Kelvin Thomson (Wills, Australian Labor Party, Parliamentary Secretary for Trade) Share this | Hansard source

I am astonished that the opposition which professes to be concerned about protecting our borders does not support this Migration Amendment (Offshore Resources Activity) Bill. The shadow minister claims to be concerned about protecting our borders but shows no interest in supporting Australian maritime workers. It is disgraceful that the opposition shows no concern about the prospect of foreign flag vessels using foreign workers to extract Australian resources without their having any Australian visas whatsoever. It is a remarkable and scandalous disregard for the interests of Australian workers. The opposition is so deeply and wholly owned by and hostage to large corporations that it will not protect the interests of Australian workers and is happy to see foreign workers exploited in the cause of driving down wages and conditions.

The shadow immigration minister's remarks made the ridiculous claim that the government here is acting above the law. What the government is doing is coming into this parliament with legislation. That is precisely what the rule of law is all about. He also made the claim that the Allseas decision gives clarity. The fact is that we have never had this situation before.

This bill gives all members of the House the chance to show which side they are on—Aussie maritime workers or large foreign corporations. The shadow minister for immigration has made it all too clear that the opposition is on the side of large foreign corporations, not on the side of Australian maritime workers. The shadow minister implied in his remarks that this bill was directed at skilled migrants. It does nothing of the kind. It is not about skilled migrants. What we are talking about here with the Allseas case is workers who have no visa at all, not skilled migrants. The amendments in this bill will regulate foreign workers participating in offshore resources activities by bringing these persons into the migration zone and therefore requiring them to hold a specific visa under the act. Of course, skilled migrants by definition already hold a visa.

The bill represents the government's response to the Federal Court's decision in Allseas Construction SA v Minister for Immigration and Citizenship, in which the Federal Court found that foreign workers on pipe-laying vessels were not in the migration zone and therefore did not require visas. In particular, the bill provides that a person is taken to be in the migration zone while he or she is in an area to participate in or to support an offshore resources activity in relation to that area. On 15 October last year the former Minister for Immigration and Citizenship, the Hon. Chris Bowen, announced that the government would legislate to amend the act and clarify the situation around workers in Australia's offshore maritime zones to address the decision in Allseas and also in fulfilment of a commitment in the ALP platform:

Labor will ensure that all Australian employment and industries are regulated under Australian law, including those located on the landward side of the outer limits of the territorial sea of Australia, in the Exclusive Economic Zone, or in the waters above the continental shelf. To this effect, Labor will review the Migration Act 1958 (Cth) with a view to ensuring that the definition of the 'Migration Zone' encapsulates all offshore Australian employment and industries.

The Federal Court decision found that by the operation of section 5(13) of the act two pipe-laying vessels, the Lorelay and the Solitaire, 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, thus explaining why the foreign workers on these vessels were not within or working within the migration zone and did not require a visa. The decision also meant that foreign-flagged vessels operating in Australia's exclusive economic zone were beyond many of Australia's laws, creating a loophole that could be exploited to the detriment of Australian workers. The Australian Institute of Marine and Power Engineers expressed concern to me that some of the operators of vessels in the offshore oil and gas sector had taken the view that they could use foreign workers on these foreign-flagged vessels without any requirement to obtain anything more than a holiday visa to transfer through an Australian airport—that is, they could work without even having a 457 visa.

There are a large number of foreign-flagged vessels operating in Australian waters which are not engaged in international trading voyages or in interstate trading voyages. The clearest example of this category of vessel is the offshore oil and gas industry fleet. In this booming sector, a large majority of vessels are already foreign-flagged vessels. At any time, there are up to 200 vessels servicing the offshore oil and gas industry in Australia's exclusive economic zone. The majority of these vessels are foreign-flagged vessels—over two-thirds according to the Australian Institute of Marine and Power Engineers. These vessels spend the majority of their time in Australia's exclusive economic zone. Indeed, some of them have spent years in Australian waters.

Minister Bowen established a review within the department of immigration to examine how best to amend the Migration Act to extend the migration zone to all offshore resource industry workers. The shadow immigration minister said that the government had been a bull at a gate and that the minister had been charging in. Neither of these things was true. There was a Migration Maritime Taskforce comprising departmental subject matter experts with legal, operational and policy backgrounds. This was developed to conduct this review and explore options to determine the most appropriate way to ensure that foreign workers in Australia's offshore maritime zones come within the ambit of the act.

The Allseas decision reduced the number of workers in the offshore resource industry captured by the Migration Act, and this, combined with other limitations in the act's operation offshore, has left a significant gap in Australia's ability to regulate the conditions in its offshore resources industry and to regulate which foreign workers are employed on these valuable national assets. Under the current legislative framework, we have an incomplete picture of the number and identity of foreign workers in Australia's offshore maritime zones. This is in part due to the absence of a regulated visa scheme to capture those engaged in Australia's offshore maritime zones and provide the corresponding migration information.

This incomplete information has security ramifications. You would think the opposition might be concerned about security issues, but you would be wrong. The June 2012 report of the offshore oil and gas resources sector security inquiry recognised that visa security checks are one of the only ways Australia is able to examine noncitizens in this security-sensitive industry. While it is recognised—and I think we all agree—that visa character checks have their limits, in their absence the government has no information at all about some of these workers. You would expect that the opposition might be concerned about this, but apparently not.

The task force recommended that all workers should be covered, as these are Australian resources and Australian jobs. The UN Convention on the Law of the Sea gives Australia the jurisdiction to do this, as it provides sovereign rights with respect to the exploration and exploitation of the natural resources of Australia's exclusive economic zone and continental shelf. There has been extensive stakeholder consultation about this problem with the offshore resources industry, unions and other Commonwealth agencies. More recently, the government has consulted on the findings of the task force and the issue, which informed our decision to implement the recommendations of the task force. More consultation will follow as we engage with stakeholders to develop supporting regulations for this change.

There has been a lot of discussion on the best way to effectively address the problem of unregulated work in Australia's offshore resources sector. This bill deals with the practical actions that are necessary to create real, effective tools to deal with this problem. The bill implements the key recommendations of the task force. The task force found that any question as to whether a person was in the migration zone or not should not be solely dependent on where that person was physically located but should also be dependent on the sorts of activities that person was conducting.

The amendments in this bill will regulate foreign workers participating in offshore resources activities by deeming them to be in the migration zone, which enlivens the requirement for them to hold a visa under the Migration Act. The bill will amend the Migration Act to provide that a person is taken to be in the migration zone while he or she is in an area to participate in or to support an offshore resources activity in relation to that area. The bill will define 'offshore resources activity' as an activity administered under the Offshore Petroleum and Greenhouse Gas Storage Act 2006, the Offshore Minerals Act 1994 or under a law of the Commonwealth, state or territory determined by the minister in writing. The amendments in this bill will bring offshore persons into the migration zone and thereby require them to hold a visa under the act.

In addition to these two acts, the bill will create a power for the minister to make a determination in writing for the purposes of defining 'offshore resources activity'. This will provide the minister with flexibility to declare certain activities administered by other regulatory schemes as offshore resource activities for the purposes of the new deemed migration zone. This would include projects that take place within areas that are within the coastal waters of the states and the Northern Territory which are regulated under state and territory laws rather than their Commonwealth equivalents.

The legislative measures will supplement the current framework under the act, which defines as part of the migration zone Australian resources installations and Australian sea installations. Together with the existing provisions in the act, this new, comprehensive framework will ensure that workers in Australia's offshore resources industry are regulated under the act and are required to hold specific visas. Individuals who engage in offshore resources activities in Australia's offshore maritime zones will be subject to existing compliance measures in the act that address breaches of work and visa conditions.

The government is working with industry and with the relevant unions to establish a specifically tailored visa pathway which will ensure that industry has the flexibility it needs while maintaining protection for Australian working conditions. It is proposed to prescribe this visa in the migration regulations of 1994. The new visa pathway will need to be in place before the requirement to hold a visa offshore commences. At this stage it is envisaged that the bill will commence in early 2014 with the intervening period used to develop the new visa arrangements.

I think it is important to implement these changes as soon as possible to give certainty to the offshore resources industry and to workers, and the government understands that industry need certainty as they develop commercial contracts and run their businesses. Where there are skills shortages and where the Australian workforce cannot provide the required labour in Australia's offshore resource activities, there will be a need for foreign workers; however, this need should not be allowed to undermine Australian working conditions and should not happen without the oversight of Australian law as is currently the case. These are Australian resources and Australian jobs. The resources are governed by Australian laws, and the jobs should be too. It gets down to the simple proposition that whilst operating in Australia foreign companies should comply with Australian laws. The current legal structures applying to the Australian maritime industry do not deliver this objective. It is critical that we as a parliament attend to the anomalous situation created by the Federal Court's decision in the Allseas case by amending the Migration Act.

We believe that there is a principle at stake here. These are Australian jobs which should be subject to Australian law. The government should act to exercise Australia's sovereign rights over the exclusive economic zone, and people working in the exclusive economic zone should be covered by Australia's laws just like people who work on the land. I commend the bill to the House.

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