Marine Orders Part 28 —Operations standards and procedures —Issue 3, Marine Order No. 4 of 2009

19 November 2009

The Hon Anthony Albanese MP

Minister for Infrastructure, Transport, Regional Development and Local Government

Suite MG.43

Parliament House

CANBERRA ACT 2600

Dear Minister

I am writing in relation to Marine Orders Nos 4 and 7 of 2009 made under subsection 425(1AA) of the Navigation Act 1912. The Committee’s consideration of these Orders has raised the following matters.

Marine Order No. 4 of 2009 - Part 28 —Operations Standards and Procedures - Issue 3

Subclause 6.2.6 of this Order requires a company to arrange for records to be maintained of hours of work and rest in relation to watchkeeping duties. This is a penal provision. The provision does not give any indication as to the form in which records must be kept, the location in which they must be kept, nor the duration for which they must be kept. Given that this is a penal provision, the Committee would appreciate your advice as to why such detail is not specified.

Marine Order No. 7 of 2009 - Part 18 —Measures to Enhance Maritime Safety - Issue 4

The Order supplied to the Committee was not numbered correctly (it is described as Order No. xx). The instrument registered on the Federal Register of Legislative Instruments is, however, correctly numbered.

The Committee would appreciate your advice on Marine Order No. 4 as soon as possible, but before 22 January 2010, to enable it to finalise its consideration of this Order. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room 81.111, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley Chair

25 November 2009

Senator Dana Wortley

Chair

Standing Committee on Regulations and Ordinances

Parliament House

Dear Senator Wortley

Thank you for your letter dated 19 November 2009 about Marine Orders Nos 4 and 7 of 2009.

Marine Orders are made by the Australian Maritime Safety Authority (AMSA). AMSA has provided the following advice.

The Standing Committee on Regulations and Ordinances (the Committee) noted that provision 6.2.6 of Marine Orders Part 28, which requires a company to arrange for records to be maintained of hours of work and rest in relation to watchkeeping duties, is a penal provision. The Committee seeks advice why the provision does not give any indication as to the form in which the records must be kept, the location in which they must be kept, nor the duration for which they must be kept.

Marine Orders Part 28 gives effect to certain provisions of the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, as amended in 1995 (STCW Convention) for Australian-registered vessels.

The STCW Convention gives effect to the STCW Code, which is broken down into two parts, that is, mandatory provisions in Part A and recommendatory provisions in Part B. Provision 6 of Marine Orders Part 28 gives effect to this recommendation and an equivalent provision to that now in provision 6.2.6 has been included in Marine Orders Part 28 for some years.

AMSA has no record of the industry seeking clarification or surveyors having any difficulty with the application of this provision since it has been in operation. In addition, consultation with industry in relation to the proposed amendment did not result in any concerns being raised about this provision by any sector of the industry (including operators and the union sectors).

The recent amendment was made to the provision to recognise non-compliance as attracting a maximum penalty of 250 penalty units for failure to maintain records. This amendment was introduced during a review of Issue 2 of the Marine Order in

light of the significance of seafarers’ fatigue on maritime incidents and the heightened international concern to maintain requirements for ensuring minimum hours of rest and limiting maximum hours of work for seafarers. In particular, the need to ensure minimum rest periods was a focus of significant discussion at the STCW sub-committee of the International Maritime Organization earlier this year.

I am advised that the Australian Workplace Relations Ministers have agreed to prioritise the consideration of the ratification by Australia of the International Labour Organization’s Maritime Labour Convention 2006 (MLC), which is likely to come into force internationally in late 2011. The MLC revises the Seafarers’ Hours of Work and the Manning of Ships Convention, 1996. AMSA proposes to discuss compliance with the requirements for fatigue management of seafarers with the Department of Education, Employment and Workplace Relations (DEEWR) in the context of the ratification of the MLC with a view to either amending Part 28 of Marine Orders to include amendments relating to the maintenance of records of hours of work and rest, in relation to watchkeeping duties, or to remove the relevant penalty provision if covered by the DEEWR legislation implementing the MLC. I trust that this information will allay the Committee’s concerns.

In relation to Marine Orders Part 18, the error, and the cause for the error, has been identified and steps have been put in place to ensure that it will not occur again.

AMSA appreciated receiving the Committee’s request for advice on this matter and trusts that the background to both Marine Orders may mitigate the Committee’s concerns.

Thank you for raising this matter. Yours sincerely

Anthony Albanese

Minister for Infrastructure, Transport, Regional Development and Local Government

26 November 2009

The Hon Anthony Albanese MP

Minister for Infrastructure, Transport, Regional Development and Local Government

Suite MG.43

Parliament House

CANBERRA ACT 2600

Dear Minister

Thank you for your letter of 25 November 2009 in relation to Marine Orders Nos 4 and 7 of 2009 made under subsection 425(1AA) of the Navigation Act 1912 (ref: 08234-2009).

Your letter raises some additional matters, specifically in relation to Marine Order No 4. Subclause 6.2.6 of this Order requires a company to arrange for records to be maintained of hours of work and rest in relation to watchkeeping duties. This is now a penal provision, subject to a significant penalty of 250 penalty units, and this may explain the absence of any concern previously. Given the significance of the penalty, the Committee would appreciate advice as to the form in which records must be kept; whether they must be kept on board or on shore; and for how long they need to be

kept (eg, the duration of a voyage, for 5 years, or indefinitely). It is possible that these matters are covered by the Seafarers’ Training, Certificate and Watchkeeping Code, but the Committee has had difficulty accessing this document.

Secondly, in your letter you indicate that the penalty provision may be removed and replaced by a separate legislative provision. The timetable for this change is not clear.

The Committee would appreciate your advice on the above matters as soon as possible, but before 10 January 2010, to enable it to finalise its consideration of this Order. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley Chair

12 January 2010

Senator Dana Wortley

Chair

Standing Committee on Regulations and Ordinances

Room SG49

Parliament House

CANBERRA ACT 2600

Dear Senator Wortley

Thank you for your letter dated 26 November 2009 about Marine Order No 4 of 2009 which revises Marine Orders Part 28: Operations Standards and Procedures. Your letter was in response to my earlier letter dated 25 November 2009.

The Standing Committee on Regulations and Ordinances (the Committee) has asked for advice on three specific issues relating to provision 6.2.6 of the revised Part 28 of Marine Orders. Provision 6.2.6 requires the maintenance of records of hours of work and rest in relation to watchkeeping duties.

The first issue is the form in which the records must be kept. The records are kept in a relatively standard format world-wide in accordance with the requirements of the safety management system implemented by the operator of the ship. In 1993, the International Maritime Organization (IMO) adopted the International Management Code for the Safe Operation of Ships and for Pollution Prevention (the ISM Code). In 1998, the ISM Code became mandatory. The precise format of the records is a matter for the ship’s operator, although the format generally follows the internationally recognised standard provided as a model format for the recording of hours of rest and work in the ‘Guidelines for the Development of Tables of Seafarers’ Shipboard Working Arrangements and Formats of Records of Seafarers’ Hours of Work and Rest’ which were approved by IMO’s Maritime Safety Committee in May 1998.

A copy of the standard record of the hours of rest and work used by one Australian company is attached for your information. [Not incorporated in Hansard]

The second issue is whether the records are kept on board. Under the ISM Code the Safety Management Manual is required to be kept on board the ship. The record of hours worked forms part of the shipboard working arrangements. The keeping of these records on board is part of well accepted international practice. These records are subject to ship inspection of both Australian and foreign ships in Australian ports, as well as Australian ships in foreign ports, as part of the port State control regime adopted under agreements operating throughout the international maritime community.

Failure to carry these records as part of compliance with the ISM Code can give rise to port State action against a ship.

The third issue is the period for which the records must be kept. The international practice is that the records are kept on board for at least the full cycle of the seafarers’ shift. I acknowledge that there is no specific period prescribed for retention of the records and, in the absence of a total failure to produce any record of hours of work and rest, it would be difficult to establish the elements of the offence set out in provision 6.2.6 of Marine Orders Part 28. Consequently, the Australian Maritime Safety Authority (AMSA) has undertaken to prepare, by the beginning of April 2010, an amendment to Part 28 to require that records must be retained for a specified period.

Lastly, you have referred to difficulty with accessing the Seafarers Training, Certification and Watchkeeping Code. If it would be of assistance to the Committee, a hard copy can be obtained from Mr Brad Groves within AMSA who can be contacted on 02 6279 5656.

Thank you for raising this matter.

Yours sincerely

Anthony Albanese

Minister for Infrastructure, Transport, Regional Development and Local Government