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2010 - 2011 - 2012 - 2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (OFFSHORE RESOURCES ACTIVITY) BILL 2013
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration and Citizenship,
the Hon. Brendan O'Connor MP)
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Migration Amendment (Offshore Resources Activity) Bill 2013
OUTLINE
The Migration Amendment (Offshore Resources Activity) Bill 2013 (the Bill) amends the
Migration Act 1958 (the Act) to provide that persons who participate in, or support, an
offshore resources activity are taken to be in the migration zone based on the
recommendations of the Migration Maritime Taskforce (the Taskforce).
In May 2012, the Federal Court of Australia handed down its decision of Allseas
Construction SA v Minister for Immigration and Citizenship [2012] FCA 529 (Allseas).
The Court found that by operation of subsection 5(13) of the Act, two pipe-laying vessels, the
Lorelay and Solitaire were not Australian resources installations within the meaning of the
Act while they were wholly or principally engaged in operations relating to the installation of
offshore pipelines. As such, the Court found that the Lorelay and Solitaire and the
non-citizens working on these vessels were not within or working within the migration zone
as defined by subsection 5(1) of the Act. This means that the workers on board those vessels
did not require a visa.
On 15 October 2012, the former Minister for Immigration and Citizenship, the Hon Chris
Bowen MP, announced that the government would legislate to amend the Act and clarify the
situation around foreign workers in Australia's offshore maritime zones to address the
decision of Allseas. Following this announcement, the Department of Immigration and
Citizenship (the Department) commenced a review on how best to apply the Act to workers
in offshore maritime zones.
The Taskforce 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 Act. The Taskforce 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 (for example, whether that person was physically on an Australian
resources installation) but also dependent on the sorts of activities that person was
conducting.
The Taskforce recommended that the existing legislative framework that essentially provides
that persons are in the migration zone based on where they are physically located be
supplemented with a new legislative concept. This new concept would provide that all
offshore resource workers, including support staff, are taken to be in the migration zone when
they are engaged to conduct or support activities regulated by Commonwealth, State and
Territory legislation relating to the exploration and exploitation of Australia's natural
resources.
In the context of international law, Australia has jurisdiction under the United Nations
Convention on the Law of the Sea (UNCLOS) to apply its immigration laws to foreign
nationals on foreign-flagged and Australian-flagged vessels which are engaged in the
exploration and exploitation of natural resources and which are located in Australia's
territorial sea, contiguous zone, exclusive economic zone (EEZ) or in the waters above its
extended continental shelf. In relation to the waters above Australia's extended continental
shelf (and beyond the limits of Australia's EEZ), Australia has jurisdiction for the purpose of
exploring and exploiting its natural resources.
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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 of foreign workers in the offshore maritime zone. This is in part due to the absence of
a regulated visa regime to capture those engaged in Australia's offshore maritime zones and
the corresponding migration information. There are security ramifications as a result of the
inability to regulate foreign workers engaged in offshore resources activities in an
immigration context. 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.
The exploration and exploitation of the natural resources in Australia's offshore maritime
zones contributes significantly to the Australian economy and employs thousands of
Australian workers. The inability for the Government to regulate foreign workers in
Australia's offshore resources industry undermines the integrity of Australia's migration
program and visa regime regulating work entitlements. As a result, there is a risk that foreign
workers undertaking activities involved in the exploration and exploitation of Australia's
natural resources and who therefore form part of the Australian employment sector may be
working under conditions and receiving wages that do not adhere to Australian standards.
This reduces work opportunities for Australian citizens and non-citizens who hold relevant
visas permitting work and also puts businesses that only engage workers who hold valid visas
to work at a competitive disadvantage.
The amendments in this Bill will regulate foreign workers participating in offshore resources
activities by bringing these persons into the migration zone and thereby requiring them to
hold a visa under the Act. In terms of selecting offshore resources activities, the Taskforce
recommended referencing a legislative solution that comprehensively administer the
activities of the offshore resources industry comprising the Offshore Petroleum and
Greenhouse Gas Storage Act 2006 (the Offshore Petroleum Act) and the Offshore Minerals
Act 1994 (the Offshore Minerals Act). 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 with 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 which are
regulated under State and Territory laws rather than their Commonwealth equivalents.
The legislative measures will supplement the current framework under the Act which defines,
as part of the migration zone, Australian resources installations and Australian sea
installations. Together with the existing provisions in the Act, this new comprehensive
framework will ensure that workers in Australia's offshore resources industry are regulated
under the 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 Act which 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 (the Regulations).
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In particular, the Bill amends the Act to:
insert a deeming provision which provides that a person is taken to be in the
migration zone while he or she is in an area to participate in, or to support, an
offshore resources activity in relation to that area;
put beyond doubt that a person may be taken to be in the migration zone because
of the new deeming provision whether or not the person's participation or
support of the offshore resources activity, or whether or not the offshore
resources activity itself, has started, is continuing or has concluded;
provide that a person may undertake an offshore resources activity whether the
person:
o is on an Australian resource installation in the area; or
o is otherwise in the area to participate in, or support the activity;
provide that a person is taken to be in Australia while he or she is taken to be in
the migration zone because of the new deeming provision;
provide that a person is taken to travel to Australia if the person travels to an
area in which the person is taken to be in the migration zone because of the new
deeming provision;
provide that a person is taken to enter Australia when the person enters an area
in which the person is taken to be in the migration zone because of the new
deeming provision;
provide that, subject to section 80 of the Act, a person is taken to leave Australia
when the person leaves an area in which the person is taken to be in the
migration zone because of the new deeming provision;
define offshore resources activity, in relation to an area, as:
o a regulated operation (within the meaning of section 7 of the Offshore
Petroleum and Greenhouse Gas Storage Act 2006) that is being carried
out, or is to be carried out, within the area, except an operation
determined by the Minister in writing;
o an activity performed under a licence or a special purpose consent (both
within the meaning of section 4 of the Offshore Minerals Act 1994), that
is being carried out, or is to be carried out, within the area, except an
activity determined by the Minister in writing;
o an activity, operation or undertaking (however described) that is being
carried out, or is to be carried out:
- under a law of the Commonwealth, a State or a Territory determined
by the Minister in writing;
- and within an area, as determined by the Minister in writing;
create a legislative instrument making power for the Minister to make a
determination with respect to the definition of an offshore resources activity;
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provide that a condition of a visa that allows the holder of the visa to work is not
taken to allow the holder to participate in, or support, an offshore resources
activity in relation to any area unless the visa is:
o a permanent visa; or
o a visa prescribed by the regulations for the purpose of allowing the
holder of that visa to participate in, or support, an offshore resources
activity.
provide that a person may undertake an offshore resources activity
(and therefore be required to hold the above visas) whether the person:
o is on an Australian resource installation in the area; or
o is otherwise in the area to participate in, or support the activity under the
new framework;
provide that unless a provision of this Act, or another Act, expressly provides
otherwise, the new deeming provisions do not have the effect of extending, for
the purposes of another Act, the circumstances in which a person:
o is in the migration zone or is taken to be in the migration zone; or
o is in Australia or is taken to be in Australia; or
o travels to Australia or is taken to travel to Australia; or
o enters Australia or is taken to enter Australia; or
o leaves Australia or is taken to leave Australia;
provide for application provisions that apply on or after the commencement of
this Schedule; and
make necessary consequential amendments.
CONSULTATION
External consultations in relation to the Bill have taken place with various Commonwealth
and State agencies. This includes the Attorney-General's Department, the Office of
International Law, the Treasury, the Department of Resources, Energy and Tourism, the
Department of Infrastructure and Transport, the Department of Finance and Deregulation, the
Office of Best Practice Regulation, the Department of Foreign Affairs and Trade, the
Department of Education, Employment and Workplace Relations, the Department of
Agriculture, Fisheries and Forestry, the Department of Customs and Border Protection, the
Department of Fair Work Ombudsman and the Department of the Prime Minister and
Cabinet. In addition, the Secretary of the Department wrote to each State and Territory
government and received responses from Western Australia, Tasmania, South Australia,
Victoria and Queensland. Members of the Taskforce met with the Western Australian
Department of State Development and the Western Australian Department of Training and
Workforce Development.
There has been extensive stakeholder consultation with unions and industry groups since
October 2012. Meetings were held with the Construction, Forestry, Mining and Energy
Union (CFMEU), Maritime Unions of Australia (MUA), the Australian Worker's Union, the
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Australian Maritime Officers' Union (AMOU), the Australian Institute of Marine and Power
Engineers and the Australian Manufacturing Workers' Union. The Taskforce further met
with representatives of industry including the Australian Mines and Minerals Association
(AMMA), the Australian Petroleum Production and Exploration Association (APPEA) and
the Western Australian Chamber of Mines and Petroleum in Perth.
FINANCIAL IMPACT STATEMENT
The financial impact of these amendments is low. The current estimated costs associated
with the implementation of the proposed amendments will be met from within the
Department's existing funding by the reprioritising of resources. There will be no systems
costs from the amendments to the Act. Systems and administrative costs will ensue from the
proposed amendments to the Regulations for the development of the new visa pathway.
REGULATION IMPACT STATEMENT
The Office of Best Practice Regulation has assessed the Regulation Impact Statement (RIS)
prepared by the Department as being adequate (No.14618). A copy of the RIS is at
Attachment A.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the
amendments in this Bill and assesses that the amendments are compatible with Australia's
human rights obligations. A copy of the Statement of Compatibility with Human Rights is at
Attachment B.
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MIGRATION AMENDMENT (OFFSHORE RESOURCES ACTIVITY) BILL 2013
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short title
1. Clause 1 provides that the short title by which this Act may be cited is the
Migration Amendment (Offshore Resources Activity) Act 2013.
Clause 2 Commencement
2. Subclause 2(1) provides that each provision of this Act specified in column 1 of the
table commences, or is taken to have commenced, in accordance with column 2 of
the table. Any other statement in column 2 has effect according to its terms.
3. Table item 1 provides that sections 1 to 3 of this Act and anything in this Act not
elsewhere covered by the table will commence on the day on which this Act
receives the Royal Assent.
4. Table item 2 provides that Schedule 1 will commence on a single day to be fixed
by Proclamation. It also provides that if any provision(s) do not commence within
the period of 12 months beginning on the day this Act receives the Royal Assent,
they commence on the day after the end of that period.
5. The note in subclause 2(1) makes it clear that the table relates only to the
provisions of this Act as originally enacted. The table will not be amended to deal
with any later amendments of this Act.
6. Subclause 2(2) provides that any information in column 3 of the table is not part of
this Act. It provides that information may be inserted in column 3, or information
in it may be edited, in any published version of this Act.
7. The commencement provisions will allow adequate time for the Department to
develop a specifically tailored visa pathway for offshore resource workers in
consultation with key stakeholders which would commence on the same day as the
operative provisions of this Bill. The provisions will also provide the Department
with ample opportunity to thoroughly consult with States and Territories in order to
draft legislative instruments for the purposes of defining offshore resources
activities and exempting certain activities.
Clause 3 Schedule(s)
8. This clause provides that each Act that is specified in a Schedule to this Act is
amended or repealed as set out in the applicable items in the Schedule concerned.
In addition, any other item in a Schedule to this Act has effect according to its
terms.
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SCHEDULE 1 - Amendments
Part 1 - Amendments
Migration Act 1958
Item 1 Subsection 5(1) (at the end of the definition of enter Australia)
9. This item adds a new note at the end of the definition of enter Australia in
subsection 5(1) of the Act.
10. The new note refers readers to section 9A of the Act, which concerns offshore
resources activities.
11. Current subsection 5(1) provides that enter Australia in relation to a person means
enter the migration zone.
12. The new note advises readers that the definition enter Australia should be read
with new section 9A with respect to when a person participating in, or supporting,
an offshore resources activity is taken to enter Australia.
13. The new note is to be read with new subsection 9A(1) and new paragraph 9A(3)(c)
which are inserted by item 6 below.
14. The purpose of this amendment is to ensure that, in the context of the offshore
resources industry, the definition of enter Australia in current subsection 5(1) is
not considered in isolation but with reference to the framework in new section 9A
- inserted by item 6 below.
Item 2 Subsection 5(1) (at the end of the definition of leave Australia)
15. This item adds a new note at the end of the definition of leave Australia in
subsection 5(1) of the Act.
16. The new note refers readers to section 9A of the Act, which concerns offshore
resources activities.
17. The new note advises readers that the definition leave Australia should be read
with section 9A with respect to when a person participating in or supporting an
offshore resources activity is taken to leave Australia.
18. Current subsection 5(1) provides that leave Australia in relation to a person
means, subject to section 80 (leaving without going to other country), leave the
migration zone.
19. Section 80 of the Act provides that a person is taken not to leave Australia if the
person goes outside the migration zone on a vessel and:
does not go (other than for transit purposes) to a foreign country; and
remains a passenger, or a member of the crew, of that vessel while
outside the migration zone; and
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is outside the migration zone for no longer than the prescribed period.
20. The period referred to in paragraph 80(c) is prescribed in regulation 3.07 of the
Regulations and is 30 days.
21. The new note is to be read with new subsection 9A(1) and new paragraph
9A(3)(d), which are inserted by item 6 below.
22. The purpose of this amendment is to ensure that, in the context of the offshore
resources industry, the definition of leave Australia in current subsection 5(1) is
not considered in isolation but with reference to the framework in new section 9A
- inserted by item 6 below.
Item 3 Subsection 5(1) (at the end of the definition of migration zone)
23. This item adds a new note after the definition of migration zone in subsection 5(1)
of the Act.
24. The new note refers readers to section 9A of the Act, which concerns offshore
resources activities.
25. Current subsection 5(1) provides that the migration zone means the area
consisting of the States, the Territories, Australian resources installations and
Australian sea installations and, to avoid doubt, includes:
land that is part of a State or a Territory at mean low water; and
sea within the limits of both a State or a Territory and a port, and
piers, or similar structures, any part of which is connected to such land
or to ground under such sea;
but does not include sea within the limits of a State or a Territory but not in a port.
26. The new note advises readers that the definition of migration zone should be read
with section 9A with respect to when a person participating in or supporting an
offshore resources activity is taken to be in the migration zone.
27. The new note is to be read with new subsections 9A(1) and 9A(3), which are
inserted by item 6 below.
28. The purpose of this amendment is to ensure that, in the context of the offshore
resources industry, without modifying the current definition of the migration zone
in subsection 5(1), this definition not be considered in isolation but alongside the
deemed extension of the migration zone under new subsection 9A(1).
Item 4 Subsection 5(1)
29. This item inserts a new defined term offshore resources activity in subsection 5(1)
of the Act.
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30. The new defined term provides that offshore resources activity in subsection 5(1)
has the meaning given by new subsection 9A(5) which is inserted by item 6
below.
31. This amendment inserts a reference to the definition of offshore resources activity
in the definitions section to ensure it is easily located in the Act. The definition is
located in new section 9A as it is central to the new framework and so that section
9A is a self-contained section.
Item 5 At the end of section 6
32. This item adds a new note after section 6 of the Act.
33. The new note refers readers to new subsection 9A(3), which deals with when a
person is taken to be in Australia, to travel to Australia, to enter Australia or to
leave Australia. It also provides that section 9A concerns offshore resources
activities.
34. The new note advises readers that section 6 should be read with the new
subsection 9A(3) which is inserted by item 6 below.
35. Current section 6 provides that to avoid doubt, although subsection 5(1) limits, for
the purposes of this Act, the meanings of enter Australia, leave Australia and
remain in Australia and also because of section 18A of the Acts Interpretation
Act 1901, the meaning of parts of speech and grammatical forms of those phrases,
this does not mean:
that, for those purposes, the meaning of in Australia, to Australia or any
other phrase is limited; or
that this Act does not extend to parts of Australia outside the
migration zone; or
that this Act does not apply to persons in those parts.
36. The purpose of this amendment is to refer readers to the new subsection 9A(3)
inserted by item 6 below.
Item 6 After section 9
37. This item inserts new section 9A of the Act. The heading of this new section is
Migration zone etc. - offshore resource activities.
38. New section 9A creates a new framework that provides that persons in an area
participating in, or supporting, an offshore resources activity are taken to be in the
migration zone (the deeming provision). New section 9A further clarifies how
this new framework operates by deeming when persons are taken to be in
Australia, taken to travel to Australia, taken to enter Australia and or taken to
leave Australia. It further defines offshore resources activity for the purposes of
the Act. The purpose of this amendment is to bring persons participating in, or
supporting, an offshore resources activity in the relevant area within the ambit of
the Act, thereby requiring these persons to hold visas.
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39. By requiring these persons to hold visas, new section 9A enlivens the power in
current section 41 of the Act to impose visa conditions related to work in
Australia. In this regard, new subsections 41(2B) and 41(2C) are inserted by
item 8 below to ensure that all non-citizens engaged in an offshore resources
activity hold a specific visa or a permanent visa to participate in, or support, the
relevant activity.
40. New section 9A operates in concert with new subsections 41(2B) and 41(2C) to
enables the Department to regulate foreign workers engaged in offshore resources
activities.
41. New section 9A is based on the recommendations of the Taskforce.
The Taskforce recommended that the existing legislative framework that
essentially provides that persons are in the migration zone based on where they
are physically located be supplemented with a new legislative concept. The
policy intention is to provide that all offshore resource workers, including support
staff, are taken to be in the migration zone when they are engaged to conduct
activities regulated by Commonwealth, State and Territory legislation relating to
the exploration and exploitation of Australia's natural resources.
42. Subsection 5(1) of the Act provides that the migration zone means the area
consisting of the States, the Territories, Australian resources installations and
Australian sea installations and, to avoid doubt, includes:
land that is part of a State or Territory at mean low water; and
sea within the limits of both a State or Territory and a port; and
piers, or similar structures, any part of which is connected to such land
or to ground under such sea;
but does not include sea within the limits of a State or Territory but not in a
port.
43. Subsection 5(1) of the Act defines a non-citizen to mean a person who is not an
Australian citizen. Section 13 of the Act provides that a non-citizen in the
migration zone who holds a visa that is in effect is a lawful non-citizen.
44. Section 14 of the Act provides that a non-citizen in the migration zone who is not
a lawful non-citizen is an unlawful non-citizen. To avoid doubt, a non-citizen in
the migration zone who, immediately before 1 September 1994, was an illegal
entrant within the meaning of the Migration Act as in force then became, on that
date, an unlawful non-citizen.
45. In addition, section 42 of the Act provides that a non-citizen must not travel to
Australia without a visa that is in effect. This is subject to certain exceptions that
are not relevant to offshore resource workers.
46. The effect of these provisions is to provide that a non-citizen must not be in the
migration zone without holding a valid visa. Otherwise, that non-citizen will be
an unlawful non-citizen.
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Migration zone etc.
Subsection 9A(1)
47. New subsection 9A(1) provides that, for the purposes of this Act, a person is taken
to be in the migration zone while he or she is in an area to participate in, or to
support, an offshore resources activity in relation to that area.
48. New subsection 9A(1) operates as the new deeming provision and supplements
the current definition of the migration zone in subsection 5(1) for the purposes of
offshore resources activities. However, it does not modify the existing definition
of the migration zone in subsection 5(1).
49. The purpose of this amendment is to require persons participating in, or
supporting, an offshore resources activity in a relevant area to hold visas to work.
Current subsection 5(23) provides that to avoid doubt, in this Act is taken, when
followed by the infinitive form of a verb, has the same force and effect as
is deemed when followed by the infinitive form of that verb. New subsection
9A(1) therefore operates as a deeming provision.
50. New subsection 9A(1) does not define what an area is and has been left
deliberately broad. Instead, it is intended for the relevant area to be read in
conjunction with the definition of offshore resources activity in new subsection
9A(5). New subsection 9A(5) refers to certain operations or activities under the
Offshore Petroleum Act, Offshore Minerals Act or a law of the Commonwealth, a
State or a Territory determined by the Minister. Those Acts themselves will
define the area (for example, a licence under the Offshore Minerals Act will
define a particular area in which the regulated operation may take place).
51. Example 1 below new subsection 9A(1) provides that a person is taken to be in
the migration zone under this section if the person is on a vessel in an area to
participate in an offshore resources activity under the Offshore Petroleum and
Greenhouse Gas Storage Act 2006 in that area by exploring for, or recovering,
petroleum.
52. This example illustrates a situation where a person would be participating in an
offshore resources activity in a more direct manner. However, a person is not
required to be directly employed by the licence, title or permit holder to be
considered as a person who is participating in the relevant offshore resources
activity and therefore taken to be in the migration zone. It is intended for new
subsection 9A(1) to capture, within the migration zone, contractors,
sub-contractors and other types of non-conventional employment type
relationships which the licence or permit holder may enter into.
53. Example 2 below new subsection 9A(1) provides that a person who is a member
of the crew of the vessel is also taken to be in the migration zone under this
section if the person is supporting the offshore resources activity.
54. This example illustrates a situation where a person would be supporting an
offshore resources activity in a less direct manner. A support person would be
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taken to be in the migration zone even if the person was not directly participating
in an offshore resources activity. This could include person who:
is a member of the crew of the vessel;
cooks for that person conducting a relevant activity (for example, the
chef of a vessel); and/or
performs cleaning or maintenance activities for a ship carrying persons
conducting relevant activities (for example, a cleaner on a ship or a
mechanic).
55. Examples 1 and 2 are non-exhaustive examples of the main types of people and
activities which will trigger new subsection 9A(1) - namely a person who
participates in an offshore resources activity and a person who supports an
offshore resources activity.
56. Example 3 below new subsection 9A(1) provides that neither a stowaway on a
vessel, nor a person on the vessel because the person was rescued at sea, is taken
to be in the migration zone, because neither is participating in, or supporting, the
offshore resources activity.
57. This example provides a non-exhaustive list of situations where persons would not
be participating in or supporting an offshore resource activity and therefore would
not be taken to be in the migration zone. These examples illustrate the types of
people that this provision and the framework created by section 9A is not intended
to capture.
Subsection 9A(2)
58. New subsection 9A(2) provides that to avoid doubt, a person may be taken to be
in the migration zone under subsection 9A(1):
whether or not the person's participation in, or support of, an offshore
resources activity in the area concerned has started, is continuing or has
concluded; and
whether or not the offshore resources activity concerned has started, is
continuing or has concluded.
59. The purpose of new paragraph 9A(2)(a) is to clarify that a person would still be
subject to the deeming provision in new subsection 9A(1) despite the fact that
they may not have actually started participating in, or supporting, an offshore
resources activity. The policy intention is to ensure that persons are still taken to
be in the migration zone if they are in an area to participate in, or support, an
offshore resources activity in relation to the area even if they never actually
participate in, or support, the relevant activity. This may arise in situations where
persons may, for example, fall unexpectedly ill and are unable to participate or
support the relevant activity.
60. Secondly, new paragraph 9A(2)(a) clarifies the policy intention that even if a
person takes a break from participating in or supporting an offshore resources
activity, that person is still taken to be in the migration zone because of new
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subsection 9A(1). This may arise in situations where persons may, for example,
go to sleep and not continue to participate in, or support, the relevant activity.
61. Finally, new paragraph 9A(2)(a) clarifies the policy intention that even if a
person's participation in, or support, of an offshore resources activity has
concluded, that person is still taken to be in the migration zone because of new
subsection 9A(1). The policy intention is to ensure that persons are still taken to
be in the migration zone if they are in an area to participate in, or support, an
offshore resources activity in relation to the area even if they conclude their
involvement in the activity. This may arise in situations where persons may, for
example, complete their involvement in a specific activity such as laying a pipe
but other persons are still participating in or supporting the relevant activity.
62. The purpose of new paragraph 9A(2)(b) is to clarify that a person would still be
subject to the deeming provision in new subsection 9A(1) despite the fact that the
offshore resources activity in which they are in the area to participate, or support,
has not actually commenced. The policy intention is to ensure that persons are
still taken to be in the migration zone if they are in an area to participate in, or
support, an offshore resources activity in relation to the area even if the relevant
activity never commences. This may arise in situations where, for example,
the performance of an activity cannot commence due to adverse weather
conditions.
63. Secondly, new paragraph 9A(2)(b) clarifies the policy intention that even if there
is a break in the offshore resources activity, that person who was participating in
or supporting the activity is still taken to be in the migration zone because of new
subsection 9A(1). This may arise in situations where, for example, the activity
has commenced but cannot continue because of adverse weather conditions.
64. Finally, new paragraph 9A(2)(b) clarifies the policy intention that even if an
offshore resources activity has concluded, the persons who were participating in,
or supporting, the activity are still taken to be in the migration zone because of
new subsection 9A(1). This may arise in situations where the relevant activity has
concluded, but the vessel(s) and persons aboard the vessel(s) or otherwise in the
area in which the offshore resources activity was being conducted are still in that
area in which the offshore resource activity was being conducted.
65. However, persons who were involved in the activity which has concluded would
no longer be subject to the deeming provision in new subsection 9A(1), once they
depart the relevant area.
Subsection 9A(3)
66. New subsection 9A(3) provides that for the purposes of the Act:
a person is taken to be in Australia while he or she is taken to be in the
migration zone because of subsection 9A(1); and
a person is taken to travel to Australia if the person travels to an area in
which the person is taken to be in the migration zone because of
subsection 9A(1); and
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a person is taken to enter Australia when the person enters an area in
which the person is taken to be in the migration zone because of
subsection 9A(1); and
subject to section 80--a person is taken to leave Australia when the
person leaves an area in which the person is taken to be in the migration
zone because of subsection 9A(1).
67. The purpose of new subsection 9A(3) is to expressly provide when a person (who
is deemed to be in the migration zone by subsection 9A(1)) is also taken to be in
Australia, taken to travel to Australia, taken to enter Australia and taken to leave
Australia.
68. New subsection 9A(3) should also be read with items 1 to 3 above which inserts
new notes in relation to the definition of enter Australia, leave Australia and the
migration zone.
69. New paragraph 9A(3)(c) provides that a person is taken to enter Australia when
the person enters an area in which the person is taken to be in the migration zone
because of subsection 9A(1).
70. A person is therefore taken to enter Australia when he or she enters the area in
which he or she is in to participate in, or to support, an offshore resources activity
in relation to that area.
71. As a result of the new note inserted by item 1 above, the definition of
enter Australia in current subsection 5(1) will be read with new paragraph
9A(3)(c). The intention is to ensure consistency with the provisions in the Act
relating to the grant of visas and to provide the Department with the ability to
identify whether a visa is in effect or whether it has ceased in the context of a
person subject to new subsection 9A(1).
72. New paragraph 9A(3)(d) provides that subject to section 80 of the Act, a person is
taken to leave Australia when the person leaves an area in which the person is
taken to be in the migration zone because of subsection 9A(1).
73. For example, a person who has concluded their involvement in an offshore
resources activity and who leaves the area in which he or she was deemed to be in
the migration zone because of new subsection 9A(1) would be taken to leave
Australia for the purposes of new paragraph 9A(3)(d). This is provided that the
person did not leave under the circumstances described in section 80.
74. Section 80 of the Act provides that a person is taken not to leave Australia if the
person goes outside the migration zone on a vessel and:
does not go (other than for transit purposes) to a foreign country; and
remains a passenger, or a member of the crew, of that vessel while
outside the migration zone; and
is outside the migration zone for no longer than the prescribed period.
75. The period referred to in paragraph 80(c) is prescribed in regulation 3.07 of the
Regulations is 30 days.
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76. Accordingly, if a person is taken to be in the migration zone by operation of new
subsection 9A(1) and, for the purposes of the offshore resources activity, the
person leaves the area in which they were participating in, or supporting, that
activity for less than 30 days, the person would be taken not to leave Australia for
the purposes of new paragraph 9A(3)(d). This is provided that during that period,
the person did not travel to a foreign country, other than for transit purposes.
77. Alternatively, a person who suspends their involvement in offshore resources
activities and travels to a foreign country for a holiday is taken to leave Australia
for the purposes of the new paragraph 9A(3)(d). In this example, the person would
be taken to have left Australia even if the person intended to return to Australia to
resume involvement in an offshore resources activity.
78. As a result of the new note inserted by item 2 above, the definition of
leave Australia in current subsection 5(1) will be read with new paragraph
9A(3)(d). The intention is to ensure consistency with the provisions in the Act
relating to the cessation of visas and to provide the Department with the ability to
identify whether a visa held by an offshore resources worker is in effect or
whether it has ceased in the context of a person subject to new section 9A.
79. The policy intention of new subsection 9A(3) is to facilitate the Department's
ability to govern a person's entry into Australia when they are taken to be in the
migration zone by operation of new subsection 9A(1). By taking a person who is
captured by new subsection 9A(1) to be in Australia, new subsection 9A(3)
triggers the object of the Act in section 4 - which is predicated on the presence of
non-citizens in Australia.
80. Relevantly, subsections 4(1) and 4(2) of the Act respectively state that:
the object of this Act is to regulate, in the national interest, the coming
into and presence in, Australia of non-citizens.
to advance its object, this Act provides for visas permitting non-citizens
to enter or remain in Australia and the Parliament intends that this Act be
the only source of the right of non-citizens to so enter or remain.
81. As a result, non-citizens who are taken to be in Australia under new subsections
9A(1) and 9A(3) will come within the ambit of the Act in accordance with the
objectives provided for in subsection 4(1).
82. This amendment further supports the objectives set out in subsection 4(2) of the
Act to encompass persons participating in, or supporting, an offshore resources
activity in the relevant area.
83. As visas and visa conditions are concerned with when the visa holder enters,
travels to and leaves Australia, subsection 9A(3) will facilitate the development of
a tailored visa pathway in relation to offshore resources work in the Regulations to
cover persons engaged in an offshore resources activity.
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Subsection 9A(4)
84. New subsection 9A(4) provides that unless a provision of this Act, or another Act,
expressly provides otherwise, this section does not have the effect of extending,
for the purposes of another Act, the circumstances in which a person:
is in the migration zone or is taken to be in the migration zone; or
is in Australia or is taken to be in Australia; or
travels to Australia or is taken to travel to Australia; or
enters Australia or is taken to enter Australia; or
leaves Australia or is taken to leave Australia.
85. In addition to the Act, the current definition of migration zone in subsection 5(1)
is referred to in other Acts. The purpose of this amendment is to put beyond
doubt that the deeming provisions under new subsections 9A(1) and 9A(3) apply
only in relation to the Act in the context of the offshore resources industry and
that they do not modify the current definition of the migration zone in subsection
5(1) as referred in other Acts.
86. New subsection 9A(4) mirrors the text in new subsections 9A(1) and 9A(3) to put
beyond doubt that the deemed extension of the migration zone is not intended to
modify current definitions of when a person is taken to be in the migration zone,
taken to be in Australia, taken to travel to Australia, taken to enter Australia or
taken to leave Australia.
Meaning of offshore resources activity
Subsection 9A(5)
87. New subsection 9A(5) provides that an offshore resources activity, in relation to
an area, means:
a regulated operation (within the meaning of section 7 of the
Offshore Petroleum and Greenhouse Gas Storage Act 2006) that is being
carried out, or is to be carried out, within the area, except an operation
determined by the Minister under subsection (6); or
an activity performed under a licence or a special purpose consent
(both within the meaning of section 4 of the Offshore Minerals Act
1994), that is being carried out, or is to be carried out, within the area,
except an activity determined by the Minister under subsection 9A(6); or
an activity, operation or undertaking (however described) that is being
carried out, or is to be carried out:
o under a law of the Commonwealth, a State or a Territory
determined by the Minister under subsection 9A(6); and
o within the area, as determined by the Minister under subsection
9A(6).
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88. The purpose of this amendment is to define an offshore resources activity for the
purposes of the deemed extension of the migration zone under new
subsection 9A(1) - which is triggered by persons participating in or supporting an
offshore resources activity.
89. Currently, offshore resources activities undertaken in Australia's offshore
maritime zones are governed by the Offshore Petroleum Act, the Offshore
Minerals Act and the relevant State and Territory legislation in the three-mile
coastal waters zone.
90. New subsection 9A(5) is not intended to modify the existing framework created
by these Acts relating to offshore resources activities, and define new activities,
but rather link to existing activities. When selecting the activities associated with
the exploration and exploitation of Australia's natural resources, the Taskforce
recognised that there is already a regime which comprehensively covers the
activities of the offshore resources industry. The Taskforce concluded that linking
the Act to the current regulatory schemes under the Offshore Petroleum Act, the
Offshore Minerals Act and related State and Territory legislation, would ensure
that the Migration Act covers the same activities being conducted under existing
legislation regulating the offshore resources industry.
91. The Taskforce put forward that if an activity requires a licence under the Offshore
Petroleum Act, the Offshore Minerals Act and related State and Territory
legislation then the person who was in an area to participate in, or support, that
activity should be deemed to be in the migration zone. For that reason and to
ensure consistency, new subsection 9A(5) incorporates activities under the
Offshore Petroleum Act, Offshore Minerals Act and under a law of the
Commonwealth, a State or a Territory determined by the Minister in writing in
subsection (6).
92. New paragraphs 9A(5)(a) and 9A(5)(b) make it clear that all regulated operations
under the Offshore Petroleum Act and all activities performed under a licence or a
special purpose consent under the Offshore Minerals Act are captured by the
definition of offshore resources activity unless the Minister has excluded the
operation or activity by using his powers under subsection 9A(6).
This would allow the Minister to exclude from the Act activities defined under the
Offshore Petroleum Act and the Offshore Minerals Act which the Minister
considers unsuitable to be captured by the definition of offshore resources activity.
93. New paragraphs 9A(5)(a) and 9A(5)(b) do not attempt to exhaustively define the
areas in which Australia has the jurisdiction to govern offshore resources activity.
Instead new paragraphs 9A(5)(a) and 9A(5)(b) rely on the existing processes
applied in the Offshore Petroleum Act and the Offshore Minerals Act, which
authorise activities to be carried out in Australia's offshore maritime zones, to
suppose that these activities are carried out within Australia's jurisdiction.
In other words, the limits of the area are intended to be determined with
reference to a regulated operation or activity performed under a licence or a
special purpose consent issued under these two Acts. These areas would include
areas within Australia's EEZ (beyond the limits of the territorial sea) and above
Australia's extended continental shelf.
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94. New subparagraph 9A(5)(c)(ii) provides that an offshore resources activity can
also include an activity, operation or undertaking (however described) that is
being carried out, or is to be carried out under a law of the Commonwealth, a State
or a Territory determined by the Minister under subsection 9A(6).
95. The purpose of this amendment is to enable the Minister to determine as an
offshore resources activity, an activity which is not covered by the Offshore
Petroleum Act or the Offshore Minerals Act under new subsection 9A(6) for the
purposes the deeming provision in new subsection 9A(1). Therefore, a person who
is carrying out an activity under legislation that the Minister has determined to be
an offshore resources activity would be taken to be in the migration zone because
they are participating in an offshore resources activity.
96. This provision recognises and accounts for changes in the offshore resources
sector and possible advances in technology. It recognises that additional laws
may be developed in the future to govern new offshore resource activities that
may emerge.
97. This power is limited in so far as the activity must be carried out under a law of
the Commonwealth or a State or Territory determined by the Minister under new
subsection 9A(6). Further, the activity must be carried out in an area determined
by the Minister under new subsection 9A(6). With respect to offshore resources
activities carried out under paragraph 9A(5)(c), the requirement that these
activities be carried out under a law of the Commonwealth or a State or Territory
ensures that they are carried out within Australia's jurisdiction.
98. The area determined by the Minister will define the extent to which the migration
zone is taken to be extended for a person affected by the determination.
Subsection 9A(6)
99. New subsection 9A(6) provides that the Minister may, in writing, make a
determination for the purposes of the definition of offshore resources activity in
subsection 9A(5).
100. More specifically, this amendment provides the Minister with the power to make
determinations with respect to the definition of offshore resources activity by:
exempting certain regulated operations under the Offshore Petroleum
Act from the definition of offshore resources activity;
exempting certain activities performed under a licence or a special
purpose consent under the Offshore Minerals Act from the definition of
offshore resources activity;
capturing certain activities, operations or undertakings carried out, or to
be carried, out under a law of the Commonwealth, a State or a Territory;
determining the specific law of the Commonwealth, State or a Territory
in which those activities are carried out under; and/or
limiting the area in which those activities are carried out under.
101. The purpose of this amendment is to provide the Minister with the flexibility and
ability to exempt certain activities administered by the Offshore Petroleum Act
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and the Offshore Minerals Act from the definition of offshore resources activity.
Further, this amendment will provide the Minister with the ability to capture
certain other activities not administered by these two Acts but administered by a
law of the Commonwealth, a State or a Territory.
102. This amendment will also provide the Minister with an additional tool to ensure
that any future emergency can be effectively dealt with and to exclude any
unintended consequences which may breach Australia's international obligations.
Subsection 9A(7)
103. New subsection 9A(7) provides that a determination made under subsection 9A(6)
is a legislative instrument, but section 42 (disallowance) of the
Legislative Instruments Act 2003 does not apply to the determination.
104. The purpose of this amendment is to clarify that while a determination made
under new subsection 9A(6) is a legislative instrument, it is not subject to section
42 (disallowance) under the Legislative Instruments Act 2013.
105. A legislative instrument is to be utilised as the Minister would need flexibility to
make determinations for the purpose of the definition of offshore resources
activity and these instruments would need to be revised frequently, in consultation
with stakeholders.
106. As this instrument would be made under Part 1 of the Act, it would be exempt
from disallowance under item 26 of the table in subsection 44(2) of the
Legislative Instruments Act 2013.
Subsection 9A(8)
107. New subsection 9A(8) provides that to avoid doubt, for the purposes of subsection
9A(1), a person may participate in, or support, an offshore resources activity in
relation to an area whether the person:
is on an Australian resources installation in the area; or
is otherwise in the area to participate in, or support, the activity.
108. The purpose of this amendment is to put beyond doubt that persons engaged in
any type of offshore resources activity in the relevant area will be captured under
the framework in new section 9A. This will be the case regardless of whether the
person is engaged in an activity on an Australian resources installation and is
already in the migration zone under the Act or is participating in, or supporting, an
offshore resources activity for the purposes of new section 9A and is therefore
taken to be in the migration zone under new subsection 9A(1).
109. Subsection 5(1) of the Act provides that the migration zone means the area
consisting of the States, the Territories, Australian resources installations and
Australian sea installations and, to avoid doubt, includes:
land that is part of a State or Territory at mean low water; and
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sea within the limits of both a State or Territory and a port; and
piers, or similar structures, any part of which is connected to such land
or to ground under such sea;
but does not include sea within the limits of a State or Territory but not in a
port.
110. Subsection 5(1) of the Act provides that installation means a resources
installation or a sea installation.
111. A resources installation is defined in subsection 5(1) to mean:
a resources industry fixed structure within the meaning of subsection
(10); or
a resources industry mobile unit within the meaning of subsection (11).
112. Subsection 5(1) provides that an Australian resources installation means a
resources installation that is deemed to be part of Australia because of the
operation section 8.
113. Subsection 8(1) of the Act provides that for the purposes of this Act, a resources
installation that:
becomes attached to the Australian seabed after the commencement of
this subsection; or
at the commencement of this subsection, is attached to the Australian
seabed;
shall, subject to subsection 8(2), be deemed to be part of Australia and shall be
deemed not to be a place outside Australia.
114. The interaction between the definitions of migration zone and resources
installation in subsection 5(1) and subsection 8(1) means that certain resources
installations are deemed to be part of Australia (i.e. Australian resources
installations). As noted above, subsection 5(1) provides that an
Australian resources installation means a resources installation that is deemed to
be part of Australia because of the operation of section 8.
115. In addition, under paragraph 5(6)(b), persons on board a resources installation are
deemed to have entered Australia at the time at which the resources installation
becomes attached to the Australian seabed.
116. New section 9A is intended to work in conjunction with the present definition of
Australian resources installations and its interaction with the definition of the
migration zone. It is intended that a person who is deemed to be in the migration
zone under section 9A, could also be in the migration zone if they were physically
present on an Australian resources installations (and therefore taken to be in the
migration zone).
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117. However, conversely, situations are envisaged where a person could be in the
migration zone because they were on an Australian resources installation.
That person may not necessarily be taken to be in the migration zone because of
subsection 9A(1) because they may not be participating or supporting an offshore
resources activity, and thereby not satisfying the requirements.
118. It is intended that all persons referred to in new subsection 9A(8) will be required
to hold a prescribed visa to participate in, or support, an offshore resources
activity. This requirement is created in new subsection 41(2B) and (2C) inserted
by item 8 below.
Item 7 Subsection 41(1)
119. This item inserts a new heading General rules about conditions after subsection
41(1).
120. The purpose of this amendment is to clarify that new subsections 41(2) and
41(2A) relate to general rules about conditions.
121. This amendment is a consequential amendment as a result of item 8 below which
inserts new subsections 41(2B) and 41(2C) following the new heading
Conditions about offshore resources activity.
Item 8 After subsection 41(2A)
Conditions about offshore resources activity
122. This item inserts new subsections 41(2B) and 41(2C) under the new heading
Conditions about offshore resources activity.
Subsections 41(2B) and 41(2C)
123. New subsection 41(2B) provides that in addition to any restrictions applying
because of Regulations made for the purposes of paragraph 41(2)(b), a condition
of a visa that allows the holder of the visa to work is not taken to allow the holder
to participate in, or support, an offshore resources activity in relation to any area
unless the visa is:
a permanent visa; or
a visa prescribed by the regulations for the purposes of this subsection.
124. The purpose of this amendment is to ensure that all non-citizens engaged in an
offshore resources activity hold a visa or a permanent visa to participate in, or
support, the relevant activity.
125. A person who is not the holder of a permanent visa or a visa prescribed by the
Regulations for the purposes of new subsection 41(2B) could not lawfully
participate in, or support, an offshore resources activity.
126. A note is inserted after new subsection 41(2B) which advises for
offshore resources activity see subsection 9A(5).
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127. The purpose of this note is to refer readers to the definition of offshore resources
activity in new subsection 9A(5) which is inserted by item 6 above. This is to
facilitate interpretation and understanding of new subsections 41(2B) and 41(2C).
128. New subsection 41(2C) provides that to avoid doubt, for the purposes of
subsection 41(2B), a person may participate in, or support, an offshore resources
activity in relation to an area whether the person:
is on an Australian resources installation in the area; or
is, under section 9A, otherwise in the area to participate in, or support,
the activity.
129. This new subsection mirrors new subsection 9A(8) which is inserted by item 6
above. The purpose of this amendment is to put beyond doubt that persons
engaged in any type of offshore resources activity in the relevant area will be
required to hold a permanent visa; or a visa prescribed by the Regulations to
participate or support that activity. This will be the case regardless of whether the
person is engaged in an activity on an Australian resources installation and is
already taken to be in the migration zone under the Act or is participating in or
supporting an offshore resources activity for the purposes of new section 9A and
will therefore be taken to be in the migration zone under new subsection 9A(1).
130. The policy intention behind new subsections 41(2B) and 41(2C) is to enable the
Department to identify the number of non-citizens working in the offshore
resources sector and information about the work they are doing.
Without a specific visa for this work, this will not be possible. Identification of
the number of non-citizens working in the sector enables identification of training
needs for Australian workers. The Taskforce also received feedback that the
current visa products available are not suitable for the needs of industry, for
example, where there is a need to transfer a worker from one offshore project
overseas to a project in Australian waters at short notice. The new visa product
would provide flexibility for industry and would enable the Department to identify
the number of non-citizens working in the sector.
131. In addition, it is intended that a person who does not comply with new subsections
41(2B) and 41(2C) may be liable for committing an offence under current
section 235 of the Act.
132. Subsection 235(1) provides that if the temporary visa held by a non-citizen is
subject to a prescribed condition restricting the work that the non-citizen may do
in Australia, and the non-citizen contravenes that condition; the non-citizen
commits an offence against this section.
133. In addition, subsection 235(2) provides that for the purposes of subsection 235(1),
a condition restricts the work that a non-citizen may do if, but not only if, it
prohibits the non-citizen doing:
any work; or
work other than specified work; or
specified work.
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134. It is intended that new section 41(2B) is a condition that restricts the specific work
that a non-citizen may do, in the context of participating or supporting an offshore
resources activity.
Additional conditions
135. Finally, item 8 inserts a new heading Additional conditions after new subsection
41(2C).
136. The purpose of this amendment is to clarify that subsection 41(3) relates to
additional conditions.
Item 9 Subsection 41(3)
137. This item inserts or in subsection (2B) after the words subsection (1).
138. Subsection 41(3) provides that in addition to any conditions specified under
subsection 41(1), the Minister may specify that a visa is subject to such conditions
as are permitted by the Regulations for the purposes of this subsection.
139. As item 8 inserts new subsection 41(2B) which relates to conditions about
offshore resources activity, the purpose of this amendment is to provide the
Minister with the power to also specify that a visa under new subsection 41(2B) is
subject to additional conditions permitted by the Regulations.
140. This is intended to enable the Minister to specify conditions which he considers
suitable to address any issues which may arise in the context of the offshore
resources activity migration framework.
Part 2 - Application
Item 10 Application
141. Subitem 10(1) provides that the amendments of the Act made by Part 1 apply in
relation to a person who, on or after the commencement of this Schedule:
is in the migration zone, or is taken to be in the migration zone, under
that Act (as amended); or
is in Australia, or is taken to be in Australia, under that Act
(as amended); or
travels to Australia, or is taken to travel to Australia, under that Act
(as amended); or
enters Australia, or is taken to enter Australia, under that Act
(as amended); or
leaves Australia or is taken to leave Australia, under that Act
(as amended).
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142. The purpose of this provision is to clarify that the operative provisions of the
amendments made by Part 1 would apply in relation to a person who is already in
the migration zone, or taken to be in the migration zone. In addition, the
amendments would apply to a person who is in Australia, or taken to be in
Australia, travels to Australia, or is taken to travel to Australia, enters Australia, or
is taken to enter Australia, or leaves Australia, or is taken to leave Australia.
143. More specifically, these amendments would apply to a person who participates in,
or supports, an offshore resources activity in relation to an area whether the
person:
is on an Australian resources installation in the area
(after commencement);
is, under new section 9A, otherwise in the area to participate in, or
support, the activity (after commencement).
144. Subitem 10(2) provides that the amendments of section 41 of the Act made by
Part 1 apply in relation to a visa granted on or after commencement of this
Schedule.
145. The purpose of this provision is to clarify that new subsection 41(2B) and 41(2C)
would only apply to a holder of a visa granted on or after commencement of this
Schedule. New subsection 41(2B) provides that in addition to any restrictions
applying because of regulations made for the purposes of paragraph 41(2)(b), a
condition of a visa that allows the holder of the visa to work is not taken to allow
the holder to participate in, or support, an offshore resources activity in relation to
any area unless the visa is:
a permanent visa; or
a visa prescribed by the regulations for the purposes of this subsection.
146. The effect of this provision is to clarify that only persons who are granted a visa
on or after commencement, and participate in, or support, an offshore resources
activity in relation to any area would be subject to new subsections 41(2B) and
subsection 41(2C).
147. In relation to persons who do not hold a visa on or after commencement of this
schedule, the policy intention is to grant a Special Purpose Visa under section 33
of the Act to a person who is taken to be in the migration zone while he or she is
in an area to participate in, or to support, an offshore resources activity in relation
to that area, for a limited time.
148. Under section 33 of the Act, a non-citizen is taken to have been granted a
Special Purpose Visa if the Minister declares, in writing, that persons of a class, of
which the non-citizen is a member, are taken to have been granted Special
Purpose Visas.
149. The persons captured by the new provisions on commencement would not be
required to make applications or pay visa application charges (there are no criteria
to be satisfied under either Schedule 1 or Schedule 2 of the Regulations for a
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Special Purpose Visa). Persons, will, however, be required to hold a new visa
after the period of the Special Purpose Visa ceases to be in effect.