As a result of a High Court of Australia decision on 31 August 2016, employers working in the migration zone must urgently ensure that all employees hold an Australian visa before allowing them to continue to lawfully work in Australia.

The Maritime Union of Australia has been very active in this space and will no doubt pursue enforcement of the existing visa regime and seek sanctions where employers are no longer compliant.

Background

In 2013, the Migration Act 1958 (Cth) was amended so that from 29 June 2014, non-citizens participating in or supporting an activity or operation within the definition of "offshore resources activity" are deemed to be within the migration zone and therefore subject to specified visa requirements.

In addition, the amendments gave the Minister for Immigration and Border Protection the power to make a determination excepting an operation or activity from the definition of "offshore resources activity".

In 2015, the Minister did just that. A determination was made excepting all operations and activities to the extent that they use any vessels (such as supply and accommodation vessels, tugs, construction vessels and certain pipe laying vessels) or structures that are not an Australian resources installation. This meant that the specified visa requirements would no longer apply in relation to non-citizens.

Following an appeal by the MUA, the High Court has now decided that the 2015 determination exceeded the limits of the power of the Minister and is therefore invalid.

Why Did the High Court Make this Decision?

Proposed laws (including amendments) must be passed by both the Senate and the House of Representatives and be assented to by the Governor-General before they can become Acts of Parliament.

In 2013 the Government introduced a Repeal Bill to repeal the amendments to the Migration Act. However, this lapsed in the Senate and the Minister subsequently made a determination that had the same result.

The concern of the High Court was that the effect of the Minister's 2015 determination was to repeal the operation of the visa regime for non-citizens supporting an offshore resources activity in such a way as to thwart the legislative purpose.

What is the Next Move?

As it currently stands, there are limited options available to the Minister. The Minister may:

  • make another determination which does not exceed the limits of the power as articulated by the High Court – although it is questionable how effective this would be and it is likely to be appealed again
  • introduce an amendment bill to Parliament to change the law to reflect the purpose of the 2015 determination – although this was attempted in 2013 and while it passed in the House of Representatives, it lapsed in the Senate, and history has a way of repeating itself
  • introduce an amendment bill to Parliament which creates a specialised visa subclass for non-citizens participating in or supporting an offshore resources activity or operation.

The third option above carries a greater prospect of success. A specialised visa could incorporate appropriate work conditions to enable particular activities to be included or excluded from the application of the migration zone as it applies to the offshore resource sector. In fact, this is not dissimilar to a Department Taskforce recommendation in 2013.

Input will be required from both the Department and industry participants to ensure that a specialised visa would be easily accessible, not administratively burdensome and an economically viable option. The industry is currently facing widespread external pressures and the last thing it needs are further costs and uncertainty.

What Does This Mean for Employers who Undertake Offshore Resources Activities?

All employers with employees who now, or may in the future, work in the migration zone must seek advice as soon as possible to ensure that non-citizens can continue to lawfully work in Australia.