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Marine Safety (Domestic Commercial Vessel) National Law (Consequential Amendments) Bill 2012

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2010-2011-2012

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

MARINE SAFETY (DOMESTIC COMMERCIAL VESSEL)

NATIONAL LAW (CONSEQUENTIAL AMENDMENTS) BILL 2012

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the Minister for Infrastructure and Transport,

the Honourable Anthony Albanese, MP)

MARINE SAFETY (DOMESTIC COMMERCIAL VESSEL) NATIONAL LAW (CONSEQUENTIAL AMENDMENTS) BILL 2012

 

OUTLINE

 

The Marine Safety (Domestic Commercial Vessel) National Law (Consequential Amendments) Bill (the Bill) provides for consequential amendments to the Australian Maritime Safety Authority Act 1990 (AMSA Act) and the Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 (the National Law) .

 

Schedule 1 of the Bill amends the AMSA Act to include definitions defined in the National Law and to reflect the agreement reached in the Council of Australian Government’s (COAG) Intergovernmental Agreement (IGA) on Commercial Vessel Safety Reform. Under the IGA, the Commonwealth will ensure that the AMSA Board membership includes at least one member with knowledge of, or experience relevant to, non-SOLAS-Convention commercial vessel operation and/or construction. The IGA also determined that the Australian Maritime Safety Authority (AMSA) would be the National Regulator.

 

Schedule 2 of the Bill repeals the existing offences and penalties for the general safety duties in the National Law and replaces them with provisions that mirror the provisions of Part 2 of the Work Health and Safety Act 2011 (WHS Act).

 

Schedule 2 will take effect when all States and Territories give effect to, as a State or Territory law, the provisions contained in Part 2 of the WHS Act. The objective of this arrangement is to align the National Law general safety obligations and offences with the WHS duties and offences, once the WHS Act has been enacted nationally.



 



 

ABBREVIATIONS

 

AMSA                                Australian Maritime Safety Authority

 

AMSA Act                         Australian Maritime Safety Authority Act 1990

 

COAG                                Council of Australian Governments

 

Constitution                        Constitution of the Commonwealth of Australia

 

Criminal Code                    The Code established by the Criminal Code Act 1995

 

GSO                                   General Safety Obligation

 

IGA                                    The Inter-Governmental Agreement for Commercial Vessel Safety Reform signed by COAG First Ministers on 19 August 2011

 

National Law                      Schedule 1 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012

 

National Regulator             The National Regulator established under the National Law

 

The Bill/this Bill                 Marine Safety (Domestic Commercial Vessel) National Law (Consequential Amendments) Bill 2012

 

The Act/this Act                 Marine Safety (Domestic Commercial Vessel) National Law (Consequential Amendments) Act 2012

 

WHS Act                            Work Health and Safety Act 2011

 

WRMC                               Workplace Relations Ministers Council

 

 

FINANCIAL IMPACT STATEMENT

 

This Bill forms part of the legislative package for the Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 (the National Law Bill).  The financial impact of the National Law has been discussed fully in the Explanatory Memorandum for the National Law Bill. 

 

Remuneration for the additional AMSA Board member will be determined by the Remuneration Tribunal. Remuneration costs will be absorbed by AMSA.



 

Statement of Compatibility with Human Rights

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

 

The Bill contains two schedules and should be considered in conjunction with the National Law Bill.

 

Schedule 1 amends the Australian Maritime Safety Authority Act 1990 (the AMSA Act) to increase the membership of the Australian Maritime Safety Authority (AMSA) board by one member who has knowledge of, or experience relevant to, the construction or operation of domestic commercial vessels. The proposed amendments implement the agreement reached in the COAG IGA on Commercial Vessel Safety Reform, which underpins the reform.

 

Schedule 2 amends General Safety Obligations in the National Law Bill to align the duties with those contained in the Work Health and Safety Act 2011 (the Model WHS laws). As not all jurisdictions have enacted the Model WHS legislation, it is proposed that the amendments under Schedule 2 will commence when all jurisdictions have enacted the Model WHS laws. 

 

Human rights implications

 

This Bill does not engage any of the applicable rights or freedoms.

 

Conclusion

 

This Bill is compatible with human rights as it does not raise any human rights issues.

 

 

 

Minister for Infrastructure and Transport, the Hon Anthony Albanese MP



 

OTHER MATTERS

 

Strict liability offences

 

Strict liability offences arise in a regulatory context where, for reasons such as public safety and the public interest in ensuring that regulatory schemes are observed, the sanction of criminal penalties is justified. They also arise in a context where a defendant can reasonably be expected, because of his or her professional involvement, to know what the requirements of the law are, and the mental, or fault, element can justifiably be excluded.

 

The rationale is that people who owe general safety duties, such as employers, people in control of aspects of work and designers and manufacturers of work structures and products, should be expected to be aware of their duties and obligations to workers and the wider public.

 

For strict liability offences in this Bill, the prosecution will have to prove only the conduct of the accused. However, where the accused produces evidence of an honest and reasonable, but mistaken, belief in the existence of certain facts which, if true, would have made that conduct innocent, it will be incumbent on the prosecution to establish that there was not an honest and reasonable mistake of fact.

 

Penalties for offences

 

The penalties for offences involving a breach of these GSOs mirror those in the WHS Act. The penalties for offences in the Bill are intended to reinforce the deterrent effect of the Bill and allow courts greater capacity to respond meaningfully and proportionally to the worst breaches by duty holders. Where death or serious injury results from a breach, the social and economic costs are likely to be far greater than even the maximum fines imposed by the Bill. Therefore, the overall objective of the penalties in the Bill is to increase compliance with the National Law and decrease the resort to prosecution to achieve that aim.

 

The levels of penalties are higher than those recommended by Commonwealth offence framing policy. However, they reflect recommendations of a national review into occupational health and safety, and were agreed upon by the Workplace Relations Ministers Council (WRMC). In making these recommendations the National OHS review noted that, in the case where death or serious injury results in a breach, the social and economic costs are likely to be far greater than even the maximum fines imposed by the Bill.

 

The penalties in the Bill also generally reflect the community’s view that any person who has a work-related duty of care, but does not observe it, should be liable to a criminal sanction for placing another person’s safety at risk.

 

The Bill provides for three categories of offences. The highest category of offences is for a breach of duties that is intentional and carries the highest maximum penalty under the Bill. Other categories of offences are for reckless and negligent breaches, which attract relatively lower penalties commensurate with the level of culpability of the defendant in the circumstances. Section 5 of the Criminal Code Act 1995 defines the meaning of intentional, reckless and negligent, in the context of Commonwealth offence provisions. Penalties are applied to each category of offence in accordance with the Criminal Code .

 

Penalties and the possibility of imprisonment in the most serious cases are a key part of achieving and maintaining a credible level of deterrence to complement other types of enforcement action, such as the issuing of notices by a marine safety inspector. The maximum penalties provided in the Bill reflect the level of seriousness of the offences and have been set at levels high enough to cover the worst examples of offence.

 

 



 

NOTES ON CLAUSES

 

Clause 1 - Short Title

 

This is a formal provision that specifies that the Act may be referred to as the Marine Safety (Domestic Commercial Vessel) National Law (Consequential Amendments) Act 2012 .

 

Clause 2 - Commencement

 

This clause sets out when each provision in this Act commences, or is taken to have commenced.

 

Clauses 1 to 3 commence on the day on which the Bill receives Royal Assent.

 

The provisions relating to Schedule 1, which amends the AMSA Act, commence immediately after the commencement of the National Law.

 

The provisions relating to Schedule 2, which aligns the offences and penalties for the General Safety Obligations (GSOs) with the model provisions contained in the Work Health and Safety Act 2011, will commence on a single day fixed by proclamation, but not before the first day that a law of a State or Territory that substantially corresponds to Part 2 of Work Health and Safety Act 2011 is in force as a law of that State or Territory.

 

If a proclamation date is not made within 6 months of a law of a State or Territory that substantially corresponds to Part 2 of the Work Health and Safety Act 2011 coming into force as a law of that State or Territory, the provisions relating to Schedule 2 of this Bill will commence on the first day after this 6 month period. If the provisions commence in this way the Minister must announce by a notice in the Gazette the day the provisions commenced.

 

Clause 3 - Schedule(s)

 

This clause makes it clear that each Act that is specified in one of the schedules to this Bill is amended or repealed in accordance with the relevant provisions.

 

Schedule 1 - Australian Maritime Safety Authority Act 1990 (AMSA Act)

 

The policy basis for the National Law derives from the COAG IGA, which determined that AMSA will be the National Regulator.

 

The following amendments to the AMSA Act are required to give effect to the terms agreed at the IGA.

 

 

 

 

 

 

Item 1 - Subsection 3(1)

 

This clause introduces the defined term “domestic commercial vessel” into the AMSA Act.

 

Item 1 - Paragraph 13(1)(e)

 

This amendment increases the number of AMSA Board members from 4 to 5. This change is required to implement the agreement reached in the IGA that the AMSA Board includes a member with knowledge of, or experience in, the operation or construction of non-SOLAS-Convention commercial vessels.

 

Item 2 - After subsection 13(4)

 

This amendment reflects the IGA agreement regarding the composition of the AMSA Board. This will ensure the AMSA Board includes a member with knowledge of, or experience in, the operation or construction of Domestic Commercial Vessels.

 

Item 1 - Subsection 22(6)

 

This amendment is an adjustment that results from the increase size of the AMSA Board that is required to accommodate the agreed composition for the National Regulator’s Board. The number of Board members required to constitute a quorum has increased from 4 to 5 members.

 

Schedule 2 - Marine Safety (Domestic Commercial Vessels) National Law Act 2012 (National Law)

 

Breaches of General Safety Duties

 

The following consequential amendments to the National Law are required to repeal the existing offences and penalties provisions for the general safety duties contained in the National Law and replaces them with provisions that mirror the provisions contained in Part 2 of the WHS Act.

 

Item 1 - Section 5

The amendment provisions mirror those contained in the WHS Act and depart from the penalty unit regime provided for in the National Law. 

The insertion of Clause 5A reflects that penalties for a breach of safety duties in the WHS Act are expressed in dollar amounts and not penalty units. This approach is based on recommendations of the national review into occupational health and safety and agreed by the WRMC, which identified disparity in the monetary value of penalty units among the jurisdictions and opted for penalties to be expressed in dollar terms to avoid any confusion.

 

 

 

 

 

 

Definitions

 

The following items are required to insert definitions into the National Law that are required as a result of the consequential amendments. These give effect to the alignment of the general safety obligations to those provided for in the WHS Act.

 

Item 2 - this inserts the term “ conduct ” into the National Law.

 

Item 3 - this inserts the definition of “ officer ”.

 

Item 4 - this inserts the definition of “ volunteer association ”.

 

Item 5 - this inserts the term “ worker ” into the National Law.

 

Item 6 - this inserts the definition of “ conduct a business or undertaking ”.

 

Item 7 - this inserts the definition of “ worker ”.

 

Offences and penalty provisions

 

The following items address the alignment of the offence framework to that contained in the WHS Act in relation to breaches of general safety duties under the National Law.

 

The WHS Act provides for three categories of offences against health and safety duties.

 

Category 1 offences are for a breach that involves reckless conduct and carries the highest penalty, including imprisonment of up to 5 years. These offences involve reckless conduct that exposes an individual to a risk of death, serious injury or illness without a reasonable excuse. 

 

Category 2 offences are for a breach that involves intentional conduct, but is not reckless conduct that exposes an individual to a risk of death, serious injury or illness without a reasonable excuse.

 

Category 3 offences do not require that a breach exposes an individual to a risk of death, serious injury or illness without a reasonable excuse, only that the act or omission that contravened the general safety duty occurred.

 

The level of penalties imposed for each of these categories of offences is dependent on whether the person is an individual, a body corporate, or an officer or person conducting a business or undertaking.

 

Item 8 - Section 13

 

This amendment aligns the offence provision provided for in section 13 of the National Law with the WHS Act.

 

Sub-clause 1 provides for a Category 1 offence, requiring recklessness and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.

 

Sub-clause 2 makes it clear that the prosecution bears the evidential burden of proving that a person did not have a reasonable excuse for the action or inaction that led to the breach of the general safety duty.

 

Sub-clause 3 provides for a Category 2 offence, requiring intent and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.

 

Sub-clause 4 clarifies that the physical element of whether an individual was or was not exposed to a risk of death or serious injury or illness is one of strict liability.

 

Sub-clause 5 provides for a Category 3 offence.

 

Item 9 - Section 15

 

This amendment aligns the offence provision provided for in section 15 of the National Law with the WHS Act.

 

Sub-clause 1 provides for a Category 1 offence, requiring recklessness and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.

 

Sub-clause 2 makes it clear that the prosecution bears the evidential burden of proving that a person did not have a reasonable excuse for the action or inaction that led to the breach of the general safety duty.

 

Sub-clause 3 provides for a Category 2 offence, requiring intent and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.

 

Sub-clause 4 clarifies that the physical element of whether an individual was or was not exposed to a risk of death or serious injury or illness is one of strict liability.

 

Sub-clause 5 provides for a Category 3 offence.

 

Item 10 - Section 18

 

This amendment aligns the offence provision provided for in section 18 of the National Law with the WHS Act.

 

Sub-clause 1 provides for a Category 1 offence, requiring recklessness and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.

 

Sub-clause 2 makes it clear that the prosecution bears the evidential burden of proving that a person did not have a reasonable excuse for the action or inaction that led to the breach of the general safety duty.

 

Sub-clause 3 provides for a Category 2 offence, requiring intent and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.

 

Sub-clause 4 clarifies that the physical element of whether an individual was or was not exposed to a risk of death or serious injury or illness is one of strict liability.

 

Sub-clause 5 provides for a Category 3 offence.

 

Item 11 - Section 20

 

This amendment aligns the offence provision provided for in section 20 of the National Law with the WHS Act.

 

Sub-clause 1 provides for a Category 1 offence, requiring recklessness and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.

 

Sub-clause 2 makes it clear that the prosecution bears the evidential burden of proving that a person did not have a reasonable excuse for the action or inaction that led to the breach of the general safety duty.

 

Sub-clause 3 provides for a Category 2 offence, requiring intent and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.

 

Sub-clause 4 clarifies that the physical element of whether an individual was or was not exposed to a risk of death or serious injury or illness is one of strict liability.

 

Sub-clause 5 provides for a Category 3 offence.

 

Item 12 - Section 161

 

This amendment aligns the offence provision provided for in section 161 of the National Law with the WHS Act.

 

Sub-clause 1 provides for a Category 1 offence, requiring recklessness and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.

 

Sub-clause 2 makes it clear that the prosecution bears the evidential burden of proving that a person did not have a reasonable excuse for the action or inaction that led to the breach of the general safety duty.

 

Sub-clause 3 provides for a Category 2 offence, requiring intent and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.

 

Sub-clause 4 clarifies that the physical element of whether an individual was or was not exposed to a risk of death or serious injury or illness is one of strict liability.

 

Sub-clause 5 provides for a Category 3 offence.

 

Item 13 - Application of amendments made by Schedule 2

 

This amendment makes it clear that the amendments provided for in Schedule 2 of the Bill only apply to actions or inactions that occur on or after the commencement of the Schedule.