Migration Amendment (Offshore Resources Activity) Bill 2013

Mr BRENDAN O'CONNOR, Minister for Immigration and Citizenship in moving the second reading of Migration Amendment (Offshore Resources Activity) Bill 2013 on the 30 May 2013 said "the purpose of this bill is to implement the government's commitment to ensure that all Australian jobs are regulated under Australian migration laws. This is with a view to ensuring that the definition of the migration zone in the Migration Act 1958 (the Migration Act) captures foreign workers working in Australia's offshore resources industry.

In May 2012, the Federal Court of Australia handed down its decision in the case of Allseas Construction SA v Minister for Immigration and Citizenship [2012] FCA 529 (Allseas). The court found that Allseas' pipe-laying vessels and the non-citizens working on these vessels were not within or working within the migration zone as defined under the Migration Act. This means that the workers on board those vessels did not require a visa.

The offshore resources industry is a significant and growing contributor to Australia's economy, with billions of dollars of value added to the economy and thousands of Australian workers employed.

The government recognises that in cases of skills shortages, industry needs to bring in foreign labour, but these are Australian resources and Australian jobs. The Australian community expects all Australian jobs to be regulated by Australian laws.

The gaps in the Migration Act, exposed by the Allseas case, undermines the integrity of Australia's migration program and the visa regime regulating work entitlements.

Without regulation there is a risk that foreign workers involved in the exploration and exploitation of Australia's natural resources and who therefore form part of the Australian employment sector are working under conditions and receiving wages that are below Australian standards. This reduces work opportunities for Australian citizens and permanent residents, as well as non-citizens who hold relevant visas permitting work.

It also puts businesses that only engage workers who hold valid visas to work at a competitive disadvantage, leading to perverse incentives to stage as much development offshore as possible to avoid the requirements of the visa system.

On 15 October 2012, the former Minister for Immigration and Citizenship announced that the government would legislate to amend the Migration Act and clarify the situation regarding workers in Australia's offshore maritime zones to address the decision of Allseas. Following this announcement, the Department of Immigration and Citizenship commenced a review on how best to do so. The Migration Maritime Taskforce (the task force) was developed to conduct this review and explore options to determine the most appropriate way to ensure foreign workers in Australia's offshore maritime zones come within the ambit of the Migration Act. The Allseas decision reduced the number of workers in the offshore resources industry captured by the Migration Act. This, combined with other limitations in the Migration Act's operation offshore, has left a significant gap in Australia's ability to regulate the conditions in its offshore resources industry and to regulate which foreign workers are employed on these valuable national assets.

The government is committed to maintaining the security of Australia's borders. Under the current legislative framework, the government has an incomplete picture of the number and identity of foreign workers in Australia's offshore maritime zones. This is in part due to the absence of a regulated visa scheme to capture those engaged in Australia's offshore maritime zones and the corresponding migration information. This incomplete information has security ramifications. The June 2012 report of the Offshore Oil and Gas Resources Sector Security Inquiry recognised that visa security checks are one of the only ways Australia is able to examine non-citizen workers in this security-sensitive industry. While it recognised that visa character checks have their limits, in their absence, the government has no information at all about some of these workers. During the development of its recommendations, the task force sought extensive advice to ensure that the bill would adhere to relevant international conventions relating to the Law of the Sea. In the context of international law, it has been confirmed that Australia has jurisdiction under the United Nations Convention on the Law of the Sea to apply its immigration laws to foreign nationals in the Australia's offshore resource industry.

There has also been extensive stakeholder consultation on this problem, with the offshore resources industry, unions and other Commonwealth agencies. More recently, the government has consulted on the findings of the task force and the issue which informed our decision to implement the recommendations of the task force. More consultation will follow as we engage with stakeholders to develop supporting regulations for this change. There has been a lot of discussion on the best way to effectively address the problem of unregulated work in Australia's offshore resources sector. This bill deals with the practical actions that are necessary to create real, effective tools to deal with this problem.

This bill implements the key recommendations of the task force. The task force found that any question as to whether a person was in the migration zone or not should not be solely dependent on where that person was physically located but also dependent on the sorts of activities that person was conducting. The amendments in this bill will regulate foreign workers participating in offshore resources activities by deeming them to be in the migration zone, which enlivens the requirement for them to hold a visa under the Migration Act.

In terms of selecting offshore resources activities, the taskforce recommended the development of a legislative solution that would comprehensively administer the activities of the offshore resources industry comprising the Offshore Petroleum and Greenhouse Gas Storage Act 2006 and the Offshore Minerals Act 1994. In addition to these two acts, the bill will create a power for the minister to make a determination in writing for the purposes of defining offshore resources activity. This will provide the Minister for Immigration and Citizenship with the flexibility to declare certain activities administered by other regulatory schemes as offshore resource activities for the purposes of the new deemed migration zone. This would include projects that take place in areas that are within the coastal waters of the states and the Northern Territory and not regulated at the Commonwealth level. The legislative measures will supplement the current framework under the Migration Act which already includes Australian resources installations and Australian sea installations as part of the migration zone. Together, this new comprehensive framework will ensure that workers in Australia's offshore resources industry are regulated under the Migration Act and required to hold specific visas. Individuals who engage in offshore resources activities in Australia's offshore maritime zones will be subject to existing compliance measures in the Migration Act that address breaches of work and visa conditions. A specifically tailored visa pathway for offshore resource workers will be developed in conjunction with stakeholders to meet the needs of industry groups. It is proposed to prescribe this visa in the Migration Regulations 1994.

More consultation will take place as this visa is developed to ensure that industry gets the flexibility it needs while ensuring that Australian conditions are protected.

A series of sensible arrangements will be put into place, to ensure that the transition to the new framework is as smooth as possible. These include:

• a delayed commencement of these amendments until early 2014 to educate and consult industry and to provide industry with ample time to organise appropriate visas;

• granting special purpose visas to offshore resource workers in offshore maritime zones upon commencement for a limited time to regulate their migration status.

It is important to implement these changes as soon as possible to give certainty to the offshore resources industry and workers. The government understands that industry needs certainty as they develop commercial contracts and run their businesses.

Where there are skills shortages and the Australian workforce cannot provide the required labour in Australia's offshore resource activities, there will always be a need for foreign workers. However, this need should not be allowed to undermine Australian working conditions and should not happen without the oversight of Australian law as is currently the case. These are Australian resources and Australian jobs. The resources are governed by Australian laws, the jobs should be too. I commend the bill to the House".

A copy of the Act and the explanation and Second Reading Speech  are attached.