On 27 March 2015, the Assistant Minister for Immigration and Border Protection issued a determination (Determination) in response to the decision of the Full Court of the Federal Court of Australia in Australian Maritime Officers’ Union v Assistant Minister for Immigration and Border Protection [2015] FCAFC 45 (AMOU v Assistant Minister for Immigration) (see previous Corrs in Brief).

The Determination purports to revoke an earlier declaration that was declared invalid in AMOU v Assistant Minister for Immigration, and replace it with a new determination in narrower terms. 

On 30 March 2015, the Assistant Minister also issued a declaration further in response to the decision (Declaration). The Declaration purported to grant special purpose visas under s33(2)(b)(ii) of theImmigration Act to non-citizens on vessels currently participating in or supporting offshore resources activities.

IMPLICATIONS FOR EMPLOYERS

The Determination and Declaration alter the migration arrangements for certain types of workers in the offshore oil and gas industry.   

In summary, there are three groups of workers affected by these developments:

  1. Those performing “offshore resources activities” involving a resources installation that is fixed to the Australian seabed (such as an oil rig). These workers previously required an appropriate visa, such as a 457 visa. The position in relation to these workers has effectively returned to the status quo that prevailed prior to AMOU v Minister for Immigration.
  2. Those on vessels that are participating in or supporting an offshore resources activity (eg those working on a pipe-laying vessel). Prior to the decision in AMOU v Assistant Minister for Immigration these workers did not require a visa. These workers will now automatically receive a Special Purpose Visa provided that their vessel has been reported to the Department of Immigration and Border Protection.
  3. Those performing any other type of “offshore resources activity” that, broadly speaking, involves offshore petroleum operations or activities. These workers must now be Australian citizens or permanent visa holders.

While the instruments issued by the Assistant Minister may provide some immediate clarification of the status of non-citizens engaging in offshore resources activities, employers should be aware that a further Court challenge seems likely. This may place the status of these instruments in doubt again.

We will continue to monitor this area and provide updates on any further developments.

If you are unsure of your current legal obligations regarding non-citizens working on offshore resources operations or activities and their visa requirements, legal advice should be sought.