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) Bill 2013
This Bill is 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 Bill
The Migration Amendment (Offshore Resources Activity) Bill 2013 (the Bill) amends
the Migration Act 1958 (the Migration Act) based on the recommendations of the
Migration Maritime Taskforce (the Taskforce) to provide that persons who participate
in, or support an offshore resources activity are taken to be in the migration zone.
The amendments address concerns expressed by industry groups about the
interpretation of provisions in the Migration Act and union concern about foreign
labour conditions employed in the offshore resources industry. Concerns were raised
when the Federal Court of Australia handed down its decision in Allseas Construction
SA v Minister for Immigration and Citizenship which applied the migration zone to
offshore resource installations and certain resource industry vessels only. The Court
found that the Lorelay and Solitaire and that non-citizens working on these vessels
were not within or working within the migration zone as defined by subsection 5(1) of
the Act. This means that the non-citizen workers on board those vessels did not
require a visa.
The Office of International Law (OIL) has confirmed that in the context of
international law, Australia would have jurisdiction under the United Nations
Convention on the Law of the Sea (UNCLOS) to apply its immigration laws to
foreign nationals on foreign-flagged and Australian-flagged vessels which are
engaged in the exploration and exploitation of natural resources and which are located
in Australia’s territorial sea, contiguous zone, exclusive economic zone (the EEZ) or
in the waters above its extended continental shelf. In relation to the waters above
Australia’s extended continental shelf (and beyond the limits of Australia’s EEZ),
OIL advised that Australia has jurisdiction for the purpose of exploring and exploiting
its natural resources.
The Bill supplements the existing provisions relating to Australian resources
installations (which form part of the migration zone) with new provisions that deem
certain persons to be in the migration zone while they are participating in or
supporting:
 a regulated operation (within the meaning of section 7 of the
Offshore Petroleum and Greenhouse Gas Storage Act 2006) that is being
carried out, or is to be carried out, within the area, except an operation
determined by the Minister in writing;
-2 an activity performed under a licence or a special purpose consent (both within
the meaning of section 4 of the Offshore Minerals Act 1994), that is being
carried out, or is to be carried out, within the area, except an operation
determined by the Minister in writing;
 an activity, operation or undertaking (however described) that is being carried
out, or is to be carried out:
o under a law of the Commonwealth, a State or Territory determined by
the Minister in writing; and
o within the area, as determined by the Minister in writing;
The amendments provide the Minister for Immigration and Citizenship with a power
to determine that the new provisions will extend to another law of the
Commonwealth, a State or a Territory. In the short term it is envisaged that this will
be used to incorporate the States’ offshore petroleum regulations which operate in
their respective coastal waters.
In order to enliven section 41 of the Migration Act, which allows the imposition of
conditions relating to work in Australia, the non-citizens captured by the new
arrangements will also be deemed to be in Australia for this limited purpose.
Finally, a new power will be inserted to require non-citizens to hold either a
permanent visa or a visa prescribed by the Migration Regulations 1994
(the Regulations) to participate in, or support, an offshore resources activity when
they are either in the migration zone or taken to be in the migration zone.
The Bill aims to ensure non-citizens engaged in the exploration and exploitation of
natural resources as defined above, require a visa with relevant conditions to work.
This is to ensure there is an appropriate oversight of activities in Australia’s offshore
maritime areas.
Human rights implications
Extraterritorial application of Australia’s human rights obligations
The rights in the ICCPR are expressed so as to apply to persons in Australia’s
territory (which is interpreted to include the territorial sea) and subject to Australia’s
jurisdiction. The ICESCR applies no such explicit restriction. The question as to the
extent to which Australia owes economic, social and cultural rights obligations in
respect of people outside Australia’s territory is contentious and highly technical.
For the purposes of this statement, it is assumed that at least in some circumstances
the relevant rights will be owed by Australia coincidentally with the operation of the
Bill.
Non-discrimination
The Bill engages 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.
-3Article 2.1 and ICCPR:
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.
In its General Comment on Article 2 (E/C.12/GC/20), UNCESCR has stated (at 13)
that:
Differential treatment based on prohibited grounds will be viewed as
discriminatory unless the justification for differentiation is reasonable and
objective. This will include an assessment as to whether the aim and effects of
the measures or omissions are legitimate, compatible with the nature of the
Covenant rights and solely for the purpose of promoting the general welfare in
a democratic society. In addition, there must be a clear and reasonable
relationship of proportionality between the aim sought to be realized and the
measures or omissions and their effects.
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 Act
is to differentiate on the basis of nationality between non-citizens and citizens.
Once it is part of the Migration Act, the Bill will differentiate between Australian
citizens and non-citizens on the basis of their nationality.
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 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 right to work and just and favourable conditions of work
The Bill engages with the right to work in Article 6 of the ICESCR. Article 6
provides:
-4The 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.
Article 7 of ICESCR provides for recognition of the “right of everyone to the
enjoyment of just and favourable conditions of work”. In particular, remuneration
must provide all workers with “fair wages and equal remuneration for work of equal
value”.
The United Nations Committee on Economic, Social and Cultural Rights
(UNCESCR), in its General Comment on Article 6 (E/C.12/GC/19) has stated (at 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.
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.
Imposing limitations on the conditions under which non-citizens can work in
connection with the natural resources of Australia’s offshore maritime zones engages
as it restricts the right to work, but this restriction is directly supportive of the right to
work of Australian citizens and permanent residents, and is a permissible limitation
on the rights of non-citizens.
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.
The Bill does not operate to deprive people of work unfairly. The Bill does not seek
to preclude non-citizens from entering and working temporarily in Australia, but
rather places conditions on that ability. The Bill establishes a legislative framework
which enables Australia to enforce conditions relating to work on resources over
which it has sovereign rights. Non-citizens will be permitted to work on Australian
resources where they hold a valid visa with the appropriate work condition
As with all Australian work visas, conditions will be placed on the visa to be
prescribed in the Regulations for the purposes of participating or supporting offshore
resources activity. Most significantly, these conditions will ensure that wages paid
are equivalent to Australian wages for similar work.
The measure is legitimate, reasonable and proportionate within the framework
established by the ICESCR to give effect to Article 6 and Article 7 in relation to
Australian citizens, Australian permanent residents and holders of valid visas with
appropriate work conditions.
-5The 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.
By deeming certain classes of non-citizens to be in the migration zone in certain
circumstances the Bill will have the effect of rendering such non-citizens liable to
mandatory immigration detention under section 189 of the Migration Act.
The logistics involved with mandatory immigration detention mean that it is unlikely
to be carried out offshore in all but the most compelling circumstances. Further, the
visa arrangements which will support the Bill are anticipated to include an ability to
regularise immigration status while deemed to be within the migration zone.
However, the provision will operate under law the same way it does onshore.
The Australian Government considers that mandatory immigration detention is an
essential component of strong border control. A balance is required between the need
to protect Australia from people who may pose a risk to its national security and the
need to meet its obligations to those found to be in need of protection.
The Australian Government’s position is that the detention of individuals requesting
protection is neither unlawful nor arbitrary per se under international law. Continuing
detention without proper justification may become arbitrary after a certain period of
time. The determining factor, however, is not the length of detention, but whether the
grounds for the detention are justifiable.
In the context of Article 9, “arbitrary” means that detention must have a legitimate
purpose within the framework of the ICCPR in its entirety.
Detention must be predictable in the sense of the rule of law (it must not be
capricious) and it must be reasonable (or proportional) in relation to the purpose to be
achieved.
The reasons unauthorised arrivals are subject to detention are to manage health,
identity and national security risks. The 2012 Offshore Oil and Gas Resources Sector
Security Inquiry undertaken by the Office of the Inspector of Transport Security
recognised that:
While there is no evidence, apart from the issue of cyber intrusion, of any
specific threat against offshore oil and gas infrastructure in Australian waters,
there is international recognition that threats to offshore infrastructure do exist.
The security rationale for immigration detention operating in an offshore context is
clear. People who enter Australia without the appropriate authority do not provide the
Australian Government with an opportunity to assess any risks they might pose prior
to their arrival. This is as true onshore as it is amongst the vital and nationally
significant offshore resources industry infrastructure.
-6Conclusion
The Bill engages the right to work, to freedom of movement and to
non-discriminatory access to human rights. To the extent that they engage these
human rights obligations, it is reasonable, necessary and proportionate in achieving its
objectives.
The Hon. Brendan O’Connor, Minister for Immigration and Citizenship