AMOU Successful in Bid to Overturn Minister of Immigration’s Determination in Federal Court Appeal

By Tim Higgs

Yesterday the Full Court of the Federal Court determined that the Ministerial Determination 'IMMI 14/077', issued by the Assistant Minister of Immigration and Border Protection on 17 July 2014 "is not authorised... and is invalid".  Thereby, quashing the Coalition Government's attempt to exclude foreign workers from holding an Australian visa whilst working on certain vessels in the offshore resources sector.

The AMOU and MUA appealed the decision of Justice Buchannan, of the Federal Court, on 15 September 2014, who determined that the Ministerial Determination was valid.

The AMOU and MUA successfully argued that the power exercised by the Assistant Minister to "except" something from a category in the Migration Act does not generally authorise her to completely extinguish the category in its entirety.  The Full Court determined that "it was not intended that the Minister could use that power to restore the position which existed when Allseas was decided.": see Reasons for Judgment at [67].

The Full Court also said "[t]he Parliament's intention was to confer upon the Minister a power to except or exempt particular activities or operations carried out under the Offshore Petroleum Act or Offshore Minerals Act, not to reverse the Parliament's desire and intention to bring within the [Migration]  Act  non-citizens who are engaged in operations and activities under the Offshore Petroleum Act or the Offshore Minerals Act." : see Reasons for Judgment at [73].

This is an exceptional outcome for the AMOU and the Australian Maritime Industry.  The Federal Government attempted to circumvent  a decision of the Senate to reject  the Migration Amendment (Offshore Resources Activity) Repeal Bill 2014 that proposed to repeal the amendments to the legislation, and closed the gap regarding visas on offshore resources projects.

If the AMOU had not challenged the Government's Determination, the effect would  have left Australian offshore resources to being exploited as foreign workers, on particular vessels, were not required to hold a valid Australian visa.  This would not have provided Australian workers with a fair opportunity to obtain gainful employment in the maritime industry.

The provisions of the Migration Act ensure that Companies can tender for work on a level playing field without risk of being undercut by foreign operators who are not obliged to pay wages that are compatible with Australian standards.

Whilst we have been vindicated in our belief by the Court, we call upon the Government to engage with the stakeholders of the industry to resolve the shortcomings that exist by introducing a valid visa that pertains to the offshore resource sector.

Australian Maritime Officers Union v Assistant Minister for Immigration and Border Protection [2015] FCAFC 45 (26 March 2015)