News
21.07.16

Maritime Unions Challenge Minister in High Court over Foreign Workers Visa Requirements

The Australian Maritime Officers Union and the Maritime Union of Australia were before the High Court of Australia in Canberra on Tuesday, 19 July 2016.  The proceedings were in relation to the validity of the Ministerial Determination ('IMMI 15/140') made by the Minister for Immigration and Boarder Protection on 2 December 2015.  This instrument operates so that a non-citizen who is on a vessel or structure that is used for operations or activities but that is not an Australian resources installation, is not taken to be in the migration zone.  Therefore, they are exempted from the visa requirements under the Migration Act 1958 (Cth).

These proceedings were the final leg of a long running legal argument that the AMOU and MUA have been jointly fighting since 2014.

Mr. Neil Williams, Senior Council, presented a strong case on behalf of the Maritime Unions, arguing the Ministerial Legislative Instrument used for exempting foreigners working in the Offshore sector was invalid on several fronts, both legally and at a practical level.

Council for the Minister for Immigration contended that the intent of the Labor Government amendments to the legislation post the Allseas decision was to confer this discretionary power to the Minister as they saw fit with no limitation on the extent to which the exemptions could apply.

The High Court has reserved their decision and the matter was adjourned.  The AMOU expects to receive the High Court's decision in the near future.  

Background

In May 2012, the Federal Court of Australia handed down its decision in Allseas Construction SA v Minister for Immigration and Citizenship [2012] FCA 529 that identified an issue with the application of the Migration Act to the offshore resources activity sector.  The Federal Court determined that non-citizens working on particular Australian Offshore vessels fell outside the operation of the Migration Act, and as a result did not require a valid visa. 

The former Labor Government amended the Migration Act in response to the Allseas Case by introducing a Bill for the Migration Amendment (Offshore Resources Activity) Act 2013 (Cth) (Amendment Act).  The Amendment Act extended the migration zone to include the concept of "offshore resource activity" and required non-citizens involved in such activity to have a valid visa. 

See Related Article: /news/migration-amendment-(offshore-resources-activity)-bill-2013.aspx

Upon being elected to office in September 2013, the Coalition Government then sought to repeal the Amendment Act.  However, it was defeated by the Senate.

On 29 May 2014, the Governor General made the  Migration Amendment (Offshore Resources Activity) Regulation (Cth) (Regulation) to overcome the Amending Act and avoid non-citizens involved in the offshore resources activities from being required to have a permanent visa.  However, the Regulation was disallowed by the Senate on 16 July 2016.

See Related Articles: /news/marine-crew-visa.aspx

/news/abbott%E2%80%99s-amendment-to-marine-crew-visa--988-a-bigger-threat-to-australians-employment-than-457-visa%E2%80%99s-.aspx

On 17 July 2014 Senator Michaela Cash, the Assistant Minister for Immigration and Border Protection at the time, promptly responded to reverse the disallowance by making a Ministerial Determination ('IMMI 14/077).  The effect of the Determination was to 'except' the whole of the defined content of 'offshore resource activity' in section 9A(5)(a) and (b) of the Migration Act.

The AMOU and MUA challenged the Determination ('IMMI 14/077') in the Federal Court of Australia, seeking to reinstitute visa requirements upon overseas workers.  On 15 September 2014, Justice Buchannan determined that the Ministerial Determination was valid and work visa requirements did not apply to non-citizen workers involved in such offshore resources activities.

The Maritime Unions appealed the Federal Court's decision.  On 26 March 2015, the Full Court of the Federal Court unanimously upheld the AMOU and MUA appeal and determined that the Ministerial Determination ('IMMI 14/077') was not authorised and was invalid. 

See Related Article: /news/amou-successful-in-bid-to-overturn-minister-of-immigration%E2%80%99s-determination-in-federal-court-appeal.aspx

On 27 March 2015, following the Full Court's decision, the Minister for Immigration and Border Protection made another Ministerial Determination ('IMMI 15/073') and subsequently Determination 'IMMI 15/140' on 2 December 2015, which essentially shield offshore industry employers and foreign workers from immigration requirements.

The AMOU will endeavour to keep members updated at the matter progresses.

In Unity,

 

Tim Higgs

President

AUSTRALIAN MARITIME OFFICERS UNION