The Introduction Of The Migration Amendment Act

The Migration Amendment Act was introduced in 2013 in response to the Federal Court of Australia’s decision in Allseas Construction SA v Minister for Immigration and Citizenship [2012] FCA 529 (the Allseas Decision).

The Allseas Decision considered the scope of section 5(13) of the Migration Act 1958 (Cth) (Migration Act). Section 5(13) exempts vessels that are used in connection with offshore resources activities from being considered a “resources industry mobile unit”. Due to this exemption, such vessels cannot be considered to be “Australian resources installations” under the Migration Act. This is important because “Australian resources installations” comprise the migration zone, which means that the workers on board such resources installations require visas.

The Federal Court held in the Allseas Decision that pipelay vessels contracted to install subsea pipelines were manoeuvring a resources installation (ie the pipeline) and therefore came within the scope of the section 5(13) exception. This meant that the workers on board these vessels did not require visas.

In response to the Allseas Decision, the previous Labour Federal Government introduced the Migration Amendment Act to close “gaps in the Migration Act, exposed by the Allseas case”. 

Scope Of The Migration Amendment Act

Central to the operation of the Migration Amendment Act is the term “offshore resources activity”. The definition proposed in the Migration Amendment Act includes three categories of activities. These activities include the following being carried out, or being proposed to be carried in relation to an area:

(a) a regulated operation (within the meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth));

(b) an activity performed under a licence or special purpose consent (both within the meaning of the Offshore Minerals Act 1994 (Cth)); or

(c) an activity carried out under a law as determined by the Minister (though as yet, no such Ministerial determinations have been made).

Should the operative provisions of the Migration Amendment Act come into force, persons participating in, or supporting, such offshore resources activities will require visas which, if not held, may lead to their detention and removal and the master, owner, agent, charter and operator of the vessel committing an offence.

The Repeal Bill

The Repeal Bill operates to repeal the whole of the Migration Amendment Act.

Justification For The Repeal Bill

The introduction of the Repeal Bill is justified on the basis that the Migration Amendment Act increases the regulatory burden on the resources industry and will significantly impact business and investors. In the second reading speech for the Repeal Bill, the Minister for Immigration and Border Protection, the Honourable Scott Morrison MP, explained that Australia’s continued receipt of the substantial economic benefits from the offshore resources industry is dependent on the industry remaining internationally competitive and operating in line with international best practice. The Minister for Immigration and Border Protection also remarked that Australia’s migration arrangements need to remain flexible and not create undue burden on industry or impose unnecessary barriers on genuinely required overseas workers with skills not available in Australia.

Current Status Of The Repeal Bill

The Repeal Bill was passed by the House of Representatives on 26 May 2014 by a majority of 77 to 55. The Repeal Bill has since been referred to the Senate Legal and Constitutional Affairs Committee (Committee). The Committee is due to provide its report on the Repeal Bill to the Senate on 6 June 2014. The first Senate sitting date following the Committee’s release of the report on the Repeal Bill will be Monday 16 June 2014, following which there are 8 sitting days before the new senators take their seats on 1 July 2014.

The strong opposition to the Repeal Bill in the House of Representatives suggests that the Senate may not pass the Repeal Bill.

The Migration Amendment Regulations

In a move that is perhaps indicative of the Federal Government’s expectations about whether the Senate will pass the Repeal Bill, the Migration Amendment Regulations were enacted on 29 May 2014.

The Migration Amendment Regulations generally operate to amend the Migration Regulations 1994 (Cth) (Migration Regulations) in support of the commencement of the Migration Amendment Act. It is unsurprising however that the commencement of the Migration Amendment Regulations are triggered by the operative provisions of the Migration Amendment Act coming into effect.

Prescribed Visas

Of central importance is that the Migration Amendment Regulations prescribe the following types of visas as allowing the holder to participate in, or support, an offshore resources activity:

• a Subclass 988 (Maritime Crew) visa;
• a Subclass 400 (Temporary Work (Short StayActivity)) visa; or
• a Subclass 457 (Temporary Work (Skilled)) visa,

(together the Approved Visas).

As a result, non-citizens who hold either a Maritime Crew, Temporary Work (Short Stay Activity) or Temporary Work (Skilled) visa may participate in, or support, an offshore resources activity.

This is in addition to a permanent visa that also allows the holder to participate in, or support, an offshore resources activity (see section 41(2B)(a) of the Migration Act as inserted by the Migration Amendment Act).

Authorised Methods Of Entering Australia

The Migration Amendment Regulations also provide that the Approved Visas authorise the holder to enter Australia through a method other than at a port or on a pre-cleared flight.

This is important as it circumvents potential difficulties caused by section 9A(3) of the Migration Act (as inserted by the Migration Amendment Act). The potential for difficulties arise because of the interaction between section 9A(3) (which deems people to be in Australia whilst in the migration zone) and section 43(1) (which provides that a visa permits the holder to only enter Australia at either a port or on a pre-cleared flight).

In practice, people working in an area in which an offshore resources activity is being carried out often travel directly to this area from outside Australia (ie without entering an Australian port or on a pre-cleared flight). As section 9A(3) has the effect of deeming people in such an area to be within the migration zone and therefore, Australia, visa holders who travel directly to these areas would be taken to have entered Australia but would not have entered at either a port or on a pre-cleared flight.

The Migration Amendment Regulations reconcile this by authorising Approved Visa holders to enter Australia through methods other than at a port or on a pre-cleared flight.

Amendments To Maritime Crew Visas

In addition to the above, the Maritime Amendment Regulations also amend the operation of Maritime Crew Visas. So long as the Maritime Crew Visa holder is participating in, or supporting, an offshore resources activity, his or her Maritime Crew Visas will no longer cease where the vessel that the Maritime Crew Visa holder is on has been imported under the Customs Act 1901 (Cth) (Customs Act) but not entered on the Australian International Shipping Register (AISR). Such an amendment facilities a Maritime Crew Visa holder’s continued involvement in offshore resources activities despite the vessel being considered to have been imported under the Customs Act.

The position set out in the Migration Amendment Regulations represents a shift from the current position set out in the Migration Regulations. Currently, a Maritime Crew Visa ceases 5 days after a vessel is imported under the Customs Act but not entered on the AISR. Should this amendment come into force, it will go some way to overcoming the previously limited appeal of using maritime crew visas in offshore resources operations.

Conclusion

This is very much a developing area and the next 3 weeks will significantly impact the area’s future regulation. As such, industry stakeholders should closely monitor the Repeal Bill’s progress in the Senate and, if relevant, the impact of the Migration Amendment Regulations upon persons participating in, or supporting, offshore resources activities.

For further information, please contact:

Ian Humphreys, Partner, Ashurst
[email protected]

Adrian Morris, Partner, Ashurst
[email protected]

David Parker, Partner, Ashurst
[email protected]

Richard Bunting, Partner, Ashurst
[email protected]

Shane Bosma, Ashurst
[email protected]

David Morgans, Ashurst
[email protected]

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