19 September 2016
What you need to know
- The High Court has found that a Ministerial Determination that effectively dis-applied the visa regime under the Migration Act 1958 to certain non-citizen workers within the offshore resources industry is invalid.
- As a result of the case, offshore workers are now required to hold a visa if they are participating in or supporting an offshore resources activity or operation.
What you need to do
- Employers should continue to watch out for any legislative responses by the Government to remove or restrict the requirement for non-citizen workers within the offshore resources sector to obtain a visa.
In Maritime Union of Australia & Anor v Minister For Immigration and Border Protection & Anor [2016] HCA 34 the High Court found that a Determination made by the Commonwealth Minister for Immigration and Border on 2 December 2015 (2015 Ministerial Determination) in relation to the granting of exceptions to the application of the visa regime under the Migration Act 1958 was invalid.
The High Court determined that the purported effect of the 2015 Ministerial Determination was entirely to negate the operation of the relevant provisions of the Migration Act and so confound the purpose of extending the visa regime to non- citizens on vessels or unmoored structures who are in an area to participate in or support an offshore resources activity. The Court held that the 2015 Ministerial Determination exceeded the terms of the power conferred on the Minister by s 9A(6) of the Migration Act.
Background
The High Court's decision is the latest development in Australia's regulation of non-citizen employees within the offshore resources industry. This is an area that has constantly been changing over the last few years, following the Full Court of the Federal Court of Australia's decision in Allseas Construction SA v Minister for Immigration and Citizenship [2012] FCAFC 45. In Allseas the Court held that two pipe-laying vessels were not within the migration zone for the purposes of the Migration Act 1958, and so non-citizens employed on the vessels did not require Australian visas.
In response to the Allseas decision the Department of Immigration developed a taskforce to review the Act's application to employees in offshore maritime zones. The then Labor Government in 2013 enacted legislation amending the Migration Act by inserting a number of sections, including s 9A(1), which extended the migration zone to apply to people who participate in, or support, offshore resources activities. The effect of this provision required non- citizens working on offshore resources activities to obtain a visa which, if not held, may lead to their detention and removal and the master, owner, agent, charterer and operator of the concerned vessel committing an offence. The legislation also provided the Minister for Immigration with the power to exempt activities or operations from the
definition of an offshore resources activity in accordance with s 9A(6), and so excepting these activities from the visa regime. For further information on the Migration Amendment Act 2014.
The Liberal National Party Government attempted unsuccessfully to repeal Labor's amendments to the Act.
Subsequently, a Ministerial Determination was made that in effect removed non-citizens working in the offshore resources sector from the coverage of the visa regime. The validity of this Ministerial Determination was challenged in Australian Maritime Officers' Union v Assistant Minister for Immigration and Border Protection [2015] FCAFC 45.
The Full Court of the Federal Court held that the Determination was invalid. See here for our previous Alert on that case.
After the Full Court's decision the Minister for Immigration issued a Declaration and Determination that purported to restrict the coverage of non-citizens working in the offshore resources sector by the visa regime. However, these were later withdrawn by the Minister.
In December 2015 the 2015 Ministerial Determination was made. This excepted all operations or activities that use a vessel or structure which is not an Australian resources installation from the definition of offshore resources activity for the purposes of the Migration Act. The intended effect of the 2015 Ministerial Determination was to exclude from the operation of the visa regime non-citizen employees who participated in activities that used a non-Australian resources installation, thereby allowing non-citizens to work on these types of vessels without a visa. The Maritime Union of Australia and the Australian Maritime Officers Union brought a challenge to the validity of the 2015 Ministerial Determination.
High Court decision
The High Court unanimously declared that the 2015 Ministerial Determination was invalid because the exception exceeded the terms of the power conferred on the Minister by s 9A(6) of the Migration Act.
The High Court's reasoning was similar to that of the Full Court of the Federal Court in Australian Maritime Officers' Union v Assistant Minister for Immigration and Border Protection. It held that s 9A(1) of the Migration Act was enacted for the purpose of extending the operation of the visa regime to non-citizens who were employed on vessels to participate in or support an offshore resources activity. Therefore, it would not be the legislative intention that the Minister's power of exception would enable the entire negation of the section. Instead, the High Court found that the purpose of the power was to enable occasional exceptions from the visa regime for particular activities or operations.
Implications and lessons for employers
Non-citizen employees who work on vessels or unmoored structures who are in an area to participate in or support an offshore resources activity are required to hold a visa, including workers on non-Australian vessels or structures.
The availability of, and conditions applicable to, specific visas are a function of the circumstances of the work being done by the non-citizen employees and the relevant non-Australian vessels or structures involved. By way of example, the following visas are likely to be most pertinent:
a maritime crew visa (subclass 988), which permits the holder to work in Australia to meet the normal operational requirements of a ship (but which will usually expire five days after a ship is "imported" into Australia) temporary work (skilled) visa (subclass 457), a precondition to the grant of which is that the employer cannot find an Australian citizen or permanent resident to perform the work, and permits the holder to work in Australia for up to four years; and temporary work (short stay activity) visa (subclass 400), which permits the holder to undertake highly specialised, non-ongoing work for up to three months.
Although the requirement to get a visa to do the work does not of itself mean that the Fair Work Act 2009 will apply, the most commonly used visas will typically require the employer to establish that the work cannot be done by
Australian employees (for example, a temporary work (skilled) visa (subclass 457)).
The Fair Work Act and Australian terms and conditions of employment apply to employees working in the exclusive economic zone and above the continental shelf on:
- Australian ships
- fixed platforms
- any ship servicing or operating in connection with a fixed platform and operating from Australia; and
- any ship chartered by an Australian employer and using Australia as a base.
Employers should monitor the Government's response to the High Court decision as it is likely that it may renew its attempt to pass legislative amendments to remove, limit, or modify the application of the visa regime to offshore resources activities.
For further information, please contact:
Richard Bunting, Partner, Ashurst
richard.bunting@ashurst.com
