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Maritime Legislation Amendment Bill 2000

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1998-1999-2000









THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA









HOUSE OF REPRESENTATIVES















MARITIME LEGISLATION AMENDMENT BILL 2000















EXPLANATORY MEMORANDUM









 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Transport and Regional Services,

the Honourable John Anderson, MP)

 



MARITIME LEGISLATION AMENDMENT BILL 2000

 

 

GENERAL OUTLINE

 

The Maritime Legislation Amendment Bill 2000 will amend the Navigation Act 1912 , the Seafarers Safety, Rehabilitation and Compensation Act 1992, and the Occupational Health and Safety (Maritime Industry) Act 1993.

 

The proposed amendments to these Acts will provide for:

·         revised jurisdiction between the Commonwealth and the States and Northern Territory for trading ship safety regulation under the Navigation Act 1912 , such that the Commonwealth is to be responsible for:

-       all trading ships proceeding on an overseas voyage;

-       all trading ships of 500 Gross Tonnage or more proceeding on an interstate voyage;

-       Australian trading ships of 500 Gross Tonnage or more proceeding on an intra-State voyage, except where the vessel is not owned by a constitutional corporation and voyages entirely within the limits of a State; and

-       foreign-flagged vessels under 500 Gross Tonnage that voyage interstate or overseas;

·         an option for an owner of a trading ship to apply for exemption from the Navigation Act 1912 and for the Australian Maritime Safety Authority to make a declaration exempting the vessel, subject to such conditions as may be prescribed;

·         an option for an owner of a trading ship of less than 500 Gross Tonnage to apply to come under the Navigation Act 1912 ;

·         application provisions for the Occupational Health and Safety (Maritime Industry) Act 1993 and the Seafarers Rehabilitation and Compensation Act 1992 , that are consistent with the Navigation Act 1912; and

·         transitional arrangements in the event a State or the Northern Territory is not in a position to enact complementary legislation on the due date.

 

Navigation Act 1912

 

The Navigation Act 1912 currently provides for the Commonwealth to regulate safety of overseas and interstate voyages by Australian and foreign trading ships. Intra-State voyages by Australian and foreign trading ships are regulated under State/Territory legislation.

 

This current division of responsibility reflects the Shipping and Navigation Agreement between the Commonwealth, States and the Northern Territory made under the 1979 Offshore Constitutional Settlement. By 1997 the Australian Transport Council, comprising Commonwealth, State and Territory Transport Ministers, recognised that this division of shipping regulation has resulted in some difficulties in administration and caused unnecessary confusion for business and duplication of regulatory activity and costs.

 

In practice, this division of jurisdiction means that the Commonwealth does not have coverage for safety regulation of large trading ships operating only on intra-State voyages, including foreign vessels.  Large ships pose substantial safety and environmental pollution risks and accordingly are subjected to a range of international conventions addressing those risks.  State and Northern Territory marine administrations generally do not have as much experience with large ships’ structures and equipment or the requirements of the relevant international conventions as the Australian Maritime Safety Authority, which is acknowledged as having the requisite expertise in Australia.

 

Conversely, because the Commonwealth has jurisdiction over all trading vessels proceeding on interstate voyages, this inevitably includes some small vessels, which may make only occasional interstate voyages. This has resulted in undesirable duplication of Commonwealth and State/Territory safety regulation applying to these vessels.  It also increases complexity for businesses in determining which safety regulatory authority’s rules and fees apply to a vessel, depending on changing patterns of voyages.

 

The Australian Transport Council agreed in 1999 to a revised arrangement whereby the division of jurisdiction over Australian registered vessels trading on the coast will be based on the size (tonnage) of the vessel rather than the nature of the voyage.  A dividing line of 500 Gross Tonnage was agreed. The International Convention for the Safety of Life at Sea 1974, the principal international treaty regulating vessel safety, applies to ships of 500 Gross Tonnage or more.  Adoption of this limit in the Navigation Act 1912 will align Commonwealth responsibilities for vessel safety regulation more closely with international obligations, while States and the Northern Territory will be responsible principally for non-convention sized ships, ie those under 500 Gross Tonnage.

 

The Commonwealth will continue to regulate all Australian trading vessels proceeding on overseas voyages and will assume responsibility for maritime safety regulation of all foreign registered vessels trading in Australian waters, with the exception of those under 500 Gross Tonnage operating exclusively intra-State.

 

It is not proposed to change the current jurisdictional arrangements for Australian fishing vessels, fishing fleet support vessels, pleasure craft or inland waterways vessels, and offshore support vessels.

 

Notwithstanding the proposed broad division of responsibility, Commonwealth and State governments also decided that it is desirable to have flexibility in regulatory arrangements between the Commonwealth and the States/Northern Territory to facilitate business operations, whilst ensuring appropriate regulatory oversight of vessel safety matters.

 

The proposed legislation includes an option, similar to the existing s8AA of the Navigation Act 1912 , for an owner of a vessel of less than 500 Gross Tonnage to apply to come within Commonwealth jurisdiction. This option would continue to facilitate business operations where a vessel may be used in more than one State jurisdiction or may be required to voyage overseas at short notice, by providing for it to have nationally and internationally recognised certification.

 

Conversely, there will be circumstances where a vessel of 500 Gross Tonnage or greater would best remain within a State or Northern Territory jurisdiction.  An example might be a public transit ferry operating within State waters.

 

Ministers decided to provide an option for exemptions to be granted to Commonwealth coverage of vessels where the Commonwealth and the relevant States/Territory authority agree that a suitable alternative safety regime should be applied.  The proposed new section 8AC of the Navigation Act 1912 includes an option for an owner of a trading ship of more than 500 Gross Tonnage to apply for a declaration that the Act does not apply to the ship, and for the Australian Maritime Safety Authority to make such a declaration, subject to conditions and consistent with prescribed guidelines. 

 

With the change in jurisdiction of the Navigation Act 1912 , several consequential amendments are required in order to ensure comprehensiveness and continuity of existing coverage.

 

Changes to the coverage of trading ships under the Navigation Act 1912 will have an effect on ships to which the Seafarers Rehabilitation and Compensation Act 1992 and the Occupational Health and Safety (Maritime Industry) Act 1993 (OH&S(MI) Act) apply. Both these Acts currently apply to ships to which Part II of the Navigation Act 1912 applies where such ships are engaged in interstate or overseas trade or commerce. In addition, the Seafarers Rehabilitation And Compensation Act 1992 applies to a ship that is the subject of a declaration under s8AA of the Navigation Act 1912 if Part II of the Navigation Act 1912 applies to the ship. The OH&S (MI) Act applies to all ships that are the subject of a declaration under s8A or s8AA of the Navigation Act 1912 .

 

The Workplace Relations Ministers’ Council agreed in 1999 that jurisdiction of seafarers’ worker’s compensation and occupational health and safety regulations should be aligned with proposed changes to safety regulation to maintain consistency of coverage.

 

Seafarers Rehabilitation and Compensation Act 1992 and the Occupational Health and Safety (Maritime Industry) Act 1993

 

In addition to amending the coverage provisions of the Seafarers Rehabilitation and Compensation Act 1992 and the Occupational Health and Safety (Maritime Industry) Act 1993 , it is proposed that alignment be further achieved by way of inclusion of a comprehensive application provision in both these Acts, rather than relying upon a reference to the coverage or application provisions in an amended Navigation Act.

 

Given that the purpose and existing coverage of the Seafarers Rehabilitation and Compensation Act 1992 and Occupational Health and Safety (Maritime Industry) Act 1993 , when compared to the Navigation Act 1912 are different, it has not been possible to achieve complete alignment between all three Acts.

 

The Navigation Act 1912 governs all aspects of vessel safety, which in many respects are determined by international maritime safety conventions and apply to both foreign and Australian ships. The Seafarers Rehabilitation and Compensation Act 1992 and Occupational Health and Safety (Maritime Industry) Act 1993 focus on the occupational safety of the employees on board ships, and are domestically determined and applied.

 

The Bill does not seek to apply the Seafarers Rehabilitation and Compensation Act 1992 and Occupational Health and Safety (Maritime Industry) Act 1993 to all foreign trading vessels entering or operating in Australian waters.

 

The draft Bill limits coverage of foreign vessels by the Seafarers Rehabilitation and Compensation Act 1992 and Occupational Health and Safety (Maritime Industry) Act 1993 to ships that may be licensed to engage in the coasting trade or where the majority of the crew are residents of Australia and the ship operator is a resident of Australia or has its principal place of business in Australia or is a company incorporated in Australia.

 

This maintains the status quo for coverage in relation to foreign ships under current Commonwealth occupational health and safety and workers’ compensation laws.  It nevertheless represents a small deviation from complete alignment across all three Acts.

 

To conform with the decision of the Workplace Relations Minsters’ Council to align the three Acts, it is necessary to ensure that the Seafarers Rehabilitation and Compensation Act 1992 and Occupational Health and Safety (Maritime Industry) Act 1993 do not apply to Australian fishing vessels unless they are proceeding on an overseas voyage.   The current practice is that these fishing vessels are, by and large, covered by State and Territory occupational health and safety and workers’ compensation laws.  The Bill will ensure that it is clear that this practical division of responsibility will continue.

 

The retention of an opt-in provision in the Navigation Act 1912 and retention of the current exemption provision in the Seafarers Rehabilitation and Compensation Act 1992 will ensure, subject to agreed guidelines, that operators have an opportunity to identify the appropriate jurisdictional coverage to suit their operations. 

 

 

FINANCIAL IMPACT

 

As the Australian Maritime Safety Authority fully recovers its costs of inspection and enforcement of safety regulations under the Navigation Act 1912 , there is no net cost to the Commonwealth arising from the proposed amendments.

 

There will also be no net cost to the Commonwealth in respect of the amendments to the Seafarers Rehabilitation and Compensation Act 1992 and the Occupational Health and Safety (Maritime Industry) Act 1993 proposed in this Bill.

 

 

 



MARITIME LEGISLATION AMENDMENT BILL 2000

 

NOTES ON CLAUSES

 

Clause 1:

 

This is a standard clause describing the short title of the legislation.

 

Clause 2

 

This clause implements the Commonwealth and State/Territory Governments’ decision to commence the revised jurisdiction arrangements from 1 January 2001.  In the event that the legislation does not receive Royal Assent on or before 1 January 2001, a date of commencement is to be fixed by Proclamation. If Royal Assent is received after 1 January 2001 and a date of commencement has not been proclaimed, the proposed amendments will take effect six months and one day after the date that Royal Assent is received.

 

Clause 3

 

This clause amends the application of the Navigation Act 1912 , the Occupational Health and Safety (Maritime Industry) Act 1993, and the Seafarers Rehabilitation and Compensation Act 1992 according to the following schedules:

 

Schedule 1 - Amendments to the Navigation Act 1912

 

Item 1 - Paragraph 2 (1)(a)

 

Item 1 amends the general application clause of the Navigation Act 1912 . It substitutes the current section 2(1)(a) which defines the application of the Navigation Act 1912 to inter alia trading ships on interstate and overseas voyages.  The new paragraph 2(1)(a) provides that the Navigation Act 1912 does not apply to trading ships under 500 Gross Tonnage on intra-State voyages, nor to Australian trading ships under 500 Gross Tonnage on interstate voyages.

 

As the Act is applied by exception, it therefore provides for Commonwealth jurisdiction over foreign trading ships of under 500 Gross Tonnage proceeding on interstate and overseas voyages and for Australian trading ships of 500 Gross Tonnage or more on intra-State, interstate and overseas voyages. 

 

Item 2 - At the end of Paragraphs 2(1)(b), (ba) and (c)

 

Item 2 is a technical amendment that reflects modern drafting style.

 

Item 3 - After subsection 2(1)

 

This item inserts a new paragraph 2(1A), which ensures that the Act is wholly within the legislative power of the Commonwealth. It reflects the limitation of the Commonwealth’s constitutional powers to comprehensively regulate a trading ship that is not owned by a constitutional corporation and which is on a voyage within the geographic limits of a State.

Item 3 also inserts a new paragraph 2(1B) that, for the purposes of identifying the application of the Act to a ship, a ship of at least 35 metres length is taken to be equivalent to a ship of at least 500 Gross Tonnage, where the ship does not have a tonnage determined in accordance with the International Convention on Tonnage Measurement of Ships 1969. It is not intended that small vessel owners should be required to undertake tonnage measurement and incur related costs solely for the purpose of determining if their vessel comes under Commonwealth jurisdiction. Small vessels are not normally required to assess tonnage for other purposes and the Uniform Shipping Laws Code, used by Commonwealth and State/Territory authorities, generally uses a length measurement as the basis for much of the regulation of small vessels.  A vessel of 35 metres length is considered to be a reasonable proxy for a vessel of 500 Gross Tonnage.

 

Items 4, 5 and 6 - Subsection 6(1)

 

These items insert new definitions for the purposes of the amended section 2(1):

         

·         Australian trading ship is defined to mean a trading ship that is registered or entitled to be registered in Australia;

·         A constitutional corporation is defined to mean a corporation to which paragraph 51(xx) of the Constitution applies; and

·         An intra-state voyage is defined to mean a voyage other than an interstate or and overseas voyage. Both interstate and overseas voyages are already defined in section 6(1) of the Navigation Act 1912 .

 

Items 7 and 8 - Subsection 8AA(1)

 

These items amend section 8AA of the Navigation Act 1912 to permit an owner of a vessel of less than 500 Gross Tonnage to apply for the vessel to come under the Navigation Act 1912.  Section 8AA currently provides an option for an owner of a trading ship engaged in intra-state trade to apply for a declaration that the Act applies to the ship.  The proposed amendments will continue to provide an option for the Act to apply to trading ships to which it would not otherwise be applied, if the owner so chooses.

 

Item 9 - After section 8AB

 

Item 9 inserts a new paragraph enabling an owner of a trading ship to apply to the Australian Maritime Safety Authority for a declaration that the Act, other than Part VI, does not apply to the ship.  It permits the Authority to make such a declaration, subject to such guidelines as are prescribed, and requires the Authority to revoke the declaration if requested by the owner.

 

The Authority is not permitted to declare that Part VI of the Act does not apply to a trading ship. Part VI regulates participation in the coasting trade and is administered by the Department of Transport and Regional Services. The current regime of licensing and permits for economic regulation of the coasting trade is not related to matters of safety regulation and will not change under these amendments.

 

The proposed new paragraph provides flexibility for owners of ships to choose the Commonwealth or State/Territory jurisdiction that best suits their operational requirements, but enables the Authority to impose conditions on an exemption to ensure that exemptions are only granted in appropriate circumstances.  In considering applications, the Authority is required to have regard to any prescribed guidelines.  The guidelines will identify the circumstances in which a ship may be declared exempt from the Act (except for Part VI), including the nature of vessel operations, type of vessel, agreed arrangements with the States/Northern Territory to ensure alternative regulatory coverage of the vessel, and circumstances in which the declaration may be revoked.

 

Item 10 - Section 284

 

Item 10 amends section 284 of the Navigation Act 1912 to disapply the revised application provisions of section 2 (Item 1 above) and to insert a separate application provision for Part VI which replicates the current application provisions of s2 of the Act.  The practical result is that Part VI of the Act continues to regulate only trading ships engaged on interstate voyages.

 

This item preserves the existing application of Part VI of the Navigation Act 1912 , which licences or permits ships to engage in the coasting trade.  Amendments to Commonwealth-State jurisdiction are intended to apply only to regulation of the safe operation of ships and related matters. Arrangements for the economic regulation of coastal shipping through the existing licensing and permit systems are not to be affected by amendments to section 2 of the Act.  The current application of Part VI of the Act is determined by the interaction of sections 2, 7 and 284 of the Act.

 

Item 11 - Subsection 425(1AA)

 

This item extends the Australian Maritime Safety Authority’s power to make orders under section 425(1AA) to include all matters in Part I of the Navigation Act 1912 for which regulations may be made. This provision will enable the making of a Marine Order to prescribe the guidelines to be followed by the Authority in determining whether to make a declaration under the new section 8AC (see Item 9 above).

 



Schedule 2 - Amendments to the Occupational Health and Safety (Maritime Industry) Act 1993

 

Item 1 - Section 4

 

This item provides a definition of agreement .  The definition is the same as that used in the Navigation Act 1912 .

 

Item 2 - Section 4

 

This item provides that articles of agreement has the same meaning as agreement

 

Item 3 - Section 4

 

This item states that Australian fishing vessel has the meaning given by section 4E.

 

Item 4 - Section 4

 

This item states that coasting trade has the meaning given by section 4B.

 

Item 5 - Section 4

 

This item states that fish has the meaning given by section 4E.

 

Item 6 - Section 4

 

This item states that fishing fleet support vessel has the meaning given by section 4E.

 

Item 7 - Section 4

 

This item states that fishing operations has the meaning given by section 4E.

 

Item 8 - Section 4

 

This item states that fishing vessel has the meaning given by section 4E.

 

Item 9 - Section 4

 

This item states that gross tonnage has the meaning given by section 4D.

 

Item 10 - Section 4

 

This item provides a definition of harbour .  The definition is the same as that used in the Navigation Act 1912 .

 

 

 

 

Item 11 - Section 4

 

This item provides a definition of inland waterways vessel .  The definition is the same as that used in the Navigation Act 1912 .

 

Item 12 - Section 4

 

This item states that inter-State voyage has the meaning given by section 4C.

 

Item 13 - Section 4

 

This item states that intra-State voyage has the meaning given by section 4C.

 

Item 14- Section 4

 

This item provides a definition of master .  The definition is the same as that used in the Navigation Act 1912 .

 

Item 15 - Section 4 (definition of off-shore industry mobile unit )

 

This item states that off-shore industry mobile unit has the meaning given by section 4H.

 

Item 16 - Section 4

 

This item states that overseas voyage has the meaning given by section 4C.

 

Item 17 - Section 4

 

This item provides a definition of passenger .  The definition is the same as that used in the Navigation Act 1912 .

 

Item 18 - Section 4

 

This item provides a definition of pilot .  The definition is the same as that used in the Navigation Act 1912 .

 

Item 19 - Section 4

 

This item provides a definition of pleasure craft .  The definition is the same as that used in the Navigation Act 1912 .

 

Item 20 - Section 4

 

This item provides a definition of port .  The definition is the same as that used in the Navigation Act 1912 .

 

 

 

Item 21 - Section 4 (definition of prescribed ship )

 

This item repeals the existing definition of prescribed ship , and state that prescribed ship has the meaning given by s 4A.

 

Item 22 - Section 4

 

This item states that registered has the meaning given by section 4F.

 

Item 23 - Section 4

 

This item states that seaman has the meaning given by section 4G.

 

Item 24 - Section 4

 

Item 24 provides a definition of ship .  The definition is based on that used in the Navigation Act 1912 .

 

Item 25 - At the end of Division 2 of Part 1

 

This item adds a new section 4A that sets out the definition of prescribed ship .  Although this definition is based on Part II of the Navigation Act 1912 it represents a deviation in alignment of coverage from that Act in relation to foreign vessels.  Whereas the Navigation Act 1912 , as amended by the Maritime Legislation Amendment Bill 2000 , will apply to all foreign vessels on an interstate or overseas voyage, or on an intra-State voyage if the vessel is greater than 500 Gross Tonnage, the application of the Occupational Health and Safety (Maritime Industry) Act 1993 will, though also determined on the basis of tonnage, be subject to further refinement in the case of foreign vessels.  The Occupational Health and Safety (Maritime Industry) Act 1993 shall cover foreign vessels which are engaged in the coasting trade or, if not engaged in the coasting trade (as defined), foreign vessels operated by a person who is a resident of, or has their principal place of business in Australia, or a company that is incorporated, or has its principal place of business in Australia.

 

The definition will incorporate those ships to which Part II of the Navigation Act 1912 currently applies, though with a number of specified exclusions.  Those categories excluded shall be:

  • a ship or off-shore industry mobile unit to which the Petroleum (Submerged Lands) Act 1967 applies;
  • a Government ship;
  • an Australian fishing vessel or a fishing fleet support vessel on a voyage other than an overseas voyage;
  • an inland waterways vessel;
  • a pleasure craft;
  • a barge, lighter or other floating vessel that is not self-propelled; and
  • a ship for which there is in force a declaration under section 8AC of the Navigation Act 1912 .

 

The exclusion in relation to ships for which there is in force a declaration under section 8AC of the Navigation Act 1912 is a new one.  Section 8AC, a new section introduced by Schedule 1 to this Bill, enables an owner of a trading ship to apply to the Australian Maritime Safety Authority for a declaration that the Act, other than Part VI, does not apply to the ship.  It permits the Authority to make such a declaration, subject to such guidelines as are prescribed, and requires the Authority to revoke the declaration if requested by the owner.

 

The Authority is not permitted to declare that Part VI of the Navigation Act 1912 does not apply to a trading ship. Part VI regulates participation in the coasting trade and is administered by the Department of Transport and Regional Services. The current regime of licensing and permits for economic regulation of the coasting trade is not related to matters of safety regulation and will not change under these amendments.

 

The proposed new section 8AC of the Navigation Act 1912 provides flexibility for owners of ships to choose the Commonwealth or State/Territory jurisdiction that best suits their operational requirements, but enables the Authority to impose conditions on an exemption to ensure that exemptions are only granted in appropriate circumstances.

 

This item also adds a new section 4B that sets out the definition of coasting trade .  The definition is the same as that used in the Navigation Act 1912 , and clarifies that a ship named in a permit under section 286 of that Act is not taken to be engaged in the coasting trade.

 

This item also adds a new section 4C which includes detailed definitions of intra-State voyage, inter-State voyage and overseas voyage in addition to clarification of when a ship is taken to be on a voyage.  The new section also would provide that ships regularly engaged in the making of voyages from a port or ports in Queensland to the same port or another port in Queensland shall not be taken to have made an overseas voyage solely on the basis that, as an incidental part of its fishing operations on that voyage, it has called at a port or ports in Papua New Guinea.  The provisions of section 4C are drawn from provisions in the Navigation Act 1912 .

 

This item also adds a new section 4D which states that, for the purposes of this Act, where no gross tonnage for a particular ship has been determined in accordance with the International Convention on Tonnage Measurement of Ships, then a ship with an overall length of less than 35 metres shall be taken to be under 500 Gross Tonnage, and a ship with an overall length of at least 35 tonnes shall be taken to be at least 500 Gross Tonnage.

 

Item 20 also adds a new section 4E providing definitions in relation to fishing vessels.  The definitions are drawn from provisions in the Navigation Act 1912

 

This item also adds a new section 4F setting out a meaning of registered .  The item would provide that a ship is registered if, for the purposes of the Navigation Act 1912 , the ship is registered, taken to be registered or treated as if it were registered.

 

A new section 4G providing a meaning of seaman is also inserted by this item.  The definition is drawn from provisions in the Navigation Act 1912

 

This item inserts a new section 4H  providing definitions of off-shore industry mobile unit and fixed structures and related definitions.  The definitions are drawn from provisions in the Navigation Act 1912

 

Item 26 - Subsection 6(1)

 

This item replaces the existing subsection 6(1) with a provision clarifying that the Act applies to prescribed ships or units engaged in trade or commerce other than ships under 500 Gross Tonnage proceeding on an intra-State voyage, or ships which are able to be registered in Australia under 500 Gross Tonnage proceeding on an interstate voyage.  This provision clarifies that the Act shall apply to foreign ships proceeding on an interstate voyage irrespective of their tonnage.

 



Schedule 3 - Amendments to the Seafarers Rehabilitation and Compensation Act 1992

 

Item 1 - Section 3

 

This item states that Australian fishing vessel has the meaning given by section 3E.

 

Item 2 - Section 3

 

This item states that coasting trade has the meaning given by section 3B.

 

Item 3 - Section 3

 

This item states that fish has the meaning given by section 3E.

 

Item 4 - Section 3

 

This item states that fishing fleet support vessel has the meaning given by section 3E.

 

Item 5 - Section 3

 

This item states that fishing operations has the meaning given by section 3E.

 

Item 6 - Section 3

 

This item states that fishing vessel has the meaning given by section 3E.

 

Item 7 - Section 3

 

This item states that gross tonnage has the meaning given by section 3D.

 

Item 8 - Section 3

 

This item provides a definition of harbour .  The definition is the same as that used in the Navigation Act 1912 .

 

Item 9 - Section 3

 

This item provides a definition of inland waterways vessel .  The definition is the same as that used in the Navigation Act 1912 .

 

Item 10 - Section 3

 

This item states that inter-State voyage has the meaning given by section 3C.

 

Item 11 - Section 3

 

This item states that intra-State voyage has the meaning given by section 3C.

 

Item 12 - Section 3

 

This item provides a definition of master .  The definition is the same as that used in the Navigation Act 1912 .

 

Item 13 - Section 3

 

This item states that off-shore industry mobile unit has the meaning given by section 3G.

 

Item 14 - Section 3

 

This item states that overseas voyage has the meaning given by section 3C.

 

Item 15 - Section 3

 

This item provides a definition of passenger .  The definition is the same as that used in the Navigation Act 1912 .

 

Item 16 - Section 3

 

This item provides a definition of pilot .  The definition is the same as that used in the Navigation Act 1912 .

 

Item 17 - Section 3

 

This item provides a definition of pleasure craft .  The definition is the same as that used in the Navigation Act 1912 .

 

Item 18 - Section 3

 

This item provides a definition of port .  The definition is the same as that used in the Navigation Act 1912 .

 

Item 19 - Section 3 (definition of prescribed ship )

 

This item repeals the existing definition of prescribed ship , and state that prescribed ship has the meaning given by s 3A.

 

Item 20 - Section 3

 

This item states that registered has the meaning given by section 3F.

 

Item 21 - Section 3

 

This item provides a definition of ship . The definition is based on that used in the Navigation Act 1912 .

Item 22 - After section 3

 

This item adds a new section 3A that sets out the definition of prescribed ship .  Although this definition is based on Part II of the Navigation Act 1912 it represents a deviation in alignment of coverage from that Act in relation to foreign vessels.  Whereas the Navigation Act 1912 , as amended by the Maritime Legislation Amendment Bill 2000 , will apply to all foreign vessels on an interstate or overseas voyage, or on an intra-State voyage if the vessel is greater than 500 Gross Tonnage, the application the Seafarers Rehabilitation and Compensation Act 1992 will, though also determined on the basis of tonnage, be subject to further refinement in the case of foreign vessels.  The Seafarers Rehabilitation and Compensation Act 1992 shall cover foreign vessels which are engaged in the coasting trade or, if not engaged in the coasting trade (as defined), foreign vessels operated by a person who is a resident of, or has their principal place of business in Australia, or a company that is incorporated, or has its principal place of business in Australia.

 

The definition will incorporate those ships to which Part II of the Navigation Act 1912 currently applies, though with a number of specified exclusions.  Those categories excluded shall be:

  • a Government ship;
  • an Australian fishing vessel or a fishing fleet support vessel on a voyage other than an overseas voyage;
  • an inland waterways vessel;
  • a pleasure craft;
  • a barge, lighter or other floating vessel that is not self-propelled; and
  • a ship for which there is in force a declaration under section 8AC of the Navigation Act 1912 .

 

The exclusion in relation to ships for which there is in force a declaration under section 8AC of the Navigation Act 1912 is a new one.  Section 8AC, a new section introduced by Schedule 1 to this Bill, enables an owner of a trading ship to apply to the Australian Maritime Safety Authority for a declaration that the Act, other than Part VI, does not apply to the ship.  It permits the Authority to make such a declaration, subject to such guidelines as are prescribed, and requires the Authority to revoke the declaration if requested by the owner.

 

The Authority is not permitted to declare that Part VI of the Navigation Act 1912 does not apply to a trading ship. Part VI regulates participation in the coasting trade and is administered by the Department of Transport and Regional Services. The current regime of licensing and permits for economic regulation of the coasting trade is not related to matters of safety regulation and will not change under these amendments.

 

The proposed new section 8AC of the Navigation Act 1912 provides flexibility for owners of ships to choose the Commonwealth or State/Territory jurisdiction that best suits their operational requirements, but enables the Authority to impose conditions on an exemption to ensure that exemptions are only granted in appropriate circumstances.

 

This item also adds a new section 3B that sets out the definition of coasting trade .  The definition is the same as that used in the Navigation Act 1912 .

 

This item also adds a new section 3C which includes detailed definitions of intra-State voyage, inter-State voyage and overseas voyage in addition to clarification of when a ship is taken to be on a voyage.  The new section also provides that ships regularly engaged in the making of voyages from a port or ports in Queensland to the same port or another port in Queensland shall not be taken to have made an overseas voyage solely on the basis that, as an incidental part of its fishing operations on that voyage, it has called at a port or ports in Papua New Guinea.  The provisions of section 3C are drawn from provisions in the Navigation Act 1912 .

 

This item also adds a new section 3D which states that, for the purposes of this Act, where no gross tonnage for a particular ship has been determined in accordance with the International Convention on Tonnage Measurement of Ships, then a ship with an overall length of less than 35 metres shall be taken to be under 500 Gross Tonnage, and a ship with an overall length of at least 35 tonnes shall be taken to be at least 500 Gross Tonnage.

 

Item 22 also adds a new section 3E providing definitions in relation to fishing vessels.  The definitions are drawn from provisions in the Navigation Act 1912

 

This item also adds a new section 3F setting out a meaning of registered .  The section would provide that a ship is registered if, for the purposes of the Navigation Act 1912 , the ship is registered, taken to be registered or treated as if it were registered.

 

This item inserts a new section 3G providing definitions of off-shore industry mobile unit and fixed structures and related definitions.  The definitions are drawn from provisions in the Navigation Act 1912

 

Item 23 - Subsection 19(1)

 

This item replaces the existing subsection 19(1) with a provision clarifying that the Act applies to prescribed ships or units engaged in trade or commerce other than ships under 500 Gross Tonnage proceeding on an intra-State voyage, or ships which are able to be registered in Australia under 500 Gross Tonnage proceeding on an interstate voyage.  This provision clarifies that the Act shall apply to foreign ships proceeding on an interstate voyage irrespective of their tonnage.

 



Schedule 4 - Transitional Provisions

 

Item 1 - Application of Navigation Act 1912 in certain circumstances

 

This item provides for transitional arrangements to apply to safety regulation of trading ships in the event that complementary amendments to State and Northern Territory laws are not in place at the same time as amendments to the Navigation Act 1912 take effect.  Under the proposed amendments, the Commonwealth will acquire responsibility for some ships that the States/Northern Territory presently regulate (ie ships over 500 Gross Tonnage on intra-State voyages), and will cease to regulate some other vessels (ie ships under 500 Gross Tonnage on interstate voyages) that will become the responsibility of the States/Northern Territory.  The transitional provisions ensure that no ship will become unregulated in the event that corresponding amendments in State/Northern Territory laws are not in place to allow other jurisdictions to regulate them.

 

This item provides that, notwithstanding the amendments made to the Navigation Act 1912 , the current provisions of the Act apply, as if the amendments had not been made, to vessels proceeding on a voyage from a State or Territory that is prescribed.  The regulations will prescribe a list of those States or Territories that indicate they have not made the necessary amendments to regulate the ships that the Commonwealth would otherwise no longer regulate. States and Territories will be removed from the prescribed list as they implement complementary legislation to ensure coverage of trading ships under 500 Gross Tonnage on interstate voyages that are no longer to be regulated by the Commonwealth.

 

Item 2 - Application of Occupational Health and Safety (Maritime Industry) Act 1993 in certain circumstances

 

This item provides that, notwithstanding the amendments made to the Occupational Health and Safety (Maritime Industry) Act 1993 , the current provisions of the Act apply, as if the amendments had not been made, to vessels proceeding on a voyage from a State or Territory that is prescribed.  The regulations will prescribe a list of those States or Territories which indicate they have not made the necessary amendments to regulate the ships that the Commonwealth would no longer regulate as a result of the amendments under the Maritime Legislation Amendment Bill 2000. States and Territories will be removed from the prescribed list as they implement complementary legislation to ensure coverage of trading ships under 500 Gross Tonnage on interstate voyages that are no longer to be regulated by the Commonwealth.

 

Item 3 - Application of Seafarers Rehabilitation and Compensation Act 1992 in certain circumstances

 

This item provides that, notwithstanding the amendments made to the Seafarers Rehabilitation and Compensation Act 1992 , the current provisions of the Act apply, as if the amendments had not been made, to vessels proceeding on a voyage from a State or Territory that is prescribed.  The regulations will prescribe a list of those States or Territories which indicate they have not made the necessary amendments to regulate the ships that the Commonwealth would no longer regulate as a result of the amendments under the Maritime Legislation Amendment Bill 2000.  States and Territories will be removed from the prescribed list as they implement complementary legislation to ensure coverage of trading ships under 500 Gross Tonnage on interstate voyages that are no longer to be regulated by the Commonwealth.

 

 

Item 4 - Regulations

 

This item enables the Governor General to make regulations to give effect to the provisions of the proposed Act. This will enable the making of regulations prescribing the transitional arrangements described in Items 1 to 3 above.