Scott Morrison (Cook, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Hansard source

I rise to speak on the Migration Amendment (Offshore Resources Activity) Bill 2013. At this stage the coalition will not be supporting this bill and will be seeking to refer it to the Senate Legal and Constitutional Affairs Committee for further review, to clarify the economic impacts and to ensure that there are no unintended border control consequences that arise from this legislation.

As we see it today, we believe this bill is an attempt to regulate overseas workers participating in offshore resources activities by bringing these people into Australia's migration zone and thus requiring them to hold a valid visa under the Migration Act. Our concern is that this is just yet another union-placating exercise from this government and from this minister, particularly since this minister took hold of the portfolio earlier this year.

This is the same minister—who, sadly, is no longer with us at the table now—who shouted from the rooftops that there were 10,000 rorters in the 457 visa system while his department tripped over itself to distance itself from that claim. Clearly, that was a claim that was completely made up by the minister at the time.

This is the same government that in their attacks on the 457 visa program for months have been demonising skilled workers—skilled migrants—and the contribution they have made, and continue to make, to building this nation. This is an extraordinary thing to see; that after decades and decades of bipartisan support for skilled migration in this country this government would launch into the attacks that they have against skilled migrants in this country, who contribute from day one.

Now Labor have set their sights on resource projects. We have noticed that there has been quite a pattern since Minister O'Connor came into the revolving door of the immigration portfolio. First, there were these claims that I mentioned about the 457 visa rorting that no government agency and no report have been able to confirm. Perhaps, they came from his brother, the National Secretary of the CFMEU. He is well-known to the minister, obviously. Remember, this is the same CFMEU that donated more than $6 million to the Labor Party over the last decade.

We know that Minister O'Connor simply made this figure of 10,000 up. He plucked it right out of the air and was later forced to admit that this had been the case when the department did not provide, or was certainly not willing to provide, any evidence to back the claim up or to own any advice that went to him on that matter, because there was none. The officials told the Senate inquiry in no uncertain terms:

We certainly did not provide advice around a number of 10,000.

Not only that but one of Australia's most respected demographers, Professor Peter McDonald, a member of the government's own Ministerial Advisory Council on Skilled Migration, called the Prime Minister's rhetoric on this attack on 457s as 'nasty'. 'Nasty' is what he said about the Prime Minister's attacks on skilled migration.

Now we have this bill, which is clearly designed to appease the Maritime Union of Australia. This is the same union that recently boasted celebrating 114 years of union militancy. This is the same union that has given Labor $3 million since the 2010 election. This Labor government cannot face their failures on our borders, so they go off on these distractions and diversions orchestrated by their union masters to distract the attention of the Australian public. But it is not working, because the Australian public knows and can see through this.

The minister is simply doing the bidding of his union mates, the same unions who bemoan 457 abuses but who I am advised have not actually reported one of those alleged abuses to the Department of Immigration and Citizenship's investigation team. This is not surprising, given that the government has been cutting the funding of the investigatory capacities of the Department of Immigration and Citizenship for years now. That is how seriously they take these concerns.

So concerned are they about 457 workers that they employ them themselves. And so concerned is the Prime Minister about 457s that she employs 'Aussie' John McTernan on a 457 in her own office. Apparently there is a shortage of media people prepared to work for the Prime Minister.

This bill is not subtle. In his second reading speech the minister is inferring that somewhere beyond our shores and beyond the reach of the Migration Act, wealthy resources companies have sent their Australian workers packing and chained foreign workers to their oil rigs and installations to slave away around the clock, overworked and underpaid. That is the sort of imputation that this minister is putting out there in the way that he has characterised these measures. The bill is not subtle, and all it is trying to do is increase the reach of the union movement. That has been a core agenda item of this minister since he has taken over the role.

If only Labor were as concerned about protecting our borders as they are about protecting the interests of the union movement. Perhaps then, we would have had in question time today an honest response from the Prime Minister when asked about whether she continued to support the decision of former Prime Minister Rudd that has caused such havoc on our borders—to abolish proven measures, and the chaos, costs and tragedy that resulted. Perhaps if this government were as keen about protecting our borders as they are the unions then she would have responded honestly, like Mark Latham did—a former Labor leader—just last week when he said it was wrong; just plain wrong.

And it was wrong that the Prime Minister not only did not take that opportunity to do that today in obfuscating in her answer but also, by implication, she stands firmly behind that decision of Prime Minister Rudd. If Prime Minister Rudd were to return as a prime minister again in that capacity—when the government has worked through yet again the latest act of this soap opera that continues to unfold on their side of the House—then he would have to simply answer one question: was he wrong to abolish the measures of the Howard government that has led to the chaos, cost and tragedy that has resulted on our borders from that decision?

The former Prime Minister, when he lost his job, said on the eve that the new prime minister, if she were to become prime minister, was going to lurch to the right. I can only assume that, if Prime Minister Rudd were to come back as Prime Minister, he must be going to lurch to the left and compound even further the grave problems that have occurred on our borders as a result of this government's poor decisions.

There are many problems on so many levels with this bill, and I can run through them. It is worth noting upfront the rank hypocrisy of this bill because when the resources industry has come to this minister, and previously to his predecessor, seeking visas for their workers these requests have been strung out for months on end. They have tied Australian businesses and foreign investors up in union red tape and bullied and belittled skilled migrants. Labor has created sovereign risk and damaged our international reputation by continually changing the rules and moving the goalposts whenever they feel like it.

Enterprise migration agreements are a case in point. These agreements were first announced in May 2011 and were supported immediately by the coalition because, in principle, they are good policy. Yet, to date—despite the then minister announcing one on the very day with the Roy Hill Mine project, implying that this thing had been done—there is no such agreement, even to this day. There is no deed of agreement for an EMA for the Roy Hill Mine project even to this day. This is a policy that has been stillborn by this government—a government that never really believed in it in the first place. With the passing of Minister Bowen and the former minister for resources, the member for Batman, any hope that there would be any genuine follow-through passed on that this quite worthy policy would be given any serious attention by a government who is basically opposed to skilled migration in these forms.

Enterprise migration agreements are a good policy and the coalition continues to support it. Three applications were deemed by the department to be complete on 11 September 2012; yet, it was confirmed in Senate estimates that none have been approved for commencement. The government's farcical and incompetent handling of EMAs has created sovereign risk and threatened vital resource projects in the pipeline.

The mishandling of the Allseas Construction Contractors Australia issue which goes to this bill and this bill put forward before the House, has only created further confusion and threatens to deliver another blow to Australia's reputation. The industry group, Australian Mines and Metals Association., argue that this bill would impose a further level of suffocating regulatory burden on the offshore resource sector for no appreciable social or other gain, and at likely high economic cost. Moreover, AMMA fear that this bill would put at risk the viability of current projects and weigh heavily against the commencement of future projects.

This is a government that is held hostage by the unions simply tying up resource projects, installations and pipelines with yet more union red tape, stifling business and investment. This bill was drawn up by the government in response to the federal court's decision on the matter of Allseas Construction in May 2012. The court found the two pipeline vessels were not Australian resources' installations, within the meaning of the act, while they were wholly or principally engaged in operations relating to the installation of offshore pipelines. The court ruled that the vessels and noncitizens working on those vessels were not working within the migration zone as defined by subsection 5(1) of the act. As a result, overseas workers on board those vessels did not require a visa. But this minister thinks he is above the law and above the court. The bill is an unashamed attempt to get around that court decision, because it is inconvenient for the Labor Party's union masters.

The irony is that Allseas only went to court to begin with because the department of immigration had failed to provide them with the clarification they had been seeking for years. Over a number of years, the AMMA sought clarity from DIAC as to how they interpreted the migration zone with respect to workers on offshore construction vessels. The responses they received were often, 'contradictory, vague and lacking in a rigorous examination of the relevant provisions of the migration act'. Finally, Allseas gave up and went to the Federal Court to try and obtain clarity. The justice on that case confirmed on 22 May:

Allseas has endeavoured to pursue in good faith and openly, firstly, the correct interpretation of the Act from the Minister and, secondly, the obtaining of relief of a declaratory nature to clarify its obligations in those serious and imminent circumstances.

The court decision did not create a loophole; it created clarity—a clarity that was being sought by industry on these matters because clarity had not been provided.

Labor and the unions may not like the clarity, but nevertheless it has been provided. Global law firm, DLA Piper, noted in response to the court decision:

If however amendments to the Act are mooted it will be interesting to see how the legislature proposes to overcome international law and jurisdictional hurdles that may be placed in front of them.

The coalition are not satisfied that these changes overcome those jurisdictional hurdles. Moreover, the coalition is not convinced that the ramification of these changes proposed by Labor have been thoroughly worked through and resolved. This bill could have significant implications for business, for investors, for the resources industry, for matters of border protection—which I will come back to—not to mention the threat of potential litigation and jurisdictional conflict with international law and conventions relating to sovereign rights in international waters.

We need to look before we leap—not something this government is used to doing—and be certain that the changes that Labor is seeking to make, for the sake of placating their union mates, will not unwittingly create serious unforeseen consequences from the first day this bill is introduced and operative.

Concern has been expressed by industry groups, including the AMMA, that any attempt to regulate who may work or the employment conditions on foreign ships in international maritime zones off Australia's coastline would exceed our jurisdiction under international law as found by the Federal Court in relation to the scope of Migration Act. Nations may exercise limited sovereign rights in international waters under the United Nations Convention on the Law of the Sea, but there is also a caveat on sovereign rights contained in article 56(2) which states:

In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.

This is already a heavily legislated and regulated space at international, federal and even state level, but too much regulation is rarely enough for this government.

There are overlapping areas of complex national and international jurisdiction, and any attempt to try and assert Australian law in defiance of existing legal precedents or international conventions must be carefully considered. Vessels and installations are also regulated under the Maritime Labour Convention 2006. Industry groups argue these conventions suggest that EEZ and ECS ships should be entitled to freedom of navigation and that any matters relating to labour conditions on board foreign ships are matters for the flag state. This would seem to be echoed in regulation 1.15D of the Fair Work Regulations 2009 which states:

… the Act does not apply in relation to all the waters … on the landward side of the outer limits of the territorial sea of Australia, including such waters within the limits of a State or Territory to the extent to which its application would be inconsistent with the right of innocent passage or transit passage being exercised by ship other than—

a licensed ship or a majority Australian crewed ship. Furthermore, 1.15E notes that the extension of the Fair Work Act to ships in the EEZ or above the continental shelf is subject to 'Australia's international obligations relating to foreign ships and the concurrent jurisdiction of a foreign state'. On that basis, the Migration Act cannot be seen to apply as a blanket rule across the board to all vessels in the territorial sea, the EEZ or the ECS. Clearly, there are exceptions that need to be looked into meticulously.

The coalition recognise the importance of the offshore resources industry, which is precisely why the government should not be charging into this like a bull in a china shop without due consideration of the impacts on business and projects in the pipeline. Australia is the world's ninth largest energy producer, and each year our oil and gas industries make up 2½ per cent of GDP, generating $28 billion in revenue. These industries also contribute about $9 billion in direct tax payments and supply 58 per cent of Australia's primary energy needs.

An inquiry by the Inspector of Transport Security into offshore oil and gas resources sector security found that companies are 'increasingly recruiting personnel from overseas due to skill shortages in Australia'. The government has said that estimates as to how many people are employed on these rigs without visas are sketchy—not like the minister's own claim about 457 abuses. This is convenient to the minister and his smear campaign on these arrangements, although I am surprised he has not produced another magical number like that 10,000 figure of 457 abuses in the system that I mentioned before. We do not know how many overseas workers are currently employed on these installations without visas. The minister admitted that much in his speech when he said that the government has an 'incomplete picture' of the number and identity of foreign workers in Australia's offshore maritime zones—but this has not been sufficient to stop the minister from charging in with his legislation and regulation on behalf of the unions who have encouraged him. Surely that would be the first piece of information that you would think you would attempt to gather if you were serious about reforms in this space.

The very report the minister referred to, undertaken by the Department of Infrastructure and Transport, noted that whilst companies are having to rely on personnel from overseas to overcome skills shortages in Australia, usually these employees are granted a 457 visa under which an applicant must be sponsored by an employer. The report went on to note that the overseas workers must demonstrate they have the skills to meet the requirements of the nominated position. Many working arrangements on resource installations or vessels are fly-in fly-out operations, and if companies want to be able to move their workers back to the mainland to another worksite or even just transit through an Australian airport or move into a different region of our waters, they require a valid visa for entry. The report concluded that, realistically, 'there is a limit on the extent to which work visa style vetting arrangements could be tightened or extended'.

The department of transport inquiry estimated there were 70 oil and gas facilities operating offshore within Australia's exclusive economic zone in 2012 and that, together, Australia's offshore oil and gas industries employed about 20,000 people in 2010-11. It is critical to note here what the minister has omitted to say—that whilst the Federal Court found the Migration Act may not have the reach to certain offshore installations or vessels, these workplaces are not operated in secret. In addition to the international conventions, the offshore resource industry is already subject to complex and overlapping regulatory systems imposed by various pieces of federal, state and territory legislation.

Under Australian law there are mechanisms in place to safeguard those who work on board installations or vessels in Commonwealth waters. Many installations operate under the purview of the National Offshore Petroleum Safety and Environmental Management Authority, which has responsibility for the regulation of the occupational health and safety of workers on offshore facilities, wells and well operations in Commonwealth waters and in waters where state powers have been conferred. By law, offshore petroleum activities cannot begin before NOPSEMA has assessed and approved a detailed risk management plan, including how an organisation will manage risks to worker health and safety. In 2012 this organisation had oversight of 36 operators, over 151 active facilities including pipelines and production platforms, 25 titleholders across 223 petroleum titles and 257 wells, and 36 activity operators of 110 petroleum activities including drilling and seismic surveys. In 2012 it conducted 99 inspections covering a total of 156 facilities, and these visits included meetings with the health and safety representatives. During the same calendar year, just 13 complaints were made to the organisation relating to health and safety issues—the lowest recorded in seven years. This included anything from work procedures, culture, work environment, noise, heat, pollution, equipment, services, galley and accommodation to fatigue, shifts and rosters, work procedure methods, practices of management, bullying and intimidation.

If the minister has evidence to demonstrate the size of the problem he is trying to point to then by all means produce it, but the parallel between this issue and the minister's attacks on 457s is hard to miss. The coalition look forward to the investigation by the Senate Legal and Constitutional Legislation Affairs Committee, as they perhaps may be able to shed a little more light on this, as the minister has failed to do so himself in putting forward this bill. The coalition as a result cannot lend our support this bill in its present state. The case has just simply not been made by the government. We will not be party to another Labor attack by imputation on either the resource sector or skilled migrants. We will not sign up to another episode of Labor's incompetence that could land Australia in direct confrontation with international law or legal precedent, nor will the coalition support the creation of unnecessary union red tape for business.

The resources industry in Australia not only competes for skilled labour, it also competes for a very limited pool of international investment capital for which there are many alternatives. The way this government speaks about the minerals and resources sectors you would think we had a mortgage on the capital market when it comes to investment in these sectors. We do not. We have very serious competitors and, increasingly, day by day those competitors are getting the better of us. We need to be making ourselves most attractive as an investment opportunity, but this government continues to do its best to scare business off as they continue to parrot their union mantra.

In Western Australia alone there are currently $187.5 billion in major approved projects of which $107 billion are LNG projects. Another $50 billion of LNG projects are awaiting a final investment decision. This bill jeopardises the $50 billion in unapproved LNG projects by increasing the administrative burden, not to mention the costs for engaging overseas skilled workers in this project. This bill has the potential to inflict great pain for very little, if any, gain that can be demonstrated by the government in bringing this matter before the House.

But there is another area of this that is of great concern to the coalition, and that is the unforeseen consequences for border management. The Department of Infrastructure and Transport inquiry report also notes that on some facilities a particular threat is potentially posed by the crews and passengers of SIEVs, suspected illegal entry vessels, and by international fishing boats operating close to and approaching offshore facilities. Certainly, there have been circumstances where illegal boat arrivals have tried to present at oil rigs or resource installations at sea. Currently, all Australian sea and resource installations are defined as excised offshore places so if an IMA reaches an oil rig they are not taken to have arrived in Australia's migration zone and can be processed offshore. However, there is a risk that, if this bill is not properly considered, it may undermine those arrangements. And, despite the minister protesting and saying that he is happy to guarantee these matters, I frankly cannot trust those guarantees.

We need to be sure that this would in no way present any further compromise to our borders beyond what this government has already done. Any definitional changes to Australia's migration zone requires thorough investigation to prevent the occurrence of unintended consequences that may result in litigation or override the power of the Minister for Immigration and Citizenship to grant or refuse a visa. In this instance, there is also Federal Court precedent that must be taken into account.

Again, this is another reason why the bill should be referred to a committee. The coalition cannot support this bill unless assurance can be provided with substantiation other than the 'just trust us' claim that is currently made. Fundamentally, this comes down to a matter of trust, and this government's trust bank is empty when it comes to border protection. There is nothing in that account upon which this government can draw. They are not just in deficit fiscally; they are in deficit when it comes to trust. When the coalition left office in 2007, there were just four people in immigration detention who had arrived illegally by boat. That figure today is over 23,000. More than 44,000 people have turned up on boats and more than 6,000 of those were children.

A government that has failed so terribly on our borders and, under Prime Minister Rudd completely abandoned the measures that worked under that government, and to this day continues to refuse accountability and acknowledgement that that set in motion the cost, chaos and tragedy that we have now seen unfold in our borders, is not a government deserving of trust on anything. This government cannot be trusted to protect our borders.

They can be trusted to protect the interests of unions. They demonstrate that in this bill, and they have demonstrated that in other bills they are seeking to rush through the parliament as we consider these matters in these final weeks of the sitting of this parliamentary term. Whether it is Mr Rudd the member for Griffith, the former Prime Minister, whether it is the current Prime Minister, or whether it is the previous ministers for immigration or the current Minister for Immigration and Citizenship, none of them have earned the trust to come into this place and say, 'Trust me, it will be okay on our borders,' because the carnage that has followed from their decisions on this is there for everyone to see, and we do not trust them. It does not matter who leads the Labor Party, this Labor government will never be trusted on our borders because they have been such a hopeless failure.

So whatever prevails in the acts that follow on the sideshow that is occurring on that side of parliament, the one issue of trust on borders will remain in the negative. It will remain in the negative from now until the election, and the Australian people will have the opportunity to make a decision about that on 14 September. That is why at this stage the coalition is not prepared to support this bill. We will seek to have it referred to committee in the other place where some of these matters can be tested. This government operates from a very low bar when it comes to its substantiation and evidence to support their claims, and the coalition will apply an appropriate and responsible bar. The government has a long way to go.

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