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Navigation Amendment Bill 2011



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ISSN 1328-8091

Parliament of Australia Departmentof Parliamentary Services

This Digest replaces an earlier version dated 17 June 2011.

Contents

Purpose .................................................................................................................................................... 3

Background .............................................................................................................................................. 3

Introductory comment ....................................................................................................................... 3

The Maritime Labour Convention ....................................................................................................... 4

The International Labour Organization .............................................................................................. 5

Australia and the Maritime Labour Convention ................................................................................. 5

Committee consideration ........................................................................................................................ 6

Financial implications ............................................................................................................................... 6

Key provisions .......................................................................................................................................... 6

Part 1 ................................................................................................................................................... 7

Comment—item 4 ......................................................................................................................... 7

Comment—items 4 and 5 .............................................................................................................. 8

Comment—item 8 ......................................................................................................................... 9

Comment—item 10 ..................................................................................................................... 11

Comment—item 22 ..................................................................................................................... 12

Comment—item 23 ..................................................................................................................... 12

Comment—item 70 ..................................................................................................................... 14

Comment—item 64 ..................................................................................................................... 15

Part 2 ................................................................................................................................................. 15

BILLS DIGEST NO. 136, 2010-11 27 June 2011

Navigation Amendment Bill 2011

Sharon Scully Law and Bills Digest Section

Concluding comments ........................................................................................................................... 16

Navigation Amendment Bill 2011 3

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Navigation Amendment Bill 2011

Date introduced: 25 May 2011

House: House of Representatives

Portfolio: Infrastructure and Transport

Commencement: Sections 1-3 and Schedule 1 Part 2: on Royal Assent; Schedule 1 Part 1: a day to be fixed by Proclamation but not before the day when the Maritime Labour Convention 2006 (the MLC) comes into force for Australia—if the provisions in Schedule 1 Part 1 do not come into force within a six month period of the MLC coming into force, they commence on the day after that six month period as announced by the Minister in the Gazette.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/bills/. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose

The Navigation Amendment Bill 2011 (the Bill) proposes to amend the Navigation Act 1912 (the Act) to ensure consistency between the Act and the MLC in order to provide for the implementation of the MLC in Australia. The Bill also makes minor amendments relating to vessel tracking services.1

Background

Introductory comment

Please note that this Digest focuses on the amendments proposed in the Bill not on the question of whether Australia should ratify the MLC. This question has already been addressed recently by the Joint Standing Committee on Treaties (JSCOT), having considered the opinions of major interest groups.2

JSCOT concluded that the MLC is of significant importance to the seafaring community in Australia. While acknowledging that implementing the MLC is going to be a complicated and possibly costly

1. Explanatory Memorandum, Navigation Amendment Bill 2011, p. 1. 2. See Joint Standing Committee on Treaties, Report 116, tabled 11 May 2011, pp. 51-59, viewed 6 June 2011, http://www.aph.gov.au/house/committee/jsct/1march2011/report/chapter7.pdf

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exercise, JSCOT also noted that most submitters had indicated that the Government had been consulting with them to resolve concerns expressed. JSCOT supported the MLC and recommended that binding treaty action be taken.3

The Maritime Labour Convention

The MLC was adopted by the International Labour Organization (the ILO) on 23 February 2006 and sets out seafarers’ rights in relation to working and living conditions on ships engaged in commercial activities.4

The MLC consolidates 37 separate ILO maritime labour conventions adopted since the 1920s and replaces those conventions with a single instrument.5 In doing so, the MLC sets out global standards based on those contained in existing maritime labour instruments that have been adopted by the ILO and consolidates the international law on these matters.6

The MLC has three parts: Articles and Regulations (these cover core rights and principles and general obligations of ratifying Member States), and the Code (which sets out details of implementation of the Regulations).7

The Regulations and Code are divided as follows:

Minimum requirements for seafarers to work on a ship;

Conditions of employment;

Accommodation, recreational facilities, food and catering;

Health protection, medical care, welfare and social security protection; and

Compliance and enforcement. 8

According to Article VIII(3) of the MLC, the MLC will enter into force:

3. Ibid., paragraphs 7.80-7.81 and Recommendation 9. 4. See ILO, Frequently asked questions about the ILO’s Maritime Labour Convention, 2006, viewed 6 June 2011, http://www.ilo.org/global/standards/maritime-labour-convention/WCMS_CON_TXT_ILS_MAR_FAQ_EN/lang--en/index.htm#P26_2238

For a copy of the MLC, see ILO, Maritime Labour Convention 2006, viewed 6 June 2011, http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@normes/documents/normativeinstrument/wcms_090250.

pdf

5. Joint Standing Committee on Treaties, op. cit., paragraph 7.44. 6. ILO, Maritime Labour Convention 2006, op. cit. 7. See Department of Finance and Deregulation, Maritime Labour Convention—Regulation Impact Statement, p. 2, viewed 6 June 2011, http://ris.finance.gov.au/files/2011/01/Maritime_Labour_Convention_RIS.pdf

8. Ibid., p. 3.

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…12 months after the date on which there have been registered ratifications by at least 30 Members with a total share in the world gross tonnage of ships of 33 per cent.

It has been suggested that the MLC is likely to enter into force in December 2011.9

In relation specifically to Australia, under Article VIII(4) of the MLC:

Thereafter, this Convention shall come into force for any Member 12 months after the date on which its ratification has been registered.

The International Labour Organization

The ILO is a United Nations agency, founded in 1919, which is responsible for making and overseeing international labour standards.10

The ILO has the following functions:

Formulation of international policies and programmes to promote basic human rights, improve working and living conditions, and enhance employment opportunities

Creation of international labour standards backed by a unique system to supervise their application

An extensive programme of international technical cooperation formulated and implemented in an active partnership with constituents, to help countries put these policies into practice in an effective manner

Training, education and research activities to help advance all of these efforts. 11

Australia and the Maritime Labour Convention

Australia is a Member State of the ILO and has ratified 14 of the 37 existing maritime labour conventions.12 These conventions are generally implemented through legislation in maritime,

9. Joint Standing Committee on Treaties, op. cit., paragraph 7.47. See also National Interest Analysis [2010] ATNIA 58 at [2], viewed 6 June 2011, http://www.aph.gov.au/house/committee/jsct/24november2010/treaties/ilo_maritime_nia.pdf

10. ILO, About the ILO, viewed 6 June 2011, http://www.ilo.org/global/about-the-ilo/lang--en/index.htm For information about labour standards, see ILO, Labour standards, viewed 6 June 2011, http://www.ilo.org/global/standards/lang--en/index.htm 11. ILO, Mission and objectives, viewed 6 June 2011, http://www.ilo.org/global/about-the-ilo/mission-and-

objectives/lang--en/index.htm 12. See ILO, Alphabetical list of ILO member countries, viewed 6 June 2011, http://www.ilo.org/public/english/standards/relm/country.htm See also Department of Finance and Deregulation, Maritime Labour Convention—Regulation Impact Statement, op.

cit., p. 2.

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workplace relations, occupational health and safety and compulsory education laws and are largely the responsibility of the Commonwealth, with States and the Northern Territory sharing some of that responsibility.13

On 5 May 2011, the Minister, Mr Anthony Albanese, signed an Accord with members of the ILO relating to Australia ratifying and implementing the MLC.14

It has been stated that Australian legislation is already largely compliant with the MLC, with only a few amendments required, of which the amendments proposed in the Bill are one example.15

Committee consideration

On 26 May 2011, the Bill was referred to the House of Representatives Standing Committee on Infrastructure and Communications for inquiry and report—at the time of writing this Digest, there was no publically available information as to the reporting deadline.16

In addition, at the time of writing the Digest, the Senate Standing Committee for the Scrutiny of Bills had not reviewed the Bill.

Financial implications

The Government states that there is no financial impact arising from the Bill.17

Key provisions

Part 1 of Schedule 1 sets out proposed amendments to the Act related to the MLC.

Part 2 of Schedule 1 sets out proposed amendments to the Act specifically related to vessel traffic services.

Please note that this Digest will focus on some, not all, of the proposed provisions in the Bill.

13. Australian Maritime Safety Authority, Australia and the MLC, viewed 6 June 2011, http://www.amsa.gov.au/mlc/mlc_factsheet.pdf 14. For a copy of the Accord, see Australian Maritime Safety Authority, viewed 6 June 2011, http://www.amsa.gov.au/mlc/Accord%20signed%205%20May%202011.pdf 15. See National Interest Analysis, op. cit., p. 4. See also Department of Finance and Deregulation, Maritime Labour

Convention—Regulation Impact Statement, op. cit., p. 6. 16. Information about this Inquiry is available at: House of Representatives, Inquiry into the Navigation Amendment Bill 2011, viewed 6 June 2011, http://www.aph.gov.au/house/committee/ic/navigation/index.htm 17. Explanatory Memorandum, op. cit., p. 2.

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Part 1

Item 4 proposes to change the heading of Division 8 of Part II in the Act, as well as to insert a new section 45A—Employment agreements.

The existing heading of Division 8 is ‘Engagement of seamen’. Item 4 proposes to change this heading to ‘Engagement of seamen and masters etc.’

Proposed new subsections 45A(1) and (2) provide that the master and owner of a ship taken to sea would be guilty of an offence with a maximum penalty of 20 penalty units or $220018 where the ship is taken to sea without an employment agreement in force relating to:

• a seaman on board the ship, and/or

• the master of the ship.

‘Employment agreement’ and ‘agreement’ are defined in proposed subsection 45A(5) for the purposes of this section.

An ‘agreement’ would have its ordinary meaning and include:

• an employment contract

• articles of agreement, and

• an enterprise agreement under the Fair Work Act 2009.

An ‘employment agreement’ would be any agreement or combination thereof, which deals with employment terms and conditions.

Under proposed subsection 45A(4), regulations may prescribe various matters relating to employment agreements, such as:

• the content and form of such agreements

• the process for signing such agreements, and

• the right of the crew member to review or get advice on the agreement prior to signing it.

Employment agreements must be in accord with any such regulations (proposed subsection 45A(3)).

Comment—item 4

From the wording of proposed subsections 45A(1) and (2), it appears that if there is both a master and an owner of the ship, then both would be liable.

It is noted that the Explanatory Memorandum states:

18. A penalty unit is $110: section 4AA Crimes Act 1914.

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The offence is directed at the owner and the master of a ship. It is well established in shipping law that offence provisions should apply collectively to the master and the owner. There is precedent in both State and Commonwealth legislation as well as in international law. Such persons have shared responsibility and both can be expected to be fully aware of the requirements of the legislation (and of the MLC) and, in particular, the requirement for employment agreements to be in force for all crew members, including the master, before a ship goes to sea. While the master has immediate responsibility for the ship, he or she is subject to the direction of the shipowner. Shared liability is consistent with offence provisions in other parts of the Navigation Act and in other maritime legislation such as the Protection of the Sea (Prevention of Pollution from Ships) Act 1983.

19

Item 5 proposes to replace section 46 in the Act.

Existing section 46 generally requires that seamen serving on board ships that are taken to sea must be subject to an agreement with the ship’s master relating to their engagement. Else, there is a penalty of $2000.20 The existing provision itself is unclear as to who would be liable and whether liability would be shared.

Proposed section 46 provides that a person commits an offence if he or she is the master or owner of a ship and the master takes the ship to sea with a seaman on board without an agreement that is in force in relation to the seaman.21 The proposed penalty is 20 penalty units or $2200.

Comment—items 4 and 5

Items 4 and 5 together address part of Standard A2.1 (Seafarers’ employment agreements) of the MLC, particularly:

1. Each Member shall adopt laws or regulations requiring that ships that fly its flag comply with the following requirements:

(a) seafarers working on ships that fly its flag shall have a seafarers’ employment agreement signed by both the seafarer and the shipowner or a representative of the shipowner (or, where they are not employees, evidence of contractual or similar arrangements) providing them with decent working and living conditions on board the ship as required by this Convention;

(b) seafarers signing a seafarers’ employment agreement shall be given an opportunity to examine and seek advice on the agreement before signing, as well as such other facilities as are necessary to ensure that they have freely entered into an agreement with a sufficient understanding of their rights and responsibilities;

...

19. Explanatory Memorandum, op. cit., p. 5. 20. However, please refer to Crimes Act 1914 section 4AB in relation to conversion of pecuniary penalties expressed in dollar amounts to penalty units.

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(c) the shipowner and seafarer concerned shall each have a signed original of the seafarers’ employment agreement;

(d) measures shall be taken to ensure that clear information as to the conditions of their employment can be easily obtained on board by seafarers, including the ship’s master, and that such information, including a copy of the seafarers’ employment agreement, is also accessible for review by officers of a competent authority, including those in ports to be visited; and

(e) seafarers shall be given a document containing a record of their employment on board the ship.

Again, from the wording of proposed subsection 46(1), it appears that if there is both a master and an owner of the ship, then both would be liable.

The Explanatory Memorandum states:

The master and the owner of a ship will each commit an offence, with a maximum penalty of 20 penalty units, if an agreement complying with the revised section is not in force for each seaman on board the ship. Shared liability between the master and the owner is appropriate for the same reasons as given in the previous paragraph.

22

Item 8 proposes to replace section 53 in the Act.

Existing section 53 generally requires that legible copies of agreements, without identifying details, be posted up in a part of the ship that is accessible to all seamen and the master until the agreements are terminated. Failure to do so incurs a penalty of $1000.23 In addition, defacing or destroying such posted up copies incurs a penalty of $500.24

Proposed section 53 generally provides that an owner of the ship must make available to the crew engaged on the ship information about the crew’s conditions of employment. Such information, as well as the manner and form in which the information must be made available, may be prescribed in regulations. Contravention of this requirement by the owner or his or her representative would be an offence with a penalty of five penalty units or $550.

Comment—item 8

It is noted that strict liability applies to the element of the offence which states that the owner is subject to a requirement under the regulations to provide such information. As the Explanatory Memorandum explains:

21. For the meaning of ‘agreement’, see item 1 of the Bill. 22. Explanatory Memorandum, op. cit., p. 6. 23. See footnote 20 above. 24. Ibid.

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It is appropriate that strict liability apply to this element of the offence as it will be obvious to the owner of a ship if the owner is required to provide information. A defence of honest and reasonable mistake of fact will be available in relation to this element of the offence. Applying strict liability to this element of the offence is consistent with other offences of this nature.

25

Item 9 proposes to replace section 61 in the Act.

Existing section 61 provides that when a seaman is discharged from a ship, the ship’s master will sign and give the seaman a discharge in the form prescribed by regulations and return any previous discharge of the seaman, which is in the master’s possession, to the seaman. Failure of the master to do so incurs a penalty of $1000.26

Proposed section 61 has the same effect and is an example of a proposed amendment that simply involves an updated drafting style.

Item 10 proposes to replace subsections 62A(1) and (2) in the Act with a new subsection 62A(1).

Existing subsections 62A(1) and (2) generally provide that at a port outside Australia, a master of a ship shall not discharge a seaman from the ship unless:

• the master has given that seaman reasonable notice of the master’s intention to do so, and

• where the seaman has requested that the master get a proper authority’s approval to the

discharge—the proper authority has approved the discharge.

Contravention of that requirement incurs a penalty of $1000.27

In addition, currently, a proper authority may withhold his or her approval to such discharge if, in the proper authority’s opinion:

• the discharge would contravene either the agreement with the seaman, a provision of the Act or

a law of the country in which the discharge is to be made, or • the discharge would be unjust.

Proposed subsection 62A(1) provides that the master of a ship commits an offence, with a penalty of 10 penalty units or $1100, where:

25. Explanatory Memorandum, op. cit., p. 6. For information as to what ‘strict liability’ means, see also Criminal Code Act 1995 section 6.1 and Attorney-General’s Department, A guide to framing Commonwealth offences, civil penalties and enforcement powers, December 2007, pp. 24-28, viewed 16 June 2011, http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(084A3429FD57AC0744737F8EA134BACB)~A+Guide+to+Frami ng+Commonwealth+Offences,+Civil+Penalties+and+Enforcement+Powers.PDF/$file/A+Guide+to+Framing+Common wealth+Offences,+Civil+Penalties+and+Enforcement+Powers.PDF

26. See footnote 20 above. 27. Ibid.

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• the master discharges a seaman from the ship at a port outside Australia without at least seven

days notice of his or her intention to do so, and • the seaman has not consented to being discharged at the particular port—irrespective of

whether the seaman consents to the discharge.

Comment—item 10

Proposed subsection 62A(1) is consistent with requirements of paragraph 5 of Standard A2.1 of the MLC, which states:

Each Member shall adopt laws or regulations establishing minimum notice periods to be given by the seafarers and shipowners for the early termination of a seafarers’ employment agreement. The duration of these minimum periods shall be determined after consultation with the shipowners’ and seafarers’ organizations concerned, but shall not be shorter than seven days.

Item 13 proposes to repeal sections 70-73 in the Act and replace those provisions with a new section 70.

Existing sections 70-73 relate to the allotment of seamen’s wages, the right to sue for and recover wages allotted in allotment notes, when payment under allotment notes commence and allotment to banks.

Proposed subsections 70(1) and (2) provide that regulations may provide for and be made in relation to payment of wages to masters and seamen. For example, this may include provisions relating to:

• how often such payments are made

• the manner in which such payments are made

• permitted deductions from these wages

• payslips, and

• charges that may be imposed where payments of part or all of a person’s wage are made to

another person.

However, it is noted that under proposed subsection 70(3), regulations must not provide for the quantum or amount of wages payable to masters and seamen.

As the Explanatory Memorandum states:

The amount or quantum or wages will be set out in a relevant enterprise agreement. 28

Item 22 proposes to insert new section 115 into the Act.

28. Explanatory Memorandum, op. cit., p. 7.

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Proposed section 115 provides that the owner of a ship commits an offence, with a penalty of 10 penalty units or $1100, if the owner, or his or her representative, fails to provide free provisions to the crew engaged on the ship.

Comment—item 22

This requirement is consistent with paragraph 2 of Regulation 3.2 of the MLC, which states:

Seafarers on board a ship shall be provided with food free of charge during the period of engagement.

Item 23 proposes to amend section 117 in the Act.

Existing section 117 provides that food and water provisions carried on the ship undertaking a voyage must be suitable having regard to the nature and duration of the voyage and size of the crew.

Proposed section 117 provides that food and water provisions carried on the ship undertaking a voyage must also be suitable having regard to the crew’s cultural and religious backgrounds.

Comment—item 23

This requirement is consistent with regulation 2 of Standard A3.2 of the MLC, which states:

Each Member shall ensure that ships that fly its flag meet the following minimum standards:

(a) food and drinking water supplies, having regard to the number of seafarers on board, their religious requirements and cultural practices as they pertain to food, and the duration and nature of the voyage, shall be suitable in respect of quantity, nutritional value, quality and variety;

...

Item 70 proposes to insert new Division 2D into Part IV of the Act, consisting of new sections 206XA-206XI, which relate to declarations of maritime labour compliance and maritime labour certificates.

Under these new provisions:

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• maritime labour certificates (or, in the alternative, interim or exemption certificates) would be

required for steamships registered in Australia with a gross tonnage of at least 500 (see proposed section 206XA)29 • the Australian Maritime Safety Authority (AMSA) would have discretionary power to issue a

declaration of maritime labour compliance in relation to a steamship registered in Australia where, following inspection of the ship, AMSA is satisfied that the steamship complies with its requirements—a similar power is given to the survey authority (see proposed section 206XB)30 • AMSA would have discretionary power to issue a maritime labour certificate in relation to a

steamship registered in Australia where a declaration of maritime labour compliance is in force and following an inspection report, AMSA is satisfied that the steamship complies with requirements relating to the working and living conditions of the ship’s crew—a similar power is given to the survey authority (see proposed section 206XC) • maritime labour certificates remain in force for periods specified in the certificates, which must

not exceed the period prescribed in the regulations (see proposed section 206XD) • regulations may provide for matters relating to interim maritime labour certificates, such as the

issue and duration of these certificates (see proposed section 206XE)31 • a maritime labour certificate or interim maritime labour certificate ceases to be in force in

specific circumstances, including where:

- the subject ship is no longer registered in Australia

- there is change of ownership of the ship after a certificate is issued, and

- in circumstances prescribed by regulations (see proposed section 206XF)

29. For the meaning of ‘interim maritime labour certificate and ‘maritime labour certificate’’, see items 54 and 57 of the Bill respectively. 30. For the meaning of ‘declaration of maritime labour compliance’, see item 53 of the Bill. A survey authority is a corporation or association for the survey of shipping, approved by AMSA: section 6 of the Act. As to what is AMSA,

see AMSA, About the Australian Maritime Safety Authority, viewed 14 June 2011, http://www.amsa.gov.au/about_amsa/ 31. The Explanatory Memorandum explains: ‘Interim maritime labour certificates are likely to be issued only to new ships on delivery, when a ship changes its country of registration, or when a shipowner assumes responsibility for the

operation of a ship which is new to that shipowner. In accordance with paragraph 6 of Standard A5.1.3 of the MLC, an interim maritime labour certificate may be issued for a period of up to six months’: Explanatory Memorandum, op. cit., p. 14. It is noted that paragraphs 5 and 6 of Standard A5.1.3 of the MLC state:

‘5. A maritime labour certificate may be issued on an interim basis:

(a) to new ships on delivery;

(b) when a ship changes flag; or

(c) when a shipowner assumes responsibility for the operation of a ship which is new to that shipowner.

6. An interim maritime labour certificate may be issued for a period not exceeding six months by the competent authority or a recognized organization duly authorized for this purpose.’

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• masters of ships would have to ensure that copies of maritime labour certificates and

declarations of maritime labour compliance, that are in force, be made accessible and available for examination—failure to do so would constitute an offence (see proposed section 206XG) • regulations may provide for AMSA to exempt a ship from requirements under the Act relating to

working and living conditions of the ship’s crew; and AMSA may issue a certificate of exemption specifying the requirement from which the ship is exempt and any conditions of exemption that must be complied with by the master and owner of the ship (see proposed section 206XH),32 and • in certain circumstances, maritime labour certificates, interim and exemption certificates would

have to be produced to Customs officers (see proposed section 206XI).

Comment—item 70

It is noted that maximum penalties related to offences provided for in proposed provisions in item 70 are consistent with existing penalties for similar offences in the Act—for example:

• section 188 (safety requirements under exemptions)

• section 206H (failure to comply with conditions of exemptions)

• section 206S (taking an Australian passenger steamship out to sea without requisite certificates)

• section 206T (taking an Australian cargo steamship of at least 500 tonnes out to sea without

requisite certificates), and • section 221 (non-compliance with safety requirements).

Although it is also noted that the amendments proposed in item 70 are generally consistent with the MLC,33 it is also noted that much of the detail is to be addressed in yet-to-be seen regulations.

Item 61 proposes to insert new subsection 190AA(2AA) into the Act.

Existing section 190AA provides for surveyors’ powers of inspection.

Proposed subsection 190AA(2AA) would extend these powers to, at any reasonable time:

• inspecting a ship to ascertain compliance with the Act, regulations and marine orders relating to

the ship crew’s working and living conditions, and • requiring that any certificate or declaration relating to those conditions issued in respect of the

ship be produced to the surveyor.

Item 63 proposes to insert new subsection 190A(1AA) into the Act.

Existing section 190A provides for alterations of ships and cancellation of certificates.

32. In proposed section 206XH, it is clear that the master and owner would each commit offences for non-compliance with conditions of exemption. 33. See, for example, Standards A5.1.3 and A5.1.4 of the MLC.

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Proposed subsection 190A(1AA) generally provides that after a maritime labour certificate or an interim maritime labour certificate has been issued with respect to a ship and if the working and living conditions of crew on that ship change to the extent of no longer complying with relevant requirements under the Act, written notice of the change must be given as soon as practicable after the change occurs to the prescribed person. According to the Explanatory Memorandum, that person is AMSA.34

Failure to give such notice would be a strict liability offence by the master and owner of the ship (item 64).

Comment—item 64

The Explanatory Memorandum states:

It is appropriate that strict liability apply to this offence as it will be easy for the master or owner to show if he or she has given the required notice to AMSA. Further, strict liability will discourage careless non-compliance as well as intentional or reckless breaches of the requirement to give written notice to AMSA of changes to living and working conditions on board a ship. A defence of honest and reasonable mistake of fact will be available in relation to this offence. Applying strict liability to this offence is consistent with other offences of this nature.

35

However, it is noted that item 64 does not amend the amount of the penalty in subsection 190A(1A), which would remain as being $1000.36

Item 75 proposes to insert new subsection 377D(2) into the Act.

Existing section 377D provides for decisions that are reviewable by the Administrative Appeals Tribunal (the AAT).

Proposed subsection 377D(2) would mean that declarations of maritime labour compliance issued under proposed section 206XB (item 70) would also be reviewable by the AAT.

Part 2

Item 80 proposes to amend the definition of ‘vessel traffic service’ in subsection 411(3) of the Act, so as to include the phrase ‘as amended from time to time’.

Currently, ‘vessel traffic service’ is defined as a navigational service, which is implemented under the law of the Commonwealth, state or territory and in accord with guidelines for vessel traffic services

34. Explanatory Memorandum, op. cit., p. 10. 35. Ibid., p. 11. 36. See footnote 20 above.

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adopted by the International Maritime Organization on 27 November 1997 to improve the safety and efficiency of vessel traffic and to protect the environment.

The proposed amendment would give this definition flexibility so that vessel traffic services can be implemented in accordance with up-to-date guidelines, that have been ‘amended from time to time’.

Item 81 proposes to insert new paragraph 425(1)(dc) into the Act.

Existing subsection 425(1) provides for the Governor-General’s usual regulation-making power.

The proposed amendment would enable the Governor-General to make regulations for and in relation to vessel traffic services, within the meaning of proposed subsection 411(3) (as described above).

According to the Explanatory Memorandum:

The making of regulations under this new provision will facilitate the development of vessel traffic services in environmentally sensitive areas such as the Great Barrier Reef. 37

Concluding comments

The Bill does contribute, to some extent, towards implementation of the MLC in Australia. This is particularly so in relation to crews’ employment agreements, provision of suitable living and working conditions on board ships, making declarations of maritime labour compliance and issuing maritime labour certificates.

However, the Bill leaves much of the detail to regulations that are yet to be tabled.

37. Explanatory Memorandum, op. cit., p. 17.

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