Foreign crews and workers no longer exempt from Visa requirements and minimum pay conditions in offshore work

TheForeign crews and workers on ships operating in the offshore resources industry will be required to obtain visas and receive minimum pay conditions, after a recent decision by the High Court.

Legal details

The High Court ruled that the exemption determination exceeded the limited terms of power conferred on the minister to exempt an operation or activity from the definition of ‘offshore resources activity’ under section 9A(6) of the Migration Act 1958 (Cth) (Migration Act).

The Court noted the following in its reasons for the decision:

• The wording of the ministerial power to create an exception to that definition applied to an operation or activity, which may include multiple operations or activities and might extend to a class of operations or activities, but is not well suited to except operations or activities to some specified extent [21];
• The determination did not conform with the ordinary conception of a power to provide for exceptions because it deprived the general rule of section 9A(1) of all content and so entirely negated that general rule’s operation [22]-[23];
• The text and context of section 9A(6) imply that its purpose is to provide limited exceptions for particular activities or operations to which the relevant minister determines from time to time the visa regime should not apply [25]; and
• The practical effect of the Minister’s exemption determination was to repeal the operation of section 9A(1) and thereby thwart its legislative purpose to extend the operation of the visa regime to non-citizens on ships or unmoored structures who are in an area to participate in or support an offshore resources activity [25].