Australian Immigration Daily News

When the High Court hands down an interpretation of the Migration Act, it is important that we all pay attention.  

So it is important that we be aware of a decision that was delivered by the High Court yesterday, 31 August: Maritime Union of Australia v Minister for Immigration and Border Protection (2016) HCA 34. 

And that is true even if the case - like this one – doesn’t appear to impact on the day-to-day activities of most Registered Migration Agents and migration lawyers. 

Because there are often lessons that can be drawn from a decision that go beyond the particular details of a case. 

So what was this case all about? 

It was another chapter in an ongoing “tug of war” about whether non-citizens who are working on ships that are involved in supporting offshore oil and gas drilling platforms in the waters surrounding Australia should be required to have Australian visas.  

The starting point is that the definition of the “migration zone”  is defined under section 5(1) of the Act to include “resource installations”.  A “resources installation” is in turn defined under the Act  to include either a structure or vessel that is attached to the Australian seabed and that is a fixed structure (unable to be moved) that is used off-shore in exploring for or exploiting natural resources; or if it is a floating and moveable structure or vessel that it used in drilling activities.  

In a word, offshore oil and gas platforms that are used in drilling activities in Australian waters are defined to be within the migration zone, and so people working on these platforms are  required to have visas. 

What about people working on ships that are used to transport people or goods to or from offshore oil and gas platforms, or on ships that are involved in maneuvering these platforms into position, or in activities relating to anchoring the platforms onto the sea floor? 

These have been excluded from the migration zone under what is known as the “section 5(13) exception” to the Act. 

What about people working on other kinds of “free-floating vessels”? 

Well, that issue was addressed by a decision of the Federal Court in the case of Allseas Construction SA v Minister for Immigration and Citizenship. In that case, it was held that certain pipe-laying vessels were within the 5(13) exception. 

As part of the back-and-forth that forms the background to the High Court case, the Migration Act was amended in response to the Allseas decision to broaden and enlarge visa requirements so that they essentially cover everyone who is involved in offshore oil and gas exploration and drilling activitiy.  What the amendments the Migration Amendment (Offshore Resoruces Activity) Act 2013 did, was to extend the migration zone so that it now encompasses not only specific geographic locations – like oil and gas platforms – but also includes activities that involve participation or support in activities that are licensed or regulated under the Offshore Petroleum and Greenhouse Gas Storage Act and the Offshore Minerals Act. 

So the practical effect of the amendment was to require that everyone working on any type of vessel associated with offshore resource development – oil platforms and support ships carrying people and supplies to the vessels, pipe-laying vessels – etc – was considered to be within the migration zone and was required to have an Australian visa. 

Consequentially, and what triggered the litigation leading to yesterday’s High Court decision,  was that the 2013 amendment included provisions (section 9A(6) giving the Minister powers to adopt a legislative instrument to exempt certain forms of activity relating to offshore development from the visa requirement. 

By way of brief further background: After the election in 2013 that led to the election of the Abbott Government, a bill was passed in the House of Representatives with the intention of repealing the 2013 amendments (and thus eliminating the visa requirement extending to people working on ships involved in supporting offshore oil and gas platforms).  However, this bill did not get through the Senate. 

Then, in July 2014, the Assistant Minister made a determination which purported to exempt people working on support vessels from the visa requirement.  

However, in March 2015, the Full Court held that this determination by the Assistant Minister was an invalid exercise of power.  

Them, following the Full Court’s decision, two more ministerial determinations that attempted to create broad exceptions to the visa requirement were made, but then each of these determinations was challenged in court, and each was withdrawn before a final hearing. 

Apparently not inclined to give up on this easily (!!!), yet a third determination was made by the Minister under section 9A(6) was made. Again, this determination essentially sought to eliminate the visa requirement that had been introduced under the 2013 amendments.  

This determination was the subject of the High Court’s decision.  

And just as the Full Court had done in 2015, the High Court yet again held that the Minister’s attempt to

eliminate the visa requirement  was invalid.  

In essence, what the High Court said was that the Minister’s determination was so broad and extensive, that it created an exception to the visa requirement that essentially eliminated or eviscerated the underlying requirement in the legislation itself that people working on vessels in activities in support of oil and gas platforms must have visas.  

The wider lesson to be drawn is that where the Migration Act imposes a substantive requirement that certain persons are to be considered to be in the migration zone and are thus required to have Australian visas, the Minister cannot use a legislative power to grant exceptions to the visa requirement in such a broad and all-encompassing way that it does away with the visa requirement altogether. 

There surely seem to be two underlying cross-currents in this long-running legal saga: the Liberal Government apparently absolutely hates the 2013 amendments that established the visa requirements, and has been trying (and trying) to get rid of them, and the Maritime Union evidently sees the legislation and the visa requirement as a way to limit the number of foreign workers involved in the industry and to protect the jobs  for Australian citizens and current permanent residents. 

Will there be more chapters to this story? Time will tell but it sure seems like it!

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