Maritime Union of Australia v Assistant Minister for Immigration and Border Protection

AND: ASSISTANT MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: BUCHANAN J DATE OF ORDER: 15 September 2014 WHERE MADE: SYDNEY

1. The application is dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 780 of 2014

AND: ASSISTANT MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: BUCHANAN J DATE: 15 September 2014 PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 792 of 2014

AND: ASSISTANT MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: BUCHANAN J DATE: 15 September 2014 PLACE: SYDNEY

BUCHANAN J: 1 Each of these proceedings concerns a challenge to the validity of a legislative instrument (IMMI 14/077), registered on the Federal Register of Legislative Instruments (F2014L01003). The legislative instrument is a Determination made by the first respondent on 17 July 2014 pursuant to s 9A(6) of the Migration Act 1958 (Cth) ("the Migration Act"). 2 The Determination, if valid, had the effect of negativing the operation of particular amendments to the Migration Act made by the Migration Amendment (Offshore Resources Activity) Act 2013 (Cth) ("the Amending Act"), to which I will come in detail in due course. 3 The Amending Act broadened the scope of the "migration zone" for the purposes of the Migration Act so that persons involved in an "offshore resources activity" were deemed to be within the migration zone and further prescribed that persons so involved (and others already in the migration zone on an "Australian resources installation") would require a permanent visa (or one of a class of visas to be prescribed for that purpose) in order to work. 4 The Amending Act therefore introduced significant restrictions, in both those respects, on the ability of overseas maritime employees to work in the offshore areas adjacent to Australia. 5 The applicants are each an "employee organisation" within the meaning of the Fair Work (Registered Organisations) Act 2009 (Cth) and the Fair Work Act 2009 (Cth). They claim a direct interest in whether "foreign workers" might be engaged in the "offshore resources industry", to the possible exclusion of their members. That claimed interest is not denied. 6 I propose to set out the background circumstances which explain the occasion for the Determination, but I emphasise that the task of statutory construction, to which it will be necessary to come, is not directly assisted by any of the particular history to which I will refer. That task of statutory construction must focus on the terms of the Migration Act, as altered by the Amending Act. Nevertheless, the analysis will be less obscure if some of the history is revealed.

Background 7 The Migration Act establishes a visa system to regulate the entry into, and residence (permanent or temporary) in, Australia of those persons coming to or remaining in Australia who are not Australian citizens. Section 4 of the Migration Act states: 4 Object of Act (1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. (2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain. (3) To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering. (4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act. (5) To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country. 8 Section 29(1) provides: 29 Visas (1) Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following: (a) travel to and enter Australia; (b) remain in Australia. … 9 Sections 13 and 14 of the Migration Act establish a distinction between lawful and unlawful non-citizens. Sections 13(1) and 14(1) provide: 13 Lawful non-citizens (1) A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen. … 14 Unlawful non-citizens (1) A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen. … 10 The concept of the "migration zone" is foundational to the reach of the Migration Act, and the visa system it implements. The term "migration zone", and a number of other terms upon which it depends and to which it refers, are given defined meanings by the Migration Act. The end result is a complicated one, as will be seen. Nevertheless, the ultimate question to which all the resulting complexity is directed (at least so far as the present case is concerned) is who must have a visa in order to work in the offshore areas and activities to which I will direct attention. The Amending Act introduced new requirements, and extended old ones. The Determination effectively cancelled those alterations. 11 Three important matters of construction must be borne in mind in the journey through the thicket of intertwined definitions and when attention is given to the changes which were made by the Amending Act and then undone by the Determination. 12 The first matter is the reminder by McHugh J in Kelly v R (2004) 218 CLR 216 at [103]: 103 … the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better - I think the only proper - course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment. 13 The second matter is that s 11B(1) of the Acts Interpretation Act 1901 (Cth) directs: 11B Amending Act to be construed with amended Act (1) Every Act amending another Act must be construed with the other Act as part of the other Act. … 14 The third matter is that delegated legislation (such as the Determination) must conform to the purposes for which it is enabled (see e.g. Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 756, 757-8; R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 186). 15 In the Migration Act, the following definitions in s 5(1) bear directly upon the terms of the Migration Act, before the Amending Act took effect: 5 Interpretation (1) In this Act, unless the contrary intention appears: … Australian resources installation means a resources installation that is deemed to be part of Australia because of the operation of section 8. … enter Australia, in relation to a person, means enter the migration zone. … migration zone means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes: (a) land that is part of a State or Territory at mean low water; and (b) sea within the limits of both a State or a Territory and a port; and (c) piers, or similar structures, any part of which is connected to such land or to ground under such sea; but does not include sea within the limits of a State or Territory but not in a port. … remain in Australia, in relation to a person, means remain in the migration zone. … resources installation means: (a) a resources industry fixed structure within the meaning of subsection (10); or (b) a resources industry mobile unit within the meaning of subsection (11). … 16 Section 5(10)-(14) stated: 5 Interpretation … (10) A reference in this Act to a resources industry fixed structure shall be read as a reference to a structure (including a pipeline) that: (a) is not able to move or be moved as an entity from one place to another; and (b) is used or is to be used off-shore in, or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources. (11) A reference in this Act to a resources industry mobile unit shall be read as a reference to: (a) a vessel that is used or is to be used wholly or principally in: (i) exploring or exploiting natural resources by drilling the seabed or its subsoil with equipment on or forming part of the vessel or by obtaining substantial quantities of material from the seabed or its subsoil with equipment of that kind; or (ii) operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (i); or (b) a structure (not being a vessel) that: (i) is able to float or be floated; (ii) is able to move or be moved as an entity from one place to another; and (iii) is used or is to be used off-shore wholly or principally in: (A) exploring or exploiting natural resources by drilling the seabed or its subsoil with equipment on or forming part of the structure or by obtaining substantial quantities of material from the seabed or its subsoil with equipment of that kind; or (B) operations or activities associated with, or incidental to, activities of the kind referred to in sub-subparagraph (A). (12) A vessel of a kind referred to in paragraph (11)(a) or a structure of a kind referred to in paragraph (11)(b) shall not be taken not to be a resources industry mobile unit by reason only that the vessel or structure is also used or to be used in, or in any operations or activities associated with, or incidental to, exploring or exploiting resources other than natural resources. (13) The reference in subparagraph (11)(a)(ii) to a vessel that is used or is to be used wholly or principally in operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (11)(a)(i) shall be read as not including a reference to a vessel that is used or is to be used wholly or principally in: (a) transporting persons or goods to or from a resources installation; or (b) manoeuvring a resources installation, or in operations relating to the attachment of a resources installation to the Australian seabed. (14) A resources installation shall be taken to be attached to the Australian seabed if: (a) the installation: (i) is in physical contact with, or is brought into physical contact with, a part of the Australian seabed; and (ii) is used or is to be used, at that part of the Australian seabed, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources; or (b) the installation: (i) is in physical contact with, or is brought into physical contact with, another resources installation that is taken to be attached to the Australian seabed by virtue of the operation of paragraph (a); and (ii) is used or is to be used, at the place where it is brought into physical contact with the other installation, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources. 17 Section 8 provided: 8 Certain resources installations to be part of Australia (1) For the purposes of this Act, a resources installation that: (a) becomes attached to the Australian seabed after the commencement of this subsection; or (b) at the commencement of this subsection, is attached to the Australian seabed; shall, subject to subsection (2), be deemed to be part of Australia and shall be deemed not to be a place outside Australia. (2) A resources installation that is deemed to be part of Australia by virtue of the operation of this section shall, for the purposes of this Act, cease to be part of Australia if: (a) the installation is detached from the Australian seabed, or from another resources installation that is attached to the Australian seabed, for the purpose of being taken to a place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits); or (b) after having been detached from the Australian seabed otherwise than for the purpose referred to in paragraph (a), the installation is moved for the purpose of being taken to a place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits). 18 Before the Amending Act, therefore, a visa was required to work upon (and remain on) structures or vessels referred to in s 8 of the Migration Act, subject to the limitations in the various definitions incorporated in that section, which was itself a definitional section directed ultimately to the question of when a person was in the migration zone and, accordingly, required a visa to enter and remain in Australia and would be an unlawful non-citizen without a visa. 19 The operation of this part of the Migration Act was considered by McKerracher J in Allseas Construction SA v Minister for Immigration and Citizenship (2012) 203 FCR 200. His Honour ruled that two pipelaying vessels, which were laying pipelines between the Gorgon and Jansz gas fields and Barrow Island off Western Australia, did not come (with the workers on those vessels) into the migration zone. The workers were mostly non-citizens. Attention was focussed on s 8 of the Migration Act and, in turn, on s 5(10)-(14) of the Migration Act. McKerracher J ruled that the vessels came within the terms of s 5(13)(b) of the Migration Act, that they were therefore not a "resources industry mobile unit" and so not a "resources installation" or "Australian resources installation", were not deemed to be part of Australia and were not within the migration zone. The workers on the vessels therefore did not need visas. 20 The applicants in the present proceedings, amongst others, were dissatisfied with that outcome. The Government established a Migration Maritime Taskforce ("the Taskforce"). The Taskforce recommended legislative change. 21 Material before the Court on the present application offered the following summary: The Taskforce recommended that the existing legislative framework that essentially provides that persons are in the migration zone based on where they are physically located be supplemented with a new legislative concept. This new concept would provide that all offshore resource workers, including support staff, are taken to be in the migration zone when they are engaged to conduct or support activities regulated by Commonwealth, State and Territory legislation relating to the exploration and exploitation of Australia's natural resources. 22 The Government did not act on a recommendation in terms this broad, but it did introduce the Bill for the Amending Act, which sought to introduce two important changes: first, to extend the migration zone to include the concept of "offshore resources activity"; and, secondly, to insert new requirements that persons involved in such activity (whether or not within the existing operation of s 8) were not allowed to work without a permanent visa or a visa prescribed for that purpose. 23 Importantly, however, and in contradistinction to the operation of s 8 (and s 9 which dealt with "sea installations" in a similar way to s 8) the new provisions were to be accompanied by a Ministerial power to make exceptions, or to include new matters. The scheme of the new provisions (which I will set out shortly) was intended to take existing Commonwealth legislative regulation as a reference point. 24 The Explanatory Memorandum explained this, and other, features of the Bill in the following way: OUTLINE … The amendments in this Bill will regulate foreign workers participating in offshore resources activities by bringing these persons into the migration zone and thereby requiring them to hold a visa under the Act. In terms of selecting offshore resources activities, the Taskforce recommended referencing a legislative solution that comprehensively administer the activities of the offshore resources industry comprising the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the Offshore Petroleum Act) and the Offshore Minerals Act 1994 (the Offshore Minerals 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 in 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 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 which address breaches of work and visa conditions. … SCHEDULE 1 - Amendments Part 1 - Amendments Migration Act 1958 … Item 6 After section 9 … 38. New section 9A creates a new framework that provides that persons in an area participating in, or supporting, an offshore resources activity are taken to be in the migration zone (the deeming provision). New section 9A further clarifies how this new framework operates by deeming when persons are taken to be in Australia, taken to travel to Australia, taken to enter Australia and or taken to leave Australia. It further defines offshore resources activity for the purposes of the Act. The purpose of this amendment is to bring persons participating in, or supporting, an offshore resources activity in the relevant area within the ambit of the Act, thereby requiring these persons to hold visas. … 41. New section 9A is based on the recommendations of the Taskforce. The Taskforce recommended that the existing legislative framework that essentially provides that persons are in the migration zone based on where they are physically located be supplemented with a new legislative concept. The policy intention is to provide that all offshore resource workers, including support staff, are taken to be in the migration zone when they are engaged to conduct activities regulated by Commonwealth, State and Territory legislation relating to the exploration and exploitation of Australia's natural resources. … Meaning of offshore resources activity Subsection 9A(5) … 92. New paragraphs 9A(5)(a) and 9A(5)(b) make it clear that all regulated operations under the Offshore Petroleum Act and all activities performed under a licence or a special purpose consent under the Offshore Minerals Act are captured by the definition of offshore resources activity unless the Minister has excluded the operation or activity by using his powers under subsection 9A(6). This would allow the Minister to exclude from the Act activities defined under the Offshore Petroleum Act and the Offshore Minerals Act which the Minister considers unsuitable to be captured by the definition of offshore resources activity. … 94. New subparagraph 9A(5)(c)(ii) provides that an offshore resources activity can also include an activity, operation or undertaking (however described) that is being carried out, or is to be carried out under a law of the Commonwealth, a State or a Territory determined by the Minister under subsection 9A(6). 95. The purpose of this amendment is to enable the Minister to determine as an offshore resources activity, an activity which is not covered by the Offshore Petroleum Act or the Offshore Minerals Act under new subsection 9A(6) for the purposes the deeming provision in new subsection 9A(1). Therefore, a person who is carrying out an activity under legislation that the Minister has determined to be an offshore resources activity would be taken to be in the migration zone because they are participating in an offshore resources activity. … Subsection 9A(6) 99. New subsection 9A(6) provides that the Minister may, in writing, make a determination for the purposes of the definition of offshore resources activity in subsection 9A(5). 100. More specifically, this amendment provides the Minister with the power to make determinations with respect to the definition of offshore resources activity by: • exempting certain regulated operations under the Offshore Petroleum Act from the definition of offshore resources activity; • exempting certain activities performed under a licence or a special purpose consent under the Offshore Minerals Act from the definition of offshore resources activity; • capturing certain activities, operations or undertakings carried out, or to be carried, out under a law of the Commonwealth, a State or a Territory; • determining the specific law of the Commonwealth, State or a Territory in which those activities are carried out under; and/or • limiting the area in which those activities are carried out under. 101. The purpose of this amendment is to provide the Minister with the flexibility and ability to exempt certain activities administered by the Offshore Petroleum Act and the Offshore Minerals Act from the definition of offshore resources activity. Further, this amendment will provide the Minister with the ability to capture certain other activities not administered by these two Acts but administered by a law of the Commonwealth, a State or a Territory. … Item 8 After subsection 41(2A) … Subsections 41(2B) and 41(2C) 123. New subsection 41(2B) provides that in addition to any restrictions applying because of Regulations made for the purposes of paragraph 41(2)(b), a condition of a visa that allows the holder of the visa to work is not taken to allow the holder to participate in, or support, an offshore resources activity in relation to any area unless the visa is: • a permanent visa; • or a visa prescribed by the regulations for the purposes of this subsection. 124. The purpose of this amendment is to ensure that all non-citizens engaged in an offshore resources activity hold a visa or a permanent visa to participate in, or support, the relevant activity. 125. A person who is not the holder of a permanent visa or a visa prescribed by the Regulations for the purposes of new subsection 41(2B) could not lawfully participate in, or support, an offshore resources activity. … 128. New subsection 41(2C) provides that to avoid doubt, for the purposes of subsection 41(2B), a person may participate in, or support, an offshore resources activity in relation to an area whether the person: • is on an Australian resources installation in the area; • or is, under section 9A, otherwise in the area to participate in, or support, the activity. 129. This new subsection mirrors new subsection 9A(8) which is inserted by item 6 above. The purpose of this amendment is to put beyond doubt that persons engaged in any type of offshore resources activity in the relevant area will be required to hold a permanent visa; or a visa prescribed by the Regulations to participate or support that activity. This will be the case regardless of whether the person is engaged in an activity on an Australian resources installation and is already taken to be in the migration zone under the Act or is participating in or supporting an offshore resources activity for the purposes of new section 9A and will therefore be taken to be in the migration zone under new subsection 9A(1). … (Emphasis in original.) 25 The applicants rely heavily on the legislative purpose which is indicated in the Explanatory Memorandum, although they do so as confirmation of the intention to be discerned from the statutory text itself, and not to displace that statutory text. 26 It will not be necessary to set out the new provisions in ss 41(2B) and (2C), the terms and effect of which are adequately indicated by the extracts from the Explanatory Memorandum set out above. However, the relevant parts of the new s 9A must be set out, together with the amended definitions which assist in its own operation as a definitional provision. 27 A note was added to the end of each of the definitions of "enter Australia" and "migration zone" in s 5 as follows: Note: See also section 9A, which concerns offshore resources activities. 28 A new definition of "offshore resources activity" was added to s 5: offshore resources activity has the meaning given by subsection 9A(5). 29 The new s 9A(1), (5), (6), (7) and (8) stated: 9A Migration zone etc. - offshore resources activities Migration zone etc. (1) For the purposes of this Act, 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. Example 1: A person is taken to be in the migration zone under this section if the person is on a vessel in an area to participate in an offshore resources activity under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 in that area by exploring for, or recovering, petroleum. Example 2: A person who is a member of the crew of the vessel is also taken to be in the migration zone under this section if the person is supporting the offshore resources activity. Example 3: Neither a stowaway on the vessel, nor a person on the vessel because the person was rescued at sea, is taken to be in the migration zone, because neither is participating in, or supporting, the offshore resources activity. … Meaning of offshore resources activity (5) In this section: offshore resources activity, in relation to an area, means: (a) 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 under subsection (6); or (b) 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 activity determined by the Minister under subsection (6); or (c) an activity, operation or undertaking (however described) that is being carried out, or is to be carried out: (i) under a law of the Commonwealth, a State or a Territory determined by the Minister under subsection (6); and (ii) within the area, as determined by the Minister under subsection (6). (6) The Minister may, in writing, make a determination for the purposes of the definition of offshore resources activity in subsection (5). (7) A determination made under subsection (6) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the determination. (8) To avoid doubt, for the purposes of subsection (1), a person may participate in, or support, an offshore resources activity in relation to an area whether the person: (a) is on an Australian resources installation in the area; or (b) is otherwise in the area to participate in, or support, the activity. (Emphasis in original.) 30 The reference in s 9A(5)(a) and (b) to definitional provisions in the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) and the Offshore Minerals Act 1994 (Cth) respectively is apt to initiate further excursions into the legislative interstices of those two Acts. They deal with exploration, production and mining activities in offshore areas under the control of Australia for which particular leases, permits or consents are necessary. It is apparent that, subject to the power of exception in each of s 9A(5)(a) and (b), the intention was to treat those and related activities as ones to which the new requirements for visas, and accompanying restrictions, would apply. 31 It is, in particular, the terms of s 9A(5) and (6) which have been the principal focus of attention in the present proceedings, for reasons which will emerge more clearly shortly. 32 The Amending Act received the Royal Assent on 29 June 2013 and commenced in operation, in accordance with s 2 thereof, 12 months later on 29 June 2014. In the meantime, the political complexion, and policies, of the Government changed after a federal election in September 2013. 33 On 27 March 2014, the new Government introduced a Bill to repeal the whole of the Amending Act. The Bill remains before the Parliament. It is not directly relevant to any legal issue in the present proceedings. 34 On 29 May 2014, one month before the Amending Act was to take effect, the Governor-General, on the advice of the Executive Council, made the Migration Amendment (Offshore Resources Activity) Regulation 2014 (Cth) ("the Regulation"). The intended effect of the Regulation was to prescribe three existing visas for the purpose of the new s 41(2B)(b) of the Migration Act: the Subclass 988 (Maritime Crew) visa; the Subclass 400 (Temporary Work (Short Stay Activity)) visa; and the Subclass 457 (Temporary Work (Skilled)) visa. In addition, changes were made to the expiry arrangements for Maritime Crew visas so that, instead of expiring after five days (with a maximum extension to 30 days) they remained valid for a potentially indefinite period. 35 It may be inferred that the intention behind the prescription of the three classes of temporary visas was to avoid the consequence that, otherwise, those in offshore resource activities would require a permanent visa, a circumstance likely to significantly restrict those non-citizens in the migration zone who would be permitted to carry out such work in addition to Australian citizens. 36 On 16 July 2014 the Senate disallowed the Regulation. By this time the provisions of the Amending Act had commenced. One immediate consequence was that any persons working in an offshore resources activity within the meaning of s 9A required a permanent visa, if not an Australian citizen. 37 On 17 July 2014, the first respondent made the Determination (which was registered on the same day). It provided: I, MICHAELIA CASH, Assistant Minister for Immigration and Border Protection, acting under subsection 9A(6) of the Migration Act 1958, DETERMINE: 1. for the purposes of paragraph 9A(5)(a), a regulated operation (within the meaning of section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006); and 2. for the purposes of paragraph 9A(5)(b), an activity performed under a licence or a special purpose consent (both within the meaning of section 4 of the Offshore Minerals Act 1994). This instrument, IMMI 14/077, commences on the day it is registered on the Federal Register of Legislative Instruments. 38 The effect of the Determination was to except the whole of the defined content of "offshore resources activity" stated by s 9A(5)(a) and (b).

The applicants' contentions 39 The applicants contend: (a) the Determination is invalid because the power to except accommodated by s 9A(5)(a) or (b) may not be used to strip those provisions of effective content; (b) the Determination is "the same in substance" as the Regulation and therefore infringes s 48 of the Legislative Instruments Act 2003 (Cth) ("Legislative Instruments Act"), which states: 48 Disallowed legislative instruments not to be remade unless disallowance resolution rescinded or House approves (1) If, under section 42, a legislative instrument or a provision of a legislative instrument is disallowed, or is taken to have been disallowed, a legislative instrument, or a provision of a legislative instrument, that is the same in substance as the first-mentioned instrument or provision, must not be made within 6 months after the day on which the first-mentioned instrument or provision was disallowed or was taken to have been disallowed, unless: (a) if the first-mentioned instrument or provision was disallowed by resolution - the resolution has been rescinded by the House of the Parliament by which it was passed; or (b) if the first-mentioned instrument or provision was taken to have been disallowed - the House of the Parliament in which notice of the motion to disallow the instrument or provision was given by resolution approves the making of a legislative instrument or provision the same in substance as the first-mentioned instrument or provision. (2) Any legislative instrument or provision made in contravention of this section has no effect. 40 The second contention only arises if the first is not upheld. 41 The first respondent denies both contentions.

The applicants' argument 42 Although it had some subtleties and refinements, the basic argument for the applicants is that a power to provide for exceptions does not permit extinction or effective removal of the provisions to which the exception relates. The argument is, with respect, a powerful one. At one level, it seems almost instinctively correct. However, I have concluded that it should not be accepted. I shall discuss in greater detail why that is so, but one important consideration is that the provisions in question are all definitional. Even though they must be considered as incorporated into the substantive provisions whose construction they are intended to assist, they are all provisions directed to the expansion or contraction of the concept of the "migration zone". In light of the possibilities for adjustment of that concept in s 9A there does not seem to be a reason (in the present case at least) to treat the content of s 9A as fixed by parliamentary intent, or free from particular kinds of Ministerial adjustment, according to the policies and priorities of the Government of the day. 43 The additional content of the concept of the migration zone, which was set out in the new s 9A was clearly intended to be a starting point, not a fixed or final one. The amendments are capable of contraction and of expansion. Whatever changes are made from time to time, the framework set by s 9A will remain until legislatively amended.

The applicants' authorities 44 The cases dealt with hereunder are the principal authorities upon which the applicants rely. As will be seen, in my view they do not take the applicants' arguments the required distance to establish invalidity. 45 Cockle v Isaksen (1957) 99 CLR 155 concerned a challenge to the validity of s 113(3) of the Conciliation and Arbitration Act 1904 (Cth). Section 113 invested jurisdiction in the Commonwealth Industrial Court (which had been established after the decisions of the High Court and the Privy Council in the Boilermakers Cases - R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254; Attorney-General (Cth) v R (1957) 95 CLR 529) to hear appeals from State or Territory courts (other than a Supreme Court) arising under that Act. Section 113(3) provided that an appeal of a kind that lay to the Commonwealth Industrial Court did not lie to the High Court. 46 After dismissal of proceedings by a stipendiary magistrate sitting in the Court of Petty Sessions in Sydney, the appellant (the informant below) appealed directly to the High Court, whose jurisdiction was not questioned by the respondents. It was, however, questioned by the High Court. Dixon CJ, McTiernan and Kitto JJ analysed the position (at 165) as follows: Accepting the validity in substance of sub-s. (1) of s. 113, a basis is provided for the operation of sub-s. (3). If an appeal is of the class properly falling within sub-s. (1) then according to sub-s. (3) it is not an appeal that lies to this Court. The provision must rest for its validity upon the words in s. 73 of the Constitution which authorise exceptions. Section 73 begins - " The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences " ; then follow the descriptions of judgments etc. from which an appeal is to lie. It is upon the legislative power to prescribe exceptions that sub-s. (3) rests. An exception assumes a general rule or proposition and specifies a particular case or description of case which would be subsumed under the rule or proposition but which, because it possesses special features or characteristics, is to be excluded from the application of the rule or proposition. It is not a conception that can be defined in the abstract with exactness or applied with precision; it must depend very much upon context. Section 73 defines the appellate jurisdiction of this Court by reference to the judgments decrees orders and sentences from which there are to be appeals. In every case the judgments decrees orders and sentences are defined by reference to the courts or tribunals by which they are given made or pronounced. In the case of each description of court or tribunal the intention of s. 73 doubtless is that the general rule shall be that the High Court has jurisdiction to hear and determine appeals from its judgments decrees orders or sentences. From that general rule the legislation is empowered to prescribe exceptions. In the present case there is no attempt to use the power to prescribe exceptions so as to destroy the general rule, in relation to any court or tribunal or class of courts or tribunals comprised within s. 73, that an appeal shall lie from its judgments decrees orders or sentences. (Emphasis added.) 47 The applicants relied particularly on the second passage I have emphasised and argued that the Determination in the present case had destroyed the "general rule". However, in my respectful view, those observations do not support the applicants' arguments in the present case. 48 First, the statutory context must be taken into account. It is clear that s 9A(5) permits exceptions, that it does not directly impose a fetter or limit upon the exceptions which may be made, that s 9A(5) remains unaltered in terms by the Determination and that it might readily accommodate a future contraction of the exception or an extension under s 9A(5)(c). Secondly, Cockle v Isaksen was itself an example of a valid exception even though it removed an entire class of appeal from the immediate jurisdiction of the High Court. Thirdly, special considerations apply to examination of the power of the legislative or executive branches of government to cut down the role of the judicial branch, which have no counterpart in the present case. Fourthly, the "general rule" in that case was stated in the Constitution; whereas in the present case each limb of the suggested composite arrangement (general rule and exception) is to be found within the same statute so that the question is simply one of statutory construction. Fifthly, Cockle v Isaksen is not authority for a general rule of statutory construction; nor does it state a grammatical imperative. On the issues in the present case its effect is neutral. 49 In their written submissions the applicants referred also to the judgment of the High Court in Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529, decided before the Boilermakers Cases. Section 31 of the Conciliation and Arbitration Act 1904 (Cth) purported to grant power to the (then existing) Court of Conciliation and Arbitration to hear appeals from State courts exercising State jurisdiction and to prohibit any other appeal (including potentially an appeal to the High Court based on s 73 of the Constitution). The first aspect of s 31 was found to spell its invalidity (see at 542). The second aspect was found to be ineffective (see at 546). In the course of discussing the second aspect, the majority (Dixon CJ, McTiernan, Williams, Webb, Fullagar and Kitto JJ) said (at 544): It is true that the Parliament has a power of making exceptions from the subject matter of the appellate jurisdiction of the High Court, but the power is limited in the case of Supreme Courts in the manner already described and moreover after all it is only a power of making exceptions. Such a power is not susceptible of any very precise definition but it would be surprising if it extended to excluding altogether one of the heads specifically mentioned by s. 73. 50 For the reasons mentioned in relation to reliance on Cockle v Isaksen, in my view those observations do not assist the applicants' arguments in the present case. 51 State of South Australia v Totani (2010) 242 CLR 1 concerned consideration of the validity of s 14(1) of the Serious and Organised Crime (Control) Act 2008 (SA). Section 14(1) obliged a court to make a "control order" prohibiting a person from associating with certain other persons if stated conditions were satisfied. The section permitted the court to make exceptions within the order with respect to associations which the order prohibited. The High Court concluded (by majority) that s 14(1) was invalid because it: … authorised the executive to enlist the Magistrates Court to implement decisions of the executive in a manner incompatible with the proper discharge of its federal judicial responsibilities and with its institutional integrity; … (Extracted from the headnote to the Report at page 2.) 52 As a step towards that conclusion some consideration was given to the facility to make exceptions within the order. Hayne J (with whom French CJ agreed on this issue at [18]) said (at [172]): 172 The operation of the exception provided by the last eight words of s 14(5)(b) was discussed in the course of argument. It was rightly accepted by the Solicitor-General for South Australia that the exception could not be engaged so as to negate the command of s 14(5)(b) by giving it an operation that would permit the Magistrates Court to make a control order without content. There must be, so the Solicitor-General for South Australia submitted, a minimum content in a control order. But that minimum content was not identified. In the end, argument proceeded on the footing that s 14(5)(b) required the Magistrates Court to frame a control order against a person found to be a member of a declared organisation in a way that prohibited the defendant from associating with any person who is a member of any declared organisation unless the person was specifically identified in the control order as excepted from its operation. 53 In my respectful view, those observations do not assist the applicants. In the present case there is no obligatory step directed by s 9A of the Migration Act which necessarily incorporates a minimum (even if unidentified) content. On the contrary, the content (if any) of s 9A as a definitional provision depends upon taking full account of any exceptions. No minimum content is mandated. Accordingly, no need arises on that account for specificity in framing exceptions of the kind referred to by Hayne J. 54 Shop, Distributive & Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 ("SDA") concerned the exercise of Ministerial discretions under the Shop Trading Hours Act 1977 (SA). Shops were by s 14 "except as otherwise provided" required to be closed on a Sunday. Section 13 enabled the Governor, by proclamation to alter shopping hours in a district. Section 5 allowed the Minister to issue certificates of exemption, which grounded a defence to a prosecution based on s 14. The Minister announced government approval of general Sunday trading in the Central Shopping District, but did not proceed as contemplated by s 13. Instead, he issued certificates of exemption under s 5 to a number of shops. 55 The High Court concluded that the power of exemption had been misused. One foundation for that conclusion was that s 5 did not appear to be intended to "lay down an alternative regime". The Court said (at 559-560): In an Act dealing with shop trading hours, the use of the word "exempt" without qualification indicates in our view an intention that an exempt shop should stand outside the regime with respect to shop trading hours which the Act lays down. The use of that word certainly does not suggest that the power to issue a certificate of exemption was intended to be a power to lay down an alternative regime in relation to trading hours. True it is that a certificate of exemption may be subject to specified restrictions and conditions, but a partial exemption, that is, an exemption confined to particular hours on a particular day of the week, can hardly be regarded as a complete exemption subject to a restriction or a condition. 56 However, a firmer foundation was found in the specific facility provided by s 13 to bring about alterations in trading hours, subject to meeting stated conditions for consultation. The Court said (at 560-561): But the strongest indication that the power given to the Minister to issue certificates of exemption does not extend to their use for the purpose of laying down shop trading hours in a shopping district is to be found in s 13. That section provides a means for the alteration by executive act of opening and closing times. Not only does it so provide, but where hours of trading are to be extended, interested persons are to be consulted unless the extension is confined to a period of one month. Understandably, having regard to the Act's concern for employees, where trading hours are to be reduced, the section does not impose any restriction. If it were possible to issue certificates of exemption prescribing shop trading hours which were different from those required by the Act, those protections which s 13 affords to interested persons might be bypassed and this can scarcely have been the intention of the legislature. In our view, the power vested in the Minister by s 5 of the Act is a power to issue a certificate of exemption which exempts a shop from the operation of the Act in the same manner as other exempt shops. The power does not extend to relieving a shopkeeper from the observance of the required trading hours only on a particular day of the week and then only within certain hours on that day. Such an exemption (if it can be called an exemption at all) is only partial. A partial exemption is something which the Act does not envisage. In any event, the power should not be construed as allowing the Minister to effect an alteration of shop trading hours within a shopping district. The means of effecting such an alteration are contained in s 13 of the Act and, having regard to the protections afforded by that section, s 5 cannot properly be regarded as intended to provide an alternative means. 57 In my view, neither aspect of this reasoning finds a parallel in the present case. The second aspect of the reasoning has no relevance at all to the present case. But neither, in my respectful view, does the first aspect. The power of exception stated in s 9A(5)(a) and (b) of the Migration Act is an essential and integral part of the discretionary control by the Minister from time to time of the content of the definition provided by s 9A, as is the power of extension in s 9A(5)(c). It is not foreign to the operation of s 9A, nor to the Migration Act as a whole, to make exceptions. The question remains whether a complete exception may be made, but consideration of that question is not assisted by the statements of the High Court in SDA. 58 The final authority referred to by the applicants in oral arguments was the judgment of the New South Wales Court of Appeal in State of New South Wales v Law (1992) 45 IR 62 ("Law"). Law was referred to by Weinberg J with evident approval in Vanstone v Clark (2005) 147 FCR 299 (at [101]) as authority for the proposition: 101 … The delegate will not be permitted to destroy the purpose of the empowering Act: … 59 It is convenient to deal first with that synthesis, before turning to Law itself. In my view, it is not a description which may be applied to the present case, nor to the effect of the Determination. The provisions of s 9A remain intact. The content of that definitional provision may be contracted or expanded. That does not result in its purpose being eroded or impermissibly altered. That is precisely what the section contemplates. Unless a limit (negative or positive) can be discerned from the statutory text there is no basis for postulating that the statutory purpose has been destroyed (even for the time being). The statutory regime remains unchanged. The specific content from time to time remains in the hands of the Minister from time to time, as appears to be contemplated. 60 Reference to Law itself does not yield any better result for the applicants. Law concerned consideration of the validity of an order made by the Governor under the State Authorities Superannuation Act 1987 (NSW). That Act established a superannuation scheme. Schedule 2 to the Act stated exclusions to the definition of "employee" which in turn governed who might be eligible to become a member of the superannuation scheme. Section 46(1)(f) permitted the Governor by order to amend Schedule 2. The Governor on the advice of the Executive Council made an order to amend Schedule 2 by excluding all persons from the definition of "employee" from the date of effect of the order. The effect of the order (if valid) was to close the superannuation scheme to new members from that date. 61 A majority of the Court of Appeal (Kirby P and Priestley JA) held that the purpose of the Act was to establish a "continuing" superannuation scheme and the effect of the order was destructive of that purpose. Kirby P said (at 74): In short, the effect of the order purportedly made under s 46(1)(f) is not, properly characterised, to amend Sch 2 of the Act. It is, in substance, to repeal or suspend the operation of the Act in respect of all persons, otherwise entitled by its terms to the benefits conferred by Parliament. It is thereby to terminate the continuing scheme established by Parliament. And that is done impermissibly without submitting the proposal to the authority of Parliament. The power to "amend" the Schedule was not, in my judgment, intended to go so far. It was not the purpose of the conferral of such a power to amount, in practical terms, to a complete repeal or suspension of the operation of an Act as it applied to employees who elected to join its scheme after a given date. 62 In a similar vein, Priestley JA said (at 89): … The Act as a whole gives every indication that the Fund is to be a continuing one. Its purpose may of course be changed by Act of Parliament and Parliament may at any time turn the continuing Fund into a closed one if it chooses to do so by statute. Until Parliament takes such a step however the Act continues on foot for its own purposes, these only being discoverable, against the background of circumstances and the contemporary understanding of words present to the mind of the reasonable user of English, from within the Act itself. Those purposes will continue unless and until changed by Act of Parliament; they cannot be changed by any use of an amending power conferred by the Act upon the Governor. The amending power must be used by the Governor to fulfil the purposes of the Act, not destroy them. and (at 90): Having read the Act again since the argument in this appeal, I can find nothing in it to suggest that the Fund established by the Act was to be anything under the Act but a continuing superannuation scheme or that the amending powers conferred by s 46 were to enable any amendments to the Act beyond those ancillary to the establishment and maintenance of a continuing superannuation scheme. The amending power could thus be used to widen or narrow the classes of employers and employees, but not to extinguish all classes of either or both completely, either retrospectively or prospectively. 63 In their written submissions the applicants also referred to observations by Basten JA in Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v New South Wales [2014] NSWCA 116 at [103]-[118]. Those observations concerned the construction of powers to "amend" a statute by regulation. That is not what occurred in the present case. A determination of an exception under s 9A(5)(a) or (b), or one made for the purposes of s 9A(5)(c), does not "amend" the Migration Act. 64 Law is the closest of the authorities referred to by the applicants which, in my view, approaches the point upon which the present question of statutory construction turns but it does not, in my respectful view, contribute greatly to consideration of that question. 65 As I said earlier, the full potential of the statutory scheme remains unaffected by the Determination, even if the definitional content of s 9A has been altered. Section 9A contemplates that its definitional content might be altered by the Minister, by contraction or expansion, at the Minister's discretion. The statutory scheme has not been destroyed even though the migration zone has, in one respect, been contracted. 66 The inability of the applicants to find a binding, or persuasive, authority which raises the same issues of construction as the present case is not fatal to their argument. Novelty is not to be equated with error. However, it leaves the fundamental question exposed as one of broad principle. 67 Is it contrary to the evident statutory purpose to be discerned from the enactment of s 9A, having regard to its operation within the Migration Act as a whole, that at a particular point in time its contribution to the scope of the "migration zone" might be zero?

The approach to statutory construction 68 The High Court has recently repeatedly emphasised that the task of statutory construction begins (and ends) with the statutory text, whatever assistance may be provided by context. 69 In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 ("Alcan"), Hayne, Heydon, Crennan and Kiefel JJ said (at [47]): 47 This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. (Footnotes omitted.) 70 In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98 ("Consolidated Media Holdings"), a unanimous High Court said (at [39]), referring to the passage from Alcan set out above: [39] "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text". So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself. (Footnote omitted.) 71 A short time later, in Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 ("Certain Lloyd's Underwriters"), French CJ and Hayne J set out the same passage from Alcan (at [23]) and went on (at [24]): 24 The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, "[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute" (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision "by reference to the language of the instrument viewed as a whole", and "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". (Footnotes omitted.) 72 The following year, the High Court again unanimously referred in Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 87 ALJR 588 with evident approval (at [47]) to the passages set out above from Consolidated Media Holdings (quoting Alcan) and Certain Lloyd's Underwriters. 73 This year, in Thiess v Collector of Customs (2014) 88 ALJR 514, the High Court again emphasised the dominance of the statutory text, referring particularly to Consolidated Media Holdings at [39], when it said (at [22]): [22] Statutory construction involves attribution of meaning to statutory text. As recently reiterated: "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text". So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. (Footnote omitted.)

The present case 74 The search is, therefore, for a meaning and parliamentary intent guided by the statutory language. When that focus is applied in the present case I perceive no limit of the kind for which the applicants contend which would prohibit a complete (and perhaps temporary) exception of the kind effected by the Determination. Although the operative extent of the migration zone is thereby limited (but not beyond the extent permitted by s 9A(5) itself) the legislative scheme remains unimpaired. 75 Neither s 9A(5)(a) or (b) states any limitation on the power of the Minister. Each appears to give an unfettered discretion to adjust its content or operation, according to the circumstances of the time including Government policy of the day. I do not discern any legislative instruction or intention which would require or mandate that any particular level of operation or activity should be maintained, much less which ones. 76 I therefore conclude that the first challenge to the validity of the Determination should be rejected. 77 It therefore is necessary to consider the second challenge to the validity, which is based upon the provisions of s 48 of the Legislative Instruments Act.

The Legislative Instruments Act 78 I earlier set out the terms of s 48 of the Legislative Instruments Act. Section 48 states its own test, and it is to that test ("is the same in substance") that primary attention must be given. 79 However, both the applicants and the first respondent agreed that it was relevant to consider observations made in the Victorian Chamber of Manufactures v The Commonwealth (The Women's Employment Regulations Case) (1943) 67 CLR 347, which examined a similar provision then in force as s 49(1) of the Acts Interpretation Act 1901 (Cth). In that case, Latham CJ said (at 364): … the section prevents the re-enactment by action of the Governor-General, within six months of disallowance, of any regulation which is substantially the same as the disallowed regulation in the sense that it produces substantially, that is, in large measure, though not in all details, the same effect as the disallowed regulation. … 80 McTiernan J said (at 389): … In my opinion a new regulation would be the "same in substance" as a disallowed regulation if, irrespective of form or expression, it were so much like the disallowed regulation in its general legal operation that it could be fairly said to be the same law as the disallowed regulation. 81 As earlier indicated, the Regulation which was disallowed on 16 July 2014 made no alteration of any kind to the definitional reach of the term "migration zone" in the Migration Act. It proceeded from the foundation established by s 9A, without alteration. The Regulation prescribed classes of visa for the purposes of s 41(2B)(b) of the Migration Act. 82 By contrast, the Determination made no such prescription. In the event that work carried out in connection with an offshore resources activity is within the migration zone (e.g. if the effect of the Determination is modified or if an activity is added under s 9A(5)(c)), s 41(2B) will operate according to its terms without any modification or addition by the Determination. In that sense, at least, the two instruments have quite different legal consequences. 83 A further difference is that the effect of the Determination is that the work and activities referred to by the text of s 9A(5)(a) and (b) are, for the moment at least, taken outside the operation of the whole of the Migration Act. That was not the effect, or consequence, of the Regulation which on the contrary operated because the work and activities were directly subject to the Migration Act. 84 The applicants' submissions emphasised that both the Regulation and the Determination had the effect (more precisely, the consequence) that a permanent visa was not required to carry out the work or take part in the activities. But that is, with respect, a partial and significantly incomplete statement of the substance of each of the instruments. In my view, they are not, in substance, the same. 85 It follows that s 48 of the Legislative Instruments Act does not have the effect that disallowance of the Regulation meant that the Determination could not be made for six months. The second challenge to the validity of the Determination must also be rejected.

Conclusion 86 The challenges to the validity of the Determination fail. The applications must be dismissed. There will be orders accordingly. I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.