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Marine Safety (Domestic Commercial Vessel) National Law Bill 2012

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2010-2011-2012

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

 

 

 

 

MARINE SAFETY (DOMESTIC COMMERCIAL VESSEL)

NATIONAL LAW BILL 2012

 

 

 

 

 

REPLACEMENT 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 BILL 2012

 

OUTLINE

 

The Marine Safety (Domestic Commercial Vessel) National Law Bill (the Bill) is a component of the national transport reform package, which is intended to improve safety and reduce the regulatory burden and costs on the Australian rail, heavy vehicle and maritime industries. The maritime component of this reform package will be implemented through three key projects.

 

Firstly, national shipping reforms designed to ensure the long-term future of the Australian shipping industry through tax regulation and training. Secondly, the revision of the Navigation Act 1912 (to be replaced by the Navigation Act 2012) will modernise the regulatory framework and provide much-needed confidence and certainty for industry.

 

This Bill represents the third and final component of the maritime reform package.  As a key component of the National System for commercial vessel safety that will commence on 1 January 2013, this Bill introduces a new National Law for the regulation of domestic commercial vessel safety and establishes a National Marine Safety Regulator (the National Regulator). The policy basis for the National Law derives from the Council of Australian Governments (COAG) Inter-Governmental Agreement (IGA) on Commercial Vessel Safety Reforms, signed on 19 August 2011. The IGA also determined that the Australian Maritime Safety Authority (AMSA) will be the National Regulator.

 

There are currently eight different marine safety regulatory systems, involving the Commonwealth, the six States and the Northern Territory, that govern the operation of domestic commercial vessels in Australia. The overarching objective of the Bill is to provide for the consistent national regulation of the domestic commercial vessel industry across Australia.

 

This objective is to be achieved through a regulatory framework that:

 

(a)     promotes continuous improvement in marine safety;

(b)    promotes public confidence in the safety of marine operators;

(c)     ensures effective identification and management of safety risks; and

(d)    seeks to reduce regulatory burden without compromising safety.

 

Consistent with these objectives, the Bill:

 

(a)                 establishes the National Regulator for the purposes of performing functions and exercising powers under this Bill;

(b)                establishes a system for the issue of national certificates in relation to:

                                                              i.       vessel identification;

                                                            ii.       vessel survey;

                                                          iii.       the commercial operation of vessels; and

                                                          iv.       seafarer competencies;



 

(c)                 establishes offences where a vessel identification or a certificate is required and not held or not complied with;

(d)                establishes General Safety Obligations (GSOs) for individuals who have a role in the production and operation of commercial vessels, to ensure the safety of the vessel, their own safety and the safety of others, so far as is reasonable;

(e)                 establishes a system within which to conduct compliance and enforcement activities; and

(f)                 provides for the consistent application of nationally agreed standards across Australia.

 

The IGA provides that the Commonwealth will apply the National Law to the extent of the Commonwealth’s constitutional reach, and each jurisdiction will apply the National Law to any ‘gap’ in the Commonwealth’s constitutional reach. This approach achieves the consistency objective of the IGA.

 

Vessels which operate internationally, foreign vessels and vessels which maintain certification under the international convention for Safety of Life at Sea (SOLAS) will be regulated by the Commonwealth under the proposed Navigation Act 2012 and are outside with scope of the Bill. This approach will continue to be applied when the revised Act is introduced. Defence vessels and recreational vessels are also outside the application of the Bill. However, interstate vessels that are currently regulated under the Navigation Act 1912 will be covered under the National Law from its commencement.

 

State and Territory agencies will be responsible for the effective day-to-day operation of the National Law, under delegation from the National Regulator. The jurisdictions will retain responsibility for the regulation of waterways, the management of ports and associated issues, such as classifying waters, setting speed limits and the regulating alcohol consumption.

 

 

DEVELOPMENT OF THE BILL

 

This Bill has been developed with the State and Territory jurisdictions to implement the decision of COAG on 19 August 2011 to create a single National Law to regulate the safety of all commercial vessel operations in Australian waters and to establish a single National Regulator for commercial vessel safety from 1 January 2013 .

 

Extensive consultation has been undertaken on the development of the Bill with the States and Territories, including through the Standing Council on Transport and Infrastructure (SCOTI), the Transport and Infrastructure Senior Officials Committee (TISOC), the Maritime Agencies Forum, the National Marine Safety Committee, seven workshops with jurisdiction officials and numerous discussions and correspondence with State and Territory agency contacts.

 

Public consultation has also informed the development of the Bill, including consultation on the Regulatory Plan from June to October 2011 (outlining the proposed elements of the Bill), a detailed discussion paper in mid-December 2011 (providing an overview of the Bill) and the draft Bill itself (released in February 2012). Comments and feedback from 19 formal public submissions that were received on the draft Bill have been considered and incorporated into the Bill as appropriate. A report detailing the responses to these submissions (including the changes made to the Bill as a result) was also released in May 2012.

 

Government agencies have also been consulted on the development of the Bill, including the Department of Prime Minister and Cabinet, the Attorney General’s Department, the Department of Education, Employment and Workplace Relations, SafeWork Australia, and the Australian Maritime Safety Authority.

 

The text of the Bill has been unanimously agreed by SCOTI at its meeting of 18 May 2012.

 

 



ABBREVIATIONS

 

AAT                                   Administrative Appeals Tribunal                       

 

AMSA                                Australian Maritime Safety Authority

 

COAG                                Council of Australian Governments

 

Constitution                        Constitution of the Commonwealth of Australia

 

Criminal Code                    The Code established by the Criminal Code Act 1995

 

EEZ                                    Australia’s Exclusive Economic Zone

 

EVU                                   Enforceable Voluntary Undertaking

 

GSO                                   General Safety Obligation

 

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

 

Inspector                             A Marine Safety Inspector appointed under Part 6 of the Bill

 

National Law                      Marine Safety (Domestic Commercial Vessel) National Law set out in Schedule 1 of the Bill

 

National Regulator             The National Regulator established under Part 2 of the Bill

 

NMSC                                National Marine Safety Committee

 

NSCV                                 National Standard for Commercial Vessels

 

OBPR                                 Office of Best Practice Regulation

 

RIS                                     Regulation Impact Statement

 

SCOTI                                Standing Council on Transport and Infrastructure

 

SOLAS                               International Convention for the Safety of Life at Sea

 

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

 

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

 

TISOC                                Transport and Infrastructure Senior Officials Committee

 

USL Code                          Uniform Shipping Laws Code

 

WHS Act                            Work Health and Safety Act 2011

 



FINANCIAL IMPACT STATEMENT

 

The COAG IGA underpinning the commercial vessel safety reform articulates the intentions of the jurisdictions in establishing the National Regulator arrangements.  Jurisdictions have committed to achieving the objective of the reforms with minimum legal and administrative costs and no overall increase in regulatory burden as a result of commencement of the National System.

 

Full cost-recovery is a longer-term aspiration. States and Territories not fully recovering costs from industry will consider moving progressively to full cost recovery in the long-term. Any State or Territory-based subsidisation of operators will take into account implications for the National System.

 

At the commencement of the scheme, States and Territories will continue to adjust current cost recovery or fee charging arrangements at a rate of their own discretion.  The Commonwealth has undertaken not to impose upon industry any new fees or charges for National System related purposes unless otherwise agreed by SCOTI. States and Territories have agreed to comply with Competitive Neutrality Policy and Principles outlined in the COAG Competition Principles Agreement in any instance when a fee for service is charged in competition with the private sector.

 

From the commencement of the National System, and until alternate arrangements have been agreed by SCOTI, all jurisdictions will contribute to the funding of the National Regulator. The first year of funding of AMSA’s costs of the National System have been set at $4 million (in June 2011 dollars). To facilitate the establishment of new service delivery arrangements, the Commonwealth will meet $1 million of the National Regulator’s costs for the first year of operation of the National System (2013). As arrangements are bedded down, jurisdictions will work to identify any efficiencies to be gained through the National System.

 

The funding contributions for AMSA’s costs as the National Regulator for year one (2013) will be:

 

a)       National Marine Safety Committee (NMSC) funding (as per existing State and Territory contributions under the NMSC agreed funding formula) - $2,000,000

b)       Commonwealth - $1,000,000

c)       New South Wales - $288,800

d)      Victoria - $238,800

e)       Queensland - $238,800

f)        Western Australia - $113,800

g)       South Australia - $77,700

h)       Tasmania - $30,500

i)         Northern Territory - $11,100

j)         Australian Capital Territory - $0

 



The funding formula for AMSA’s costs as the National Regulator (beyond 2013), until any alternate arrangements have been unanimously agreed by SCOTI, will be:

 

a)       Commonwealth - 10%

b)       New South Wales - 26%

c)       Victoria - 21.5%

d)      Queensland - 21.5%

e)       Western Australia - 10.25%

f)        South Australia - 7%

g)       Tasmania - 2.75%

h)       Northern Territory - 1%

i)         Australian Capital Territory - 0%

 

These funding arrangements will be reviewed by SCOTI in the first half of 2016, or a later date agreed by SCOTI.

 

 

REGULATORY IMPACT STATEMENT

 

The commercial vessel safety national reform was first initiated in July 2009 when COAG decided to take a national approach to regulating the safety of all domestic commercial vessels in Australian waters by 2013. COAG’s decision reflects recommendations made by the Australian Transport Council (ATC).

 

ATC’s recommendations were informed by a Regulatory Impact Statement (RIS), which explored perceived problems with the current regulatory framework and considered alternate options for national reform of maritime safety regulation.

 

The RIS, which can be found at: http://www.infrastructure.gov.au/maritime/nmsr.aspx   incorporated feedback provided in over 90 written submissions and 22 public meetings held around Australia.



 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Marine Safety (Domestic Commercial Vessel) National Law Bill 2012

 

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 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 (‘the National Law Bill’) implements the maritime component of the national transport reform agreed to by the Council of Australian Governments on 19 August 2011.  The National Law Bill introduces a national system for the regulation of domestic commercial vessels and establishes the Australian Maritime Safety Authority as the National Regulator for commercial vessel safety (the National Regulator).

There are currently eight different marine safety regulatory systems, the Commonwealth, the six states and the Northern Territory, governing the operation of domestic commercial vessels. The overarching objective of the Bill is to provide for the consistent safety regulation of Australia’s domestic commercial vessel industry

The National Law Bill will extend the Commonwealth jurisdiction for safety regulation to Australia’s domestic fleet, including smaller fishing vessels, dive boat operators and vessels supporting pearling and oyster farming.  These vessels will be required under Commonwealth law to be designed, built, maintained and equipped to nationally agreed standards, crewed by people with nationally recognised certificates of competence who operate the vessel in accordance with national safety standards.

 

Human rights implications

 

The Bill engages the following human rights:

 

Right to privacy

 

Part 6 of the National Law Bill contains provisions on enforcement powers that enable Marine Safety Inspectors (inspectors) appointed by the National Regulator (the Australian Maritime Safety Authority) to detain, board, inspect and search domestic commercial vessels; and gather information and seize things in relation to domestic commercial vessel safety regulation and compliance. 

 

The National Law Bill has been drafted consistently with the principles stipulated in The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) developed by the Criminal Justice Division of the Attorney - General’s Department. 

In addition, the National Law Bill provides for enforcement powers equivalent to those provided in current Commonwealth legislation including:

 

  • Work Health and Safety Act 2011 , Section 163 - Powers of entry;
  • Crimes Act 1913 , Section 3T - Searches without warrant in emergency situations;
  • Quarantine Act 1908, Section 66AB - The monitoring of premises; and,
  • Customs Act 1901 , Section 185 - Power to board and search etc. ships and aircraft.

 

Section 8.6 of the Guide (Entry and Search Without a Warrant) states that “a search without a warrant will only be permitted where the inherent mobility of the conveyance means there may not be time, or it would be impractical, to obtain a warrant”. 

 

Domestic commercial vessels are inherently mobile. The nature of the commercial activities undertaken by these vessels often means that they do not follow any predictable pattern or timetable. This means that monitoring and compliance activities need to be undertaken as and when an opportunity presents, frequently while the vessel is at sea. The vessels may also be operating in geographically remote areas, a great distance from port and with limited or no mobile telephone access. In these circumstances, obtaining a warrant is impractical and may limit the regulator’s capacity to undertake their safety regulatory role in a responsive manner. For this reason, the enforcement powers are appropriate and proportionate for the task.

 

The guide at 8.6 (exception for licensed premises) sets out that “a person who obtains a licence or registration for non-residential premises can be taken to accept entry to those premises by an inspector for the purpose of ensuring compliance with the licensing or registration conditions”. The Senate Scrutiny of Bills Committee has said that these powers can be conferred “where a person has accepted a commercial benefit subject to being monitored by this means”.

 

The safety regulation of domestic commercial vessel activity is not new and regulation has occurred under State and Territory legislation for some time. Owners and masters of domestic commercial vessels are aware that the safety requirements pertaining to domestic commercial vessels are subject to regulatory oversight, and by applying for the unique identifier and certificates that allow them to operate as a commercial vessel they are implicitly accepting that their compliance with the regulatory requirements will be monitored. 



 

Generally, inspectors will be required to seek the express and informed consent of the relevant person or obtain a warrant prior to entering a premise. However, an inspector may enter a premise that is not a residential premise without consent or warrant in order to gain access to the domestic commercial vessel (see clause 96). An inspector may also board a domestic commercial vessel without warrant or consent to monitor compliance, or to issue an improvement, infringement or other notice.

Inspectors, when undertaking monitoring activities, routinely wear uniforms. However, an inspector must, in order to exercise their powers lawfully under clauses 96 and 97, also show his or her identity card if requested to do so. Similarly, a police officer who is appointed as an inspector, but who is not wearing a uniform, must show his or her police identification if requested to do so. 

 

If, in the course of undertaking monitoring activities in relation to a domestic commercial vessel, an inspector believes that something is evidential material and that there is a serious or urgent need to exercise powers to preserve the evidential material, or it is otherwise impracticable to obtain a warrant, then clause 100 allows an inspector to take a sample of the material, secure the material for up to 72 hours or seize the material. 

 

These powers are limited to use in relation to a vessel, which because of its inherent mobility, may make obtaining a warrant impractical (for example, if the vessel is in a remote area with no mobile telephone reception) or may require that action is taken immediately to ensure that evidential material is not lost or compromised. The 72 hour statutory time limit to secure a thing, balances the possibility that the safety operation may be a significant distance from the nearest port, whilst ensuring that a person’s property is not inappropriately retained.

 

To ensure that the National Regulator can monitor the use of this power and the circumstances in which it is used, an inspector who exercises these powers will be required to report to the National Regulator on the exercise of the powers and the grounds for his or her belief that these powers needed to be exercised without warrant.

 

Division 7 of Part 6 of the Bill further restricts how an inspector can deal with material seized from a domestic commercial vessel, which ensures that the handling of any evidential material is transparent for the person and the National Regulator.

 

Clause 152 enables certain specified people or groups of people who play a role in the administration of the National Law to disclose information, including personal information, to the National Regulator. This power is to ensure that people who have been delegated functions by the National Regulator, or who are accredited or approved to undertake activities on behalf of the National Regulator, are able to disclose information that may be relevant to the administration of the National Law.

 

Conclusion

 

The Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable and proportionate to the information sought and the safety benefits conveyed to the maritime industry.

 

Minister for Infrastructure and Transport, the Hon Anthony Albanese MP



OTHER MATTERS

 

Key features of the COAG IGA

 

On 19 August 2011, the signing of the COAG IGA provided for the establishment of a single national regulator and a single National Law covering domestic commercial vessel safety in Australia from 1 January 2013. The IGA formalises the agreement of all Australian governments to the operating arrangements under which the single National System will operate. Agreement on the provisions of the IGA is a result of extensive negotiation between the Commonwealth, States and Territories. 

 

Consistent with the COAG IGA, the National Law is intended to replace current State and Territory laws governing the operational safety of domestic commercial vessels. It will ensure that nationally agreed standards - the National Standard for Commercial Vessels (NSCV) - are applied consistently around the country.  The NSCV will be implemented through subordinate legislation made under the National Law.

 

As the National Regulator, AMSA will be responsible for the development and implementation of commercial vessel standards nationally covering vessel construction, operation and crew qualifications. However, under the National Law, AMSA will delegate certain functions to State and Territory maritime safety agencies, which will undertake day-to-day interaction with the domestic commercial vessel industry.

 

Scope of this Bill relative to the proposed Navigation Act 2012

 

The scope of the National Law will apply to any domestic commercial vessels capable of being used in navigation or designed to float in water, including barges, pontoons, floating restaurants and floating craft being towed, which are not within the scope of the proposed Navigation Act 2012 .

 

Vessels within the scope of the proposed Navigation Act 2012 will include:

 

  • Foreign flagged vessels conducting activities (other than warships and vessels on “freedom of navigation voyages”) in Australia’s Exclusive Economic Zone (EEZ) (for example, a foreign flagged vessel conducting fishing activities inside the EEZ);
  • Australian flagged vessels that cross the outer limit of the EEZ, operate entirely outside the EEZ, or which intend to do so; and
  • Australian flagged vessels that apply for or maintain SOLAS Certification, regardless of where they operate.

 

These vessels will be regulated by the proposed Navigation Act 2012 and will not be subject to the National Law, except where a vessel that has SOLAS Certification actively ‘opts out’ of coverage under that legislation. In that case, the vessel would be regulated under the National Law and would lose any international certification issued by AMSA for international voyages.

 



National Standards

 

The National Law is designed to apply the NSCV throughout Australia. The NSCV is a set of standards covering commercial vessel operation, construction and crew qualifications that have been developed by all State and Territory transport agencies and agreed by Transport Ministers.

 

The NSCV is an evolving document that will be amended and updated as the need arises, with any changes being subject to broad stakeholder consultation and, following the implementation of the National System, unanimous agreement by

Transport Ministers. The NSCV will be implemented through subordinate legislation made under the National Law.

 

Nationally, jurisdictions have in the past agreed a Uniform Shipping Laws (USL) Code and the NSCV. However, neither of these instruments has been applied consistently because of the varied legislative application in each jurisdiction. For the first time in over 40 years, a single set of standards (the NSCV) will be consistently applied to domestic commercial vessels through one piece of legislation.

 

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.

 

The application of strict liability to certain offences has been carefully considered during the drafting of the Bill and most strict liability offences are subject to other qualifiers, such as reasonable practicability, due diligence or reasonable care. The Bill also makes reference in relevant clauses to section 6.1 of the Criminal Code , which provides further details on strict liability.

 



Penalties for offences

 

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 penalties in the Bill 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. This approach is adopted in the Work Health and Safety Act 2011 and is in line with international practice.

 

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 . As outlined in section 4AA of the  Crimes Act 1914, one 'penalty unit' equates to $110.

 

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.

 

Evidential burden

 

An evidential burden (or ‘burden of proof’) requires a person to provide evidence of an asserted fact in order to prove that fact to a court. In some instances, the Bill places an evidential burden on an individual to demonstrate a reasonable excuse as to why they have failed to meet a duty or obligation.

 

Several sub-clauses in this Bill shift the evidential burden by requiring the defendant to show a reasonable excuse. This is because the defendant is the only person in the circumstances with the relevant knowledge able to provide evidence of any reasonable excuse for refusing or failing to meet the relevant duty or obligation.

 

 



 

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 Act 2012 .

 

Clause 2 - Commencement

 

This clause provides for a commencement by proclamation. The title and the commencement provisions will become law on the day the Act receives Royal Assent. The balance of the provisions, both in the local application law and Schedule 1, will become law either on a specified day to be proclaimed or on the day after 12 months from which the Act receives Royal Assent. 

 

The provision of a proclamation date intends to avoid the possibility that a specified date may pass before the Bill has passed through Parliament. This avoids the possible need to draft an amendment, while the 12 month deadline removes an open ended commencement date and provides certainty.

 

Clause 3 - Definitions

 

Sub-clause 1 explains that the Bill is structured to separate local application provisions from the Marine Safety (Domestic Commercial Vessel) National Law set out in Schedule 1.

 

Owing to this separation within the Bill, a reference to a clause or sub-clause in the local application provisions relates only to a clause or sub-clause in the local application provisions, unless otherwise indicated. Likewise, a reference to a clause or sub-clause in Schedule 1 relates only to a clause or sub-clause in Schedule 1, unless otherwise indicated.

 

COAG’s intention is that this Bill will be applied in each jurisdiction by a separate State or Territory Law (“the local application provisions”). Notwithstanding clause 5, the practical effect of which is to legislate to the extent of the Commonwealth’s constitutional reach, State and Territory laws are required to ensure that any potential gap in the Commonwealth’s reach is addressed.

 

Sub-clause 2 provides definitions for words and phrases used in the local application provisions of this Bill. These definitions determine the meaning applied to these words or phrases wherever they appear in the local application provisions. Schedule 1 contains additional definitions for words and phrases used in Schedule 1.



 

Significant definitions, which are essential to defining the scope of the legislation and describing how it will be administered, include the following:

 

‘Commonwealth Minister’ means the Minister of State administering this Act, which is the Minister of Infrastructure and Transport.

 

‘Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth’ is defined to mean this Bill and the Schedule to it.

 

‘Participating Territory’ is defined to mean the Australian Capital Territory, the Jervis Bay Territory, the Territory of Ashmore and Cartier Islands, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.

 

Sub-clause 3 clarifies that the same words and phrases have the same meaning wherever they appear in the Bill. This is intended to avoid any conflict in the interpretation of words and phrases used in the local application provisions or Schedule 1 of this Bill.

 

Clause 4 - Adoption of Marine Safety (Domestic Commercial Vessel) National Law

 

This clause clarifies that Schedule 1 of the Bill, as well as any regulations or other legislative instruments made under the Bill, are a law of the Commonwealth and may be referred to as the Marine Safety (Domestic Commercial Vessel) National Law 2012 . The reference to ‘legislative instruments’ is intended to include regulations and Marine Orders, but exclude exemptions under the Bill (see clause 143).

 

Clause 5 - Constitutional reach of Act

 

Sub-clause 1 describes the activities and matters to which the Bill applies. This includes vessels engaged in inter-State trade and commerce, vessels owned by constitutional corporations, vessels covered by the implementation of international agreements, vessels owned by the Commonwealth and vessels that are external to Australia.

 

Sub-clause 2 clarifies that any actions or activities undertaken in a person’s capacity as the owner, master or crew member of a vessel is considered to relate to the vessel.

 

Sub-clauses 3(a) and (b) explain the meaning of ‘external to Australia’.

 

Clause 6 - Relationship with State and Territory laws

 

Sub-clause 1 provides that the Bill overrides any State or Territory law relating to the same matters of marine safety for domestic commercial vessels provided in this Bill. However, this Bill is not intended to exclude any application or mirror legislation enacted in a State and Territory.

 

Sub-clause 2(a) clarifies that the Bill does not exclude any State or Territory law specifically stated as being not excluded by the regulations under this Bill.

 

Sub-clause 2(b) provides that the Bill does not cover all aspects of domestic commercial vessel regulation, allowing State and Territory laws to cover the particular aspects listed. The Bill is not intended to provide for the regulation of every aspect of commercial maritime activity and many activities will continue to be regulated by State and Territory law.

 

Sub-clause 3 clarifies that the Bill is not intended to exclude any State or Territory law relating to activities or matters that are outside the constitutional reach of the Bill, as outlined in clause 5.

 

Sub-clauses 4 and 5 clarify that this Bill is not intended to exclude or limit the concurrent operation of a law covered by sub-clause 2 that is able to co-exist with this Bill or that creates an offence that is also an offence under this Bill.

 

Sub-clause 6 clarifies that sub-clauses 4 and 5 apply even if the law contains a different penalty, fault element or defence in relation to the offence.

 

Sub-clause 7 clarifies that a person can only be found guilty of an offence under either this Bill or the law covered by sub-clause 2 or the common law.

 

Sub-clause 8 clarifies that a reference to a law under this clause includes any provision of that law.

 

Clause 7 - Avoiding inconsistency, including operational inconsistency, arising between this Act and State and Territory workplace health and safety laws

 

Section 109 of the Constitution provides that if a law of a State is inconsistent with a law of the Commonwealth, the Commonwealth law prevails and the State law, to the extent of the inconsistency, is invalid. Clause 7 is a ‘roll-back’ provision that accommodates State and Territory legislation dealing with workplace health and safety, which is not capable of operating concurrently with the National Law. It limits or qualifies the operation of the National Law so that inconsistency (including operational inconsistency) with a State or Territory law of this nature is avoided.

 

Sub-clause 3 operates so that where an act is required or authorised by or under a relevant State or Territory law, that act is not prohibited or restricted by the imposition of a liability under the National Law. 

 

Sub-clause 4 operates so that where an act is specifically prohibited by or under a relevant State or Territory law, the National law does not require that act to be done, or impose a liability for not doing that act. 

 

Sub-clause 5 ensures that the National Law does not operate in circumstances where, if it did operate, an inconsistency, including an operational inconsistency, would arise.

 

Clause 8 - Extraterritorial operation

 

This clause sets out the geographical scope of the Bill. For the purposes of this Bill, ‘external to Australia’ has been defined to be beyond the limits of a State or Territory, (i.e. beyond the low water mark or historical closing lines), as defined in clause 5.

Clause 9 - Charging of fees by States etc. not prevented

 

This clause is intended to make clear that the States and Territories, or their agencies, officers and employees, are free to charge their own fee for any services provided under this Bill in their capacity as a delegate of the National Regulator. Consistent with the COAG IGA, nothing in the Bill prevents the States and the Territories from charging fees for the performance of functions delegated by the National Regulator.

 

Clause 10 - National Regulator to pay amounts to States, etc.

 

Sub-clause 1 requires the National Regulator to reimburse a State or Territory for the amount of funds received for infringement notices issued by or as a result of a recommendation of agencies, officers and employees of that respective State or Territory.

 

Sub-clause 2 requires the States and Territories to reimburse the National Regulator for the amount of any required refund of infringement notices issued by or as a result of a recommendation of agencies, officers and employees of that State or Territory when acting as National Regulator delegates.

 

Clause 11 - Commonwealth consent to conferral of functions etc. on the National Regulator etc. by corresponding State-Territory laws

 

Sub-clauses 1, 2 and 3 permit a State or Territory to impose duties or confer functions and powers on the National Regulator or another Commonwealth authority. The exception to this occurs if this would not be constitutional, exceeds the powers of the Commonwealth or is specified in the regulations under this Bill.

 

The National Law is intended to allow a corresponding State or Territory law to give functions or powers to, or impose duties on, the National Regulator to the extent of any constitutional gap. It is also intended to utilise those constitutional provisions that would enable the Commonwealth to regulate in this area.

 

The practical effect of this arrangement is for the Commonwealth to make a National Law within its constitutional reach and enable States and Territories to pass an application law, effectively making one law (the National Law) apply to the operation of all domestic commercial vessels in Australia. The purpose of this provision is, therefore, to put beyond doubt the National Regulator’s powers, notwithstanding potential limitations of the constitutional reach of the Commonwealth.

 

Sub-clause 4 clarifies that this Bill does not exclude or limit any State or Territory law from imposing duties or conferring functions and powers if this is consistent with the requirements under Sub-clauses 1, 2 and 3 above and the State or Territory law is able to co-exist with this Bill.

 

Clause 12 - Meaning of corresponding State-Territory law

 

Sub-clause 1 provides a definition that determines the meaning applied to the phrase “corresponding State-Territory law” wherever it is used in this Bill.

 

Sub-clause 2 explains the conditions by which a declaration made under a “corresponding State-Territory law” may be revoked by the Commonwealth Minister. This legislative instrument would not be subject to disallowance or sun-setting because of subsections 44(1) and 54(1) of the Legislative Instruments Act 2003 .

 

Clause 13 - Meaning of imposes a duty

 

This clause provides a definition of when a ‘corresponding State-Territory law’ “imposes a duty” on the National Regulator. It includes where a State or Territory law confers a function or power that gives rise to an obligation on the National Regulator to perform the function or exercise the power.

 

Clause 14 - When duty imposed

 

This clause describes when a duty is considered to be imposed on the National Regulator. It is intended to avoid any doubt about when such a duty is imposed.

 

Clause 15 - Imposing duty under State or Territory law

 

This clause clarifies that a duty is imposed by a State or Territory law on the National Regulator if, and only if, it is within the powers of the State or Territory and is consistent with the Constitution. Where these requirements are not met, the duty is considered to be at the discretion of the National Regulator.

 

Clause 16 - Review of decisions under corresponding State-Territory laws

 

This clause allows for certain State and Territory decisions to be reviewed by the Administrative Appeals Tribunal (AAT). It describes what is determined to be a “reviewable State-Territory decision” for the purposes of this Bill. It also makes it clear that the Administrative Appeals Tribunal Act 1975 applies for the purposes of this clause.

 

Given the National Law will be applied to the full extent of the constitutional reach of the Commonwealth, there will be very few State and Territory decisions of the kind to which clause 16 refers. While regulations will address the review of these decisions, the practical consequence is that the decisions will occur very infrequently, if at all.

 

Furthermore, jurisdictions have indicated an intention to provide for the application of Commonwealth 'adjectival laws', including the AAT legislation, in their application laws.

 

Clause 17 - References in instruments to the National Law

 

This clause clarifies that, unless stated otherwise in this Bill, a reference to the Marine Safety (Domestic Commercial Vessel) National Law is that applied under clause 4 of the local application provisions of this Bill or provided in an application law of a State or Territory.



 

Clause 18 - Powers of magistrates

 

This clause clarifies that magistrates exercising functions or powers under this Part perform these functions or exercise these powers in a personal capacity and not as a court or a member of a court. This reflects the doctrine of persona designata , which holds that Parliament may confer a non-judicial function on a justice of a court constituted under Chapter III of the Constitution if the function is conferred on the justice as an individual rather than a member of the court. Due to the separation of powers doctrine, functions or powers are conferred on a voluntary basis and need not be accepted by the magistrate. Subclause (3) clarifies that magistrates acting persona designata are still entitled to the judicial immunity afforded to them as if they were exercising functions or powers as a court or a member of a court.

 

Clause 19 - Regulations

 

This clause provides powers to the Governor General to make regulations where these are required and permitted by the local application provisions of this Bill. Division 9 in Part 8 provides further details of the types of matters to be covered in the regulations under this Bill.

 

SCHEDULE 1 - MARINE SAFETY NATIONAL LAW

 

Part 1 - Preliminary

 

This part of the Bill sets out the key preliminary issues relevant to the National Law. It contains the short title of the Act, the objects of the National Law and the key definitions, including those that limit the scope of the National Law. The commencement provisions contained in clause 2 relate to the matters beyond the constitutional reach of the Commonwealth.

 

The National Law is intended to apply to domestic commercial vessels operating in all Australian States and the Northern Territory, Australian Capital Territory and Jervis Bay Territory. It is also intended to apply to domestic commercial vessels operating in Christmas Island, Ashmore and Cartier Islands, and the Cocos (Keeling) Islands. It will not apply to the Australian Antarctic Territory, Norfolk Island or any other of Australia’s external Territories.

 

The intention is that all domestic commercial vessels that travel beyond 200 nautical miles (i.e. beyond the EEZ) and that are currently regulated by relevant States and Territories will remain within the scope of the National System and covered by the NSCV. Although such vessels will be covered by the proposed Navigation Act 2012 , they will be exempted from the application of that legislation on the condition that they comply with the National Law and relevant standards. This does not include vessels that undertake international voyages (i.e. to and from an international port) or foreign vessels. These vessels will be subject to the proposed Navigation Act 2012 without exception.



 

The cumulative effect of the key definitions of ‘domestic commercial vessel’ and ‘vessel’ in this part is to capture government vessels (other than Defence Force vessels and Customs Vessels which travel beyond the EEZ) and vessels that are used in connection with a commercial or research activity.

 

However, vessels operated by primary or secondary schools and community groups are excluded from the National Law, unless they are operated for a purpose or use identified in the regulations (vessels operated by volunteer search and rescue organisations will, for example, be subject to the National Law).

 

Foreign-owned vessels, vessels that continue to be regulated by the proposed Navigation Act 2012 or vessels that travel to and from Australia’s external territories to the mainland, are excluded from the application of the National Law.

 

The Bill defines a vessel owner more broadly than a legal owner. For the purposes of the National Law, it includes an entity with the overall general control and management of a vessel. A definition of owner is also provided in clause 6.

 

Clause 1 - Short title

 

This is a formal provision that specifies the short title of the Act as the Marine Safety (Domestic Commercial Vessel) National Law.

 

Clause 2 - Commencement

 

The Marine Safety (Domestic Commercial Vessel) National Law will commence as a law of the jurisdiction on the commencement date provided for by the Act (see also clause 2 of the local application provisions of this Bill).

 

Clause 3 - Objects of law

 

This clause provides that the objects of this Bill are to:

 

(a)     form a part of a national scheme for the safe operation, design, construction and equipping of domestic commercial vessels in Australia;

(b)    implement Australia’s international obligations for domestic commercial vessel safety;

(c)     facilitate the development of a safety culture to prevent or reduce marine incidents in Australia;

(d)    provide a national framework for the development and application of consistent national standards relating to the operation, design, construction and equipping of domestic commercial vessels in Australia;

(e)     enhance the efficient and orderly operation of domestic commercial vessels in Australia; and

(f)     provide an effective enforcement framework to prevent or reduce marine incidents and ensure compliance with international obligations and national standards in Australia.

 

These objects give effect to the objectives outlined in the COAG IGA.

 

The terms “marine incident” and “Australia” are defined in clause 6. The term “domestic commercial vessel” is defined in clause 8. The term “vessel” is defined in clause 9.

 

Clause 4 - Law binds the Crown

 

Sub-clause 1 provides that the Act will bind the Crown in each of its capacities.

 

Sub-clause 2 provides that the Crown may not be prosecuted for a criminal offence against this Bill or subordinate legislation, including regulations and Marine Orders.

 

Clause 5 - E xtended geographical jurisdiction—category A

 

This clause describes how the criminal offences established by this Bill will operate. In particular, it provides that the extended geographical jurisdiction provided in Category A of section 15.1 of the Criminal Code applies to criminal offences against this Bill.

 

The Criminal Code provides four categories of extended geographical jurisdiction for offences. Category A is considered the most appropriate for offences against the National Law because most activities under the National Law will occur within the EEZ and involve vessels with Australian nationality.

 

Clause 6 - Definitions

 

This clause sets out a number of definitions for certain words and phrases used in the National Law. These definitions determine the meaning that is to be attributed to these words or phrases whenever they are used in the Bill or in the regulations, Marine Orders and exemptions made under the Bill.

 

Significant definitions, which are essential to define the scope of the National Law and describe how it will be administered, include the following:

 

agency :

(a) of the Commonwealth, includes the following:

(i) an Agency within the meaning of the Financial Management and Accountability Act 1997 of the Commonwealth;

(ii) a body corporate established for a public purpose by or under a law of the Commonwealth; and

(b) of a State or a Territory, includes the following:

(i) a Department of State (however described) of the State or Territory;

(ii) a body corporate established for a public purpose by or under a law of the State or Territory.

 

certificate means any of the following:

(a) a certificate of operation;

(b) a certificate of survey;

(c) a certificate of competency.

 

COAG means the Council of Australian Governments.

COAG council means the council established by COAG that has responsibility for marine safety.

 

Commonwealth Minister means the Minister of State of the Commonwealth administering this Law, which is the Minister for Transport and Infrastructure.

 

crew of a vessel means individuals employed or engaged in any capacity on board the vessel on the business of the vessel, other than the master of the vessel or a pilot.

 

Criminal Code means the Criminal Code of the Commonwealth.

 

defence vessel means a warship or other vessel that:

(a) is operated for naval or military purposes by the Australian Defence Force or the armed forces of a foreign country; and

(b) bears external marks of nationality; and

(c) is manned by seafarers under armed forces discipline (however described).

 

domestic commercial vessel has the meaning provided in clause 7.

 

foreign vessel has the same meaning as in the Navigation Act 2012 of the Commonwealth.

 

hire and drive vessel means any vessel which is let for hire or reward or for any other consideration, including vessels provided in conjunction with holiday establishments or hotels for the use of guests or tenants.

 

infringement notice means:

(a) a notice that:

(i) is given under regulations made for the purposes of clause 138 to a person alleged to have committed an offence against this Law; and

(ii) states that if the person pays a specified amount within a specified period the person will not be liable to be prosecuted for the offence; or

(b) a notice that:

(i) is given under regulations made for the purposes of sub-clause 162(3) to a person alleged to have contravened a provision described in that sub-clause; and

(ii) states that if the person pays a specified amount within a specified period the person will not be liable to proceedings for a civil penalty for the contravention.

 

marine incident means any of the following:

(a) a death of, or injury to, a person associated with the operation or navigation of a domestic commercial vessel;

(b) the loss or presumed loss of a domestic commercial vessel;

(c) a collision of a domestic commercial vessel with another vessel;

(d) a collision by a domestic commercial vessel with an object;

(e) the grounding, sinking, flooding or capsizing of a domestic commercial vessel;

(f) a fire on board a domestic commercial vessel;

(g) a loss of stability of a domestic commercial vessel that affects the safety of the vessel;

(h) the structural failure of a domestic commercial vessel;

(i) a close quarters situation;

(j) an event that results in, or could have resulted in:

(i) the death of, or injury to, a person on board a domestic commercial vessel; or

(ii) the loss of a person from a domestic commercial vessel; or

(iii) a domestic commercial vessel becoming disabled and requiring assistance;

(k) the fouling or damaging by a domestic commercial vessel of:

(i) any pipeline or submarine cable; or

(ii) any aid to navigation within the meaning of the Navigation Act 2012 of the Commonwealth;

(l) a prescribed incident involving a domestic commercial vessel.

 

marine safety inspector means:

(a) a person appointed as an inspector under clause 91; or

(b) a member of the Australian Federal Police; or

(c) a member of the police force (however described) of a State or a Territory.

 

master of a vessel means the person who has command or charge of the vessel, but does not include a pilot.

 

National Regulator has the meaning provided in clause 9.

 

National Standard for Commercial Vessels means the National Standard for Commercial Vessels adopted by:

(a) the COAG Council; or

(b) if no such entity exists—the entity prescribed by the regulations for the purposes of this paragraph.

 

operate a vessel means:

(a) determine or exercise control over the course or direction of the vessel or over the means of propulsion of the vessel, whether or not the vessel is underway; or

(b) loading or unloading the vessel when it is moored or berthed.

 

owner of a vessel includes:

(a) a person who has a legal or beneficial interest in the vessel, other than as a mortgagee; and

(b) a person with overall general control and management of the vessel.

For this purpose, a person is not taken to have overall general control and management of a vessel merely because he or she is the master or pilot of the vessel.

 

premises includes the following:

(a) a structure, building, vehicle, vessel or aircraft;

(b) a place (whether or not enclosed or built on);

(c) a part of a thing referred to in paragraph (a) or (b).

regulated Australian vessel has the same meaning as in the Navigation Act 2012 of the Commonwealth.

 

this Law includes the regulations and any other legislative instrument made under this Law.

 

Uniform Shipping Laws Code means the Uniform Shipping Laws Code adopted by:

(a) the COAG Council; or

(b) if no such entity exists—the entity prescribed by the regulations for the purposes of this paragraph.

 

unsafe vessel means a vessel that is likely to endanger any person for any reason, including because of:

(a) the condition or equipment of the vessel; or

(b) the manner or place in which cargo or equipment on the vessel is stowed or secured; or

(c) the nature of the cargo; or

(d) the overloading of the vessel with people or cargo (including the submergence of the vessel’s load line); or

(e) the number of its crew or the qualifications of its crew or master.

 

Vessel has the meaning provided in clause 8.

 

Clause 7 - D efinition of domestic commercial vessel

 

This clause sets out the definition for the term “domestic commercial vessel” in this Bill and relies on the definition of ‘vessel’ in clause 8. This definition determines the meaning that is to be attributed to this term whenever it is used in the Bill and in any regulations, Marine Orders and exemptions made under the Bill.

 

Sub-clause 1 provides the definition of a domestic commercial vessel.

 

Sub-clause 2 clarifies that a vessel used only partly for commercial, government or research activity may still be considered to be a domestic commercial vessel, depending on the circumstances of its use. An example of this is a vessel used for hire and drive purposes where the hirer is undertaking recreational activities. The definition of a ‘hire and drive vessel’ is provided in clause 6.

 

Sub-clause 3 provides a definition of vessels that are not considered to be domestic commercial vessels. The definition of ‘domestic commercial vessel’ specifically excludes a vessel that:

 

(a)     is regulated under the proposed Navigation Act 2012 ;

(b)    is registered under the law of a foreign country;

(c)     is operated by the Australian Defence Force or the armed forces of a foreign country; and

(d)    is owned by a primary or secondary school or a community group described in the regulations under this Bill.

 

The aim of the definition is to capture any commercial activity, but not recreational activity. In addition, it is not intended to capture school or community group vessels where these are owned by the school or the group.

 

The regulations will provide a test to determine a community group. This test will include the Australian Tax Office ‘non-profit’ definition to determine whether the group was intended to be profitable and a requirement that the organisation be incorporated, or similar.

 

Sub-clause 4 clarifies that vessels that belong to primary or secondary schools and community groups may be a domestic commercial vessel if they are used for a purpose or activity described in the regulations under this Bill. This is intended to include situations where such recreational vessels are also partly used for commercial purposes, for example, vessels operated by volunteer search and/or rescue organisations, vessels used as a hire and drive or charter vessel by members of the public, vessels used in non-curricular or non-community group activities and vessels operated by dive clubs. The definition of a ‘hire and drive vessel’ is provided in clause 6.

 

Sub-clause 5 provides that, in addition to the above definitions, the regulations under this Bill may also specify whether particular vessels or types of vessels are domestic commercial vessels or not. The intention is that the designation of what is and is not a domestic commercial vessel would be refined through regulations under this Bill, but the intended scope is set out in this clause. While the power to prescribe additional things as a domestic commercial vessel in the regulations under the Bill is a significant power, any addition to this definition will be by unanimous agreement by all SCOTI Ministers.

 

Sub-clause 6 provides that the regulations under this Bill may refer to a decision of the National Regulator on whether a vessel is a vessel belonging to a community group.

 

Sub-clause 7 provides that a vessel under construction can be a domestic commercial vessel if its intended use after construction meets the definition at Sub-clause 1.

 

Sub-clause 8 clarifies that a vessel under construction includes a vessel that has been launched, but not yet completed and delivered under the relevant building contract.

 

Clause 8 - Definition of vessel

 

This clause sets out the definition for the term “vessel” in this Bill. This definition determines the meaning that is to be attributed to this term and the definition of ‘domestic commercial vessel’ whenever it is used in the Bill and any regulations, Marine Orders and exemptions made under the Bill.

 

The Bill defines “vessel” as a craft for use in navigation by water, however propelled or moved, including air cushion vehicles, barges, lighters, submersibles, ‘wing-in-ground effect’ craft and ferries in chains. A ‘wing-in-ground effect’ craft has a commonly understood meaning within the industry both domestically and internationally. Additionally, the Bill makes it clear that an aircraft is not a ‘vessel’.

It is intended that regulations made under the Bill will specifically include and exclude some marine structures as vessels. An example of this is a moored structure used for tourism activities, such as those used in the Great Barrier Reef Marine Park. These structures are intended to be included as a ‘vessel’. However, pens used for aquaculture will be specifically excluded.

 

Sub-clause 1 provides the definition of vessel.

 

Sub-clause 2 provides a definition of particular things that are not a vessel.

 

Sub-clause 3 provides that the regulations under this Bill may also specify whether or not a particular thing is a vessel.

 

Part 2 - The National Marine Safety Regulator

 

This part of the Bill establishes the role of the National Regulator. It explains the key functions of the National Regulator and permits the National Regulator to delegate powers and functions under the National Law.

 

The National Regulator is responsible for the development and implementation of domestic commercial vessel construction, operation and crew qualification standards nationally. It is the implementation of national standards agreed by Transport Ministers that is central to the new National System for marine safety in Australia.

 

A key feature of the National System is that the delivery of regulatory services will be undertaken, under delegation, by jurisdictional staff under the authority of this Bill. This arrangement is outlined in more detail in the COAG IGA.

 

Clause 9 - The National Marine Safety Regulator

 

This clause formally establishes the role of the National Marine Safety Regulator (the National Regulator) and appoints AMSA to that role. AMSA is established by the Australian Maritime Safety Authority Act 1990 of the Commonwealth. Section 10 of that Act sets out the general powers of the Authority.

 

Clause 10 - Functions of the National Regulator

 

This clause sets out the specific functions of the National Regulator, which include:

 

  • developing and maintaining Marine Orders, national standards, guidelines and codes of practice;
  • issuing unique identifiers and certificates;
  • accrediting people for specific roles and functions;
  • consulting with appropriate authorities in State and Territory jurisdictions;
  • collecting, analysing and distributing information and data;
  • providing advice to the Commonwealth Minister, the States and Territories and the public;
  • undertaking investigative, monitoring and enforcement activities;
  • developing or commissioning education programs and functions; and
  • undertaking such other functions as provided in this Bill or conferred by any other law.

Clause 11 - Delegation

 

The National Law allows the National Regulator to delegate certain powers and functions to an employee of a Commonwealth, State or Territory agency, with the consent of the relevant State and Territory. In practice, powers are intended to be delegated to the head of each marine safety agency in the States and Territories, who would then sub-delegate them to appropriate officers in their jurisdiction. This is a key and intended feature of the National System agreed by COAG and reflected in Schedule B to the IGA.

 

The delegation of functions, such as the assessment of applications, issuing of certificates and conduct of compliance monitoring and enforcement activities, to employees of State and Territory marine safety agencies is fundamental to the service model for the day-to-day operation of the National System. It is the employees of the State and Territory marine safety agencies who will deliver front-line services to the public, as well as undertake the investigatory and compliance roles in each jurisdiction, on behalf of the National Regulator.

 

When a delegate of the National Regulator performs a delegated function or exercises a delegated power, the activity is deemed to be the activity of the National Regulator. This is consistent with section 34AB(c) of the Acts Interpretation Act 1901 .

 

Delegated agency employees will be subject to any directions of the National Regulator in exercising National Law powers and functions. This is to ensure national consistency and accountability is maintained in the delivery of the National System. The arrangement under which the National System operates is collegiate in nature, involving the co-operation of all jurisdictions. Aside from being used in relation to delegations, it is expected that the power of the National Regulator to issue directions would be a reserve power used in circumstances such as, for example, where a jurisdiction departs from the processes and procedures that have been agreed by all other States and Territories.

 

The National Regulator will not be able to delegate a power or function to an employee of an agency of a State or Territory without the consent of the State or Territory.

 

The delegation of the National Regulator’s powers and functions under the National Law will be implemented through an ‘instrument of delegation’ signed by the Chief Executive Officer (CEO) of AMSA. This will allow powers and functions to be delegated to any person from time to time holding, occupying, or performing the duties of a specified office or position (for example, to the position of CEO of a State agency). The occupant of that position may in turn sub-delegate to a specified position (for example, the Chief Surveyor of the agency). This approach to delegation and sub-delegation is consistent with section 34AA of the Acts Interpretation Act 1901 .



 

The instrument of delegation will:

 

·          Identify the delegates. It is envisaged that the instrument will specify the position of the CEO-equivalents in each marine safety agency, rather than name them personally. That way, any person from time to time holding, occupying, or performing the duties of the CEO-equivalent position will automatically have the delegated powers and functions.

 

·          Identify the powers and functions of the National Regulator that are delegated. It is envisaged that these will include the power to:

 

  • assess applications for and issue of Certificates of Survey, competence and operations;
  • vary, suspend and revoke those certificates;
  • appoint marine safety inspectors; and
  • accredit persons.

 

·          Provide the power to sub-delegate a National Regulator power or function to another officer or employee of the agency of which the delegate is an officer or employee. For example, the CEO equivalent will have discretion to decide the number and level of positions within their own agency, the occupants of which will have power to issue National Law certificates. As another example, the CEO equivalent will have the discretion not to sub-delegate the power to appoint marine safety inspectors, or limit the sub-delegation to a small number of very senior positions in the agency.

 

·          Provide directions (i.e. conditions) that are imposed on the delegates, both generally as well as specifically to a power or function, which are required to be satisfied by the delegate when exercising the National Regulator’s powers or functions. These directions will also include the direction that any sub-delegation must be made in accordance with the directions of the instrument of delegation and in a standard form.

 

The directions imposed on the delegations will support accountability and promote appropriate standards and consistency across the National System. It is envisaged that these will include requirements to:

 

·         Send copies of signed instruments of sub-delegation to the National Regulator. In order to comply with its accountability obligations, the National Regulator will need to know what positions in each agency have been given the National Regulator’s powers and functions.

 

·         Use a ‘standard form’ instrument of sub-delegation, appointment of marine safety inspectors and accreditation of persons. Standard forms will be included in the instrument of delegation and will help to promote consistency.



 

·         Set minimum qualifications, training and experience requirements for sub-delegates, inspectors and accredited persons tailored to the particular power and function. For example, the minimum qualifications for a delegate with power to issue Certificates of Competency are likely to be different from those of an inspector. Setting minimum requirements will promote appropriate standards and consistency across the National System.

 

·         Assist the National Regulator to comply with its own accountability obligations. For example, because decisions of delegates are deemed to be decisions of the National Regulator, the National Regulator will be required to respond to applications for external review of the delegate’s decision. It will be able to do that only if the delegate assists by, for example, providing records relevant to the decision.

 

Training packages will also be developed to ensure that delegates undertake their duties to an acceptable standard when exercising powers and undertaking functions of the National Regulator. This will include a National Marine Safety Regulator’s Delegate’s Handbook, a National Marine Safety Regulator’s Compliance and Enforcement Manual and a range of training materials.

 

Sub-clause 1 allows the National Regulator to delegate powers and functions under this Bill to an officer or employee of a Commonwealth or State and Territory agency.

This provision is fundamental to the day-to-day operation of the National System, which involves certain functions being performed by employees of the State and Territory marine safety agencies as delegates of the National Regulator. The delegation must be provided in writing.

 

Sub-clause 2 provides the National Regulator with the ability to direct a delegate in the performance of their functions and the exercise of their powers.

 

Sub-clause 3 provides the delegate with the ability to sub-delegate powers and functions to another officer or employee of the same Commonwealth or State and Territory agency. The sub-delegation must be provided in writing.

 

Sub-clause 4 provides the delegate with the ability to direct a sub-delegate in the performance of their functions and the exercise of their powers.

 

Sub-clause 5 provides that any direction by the National Regulator to a delegate must also be provided by the delegate to the sub-delegate.

 

Sub-clause 6 provides that sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 apply equally to both a delegation and sub-delegation.

 

Sub-clause 7 requires the National Regulator to seek the agreement of the relevant State or Territory before delegating a power or function to an officer or employee of an agency in that jurisdiction.

 

 



Part 3 - General Safety Duties Relating to Domestic Commercial Vessels

 

This part of the Bill outlines the General Safety Obligations (GSOs) relating to domestic commercial vessels. The GSOs require that each person that is engaged with a domestic commercial vessel and its operations does all that is reasonably practical to ensure that reasonable care is taken for the safety of the vessel and people on board, as well as the safe design and operation of the vessel.

 

The GSOs are imposed on:

 

  • owners of domestic commercial vessels;
  • a person who designs, commissions, constructs, manufactures, supplies, maintains, repairs or modifies domestic commercial vessels;
  • masters of domestic commercial vessels, or marine safety equipment that relates to such a vessel;
  • crew of domestic commercial vessels;
  • passengers on domestic commercial vessels; and
  • certain other people.

 

The GSOs are an important feature of the National Law that will apply to all domestic commercial vessel operations. The purpose of the GSOs is to encourage the development, maintenance and continuous improvement of a safety culture by all parties in the domestic commercial vessel industry. This will assist in minimising the risk of incidents involving death, injury or damage.

 

The Bill contains a set of GSOs and corresponding offences that will apply from the commencement of the National Law until all States give effect to, as a State law, the provisions contained in Part 2 of the Work Health and Safety Act 2011 (WHS Act).   Once all States and Territories have given effect to those provisions, the GSOs and corresponding offences provided for in the Marine Safety (Domestic Commercial Vessel) National Law (Consequential Amendments) Bill 2012: alignment with work health and safety offences, will apply. The objective of this arrangement is to align the National Law GSOs and offences with the WHS duties and offences, once the WHS law has been implemented nationally.

 

This part of the Bill also provides direction on determining what is ‘reasonably practical’ to ensure safety.

 

 

 



GSO PROVISIONS BEFORE ALL STATES GIVE EFFECT TO WHS ACT

 

Division 1 - Duties of owners

 

Clause 12 - Duty of owners of domestic commercial vessels to ensure safety of vessels, marine safety equipment and operations

This clause requires the owner of a domestic commercial vessel to ensure the safety of the vessel, including its equipment and operation. The conditions under which an owner will breach this requirement are also provided. Importantly, this clause provides that the owner of a domestic commercial vessel commits an offence if they prevent or restrain the master of the vessel from ensuring the safety of the vessel or people on the vessel.

 

Clause 13 - Offences relating to contraventions of section 12

 

Sub-clauses 1, 2 and 3 provide that the owner of a domestic commercial vessel is guilty of an offence if the owner’s action or inaction breaches sub-clause 12(1) and was intentional, reckless or negligent. A penalty provision is applied according to the Criminal Code. The level of the penalty depends on whether the action or inaction of the owner was intentional, reckless or negligent.

 

Sub-clause 4 provides that the owner is also guilty of an offence if the owner’s action or inaction breaches sub-clause 12(1) but is not proven to be intentional, reckless or negligent. A penalty provision is applied according to the Criminal Code.

 

Sub-clause 5 clarifies that an offence against sub-clause 4 is a strict liability offence.

 

Division 2 - Duties of designers, builders, suppliers etc.

 

Clause 14 - Duty relating to design, manufacture etc. of domestic commercial vessels

 

This clause requires designers and manufacturers etc. of domestic commercial vessels to:

 

  • ensure the vessel and its equipment are safe for their intended use through testing and examination; and
  • provide adequate information about the safety and use of the vessel.

 

Clause 15 - Offences relating to contraventions of section 14

 

Sub-clauses 1, 2 and 3 provide that the designer and manufacturer etc. of a domestic commercial vessel is guilty of an offence if their action or inaction breaches clause 14 and was intentional, reckless or negligent. A penalty provision is applied according to the Criminal Code. The level of the penalty depends on whether the action or inaction of the owner was intentional, reckless or negligent.

 

 

Sub-clause 4 provides that the designer and manufacturer etc. is also guilty of an offence if their action or inaction breaches clause 14 but is not proven to be intentional, reckless or negligent. A penalty provision is applied according to the Criminal Code.

 

Sub-clause 5 clarifies that an offence against Sub-clause 4 is a strict liability offence.

 

Division 3 - Duties of Masters

 

Clause 16 - Duty of masters of domestic commercial vessels to ensure safety of vessels, marine safety equipment and operations

 

This clause requires the master of a domestic commercial vessel to ensure the safety of the vessel, its equipment and operation. The exception to this requirement applies to the master of a hire and drive vessel used for recreational purposes. This operation is viewed as directly comparable to a recreational activity and is not intended to be captured under this obligation. The definition of a ‘hire and drive vessel’ is provided in clause 6.

 

Clause 17 - Duty of masters of domestic commercial vessels to take reasonable care for safety of persons

 

This clause requires the master of a domestic commercial vessel to ensure the safety of people affected by their action or inaction, as well as themselves. The exception to this requirement applies to the master of a hire and drive vessel used for recreational purposes. This operation is viewed as directly comparable to a recreational activity and is not intended to be captured under this obligation. The definition of a ‘hire and drive vessel’ is provided in clause 6.

 

Clause 18 - Offences relating to contraventions of section 16 or 17

 

Sub-clauses 1, 2 and 3 provide that the master of a domestic commercial vessel is guilty of an offence if the master’s action or inaction breaches sub-clauses 16(1), 17(1) or 17(2) and was intentional, reckless or negligent. A penalty provision is applied according to the Criminal Code. The level of the penalty depends on whether the action or inaction of the owner was intentional, reckless or negligent.

 

Sub-clause 4 provides that the master is also guilty of an offence if the master’s action or inaction breaches sub-clauses 16(1), 17(1) or 17(2) but is not proven to be intentional, reckless or negligent. A penalty provision is applied according to the Criminal Code.

 

Sub-clause 5 clarifies that an offence against sub-clause 4 is a strict liability offence.



 

GSO PROVISIONS AFTER ALL STATES GIVE EFFECT TO WHS ACT

 

Once States have given effect to the Model Work Health and Safety legislation, the general safety obligations (GSOs) and corresponding offences will be amended to align with the duties and corresponding offences in the WHS Act. This consequential amendment has been provided for in Schedule 2 of the Marine Safety (Domestic Commercial Vessel) National Law (Consequential Amendments) Bill 2012. The explanatory memorandum for this consequential amendments Bill provides further detail as to the operation of these provisions.

 

Division 4 - Duties of crew

 

Clause 19 - Duty of crew of domestic commercial vessels to take reasonable care for safety of persons, etc.

 

This clause requires a crew member of a domestic commercial vessel to:

 

  • take reasonable care for their own safety and that of other people;
  • comply with all reasonable and lawful directions from the master or supervisor;
  • not interfere with or misuse safety features of the vessel; and
  • not place other people at risk from undertaking their duties.

The conditions under which a crew member will breach these requirements are also provided.

 

Clause 20 - Offences relating to contraventions of section 19

 

Sub-clauses 1, 2 and 3 provide that the crew member of a domestic commercial vessel is guilty of an offence if the crew member’s action or inaction breaches sub-clauses 19(1), 19(2) or 19(3) and was intentional, reckless or negligent. A penalty provision is applied according to the Criminal Code. The level of the penalty depends on whether the action or inaction of the owner was intentional, reckless or negligent.

 

Sub-clause 4 provides that the crew member is also guilty of an offence if the crew member’s action or inaction breaches sub-clauses 19(1), 19(2) or 19(3) but is not proven to be intentional, reckless or negligent. A penalty provision is applied according to the Criminal Code.

 

Sub-clause 5 clarifies that an offence against sub-clause 4 is a strict liability offence.



 

Division 5 - Duties of passengers

 

Clause 21 - Duty of passengers on domestic commercial vessels to take reasonable care for safety of persons, etc.

 

This clause requires a passenger on board a domestic commercial vessel to

 

  • take reasonable care for their own safety;
  • comply with all reasonable and lawful directions from the master or crew member;
  • not interfere with or misuse safety features of the vessel; and
  • not unreasonably place other people at risk.

 

The conditions under which a passenger will breach these requirements are also provided.

 

Clause 22 - Offences relating to contraventions of section 21

 

Sub-clauses 1, 2 and 3 provide that a passenger on board a domestic commercial vessel is guilty of an offence if the passenger’s action or inaction breaches sub-clauses 21(1), 21(2) or 21(3) and was intentional, reckless or negligent. A penalty provision is applied according to the Criminal Code. The level of the penalty depends on whether the action or inaction of the owner was intentional, reckless or negligent.

   

Sub-clause 4 provides that the passenger is also guilty of an offence if the passenger’s action or inaction breaches sub-clauses 21(1), 21(2) or 21(3) but is not proven to be intentional, reckless or negligent. A penalty provision is applied according to the Criminal Code.

 

Sub-clause 5 clarifies that an offence against sub-clause 4 is a strict liability offence.

 

Division 6 - Other duties

 

Clause 23 - Duty of persons relating to safety of persons on domestic commercial vessels, etc.

 

Sub-clause 1 requires a person embarking, disembarking or on board a domestic commercial vessel to take reasonable care for their own safety.

 

Sub-clause 2 provides the conditions under which a person will breach the requirements of Sub-clause 1.

 

Sub-clause 3 requires a person to take reasonable care to ensure their actions or inactions do not adversely affect the safety of other people on board a domestic commercial vessel or engaged in action connected with such vessels.

 

Sub-clause 4 provides the conditions under which a person will breach the requirements of sub-clause 3.

 

 

Clause 24 - Offences relating to contraventions of section 23

 

Sub-clauses 1, 2 and 3 provide that a person is guilty of an offence if their action or inaction breaches sub-clauses 23(1) or 23(3) and was intentional, reckless or negligent. A penalty provision is applied according to the Criminal Code. The level of the penalty depends on whether the action or inaction of the owner was intentional, reckless or negligent.

 

Sub-clause 4 provides that the person is also guilty of an offence if the person’s action or inaction breaches sub-clauses 23(1) or 23(3) but is not proven to be intentional, reckless or negligent. A penalty provision is applied according to the Criminal Code.

 

Sub-clause 5 clarifies that an offence against sub-clause 4 is a strict liability offence.

 

Clause 25 - Duty of persons in relation to domestic commercial vessels

 

This clause requires a person to:

 

  • not unreasonably cause, either by action or inaction, the loss, destruction or serious damage of a domestic commercial vessel; and
  • take reasonable action to prevent the loss, destruction or serious damage of a domestic commercial vessel.

 

The conditions under which a person will breach these requirements are also provided.

 

Clause 26 - Offences relating to contraventions of section 25

 

Sub-clauses 1, 2 and 3 provide that a person is guilty of an offence if their action or inaction breaches sub-clauses 25(1) or 25(2) and was intentional, reckless or negligent. A penalty provision is applied according to the Criminal Code. The level of the penalty depends on whether the action or inaction of the owner was intentional, reckless or negligent.

 

Sub-clause 4 provides that the person is also guilty of an offence if the person’s action or inaction breaches sub-clauses 25(1) or 25(2) but is not proven to be intentional, reckless or negligent. A penalty provision is applied according to the Criminal Code.

 

Sub-clause 5 clarifies that an offence against sub-clause 4 is a strict liability offence.

 

Division 7 - General Provisions

 

Clause 27 - Determining what is reasonably practical to ensure safety

 

This clause provides direction on determining what is ‘reasonably practicable’ to ensure safety.

 

 

 

 

Clause 28 - Functions and powers of marine safety inspectors not affected

 

This clause is included as there may be circumstances where, for example, a marine safety inspector takes control of the vessel from the master.

 

Clause 29 - Requirements imposed by this Part do not limit one another

 

This clause clarifies that a requirement under this part does not limit any other requirement under this part.  For example, clauses 23 and 25 may relate to passengers as well as masters and the crew of a domestic commercial vessel.

 

Part 4 - Vessel Identifiers and Certificates for Vessels and Seafarers

 

This part of the Bill sets out the rules and requirements governing the Vessel Identification, Certificates of Competency, and Certificates of Survey and Operation of domestic commercial vessels that will be issued by the National Regulator:

 

  • Vessel Identification - provides the unique identification of a vessel that stays with the vessel over its life, even if it changes ownership or use.

 

  • Certificate of Survey - provides evidence that the vessel has been surveyed (initially and/or periodically where required) against specified standards in the subordinate legislation. It will also outline the survey schedules for the vessel. In general, only larger vessels (those longer than 7.5 metres), those operating beyond sheltered waters or those engaged in passenger transport or other high risk operations, will require survey.

 

  • Certificate of Operation - provides permission to operate the vessel and identifies any conditions attached to that permission. Importantly, the Certificate will identify areas of potential risk and what steps the master will take to minimise crew or passenger exposure to that risk. A certificate may be issued for the operation of single or multiple vessels , and will identify the vessel’s or vessels’ operating class(es) and operational area(s), any restrictions on the vessel’s geographic area of operation, as well as crewing requirements.

 

  • Certificates of Competency - provides evidence that a seafarer has met the requirements for their specified grade and permits them to serve on a vessel as a master, officer or crew member with deck and/or engineering responsibilities.

 

The National Law requires all vessels to have Vessel Identification. Uniquely identifying each vessel will allow the National Regulator to monitor vessels and review the history of their ownership and operation over time. It will also provide the basis of identifying ownership for compliance and enforcement purposes or to find the owner if a vessel is found adrift.

 

 

 

 

During the transition period following implementation of the National System (i.e. from 2013 to 2016), it is intended that existing State and Territory vessel identification schemes will be recognised as ‘Vessel Identification’, provided they are unique and are displayed on the vessel in accordance with the National Law. Official Numbers issued under the Shipping Registration Act 1981 will also be recognised in this manner, but registration requirements under that legislation are separate to the National Law. Transport Ministers will consider a national scheme during the transition period.

 

The practical details of applying for a certificate, including approved application forms and the information and documentation required to accompany an application, are outlined in this part. Additional details may also be contained in subordinate legislation under the Bill.

 

The National Law also leaves the States and the Northern Territory free to levy their own fee for issuing the Vessel Identification, Certificate of Operation, Certificate of Survey and Certificates of Competency on behalf of the National Regulator. 

 

Division 1 - Unique identifiers

Clause 30 - Person may apply for unique identifier

 

Sub-clause 1 permits a person to submit an application to the National Regulator for the issue of a unique identifier for a domestic commercial vessel.

 

Sub-clause 2 requires an application under sub-clause 1 to meet the requirements in the regulations under this Bill, including payment of any required fee and provision of any required documentation. It is noted that the regulations could require an application to be made in conjunction with an application for a certificate.

 

Clause 31 - Issue of unique identifier

 

Sub-clause 1 requires the National Regulator to issue a unique identifier for a domestic commercial vessel if certain conditions are met.

 

Sub-clause 2 requires the regulations under this Bill to provide criteria that must be met for the identification of a domestic commercial vessel.

 

Sub-clause 3 explains how the date of effect for a unique identifier is determined.

 

Clause 32 - Offence—operating etc. a vessel without a unique identifier (owner)

 

Sub-clause 1 provides that the owner of a domestic commercial vessel is guilty of an offence if the vessel is required to have a unique identifier, but the owner fails to meet this requirement and is not exempt from this requirement (see clause 143). A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.

 

Clause 33 - Offence—operating etc. a vessel without a unique identifier (master)

 

Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an offence if the vessel is required to have a unique identifier, but the master fails to meet this requirement and is not exempt from this requirement (see clause 143). A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 provides that sub-clause 1 does not apply if the master and vessel meet certain recreational use requirements.

 

Sub-clause 3 clarifies that an offence under sub-clause 1 is a strict liability offence.

Clause 34 - Offence—display etc. of a unique identifier (owner)

 

Sub-clause 1 provides that the owner of a domestic commercial vessel is guilty of an offence if the vessel is required to have a unique identifier and the owner fails to meet the requirements for displaying a unique identifier on the vessel, as provided in the regulations under this Bill. A penalty provision is applied according to the Criminal Code .

 

The content of the offence is required to be located in the regulations as the concept of a unique identifier is new to commercial vessel regulation in Australia. Currently, there is significant variation between jurisdictions regarding vessel identification and how the identification of a vessel is displayed. A set of criteria in the regulations under this Bill needs to be developed in consultation with the jurisdictions to accommodate these variations for existing vessels and establish standards required for future vessels. Only after these regulations are developed and communicated to stakeholders will an offence for not displaying a unique identifier be established.

 

Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.

Clause 35 - Offence—display etc. of unique identifier (master)

 

Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an offence if the vessel is required to have a unique identifier and the master fails to meet the requirements for displaying a unique identifier on the vessel, as provided in the regulations under this Bill. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 provides that sub-clause 1 does not apply if the master and vessel meet certain hire and drive vessel requirements. This is relevant to the hire and drive scenario where the recreational master who hires the vessel is not in a position to know if a unique identifier is in force. The definition of a ‘hire and drive vessel’ is provided in clause 6.

 

Sub-clause 3 clarifies that an offence under sub-clause 1 is a strict liability offence.

 

 

Clause 36 - Offence—removal or alteration of a unique identifier

 

Sub-clause 1 provides that a person is guilty of an offence if they are required to have and display a unique identifier, but alter or remove the unique identifier when it is not permitted by the regulations under this Bill (regulations may permit marine safety inspectors to alter or remove the identifier). This clause is intended to also apply to incidents where a person displays a false or fraudulent identifier on a vessel. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.

 

Division 2 - Certificates of survey

 

Clause 37 - Person may apply for a certificate of survey

 

Sub-clause 1 permits a person to submit an application to the National Regulator for the issue of a Certificate of Survey for a domestic commercial vessel.

 

Sub-clause 2 requires an application under sub-clause 1 to meet the requirements in the regulations under this Bill, including payment of any required fee.

Clause 38 - Issue of certificate of survey

 

Sub-clause 1 requires the National Regulator to issue a Certificate of Survey for a domestic commercial vessel if certain conditions are met.

 

Sub-clause 2 requires the regulations under this Bill to provide criteria that must be met for the survey of a domestic commercial vessel.

 

Sub-clause 3 provides that a Certificate of Survey is subject to any conditions imposed by the regulations under this Bill and by the National Regulator.

 

Sub-clause 4 provides what the conditions imposed by the regulations under this Bill and by the National Regulator may include.

 

Sub-clause 5 explains when a Certificate of Survey comes into force.

 

Sub-clause 6 clarifies that a suspended Certificate of Survey is not in force.           

Clause 39 - Person may apply for variation, suspension or revocation of a certificate of survey

 

Sub-clause 1 permits a person to submit an application to the National Regulator for the variation, suspension or revocation of a Certificate of Survey for a domestic commercial vessel.

 

Sub-clause 2 requires an application under sub-clause 1 to meet the requirements in the regulations under this Bill, including payment of any required fee.

Clause 40 - Variation of certificate of survey

 

Sub-clauses 1 and 2 require the National Regulator to vary a Certificate of Survey for a domestic commercial vessel if the National Regulator is satisfied that certain criteria are met. Clause 39 permits a person to apply for a variation of a Certificate of Survey.

 

Sub-clause 3 permits the National Regulator to vary a Certificate of Survey for a domestic commercial vessel to impose, vary or revoke a condition on the certificate.

 

Clause 41 - Suspension of certificate of survey

 

Sub-clauses 1 and 2 require the National Regulator to suspend a Certificate of Survey for a domestic commercial vessel if the National Regulator is satisfied that certain criteria for suspension are met, as provided in this Bill or in the regulations under this Bill. Clause 39 permits a person to apply for a suspension of a Certificate of Survey.

 

Sub-clause 3 explains when the suspension of a Certificate of Survey comes into force.

 

Sub-clause 4 explains that the suspension of a Certificate of Survey may remain in force until any requirement or condition is fulfilled, as specified in writing by the National Regulator. This provides the National Regulator with the flexibility to use the fulfilment of a requirement or condition, rather than a specified date or period, to end the suspension of a Certificate of Survey.

Clause 42 - Revocation of certificate of survey

 

This clause requires the National Regulator to revoke a Certificate of Survey for a domestic commercial vessel if the National Regulator is satisfied that the criteria for revocation on application are met, as provided in the regulations under this Bill. Clause 39 permits a person to apply for a revocation of a Certificate of Survey.

Clause 43 - Offence—operating etc. a vessel without a certificate of survey (owner)

 

Sub-clause 1 provides that the owner of a domestic commercial vessel is guilty of an offence if a vessel is being operated and a Certificate of Survey is required for the vessel, the vessel is not exempt from this requirement, but a Certificate of Survey is not in force. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 clarifies that an offence under Sub-clause 1 is a strict liability offence.

Clause 44 - Offence—operating etc. a vessel without a certificate of survey (master)

 

Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an offence if a vessel is being operated and a Certificate of Survey is required for the vessel, the vessel is not exempt from this requirement, but a Certificate of Survey is not in force. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 provides that sub-clause 1 does not apply if the master and vessel meet certain recreational use requirements. This is relevant to the hire and drive scenario where the recreational master who hires the vessel is not in a position to know if a survey certificate is in force. The definition of a ‘hire and drive vessel’ is provided in clause 6.

 

Sub-clause 3 clarifies that an offence under sub-clause 1 is a strict liability offence.

Clause 45 - Offence—breach of a condition of a certificate of survey (owner)

 

Sub-clause 1 provides that the owner of a domestic commercial vessel is guilty of an offence if they fail to meet any conditions of a Certificate of Survey. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.

Clause 46 - Offence—breach of a condition of a certificate of survey (master)

 

Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an offence if they fail to meet any conditions of a Certificate of Survey. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 provides that sub-clause 1 does not apply if the master and vessel meet certain hire and drive vessel requirements. This is relevant to the hire and drive scenario where the recreational master who hires the vessel is not in a position to know if a Certificate of Survey is in force. The definition of a ‘hire and drive vessel’ is provided in clause 6.

 

Sub-clause 3 clarifies that an offence under sub-clause 1 is a strict liability offence.

 

Division 3 - Certificates of operation

 

Clause 47 - Person may apply for a certificate of operation

 

Sub-clause 1 permits a person to submit an application to the National Regulator for the issue of a Certificate of Operation for one or more domestic commercial vessels.

 

Sub-clause 2 requires an application under sub-clause 1 to meet the requirements in the regulations under this Bill, including payment of any required fee.

 

Sub-clause 3 requires an application for more than one domestic commercial vessel under sub-clause 1 to separately identify each vessel.

Clause 48 - Issue of certificate of operation

 

Sub-clause 1 requires the National Regulator to issue a Certificate of Operation for one or more domestic commercial vessels if the National Regulator is satisfied that certain criteria are met.

 

Sub-clause 2 provides an exception to sub-clause 1 if the National Regulator is satisfied that the applicant is not a fit and proper person to hold the certificate. A definition of ‘fit and proper person’ is provided in clause 74.

 

Sub-clause 3 requires the regulations under this Bill to provide criteria that must be met for the safe operation of a domestic commercial vessel.

 

Sub-clause 4 provides that a Certificate of Operation is subject to any conditions imposed by the regulations under this Bill and by the National Regulator.

 

Sub-clause 5 provides what conditions may be imposed on a Certificate of Operation by the regulations under this Bill and by the National Regulator.

 

Sub-clause 6 explains when a Certificate of Operation comes into force.

 

Sub-clause 7 clarifies that a suspended Certificate of Operation is not in force.      

Clause 49 - Person may apply for variation, suspension or revocation of a certificate of operation

 

Sub-clause 1 permits a person to submit an application to the National Regulator for the variation, suspension or revocation of a Certificate of Operation.

 

Sub-clause 2 requires an application under sub-clause 1 to meet the requirements in the regulations under this Bill, including payment of any required fee.

Clause 50 - Variation of certificate of operation

 

Sub-clauses 1 and 2 require the National Regulator to vary a Certificate of Operation if the National Regulator is satisfied that the criteria for the variation are met, as provided in the regulations under this Bill, either on the initiative of the applicant or the National Regulator. Clause 49 permits a person to apply for a variation of a Certificate of Operation.

 

Sub-clause 3 permits the National Regulator to vary a Certificate of Operation to impose, vary or revoke a condition on a Certificate of Operation.

Clause 51 - Suspension of certificate of operation

 

Sub-clauses 1 and 2 require the National Regulator to suspend a Certificate of Operation if the National Regulator is satisfied that the criteria for suspension are met, as provided in the regulations under this Bill, either on the initiative of the applicant or the National Regulator. Clause 49 permits a person to apply for a suspension of a Certificate of Operation.

 

Sub-clause 3 explains when the suspension of a Certificate of Operation comes into force and the period it remains in force.



 

Sub-clause 4 explains that the suspension of a Certificate of Operation may remain in force until any requirement or condition is fulfilled, as specified in writing by the National Regulator. This provides the National Regulator with the flexibility to use the fulfilment of a requirement or condition, rather than a specified date or period, to end the suspension of a Certificate of Operation.

 

Clause 52 - Revocation of certificate of operation

 

Sub-clauses 1 and 2 require the National Regulator to revoke a Certificate of Operation if the National Regulator is satisfied that the criteria for revocation on application are met, as provided in the regulations under this Bill, either on the initiative of the applicant or the National Regulator. Clause 49 permits a person to apply for a revocation of a Certificate of Operation.

 

Sub-clause 3 permits the National Regulator to revoke a Certificate of Operation if satisfied that the applicant is not a fit and proper person to hold the certificate. A definition of ‘fit and proper person’ is provided in Clause 74.

Clause 53 - Offence—operating etc. a vessel without a certificate of operation (owner)

 

Sub-clause 1 provides that the owner of a domestic commercial vessel is guilty of an offence if a vessel is being operated, a Certificate of Operation is required for the vessel, the vessel is not exempt from this requirement, but a Certificate of Operation is not in force. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.

Clause 54 - Offence—operating etc. a vessel without a certificate of operation (master)

 

Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an offence if a vessel is being operated, a Certificate of Operation is required for the vessel, the vessel is not exempt from this requirement, but a Certificate of Operation is not in force. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 provides that sub-clause 1 does not apply if the master and vessel meet certain hire and drive vessel requirements. This is relevant to the hire and drive scenario where the recreational master who hires the vessel is not in a position to know if a Certificate of Operation is in force. The definition of a ‘hire and drive vessel’ is provided in clause 6.

 

Sub-clause 3 clarifies that an offence under sub-clause 1 is a strict liability offence.

Clause 55 - Offence—breach of a condition of a certificate of operation (owner)

 

Sub-clause 1 provides that the owner of a domestic commercial vessel is guilty of an offence if they breach a condition of a Certificate of Operation for the vessel. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 3 clarifies that an offence under sub-clause 1 is a strict liability offence.

 

Clause 56 - Offence—breach of a condition of a certificate of operation (master)

 

Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an offence if they breach a condition of a Certificate of Operation for the vessel. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 provides that sub-clause 1 does not apply if the master and vessel meet certain hire and drive vessel requirements. This is relevant to the hire and drive scenario where the recreational master who hires the vessel is not in a position to know if a Certificate of Operation is in force. The definition of a ‘hire and drive vessel’ is provided in clause 6.

 

Sub-clause 3 clarifies that an offence under sub-clause 1 is a strict liability offence.

Clause 57 - Obligation to notify National Regulator of certain matters

 

Sub-clause 1 provides that the holder of a Certificate of Operation for a domestic commercial vessel is guilty of an offence if they dispose of the vessel without notifying the National Regulator of the disposal within a period specified in the regulations under this Bill. Disposal includes where the vessel is sold, modified, sunk or scrapped. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.

 

Division 4 - Certificates of competency

Clause 58 - Regulations may provide for certificate of competency

 

This clause permits the regulations under this Bill to require a master or crew member to hold a Certificate of Competency that is of a particular kind and relevant to their duties and functions on board a domestic commercial vessel.

Clause 59 - Individual may apply for a certificate of competency

 

Sub-clause 1 permits a person to submit an application to the National Regulator for the issue of a Certificate of Competency.

 

Sub-clause 2 requires an application under sub-clause 1 to meet the requirements in the regulations under this Bill, including payment of any required fee.

Clause 60 - Issue of certificate of competency

 

Sub-clause 1 requires the National Regulator to issue a Certificate of Competency to a person if certain conditions are met.

 

Sub-clause 2 provides an exception to the requirement under sub-clause 1 if the National Regulator is satisfied that the applicant is not a fit and proper person to hold the certificate. A definition of ‘fit and proper person’ is provided in clause 74.

Sub-clause 3 requires the regulations under this Bill to provide proficiencies and other requirements that must be met for a particular Certificate of Competency to be issued.

 

Sub-clause 4 provides that a Certificate of Competency is subject to any conditions imposed by the regulations under this Bill and by the National Regulator.

 

Sub-clause 5 provides what may be included as conditions imposed on a Certificate of Competency by the regulations under this Bill and by the National Regulator.

 

Sub-clause 6 explains when a Certificate of Competency comes into force.

 

Sub-clause 7 clarifies that a suspended Certificate of Competency is not in force.  

Clause 61 - Person may apply for variation, suspension or revocation of a certificate of competency

 

Sub-clause 1 permits a person to submit an application to the National Regulator for the variation, suspension or revocation of a Certificate of Competency held by the person.

 

Sub-clause 2 requires an application under sub-clause 1 to meet the requirements in the regulations under this Bill, including payment of any required fee.

Clause 62 - Variation of certificate of competency

 

Sub-clauses 1 and 2 require the National Regulator to vary a Certificate of Competency if the National Regulator is satisfied that the criteria for variation are met, as provided in the regulations under this Bill, either on the initiative of the applicant or the National Regulator. Clause 61 permits a person to apply for a variation of a Certificate of Competency.

 

Sub-clause 3 permits the National Regulator to vary a Certificate of Competency to impose, vary or revoke a condition on a Certificate of Operation.

Clause 63 - Suspension of certificate of competency

 

Sub-clauses 1 and 2 require the National Regulator to suspend a Certificate of Competency if the National Regulator is satisfied that the criteria for suspension are met, as provided in the regulations under this Bill, either on the initiative of the applicant or the National Regulator. Clause 61 permits a person to apply for a suspension of a Certificate of Competency.

 

Sub-clause 3 explains when the suspension of a Certificate of Competency comes into force and the period it remains in force.



 

Sub-clause 4 explains that the suspension of a Certificate of Competency may remain in force until any requirement or condition is fulfilled, as specified in writing by the National Regulator. This provides the National Regulator with the flexibility to use the fulfilment of a requirement or condition, rather than a specified date or period, to end the suspension of a Certificate of Competency.

Clause 64 - Revocation of certificate of competency

 

Sub-clauses 1 and 2 require the National Regulator to revoke a Certificate of Competency if the National Regulator is satisfied that the criteria for revocation are met, as provided in the regulations under this Bill, either on the initiative of the applicant or the National Regulator. Clause 61 permits a person to apply for a revocation of a Certificate of Competency.

 

Sub-clause 3 permits the National Regulator to revoke a Certificate of Competency if satisfied that the certificate holder is not a fit and proper person to hold the certificate. A definition of ‘fit and proper person’ is provided in clause 74.

 

The regulations will reference qualification and competency requirements necessary to perform various duties and functions in accordance with Part D of the NSCV. This standard is being developed in consultation with the jurisdictions to accommodate variations between the jurisdictions and establish suitable future standards to ensure the required safety outcomes are met. Once developed and communicated to stakeholders, this standard and any subsequent amendments will be readily available and known, providing certainty of the content of the offence.

Clause 65 - Offence—owner causing etc. performance of duties or functions without a certificate of competency

 

Sub-clause 1 provides that the owner of a domestic commercial vessel is guilty of an offence if the owner causes or permits a person to perform duties or functions on the vessel when that person is required to hold a Certificate of Competency, is not exempt from holding a certificate of competency, but does not hold a Certificate of Competency. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.

 

The regulations will reference qualification and competency requirements necessary to perform various duties and functions in accordance with Part D of the NSCV. This standard is being developed in consultation with the jurisdictions to accommodate variations between the jurisdictions and establish suitable future standards to ensure the required safety outcomes are met. Once developed and communicated to stakeholders, this standard and any subsequent amendments will be readily available and known, providing certainty of the content of the offence.



 

Clause 66 - Offence—person performing duties or functions without a certificate of competency

 

Sub-clause 1 provides that a person performing duties or functions on a domestic commercial vessel is guilty of an offence if they are required to hold a Certificate of Competency, they are not exempt from this requirement, but they do not hold a Certificate of Competency. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.

 

The regulations will reference qualification and competency requirements necessary to perform various duties and functions in accordance with Part D of the NSCV. This standard is being developed in consultation with the jurisdictions to accommodate variations between the jurisdictions and establish suitable future standards to ensure the required safety outcomes are met. Once developed and communicated to stakeholders, this standard and any subsequent amendments will be readily available and known, providing certainty of the content of the offence.

Clause 67 - Offence—master causing etc. performance of duties or functions without a certificate of competency

 

Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an offence if the master causes or permits a person to perform duties or functions on the vessel, the person is required to hold a Certificate of Competency and the person is not exempt from this requirement, but the person does not hold a Certificate of Competency. A penalty provision is applied according to the Criminal Code .

Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.

 

The regulations will reference qualification and competency requirements necessary to perform various duties and functions in accordance with Part D of the NSCV. This standard is being developed in consultation with the jurisdictions to accommodate variations between the jurisdictions and establish suitable future standards to ensure the required safety outcomes are met. Once developed and communicated to stakeholders, this standard and any subsequent amendments will be readily available and known, providing certainty of the content of the offence.

 

Clause 68 - Offence—owner causing etc. breach of a condition of a certificate of competency

 

Sub-clause 1 provides that the owner of a domestic commercial vessel is guilty of an offence if they cause or permit a person to perform duties or functions on the vessel in breach of a condition of the Certificate of Competency held by that person. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.

Clause 69 - Offence—breach of a condition of a certificate of competency by any person

 

Sub-clause 1 provides that a person is guilty of an offence if they perform duties or functions on a domestic commercial vessel in breach of a condition of a Certificate of Competency held by that person. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.

Clause 70 - Offence—master causing etc. breach of a condition of a certificate of competency

 

Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an offence if they cause or permit a person to perform duties or functions on the vessel in breach of a condition of the Certificate of Competency held by that person. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.                       

Division 5 - General matters relating to unique identifiers and certificates

 

Clause 71 - National Regulator may require information

 

This clause permits the National Regulator to require an applicant to provide any relevant information necessary to make a decision on an application for a certificate or unique identifier. It also permits the National Regulator to decline to consider or further consider an application until that further information is provided.

 

Clause 72 - National Regulator must give a show cause notice before varying, suspending or revoking a certificate

 

This clause requires the National Regulator to provide a certificate holder with natural justice before varying, revoking or suspending that certificate. However, it also permits the National Regulator to vary, revoke or suspend that certificate without providing notice to the certificate holder if the National Regulator is acting on the application of the certificate holder.

 

Clause 73 - National Regulator may recognise certificates

 

Sub-clause 1 permits the National Regulator to recognise, in writing, a certificate or class of certificates issued for a person or vessel under a law of another jurisdiction if satisfied that certain conditions are met.

 

Sub-clause 2 provides that if a certificate is recognised by the National Regulator, it is in force for the period specified on the original certificate.

 

Sub-clauses 3 and 4 permit the National Regulator to specify conditions on the recognition of a certificate, which ceases to have effect if a condition is breached.

 

Sub-clause 5 permits the National Regulator to revoke the recognition of a certificate, as provided in the regulations under this Bill.

 

Sub-clause 6 clarifies that the written recognition under sub-clause 1 is not a legislative instrument, as defined under section 5 of the Legislative Instruments Act 2003 . This clause is merely declaratory and provided to assist readers, rather than to exempt such written recognition from the Legislative Instruments Act 2003 .

 

Clause 74 - Fit and proper person

 

This clause provides that the National Regulator may take into account various matters when assessing whether a person is a ‘fit and proper person’ for the purposes of holding or retaining a certificate. Such matters include convictions for an offence against this Bill and against laws of the Commonwealth, State or Territory which are relevant in deciding whether the person is able to satisfactorily perform their duties and functions that the granting of a certificate will authorise.

 

It also clarifies that this clause does not affect the operation of Part VIIC of the Commonwealth Crimes Act 1914 , which includes provisions that, in certain circumstances, relieve people of the requirement to disclose spent convictions and require people aware of such convictions to disregard them.

 

The National Regulator may refuse to issue or revoke a Certificate of Operation or a Certificate of Competency if the National Regulator is satisfied that the person is not ‘fit and proper’ to hold the certificate. A number of jurisdictions have specifically requested the inclusion of a ‘fit and proper person’ test.

 

The practical effect of such a provision for Certificates of Competency, for example, is that the National Regulator may refuse to issue or revoke a certificate on the basis of any unspent convictions for offences against the National Law and against State and Territory laws on marine safety.

 

If a conviction for such an offence led the National Regulator to conclude there was a potential effect on the safety of marine operation caused by the continued participation of a person in the industry, this could be addressed through either the revocation of a certificate or by issuing conditions to minimise the risk. For example, if a person was repeatedly convicted for driving a motor vehicle under the influence of alcohol, this may lead to either a refusal to issue a seafarer certificate or a restriction that the person could only operate in the company of a person holding an unrestricted certificate.

 

Such decisions are reviewable (see generally clauses 139 - 142).

 

Clause 75 - Regulations may provide for matters relating to certificates and unique identifiers

 

This clause clarifies that the regulations under this Bill may provide for matters in relation to certificates and unique identifiers.

Clause 76 - Regulations may provide for matters relating to applications for certificates and unique identifiers

 

This clause provides that the regulations under this Bill may provide for the specific matters listed in the clause in relation to certificates and unique identifiers. It also clarifies that the regulations under this Bill may include a requirement for information provided in an application for a certificate and unique identifier to be verified by statutory declaration.

 

Clause 77 - Regulations may make provision in relation to the issue, variation and revocation of certificates and unique identifiers

 

Sub-clause 1 provides that the regulations under this Bill may provide for the specific matters listed in the clause in relation to the issue, variation and revocation of certificates and unique identifiers.

 

Sub-clause 2 provides that the required criteria to be satisfied to issue, vary or revoke certificates or issue unique identifiers may include criteria relating to compliance with the required standards set out in the regulations under this Bill (see clause 159).

 

Sub-clause 3 provides that the conditions to which certificates are subject may include conditions relating to compliance with the required standards set out in the regulations under this Bill (see clause 159).

 

Clause 78 - Regulations may make provision in relation to renewal and transfer of certificates

 

This clause provides that the regulations under this Bill may provide for the renewal and transfer of certificates, as well as a requirement to provide notification of events involving domestic commercial vessels, such as change of ownership or disposal of a vessel more broadly (see clause 57).

                       

Clause 79 - Regulations may require display of certificates

 

This clause provides that the regulations under this Bill may impose a requirement to display a certificate or a unique identifier in a specified manner.

 

Clause 80 - Regulations may provide for certificate of operation for persons

 

This clause provides that the regulations under this Bill may provide for Certificates of Operation to be issued that permit the operation of domestic commercial vessels by the applicant and other people. Certificates of Operation may also be issued that permit the operation of one or more specified vessels identified by class.

 

Clause 81 - Effect of certificate of operation for persons

 

This clause clarifies that a Certificate of Operation is valid if it has been issued according to the appropriate regulations under this Bill and the holder of the certificate is acting in accordance with the requirements of the certificate.

Clause 82 - Defeasibility

 

This clause clarifies that an issued certificate can be revoked or varied under the Act or subsequent legislation. It also clarifies that no compensation is payable if the certificate is revoked or varied.

 

Clause 83 - Certificates etc. to be made available

 

This clause provides that the holder of a certificate or other document issued or required to be held under this law is guilty of an offence if they do not make the certificate or other required document available for examination when reasonably requested by the National Regulator or a marine safety inspector (as described in Part 6). A penalty provision is applied according to the Criminal Code .

 

Clause 84 - National Regulator may require delivery of revoked certificates

 

This clause permits the National Regulator to require a person to return a revoked certificate to the National Regulator, as described in the regulations under this Bill. This provision is intended to ensure accountability in certificate holdings and prevent the misrepresentation or fraudulent use of revoked certificates.

 

Part 5 - Assistance and Reporting Requirements

 

This part of the Bill imposes a general obligation on the master of a domestic commercial vessel to provide assistance to vessels or people in distress when requested. It also enables the master of a vessel in distress to requisition other vessels to obtain this assistance.

 

The National Law makes it an offence not to provide such assistance, except in circumstances where it is unreasonable or unnecessary for the master of the assisting vessel to do so. An example of such a circumstance is where providing such assistance could seriously endanger the responding vessel, its passengers and crew. The master may be required to prove this, for example with pictorial or meteorological evidence.

 

This part of the Bill also imposes a general obligation on the master of a domestic commercial vessel to record any requests for assistance in the official log book of the vessel, and for the master and owner of a domestic commercial vessel to report marine incidents to the National Regulator. A definition of ‘marine incident’ for domestic commercial vessels is provided in clause 6.

 

The National Law makes it an offence not to record requests for assistance or report marine incidents. Where an incident is likely to result in a formal investigation, there is a general obligation for people on the vessel to preserve any relevant evidence to an extent that is reasonably practical.

 

These obligations and powers are consistent with the current provisions of the SOLAS Convention.



 

Clause 85 - Obligation to render assistance

 

Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an offence if the master does not proceed as fast as practical to the assistance of people in distress and inform them that they are doing so. The requirement to provide assistance applies to vessels in any waters. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 provides that sub-clause 1 does not apply if certain conditions are met. For each of the conditions listed in this sub-clause, the master is required to provide evidence to support their claim that the condition has been met in the particular circumstances. Otherwise, they will be guilty of an offence under sub-clause 1.

Clause 86 - Obligation to render assistance if requisitioned

 

Sub-clause 1 permits the master of a vessel in distress to requisition any domestic commercial vessel that they consider best able to provide assistance, but only if the master first consults with the masters of vessels that answer their distress call. The power to requisition a vessel applies to any vessel in any waters.

 

Sub-clause 2 provides that the master of a requisitioned domestic commercial vessel is guilty of an offence if the master does not proceed as fast as practical to the assistance of people in distress. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 3 provides that sub-clause 2 does not apply if certain conditions are met. For each of the conditions listed in this sub-clause, the master is required to provide evidence to support their claim that the condition has been met in the particular circumstances. Otherwise, they will be guilty of an offence under sub-clause 2.

Clause 87 - Obligation to record requests for assistance

 

Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an offence if the master does not record the details of any assistance requested, provided or not provided in the official log book of the vessel, but only if a log book is required to be kept. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.

Clause 88 - Reporting of marine incidents to National Regulator (owner)

 

Sub-clause 1 provides that the owner of a domestic commercial vessel is guilty of an offence if the owner or the master does not provide the details of certain marine incidents to the National Regulator as soon as reasonably practical after the incident. In determining what is reasonably practical, the circumstances of the incident and the time the owner became aware of the incident are relevant considerations. A penalty provision is applied according to the Criminal Code .



 

Sub-clause 2 provides that the owner of a domestic commercial vessel is guilty of an offence if the owner or the master does not provide a written report of a marine incident to the National Regulator within 72 hours after the owner becomes aware of the incident. The written report must be in the form approved by the National Regulator. A penalty provision is applied according to the Criminal Code .

Clause 89 - Reporting of marine incidents to National Regulator (master)

 

Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an offence if the master or the owner does not provide the details of certain marine incidents to the National Regulator as soon as reasonably practical after the master becomes aware of the incident. In determining what is reasonably practical, the circumstances of the incident will be a relevant consideration. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 provides that the owner of a domestic commercial vessel is guilty of an offence if the owner or the master does not provide a written report of a marine incident to the National Regulator within 72 hours after the master becomes aware of the incident. The written report must be in the form approved by the National Regulator. A penalty provision is applied according to the Criminal Code .

Clause 90 - Evidence of marine incidents

 

Sub-clause 1 provides that a person is guilty of an offence if that person fails to preserve, as far as reasonably practical, material relevant to an investigation of a marine incident involving a domestic commercial vessel. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 provides that the owner of a domestic commercial vessel is guilty of an offence if the owner fails to preserve, as far as reasonably practical, material relevant to an investigation of a marine incident involving the vessel. A penalty provision is applied according to the Criminal Code .

 

The penalty in this provision has been set at a level that is comparable with that set for offences of this nature, for which prosecution would be frustrated if the conduct giving rise to an offence under this provision occurred. The intention is to provide no monetary advantage or incentive to a potential offender to hinder a marine safety inspector in order to prevent the inspector identifying other offences. 

 

Part 6 - Powers of Marine Safety Inspectors

 

This part of the Bill creates powers to appoint marine safety inspectors and sets out a comprehensive suite of monitoring and enforcement powers that they can exercise throughout Australia to ensure compliance with the National Law. These powers are necessary to ensure the safety of domestic commercial vessel operations and are similar to those currently held by State and Territory marine safety inspectors and compliance regimes in other industries.



 

The National Law also allows a range of people to be appointed as inspectors by the National Regulator, including members of the Federal or State and Territory police forces. However, most inspectors will be current employees of Commonwealth, State or Territory marine agencies. This will provide the most appropriate regulatory response to ensure compliance with the National Law.

 

Inspectors are provided with entry, inspection and seizure powers, including the power to enter certain premises and board vessels with, and in some case without, warrant or consent. The power of entry and search without a warrant or consent is consistent with regulatory powers provided to officers of other comparable regimes, such as appointed officers under the Fisheries Management Act 1991 and officers under the Customs Act 1901

 

These powers are an important function of the National Regulator and the compliance and enforcement framework of the National Law, as agreed in the COAG IGA. They are also consistent with the exception provisions of the Commonwealth’s criminal law policy regarding search and entry of conveyances, which recognises that obtaining a warrant prior to entry of a vessel may be impractical given the inherent mobility of a ship or may frustrate the maritime law operations because of the geographic and temporal problems associated with compliance and enforcement of maritime vessels.

 

Provisions in the proposed Navigation Act 2012 (section 256, consistent with section 190AA Navigation Act 1912 ) in relation to entry, inspection and seizure powers are also similar to the circumstances of compliance and enforcement for National Law vessels. Although it is recognised that the similarity is lessened by the comparatively close jurisdictional control and access to domestic commercial vessels, the inherent mobility of a ship and potential for this to frustrate the operation of the law nonetheless remain and therefore support the powers provided in this Bill.

 

While the powers of inspectors under the National Law are different to (and in some cases less intrusive than) those powers that similar officers are familiar with under State and Territory legislation, the provisions of this Bill are consistent with Commonwealth policy and COAG agreement, and will allow inspectors to effectively implement a compliance and enforcement regime that achieves the same regulatory outcome as provided by current jurisdiction laws.

 

Inspectors will also be given the power to seize things where consent or a warrant has been obtained.  However, inspectors will also have an appropriately restricted power to seize evidential material without a warrant, but only in serious or urgent circumstances, or where circumstances make the obtaining of a warrant impractical, in order to prevent concealment, loss or destruction of the evidential material.

This is intended to cover a small number of circumstances where it may be impractical to obtain a warrant because the domestic commercial vessel is in an area where it is not possible to get telephone reception to obtain a warrant, or the hours of the safety operation are such that a magistrate is not available. There is also a safeguard requiring the inspector to report to the National Regulator as soon as practicable on any exercise of this power, along with the reasons for which the seeking of a warrant was impractical.

 

Suitable accountability measures in the exercise of these powers will be affected by conditions contained in the instrument of appointment of a marine safety inspector.  This instrument will provide for both general directions to assist the national regulator in compliance with Commonwealth adjectival laws and specific directions in relation to the exercise of the marine safety inspectors powers.

 

An inspector may also be assisted by other people (e.g. other representatives of the National Regulator or its delegates) in exercising their powers or performing functions or duties, if that assistance is necessary and reasonable. Those assisting an inspector will be subject to the directions of the inspector and will have the same powers, functions and duties as the inspector.

 

If an inspector has reasonable grounds to believe that a person is breaching the National Law, or has breached the National Law and is likely to breach again, the inspector will be able to issue a written notice to the person (by way of a direction, prohibition or improvement notice) to address a marine safety risk.

 

The National Law makes it an offence to fail to obey the direction or requirement of an inspector, or to hinder or obstruct an inspector in exercising their powers, without a reasonable excuse.

 

This part of the Bill also outlines the rights and responsibilities of occupiers of vessels and premises and imposes obligations on marine safety inspectors in the exercise of their powers under the National Law. Procedures are also outlined for properly obtaining and executing warrants for use by inspectors in exercising monitoring and enforcement powers, as well as for the seizure and detention of things considered by inspectors to be evidential material.

 

Division 1 - Appointment of marine safety inspectors etc.

 

Clause 91 - Appointment of marine safety inspectors

                

Sub-clause 1 permits the National Regulator to appoint, in writing, officers or employees of a Commonwealth, State or Territory agency as marine safety inspectors. This is to ensure the most appropriate regulatory response to secure compliance with and enforcement of the National Law.

 

Under the COAG IGA, it has been agreed that operational functions of the National Regulator will be primarily delivered by existing State and Territory marine safety administrations, including the undertaking of investigations and compliance and enforcement activities. As such, most inspectors will be employees of State and Territory agencies.

 

A definition of ‘agency’ is provided in clause 6 of the Bill. A number of jurisdictions currently rely heavily on State water police to undertake compliance monitoring and enforcement activities on their behalf. Accordingly, members of a State police force are automatically marine safety inspectors (see the definition of marine safety inspector in clause 6).

 

Sub-clause 2 provides that an inspector may exercise all of the powers of an inspector under this Bill, or such powers as are specified in the appointment instrument for the inspector. This provision ensures that inspectors are given only the powers necessary for their particular duties.

 

Sub-clause 3 provides that the National Regulator may only appoint a person as an inspector if satisfied the person has suitable qualifications or experience to properly exercise the powers of an inspector. It is intended that, if appropriate, the National Regulator will utilise existing State and Territory marine safety inspectors that have suitable qualifications or experience.

 

Sub-clause 4 requires the National Regulator to seek the agreement of the relevant State or Territory before appointing an officer or employee of a State or Territory agency as a marine safety inspector.

 

Sub-clause 5 provides that an inspector must comply with any direction of the National Regulator when exercising his or her powers and functions. The appointment of marine safety inspector will be made by an instrument of appointment. This instrument will provide for both general directions to assist the national regulator in compliance with Commonwealth adjectival laws and specific directions in relation to the exercise of the marine safety inspectors powers.

 

Clause 92 - Identity cards

                

Sub-clause 1 provides that the National Regulator must issue identity cards to marine safety inspectors.

 

Sub-clause 2 provides that the form of the identity card is required to meet certain requirements, as provided in this sub-clause.

 

Sub-clause 3 provides that a person is guilty of an offence if they do not return their issued identity card to the National Regulator as soon as practical after ceasing to be an inspector.

 

Sub-clause 4 provides that an offence against sub-clause 3 is a strict liability offence. The strict liability nature of this offence will ensure that inspectors quickly return their identity cards to the National Regulator after they cease to be inspectors, so as to prevent the misuse of identity cards.

 

Sub-clause 5 protects inspectors by providing that the offence under sub-clause 3 does not apply if the identity card has been lost or destroyed. An inspector is required to provide evidence to support their claim that the identity card was lost or destroyed in the particular circumstances. Otherwise, they will be guilty of an offence under sub-clause 3.

 

Sub-clause 6 provides that an inspector must carry their issued identity card at all times when exercising powers and performing functions and duties as an inspector.



 

Clause 93 - False representation about being a marine safety inspector

                

This clause provides that a person is guilty of an offence if they misrepresent themselves as a marine safety inspector. A penalty provision is applied according to the Criminal Code . The strict liability nature of this offence will ensure that public confidence in inspectors is maintained.

 

Clause 94 - Obstructing or hindering a marine safety inspector

                

This clause provides that a person is guilty of an offence if they hinder or obstruct a marine safety inspector while exercising their powers. A penalty provision is applied according to the Criminal Code .

 

The penalty in this provision has been set at a level that is comparable with that set for offences of this nature, for which prosecution would be frustrated if the conduct giving rise to an offence under this provision occurred. The intention is to provide no monetary advantage or incentive to a potential offender to hinder a marine safety inspector in order to prevent the inspector identifying other offences. 

 

The obstruction or hindering of a marine safety inspector is considered a serious offence and requires a significant penalty to deter such behaviour. This approach is consistent with the Criminal Code Act 1995, where the obstruction of a Commonwealth public official provides a penalty of 2 years imprisonment.

 

Division 2 - Entry, search, seizure, detention and information-gathering powers

 

Subdivision A Powers to facilitate boarding of domestic commercial vessels with or without consent or warrant

 

Clause 95 - Requirement to facilitate boarding a domestic commercial vessel

 

Sub-clause 1 permits a marine safety inspector to require a person to take reasonable steps to facilitate the inspector’s boarding of the vessel, as provided under clause 103 or clause 97. The purpose of this provision is to enable inspectors to easily board and inspect a vessel whenever necessary to ensure its compliance with the National Law. A similar provision can be found in subsection 184A(12) of the Customs Act 1901, which has a maximum penalty of two years imprisonment for non-compliance (see also subsection 84(1) of the Fisheries Management Act 1991 ).

 

Although the requirement in this sub-clause applies broadly to any person, a test of reasonability will limit who it is that is obliged to take reasonable steps and what they have to do to take such reasonable steps.

 

Sub-clauses 2 and 3 provide that the requirement in sub-clause 1 may be met by any reasonable means and that the requirement applies whether or not the person in charge of the vessel understands or is aware of the requirement.

 

Sub-clause 4 provides that a person is guilty of an offence if they fail to comply with the requirement in sub-clause 1. A penalty provision is applied according to the Criminal Code .

Sub-clause 5 explains that sub-clause 4 does not apply if the person has a reasonable excuse. The person is required to provide evidence to support their claim that they have a reasonable excuse in the particular circumstances. Otherwise, they will be guilty of an offence under sub-clause 4.

 

Sub-clause 6 clarifies that an offence under sub-clause 4 is a strict liability offence.

 

Clause 96 - Entering certain premises for access to domestic commercial vessel

                

Sub-clause 1 permits a marine safety inspector to enter any premises (other than residential premises) to gain access to a domestic commercial vessel for the purposes outlined in sub-clause 97(1). This clause provides inspectors with reasonable entry powers for the places they will need to go to enforce the National Law, such as commercial premises, but does not provide an automatic right of entry to personal residences (see also clause 103). It should also be noted that the definition of premises under this Bill includes a building, vessel, vehicle or aircraft (see clause 6).

 

Sub-clause 2 clarifies that sub-clause 1 does not permit an inspector to enter premises unless the inspector has shown their identity card, or police identification if the inspector is a uniformed police officer, if required by the occupier.

 

Sub-clauses 3 and 4 provide that an inspector is not required to comply with sub-clause 2 if the inspector has reasonable grounds for suspecting that doing so would endanger a person. In such cases, an inspector is required to show their identity card to the occupier if present, or any other person if the occupier is not present, as soon as practical after entering the premises.

 

Subdivision B Powers relating to domestic commercial vessels, exercisable without consent or warrant

 

Clause 97 - Boarding a domestic commercial vessel

                

Sub-clause 1 permits a marine safety inspector to board a domestic commercial vessel for specified purposes.

 

Sub-clause 2 requires an inspector appointed under clause 91 to produce their identity card if requested by the master of a domestic commercial vessel.

 

Sub-clause 3 requires an inspector that is a member of the Australian Federal Police or a State or Territory police force and is not in uniform to produce their police identification if requested by the master of a domestic commercial vessel.

 

Sub-clause 4 requires an inspector to leave and not re-board the vessel if they fail to produce their identity card or police identification, or wear police uniform.

 

Sub-clauses 5 and 6 provides that an inspector is not required to comply with sub-clauses 2, 3 or 4 if the inspector has reasonable grounds for suspecting that doing so would endanger a person. In such cases, an inspector is required to show their identity card or police identification to the master of the vessel as soon as practical after boarding the vessel.

Clause 98 - Requiring master of a vessel to answer questions about the nature of the vessel

 

This is a critical provision for marine safety inspectors to enable them to determine which regulatory scheme is applicable to a vessel (i.e. whether it is a recreational or commercial vessel). This will enable the proper and valid exercise of applicable powers.

 

Sub-clause 1 permits a marine safety inspector to require the master of a domestic commercial vessel to answer any questions and provide any documents about the nature or operations of the vessel when requested.

 

Sub-clause 2 provides that the master of a vessel is guilty of an offence if the master is requested to meet the requirement under sub-clause 1 and fails to comply with the requirement. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 3 provides that sub-clause 2 does not apply if the master has a reasonable excuse. The master is required to provide evidence to support their claim that they have a reasonable excuse in the particular circumstances. A reasonable excuse would include the privilege against self- incrimination. 

 

Clause 99 - Monitoring domestic commercial vessels

                

Sub-clause 1 provides a marine safety inspector with vessel monitoring powers, as provided under sub-clause 2. The inspector can exercise one or more of the vessel monitoring powers and is not required to be on the vessel being monitored to exercise those powers. This allows the inspector to exercise monitoring powers from a vessel alongside the domestic commercial vessel where, for example, conditions would make it unsafe to board.

 

The powers can be used by the inspector for both routine and targeted monitoring purposes, as currently occurs in State and Territory jurisdictions. The inspector does not need to reasonably suspect the presence of evidential material to exercise monitoring powers. If the inspector has such reasonable suspicions, they may also exercise additional powers at clauses 105 and 100.

 

Sub-clause 2 provides a list of the monitoring powers of inspectors, including the power to observe or search a vessel, examine or inspect things on the vessel and require people on board the vessel to provide certain details. These powers are important for the inspector to determine compliance with the National Law and the identity of a person. Monitoring powers are provided at clause 104. The power to seize things on a vessel is provided at clause 100.

 

Sub-clause 3 provides that the monitoring powers permit an inspector to require the person in charge of a vessel to stop the vessel, manoeuvre the vessel as directed or take the vessel to a specified place. Failure to comply with this requirement is an offence (see clause 102).



 

Sub-clauses 4 and 5 provide that the monitoring powers permit an inspector to operate electronic equipment, transfer any data found to a storage device (e.g. a disk) and remove the data from the vessel to ascertain whether it contains information relevant for monitoring purposes. Written permission from the occupier of the vessel is required to use any storage device found on the vessel for the removal of data from the vessel.

 

Sub-clause 6 provides that inspectors may only operate electronic equipment on the vessel if they reasonably believe that such operation will not damage the equipment.

 

Clause 100 - Sampling, securing or seizing things found using vessel monitoring powers

                

Sub-clauses 1, 2, 3 and 4 permit a marine safety inspector without a warrant to seize, secure or take a sample of a thing found on a domestic commercial vessel during the exercise of vessel monitoring powers if the inspector reasonably believes that the thing is evidential material and either a warrant cannot be practically obtained or the action is urgently required to prevent concealment, loss or destruction of the thing.

 

This provision is intended to be used where it is impractical to obtain a warrant, such as in remote locations with little or no mobile phone coverage that would make it impossible to obtain such a warrant in a reasonable timeframe. Other examples of Commonwealth provisions similar to this sub-clause include subsection 70A(6) of the National Health Security Act 2007 and subsection 68(6) of the National Vocational Education Training Regulator Act 2010 .

 

Sub-clause 5 provides that an inspector can only seize equipment or a disk, tape or other storage device operated under section clause 99(4) if it is not practical to transfer the data or transcribe the evidential material into documentary form, or if it could constitute an offence against a Commonwealth, State or Territory law. Division 7 requires inspectors to deal with seized things in certain ways.

 

Sub-clause 6 ensures accountability and the responsible exercise of this power by requiring an inspector exercising powers under this clause to submit a report providing specified details to the National Regulator.

 

Clause 101 - Detaining domestic commercial vessels

                

Sub-clause 1 permits a marine safety inspector to detain a domestic commercial vessel, and require it to be brought to a place they considered appropriate, if the inspector reasonably suspects the vessel will or has breached the National Law, either within or outside Australia. 

 

Sub-clause 2 requires the inspector to give written notice of the vessel’s detention within 14 days to the holder of the Certificate of Operation for the vessel, if available, or otherwise the person in possession or control of the vessel before it was detained.

 

Sub-clause 3 permits the inspector to fix the written notice to a prominent part of the vessel if the notice cannot conveniently be given in person.

 

Sub-clause 4 provides requirements for the form and details of the written notice.

 

Sub-clause 5 provides that the regulations under this Bill can outline the process for the return of detained vessels. Division 7 refers to the costs of detention and disposal of vessels that cannot be returned.

 

Sub-clause 6 provides that a person is guilty of an offence if they operate, or permit or cause the operation of, a vessel not released from detention and without the consent of the inspector. A penalty provision is applied according to the Criminal Code .

 

Clause 102 - Offence—not complying with requirement made under section Clause 99

 

Sub-clause 1 provides that a person is guilty of an offence if the person fails to comply with the requirements in clauses 99(2)(h), 99(2)(i) and 99(3). A penalty provision is applied according to the Criminal Code .

 

Sub-clause 2 provides that sub-clause 1 does not apply if the person has a reasonable excuse. The person is required to provide evidence to support their claim that they have a reasonable excuse in the particular circumstances. Otherwise, they will be guilty of an offence under sub-clause 1.

 

Sub-clause 3 provides that a person is guilty of an offence if the person fails to comply with the requirements in clause 99(2)(i) by providing false or misleading information. A penalty provision is applied according to the Criminal Code.

 

Sub-clause 4 clarifies that an offence under sub-clause 1 is a strict liability offence.

 

Subdivision C Powers relating to any premises, exercisable with consent or warrant

 

Clause 103 - Entering premises with consent or under warrant

                

This clause permits a marine safety inspector to enter any premises for monitoring purposes if they have reasonable suspicion that there may be evidential material on the premises. However, sub-clause 3 clarifies that entry is only permitted under a warrant or if the occupier consents to entry and has been shown an identity card, police identification, or the inspector is in police uniform.

 

It is noted that this clause does not limit an inspector’s power to enter premises under clause 96 or clause 97 (see clause 108). Clause 115 contains rules about obtaining consent and leaving premises if consent is withdrawn. Clauses 116 - 120 contain rules relevant to entry under a warrant.



 

Clause 104 - Monitoring premises

                

Sub-clause 1 provides a marine safety inspector with general monitoring powers in relation to premises for monitoring purposes, as provided under sub-clause 2. The inspector can exercise one or more of the vessel monitoring powers. These powers are necessary to ensure the safety of commercial vessel operations and compliance with the National Law. The powers are similar to those available to inspectors for monitoring domestic commercial vessels, as provided in clause 99, but are only exercisable with consent or under warrant.

 

Sub-clause 2 provides a list of the monitoring powers of inspectors. These powers are important for the inspector to determine compliance with the National Law.

 

Sub-clauses 3 and 4 provide that the general monitoring powers include the power to operate electronic equipment and the power to transfer any data found to a storage device, such as a disk, and remove the data from the premises to ascertain whether it contains information that is relevant for monitoring purposes. This will allow the inspector to determine if there is any evidential material on premises. Written permission from the occupier of the premises is required to use any storage device found on the premises for the removal of data from the premises.

 

Sub-clause 5 provides that inspectors may only operate electronic equipment on the premises if they reasonably believe that such operation will not damage the equipment.

 

Sub-clause 6 provides that the general monitoring powers include the power to secure a thing on premises for a period not exceeding 72 hours if certain conditions are met. This period recognises that it may be impractical (or impossible) to obtain a warrant or bring in an expert within a lesser period in some areas of the country (e.g. remote Queensland and Western Australia). A maximum time of 72 hours is considered practical and appropriate.

 

Clause 105 - Enforcement powers

                

Sub-clause 1 provides a marine safety inspector with a range of enforcement powers, exercisable with consent or under warrant, in relation to premises if the inspector has reasonable suspicion that there may be evidential material on premises. The inspector can exercise one or more of the enforcement powers. These powers are necessary to ensure the safety of commercial vessel operations and compliance with the National Law. Division 7 requires inspectors to deal with seized things in certain ways.

 

Sub-clauses 2 and 3 provide that the enforcement powers include the power to operate electronic equipment to ascertain whether the equipment or any storage device found on the premises contains evidential material. The equipment and storage device can be seized if entry is obtained under an enforcement warrant. Otherwise, the inspector can use the equipment to transfer any data to a storage device for removal from the premises. Written permission from the occupier of the premises is required to use any storage device found on the premises for the removal of data from the premises.

 

Sub-clause 4 provides that inspectors may only operate electronic equipment on the premises if they reasonably believe that such operation will not damage the equipment.

 

Sub-clause 5 provides that an inspector can only seize equipment or a disk, tape or other storage device operated under Sub-clause 3(a) if it is not practical to transfer the data or transcribe the evidential material into documentary form, or if it could constitute an offence against a Commonwealth, State or Territory law. Division 7 requires inspectors to deal with seized things in certain ways.

 

Sub-clause 6 provides that the enforcement powers include the power to seize a thing on premises only if certain conditions are met, as outlined in this sub-clause.

 

Clause 106 - Requiring persons on premises entered under warrant to answer questions and produce documents

                

Sub-clause 1 permits a marine safety inspector with a warrant to require anyone on or in the premises to answer questions and produce books, records or documents. The effect of this sub-clause is that an inspector who has entered the premises under a warrant, may compel the occupier to answer questions about, or produce documents relating to, the operation of the National Law.

 

Sub-clause 2 provides that a person is guilty of an offence if the person fails to comply with the requirement under sub-clause 1. A penalty provision is applied according to the Criminal Code .

 

Sub-clause 3 provides that sub-clause 2 does not apply if the person has a reasonable excuse. The person is required to provide evidence to support their claim that they have a reasonable excuse in the particular circumstances. An example of a reasonable excuse is the privilege against self-incrimination.

 

Clause 107 - Using force in executing a warrant

                  

This clause permits a marine safety inspector to use force against people and things to execute a warrant if this is necessary and reasonable in the circumstances. Only the inspector can use force against a person, while persons assisting the inspector may only use force against things. It is envisaged that the use of force against a thing would include, but not be limited to, the moving of furniture or other objects to allow access to evidentiary material. Actions under this provision would also be subject to investigation by the Commonwealth Ombudsman.

 

This clause is similar to existing Commonwealth legislative provisions. Section 70 of the National Vocational Education and Training Regulation Act 2010 allows the use of force against things by authorised officers and persons assisting when executing a warrant under that Act. Section 203J of the Customs Act 1901 and section 85B of the Fisheries Management Act 1991 also allows the necessary and reasonable use of force against people and things when executing warrants.



 

Clause 108 - Relationship with Subdivision B

 

This clause clarifies that Subdivision B and C can operate concurrently, so that the exercise of powers provided in Subdivision C does not limit the ability to also exercise powers in Subdivision B. This is important to ensure that a marine safety inspector is able to exercise both monitoring and enforcement powers where necessary. It is also clarified that Subdivision B does not prevent Subdivision C from applying to premises that are domestic commercial vessels.

 

Division 3 - Other powers

 

Clause 109 - Giving directions

 

Sub-clause 1 permits a marine safety inspector to give directions to a person requiring the person to take reasonable steps to comply with the National Law within a specified time if an inspector reasonably believes the person is not complying with the National Law. However, an inspector may only give directions if it is reasonably necessary to protect the health and safety of people or the environment, or else it is in the public interest to do so. This would enable an inspector, for example, to direct that equipment on a commercial vessel be operated so that it can be properly inspected in circumstances if the inspector suspects there is a breach of the National Law in relation to the equipment. Section 146 of the Gene Technology Act 2000 has a similar power.

 

Sub-clause 2 requires an inspector to give directions in writing, unless there is an urgent need to comply with the National Law to protect the health and safety of people or the environment.

 

Sub-clause 3 provides that a person is guilty of an offence if the person does not take the steps specified in a direction within the specified time. A penalty provision is applied according to the Criminal Code.

 

Sub-clause 4 provides that an offence under sub-clause 3 is a strict liability offence.

 

Sub-clauses 5 and 6 permit the inspector to arrange for the specified steps in a direction to be undertaken if the person does not take the steps in the specified time. The person will be liable to pay any costs incurred by the National Regulator for such arrangements and the amount may be recovered as a debt. Section 146 of the Gene Technology Act 2000 has a similar cost recovery arrangement .

 

Sub-clause 7 requires the specified time in a direction to be reasonable in the circumstances.



 

Clause 110 - Issuing improvement notices

 

Sub-clause 1 permits a marine safety inspector to issue an improvement notice, in writing, to a person if the inspector believes the person is breaching or has breached a provision of the National Law and is likely to breach again. The power to issue improvement notices has for many years been a fundamental tool used by inspectors to achieve compliance with safety laws. For example, a similar power to issue improvement notices can be found in section 98 of the Commonwealth Occupational Health and Safety (Maritime Industry) Act 1993 .

 

Sub-clauses 2 and 3 require the notice to specify the alleged breach of the National Law, the reasons for that belief and the time period for action to be taken to prevent any further breach. The period specified in the notice must also be reasonable.

 

Sub-clauses 4 and 5 permit the notice to specify action that the person is to take, or not to take, during the period specified in the notice. The inspector is also permitted to extend the specified period in writing.

 

Sub-clause 6 requires a person to ensure that the notice is complied with to the extent of their control.

 

Sub-clause 7 provides that a person is guilty of an offence if the person fails to comply with a requirement under a notice. A penalty provision is applied according to the Criminal Code.

 

Sub-clause 8 clarifies that an offence under sub-clause 7 is a strict liability offence.

 

Clause 111 - Issuing prohibition notices

 

Sub-clauses 1 and 2 permit a marine safety inspector to issue a prohibition notice to the responsible person in relation to a domestic commercial vessel if the inspector reasonably believes an activity is occurring, or may occur, in relation to the vessel that involves or will involve a serious risk to the health and safety of a person or to the environment. The ‘responsible person’ is defined to be the master of the vessel, but provides for other people to be the responsible person if the inspector cannot locate the master. A similar power relating to prohibition notices is in section 93 of the Commonwealth Occupational Health and Safety (Maritime Industry) Act 1993 .

 

Sub-clause 3 requires that the prohibition notice must set out the activity that the inspector believes is a serious risk to health, safety or the environment and a direction to ensure the activity is not engaged in or not engaged in a ‘specified manner’. For example, a notice could specify that a person not operate an unsafe vessel.

 

Sub-clause 4 explains what a ‘specified manner’ may relate to.

 

Sub-clauses 5 and 6 provide that a notice may specify the action to be taken and ceases to have effect when an inspector notifies the responsible person that adequate action has been taken to remove the risk to health, safety or the environment.

 

Sub-clauses 7 and 8 permit the inspector to exercise any of the vessel monitoring powers and general monitoring powers to determine if an action is adequate to remove the risk to health, safety or the environment. The inspector is required to inform the responsible person if the action taken is not adequate.

 

Sub-clause 9 provides that a person is guilty of an offence if the person engages in conduct that results in a breach of a notice. A penalty provision is applied according to the Criminal Code.

 

Sub-clause 10 clarifies that an offence under sub-clause 9 is a strict liability offence.

                         

Clause 112 - Copies of notices to be displayed and distributed

 

Sub-clause 1 requires a marine safety inspector to provide a copy of an improvement notice or prohibition notice to the master of a vessel and the Certificate of Operation holder, or other people if the holder cannot be located. It also requires the recipient of a notice to display the notice as directed by the inspector or otherwise in a prominent place on or near the vessel.

 

Sub-clause 2 provides that a person is guilty of an offence if the person breaches the requirements for the display of a notice. A penalty provision is applied according to the Criminal Code.

 

Sub-clause 3 clarifies that an offence under sub-clause 2 is a strict liability offence.

 

Clause 113 - Notices not to be tampered with or removed

 

Sub-clause 1 provides that a person is guilty of an offence if the person tampers with an improvement notice or prohibition notice while it is displayed or removes such a notice before it has ceased to have effect. A penalty provision is applied according to the Criminal Code.

 

Sub-clause 2 provides that sub-clause 1 does not apply if the person has a reasonable excuse. The person is required to provide evidence to support their claim that they have a reasonable excuse in the particular circumstances. Otherwise, they will be guilty of an offence under sub-clause 1.

 

Sub-clause 3 clarifies that an offence under sub-clause 1 is a strict liability offence.

 

Division 4 - Persons assisting marine safety inspectors

 

Clause 114 - Persons assisting marine safety inspectors

 

Sub-clause 1 permits a marine safety inspector to be assisted, if necessary and reasonable, by other people when exercising their powers or performing functions or duties under Part 6. These people are called ‘persons assisting’ the inspector.



 

Persons assisting are intended to include other representatives of the National Regulator or its delegates (e.g. employees of a State of Territory marine safety agency). Police officers would not be included in this category because they are automatically marine safety inspectors, as defined under clause 6. The rules and conditions imposed by the National Regulator on marine safety inspectors will also apply to any persons assisting an inspector.

 

Sub-clause 2 permits persons assisting to enter premises and exercise monitoring or enforcement powers in accordance with directions given to them by an inspector.

 

Sub-clause 3 permits persons assisting to use necessary and reasonable force to execute a warrant in relation to things, but not persons.

 

Sub-clauses 4 and 5 provide that powers exercised and functions or duties performed by persons assisting are taken to have been exercised by the inspector.

 

Division 5 - Obligations and incidental powers of marine safety inspectors

 

Clause 115 - Consent

 

This clause requires a marine safety inspector to inform the occupier of premises that they may refuse to consent to the inspector entering the premises for monitoring purposes. The inspector must inform the occupier before obtaining that consent and the consent has no effect unless it is voluntary. It may also be given for only a limited time and may be withdrawn at any time. The inspector and any persons assisting must leave the premises if consent no longer has effect.

 

Clause 116 - Announcement before entry under warrant

 

Sub-clause 1 requires a marine safety inspector to announce that they are authorised to enter the premises before entering premises under a warrant. They are also required to show their identity card and allow any person at the premises an opportunity to allow entry. If the inspector is a uniformed police officer, the inspector need only show police identification.

 

Sub-clause 2 provides that an inspector is not required to comply with sub-clause 1 if they reasonably believe that immediate entry is required to ensure the safety of a person or to ensure the effective execution of the warrant.

 

Sub-clause 3 requires an inspector that does not comply with sub-clause 1 to show their identity card or police identification to the occupier of the premises as soon as practical after entering the premises.

 

Clause 117 - Marine safety inspector to be in possession of warrant

 

This clause requires a marine safety inspector to possess a warrant, or a copy of it, when executing a warrant in relation to premises.



 

Clause 118 - Details of warrant etc. to be given to occupier

 

This clause requires a marine safety inspector executing a warrant to, as soon as practical, provide a copy of the warrant to the occupier of the premises. They must also inform the occupier of their rights and responsibilities under Division 6.

 

Clause 119 - Completing execution of warrant after temporary cessation

 

Sub-clauses 1 and 2 permit a marine safety inspector and any persons assisting to complete the execution of a warrant if it is still in force and they are away from the premises for no more than a certain period of time, depending on the circumstances. This clause applies if the execution of a warrant is temporarily ceased and the inspector leaves the premises. This provides some limited flexibility in the execution of warrants. This may be required in circumstances where an emergency situation arises that prevents the execution of the warrant, or where additional equipment, people or some other act is necessary to execute the warrant, but is not immediately available and causes a temporary cessation in the execution of the warrant.

 

Sub-clauses 3 and 4 permit an inspector or any persons assisting to apply to a magistrate for an extension of the allowable period of absence from the premises under certain circumstances. The inspector or persons assisting are required, if practical, to notify the occupier of the premises of an intention to apply for an extension before making the application.

 

Sub-clause 5 permits a magistrate to extend the allowable period of absence from the premises if certain conditions are met. A magistrate may only extend the period if satisfied that exceptional circumstances justify the extension and it would not result in the period ending after the warrant ceases to be in force. Similar legislative powers can be found in section 203L of the Customs Act 1901 .

 

Clause 120 - Completing execution of warrant stopped by court order

 

This clause permits a marine safety inspector and any persons assisting to complete the execution of a warrant that has been stopped by a court order if the order is revoked or reversed on appeal and the warrant is still in force.

 

Clause 121 - Expert assistance to operate electronic equipment

 

Sub-clauses 1 and 2 permit a marine safety inspector to secure, by any means, electronic equipment at premises to which a warrant applies. The inspector must reasonably believe there is information relevant to monitoring purposes or that may provide evidential material, that requires expert assistance to access on the premises, and that the information may be destroyed, altered or interfered with if not secured.

 

Sub-clause 3 requires the inspector to give notice to the occupier of the premises of any intention to secure the equipment and that it may be secured for up to 72 hours. This period recognises that it may be impractical (or impossible) to obtain a warrant or bring in an expert within a lesser period in some areas of the country (e.g. remote Queensland and Western Australia). A maximum time of 72 hours is considered practical and appropriate.

Clause 122 - Compensation for damage to electronic equipment

 

Sub-clauses 1 and 2 require the National Regulator to provide agreed and reasonable compensation to the owner of electronic equipment for damage or corruption to that equipment. The damage or corruption must result from insufficient care exercised by the operator of the equipment or in the selection of the operator of the equipment.

 

Sub-clause 3 permits the owner of the electronic equipment to seek compensation determined by a court if agreement cannot be reached with the National Regulator on reasonable compensation.

 

Sub-clause 4 provides that the determination of reasonable compensation will include regard for any appropriate warnings or guidance from the owner about operating the electronic equipment.

 

Sub-clause 5 clarifies that damage under sub-clause 1 includes erasing data or adding other data.

 

Clause 123 - Extending period for which something is secured

 

This clause permits a marine safety inspector to apply to a magistrate to secure a thing for more than 72 hours if they reasonably believe this is needed. The inspector is required to give notice of an intention to apply for an extension to the occupier of the premises, who it entitled to be heard in relation to that application. Clause 134 (monitoring powers) applies to the issue of an extension, with any necessary modifications. The 72 hour period may be extended more than once. This period recognises that it may be impractical (or impossible) to obtain a warrant or bring in an expert within a lesser period in some areas of the country (e.g. remote Queensland and Western Australia). A maximum time of 72 hours is considered practical and appropriate.

 

Clause 124 - Offence-interfering with securing a thing

 

This clause provides that a person is guilty of an offence if they interfere with the securing of a thing or a thing that has been secured by a marine safety inspector before the end of the period for which the thing is secured. A penalty provision is applied according to the Criminal Code .

 

The penalty in this provision has been set at a level that is comparable with that set for offences of this nature, for which prosecution would be frustrated if the conduct giving rise to an offence under this provision occurred. The intention is to provide no monetary advantage or incentive to a potential offender to hinder a marine safety inspector in order to prevent the inspector identifying other offences. 



 

Division 6 - Occupier’s rights and responsibilities

 

Clause 125 - Occupier entitled to observe execution of warrant

This clause provides that the occupier of premises is entitled to observe the execution of a warrant in relation to the premises if they are present. This entitlement ceases if the occupier impedes the execution of the warrant. The execution of the warrant may occur in more than one place at the premises.

 

Clause 126 - Occupier to provide marine safety inspector with facilities and assistance

 

This clause requires the occupier of premises to provide all reasonable facilities and assistance to a marine safety inspector and any persons assisting in the effective exercise of their power. A person is guilty of an offence is the person fails to comply with this requirement. A penalty provision is applied according to the Criminal Code . It is also clarified that an offence under sub-clause 2 is an offence of strict liability.

 

Division 7 - General provisions relating to seizure and detention

 

Clause 127 - Copies of seized things to be provided

 

This clause requires a marine safety inspector to provide, on the request of the occupier of premises, a copy of any seized document or information that can be readily copied as soon as practical after the seizure. An inspector is not required to comply with this requirement if the seized document or information could constitute an offence against a Commonwealth, State or Territory law.

 

Clause 128 - Receipts for seized things

 

This clause requires a marine safety inspector to provide a receipt for any seized things. A receipt may cover multiple seized things.

 

Clause 129 - Return of seized things

 

Sub-clause 1 requires a marine safety inspector to take reasonable steps to return any seized thing when the reason for seizure no longer exists, the thing is not to be used in evidence or 60 days have passed since the thing was seized.

 

Sub-clauses 2 and 3 provide exceptions to the requirements under sub-clause 1.

 

Sub-clause 4 requires that any seized thing is returned to the person from whom it was seized, or to the owner of the thing if the person is not entitled to the thing.

 

Clause 130 - Magistrate may permit a thing to be retained

 

Sub-clause 1 permits a marine safety inspector to apply to a magistrate for an order permitting them to retain a seized thing for a further period if court proceedings in which the thing is evidence have not commenced. An application must be made within 60 days from the seizure.

Sub-clause 2 permits a magistrate to order a seized thing continue to be retained for a specified period if satisfied that retention is necessary for investigation or prosecution of an offence. The specified period must not exceed three years.

 

Sub-clause 3 requires an inspector to take reasonable steps to identify people with an interest in the retention of the thing and notify each person, if practical, of the proposed application to retain the thing for a further period.

 

Clause 131 - Costs of detention

 

Sub-clause 1 provides that the National Regulator is liable to provide reasonable compensation to the owner of a detained domestic commercial vessel for costs, damages or losses resulting from the detention if there was no reasonable or probable cause for detention.

 

Sub-clause 2 provides that the owner of a detained domestic commercial is liable to provide reasonable compensation to the National Regulator for costs incurred in the detention of the vessel if that detention was reasonable in the circumstances.

 

Sub-clause 3 permits the National Regulator or the vessel owner to seek compensation determined by a court if agreement cannot be reached on reasonable compensation.

 

Clause 132 - Disposal of seized things and detained vessels

 

This clause permits the National Regulator to dispose of seized things or detained vessels as they see fit. This applies only if the owner of the thing or vessel cannot be located after reasonable efforts, the owner refuses to take possession once contacted or has not taken possession within three months since the person was contacted.

 

Clause 133 - Compensation for acquisition of property

 

This clause provides that the National Regulator is liable to provide reasonable compensation to a person if property is acquired from them on unfair terms under clause 132. The person is also permitted to seek compensation from the National Regulator as determined by a court if agreement cannot be reached on reasonable compensation.

 

Division 8 - Warrants

 

Clause 134 - Monitoring warrants

 

Sub-clause 1 permits a marine safety inspector to apply to a magistrate for a warrant for monitoring purposes in relation to premises. The definition of premises under this Bill includes a building, vessel, vehicle or aircraft (see clause 6).

 

Sub-clause 2 provides that a magistrate may issue a warrant if satisfied that it is reasonably necessary that an inspector should have access to the premises for monitoring purposes.

 

Sub-clause 3 prevents a magistrate from issuing a warrant unless sufficient information is provided to the magistrate on the grounds for the issue of a warrant.

 

Sub-clause 4 provides the form and details required in a warrant.

 

Clause 135 - Enforcement warrants

 

Sub-clause 1 permits a marine safety inspector to apply to a magistrate for a warrant in relation to premises. The definition of premises under this Bill includes a building, vessel, vehicle or aircraft (see clause 6).

 

Sub-clause 2 provides that a magistrate may issue a warrant if satisfied that there is reasonable of evidential material on the premises at the time or within the next 72 hours.

 

Sub-clause 3 prevents a magistrate from issuing a warrant unless sufficient information is provided to the magistrate on the grounds for the issue of a warrant.

 

Sub-clause 4 provides the form and details required in a warrant.

 

Clause 136 - Enforcement warrants by telephone, fax etc.

 

Sub-clause 1 permits a marine safety inspector to apply to a magistrate for an enforcement warrant in relation to premises by telephone, fax or other electronic means if it is urgent or if the inspector reasonably believes that an application in person would prevent the effective execution of the warrant.  

 

Sub-clause 2 permits a magistrate to require, if practical, communication by voice for an application for a warrant.

 

Sub-clause 3 requires an application for a warrant to include all information in relation to premises that provides the grounds for seeking the warrant. If it is necessary to do so, the inspector may apply for the warrant before the information is sworn or affirmed.

 

Sub-clause 4 provides for a magistrate to complete and sign a warrant issued under clause 135 if, after considering the information required, the magistrate is satisfied that there are reasonable grounds for issuing the warrant.

 

Sub-clause 5 requires the magistrate signing a warrant to inform the inspector by telephone, fax or other electronic means, of the terms of the warrant and the day and time it was signed.

 

Sub-clause 6 requires the inspector, after being informed by the magistrate, to complete a form of warrant in the same terms as that approved and signed by the magistrate, including the name of the magistrate and the day and time it was signed.

 

Sub-clause 7 requires the inspector to send the magistrate the form of warrant completed by the inspector and the required information no later than the day after the day of execution or the day the warrant ceased to be in force, whichever is earlier.

Sub-clause 8 requires the magistrate to attach the inspector’s warrant to the warrant signed by the magistrate.

 

Sub-clause 9 provides that a properly completed inspector’s warrant holds the same powers as the warrant signed by the magistrate.

 

Sub-clause 10 requires a court to assume, unless proven otherwise, that an inspector’s warrant was not properly executed if the warrant signed by the magistrate is not produced in evidence and the proper execution of a warrant is material to a case.

 

Clause 137 - Offence relating to warrants by telephone, fax etc.

 

This clause provides that a marine safety inspector is guilty of an offence if they knowingly provide false or misleading information in an application for a warrant, presents or executes a document that falsely purports to be a warrant, or presents a warrant to a magistrate in a form different to that purported to have been executed. A penalty provision is applied according to the Criminal Code .

Part 7 Infringement notices

 

Clause 138 - Infringement notices

 

This clause provides for the regulations under this Bill to allow an alleged offender to pay a penalty as an alternative to prosecution. The penalty will be one-fifth of the maximum fine imposed by a court for the offence. This provision is intended to allow for effective enforcement of the National Law without imposing an unnecessary burden on the court system.

 

Part 8 General matters

 

This part of the Bill addresses a range of miscellaneous matters important to the efficient and proper functioning of the National Law. These include provisions for a review of decisions made under the National Law and subordinate legislation, exemptions issued under the National Law, the application of the National Law to certain legal entities, the charging of fees for services and activities, providing immunity from suit for those administering the National Law, and the matters that may be provided for in the regulations and other legislative instruments under the National Law.



 

Division 1 Review of decisions

 

Clause 139 - Reviewable decisions

 

This clause provides a list of the decisions by the National Regulator that are considered reviewable decisions under this Bill. In summary, these include a decision under relevant clauses of this Bill to:

 

·          vary, suspend or revoke a certificate;

·          impose a condition on a certificate or an exemption;

·          refuse to issue, vary, suspend, revoke or recognise a certificate;

·          refuse to issue a unique identifier or grant an exemption;

·          specify a condition, give a direction or detain a vessel; and

·          issue a provisional improvement notice or a prohibition notice.

Clause 140 - Internal review of reviewable decisions

 

The consultation undertaken in the development of this Bill highlights that internal review of reviewable decisions is seen by industry as an important provision that allows for decisions to be reviewed without the need for more formal review by the AAT. The provision of internal review mechanisms is also consistent with best practice guidance on the subject from the Administrative Review Council.

 

Sub-clause 1 requires the National Regulator to give written notice to a person regarding a reviewable decision about them. The notice must provide the decision, the reasons for the decision and the right to have the decision reviewed under this clause. These requirements are consistent with the general obligation to provide natural justice in administrative processes.

 

Sub-clause 2 permits a person to apply to the National Regulator for the review of a decision made about them.

 

Sub-clause 3 requires an application for the review of a decision to be in the form and contain the details provided in this sub-clause.

 

Sub-clause 4 requires the National Regulator to review the decision when an application for a review of the decision is received. The review must be undertaken by a person with delegated powers, who was not involved in making the decision and that is more senior to the decision maker.

 

Sub-clause 5 permits the person undertaking a review of a decision to retain, vary or revoke the decision. The person is also permitted to make their own decision if the original decision is revoked.

 

Sub-clause 6 provides that a failure to comply with sub-clause 1 does not affect the validity of the decision.

Clause 141 - Applications for AAT review

 

This clause permits a person to apply to the AAT for review of a decision under sub-clause 140(5). The Administrative Appeals Tribunal Act 1975 of the Commonwealth provides for the manner of applying for review.

Clause 142 - Review of decisions made under the regulations

 

This clause permits the regulations under this Bill to provide for the internal review of decisions made by the National Regulator in accordance with the regulations under this Bill. It also permits applications to the AAT for a review of decisions by the National Regulator in accordance with the regulations under this Bill. The Administrative Appeals Tribunal Act 1975 of the Commonwealth provides for the manner of applying for review.

 

Division 2 Exemptions

 

Clause 143 - Power of exemption

 

The power for the National Regulator to provide exemptions under this Bill, along with the transitional and grandfathering arrangements provided in clause 165, are important to support the smooth transfer of domestic commercial vessel safety arrangements from current State and Territory schemes to the new National Law.

 

Sub-clause 1 permits the National Regulator to exempt specified vessels and people, or classes of vessels and people, from this Bill or specified provisions of this Bill.

 

Sub-clauses 2, 3, 4, 5 and 6 provide that an exemption may be confined to specific periods or operations, may be granted on application or at the National Regulator’s initiative, and may be subject to specified conditions. The National Regulator can only provide an exemption or impose conditions on an exemption if satisfied that doing so will not jeopardise the safety of a vessel or a person on board a vessel.

 

Sub-clause 7 clarifies that exemptions are not legislative instruments. This clause is merely declaratory and provided to assist readers, rather than to exempt such exemptions from the Legislative Instruments Act 2003 .

Clause 144 - Offence of breaching a condition of exemption (owner)

 

Sub-clause 1 provides that the owner of a domestic commercial vessel is guilty of an offence if the owner breaches, or causes or permits another person to breach, a condition on an exemption.

 

Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.

Clause 145 - Offence of breaching a condition of exemption (master)

 

Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an offence if the master breaches, or causes or permits another person to breach, a condition on an exemption.

Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.

Clause 146 - Offence of breaching a condition of exemption (all persons)

 

Sub-clause 1 provides that a person is guilty of an offence if the person breaches a condition on an exemption.

 

Sub-clause 2 clarifies that an offence under Sub-clause 1 is a strict liability offence.

 

Division 3 Application of National Law to certain bodies

 

Clause 147 - Treatment of partnerships

 

Sub-clause 1 provides that this Bill applies to partnerships as if they were a person, but with the modifications outlined in this clause. 

 

Sub-clause 2 provides that an obligation imposed on a partnership by this Bill is imposed on each partner, but can be discharged by any partner.

 

Sub-clause 3 provides that an offence by a partnership under this Bill is an offence by each partner.

 

Sub-clause 4 provides that a partner does not commit an offence if they were not aware of the circumstance that created the offence or if they took all reasonable steps to correct the offence as soon as possible after becoming aware of the circumstances. The partner is required to provide evidence to support their claim that they were not aware or that they took all reasonable steps as soon as possible in the particular circumstances. Otherwise, they will be guilty of an offence under sub-clause 1.

 

Sub-clause 5 clarifies that a change in the composition of the partnership does not allow the partnership to avoid the application of this clause.

Clause 148 - Treatment of unincorporated associations

 

Sub-clause 1 provides that this Bill applies to an unincorporated association as if it were a person, but with the modifications outlined in this clause. 

 

Sub-clause 2 provides that an obligation imposed on an unincorporated association by this Bill is imposed on each member of the association’s management committee, but can be discharged by any partner.

 

Sub-clause 3 provides that an offence by an unincorporated association under this Bill is an offence by each member of the association’s management committee.



 

Sub-clause 4 provides that a member of the association’s management committee does not commit an offence if they were not aware of the circumstance that created the offence or takes all reasonable steps to correct the offence as soon as possible after becoming aware of the circumstances. The member is required to provide evidence to support their claim that they were not aware or took all reasonable steps as soon as possible in the particular circumstances. Otherwise, they will be guilty of an offence under sub-clause 1.

Clause 149 - Treatment of trusts with multiple trustees

 

Sub-clause 1 provides that this Bill applies to a trust of two or more people as if it were a person, but with the modifications outlined in this clause. 

 

Sub-clause 2 provides that an obligation imposed on a trust by this Bill is imposed on each trustee, but can be discharged by any trustee.

 

Sub-clause 3 provides that an offence by a trust under this Bill is an offence by each trustee.

 

Sub-clause 4 provides that a trustee does not commit an offence if they were not aware of the circumstance that created the offence or takes all reasonable steps to correct the offence as soon as possible after becoming aware of the circumstances. The trustee is required to provide evidence to support their claim that they were not aware or that they took all reasonable steps as soon as possible in the particular circumstances. Otherwise, they will be guilty of an offence under sub-clause 1.

 

Division 4 Fees

 

Clause 150 - Charging of fees by the National Regulator

 

This clause permits the National Regulator to charge fees provided by the regulations under this Bill. The fees will be payable to the National Regulator, related to goods and services provided by the National Regulator, and must be commensurate with the cost of providing the good or service. The National Regulator is able to recover any unpaid fees in court.  

 

However, it is not envisaged that the National Regulator will collect fees and charges from industry in practice - these will in most, if not all, cases be levied by State and Territory administrations to cover their costs of implementing and performing functions of the National System. The IGA sets out in Part 6 the financial arrangements that are intended to operate under the Reform. This provision would allow the National Regulator itself to levy fees, in the event that Transport Minsters in reviewing the arrangements recommended to COAG to modify the cost recovery arrangements outlined in the IGA, or if the National Regulator itself had to provide services, for example, in the Australian Capital Territory.

 

Fees chargeable by the National Regulator would have to be detailed in the Regulations under this Bill and would therefore be subject to agreement by SCOTI.

 

The National Law also makes clear that the States and Territories are free to charge their own fees for the performance of functions delegated by the National Regulator.

Clause 151 - Charging of fees by accredited persons

 

Sub-clause 1 permits an accredited person to charge a fee for goods and services provided under this Bill if they are not employed by the Commonwealth, a State or Territory or their agencies. An accredited person so employed is also permitted to charge a fee for goods and services provided under this Bill if these are provided outside their employed capacity. As explained at clause 6, the definition of an ‘accredited person’ relies on the regulations under this Bill to further define what it includes (see also clause 160).

 

Sub-clauses 2, 3 and 4 provide that the fees are payable to the accredited person, must be related to goods and services provided by the accredited person, and must be reasonably related to the cost of providing the good or service. The accredited person is able to recover any unpaid fees in court.

 

Division 5 Disclosure of information

 

Clause 152 - Disclosure of information by certain persons to the National Regulator

 

This clause permits certain persons (i.e. National Regulator delegates and appointed marine safety inspectors) to disclose relevant information (including personal information where relevant) to the National Regulator to ensure the proper functioning of the National Law. For example, this is important to allow officers of State and Territory agencies to provide information about people, evidential material and seized things to the National Regulator for the prosecution of alleged offenders. A definition of ‘personal information’ is provided in clause 6, which is identical to the definition in the Commonwealth Privacy Act 1988

 

Division 6 Immunity from suit

 

Clause 153 - Immunity from suit

 

The immunity provisions in this Bill apply to acts or omissions in the exercise of powers conferred or directions given under the National Law. It provides protection from legal proceedings initiated by those adversely affected by the National Law, including those wrongly adversely affected by actions or inaction undertaken in good faith and within the scope of the powers and functions of the National Law.

The immunity provisions are intended to apply to people in an employer-employee relationship (e.g. traditional employees), but not those in an engager-contractor relationship (e.g. private surveyors). This is because traditional employees are subject to the control and direction of the employer in performing tasks, while hired contractors have individual control over how the task is performed. Whether the immunity provision applies to a person in any particular case will depend on whether they are a party to a ‘contract of service’ or a ‘contract for service’. There are many well established legal tests for determining this at common law.

Marine safety inspectors, in particular, have a crucial role to play in the promotion of marine safety and in eliminating or minimising serious risks to marine safety. They may be required to exercise judgment, make decisions and exercise powers with limited information and in urgent circumstances.

As a result, it is important that they and others engaged in the administration of the Bill are not deterred from exercising their skill and judgment due to fear of personal legal liability.

 

Sub-clause 1 provides immunity from criminal or civil prosecution for any action or inaction by the National Regulator, marine safety inspectors and others engaged in the administration of the National Law when exercising powers under this Bill.

 

Sub-clause 2 provides immunity from criminal or civil prosecution for any action or inaction by a person when complying with a direction under this Bill.

 

Sub-clause 3 provides an exception to sub-clause 2 if there is any inconsistency with an international agreement to which Australia is a party.

 

Sub-clause 4  provides that sub-clause 2 does not apply in proceedings in relation to the acquisition of property from a person otherwise on just terms.

 

Sub-clauses 3 and 4 are consistent with section 17A of the Protection of the Sea (Powers of Intervention) Act 1981 .

 

Division 7—Matters relating to evidence and proceedings, etc.

 

Clause 154 - National Regulator may require certain information

 

Sub-clause 1 explains that this clause applies to any alleged offence of a master or owner of a domestic commercial vessel against the National Law.

 

Sub-clause 2 permits the National Regulator to obtain, by a notice given within 30 days of the alleged offence, the name and contact details of the master or the owner at the time of the alleged offence, depending on who is alleged to have committed the offence.

 

Sub-clause 3 requires the notice in sub-clause 2 to specify the offence and the effect of clause 155.

 

Clause 155 - Offence not to give information

 

Sub-clause 1 provides that a person is guilty of an offence if they are required to provide information to the National Regulator in a notice under sub-clause 154(2) and does not provide the information within 28 days after the notice is given. A penalty provision is applied in accordance with the Criminal Code .

 

Sub-clause 2 provides that sub-clause 1 does not apply if the National Regulator is satisfied that the vessel was stolen or wrongfully taken at the time of the offence.

 

Sub-clause 3 clarifies that the offence in sub-clause 1 is a strict liability offence.

 

Clause 156 - Evidentiary certificates

 

Evidentiary certificates will only to be used in relation to technical, objective issues, with the intent to reduce the time and expense incurred by the court and the relevant parties in establishing facts that are not in dispute. They will not be available in situations where there could be some argument about a particular fact and would not be able to serve as prima facie evidence of intent, negligence, recklessness, dishonesty or malice.

 

Sub-clause 1 permits the National Regulator to issue a document certifying that a unique identifier or other specified certificate, or instrument of accreditation however described, was in force or issued on a particular day for a domestic commercial vessel, or that a specified person held a Certificate of Competency or another specified certificate on a specified day, or that a specified certificate was or was not subject to a condition on a specified day.

 

Sub-clause 2 clarifies that a certificate under sub-clause 1 can be used as evidence in the proceedings of an offence under the National Law.

 

Clause 157 - Burden of proving certain matters lies on defendant

 

This clause provides that, in the absence of evidence to the contrary, the prosecution is not required to prove certain specified facts about an alleged offence under the National Law.

 

Division 8 Adverse publicity orders

 

Clause 158 - Adverse publicity orders

 

Adverse publicity orders are part of the suite of compliance and enforcement tools available to the National Regulator. They involve the publication of an offender’s conviction and other relevant facts (such as the consequences of the offence), to either a specific group of people or to the general public. Adverse publicity can be effective in ensuring compliance with the National Law because corporations generally view their reputation as a valuable asset. This approach to enforcement and compliance has been adopted in several Australian jurisdictions and is a feature of Work Health & Safety Act 2010 (Section 236), the Competition and Consumer Act 2010 (Section 86D) and the Victorian Marine Safety Bill 2010 (Section 173).

 

Sub-clause 1 explains the application of this division.

 

Sub-clause 2 permits a court to make an adverse publicity order requiring those guilty of an offence against the National Law to publicise or notify people of the offence, the penalty imposed and other details specified in the order. The offender may also be required to provide the National Regulator with evidence of their compliance with the order.

 

Sub-clause 3 permits a court to make the order in addition to any penalty for the offence, either on its own initiative or on application by the prosecutor.

 

Sub-clause 4 permits the National Regulator to publicise or notify people of the offence, the penalty imposed and other details specified in the order if an offender fails to provide evidence required in sub-clause 2.

 

Sub-clause 5 permits the National Regulator to apply to a court for authorisation to take action under sub-clause 4 if the National Regulator is not satisfied with the evidence provided in sub-clause 2.

 

Sub-clause 6 permits the National Regulator to recover an amount for any reasonable expenses incurred in undertaking action under sub-clauses 4 or 5.

 

Division 9 Regulations and other legislative instruments

 

Clause 159 - Regulations

 

Sub-clause 1 permits the Governor General to make regulations on certain matters.

 

Sub-clauses 2 and 3 permit the regulations under this Bill to provide for certain standards and requirements in relation to this Bill. The nationally consistent application of standards is a critical feature and objective of the National Law.

 

Sub-clause 4 permits the regulations under this Bill to provide for a scheme for and in relation to Enforceable Voluntary Undertakings (EVU). An EVU is part of the suite of compliance and enforcement tools available to the National Regulator. While an EVU is an alternative to administrative or criminal action by the National Regulator, in some circumstances certain enforcement actions can be combined with EVUs. 

 

EVUs are remedial in nature and are intended to reduce risks to safety by having the holder of a National Law certificate or other authorisation voluntarily modify their practices, behaviour, attitude or skills to ensure they comply with the effect and intent of the National Law and adhere to a culture of marine safety.

 

Sub-clause 5 permits the regulations under this Bill to provide for the National Regulator to require a person to hold certificates or other documents that may be required to comply with international conventions. Further, the sub-clause provides that regulations under the Bill can provide for the issue, variation, suspension or revocation of these certificates or other documents.

 

Sub-clause 6 requires that, before the Governor General makes a regulation that changes the scope of the definition of a domestic commercial vessel under sub-clause 7(4) and 7(5), the Commonwealth Minister must be satisfied that the COAG Council has been consulted on the proposed regulation and has unanimously agreed to the making of the proposed regulation.  COAG Council is defined in clause 6.

Clause 160 - Regulations may prescribe matters relating to accreditation and approval

 

The regulations under the National Law will allow the National Regulator to provide accreditation of private individuals for certain purposes, such as conducting vessel survey or training. These provisions will be consistent with current arrangements in some jurisdictions.

 

Sub-clause 1 permits the regulations under this Bill to provide for matters relating to accreditation and approval, including the accreditation of people to perform roles described by the regulations, as well as the approval of training organisations.

 

Sub-clause 2 provides examples of the matters that may be provided for in the regulations under this Bill.

 

Sub-clause 3 requires that, before the Governor-General makes a regulation for the purposes of sub-clause 1(a) providing for the accreditation of persons to perform the role of a surveyor of vessels, the Commonwealth Minister must be satisfied that the COAG Council has been consulted in relation to the proposed regulation and has agreed to the making of the proposed regulation.  COAG Council is defined in clause 6.

Clause 161 - Offence of contravening a condition of accreditation

 

Sub-clauses 1, 2 and 3 provide that an accredited person is guilty of an offence if their action or inaction breaches a relevant condition provided by the regulations under this Bill, is a risk to the safety of a person or a domestic commercial vessel and was intentional, reckless or negligent. A penalty provision is applied according to the Criminal Code. The level of the penalty depends on whether the action or inaction of the owner was intentional, reckless or negligent.

 

Sub-clause 4 provides that the person is also guilty of an offence if the person’s action or inaction breaches a relevant condition provided by the regulations under this Bill but is not proven to be intentional, reckless or negligent. A penalty provision is applied according to the Criminal Code.

 

Sub-clause 5 clarifies that an offence against sub-clause 4 is a strict liability offence.

Clause 162 - Regulations may prescribe penalties etc.

 

This clause provides that the regulations under this Bill may provide for penalties of not more than 50 penalty units under the Criminal Code for offences against the regulations. The regulations may also provide for civil penalties of not more than 500 penalty units for a body corporate or 100 penalty units in any other case. The regulations may provide for the payment of a penalty as an alternative to a civil penalty. Any penalty is capped at not more than one-tenth of the maximum penalty that could be imposed by a court for the offence.

Clause 163 - Legislative instruments other than regulations

 

Sub-clause 1 permits the National Regulator to make a Marine Order in relation to any matter that is permitted or required to be made under the regulations under this Bill, except for certain matters. The provisions of sub-clauses 7(4) and 7(5) (definition of domestic commercial vessel ), 8(3a) (definition of vessel ), 150(1) (fees) and 160(1)(a) (accreditation) may only be dealt with in the regulations.

 

The National Regulator is able to make Marine Orders on most matters about which regulations are made. However, certain elements of the provisions relating to fees and certain aspects of the definitions of ‘vessel’ and ‘domestic commercial vessel’ will only be dealt with by regulation. This is because these matters affect the coverage of the scheme, rather than scheme details, and therefore should be dealt with by regulation rather than Marine Orders.

 

It is intended that Marine Orders will be the means for making vessel construction and operation standards, together with near-coastal seafarer standards. Therefore, Marine Orders may require compliance with a nationally endorsed standard, such as the NSCV or the USL Code. The NSCV and the USL Code are sets of standards that have been agreed by Transport Ministers to apply to the operation of domestic commercial vessels.

 

It is intended that Marine Orders will be used to prescribe technical matters, such as:

 

·          procedural matters relating to applications for certificates;

·          criteria applicable to making decisions about certificates;

·          the application of the NSCV and other national standards;

·          procedural matters for review of decisions;

·          returning detained vessels;

·          prescribing matters for EVUs;

·          prescribing matters relating to the accreditation of persons; and

·          prescribing the infringement notice scheme.

 

Marine Orders are a form of government regulation that allows laws to keep pace with rapid technical amendments and technological change in marine safety. Marine Orders are also an efficient means of implementing Australia’s international maritime obligations in Australian law.

 

Marine Orders are made by the Chief Executive Officer of AMSA. However, being legislative instruments for the purposes of the Legislative Instruments Act 2003, Marine Orders are subject to review or scrutiny by the Senate Standing Committee on Regulations and Ordinances, as well as disallowance by Parliament. Marine Orders have been successfully used for some time in relation to the Navigation Act 1912 .

 

Marine Orders under the National Law will be developed by AMSA in accordance with the Australian Government’s Best Practice Regulation Handbook . AMSA will consult with industry and the Office of Best Practice Regulation (OBPR) throughout the development process, including on the need for a RIS if the Marine Order will have a significant regulatory impact on Australian businesses.

 

Marine Orders will be registered on the Federal Register of Legislative Instruments maintained by the Attorney-General’s Department. Registration must occur in order for the Marine Order to take effect.

 

Sub-clauses 2 and 3 provide that a Marine Order is invalid if it is inconsistent with this Bill, but only to the extent of any inconsistency. This means that only that part of the Marine Order that is inconsistent with this Bill will be invalid, while all other parts of the Marine Order that are consistent with the Bill will continue to be valid. This approach does not extend to any inconsistency between Marine Orders.

Clause 164 - Incorporation of material, etc.

This clause permits Marine Orders and the regulations under this Bill to provide for any matters by applying, adopting or incorporating elements of any legislation in force at the time, including the NSCV and the USL Code. This is an important provision as it will enable the national application of those technical standards adopted by Transport Ministers. 

Clause 165 - Regulations may deal with transitional matters

 

This clause permits the regulations under this Bill to provide for transitional and grandfathering arrangements. Such regulations will have effect regardless of any provision of this Bill and may specify modifications to the effect of such provisions. The regulations may permit a specified identifier, document, licence, certificate or exemption issued before or after the commencement of this Bill by a State or Territory to be recognised under this Law, including with requirements and modifications. The regulations may also allow certain provisions to take effect from a date before the regulations are registered under that Act, with no retrospective action to be taken against offences in this case. The power to provide exemptions under this Bill is also important in supporting transitional arrangements (see clause 143).

 

The National Law will include provisions for regulations to implement proposed transitional arrangements. These will allow a smooth transition from individual jurisdictional regulators to the National Regulator. For example, this is the mechanism that will recognise a current state vessel registration as a Vessel Identification and a Certificate of Operation, or a current survey certificate as a Certificate of Survey and a Certificate of Operation for at least the initial period of the reform. In addition, this will also be the mechanism to recognise existing State and Territory certificates of competency as National Certificates of Competency, or as equivalent to the National Certificates of Competency. These transitional arrangements have been developed with industry during lengthy consultation on the proposed Regulatory Plan and ongoing consultations on the crew certification plan and other marine standards.