The Maritime Union of Australia & Anor v Minister for Immigration and Border Protection & Anor [2016] HCATrans 158 (19 July 2016)

Last Updated: 19 July 2016

[2016] HCATrans 158

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S136 of 2015

B e t w e e n -

THE MARITIME UNION OF AUSTRALIA

First Plaintiff

AUSTRALIAN MARITIME OFFICERS’ UNION

Second Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

FRENCH CJ
BELL J
GAGELER J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 19 JULY 2016, AT 9.15 AM

Copyright in the High Court of Australia

____________________

MR N.J. WILLIAMS, SC: May it please the Court, in that matter, I appear with MR B.K. LIM, for the plaintiffs. (instructed by Slater and Gordon Lawyers)

MR S.P. DONAGHUE, QC: May it please the Court, I appear with MS A.M. MITCHELMORE, for the defendants. (instructed by Australian Government Solicitor)

FRENCH CJ: Yes, Mr Williams.

MR WILLIAMS: In 2012, the Federal Court held in Allseas Construction v Minister for Immigration that by reason of the operation of section 5(13) of the Migration Act, workers on pipe laying vessels in the subsea gas fields off the Western Australian coast had not entered Australia, and were not subject to the Migration Act. In the same year, the then government, through the then Minister for Immigration, announced legislation to amend the Migration Act to clarify the position of foreign workers in the offshore maritime zones, and “to address the position in Allseas”.

The amendments that emerged from the recommendations of a migration maritime taskforce of the Department set up for that purpose went beyond merely reversing the legislative position declared in Allseas. In part, in recognition of the security sensitivity of the industry, the amendments in the 2013 amending Act limited participation of non-citizens in the offshore resources industry to those holding either a permanent visa, or a visa of a specified class.

Since 2014, the government has attempted in various ways to reverse or cut down the amendments made in the 2013 Act. The fifth such attempt is at page 201 of the book, the determination which is the subject of the proceeding before the Court. The determination at page 201 invokes both limbs of section 9A(5):

a regulated operation (within the meaning of . . . the Offshore Petroleum and Greenhouse Gas Storage Act 2006) –

in paragraph a of the determination, and:

[activities] performed under a licence or a special purpose consent (both within the meaning of section 4 of the Offshore Minerals Act 1994) –

That is in paragraph b. In each paragraph, the words beginning “to the extent that” through to the end of the clause, are words of limitation but up to that point each paragraph covers the full amplitude of offshore resources activities. The words of limitation, we will demonstrate, focus upon the vessels referred to in section 5(13), that by way of shorthand I might refer to as the Allseas vessels.

Put briefly, the plaintiff’s challenge is, first, that the scope of the Determination is such that it is repugnant to the whole legislative scheme established by the 2013 amendment to the Migration Act. The plaintiff’s contention put simply is the exception created by the Determination has consumed the rule. That, we say, is apparent from the face of the Determination, without more, that its purpose is to restore the legislative position declared in Allseas, contrary to the 2013 amendments that were quite plainly intended to reverse that position.

That submission does not depend on any reference to evidence or to any detailed analysis of the character of the exception made. But if that is not sufficient in and of itself, the quantitative nature of the exception makes out repugnancy since the activities caught by the Determination account for roughly 50 per cent of the work in the offshore resources - - -

FRENCH CJ: How does that work? Can that not be a shifting, a moving feast in terms of the percentage of regulated and unregulated activity and so forth?

MR WILLIAMS: It can, yes.

FRENCH CJ: How does it work in terms of the validity of the Determination?

MR WILLIAMS: Well, we say that it is - - -

FRENCH CJ: You are not running an “improper purposes”?

MR WILLIAMS: No, no, but we say that it is axiomatic that validity is to be judged not merely by the legal operation but also by the practical operation of the Determination.

FRENCH CJ: As of a particular day.

MR WILLIAMS: Not necessarily as of a particular day but the evidence of the position over the last five years goes to demonstrate the large practical operation that this Determination has. It is directed to that second element, the practical operation rather than the legal. Absent evidence of that kind, it might be possible to say, well, what are these operations. The court does not know whether the Determination has any practical content or not but by reference to the evidence it is possible to say that it has a large, a very substantial practical operation. In addition to that, we say that the qualitative nature of the purported exception also manifests repugnancy as it accepts entire categories of participation in the industry.

The final basis is that the Determination makes no attempt to identify an operation or an activity that would bring it within the relevant exempting powers in subsection 9A(5) - the phrase “except an operation determined by the Minister” in (a) or “except an activity determined by the Minister” in (b). The power to except conferred by reference to activities and operations in the two Acts picks up, we submit, the definition in those Acts which is at a quite high level of specificity, such as “explore for petroleum in a permit area”, “carry on such operations in the permit area as are necessary for those purposes”. By a wholesale exempting the Determination has used a discrimen that is not to be found in the excepting power.

GAGELER J: But the excepting power has to be read with the Legislation Act, I think, of 2003, and there is a provision, section 13(3), which you need to take into account in relation to that submission.

MR WILLIAMS: We will return to that, your Honour. The path through the legislative provisions starts in the Migration Act with the definition in section 5(1) of the “migration zone”. The migration zone means “the area consisting of the States, the Territories” and, in particular for present purposes, “Australian resource installations”. The definition then of “Australian resources installations” a little further towards the front of section 5 - Australian resources installations - in a sense, there are two elements:

Australian resources installation means a resources installation –

that is the first element:

that is deemed to be a part of Australia because of the operation of section 8.

That takes the reader directly to “resources installation”, also defined in section 5.

resources installation means:

(a) a resources industry fixed structure within the meaning of subsection (10); or

(b) a resources industry mobile unit within the meaning of subsection (11).

Subsection 5(10) is of less relevance for present purposes of the two definitions but it is significant that in the chapeau within parenthesis it includes a pipeline. Subsection (11):

A reference in this Act to a resources industry mobile unit shall be read as a reference to:

(a) a vessel that is used or is to be used wholly or principally in:

(i) exploring or exploiting –

like drilling et cetera or particularly for present purposes (11)(a)(ii):

(ii) operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (i) –

Those, apparently, broad words, are then subject to a carve-out in section 5(13), which is the central provision for present purposes; the operations and activities of an incidental or associated kind in (11)(a)(ii) is not to be read as:

including a reference to a vessel that is used or is to be used wholly or principally in:

(a) transporting persons or goods to or from a resources installation; or

(b) manoeuvring a resources installation, or in operations relating to the attachment of a resources installation to the Australian seabed -

“resources installation” of course including pipelines.

Section 5(14) then deals with the question of attachment – an installation shall be taken to be attached if it “is in physical contact with, or is brought into physical contact with” the seabed and is to be used for one of the relevant purposes – or, in (b), is in contact with “another resources installation that is taken to be attached”. So there are two ways in which a resources installation can come within the definition of attachment.

The next key provision for present purposes is in section 8, which defines when resources installations are part of Australia. In section 8(1), the installation, for the purposes of the Act – a resources installation that becomes attached after the commencement of the subsection, or was already, shall be deemed to be part of Australia and not to be a place outside Australia. So for subsection (1), attachment is the touchstone. For subsection (2), once attached, if it is detached – for the purpose of being taken outside Australia in paragraph (a) or, in (b), having been detached for some other purpose – it is moved for the purpose of being taken outside Australia then it ceases to fall within the definition. To this point, all of the provisions that I have taken the Court to were in the Act at the time of Allseas and have not relevantly been amended.

Section 9A was inserted by the 2013 amendments. Its operation is to extend the statutory concept of the migration zone functionally, not geographically, by reference to the activities of individuals. In particular, it defines a category of offshore resources activity, which is in subsection (5). I will come to that. Subsection (1):

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.

There are then some examples given. The third example refers to stowaways or rescuees. Spouses of crew or trainees might be within the same category, but it is the purpose of participating in the resources activity that is the touchstone. The definition of “offshore resources activity” is in subsection (5), and it is, as we have observed - - -

FRENCH CJ: Sorry, just before you move to that; the point of this is that a non-citizen in this extended migration zone has to have a visa if they are not to be an unlawful non-citizen.

MR WILLIAMS: That is so, yes. That is so whether or not after the 2013 amendments – whether or not they are on Allseas-type vessels, vessels that are within section 5(13), or on vessels that are clearly within the migration zone. So a worker on a drill rig which is clearly attached, clearly part of the migration zone, will, after the 2013 amendments, need a visa of a specified kind or a permanent visa, even though they are clearly within the migration zone by reference to the pre-2013 provisions.

That, in a sense, is the second aspect of the 2013 amendment. One was, we say, to reverse in a functional sense the position declared in Allseas, that pipe laying vessels, tugs, barges, vessels manoeuvring drill rigs and the like should be subject to the Migration Act, or the workers on those vessels should be subject to the Migration Act. The second aspect was that any non-citizen working in the offshore resources industry should be subject to a particular visa regime, either a permanent visa or a visa of a specified class.

As we have observed, the definition operates by reference to regulated operations under the Offshore Petroleum Act or activities under the Offshore Minerals Act, and there is of course the exception power; a regulated operation except an operation determined by the Minister. In paragraph (c), there is a power to add, and in subsection (6), there is the power to make a determination in writing, a determination to a legislative instrument in subsection (7) but is not subject to disallowance, and then there is subsection (8) which, in a sense, mirrors section 41(2B) and (2C), that a person is participating in an offshore resources activity, even if they are on a vessel that is clearly within the migration zone.

FRENCH CJ: Do you go so far as to say that the exception power must be confined to an operation and cannot extend to a class of operations?

MR WILLIAMS: In a sense that is a question for another day. We do put that submission by reference to text and scope, object and purpose because we say that when one has regard to context or text, plainly enough, the provisions we have gone to, we say have that effect, but when one has regard to context, that is the decision in Allseas, the plain intention to reverse that position with respect to Allseas-type vessels, that the power conferred is one to be exercised by reference to particular operations or particular activities or a particular operation or a particular activity. So, we do go that far but we say that it is a question for another day in that however wide the power may be, it is not a power that permits the wholesale abrogation of a key plank of the 2013 amending Act.

We do point in subsection (6) to the fact that the Determination is for the purposes of the definition and subsection (8) I have already dealt with. We submit that the power is a narrow one, exercisable only for making what we refer to in our short outline as tailored adjustments to the scheme and not for negativing a substantial part of the scheme.

The explanatory memorandum supports that submission in a number of places. It is in the stated case book and relevantly from page 36 of the book. It starts at page 36 with a recitation of the Allseas decision in the paragraph at around line 20 and then at about line 28, a reference to the Minister announcing legislation to clarify the situation around foreign workers and to address the decision of Allseas and then below that:

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.

So, a widely stated rule, we say, in the way in which it is put in here and around line 45, the same point is made, the line beginning:

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 –

Of course that is subject to the power of exception but in terms of the statement of the rule that was intended, that stands as a valid statement.

On page 37, about line 15, there is the reference to the Security Inquiry of 2012, a reference to the security sensitivity of the industry, that is the second aspect of the reforms, the need for monitoring of participants through control of visa classes. Then at the foot of 37, about line 50:

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.

Then going over to line 60 on page 44, there is a paragraph dealing with the new section 9A and the new framework, but at about line 58:

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.

Again, a plain statement of a general rule. Then at page 45 at about line 25, a statement of the policy intention - again a rule of general application and defined scope:

The policy intention is to provide that all offshore resources 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 -

At page 46 at about line 22, another plain statement of the wide purpose:

require persons participating in, or supporting an offshore resources activity . . . to hold visas -

About line 28:

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).

It then refers to the Petroleum Act and the Minerals Act:

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).

Here of course the Determination does not identify any such area because it was wholly general in scope. Then on page 52 at about line 45, the EM deals with 9A(5)(a) and (b):

New paragraphs . . . make it clear that all regulated operations –

under the two Acts:

are captured by the definition . . . unless the Minister has excluded the operation or activity . . . This would allow the Minister to exclude from the Act activities defined under –

those Acts:

which the Minister considers unsuitable to be captured by the definition of offshore resources activity.

We say this is a power to exclude particular ones, not to change the definition of the general scope. Then page 53, at about line 60, 9A(6):

The purpose of this amendment is to provide the Minister with the flexibility and ability to exempt certain activities administered by the –

Petroleum and Minerals Acts:

from the definition . . . with the ability to capture –

others. Page 54, paragraph 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.

Now, of course, the application of these amendments to Allseas vessels was plainly a centrally intended consequence. Then at paragraph 105 on that same page:

A legislative amendment 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.

We would say, again, that points to a specific narrow scope rather than a general one. On page 57, about line 35, there is another statement of the policy intention. By this stage it is by reference to 41(2B) and (2C):

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.

It talks about identification of training needs, et cetera. If that is the policy intention, that is of course defeated also by determination in the very wide terms of the Determination under review in the present case, because when wholesale exception is carried out it renders impossible the task of identifying what work is being done.

The explanatory memorandum had attached to it a regulatory impact statement. That has been added to the Court book, we hope in your Honours’ books, from 60A. At page 60C, the impact statement identifies the problem. “The problem” – at the top of the page – “is the incomplete visa coverage of non-citizen workers”. Then in the third paragraph:

However non-citizens working on other vessels or floating facilities, which are not attached to the seabed, but undertaking similar work, are not within the migration zone and do not require a visa. While the problem is not new, arising from –

1982 amendments:

the problem was recently highlighted –

in Allseas. The court’s holding is referred to:

The decision effectively further reduced the number of non-citizen workers who were required to hold valid visas . . . The decision led to a review of the Migration Act and the current proposal . . .

The Australian Government’s position is that all Australian jobs should be regulated by Australian law . . .

The penultimate paragraph on page 60C:

The visa system is also the way the Australian Government checks for any security risks . . . Incomplete security checking in particular is inappropriate given the economically significant and strategic nature of the offshore resources industry, and the obvious vulnerability to attack . . . When non-citizens do not require visas, the Australian Government has no opportunity to undertake security checks.

Just as they have no opportunity today by reason of the operation of this Determination. On page 60E, under “Background”, at about point 5 on the page, just above the heading “The Migration Maritime Taskforce”:

On legal advice, the then Minister did not appeal the Allseas decision, but it was clear that there was a need for the Migration Act’s offshore provisions to be amended if non-citizens on pipe-laying vessels were to be included in the migration zone.

Then the top of 60I, “The Allseas case was the catalyst for the . . . announcement”. There is then in the second paragraph a relatively simple option of amending section 5(13), “leaving the visa system . . . untouched”. But then in the last paragraph on 60I:

The simple option would not result in truly universal coverage by the visa system, and would therefore not extend security requirements to all non-citizens working in the industry. Some non-citizens would be able to work on vital national infrastructure with no examination of whether they pose a threat to the health or safety –

So we say from this page that the centrality of the objective of reversing Allseas, the problem that is identified, is very plain.

FRENCH CJ: Well, just looking at your outline and so forth, you do not set, as it were, subject to the answer you gave to me earlier, an outer limit for the exercise of the Determination power. You are saying, as I apprehend from paragraph 7 of your outline, firstly, that this just takes us back to the Allseas position and that is inconsistent with the purpose of the legislation, therefore the purpose of the power?

MR WILLIAMS: That is so.

FRENCH CJ: Then there is a more general argument about the exception consuming the rule and so forth, which has a look at the practical aspects of it.

MR WILLIAMS: Well, the exception consuming the rule may blend across all of our arguments.

FRENCH CJ: Yes, sure.

MR WILLIAMS: But, your Honour, with respect, is correct that the first point we put is a narrow and highly orthodox point. Look at the statute, look at the context, why were these amendments made, and look at the Determination. The Determination has, effectively, reversed the amendments and restored the position to that which the Parliament set out to address and therefore the Determination is invalid. And, in that sense, it is a very narrow case and an orthodox one, we say. But we do make other arguments. I will make them as briefly as I can.

GAGELER J: You will take us to the terms of the Determination and explain the scope of the – to the extent exception will you?

MR WILLIAMS: Yes, your Honour, to the extent exception, if I can address your Honour’s question directly, to the extent that the operation uses any vessel or structure that is not an Australian resources installation, put briefly, tugs and barges, and pipe laying vessels and other vessels used in manoeuvring do not attach to the Australian seabed and are therefore, although they would be within “resources installation” in 5(11), are carved out by section 5(13) from the meaning of “resources installation”. Even though they are being used for incidental purposes, within 5(11), the carve-out in section 5(13) means that they are not resources installations and therefore cannot be Australian resources installations.

So, what the determination does at section 501, it starts off with the full amplitude of regulated operations in the Petroleum Act, and regulated activities in the Minerals Act. It then says, but only to the extent that the operation uses a vessel or structure that is not an Australian resources installation.

Now, what that limitation does is to pick up section 5(13) plus one smaller category of vessels in section 5(11)(a)(ii). Seismic vessels, for example, are one category that do not attach to the Australian seabed. So seismic vessels plus tugs, barges, pipe laying vessels - that is the extent. To the extent it is picking up all of the 5(13) vessels and those that are within 5(11)(a), and do not touch the seabed, such as seismic vessels.

In effect, in the 5(13) exception, it is picking up not merely the pipe layers that were considered in Allseas, but all the vessels in the category considered in Allseas because it plainly had the principle declared in that case, which we accept, with respect, is correct. It would apply to all vessels beyond pipe layers, to tugs and barges and all those vessels that do not attach to the seabed. That is the extent.

Your Honour’s question, I apprehend, might also invite me to wade into the swamp of regulated operations and regulated activities in the two Acts. I will undertake that as briefly as I may a little later, but it is complex.

GAGELER J: Yes. I am actually just trying to come to grips with this problem. Before section 9A is introduced, there is really just a geographic definition of the migration zone. So if somebody is on an Australian resources installation, they are in the migration zone. Then, as I understand it, section 9A comes along and produces a functional overlay that captures activities that are on those Australian resources installations, and activities going on around those Australian resources installations.

Now, is the effect of this Determination, in practical terms, to go back to the point that existed before section 9A was introduced at all, or is there some activity that is outside an Australian resources installation that is still left, or does it in fact reduce the scope of the Act’s operation before section 9A? I just do not quite understand its operation.

MR WILLIAMS: In the exposition that your Honour gave, we would add that 9A does not apply simply to activities around resources installations.

GAGELER J: Yes.

MR WILLIAMS: It can apply to activities for the purpose of carrying on – sorry, activities of those participating in or supporting an offshore resources activity. So it has an extended operation in respect of such employees, for example, from the time they come into the country for that purpose - - -

GAGELER J: I see.

MR WILLIAMS: - - - and matters of that kind. So it extends beyond that wider geographic limit. In terms of what is left after the Determination, it has this difference. Certainly all of the Allseas vessels have been returned to the pre-2013 position that includes tugs and seismic vessels. It also has this operation that persons on those vessels are not required to have any visa of any kind.

It does not completely reverse the 2013 amendment because a worker on a drilling rig, plainly within the migration zone both before and after the 2013 amendment, will now require a permanent visa or a visa of a specified class. So such persons have not been - the effect of the 2013 amendments in respect of persons who are on Australian resources installations has not been abrogated. Such persons are still subject to the 2013 amendment, subject of course to a regulation which is not before the Court but I think is before the Parliament.

So that, I think, is what is left of the 2013 amendments. It is the 41(2B) and 41(2C) operation that is left. Perhaps I should take the Court to those provisions at this point. Your Honours will be well familiar with section 41 which is the general power for regulations to provide for specified conditions for visas. Section (2A) was in the Act prior to the 2013 amendments but (2B) and (2C) were added. In (2B):

In addition to any restrictions applying because of regulations made for the purposes of paragraph (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) a permanent visa; or

(b) a visa prescribed - - -

So, people who were otherwise lawfully within Australia with the right to work pursuant to some other visa, for example, a 457 visa, leaving aside for the moment the subject of a regulation that is not before the Court but is before the Parliament, a 457 visa holder cannot undertake this work unless they become a permanent visa holder or a visa holder of a specified class.
That is what is left.

GAGELER J: Yes, thank you.

MR WILLIAMS: Your Honours, perhaps I can go briefly to the conclusion of the regulatory impact statement on 60M. In the third paragraph on 60M, risks with the broader option - and that is the option that was ultimately adopted - notably include that the Migration Act’s coverage would be linked to other legislation which is outside the immigration and citizenship portfolio. This is of course by reason of the reliance on the Offshore Petroleum Act and the Offshore Minerals Act.

Any changes in this legislation would need to be assessed from the point of view of the Migration Act. It is very unlikely that regulation of the resources industry would ever be abandoned. It is proposed that the legislation will be drafted to enable particular activities to be included or excluded from the application of the migration zone.

This we say informs the scope of the power in section 9A(5). Then of course there is the conclusion and recommended option - commitment to ensure all non-citizens engaged in Australian jobs are regulated under the Act. The Minister has made it clear he would like the Migration Act to be amended to address the Allseas decision, then the broader option at the foot of the page provides benefits for all stakeholders and the broader option is in fact recommended.

The second reading speech is to similar effect. I do not need to take your Honour to much of it, but at page 63 of the book at about line 33, there is a reference to:

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.

Then in the paragraphs at the foot of the page, the solution is a regulated visa scheme. The same points are made on page 64 in the middle of the page:

The amendments in this bill will regulate foreign workers -

At about line 33:

a legislative solution that would comprehensively administer the activities -

So we say, again, a broad statement of the rule. Your Honours, in a previous iteration - - -

FRENCH CJ: What does that mean:

the bill will create a power for the minister to make a determination in writing for purposes of defining offshore resources activity.

That is not how you say it works, is it?

MR WILLIAMS: No, we do not, your Honour – danger in explanatory material. Your Honours, the Full Court of the Federal Court dealt with a previous iteration, which is contained in the book from page 164, Australian Maritime Officers’ Union and Another v Assistant Minister. The determination in that case was one that excluded all operations and activities regulated by 9A(5).

That is of course broader in the sense that I have just pointed to in the answers that I gave to Justice Gageler’s questions, that the present determination does leave the visa regime in place in respect of those on Australian resources installations, rigs, vessels that are attached to the seabed, but we say close enough for present purposes. Paragraph 65 is the beginning of the passages of the joint judgment that consider the application of principles. The court observes in paragraph 65 that:

s 9A(1) effectively creates a rule or proposition that a person who is engaged in an offshore resources activity . . . is deemed to be in the migration zone . . . Section 9A(5)(a) and (b) manifest a clear statement of Parliamentary intention to bring within the regulatory ambit of the Act persons who are engaged in operations and activities carried out under the two specified and existing Commonwealth Acts -

Then at the foot of the page, in paragraph 66:

When used in that context, we consider that the term “except” (which appears in s 9A(5)(a) and (b), but not in s 9A(5)(c)) does not denote that the Minister’s power of determination can be exercised so as completely to extinguish the items within the relevant category or class in s 9A(5)(a) or s 9A(5)(b). Indeed, we consider that the term should be given its ordinary meaning -

Their Honours then quote from Cockle v Isaksen:

An exception assumes a general rule or proposition and specifies a particular case or description of case which would be subsumed under the rule or proposition but which, because it possesses special features or characteristics, is to be excluded from the application of the rule or proposition. It is not a conception that can be defined in the abstract with exactness or applied with precision; it must depend very much upon context.

Then in paragraph 67, or perhaps just above that, Justice Williams in Cockle v Isaken:

It is a particular thing or things excepted out of the general thing granted.

We emphasise of course “particular”. Then in 67:

Having regard to these textual matters, we consider that the Minister’s power under s 9A(6) to create an exception to the rule cannot be used to eviscerate a substantial part of the rule -

We say that is what has occurred here by denuding (5)(a) and (b) of any content. Of course, it has not been denuded of any content by the present Determination, but certainly a substantial part of the rule has been eviscerated. Then in the closing words of the paragraphs:

it was not intended that the Minister could use that power to restore the position which existed when Allseas was decided.

Again, we say that is what has happened here. At about line 35:

Properly construed, what the text of the statute reflects is that the Parliament intended that, in the case of s 9A(5)(a) and (b), the scope of the definition of “offshore resources activity” was able to be contracted to some extent but that a level of operation or activity should be maintained beyond that which related to the matters described in –

9A(5)(a) and (b). Then in 69:

we do not accept the Minister’s submission that there is no relevant “rule” because the way in which the Minister exercises the power conferred by s 9A(6) determines the scope -

And in the closing sentence of 69:

That submission is inconsistent with the text and structure of s 9A as discussed above.

Paragraph 71:

The purpose or mischief to which the 2013 Amending Act was directed is apparent in the following passages from the Explanatory Memorandum –

and there is then a long quote in the EM. Then over on page 187 of the book, in paragraph 72:

Those passages indicate the following matters concerning the purpose of the relevant amendments:

(a) the 2013 Amending Act was intended to introduce a new concept into the Act, by deeming a person . . .

(b) an express purpose of the amendments, driven in part by border security considerations, was to regulate foreign workers participating in offshore resources activities by bringing these persons into the migration zone and thereby requiring them to hold a specified visa under the Act –

. . .

(d) the Minister was empowered to make a legislative determination in writing for the purposes of defining “offshore resources activity” to provide the Minister with flexibility to:

(i) exempt from that definition certain operations or

activities –

Then, at the foot of the page, in paragraph 73, at about line 50:

The 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 Act non-citizens who are engaged in operations and activities under the Offshore Petroleum Act or the Offshore Minerals Act.

In paragraph 74, over the page, the conclusion is reinforced, their Honours observed, by the relationship between the Executive and the Parliament. Their Honours then quote from Justice Weinberg in Vanstone, referring first to Pearce, but then in the second half of the paragraph:

while the parliament may empower another body to alter the effect of an Act, that power will be strictly construed. The delegate will not be permitted to destroy the purpose of the empowering Act –

There is then a reference to State of New South Wales v Law, which I will turn to briefly in a moment. Paragraph 75, from about line 30, perhaps is the answer we would give to your Honour the Chief Justice’s earlier question:

The validity of any other determination purportedly made under s 9A(6) will necessarily fall to be determined having regard to all the relevant circumstances and will be guided by the general principle that the power is limited by the subject matter, scope and purpose of the relevant legislative provisions. An abstract bright line which demarcates the boundary between validity and invalidity in this context cannot be drawn. But the same is true of other settings where the question arises as to whether the exercise of a power to make subordinate legislation is authorised by the enabling Act.

We respectfully adopt those observations.

FRENCH CJ: There was nothing said, incidentally, in this case about the provision that Justice Gageler mentioned to you, section 13(3) of the Legislation Act?

MR WILLIAMS: No, your Honour, for my part, no. It has to this point escaped my attention. I will let others speak for themselves. I will endeavour to deal with it. In a sense, the answer we would give is, true it is that it can be defined by reference to a class or classes of matters, but there still needs to be a reference to a class of operations, or a class of activities. What has occurred here is a wholesale definition of all activities to the extent that those activities - - -

FRENCH CJ: Well, you say there is an umbrella limit anyway, even if one reads 13(3) into the exception power, or the determination power.

MR WILLIAMS: Yes, that is so. There has to be an identification of a class and there is none here, because it has not identified – for example, conceivably, there might have been a determination that identified operations carried out for the purposes of exploring for petroleum within a particular permitted area, and such operations as are necessary for the purpose of carrying out that work. That, in one sense, would be a class, but if one says all activities to the extent to which they use particular kinds of vessels, we would say that is not a definition of a class of operations or activities, but rather a wholesale picking up of operations and activities and an exempting by reference to a different discrimen to the one that the Act imposes – operations are activities – a discrimen related to particular vessels, not particular operations or activities, or classes of operations or activities.

State of New South Wales v Law, a decision of the Supreme Court of New South Wales in the Court of Appeal – the legislation had some complexities. Page 69 is perhaps the best statement of the scope of the 1987 superannuation legislation. In the first paragraph under the heading, “Terms of the legislation and of the order” - if I could invite your Honours to read that paragraph. Then, at the foot of the same page:

Unsurprisingly, there is no express provision in the Act for the scheme to be closed to eligible employees who elect to contribute.

Then, on page 70, about point 5, the power invoked that was in issue in this case:

The power invoked to make the order which is now in question is found in s 46(1) of the 1987 Act –

in Part 6, dealing with miscellaneous matters, and there are then some examples of those. Section 46(1) of the 1987 Act, in the last full paragraph on page 70 –

deals mainly with amendments to Sch 1, providing for the insertion of the name of new organisations amongst the “employers” of the State (s 46(1)(a)); the omission of the name of “employers” . . . (s 46(1)(b)); the omission of an “employer” which has ceased to exist . . . addition of a new Part . . . And then there appears the short provision which is said to give rise to the power exercised here –

That is a power to amend Schedule 2. His Honour Justice Kirby reflects at the foot of the page that “on the face of things” – going over to the top of page 71:

it would seem an odd suggestion that such a vehicle, apparently permitting the exclusion of specified “persons” could be used, in effect, to exclude all persons for the future –

His Honour passes on. Then the order is dealt with further down on page 71, at about point 8 on the page:

I have now come to the order itself. By it, and purportedly pursuant to the power conferred by s 46(1)(f) of the Act, the Governor . . . “with effect on and from 16 August 1992, by inserting after clause 2 . . .

“Exclusion as from 16 August 1992.

(3) (i) For the purposes of the definition of ‘employee’ in section 3(1) a person is an excluded person unless he or she:

(a) is a contributor on 16 August 1992; or

(b) has lodged . . . an election to contribute –

The argument that the State put in support of what was, in effect, a closing off of the scheme is found on page 72. At about point 2 on the page, in the line beginning with the reference to section 3(1):

The power to “amend” was given without express limitation. Indeed it was afforded without the specificity with which s 46(1) of the Act dealt with the amendment of the list and names of “employers” under the Act. It was therefore at large: controlled only by the meaning of “amend” as derived from its ordinary connotation –

There is then a reference to the Interpretation Act: “amend” includes “alter and vary”. Then, at about point 8 on the page:

It was pointed out that the Executive was directly accountable to Parliament. Although in this case the order had not been subject to disallowance . . . it would always be open to Parliament to make plain its disapproval –

So arguments that are, in a sense, reminiscent of those advanced by the Minister here. The conclusion his Honour Justice Kirby reaches is on page 75. At about point 4 on the page, just at the conclusion of the first paragraph:

I am of the opinion that so to stretch the meaning of “amend” in 46(1)(f), viewed in its context, is virtually unarguable. What has been done is to misuse the power to amend the Schedule conferred by Parliament in effect to amend the entirety of the Act with a consequence that its operation is suspended, or even effectively repealed, for persons who in future elect to contribute and who are otherwise indubitably “employees” –

Further down the page Justice Kirby quotes from the Court of Appeal of New Zealand:

It is an important constitutional principle that subordinate legislation cannot repeal or interfere with the operation of a statute except with the antecedent authority of Parliament itself.

The concluding sentences:

the Courts will not accept that Parliament has intended its own enactments to be subject to suspension, amendment or repeal by any kind of subordinate legislation at the hands of the Executive unless direct and unambiguous authority has been expressly spelled out –

Then on page 89 - Justice Mahoney dissented - but on page 89 Justice Priestley in the passage that Justice Weinberg quoted that is set out in the Full Court decision I went to a few moments ago, at the foot of page 89, the last full paragraph:

The Act as a whole gives every indication that the Fund is to be a continuing one. Its purpose may of course be changed by Act of Parliament and Parliament may at any time turn the continuing Fund into a closed one if it chooses to do so by statute. Until Parliament takes such a step however the Act continues on foot for its own purposes, these only being discoverable . . . from within the Act itself. Those purposes will continue unless and until changed by Act of Parliament; they cannot be changed by any use of an amending power conferred by the Act upon the Governor. The amending power must be used by the Governor to fulfil the purposes of the Act, not destroy them.

Now, your Honours will appreciate from what I have already said that the first basis upon which we argue for invalidity was that whatever else the 2013 amending Act was intended to do, it was intended to effect a wholesale or complete reversal of the functional position in Allseas, that workers on non-attached vessels in the offshore industry were not in the zone and did not need visas.

What the Determination has done is to entirely negative one of the two key aspects. The first aspect, one might say, in terms of the primacy, that it is given in the explanatory material of the 2013 Act. The Minister says that there is an exempting power but it is no answer, with respect, a power to make an exception presupposes a rule. What this Determination does is to obliterate the rule clearly stated in response to Allseas.

BELL J: Can I just take up one matter and it arises from your answer to Justice Gageler’s question earlier concerning the effect of the Determination on the operation of section 9A? I understand you acknowledge that the 2013 amendments survive in relation to the operation of 41(2B) and (2C) on persons who were within the migration zone but who were not required to have a permanent visa or a visa of a specified class prior to those amendments. But am I right in understanding that you say with respect to 9A and its deeming of an extension to the migration zone, with respect to certain activities, that the Determination wholly reverses the effect of 9A?

MR WILLIAMS: Yes.

BELL J: Yes.

MR WILLIAMS: So, putting it slightly differently but I apprehend in the terms your Honours put it to me, the overlay on Australian resources installations subsists but the rest is gone.

BELL J: Yes.

MR WILLIAMS: Turning then to the second and third bases of invalidity, to which it is not necessary to turn if our first point is good, the exception of all operations and activities, to the extent to which they use 5(13) vessels and 5(11) survey-type vessels, is so substantial a part of the definition that it is not an exception properly so-called and we put that first by reference to the magnitude of the exception, the practical operation in a sense, put in the way in which I - - -

FRENCH CJ: So you construe “exception” as having some sort of factual dimension?

MR WILLIAMS: We construe it as raising a question of practical operation. Now, we can say that practical operation, we could make this point without reference to the number of workers who are affected and we do accept in answer to what your Honour the Chief Justice put to me first this morning, that these numbers will vary from time to time and indeed, if this Determination is valid, one would expect that the numbers of foreign workers would go up once questions of validity are resolved. We refer to the numbers simply to make the point that the practical operation is very substantial. Now, whether it is 30 per cent, 50 or 70 or 20 or 90 - - -

FRENCH CJ: But you would say that as a matter of construction the word “exception” has a scope that does not extend to a determination that has this practical effect.

MR WILLIAMS: Yes, because the practical effect is so substantial. We illustrate that by reference to the figures for the last five years but we do not depend on it. We can say that the practical operation is that great simply by looking at the categories of workers. The evidence in a sense is of assistance in understanding the kinds of operations that are in question. Perhaps I could take your Honours into the Court book, first at attachment 4, to illustrate the kinds of vessels that are in question - page 264, attachment 4 to the expert report put on by the Minister.

The categories of vessels are set out really across four pages. The first is on 264 dealing with exploration and the first of these is a seismic survey vessel. It is a mobile vessel, going across item 1, does not touch the seabed. There is a reference to “Definition Category”. This is a reference back to page 252 of the book where the expert identifies the particular categories that he is addressing. So on page 252, “mobile unit”, the vessels in paragraph (a)(ii) are the section 5(13) vessels – I am sorry, (a)(ii) in the chapeau up to the words “but not including”; the words in the chapeau:

operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (i) –

That is section 5(11). From there on, “but not including vessels”, that is section 5(13). That is the 5(13) exclusion. Going back to page 264, the definition category of a seismic survey vessel is an (a)(ii) vessel at the top, and there is then a reference to the hours. The expert then goes through a range of vessels in this class and deals with them in that way – I do not need to take the Court to them.

The next page, 265, deals with construction vessels. As an example, item 7 is a platform drilling rig. It is a fixed structure that is attached to the seabed. Over the page, 266, at the top of the page, the vessels in the first three categories – certainly in the first category of 10, small pipe lay barge; for example, a Jascon 25 – they are the particular vessels in Allseas, but the categories are all there set out - tug and barge, cargo and pipe supply vessels.

Then, going over to page 268, the third category, which is production, is set out. In a sense, that is straightforward enough. The only one that need be noted is on page 269, the last item, “Inspection, Maintenance and Repair”. This is the only matter of controversy in relation to the facts. The expert opines that these vessels do not touch the seabed. In a sense, it is contrary to our interests to disagree with him, but factually, we do not accept that position because the vessels and indeed the people – divers, for example – will tether to the thing that they are repairing, and therefore become attached to an Australian installation. But little turns on that, for present purposes.

The previous attachment, attachment 3, which is found at page 262, has all of the Australian offshore man-hour data for 2011 to 2015 and the percentage of foreign national. Down the page, down the left-hand column, are the three categories of exploration, construction or production, and across the page at the top of the page the years from 2011 to 2015.

It is not especially easy to read, but if one looks at mobile units, in the left-hand column, the second category, not touching the seabed, for example, survey vessels, in a sense these are the 5(11) incidental vessels, and then the reference “Not Mobile Unit” is a reference to these vessels being excluded by section 5(13). They are mobile in the ordinary sense of the word but they are not within the definition of mobile unit because of 5(13).

So those two categories, “Mobile Unit not Touching Seabed” and “Not Mobile Unit” in each of the headings down the left-hand column, are the activities caught by the Determination. Those we have reduced to a table in our written submissions which is, from page 11 of our table, the percentage of vessels or structures that are not Australian resources installations. We get the figures down the foot of page 11 between 44 per cent, which is the lowest, and 56.3, which is the highest, but around 50 per cent of the activity in question.

There is some debate in the submissions about the comparisons and the Minister seeks to draw a comparison between the percentage of foreign worker hours caught by the Determination and the whole of the man hours in the industry.

We say – and this is in our reply in paragraph 13 – that there are really two valid comparisons that might be made. One is, as we have done in the table I have just gone to, between the total man hours worked in the industry and those caught by the Determination, or alternatively, if one is to focus on foreign workers, it would be between the foreign workers affected by the Determination and the whole of the foreign workers in the industry.

We set those figures out in our reply submissions and indeed they are somewhere around the two-thirds mark rather than the 50 per cent mark - 54.5 is one but going up to 76 per cent. The Minister says that it is valid to make that particular comparison because the Determination does not affect citizens. We do not accept that; it does affect citizens because it impinges on their existing privilege to work in the industry without a visa. It is currently an exclusive privilege and the Determination reverses that exclusivity.

FRENCH CJ: What is the privilege?

MR WILLIAMS: At present, citizens can work in the industry without requiring any particular permission. The only non-citizens who can work in the industry - - -

FRENCH CJ: It is certainly nothing to do with visas. Citizens, by definition, do not have visas.

MR WILLIAMS: That is so, but, in a sense, the current position is that citizens enjoy an advantage by comparison with - - -

FRENCH CJ: They may enjoy a competitive advantage because they do not need a specific permission to be in the migration zone.

MR WILLIAMS: That is so, to undertake this work.

FRENCH CJ: Well, to do anything.

MR WILLIAMS: That is so, but there is an additional element here. The effect of the 2013 amendments is that either a permanent or a specific visa is required.

FRENCH CJ: Yes, I understand; for non-citizens.

MR WILLIAMS: For the non-citizens. But what has occurred here is the reversal of that, such that - - -

FRENCH CJ: I understand all that. It was just that the notion of privilege was - - -

MR WILLIAMS: Perhaps it is not put with precision, but your Honours understand the point that we make. This is a point with real practical implications for conditions in the industry.

GAGELER J: Mr Williams, can I just relate the table at page 262 to the instrument at page 201. Looking at the words in the instrument:

to the extent that the operation uses any vessel or structure that is not an Australian resources installation –

I understand that is to catch what is described at page 262 as “not mobile unit”.

MR WILLIAMS: Yes, and “mobile unit not touching seabed”, the one above that.

GAGELER J: Just those two things.

MR WILLIAMS: Just those two.

GAGELER J: Thank you.

MR WILLIAMS: But in each case there are such categories for each of exploration, construction and production. When one totals up those figures, they come to the roughly 50 per cent that we have referred to as coming from our table, but it is those two lines. The “touching seabed” is not affected by the Determination.

GAGELER J: Thank you.

MR WILLIAMS: As well as the quantitative effect, we also refer to the exclusion, and this is, in a sense, our third point. There are whole categories of participation in the industry. The scope of operations and activities is informed, indeed controlled, by the definitions in the Offshore Petroleum Act and the Offshore Minerals Act to which it is necessary to make brief reference. The key point that we make here is relevant both to the third way in which we put the case, which overlaps with the first, but also to our fourth ground of invalidity, which is ground 4a.

The key point is that operations and activities within those Acts are specific as to the operation or activity – for example, explore for petroleum, carry on operations necessary for those purposes within the permit area. It is closely confined as to the areas within which they can be carried out. In respect of at least substantial categories of the work, it is confined as to the period within which they can be carried out. We rely on that as suggesting an inconsistency with the wholesale approach taken by the Determination.

Within the Offshore Petroleum and Greenhouse Gas Storage Act, there are a few definitions that are of relevance, perhaps for illustrative purposes. For example, if I could start with “lease area”, which is defined in section 7 of that Act. “Lease area” picks up as to the other definitions:

[an] area constituted by the block or blocks that the subject of the petroleum retention lease –

Now, “licence area” on the same page has the same construct in paragraph (b) –

the area constituted by the block or blocks –

and so does “permit area”, a couple of pages further over. That takes us back to the meaning of “block”, and “block” means:

a block constituted as provided by section 33 or 282.

Section 33 is sufficiently illustrative for present purposes, “Graticulation of Earth’s surface and constitution of blocks”. The surface of the area is taken to be divided by the meridians from Greenwich, the meridians of longitude from Greenwich by a “multiple of 5 minutes”, and:

by the equator and by parallels of latitude . . . from the equator of 5 minutes, or a multiple of 5 minutes, of latitude –

So blocks that are roughly taking latitude which is reliably assessed by reference to minutes, about 5 nautical miles of latitude. There is an illustration of those on the following page, where there is a map for illustrative purposes. The map does have some of its own disadvantages in that the blocks do not appear to be even. That is probably as far as I need to go with it.

If I could take your Honours through to section 95 of the Act, the simplified outline; bearing in mind that it is operations to which Chapter 2 and Chapter 3 apply that are picked up in the Migration Act, section 9A(5). There is a reference to the grant of titles, and a reference to what the titles do – a “petroleum exploration permit”, for example:

authorises the permittee to explore for petroleum in the permit area - - -

FRENCH CJ: Does all this go to – this is, I think, picked up in 12 to 15 – does this all go to the particularity with which it is possible to identify operations?

MR WILLIAMS: That is so.

FRENCH CJ: That is all.

MR WILLIAMS: Not merely the particularity with which it is possible to identify operations, but the particularity with which the Act, in 9A(5), identifies operations. The discrimen that it uses in identifying operations are these definitions here, these operations.

FRENCH CJ: Because it picks up regulated operations?

MR WILLIAMS: That is so, and when one goes to regulated operations, one finds that they are quite specific as to the operations. They are limited as to the licence area, for example. If one goes over to 98, there is a series of illustrations – I do not need to go to them all – in the simplified outline. Section 98, dealing with an exploration permit, is perhaps sufficient to illustrate how the provisions work, because they are all in similar form:

A petroleum exploration permit authorises the permittee, in accordance with the conditions (if any) . . .

(a) to explore for petroleum . . .

(b) to recover petroleum on an appraisal basis –

in each case in the permit area, and then:

(c) to carry on such operations, and execute such works, in the permit area as are necessary for those purposes.

So, the definitions are highly specific in the way in which they operate and it is that which Parliament has picked up in 9A(5). Duration - section 102 - is dealt with for petroleum exploration permits. Those are limited for a period of six years with five years by way of renewal. Boundary changes, not all rights are so limited but exploration licences, retention leases, production leases are all temporarily limited.

So the way in which we put the point is that the definitions - I should say there are similar provisions in the Minerals Act. For example, if one goes to the Minerals Act, section 4 has the definitions of “block” licence, “licence area”, et cetera. Section 46 is a provision that illustrates how the rights are conferred in that Act:

Subject to subsection (2), an exploration licence holder may:

(a) explore for minerals in the licence area; and

(b) take samples of minerals in the licence area.

So, they are highly specific. So, the way in which we put the point is that 9A(5) has picked up a very specific definition but limited functionally, geographically and in most cases temporarily, but the way in which the Determination operates is not to pick up any operation, or we say any class of operations or any activity or any class of activities but rather to say, all operations and all activities to the extent to which they use these kinds of vessels. We say that the Determination has not used the discrimen that the exception power in the Act provides.

FRENCH CJ: You said it was not necessary for your case to confine the exception to single operations defined by reference. You would accept that a determination could apply to a number of operations defined by reference to blocks or licences or leases or whatever, picking up the notion of the regulated operation definition – Chapter 2 - and activities, but it stops once you get into sort of general classes?

MR WILLIAMS: Well, we say that the questions your Honour the Chief Justice raises are questions for another day because there will be questions of scope and degree and as we have already seen they may well arise again in very particular form but our primary - - -

FRENCH CJ: Well, basically it comes to this. We cannot say what the limit is but this is plainly beyond the limit.

MR WILLIAMS: That is so. That is all that a court in a sense can ever do when it is dealing with validity of subordinate instruments. It is not possible, as I think the extract that we went to, to draw bright lines. We would say, as a primary position that an operation or an activity is the subject of the exception but we do not need to go that far for today’s purposes because whatever the limit, the wholesale abrogation of the key plank of Allseas goes beyond it.

NETTLE J: You do not have to go to wholesale abrogation, though, if you succeed on this different discrimen argument, do you?

MR WILLIAMS: No.

NETTLE J: That would stand by itself to win the case for you?

MR WILLIAMS: That is so. In a sense, the first and the fourth arguments would stand by themselves. Indeed, although the second and third arguments are in a sense related to the first they may well suffice too. But certainly the first or the fourth would be sufficient. In a sense, the point that we make is illustrated by the Shop Distributive and Allied Employees Association Case (1995) 183 CLR 552.

Again, as with all these cases, they depend on the particular provisions of the legislation. But the point is usefully analogous. The power in section 5, which is set out on page 555 of the joint judgment – section 5 gives a power to the Minister to issue a certificate of exemption in relation to a shop specified – this was a Sunday trading case – subject to conditions or restrictions specified in it. Section 13, on page 557, gave the Minister a power by proclamation order that closing times or such other closing times as are specified apply as from a time specified in the proclamation. On page 557, at about point 5 on the page:

The effect of s 13 is that the Governor may alter closing times generally by proclamation, but may only do so where the Minister certifies that a majority of interested persons desire that the proclamation be made.

Then at the foot of page 559:

In an Act dealing with shop trading hours, the use of the word “exempt” without qualification indicates in our view an intention that an exempt shop should stand outside the regime with respect to shop trading hours which the Act lays down. The use of that word certainly does not suggest that the power to issue a certificate of exemption was intended to be a power to lay down an alternative regime in relation to trading hours. True it is that a certificate of exemption may be subject to specified restrictions and conditions, but a partial exemption, that is, an exemption confined to particular hours on a particular day of the week, can hardly be regarded as a complete exemption subject to a restriction or a condition.

Your Honours will appreciate that we say that this is analogous to the point we put in respect of the fourth ground, that a different discrimen has been used. Your Honours, unless there are matters with which I can assist, those are our submissions.

FRENCH CJ: Thank you, Mr Williams. Mr Donaghue.

MR DONAGHUE: Your Honours, since 1982, the Migration Act has provided that all offshore resource operations or activities that take place on what the Act originally called “offshore installations” but what are now called “Australian resource installations” take place within the migration zone. The provisions that had that effect from 1982 remain in the Act in substantially identical terms to the terms in which they were introduced and they operate in parallel with the new regime that section 9A created when it came into effect in the middle of 2014.

There is very substantial overlap between the core definitions, if I can call them that, that have been there in relation to offshore institutions since 1982 and the 9A regime, so that the overlay includes everything that was there already, including relevantly through the Australian resource installation interlinked definitions and potentially a further area of operation functionally related to activities that take place in connection with the offshore industry.

But the fixed set of definitions with the long history remain and are not subject to any capacity for ministerial variation by reference to a determination power or otherwise, so that the Act has an inflexible core area of operation in relation to the offshore industry and it then has the further potential operation given to it in relation to 9A but where 9A overlaps with the core there is no capacity for ministerial variation.

Because both regimes remain there, your Honours, we submit the appropriate place to start is with those core or original definitions. Mr Williams has taken your Honours through most of them and I will not repeat that analysis, but there are a few provisions that we submit it is necessary to highlight.

Without going back through them, your Honours have seen the migration zone, with a geographical definition in section 5 that has a number of limbs, one of which is “Australian resources installations”. That term is defined to include resource installations and the definition of “resources installation” takes you to either resource industry fixed structures or resource industry mobile units in 5(10) and 5(11). If your Honours would go to 5(11), which is the mobile unit part of the definition, you see quite a complicated definition with multiple subparts, but it starts at 5(11)(a) with:

a vessel that is used or is to be used wholly or principally in:

(i) exploring or exploiting natural resources by drilling the seabed or . . . by obtaining substantial quantities of material from the seabed -

Now, it is apparent from those two limbs that those vessels have to be touching the seabed, either to drill or to recover material from it, and because they are touching, by reason of the definition in 5(14) of the Act, they are taken to be attached. So any mobile unit that falls within (a)(i) is necessarily an Australian resource installation and it is in the migration zone, no matter what the Minister does or does not do under 9A. Under 11(a)(ii) there is a further category of vessels engaged in operations or activities. So here there is some focus on what the vessel is doing:

operations or activities associated with, or incidental to –

the drilling or material collection activities that we have just seen and those vessels, too, are within the core fixed meaning of the migration zone from the moment they touch any other resource installation. So until that point in time they are not within the core definitions but the moment they touch they are thereafter within the migration zone and, again, there is no ministerial capacity to affect that. But, very importantly - - -

GAGELER J: I am sorry, where does the touching come into it?

MR DONAGHUE: The touching comes from 5(14), your Honour.

GAGELER J: I see.

MR DONAGHUE: So:

taken to be attached to the Australian seabed if –

and there are two limbs in 5(14) - (a) is in direct contact with the seabed and (b) is in physical contact with another resource installation that is in contact with the seabed. So you can have indirect touching by - mooring, for example, to a drilling platform would be enough to bring the vessel that has moored with the drilling platform within the migration zone - - -

FRENCH CJ: A kind of electric current.

MR DONAGHUE: Tying - so, now, your Honour, going back to 11(a)(ii), these are the vessels associated with or incidental to (i), once they come into contact within the zone, but that particular paragraph is the subject matter of 5(13) about which your Honours have heard a little this morning and 5(13) modifies that particular operation of 11(a)(ii) so that vessels that are being used wholly or principally for the identified purpose are deemed:

shall be read as not including a reference to a vessel that is used or is to be used wholly or principally in:

either of the two identified activities:

(a) transporting persons or goods to or from a resources installation; or

(b) manoeuvring a resources installation, or in operations relating to the attachment of a resources installation to the Australian seabed.

So that there is a very specific legislative exclusion from what would otherwise occur in relation to those vessels. That was the exclusion that lay at the heart of the decision in Allseas [2012] FCA 529; (2012) 203 FCR 200. If I could just ask your Honours to go briefly to that decision – so this, as your Honours have heard was a case about whether pipe laying vessels were or were not within the migration zone and a declaration was sought to the effect – by Allseas to the effect that their pipe laying vessels were not captured by the core definitions.

If your Honours turn to page 214 which is the second page of Justice McKerracher’s analysis which starts on page 213 you will see at paragraph 69 at the bottom of 213 that section 5(13) is quoted and then his Honour says at paragraph 70:

The Lorelay and Solitaire –

which were the two pipe laying vessels:

will not fall within the second part of the definition in s 5(11)(a)(ii) because there is an exception in s 5(13) which excludes [them] from the second part of the definition –

that is, they were manoeuvring the resource installation or attaching it to the seabed. The pipe itself is a resource installation, so when you are manoeuvring it on to the seabed the exception applies. That point is made in paragraph 71 and then in 72 his Honour says:

Consequently a vessel used principally in manoeuvring a pipeline . . . will fall within the exception in s 5(13).

At the bottom of the page, paragraph 77, his Honour points out, in the last two lines:

They will clearly be used wholly or principally in operations relating to the attachment of a pipeline to the Australian seabed within the meaning of s 5(13)(b).

At 81:

The pipelay vessels will clearly then manoeuvre the pipeline into place. It follows that, by reason of their coming within the exception in s 5(13)(b) of the Act, the Lorelay and Solitaire will not be “resources industry mobile units” and therefore will not be “resources installations” or “Australian resources installations” within the meaning of the Act.

At 82 his Honour makes the point, by reference to the extrinsic material about the 1982 amendments:

The Second Reading Speeches suggest that the provisions in the Act relating to “resources installations” were intended to apply to drilling platforms and rigs and that Parliament did not contemplate that the provisions would apply to pipelay vessels. It is arguable the inclusion in the Bill of the exception which is now s 5(13) of the Act suggests that Parliament was mindful to ensure that the new provisions would not apply to such vessels.

That is, 5(13) is not an accident; it is an express legislative exclusion in relation to activities of the kind that are identified in those subsections. If there be any doubt about the basis for the decision in Allseas your Honours will see at paragraph 89 that the relief granted, the declaration that was made, expressly referred to 5(13) and said that by force of that section the pipe layers were not resources installations.

We take your Honour to that because our friends, both in their own submissions and by reference to the second reading speeches, have referred to this area of operation as a gap in the regime in the Migration Act. In our submission, it cannot properly be characterised in that way. There is a prescriptive set of interlinking definitions in one of which Parliament has identified activity taking material to or from a resource installation, or manoeuvring it, and has said expressly in terms these things are not Australian resources installations. That is all that Allseas recognised. His Honour just read the Act and said well, this is what the Act says.

When our friends submit to you, as was repeatedly submitted this morning, that 9A was intended to reverse the decision in Allseas, we submit that is, with respect, an overly simplistic categorisation of what Parliament did. It undoubtedly responded to the decision in Allseas by enacting section 9A, but it did not reverse it, because the evident and obvious way to reverse the decision in Allseas, if that was Parliament’s intention, was to repeal section 5(13) – and all Parliament needed to do, if it wanted to ensure that all of these vessels and activities were within the migration zone, was to take out that subsection and then they were all in and there was no need for a more complicated regime to respond to the problem, if it were perceived to be a problem, that had been highlighted by that case.

In fact, we can see from the regulatory impact statement that Mr Williams took you briefly to, and it is the pages that were left out of the book, and relevantly it is 60I, that thought was given to doing that very thing. One of the options that were on the table post the decision in Allseas to respond to it was to amend 5(13). That was described on 60I as the simple option to address the Allseas Case.

It is an option that, in terms of the discussion on that page and on the following page, was not adopted in recognition of the fact. It seems that that form would not have been comprehensive, it would not have captured everything, all of the activity in the offshore industry. That is true because while it would have captured all of the vessels of the kinds identified in 5(13), there is a very small category of activity, the mobile units that never physically come into contact with either the seabed or a different installation that is in contact with the seabed – the seismic survey vessels, for example – that would have remained outside the regime of the Migration Act.

The expert report tells us that is about two or three per cent of the activity in the industry, that residual category, but certainly the major activity identified in Allseas, the overwhelming majority of the offshore resource activity that is not currently regulated, or that was not at the time of Allseas regulated, would have been regulated by a repeal of that kind.

In our submission, the decision not to repeal section 5(13) only makes sense if it was not Parliament’s intention to ensure inflexibly that every vessel of a kind that falls within 5(13) falls within the Migration Act – that is, the retention simultaneously in the Act of the power in 9A on the one hand and 5(13) on the other hand makes sense only because of the discretion to adjust the deeming under 9A.

The reason I say that is because the only thing that 5(13) does is deem some things not to be in the Migration Act – that is its sole operation. On our friend’s case, 9A deems them all back in again, subject to a very narrow exception power. So the provisions substantially contradict each other. When you read 5(13), you think particular activities are out and then you read 9A and you think that they are back in again.

The harmonious reading of those provisions, in our submission, is that far from intending a straight-out reversal of Allseas, what Parliament had in mind was a more sophisticated response, which was to bring those activities within the migration zone as a starting point – undoubtedly it did that in 9A(5) – but then to give the Minister the power you see in 9A(6) to change that starting point.

FRENCH CJ: You use the word “adjust”.

MR DONAGHUE: Yes.

FRENCH CJ: You accept that there is some limit coming out of the term “accept”.

MR DONAGHUE: I do.

FRENCH CJ: Is it just being used as a synonym for “accept”?

MR DONAGHUE: I was using it in that way, your Honour. I do accept that there is a limit coming from the word “accept”; I do not agree that the limit is as extensive as the limit that Mr Williams would urge, but we acknowledge the force of the Full Court’s judgment in the AMOU Case that you cannot use the power to accept to consume the rule, as had been purportedly done by the Determination that was held invalid in that case.

FRENCH CJ: Is that the only limit?

MR DONAGHUE: That is the only limit arising from the word “accept”. We submit that there are some other limits and, your Honours, if you have our oral outline you will see that I will shortly come to the way that we say 9A(6) works and the limits that are to be identified on that power.

But just before I get to that, your Honours, can I ask you to turn in the special case book to page 243, which is within the expert report, to give your Honours a feel for factually why it would be a readily explicable result not to just put everything within - that it falls within 5(13), automatically back into the migration zone, the full reversal of Allseas that the plaintiffs urge on the Court. So, if your Honours would look on 243 in the middle of the page, there is a line:

Regarding question b. -

and what the expert was here addressing is the question of whether, what he calls “not mobile units” which are all the vessels that fall within 5(13). So, whenever the expert says “not mobile units”, that is what he means:

whether these not mobile units do or not enter Australian port –

is what he is talking about, and then if your Honours go to about line 52 or 53 on that page, he deals with a distinction to be drawn. He says:

The main issue here is the difference between vessels which are coming in Australia to do actual work and vessels which bring cargo into Australian waters and then depart.

Now, if the vessel is bringing cargo in, it is bringing goods to a resource installation so it falls within 5(13)(a), bringing either goods or people is one of the things that can make you fall within that exclusion:

Vessels bringing cargo from overseas mostly do not come into Australian ports, whilst vessels coming to do work may or not . . . notably, these units that just bring cargo to an offshore project mostly are 100% manned by foreign nationals and personnel generally do not clear immigration (only off-loaded goods clear customs). That is quite different from all the units that do actual work. Those units have both their personnel cleared by immigration and their goods cleared by customs, even if many such units typically swap over the majority of the crew to Australian personnel in the last foreign port of call and do not come into an Australian port.

Here there are a number of categories of vessels:

Hence, tugs that pull cargo barges destined to an offshore installation (with pipe or mooring chain or seabed structure), tugs that pull semi-submersible or jack-up rigs into Australian waters, bulk carriers that bring large quantities of pipe for pipelaying, HLVs that bring elements to be installed offshore, all these vessels quite commonly (but not always) are entirely foreign crewed because they are just engaged in international shipping. However, the foreign crews on these vessels do not actually do any active work with or upon the goods they ship. They typically hand over to vessels with Australian crews (e.g. the tug pulling the rig passes the rig to Australian anchor handlers for installation, or the pipe barges are passed to Australian tugs . . . Australian workers come on board the barges or HLVs or bulk carriers to do the rigging and man cranes to offload the goods). But all this generally happens offshore –

Now, if it were not for 5(13), these vessels that are engaged in international shipping, that do not come into Australian ports but just sail directly to the offshore installation and, for example, offload bulk pipes to the pipe laying vessels and then leave again, with all of the actual work that is done in that area being done by an Australian crew that comes on board which is handed over to, those vessels engaged in international shipping, dropping off and leaving again, would all require Australian visas, of the permanent kind or of the prescribed kind, even though they are not doing any work in relation to the industry because, if it were not for 5(13), they would – sorry your Honours, I will start that again.

Those vessels are clearly engaged in activities of a kind that would fall within 9A. And if they touch the resource installations they would also, but for 5(13), fall within what I have called the fixed or the core definitions. So that I go to these facts to illustrate why it is, from a practical perspective, plainly appropriate that the Minister has the discretion granted by 9A(6) to control the extent to which vessels engaged in activities of this kind do or do not require Australian visas.

BELL J: Just to understand the practicalities of it, the example that you posit of the ship simply engaged in international trade and delivering a quantity of pipes to a rig, does it not have to touch the rig to hand over the pipes?

MR DONAGHUE: One would expect so.

BELL J: I just do not know that I understand the practicality of that illustration. If there is a problem, the problem exists, does it not, in any event? There would have to be a touching, would there not?

MR DONAGHUE: Because of 5(13), even when you touch, those vessels are deemed not to be. They do not come within the migration zone despite the touching because 5(13) ensures that that is so. That is the work that that section is doing.

BELL J: That I understand, yes.

MR DONAGHUE: So that if Parliament had repealed 5(13) because it had wanted to make sure that every single vessel of a kind that is engaged in offshore resource activities would be regulated under the Migration Act, then the consequence would have been the consequence I identified – all these people in international shipping would need to have the visa. Instead of doing that, Parliament keeps 5(13) and says, well, in my submission, it may or may not be desirable to extend the migration zone to activities that are taking place in connection with these offshore resource activities, so I will create in section 9A a starting point that says if you are facilitating, participating in these activities, then the migration zone will reach to you.

But at the same time as giving the zone that extended operation the Minister is given a power, as was referred to in the second reading speech that your Honour the Chief Justice noted, to adjust the definition, because the extension is an extension only to the extent of the content of the defined term “offshore resources activity”. And the content of that defined term starts with what is regulated under the two identified acts – the Minerals Act and the Petroleum Act – but it does not end there. The content of the defined term is a combination of what is regulated under those Acts and what is decided by the Minister in the determination under 9A(6).

GAGELER J: Mr Donaghue, I may be missing the point of you taking us to these pages, 243 to 244. Where you have a vessel that just brings cargo to an oil rig, are you saying that that vessel is engaged in an offshore resources activity, as defined?

MR DONAGHUE: Yes.

GAGELER J: I see.

BELL J: And that is because you say it is supporting by the limit.

MR DONAGHUE: Exactly, because it is supporting the activity that is taking place on that vessel.

GAGELER J: What statutory language do we need to read to pick that up?

MR DONAGHUE: If we go to 9A(1):

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.

GAGELER J: I see. So the word “support” picks up delivery of cargo?

MR DONAGHUE: Indeed. The easiest example might be the delivery of the pipe itself. If the activity is a pipe laying activity, then the delivery of the pipe to be laid, in my submission, clearly supports that activity, but the same would be true of food to the workers or the delivery of any other material to enable that activity to continue to take place.

In my submission, underpinning the regime that Parliament chose in response to Allseas was not a straightforward, “That case is wrong. We will reverse the outcome of it,” because had that been the intention it was readily achieved just by repealing the section which caused the result in Allseas, which everybody understood to have caused the result in Allseas. Parliament chose to do something quite different. It chose to create a discretionary concept of the migration zone to overlay the fixed concept that the Act already contained.

NETTLE J: If that were the intent, why would it not have provided that it will extend to such operations as the Minister may determine by regulation or otherwise?

MR DONAGHUE: Your Honour, in my submission, that is close to what it did do in that it gave a starting point. It said, “We will extend to all of these activities under the two Acts”.

NETTLE J: To all of these activities, subject to exceptions.

MR DONAGHUE: Subject to exceptions.

NETTLE J: That is a long way from “such as he might include in his discretion”.

MR DONAGHUE: In my submission, that then drives one to a question as to the width of the power, to the construction of the power that is confirmed under 9A(6).

NETTLE J: It does, indeed.

MR DONAGHUE: And as I said in answer to the Chief Justice, we accept that it is different from what your Honour posits in that one cannot say that there is to be nothing that is to be covered under that operation. But this Determination, in our submission, is a very long way from doing that.

KEANE J: Is not the effect of having the general rule, which does reverse, at least as a general rule, the effect of the Allseas decision? Is it not such that the exceptions then must be justified by considerations which are consistent with the existence of the general rule? There might, for example, be cases where, because of the economics of a particular operation the Minister would exempt from the general rule, but each of these decisions would be particular to the exigencies of the particular operation, whether it is economics or security considerations or whatever. What you would have would be a justification tailored to, to use the words that your opponent used, the exigencies of a particular operation in order to take it out of the general rule. This Determination does not do that.

MR DONAGHUE: Your Honour, it does not do it in that way, but the exigencies that make it appropriate to take something outside of the terms of the general rule may be consistently replicated across operations because, to take the example I am using there on page 244, it may not matter which particular pipe laying operation people are engaged in or the ways that the pipe laying operation is supported might be the same in every operation.

So if the Minister wants to say, if you are delivering supplies to a pipe laying operation and you are engaged in international shipping, not actually doing any of the work because that is all being done by Australian crews, then activity of that kind should be exempt. That is not an exception of the kind that our friends are putting. Our friends would say, I think, you cannot do that because you need to link it to the particular operation.

But, in our submission, there is no reason to construe a power conferred with the breadth of the power in 9A(6) in such a limited way because the factors that might properly cause the Minister to make a judgment that the starting point in the definition in 9A should be changed are not limited to an operation case-by-case situation, if the facts are such that the reasoning that the Minister is adopting are generalisable.

BELL J: If you are right in relation to your illustration of the ship delivering the pipe to the rig, as answering the description of supporting an offshore resources activity for the purposes of 9A, it would be one thing to consider an exemption, albeit in general terms but in relation to an activity of that character, but this goes a great deal further than that. In truth it does, effectively, reverse the Allseas decision, does it not?

MR DONAGHUE: Your Honour, in my submission, it is necessary to recognise that 9A(5) creates a defined term that does two quite separate things. One is to deem certain activities to be within the scope of the migration zone and some of those activities that are the subject of that deeming are already in the migration zone anyway and some of them are not. This Determination does have the effect that in that second category – that is, the activities that are not already in the migration zone – there is no further deeming. We accept that to be so.

But the exception is an exception which operates within the context of the defined term and the defined term continues, as Mr Williams accepted in answer to a question from Justice Gageler, to do very substantial work, that work being the work it does through its use in 41(2B) of the Act, because while it makes no difference that the deeming in relation to geography overlays with the matters that were already within the migration zone it makes a very great difference that that deeming operates in relation to all of the activities on Australian resource installations, because all of the people who were engaging in those activities are now subject to a visa regime that they were not otherwise subject to and that is because the defined term “offshore resource activity” continues to apply to about half of the activity that takes place in the industry.

BELL J: But the functional overlay, to the extent it responded to Allseas, is done away with by the Determination.

MR DONAGHUE: If the intended response to Allseas was to ensure that everything that was covered by 5(13) – everything that was excluded by 5(13) – was now to be deemed to be within the zone, then that would be so. But my submission is that your Honour should not accept that the response to Allseas was intended to be to bring all of the things that were covered, excluded by 5(13), back in because had that been the intention there was such an obvious and direct route to achieve it that it is implausible to suggest that Parliament would not have taken that route.

So my submission is that the choice to pursue the more complicated deemed overlay, by reference to function, instead of to look at the existing architecture and to say, well, we want this architecture to apply to pipe layers, therefore let us repeal the provision that stops this architecture applying to pipe layers, is really inexplicable unless Parliament’s intention was to preserve flexibility. Our submission – and we have put it in writing; your Honours will have seen – is that 9A has to be read, obviously, as part of the whole Act, together with 5(13). Section 5(13) is otiose if the intention in enacting 9A was, as it is said to be in the explanatory memorandum, to ensure that all of these activities were covered. Because if 9A ensures that these activities are covered, 5(13) does nothing.

NETTLE J: The intention changed, did it not? From 1982 to 2013 or 2014, when this stuff was enacted, the intention did change. The intention was to extend the operation to the foreign crews.

MR DONAGHUE: Your Honour, if 9A and 5(13) are to be read together, in my submission, one goes to 5(13) and asks – in my submission, that provision would become totally otiose. Its retention in the Act is completely pointless because all it would be doing is taking things out of the fixed definition of the migration zone in circumstances where they are necessarily included in the migration zone under 9A anyway. Parliament, in my submission, should not be taken to have contradicted itself in 9A and in 5(13).

NETTLE J: Well, you are absolutely right. We were taken to the material before which shows it was intended to retain a degree of flexibility, but subject to that, to reverse what had been held to be the effect of 5(13).

MR DONAGHUE: The question then becomes the degree of flexibility.

NETTLE J: Flexibility.

MR DONAGHUE: Your Honours, could I perhaps turn to that, because that really squarely is the question of the construction of 9A. Your Honours will have noted, of course, that 9A can work in both directions; it can work to cut back the scope of the definition of “offshore resources activity”, but it can also work to expand that definition by reason of paragraph (c) in 9A. It is, in our submission, apparent that Parliament did not contemplate that the definitions in the Offshore Petroleum Act and the Offshore Minerals Act would be a fixed endpoint to which a reader could have regard in identifying the meaning of this term. It was always, on its text, going to be necessary to look both at the definitions of regulated operations and special purpose consents and licences under the Act, and to look at any determination that the Minister might have made, both to see whether there had been additions but also to see whether there had been exceptions.

In our submission, there are obviously limits on the power conferred by 9A(6), starting with the very obvious limits on any statutory power. It does not support decisions in bad faith; it would not support legally unreasonable decisions or irrational decisions. We accept all of that.

Your Honours will see that in our oral outline at paragraph 6, we identify three particular characteristics that we contend are important in construing the power conferred by 9A(6) to make a determination. The first of those is that, in our submission, it is significant that in conferring that power, Parliament did not identify any preconditions to its exercise or any express relevant considerations that it required to be taken into account in exercise of the power, so that on its face, the power is able to be exercised by reference to an undefined but plainly wide, in our submission, set of considerations.

We submit that a useful guide to the construction of a power of that kind is provided by the fairly well-known observations of Justice Dixon in Swan Hill v Bradbury [1937] HCA 15; (1937) 56 CLR 746, which I will just take your Honours to briefly. If your Honours would turn to page 757, Justice Dixon is dealing with the construction of a by-law making power that similarly did not provide clear guidance as to the matters that could properly be taken into account. In the middle of page 757 there is a line that begins “the common good”. His Honour says:

it has often been thought necessary to arm some public authority with a discretionary power to allow or disallow the action of the individual, notwithstanding that it has been found impossible to lay down for the guidance of the individual, or of the public authority itself, any definite rule for the exercise of the discretion. The reason for leaving the ambit of the discretion undefined may be that legislative foresight cannot trust itself to formulate in advance standards that will prove apt and sufficient –

So that is one possibility; that the foresight cannot identify them. Another possibility is:

because no general principles or policy for governing the particular matter it is desired to control are discoverable, or, if discovered, command general agreement.

So his Honour is contemplating a situation where the power may be left undefined, not just because it cannot be defined as a matter of foresight but that there is actually no underlying agreement as to what those matters might properly inform the exercise of the power. His Honour then says:

Whatever may be the cause, the not infrequent result has been a general embargo or fetter upon the exercise of the individual’s private or proprietary rights unless he obtains the sanction of the public authority. When a provision of this kind is made, it is incumbent upon the public authority in whom the discretion is vested not only to enter upon the consideration of applications for its exercise but to decide them bona fide and not with a view of achieving ends or objects outside –

the Act. We of course accept that limit here. His Honour continues:

But courts of law have no source whence they may ascertain what is the purpose of the discretion except the terms and subject matter of the statutory instrument. They must, therefore, concede to the authority a discretion unlimited by anything but the scope and object of the instrument conferring it. This means that only a negative definition of the grounds governing the discretion may be given. It may be possible to say that this or that consideration is extraneous to the power, but it must always be impracticable in such cases to make more than the most general positive statement –

That seems, in effect, to be what your Honour the Chief Justice was putting to Mr Williams this morning. We submit that that is the appropriate starting point in construing the power conferred in times as broad as the power conferred in subsection (6).

The next important consideration, in our submission, is that the power is a power that is conferred upon a political office holder, the Minister. There are numerous cases in which this Court has accepted that the selection of a political office holder such as the Minister is relevant in determining the ambit of the power and the matters that may properly be taken into account by a decision-maker in exercising the power.

We submit that that is particularly appropriate in this context because it is quite plain from the history of this legislation and from the different views that were expressed in the various consultations that underpin it which are reflected in some of the material in the special case book that there are a very wide range of strongly held competing views about the way in which the activities that take place in the offshore resources industry should be regulated under Australian law.

This is a topic of heated political debate and it is in that context that the Minister has been selected as a person who is given power to determine whether or not the Act should extend or it does extend to particular, whether it be particular individual activities or classes of activities, undoubtedly it is contemplated that the Minister might in some cases decide that the Australian migration regime is not to apply to particular activities and the Act does not tell us why the Minister may properly make such a decision, or by reference to what factors the Minister may properly take such a decision and - - -

FRENCH CJ: Well, one can see a distinction between a by-law making power under a general authority of the kind discussed in Swan Hill Corporation v Bradbury on the one hand and a power to make a determination carving out or excluding the application to some extent of a general rule and one can also look to subsection (7) and note that the Determination is not amenable to disallowance. Does that not tell us something about the limited character of the power, that it is a power to make exceptions, rather than anything analogous to what was talked about in Swan Hill v Bradbury or by-law making or regulation making powers generally?

MR DONAGHUE: Your Honour, in my submission, the fact that the power is not subject to disallowance does not detract from the submission that what was contemplated in this power is an exercise of judgment for which the Minister is to be held politically accountable. Indeed, it might be that it enhances that point because in circumstances where the power is susceptible to disallowance if the Minister cannot command a majority in one or - both Houses of the relevant Parliament, the Minister’s decision will not stand. Having removed the power of disallowance, the Minister is ultimately and necessarily individually responsible for the decision that he has made in the exercise - - -

FRENCH CJ: It might be a provision which indicates that Parliament is not to be troubled by mere exceptions.

MR DONAGHUE: Your Honour, in my submission, while it could be read in that way, it could equally be read as saying that the Parliament is not to second-guess the way in which the Minister exercises this power because it is recognised that this is a power that is properly to be exercised in accordance with government policy and that if government policy is permissible as a matter that can be taken into account by the Minister in the exercise of the judgment, then that judgment should be - - -

FRENCH CJ: I suppose that takes us back in the circle towards Justice Nettle’s question.

MR DONAGHUE: Indeed, your Honour, and one ultimately where one gets to, in my submission, is the main, indeed the only real textual indicator that might suggest a limited nature of the power is the fact that the Determination power clearly did not....subsection (5) which is a power to make exceptions and we accept that that does properly bear upon the characterisation of the power and that is the third of the three matters that we have identified in the outline.

What I am trying to get to, your Honours, before dealing with that point is that the broad terms in which the power is conferred, together with the character of the repository of the power, would very commonly be treated by this Court as suggestive of a broad power properly informed by reference to a very wide range of matters and we illustrate that by reference to a few cases.

If I could just take your Honours to one of them - to Jia 205 CLR 507, in the joint judgment of Chief Justice Gleeson and Justice Gummow at paragraph 61 on page 528. This is in the context of not a delegated legislative power; I accept it is in the context of a ministerial power to make character decisions. In paragraph 61, four lines down, their Honours say:

The Minister is a Member of Parliament, with political accountability to the electorate, and a member of the Executive Government, with responsibility to Parliament. As French J recognised in his decision at first instance in the case of Mr Jia, the Minister functions in the arena of public debate, political controversy, and democratic accountability.

Their Honours then develop that point after quoting Justice Kitto in Ipec-Air - - -

FRENCH CJ: This was all in the context of apparent bias.

MR DONAGHUE: Yes, I accept that that is so, your Honour, but in my - - -

FRENCH CJ: Well, actual bias, in fact, I think.

MR DONAGHUE: I think actual and apparent - - -

FRENCH CJ: It was “actual” in the Federal Court. “Apparent” came up in the original jurisdiction of the High Court.

MR DONAGHUE: High Court, and I think “apparent” was the basis – in the end, as your Honour knows, the ultimate decision was that you cannot apply the same strict test of bias to a minister in a political context. I accept that that is the particular context. In 63, their Honours emphasise the difference between giving a discretion to a minister and the departmental head, or a public servant, again tying it to the right to act in accordance with government policy:

the implication being that, when a power is reposed in a Minister, the statute, in the absence of an indication to the contrary, would be taken to contemplate that the Minister would be entitled, within the limits of any other constraints . . . to act in accordance with such policy.

Near the end of the judgment at 102 on page 539, they come back to the same point, about seven or eight lines down in 102 referring to:

The statutory powers in question have been reposed in a political official, a member of the Executive Government –

and repeating the observations about accountability to the electorate. That last passage was picked up by the Court in S10. The same emphasis appeared – I will not take your Honours to it – in the judgment of five members of the Court in the Pilbara Infrastructure Case, where your Honours will recall that exempting people from the access framework under the Competition Act – there were a range of specified factors which had to be considered first by the Competition Council, and then by the Minister, and the majority of the Court emphasised that fact that the Minister was the repository of the power and had to make decisions in relation to matters that the public interest suggested; a very wide range of matters were properly to be considered.

FRENCH CJ: This was in the context of a declaration of a facility?

MR DONAGHUE: Yes, the declaration on the recommendation of the Competition Council. That, in my submission, was a more analogous context to the present, and the same emphasis again on the political nature of ministerial office, and the implications that has for the exercise of power appears again in a biased context in Hot Holdings v Creasy.

So all of those cases, we submit, illustrate that particularly in the context of the kind of decision that has to be made in deciding whether or not the migration zone should apply, whether it be to an individual activity or to a class of activities, are judgments that can properly be informed by the Minister’s political judgment and any policy that the government might have from time to time.

Your Honours will see in the special case book at page 60H there is a summary - this in in the regulation impact statement in response to Allseas. In a section of the paper dealing with the consultation that took place in deciding how Parliament should respond to Allseas, there is a list on page 60G of all of the different stakeholders who were consulted. Then at the end of 60G the last line says:

Through these discussions it became apparent that there were several competing interests at stake.

They are then listed at the top of 60H and they include:

1. Union’s desire for Australian workers to share in the benefits of the boom . . .
   
2. Industry’s desire for flexibility in an industry where delay can cost millions of dollars;
   

. . .

5. Industry’s point that many of the ships involved are highly specialised vessels with highly skilled crew who work as a unit throughout the world;
   

. . .

7. All stakeholders recognising the confusing nature of regulation –
   

in the industry. Then in the paragraph just under point 7, there is a reference to the preference of the industry groups to the effect that if there was to be an extension of the migration zone following Allseas:

it was also clear from the consultations that, were regulation to be expanded, industry’s primary need would be flexibility.

So all of that, in my submission, is consistent with the model that Parliament ultimately adopted, which was not an inflexible one but which did give a considerable broad power to the Minister to adjust the way that these extensions work.

KEANE J: For particular operations?

MR DONAGHUE: Well, at least for that, your Honour, but by legislative instrument. So that, in my submission, is suggestive perhaps not of a narrow case-by-case decision to be made because if that is all that is called for, why was it necessary, I ask rhetorically, for it to be done in that way? As Justice Gageler noted earlier, section 13(3) of the Legislation Act contemplates that where a power is conferred by legislative instrument it can be exercised by reference to classes. The moment it becomes permissible to exercise this power by reference to classes, we submit, the proposition that one needs to focus specifically on an individual regulated activity or operation loses much of its force.

FRENCH CJ: But that does not get you out from under the proposition that there is some constraint imposed by the concept of exception.

MR DONAGHUE: No, it does not. I accept that and that is what I turn to now. In my submission, the starting point in understanding what an exception is, or at least a useful starting point, is the definition that Justice Williams offered in Cockle v Isaksen, which was an exception:

“is a taking out, a subtraction from, that which has previously been expressed to be granted of some part of the thing granted”.

So, it does contemplate there has been a grant of some area of activity and to be an exception it then takes away from that. Cockle contemplates - it does not decide, but contemplates that an exception cannot be such that it would completely consume the rule. If your Honours have Cockle v Isaksen [1957] HCA 85; 99 CLR 155 there, this was a case about the appellate jurisdiction of this Court in which the Court upheld an exception that removed appeals to this Court from the Commonwealth Industrial Court which had been created immediately following the Boilermakers decision.

So, the regime that was in question in Cockle was a regime that said that when State courts had exercised jurisdiction under the Commonwealth Conciliation and Arbitration Act, an appeal did not lie from the State court directly to this Court, so the appellate jurisdiction of this Court was excluded by that exception. Instead the appeal lay to the Commonwealth Industrial Court and there was then capacity to appeal from that court to this Court. So, the Court was grappling with the question was the exclusion of the appellate jurisdiction from the State courts in matters of that kind something that permissibly fell within the power to accept in section 73 of the Constitution, and the answer was yes.

In the course of analysing that question, their Honours made the observations that were picked up by our friends at paragraph 165 in the joint judgment of Chief Justice Dixon and Justices McTiernan and Kitto, and the relevant passage is right in the middle of page 165 where their Honours said:

An exception assumes a general rule or proposition and specifies a particular case or description of case which would be subsumed under the rule or proposition but which, because it possesses special features or characteristics, is to be excluded from the application of the rule or proposition. It is not a conception that can be defined in the abstract . . . it must depend very much upon context.

In our submission, what their Honours then said later on in the page, the limit that their Honours identified from the fact that section 73 confers a power to make exceptions, was the limit you see about five or six lines up from the bottom:

there is no attempt to use the power to prescribe exceptions so as to destroy the general rule, in relation to any court or tribunal or class of courts or tribunals comprised –

Then over the page their Honours used the same language at about point 6 or point 7 on the page. They say:

It is enough to say that it fixes upon a description of judgment decree order or sentence of State courts exercising federal jurisdiction, it does not eat up or destroy the general rule laid down by the Constitution –

That idea of the exception not consuming or eating up the rule is the only limit that the authorities support as emerging from the word “except”. Once there is content – and this ties into the question that your Honour the Chief Justice was asking Mr Williams – in our submission, there is no concept that an exception cannot be an exception because it is large in terms of its content.

The question of whether it is or not will depend on context, and that depends on a proper interpretation of the legislative scheme and the kinds of matters that can be properly taken into account in making the exception. But here, in our submission, while it is true that some of the work done by the defined term has been excluded, a great deal of it has not. It cannot be said, in our submission, that the definition has been eaten up or destroyed, and the exception is an exception to the definition. It is not an exception to the deeming in 9A(1). It is an exception to the defined term “offshore resource activity”, which retains substantial work to do because of 41(2B).

In our submission, while we accept that that is a real limit on the power - it is why the Minster was unsuccessful before the Full Court in AMOU - that determination is nothing like this one, because this one leaves the entirety of the activity that takes place on Australian resources installations within the concept of the defined term.

FRENCH CJ: That might be a convenient time, Mr Donaghue.

MR DONAGHUE: Yes, your Honour.

FRENCH CJ: The Court will adjourn until 2.15.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ: Yes, Mr Donaghue.

MR DONAGHUE: Your Honours, can I resume at point 7 of our oral outline which is responding to an argument that the plaintiffs have put in effect encapsulating their constructional proposition as to the nature of the power under 9A(6) which your Honours will see in paragraph 52 of their written submissions which I invite your Honours to turn to.

In effect, where the plaintiff contends that their submissions take your Honours is to a conclusion as to the ambit of the Determination power in 9A(6) that one requires or can permissibly make an exception from the definition only where what is done is reasonably related to a discernible need for flexible adjustment of the scheme and not simply negativing a substantial part of the scheme.

We submit that your Honours should not accept that submission essentially because it is not possible to ground anywhere within the text of the Act any guidance as to what kinds of factors the Minister might permissibly take into account in deciding whether or not any particular regulated operation or activity is of a kind that would properly warrant the flexible adjustment of the scheme there identified.

In effect that submission, we submit, amounts to shifting responsibility for making a judgment by reference to unspecified factors from the Minister who is politically accountable for that judgment or that reconciliation of conflicting matters to the court, by reference to matters that cannot be grounded in the statutory text.

So, to give some examples, we contend that it is not possible by reference to the Act to say that it would not be permissible for the Minister to take into account the fact that the government had made an agreement with the particular company by way of an incentive to engage in a foreign investment activity in a particular part of Australia and, as part of that agreement, had said that particular activities in that operation would be exempted from the scheme.

That, we submit, is something the Minister might properly take into account in deciding how to exercise the exception power. Equally, the Minister might decide that projects over a particular dollar value or under a particular dollar value are matters that could be taken into account in the exercise of the power. Equally, the Minister could decide that because, for example, of the capital involved in particular vessels needed for pipe laying or other activities, that activities using a particular kind of vessel should not be subject to the extended deeming under the Migration Act.

KEANE J: How do you say that what you have just said to us is inconsistent with anything that Mr Williams said?

MR DONAGHUE: In this way, your Honour. In our submission, the question as to whether any of those exceptions are permissible or not we submit is left at large by the Act, whereas as we understand what the plaintiff is putting, it would only be if, on a challenge of this kind, evidence could be led demonstrating a discernible need for that adjustment of the scheme that the exception would be valid. In effect, what I am putting, your Honour, is that there is not a justiciable limit about the need or otherwise for exceptions of that kind, but that is a matter that is left for the Minister’s political judgment.

KEANE J: So the power is uncontrolled?

MR DONAGHUE: No, but it is uncontrolled as to the kinds of factors that might lead to a judgment being made. So if bad faith could be demonstrated or an avowedly improper purpose could be demonstrated then that would be one thing. If everything was to be excluded from the definition so that neither 9A or 41(2B) had any operation then that would be impermissible. But, in our submission, this is the kind of power contemplated in Swan Hill v Bradbury where unless the Court can say this determination we concede has been made by reference to something impermissible then there is no basis to strike down the judgment that the Minister has made.

Now, I think, your Honour, that one way has developed this morning that the plaintiff seeks to ground a limit in the statute is by reference to what I think was called the discrimen argument that was put this morning by reference to not anything one sees in the Migration Act but the definitions that you find in the Petroleum Act and the Minerals Act and can I deal with that?

Your Honours will have noted in 9A(5) that – focusing for the moment on 5(a) that what the Migration Act identifies as falling within the “offshore resources activity” definition is:

a regulated operation (within the meaning of section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006) –

When one goes to that Act, the Offshore Petroleum and Greenhouse Gas Storage Act at section 7, the definition of “regulated operation” that is picked up or referred to in 9A(5) is at a very high level of abstraction indeed. It says:

(a) an activity to which Chapter 2 applies; or

(b) an activity to which Chapter 3 applies.

When the Court then asks itself, well, what is an activity to which Chapter 2 applies, our friends, I think, invited the Court to approach it at a very high level of particularity to say you look for a specific approval to engage in a specific activity under the Act. That is what is being picked up.

But, in our submission, that is to approach the matter at too granular a level because, taking for example section 97 of the Act, which I think your Honours should have, which is found within Chapter 2, section 97 prohibits any exploration for petroleum unless that conduct is authorised by an exploration permit.

So, in our submission, when your Honours are asking yourselves what is an activity to which Chapter 2 applies, the activity relevantly is any exploration for petroleum. You do not need to look at whether or not there is a particular permit in a particular area authorising a particular activity. The Act does not drill down to that level of detail. It picks up the higher level detail of a regulated operation and you find an equivalent to section 97, where exploration, 160, is to the same effect in relation to recovery of petroleum. There is a general prohibition subject to a licence, 193, to the same effect in relation to construction.

So the activities, in our submission, that are referred to in the definition in section 7 are exploration activities, recovery activities, construction activities.

GAGELER J: But surely the provision in section 9A(5) is concerned with regulated operations that are being lawfully carried out; at least that is what it is principally concerned with.

MR DONAGHUE: The operation is a regulated operation, in our submission, once it is prohibited by the Act. Then one would expect, I accept, your Honour, that the activity would be taking place in accordance with all of these permits, but the Migration Act does not require the exception to be made by the Minister to be pitched at the level of any particular permit that has been authorised under the Act because it refers not to an approval at the level of any individual activity but to the general definition in section 7 regulated operation which is about the coverage of the Act as a whole, about the coverage of Chapter 2 and the coverage of Chapter 3.

Effectively, where I am going with this, your Honours, is that one, in my submission, cannot read from the picking up of the definition in section 7 of a regulated operation, any reason why the exception has to be at the level of an exploration permit or a construction permit. It can be properly pitched at the level of an exploration activity generally because exploration activity generally is something that is regulated - - -

GAGELER J: It is prohibited.

MR DONAGHUE: Sorry.

GAGELER J: It is prohibited except insofar as it is undertaken in accordance with Chapter 2 or Chapter 3.

MR DONAGHUE: That is so, so it is a regulated operation within the meaning of section 7 of the Act, is an activity covered by - - -

NETTLE J: Chapter 2 or 3.

MR DONAGHUE: - - - Chapter 2 or 3. The activity is covered by Chapter 2 or 3, whether or not authorised.

NETTLE J: Petroleum exploration, petroleum production and petroleum conveyance by pipeline.

MR DONAGHUE: Indeed, all of those are activities regulated by Chapter 2 and therefore are - - -

NETTLE J: So the Minister can exempt one of those, you would say?

MR DONAGHUE: Or can choose as the discrimen something about the exploration industry, for example, and could say, I am going to exempt seismic vessels engaged in exploration activity. That would be, we submit, entirely consistent with the picking up of the definition of a regulated operation - - -

NETTLE J: But that is not what the section says. It says they can exempt a particular activity or operation. Even if you take it at the industry-wide level you put it, it means that you could only exempt petroleum exploration or petroleum production or petroleum conveyance by pipeline. You cannot exempt another activity by reference to the fact that it might somehow be connected with one or other of those activities.

MR DONAGHUE: Your Honour, once it has been undertaken in the course of one or other of those activities, in my submission, there is no reason to construe the power as requiring a wholesale exemption of the entire activity that is carried out rather than part thereof. To take an example, if one accepts that construction activity is prohibited by section 193, subject to having an infrastructure licence under section 194 of the Act, that is an area that is a regulated operation within the meaning of section 7 of the Act. That kind of activity will be carried out involving vessels of numerous different kinds, and you can see that from attachment 4 to the expert report that Mr Williams took your Honour to, where there is the list of various different kinds of vessels that are used in the exploration, then the construction and then the production part of the industry. So within the course of the kinds of activities that might be authorised by an infrastructure licence under 194, you will have some heavy lift vehicles and some supply boats, some of which will touch the seabed, some of which will not.

In our submission, there is no reason why the Minister cannot focus on a particular characteristic of the vessels, say, that engage in construction activity, and focus an exemption upon them, without exempting the entirety of the construction activity that is in play because there might be something peculiar to a particular kind of activity that is undertaken in the way of construction, for example, that requires special treatment that the other vessels engaging in the construction activity do not require. Perhaps I can make it concrete by going to attachment 4.

FRENCH CJ: Just before you do, the Determination itself refers to “a regulated operation” and “an activity performed”. Is it open to read that any other way than as any regulated operation and any activity?

MR DONAGHUE: The Determination under challenge, the one at 201?

FRENCH CJ: Yes.

MR DONAGHUE: Your Honour is asking is it open to read it in any way other than any regulated operation to the extent - - -

FRENCH CJ: Yes.

MR DONAGHUE: No. We accept that it is to be read as any regulated operation to the extent that it is conducted - - -

NETTLE J: And thus all activities to the extent which they are conducted?

MR DONAGHUE: Yes, to the extent that they are conducted using vessels or structures that are not resource installations. In using that language, the Determination mirrors 9A - - -

FRENCH CJ: It tries to pick up the “an” and the “a” – the “an” before “operation” and the “an” before “activity”. It is calling it “a regulated operation”. In effect, it is a very thin veil over a universal exclusion of any regulated operation.

MR DONAGHUE: To a particular extent.

FRENCH CJ: Well, yes, to the extent that - - -

MR DONAGHUE: But the words “a regulated operation (within the meaning of section 7” - the opening words up to the words of exclusion are the same as the statutory words. The statute uses - - -

FRENCH CJ: But they have got to be fitted within the determination power.

MR DONAGHUE: Sorry, your Honour, I did not catch that.

FRENCH CJ: They have to be fitted within the power to make the determination.

MR DONAGHUE: I accept that that is so. That, in my submission, is a difficulty only if the words “an operation”, being the singular, are confining so that it is not possible to read them as including the plural, or to apply them to a class consistently with 13(3) of the Legislation Act. If it has to be read as in the singular, then we accept that this determination transgresses that limit but, in our submission, the use of the singular in 9A should not be read as requiring the determination to be restricted in that way.

FRENCH CJ: I would just say, assuming a singular operation, that would not preclude a determination relating to, for example, a particular project which might have multiple licences and leases and so forth associated with it, or a series of determinations relating to different projects which might be defined by reference to particular tenements or grants or authorisations, or a group of grants or authorisations.

MR DONAGHUE: Your Honour, we would certainly embrace that. I am not sure that Mr Williams would. As I understood the - - -

FRENCH CJ: This does not do that.

MR DONAGHUE: No, this does not do that in terms; that is so. If it is permissible to take a particular project that might include the Gorgon gas fields, say, that might include a number of different areas and multiple different licences to engage in construction activities in some parts of the area, exploration activities in other - production activities in other - in our submission, there is no reason based on the text of the Act – well, if it is possible for a single determination to capture all of those activities then, in my submission, the discrimen argument cannot be right because it is applying to a whole range of different particular things that are authorised under the Offshore Petroleum Act and grouping them.

In our submission, there is no difficulty with that, but that tends, we submit, to illustrate the breadth of the power that has been conferred. If this determination goes further than that because it does not group activities in that way, then that, in our submission, can only be because it transgresses an implied limit to be found somewhere within the scheme of section 9A(5). We contend that limit is not arising from the fact that it is a power to make exceptions because the section leaves such a substantial area of activity for the defined term, because it applies to all Australian resources installations, and so the limit has to come from somewhere else. In our submission, the difficulty is that the Act itself does not readily lend itself to the provision of a clear line and, in those circumstances, we submit the better view is that there is a wide discretion allowed to the Minister.

Now, your Honour, I was, in answer to a question from your Honour Justice Nettle, going to go to attachment 4. Perhaps I could make the point which starts at 264 in the special case book. Perhaps I could make the point by reference to 266, where there is discussion of “Construction & Pipelay” and there is a list of the different kinds of vessels that might be involved in activities of that kind. The magnitude of the costs involved in the offshore activities in which the vessels identified there engage are vast. So that one sees at page 244 of the expert report the expert saying that these vessels, the big ones:

can / do cost several hundreds of thousands of $ a day, with the biggest ones costing over $1 million a day.

That is in the context of the delays involved in those ships if they needed to go via ports and do matters of that kind. So the capital costs involved in the operation of those vessels are huge; whereas other activity – other ships that are listed there that are engaged in construction activities are much smaller and much cheaper to run and do not have the same magnitude of capital costs associated with them.

It would, in our submission, be perfectly open to the Minister to choose to treat the large very capital-intensive pipe lay vessels differently than other vessels that engage in construction activities because there is a perfectly sound basis to do so, associated with the costs involved in the participation of those vessels in that part of the industry.

So, the nature and the practical realities of operating in the industry are such as to properly, in our submission, lend themselves to a flexible power. That, we submit, is what – and we submit there is nothing in the Act to point otherwise.

Now, our friend spent some time this morning on the extrinsic material in an attempt to show that that material suggests a much narrower power. Our primary submission about the extrinsic material is that it is not really of much assistance to your Honours because it points in different directions, in different places. Your Honours have emphasised many times that the Court’s task is to construe the legislation, not the extrinsic material, and in Alcan, Consolidated Media Holdings and, in our submission, here it is far safer to focus on the statutory texts than the extrinsic material.

The extrinsic material has a number of statements that Mr Williams took your Honours to, most of them to the effect that the scheme ensures that persons working in the offshore industry will have visas. Now, our point about that is that if any role is to be given to the exceptions power the scheme does not ensure that people will be subject to visa. The statutory scheme as enacted allows the possibility that some people working in the industry will not be covered. The question is which people and how many people can permissibly be dealt with in that way, and statements in the explanatory memorandum to the effect that there is an assurance of coverage are inconsistent with the texts that Parliament enacted.

To the extent that the extrinsic material deals with the particular power in issue – 9A(6) – in our submission, it is consistent with what we put to your Honours. It emphasises flexibility. It says the Minister can exempt – except things where the Minister considers it unsuitable for it to be covered. So they are not narrow words that are used. So, to the extent that your Honours find it of assistance, in our submission, it does not point against the construction we urge. Mr Williams took you to the passages. I particularly rely on 92, 101 and 105, but I will not go back to them.

That, your Honours, takes me to the last part of our oral submissions, starting at paragraph 9, about the practical operation of the Determination. Our first point, which I have already made, so I will not labour it, is that there seems to be no dispute between the parties that the defined term “offshore resources activity” has substantive content, notwithstanding the Determination. That term applies to every activity that occurs on an Australian resources institution, so it applies to half, on the last five years figures, of the activity that takes place in the industry.

So the defined term, on any view, has substantial content and operative content through 41(2B) of the Act. For that reason we submit this is not a case like Cockle v Isaken and not a case like the Full Federal Court dealt with in AMOU. If there had been a limit that has been exceeded it is not because this Determination does not create an exception; it must be a limit of a different kind because on no view, in our submission, has the rule been consumed.

NETTLE J: But 41(2B) and 41(2C) by comparison with the rest are miniscule, are they not?

MR DONAGHUE: No, your Honour. In my submission, not at all. Indeed, the view of it that commended itself to our opponents in earlier litigation was that 41(2B) is a central part of the scheme because 41(2B) is the part that, unless you have regulations prescribed in the visa, stops people on 457 visas working in the offshore resources industry. So it is an overlay over the entirety of the industry both on the installations and not, to the extent that it is within the migration zone, but it is an overlay that requires a lot of people who are working in the industry who need to have visas, but not of any particular kind, suddenly need to have a particular control kind of visa.

NETTLE J: Indeed they do, but the percentage of those who are engaged under what comes within 9A(6), compared with those who come under what was in a previous regime, is very, very small.

MR DONAGHUE: Well, it is about 50 per cent, your Honour, who come under – it is about 50 per cent come under 41(2B).

NETTLE J: A 50/50 split. What percentage of that on vessels which are not installations?

MR DONAGHUE: About 50 per cent are on vessels that are not installations and about 50 per cent are on installations. It is pretty much half and half.

NETTLE J: Thank you.

MR DONAGHUE: Of those who are on vessels that are not Australian resource installations, almost all of them are on vessels that fall within 5(13). So they are within that category that, had Parliament responded to Allseas by reversing it, by repealing 5(13), they would all be covered too and so the coverage would be very large, about 90 per cent, I think. So, effectively, the breakdown is about half are still covered because they are on Australian resources installations and another substantial percentage – I think about another 40 per cent of the total – are on 5(13) vessels and the small balance are on floating vessels that are not attached to anything and therefore are not in the migration zone for that reason. I think I complicated that answer.

NETTLE J: No, but it does remain the case, does it not, that if this exemption works it effectively wipes out the abrogation of 5(13) that was intended to be achieved?

MR DONAGHUE: Well, it wipes it out to – your Honour, I think I need to challenge the premise because - - -

NETTLE J: I thought that you might but assuming that were the case, it would effectively take it away, would it not?

MR DONAGHUE: If the intention were to repeal 5(13) then it would take it away save only for this qualification, it takes it away while the Minister, whoever the Minister may be, thinks it should be taken away. The architecture is there so that any future Minister can by legislative instrument immediately re-extend the migration zone to include all of those persons.

NETTLE J: No, I follow, we are in the same territory. If it was meant to put back what was taken away when 5(13) was construed as it was, contrary to your submission, then the exemption power would all but wipe that out.

MR DONAGHUE: Well, it has wiped out that operation but, in effect, your Honour, really one talks about the exemption consuming the rule, the difficulty here is that the exception is in the definition and the definition is used in two rules. So the exception does not consume the definition, the exception leaves half of the definition, it leaves the definition applying to a lot of people and that is then used in one rule but in the other rule, the one your Honour is asking me about - - -

NETTLE J: It is gone.

MR DONAGHUE: It has substantially gone.

BELL J: To the extent that section 9A deems persons engaged in the offshore resources industry to be within the migration zone that is, as it were, the first purpose which you accept the exemption operates to do away with. The effect for the time being - whilst it exists it does away with that so that 9A continues to contain the definition which operates to provide that all persons within the migration zone engaged in the offshore resources industry require a permanent visa or a specified type of visa. That might have been done fairly obviously in another way had it been not the Parliament’s intention to deem persons not then within the migration zone as being within the migration zone by virtue of their participation or support of an offshore resources activity.

MR DONAGHUE: That is true, your Honour, but as against that it is equally true, in our submission, that when one looks at Allseas and the reason I started with Allseas is that it is so clear that the result in Allseas was a consequence of 5(13) that had Parliament’s intention really been to reverse it then it could hardly but have repealed it. So that while I acknowledge that functionally here what has happened is as Justice Nettle - when your Honour has just put to me the capacity to adjust in the way that has been exercised by the Minister in this determination was part and parcel of the legislative solution to Allseas and if Parliament had not wanted the discretion to be there to be exercised it should not have conferred it. It should have repealed 5(13).

Your Honours, that I think takes me to the last point we seek to make, what we call the preferable analysis in our written submissions, which is, as we have already addressed, the exception is required by 9A(5) to be cast in terms of the regulated operations or activities, being the operations or activities taking place under those two Acts and those, of course, are activities that are engaged in both by citizens and by non-citizens.

In connection with each of the exploration, construction and production activities, that is true, but when one considers the legal effect of the Determination, the legal effect is limited only to the effect on the non-citizens who happen to be participating in those activities or operations.

To take an example, if your Honours could go back to the chart you looked at at page 262 in the book, which is the consolidated analysis of the data that the expert undertook, and if your Honours go to the last couple of columns, the 2015 columns, and go down to the bottom right-hand corner which is dealing with the production part of the industry, you will see that above the number 33.9 there is a number 9.4 and a number 0.7.

The 9.4 is the not mobile unit, that is activities taking place on the 5(13) vessels, and just above that, not touching the seabed, there is another 0.7. Those two categories together are the categories that are covered by the Determination at the moment. So that is 10 per cent of the activity in the production part of the industry in 2015 was covered by the Determination. But when you go to the next column to the right, which is the percentage of foreign nationals engaged in that part of the industry, only 0.02 per cent of the people who worked in that 10 per cent of activities were foreign nationals – hardly any.

So the fact that the Determination covered 10 per cent of the production industry from a legal point of view is neither here nor there. There is basically no one who is affected by that. If it be included, if it be excluded, it makes no practical difference to the coverage of the Migration Act. We submit it would therefore be odd if it were proper to analyse the validity of the Determination in the sense that our friends call the magnitude of the exception that is made, taking account of activities that are covered by the Determination but where that matters not at all because it is not biting on foreigners who are working in that part of the industry.

GAGELER J: We need a lot more information to understand the cause and effect and who has applied for visas and whether they have been refused. I do not know how we can draw any meaningful conclusion from the mere number of foreign workers currently working in circumstances where the Determination has not applied.

MR DONAGHUE: Your Honour, one of the things that the expert says in the report is that the way the industry works, he says, the ratios of foreigners to citizens on vessels is relatively constant over time. So, one of the ways that he qualifies his opinions is he says, well the absolute numbers are variable from year to year as activity levels go up and down but the ratios are pretty reliable, is what he said.

So, while I accept what your Honour puts to me that one cannot necessarily at the level of saying, well, I do not invite your Honour to draw anything precise from the 0.02 per cent in terms of a precise conclusion as to coverage, but the point we seek to make is that by conducting that kind of analysis, by saying well, the Determination accepts particular operations or activities as identified but if you then ask the question, well, what operative effect does that exclusion have, the answer is that it excludes about five to 10 per cent across the five year averages, somewhere between five or 10 per cent of the people who are working in the industry; that is what it actually does. So that even though half of the total activity is excluded, most of that activity is undertaken by citizens and the legal effect of the exclusion is comparatively narrow.

NETTLE J: That is in production?

MR DONAGHUE: No, that is the total. The five to nine per cent is total, and your Honour will see that - I think the most useful place to see it is that we have pulled it out in written submissions at paragraph 59, I think, if your Honour has them there, and paragraph 59 extracts the data from that table on 262 but only the relevant parts of it so it is easier to read. It basically pulls out the rows that are captured by the Determination across the various years and if your Honour has it, it is page 15 of our written submissions. The bottom line along that table - - -

NETTLE J: Yes.

MR DONAGHUE: - - - shows figures ranging from 5.2 per cent in 2013, up as high as 9.91 per cent in 2015, but it is - - -

NETTLE J: Would you just clarify something for me then? Back at page 262 of the special case book, Mr Williams referred this morning under the heading “Fixed Structure” in that table to the “Mobile Unit Not Touching Seabed” and the “Not Mobile Unit”.

MR DONAGHUE: Yes.

NETTLE J: Now, the “Mobile Unit Not Touching Seabed” has a foreign labour force of 2.74 per cent in the most right-hand column.

MR DONAGHUE: That is up in “Exploration”.

NETTLE J: In “Exploration”.

MR DONAGHUE: Yes.

NETTLE J: That is to be added, as it were, as one of the effects of the exemption, is it not, to work out the effect of foreign labour.

MR DONAGHUE: It is. So, if your Honour has the table in our submissions at 15 you will see that 2.74 per cent in the top right of the table, and then if you run down - so that is the percentage in “Exploration”. Then in “Construction” it is 7.06 or - it is included in the 9.91.

NETTLE J: All right, thank you.

MR DONAGHUE: So that, in practice what the Minister has done is, we submit, when one focuses on its legal operative effect, very much narrower than what the Minister appears to have done and that, we submit, bears on an analysis of when your Honours are judging whether or not the Minister has exceeded the power that 9A(6) confers, that that kind of analysis, we submit, properly bears upon the permissibility of the manner in which the Minister has chosen to exercise the power.

FRENCH CJ: What do we know on the record about the reason for the Minister’s determination?

MR DONAGHUE: Nothing, your Honour. No reasons have been given.

NETTLE J: Can I just ask you to go back to section 161 of the Act to which you took us before, that is to say, of the - - -

MR DONAGHUE: Petroleum Act?

NETTLE J: Of the Offshore Petroleum and Greenhouse Gas Act.

MR DONAGHUE: Yes, your Honour.

NETTLE J: Subsection (1) lists the rights conferred by a petroleum production licence of which, to take an example, paragraph (d) specifies:

to carry on such operations, and execute such works, in the licence area as are necessary for those purposes.

That, I take it you would say, is a regulated operation within the meaning of section 9A(6) of the Migration Act?

MR DONAGHUE: It falls within that concept, yes.

NETTLE J: Yes. So it would be competent under 9A(5) coupled with (7) for the Minister to except by direction an operation carrying out works in the licence area?

MR DONAGHUE: Certainly, yes, your Honour, I submit it could go wider, but could certainly do that.

NETTLE J: Indeed, he has done – or he has excepted, you would say, all such operations to the extent to which they use one of the vessels that is specified?

MR DONAGHUE: Yes, but in fact in the particular context your Honour is putting to me, because we are here in the context of production, almost all of the resource institutions used will be Australian resource installations because they will be in contact with the seabed, and so the determination does not have any effect on those. Insofar as the operation is carried out using something that touches the seabed, the Determination is neither here nor there because 9A does not allow you to cut down the statutory definitions. It only allows them to be expanded.

NETTLE J: So, to the extent that a rig is being built it is excepted – I beg your pardon - to the extent that the construction of a rig involves the use of one of the specified vessels, it is excepted?

MR DONAGHUE: To the extent that the construction of the rig, yes, uses one of the 5(13) vessels, it is excepted; that is so. But, in my submission – that is so. But the Minister can – what the Minister has excepted is - - -

NETTLE J: All construction to the extent to which it uses a specified vessel?

MR DONAGHUE: All construction to the extent that it uses a specified vessel, that is right. A different Minister might reach a different view but for the moment that is the way that 9A operates.

NETTLE J: Thank you.

MR DONAGHUE: Your Honour the Chief Justice, I should have qualified my answer to what your Honour knows about the reasons. The special case book does contain an explanatory statement at page 203 of the book, which is not particularly enlightening, but for the sake of completeness, there is that information. Unless your Honours have any further questions, those are our submissions.

FRENCH CJ: Thank you, Mr Donaghue. Yes, Mr Williams.

MR WILLIAMS: Your Honours, it will be apparent from what we said in-chief that we, of course, accept that section 9A has a different mechanism of operation to the pre-existing provisions, that it is functional and non-geographic and the examples to 9A(1) show that the operation of the provision is different to that which would be affected by a repeal simpliciter of section 5(13), the example given there that I went to, I think - “rescuees” - we would add trainees on board purely as observers, spouses of crew members if ever that occurs, such persons would be caught if 5(13) were repealed but are not caught by the 9A regime because they are not in the area for the purpose of participating or supporting the activity.

We say that the legislative intention is quite plain that workers on 5(13) vessels are to be regulated and be subject only to the ability of the Minister to tailor a specific response to particular exigencies that might arise. In that sense we say it is precisely accurate to say that the intent of the legislation was to reverse the position declared in Allseas. That, indeed, is the core of the operation of the provisions.

In relation to the generality of section 9A(5)(a) and (b) through its reference to the Petroleum and Minerals Acts, the activities that are carried out on section 5(13) vessels are not, for example, activities - they are not exploration for petroleum. They are caught because of the provision that your Honour Justice Nettle just called attention to. For example, in 161, paragraph (d), they are within Chapter 2 because they are carrying on such operations and executing such works in the licence area as are necessary for those purposes.

So it is not simply exploration or recovery of petroleum. It extends to the range of other activities, and particularly those caught by paragraph (d) in 161 or paragraph (c) in section 98, which is in the same terms:

carry on such operations . . . in the permit area, as are necessary for those purposes.

Perhaps 5(11) vessels that are not carved out by 5(13), such as seismic vessels, might be exploring. But 5(13) vessels are picked up by the concluding paragraph of each of the permission provisions of the Act, sections 98 and 135(1)(c), dealing with petroleum retention leases that has a similar provision. Section 135(1)(c):

carry on such operations . . . in the lease area as are necessary for those purposes.

and 161(1)(d), which is in similar terms. Your Honours, the criteria that could validly inform a determination are of course impossible to define in advance or in the abstract. But one can imagine a position and, indeed, the possibilities foreshadowed in the explanatory material that the Petroleum or the Minerals Acts are amended to regulate new or different activities might be one example where the exception power might obviously be engaged.

Emergency circumstances are plainly enough another. Security concerns or indeed the lack of security concerns – the fact that a particular

operation, perhaps transport of particular materials to a particular operation in an area might raise no national security concerns. They might be legitimate considerations. Economic concerns, such as the potential viability of a project which is perhaps dependent on securing specialist expertise very quickly. There could be a wide range of matters, but certainly incapable of definition in the abstract and certainly not, we say, engaged by determination of this kind in those wide terms.

If I could deal finally with the numbers on which perhaps in the end that all turns, but for accuracy, page 262. Perhaps I misheard our friend, but we understood him to say that the figure of about 10 per cent in the bottom right-hand side of that table was about 10 per cent of production activities. The 9.4 plus 0.7 per cent is about 10 per cent of the total man-hours. One sees that by looking at the man-hours column for 2015. The number down the bottom is 21.6 million. There are 2.17 million hours in those two columns – “not mobile unit” and “mobile unit not touching seabed”. So it is about 10 per cent of the total in production involved. One sees this from the subtotal, production activities are about 33.9 per cent of the total.

In a sense, the point that we make is that which we make in our table in reply, that the valid comparison is either man-hours within the Determination versus total man-hours or foreign man-hours within the Determination versus total foreign man-hours, rather than to mix apples and oranges in the way that we say our friend’s submissions do. Your Honours, unless there are matters with which we can assist, those are our submissions.

FRENCH CJ: Thank you, Mr Williams. The Court will reserve its decision. The Court adjourns to 9.45 tomorrow morning for pronouncement of orders and thereafter 10.15.

AT 3.03 PM THE MATTER WAS ADJOURNED