Australia: High Court invalidates federal law exempting offshore resource activities from visa requirements

The long-running saga over whether visa requirements apply to workers engaged on offshore resource projects has finally ended, following the High Court's recent decision in Maritime Union of Australia v Minister for Immigration and Border Protection [2016] HCA 34 (MUA v Minister for Immigration).

This decision has significant implications for employers in the offshore oil and gas industry, the main one being that foreign workers engaged on vessels and facilities will now be required to obtain visas in order to work on these facilities.

The application of visa rules also means that the high cost and often restrictive framework of minimum wages and employment conditions under the Fair Work Act 2009 (Cth) and other applicable industrial instruments will now apply to the relevant workers.

Unless the Commonwealth Government is able to achieve a legislative fix, this will inevitably affect the competitiveness of the offshore oil and gas sector in Australia.

MUA V MINISTER FOR IMMIGRATION: THE BACKGROUND OF THE CASE

On 31 August 2016, in MUA v Minister for Immigration, the High Court of Australia struck down a Determination made by the Assistant Minister for Immigration in March 2015, which had negated certain visa requirements applicable to non-citizens engaged on offshore resource projects.

The lengthy history of this matter is covered in several previous Corrs In Briefs1, but in summary:

  • In Allseas Construction SA v Minister for Immigration and Citizenship [2012] FCA 529, the Federal Court found that certain offshore pipe-laying vessels fell within an exclusion under the Migration Act 1958 (Cth) (Migration Act). Therefore, non-citizens engaged on those vessels were not within the migration zone and did not need Australian work visas.
  • Following this, the then Labor Government passed the Migration Amendment (Offshore Resources Activity) Act 2013 (Cth) to override the Allseas decision and to require all non-citizen offshore works to hold Australian work visas.
  • Next, the new Coalition Government sought to overcome the effect of Labor's legislation through the Migration Amendment (Offshore Resources Activity) Regulation 2014 (Cth). When this regulation was disallowed in the Senate, the Assistant Minister made a Determination under s 9A(6) of the Migration Act having essentially the same effect as the regulation. However, that Determination was successfully challenged by maritime unions in AMOU v Assistant Minister for Immigration and Border Protection [2015] FCAFC 45.
  • The Assistant Minister immediately responded by making a further Determination (2015 Determination), which was the subject of the High Court challenge. The 2015 Determination had the effect of excepting from the definition of 'offshore resources activity' in s 9A(5) all operations and activities to the extent that they use any vessel or structure that is not an Australian resources installation.

MUA V MINISTER FOR IMMIGRATION: THE HIGH COURT'S DECISION

The High Court found that the 2015 Determination exceeded the limited terms of the power conferred on the Minister by s 9A(6) of the Migration Act. The more significant reasons for the Court's decision were as follows:

  • The Court considered that the power of exception vested in the Minister in s 9A(6) is to except an operation or activity from the operation of s 9A, but 'is ill adapted to the exception of an operation or activity to some or other specified extent, still less to the exception of all operations or activities to that specified extent'.2
  • Further, in the Court's view, 'the 2015 Determination is opposed to the apparent statutory purpose of s 9A(6)'.3 Given that s 9A(1) had been enacted to extend the operation of the visa regime, it should not 'be supposed that s 9A(6) was enacted with the object of enabling the entire negation of that extension'.4 Rather, its purpose was only to provide for limited exceptions of certain activities/operations from the visa regime from time to time:
  • By entirely negating the extension of 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 2015 Determination purports in effect to repeal the operation of s 9A(1) and thereby to thwart the legislative purpose.5

WHAT DOES THIS MEAN FOR OFFSHORE RESOURCE SECTOR EMPLOYERS?

The practical effect of this ruling is that foreign workers engaged on vessels and facilities in the offshore oil and gas sector in Australia will be required to obtain visas in order to work on such facilities.

This will restrict the ability of the industry to utilise its international workforce and its international contractors often because of the need for specialist skills, not easily sourced within Australia.

Further, when the employers do obtain the relevant class of visa to enable engagement or deployment of such workers, the high cost and restrictive Australian employment regulation through the Fair Work Act and other applicable industrial instruments will apply to these workers and have to be complied with.

This will inevitably affect the competitiveness of the offshore oil and gas sector in Australia unless the Australian Government is able to achieve a legislative fix.

In these challenging political times, the Government may shy away from tabling new legislation and use its statutory power to exempt certain activities from the visa requirements in a more targeted way. One approach could be to exempt specific aspects of the offshore resources industry, particularly those for which there is little Australian content.

Offshore drilling, pipeline laying and sub-surface works may be worthy of consideration.

Footnotes

1 See our articles:

2 [2016] HCA 34 at [21].

3 [2016] HCA 34 at [24].

4 [2016] HCA 34 at [25].

5 [2016] HCA 34 at [25].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions