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Thursday, 22 May 1980
Page: 3085


Mr HUNT (Gwydir) (Minister for Transport) - I move:

That the Bill be now read a second time.

Mr Deputy Speaker,the Shipping Registration Bill is an important step forward in the development of Australia's status as an independent nation. One of the attributes of national sovereignty is the right of a country to determine the conditions for the grant of its nationality to ships. In international law ships have the nationality of the country whose flag they are entitled to fly and it is customary, at least for the larger ships, to require them to be registered in order to secure the right to fly the national flag. The present law governing the registration of ships in Australia, was enacted by the Parliament at Westminister 86 years ago and is contained in Part I of the Merchant Shipping Act 1 894. Originally that law applied throughout the British Empire and it proceeded on the basis that a ship was a British ship if it was owned by a British subject or corporation in any part of the Empire. The Act required all British ships to be registered except certain small ships of less than 15 tons carrying capacity. Registration could be effected at any British port of registry throughout the Empire and this entailed the entry of particulars of the ship and of its owners and mortgagees in the register at the port. The registrar at the port was required to transmit returns at regular intervals to the Registrar-General of Shipping and Seamen at Cardiff and in that way a complete record of all British ships was built up. However this procedure has been abandoned in recent years.

From the commencement of the Statute of Westminister 1 93 1 the various member countries of the British Commonwealth were free to repeal the Merchant Shipping Act 1 894 and to establish their own shipping registers. However, under an agreement negotiated at the same time in 1931 the laws of each country were required to adopt a common status of 'British ship' and to follow closely the provisions of Part I of the Merchant Shipping Act 1894. That agreement, the British

Commonwealth Merchant Shipping Agreement 1931, was rescinded by all member countries by mutual agreement in 1978. Australia is the only major independent member of the Commonwealth, other than Britain itself, to have continued to operate under the Merchant Shipping Act system and the stage has now been reached where it is essential that we legislate to put an end to this anachronism. The Commonwealth countries have recently agreed on common principles for the future operation of their own shipping registers and in accordance with those principles Britain itself is expected to legislate to confine the Merchant Shipping Act system in Britain, to ships more than 50 per cent owned by residents of Britain or companies based in Britain. It is understood that the adoption by Australia of its own national system will simplify the task that the British authorities are undertaking in the United Kingdom.

The principles underlying the present Bill have been the subject of extensive discussion with the States and their views have been taken into account in the framing of the legislation. However, several States have sought an opportunity to examine the Bill itself and there has been widespread interest in the subject since the proposed legislation was announced in January. The Government considers, therefore, that it would be desirable on a subject as important and complex as this to allow the Bill to lie on the table over the winter recess with a view to its passage in the next sittings.

I turn now to a description of the main features of the Bill. The first thing it does is repeal Part I of the Merchant Shipping Act 1 894 insofar as it is part of the law of Australia, thus terminating Australia's reliance on the British legislation and clearing the way for the adoption of an appropriate Australian system. The next provisions spell out the ships that are eligible for Australian registration, either on a compulsory or on a voluntary basis. The main elements are: Defence Force ships are excluded; registration is compulsory only for Australian-owned commercial ships of 12 metres or more in length, other than Government ships, fishing vessels and pleasure craft; Australian-owned ships for which registration is not compulsory may be registered on a voluntary basis; also ships under 12 metres in length that are operated by Australian citizens or residents may be registered; registration is also permitted in the case of foreign-owned ships that are demise chartered to Australian interests.

The procedures for registration, including the evidence of ownership required, the division of property in the ship into 64 shares, issuing of registration certificates and of provisional certificates and the naming and marking of the ship have been made broadly comparable with the British system to ensure that the changeover from that system to the Australian system can be effected with a minimum of inconvenience for shipowners. The same can be said of the provisions of Part III of the Bill which deal with transfers and transmission of title and the registration and priority of mortgages. The proposal to adopt the Australian national flag as the proper national colours for Australian ships has aroused considerable interest if not controversy in some quarters although it was made some four years ago by Commissioner Malcolm Summers in the report of the Commission of Inquiry into the Maritime Industry. Because of the interest in this subject I propose to deal with it at some length.

The present position with regard to merchant ships and other civilian craft, including fishing vessels and pleasure yachts, is covered by a combination of British and Australian laws. The effect of these is that for merchant ships registered in Australia and covered by the Commonwealth Navigation Act 1912 the British Red Ensign defaced by the stars shown on the Australian national flag is declared to be the proper colours by section 406 of that Act. For ships not covered by the Navigation Act, section 73 of the Merchant Shipping Act 1894 and British Admiralty warrants issued under that section prescribe the flag. There is a general warrant dated 25 November 1938 which declares the British Red Ensign defaced by the badge of the Commonwealth to be the proper colours for ships and boats belonging to British subjects resident in Australia. That flag, although described in different words, is the same as the flag prescribed by the Navigation Act for Australian merchant ships. It was subsequently described in greater detail in the Flags Act 1953 which declares that it shall be known as the Australian Red Ensign. In addition to the general warrant of 1938 the British Admiralty has issued individual warrants to certain members of some 16 yacht clubs in Australia authorising them to wear the British Blue Ensign, either undefaced or in a defaced form. The British Blue Ensign is similar to the Australian national flag but without the stars. Approximately 400 Australian yacht owners have been accorded the privilege of using the British Blue Ensign in place of the Australian Red Ensign.

In proposing that the Australian national flag should be the proper national colours for Australian ships the Government has taken into account a number of considerations. The first is that at the present time Australians do not have the right to fly the Australian national flag at sea. Honourable members will recall the statement by the Minister for Administrative Services (Mr John McLeay) on 10 May last year on the extension of the free issue of the national flag when he said:

The National Flag is our symbol of national unity. As such, the Government is concerned to encourage the flying of the National Flag as widely as possible. The proper and dignified use of the National Flag can only encourage national consciousness.

Those are words of wisdom from the Minister for Administrative Services. The Government considers that the philosophy underlying that statement should be a universal one and it should apply at sea as much as it does on land. In coming to that conclusion the Government has noted that the vast majority of other countries, including many Commonwealth countries, have also adopted their national flag as the ensign for merchant ships and other vessels.

There are other reasons for terminating the present usage of the Red and Blue Ensigns. Under the Geneva Convention on the High Seas 1958, to which Australia is a party, ships have the nationality of the country whose flag they are entitled to fly. It follows that if Australia is to confer its nationality on ships it cannot perpetuate the practice of permitting a flag other than a flag of Australian nationality to be used as national colours on Australian ships. The Blue Ensign is a flag of British nationality and the Red Ensign is ambiguous because, as I have mentioned, it is authorised under both British and Australian law.

The international principles apply particularly on the high seas and there is less difficulty in permitting a departure from the Convention's principles in the Australian territorial sea and internal waters. In deference to the concern expressed by the yacht owners who presently have Blue Ensign privileges the Bill permits the continued use of that flag in Australian waters for a period of two years from the commencing date of the proposed new system. I should mention that the commencing date will occur not on royal assent but some time later, possibly up to 12 months after royal assent, depending on how long it takes to complete the necessary administrative procedures and subordinate legislation. It should also be noted that the Bill does not make it compulsory for Australian pleasure craft owners to register in Australia so that a yacht owner who wishes to retain the use of the British Blue Ensign will have the option of transferring the registration of his yacht to a British port of registry outside Australia.

So far as the Australian Red Ensign is concerned, the Bill envisages that on the commencement date it will be replaced by the Australian national flag. In this connection there will be complementary amendments of the Flags Act 1953 and of the Navigation Act 1912. The Flags Amendment Bill is being introduced now and the Navigation Amendment Bill (No. 2) which is still being drafted will be introduced in the next sittings. Perhaps those people who have an interest in flags and protocol could, during the period this Bill will lie on the table, let the Government have the benefit of their views on this subject. I have no doubt that they will respond and their views will be considered. The Bill also preserves the use of the flag of a State or Territory in Australian waters and contains provisions in respect of flag rights for unregistered Australian ships.

The provisions of Parts IV and V of the Bill set out the broad administrative arrangements for the establishment and operation of the Australian Register of Ships. In this area there are some significant departures from the present system. The proposed Australian system is basically a centralised system in that there will be only one register.

The Bill provides that the Register and copies of the Register or of such part or parts of the Register as the Minister directs shall be kept at such places as the Minister directs. It also provides that there shall be at such places in Australia as the Minister determines, an Australian shipping registration office and such number of branch registration offices as the Minister determines. This is a flexible arrangement and it enables a certain amount of decentralisation. However, it does not suffer from the disadvantage of the present system in Australia under which there is a separate register at each of 20 ports of registry and the complete record of all ships registered in Australia is not available at any one place. One consequence of that change is that there will be no ports of registry as such and the practice of marking the ship's port of registry on the stern need not be continued. However, because of the importance of the port of registry concept for legal and other purposes, the Bill makes provision for the adoption of a concept of home port for each ship and the regulations will spell this out in greater detail including the practice of continuing to mark the port on the ship's stern.

Part VI of the Bill contains a number of miscellaneous provisions including power to remove unqualified ships from the Register, the provision of offences and the preservation of State laws relating to the licensing of small, craft for identification purposes.

Finally, the Bill contains transitional provisions that have been framed in such a way as to minimise any inconvenience to the owners and mortgagees of ships registered in Australia under the Merchant Shipping Act. On the commencement date the existing registers will be deemed to form part of the Australian Register and no further action will be required of owners or mortgagees in order to effect the transition to the Australian Register. The Australian Register will of course make use of modern procedures, equipment and documentation and ships will be progressively transferred over to the new documentation after the commencement date. Mr Deputy Speaker, as I mentioned this Bill is an important step forward in the development of our status as an independent nation and I commend it to the House.

Debate (on motion by Mr Morris) adjourned.







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