Brendan O'Connor (Gorton, Australian Labor Party, Minister for Immigration and Citizenship) Share this | Hansard source

I am very happy to sum up the debate on the Migration Amendment (Offshore Resources Activity) Bill 2013 and I thank all the members for their contribution. The member for Wills—who is still here—and the member for Makin spoke cogently, compellingly and relevantly on the bill. They actually went to the bill in detail. The members for Cook and Kooyong were passionate but just spoke on another bill. The member for Melbourne has raised an issue and has foreshadowed a potential change to the bill and, as indicated, I am very happy to entertain a discussion around that to see whether there needs to be any change to the bill.

I remind the House that the Migration Amendment (Offshore Resources Activity) Bill 2013 amends the Migration Act to ensure that foreign workers in Australia's offshore resources industry are covered by the migration zone and are required to hold visas. This bill is aimed at ensuring all Australian jobs are regulated under Australian migration laws. The Federal Court's May 2012 decision in the Allseas case reduced the Migration Act's coverage of the offshore resources industry. In response, my predecessor established the Migration Maritime Taskforce within my department to examine how best to reform the Migration Act's application to the offshore resources industry.

This bill implements the task force's recommendation. The task force's work revealed that the Migration Act relies on old law to govern the offshore resources industry. The provisions governing the offshore resources industry were inserted in 1982, before the exclusive economic zone was established. Together, the Allseas decision and the out-dated Migration Act provisions represent a significant gap in Australia's ability to regulate its offshore resources industry and to regulate which foreign workers are employed on these valuable national assets.

Without this bill, the government cannot tell if foreign workers in the offshore resources industry are being underpaid or exploited. Without this bill, the government cannot tell how many foreign workers are working in Australia's offshore resources industry. Every other business in Australia needs visas for its foreign workers. Every other business in Australia needs to pay Australian wages. Most companies operating offshore are doing the right thing—just like most companies onshore do—but the Australian people expect the government to regulate jobs.

Underpayment and exploitation reduce work opportunities for Australian citizens, for permanent residents and for foreign workers who do the right thing and hold the right visa. Exploitative hiring practices also put businesses that engage workers with the right visas at a competitive disadvantage. Competitive disadvantage provides a perverse incentive to stage more development offshore to avoid the requirements of the visa system.

We cannot extend the migration zone to the whole EEZ, because international law does not allow that. Foreign ships have a right to free navigation of the high seas and they need to be able to pass through the EEZ, and we cannot require their crews to hold visas. The migration zone cannot be extended into territorial sea for the same reason: there is a right of innocent passage for foreign ships under international law. Because of international law, in most cases, the migration zone stops at the lower water mark. If you go swimming in the ocean, you have probably left it. A ship 50, 20 or even 10 metres offshore is most often not in the migration zone. Put a gas refinery on that ship, and as long as it is not attached to the seabed, none of the workers need to hold visas.

The task force recommended that whether a person is in the migration zone should depend on not only where the person is but also what that person is doing. The task force recommended that the Migration Act should comprehensively regulate the activities of the offshore resources industry. To do this, the bill will link the migration zone to schemes under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 and the Offshore Minerals Act 1994 and other Commonwealth, state or territory laws declared in writing. If an activity needs a licence a person working on it will be in the migration zone.

This bill is only part of the package. A requirement to hold a visa is meaningless without an appropriate visa to go with it. Offshore industry is different to onshore industry. Ships arrive with a crew on board and may leave only a week later. Specialised vessels with no equivalent in Australia are needed for some work. It is a worldwide industry with a specialised worldwide workforce.

The government understands that industry need certainty and flexibility as they develop commercial contracts and run their businesses. That is why my department has begun to prepare for a comprehensive consultation with industry, unions and other stakeholders to shape a new visa pathway specifically for this offshore context. The new visa pathway will give industry the flexibility it needs while ensuring that the Australian government can regulate these Australian jobs and that Australian conditions are maintained. There will be transitional arrangements when the new requirement comes into force next year. We will work with industry to make sure that these are suitable and practical. My department will work with industry to ensure that the changeover is a smooth one. This is not anti-industry reform; it is pro-jobs reform.

I turn now to some of the points that were raised during the debate on the bill. The member for Cook claims that this bill breaches article 56(2) of the United Nations Convention on the Law of the Sea. Article 56(1) provides that Australia has jurisdiction with respect to the exploration and exploitation of the natural resources of the EEZ. Article 56(2) says that Australia must exercise this jurisdiction with 'due regard' to the rights of other nations. It is clear that article 56(1) contemplates imposing conditions on who can exploit the natural resources of Australia's EEZ, otherwise it would be meaningless. The bill is deliberately drafted so as to create a self-contained framework. New section 9A(4) provides that the amendments do not affect an act other than the Migration Act unless that other act expressly refers to the new provisions.

It has been suggested that statistics and information on the offshore workforce should be gathered before making these amendments. The government currently has no power under the Migration Act to collect this information. The bill addresses this by applying the Migration Act framework to the offshore resources industry. There is a principle at stake. All Australian businesses need to get visas for their foreign workers; the offshore resources industry is no exception.

The member for Cook raised enterprise migration agreements. This bill does not engage with enterprise migration agreements. The government will consult with industry, unions and other stakeholders on the details of a new visa pathway designed specifically for the offshore resources industry. As I have said before, the new visa pathway will provide appropriate flexibility to industry while protecting the jobs and working conditions of Australian workers.

On border management, this bill does not materially alter the situation regarding unauthorised maritime arrivals. Asylum seekers will not be covered by the new arrangements because they will not be in an area to perform an offshore resources activity. The ship itself will not be part of the migration zone. Persons performing an offshore resources activity will be taken to be in the migration zone. Nor will this bill make Australian resources installations targets for people smugglers. Asylum seekers who arrive at Australian resources installations by sea will still be unauthorised maritime arrivals. This is because asylum seekers would be taken to have entered Australia as they are on Australian resources installations. Australian resources installations are currently part of the migration zone, are deemed to be part of Australia and are excised offshore places. Unauthorised arrivals there would be subject to a visa application bar, as they are now.

In summary, I thank all the members for their contribution to the debate. Where there are skills shortages and the Australian workforce cannot provide the required labour in Australia's offshore resource activities, there will always be a need for foreign workers. However, this need should not be allowed to undermine Australian working conditions and does not justify the operation of Australian industry without oversight of Australian law, as is currently the case. These are Australian resources and Australian jobs. The resources are governed by Australian laws; the jobs should be too. I commend the bill to the House.

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