delay and add costs to either the repair and maintenance or the
bringing on line of new offshore resource projects. What does that do? That
makes them slower to come on line and create jobs in this country and it makes them
more costly, and those costs are weighed by international investors.
Australia is not the only place in the world with offshore
oil and gas resources. International investors are all too aware of and are in
the business of evaluating competing resource destinations.[10]
Constitutional uncertainty of the proposed amendments
1.32 Coalition Senators believe that the scope of the
Bill is extremely wide and may breach Australia’s obligations in respect to the
United Nations Convention on the Law of the Sea 1982 (UNCLOS), which Australia
ratified in 1992.
1.33 Coalition Senators acknowledge that Australia has,
at international law, a sovereign right to explore and exploit the natural
resources occurring in the exclusive economic zone (EEZ) and the extended continental
shelf (ECS).
1.34 Australia is limited by the provisions of the UNCLOS
convention which does not empower Australia to dictate the employment
conditions of maritime personnel in the EEZ or the ECS, as these
responsibilities are matters for the flag State of the vessel.
1.35 As a signatory to UNCLOS, Australia agreed to be
bound by the provisions of the convention agreement and is required to act
within the terms of the agreement.
1.36 Coalition Senators are concerned at the inconsistent
advice given to the inquiry by the Department of Immigration and Citizenship (DIAC)
and various submitters on the constitutional validity of the proposed
amendments.
1.37 Coalition Senators are concerned that the Minister
has not provided the Senate with compelling evidence that the scope of the Bill
and its specific provisions do not breach Australia’s international
obligations.
1.38 The failure of the Minister to adequately
demonstrate that the Government has adequately considered the totality of the
complex issues relating to the law of the sea and Australia’s international
obligations may render the provisions of the Bill invalid.
1.39 Coalition Senators are concerned by the failure of
the Minister to distinguish a range of activities that occur as a consequence of
vessels at sea. These include where a vessel is transiting through the
migration zone, entering an Australian port, or is doing specific work in
international waters and not entering the Australian regulatory sphere for
employment and migration law.
1.40 Many of the preceding concerns were raised by the AMMA
in both their written submission and oral evidence to the inquiry.
1.41 At paragraphs 53-57 of their written submission,
AMMA expressed their concerns in the following terms:
Proposed section 9A would deem an offshore resource worker to
be within the migration zone, and within Australia, even if he or she were a
non-citizen on a foreign-flagged vessel transiting through the EEZ or the
waters above the ECS.
Proposed section 9A(6) would allow the Minister to declare an
activity in or out of Australia.
The proposed extension of the application of the Migration
Act in this way would be:
a. An inappropriate delegation of legislative power.
b. Incompatible with human rights principles.
c. Inconsistent with Australia’s international obligations.
d. Inconsistent with Australia’s constitutional arrangements.
e. Inconsistent with the Offshore Constitutional Settlement
1973
f. Inconsistent with industry practices and impractical
g. Damaging to the Australian economy and Australian jobs
Information about these matters has not been provided to the
Parliament by the Minister. Unless the Parliament is able to give due
consideration to these matters, the legislation should not be passed.[11]
Submission to the inquiry by the Maritime Union of Australia (MUA)
1.42 Coalition Senators note that the MUA has made
representations to the Government for the Act to be amended following the
decision of the Federal Court in Allseas Construction S.A. v Minister for
Immigration and Citizenship [2012] FCA 529.
1.43 The MWU in its submission to the inquiry indicated
its support for the Bill and made a number of points in favour of its carriage.
The MWU stated that the Bill:
- Closes an unintended gap in the Migration Act 1958.
- Provides certainty for the workforce, resource owners,
operators, and contractors.
- Creates a level playing field so that all workers
irrespective of origin can have their migration status and employment standards
regulated.
- Ends exploitation of temporary guest workers in the
offshore oil and gas industry and will ensure that employment, safety and
training and occupational licensing requirements can be bought up to Australian
legal and industrial standards.
- Will provide the Government with the capacity to monitor
non-nationals working on critical resource projects.[12]
1.44 In response to the specific issues raised by the
MWU, Coalition Senators note that:
(a) A close reading of the parliamentary debates
relating to the Migration Act 1958 and subsequent amendments, indicate
that there is no unintended gap and that the Parliament intended that certain
foreign workers would be excluded in the visa requirements related to the
migration zone whilst they were manning a vessel that is used or is to be used
wholly or principally in operations or activities associated with, or
incidental to, activities of manoeuvring a resources installation, or in
operations relating to the attachment of a resources installation to the
Australian seabed.
(b) Far from providing certainty for the workforce,
resource owners, operators, and contractors, the Bill raises constitutional
issues and is likely to be in breach of Australia’s international obligations.
(c) Imposing Australian regulations on the employment
conditions of foreign workers on vessels excluded by paragraph 5(13)(b) of the
Act would be void.
(d) The submission of the MWU provides no evidence of
exploitation of temporary guest workers in the offshore oil and gas industry.
(e) Project costs would increase substantially if
foreign workers employed on vessels excluded by paragraph 5(13)(b) of the Act,
particularly on short term contracts, are subject to Australian employment,
safety and training and occupational licensing requirements.
(f) Foreign workers employed on vessels excluded by paragraph
5(13)(b) of the Act are already subject to severe restrictions whilst working
offshore in the migration zone and are not entitled to be onshore without an
appropriate visa.
Lack of consultation
1.45 The provisions of the original Migration Act 1958
and subsequent amendments have, in the past, been the subject of lengthy and
detailed consultation with interested parties given its international
application and its impact on international and domestic obligations.
1.46 Coalition Senators are concerned that the passage of
the Bill is being progressed by the Government with indecent haste and without
appropriate consultation with affected parties.
1.47 Given the scope of the proposed amendments and the
impact of the Bill on Australia’s international and domestic obligations,
Coalition Senators consider the manner in which the Government is attempting to
progress and its inability to clarify with certainty the impact of the Bill on
affected parties is both cavalier and arrogant.
1.48 Coalition Senators note that in his Second Reading
Speech on the Bill, the Minister for Immigration and Citizenship claimed there
had been extensive stakeholder consultation on the Bill with the offshore
resources industry, unions and other Commonwealth agencies.
1.49 The Minister’s statement on consultation is
inconsistent with evidence given to the inquiry by various submitters:
The more our industry knows about this bill and how the
minister intends to proceed, the less certain it becomes. We have absolutely no
certainty. We do not believe that we will gain any certainty from the passage
of this bill. It will open up myriad areas of uncertainty, as our submission
makes clear. Through the committee, we can communicate back to the minister
that we believe that the rush and the fundamentally wrong-directed thinking
behind this bill will cause some difficulties.
I might also add that, on the consultation arrangements we
were talking about earlier—and I am indebted to my colleagues for raising it
with me—a DIAC task force exercise was undertaken. We have not seen the task
force report from DIAC.[13]
1.50 Coalition Senators believe that consultation
referred to by the Minister was not on the legislation that is before the
Senate, but relates to more amorphous concepts and principles that preceded the
drafting of the Bill.
1.51 In his claims about consultation the Minister fails
to identify any organisation that was invited to comment on the Bill as
drafted.
Conclusion
1.52 Coalition Senators do not support the Bill in its
current form for the following reasons:
(a) The Minister has failed to provide documentation
to show that the Bill meets Australia’s international obligations as they apply
to the laws of the sea.
(b) On the evidence available to Coalition Senators,
the Bill is not being introduced as a measure of considered public policy, but
rather it is being introduced for ideological purposes, at the urging of the
MWU who have been significant donors to the Labor Party over many years, to override
the decision of the Federal Court in Allseas Construction S.A. v Minister
for Immigration and Citizenship [2012] FCA 529.
(c) The Minister fails to recognise the value of the
offshore oil and gas industry to the national economy and the extent of the
negative impact the Bill will have on affected parties.
(d) The Minister fails to understand the impact of the
additional regulatory burden and associated costs the Bill will create.
(e) The Minister fails to understand that additional
burdensome regulation may discourage further investment in this productive
sector.
(f) The Minister has failed to adequately define the
extent of the area to be subject to the Bill and seeks to avoid identifying the
specific area by indicating that this detail will be fleshed out at a later
date.
(g) If the Minister cannot define the extent of the
area to be subject to the Bill how can he provide certainty that Australia is
not in violation of its international obligations.
(h) The Minister has failed to quantify the potential
cost impact on employers and number of people who are likely to be affected by
the provisions of the Bill.
(i) The Minister has failed to provide certainty that
the MWU will not seek to use the additional power this Bill will bestow on the
union to impose outrageous wage demands on employers who are required to rely
on union labour.
(j) The scope of the Bill is extremely wide. Given
the lack of certainty in the advice provided by the Minister, the Bill may
breach Australia’s obligations in respect to the United Nations Convention on
the Law of the Sea, 1982 (UNCLOS) which Australia ratified in 1992.
(k) The failure of the Minister to adequately
demonstrate that the Government has adequately considered the totality of the
complex issues relating to the law of the sea and Australia’s international
obligations may render the provisions of the Bill invalid.
(l) It is clear from the evidence of a number of
affected parties that the Minister has failed to adequately consult with
industry and that the limited consultation that the Minister claims occurred
was limited to amorphous concepts and principles that preceded the drafting of
the Bill.
Recommendation 1
1.7
Coalition Senators recommend that the Bill not be passed.
Senator Gary
Humphries
Deputy Chair |
Senator Sue Boyce |
| |
|
| Senator Michaelia Cash |
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