Exemption of offshore workers invalid, rules High Court

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Exemption of offshore workers invalid, rules High Court

A five member High Court has ruled invalid and “beyond power” a Turnbull government determination that exempted some offshore workers from requirements to hold permanent or temporary work visas.

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A five member High Court has ruled invalid and “beyond power” a Turnbull government determination that exempted some offshore workers from requirements to hold permanent or temporary work visas.

[Full text of this case: Maritime Union of Australia v Minister for Immigration and Border Protection [2016] HCA 34 (31 August 2016)]

The Maritime Union was pursuing its case that “thousands of Australian jobs in the offshore oil and gas sector were being threatened by the federal government’s...  issuing special purpose visas to cheap overseas labourers.’

Workers on fixed offshore installations are required to hold an Australian visa, but the crews on some vessels which perform highly specialised work, usually of a short term nature, were exempted from this requirement.

Background


The High Court noted that amendments to the Migration Act had the effect of extending the migration zone to non-citizens participating in or supporting offshore resources activity.

The amendments created specified visa requirements for such persons and conferred power on the Minister to make determinations excepting operations and activities from the extended migration zone. 

Determination invalid


The determination negated the operation of the general rule in extending the migration zone to non-citizens participating in or supporting offshore resources activity. 

The High Court concluded the determination was beyond power and invalid:

“... the power of exception vested in the Minister is conferred in terms of a power to except an operation or activity from the operation of s9A and hence from the reach of s41(2B) and (2C). Arguably, that includes power to except more than one operation or activity and perhaps even a class or more than one class of operation or activity[19].

"But the language of s9A(6) is ill adapted to the exception of an operation or activity to some or other specified extent, still less to the exception of all operations or activities to that specified extent...

"It is enough that, in enacting s9A(1), the Parliament considered that the actual or potential number of such persons is sufficiently significant to warrant the application to them of the visa regime established by s 41(2B) and (2C)."

The bottom line: Use of overseas labour is a contentious issue. Unions have argued that workers operating in Australian territory should be subject to Australian migration and employment law.

Maritime Union of Australia v Minister for Immigration and Border Protection [2016] HCA 34 (31 August 2016)

See also: Gas project workers on tourist visas, says MUA

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