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Review of the application of the Migration Act to offshore resource workers

AREEA members are urged to contribute to an important AREEA submission to a Federal Government review. The review is seeking to ‘ensure that workers in the offshore resources industry in Australia’s offshore maritime zones come within the ambit of the Migration Act 1958’.

The Federal Government’s discussion paper for the review says:

Industry and union groups have raised concern about the regulation of work in Australia’s offshore maritime zones due to a lack of clarity in the migration zone’s application to the offshore resources industry. The
Allseas Court case in May 2012 found that the migration zone, as currently defined in the Migration Act, does not extend to vessels engaged in laying pipeline on the seabed… The government is therefore of the view that legislative change is required.

Currently, AREEA’s view is that legislative change is not required and could lead to a range of unintended consequences for the broader hydrocarbons sector.

In fact, the recent Allseas decision has reinforced AREEA’s view that:

  • The Migration Act is clear – outside the migration zone, it does not apply to vessels in the circumstances of the Allseas vessels, installing gas pipelines on the seabed. The language is not ambiguous. In fact, it suggests the Federal Parliament sought to ensure the Act would not apply to such vessels.
  • Over a very lengthy period of time, Allseas unsuccessfully sought from the Federal Government a clear statement as to its legal obligations under the Migration Act. That clarity was not provided.
  • Eventually, to ensure it was not committing statutory offences, Allseas asked the Federal Court for a declaration about the application of the Migration Act. The Federal Court declaration was clear – the Act did not apply to the Allseas pipelay vessels.

To ensure the Federal Government fully understands the impact upon industry of any unnecessary legislative change, the AREEA submission will demonstrate that:

  • Any legislative change targeting people working on working on foreign-flagged, foreign-owned vessels may create unintended consequences for a much broader set of members, including drill ships, FPSOs, tugs, stand-by vessels and accommodation vessels.
  • It is in Australia’s interests to ensure that the offshore hydrocarbons sector is an attractive place for global investment. Although it is a significant driver of the national economy, the sector is already subject to weighty regulatory and economic burdens. Unnecessary targeting of the sector would reduce the viability of future projects and the productivity of existing ones – yet one more way in which the Federal Government would put at risk the $500 billion worth of global investment slated for our Australian shores.
  • Employees working on pipelay vessels have specialised skills which are utilised globally, wherever the pipelay vessel is contracted to operate. There are existing protections in place for these workers. Workplaces and working conditions are regulated by international law and the flag States. Importantly, all of these factors are directly relevant to management of risk, including workplace health and safety.
  • Some matters need not and cannot be regulated by Australian legislation. Under international law Australia has jurisdiction over its citizens or ships wherever they are located, but the Federal Government must recognise that in other circumstances Australia’s legislative reach cannot override, for example, the accepted jurisdiction of another country.

To assist preparation of the AREEA submission, your feedback is invited about matters relevant to the Federal Government review. There are tight timeframes attached to the review so please flag your interest by contacting Julie Copley, Senior Policy Advisor – Industry ([email protected] or 0408 867 575).

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