ATTACHMENT A

 

AUTHORISING PROVISIONS

 

Subsection 504(1) of the Migration Act 1958 (the Migration Act) relevantly provides that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing all matters which by the Migration Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Migration Act.

 

In addition, the following provisions of the Migration Act may apply:

 

*         section 9A which operates to regulate foreign worker participation in offshore resources activities by bringing these persons into the migration zone and thereby requiring them to hold a visa;

 

*         subsection 31(1), which provides that there are to be prescribed classes of visas;

 

*         subsection 31(4), which provides that the regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both;

 

*         subsection 31(5), which provides that a visa is a visa of a particular class if the Act or the Migration Regulations 1994 (Principal Regulations) specify that it is a visa of that class;

 

*         paragraph 41(2B)(b), which provides that in addition to any restrictions applying because of regulations made for the purposes of paragraph 41(2)(b), a condition of a visa that allows the holder of the visa to work is not taken to allow the holder to participate in, or support, an offshore resources activity in relation to any area unless the visa is a visa prescribed by the regulations for the purposes of subsection 41(2B);

 

*         subsection 41(3), which provides that, in addition to any conditions specified under subsection 41(1), the Minister may specify that a visa is subject to such conditions as are permitted by the Principal Regulations for the purposes of this subsection;

 

*         paragraph 43(1)(c), which provides that, subject to subsections (1A) and (3) and the regulations, a visa to travel to and enter Australia that is in effect is permission for the holder to enter Australia other than at a port or on a pre-cleared flight if the holder travels to Australia on a vessel and the health and safety of a person or a prescribed reason makes it necessary to enter Australia in that way; and

 

*         subsection 168(3), which provides that a person in a prescribed class is not required to comply with section 166.

 

ATTACHMENT B

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Migration Amendment (Offshore Resources Activity) Regulation 2015

The proposed amendments to the Migration Regulations 1994 (the Regulations) are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The proposed amendments would amend the regulatory regime to provide additional certainty to the rules applying to foreign workers participating in offshore resources activities.

The proposed amendments supplement the existing provisions introduced by the Migration Amendment (Offshore Resources Activity) Act 2013 (ORA Act), which amended the Migration Act 1958 (the Migration Act) to provide that persons who are in an area to participate in, or support an offshore resources activity, are taken to be in the migration zone. Further, a person who is in the migration zone for this purpose must hold either:

*         a permanent visa; or

*         a visa prescribed by the regulations.

The proposed amendments will provide that:

*         the Subclass 400 (Temporary Work (Short Stay Activity)) visa and the Subclass 457 (Temporary Work (Skilled)) visa are visas that allow the holder to participate in, or support, an offshore resources activity in relation to an area;

 

*         the holder of a Subclass 400 (Temporary Work Short Stay Activity)) visa or a Subclass 457 (Temporary Work (Skilled)) visa, who will be in an area to participate in or to support an offshore resources activity, is authorised to enter Australia through a method other than at a port or a pre-cleared flight; and

 

*         an Australian citizen or holder of a permanent visa, a Subclass 400 (Temporary Work (Short Stay Activity)) visa or a Subclass 457 (Temporary Work (Skilled)) visa, who has entered Australia in an area to participate in, or to support an offshore resources activity and whose entry has been reported in writing to Immigration will not have to comply with the requirement to be immigration cleared under section 166 of the Act. 

The proposed amendments provide greater legislative certainty in relation to the visa requirements for non-citizens participating in offshore resources activities. The amendments will ensure that foreign workers employed in the offshore resources industry are able to comply with the Migration Act by holding a visa with an appropriate work condition and are not deemed to be unlawful non-citizens, or working illegally in Australia.

Human rights implications

Right to work and just and favourable conditions of work

The proposed amendments engage the right to work in Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).  Article 6 provides:

The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

The proposed amendments engage Article 7 of ICESCR, which provides that:

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;

(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.

The United Nation Committee on Economic, Social and Cultural Rights (UNCESCR), in its General Comment on Article 6 (E/C.12/GC/18) has stated:

[4]        The right to work, as guaranteed in the ICESCR, affirms the obligation of States parties to assure individuals their right to freely chosen or accepted work, including the right not to be deprived of work unfairly.  This definition underlines the fact that respect for the individual and his dignity is expressed through the freedom of the individual regarding the choice to work, while emphasizing the importance of work for personal development as well as for social and economic inclusion.

[6]        The right to work is an individual right that belongs to each person and is at the same time a collective right.  It encompasses all forms of work, whether independent work or dependent wage-paid work.  The right to work should not be understood as an absolute and unconditional right to obtain employment.   

It is a basic element of sovereignty that a nation state can govern who is allowed to work in its territory and the minimum conditions which must apply to that work. While Article 6 recognises the right to work, it does not guarantee a right to work in a country of which a person is not a national - every country restricts the right of non-nationals to work.

It is the long standing position of the Australian Government that an authority from the Australian Government needs to be granted before a non-citizen is permitted to work.  This authority and associated 'work rights' are attached to certain types of visas, including the subclass 457 and 400 visas.  A person is not permitted to work in Australia unless work rights have been granted, and merely by arriving lawfully in Australia does not entitle a person to work rights in the absence of a visa with work rights.

The amendments do not operate to deprive people of the right to just and favourable conditions of work as persons working in the offshore resources industry. Regardless of visa criteria or sponsorship obligations (as applicable), they are subject to Australian workplace laws and agreements.

In the case of non-citizens holding prescribed temporary work visas, these will be supplemented by visa criteria and/or sponsorship obligations prescribing terms and conditions of employment no less favourable than those provided to Australian citizens and permanent residents performing equivalent work.

The amendments are legitimate, reasonable and proportionate within the framework established by the ICESCR to give effect to Article 6 and Article 7 in relation to non-citizens.

Non-discrimination

The proposed amendments engage Article 2.1 of the ICCPR and Article 2.2 of the ICESCR which guarantee the rights enshrined in the Covenants to all people without discrimination.

Article 2.1 of the ICCPR states:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 2.2 of the ICESCR states:

The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The General Comment on ICESCR (E/C.12/GC/18) relevantly provides:

[18]      The principle of non-discrimination as set out in article 2.2 of the Covenant [ ... ] should apply in relation to employment opportunities for migrant workers and their families.  In this regard the Committee underlines the need for national plans of action to be devised to respect and promote such principles by all appropriate measures, legislative or otherwise". 

Article 4 of ICESCR provides that the State may subject the rights enunciated in the ICESCR:

... only to such limitations as are determined by law only insofar as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in democratic society.

The object of the Migration Act is to "regulate, in the national interest, the coming into, and presence in, Australia of non-citizens".  In that sense the purpose of the Migration Act and Regulations is to differentiate on the basis of nationality between non-citizens and citizens.  Most nation-states differentiate on the basis of nationality in some form to regulate the right to work.  The UN Human Rights Committee has recognised in the ICCPR context that:

"The Covenant does not recognize the right of aliens to enter or reside in the territory of a State party.  It is in principle a matter for the State to decide who it will admit to its territory [ ... ] Consent for entry may be given subject to conditions relating, for example, to movement, residence and employment" (CCPR General Comment 15, 11 April 1986).

Beyond this basic level of differentiation, Australia's non-discriminatory immigration policy applies equally to all non-citizens.  Any qualified person will be able to come to work on Australian offshore resources installations should they meet the criteria for a visa, regardless of race, gender, national origin or any other prohibited grounds of discrimination.  They must, however, by operation of the visa system, be subject to Australian working conditions. The proposed amendments are consistent with Article 2.1 of the ICCPR and Article 2.2 of the ICESCR.

The right to freedom from arbitrary detention

Article 9.1 of the ICCPR provides that:

Everyone has the right to liberty and security of person.  No one shall be subjected to arbitrary arrest or detention.  No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

Under the Migration Act, a non-citizen who is in the migration zone, but does not hold a valid visa, is deemed to be an unlawful non-citizen and liable to mandatory immigration detention.

As it is impractical for a person on a vessel which is not a resources installation and who is participating in, or supporting, an offshore resources activity to present to a clearance authority to be immigration cleared, the amendments exempt such persons from the Migration Act's immigration clearance provisions. Immigration clearance requirements will still apply if the person otherwise seeks to enter Australia at a port or airport.

Although the amendments engages the right to freedom from arbitrary detention, it is consistent with this right as, by prescribing a visa with an appropriate work condition in the regulations, it will ensure that non-citizens who are in the migration zone by virtue of their participation in, or support of, an offshore resources activity, will not become unlawful and liable to mandatory immigration detention.

Conclusion

The amendments engage the right to work and just and favourable conditions of work, to freedom of movement, to non-discriminatory access to human rights and to freedom from arbitrary detention.  To the extent that they engage these human rights obligations, it is reasonable, necessary and proportionate in achieving its objectives.

The Hon. Peter Dutton MP, Minister for Immigration and Border Protection

 

 

 

ATTACHMENT C

 

Details of the Migration Amendment (Offshore Resources Activity) Regulation 2015

 

Section 1 - Name

 

This section provides that the title of the Regulation is the Migration Amendment (Offshore Resources Activity) Regulation 2015 (the Regulation)

 

Section 2 - Commencement

 

This section provides that the regulation commences on 14 December 2015.

 

The purpose of this section is to provide for when the amendments made by the Regulation commence.

 

Section 3 - Authority

 

This section provides that the Regulation is made under the Migration Act 1958 (the Migration Act).

 

The purpose of this section is to set out the Act under which the Regulation is made.

 

Section 4 - Schedule(s)

 

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

 

The effect of this section is that the Migration Regulations 1994 (the Principal Regulations) are amended as set out in the applicable items in Schedule 1 to the Regulation.

 

The purpose of this section is to provide for how the amendments in this Regulation operate.

 

Schedule 1 - Amendments

 

Item 1 - After subregulation 2.05(4AB)

 

This item inserts subregulation 2.05(4AC) after subregulation 2.05(4AB) in Division 2.1 of Part 2 of the Principal Regulations.

 

Currently, regulation 2.05 contains provisions which relate to conditions applicable to visas.

 

New subregulation 2.05(4AC) provides that for paragraph 41(2B)(b) of the Migration Act, the following visas are prescribed:

*         a Subclass 400 (Temporary Work (Short Stay Activity)) visa;

*         a Subclass 457 (Temporary Work (Skilled)) visa.

 

Subsection 41(2B) was inserted into the Migration Act by the ORA Act.  It provides that, in addition to any restrictions applying because of regulations made for the purposes of paragraph 41(2B)(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 to support, an offshore resources activity in relation to an area unless the visa is a permanent visa or a visa prescribed by the Principal Regulations for the purposes of paragraph 41(2B)(b).

 

The effect of this amendment is to prescribe the Subclass 400 (Temporary Work (Short Stay Activity)) visa and the Subclass 457 (Temporary Work (Skilled)) visa as a visa prescribed by the Principal Regulations for the purposes of paragraph 41(2B)(b) of the Migration Act.

 

The purpose of this item is to allow a non-citizen who holds a Subclass 400 (Temporary Work (Short Stay Activity)) visa or Subclass 457 (Temporary Work (Skilled)) visa to participate in, or to support, an offshore resources activity in relation to an area.

 

Item 2 - At the end of Division 2.1 of Part 2

 

This item inserts regulation 2.06AAC at the end of in Division 2.1 of Part 2 of the Principal Regulations.

 

Regulation 2.06AAC provides that for paragraph 43(1)(c) of the Migration Act, the following reason is prescribed:

*         the visa held by the visa holder is:

o   a permanent visa; or

o   a Subclass 400 (Temporary Work (Short Stay Activity)) visa; or

o   a Subclass 457 (Temporary Work (Skilled)) visa; and

*         the holder is a person who will be in an area to participate in or support, an offshore resources activity in relation to that area.

 

The purpose of this amendment is to provide that if the holder of a permanent visa, a Subclass 400 (Temporary Work (Short Stay Activity)) visa or Subclass 457 (Temporary Work (Skilled)) visa that is in effect and is in an area to participate in, or support an offshore resources activity, and travels to Australia on a vessel, the visa is permission for the holder to enter Australia in this way, rather than at a port or on a pre-cleared flight.

 

In the majority of circumstances, persons participating in, or supporting, an offshore resources activity will not enter Australia at a port.  This is because such persons will frequently travel to the area where they will be participating in or supporting the offshore resources activity (and therefore entering the migration zone) directly by boat without otherwise entering Australia.

 

Note 1 following regulation 2.06AAC explains that paragraph 43(1)(c) of the Migration Act provides that if the holder of a visa that is in effect travels to Australia on a vessel, and a prescribed reason makes it necessary to enter Australia in a way other than at a prescribed port, or on a pre-cleared flight, the visa is permission for the holder to enter Australia in that other way.

 

Note 2 following regulation 2.06AAC explains that for the definition of offshore resources activity in paragraph 2.06AAC see subsection 9A(5) of the Migration Act. The purpose of this amendment is to put it beyond doubt that this term has the same meaning in the Principal Regulations as in the Act.

 

Item 3 - At the end of Part 2 of Schedule 9

 

This item adds item 11 at the end of Part 2 of Schedule 9 to the Principal Regulations.

 

New item 11 of Part 2 of Schedule 9 provides that:

*         A person:

o   who is an Australian citizen, or holds one of the following types of visa that is in effect:

§  a permanent visa; or

§  a Subclass 400 (Temporary Work (Short Stay Activity)) visa; or

§  a Subclass 457 (Temporary Work (Skilled)) visa; and

o   who is taken to enter Australia because of paragraph 9A(3)(c) of the Act; and

o   whose entry has been reported in writing to Immigration.

 

Part 2 of Schedule 9 to the Principal Regulations sets out which persons are not required to comply with section 166 of the Act.

 

Section 166 of the Act provides that a citizen or a non-citizen, who enters Australia must, without unreasonable delay, present certain evidence to a clearance authority.  Subsection 168(3) provides that a person in a prescribed class is not required to comply with section 166.  Regulation 3.06 in Division 3.1 of Part 3 of the Principal Regulations provides that for the purposes of subsection 168(3) of the Act, each class of person set out in Part 2 of Schedule 9 is prescribed.

 

The effect of the new item 11 is that a person mentioned at that item is not required to present certain evidence to a clearance authority when entering Australia.

 

The purpose for exempting this group of people from the requirement to comply with section 166 of the Act is that it is impractical for persons engaged in offshore resources activity to comply with section 166 (and provide evidence and other information to a clearance authority). 

 

This group will only be exempt if they have been taken to enter Australia because of paragraph 9A(3)(c) of the Act and their entry to Australia has been reported to the department.  The person may report to the department personally or someone else may do this on their behalf, for example, the vessel's local shipping agent.  This reporting must be in writing to allow the department to keep a record of who has entered Australia.