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Tuesday, 13 May 1980
Page: 2135


Senator CHANEY (Western AustraliaMinister for Aboriginal Affairs and Minister Assisting the Minister for National Development and Energy) - I move:

That the Bill be now read a second time.

I seek leave to incorporate the second reading speech in Hansard.

Leave granted.

The speech read as follows-

This Bill is another of the very special package of Bills being introduced to give effect to the offshore constitutional settlement reached by the Commonwealth and the States at the 1979 Premiers Conference. It deals with the shipping and navigation issues involved, and I think it desirable that I begin by giving, very briefly, some historical background:

The division of responsibility between the Commonwealth and the States in matters relating to the regulation and safety of shipping has been confused and uncertain since Federation. At Federation the Merchant Shipping Act 1 894 provided a common code throughout the British Empire but, under powers provided by that Act, each of the Australian colonies had enacted a local Act to deal with the colonial coasting trade and shipping within the jurisdiction of the colony. The local legislation has continued ever since in the form of State Acts, which have been amended from time to time. In 1912, in exercise of its powers under the Constitution, the Commonwealth passed a Navigation Act which, because of constitutional and administrative complexities, was not brought into force until 1921.

One of the problems created by the Act was that, under section 2, it was expressed to apply not only to ships engaged in interstate, overseas or territorial trade, but also to ships on the high seas or in waters used by ships engaged in interstate or overseas trade. This common waters application, as it conveniently became known, has meant that a ship on an intrastate voyage could be required to comply with State law for parts of the voyage and with Commonwealth law for other parts, depending on the waters traversed. Another problem has been the uncertain application of the Commonwealth and State laws to new kinds of shipping not directly associated with the carriage of passengers or cargo from port to port. The off-shore industry is a prime example of this.

Over the years practical working arrangements evolved between the Commonwealth and

State marine administrations, largely on the basis of the Commonwealth being responsible for interstate, overseas and territorial commercial shipping and the States for the remainder. This resulted in a divergence between the legislative requirements on the one hand and administrative arrangements on the other. The seas and submerged lands decision did not create any new problems in this area but it provided an opportunity to bring Commonwealth and State laws into line with administrative practices. Earlier attempts at this had failed for want of agreement between the Commonwealth and the States. In addressing itself to these problems, the Government took the view that the Commonwealth should leave local matters to the States and should exercise its powers only where this is essential in the national interest. This was reflected both in the Premiers Conference discussions and in consultations between the previous Minister for Transport and his State and Northern Territory counterparts in the Marine and Ports Council of Australia.

The adoption of this approach, which of course reflects the Government's policy of cooperative federalism, has resulted in a comprehensive agreement between the Commonwealth, the States and the Northern Territory which will bring legislative and administrative responsibilities into line. It will also enable the Northern Territory, which is to be treated in the same way as a State, to introduce its own State-type marine laws. This will ensure that the Government best equipped administratively to deal with particular aspects of shipping and navigation will have the legal powers required to carry out that particular function.

The broad terms of the agreement in respect of shipping and navigation, which deals primarily with the survey and issue of certificates to ships, the regulation of ships' crews and the number and qualifications of those on board, are as follows:

The States and the Northern Territory will be responsible for trading ships except those proceeding on an interstate or an overseas voyage. For this purpose trading ships are ships, other than those in the other categories to which I will refer, that carry goods and passengers on a commercial basis. This category also includes tugs, barges, dredges and other marine service vessels.

The Commonwealth will be responsible for trading ships on an interstate or overseas voyage.

The States and the Northern Territory will be responsible for all Australian commercial fishing vessels except those going on an overseas voyage. For this purpose a Queenslandbased fishing vessel which, incidental to its main operations, calls at Papua New Guinea would not be regarded as being on an overseas voyage. The safety standards of foreign fishing vessels in Australian waters except those operating locally on joint-venture operations will be a Commonwealth responsibility.

The States and the Northern Territory will be responsible for all vessels whose operations are confined to rivers, lakes and other inland waterways. New South Wales will be responsible for all vessels operating on the River Murray upstream from the South Australian border.

The States and the Northern Territory will be responsible for pleasure craft including such craft when operated on a hire-and-drive basis.

The Commonwealth will be responsible for the navigation and marine aspects of off-shore industry mobile units- mainly drilling shipsbut the Navigation Act requirements will not apply to the extent that they are inconsistent with the Commonwealth or State Petroleum (Submerged Lands) Acts.

The Commonwealth will be responsible for off-shore industry vessels- mainly oil rig supply, seismic and hydrographic survey vessels- other than those whose operations are confined to the one State or the Northern Territory and its adjacent area of sea. As in the case of mobile units the Navigation Act requirements will not apply to the extent that they are inconsistent with the Petroleum (Submerged Lands) Acts. The procedure for determining whether an off-shore industry vessel is confined to a State or the Northern Territory will depend on the owner making a declaration as to the intended operations of the vessel over a prescribed period. Unless a declaration is made and is accepted by the Minister for Transport following consultation with his State or Northern Territory counterpart, the vessel will be under State or Northern Territory law. The prescribed period is to be three years, to fit in with operational requirements of the industry.

The amendments necessary for the main purpose of the Bill, to which I have just referred, require repeal of the existing section 2 of the Navigation Act and the substitution of an entirely new section, which for ease of interpretation is, as far as possible based on the concept of the particular voyage to be undertaken rather than the concept of a vessel being engaged in a trade.

The substitution of this new section 2 is in fact fundamental to virtually the whole of the Bill. The new section eliminates the common waters basis of application, together with the terms Australian-trade ship', 'limited coast-trade ship' and 'river and bay ship'. As necessary, and in accordance with the agreement, various sections of the Act will expressly exclude the application of section 2, leaving specific parts of the Act, such as those relating to marine casualty inquiries, to apply broadly. The application of section 2 will also be excluded in respect of certain convention requirements until such time as the States legislate to give effect to that convention, when the exclusion will cease to operate. Also in accordance with the agreement, the Bill preserves the Commonwealth's power to issue survey certificates on request of the shipowner to any shipeven one engaged solely on intra-State voyages at the time- to facilitate that ship subsequently making interstate or overseas voyages at short notice.

As the Navigation Act does not at present contain specific provisions in respect of the vessels and floatable structures used in the off-shore industry, the Bill makes appropriate provisions in respect of such craft, which are consistent with the terms of the agreement. The Bill empowers the making of regulations for the control of offshore industry vessels and of the navigation and marine aspects, but not the mining aspects, of off-shore industry mobile units. A new Part Vb, is inserted in the Act specifically to provide for this and in particular to allow for the adoption of any special provisions laid down by the Intergovernmental Maritime Consultative Organisation in respect of such craft.

Under the Navigation Act, seamen are normally employed under what are termed 'articles of agreement', which are signed by the ship's master and the seaman. The special nature of offshore industry operations makes that system inappropriate in respect of service in off-shore industry vessels and mobile units, and the Bill therefore introduces, on an optional basis, a different procedure under which seamen engage on contracts of sea service. Contracts of sea service will provide for seamen to enter into a contract with the owner of a number of off-shore industry vessels or units to serve on one or more of the owner's ships. When a seaman goes on leave or stand down he does not have to be discharged and re-engaged later. The Mercantile Marine

Superintendent is advised, however, of the seamen actually serving on each vessel. The system has in fact been in operation in the off-shore industry for a number of years and is working satisfactorily. Many consequential amendments of the Act are required as a result of the introduction of the provisions for contracts of sea service and in fact these account for almost half of the total number of clauses in the Bill. The explanatory notes on the clauses of the Bill, which are being circulated, will enable honourable senators to establish which clauses are being introduced for this purpose.

Other provisions inserted by the Bill are to ensure that the Minister for Transport has power, in respect of ships imported into Australia either for trading purposes or engagement in the offshore industry- under Commonwealth controlthat remain registered overseas but engage Australian crews, to require them to be subject to the same survey, manning and other safety standards as ships registered in Australia and engaged in the same kind of operations. Without this, two different standards would apply in the Australian industry.

In respect of marine inquiries the agreement provides for the Commonwealth to have the power to conduct an inquiry in any case where a question arises as to the possible cancellation or suspension of a Commonwealth certificate of competency, exercisable in the case of a casualty to a ship under State or Northern Territory survey only if the State or the Northern Territory elects not to hold an inquiry. The Bill excludes the application of section 2 in respect of the provisions relating to marine inquiries and preliminary investigations to enable this aspect of the agreement to be implemented administratively.

With regard to the wreck removal provisions of the Act, section 2 is similarly set aside as the agreement envisages that the Commonwealth, the States and the Northern Territory will continue to have power to order removal of any wreck that obstructs shipping, regardless of the kind of shipwreck or its location. The States are however to have primary responsibility for wreck removal within ports. With the adjustment of the application provisions of the Act so that it will apply mainly to ships proceeding on interstate and overseas voyages, the distinction between ships and vessels is no longer necessary where the terms appear on their own in a general context; where 'vessel' so appears the Bill generally replaces it with 'ship'. The Bill also adjusts the coasting trade provisions in respect of the Northern Territory to place the Territory on the same basis as a State so far as control of its own coasting trade is concerned.

Because of the total repeal of existing section 2, the status quo in respect of the application of the Act to Commonwealth ships is maintained by the insertion of a new section providing the Minister for Transport with appropriate exempting power. The Bill also amends the GovernorGeneral's power under section 423 to suspend application of the Act to fit in with the application provisions of new section 2, retaining the original concept of a power of exemption in respect of small ships not operating commercially. The opportunity is taken in the Bill to update various references in the Navigation Act to courts- with insertions being made to place Northern Territory Courts on the same footing as State Courts- to update a number of monetary figures that have remained unchanged for many years, and to add to the regulation-making powers in respect of orders.

This Bill is a very important component of the historic package of Bills now being put forward. Even by itself, this Bill represents a most significant milestone in the successful application of the Government's policy of co-operative federalism, and I commend it to the Senate.

Debate (on motion by Senator Georges) adjourned.







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