FEDERAL COURT OF AUSTRALIA

Allseas Construction S.A. v Minister for Immigration and Citizenship [2012] FCA 529

THE COURT DECLARES THAT:

1.    By operation of s 5(13) of the Migration Act 1958 (Cth) as in force at the date of this order (the Act), the Solitaire and Lorelay (the Vessels) will not be ‘resources installations’ within the meaning of the Act while they are wholly or principally engaged in operations relating to the installation of offshore pipelines for the Gorgon and Jansz gas fields pursuant to the applicant’s contract with Chevron Australia Pty Ltd executed on 29 October 2009 (the Works).

2.    From the date of this order, and to the extent that the Vessels do not enter the area consisting of the States and Territories within the meaning of the definition of ‘migration zone’ in s 5(1) of the Act:

(a)    non-citizens working on or otherwise aboard the Vessels while the Vessels are wholly or principally engaged in the Works will not be within or working within the ‘migration zone’; and

(b)    the applicant will not commit nor be taken to have committed an offence under s 235(1) or s 245AC of the Act by reason of it aiding, abetting, counselling or procuring:

(i)    any non-citizen who holds a Relevant Visa to work aboard the Vessels while the Vessels are wholly or principally engaged in the Works;

(ii)    any person who employs a non-citizen who holds a Relevant Visa to allow or continue to allow that non-citizen to work aboard the Vessels while the Vessels are wholly or principally engaged in the Works.

‘Relevant Visa’ means a visa issued under the Act which is subject to a prescribed condition restricting the work that the non-citizen may do in the migration zone but which does not restrict the work that the non-citizen may do outside the migration zone.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1    The applicant (Allseas) seeks two declarations. The first is, in substance, that by reason of s 5(13) of the Migration Act 1958 (Cth) (the Act), the vessels Lorelay and Solitaire (the Vessels), both of which are pipelaying vessels, will not be resources installations within the meaning of the Act while they are wholly or principally engaged in operations relating to the installation of offshore pipelines for the Gorgon and Jansz gas fields (the Works). The second is that to the extent that the Vessels do not enter the area consisting of the States and Territories within the meaning of the definition of ‘migration zone’ in s 5(1) of the Act:

(a)    non-citizens working on or otherwise aboard the Vessels while the Vessels are wholly or principally engaged in the Works will not be within or working within the ‘migration zone’; and

(b)    the applicant will not commit nor be taken to have committed an offence under s 235(1) or s 245AC of the Act by reason of it aiding, abetting, counselling or procuring:

(i)    any non-citizen who holds a Relevant Visa to work aboard the Vessels while the Vessels are wholly or principally engaged in the Works;

(ii)    any person who employs a non-citizen who holds a Relevant Visa to allow or continue to allow that non-citizen to work aboard the Vessels while the Vessels are wholly or principally engaged in the Works.

2    The applicant owner of the Vessels is incorporated in Switzerland. Chevron Australia Pty Ltd (Chevron) operates the Gorgon Project, comprising the Gorgon and Jansz gas fields. The Project consists of subsea facilities offshore and onshore pipelines and umbilicals tied back to an LNG processing facility on Barrow Island off Western Australia. The Gorgon field is located about 65 kilometres northwest of Barrow Island in water depths of some 200-220 metres. The Jansz field is located approximately 130 kilometres northwest of Barrow Island in water depths of approximately 1350 metres.

3    Allseas contracted with Chevron on 29 October 2009 in relation to the engineering, procurement, construction and installation of pipelines for the Gorgon Project (the EPCI Contract). Under the EPCI Contract, Allseas is obliged to provide the management, installation, engineering and design, procurement, transportation, load out, sea-fastening, pre-pipelay and post-pipelay surveys, fabrication, construction, installation, testing and all associated activities for the offshore pipelines installation for the Gorgon Projects. Of present relevance, Allseas is also responsible for the provision of workers required for the execution of the Works.

4    In order to meet its obligations under the EPCI Contract, Allseas contracted with Lorelay Marine Contractors SA, a company incorporated in Belgium and a subsidiary of Allseas Holdings SA to provide the services of the pipelay vessel, Lorelay and its crew and, secondly, contracted with Solitaire Marine Contactors SA, a company incorporated in Belgium and a subsidiary of Allseas Holdings SA to provide the services of the pipelay vessel, Solitaire and crew. Lorelay Marine Contractors SA and Solitaire Marine Contractors SA will operate the Vessels while providing the services.

5    The workers on the Vessels include or, in the case of the Solitaire, will (as of November 2012) include:

(a)    The vessel management teams comprising in each case the vessel superintendant, master and chief engineer, each of whom will be employed directly by the vessel operator; and

(b)    Specialist equipment operators, technical personnel and some nautical employees, each of whom will be employed by Poseidon Personnel Services SA, also a subsidiary of Allseas Holdings SA pursuant to labour supply contracts with each vessel operator.

6    These personnel have been jointly defined as the Allseas Key Employees.

7    Construction crew are also supplied.

8    All of the persons on board the Lorelay and Solitaire are employed or engaged on the business of the Vessels. No passengers are carried. The Lorelay and Solitaire will install pipeline systems on the seabed.

9    The practical question arising is whether employees aboard the Lorelay and Solitaire have entered Australia. If they have entered Australia within the meaning of the Act, then certain provisions apply concerning their visas and concerning their employment.

10    The respondent (the Minister) contends that there is no ‘matter’ within the constitutional sense and consequentially the Court does not have jurisdiction to make the declarations. In doing so, the Minister says the Court would be doing no more than providing an advisory opinion.

11    For reasons expressed below, I am satisfied that there is a ‘matter’ in the constitutional sense; there is a genuine dispute or justiciable controversy with real and current practical consequences.

12    Secondly and for similar considerations as well as others, I consider it is an appropriate case to exercise a discretion to make declarations which are in my view, deliberately specific, narrow and suitably confined in their scope to deal with the precise dispute which has been raised in the proceeding.

13    And thirdly, given the express exemption in s 5(13)(b) of the Act for vessels partially manoeuvring (in this case) pipelines the Lorelay and Solitaire will not be ‘resources industry mobile units’ and therefore will not be ‘resources installations’ or ‘Australian resources installations’ within the meaning of the Act. It follows that s 5(6) of the Act, which provides that persons on board a ‘resources installation’ are deemed to have entered Australia at the time at which the resource installation becomes attached to the Australian seabed, will not apply, because the Lorelay and Solitaire will not be ‘resources installations’.

14    On Friday, 18 May 2012, I made the amended declarations as sought. Publication of reasons until today was deferred to record the latest responses to the s 78B notices.

CONSTITUTIONAL ISSUE

15    At the conclusion of the oral hearing of the application, those representing the Minister expressed the view that a constitutional issue may have arisen. In consequence, on 19 April they issued notices provided for under s 78B of the Judiciary Act 1903 (Cth) (the Judiciary Act).

16    Those notices directed attention to the debate as to whether there was a ‘matter’.

17    No attorney has sought to intervene in the proceedings at this time. On the date of making the declarations an affidavit was filed confirming that notices under s 78B of the Judiciary Act which were forwarded to all Attorneys-General on 19 April have yielded responses from all but two, indicating the Attorneys do not wish to intervene in this proceeding. Responses have not been received from two Attorneys although they were reminded two days before the declarations were made that judgment may be given. In my view there has been a reasonable opportunity within the meaning of the Judiciary Act for all Attorneys to indicate if they wish to intervene or seek more time to do so.

JURISDICTIONAL QUESTION

18    The Minister had originally advanced an argument that Allseas was seeking to challenge a ‘migration decision’ as defined in s 5(1) of the Act which was a ‘privative clause decision’ as defined in s 474(2) and s 474(3) of the Act engaging s 476A of the Act. The Minister did not pursue that contention.

A ‘matter’

19    As indicated, however, the Minister did argue that no matter has yet arisen as the Minister has not yet sought to act upon the view that he holds and which he advances in this proceeding.

20    It is common ground that s 21(1) of the Federal Court of Australia Act 1976 (Cth) (FCA) provides that the Court may, in civil proceedings in relation to a ‘matter’ in which it has original jurisdiction, make binding declarations of right. The application is pursued under s 39B(1A)(c) of the Judiciary Act, ss 21, 22 and 23 FCA and the Court’s inherent jurisdiction. Under s 39B(1A)(c) the original jurisdiction of the Court includes jurisdiction in any ‘matter’ arising under any laws made by the Parliament other than (and subject to one exception) a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

21    It is not open to the Court to make a declaration in a situation where a hypothetical question is asked or an advisory opinion is sought. Before a declaration can be ordered, it must quell a legal controversy between the parties and will generally involve the final resolution of all relevant issues: Australian Institute of Private Detectives Ltd v Privacy Commissioner (2004) 139 FCR 394 (at [25]). Generally, for there to be a matter before the Court there must be some immediate right, duty or liability to be established by the determination of the Court (Tay v Migration Review Tribunal (2009) 178 FCR 1 (at [25]-39]).

22    In this case, the Minister argues that the orders sought do not seek the declaration of any right held or to be held by Allseas or any duty or liability of the Minister. The Minister contends that to some extent the conduct about which Allseas seek declarations is to take place in the future. This is entirely so in the case of the Solitaire that is scheduled to commence its relevant work on 20 November 2012 and to continue until 10 March 2013. The Lorelay has already commenced its relevant work on 10 December 2011. It is scheduled to continue until 7 November 2012.

23    While the fact that conduct may take place in the future is not of itself a cause of the Court lacking jurisdiction to make a declaration there must be some certainty or immediacy attaching to the consequences to which the declaratory relief is directed (Copyright Agency Ltd v Charles Sturt University (No 2) (2001) 113 FCR 369 (at [50]) and Horn v Australian Electoral Commission (2007) 163 FCR 585). The Minister argues that the orders sought do not seek the declaration of any right held or to be held by Allseas or any duty or liability of the Minister and that to some extent the conduct about which declarations are sought is to take place in the future (entirely so in the case of the Solitaire). The Minister argues that Allseas has taken a commercial gamble to enter contracts and proceed with operations without first ensuring that non-citizens have obtained visas that may be required. The Minister suggests that the Court should infer that the conduct of the Vessels and those on board the Vessels will only be likely to occur or to continue to occur if the declarations sought are granted. This would amount to Allseas obtaining ‘a commercial crutch’ by way of an advisory opinion.

24    The dispute is whether non-citizens working upon the Vessels while they are wholly or principally engaged in operations relating to the installation of offshore pipelines for the Gorgon/Jansz gas fields are or are not working within the ‘migration zone’ as defined in s 5(1) of the Act.

25    The disputed views on that topic have been expressed in clear and strong terms. Although no express undertaking not to remove the non-citizens or take other action was not given by the Minister until ventilation of this dispute, it is none the less the case that he has not yet done so.

26    The existence of a ‘matter’ within the meaning of Ch III of the Constitution and s 39B of the Judiciary Act is a jurisdictional prerequisite to the grant of declaratory relief under s 21 FCA. A ‘matter’ is the justiciable controversy or dispute or the subject matter for determination in a legal proceeding: Scott v Handley (1997) 79 FCR 236. In Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 Gaudron and Gummow JJ observed (at [62]):

These statements suggest that the task of identification of the "matter" said to be the subject of the present litigation is to be approached as a tripartite inquiry: first, the identification of the subject matter for determination in each of C22 and C6; secondly, the identification of the right, duty or liability to be established in each proceeding; thirdly, the identification of the controversy between the parties to C22 and C6 for the quelling of which the judicial power of the Commonwealth is invoked. Whilst each of these inquiries may be pursued separately, all are related aspects of the basal question, "is there a 'matter' in the sense required by Ch III of the Constitution?" In our view, there is no such "matter", and this is so whether the moving party here is seen either as the Attorney-General or the ecclesiastical authorities:

27    In Australian Institute of Private Detectives Ltd (at [35]–[39]) Sackville J said:

[35]    French J noted (at [39]) that it was well established that a declaration can be made to the effect that a proposed course of conduct will not be unlawful and that the fact that declaratory relief relates to future conduct does not take the proceedings outside the bounds of federal jurisdictions. His Honour also observed (at [40]) that whether or not there is a real controversy between the parties to litigation is a question of judgment.

[36]    French J held that there was a real controversy between AGL and the ACCC concerning the right or freedom of AGL to proceed with the proposed acquisition, bearing in mind that its freedom to do so had been challenged ‘in a very practical way’ by the regulator and that the challenge could have ‘very concrete commercial consequences’. (emphasis added)

...

[38]    It can be seen that in AGL v ACCC (No 2), the material facts necessary to resolve a specific dispute were before the Court, in the sense that they were fully pleaded. The resolution of that dispute depended upon the application of a statutory provision which required an assessment of the likely future consequences of an acquisition of shares. Any declaration made by the Court would have immediate legal and practical consequences. In the present case, by contrast, no facts material to a specific dispute between the Institute and the Commissioner are pleaded. No consequences would flow from the making of declarations, at least without a series of further factual findings and determinations on issues of law. The circumstances of the present case are therefore far removed from those of AGL v ACCC (No 2). (emphasis added)

[39]    The result is that the present proceedings do not involve a ‘matter’ within the meaning of s 39B(1A)(c) of the Judiciary Act. Accordingly, the Court lacks jurisdiction to entertain the Institute’s claim.

28    A ‘matter’:

1.    is not a judicial proceeding per se, necessarily, but is rather the subject of the underlying controversy which is amenable to judicial determination in that proceeding;

2.    may consist of a controversy between a person who has a special interest in the subject and who asserts that a purported law is invalid under the polity whose law it purports to be; and

3.    excludes the seeking from a Chapter III Court of an advisory opinion or an answer to a hypothetical question.

So much is evident from the leading decision of Croome v Tasmania (1997) 191 CLR 119 (at 124-125).

29    It is not a requirement that the Executive Government has acted to enforce a impugned law. Existing or imminent facts that on one party’s contention give rise to an impending personal liability under a Commonwealth statute will be a ‘matter’: Croome (at 125-127).

30    In the present circumstance Allseas asserts not that a law of the Commonwealth or Parliament is invalid but rather that on its correct interpretation the valid law does not apply in the present circumstances so as to give rise to various criminal and civil liabilities.

31    It is clear that a declaration can be made to the effect that a proposed course of conduct will not be unlawful. The Minister seeks to distinguish the cases relied upon by Allseas, notably Australian Gas Light Company v Australian Competition and Consumer Commission (No 2) [2003] ATPR 41-962 (at [40] per French J). In my view, Australian Gas Light is applicable and does guide the appropriateness of the granting of declaratory relief as does Edwards v Santos Ltd (2011) 242 CLR 421 per Heydon J (at [36]-[41]). Even if declaratory relief relates to future conduct, that does not take proceedings outside the bounds of federal jurisdiction: Re Golden West Resources Ltd (2008) 170 FCR 409 (at [26]-[28]).

32    I am satisfied the evidence in the affidavits and correspondence show that unless the present dispute between Allseas and the Minister is resolved then there remains a real doubt as to the extent of relevant rights, duties and liabilities. Events are occurring or are about to occur with a degree of imminence that may give rise to those rights, duties or liabilities and those rights, duties or liabilities directly touch and impact upon Allseas as well as other affected bodies corporate including corporate and individual employees. The magnitude of the issues is such that persons well beyond the immediate parties will be affected one way or another by the ultimate determination of these issues, not in the sense of a precedent necessarily but in the practical sense that it is more probable than not, and I infer accordingly, that if Allseas receive a favourable declaration, they are more likely than not to provide the workers and services to the major projects concerned. The opposite is also reasonably to be inferred and I do. It is clear from the affidavit material that large numbers of employees on the Lorelay and who will be on the Solitaire hold visas that are subject to condition 8112 which prohibits a visa holder from engaging in work in Australia that might otherwise be carried out by an Australian citizen or Australian permanent resident. By subreg 1.03 of the Migration Regulations, ‘in Australia’ means ‘in the migration zone’. A breach of condition 8112 can have a variety of consequences not least of which are that:

    at least potentially, an offence is committed under the Act by each non-citizen, also by an employer or person engaging the non-citizen;

    as the Minister points out, Allseas will also be exposed to the risk of contravention of the accessorial liability provisions under Ch 2 of the Criminal Code Act 1995 (Cth) and of the Crimes Act 1914 (Cth) to the previously mentioned offence;

    the non-citizens would be subject to mandatory detention and removal from Australia; and

    all of which would result in breach of contractual obligations, economic loss and reputational damage.

33    The totality of these circumstances means that the issue under consideration is well removed from the hypothetical or abstract. Allseas has endeavoured to pursue in good faith and openly, firstly, the correct interpretation of the Act from the Minister and, secondly, the obtaining of relief of a declaratory nature to clarify its obligations in those serious and imminent circumstances.

Discretionary considerations

34    As a separate consideration, it is argued that the second declaration, in substance, seeks advice from the Court as to whether certain workers will or will not require visas. Those workers are not parties to the litigation. There is no evidence that they are even aware of the dispute. It is inappropriate, the Minister submits, for declarations to be made as to the rights of these workers without there first being an opportunity for these workers to be heard. It is argued that the determination of the second declaration is likely to involve consideration or determination of whether the non-citizen workers are unlawfully performing work in Australia. If so, this would involve a commission of an offence under s 235(1) of the Act. With respect to workers on board the Lorelay, such an offence may already have occurred. The Minister contends that a declaration in civil proceedings is an inappropriate process for the Court to effectively determine this issue. This is because it would involve the effective usurping of criminal jurisdiction by a civil court: see Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84 (at [18]-[20]. In that case, Martin CJ said:

18    The court will only grant declaratory relief in respect of the criminality of a proposed course of conduct in exceptional circumstances: Imperial Tobacco v Attorney-General [1981] AC 718, 742. That approach is taken for a number of sound reasons, including the fact that whether or not conduct is criminal may depend critically upon a range of precise facts and circumstances which cannot always be accurately estimated in advance. Another reason for this approach is that in our system, the determination of whether particular conduct is criminal or not is, in serious cases, generally left to a jury, not a Judge.

19    But the cases recognise that in exceptional circumstances, declarations may be made in respect of conduct that could be the subject of criminal charges: Commissioner for Corporate Affairs v Sansom [1981] WAR 32, 36. Those cases also establish that in this respect there is a vital distinction between making a declaration with respect to the lawfulness of conduct which is proposed but has not occurred, and making a declaration as to whether or not conduct which has occurred constitutes a criminal offence. Declarations in respect of proposed future conduct add to the practical utility of this jurisdiction, but a declaration in respect of conduct which has occurred has little practical utility and would usurp the jurisdiction and role of the criminal courts, and for those reasons, will not be made: Commonwealth v Sterling Nicholas Duty Free Pty Ltd [1972] HCA 19; (1972) 126 CLR 297, 305.

20    The exceptional nature of the jurisdiction I am exercising imports two significant constraints. They are:

1.    I should only answer questions directly and explicitly raised by the facts of this particular case, and refrain from making any observations with respect to any other hypothetical scenarios; and

2.    I should only grant declaratory relief if I am satisfied that I have received all the evidence which is relevant to the issues to be determined, and all the facts necessary to determine the issues which arise have been established to an appropriate level of satisfaction.

35    I accept, with respect, the appropriateness of the constraints recognised in Brightwater. In my view, they are presently apposite. The limited and specific nature of the relief sought is appropriately confined to specific circumstances and is made in the light of explicit evidence.

36    Further, there has been a most active and fully authorised contradictor in the Minister: cf Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56 (at [10] et seq).

SUBSTANTIVE DISPUTE

37    To address the substantive issue, it is necessary to record some of the facts which emerge from the supporting affidavit material.

38    I have referred to the status of the companies and the location of the gas fields and the EPCI Contract as well as the Works and, broadly speaking, the obligations of Allseas to provide services and workers aboard the Vessels concerned. In a little more detail, the workers on the Vessels include or in the case of the Solitaire will include:

(a)    The vessel management teams comprising in each case the vessel’s superintendant, master and chief engineer each of whom will be employed directly by the vessel operator;

(b)    Specialist equipment operators, technical personnel and some nautical employees each of whom will be employed by Poseidon Personnel Services (SA) (also a subsidiary of Allseas Holdings SA) pursuant to labour supply contracts with each vessel operator (together the Allseas Key Employees);

(c)    Construction crew employed by Poseidon Personnel Services (SA) pursuant to labour supply contracts with each vessel operator. These constructions crews are mostly employed in super nummary and advisory capacities to transfer knowledge and experience to Australian employees engaged in those provisions (the Allseas Construction Crew);

(d)    Maritime and catering crew, construction crew, rigging (fire line and back deck) provided to the vessel operators by Australian manning agents;

(e)    Non-Destructive Testing (NDT) personnel provided directly to Allseas by Shore Pipeline Services UK Ltd; and

(f)    Client (Chevron) representatives on each vessel working in various quality control and administrative capacities.

39    The evidence shows that the Allseas Key Employees and the Allseas Construction Crew (together the Allseas Employees) are mostly non-citizens. All of the persons on board the Lorelay and Solitaire are persons employed or engaged on board the Vessels on the business of the Vessels, there are no passengers.

The nature of the Works

40    The Solitaire has a deeper draught than the Lorelay which is why the Lorelay will perform the initial pipelaying work, recovering the pipeline tales laid by Chevron from 16 metres below LAT. The Solitaire will commence its operations at a later stage and approximately two kilometres further out to sea at approximately 20 metres LAT.

41    As explained in affidavits, the pipe supply vessels must supply pipe in 12.2 metre pieces (‘joints’) to pipelay vessels Lorelay and Solitaire. The joints will be assembled to a pipeline on board the Lorelay and Solitaire in an area known as the firing line. The firing line consists of line up, welding, inspection and field joint coating stations. The joints are inspected for damage, bevelled and preheated prior to being aligned with the pipeline and partially welded into the pipeline. After enough weld metal is deposited, the vessel is moved forward by one joint length to create the opportunity to insert another joint length. Gradually, along the assembly process, the joint is weld inspected and coated and held in place by tensioners connected to the pipelay vessel such that the vessel can move in a controlled manner relative to the pipeline but also maintain tension in the pipeline.

42    Various employees are required to come into contact with the joints after they have been welded into the pipeline stretching to the seabed. (This is relevant as the Minister contends that a worker on a pipelay vessel may enter the migration zone by physically touching one end of the pipeline while the other end is resting on the Australian seabed).

43    The weld pipeline is passed from the firing line to the stinger. The stinger is a structural element positioned at the end of the firing line. It guides the welded pipeline in the direction of the seabed and provides support for the pipeline as it is lowered onto the seabed. While the pipeline assembly processes are being performed, a catenary (a specific curve) is maintained between the seafloor and the pipelay vessel to avoid the pipeline buckling. The pipeline simply rests on the seabed with its weight maintaining the position without the need for any external fixture.

44    The Lorelay and Solitaire are self propelled. They remain in position through their own Dynamic Positioning (DP) Systems. The DP Systems take input from a number of positioning and navigation systems and from this verified input manages a number of thrusters (propellers) installed in the vessel at variable output and orientation locations. Through the DP System, the Vessels are able to maintain position while the pipeline is assembled. The DP System also moves the vessel forward when a pipe joint is completed. Space needs to be created in the firing line to insert a new pipe joint into the firing line.

45    The Minister focuses in particular on the fact that the pipeline which extends to the Australian seabed will come into contact with the Vessels containing non-citizen personnel and that non-citizen personnel will also come into contact with the pipeline joints that have been welded into part of the pipeline stretching to the seabed. The Minister expressly contends that it is the contact between the pipeline attached to the seabed and the Vessels or, alternatively, people who may contact with the pipeline on the Vessels that causes either those people or, alternatively, all of the people on board the Vessels to enter into the ‘migration zone’.

Legislative provisions

46    Provisions relating to resources installations, although they were originally called ‘offshore installations’ were first included in the Act by the Offshore Installations (Miscellaneous Amendments) Act 1982 (Cth). In the Minister’s Second Reading Speech it was indicated that ‘these bills provide that installations attached to the Australian seabed will be deemed to be places in Australia’. The Minister focuses on the fact that the Second Reading Speech did not confine itself to rigs which would usually be stationary installations as distinct from mobile installations such as the two pipelaying vessels presently under consideration. The Minister submits that generally the effect of the legislation as discussed in the Second Reading Speech is that the ‘treatment to be accorded these offshore activities should be no different, in principle, from the treatment accorded similar resource ventures being undertaken within Australia’ (at 1483). The Minister argues that the concern of the legislature as expressed in the Second Reading Speech applies as much to vessels such as the Lorelay and Solitaire and the workers thereon as to ‘rigs’ but both parties accept that the plain meaning and effect of the terms of the legislation has primacy over any extrinsic material content.

47    ‘Migration zone’ is defined in s 5(1) of the Act. The only presently relevant aspect of the definition is that which includes ‘Australian resource installations’ which is defined as meaning a resource installation that is deemed to be part of Australia because of the operation of s 8. There are two aspects in this definition. The first is that there is a ‘resource installation’ and the second is that it is deemed to be part of Australia under s 8 of the Act. Section 8 of the Act which specifies that certain resources installations will be part of Australia in the following terms:

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).

48    A resources installation is defined under s 5(1) as meaning:

(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).

49    Subsection (10) and subs (11) respectively provide:

(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).

50    Those provisions focus upon a structure including a pipeline that is not able to be moved as an entity from one place to another and is used or is to be used offshore in or in any operations or activities associated with or incidental to exploring or exploiting natural resources (subs (10)).

51    In subs (11) reference to a resources industry mobile unit ‘shall be read’ as a reference to a vessel that is used or is to be used wholly or principally in 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 operations or activities associated with or incidental to activities of the kind referred to above or various structures not being vessels which can be disregarded for present purposes.

52    There are also special considerations concerning attachment in other subsections of s 5 of the Act relevant to the construction question which are subss (6), (12), (13), (14) and (23).

53    As has been indicated above, the expression ‘attached to the Australian seabed’ is defined in s 5(14) of the Act. One of the criteria of the expression attachment to the seabed is if it is in physical contact with or is brought into physical contact with a part of the Australian seabed. ‘In physical contact’ is not defined in the Act and accordingly its ordinary meaning applies.

54    From these sections, the Minister contends that the pipeline itself is a resources industry fixed structure as defined in s 5(10) of the Act as it is not able to move or be moved as an entity from one place to another and is to be used offshore in activities associated with or incidental to exploring or exploiting natural gas being a natural resource.

55    Secondly, the Minister contends that the pipeline will be an Australian resources installation as defined in s 5(1) of the Act because it will be in physical contact with a part of the Australian seabed and used wholly or principally in operations or activities associated with or incidental to exploring or exploiting natural resources and therefore deemed to be part of Australia in accordance with s 5(14) and s 8 of the Act.

56    Thirdly, the Minister contends that when the Vessels perform the Works, some workers come into physical contact with the pipeline or, further or alternatively, when any persons on board the Vessels come into physical contact with the pipeline, then the Vessels and all people on board the Vessels by virtue of such contact will have entered the migration zone.

57    For these three reasons, the Minister contends that the Vessels and the persons aboard the Vessels will be in the migration zone as defined in s 5(1) of the Act.

58    In the course of written and oral argument, the Minister emphasised that the critical issue is not whether the Vessels are within the migration zone but ‘whether the people are within the migration zone’.

59    The Minister primarily argued, as I understand it, that a person in contact with the pipeline will fall within the criteria set out in s 5(1) and s 8 of the Act as being ‘in’ the migration zone regardless of the status of the vessel on which they may be situated at the time. The Minister submits that ‘the sensible rationalisation of all of the relevant provisions of the [Act] is that when a worker is in contact with the pipeline to which the [Act] applies, s 5(13) of the [Act] does not prevent that person from being within the migration zone’. However, as will be seen, this argument requires a gloss, constraint or limitation to be read into s 5(13) which is not apparent on its face or otherwise necessary for its operation.

60    This argument appears to recognise that when a person is not in contact with the pipe, the person will not be within the migration zone. The Minister contends, and I accept, that a transient entry into or exit from the migration zone may occur whenever a person is on the boundary of any migration zone.

61    The Minister contends that even if other personnel are not in contact with the pipeline, the preferable construction of the Act is that all of the people then on board the vessel will be within the migration zone. The relevant policy rationale in this construction of the provisions is that when there is a physical connection with the Australian seabed, then people in contact with the pipeline and other people on board vessels from which this is occurring are within the migration zone.

ANALYSIS

62    As a starting point, it is common ground that but for the connection via a pipe being laid to the Australian seabed, the Vessels do not enter the migration zone. This is because at common law the area or limits of a State comprises:

(a)    the land to the seashore at the low water mark; and

(b)    any inland waters and adjacent parts of the sea which are sufficiently landlocked to be regarded as inland waters and part of the State.

63    The ‘migration zone’ under the Act comprises:

(a)    land that is part of a State or Territory to mean the average low water mark on the coast;

(b)    adjacent parts of the sea which are sufficiently landlocked to form part of a State or Territory - and which are also within the limits of a proclaimed port (both criteria must be satisfied);

(c)    piers or similar structures connected to such land or to ground under such sea; and

(d)    Australian resources and sea installations.

64    While engaged on the Works, with the exception of one entry by the Lorelay into the port of Exmouth, it is not intended that the Solitaire and Lorelay will enter any sea within the limits of a State or a Territory or a proclaimed port. The Vessels will instead operate along pipeline routes and throughout the Gorgon and Jansz fields.

65    The definition of ‘Australian resources installation’ in s 5(1) of the Act requires that an ‘Australian resources installation’ must first be a ‘resources installation’. A ‘resources installation’ is defined in s 5(1) to mean either a ‘resources industry fixed structure’ or a ‘resources industry mobile unit’.

66    The Lorelay and Solitaire cannot be ‘resources industry fixed structures’ because they are able to be moved as single entities and do move.

67    As noted, a ‘resources industry mobile unit’ is relevantly defined in s 5(11)(a) to include:

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); … (emphasis added)

68    The Lorelay and Solitaire will not fall within the first part of the definition of ‘resources industry mobile unit’ in s 5(11)(a)(i) of the Act because they do not drill or obtain substantial quantities of material from the seabed.

69    Section 5(13) of the Act provides:

(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.

70    The Lorelay and Solitaire will not fall within the second part of the definition in s 5(11)(a)(ii) because there is an exception in s 5(13) which excludes from the second part of the definition any:

vessel that is used or is to be used wholly or principally in:

…

(b)    manoeuvring a resources installation, or in operations relating to the attachment of a resources installation to the Australian seabed. (emphasis added)

71    As already noted, by reason of s 5(10) of the Act, a pipeline is itself a ‘resources installation’.

72    Consequently a vessel used principally in manoeuvring a pipeline or in operations relating to the attachment of a pipeline to the Australian seabed will fall within the exception in s 5(13).

73    Section 5(14) of the Act relevantly states that:

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 ...

74    Accordingly (and it is not in dispute) the pipeline will be attached to the seabed when it is laid in position.

75    The definition of ‘Australian seabed’ in s 5(1) of the Act relevantly includes:

so much of the seabed adjacent to Australia (other than the seabed within the Joint Petroleum Development Area) as is:

(a)    within the area comprising:

(i)    the areas described in Schedule 1 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006;

…

(b)    part of:

…

(ii)    the seabed beneath the territorial sea of Australia (including the territorial sea adjacent to any island forming part of Australia); or

(iii)    the seabed beneath waters of the sea that are on the landward side of the territorial sea of Australia and are not within the limits of a State or Territory.

76    It is clear and common ground from the description of the areas in Sch 1 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) that all of the pipelines to be laid between Barrow Island and the Gorgon and Jansz fields will be laid on the Australian seabed as defined.

77    The Lorelay and Solitaire are pipelay vessels contracted to install the pipelines. That is the whole purpose of the operation on which they are engaged. They will clearly be used wholly or principally in operations relating to the attachment of a pipeline to the Australian seabed within the meaning of s 5(13)(b). Further the Lorelay and Solitaire will be used ‘wholly or principally in … manoeuvring the pipeline, so as for that reason also to come within s 5(13)(b).

78    As noted by Allseas, the Concise Oxford Dictionary (8th edn) relevantly defines ‘manoeuvre’ as:

1.    a planned and controlled movement or series of moves.

79    The MacQuarie Online Dictionary relevantly defines ‘manoeuvre’ as:

3.    an    adroit    move;    skilful    proceeding,    measure,    etc. - verb (manoeuvred, manoeuvring)

…

5.    to bring, put, drive, or make by manoeuvres.

6.    to manipulate with skill or adroitness. -verb (i) 7. to perform a manoeuvre or manoeuvres.

80    Allseas’ evidence shows that the Lorelay and Solitaire are required to lay the pipeline along predetermined routes and within lateral variances of between plus or minus 1 and 10 metres. The end of each pipeline is required to be laid down on the seabed within a small target box. The Vessels achieve this precision, hundreds of metres below the water line, through the use of their DP Systems, with guidance from Remotely Operated Underwater Vehicles (ROVs). The DP Systems allow the Vessels to move forward in a series of planned and controlled movements as the pipeline is extended one joint at a time and lowered to the seabed.

81    The pipelay vessels will clearly then manoeuvre the pipeline into place. It follows that, by reason of their coming within the exception in s 5(13)(b) of the Act, the Lorelay and Solitaire will not be ‘resources industry mobile units’ and therefore will not be ‘resources installations’ or ‘Australian resources installations’ within the meaning of the Act. Section 5(6) of the Act, which provides that persons on board a ‘resources installation’ shall be deemed to have entered Australia at the time at which the resource installation becomes attached to the Australian seabed, will not apply, because the Lorelay and Solitaire will not be ‘resources installations’.

82    In my view it is unnecessary to resort to extrinsic materials to arrive at the conclusion I have reached. Each party has made passing reference to such materials. For completeness I might add that there does not appear to have been anything in any of those materials to suggest that the amendments were intended to apply to pipelay vessels. The Second Reading Speeches suggest that the provisions in the Act relating to ‘resources installations’ were intended to apply to drilling platforms and rigs and that Parliament did not contemplate that the provisions would apply to pipelay vessels. It is arguable the inclusion in the Bill of the exception which is now s 5(13) of the Act suggests that Parliament was mindful to ensure that the new provisions would not apply to such vessels.

83    I accept Allseas’ argument that it would not make sense for the Act to, by s 5(13)(b), exclude pipelay vessels from the definition of ‘resources installation’, and hence from the ‘migration zone’, only to then provide that the Vessels and/or some or all of the persons aboard those vessels may nonetheless enter the migration zone by reason of the Vessels or persons aboard the Vessels coming into contact with the pipeline in the course of manoeuvring the pipeline or attaching it to the seabed (i.e. doing the very thing which attracts the exclusion in the first place).

84    The Minister’s alternative construction which turns on touching one end of the pipeline to enter the migration zone is not persuasive - a worker, though standing aboard a vessel expressly excluded from the definition of a resources installation, would enter and leave the migration zone by touching and then not touching the pipeline while a worker standing alongside but not touching the pipeline would not be in the migration zone at all. Parliament cannot be assumed to have intended such an absurd result. There is no policy rationale which could warrant it.

85    The Act is concerned with the entry into Australia of persons on board resource installations, rather than with the entry of the Vessels per se. This is reflected in s 5(6)(b) which provides that any person ‘on board’ a resources installation shall be deemed to have entered Australia at the time at which the installation is attached to the Australian seabed. But the workers on the Lorelay and Solitaire are not ‘on board’ the pipeline. They are ‘on board’ the Vessels which, by reason of s 5(13) are not resources installations and therefore not part of the migration zone. The language of s 5(13)(b) is not ambiguous and the Lorelay and Solitaire fall within it.

CONCLUSION AND RELIEF

86    Certain amendments have been made since the original relief was sought by Allseas to respond to submissions made by the Minister in the course of argument.

87    The contract itself which is the subject of declaratory orders may be amended. While this is so, the relief pertains only to the current form of the contract. Should it be amended in a way which amends the Works in a manner not presently addressed in the reasoning giving rise to the conclusions and relief presently sought and to be granted, that would be at Allseas’ risk. The prospect of that risk seems remote given the geography and methodology of pipelaying the subject of analysis in these reasons.

Costs

88    I will receive submissions on costs and determine that issue on the papers.

89    For the foregoing reasons, the following declarations are made:

1.    By operation of s 5(13) of the Migration Act 1958 (Cth) as in force at the date of this order (the Act), the Solitaire and Lorelay (the Vessels) will not be ‘resources installations’ within the meaning of the Act while they are wholly or principally engaged in operations relating to the installation of offshore pipelines for the Gorgon and Jansz gas fields pursuant to the applicant’s contract with Chevron Australia Pty Ltd executed on 29 October 2009 (the Works).

2.    From the date of this order, and to the extent that the Vessels do not enter the area consisting of the States and Territories within the meaning of the definition of ‘migration zone’ in s 5(1) of the Act:

(a)    non-citizens working on or otherwise aboard the Vessels while the Vessels are wholly or principally engaged in the Works will not be within or working within the ‘migration zone’; and

(b)    the applicant will not commit nor be taken to have committed an offence under s 235(1) or s 245AC of the Act by reason of it aiding, abetting, counselling or procuring:

(i)    any non-citizen who holds a Relevant Visa to work aboard the Vessels while the Vessels are wholly or principally engaged in the Works;

(ii)    any person who employs a non-citizen who holds a Relevant Visa to allow or continue to allow that non-citizen to work aboard the Vessels while the Vessels are wholly or principally engaged in the Works.

‘Relevant Visa’ means a visa issued under the Act which is subject to a prescribed condition restricting the work that the non-citizen may do in the migration zone but which does not restrict the work that the non-citizen may do outside the migration zone.

Associate:

Dated:    22 May 2012