APPROXIMATE hearing dates have been set before a Full Court of the Federal Court in Sydney between 9 February and 6 March 2015 for the maritime unions’ challenge of an earlier decision regarding migration arrangements in the offshore resources industry.
It is now confirmed that both the Maritime Union of Australia (MUA) and the Australian Maritime Officers Union (AMOU) have challenged the decision handed down by Federal Court Justice Buchanan on 15 September 2014.
The original case and the appeals will challenge a ministerial determination made by Assistant Minister for Immigration & Border Protection, Michaelia Cash, under the Migration Amendment (Offshore Resources Activity) Act 2013 (the ORA Act) in July 2014.
The original MUA and AMOU challenges (lodged separately but heard together) argued unsuccessfully that the ministerial power granted under the ORA Act could not be used to negate the entire operation of the Act.
Justice Buchanan found there was strength in that argument, however, he noted the ORA Act did not specify a minimum level of coverage that should remain following an exercise of the ministerial power.
Therefore, the ministerial determination made by Senator Cash, despite having the effect of negating the operation of the Act, was a valid exercise of that power.
While two separate appeal applications have been lodged by the unions, they will be heard together early next year.
While a precise date is yet to be set, Chief Justice Allsop, whom the matter came before in a preliminary conference late last month, estimated the hearing would be listed for one day during that period.
Status quo continues for now
Given the hearing dates are three or four months away, and a decision even further, the status quo will prevail in the short term in relation to migration requirements in the offshore resources industry.
In short, the status quo means that migration requirements remain what they were for some years prior to the ORA Act taking effect on 29 June 2014. As a result, certain vessels, such as pipelay vessels referred to in the Allseas decision, are deemed not to have sufficient connection to Australia’s seabed to be considered part of Australia’s migration zone (see this briefing paper for full details).
AMMA will keep members informed once a specific hearing date has been set. In the meantime, please contact AMMA’s manager of migration services Jules Pedrosa on (02) 9211 3566 or via e-mail at [email protected]. Alternatively, please contact AMMA’s senior workplace policy adviser Lisa Matthews on (03) 6270 2256 or via e-mail at [email protected] for further details.