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Special Recreational Vessels Bill 2019

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2019

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

SENATE

 

 

 

 

 

 

 

Special Recreational Vessels Bill 2019

 

 

 

 

 

 

 

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Infrastructure, Transport and Regional Development, the Hon Michael McCormack MP)

 

 

 

 

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY

THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED

 

 



 

 

SPECIAL RECREATIONAL VESSELS BILL 2019

 

OUTLINE

 

The purpose of the Bill is for an Act that establishes a means by which special recreational vessels can opt in to the coastal trading regulatory scheme established by the Coastal Trading (Revitalising Australian Shipping) Act 2012 (Coastal Trading Act). This will allow special recreational vessels offered for hire or charter to be granted temporary licences under the Coastal Trading Act.

 

This Bill will allow the owner, charterer, master or agent of a special recreational vessel to apply for a temporary licence for a special recreational vessel, and will apply the Coastal Trading Act (with necessary modifications) to allow such applications to be dealt with under the Coastal Trading Act and allow temporary licences to be issued to special recreational vessels. The Bill also applies the Coastal Trading Act to the extent necessary to regulate voyages conducted by special recreational vessels under such licences.

 

Financial impact statement

 

Nil

 

 

 



 

NOTES ON CLAUSES

 

Clause 1: Short Title

1.       This Act is the Special Recreational Vessels Act 2019 .

Clause 2: Commencement

2.       Subclause (1) provides that each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

3.       Item 1 of the table provides that the whole Act commences on the day after the Act receives the Royal Assent.

4.       Subclause (2) provides that any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

Clause 3: Simplified outline of this Act

5.       This clause provides a simplified outline of this Act. While simplified outlines are included to assist readers to understand the substantive provisions, the outlines are not intended to be comprehensive. It is intended that readers should rely on the substantive provisions.

Clause 4: Definitions

6.       This clause defines terms and expressions used throughout the Bill in order to avoid doubt and clarify the intended meaning of each word for the specific purposes of the Bill.

7.       A key concept in the Bill is that of ‘special recreational vessel’. A temporary licence under this Bill can only be applied for in relation to a special recreational vessel. A special recreational vessel must:

a)       be designed to be used wholly or primarily for recreational or sporting activities. This requires attention to be directed at the purpose for which the vessel is designed and the design features of the vessel. A vessel that is primarily designed for other activities (eg carrying cargo or towing other vessels) will not be a special recreational vessel.

b)       be over 24 metres in length.

c)       not be used wholly or primarily for carrying cargo. This criterion goes to the use to which the vessel is put at the relevant time. A vessel that meets the other two criteria will not be a special recreational vessel for the purposes of this Bill when it is being used wholly or primarily for carrying cargo, and it will not be possible for a special recreational vessel temporary licence to be applied for in relation to such a voyage conducted by such a vessel.

8.       ‘Cargo’ is defined in the Coastal Trading Act (see subclause (2)), and means personal property carried on board a vessel for which a bill of lading, or a receipt of a similar kind, is issued. Special recreational vessels will not generally carry cargo (as they are required to be designed to be used wholly or primarily for recreational or sporting activities). It is possible, in very limited circumstances, that some cargo may need to be carried incidental to the recreational or sporting activities undertaken by a special recreational vessel. To cater for such cases but to ensure special recreational vessel temporary licences are not used to authorise the carriage of cargo for commercial purposes, the Bill imposes the condition on all special recreational vessel temporary licences that the vessel must not carry cargo for profit on voyages authorised by the licence except where such carriage is incidental to the recreational or sporting activities undertaken (see item 3A in the table in clause 13 of the Bill).

9.       Subclause (2) has the effect that expressions used in the Coastal Trading Act have the same meaning in this Act. Key expressions used in this Act that are defined in the Coastal Trading Act include ‘cargo’, ‘coastal trading’, ‘master’, ‘owner’, ‘passenger’ and ‘vessel’. However, this rule does not operate in respect of phrases that are expressly defined in subclause (1), or where contrary provision is set out in rules made for the purposes of subclause (3).

10.   The phrase ‘voyage’ is expressly defined in subclause (1) in a way that is different to its definition in the Coastal Trading Act. In the Coastal Trading Act, a ‘voyage’ must be from ‘one port to another port’. In this Act, ‘voyage’ includes a movement from and to the same port.

11.   In addition, where the movement of a vessel takes place wholly within the one State or Territory, it is only a ‘voyage’ if one or more of the following criteria (set out in sub-definition (b)) are met:

a)       the movement is, in whole or in part, external to Australia. ‘External to Australia’ is also defined; generally, a movement of a vessel is external to Australia if the vessel travels past the low water mark. The vast majority of special recreational vessel movements would meet this criterion.

b)       the vessel is owned, in whole or in part, by a constitutional corporation. The word ‘owned’ has the expanded meaning corresponding to that of ‘owner’ as defined in the Coastal Trading Act, and a vessel meets this criterion if one or more of the persons listed under the definition of ‘owner’ in the Coastal Trading Act is a constitutional corporation.

c)       the movement of the vessel is within a Territory.

 

Clause 5: Extension to Territories

12.   This Act extends to the external Territories.

Clause 6: Act to bind the Crown

13.   This clause provides that this Act binds the Crown in right of the Commonwealth, and in each of its other capacities.

 

PART 2 - Special recreational vessels temporary licences

 

14.   Part 2 enables the owner, charterer, master or agent of a special recreational vessel to apply to the Minister for a special recreational vessel temporary licence to engage in coastal trading. This is the means by which a vessel opts in to the coastal trading regime and be offered for hire or charter.

15.   Such applications are then considered and dealt with under the Coastal Trading Act as applied by Part 3 of this Act.

Clause 7: Simplified outline of this Part

16.   This clause provides a simplified outline of this part.

Clause 8: Application for special recreational vessel temporary licence

17.   Clause 8 allows the owner, charterer, master or agent of a special recreational vessel to apply for a special recreational vessel temporary licence. If granted, the licence will set out the voyages authorised by the licence. The Coastal Trading Act does not apply in relation to recreational vessels (s 10(f)). However, under Part 3 of this Act, the Coastal Trading Act (with necessary modifications) will apply to special recreational vessels in relation to the licence and in relation to those voyages.

18.   A special recreational vessel temporary licence is limited to a period of 12 months.

19.   The Act requires the application to be in writing and to specify:

(a)  the number of voyages to be authorised by the licence;

(b)  the expected loading dates;

(c)  the number of passengers expected to be carried (which must not exceed 12);

(d)  the kinds and volume of cargo expected to be carried (if any);

(e)  the type and size, or type and capacity, of the vessel to be used to carry the passengers or cargo (if known);

(f)  the name of the vessel (if known);

(g)  the ports at which the passengers or cargo are expected to be taken on board;

(h)  the ports at which the passengers are expected to disembark or the cargo is expected to be unloaded;

(i)   such other information as is prescribed by regulations made for the purposes of paragraph 28(2)(h) of the Coastal Trading Act;

(j)   such other information as is prescribed by the rules.

20.   An application fee prescribed in the Coastal Trading Act regulations must be paid. A person whose application for a temporary licence was refused may re-apply even if the 12-month period has not lapsed.

 

Part 3 - Application and modification of the Coastal Trading Act

 

21.   Part 3 applies the Coastal Trading Act in relation to special recreational vessels to a limited extent. This allows applications for special recreational vessel temporary licences to be handled, granted and dealt with under the Coastal Trading Act, and to allow voyages authorised by such licences to be regulated under the Coastal Trading Act.

22.   It does not have the effect of applying the Coastal Trading Act to special recreational vessels in respect of which there is no special recreational vessel temporary licence, or to special recreational vessels undertaking voyages that are not authorised by such a licence. Where a special recreational vessel is not covered by a special recreational vessel temporary licence, or is conducting a voyage other than one that is authorised by a special recreational vessel temporary licence, the Coastal Trading Act does not apply to the vessel because it would be a recreational vessel for the purposes of that Act (section 10(f)). In particular, section 83 of the Coastal Trading Act does not apply to such vessels and/or such voyages to prevent the vessels from engaging in coastal trading without a licence.

23.   In order for the Coastal Trading Act to operate appropriately in relation to this Act, some text in the provisions of the Coastal Trading Act has been notionally changed.

Clause 9: Simplified outline of this Part

24.   This clause provides a simplified outline of this part.

Clause 10: Application of the Coastal Trading Act

25.   This clause applies the Coastal Trading Act in relation to a special recreational vessel temporary licence, an application for such a licence or for a variation to such a licence, and voyages authorised by such a licence. This limited application is to allow applications for special recreational vessel temporary licences made under this Act to be dealt with under the Coastal Trading Act, and to allow such licences as are granted, and the voyages undertaken under such licences, to be regulated under the Coastal Trading Act.

26.   This clause is necessary because the Coastal Trading Act does not apply to recreational vessels (section 10(f) of the Coastal Trading Act). This clause ensures that, where a special recreational vessel temporary licence has been applied for under this Act, the application can be dealt with and the licence granted under the Coastal Trading Act despite section 10(f) of the Coastal Trading Act. This clause also ensures that the Coastal Trading Act applies in relation to such licences, allowing for example for variations to be made under the Coastal Trading Act in respect of such licences and requiring compliance with the conditions on such licences. This clause also ensures that the Coastal Trading Act applies in relation to voyages authorised by such licences, for example requiring reporting to be undertaken under section 61 and 62 of that Act in respect of such voyages.

27.   Various modifications are made in this Part to the Coastal Trading Act as it applies in relation to special recreational vessel temporary licences. The modifications have been made to ensure the Coastal Trading Act operates correctly in relation to such licences. For example, a reference to ‘temporary licence’ in the Coastal Trading Act is taken to include a reference to a special recreational vessel temporary licence.

28.   Subclause (3) ensures that such modifications flow through to other legislation that refers to the Coastal Trading Act. For example, section 6(3A) of the Occupational Health and Safety (Maritime Industry) Act 1993 (OHSMI Act) provides that the Act applies to ‘a vessel that is used to engage in coastal trading under a temporary licence…’, and ‘temporary licence’ is defined as having the same meaning in that Act as in the Coastal Trading Act. The effect of subclause (3) is that the references to a ‘temporary licence’ in the OHSMI Act are taken to include a special recreational vessel temporary licence.

29.   Similarly, references to a ‘temporary licence’ in the Fair Work Regulations 2009 are also taken to include a special recreational vessel temporary licence because of subclause (3). This has the effect that the current employment law regime applying to vessels operating under temporary licences also applies to the same extent to special recreational vessels operating under special recreational vessel temporary licences. Like other vessels operating under temporary licences, the Australian employment regime under the Fair Work Act 2009 will apply to a special recreational vessel undertaking a voyage authorised by a special recreational vessel temporary licence if the vessel has, in the 12 months prior, undertaken 2 or more voyages authorised by a temporary licence (including a special recreational vessel temporary licence).

Clause 11: Additional general operation of the Coastal Trading Act

30.   This clause sets out general modifications of the Coastal Trading Act as it applies in relation to this Bill. The modifications ensure that references to ‘temporary licence’, ‘voyage’ and ‘application made under section 28’ in the Coastal Trading Act work appropriately in the context of that Act’s application in relation to this Bill

31.   Clause 11 has the effect that, when applied by this Bill in relation to special recreational vessel temporary licences (and applications for and voyages authorised by such licences), the Coastal Trading Act is taken to have the following modifications:

a)       a reference to ‘temporary licence’ included a reference to a special recreational vessel temporary licence. This is to ensure that special recreational vessel temporary licences are treated in the same way as temporary licences under the Coastal Trading Act.

b)       a reference to ‘voyage’ were a reference to a voyage within the meaning of this Bill. The definition of ‘voyage’ in this Bill, unlike that in the Coastal Trading Act, does not include the requirement that it be ‘from one port to another port’. Rather, it could include a voyage to be from a port to the same port. This ensures that, when applied by this Bill, the Coastal Trading Act operates with respect to voyages to/from the same port in the same way as it operates with respect to voyages from one port to another port.

c)       a reference to an ‘application made under section 28’ included a reference to an application made under clause 8 of this Bill. This is to ensure applications for special recreational vessel temporary licences made under this Bill are treated in the same way as applications for temporary licences under the Coastal Trading Act.

Clause 12: Certain provisions of the Coastal Trading Act do not apply

32.   This clause makes additional modifications to the application of the Coastal Trading Act in relation to this Bill. It provides that section 4 of the Coastal Trading Act does not apply in relation to operation of this Bill.

33.   Section 4 of the Coastal Trading Act sets out the constitutional basis for that Act. However, the constitutional basis for this Bill, including this Bill’s application of the Coastal Trading Act to special recreational vessel temporary licences, and applications for and voyages authorised by such licences, is otherwise stated in this Bill. Therefore, the constitutional basis set out in section 4 of the Coastal Trading Act has no application to this Bill and should not apply in relation to the operation of this Bill.

Clause 13: Modification of particular provisions of the Coastal Trading Act

34.   This clause makes further modifications to the provisions of the Coastal Trading Act as it is applied by this Bill. These modifications are necessary to ensure the Coastal Trading Act works appropriately in its application by this Bill.

35.   Subclause (1) contains a table that makes the following modifications:

a)       item 1 has the effect of permitting the owner of a special recreational vessel to apply for a declaration under section 12 of the Coastal Trading Act that brings intrastate voyages by that vessel within the scope of coastal trading. A declaration under section 12 is needed in order for an application for a special recreational vessel temporary licence in respect of the vessel to be made; therefore, section 12 of the Coastal Trading Act (as modified by this item) is applied by paragraph 10(1)(b) of this Bill (as this would be in relation to such an application).

b)       items 2 and 3(a) have the effect that the number of passengers specified in a special recreational vessel temporary licence is the maximum number of passengers to be carried under a special recreational vessel temporary licence, instead of the number authorised to be carried. This allows the vessels to carry a lower number of passengers without contravening the conditions of the licence. For the reasons noted above, voyages conducted under such licences will typically be limited to carrying 12 or fewer passengers.

c)       item 3(b) removes the tolerance limits prescribed in the Coastal Trading Act in relation to the number of passengers carried. This is because a maximum number of passengers will be specified instead, which will typically require voyages to carry no more than 12 passengers.

d)      item 3A has the effect of imposing a condition on all special recreational vessel temporary licences. The condition requires a special recreational vessel not to carry cargo for profit when undertaking a voyage authorised by the licence, other than if the carriage is incidental to the use of the vessel for a recreational or sporting activity. This ensures that vessels conducting voyages under special recreational vessel temporary licences do not carry cargo for commercial purposes (besides where this is incidental to the recreational or sporting use of the vessel).

e)       item 4(a) has the effect of allowing an application to vary a special recreational vessel temporary licence to be made without requiring the licence, as varied, to authorise five or more voyages. This is needed to ensure consistency with the application process established by this Bill (which does not require an application to specify 5 or more voyages), and better reflects the operating model of special recreational vessels.

36.   Item 4(b) and subclause (2) allow the rules to set out additional information that is required to be in an application to vary a special recreational vessel temporary licence under section 51 of the Coastal Trading Act.

 

Part 4 - Miscellaneous

 

37.   Part 4 deals with miscellaneous matters.

 

Clause 14: Simplified outline of this Part

38.   This clause provides a simplified outline of this part.

Clause 15: Delegation

39.   This clause allows the Minister to delegate any of his/her powers or functions under this Act (other than the power to make rules) to an SES or acting SES employee of the Department.

40.   The delegation must be made in writing.

Clause 16: Rules

41.   This clause allows the Minister to, by legislative instrument, make rules. This includes rules that prescribed expressions which do not have the same meaning in the Bill as in the Coastal Trading Act, and that prescribe additional information that must be specified in an application for, and to vary, a special recreational vessel temporary licence.

42.   Dealing with these matters in rules rather than regulations accords with the Office of Parliamentary Counsel's Drafting Direction No. 3.8 - Subordinate legislation. That Drafting Direction states that ‘OPC’s starting point is that subordinate instruments should be made in the form of legislative instruments (as distinct from regulations) unless there is good reason not to do so’.

43.   Consistent with the Drafting Direction, the approach of dealing with these matters in rules (rather than regulations) has a number of advantages including:

a)       it facilitates the use of a single type of legislative instrument (or a reduced number of types of instruments) being needed for the Act; and

b)       it enables the number and content of the legislative instruments under the Act to be rationalised; and

c)       it simplifies the language and structure of the provisions in the Act that provide the authority for the legislative instruments; and

d)      it shortens the Act.

44.   Due to these advantages, the Drafting Direction states that drafters should adopt this approach where appropriate with new Acts.

45.   The Drafting Direction states that matters such as compliance and enforcement, the imposition of taxes, setting amounts to be appropriated, and amendments to the text of an Act, should be included in regulations unless there is a strong justification otherwise. The Bill does not enable rules to provide for any of these matters. This is clarified by the subclause that specifically prevents rules from including these types of matters.

46.   This clause also clarifies that the rules made under the clause are a legislative instrument for the purposes of the Legislation Act 2003 . Under that Act, legislative instruments and their explanatory statements must be tabled in both Houses of the Parliament within 6 sitting days of the date of registration of the instrument on the Federal Register of Legislation. Once tabled, the rules will be subject to the same level of parliamentary scrutiny as regulations (including consideration by the Senate Standing Committee on Regulations and Ordinances), and a motion to disallow the rules may be moved in either House of the Parliament within 15 sitting days of the date the rules are tabled.

Clause 17: Sunset provision

47.   This clause provides for the automatic repeal of the Act at the end of 30 June 2021.



 

Statement of Compatibility with Human Rights

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

Special Recreational Vessels Bill 2019

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

Overview of the Bill

The Bill is for an Act to allow special recreational vessels to apply for temporary licences under the Coastal Trading (Revitalising Australian Shipping) Act 2012 , and for related purposes.

Human rights implications

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

Conclusion

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

 

Minister for Infrastructure, Transport and Regional Development,

the Hon Michael McCormack MP