MUA v Minister for Immigration [2016] HCA 34: Visas and Non citizens working on "Australian resources installations"

Today (31 August 2016) in Maritime Union of Australia & Anor v Minister For Immigration and Border Protection & Anor [2016] HCA 34, the High Court of Australia has unanimously held that a Ministerial Determination made by the Minister for Immigration and Border Protection (the Minister) pursuant to subsection 9A(6) of the Migration Act 1958 (Cth) (the Act) exceeded the limits of the power conferred on the Minister by subsection 9A(6) and as such, was invalid.

The Ministerial Determination being challenged purported to remove certain visa requirements for non citizens engaged to work in the offshore resources industry on Australian Installations.

Background

The plaintiffs were both trade unions whose members included workers in offshore resources industries – industries concerned with the exploration of offshore natural resources including gas, petroleum and other minerals. From 1982, section 8 of the Act had provided effectively for a migration zone, and therefore for the requirement for a non-citizen to hold a visa, extending to non-citizens working on "Australian resources installations".

In 2013, the Act was amended (see the Migration Amendment (Offshore Resources Activity) Act 2013) to extend Australia's migration zone to non citizens participating in or supporting an "offshore resources activity" and to impose specified visa requirements in respect of those persons. The relevant provisions included subsection 9A(6) which provides:

Subsection 9A(6) conferred power on the Minister to make a determination excepting an operation or activity from the statutory definition of "offshore resources activity".

The Minister, on 2 December 2015, made a determination excepting from the definition of “offshore resources activity” all operations and activities to the extent that “. . . they use any vessel or structure that is not an Australian resources installation”. The purported effect of the determination was to negate the operation of the specified visa requirements in relation to non-citizens engaged in operations and activities to the extent that they use any vessel or structure that is not an Australian resources installation.

Special Case Stated

The parties filed a special case, which Justice Bell referred for consideration by the Full Court of the High Court. The special case stated the following questions for consideration:

1. Was paragraph 2 of Determination IMMI15/140, entered on the Federal Register of Legislative Instruments on 3 December 2015, invalid?
2. If the answer to Question 1 was “Yes”, what relief, if any, should be granted?
3. Who should pay the costs of the Special Case?

Effectively, the questions of law were directed to whether the Ministerial Determination was beyond power and therefore, invalid and, if so, what relief should flow from that.

The Decision of the Full Court

The High Court’s unanimous decision was that the broad ranging exception contemplated by the Ministerial Determination exceeded the limited terms of the power conferred on the Minister by the operation of subsection 9A(6) of the Act (see pars [23 to [25] of [2016] HCA 34). In the High Court’s view, the context of subsection 9A(6) implied that its purpose was to provide for limited exceptions for particular activities or operations to which it may be determined from time to time the visa regime should not apply. In this case, the entire negation of the extension of the visa regime to non-citizens on vessels and structures that are not “Australian resources installations”, where those non-citizens are in an area in order to participate in or support an offshore resources activity, was in effect to repeal the operation of the amending provisions' extension of the visa regime, and thereby to thwart that legislative purpose.

As a result of the above, the High Court has declared the Ministerial Determination invalid and of no effect. 

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Maritime Union of Australia v Minister for Immigration and Border Protection [2016] HCA 34 (31 August 2016) and Court transcript and summaries at Case S136/2015