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Maritime industry - Commission of Inquiry - Report - Australian maritime legislation, 30 June 1976


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Parliamentary Paper No. 315/1976

The Parliament of the Commonwealth of Australia

AUSTRALIAN MARITThffi LEGISLATION

Commission of Inquiry into the Maritime Industry

Report

June 1976

Presented by command 2 November 1976 Ordered to be printed 18 November 1976

The Government Printer of Australia Canberra 1977

Commonwealth of Australia 1976

ISBN 0 642 02169 4

hy F. D. AII\J'-SO' . Gtwt..: rnment Printa l'f Au :-i tralw

MARITIME INDUSTRY COMMISSION OF INQUIRY

Office of the Commissioner

Your Excellency,

PO Box547 Canberra City ACT 2601

Telephone 47 4611

June 1976

I have the honour to present my fourth Report in accordance with Letters Patent dated 25 September 1973. This Report deals with Australian Maritime Legislation.

His Excellency, The Honourable Sir John Kerr, A.K., G.C.M.G., K.St.J., Q.C., Governor-General,

Government House, CANBERRA.

(M.M. Summers) Commissioner

AUSTRALIAN MARITIME LEGISLATION

PART I

PART I

REPORT ON AUSTRALIAN MARITIME LEGISLATION

CONTENTS

PART I

SUMMARY OF PRINCIPAL RECOMMENDATIONS

/Contents of Part II are shown at the

-beginning of that Par!7

PAGE

1

4

REPORT OF THE COMMISSION OF INQUIRY

INTO THE MARITIME INDUSTRY

ON

"The need for revision and modernisation

of existing legislation".

(Item 1 in Terms of Reference).

This is a report on one of the more intricate aspects

of maritime practice. There are a number of pieces of legislation. The most important is the Navigation Act 1912-1972. That Act and its Regulations provide the basic legislative control of the activities of Australian merchant shipping. In

addition to the Navigation Act this Report deals also with the relevant British Merchant Shipping Acts and with other Australian maritime legislation.

2. In this Report as in other Reports of this Commission

there will be two parts. Part one sets out the principles and

broad proposals and summarises the recommendations of the Commission. Part two sets out in some detail the provisions in the legislation to which the Commission has directed its attention. It deals at greater length with the views expressed

to the Commission and explains the basis on which the Commission came to its more specific conclusions.

3. The Australian Navigation Act was an attempt back in

1912 to adapt the existing British shipping legislation to Australian conditions. The substance of the proposed Act was discussed in 1907 at a conference in London at which United Kingdom, Australia and New Zealand were represented. The Act

as it finally was produced in Australia was very largely based on the British Merchant Shipping Act 1894, which in turn was a consolidation of earlier British shipping legislation.

4. When the British Acts and the Australian Navigation

Act were first introduced there were two main purposes for the legislation. The first purpose was to provide seamen with protection from unscrupulous employers who might seek to take advantage of seamen who were illiterate and incapable of protecting themselves. The second was to implement safety

measures designed to halt the steep rise in the rate of shipping casualties which had occurred in relation to British ships in the middle of the nineteenth century.

S. In many respects the Navigation Act still reflects

British attitudes at the end of the nineteenth century.

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24400/ 76-2

6. As did the British legislation at that time the

Navigation Act applied many of its provisions to the whole of the merchant fleet of the British Empire. Since then most Commonwealth countries have enacted their own legislation relating to their own ships. In respect of such matters as the

employment of seamen Great Britain itself has now restricted the application of its legislation to men employed in ships registered in Great Britain. 7. The Commission endorses the principle of Australian

law for Australian ships. One of the Commission's major proposals is a new Navigation Act which in its main provisions should apply only to Australian ships, and which in general should treat all other ships, whether British or other flag, on

the same basis, as non-Australian ships.

8. It seems to the Commission that it is surely time that

Australia should endeavour to cut altogether its dependence on British shipping legislation. The new legislation should replace all those provisions of the British Shipping Merchant Acts which are still part of the law of Australia. Their

replacement will give the opportunity to have in Australia appropriate provisions specifically designed to meet the needs of the Australian maritime industry.

9. In particular, Australia does not have its own

registry of ships. Ships are registered in Australia by Australian Customs officers who in effect act as agents of the Government of Great Britain. All ships registered in Australia are included in the British registry. There are no provisions

in the Australian Navigation Act for registration of ships in Australia's name. 10. The Australian Navigation Act as it now stands is

designed to control wider aspects of the operation of Australian shipping as well as the original nineteenth century purposes. For example, it imposes requirements related not only to the welfare of the crew and the structural safety of

the ship but also to its manning, navigation, loading and unloading; to the carriage of dangerous cargoes, pollution of the sea and wreckage and salvage.

11. The result is that the Navigation Act, in Australia

as in other countries, has been a corner post in the whole

structure of maritime operations. It provides a basis for the work and discipline of the men on board the ship, the amount that a ship can carry, the way she is handled, the way she is

navigated and many other down to earth requirements of a ship at sea.

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12. It has been a long time since Iirst Navigation

Act was introduced. Shipping has changed greatly in the meantime, as has the environment in which the industry operates. This Commission holds the view that the Navigation Act should be rewritten completely and, very possibly, put into the form

of several separate Acts.

13. The present legislation if not revised can impede the

natural course of the industry's development because of the rigid nature of its provisions. In fact some parts of the legislation which do this are already ignored in practice and should be taken out of the Act.

14. This Commission has received numerous submissions

(both oral and written) on deficiencies in the present form of the Navigation Act and on proposed changes.

15. Shipowners and unions do not of course have the same

interests, nevertheless both expressed a desire to have a more flexible and simpler form of legislation. This Commission agrees with that point of view and suggests a number of changes in Part II of its Report.

16. Not only is it necessary to modernise the language of

the Act but it is essential to remove the archaic concepts on which some of its provisions are now based. One memorable example is the concept of 'supplying seamen to be entered on board a ship' which today has little relevance to the manner in which seamen choose the ships on which they want to work.

17. To achieve this it is recommended that first the

legislation should concentrate on principles and should not concern itself with detail as it does at present. Second that more use should be made of regulations and other forms of subsidiary procedure for which the amendment processes are

simpler and quicker.

18. The Commission is also convinced that in relation to

crew, for example in Part II of the Act which deals with masters and seamen, matters which are industrial in content should no longer be included in the Act. Such matters are better left to the established Australian processes of dealing with industrial matters.

19. A more flexible form of shipping legislation could be of

enormous importance at this stage in the development of the Australian maritime industry. The industry is going through a special set of circumstances. First, coastal shipping has reduced considerably. (More is written on this subject in the

Report on the Future of the Australian Maritime Industry). Second, Australian participation in overseas shipping has increased. (Mainly due to the Government line A.N.L.).

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20. The significance of these circumstances in relation

to a new Navigation Act is to ensure that the new legislation should not be cast in a form that will hinder the industry's development.

21. From the coastal shipowners' viewpoint one regrettable

feature of the Australian maritime legislation has been the uncertainty as to whether the Commonwealth or the State law applied. However it seems to the Commission that as a result of

the recent High Court decision in the Seas and Submerged Lands Act Case the Commonwealth may have powers to legislate in respect of ships engaged in coastal navigation both interstate and intrastate (advice by the Attorney-General's Department on the matter is included in Part II of this Report).

22. One result of this decision might be that much of the

uncertainty could be removed and a greater degree of uniformity achieved in Australian maritime legislation. This would undoubtedly be an improvement in the environment within which Australian shipowners operate.

23. At this point the Commission presents a summary of its

principal recommendations. The summary is based on the views expressed in both Parts of the Report and consequently many of the recommendations are on a more specialised basis than is this part of the Report. Nevertheless the Commission considers it

desirable to provide a summary at this point in the Report.

SUMMARY OF PRINCIPAL RECOMMENDATIONS IN RELATION TO THE NEED FOR REVISION OF EXISTING LEGISLATION

Registration of Ships

1. There is a need for urgent action to enact Australian

legislation relating to the registration of ships in Australia.

2. The new legislation should require commercial ships of a specified size owned in Australia to be registered and should allow smaller commercial ships, and commercial ships owned by non-Australians which are operating in or from Australia, to be registered. The legislation should also

allow other ships such as fishing boats or pleasure craft registered.

3. The provisions relating to title to and property in ships should follow the existing pattern of similar provisions in the British legislation with some simplification and modernisation.

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Other British Maritime Legislation Applying in Australia

1. All those provisions which are still part of the law in

Australia should be repealed and in the case of the provisions relating to the limitation of shipowners' liability should be replaced by Australian legislation. 2. Action should be taken to remove the limitation on the

States' powers to enact shipping legislation imposed by sections 735 and 736 of British Merchant Shipping Act.

The Navigation Act 1912-1972

1. The application of the Act generally should be extended, as far as is legally practicable to intrastate vessels and to vessels engaged in non commercial activities.

2. The 'master and seamen' provisions should no longer be expressed to apply to visiting British ships.

3. The manning of should no longer be fixed in schedules

to the Act or in Regulations but the existing system of determining disputes as to the complement to be provided should be continued.

4. A completely new system of legislation for the issue of certificate and licences should replace the existing provisions, bringing the concept into line with the Commission's earlier Report on training for sea-going personnel.

5. There should be no exclusion from employment in the industry as a disciplinary measure unless the case has been the subject of a recommendation by the Marine Council. Where a decision is made to exclude a person from employment in

the industry, there should be an appeal to the Administrative Appeals Tribunal against tha t decision.

6. The agreement should be made between the crewman and the employer. The agreement should be in writing but its general terms should not be prescribed but should be arrived at by employer/employee negotiation.

7. The imposition of fines by the master for disciplinary offences on board ship to be discontinued and replaced with a provision establishing a system of reports of misconduct to the Marine Council.

8. Desertion should no longer be treated as a criminal offence but as a breach of contract.

9. The Act should not cover disciplinary offences committed on board a foreign ship, nor should a foreign seaman who has deserted be forcibly conveyed back on board his ship.

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10. Provision should be made to cover running or continuous as well as periodical surveys of ships.

11. The Act should empower the making of regulations to encourage safe working practices on ships and to allow the adoption of IMCO standards for the carriage of dangerous goods and bulk cargoes.

12. The existing provisions relating to the carriage of passengers should be replaced with a power of detention if the Minister is satisfied that a ship cannot proceed without endangering the comfort, health or well-being of

its passengers. 13. The coasting trade provisions should be simplified and the coasting trade extended to include intrastate and off-shore activities and the provision of shipping services

(e.g. tugs, dredges and the like).

14. The provisions relating to Courts of Marine Inquiry should be recast so that the existing Court is replaced with an administrative tribunal whose only function should be to inquiry into a casualty. The power which the Court now has to cancel or suspend certificates should be exercised within the Department and the decision should be subject

to review by an Administrative Appeals Tribunal.

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AUSTRALIAN MARITIME LEGISLATION

PART II

PART II

CONTENTS

SECTION 1 THE BRITISH MERCHANT 1

SHIPPING ACTS

SECTION 2 THE NAVIGATION ACT 27

1912-1972

SECTION 3 OTHER AUSTRALIAN .MARITIME 207 LEGISLATION

INFORHATION RECEIVED 217

SECTION 1

CONTENTS

THE BRITISH MERCHANT SHIPPING ACTS

REGISTRATION OF SHIPS

MASTERS AND SEAMEN

LIMITATION OF SHIPOWNERS LIABILITY

THE LIMITATION OF THE POWERS OF

STATE GOVERNMENTS TO ENACT SHIPPING

LEGISLATION BY REASON OF SECTIONS

735 and 736 OF THE MERCHANT SHIPPING

ACT 1894

Sche dule I

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3

20

21

22

23

SECTION 1. THE BRITISH MERCHANT SHIPPING ACTS.

The attached schedule (Schedule I) lists the United Kingdom shipping legislation which is part of the law of Australia.

REGISTRATION OF SHIPS

Part 1 of the Merchant Shipping Act 1894, Registry (ss.l-172), applies in Australia. Under its provisions, British ships are registered at ports in Australia (and at Port Moresby and Samarai). Customs officers of the Australian Department of Business and Consumer Affairs are registrars and

act under the instructions of the British authority administer­ ing Part I of the Merchant Shipping Act.

Legally there are no 'Australian' ships. At law, they are British ships registered in Australia under the U.K. Merchant Shipping Act.

The British law relating to the registration of ships has been substantially unchanged for over 120 years.

It was originally intended to cover the whole of the merchant fleet of the British Empire (later the Commonwealth) and any ship owned within the Commonwealth is still eligible to register as a British ship under the provisions of the 1894 Act and, for example, under the New Zealand Act. Some Common­

wealth countries have enacted legislation which limits regis­ tration under their own flags to resident owners. As more Commonwealth countries enact national registration laws the concept of a single 'Commonwealth' fleet registered under

uniform laws becomes more unrealistic.

The Report of the Rochdale Committee of Inquiry into Shipping in 1970 referred to the existing Commonwealth Shipping Agreement of 1931 which was designed to support this concept and r ecommended that the present arrangement for registration

of British ships be reviewed in consultation with other Commonwealth governments.

While no formal action appears to have been taken by the U.K. Government to consult and review the arrangements, the United Kingdom itself is considering proposals for a revision of the registration provisions of the Merchant Shipping Act

of 1894.

The revision proposals, made in June 1975, which are of interest in the context of an Australian proposal to replace the Merchant Shipping Act with new Australian legislation,

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"Qualifications for U.K. Register and obligation to register It is proposed that a new United Kingdom register be set up on which all ships of 12 metres or more in length

wholly owned by citizens of the U.K. or dependent territories, or by companies established in and having their principal place of business in the U.K. or dependent territories, would be required to be registered. Failure to register should be punishable by fine. Ships more than SO% owned by such citizens or companies may be voluntarily registered.

Registration Procedure

The Secretary of State should be empowered to make regulations governing the conduct of the register to be kept and administered by a Registrar of United Kingdom ships. Such regulations should provide for a centralised system of registry which

could replace the present system at a convenient time after the provisions had been enacted. The intention would be that all registry transactions should be completed centrally whilst advice would be obtainable at some local offices.

Transfers, mortgages, documents

The Secretary of State should be empowered to make regulations on these. In general these should follow the kind of provisions now in Part I of the 1894 Act.

National Character and Flag

These provisions should follow those in the 1894 Act except that the use of the Red Ensign should be restricted to ships of the United Kingdom and dependent territories ships.

Transitional Provisions Transitional provisions would be needed to deal with the position of Commonwealth-owned ships at present registered in the U.K. and dependent territories, and U.K. owned ships at present registered in the independent

Commonwealth.

Small Craft Register

U.K. (and dependent territories) ships under 12 metres in length should be permitted to be registered on a Small Craft Register. This Register should not provide mortgage and title facilities although it is for consideration whether the recording of mortgages should be provided for. Here again, the Secretary of State should be empowered to make regulations on the conduct of the Register".

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Australia is the only major nation of the Commonwealth which does not have its own system of registration.

Australia has an international obligation to ensure that ships flying the Australian flag on the high seas acquire the right to fly that flag under conditions fixed by Australia and that they are seen to operate under the jurisdiction and control of Australia.

For many years there has been pressure for the enact­ ment of Australian legislation to cover registration. The question assumed special importance in the late 1960s for practical reasons associated with the entry at that time of Australian flag ships into overseas trades and with the

allocation of conference rights. The bar to effective legislation by the Australian Parliament has been the Australian Constitution which it was believed did not give the Commonwealth Government power to

enact provisions comparable to those contained in Part I of the Merchant Shipping Act, 1894.

In 1969 it was thought that it would be necessary for the Commonwealth and the States to jointly legislate to enact such provisions. Joint legislative effort posed problems. After new argument had been presented a view was developed

that the Commonwealth could validly legislate to establish a register supported by provisions similar to those included in Part I of the Merchant Shipping Act.

On this basis legislation was to be prepared which, if the ships concerned were not registered in another British Commonwealth country and were not used or intended to be used exclusively on internal waters, would:

(1) give Australian shipowners the right to fly the Australian flag by

(2)

(a) requiring in a manne r similar to Part I

of the Merchant Shipping Act of 1894, all ships of 15 tons or more to be

registered, and (b) permitting ships of less than 15 tons,

capable of being used on the high seas, to be registered:

in respect o f ships owned in another Commonwealth country, permit such ships to be registered in Australia provided they were mainly engaged in Australian coastal operations or in trade to and

from Australia.

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The Bill had not been drafted in December 1972 and with the change of Government, the authority lapsed.

In June 1972, in connection with a proposed revision of the Navigation Act and in order to gauge reactions to its proposals, the Department of Transport circulated summaries of the proposed provisions for registration of ships to

interested parties seeking their views and comments. The summaries contained the following brief outline of the proposals:

"1. The basic criterion for eligibility to register to be ownership by:

(a) an Australian citizen or protected person;

(b) an Australian company; or

(c) a government authority in Australia.

"2. If the ship in its operations has a close

connection with Australia it may be registered if owned in a Commonwealth country.

"3. The requirement to register to be applied to all

ships owned in Australia of 15 gross tons or more, capable of navigating on the high seas, not already registered in another Commonwealth country or in Papua New Guinea.

"4. It is not an offence to omit to register such a

ship but if not registered the ship may be

detained and it does not obtain any of the

benefits of recognition as an Australian or British ship. "5. British ships already registered in Australia to be deemed to be registered under the new Act.

"6. The Australian National Flag (not the red ensign defaced) to be the proper national colours.

"7. The Certificate of Registry to be evidence of registration. "8. Provision to be made for registering mortgages, but, except where necessary to make the ship

available as security, the mortgagee is not deemed to be the owner of the ship.

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"9. A mortgagee, by registering, obtains priority over a prior equitable mortgage, and among reg istered mortgages priorities are determined not by the date of the mortgage but by the

date of its being recorded in the register.

"10. The proposed Act not to be an exclusive code for acquiring or disposing of interests in ships registered in Australia. Although they cannot be noted in the register, protection is given to

interests arising under contracts and other equitable interests so that such interests may be enforced in the same manner as in respect of

any other personal property.

"11. In so far as a ship registered in Australia is

concerned, similar restrictons to those now applied by section 48 of the Australian Coastal Shipping Commission Act 1956-1969 on the transfer or mortgage of a ship or a share in a ship to be

written into the new legis lation."

Most parties to whom the propos als were circula ted agreed and the following is a summary of the more important views expressed at the time (August 1973).

State Government authorities e xpressed concern to protect the pos ition of State l e gi s l a tion requiring regis tra ­ tion of boats and small ves s els. Sea-going unions held the view:

(a) that obligation to register should b e impos ed on

( i ) - all s hips own e d in Australia or

benef icia lly owned by Australians

(ii) all ship s having a close connection

with or usually operating in Au s tralian trades

(iii) all ships enga ged in the coasting trade

(iv) all ships bas ed in Australia engaged in

off- s hore ope rations;

(b) that for such ships registration as a British s hip

in another Commonwealth country should not be permitted;

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(c) that the Minister's consent should be required for all transfers from the register irrespective of the ship's size or age;

(d) that provision should be included similar to the British requiring a record of the name and address of the managing owner of the ship.

Shipowners and ship brokers objected to the existing provisions (in the Australian Shipping Commission Act) requiring the Minister's approval to the transfer of certain ships from the register, and his approval to the transfer of registered mortgages to non-Australians.

Shipowners wished to retain the right to engage in the coasting trade if registered in another Commonwealth country.

Since 1973 the matter has been under continuing and close study. Because of all the work which has been going on

in this field, the Commission did not specifically seek submissions on proposals for legislation relating to regis­ tration of ships in Australia. It does not however believe that there has been any substantial change in attitude by the interested parties and has made its assessment of the need for revision in this area on this assumption.

On the general need for such legislation the Commission stresses the need for urgent action. The lack of an Australian register for Australian ships is a s ource of difficulty and inconvenience in Australia's dealings with other countries in maritime matters and is detrimental to its prestige.

Being convinced of the urgent need for such legis­ ation the Commission submits a broad outline of the sort of legislation it feels is required to cover the registration of ships in Australia.

The main and the fundamental reason for setting up such legislation is to enable Australia to grant its nationality to Australian ships, to give them the right to fly its flag

and to exercise its jurisdiction and control in administrative, technical and social matters over such ships. It raises impor­ tant policy issues.

The second reason is to provide a register and the meChanics of registration and to record evidence of titl e to, and interests in, ships. While it i s of importance to ship­

owners, it does not r a ise issues of great importance. Indeed

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its provisions would not differ essentially from the existing provisions in the British legislation and the Commission does not propose to deal at length with them.

Reverting to the main reason mentioned above, there have been over the years three constraints, which, although they may have lost force recently are still worth some consideration.

They arise from:

The British Commonwealth Merchant Shipplng Agreement

1931

The Convention on the High

Seas 1958

Articles 2, 3 and 4 of the Agreement

envisage that all ships registered in ports of the parties shall be British ships and that the registration laws passed by the parties to the Agreement

shall be substantially the same throughout the British Commonwealth and, so far as is possible, based on

Parr I of the Merchant Shipping Act, 1894.

It seems to the Commission that the parties would now agree that the concept of uniform registration laws throughout the British Commonwealth

is now outmoded. It seems to the

Commission that the agreement cannot now hold Australia to anything like a replica of Part I. Indeed as has

been mentioned in this Report the British themselves are considering a revision of Part I which departs fundamentally from the original concept.

Article 5 of the Convention to which Australia is a party provides that there must exist a genuine link between the State and the ship and

the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over all ships flying its flag.

There has not been any clear definition of what constitutes 'a genuine link' but traditionally the genuine link has been ownership and control of the ship by a person who is a citizen of, or a corporate

body which is established in, the flag state.

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The constitution

The main feature associated with a so­ called flag of convenience is that the country of registry allows ownership and/ or control of its merchant vessels by non citizens (Rochdale Report Page 51).

It seems to the Commission that engagement in the coasting trade or regular engagement in trade to and from Australia would constitute a genuine link even if the ship were foreign-owned, but practical diffi­ culties (e.g. the loss of eligibility

to remain on the register) may arise where a ship temporarily c e ases to b e engaged in such trades.

As has been mentioned, it was earlier thought that the legislation should not be extended:

(a) to ships used or intended to be

used exclusively on internal waters

(b) to ships not capable of operating

on the high seas

(c) to ships in the course of

construction

(d) other than on a voluntary basis,

to foreign-owned ships even if engaged in the coasting trade or regularl y engaged in trade to and from Au s tralia

Following the rece nt decision of the High Court in r espect of the Seas and

Submerged Lands Act 1973 it would seem to the Commission that the Commonwealth Government may have sovereignty over the t e rritorial sea and that the power

in the Constitution to leg islate with r e spect to external a f fairs authori s es the Parliament to pas s laws controlling and dealing with matters and events which are geographically beyond Australia's low water mark. If this

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assumption is valid the Constitutional constraints which seriously inhibited the , freedom to consider some alter­ natives when the earlier proposals were under consideration is no longer

of major significance.

As the Commission sees it there remain three areas of policy issues which are to be considered. In making its recommendations on these matters the Commission, in addition to considering the restraints it has mentioned above paid atten­

tion to the views expressed to it in relation to the three

issues.

Obligation to Register

The issue is on whom shall the obligation to register a ship in Australia be imposed and what will be the criteria in relation to size of ship and its ownership which will determine whether it must be registered or whether it may be

registered.

It is understandable that the unions would wish to see compulsory registration in Australia for all the ships on which they feel their members are already serving or have a right to serve as crew.

For those ships which have a genuine link with Australia, voluntary action by non-Australian owners to register in Australia is possible. It may be inhibited by laws applying to the owner requiring registration in his own country.

It seems to the Commission however that compulsory registration in Australia of all such ships would encounter grave practical and legal difficulties.

Even the case of ships which are substantially owned by Australians raises problems.

A ship registered in New Zealand trading to and from Australia may be an example. Such a ship could be owned by a body corporate established in New Zealand or another Common­ wealth country (which is substantially owned by Australian

interests). The ship is however properly registered and entitled to fly the New Zealand flag under the conditions fixed by New Zealand legislation. The possibility of devising any effective legal provision compelling such a ship to be registered in Australia seems to be remote.

Of course, if the owners wish to register in Australia, the establishment of a company in Australia which owns the ship presents no practical difficulties.

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The owners of ships based in Australia, operating in the coasting trade, or in trades to and from Australia, are almost exclusively 'British'. They are generally familiar with the British system and value their existing right to

register in any Commonwealth country. The view has been put that Australian shipowners should not be placed at an economic disadvantage, and if they so desire they should have the same commercial advantages in relation to registration of their ships as are enjoyed by other British shipowners.

The Commission recommends that owners of:

(i) All sea-going ships say 10 metres or more in

length owned by:

(a) an Australian citizen;

(b) a body corporate established under and subject to the laws of Australia having its principal place of business in Australia should be obliged to register such ships and such ships of say less than 10 metres in length may be registered.

(ii) Sea-going ships say 10 metres or more in length

owned by a citizen or national of any country other than Australia or by a body corporate established or registered outside Australia provided the ship is engaged in the coasting trade or in operations to and from Australia may register them.

Enforcement of Compulsory Registration

This issue relates to how enforcement of compulsory registration, where it applies, is to be achieved. The existing British legislation provides no monetary penalty for failure to register but a ship which is

required to be registered and is not so registered may be detained until it is registered. This seems to the Commission to provide a means whereby, at the discretion of the U.K. authorities, a British owned ship not registered as a British ship may use a U.K. port without being forced to register in

the U.K.

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To the Commission it appears to be a useful and flexible provision. In those cases in which the Government would wish to enforce registration the ship would be in a trade which included visits to a port in Australia and effec­

tive action to detain the vessel would be available.

It should, however, be noted that the new British proposals referred to earlier in this section (failure to register punishable by a fine) indicate that the British authorities may have reservations.

The Commission recommends that any ship which is required under the Act to be registered may be detained until it is registered (no specific penalty for failure to register but an unregistered ship to be subject to all charges and responsibilities of a registered ship with none of the privileges).

Restrictions on Transfers of Registration or Mortgages

The issue here is the restrictions which should be imposed on transfers of registration of ships from the register or on transfer of mortgages recorded in the register to non-Australians.

The unions' motive in making their request for greater powers to restrict transfers appears to be to ensure that ships are not transferred from the Australian register in order to escape the industrial consequences of being an Australian registered s hip. It seems to the Commission

that to attempt to prevent the transfer of a ship from the

register to achieve such an objective is in most circumstances to attempt the impossible. If the ship can no longer be

operated commercially under Australian conditions and if the eligible owners wish to or have disposed of it to non eligible owners there is nothing to be achieved by preventing its transfer from the register.

The Commission recommends the existing pattern of restrictions on transfers from the register should be retained and that there should be no restrictions on the registration of mort­ gages in the names of non-Australians or the transfer of mortgages to such persons.

The foregoing deals with the main principles which have to be decided in framing the system of registration for Au s tralia n ships. The remaining provisions it seems to the Commission should follow the British pattern because of our

great dependence, particularly in relation to property, on the British common law.

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The Commission proposes legislation which adapts the British provisions to Australian conditions, and eliminates out of date requirements such as certificates of sale and mortgage. Greater flexibility can also be achieved by covering

in regulations and not in the Act most of the actual procedures associated with registration.

In order to give an idea of the scope and general

pattern of the legislation which the Commission feels would be appropriate, the following outline of provisions is submitted:

Provisions Relating to Nationality and

Eligibility td Register

is:

Any ship may be registered in Australia provided it

(a) owned in Australia and not registered in

any other country; or

(b) owned wholly or in part in a country

other than Australia but not registered in that or any other country and is

mainly engaged in Australian coastal operations or in trade to and from Australia. Obligation to Register

Every ship owned in Australia of say 10 metres or more in length that is eligible to be registered must be registered under the Act.

Any ship required to be registered that is not registered: (a) is not to be recognised as, or entitled

to the privileges or benefits of an Australian ship;

(b) may be detained until it is registered.

The obligation to register shall not apply to:

(a) pleasure craft;

(b) of primitive build;

(c) fishing vessels;

(d) vessels used or intended to be used

exclusively on internal waters,

but such vessels may register if eligible,

14

Application for Registry

Application for registry shall be made to the Registrar at the place which is proposed as the Port of Registry of the

ship and shall be accompanied by evidence of ownership and a list of not less than three alternative names.

Name, Number, Survey, Measure and Marking of Ships

On application for registry in Australia, written approval to be required to the name proposed which cannot be changed without written approval.

Each ship to be surveyed and measured for tonnage before registration and be p e rmanently marke d in a manner p r esc ribe d b y r egul a t i on .

A power to be provided to modify marking requirements in respect of specified classes of ships, e.g. small ships, fishing vessels.

The regulations to prescri be the manner in which the tonnag e o f a ship shall be ascert ain ed and a tonna ge certificat e

i ssu ed .

Entries in the Register

Entries in the register to be made in accordance with the following rules:

(a) the prop erty i n a ship sha ll b e d i v ided into

sixty-four s h a r es ; (b) subject to the provisions of the regulations and the Act, not more than sixty-four individuals or corporate bodies shall be entitled to b e

r eg istered at the same time as owne rs of a ny one

ship; but this rule shall not a ffect the

b e neficia l title of any number of per s ons or o f

a n y comp any represented by or c l aiming unde r or through any registered owner or joint owner ;

15

(c) a person or corporate body shall not be

entitled to be registered as owner of a fractional part of a share in a ship; but any number of

persons not exceeding five may be registered as joint owners of a ship or of any share or shares

therein;

(d) joint owners shall be considered as constituting one person only as regards the persons entitled to be registered, and shall not be entitled to dispose in severalty of any interest in a ship, or in any share

therein in respect of which they are registered;

(e) a corporation may be registered as owner by its

corporate name.

Procedures for Registration

A Registrar of Australian ships to be appointed to maintain a register of ships following the existing British pattern of registry procedures relating to initial registra­ tion, registry of alterations to ships, changes of ownership

etc. with minor modifications to suit Australian conditions. Provision should be made for the registration of Government ships.

Certificates o,f Registry When the name and other required particulars of a ship have been entered in the register, the owner should be granted a certificate of registry to be used solely for purposes connected with the lawful operation of the ship.

In the event of a registered ship being lost etc.

the certificate of registry to be delivered up and the entry in the register closed.

Provisional certificates and temporary passes to be issued in appropriate circumstances to unregistered ships moving to a port where the ship is to be registered.

In respect of certain ships and classes of ships particulars of the Master and of changes of Masters to be endorsed on the certificate of registry.

- 16 -

Alterations and Transfers of Registry

If a ship is altered to the extent that it does not

correspond with the particulars in the register, the owner to advise the registrar so that the alterations can be registered.

Transfers of registry from one port to another in Australia to be permitted.

National Character and Flag

A ship registered in Australia is to fly the proper colours at all times and no other ship to be permitted to fly

that flag. The Australian National Flag to be the proper colours for all ships registered under the proposed legislation.

Penalties will be provided for wrongfully using the national flag or unduly assuming Australian national character on board a ship owned by a person who is not qualified to own a ship registered in Australia.

There will also be a penalty for concealment of a ship's Australian character by a master or owner of a ship registered under the new Act.

Particulars of Managing Agent The name and address of the ship's manager, managing owner or other person entrusted with the management of the ship shall be entered in the register in respect of every ship except a pleasure yacht or a fishing vessel.

PROVISIONS RELATING TO TRANSFERS AND TRANSMISSIONS OF PROPERTY N SHIPS

Transfers of Ownership

A registered ship or a share in such a ship may be

transferred to a p erson or a body corporate qualified to own an Australian ship by bill of sale.

The bill of sale to be produced to the registrar who will enter in the register the name of the transferee as owner of the ship or share.

Provision to be made for special transfer arrangements in the case of death, bankruptcy, etc.

- 17 -

Where the transferee is not qualified to own an Australian ship the Court may order a sale of the property on behalf of that person provided that, if proper application for sale is not made within the time allowed or if the Court

refuses the order, the ship or share transmitted may be subject to forfeiture.

A person shall not transfer a ship exceeding 200 gross tons which is not more than 25 years old to a person

who is not qualified to register the ship and the registration of such a ship shall not be removed from the register except with the written consent of the Minister.

Mortgages

A registered ship or a share therein may be made a

security for a loan or other consideration and recorded in the regi s ter.

Mortgages are to be recorded by the registrar strictly in the order in time in which they are produced to him. If

there is more than one registered in respect of the same ship or share, the mortgagees are entitled to priority one over the other according to the date and hour on which each mortgage was recorded.

Except as may be necessary for making the ship or share available as a security, the mortgagee is not by reason of the mortgage deemed to be the owner of the ship or share.

Where there are more persons than one registered as mortgagees of the same ship or share, a subsequent mortgagee is not, except by order of the Court, to be empowered to sell

the ship or share without the prior concurrence of every prior mortgagee.

A registered mortgage is not to be affected by any act of bankruptcy committed by the mortgagor after the date of record of the mortgage.

A registered mortgage of a ship or a share may

be transferred to any person.

Trusts and Equitable Rights

No notice of any trust, express or constructive, to be entered in the register. Subject to any rights and powers

appearing in the re gister, the registered owner of the ship or ashare to have power absolutely to dispose of the ship or the share and give e ffectual receipts.

- 18 -

Beneficial Interests

Beneficial interests may be enforced by or against owners and mortgagees in respect of their interests in ships in the same manner as in respect of any other personal property. Beneficial interest to include interests arising under contract and other equitable interests.

Any person beneficially interested other than by way of registered mortgage, in addition to the registered owner, to be subject to all the penalties imposed by the new Act on owners of ships or shares in ships.

Exemptions

These provisions relating to transfers and trans ­ missions of property shall not apply to ships to which the obligation to register does not apply, unless the registered owners specifically seek their application.

- 19 -

MASTERS AND SEAMEN

This relates to five sections (ss.221-225) of Part II of the Merchant Shipping Act of 1894 which still appear to be part of the law of Australia. In so far as the laws of the United Kingdom are

concerned these sections were repealed by the Merchant Shipping Act of 19 70 which enacts new provisions to cover the manner in which seamen who are in breach of their contract to serve on a ship registered in the United Kingdom are to be dealt with

anywhere including Australia.

The sections should no longer apply to British ships in Australia and in so far as they are still part of the law

of Australia should be repealed. (The 19 75 Bill proposed they be repealed).

- 20 -

LIMITATION OF SHIPOWNERS LIABILITY

The existing law in Australia under which a shipowner is permitted to limit his liability in certain circumstances in respect of all personal and property claims against him arising out of an incident associated with his ship is still contained in the Merchant Shipping Acts listed in Schedule 1.

The provisions referred to above are no longer the United Kingdom law on this subject having been substantially amended by the Merchant Shipping (Liability of Shipowners and Others) Act 1958 which does not apply to Australian legislation.

This Act was enacted by the United Kingdom to give e f fect to the International Convention relating to the limita tion of the Liability of Owners of Sea-going Ships (Brussels 1957) (see the Commission's Report on International Maritime Conventions).

As is indicated in that Report the Commission under­ stands that action to ratify this Convention is in train.

Proposals were made in Clause 74 of the 1975 Bill to insert a new Division 1 (Limitation of Liability) of a new Part VIII of the Navigation Act.

The 1975 Bill also proposed a Division 2 (Exclusion of Liability) in the new Part VIII which proposed the insertion of a provision in the Navigation Act in almost identical terms to those of section 502 of the Merchant Shipping Act 1894 which

is now part of the law of Australia and wa s to be repealed.

The Commission also agrees there is need for revision of the Navigation Act to incorporate the substance of s.502 and to repeal its application to Australia as part of the Merchant Shipping Act. ,

- 21 -

THE LIMITATION OF THE POWERS OF STATE GOVERNMENTS TO ENACT SHIPPING LEGISLATION BY REASON OF SECTIONS 735 AND 736 OF THE MERCHANT SHIPPING ACT 1894.

In 1971 the Government proposed to pass legislation seeking enactment by the U.K. Government of legislation to remove the restrictions imposed by sections 735 of the U.K. Act on the powers of the State Parliaments to legislate in

respect of shipping matters.

With the change of Government in 1972 it was decided not to go ahead with this proposal on the grounds that the

matter could best be resolved by referendum. The proposed referendum has not been held.

Since early 1971 officers of the Department of Transport have been working in close liaison with State marine officials to produce a uniform code of shipping standards for commercial vessels. This work has proceeded under the auspices of the Association of Australian Port and Marine Authorities on the understanding that the Australian Government would give effect to the code in respect of vessels it controls, and each

of the States would legislate to apply the code to vessels which it controls. Considerable technical progress has been made.

The difficulty that arises is that if the States are to be required to legislate to give effect to the code,

they would be inhibited from doing so because of the restrictions imposed by sections 735 and 736 of the Merchant Shipping Act unless some action is taken to remove these restrictions. An alternative is for the Australian Government to occupy the whole

field to the exclusion of the States. It seems to the Commission that there is a need either

to remove the restrictions by amendment to the Merchant Shipping Act or to make it apparent that the Commonwealth can and will exercise legislative control in respect of all vessels in Australian waters.

Earlier the second alternative was thought to be subject to challenge by the States and in any case it involved some embarrassment in a situation in which technical discussions were continuing on the understanding that complementary legis­

lation was to be used to give effect to the uniform code.

Now that the High Court has given its decision in the Seas and Submerged Lands Act Case the situation in this respect may be cleared but in view of the legal and Commonwealth/States policy implications the Commission refrains from further suggestion other than pointing to the need for action which will allow the enactment of effective legislation in respect of shipping matters for all types of ships.

- 22 -

t f N (J.l

SECTION

1.

UNITED

KINGDOM

SHIPPING

LEGISLATION

WHICH

IS

PART

OF

THE

LAW

OF

AUSTRALIA.

Act Merchant

Shipping

Act

1894

Provisions

Applicable

in

Australia Part

I

Registration

of

Ships. Part

II

Masters

and

Seamen

(ss.

221-225)

Part

VIII

Liability

of

Shipowners

Provisions

Relating

to

the

Maritime

Industry

Provides

for

the

registration

of

British

ships

in

Australia

and

for

evidence

of

title

to

property

in

those

ships.

Provides

for

the

arrest

and

imprisonment

of

deserters

from

British

ships

and

for

punishment

summarily

for

general

offences

against

discipline. Limits

the

liability

of

shipowners

in

cases

of

loss

of

or

damage

to

goods

or

loss

of

life,

injury

or

damage

to

a

fixed

amount

based

on

the

tonnage

of

the

ship.

SCHEDULE

I

Comment Appears

to

apply

in

Australia

in

respect

of

seamen

belonging

to

British

ships

(repeal

was

proposed

in

the

1975

Bill).

Replacement

with

new

Australian

legislation

was

proposed

in

the

19 7 5

Bill.

Act N ..,.

Provisions

Applicable

1n

Australia Part

XIV

Supplemental

(ss.

735

and

736)

Provisions

Relating

to

the

Maritime

Industry

s.735

provides

that

the

legislature

of

any

British

possession

may

not

enact

legislation

repugnant

to

the

Merchant

Shipping

Act

1894

without

the

approval

of

Her

Majesty.

s.736

provides

that

the

legislature

of

any

British

possession

may

not

enact

legislation

regulating

its

coasting

trade

except

in

accordance

with

specified

conditions

(including

suspension

until

Her

Majesty's

pleasure

thereon

has

been

signified).

Comment

Does

not

apply

to

Australian legislation

but

applies

to

State

legislation.

Act Merchant

Shipping

(Liability

of

Shipowners)

Act

1898 Merchant

Shipping

(Liability

of

·

1

Shipowners

and

N

Others)

Act

1900

U1 1

Merchant

Shipping

Act

1906

Provisions

Applicable

in

Australia (See

Part

VIII

of

MSA

1894

above)

(See

Part

VIII

of

MSA

1894

above)

Part

V Miscellaneous

ss.S0-53

Registration

of

Ships,

s.80

Registration

of

Government

Ships

(see

Part

I

of

MSA

1894

above).

Provisions

Relating

to

the

Maritime

Industry

Extends

the

prov1s1ons

of

Part

VIII

of

the

1894

Act

to

ships

in

the

course

of

construction

and

to

the

owners,

builders

and

other

parti

es

interested

in

such

ships.

Limits

th e

liability

of

harbour

authorities.

Comment

SECTION 2

THE NAVIGATION ACT 1912-1972

CONTENTS

PAGE

GENERAL 29

PART I INTRODUCTORY 33

PART II MASTERS AND SEAMEN 37

PART III FOREIGN SEAMEN 89

PART IV SHIPS AND SHIPPING 93

PART v PASSENGERS 125

PART VI THE COASTING TRADE 129

PART VII WRECKS AND SALVAGE 157

PART VIlA PREVENTION ETC. OF POLLUTION BY OIL OF AUSTRALIAN COAST, COASTAL WATERS AND REEFS 175

PART VIII LIMITATION OF LIABILITY IN RESPECT OF GOVERNMENT SHIPS 17 9

PART IX COURTS OF MARINE INQUIRY 181

PART X LEGAL PROCEEDINGS 191

PART XI MISCELLANEOUS 197

- 27 -

GENERAL

Proposals for revision other than those made by the Commission

The Commission in making its assessment of the need to revise the Navigation Act has dealt with the Act as amended to 1972.

The Commission has however noted with interest the proposals for revision contained in the 1975 Bill which had not been passed by the Parliament before the change of Government in 19750

The substance of these proposals is best described in the general summary of the Explanatory Notes accompanying the Bill which summarised the matter as follows: "Off-shore Industry Vessels

The amendments apply the crewing and conditions of service provisions and the appropriate safety provisions of the Act to such vessels as oil rig

supply and servicing vessels and seismic and hydrographic survey vessels and make a large number of small consequential amendments. They also provide for safety requirements to be imposed, by

special regulations or directions, on the marine or navigation-type aspects of various kinds of mobile structures such as self-elevating platforms, submersible and semi-submersible units and other kinds of drilling

and construction vessels and barges, referred to in the legislation as 'off-shore industry mobile units'. "Visiting ,British Ships

These amendments, which also involve many small consequential amendments, alter the application of Part II, which relates principally to crews for ships and their conditions of service, so that the Part does not apply to visiting British ships and their crews at Australian ports. This has been necessitated by a change

from the established system by recent British legislation relating to these matters. The new British legislation applies to visiting British ships during the period of their stay in Australia. It is therefore inappropriate

for Part II of the Navigation Act to continue to apply to

such vessels.

- 29 -

"Ship Movements Reporting

A new Division 14 at the end of Part IV to meet the

need for requirements for the reporting of the movements of ships around the Australian coast, which was introduced following the loss of 'Blythe Star' and has been operating on a voluntary basis since that timeo

"Limitation of Shipowners' Liability

A new Part VIII is being substituted (the former Part VIII applies only to Government ships) which will supersede provisions of the U.K. Merchant Shippipg Acts as the law in Australia on limitation of shipowners' liability. This Part has been drawn to apply to as wide a range of vessels

as is constitutionally possible. The provision will give effect to the 1957 Convention on the Limitation of the Liability cf Owners of Sea-going Ships, and inter alia will raise the very low limits contained in the Merchant Shipping Act as they applied to Australia, to 1957 Convention levelso

"Miscellaneous (Excluding Officers' Certificates of Competency)

These amendments concern a heterogeneous group of matters where there is a particular need for amendment at this time and include certain drafting and machinery amendments, but they do not constitute a complete revision of the Navigation Act-a matter which will follow from the report of the Maritime Industry Commission of Inquiry.

"Officers' Certificates of Competency These amendments are of particular importance and scope in that they pave the way for the general upgrading in

training and qualifications of ships' officers to be associated with the establishment of the Australian Maritime College. They provide for basic changes (to be brought into operation at the appropriate time) in

respect of the prescribing of ships' crews and the structure of the quali±ications required for ships' officers. They include recognition of foreign certificates and have been developed in close consultation with both sides of the maritime industry."

The Commission realises that the Bill was introduced by a Government no longer in power but its contents were to a

large extent technical and the Bill was supported in the House of Representatives by the Opposition.

- 30 -

It seems to the Commission that except in relation to provisions which proposed to amend Part VIII of the Act (Limitation of Shipwoners Liability) no political objections of substance were raised in the debate in the House of

Representatives and the Commission understands that a Bill in somewhat similar terms is now being considered for resubmission to the Parliament.

In view of the general technical rather than political significance of the proposals and their special relevance to the subject of the Commission's proposals and the revision of the Act the Commission deems it worthwhile to offer the

following comments on the proposals which were included in the Billo

Off-shore Industry Vessels

It is proposed by the Commission that the definition of the coasting trade should include engagement in exploring or the exploitation of the natural resources of the continental shelf of Australia or the seabed of the Australian coastal sea from a place in Australia.

It would follow then that the provisions of the Act which the Commission recommends should be applied to ships engaged in the coasting trade would apply to off-shore ships in a similar manner to that proposed in the Billo

Visiting British Ships

The Commission proposes as does the Bill that in general Part II of the Act should not apply to visiting British ships or their crews,

Officers' Certificates of Competency Amendments which will cover the proposals in the Bill are suggested but should also extend to qualification of seamen other than officers, are recommended by the Commission.

Ship Movements Reporting

The proposal for a new Division 14 is supported by the

Commission.

31

Miscellaneous

As many of the miscellaneous amendments proposed in the Bill as seem to the Commission to be appropriate have been included in the Commission's recommendations.

One Navigation Act or Separate Acts

The Commission in its consideration of this term of reference was daunted by the length and the complexity of the Navigation Act itself. When faced with its size and the diversity of its contents the reader's immediate reaction is

to feel that it should be broken up into separate pieces of

legislation. The employment and industri al provisions (Part II); the coasting trade provisions (Part VI), the private maritime law and the proposed provisions relating to registration of ships could each be the subject of separate legislation.

The matter is of course one for Parliamentary Counsel who drafts the legislation, and for the Department of Transport which administers it, to consider. The Commission feels that the advantages of separate such as ease of future amendments

and the opportunity for greater specialisation in narrower areas, have a great deal of value.

32

PART I. INTRODUCTORY (SECTIONS 1-9).

This Part (Part I of the Navigation Act) is mainly

concerned with provisions which are introductory and explanatory to the Act. For example the system of arrangements and interpretation of the Act is set out. Revision will be necessary as a natural corollary to revision of the major provisions. The Commission is recommending that the Navigation Act should be completely redrafted rather than revised.

There are however two provisions which warrant special mention at this point. They are:

Application of the Act

The Act applies to all ships, British and foreign, and the term British ships includes what would loosely be known as Australian ships.

It is convenient to mention also in this introductory section that fishing boats, pleasure cra ft and other ships not carrying passengers or goods for reward are exempted from many of the provisions of the Navigation Act. These

exemptions flow from Orders in Council made under section 423 but they are mentioned here at the beginning to make plain that the general thrust of the Act in respect of

'Australian ships' is towards passenger and cargo ships engaged in the usual course of commercial operations.

Section 2 has the effect of restricting the application of the Act in respect of sh i ps defined in the

Act as Australian trade ships. The Act does not apply to

them unless they are engaged in interstate, territorial or overseas trade or commerce, which has the effect of excluding the intrastate ship from its provisions.

The provision appears to have been designed to restrict the application in accordance with beliefs current in the early 1900s when the Act was first introduced as to the

extent of the legislative power of the Australian Government.

Various High Court decisions given since that time have substantially widened the powers of the Commonwealth Government in relation to navigation and shipping.

- 33 -

A recent decision of the High Court upholding the validity of the Seas and Submerged Lands Act 1973 is an important example. The significance of this judgement is still being considered by the Commonwealth Government authorities both as to the law and as to the administrative arrangements between State and Commonwealth maritime administrations.

However, in this Report the Commission is concerned with its importance in relation to the Australian Parliament's power to legislate with respect to navigation and shipping. It would seem that the Federal Parliament may pass laws controlling and dealing with matters and

events which are geographically beyond the low water mark. This could mean that the Federal Government may legislate with regard to navigation both intrastate and interstate. Intrastate shipping has, until now, been regarded as a matter on which only State Governments could legislate.

In the light of this decision it seems to the Commission that Section 2 as it now stands may unnecessarily limit the application of the Act in respect to intrastate shipping. The legislative control of ships engaged on intra­ state voyages in regard to such matters as safety, surveys, loadlines and manning now depends on State Government legislation. The requirements of such legislation are not always identical nor consistent with the requirements of the Commonwealth Navigation Act. (Ships sometimes move from employment in intrastate trades to engagement in other trades). The ,uncertainty of application together with the lack of uniformity can be a serious disadvantage to operators of such ships ,

Following an initiative taken in 1968 by the Australian Transport Advisory Council, the Association of Australian Port and Marine Authorities with the assistance of the Department of Transport commenced in 1971 the task

of establishing a set of uniform principles which might form a basis for State and Australian legislation in this area.

It is understood that progress has since been made and the Commission was inf ormed that the ultimate aim was general acceptance of these uniform principles, their translation into Australian and State legislation followed by an agreed allocation of the administration of the se uniform laws between the Australian and the State maritime authorities.

Work is proceeding and the Commission has given som e thought to the possible effects of the High Court's decision in the Seas and ·subm erged Lands Act Case. It seems to this

Commission that the decision has important implications in

34

relation to the nature of the revision of the Navigation Act which may now be practicable.

The Commission believes it is realistic to assume that the decision has the effect of increasing the Commonwealth's power in this area. As a corollary it may also have the benefit that

it removes a lot of the present uncertainty as to the extent of

State and Commonwealth responsibilities for maritime legislation.

In the absence of any specific indication of the exact extent of the Commonwealth's power to legislate in regard to shipping the Commission has concluded that the most useful and practical course it can adopt is to indicate throughout this Report the policy it recommends in respect of the application of

the specific parts or sections of the Act to the different classes and kinds of ships. This will be done throughout this Report. The extent to which these policies can be translated into legislation will depend on the view which is eventually

taken of the scope and extent of the Commonwealth's legislative powers in regard to shipping.

Section 7. Definition of the Coasting Trade.

A similar problem exists in regard to this section which sets out the circumstances in which a ship is deemed to be

engaged in the coasting trade. Although, as has already been mentioned, the Act generally is expressed not to apply to intrastate ships. the coasting trade by definition (section 7) includes the carriage of passengers or cargo from a port in a

State to another port in the same State.

Because of the terms of section 2 however this does not necessarily bring intrastate ships within the requirement to be licensed to engage in the coasting trade. The matter is

important. It will be further discussed and in more detail in the section of this Report on Part VI of the Act.

Some clarification of the position comes from the advice given to the Commission by the Secretary, Attorney­ General's Department which is included in this Report as an attachment to Part VI.

From this advice the Commission believes that the powers of the Commonwealth Government to control shipping may extend to the control of ships such as intrastate ships excluded from the application of this Act at present.

- 35 -

PART I I. MASTERS AND SEAMEN.

DIVISION I. (SECTIONS 10-12).

Application of the Part - s.lO

The existing section applies the provisions of Part II which deal with the conditions of employment on board ships to all ships which it refers to as 'British' ships. A British ship

is a ship registered in a Commonwealth country or a ship recognised by the law of a Commonwealth country as a ship belonging to that country o Hence a ship which in Australia is known loosely as an Australian ship is in fact a British ship which has been registered in Australia under the British Merchant

Shipping Act.

The Commission holds the view that the application of Part II should be to Australian ships and to ships working in or

operated from Australia. More specifically Part II should apply to all ships registered in Australia, or engaged in the coasting trade or in off-shore operations based on Australia.

Some have argued that its provisions should apply to all ships irrespective of where they are registered which are wholly or more than half owned in Australia and which are closely connected with operations in, or are engaged in regular

trades to and from, Australia. The Commission is not prepared to go as far as this but it considers it is no longer appropriate

that Part II should apply to all British ships, particularly to visiting British ships and to their crews whilst they are at Australian ports.

The Part II of the Act appl1es to all

British ships within jurisdiction. In respect of such ships it applies provisions which follow the pattern of the British Merchant Shipping Acts. It applies its provisions to visiting British ships. It seems to the Commission that this is not in

accord with the international principle that every country must exercise jurisdiction and control in administrative technical and social matters over its own ships. (Article 5 of H1gh Seas

Convention 1958).

The provisions of this Part and of Part II of the

British Merchant Shipping Act were virtually the same from 1912 to 1970. In concept they were identical provisions applying to ships of the British Empire and later of the British Commonweal th o

37

In 1970, however, the British Merchant Shipping Act provisions relating to masters and seamen were amended. The British provisions are no longer in line with the Australian provisions. Furthermore the new British Act (British Merchant Shipping Act 1970) is expressed to apply to ships registered in

the United Kingdom wherever they are and therefore it applies to visiting British ships whilst in Australia. In such circumstances it is clearly inappropriate that the Australian Act should apply to British ships in general.

Accepting the principle that Australia should exercise jurisdiction and control over all of its own ships the Commission therefore recommends that Part II should be applied to all ships which are engaged in what might be termed 'Australian operations', that is, it should cover the employment of crews engaged under Australian industrial conditions and over which Australia has an international duty to exercise its jurisdiction

and control.

Such ships should include:

(a) those that are required to be

registered in Australia; (b) those whose owners have elected to register them in Australia;

(c) other ships engaged in the

coasting trade.

Registry of Seamen - s.lZ

With one or two exceptions, representatives of both owners and unions favoured retention of the existing statutory requirement to keep a general register of seamen (s.lZ). (The administrative arrangements associated with the keeping of the register are discussed in the Commission's Report on Maritime Standards and Controls where the Commission suggests the provision be retained).

- 38 -

DIVISION 2. MERCANTILE MARINE OFFICES AND SUPERINTENDENTS -(SECTIONS 13-13A).

This Division provides for the establishment of Mercantile Marine Offices and the appointment of superintendents and deputy superintendents (s.13-13A). The Commission sees no need for change (although considerable changes in the functions of these officials is discussed later).

- 39 -

DIVISION 3. OFFICERS - (SECTIONS 14-26).

Officer Manning (ss. 14-14A)

The present provisions prohibit the taking of an Australian or a British ship to sea unless the ship carries a certifitated master and the prescribed (s.14) or the ordinary complement (s.14A) of officers for that ship.

The special circumstances in which a ship may sail with less than the prescribed or the ordinary complement are also set out.

The prescribed complement of officers may be fixed either: (a) in Schedule I to the Act which for deck

officers is based on the criterion of net tonnage and length of voyage and for eng1ne-room officers on nominal horse power of engines and length of voyage, or

(b) in regulations made under the Act, or

(c) in orders made by the Minister.

The fixing of complements in a schedule setting out a scale of manning (a) may have been appropriate in earlier years, but the existing schedules were made in 1912 and are now completely out of date and are no longer appropriate to modern

ships.

The schedules to the Navigation (Manning and Coasting Trade) Regulations which set out the numbers to be carried in specified ships, related to ships not now in commission and were repealed in 1971. There is acceptance by shipowners and

by some unions of the view that the existing schedules could be deleted. The Commission shares this view and is of the opinion that the schedules to the Act have no significant part to play in determining manning. It recommends that the revised legislation should make no provision for fixing prescribed manning in schedules or in regulation.

The prescription or the variation of complements of officers and men is now exclusively dealt with by Ministerial orders published in the Gazette. As the procedures by which the actual numbers and grades of officers are determined or are varied are almost identical with those used to determine the prescribed crew (ss. 43, 44) the whole matter is dealt with in

that portion of this Report which deals with Division 7 of this Part.

- 40 -

Certificates of Competency, Permits to Serve, Certificates of Service, Examinations etc. (ss. 15-26)

Certificates of competency for masters and mates of ships were first introduced in Britain about the middle of last century after an inquiry into the possible causes of the increasing number of shipping casualties. Certificates of competency for marine engineers were introduced at a later date when sail was replaced by steam as a motive power for ships.

This Commission's first Report (Report on training requirements for sea-going personnel) looked at the training available to men seeking these certificates and recommended a new approach based on the establishment of a Central Maritime

College. The quality of this training will, when the college is established in practice, warrant fundamental cha nges in how the legislation handles these certificates.

The outstanding feature of the existing provisions in the Navigation Act is their rigidity. A certificate of competency can only be obtained by an examination conducted by the Department of Transport and the grades and sub-grades of

the certificates which may be granted are specified in the Act. A certificate can only be held by a British subject. A person who is not a British subject may be issued with a permit to

serve which has the same validity but may be revoked by the Minister at any time.

There are no provisions for the issue of certificates to seamen other than officers. They may, however, be 'rated' in certain capacities on attaining qualifications which are set out in detail in the Act (ss. 39, 39A to 39D, 121).

The existing Act specifies that any certificate issued in anqther country which is recognised in Britain as being equivalent to a British certificate shall be accorded the same recognition in Australia. The Act also contains a

provision that any certificate recognised under a law in force in the United Kingdom shall be recognised under the Australian Navigation Act.

Another provision in the Act which is found also in the British legislation provides for the issue o f 'Certificates of Service'. Such a certificate has the same force as a

certificate of competency and can be issued to certain n ava l officers with prescribed qualifications, without examination. A procedure fo r depriving a certificate holder of his certificate if he is medically unfit is also laid down in the

Act (s .ZO) . The Minister may require the man to submit himself

for medical examination and may then, if appropriate, require him to surrender his certificate. If this happens the Minister may, and if the person concerned so requests shall, call f or an

inquiry to be held by a Court of Marine Inquiry.

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The Commission has considered a different approach to the subject of ensuring that ships are manned with properly certificated personnel. It begins from the position that each man will acquire from some source, the Central Maritime College

in Australia or some similar institution overseas, certain qualifications for which he will hold a certificate or a diploma issued by the appropriate authority controlling the institution. This 'certificate' as evidence of his having successfully completed a course of training will always be his own property and cannot be taken from him.

It does not however entitle him to serve in an

Australian ship in any specified capacity. The Australian maritime authority, after assessing the worth and the relevance of his 'certificates' and on being satisfied that he has had the necessary experience and sea service and that he is a fit and proper person will issue him with a 'licence' to serve in

an Austra lia n ship in the specified capacity. Without this licence he cannot serve in that capacity in such a ship and the

licence is subject to renewal, suspension and cancellation in the circumstances set out in the legislation which are referred to later in this Report.

This general idea and approach was the subject of discussions between the Commission and interested parties and forms the basis for the recommendations which the Commission now makes.

The need for greater flexibility in the legislation to facilitate the implementation o f a new certificate structure was generally accepted.

The question of wh e the r or not a licence should be

issued to a person who is not an Australian citizen raised some issues. There is gener a l a greeme nt that the existing provision which prevents c ertain certificate s from being issued to a pers on who is not a British subject should now be related

to a person who i s not a n Australian citi z en. However varied

views are held on the question of whether or not there should be any restriction on the i ssue of a licence on the basis of

nationality. The obj ect of the provision is to ensur e that in a time

of emergency Australian ships are not under the control of masters or office rs who by their nationality owe a llegia nce to a state other tha n Australia. However, it can be argued that in

such a circumstance a person who held a c e rtificate a nd was not an Au s tra li a n citi z en would then not be reg a rded a s a fit a nd

proper person to hold such a certific a te. The c ertifica te could be suspended or c ancell e d on that groun d in a situation o f national em e rg e ncy. Indeed there ma y be a need for a provision which g av e unfette red power to do so.

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It has also been suggested that as some other Commonwealth countries which use the criterion of citizenship for the issue of licences may only be prepared 'to recognise' licences issued to Australian citizens, there may be an advantage in Australia having a 'licence and permit' system. However, in the interest of simplicity the Commission recommends

the acceptance of the principle of issuing a licence to an Australian citizen or to a non-Australiano

In discussions with the unions the point was raised by them that assuming a licence was renewable, could renewal to a non-Australian be refused or deferred on the ground that there was insufficient employment available for existing Australian

licence holders. In other words the unions raised the question of whether or not regard should be paid in the policy of

issuing or renewing licences to the rights and priorities of Australians and non-Australians.

The Commission is of the view that the legislation in setting out the circumstances in which a licence could be cancelled, suspended or 'not renewed' by the issuing authority would relate only to the holder's fitness, qualifications or

suitability to serve on a ship in the specified capacity. It

is envisaged that any decision relating to dealing with licences in such a way as to give priority of employment to any particular class of licence holder would be a matter for Government and would not be within any discretion given to the

issuing authority under the Act.

With regard to certificates of service which have in the past been granted without examination to persons who have attained certain ranks in the Navy, the Commission takes the view that such a certificate should no longer be issued. The Commission

expects that the subjects which men will be required to take as part of their courses at the Maritime College as training for the merchant service, will include a number of subjects which men trained for work on naval ships, will be unlikely to have studied.

The Commission has in mind such matters as commercial law and industrial relations. Against this background the Commission proposes that in future naval officers should be required to complete so much of the courses at the Maritime

College as cover subjects in which they have not been trained, before being granted Certificates of Competency in the merchant marine. In future the exemption of naval personnel from formal merchant marine certificate requirements should be confined to

those areas of study which are common to both their training as naval officers and merchant marine requirements.

43

Representatives of unions and shipowners were invited by the Commission to comment on the existing section 20 which provides for the taking of a certificate from a holder who is medically unfit. The un1ons made the point that the procedure

should be extended to ratings as well as officers, if a

certificate structure were to be developed for ratings. All agreed that the procedure should be simplified and a suggestion that appeal should be to a panel of medical practitioners rather than to a Court of Marine Inquiry seemed to be worth some consideration. However the Commission decided that its proposals for appeal developed later in this Report cover the point in that the constitution of an Administrative Appeals Tribunal can include persons with appropriate medical

qualifications. The Commission's Report on training requirements for sea-going personnel, already mentioned stressed that the present certificate system needs to be completely restructured.

Assuming the college proposed by the Commission is set up and is operating properly the issue of certificates as evidence of having acquired specified qualification could be performed by the College in cases where the study or training was undertaken under its auspices o

However, from the evidence before it and as a result of

its discussions with representatives of unions and employers the Commission makes the following points in relation to the need for revision in this area:-(a) The .regulations should provide for the issue

of a certificate by an authorised institution or an official. It would be evidence that the

applicant had completed a required course of training and instruction or had attained the specified qualifications. Once granted, this certificate cannot be taken from the holder. (b) The evidence that a person holds the

qualification required to comply with a prescribed manning scale should not be the possession of the certificate referred to in (a) above but the fact that the person

is the holder of a licence issued by the

Department of Transport (or the Coastal Services Authority, see Commission's Report on Maritime Standards and Controls) certifying that he is a fit and proper person, fully qualified and capable

of performing the duties of the position described on the licence. This licence is subject to

suspension or cancellation and will require renewal at stated periods.

44

(c) The circumstances and manner in which a holder may be deprived of his licence or in which his licence is not renewed and the right of appeal which he should have,

should because of its importance to the holder and his livelihood be dealt with in the Act, and not in the regulations.

As the Commission sees it these licences issued under the regulations by a person authorised by the Minister should be capable of being suspended or cancelled by that person if he has reason to believe that the holder is:

(a) unfit medically to perform the duties required of him (section 20), or

(b) incompetent or guilty of misconduct (section 6C), or

(c) for any other reason not a fit and proper

person to hold a licence or permit (including the circumstances covered by section 420).

A licence if issued for a specified period should be renewed unless the person authorised by the Minister has reason to believe that the holder is not a fit and proper person to

hold such a licence.

(d) On the other hand, a person who:

(i)

( i i ),

holds the required academic qualifications for the issue of a licence for a particular

trade and is not granted a licence or permit

of that grade, or

is the holder of a licence which is suspended or cancelled (or not renewed if renewable)

should have the right to apply for a review of the

decision to an Administrative Appeals Tribunal in accordance with the Administrative Appeals Tribunal Act 1975, and

(e) it would be desirable to create in the Act the

offence of going to sea as a qualified person without holding the required licence and the offence of employing as a qualified person a person who does not hold the required licence.

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In addition, in its report on training already mentioned, the Commission recommends that members of the crew other than officers should be trained in courses which might be offered not only at the proposed Maritime College but also

in State technical colleges. It refers (para. 3.2,2,5) to the need to establish a certificate structure for crewmen who are not officers. Consequently the regulations should provide for the granting of certificates and licences to ratings as well as

to officers.

46

DIVISION 4. SUPPLYING SEAMEN- (SECTION 28-32).

The Act nominates the persons who may supply seamen to sign Articles of Agreement to serve on a ship at an

Australian port. These persons include the superintendent, the ship's agent or charterer and an of ficer of an organisation of employees to which the seaman belongs.

The concept of 'supplying' seamen is old and bears no relation to current industrial practice. Most seamen for Australian ships are now allocated for employment under the Marine Cooks, Marine Stewards and Seamen's Engagement System set

up in accordance with Schedule X to the Maritime Industry Sea­ going Award 1975. The system is operated and administered by the Chief Superintendent who plays a significant role. Most of the comments made to the Commission supported the view that the

existing provisions of the Act hav e little relevance to today's engagement procedures.

However the unions suggested that these sections should be retained and the Commission feels that the traditional right of the superintendent, the representative of the employer and the representative of the union to provide a person for

employment as seaman at sea should continue to be covered in the Act. The main reasons for holding the view are that there are

still ships which operate outside the ambit of existing awards and even within the 'awards' structure there are class es o f employees to whom the engagement system does not apply.

To cover such cases power should be given to make regulations prescribing the procedures by which seamen may be provided for employment and allocated to ships including a reference, but not an exclusive one, to the engagement system,

47

DIVISION S o APPRENTICES- (SECTIONS 34-JB).

The Commission looks to a broader principle in relation to apprenticeship than that on which the existing provisions appear to be based.

It has the concept that 'apprenticeship' should cover a whole system of providing for the employment, training and protection of any young person who eventually hopes to serve at sea.

The Act should lay down the general nature of the contractual arrangements between the trainee and his employer, and should cover the special obligations to protect and maintain him during his training and should specify the role of officials in seeing that he is adequately trained and properly cared for.

These above sections provide for the indenturing of apprentices to the sea service. There is no specific provision in the Act for the making of regulations governing the employment of apprentices. However, s.34 lays down that an indenture of apprenticeship shall be in the prescribed form, and the form prescribed in the Navigation (Master and Seamen) Regulations

(Reg. 5) provides for an indenture between the apprentice and the master of the apprentice for a fixed period with specified conditions of service and conduct.

Modern attitudes to training suggest more interest and concern by Government in the training of such young persons than has been shown in the past. This Commission's Report on training requirements for sea-going personnel of May 1974 envisages a different concept of training for young men who under the existing system would serve the bulk of their period of training at sea. The new scheme involves attending the proposed Maritime College or the State colleges for extended periods over several years, with sea service in between.

The Commission's recommendations in regard to training have been accepted by the Government and both shipowners and unions support the proposed provision of a training centreo

The existing Act concerns itself only with the contract and the conditions of employment of apprentices.

It does not relate specifically to their training. It lays down the specific terms of the agreement or the indentures which must bind the apprentice and the manner in which the contract of employment must be made and recorded. The

superintendent is given a role of ensuring that the apprentice is properly treated by his master.

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Perhaps the term 'apprentice' is no longer appropriate. It means a person bound by indenture to a master who will teach him or have him taught to become a deck officer. It has no

relevance to apprenticeships to such callings as shipwrights, fitters and turners (who may eventually become engineer officers) or electricians. The provisions do not apply to 'cadets' who without entering into the prescribed form of indenture, are

trained either as deck or engineer officers by Australian shipowners.

Shipowners appear to agree that the procedures for the engagement and indenturing of 'apprentices' in the wider sense of young persons being trained for sea service should be brought up to date, As stated in this Commission's Report on training

requirements for sea-going personnel the present pattern of apprenticeship is outdated, The unions feel that the present supervision of apprenticeships is inadequate. The Federated Shipwrights and Ship Constructors' Association of Australia feels

that some of a shipwright's apprenticeship should be served at sea, and not all in a shipyard as is presently the case.

The Commission is of the view that some system should be provided under the Navigation Act whereby a young person and his employer can make an agreement or contract to cover his employment and training over a period of years. The

superintendent or some other appropriate officer of the Department should be given the responsibility of ensuring that the young person is treated fairly and given proper training opportunities . The levels of training and the academic

requirements would be determined as part of the approved training facilities. The Commission also feels that the inflexibilities of the existing system should be removed. Indeed it may be advisable not to use the term 'apprentice'. The essence of the new concept should be that these provisions apply to any young

person who is about to enter a period of training and service which will eventually result in his obtaining a certificate and consequently a licence to serve at sea. Employers individually or as a group should be required to enter into a form of

agreement agreeable to both parties subject to the approval of an appropriate officer who should regularly review and check compliance with the agreement.

Regard may have to be paid in suggesting a revised form of legislation to any existing State Government legislation covering apprentices who do not ordinarily go to sea. The provisions of the Navigation Act and the proposed role of the

superintendent should be co-ordinated with the provisions and practices in those States which have laws regarding the employment and training of apprentices.

49

DIVISION 6. RATING SEAMEN - (SECTIONS 39, 39A to D, 40, 40A, 41-42.

The sections of the Act which set out the circumstances in which a seaman is entitled to a certain rating (Division 6 (not including s.41) and section 121 of Division 13) provide for ratings a pattern of qualifications required to fill manning requirements similar to that provided for officers in Division 3.

In the portion of this Report dealing with Division 3 the Commission recommends that the Act should include power to make regulations covering these matters in respect of both officers and other sea-going personnel.

Proposals put forward by the Commission relating to simplified procedures for the discharge of seamen will remove the need for the production of a discharge or permit as evidence of a seaman's qualifications (section 41).

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DIVISION 7. THE CREW- (SECTIONS 43-45).

Manning (ss.43-44)

As is the case with officers (Division 3), these provisions prohibit the taking of an Australian ship to sea unless that ship carries the prescribed crew.

The prescription of the crew may be found either in the scales in Schedules I and II to the Act based on such

criteria as net tonnage, gross tonnage, horse power of engines, coal consumed, in the regulations or in orders made by the Minister . The special circumstances in which a ship may sail with less than the prescribed crew are set out in the Act.

Whilst this method of fixing manning by Schedules based on such criteria may have been appropriate in earlier years, the existing schedules were made in 1912 and are now completely out of date. They are no longer appropriate to modern ships and there is general acceptance of the view that

the existing schedules should be deleted. The Commission shares this view. The schedules now play no significant part in determining manning.

In practice, where agreement between the parties is not reached, the prescribed crews, including both officers and ratings, are now varied or fixed by Ministerial order. (See Report on Division 3). If the proposed crewing cannot be

agreed between employers and unions or if a variation to the existing complement is sought and cannot be agreed the question is submitted to a Committee of Advice constituted under section 424, known as a Manning Committee.

Generally such a committee is chaired by a departmental officer. It has an equal number of representatives of the union/s concerned and of shipowners. The Minister on receiving the advice of the Manning Committee may at his discretion make and publish

in the Commonwealth Gazette an order varying or specifying the prescribed crew for the ship.

Such employer/union negotiations followed if necessary by a Manning Committee and the issue of a Ministerial order, mean that in practice the actual manning of a ship is the end result of

an empirical process of employer/union industrial negotiations in which the Minister and the Department play a major role.

51

The chairman of the Manning Committee is, of course, often called upon to take a role in matters of industrial relationships. In spite of criticisms and often adverse comments it is quite clear that the Manning Committee has been extremely useful in the difficult task of working out acceptable ship manning.

Fundamentally the desirability of having a prescribed manning for a ship is related both to the safety of the ship and

to the conditions of employment in the ship.

In this connection the Commission sees the Department of Transport as primarily concerned with safety and that its first duty is to see that no ship goes to sea unless the owner

has provided the ship with the appropriate number of properly qualified personnel. It has been suggested that the only concern of the Department should be to fix a 'safe' level of

manning and that the 'industrial' element in the manning scale should be determined within the usual area of industrial relations and industrial legislation. The Commission takes the view that an attempt to confine manning requirements in the legislation to 'safety manning' would give simplicity and certainty to the determination

of the actual numbers but it would not come to grips with the

reality of the situation. The present system has helped to solve industrial problems of some difficulty. Deficiencies there may be, but the present system has provided the answers which have kept ships manned and moving. The Manning Committee

has worked well and should be retained.

As was to be expected there were varying attitudes among employers as to the need for the revision of the legislation relating to such a contentious subject. Some employers had individual ideas and it seemed to the Commission

that employers as a whole were not prepared to diverge from the view, that it was better to continue the system they already had and knew.

In discussions the representative of the unions supported the existing system but pointed to difficulties associated with the determination of a prescribed manning scale which they suggest could possibly be eased if 'basic' manning

scales could be worked out for the main sizes or classes of ships.

The first difficulty with this approach, which has logical attractions, is that ideally the crew which the ship will carry should be capable of determination within fairly exact limits at the feasibility study stage before the ship is designed, built or modified for use under Australian conditions.

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Secondly with rapid technological development there is an obvious need to have a fair degree of flexibility in

manning requirements for newly built ships with relatively untried labour saving features.

Another difficulty which might be eased by a 'basic' schedule if it could be is that the scales of manning

in the different capacities for crewmen are closely related to each other. For example the number of cooks and stewards depends upon the number of people they are required to cook for or to serve. This means that the total complement within

fairly precise limits must be known before the accommodation say for cooks or stewards, can be designed or provided.

An increase in manning of one man in a particular capacity may carry with it an unavoidable requirement for additional crew in other callings such as a cook or steward as well as raising a need for additional crew accommodation which may not be available on the ship. In such circumstances the

unions suggest it is a practical impossibility to negotiate or obtain an order for such an increase however good the justification. at the same time the Commission was informed

that tentative scales were not acceptable to some shipowners or to some unions because of fears that precedents in scales of manning might thus be established and applied to other vessels. An alternative suggestion to ease the situation by providing

some 'spare' accommodation at building or on remodelling which if not required on a permanent basis could later be used to accommodate personnel under training was not received with any enthusiasm by shipowners.

In the event that useful and meaningful general scales of manning for particular classes or types of ships could be prepared the Commission realises they could have a value (i) as a guide in ship design and in making decisions as to the crew

accommodation requirements when a ship is being built or altered for service in Australia, and (ii) as a guideline or norm from which the manning committees might proceed to recommend the prescribed complement for a specific ship and the relationship

of the numbers of the different callings.

However in this connection it should be remembered that the existing regulations already provide for the manning of a new ship to be fixed at an early stage of its construction

by a Manning Committee which can be constituted at the instigation of either the owner, a maritime union or the Secretary of the Department of Transport. The Commission strongly believes there should be no change in this provision.

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In response to the unions' suggestion the Commission sought advice on the possibility of constructing basic scales of prescribed manning which might be useful in the determination of complements for particular classes or sizes of ships. The results were not encouraging. An analysis of the existing manning scales for ships engaged in the coasting trade reveals

that, while there is some broad consistency in the scales of deck complements in ships of about the same size, the exceptions are numerous enough to cast doubt on the practicability of devising a useful schedule.

It seems that such a scale would have to take account

of so many peculiarities of trade, equipment, propulsion, age and type of vessel that it would lose its value as a general

measure for manning and would not in any practical sense be useful for the purpose in mind.

The Commission therefore recommends no change to the actual method by which the 'prescribed' manning for individual ships is now determined. It sees a need for revised

legislation which would: (a)

(b)

Delete the existing schedules to the Act which specify scales of deck and engine room officer (Schedule I) and of crew (Schedule II).

Retain and simplify the existing practice which allows the Minister, where a dispute exists, after having received the advice of a Manning Committee, to determine by order the

prescribed complement of officers or ratings for a ship and to publish the details of his

determination.

Employment of the Crew on Cargo Work (s.45)

This section prohibits the employment of the crew of any foreign-going ship in an Australian port on work involving cargo except as prescribed by regulation. No regulations have been made. The section also provides that such forbid the employment of crews of Australian trade ships in handling cargo or ballast and in relation to foreign-going ships may not allow the employment of the crew in handling cargo or

ballast where a sufficiency of shore labour is available. It also provides that the rates of wages paid to shore

labour at any port in Australia shall be not less than award rates and that if a sufficiency of shore labour at such rates cannot be obtained the crew of such a ship may be employed to the extent of that deficiency.

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The Commission regards this as an industrial matter and, so far .as employers and ships to which the award applies, it is covered by the Maritime Industry Sea-going Award which lays down similar principles for the employment of ship's crews

in this work. Under the Award they may only be so employed where there is an insufficiency of properly paid shore labour.

In the absence of regulations, and with the present application of the award the only practical effect of the section is to apply restrictions to the employment of crews of foreign-going ships to which the award does not apply, when in

a port in Australia.

This specific issue was the subject of considerable representations to the Commission on Alleged Payments to Maritime Unions. That Commission has dealt with the matter in some detail in its report. Consequently this Commission will

not comment further on the question, beyond observing that so far as Australian ships are concerned the matter is already effectively controlled by industrial law and processes.

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24400( 76-4

DIVISION 7A. APPROVAL OF ENGAGEMENTS OF SEAMEN -(SECTIONS 45A-45C).

Exclusion from Engagement (ss.45B and 45C)

The important provision in this Division is the one (s.45A(9)) providing that where the Marine Council (see Part XI s.424) has advised the Minister that the character or conduct of a person is or has been such that the person is unsuitable

for engagement as a seaman, the superintendent shall refuse to approve his engagement.

These sections also set out the other circumstances in which a superintendent may refuse to approve the engagement of a person. They also provide that where the superintendent has so refused to approve an engagement and provided the Marine Council has not found that person unsuitable for engagement the person may appeal to the Commonwealth Conciliation and Arbitration Commission against the superintendent's decision.

In general the basis upon which a seaman is excluded from engagement by a superintendent is related to the seaman's past conduct or his failure to serve which has resulted in the seaman being given a 'bad' report.

The Commission later in this Report (Division 9 -Discharge of Seamen) proposes new procedures which will no longer require this form of reporting on a seaman's conduct and character either periodically on his discharge from a ship or

if he deserts or fails to join.

There are at present two courses of action leading to exclusion from the industry. One is set out above where the exclusion results from the advice of the Marine Council. The other is where the superintendent under a discretion given to him by section 45A refuses to approve of the engagement. It seems to the Commission that it would be more consistent and more equitable to all concerned if all exclusions from

employment were considered by the Marine Council. From discussions with the parties it seems that both the unions and the shipowners support the Commission's view that there should be no power to refuse to approve the engagement of a person unless that person's suitability for employment had been considered by the Marine Council.

Instead of the existing system of reporting on a seaman's conduct and character on discharge under the provisions of section 61 which leads to the superintendent refusing to of his engagement the Commission recommends that

provision should be made for the Marine Council to be advised of all important breaches of discipline and of all cases in which it appears that a person is unsuitable for employment in the industry. Exclusion from employment in the industry during

a specified period should only be on the decision of the Minister or his delegate and then only after the Marine Council has considered the case and has advised the Minister on the person's suitability for employment.

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Although the person's livelihood is at stake, there is now no appeal from the decision of the Marine Council. The Commission agrees with the Committee on Administrative . Discretions (see the 'Final report of the Committee on Administrative Discretions October 1973 Appendix' 'C' para.l93)

that this should be corrected and recommends that the revised legislation provide that an application may be made to the Administrative Appeal Tribunal (established under the Administrative Appeals Tribunal Act 1975 (No. 91 of 1975) for

a review of a decision made under this Division by the Minister or his delegate to exclude a person from employment in the industryo

Some opposed the suggestion that the Minister or his delegate should make the decision on the advice of the Marine Council. They preferred the existing system under which the Marine Council makes the decision and there is no appeal.

The reasons put forward in support of this view are that the existing system works well and should not be disturbed, and that because of the manner in which the Marine Council is constituted (see s.424) there is no necessity to give a right

of appeal from its decisions.

The Commission takes the view that any man deprived of his livelihood should have a right of appeal and that the

Administrative Appeal Tribunal is the most suitable means available of hearing that appeal.

Its procedures provide for both the appellant and decision maker to appear before the Tribunal. Obviously it would be difficult and unwieldy for the Marine Council as a body to appear. To obviate this problem the Commission suggests

that the Minister or, in practice, his delegate should make the decision on the advice of the Marine Council and be the 'person' whose decision is reviewed by the Tribunal.

The unions support the principle that there should be a right of appeal.

57

DIVISION 8. THE AGREEMENT- (SECTIONS 46-60A).

The Engagement of Seamen (ss.46-49)

The Act provides that a seaman shall not be engaged to serve in a ship unless:-(a) A written agreement in a prescribed form has been prepared in duplicate by or under the

supervision of a superintendent.

(b) The agreement is signed by the master in the

presence of the superintendent before it is signed by the seamen.

(c) The agreement after having been read over and explained by the superintendent to the seamen is signed by each of the seamen in

the presence of the superintendent, and

(d) The agreement is attested and dated by the

superintendent.

Special procedures for the engagement of substitutes at short notice and of seamen at ports outside Australia are also laid down. An alien is required to produce satisfactory evidence of his nationality before he can engage.

Agreements (ss. 50, 53-57)

In addition to the provisions outlined above the Act fixes the period for which an agreement may be made i.e. for a voyage or as a 'running agreement' extending over two or more voyages but not beyond six months. The manner in which a

seaman must be discharged and returned to his proper return port at the end of this period is also laid down in the Act (s.SZ).

A copy of the agreement must be posted up in the ship

(s.S3) and the original eventually delivered up, upon discharge of the crew, to the superintendent (s.S4).

All in all, the present provisions are designed to ensure that a seaman before he goes to sea in a ship has a

written contract of employment with the master. The precise terms and the period of the contract are prescribed as is the detail of the process of entering into and terminating the contract. The whole process is subject to government supervision.

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The Commission holds the view that:-(a) the existing prescriptions of the exact form

of contracts of employment to serve should not be continued

(b) if the content and the actual terms of the

contract were not prescribed it would give greater flexibility and would allow wider terms to be agreed between the parties

(c) alternatively if it were thought desirable to

have some control, the existing prescribed form of agreement might be modernised and improved and room left for more of its content to be negotiated between the parties perhaps

on an industry wide basis

(d) it would be more logical to have a contract

of employment between the employer and all the members of the crew rather than between the master and the rest of the crew,

Suggestions along these lines were discussed with representatives of employers and employees. The main concern expressed was:-(a) By the Unions

The unions do not favour a contract of employment which covers employment in more than one ship or in a fleet

of ships belonging to a particular owner or employer. The philosophy of some of the unions particularly the Seamen's Union is that members are to be employed not by a particular shipowner in respect of his ships but

in 'the shipping industry on a permanent basis which should assure members of continued employment irrespective of the fortunes of any owner. It seems that unions particularly those whose members are not officers would strongly oppose any proposal which

required a seaman to enter into a contract of employment relating to more than one specific ship.

This is not contemplated in the Commission's proposal. The proposal is that the Act should be so framed as

to give employers and employees freedom to agree on the form of contract of employment they desired.

No form of agreement would be prescribed but each agreement would, of course, have to be consistent with the law. When agreed between the parties it would merely have to be filed with the Department (or with the Coastal

Services Authority, see the Commission's Report on Maritime Standards and Controls),

59

(b) By the Employers

The shipowners do not favour a contract of employment which is not with the master of the ship. They

express the view that the master acquires status on board the ship by reason of the fact that he is the

main party to the agreement under which the seamen on board are employed. Presumably they fear that to substitute a party on shore as representative of the employer for the master in this contract would tend to lower the master's status and undermine his authority. Although the existing form of agreement has always

given the impression that the master is the employer it seems to the Commission that it is unrealistic to assume that this is the true position. Serving masters who made submissions to the Commission held

the view that any status which the master might acquire from signing the agreement as principal could with greater truth be claimed if he signed as representative of the employer. To this consideration must be added the possibility that eventually employer/

employee contracts on an industry wide basis may be sought. They would not be possible if the law required contracts of employment to be made with the master of the ship,

As a result the Commission sees a need for general revision of the existing provisions relating to agreements along the lines that:-(a) the law should only provide that for every man

on a ship there shall be an agreement in writing

between him and his em¥loyer, the general terms of which are the same or all members of the crew

of the ship with some provision to take account of the special relationships of the master to the employer. The master of the ship could be certified by the employer as agent for the purposes

of signing the contract. However, the master should sign on behalf of the company,not as ship captain.

(b) the agreement shall contain the particulars required to be included in such agreements by the I.L,O. Convention (No. 22) on the subject, including details of the circumstances in which the employment of the seaman may be terminated.

(c) a copy of the agreement covering all the members of the crew must have been lodged with the proper authority prior to the first sailing of the ship to which the agreement relates.

(d) a copy of the agreement must be posted up in the ship.

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Enforcement of Compliance with Act (s.60A)

This Division also includes a section providing that the master of a ship leaving a port in Australia at which there

is a Mercantile Marine Office must obtain from the superintendent a certificate of clearance. The certificate indicates that this part of the Act (Part II) regarding masters and crews and the engagement and discharge of seamen has been complied with and the ship may be taken to sea without contravening its provisions.

To require such a clearance at every port can in some circumstances involve delays to ships and inconvenience to shipowners and others. On the other hand if as the Commission is suggesting the role of the superintendent is to be changed

to enable him to exercise an overall rather than a detailed supervision of compliance with the new Act it is probable that he will be well aware of the projected departure of a ship

from his port and of the master's likely performance in compliance with the requirements.

It seems to the Commission that the requirement to obtain a clearance at every port in Australia at which there is a Mercantile Marine Office is not justified.

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DIVISION 9. DISCHARGE OF SEAMEN - (SECTIONS 61-68).

The functions and the role of the superintendent in the process of engaging a seaman have already been dealt with by the Commission in the previous paragraphs (Division 8) dealing with the agreement.

On the discharge of a seaman from a ship, the agreement is endorsed and signed by the seaman again in the presence of the superintendent who must attest every discharge made before him.

These engagement and discharge procedures constitute the ceremonies of signing on and off a ship. In almost every

case they involve either the attendance of the crew member at the Mercantile Marine Office or the attendance of the superintendent at the ship.

In the existing situation, where under the Maritime Industry Sea-going Award 1973 considerable entitlements to leave accrue to seamen who may take leave and rejoin their vessel at regular intervals, the original significance of an

engagement and a discharge being related to a commencement and a termination of a contract of employment in a ship has been largely lost.

It seems to the Commission that the requirement that seamen must be engaged and discharged before a superintendent is both costly and timewasting. The ceremonies of 'signing on' and 'signing off' have little meaning in relation to the

commencement and termination of contracts of employment if the seaman signs on and off when proceeding on leave from the ship even though his contract of employment still continues.

The Commission recommends that the agreement be terminated only when the employment of the seaman with that employer ceases and that the present obligation on the superintendent to be present at all terminations be changed. The superintendent should only attend if (a) he has reason to be concerned or (b) he is asked to attend by a representative

of the seaman or the shipowner.

The new legislation should provide that the superintendent may at any time supervise such transactions and that he has a duty to ensure that all legal requirements are

met. It does not seem appropriate that every detail of every engagement and discharge should be supervised or that leaving a ship to go on leave should necessarily entail a termination of the contract of employment.

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The Commission in making this recommendation does not in any way wish to imply that it would sponsor any lessening of the effective role of the superintendent in the employment of seafarers or in other spheres. Freeing the superintendent from the obligation to attend at all of these ceremonies may make his services available for the more productive duty of

ensuring that other principles of the legislation are observed, e.g. that ships are properly manned and that the welfare and protective provisions of the Act are being observed. From discussion with the representatives of employers

and of unions it seems that there is little opposition from these parties to the Commission's proposals. Employers would appear to welcome the removal of the need for the 'ceremony' of signing on a nd off. The unions expressed some misgivings at the prospect of men being discharged in the absence of the

superintendent. This objection seemed to be met by the possibility of requesting that he be present if they so desired. The existing provisions, in addition to providing for the proper authority's supervision of the discharge, provide

for the seaman to be given a discharge in the prescribed form signed by the master. The discharge must contain a report of the character, conduct and qualifications of the seaman (s.67), and the discharge must be produced by the seaman before he is permitted to again engage for service at sea (s.41).

It seems to the Commission that such a procedure is based on an assumption that the prospective employer of a seaman must be given evidence in writing of his suitability and qualifications and that the onus is on the seaman to produce

that evidence. The Commission does not see any such necessity existing in the present situation when most seamen are allocated for service under the engagement system and a procedure exists for the exclusion of unsuitable persons from employment in the

industry. Assuming that he has not been excluded as unsuitable for employment in the industry, if a seaman is allocated for employment in a particular ship or if an officer has not been deprived of his certificate it does not seem to the Commission

to be necessary in the legislation to require the employee to produce to his prospective employer on every occasion on which he is engaged further information about his charact e r or conduct.

Representatives of most shipowners agreed with this view and all parties including the unions agreed that the procedure should be simplified. It seems to the Commission that there is no need or justification for the existing procedure

(s.61) and the prescribed form of discharge (s.67).

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The Commission suggests that the termination of the employment of a seaman will be evidenced by the signing by the employer and the employee of a document which ends their contractual arrangements and gives some form of release from claims under the agreement.

Power should be given in the Act to make regulations requiring:

(a) reports to be made by employers to the Department in specified circumstances on the character, conduct and ability of employees with copies to the employee concerned.

(b) the employer before he enters in a contract of

employment with an employee to ensure

(i) that the person concerned is not a

person suspended from employment in the industry, and

(ii) that he is properly qualified for

employment in the capacity for which he seeks employment.

(c) the employer to advise the proper authority of his intention to terminate an agreement.

(d) the employer to provide the employee with documents relating to his service.

The' Act also requires (s.66) that on the discharge of a seaman (or on the termination of a contract of sea service) the master of his ship shall return to him any certificate

belonging to the seaman which is in the master's possession.

It is no longer the practice in the Australian shipping industry for the master of a ship to keep in his possession the

certificates of crew members (s.66). In any case the section would lose all of its relevance if a new structure of licences and certificates proposed by the Commission is introduced. Such a provision is no longer necessary.

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DIVISION 10. SEAMEN"S WAGES - (SECTIONS 70-94).

Allotment (ss.70-73)

Under section 70 a seaman serving in an Australian ship may allot a portion of his wages to certain close relatives or to a dependent or to a bank.

The precise relatives are named, the allotment note must be in the prescribed form and the portion of his wages which may be allotted cannot exceed three-fourths.

It seems to the Commission that in this day and age

the restrictions on the persons and the portion are not necessary. Interested parties are agreed on this point. The Commission believes there is a need to replace the existing provision with a provision that a seaman may, in accordance with procedures set out in the regulations, allot all or any

part of his wages to any person or any institution (banks and insurance companies included).

There is also, in section 71, a provision which gives a person to whom an allotment is made a right to sue for and

recover from the employer, the wages allotted.

It has been suggested that there is no need for any

of the allotment provisions , Shipowners and their employees could then agree themselves on an acceptable system of paying wages earned to recipients nominated by the employees.

The Commission rejects this suggestion on the grounds that because he may be required to be absent from his home for

long periods the consequences of an employer refusing to agree to an allotment would be more serious for a seaman than for most shore based employees.

The Commission believes that the requirements for allotments and the right to sue on allotment notes should be retained in the Act without the need to restrict in the Act the

persons to whom an allotment may be made.

Payment of Wages (ss , 75-81)

The Act requires (s.75) that before a seaman is discharged he shall be paid in the presence of a proper authority the wages due to him , He must also be given, in an

approved form an account of his wages and the deductions made (s.76) and detailed rules for settlement of wages are laid down (s , 80).

The manner in which wa ges are to be computed (s , 7SA) and the times at which they must be paid (s , 77) and provision

for wages to run on if they are not paid (s.78) are also

covered in the Act.

- 6 5 -

Apart from being required to be present when such payments are made the superintendent may, with the consent of the seaman, receive wages on his behalf (s.79) and with the agreement of both parties, differences which have arisen between

the master or owner and the seaman may be heard and decided by the superintendent (s.81).

The Commission has already expressed the view that there should be no requirement for all terminations of contract to take place in the presence of the proper authority. If this

view is accepted it would follow that there should be no requirement for all payments of wages on discharge to be made in his presence. However there may be circumstances in which a seaman may feel that the presence of the proper authority is necessary to protect his interests and provision should be made

so that in such a case he may request the attendance of the

proper authority.

Even if the proper authority is not present when the wages are paid it should be possible to refer disputes to a superintendent and the Commission recommends that the substance of section 81 should be retained.

It seems to the Commission that the remaining provisions (ss. 77 and 80) relating to the time of payment and

the rules for settlement of wages are sound but they need some amendment to bring them into line with modern conditions and to allow for existing provisions of the Maritime Industry Sea-going Award 1975 (e.g. clauses 12 and 22).

The Commission believes the Act may prove to be a little too inflexible for this purpose and that it would be preferable to take some of the existing provisions from the Act and to replace them with regulations.

The Commission recommends that while it is appropriate that the Act should continue to provide for the payment of wages on discharge, the requirements for the furnishing of accounts of wages, for wages to run on if not paid and for the reference of

differences to a superintendent should be covered less formally.

The Commission feels it would be desirable to have such matters dealt with by agreement between the employers and the employees to their mutual satisfaction as is done in other industries.

However to cover the possibility that for some reason it may not be practicable to deal with such matters in the contract of employment or the award it may be as well to include in the Act a general power to make regulations relating to the payment of wages.

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Rights of Seamen in Respect of Wages (ss.82-88)

These sections (ss.82, 83, 86 and 88) deal with such

subjects as the time at which a seaman's right to wages begins, the fact that he cannot, by making an agreement to the contrary be deprived of certain rights to wages. They stipulate the periods during which he is not entitled to wages. (see also Maritime Industry Sea-going Award 1975 -clauses 22 and 23).

The Commission takes the view that in some respects these sections are out of date and that in their existing terms they may have undesirable effects on the Commission's proposed amendments designed to encourage maximum freedom to negotiate contracts of employment. The terms of section 82(1), section

83(3), section 86(c) obviously could create such difficulties.

While the Commission feels it necessary to draw attention to a possible need to review these provisions in the light of amendments which are recommended to other sections of what is now Part II of the Act it does not make specific

recommendations .

Another provision (s85) gives effect to the I.L.O. Convention (No. 8) concerning unemployment indemnity in the case of the loss or foundering of the ship. This provision

be retained.

Section 84 which provides that wages shall not be dependent on the ship earning freight also seems to the Commission to be a provision which should be retained as a 'protection' to seafarers . On the other hand the Commission

can see no useful purpose now being served by section 87 which provides that the cost (up to $4) of procuring a conviction may by order of the Court be recovered from a seaman's wages. Section 87 is no longer necessary.

Mode of Recovering Wages (ss.91-94)

It seems to the Commission that these provisions, except that they relate to the methods by which a seaman or a

master may recover wages or disbursements, fall into a somewhat similar category as sections 82 etc . mentioned above . The Commission does not think that a revision of principle is necessary, but there could be a need to revise particular

provisions in these sections . They will need to be reviewed as a part of the overall task of revising this legislation to bring it into line with the Commission's proposals generally.

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DIVISION 12. DISCIPLINE- (SECTIONS 99-115).

Offences

The Act creates the following offences and prescribes the respective punishments including, in some cases, imprisonment on conviction.

(a) any deliberate act or omis s ion which is likely

to cause the loss or destruction of or serious damage to the ship, or death or serious injury to a person on board

(b) desertion

(c) failure or refusal to join ship or to proceed

to sea

(d) absence without leave

(e) insubordination or wilful dis obedience

(f) the master or another officer

of his ship

(g) conspiring to:

(i) Disobey lawful commands at sea

(ii) Neglect duty at sea

(iii) Impede at sea the navigation of his ship

(h) wilfully damaging his ship or its equipment

Further, requires that the Articles of Agreement with the crew shall in every case include a provision that if the

seaman commits a breach of discipline of the type shown below, then that breach shall be a breach of the Agreement and the master shall impose on the seaman a fine of the amount

specifiecr:--(a) assaulting any person on board (if not otherwise dealt with) (b) having intoxicating liquor on

board without permission

(c) drunkenness - first Offence

- second Offence

(d) having any weapon or offensive instrument on board

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$10.00

1. 00

2.00 4.00

2.00

(e) insolent or contemptuous language to the master or any officer or

disobedience to lawful commands (if not otherwise dealt with); first offence each subsequent offence

(f) failure to go to sea (if not

otherwise dealt with)

(g) absence without leave at sailing time

(h) absences without leave at other than sailing time (if not other­ wise dealt with)

2.00 10.00

2 days pay

10.00

2 days pay

In regard to disciplinary offences dealt with on board ship discussions with and submissions by shipowners and masters reveal a genuine concern to maintain the master's ability to enforce obedience to a lawful command.

In a land based employer-employee situation the ultimate deterrent for failure to carry out instructions is immediate dismissal. In a ship at sea, dismissal is not

effective as a deterrent until the ship reaches the next port, which may be days or even weeks away.

Alternatives available to the master such as removing privileges or imposing small fines are not really effective. Masters have drawn attention to the possibility that they may lead to industrial action and costly delays to the ship. It

was also claimed particularly by masters and officers,that the existing provisions by their inflexibility inhibited endeavours to · improve officer/rating relationships on board ships.

The Commission gained the impression that shipowners and masters generally favoured a retention of the existing system save that the existing mandatory requirement to fine should be made discretionary. To it should be added a power

to warn or censure, and there was agreement to a suggestion that a series of repeated warnings or censures should lead to an adverse report to the Marine Council with the possibility of exclusion from employment in the industry. In later dis­ cussions it seemed to the Commission that shipowners were more

inclined to accept the view that fining as a punishment inflic­ ted by the master should be abolished.

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Representatives of the unions while endorsing the necessity to maintain proper discipline to ensure the safety of all on board, expressed strong opposition to a system designed to enforce discipline by requiring an employee (the master) to deprive other employees of pay they had earned. They agreed with the proposal that continued irresponsibility and failure to behave should lead to exclusion from the

industry after consideration by the Marine Council.

Other views of more general interest included the shipowners' claim that fears of long delays in hearings with consequent expense and inconvenience deter them from prosecuting ashore. It seems that at least in some ports the existing

provisions for dealing with serious offences ashore are not used as often as they might be. The tendency is to obviate

the expense and inconvenience of prosecuting ashore by dealing with the matter on board. ·

On the question of the need for legislation designed to deal with disciplinary offences on board it seemed to the Commission that there are three grounds on which it can be argued that special disciplinary provisions are necessary in relation to employment at sea.

The first is that discipline is necessary in the interests of safety to ensure a prompt reaction in an emergency, the second that it is necessary in the interests of efficiency to secure proper operation at all times, and third to preserve law and order in the special conditions in which a seafarer works, eats, sleeps and spends his leisure at sea.

The CDmmission sees substance in these three assertions and a need to continue a special disciplinary regime in relation to seafarers. The nature of the argument itself suggests a three tier structure of offences which the Commission feels is appropriate.

It therefore recommends that the Act create three types of offences on board ships.

(a) indictable offences, related to acts or omissions by any person which seriously endanger the ship or its personnel.

(b) offences committed by members of the crew which seriously impede the effective operation of the ship, punishable ashore on summary conviction.

(c) disciplinary offences of a less serious nature to be dealt with on board by the

master.

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In the light of the reported difficulties of prosecuting ashore for the offences listed under (b) there may be merit in widening as far as practicable the list of

disciplinary offences which can be dealt with under (c)

The manner in which the less serious disciplinary offences (under (c)) should be dealt with by the master might

be set out in the regulations which would lay down the procedures to be applied to ensure natural justice to the seaman.

Subsequently in making its recommendation in addition to its consideration of the views expressed to it the Commission formed the following views in relation to the existing system of dealing with breaches of discipline on board:

(a) that in the long term and allied with an

effective system of selection and training for. employment, exclusion from employment in the industry is the best deterrent to, and remedy for, irresponsible conduct on board ship. The proposal lacks effectiveness

in relation to temporary or casual employees who do not intend to make seafaring a career but in most other cases the prospect of an

adverse report to the Marine Council would be an effective deterrent.

(b) that the manner in which breaches of

discipline on board a ship are dealt with is a

matter which should be covered in the Act

(c)

and regulations and not one which is determined by a provision in the contract of employment as is now the case.

any system of maintaining discipline by the master imposing fines must in justice include such a complicated system of procedures, appeals and recording as to offset any other

advantages it may have.

The Commission was also mindful of the fact that the final report of the Committee on Administrative Discretions (October 1973) drew attention to the fact that no review process is now allowed in the Navigation Act in respect of a decision of the Marine Council that a person is unsuitable for engagement as a seaman. (See earlier in this Report on Division 7A).

It would hardly appropriate and barely practicable for the Marine Council to be a party to proceedings before a Tribunal. Therefore, in order to create a situation in which an application may be made to the Administrative Appeals Tribunal

to review the decision that a person is unsuitable for engagement as a seaman, it seems necessary that the decision should be made by a person on the advice of the Marine Council. That person

could then defend his decision before the Appeals Tribunal.

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The Commission believes there should be a review process. To facilitate that process and to avoid complicating the proceedings of the Marine Council which would be necessary if it were to be a party to the appeal proceedings it recommends

the interposition of a person making a decision between the Marine Council's advice and the actual exclusion.

The Commission does not favour the existing system under which the master has no option but to fine a seaman if

he finds the seaman has committed a disciplinary offence (s.llS). It is of course the traditional system and some employers and masters claim it is an essential aid to the maintenance of discipline on board.

The Commission believes that much of the need for the existing disciplinary system has gone. It hopes that the modern seaman, particularly if he is educated and trained in the manner the Commission has suggested in its earlier Report on training requirements for sea-going personnel, is capable of taking responsibility and of behaviour which will not impair the discipline of the ship. In addition it cannot but question the propriety and justice of requiring the master to deprive a fellow employee of pay which has been earned in order to maintain good order on board the ship.

The Commission recommends that the master's power to fine should be withdrawn and as an alternative in dealing with disciplinary offences on board, the regulations might allow the master, at his discretion, to warn or censure a seaman.

In such circumstances the regulations should require serious disciplinary offences to be brought to the notice of the Marine Council.

If and when as a result of considering these reports it appeared to the Marine Council that disciplinary action was called for, it could decide that an offender's conduct was such that he was not suitable for employment in the industry. The Council should be able to advise the Minister that it considered the offender was not suitable for a specified period for employ­ ment in the industry.

Of course, in extreme cases the master would have power to restrain on board a seaman whom he regarded as criminally motivated.

The Minister or his delegate could on receipt of the Marine Council's advice decide whether or not and for what period he should be excluded from engagement.

Application may be made by a person so excluded for a review of the Minister's or his delegate's decision by the Administrative Appeals Tribunal established under the Adminis­ trative Appeals Tribunal Act 1975.

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Desertion as an Offence (ss. 105, 107, 112)

These sections provide for the forcible return of a deserter to his ship, and in some circumstances, for the arrest and detention of a deserter until he is dealt with according to law. They further provide that when a seaman is convicted

of the offence of desertion the Court may recompense the owner of the ship out of the seaman's wages for any expenses caused by the desertion, the amount of wages to be forfeited shall not exceed $80.

The forcible return of a deserter to his ship and his

imprisonment whilst awaiting prosecution appear t•) be in conflict with I.L.O. Convention No. 105, which has been ratified by Australia. The Convention requires Governments which are contracting parties to refrain from making use of forced or

compulsory labour as a means of labour discipline.

In most maritime countries desertion has been regarded as a crime. Prior to 1970, desertion in the United Kingdom was punishable with imprisonment in certain circumstances.

More recently it has been argued in the United Kingdom and in Australia that desertion is no more than a withholding of a man's labour which any employee should be at liberty to do without committing a crime. On the other hand shipowners put

the view that desertion can hold up the sailing of the ship, delay completion of the voyage and have serious effects on the shipowner's obligations to charterers and cargo owners. Various costs and expenses may be incurred as a result of desertion.

As was to be expected representatives of unions strongly supported the view that desertion should no longer be an offence. Shipowners too agreed that it should not be a criminal offence but thought that because of very high cost of the delay to a

ship which might result there should be substantial deterrents in the Act.

The Commission cannot but agree with the view that desertion should no longer be regarded as a criminal offence. It also appreciates the shipowners' fears in regard to high costs resulting from a desertion particularly if it occurs overseas.

In a case of 'desertion', that is, leaving a ship with

the deliberate intention of not returning to it, the Commission believes it would be reasonable to expect that on desertion the employer would terminate the man's contract of employment. Under the Commission's proposals desertion therefore could not be dealt with on board the ship as a disciplinary offence as the seaman would no longer belong to the ship.

The position might be covered by providing in the regulations that where a contract of employment has been terminated due to desertion, the employee's conduct must be reoorted to and considered by the Marine Council in relation to his suitability for employment in the industry.

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It seems clear that 'desertion' would be a breach of the seaman's contract to serve and that the employer would have a civil right of action for damages in respect of any loss or

expense caused by the breach of contract.

Where the loss or expense is considerable, and this is not unlikely where a large ship is held up for any length of

time, meeting the damages awarded could impose a considerable hardship on the employee.

The Commission therefore sees justification for some special provision to protect the seaman from awards which might be out of proportion to his ability to pay.

The Commission believes that:

(a) The seaman's liability should be limited so as not to place a grievous burden upon him.

(b) The seaman should be relieved of liability if he can prove that the breach was due to

no fault of his own.

This should be achieved by appropriate provisions in the Act.

Representatives of shipowners appear to accept the principle that, having regard to the likely extent of the employee's assets and the high level of damages which the shipowner may suffer, there must be some limitation of

the employee's · liability.

Shipowners argued that within reason the higher the limit the more effective it is likely to be as a deterrent,

and that the British figures, a fixed ten pounds sterling if no special damages claimed and a limit of one hundred pounds sterling if special damages are claimed, are too low in relation to Australian conditions.

The Commission recommends that the Act might be revised so that:

(a) desertion is no longer referred to as an offence.

(b) regulations may be made to provide that where an employee's contract of employment has b e en due to the dismissal of the employee

for desertion a report on the employee's conduct must be made to the Marine Council.

(c) an absence due to some cause beyond the control

of the seaman cannot be treated as a breach of

his contract.

74

(d) an employee's liability to damages for being deliberately absent from his ship when he is required under his contract to be on board is limited.

The Commission considers that the amount to which the employee's liability shall be limited should not be fixed in terms of dollars but should be related to the pay earned by

the employee in a number of days. An interesting suggestion made was that the number of days might be related to the length of time the departure of the ship was delayed as a result of

the breach of contract.

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DIVISION 13. PROVISIONS - (ss. 116-122).

Section 116 provides that if three or more members of the crew of a ship consider their provisions or water are of bad quality they may complain to a superintendent. The Minister may, acting on the report of the superintendent, require the master to rectify the matter. A penalty of $100 may be imposed

on the master for not complying with the Minister's requisition.

It seems to the Commission that the real

responsibility for proper provisions of food and water should rest not with the master but with the employer, and that it is

unfair to place such a penalty on the master. In regard to the

lodging of a complaint the application of the section is modified in practice by Clause 32 of the Maritime Industry Sea-going Award, which requires that a complaint shall first be made to the master or officer-in-charge. So far as the Act is

concerned the Commission feels that in the first instance the complaint should be made not to the superintendent but to the employer or his representative. If the seamen are still dissatisfied with the action taken by the employer to rectify the matter they might then make a complaint to a superintendent, who would take appropriate action under powers given to him by

the regulations. If the Minister finds there are no reasonable grounds for the complaint, the crew members complaining are liable to forfeit a week's wages. In the original Act, scales of provisions to be furnished were prescribed in a Schedule to the Act which was repealed in 1958 when the relevant section (s.117) was amended to delete the 'reference to prescription by Schedule. No scale has since been prescribed and as a result some of the remaining provisions of the division (ss. 117, 118 and 119) have lost

force.

The Commission believes that the reason no action has been taken to prescribe a scale is that apart from the

practical difficulty of actually prescribing an acceptable scale the standards of provisioning are fixed for Australian ships by negotiations between the sea-going unions and shipowners apparently with results satisfactory to both parties.

However as there may be some ships to which Part II applies or may apply which are not covered by the industrial negotiations it may be prudent to include in the Act a power to make regulations relating to the furnishing of provisions and water together with a power to exempt ships which are adequately

covered in these respects by other means.

Section 121 which relates to the rating of cooks is dealt with in Division 3 of this Report.

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DIVISION 14. HEALTH - (SECTIONS 123-133).

General Provisions to the Health and Fitness of Seamen

The Act provides for the appointment of medical inspectors of seamen (s.l23) and for the making of regulations relating to the medical examination of seafarers and persons proposing to engage in the sea service (s.l24).

Provision is made to prescribe the medicines, and the medical stores to be carried in ships and for their check and inspection (sections 125, 126). The carriage on board of medical practitioners and first aid a ttendants is covered in

section 133.

The Commission considers that the substance of these provisions should be retained. However it feels it should again stress the advantag e of stating the principles in the Act and leaving the details and the a dministrat ive requirements

to be elaborated in regulations.

The sections mentioned above could well be replaced by a power to make regulations in relation to:

(a) the appointment of medical inspectors.

(b) the medical examination of seafarers or persons proposing to engage as seafarers.

(c) the medicines, medical stores, medical practitioners and first aid attendants to be carried in ships.

It be necessary to provide in the Act for penalties

fo r fai lure to comply with the regulations and possibly a power to detain a ship (if at a port in Australia) which does not

carry the required medical stores or personnel.

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Seamen Sick or Injured Left on Shore (ss. 127-132B)

These sections which had their origins in the Merchant Shipping Act of 1894, provide at the cost to the owner for medical attention, maintenance and cost of conveyance home for sick or injured seamen, including apprentices and masters. They also provide for wages to be paid to such a seaman and, if

he dies before his arrival at his proper return port, for his

burial, or the conveyance of his body to that port. No suggestions of any need to materially revise these sections which were amended in 1958 and 1965 were made to the Commission. However the unions suggested it would be desirable

to make it clear in the wording of the section that an illness

suffered need not have been contracted in the service of the ship.

From discussions held it also seems that changes in the sea-going awards relating to the concept of aggregate wages and leave provisions create a need for clarification of some of the existing provisions.

While not suggesting a need for general revision of these provisions, the Commission sees benefit in making minor clarifications in the new Act. At the same time it will be

necessary to check and co-ordinate these provisions with those in any other legislation existing or proposed which would cover injuries to seamen. An example of such legislation is the Seamen's Compensation Act 1911-1972.

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DIVISION lS o ACCOMMODATION - (SECTIONS T35-l38B).

The substance of the Division is to provide that regulations may be made prescribing the accommodation to be provided on board ship (s.l36) and to provide for the appointment of a crew accommodation committee (s.l38) which

considers plans for accommodation in new ships or in ships which are being altered. The Committee may make recommendations to the Minister as to the requirements to be prescribed. Its more important functions are to hear and determine by order

questions arising between owners and unions, as to the accommodation which ought to be provided in a ship.

Standards of crew accommodation are the subject of International Labour Organisation Conventions o

The Accommodation of Crews Convention (Revised) 1949 (ILO N0.92) lays down the main standards and has been updated by the Accommodation of Crews (Supplementary Provisions) Convention, 1970. Australia is not yet a party to either of

these Conventions but the existing regulations made under section 136 are substantially in accord with the 1949 Convention (see this Commission's Report on International Maritime Conventions).

The Commission does not suggest any major changes in the legislation in regard to this division except that the substance of section 137 might be covered by regulations and if the Commission's recommendations to extend the application of Part II to other classes of ships (e.g. off-shore ships) is

accepted, there is a need for representation on the Crew Accommodation Committee of owners and unions concerned with the operation of such vesselso

As Lhe occasions on which crew accommodation on off-shore vessels may be dealt with are relatively infrequent and the working circumstance in which these ships operate quite different, it may be preferable to establish a second Crew Accommodation Committee (as was proposed in the 1975 Bill).

79

DIVISION 16. PROTECTION OF SEAMEN - (SECTIONS 139-148D).

The present provisions are part of the process of providing protection for seafarers and are designed:

(a) to provide seamen with facilities for making complaints (s.l39);

(b) to protect a seaman from an assignment of or

a sale of salvage before it accrues (s.l40);

(c) to protect from unscrupulous lodging housekeepers and other persons who prey upon unsuspecting seamen (ss.l42-144);

(d) to exempt seamen from jury service (s.l47);

(e) to provide that the Court may rescind a

contract for employment on a ship (s.l48);

(f) to prevent a seaman being wrongfully forced ashore or left behind by a ship (ss.l48A, 148B);

(g) to provide for the protection of the wages

and effects of a seaman who is left behind by

his ship (ss.l48C, 148D).

In regard to sections 142-145 which are concerned with protecting seamen from nefarious boarding housekeepers, there seems to the Commission to be general acceptance of the proposi­ tion that they are no longer appropriate to existing conditions and need not be re-enacted.

In regard to sections 139, 148A and 148B, the unions argue strongly for their retention.

The Commission accepts the submission that the provision which makes facilities for the making of complaints available to seamen should remain in the Act substantially as it now is, and that the existing provisions designed to prevent a seaman from being wrongfully left behind at a port outside Australia should also remain. It recommends that the more ·detailed measures and administrative procedures designed to

protect the wages and effects of a seaman who is left behind which are now included in section 148C should be covered in a revised and updated form by the regulations.

The requirement to hold in trust any wages of a seaman left behind which may come into the possession of the Department by operation of the proposed regulations should continue. It does not seem to be necessary that the statute should require the Minister to hold the amount in trust. It would be adequate

to require an officer of the Department to handle the task.

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The Commission has no comments to make on the remaining sections relate to legal right and processes, namely the

restriction on the seaman's ability to assign his rights to salvage (s.l40) the exemption of seafarers from jury service (s.l47) and the power of the Court to rescind a contract of

employment. No submissions were made on any need for their revision and subject to any revision which may be deemed necessary at a later stage by the legal officers concerned with the re-drafting of the new Act, the Commission sees no need for revision of these sections.

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DIVISION 17. PROPERTY OF DECEASED SEAMEN - (SECTIONS 149-160).

This Division contains provisions designed:

(a) to protect the property and effects of deceased seamen (ss. 150-153, 155, 155A, 160);

(b) to provide for the recovery of wages of a seaman

lost with his ship (s. 154);

(c) to deal with the disposal of the effects of a

deceased seaman (sso 156, 157, 158, 158A, 159).

In discussions with the Commission the desirability of having adequate and up to date provisions relating to the protection of the property of deceased crew members has not in any way been challenged. The existing provisions have not been

the subject of submissions. A suggestion was made that with the advent of inflation the figure below which the Minister may deal with the property of a deceased seaman without representation being taken out, which is now $500, should be raised. The

Commission agrees with this suggestion. The principle that the Minister may pay or deliver smaller residues of the effects of a deceased seaman to his near relatives without requiring them to take out representation commends itself not only on humanitarian

grounds but also because it obviously will simplify and shorten the process of disposing of the deceased seaman's effects.

However, one point may have to be kept in mind. If

the figure below which grant of representation is not required is made too high, it may lead to difficulties in relation to State Government legislation on probate and estate duties. Subject to this matter being satisfactorily resolved, the Commission suggests that a figure perhaps of the order of $1500 might be prescribed in the regulations as the limit to this value

of property which the Minister may dispose of without representation.

The Commission recommends that apart from sections 149, 152, 154 and 160 which should be retained substantially in their existing form the rest of the division should be replaced by one provision which provides that regulations may be made relating

to the protection, custody and disposal of:

(a) any property left on board a ship to which

this part applies or left in a country

outside Australia by a seaman dying while or within six months of having been employed in such a ship, and

(b) the manner in which, if the value of the

residue of the assets of a deceased seaman does not exceed a prescribed amount the Minister may dispose of them without grant of representation and be discharged of any further

liability in respect of them. - 82 -

DIVISION 18. RELIEF TO SEAMEN'S FAMILIES- (SECTIONS 161-162).

These sections provide that where during the absence of a seaman on a voyage his family obtains relief from a public

body or institution for the relief of destitute persons, that body or institution shall be entitled to recover from his wages the cost of maintaining his family (section 161) and may be reimbursed by a process of having an official give notice to

the shipowner who must retain a proportion of the seaman's wages to satisfy the claim (section 162).

So far as the Commission has been able to ascertain there are in Australia no special bodies or institutions which would provide maintenance for the families of seamen absent on a voyage.

These sections are no longer relevant and should be omitted from the proposed new Act.

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DIVISION 19. RELIEF AND MAINTENANCE OF DISTRESSED SEAMEN -(SECTIONS 163-163A).

Section 163 defines a 'distressed seaman' and clarifies the meaning of the phrase 'relief and maintenance of distressed seamen' which is used in this Division.

The remainder of the Division (s.l63A) provides that the regulations may make provision for and in relation to the relief and maintenance of distressed seamen. In so doing it provides that regulations may prescribe 'the charges which the

owner or master of a British ship may make' for providing passage to a distressed seaman (sub-section 2(c)).

In the main the regulations prescribe the duties and functions of a proper authority in providing for the relief and maintenance and arranging for the repatriation of a distressed seaman. In general the regulations contemplate passage by sea

as the means of repatriation and powers are given to the proper authority to instruct the masters of specified classes of ships to provide passages to such seamen. Finally the regulations provide for the recovery of the expenses incurred by the Commonwealth from the master or the owner of the ship from which

the seaman or seamen were left behind.

Two questions of principle have arisen from the Commission's considerations of these provisions.

The first is that by the definition the seaman must be 'in distress' in order to become eligible for the benefits of the Division. It seems to the Commission that if a seaman

is discharged or left behind or shipwrecked from an Australian ship at a place outside Australia he should be entitled to such relief and repatriation as he needs whether he is 'in distress' or not.

The second is that the Act and the regulations appear to imply that the proper authority shall have the responsibility for providing for the relief and maintenance and return of the seaman,whereupon the cost may be recovered from the master, owner or the seaman. The Commission feels that the responsibility for the care and return of the seaman left at a place overseas

should be with his employer or the owner of the ship from which he was left behind or shipwrecked. The proper authority should only be required to take up the task if the owner is failing to

carry out his obligations and the seaman is in need of assistance. It also seems desirable to place some time limit on the employer's liability to make provision for the seaman's maintenance and repatriation.

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The Commission recommends that the existing Division 19 be replaced by provisions which would require:-

(a) The employer of a person who is left behind

from, discharged from or shipwrecked in a ship to which this part of the Act applies,

at a place outside Australia, to make such provision for that person's relief, maintenance and repatriation as is prescribed.

(b) The proper authority to assist with, and in

the prescribed circumstances to undertake, the relief, maintenance and repatriation of such seamen.

Where expenses are incurred by the Commonwealth under (b) they should be recoverable from the employer.

Where a seaman left behind or discharged in, or after shipwreck, taken to a place outside Australia, refuses to accept a reasonable offer of repatriation made within two weeks of the occurrence or if he chooses after a period of three months, to

remain there the employer should no longer be liable to provide for the seaman's relief, maintenance or repatriation.

85

DIVISION 20. THE MASTER- (SECTIONS 164-169).

The existing legislation lays down the duties and responsibilities of the master of a ship in relation to: (a) searches or inspections of his ship by customs officers and police (s.l64);

(b) the furnishing of crew lists of all ships by

the master (s.l65);

(c) the production of documents by the masters of all British ships to superintendents (s.l67); (d) the handing of documents over to the master's successor (s.l68);

(e) when in port, the burial on shore of the bodies

of persons who die on board the ship (s.l69).

Although it seems likely that much of the ground covered by ss. 164 and 169, is already covered in other Australian Acts or in State legislation, the Commission has no specific grounds for suggesting that they are unnecessary or

should be repealed and these sections might remain substantially as they now are.

With the new system proposed by the Commission with regard to contracts of employment the Crew List (s.l65) will take on increased importance.

Under the proposed system the agreement, (which is now used as the basis of check of qualifications and of required manning by the superintendent, and which forms the basic document evidencing the names etc. of the persons belonging to and present in the ships) will be abolished.

It is proposed that it be replaced by a written

contract to serve, made separately in respect of each employee showing the conditions of employment and when each contract commenced and terminated.

The crew list will serve as the document used to check that the ship is properly manned with the required number of qualified persons and will indicate exactly who is serving on board a ship at any particular time together with details of

their next of kin and the contract under which they are serving. The employer and the master as agent should be required to make and maintain the crew list for this purpose.

In so far as the ships to which Part II will apply,

sections 165 and 167 will therefore need to be replaced by a section which authorises the making of regulations requiring a crew list in the prescribed form to be made and maintained by the employer.

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It was suggested to the Commission that to assist the master in maintaining good order on his ship it is desirable that a further provision be included in the Act making it an offence for any person to go on board a ship without the consent of the master or to remain on board after being requested to

leave by the master. The Commission agrees with the suggestion and recommends that the Act be amended in this way.

A further proposal that the master be empowered to restrain any person on board the ship whether he be a member of the crew or a passenger (see also Report on Part V (s.278) for

as long as it is necessary or expedient in the interests of

safety or for the preservation of good order and discipline on board was supported by shipowners and is also recommended by the Commission.

Section 168 should remain.

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24400/ 76-5

DIVISION 21. THE LOG - (SECTIONS 170-175).

The existing sections provide for the keeping on board a ship of an official log book, as distinct from any of the other

ship's log books, designed: (a) to record the observance of statutory provisions concerning the safety, conduct, welfare and management of a ship

(b) to record on board the ship particulars of

offences committed and action taken by the master in relation to those offences.

Entries in the official log book are admissible as evidence and provision is made for their delivery and scrutiny by superintentents.

There appears to be general acceptance in the industry of the necessity for and the value of the official log.

The Commission recommends that the existing provisions be simplified without major alteration and that the details of the administrative procedures and requirements be covered in regulations and not in the Act.

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PART III. FOREIGN SEAMEN (SECTIONS 177-186).

The main provisions of this Part provide:

at the request of the Consul of the country to

which the ship belongs, for the apprehension of a foreign seaman who is absent from his duty

without leave

punishment for specific offences committed by a foreign seaman in Australia and if the seaman is sentenced, he may be returned to his ship in

custody until the ship leaves Australia.

The offences which are punishable by fines of up to $80 and in one case (e) by imprisonment for three months are:-(a) desertion

(b) refusal to join ship

(c) absence without leave

(d) insubordination

(e) assaulting the master or an officer

It seems to the Commission that the maintenance of discipline on board a foreign ship among seamen belonging to that ship should properly be a matter for the laws of the

country to which the ship belongs.

A suggestion along these lines was not opposed by the representatives in Australia of the major shipping lines operating foreign ships to and from Australia. It is recommended by the Commission that references to offences such

as these committed by seamen belonging to a foreign ship should be left out of the revised Act.

The present provisions (s.l78) provide that a justice may have a foreign seamen who is absent without leave in Australia apprehended and conveyed on board his ship. They further provide (s.l80) that the Minister may order him to be

put (forcibly or otherwise) on board his ship if he has been sentenced to imprisonment under this part or if he is serving a sentence for any other offence on summary conviction and his ship is to leave Australia before the expiration of his sentence.

As has been pointed out in relation to Part II

apprehension and forcible conveyance on board a ship is no longer an acceptable means of dealing with seamen who are absent without leave and have therefore breached their contract of employment.

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In the context of desertion by seamen from Australian ships the Commission has earlier referred to I.L.O. Convention No. 105 which provides that no form of forced or compulsory labour shall be used as a means of labour discipline. However, Australia has treaties with Denmark, Greece, Brazil and France which were made before the I.L.O. Convention came into force.

(See the Commission's Report on International Maritime Conventions). These treaties provide on a reciprocal basis for the apprehension and recovery of deserters which on the face of it appears to be in conflict with the I.L.O. Convention.

Since it is proposed that such treatment shall not be accorded to deserters from Australian ships it seems to the Commission to be inappropriate to provide for the apprehension of foreign seamen on the grounds that they have breached their contract and have deserted their ship, and that the Act needs to be amended accordingly.

Representatives of overseas shipowners did not object to such proposals.

Imprisonment as a punishment for desertion from a foreign ship was inserted in section 179 of the Navigation Act in 1958 and was removed in 1965 as a consequence of Australia's ratification of I.L.O. Convention No. 105. As it appears that the word 'sentenced' in section 180 means sentenced to a term of

imprisonment, the effectiveness of section 180 in dealing with deserters was seriously affected by the removal of this part of the penalty.

The Commission has proposed that desertion from an Australian ship should no longer be treated as an offence. It would be inconsistent with that approach to make desertion from a foreign ship a major offence which involved major punishment

such as imprisonment .

As it does not seem possible to associate desertion with imprisonment and the forcible return of the deserter to his ship, the Commission has given consideration to the other circumstances in which a seaman from a foreign ship may be put back on board his ship.

They are:-(a) where the seaman is absent without leave, on

complaint by the master or owner and at the request of the Consul he may be apprehended and conveyed back on board his ship. (s.l78).

(b) where the seaman has been imprisoned on summary conviction for an offence and whose ship is about to leave Australia, before the expiration

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of his sentence he may by order of the Minister and with the concurrence of the Consul be put back on board his ship and kept there until the

ship leaves Australia. (s.l80).

Regarding the provision in s.l78 and the I.L.O. Convention No. lOS concerning the Abolition of Forced Labour, the I.L.O. Committee of Experts on the Application of Conven­ tions has pressed its view that to forcibly convey a seaman, who has failed to honour his contract of employment by being absent without leave or deserting, back on board his ship contravenes

Article l(c) of the Convention.

The Department of Employment and Industrial Relations which has been consulted holds the view that as the Committee of Experts has requested member States to repeal any provisions of this kind, it would prefer that the legislation did not

contain a provision under which any seaman can be forcibly returned to his ship.

On the other hand Australia has bilateral treaties with the countries mentioned above to facilitate on a reciprocal basis the discovery, apprehension and surrender of seamen who may desert from their merchant ships.

Generally the substance of such an agreement is that the authorities will on the application of the Consul of the country to which the ship belongs give every assistance in their power for the apprehension and sending on board of such

deserters. Obviously there is some conflict in principle between Australia's obligations under these treaties and the inter­ pretation which the Committee of Experts is now placing on the

Convention. Each of the countries concerned, viz Denmark, Greece, Brazil and France have ratified the I.L.O. Convention (No. 105).

The Commission's view is that desertion by a seaman belonging to a foreign ship should not be treated as a criminal offence, and that a new Navigation Act should not provide for his apprehension and/or his return to his own country. A

reassessment of Australia's treaty obligations in this respect will be necessary (see the Commission's Report on International Maritime Conventions).

Presumably the basic principle underlying the inclusion of the provision in the existing Act was that it was necessary to have a strong deterrent and an immediate remedy to ensure the smooth operation of foreign ships to and from Australia. It

is the Commission's view that the deterrent of apprehension and forcible conveyance is not appropriate today to desertion and the shipowners concerned do not now appear to seek retention of the provisions as a worthwhile remedy.

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The rather special circumstances in which a seaman can be returned to his ship under the provisions of s.l80 occur rarely. The provision is not related to a seaman who deserts or is absent without leave.

Although the provision may have value in ensuring that a seaman belonging to a foreign ship was not left behind in Australia for the sake of serving the remainder of a short prison sentence for a minor offence, there is no record or

recollection within the Department of an order ever having been issued under this sub-section.

Retention of the provision was not sought by represen­ tatives of foreign shipowners and it seems to the Commission there is little to justify its retention.

Section 186 provides that where a seaman belonging to a foreign ship is left behind in Australia without the consent of the Consul of the country to which the ship belongs and the

Australian Government incurs expense in sending the seaman out of Australia it may recover the cost from the owner.

Even if the man was left behind with the consent of his Consul, if the Australian Government does 1ncur expense in sending him out of Australia it seems to the Commission that the Government should be able to recover that expense.

The Commission sees a need for a provision to the effect that if a seaman is left behind in Australia from a

foreign ship and the Australian Government incurs expense in maintaining him or sending him to a place outside Australia, it may recover that expense from the owner, agent or master of the ship.

Section 177 provides that for the purpose of the existing provisions a foreign seaman is a seaman belonging to a ship which is not a British ship. Following the new

concept which the Commission recommends of applying Part II only to 'Australian' ships, a foreign seaman will be a seaman belonging to a ship to which Part II does not apply.

The Commission recommends that the meaning of the term 'foreign seaman' might be changed to mean a seaman belonging to a ship not registered in Australia and which is a ship to

which Part II of the proposed new Act would not apply.

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PART IV. SHIPS AND SHIPPING.

DIVISION 1. GENERAL - (SECTIONS 18 7 -192C).

In the introductory sections (ss. 187-188) the Part is applied to all ships that is all ships, British or foreign,

except Australian trade ships engaged in intrastate trade (section 2). The necessary interpretations and definitions are given, including a definition of overloading.

It then goes on to provide (s.l89) that all ships shall

be liable to inspection and survey. Provisions allowing for the appointment of surveyors by the Minister (s.l90) and their powers (section 190AA) follow.

Then follows a provision (s.l90A) requiring notice in writing of any alteration or damage to a ship and setting out the circumstances in which the Minister may cancel a certificate issued to a ship (the issue of certificates is dealt with

subsequently in Divisions 2 and 2B).

Powers are given (ss. 190B, 191, 191A, 192B, 192C) to

make regulations relating to construction, surveys, stability information, nuclear ship, and to give effect to the Safety Convention.

The Commission sees the need for revision along the following lines:

Application

Under the international conventions relating to safety which are now in force each contracting party agrees to apply the Convention regulations to its own ships. It issues a certificate irr the form set out in the Convention indicating

that in respect of the ship there has been compliance with regulations.

Any ship which has valid Convention certificates of this nature is free to operate without hindrance in and out of the ports of all Convention countries. The control of ships in the ports of contracting parties is restricted by the Conventions to action to ensure that ships other than their own flag ships have the required certificates. Intervention is

restricted to those cases where the intervening maritime authority has good ground for believing that the condition of a ship does not correspond with its certificate.

The stated principle of the application of the part to all ships (section 187) is hardly in accord with this concept.

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The pattern of application of safety standards and requirements to ships should be directed towards:

(a) ships registered in Australia or engaged in the coasting trade;

(b) ships registered in a country which is not

a contracting party to the Conventions.

It would however be appropriate to apply to all ships when at ports in Australia or when operating in Australian waters certain provisions relating to the safety of persons going aboard such ships or of other ships in their vicinity.

Appointment of Surveyors

The Commission believes that it is no longer desirable that the Act should specify the exact skill a person must have before he can be appointed as a surveyor (s.l90). Not only has

the range of skills changed with advancing technology but the precise relationship of the specified skill to the duties of a surveyor has tended to disappear. Surveyors are now required to carry out a wide range of duties relating to hulls and

machinery of many types. For example, the need for a surveyor skilled solely in wooden hulls has virtually disappeared. More flexibility in relation to the qualifications required for appointment is necessary.

The Commission recommends the Act provide for the appointment, either by the Minister or by a person authorised by him, of a suitably qualified person as a surveyor.

It may also be considered that special advanced training may be set up in the future at the proposed new Maritime College. It is to be noted also in this connection

that, in the Commission's view, the Maritime College should develop new courses for higher qualifications to replace the Extra Masters and Extra First Class Engineers Certificates, which are at present the required formal qualifications for

the senior grades of surveyors.

The Powers of Surveyors

The powers given to surveyors in the existing provision (s.l90AA) are appropriate to a situation in which all general cargo ships were of the conventional type as opposed to the container ship.

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However with the advent of the container there is a need for a surveyor to have power:

(a) to go into premises where containers are

packed or unpacked and to inspect cargo which is to be or has been stored in a

container;

(b) to survey and inspect the containers

themselves; and

(c) to require the production of documents relating to the container and its contents.

Alteration of Ships and Cancellation of Certificates

This provision (s.l90A) requires the master or owner of a ship to give notice of any alteration, replacement or damage to the hull, machinery or equipment of a ship.

It goes on to specify in detail the only circumstan­ ces in which a certificate issued to a ship may be cancelled.

Regulations Relating to Construction Surveys etc.

Five sections (ss. 190B, 191, 191A, 191B and 191C) give the power to make regulations specifying the requirements with which the construction, hull, equipment and machinery of ships shall comply and provide for the survey and inspection

of ships.

The regulations may make provision giving effect to the Safety Conyention and may apply 'Convention' requirements to classes of ships to which the 'Convention' itself does not apply.

Appeal from Refusal to Issue a Certificate

In a provision which appears later in the Act (s.194(S)) the Minister or in practice his delegate is given power to refuse to issue a certificate to a ship

which in his opinion does not comply with survey require­ ments. In section 192 which is in Division 1 a right of

appeal against such a decision is given to a Court of Marine Inquiry. The Commission agrees that there should be a right of appeal but in the light of the final report of the Committee

on Administrative Discretions it gave its consideration to whether or not appeal to a Court of Marine Inquiry was appropriate.

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Although the final report does not specifically recommend substituting an Administrative Appeals Tribunal for the Court of Marine Inquiry, the Commission took the view that because it was recommending that the whole of the Navigation Act should be revised it would be justified in recommending that

for this purpose the Court of Marine Inquiry should be replaced by the Administrative Appeals Tribunal,

Appeals under this provision are extremely rare, indeed one cannot be recalled,but it seems to the Commission that if an appeal were made the procedures and processes of the Tribunal are well suited to the purpose of the section.

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DIVISION 2. SURVEYS OF STEAMSHIPS AND SURVEY CERTIFICATES -(SECTIONS 193-206).

This Division commences with a provision (s.193) which requires the owner to have a part of his ship which is subject

to survey, surveyed at least once in each prescribed period. The period is twelve months unless the regulations prescribe a longer period.

The process of survey leading to the issue of a

certificate is outlined (s.194). The surveyor makes his survey and report. If he is satisfied that the ship complies, he

furnishes a declaration on the basis of which a certificate may be issued or refused(s.194).

A certificate, once issued, remains in force for the period prescribed in the regulations or where a period is specified in the certificate for that period provided that in appropriate circumstances it may be extended for one month

(s.195).

The certificate while it remains in force must be displayed in the ship to be read by all persons on board (s.l96).

The principle is that a ship,having been properly surveyed, is fit to ply in a specified trade for the specified

period. The certificate cannot be cancelled or suspended except in the circumstances specified in the statute (s.l90A(2)).

Offences are created for having too many passengers on board (s.202).

A survey certificate may be amended after further survey or altered in regard to the number of passengers a ship may carry (s.2D3).

The Division then contains a provision (s.204) that a person authorised by the Minister may inspect a ship which is exempt from survey and on the basis of the report of the

inspection the Minister may cancel or suspend the exemption and the ship becomes liable to survey. Special conditions apply in the case of a Safety Convention ship which is exempt because it holds a valid Safety Convention certificate (s.193(3)).

The Division ends with three provisions of a miscellaneous nature. One relates to the non application of the Division and of Division 6A to ships which have taken refuge in an Australian port (s.204A). The other two relate to the placing

of weights on the safety valve of a steamship (s.205) and to

regulations relating to the operation of watertight fittings in ships (s.206).

- 9 7 -

Section 206 should be retained but section 205 has little relevance to the propulsion machinery of modern ships and its substance would be covered by the regulations relating to the construction of ships.

Because of their relevance to the actual surveys themselves made under ss.l95-196 of this Division the Commission has chosen to deal with the regulations in respect of surveys under this Division although they are made under section 190B which is in a previous Division (Division 1).

The regulations specify the requirements with which the construction, hull and equipment, including radio and machinery of ships, must comply, so giving effect to the regulations under the SOLAS Convention or under the Load Line Convention for determining and assigning load lines and the marking of ships. The manner in which surveys and inspections

shall be conducted is also covered. There are variations between the SOLAS Convention and the Navigation Act requirements in relation to the period within which surveys and inspections must be undertaken. Essentially the most important variation is that while the

Convention requires the periodical survey of the life-saving and fire appliances and other special safety equipment of a cargo ship to be undertaken every two years, the Australian requirement is every 12 months. The period within which the

survey of the hull, machinery and equipment other than that mentioned above of a cargo ship must be inspected is left by the Convention to the discretion of the Administration.

Surveys of cargo ships other than of their safety and radio equipment,may, at the discretion of the owner, be made by a survey authority but all other surveys must be made by persons appointed by the Minister as surveyors.

Surveys of ships for the purpose of assigning a freeboard and issuing load line certificates also may be undertaken by survey authorities.

(a)

(b)

Shipowners express the view that:

every reasonable effort consistent with safety should be made to cut down survey costs and delays to ships; and

adequate provision should be made to allow and encourage running or continuous surveys in order to reduce time during which a ship is laid

up for survey.

The Commission agrees with these views.

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The existing Act and its regulations were not designed to allow for this process of continuous survey. As has been

pointed out; the legislative framework now provides that on the ship being built, its structure and condition is checked initially by a surveyor while it is being built or when it is

n e w. It is then maintained and kept in repair by the owner

and checked at specified periods by a surveyor who makes a declaration as to its fitness to ply. A certificate may then be issued valid for a specified period.

The Commission recommends that:

(a) provision be made in the Act and Regulations to adequately cover running or continuous surveys as well as periodical surveys and to provide for periodical equipment surveys of ships possibly at less frequent intervals than is now required. (b) the Act should be rearranged and should set

out uniform and consistent principles applicable to surveys and inspections of ships in regard to

(i) structures and machinery

(ii) safety equipment (iii) radio

(iv) load lines.

The Act in Division 2B of Part IV a nd the existing

regulations made under sections 191 and 194(4) provide for the issue of safety a nd survey certificates.

Because of the r e quirement in the International Convention for the Safety of Life a t Sea and the Load Line

Convention that the Convention certificates shall follow the models given in the Convention the i s sue of the fi ve separate kinds of SOLAS Certificates and the International Load Line Certificate, each with its own exemption certificate is covered.

In addition provision is made for the issue of the following 'non Convention' type certificates to ships to which the Conventions do not apply:

(a) Certificate of Survey Passenger Ship

(b) Passenger Certificate

(c) Certificate o f Survey Cargo Ship

(d) Certificate o f Survey River Murray S t eamship

(e) Certificate of Equipment

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(f)

(g)

Certificate relating to Annual Inspection of a Cargo Ship

Australian Load Line Certificate (see later under Division 5).

The Commission recommends inclusion of the power to make regulations providing for:-(a) the issue to non Convention ships, of one

Australian safety certificate,with procedure for periodical renewal, indicating compliance with the prescribed standards and other requirements;

(b) shipowners to keep and produce manuals evidencing continuous maintenance;

(c) the keeping on board a ship of a survey record

which would be a permanent and detailed record of the surveys and inspections of its structure and equipment; and (d) this Survey Master Record to be carried by

the ship at all times and made available for notation and inspections by surveyors and other authorised persons:

The regulations should set out in detail and in a simplified form, requirements and procedures for:

(a) periodical surveys;

(b) periodical inspections;

(c) the issue of safety certificates and

exemption certificates.

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DIVISION ZA. SAILING SHIPS- (SECTION 206B).

This provision applies the requirements of Division 2 to sailing ships of over SO gross tons. Sailing ships and

particularly commercial sailing vessels have of course declined very much in importance. Application of the part to sailing ships should be covered in a new provision or in the definition of 'ship' for the purpose of this Part.

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DIVISION ZB. ISSUE OF SAFETY CERTIFICATES- (SECTIONS 206C-206Q).

The Safety Convention requires the issue of certain specified certificates known in this Division as safety certificates (see also Report on Division 2 above). Sections 206C-206K give the Minister power to issue those certificates, The Convention also empowers the issue of certificates by, or on behalf of, another Government. Sections 2061 and 206M authorise the Minister to request or to issue such certificates.

Sections 206N, 206P and 206Q deal with the Convention requirements in relation to the duration, extension and display of safety certificates.

As the provisions give effect to the Convention no change of substance can be contemplated.

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DIVISION 2C. SURVEY AND SAFETY CERTIFICATES REQUIRED FOR SHIPS (SECTIONS 206R-206X).

The Convention requirement that a ship on international voyages shall be surveyed and shall have a certificate indicating its compliance with acceptable safety standards is enforced by providing that a ship may not go to sea from a port in Australia

unless it has on board the certificates required by the Convention.

The Division sets out in detail (in ss. 206S-206V) the certificates which are required to be in force in respect of each different class of ship and which may be required to be produced to Customs before a clearance is granted to a ship

from an Australian port (ss. 206W).

The procedure outlined in section 206W envisages the production of certificates, if so required by the officer of Customs, before a clearance under the Customs Act is given. It provides that the Customs officer may refuse to grant the

clearance and the ship may be detained until the certificates are produced to him.

Since this provision was inserted in the Act in 1967 amendments to the Customs Act designed to simplify the 'clearance' procedures and to facilitate the movement of coastal ships, have removed the requirement for such ships to have a customs clearance on voyages between ports in Australia. Consequently the value of section 206W as an 'enforcement' provision has been reduced, especially in relation to ships

engaged solely in the coasting trade or ships clearing for another port in Australia which are the ships to which the enforcement is mainly directed.

The matter has been discussed with officers of the Department of Business and Consumer Affairs who confirm that they could not now act effectively to detain coastal vessels by refusing them a clearance. However in regard to vessels

requiring a clearance for an overseas destination the position has not changed.

It seems to the Commission that it would be unwise to

have different procedures in this area for overseas and coastal ships. The Commission recommends that the 'gap' left by the change in Customs law be filled by an amendment to the Act which deletes the substance of section 206W and instead:-

(a) increases substantially the penalty for taking an Australian ship or a non-safety convention ship not registered in Australia to sea without the required certificates (ss. 206S-206V); and

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(b) provides that an officer authorised by the Minister may, before a ship goes to sea, require the master to produce to him the required certificates and that the ship may be detained

until the certificates are produced. The actual processes of detention are discussed later in this Report.

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DIVISION 3. UNSEAWORTHY SHIPS - (SECTIONS 207-214).

The existing provisions (ss.210, 211, 214) lay down the circumstances in which a British or foreign ship shall not be deemed to be seaworthy. Such a ship is subject to detention.

In actual practice, so far as the Commission has been able to

ascertain, no ship has ever been finally detained under these provisions.

Under the SOLAS Convention a Safety Convention ship, not registered in Australia, with valid certificates in force, cannot be deemed unseaworthy in respect of its condition or its equipment unless the condition of the ship or its equipment

does not correspond substantially with the particulars of its safety certificates (s.207).

Sending a ship to sea in an unseaworthy state so that

the life of any person is likely to be endangered is an

indictable offence (s.208). A master who takes a ship to sea knowing it to be unseaworthy and likely to endanger life is guilty of a similar offence. A prosecution for such an offence can be initiated only with the consent of the Attorney-General.

It is also an indictable offence for a master to take a detained

ship to sea (s.212).

The Minister may order any ship which is or appears to him to be unseaworthy to be provisionally detained.

The procedure then is:

(a) notification with statement of grounds for the provisional detention is served on the master;

(b) the Minister may direct a competent person to survey the ship and report;

(c) on receipt of the report, he may finally

detain the ship or order her release unconditionally or subject to such conditions as he deems fit;

(d) before the order for final detention is

issued the master is furnished with a copy of the report and he may within seven days appeal to a Court of

Marine Inquiry.

In addition the Minister also has power at any time to refer the matter to a Court of Marine Inquiry. When referred to it the Court can then after inquiry, order either the final detention of the ship or her release.

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Provision is also made to cover costs of detention (s.211). If the Court decides that there was no reasonable cause for the provisional detention, the Minister may be liable to pay to the owner his costs and compensation for any loss or

damage sustained by reason of the detention.

On the other hand, if the ship is finally detained or

was at the time of provisional detention unseaworthy, the owner can be liable for the Minister's costs.

Where a complaint is made that a ship is unseaworthy, the complainant may be required (ss. 213-214) to give security or to pay for any costs the Minister may incur.

Special provisions in the present Act allow for the detention of foreign ships (see s.192A in Division 1 of this part). The Consul of the country in which the ship is

registered must be advised and the Consul must be given the opportunity to be represented at the survey.

The subject matter of section 209 which provides that a seaman on a British ship shall not be deemed to have committed a breach of his agreement if he refuses to sail in an

unseaworthy ship is relevant to Part II of the Act and has been

dealt with in this Report on that part.

As has been discussed earlier in this Report the Commission sees the Administr ative Appeals Tribunal as an appropriate body to review decisions made under the Navigation Act. It feels the decision of the Minister (or his delegate)

to provisionally or finally detain an unseaworthy ship is a decision which should be reviewed by the Tribunal and not by a Court of Marine Inquiry. It believes that the substance of the existing provisions relating to costs of detention and survey

(ss. 211(1) and (2), 213 and 214) should not be changed in

relation to the detention of unseaworthy ships. Section 211(3) would have no relevance if the Tribunal was used in this way.

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DIVISION 4. LIFE-SAVING APPLIANCES AND FIRE PROTECTION -(SECTIONS 215-217).

This Division gives the power to make regulations in relation to life saving at sea and fire prevention on ships (s.215). A further provision (s.216A) relates to the modification by memorandum, of certificates in respect of the

number of life-saving appliances which must be carried.

It also creates offences in regard to going to sea

without fit and proper life-saving and fire appliances (s.217).

No need for revision of the substance of the provisions is seen by the Commission.

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DIVISION 5. LOAD LINES- (SECTIONS 218-227E).

In this Division provisions apply the International Load Line Convention and relate to the issue, suspension, cancellation, duration etc. of certificates, the enforcement of the special requirements of the Convention and give a power to make regulations to give effect to the Convention (ss. 218-227,

227E, 223-227).

Similarly there is a power to make regulations in respect of load lines for Australian ships to which the Load Line Convention does not apply (s.220), and provisions relating to the issue and display of Australian load line certificates for non convention ships registered in Australia (ss. 222, 225).

As in the case of safety certificates there is also

a provision (s.227A) which makes it an offence to take or permit a ship registered in Australia to be taken to sea without the required load line certificates (s.227A(3) and (4)). The granting of a customs clearance and the detention of a ship which has not produced the proper load line certificates are

also covered in sub-section 227A(3) and (4) in a manner identical with that of section 206W relating to safety certificates.

The comments on changed customs procedures and the Commission's recommendation for an amendment of the Act apply to load line certificates as they do to safety certificates.

There are other provisions which are relevant only to load lines. They relate to the offence of overloading (s.227B), the offence of not keeping a ship marked with its load lines (s.277D) and a section providing for the detention of ships which are incorrectly marked (s.277C).

An Australian ship which is overloaded or which does not comply with the conditions upon which its freeboard was assigned can be detained as an unseaworthy ship in accordance with the provisions of Division 3 referred to earlier (see

ss. 207-208). The Load Line Convention has special requirements relating to the circumstances in which a country which is a party to the Convention may in its ports exercise control of ships belonging to other parties. Section 227E relates to the

inspection of such ships and the circumstances in which they may be deemed unseaworthy. It follows the principles enunciated in the Convention.

As is the case in regard to the legislation and the

Safety Convention this Division has the effect of applying the requirements and standards for load lines laid down in the international Load Line Convention to most Australian ships.

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Australia being a party to the Convention and bound by its regulations there is little scope for review or revision of the provisions except in accordance with amendments to the Convention itself.

The views and observations which this Commission has made in regard to the safety provisions apply in general to the load line provisions. Apart from taking the opportunity to simplify and rearrange the existing provisions no changes of

substance can be considered as the requirements must relate to the actual text of the Load Line Convention.

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DIVISION 6. SIGNALS OF DISTRESS- (SECTIONS 228-230).

The existing provisions require ships to be furnished with the means of making signals of distress and they are not permitted to go to sea unless they are so furnished (s.228). The regulations prescribe what the signals shall be and how

they shall be used (s.229). A person who improperly uses a signal, not only incurs the penalties imposed by the regula­ tions but is also liable for compensation for any labour undertaken, risk incurred, or loss sustained in consequence

of the improper use.

The Commission recommends it should also be made an offence for a person to make, transmit or exhibit, except in the case of a ship that is genuinely in distress

or in need of assistance, a signal of distress.

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DIVISION 6A. RADIO EQUIPMENT - (SECTIONS 231-231F).

This Division requires non safety convention ships and safety convention ships registered in Australia to be equipped with radio installations and radio navigational aids as required in the regulations (s.231, 231A, 231F). Such ships

are also required to carry radio operators (s.231B) and to keep radio log books (s.231E).

The master of the ship is required to maintain and use the radio installation and the radio navigational aid in the manner prescribed (s.231C).

A ship, including a safety convention ship registered in a country other than Australia,may be detained if it does not carry the required radio operators (s.231D).

Regulations deal with the appropriate requirements.

Lesser requirements in respect of the carriage of radiotelephony installations are also applied to smaller cargo ships of less than 300 tons which are not covered by the

Convention. Regulations deal with the appropriate requirements.

No submissions were made to the Commission indicating any need to revise the provisions. However it does seem to the

Commission that particularly in smaller ships to which the Convention does not apply it would be worthwhile to consider the possibility of building greater flexibility into the requirements so as to permit the greater utilisation of

radiotelephony. The Commission was advised that further research may be necessary as to the capability and reliability of radiotelephony communications in various areas around Australia before any steps were taken to relax the existing requirement

for radiotelegraphy.

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DIVISION 7. COMPASSES - (SECTIONS 232-234).

Power is given to make regulations relating to the equipping of ships with compasses and the examination and adjustment of compasses on ships (s.232).

In addition the r e gulations provide for the licensing of persons as compass adjusters, set out their duties and the fees they may charge.

A ship may not be taken to sea unless it is equipped

with compas ses which have been adjusted in accordance with the regulations (s.233). A ship not equipped with proper compasses is deemed to be unseaworthy (s.234).

The Division does not specifically refer to a magnetic compass but its requirements make little sense except in relation to magnetic compasses which were the type of comp a ss in common us e when the Act was passed.

No submissions were made to the Commission in regard to this Division. It seemed to the Commission that the develop­ ment of modern aids to navigation and of new types of compasses must have d eprived the magnetic compass of some of the unique position it held earlier in marine navigation.

The Commission considered that it should be sufficient to prescribe by regulation the compasses which should be carried as part of the equipment of a ship. If the requirement for the

ship included a magnetic compass then that compass would, of course, have to be properly adjusted. It should be the

r esponsibility of the owner to see that it was adjusted by a competent person and the surveyor should ensure that this was done.

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DIVISION 8. COLLISION, BOAT AND FIRE DRILLS- (SECTION 235).

The Division contains only one section (s.235) which provides that the master of a ship registered in Australia or engaged in the cbasting trade shall ensure that musters and drills are held as required by the regulations. A record of

the musters and drills held shall be recorded in the official log book. A penalty is imposed on a member of the crew who fails to take part in any muster or drill.

The Commission sees no need for revision.

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DIVISION 10. DANGEROUS GOODS, LIVESTOCK, GRAIN, DECK AND OTHER CARGOES - (SECTIONS 248-257).

Lists of dangerous goods are fixed by proclamation (s.248) and a penalty of $2,000 is imposed for shipping dangerous goods unless the outside of the packages are properly marked and a description of the goods in writing is given to

the owner or master before the goods are placed on board (s.249). In addition the powers of the owner or master to refuse to carry any dangerous goods or deal with dangerous goods shipped without his knowledge are set out (s.250).

Unless his agreement provides to the contrary, a seaman may decline to go to sea in a British ship carrying dangerous goods otherwise than in compliance with the regulations (s.251).

An interesting provision which has been in this type of legislation for a long time provides (s.252) that any dangerous goods shipped in contravention of the Act may be forfeited by order of a Court.

It is an offence to knowingly send dangerous goods by ship under a false description or to falsely describe the sender of dangerous goods (s.253). There is a power to make regulations relating to the carriage of dangerous goods (s.253A) and Ministerial determinations made under the regulations fix

the detailed requirements for packing, labelling, stowing and carriage of dangerous goods.

If the Minister is of the opinion that the carriage

of any cargo or goods would endanger the ship, he may prohibit the carriage of those goods and may have the ship detained until the cargo or goods have been removed (s.254).

Before any dangerous goods are shipped the shipper must give a notice of intention to ship (s.255).

The last two sections of this Division (ss. 256-257) deal with the stowage and carriage of cargoes of a special nature. Regulations made under these and other sections provide for the stowage and carriage of grain, livestock, deck cargo, pig iron, coal and ballast and in the case of grain give effect

to Chapter VI of the Safety Convention.

Suggestions along the following lines have been made to the Commission in respect of this Division and the regulations:-(a) the powers of the owner or master (s.250) should

include power to refuse to take on board dangerous goods.

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(b) the right of a seaman to decline to go to sea

in a ship improperly carrying dangerous goods (s.251) should be withdrawn. Instead he should be permitted to report his concern to a superintendent who should be required to have

the matter investigated.

(c) with the advent of new types of ships, e.g.

vehicle deck and container, some revision of the requirements in the regulations to suit new methods of carriage and stowage e.g. in vehicles or containers is desirable.

(d) the use and handling of dangerous goods on ships

such as seismic survey vessels, which may not carry dangerous goods as cargo, but use them in

their operations, should also be controlled by the legislation.

Dangerous Goods

The existing procedure laid down in Navigation (Dangerous Goods) Regulation 6(1) means that the Minister determines the requirements with which dangerous goods and the packing, stowing and carriage of dangerous goods shall comply by means of a determination published in the Gazette.

The present determination which is based on the equivalent British publication runs to some 350 pages. In this Commission's Report on Maritime Standards and Controls it is suggested that Australia should adopt the IMCO code of standards

for the packing, stowing and carriage of dangerous goods by sea as the basic Australian requirement. A power to make regulations allowing the standards to be determined by adoption of the code and its amendments would be necessary to implement this

suggestion and is recommended by the Commission.

Grain

The regulations now require notice of intention to load grain and the surveyor may inspect the ship to see

that its fittings comply at any time during the loading or after the grain has been loaded. Notification that loading has been completed is also required, and, if a further inspection is required, the ship may not be taken to sea until a surveyor

authorises its departure. The Commission does not support any change in these requirements.

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Deck Cargo and Livestock

The regulations now require notice of intention to load livestock or deck cargo followed by an inspection by a surveyor. Carriage of livestock other than in compliance with the regulations makes the owner, master or agent liable to a penalty not exceeding $1000. (s.256).

It seems to the Commission that use of container ships and ships specially designed to transport stock makes a new approach desirable.

This approach could be to set out the basic principles which must be complied with when loading or carrying deck cargo or livestock. They should be prescribed with a penalty for non compliance. It might then be provided that a surveyor should

be able at any time to inspect the ship and, if the surveyor is

satisfied that deck cargo or livestock is being carried in a manner likely to endanger the safety of the ship, or to inter­ fere with the comfort of those on board or to lead to a high

mortality rate in livestock, the master should be required to have the cargo restowed or the livestock carried in a satisfactory manner before the ship is allowed to go to sea.

For the guidance of the owner, master and agent, a code of sound practices, based on such principles, might be prepared and circulated for use as a basis of determining what are satisfactory methods of carrying livestock in various types of vessels.

General

It has been brought to the notice of the Commission that the penalty in the regulations for taking of a ship to sea

which has been loaded with grain otherwise than in accordance with the regulations is $40. A similar position applies in the case of pig iron, coal and ballast and other dangerous cargoes. For the carriage of deck cargo or livestock other than in accordance with the regulations, the penalty is $100.

It also seems to the Commission that a more specific power of detention if a ship has not been loaded in compliance with the regulations is desirable. For example under the Merchant Shipping Act a ship improperly loaded with grain is

deemed to be unsafe and may be detained as an unseaworthy ship.

However section 254 appears to deal with the subject in another way by providing that the Minister may by notice prohibit the carriage of any cargo which endangers the safety, or interferes with the comfort of passengers or crew and the

ship may be detained until the prohibited cargo has been removed from the ship.

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Having considered these suggestions the Commission sees a need for revision in this Division which would include in the Act:

(a) power to make regulations relating to:

(i)

(ii)

(iii)

the notification, description, documentation and packing of dangerous goods before loading and the quantities which may be loaded which will allow the IMCO code to be used to provide

the basic list of dangerous goods and the requirements for packing, stowing and carriage by sea of such goods in place of the existing

Ministerial determinations; precautions to be observed in the loading or unloading of dangerous goods at any port in Australia or the handling and use of

dangerous goods at sea;

stowage and carriage of dangerous goods in ship or classes of ships.

(b) the power of the owner or master to:

(c)

(d)

(i) refuse to take on board dangerous goods; (ii) open and inspect any package suspected of containing dangerous goods not properly documented or described on the package;

(iii) deal in a prescribed manner with any dangerous goods shipped or carried without his knowledge.

the power of the Minister to detain a ship which has loaded or is carrying dangerous goods otherwise than in accordance with the regulations until those goods are removed from the ship (in a manner to be

prescribed). a provision that where the Minister is satisfied that dangerous goods are being loaded, unloaded, stowed, carried or used in a ship otherwise than

in accordance with the Act in such a manner as to

constitute a danger to persons on or near the ship, he may require the owner or master to take such action in relation to the ship and/or its cargo as

he specifies.

(e) a provision to increase the penalties for attempting to take a ship to sea which has not been loaded or

stowed in accordance with the regulations.

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(f) a provision that where the Minister is satisfied that cargo or live stock has been loaded or

stowed in a ship otherwise than in accordance with the Act in such a manner as to endanger the

safety of the ship, interfere with the comfort of those on board or contribute to a high mortality. rate in live stock, the master shall not take the

ship to sea until the cargo has been removed or

stowed in accordance with the Act.

(g) include within the requirements of this Division dangerous goods and hazardous substances used in a ship's operations.

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DIVISION 11. COLLISIONS, LOSS OR DAMAGE- (SECTIONS 258-26SA).

Lights and signals in accordance with the International Collision Regulations must be provided and used on a ship. The main provision (s.258) allows regulations to be made giving effect to the International Regulations for Preventing Colli­

sions at Sea, 1960.

The section provides for penalties for offences against the regulations which incorporate the text of the International Regulations. An interesting feature is that the Court before which proceedings for such offences are heard shall be assisted

by two assessors with nautical experience.

Section 258A requires careful navigation near ice and is a requirement of the Safety Convention. Four provisions which follow i.e. ss. 259-261A and section 264 give effect to the Convention for the Unification of Certain Rules of Law with Respect to Collisions, Brussels 1910

in so far as it relates to the rules that losses are to be

proportionate to the degree of fault in respect of each vessel, and, where loss of life or personal injury is suffered, that liability of owners is joint and several, with certain rights of contribution between the owners. The provisions are extended

to apply to naval vessels.

In the case of collision between vessels the Act provides that it be a duty of the master of each vessel to

render assistance to and to stay by the other vessel. Failure to comply is an indictable offence and a ground for cancellation of a certificate of competence (s.372).

The next section (s.262) confers admiralty jurisdiction in cases of loss of life or personal injury.

In section 265, effect is given to Article II of

another Brussels Convention, the Convention for the Unification of Certain Rules Respecting Assistance and Salvage at Sea, 1910. It provides that the master of a ship registered in Australia or engaged in the coasting trade shall cause his ship to

proceed with all speed to the assistance of persons in distress. He may be released from his obligation if another ship has been requisitioned to assist or if another ship has reached the scene. Failure to comply is an indictable offence and a record

of all such incidents must be made in the official log book.

Section 265A applies the liabilities imposed on owners by the provisions of this Division 11, to charterers and other persons responsible for the navigation and management of a vessel.

119

24400/ 76- 6

No submissions suggesting any need for revision in these Divisions were made to the Commission. In keeping with the spirit of section 261A, as there are vessels which belong to the Army and the Air Force, as well as to the Navy, the

provisions of sections 259-261 might be extended to apply not only to all vessels belonging to the Navy but to the Defence forces of the Commonwealth generally.

The Commission also considers that the references to the Merchant Shipping Act in ss263 and 264(3) and (4) should be modernised as a part of the general revision of the Act.

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DIVISION 13. REPORT OF ACCIDENTS AND OF DANGERS TO NAVIGATION -(SECTIONS 268-269A).

This Division relates to the duty of the master of a

ship registered in Australia, or if not registered in Australia on a voyage to a port in Australia or within the limits of

Australia to report accidents to his ship or the fouling or

damage to a pipeline, cable or navigational aid (s.268). It is also the duty of the master of a ship registered in Australia or engaged in the coasting trade to report dangers to navigation (s.269(A)).

It also relates (s.269) to the duty of the owner or

agent of a ship registered in Australia to give notification of the loss or presumed loss of the ship.

The Commission sees no need for any major amendment in relation to the nature of the accidents or dangers which must be reported except it believes it would be helpful if the enumerated accidents in section 268 paragraphs (a) to (d) also

included reports of any damage caused by a ship.

It is, however, suggested that the classes of ships in respect of which a report is required should be reconsidered.

The requirement to report under section 268 in so far as it relates to damage to a pipeline or submarine cable arises from Article 27 of the Convention on the High Seas, Geneva, 1958 and should apply only to a ship flying the Australian flag.

In the interest of maintaining an efficient system of marine navigational aids, a report of damage should be required of any ship which fouls or damages an aid.

Similarly, the requirement to communicate reports of dangers to navigation is included in the Safety Convention (Chap. V. Reg. 2) which applies to the master of every ship.

The Commission recommends the requirements of the Division should apply as follows:-Reports of Accidents) involving ships or )

persons )

)

Report of damage to )

pipelines or cables ) Report of damage to navaids, and of dangers to navigation

Ships . . . (i) Registered in

Australia (ii) Not registered in Australia engaged in the coasting trade or within the

territorial waters. ... All ships.

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Safety on Board and Safe Working Practices

There is no part of the Act which relates specifically to a safety code or safe working practices on a ship at sea or

in port, apart from the following power to make regulations which relate basically to the activities of or shore based operators and not to the activities of the sea-going personnel.

Section 425 (see Part XI) empowers the making of regulations in relation to such aspects as:

(a) the inspection and testing of machinery and appliances for the loading and unloading of ships;

(b) the prevention of the use of defective machinery or appliances for the loading or unloading of ships;

(c) the protection of the health and the security

from injury of persons engaged in the loading or unloading of ships;

(d) the regulation of the use of lights or fire

in the holds of ships;

(e) the safety of persons, including pilots, going on or coming from, or on board, ships.

The Navigation (Loading and Unloading - Safety Measures) made under this section prescribe the

safety measures to be applied in the use of cargo gear and other measures and practices for safety in loading and unloading ships. These regulations apply to the loading and unloading of ships registered in Australia and in relation to the loading and unloading of other ships at ports in Australia.

The provision and use of accommodation ladders, gangways, handrails, pilot ladders, and safety net is regulated by the Navigation (Miscellaneous Equipment) Regulations.

Any failure of cargo gear being used at a port in

Australia and any injury to a person which requires hospitalisation must be reported.

Apart from these provisions in the regulations the main burden of the existing legislation in this part is to ensure the safety of the ship itself and hence the people in it,

against the risk in that it may founder, take fire, be stranded or involved in a collision.

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The International Labour Conference of 1970 adopted a Convention concerning the Prevention of Occupational Accidents to Seafarers (Convention No. 134) which deals with the subject. Some of the requirements of the Convention are already covered

in Australian legislation. Extension of the legislation to allow ratification by Australia may involve statutory requirements along the following lines:

(a) a requirement to report and investigate all accidents resulting in loss of life or personal injury;

(b) a requirement that owners provide specified protective equipment and safeguards and that seafarers use such equipment and safeguards.

Representatives of both unions and employers expressed agreement in principle with the proposal that the Act should be extended to provide the necessary requirements in this area.

The Commission recommends that the Act should empower the making of regulations to ensure as far as practicable that safe working conditions and practices apply on all Australian ships and that owners and masters are required to report accidents and injuries to all persons occurring on such ships.

The regulations should:

(a) specify measures for the prevention of accidents including the maintenance, inspection and testing of equipment, and the conditions under which seafarers are permitted to engage in

certain operations; and (b) provide for adequate inspection and enforcement.

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PART V. PASSENGERS- (SECTIONS 270-282).

In accordance with the principles the Commission has already accepted, this Division should be applied to passengers on ships:

(a) registered in Australia or engaged in the coasting trade, and

(b) carrying passengers who embark at a port or place in Australia for a voyage which terminates at a port or place in Australia (e.g. cruise ships).

This part provides for the making of Regulations in relation to the carriage of passengers on ships, designed mainly to cover the comfort and safety of passengers (s.270).

Although there is power to do so, no regulations have yet been made in regard to 'discipline', 'sale of spirits', 'passenger lists'.

The regulations may be applied not only to ships registered in Australia or engaged in the coasting trade but also to ships regularly trading to and from Australia which are owned in Australia.

The Act then deals with the following matters relating mainly to legal rights of passengers, which were derived from similar sections under the heading 'Emigrant Ships' in the Merchant Shipping Act 1894, which have since been repealed:

(a)

(b)

(c)

(d)

(e)

(f)

passengers from a wrecked ship are to be and taken to their intended port

of destination by the owner or master (s.272)

the validity of policies of insurance to cover liability for passage money or compensation must be ensured (s.273)

the owner shall be the person responsible to other persons liable in respect of a default under the Act (s.274) unless a passenger gives consent he shall not

be landed elsewhere than at destination (s.275)

the right of action by a passenger on a contract

is saved (s.276) a penalty for inducing a person by fraud to take

a passage in a ship is provided (s.277)

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Sections which correspond with similar sections of the Merchant Shipping Act 1894, under the heading 'Passenger Ships', and which have not been repealed then follow. They relate to keeping order on passenger ships and are:-

(a) a passenger shall not wilfully injure machinery in a ship (s.278);

(b) a power to exclude disorderly or diseased persons (s. 2 79);

(c) a lunatic shall not take a passage unless

the owner, master or agent is informed (s. 280); and

(d) the creation of offences by passengers and disorderly persons (ss. 281, 282).

No submissions suggesting a need for the revision of Part V were made to the Commission. It seemed to the Commission that the existing regulations are somewhat out of date, are not used and in some cases the regulations apply the official

instructions of the U.K. authorities as the operative controls, e.g. in regard to numbers of passengers, their accommodation and sanitary matters. In regard to legal rights of passengers (ss. 272-277) it is not usual now to provide by statute for such forms of

protection for passengers on other modes of transport in Australia.

It aiso seems appropriate to replace the provisions (ss. 278-282) designed to keep order on passenger ships with a power to make regulations to ensure that persons on ships do not endanger the ship or cause annoyance or injury to other passengers.

The Commission believes that in modern conditions in Australia where adequate controls relating to safety and manning are applied to passenger ships, all that is necessary is a power of intervention at the discretion of the Minister in

circumstances in which he feels that conditions on a passenger ship are such that they may endanger the comfort, health, or well-being of the passengers.

In relation to Australian ships support should be given to the Minister's power by providing that the ship may be detained until the Minister is satisfied that it may proceed without endangering the comfort, health or well-being of the passengers.

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To this should be added a power to make regulations in relation to passengers designed to:

(a) maintain good order on ships in respect of

persons other than crew

(b) prevent wilful damage or injury to the

machinery or equipment of a ship by passengers

(c) prevent any obstruction by passengers to the master or crew in the execution of their duty (d) prevent a passenger from being molested.

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PART VI THE COASTING TRADE.

Existing Provisions

Part VI begins with a section (s.284) which applies the part to all ships (British and foreign). The part came into

operation on 1.7.1921 (s. 285). The key provision lso 288) provides, that subject to the Act, a ship shall not engage in

the coasting trade unless licensed to do so.

Although legally there is no bar to a ship of any flag

obtaining such a licence provided it complies which the conditions set out below, in practice the effect of the legislation in the current industrial environment is to reserve the coasting trade to British ships registered in Australia or to ships under bare boat charter to Australian operators.

The licence is issued ls. 288(3)) subject to compliance whilst engaged in the coasting trade with the following conditions:

(a) that seamen are paid at current rates of pay

ruling in Australia;

(b) that in the case of a foreign ship the ship

is provided with the same number of officers and seamen and the same accommodation for them as if she were a British ship registered in Australia or engaged in the coasting trade;

(c) that where a library is provided for the use

of passengers, every seaman and apprentice is entitled to obtain books therefromo Before granting a licence, the Minister may require security for compliance with these conditions (s. 288(5)).

In the event of failure to comply with the conditions of a licence relating to pay and to manning and accommodation, the owner is liable to a fine not exceeding one thousand

dollars. Failure to comply with the condition regarding the provision of a library may bring a fine of up to $40. In

addition, the Act provides that the Minister may cancel a licence if he is satisfied a breach of any of these conditions has been committed. No licence may be cancelled unless the master, owner or agent of the ship has been given the

opportunity to show cause against cancellation (ss. 288(4), (6), ( 7)) •

Licences, which under the Act may be granted for a prescribed period not exceeding three years, are granted by the Minister for a period ending on the next June 30 for a fee of

$1 to $5, varying with the size of the ship (s . 288(2)) and the

Navigation (Manning and Coasting Trade) Regulations).

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The regulations prescribe that on receipt of an application accompanied by the prescribed fee the Minister issue a licence or grant a renewal.

Another provision (s. 287) prevents a ship which is to receive or has in the immediate past twelve months been receiving any subsidy or bonus from a Government other than the Government of a Commonwealth country from engaging in the coasting trade.

Unlicensed ships can be permitted to carry cargo and passengers which would otherwise be regarded as engaging in the coasting trade.

Section 286 sets out the circumstances and the manner in which a permit may be granted by the Minister to an unlicensed ship to engage in the coasting trade. They are:

(a) by means of a permit issued, for a single voyage

or on a continuing basis, between ports where the Minister is satisfied:

(i)

(ii)

(iii)

it is desirable in the public interests to do so, and

that no licensed ship is available for the service, or

that the service as carried out by a

licensed ship or ships is inadequate to the needs of such ports.

(A continuing permit may be cancelled on six months' notice).

(b) by means of a notice published in the Gazette where

the Minister is satisfied that the tourist traffic between ports is being injured or retarded.

In the case of ships trading beyond Australia, the wages which seamen are entitled to whilst the ship has been engaged in the coasting trade shall be paid before the ship departs from Australia. The ship may be detained if this is not done (section 289(2)), provided that in the case of a British ship voyaging to a Commonwealth country, security may be taken covering payment on discharge (s. 289(3) and (4)).

Provision is made (s. 290) for an endorsement on the agreement of a British ship specifying the wages to be paid to its seamen whilst the ship is engaged in the coasting trade and no provision in any agreement made in or out of Australia may

limit the rights of any seaman under this part (s. 291).

The documents which are evidence of rates of wages ruling in Australia for seamen employed in the coasting trade are specified (s. 292).

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The master, owners, and agents of any ship engaging in the coasting trade are jointly and severally responsible for compliance with this part of the Act (s. 293).

By section 293A the Governor-General has power by proclamation to suspend conditionally or unconditionally, for a specified period the operation of any provision of the Part.

The activities which are included in the term 'coasting trade' are defined in Part I of the Act.

Section 7 of that Part I states that a ship shall be

deemed to be engaging in the coasting trade if she takes on

board passengers or cargo at any port in a State or a territory

to be carried to and landed or delivered at:-(a) any other port in the same State or

territory, or

(b) any other port in any other State or

territory. This section, and equally Part VI of the Act are, of

course, subject to section 2 of the Act which means that their provisions do not apply in relation to Australian trade ships unless they are engaged in interstate or overseas trade or commerce.

Three provisos which set out exemptions or conditions under which a ship is not deemed to be engaged in the coasting

trade are also included in section 7.

The first provides that a ship shall not be deemed to

be engaged by reason of the fact that she carried:

(a) Pa?sengers who hold through tickets, to or

from a port beyond Australia, or

(b) Cargo consigned on a through bill of lading

or from a port beyond Australia which is not transhipped to or from any unlicensed ship trading exclusively in Australian waters,

(c) Mails between any ports in Australia or in the

territories, or (d) As a passenger

(i) the owner of the ship or a member of

his family or a servant

(ii) a pilot proceeding from his home

station to meet a vessel or returning to his home station after piloting a vessel.

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The second provides that the Governor-General may by order declare that the carriage of passengers or cargo between ports in a territory or between ports in a territory and any other Australian ports or ports in another territory shall not

be deemed engaging in the coasting trade.

Orders have been made relating to Norfolk Is., Nauru, Cocos (Keeling) Islands, Chritsmas Is. and between ports in the Northern Territory.

The third provides that a British ship of not less

than 10,000 gross tons and capable of not less than 14 knots shall not be deemed to engage in the coasting trade if she

carries passengers from a port in Australia to another port in Australia not connected by rail to the first port.

Comments on the Existing Provisions

The basic policy underlying Part VI goes back to 1904 when the first Bill to provide for the regulation of the coasting trade was introduced but lapsed. From Hansard records it seems that the Bill was aimed at:

(a) protection of Australian shipping from unfair competition; (b) registration of vessels engaged in the

coasting trade;

(b) proper accommodation.

The Attorney-General in 1912, summing up the policy of protection for Australian ships without materially interfering with transport facilities to outlying ports on which the Bill was framed, said:

'That the principle is the reservation of the coasting trade of Australia for Australian shipping .•• "The industries of Australia for the people of Australia" has been the accepted policy since the inception of federation, and the shipping industry must not be treated differently from any other. conveniences

of transport are of vital moment to us. We

have, therefore, to consider how far our policy can be applied without materially interfering with our commerce and the convenience of our travelling public • . • or attempting a policy of differential treatment towards the various maritime nations ..•. All vessels will be

treated alike, our own ships are protected against unfair competition and everything is done to meet the convenience of persons living in outlying parts of the Commonwealth who have infrequent communication, and whose facilities for transport ought not to be diminished'.

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The legislation allows for unrestricted entry by ships of any flag to the coasting trade provided there is no unfair competition in regard to wages paid, manning or accommodation provided for crews. In fact, however, in the intervening period of more than 50 years since this part of the Act came

into force the ships licensed to engage in the coasting trade, with a few exceptions, have been Australian.

In that time, there have been great changes in the environment and the economic conditions under which the industry operates. In relation to the existing situation three basic policy options may be considered. The existing policy

'prevention of unfair competition' may be regarded as the middle course. The other courses are:

(a) to seek the most efficient carriage of

coastwise cargoes in the best available ships irrespective of flag or industrial standards; or

(b) to completely protect the shipping industry, allowing the economy to absorb the additional cost burden.

However, in spite of the theoretically attractive economic advantages the practicability of adopting the first course may be remote for the following reasons:

(a) under the existing policy, although legally

any ship can engage in the trade, in practice

the trade has been reserved for many years to ships manned in Australia;

(b) many ships now on the coast have been built

and registered in Australia specifically for the coasting trade;

(c) such a change of policy would meet with

considerable opposition from both shipowners and unions.

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The third alternative, the opposite situation, has its dangers. The Australian shipping industry should not be sheltered from competitive forces, It needs incentive to improve its methods, increase its efficiency and contain its costs,

The middle course could be a continuation of the existing framework and has advantages. It has proved workable for many years and provides the opportunity to draw on alternative sources of shipping facilities where licensed vessels are not available,

The Commission's Proposals for Revision

Turning first to section 7 and the definition of the coasting trade, the question of what activities should be included has also to be considered. In the broadest sense the coasting trade might include the transport by sea of persons or goods from a port or place in Australia or in its territories

or above its continental shelf to another port or place in Australia or in the same or another territory or above its continental shelf.

The 'port or place' referred to could include places at sea where goods are transhipped or lightered, The carriage of goods or persons to and from places on the continental shelf, where Australian based off-shore operations such as surveying, drilling, or the exploitation of mineral resources

are being undertaken might also be included.

Towing operations by tug or lighter might be included as well as tugs engaged in delivering vessels which have no means of propulsion of their own.

It seems to the Commission that the operations of vessels whose prime purpose is not the carriage of goods or persons but the provision of shipping services, e.g. dredges, drilling rigs, survey vessels should also be included in the coasting trade.

The recent development of large bulk trades within intrastate limits, e,g. the bauxite trade Weipa/Gladstone, iron ore from north-west ports to Kwinana and large bulk shipments of refinery products from capital cities to other ports in the same State, has made intrastate operations attractive to large foreign bulk carriers and tankers, Such operations cover a substantial portion of the total coastal shipping trade and some control of

intrastate operations is obviously desirable. Exemptions along the lines set out in the first proviso might continue but it may be more appropriate to exempt by regulations the carriage of mails, of the owners and his relatives, and of pilots rather than in a section of the Act

(s, 7(l)(a)).

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If the principle of the existing exemption of cargo on a through bill of lading is retained (s. 7(l)(b)) the

withholding of the exemption of cargo on a through bill of lading which is transhipped to an unlicensed ship engaged exclusively in the carriage of such cargo within Australia may be worth consideration in relation to the use of containers. As it now stands the legislation would prevent the exclusive

use of an unlicensed feeder ship to distribute containers brought by large container ships to one port in Australia on through bills of lading. In the context of containers the concept that goods on a through bill of lading should not b e

part of the coasting trade would seem to imply that transhipment of containers to a non-licensed ship should not invalidate the exemption.

As to the second proviso, an Order in Council exempting the trade within the Northern Territory was issued in 1959. A simpler, more general provision to exempt by Ministerial order all such trade may be an improvement,

The third proviso is a means of exempting British ships engaged in the tourist trade between the mainland and Tasmania. It has been rendered obsolete by the introduction of sea-road passenger services and by air transport, and no

longer seems necessary or desirable. The encouragement of tourist services to ports which are not adequately served by licensed passenger vessels might be achieved by exemption of such services in more genera l terms by Ministerial order.

The provision (s. 287) which prevents a ship in receipt of foreign subsidies from engaging in the trade is applied only to foreign ships li.e. to ships which are not British ships). It now has little relevance as a means of preventing unfair competition from foreign ships and the Commission recommends it be deleted.

The question then to be considered is the class of ships which should be allowed to engage in the coasting trade. Generally, cabotage restrictions, if applied by maritime nations, reserve coastwise trading to national flag ships. Reserving the

coasting trade to ships registered in Australia has certain advantages. All ships engaged in the coasting trade would do so under exactly similar conditions, as the provisions of the Navigation Act (subject to Section 2) apply to all such ships.

There appears to be no international treaty or obligation which would prevent Australia from reserving its coasting trade to its own flag ships except, perhaps, the British Commonwealth Merchant Shipp1ng Agreement 1931 from which the

Commission recommends Australia should withdraw (see Commission's Report on International Maritime Conventions).

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Because the Commission had doubts as to whether or not legislation reserving the coasting trade to ships registered in Australia would be valid the Commission sought from the Attorney-General's Department advice on this matter.

A copy of the Commission's request to Attorney­ General's seeking advice on this matter and advice from Attorney-General's Department are attached as Attachments I and II to this Report on Part VI.

In the light of this advice the Commission feels it

cannot recommend the simple and attractive system of issuing licences only to ships registered in Australia.

As an alternative it recommends that a licence shall be issued to a ship proposing to engage in the coasting trade,

(a) upon the ship,

(i) being built in Australia a nd not

exported therefrom, or

(ii) imported into Australia and entered for home consumption;

(b) upon the owners, master and agent or charterers

of the ship, if not already bound by, agreeing to comply with those provisions of the Navigation Act expressed to apply to ships registered in Australia or engaged in the coasting trade ;

(c) upon the owners, or in the case of a bare boat

charter the charterers, b eing bound or agreeing to be bound by an award under the Commonwealth Conciliation and Arbitration Act in respect of the wages and conditions of employment of the master , the officers and the crew (subject to

safeguards similar to those now in the Act to protect seamen's wages, e.g. ss.290 and 291 also being applicable).

The main variation between this proposal and the existing legislation is that unless a ship was built in Australia it would have to be 'imported' with the consent of the Minister before it could obtain a licence.

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It also seems to the Commission that as a means of

ensuring that a shipping service can be provided in circumstances where no licensed vessels are offering, the existing permit system should continue in relation to cargo ships with the following modification.

The issue of a continuing permit to a ship allows only that particular unlicensed ship to provide the service. A continuing permit can, of course, be granted to other ships to engage in the same trade. Probably because of the lack of

flexibility and the requirement for six months notice of cancellation, continuing permits have not been issued for some time.

So far as cargo ships are concerned, the continuing permit system could be discontinued without causing any inconvenience, but it may have some use and relevance in relation to passenger ships.

Where there is the likelihood that for an extended period there will be no service offered by licensed ships, it may be appropriate, for the reason that it may encourage more open competition between unlicensed ships, that the Minister

be empowered to issue an order or a notice, published in the Gazette, granting permission to any unlicensed ship to provide the service, subject to such conditions as are set out and for

such period as is specified.

With the development of road, rail and air transport facilities between all major mainland cities, and the provision of air services to and from Tasmania, the carriage of passengers in licensed ships has declined.

The existing system of issuing single voyage permits for passenger vessels has its main problems in the requirement that a permit cannot be issued to an unlicensed foreign ship if an unlicensed British ship is available.

If this preference were eliminated, then because of the fact that licensed passenger vessels operate only in one trade, the position could be simplified either by: (a) the issue of continuing permits to any vessels

in all other trades, or

(b) an order exempting all passenger trades other then the one in which licensed vessels are engaged.

The preferential treatment for British vessels prescribed by s.286 of the Navigation Act is a continuation of a privileged position enjoyed by British shipping in relation to the Australian coasting trade since the coasting trade provisions (Part VI) of the Act were proclaimed on 1 July 1921.

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The origin of the preference to British ships appears to date back to the Colonial Merchant Shipping Conference 1907 when the leader of the Australian delegation, Sir William Lyne, made it clear that Australia desired to give an advantage to British ships over foreign ships and stated that the Australian view was, inter alia, that:

'the Australian coasting trade shall be restricted to such vessels as comply with Australian conditions, and in such trade preference to be given to British ships as far as possible'.

The preference has created difficulties in operating the permit system, particularly in the passenger trade and no longer seems justifiable. It would however be a courtesy not to remove the preference without consultation with the United Kingdom and other Dominions whose ships are British ships.

Some revision ot the existing statement (s.286) of the circumstances in which the Minister may issue a permit may help to remove practical and operating difficulties:

(a) the reference to a licensed ship being available might be extended to cover the availability of a licensed shipping service (eog, where transhipment from one licensed ship to another is involved).

(b) the reference to the inadequacy of the service provided by licensed ships might be clarified if the Minister were given discretion to take account of:

frequency with which the licensed service is available

freight rates at which the licensed service is offered

special facilities offered by licensed service (heavy lift, reefer)

general efficiency of the service offered by the licensed operator

in deciding whether or not it is desirable in the public interest to grant a permit to an unlicensed ship. The order or notification in the Gazette (ss. 7 (second proviso), ss" 286(6), and 422A)) has been the means of providing exemption on a continuing basis without the issue of a permit,

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It seems appropriate that the order should continue to be used in circumstances where in the longer term and for some sufficient reason it is not desired to apply the licensing and permit system to a particular trade.

In the other case where special circumstances make it impracticable or inexpedient to use the licensed ship which is available, it seems to the Commission it would be desirable to set out in the Att or the regulations the circumstances in which power may be given to the Minister to allow carriage in an unlicensed ship rather than to use the dispensing powers given

in s. 422A.

To the extent possible the coasting traJe should include intrastate sea transport or shipping operations or services.

It should not include the carriage of: (a) passengers on through tickets to or from

a place beyond Australia;

(b) cargo on a through bill of lading to or

from a place beyond Australia.

Under such conditions as may be stipulated in the order the Minister should be able to declare by order that the following coastal activities would not be deemed to be engaging in the coasting trade:

(a) trade to or from a specified external

territory of Australia and trade within that territory or with another external t erritory; (b) special passenger and other services designed to epcourage the tourist trade.

A licence must be issued on application by the owner of a ship being a ship:

(a) built in Australia, or

(b) imported into Australia with the consent of

the Minister, and

(c) the owners complying or agreeing to comply

in respect of the ship with the provisions of the Act expressed to apply to ships whilst they are engaged in the coasting trade,

(d) the owners or charterers being bound or

a greeing to be bound by awards under the Commonwealth Conciliation and Arbitration Act in respect of wages and conditions of employment.

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Licences to be issued annually subject to the condition that in the event of failure to comply with any provision of the Navigation Act applicable to the ship whilst engaged in the coasting trade, or in the event of failure to

abide by the terms of an agreement to comply with these provisions, the ship may be detained at any port in Australia until there is compliance. Upon the Minister or his delegate being satisfied:

(a) that no licensed ship or shipping service is

available for the particular service; or

(b) that the service offered by the licensed ship

or shipping service is inadequate, inefficient or unreasonably costly; and

(c) that it is desirable in the public interest;

a permit may be issued under which the carriage specified shall not be deemed to be engaging in the coasting trade.

These permits should be of two types:

(a) single voyage, issued to a vessel for the

carriage of specified cargo or passengers for one specified voyage;

(b) continuing, issued to a passenger vessel in respect of the carriage of passengers between specified ports not serviced by licensed passenger vessels.

Provision should be made so that continuing permits may be cancelled by the Minister upon not less than three months' notice.

The Commission suggests the penalty for engaging in the coasting trade without a licence be a maximum of two thousand dollars or fifty cents per net ton of the ship

concerned, whichever is the greater, and in addition there should be a continuing penalty for every day on which the ship continues to engage in the trade without a licence.

The Minister may be given power of suspension of all or any of those provisions if in the public interest to do so.

The regulations would prescribe:

(a) the manner in which a roll or register of

ships licensed to engage in the coasting trade shall be kept;

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(b) the manner in which applications for licences and permits should be made, approved, and the licences or permits issued;

(c) fees for the issue of licences and permits and

for the renewal of licences.

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ATTACHMENT I

LETTER FROM COMMISSIONER H.M. SUMMERS TO MR. C.W. HARDERS, SECRETARY, ATTORNEY­ GENERAL'S DEPARTMENT ON 13 FEBRUARY, 1976

Dear Mr. Harders,

You will recall our recent discussion at which you kindly agreed to assist the Commission in some of the legal matters which arise in connection with the first of the specific terms of reference of the Commission.

In accordance with the suggestion you made at our meeting I would appreciate your written advice on the two questions which are posed in the attachment to this letter.

I would like to say that this Commission's task to

assess the need for revision of the Navigation Act 1912-1972 has been materially assisted by oral advice given by officers of your Department to Mr. Norris. I thank you and all of them

very much.

Yours sincerely,

SIGNED

M.M. Summers Commissioner

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Mar1time Industry Commission of Inquiry

Request for Advice

Question 1 - Does the Australian Parliament have the const1tut1onal power to enact legislation that would enable control to be exercised over which ships may engage in the Australian coasting trade and, in particular,

(a) Can the Parliament enact legislation requiring all ships including foreign ships engaging in the coasting trade to be licensed;

(b) Can the issue of licenses be restricted to

ships registered in Australia; it is envisaged that registration will be confined to certain classes of ships see para below;

(c) If registration in Australia is not acceptable as a condition of eligibility for a licence can it be made a condition of eligibility for the granting and holding of a licence that the master, owner, charterer or agent become a

Party to the relevant industrial awards applicable to Australian ships engaged in similar trade?

The expression 'coasting trade' is used above in the same sense as in section 7 of the Navigation Act.

Question 2 - Would the same powers be available in relation to 1ntra-State shipping not engaged directly in intra-State trade but engaged in the provision of shipping services e.g., tugs and dredges.

These questions have been asked on the basis that an Australian system of registration would be introduced under which the requirements for registration would be:

(i) a ship wholly owned by Australian citizens or an Australian company will be required to register, and

(ii) a ship not wholly so owned will be permitted to

register only if -

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(a) it is controlled and operated by a

person or corporate body whose principal place of business is in Australia, and

(b) it is normally or usually engaged

in operations to and from or in

Australia.

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ATTACHMENT I I

LETTER FROM MR. C.W. HARDERS, SECRETARY, ATTORNEY-GENERAL'S DEPARTMENT TO COMMISSIONER M.M. SUMMERS ON 3 JUNE 1976

Dear Mr. Summers,

Constitutional Power of the Commonwealth Over the Coasting Trade

I refer to your letter dated 13 February 1976 requesting my advice on two questions posed in the attachment to your letter.

2. Your questions relate to the coasting trade, meaning

by that activities coming within the definition of the coasting trade contained in section 7 of the Navigation Act. The first part of section 7(1) reads as follows: 1

7. (1) A ship shall be deemed to be engaged in

the coasting trade, within the meaning of this Act, if she takes on board passengers or cargo at any port in a State, or a Territory, to be

carried to, and landed or delivered at, any other port in the same State or Territory, or in

any other State or other such Territory: 1

A number of provisos are made to this definition, but it is

unnecessary to set them forth here.

3. The questions, and the short answers that I would

give to them, aTe as follows:

Question 1 - Does the Australian Parliament have the const1tut1onal power to enact legislation that would enable control to be exercised over which ships may engage in the Australian coasting trade? In particular -

(a) Can the Parliament enact legislation requiring all ships, including foreign ships engaging in the coasting trade, to be licensed?

(b) Can the issue of licences be restricted

to ships registered in Australia?

(c) If registration in Australia is not acceptable as a condition of eligibility for a licence, can it be made a condition

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of eligibility for the granting and holding of a licence that the master, owner, charterer or agent become a Party to the relevant

industrial awards applicable to Australian ships engaged in similar trade?

Answer - It is convenient to answer this question by referring separately to the constitutionally different categories of shipping, taking first the position of ships registered in Australia and then the position of foreign ships:

Australian ships

(a) Inter-State shipping - The Parliament can clearly control such shipping, including control through a licensing system, subject however to section 92 of the Constitution.

(b) Intra-State shipping - It is considered that the

Parliament can also control intra-State shipping outside waters coming within the limits of a State. The measures that could be adopted would include the prohibition of such shipping from using waters outside the limits of a State unless

licensed to do so. Such measures would not be

affected by section 92.

(c) Shipping to, from, or between ports in a Territory -

The Parliament can clearly control such shipping, e.g., by a licensing system. Section 92 would not apply in this case either.

Foreign ships

The Parliament has, in my view, plenary power to control the participation of such ships in the Australian coasting trade, and it could exclude them completely from that trade. In my opinion, this would be the position even in relation to foreign ships seeking to operate inter-State, though this is not completely free from doubt.

Question 2 - Would the same powers be available in

relat1on to intra-State shipping not engaged directly in intra-State trade but engaged in the provision of shipping services, e.g. tugs and dredges?

Answer - Tugs and dredges operating in Te rritory ports could be controlled. Also, in my view, tugs and dredges operating in waters beyond State limits could be controlled. In addition, tugs operating in State ports that service

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ships engaged in inter-State, overseas or Territory trade could be controlled in the same way as those ships, subject possibly to section 92 so far as the

servicing of inter-State shipping is concerned. So far as concerns other operations referred to in the question, I think that they could be regulated to the extent necessary or convenient to secure the safety,

regularity and efficiency of shipping engaged in inter-State, overseas and Territory trade.

AUSTRALIAN SHIPS

Answer l(a) - Inter-State Shipping

4. By virtue of section Sl(i) of the Constitution read

with section 98, the Parliament has power to make laws to control inter-State shipping engaged in the coasting trade. The power, however, is subject to section 92 of the Constitution, which provides that trade, commerce and intercourse among the

States shall be 'absolutely free'. In this regard the main issue that could arise, on the questions you have asked, is whether a licensing system for the coasting trade as applied to inter-State shipping could be discretionary, in the sense that

the licensing authority would be given a discretion in selecting the ships to be licensed.

5. The course of decisions relating to section 92 points

clearly to the conclusion that such a discretionary licensing system would be in danger of being held to be in conflict with the freedom of inter-State trade guaranteed by section 92. It follows, I think, that, in relation to ships proposing to

engage in the inter-State coasting trade, ships that satisfy objective conditions laid down for eligibility for a licence should be granted a licence. That is to say,with a view to

ensuring constitutional validity, there should be no discretion at that point. In this connexion, I note that the position

under the existing Navigation Act and Regulations is that an applicant for a coasting trade licence that undertakes to comply with the conditions relating to seamen's wages and manning and library requirements laid down in section 288(3)

of the Act shall be granted a licence - see in particular

regulation 31 of the Navigation (Manning and Coasting Trade) Regulations. This position was established, I think it may be presumed, because of the requirements contained in section 92. I would also refer in this regard to regulation 199(2) of

the Air Navigation Regulations, which provides that a licence shall be issued for an air service unless the

applicant has not complied with or has not established that he is capable of complying during the currency of the licence with the regulations and any directions or orders given or made under the regulations relating to the safety of operations.

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6. I should add some comments on what may be the most

likely kind of condition of a coasting trade licence, apart possibly from any condition or conditions relating to safety, namely, a condition relating to observance of industrial awards relating to crew.

7. In my view, a condition requiring the master, owner,

charterer or agent to become a party to the relevant industrial conditions can probably be regarded as regulatory rather than prohibitory, and thus consistent with section 92. In Hughes & Vale Pty. Ltd. v. N.S.W (No. 2) (1955) 93 C.L.R. 127,

Dixon C.J., McTiernan and Webb JJ. said that 'clearly enough the fact that a particular transaction takes place in the course of inter-State trade and forms part of inter-State trade is not enough to exclude the persons engaging in it from the operation of the provisions of public and private

law which otherwise would apply' (p.l60). Williams J. in the same case said regulation was compatible with section 92 'where the regulation has the effect, not of preventing or unduly restricting or burdening the carrying on of the trade, but merely of controlling its operations in those respects in which it is desirable that it should be controlled so that it

may be conducted in an orderly and proper manner in the public interest' (p.l86). I consider a requirement that ships engaged in the coasting trade comply with relevant industrial condi­ tions can be regarded as a reasonable regulation designed to secure the orderly and proper management of the trade. I might mention in this regard that Dixon j. in Elliott v. The Common­ wealth (1935-1936) 54 C.L.R. 657, at 684, described a l1cens1ng

scheme for seamen as 'restrictive and regulative'. He added: 'But the restrictions and regulations are directed at the disciplined and orderly conduct of a vocation or pursuit, the work of which is essential to the carriage of goods or persons

by sea'. Although in that case Dixon J. was not directly

concerned with the operation of section 92, his comments support, in my view, the conclusion I have reached that a condition relating to compliance with industrial conditions is regulatory and consistent with section 92.

Answer l(b) - Intra-State Shipping

8. For purposes of Commonwealth constitutional power,

a clear distinction in the past has been maintained between inter-State and intra-State trade and commerce in the field of navigation. Intra-State navigation has been regarded as only within the constitutional power of the Commonwealth Parliament

to the extent that control of this activity can be regarded as connected with control of inter-State navigation: see, e.g., W. & A. McArthur Ltd. v. Queensland (1920) 28 C.L.R. 530, at p.549. (Thus , in my view, safety and navigational standards

could be made applicable to all vessels in waters used by ships engaged in trade or commerce among the States and with other countries.)

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9. However, as a result of the recent High Court

decision in the Seas and Submerged Lands Act Case (SO A.L.J.R. 218), it appears that the 'external affairs' power in section Sl{xxix) of the Constitution may provide power to control coastal navigation, exercisable without regard to the distinc­ tion between inter-State and intra-State shipping. The matter decided in that case was the validity of the Seas and Submerged

Lands Act, including its assertion of Commonwealth sovereignty over Australia's territorial sea. A necessary step in that decision was the finding of the majority that the seaward limits of the States lie at low-water mark, except for such exceptions as ports and harbours as were at 1901 within the

limits of a State (Act, s. 14). It is a natural corollary

that persons, matters and things beyond those limits come within the international domain and within the reach of the external affairs power.

10. The view I have expressed in the preceding paragraph

that the 'external affairs' power enables the Commonwealth Parliament to control intra-State shipping is in accordance with the views held by the Attorney-General and the Solicitor­ General. I should add that the matter is one on which different

legal views might be expressed by State legal advisers. Also, there would be questions of policy on the extent to which such a power on intra-State shipping should be exercised. I of course express no view on those questions.

11. The question, of course, arises as to the degree of

control that may be exercised over intra-State shipping by means of conditions attached to licences for the coasting It would appear from the Seas and Submerged Lands Act judgment that there is a wide scope for control of such shipping,

including activities on board such shipping, in areas geo­ graphically external to Australia. Section 92 of the Constitu­ tion would not operate to restrict those controls, since the freedom of intra-State trade is not guaranteed by that provision.

Answer. l(c) - Shipping to, from or between ports in a Territory

12. The Parliament has a plenary power in relation to such

shipping deriving from the Territories power in section 122 of the Constitution: Lamshed v. Lake (1957) 99 C.L.R. 132. Section 92 would not operate to restrict the exercise of that power.

FOREIGN SHIPS

13. Your questions have been asked, in relation to foreign

ships, on the basis that an Australian system of registration would be introduced under which the requirements for registration would be:

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24400/76-7

(i) a ship wholly owned by Australian citizens or an Australian company will be required to register, and (ii) a ship not wholly so owned will be permitted

to register only if -

(a) it is controlled and operated by a

person or corporate body whose principal place of business is in Australia, and

(b) it is normally or usually engaged

in operations to and from or in

Australia.

14. Oppenheim's International Law, 8th ed., Vol. I,

p.493, points out that under pr1nciples of international law relating to the maritime belt -'The littoral State may, in the absence of special treaties to the contrary, exclude

foreign vessels from navigation and trade along the coast, the so-called cabotage, and reserve this cabotage exclusively for its own vessels'.

'State' here referred to means a State at international law, which in the case of Australia means the nation and not the Australian States.

15. This being the received position under international

law, I think it is clear beyond any doubt that the Parliament

can exclude foreign ships - i.e. ships registered in a country other than Australia. The Parliament, in my view, could also admit such ships to the coasting trade on any conditions it thinks fit. Laws to that effect would, in my view, be a valid

exercise of the 'external affairs' power. If there were any doubt on that matter previously, it seems to me to have been effectively dissipated by the thrust of the reasoning in the Seas and Submerged Lands Act Case. Section 92, however, has st1ll to be considered in relat1on to the exclusion from, or the unfettered control of, foreign ships in relation to inter-State trade. 16. I turn then to the possible limiting effect of section

92 in relation to foreign ships. I would begin by saying that

neither the High Court nor the Privy Council has ever turned its attention to a situation really analogous to the present one. The present case, of course, raises important questions relating to the rights of a sovereign nation to control its

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domestic affairs and to regulate freely by means of legislation the activities of alien ships on its territorial sea and in

the other waters of its maritime belt.

17. In the Banking Case (1949) 79 C.L.R. 497, at p.640,

the Privy Council expressly left open the possibility of the validity of a prohibition of certain inter-State trade with a view to creating a State monopoly. Their Lordships stated that 'in regard to some economic activities and at some stage

of social development' such a prohibition might be held to be the only practical and reasonable manner of regulation, the suggestion clearly being that a prohibition on some persons from engaging in inter-State trade could in some circumstances be consistent with section 92. In that same case, (ibid., at

p.61) the Privy Council also mentioned that 'regulatron-of trade may clearly take the form of denying certain activities to persons by age or circumstances unfit to perform them .... '.

Examples mentioned of such persons were lunatics, infants and bankrupts.

18. I think that there are reasonable grounds for holding

that a Commonwealth law controlling, even to the extent of excluding, operations by foreign ships in the coasting trade, including that part of it that consists of inter-State trade, would be consistent with section 92. There would, I believe,

be a ready recognition that section 92 was not intended to strip Australia of its right of 'cabotage' and that the exer­ cise of that right, either absolutely or subject to conditions, was a permissible regulation of trade that was consistent with

section 92.

19. Also, it may reasonably be contended that a law

excluding foreign ships operates against a class of instruments of trade to which the guarantee in section 92 does not extend. In the Banking Case the Privy Council stated:

•It is true, as has been said more than once in

the High Court, that Section 92 does not create any new juristic rights, but it does give the

citizen of State or Commonwealth, as the case may be, the rlght to ignore, and lf necessary, to

call upon the judicial power to help him to

resist legislative or executive action which offends against the section.' (emphasis inserted) (p.635).

This dictum points to the possibility that section 92 does not protect foreign nationals or foreign ships. 20. However, as I have indicated in my short answer in

paragraph 3 above, the matter of section 92 not protecting foreign ships is not completely free from doubt. I therefore point out that, to guard against the possibility that section 92 would apply, effective action could be taken at the time when first entry into Australian waters is sought of the ships

in question to prevent their engaging in inter-State trade. It - 153 -

is clearly within power to refuse permission to import a vessel for use in inter-State trade and commerce. Such a prohibition would operate upon the doing of something (importation) which is itself altogether separate from inter-State trade, and thus

is valid notwithstanding section 92. (R. v. Anderson: Ex Parte Ipec-Air Pty. Ltd. (1965) 113 C.L.R. 17).

TUGS, DREDGES ETC

21. The Parliament does not have any general power that

would enable it to control all activities of ancillary vessels such as tugs and dredges. However, there are a number of

categories of activities that would come, or may come, within specific powers, conferred upon the Parliament:

Clearly, tugs and dredges operating in Territory ports can be controlled (Constitution, s. 122).

Also, on the view taken in paragraphs 9 to

11 above, the Parliament could also control tugs and dredges operating in the maritime belt beyond State limits. Tugs operating in State ports that service

ships engaged in inter-State, overseas or Territories trade could be controlled (Constitution, ss. 5l(i), 98, 122).

22. It is not clear to me that section 92 of the

Constitution would apply to tugs servicing inter-State shipping, but possibly it would.

23. So far as concerns other operations covered by your

second question, I think that they could be regulated to the extent necessary or convenient to secure the safety, regularity and efficiency of shipping engaged in inter-State, overseas and Territories trade. In Airlines of N.S.W. Pty. Ltd. v. N.S.W.

(No. 2) (1964) 113 C.L.R. 54, the H1gh Court, 1n

tnat the Australian Parliament could validly legislate in respect of the safety, regularity and efficiency of intra-State air navigation. There are undoubtedly important differences oetween the regulation of intra-State air navigation and the

regulation of intra-State bur-the case does provide

grounds for thinking that the H1g Court would now in an appropriate case be prepared to take the view that, as a measure incidental to the regulation of shipping engaged in overseas or inter-State trade, legislation of the Australian Parliament dealing with the safety of vessels could apply to vessels that were not themselves engaged in inter-State or overseas trade but were in waters substantially used by vessels so engaged.

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24. I am unable, without information as to the precise

scope and extent of the control of operations by tugs and dredges that you envisage, to advise in detail on the form that any licensing scheme for such vessels should take. However, as I understand it, the advice you seek on this,

and on the other matters dealt with in this letter, relate to the general constitutional principles that, in my view, govern the situation. If this Department can be of further assistance, we will be happy to provide further advice as

requested.

Yours sincerely,

SIGNED

(C. W. HARDERS) Secretary

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PART VII WRECKS AND SALVAGE.

DIVISION 1. INTERPRETATION - (SECTIONS 294 AND 295).

In section 294 the terms 'receiver' and 'tidal water' are defined. The meaning of the term 'wreck' used in this part

of the Act is extended to include jetsam, flotsam, lagan and derelict found in or on the shores of the sea or any tidal

water. By section 295 the operation of this part in no way

interferes with the powers of the Customs conferred by any other Act. Section 294 includes in 'wreck' any articles, goods, hull, machinery or equipment which belonged to or came from a ship wrecked, stranded or in distress. The jetsam,

flotsam, lagan, or derelict must have been found in the sea or on the shores of the sea or any tidal water. By definition a

harbour i s excluded from this term 'any tidal water'. No submissions were made to the Commission of any need for revision of sections 294 and 295. To this Commission the use of the word 'wreck' in

this part raises difficulties.

In section 294 it appears that the meaning of 'wreck' is extended to include jetsam, flotsam, lagan and derelict found in or on the shores of the sea or any tidal water, and to

include any articles or goods or whatever kind which belonged to or came from a ship wrecked, stranded, or in distress, and any portion of the hull, machinery or equipment of such a ship.

There is no mention of any extension to include the ship itself and there is no specific mention of cargo (but notice 'articles or goods of whatever kind which belonged to or came from ... '). The ship itself provided it has not been

stranded or cast ashore and cargo which has not come from but is still in ship do not appear to be included as 'wreck'.

Sections in which difficulties arise are ss.297, 300 and 308.

The Commission believes that, if practicable, some action to clarify the meaning and use of the word 'wreck' in

this part of the Act is needed if effective administrative action is not to be impeded.

Greater clarity might be achieved throughout this part by giving the word 'wreck' its common law meaning extended as in section 294 and referring in sections which require another meaning specifically to:

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(a) a ship which has not been cast ashore but

which is stranded or in distress at sea, or

is lying submerged on the sea bed, or

(b) cargo within such a ship or equipment and

apparel remaining with the ship, or

(c) cargo or other articles recovered from such

a ship.

In Division 6 - Removal of Wreck - the term 'wreck'

will require a different meaning. Here the term appears to cover something which is an obstruction or danger to navigation.

The term, shipwrecked persons, which is explained in section 296 and is used in other sections (ss. 296-299) should, in view of assistance a receiver may be able to give to such

persons, be specifically extended to include persons belonging to a ship wrecked, stranded, or in distress outside the limits of Australia and who are brought into Australia.

The Commission suggests it should be made clear that the term a ship in distress includes any vessel which has used and has not revoked or is displaying a prescribed signal of distress with the authority of the master given on the ground

that the vessel is in grave and imminent danger and requires immediate assistance .

Under section 294 the Minister may by notice in the Gazette appoint a person to be a receiver of wreck for a specified district or area, the limits of which are set out in the notice.

The Commission recommends that most of the matters relating to functions and powers of a receiver now in the Act should be dealt with in regulations.

158

DIVISION 2. WRECK.

Ships in Distress

Where a ship is wrecked, stranded or in distress on or near the coast of Australia except in a harbour, section 296 requires the receiver (that is the person appointed by the Minister as receiver of wreck for that district) to attend and

to do what is necessary to preserve the ship or the wreck and

shipwrecked persons.

In order to preserve shipwrecked persons and the wreck the receiver may require assistance or the use of vehicles (s.297). He may pass over private land and deposit wreck on such land (s.298).

It is an offence to disobey his directions (s . 296), not to comply with his requisitions (s.297) or to impede his operations (s.298). Provisions are made for compensation for damage occasioned in the exercise of the receiver's rights.

Such damage is a charge on the wreck and amount of compensation payable for such damage may be determined and recovered as if it were salvage (s.298). At the scene of the wreck, the receiver is given wide

powers to suppress plunder and disorder (s.300).

In the absence of the receiver a person employed by the Department of Transport, a customs officer or an officer of police may exercise the receiver's powers (s.300).

The receiver is a lso required to examine on oath any person able to give an account of the wreck and must send a

copy of the evidence so taken to the Minister (s.301).

Dealing with Wreck

The Act then provides that where a person finds or takes possession of wreck within the limits of Australia or having found or taken possession of wreck outside Australia subsequently brings it into Australia, he must advise the

receiver, describing the marks by which the wreck may be recognised (s.302).

Unless he is the owner he cannot keep possession of any wreck he has found or taken possession of, but must on demand deliver it to the receiver (s.303).

Within one year of wreck coming into the possession of the receiver, the owner or in the case of wreck from a

foreign ship, the consul, on establishing a claim and upon payment of salvage, fees and expenses due, is entitled to have the wreck or its proceeds delivered to him (s.305).

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In certain circumstances, e.g. where it is of small value, or perishable, the receiver may sell any wreck in his custody and hold the proceeds (s.306).

The provisions which apply to expenses connected with any wreck are set out in section 307.

Unclaimed Wreck

The most important provision (s.308) states that the Commonwealth is entitled to all unclaimed wreck found in Australia. It does not mention specifically the Commonwealth's title to unclaimed wreck brought into Australia from outside

the territorial limits. Nor does it seem to the Commission to be clear whether or not the Australian Government is entitled to deal with unclaimed wreck found within a harbour.

There seems to be doubt as to what is covered by the

term 'wreck found in Australia' in secti on 308. One view expressed ha s been that the words 'foupd in Australia' relate to a finding under section 302(a) followed by a possible demand that such wreck be delivered to the receiver under section 303.

The Act goes on to provide that where no owner

establishes a claim to wreck found in Australia or brought into Australia after it has been in the possession of the receiver for one year it is to be sold by the receiver who pays the net

proceeds of the sale after deducting expenses incurred and salvage paid into the Consolidated Revenue (s.309).

Upon compliance with this part the receiver is discharged from all liability (s.310). Where a dispute arises as to the title to any wreck it may be determined as if it

were a dispute as to salvage (s.311).

Offences in Respect of Wreck

It is an offence:-(a) to t a ke any ship stranded, derelict or in distress

or any wreck found on or near the coast of

Austral i a out of Australia and there sell it (s.312)

(b) to board, without the leave of the master or the

authority of Act, any ship wrecked, stranded, or in distress (s.313).

(c) to impede the saving of any ship stranded or in

distress or of any wreck (s.314) (d) to secrete any wreck or wrong f ully r emove it.

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No submission was made to the Commission of any need to revise or. amend Division 2 of this Part. Assuming no real

changes are necessary it seems to the Commission that this Part would be simplified if more of its content were dealt with by regulations,

The Commission believes there should be a power to make regulations relating to:

(a)

(b)

(c)

(d)

(e)

(f)

the manner in which the powers and functions given to the receiver under the Act may be

exercised (s.297)

the manner in which his powers and functions may be exercised in his absence (s.300)

the manner in which a receiver may hold an examination of a person who is able to give

an account of how a ship came to be wrecked,

stranded, or in distress in his district (s.301)

the manner in which the receiver's report of the examination shall be dealt with (s.301)

the manner in which a receiver's fees shall be determined (s.307)

the manner in which expenses of the receiver shall be recovered, dealt with and determined in case of dispute (s.307).

The circumstances in which a receiver may sell wreck in his custody and in the manner in which he shall deal with the

proceeds should also be prescribed by regulation (s.304, 306). In the new regulations, the powers accruing to the receiver and other persons associated with him need not be changed in substance but could be stated in more modern terms.

However the appropriateness of the powers given to the receiver should be reconsidered in relation to the point of time at which action for preservation may be needed or may be taking place. For example the functions and powers need to be very

different where they are exercised immediately upon the occurrence of the disaster to the vessel to which the wreck or the

shipwrecked person belongs, or subsequently as a commercial salvage operation, or many years later when the wreck has become of historic value.

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Some account should also be taken of the role which the owner is taking in the matter.

In regard to ships in distress and the receiver's powers to act for the preservation of the ship and the lives of

persons belonging to the ship it seems to the Commission that the existing provisions in the Act (s.297) and the new regulations the Commission is proposing should give the receiver powers in relation to a ship wrecked, stranded or in distress outside territorial waters but within the Great Barrier Reef or within the Torres Strait. He should also be given powers in

relation to wreck or shipwrecked persons coming from a ship wrecked, stranded or in distress outside the territorial waters which are found within those waters and for which assistance is needed for their preservation.

Another point which arises in relation to Part VII generally is its application to historic wreck. Wreck from a ship lost, say, over 100 years ago, calls for treatment in the

hands of a receiver different from that given to wreck from a ship which has just been lost and should be dealt with differently. The Commission recommends the Australian position should be that where any person finds or takes possession of any wreck within a receiver's district, or having found or

taken possession of wreck outside Australia brings it within a receiver's district, he should be required to give notice describing the wreck and the place and the circumstances in which he found it and where it is presently located.

All other than the owner shall be required,

on demand, to deliver wreck to the receiver.

Where a receiver takes possession (real or constructive) of any wreck he shall, in the manner prescribed, give notice of the fact that he has done so.

The owner of any wreck in the possession of a receiver may within one year establish his claim thereto to the satisfaction of the receiver and shall, on paying the salvage fees and any expenses due, be entitled to have the wreck or

its proceeds delivered to him. In respect of unclaime d wreck the Commission takes the view that the question of whether or not the Commonwealth should claim title to wreck brought into Australia which is unclaime d (s.308) is a matter to be considered by the appropriate legal authorities.

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If unclaimed wreck is sold by the receiver and the net proceeds . paid into Consolidated Revenue Fund (s.309) the point may be of little significance, affecting only the right to establish a claim to a refund from the Fund.

It seems to the Commission it would also be

worthwhile to make clear what is meant by 'unclaimed' in relation to wreck, e.g. wreck in respect of which no claim of ownership has been made or wreck in respect of which no owner has established a claim to the satisfaction of the receiver.

In regard to offences in respect of wreck the Commission has only one comment to make.

While it is an offence to take wreck out of Australia

and there sell it, there is no such offence in relation to

wreck brought into Australia. From the wording of the section (s.312) there may be doubt as to whether or not it applies to

any ship stranded, derelict, or otherwise in distress, or only to such a ship found on or near the coasts of Australia which

is clearly the meaning of the corresponding section in the Merchant Shipping Act (s.S35).

The Commission recommends that this section should be clarified to make it clear tha t it relate s to a ship found on

or near the coasts of Australia.

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HISTORIC WRECK

The development of modern diving and underwater recovery techniques has added a new dimension to the recovery of wreck. Recovery is not only possible at the time of the

actual wreck but at any time later. as has been suggested,

the powers of the receiver are to be stated in more modern terms it may be appropriate to consider them in relation to the point of time at which the recovery takes place e.g.:

(a) immediately upon the occurrence of the disaster to the vessel to which the wreck or the

shipwrecked person belong;

(b) subsequently as a commercial salvage operation; or

(c) many years later when the wreck has become of

historic value. The success of divers equipped with modern and relatively inexpensive equipment in locating and recovering historic wreck has induced many countries to enact legislation designed to control such activities and to protect and preserve the wreck which they recover.

In such legislation 'historic wreck' is usually meant to cover a vessel, its cargo and equipment or any other goods which belonged to or came from a vessel which is for example more than 100 years old and appears likely to have historical,

archaeological or artistic importance and which is lying on the sea bed.

Generally it is made effective by declaring an area of the sea bed to be an area in which historic wreck may be

found, the protection of which is, in the Minister's opinion, a matter of public interest by reason of the historical, archaeological or artistic value of the objects which may be discovered.

In respect of that area, the Minister is then enabled to assume: (a) on behalf of the Government, ownership of historic wreck recovered;

(b) control of investigation of the site and recovery of the wreck;

with the object of ensuring that proper survey and recovery methods are used.

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A further requirement generally included is that a person who finds any ship or wreck which appears to be historic must advise receiver of the find and the exact location of

the wreck.

There are on the Australian coast numbers of wrecks of considerable historic value.

The State Government of Western Australia has already passed legislation of this nature and the Commission understands that the Australian Government is giving consideration to the need to legislate on a national basis.

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DIVISION 3. SALVAGE.

Life Salvage

A provision which makes salvage payable where services are rendered in saving life (s.315) also lays down the manner in which a reasonable amount of salvage claimed for the saving of life from any ship registered in Australia may be determined, subject to the requirement that some property to which the claim can attach has been preserved. The salvage, if agreed or awarded, is payable by the owner of the ship, cargo, or equipment

saved. Provision is also made in respect of the saving of life

within Australian waters from ships not registered in Australia (s. 315 (i)).

Such salvage when payable by the owner is payable in priority to all other claims for salvage. Where nothing or nothing of sufficient value is saved out of which the life salvor's award can be met, the Minister may pay to the life salvor such sum as he thinks fit in whole

or part satisfaction of an amount of salvage payable left unpaid (s.315(3)).

Salvage Generally

Similarly in regard to salvage other than life salvage, the manner in which a reasonable amount of salvage may be determined where salvage services have been performed is also laid down, i.e. for services rendered in assisting the ship or saving any wreck where the ship is wrecked, stranded or in distress at any place on or near the coast of Australia or any

tidal water within Australia (s.317).

Duty to Render Assistance

In accordance with Articles 11 and 12 of the International Convention for the Unification of Certain Rules of Law respecting Assistance and Salvage at Sea, Brussels, 1910, the master of any ship is required to render assistance to all persons in danger of being lost at sea. Under the Act (s.317A)

failure to comply is an indictable offence and compliance with the requirement to render such assistance does not affect the right of the master or any other person to salvage. The Commission does not consider there is any need for revision in Division 3 except perhaps in relation to the

picturesque language of section 317A(l).

- 16 6 -

DIVISION 4. PROCEDURE IN SALVAGE.

The Act sets out (s.318) the manner in which a

dispute as to what is a reasonable amount of salvage is to be

determined, Disputes may be determined on the application of the salvor or of the owner or their respective agents.

The Supreme Court of a State is given the power to

determine claims for salvage which are not dealt with summarily by a county district or local Court (sa318(2)).

In cases where the parties so consent, or the value of the property saved does not exceed $2,000 or the amount claimed does not exceed $600, disputes are determined summarily (s.318(1)).

The Courts in which summary jurisdiction may be exercised are set out and they are empowered to call in assessors to as s ist in the determination of the claim. Assessors are paid such sums as the Minister directs. (ss.318-319).

If the amount claimed by the salvor exceeds $200, any party aggrieved by the decision of the Court of summary jurisdiction may within 30 days appeal to the Supreme Court of the State (s.320).

Provision is made for the appointment, by the receiver, of a valuer (s.321).

Except in the case of claims for salvage against the Government, provision is also made under which the rece1ver shall detain the ship or wreck until salvage is paid (sa322) a The circumstances in which the receiver may sell

detained property are set out in S.323 as is the manner in which the proceeds are to be applied in payment of expenses, fees, salvage, and the balance paid to any persons legally entitled to it.

Where services, for which salvage has been claimed, have been rendered by the master or crew of a ship (including a Government ship), there is provision (s.324) for the abandonment by the salvor of his maritime lien upon the property alleged to have been salved, upon his obtaining from

the master a written agreement supported by security for the payment of such salvage as shall be later adjudged to be due.

Where the aggregate of salvage has been finally ascertained, if a delay or dispute arises as to its apportionment and it exceeds $400, any Court of competent jurisdiction may apportion the amount among the persons entitled to it (s.326).

In similar circumstances the aggregate amount of salvage if it is less than $400 it may be apportioned by the receiver (s.325).

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In the case of persons in the service of a ship not

registered in Australia, the apportionment shall be in accordance with the law of the country to which the vessel belongs (s.327).

The Commission comments only on the following aspects of Division.

The amounts which are set out in the Act to determine which disputes as to the amount of salvage can be determined summarily (ss. 318, 320) and to fix the limits to apportionment of salvage (ss.325-326), are the dollar equivalent of

corresponding amounts in pounds put into the British Merchant Shipping Act in 1894. Obviously both the upper limit for the value of property saved and the upper limit for the amount claimed and the aggregate amount of salvage should be raised

considerably.

It has been suggested, and the Commission commends the proposal, that in section 318 the limits within which disputes may be settled should be those which ordinarily apply to limit the jurisdiction of a State Court but that in determining whether or not a dispute may be determined no regard should be

paid to any geographical limits on the jurisdiction of the State Court.

Similarly in regard to section 320 the right to appeal should be related to the provisions as to appeal which ordinarily apply to the Courts concerned. In accordance with present day practice the provision in section 31912) and in section 321(3) whereby assessors and valuers are to be paid such sums as the Minister directs should be replaced by provisions requiring the payment of such fees and allowances as are prescribed.

In Australia formal action by a receiver to detain and sell a ship or wreck to enforce payment of salvage is a

thing of some rarity (see section 322 and 323) although in the strict terms of the Act the receiver appears to have no option but to detain the property. It seems to the Commission that it

would be desirable to give the receiver more flexibility. If he cannot be given power to act at his own discretion then the circumstances in which he shall act and in which he may act to detain the ship, its cargo or equipment or any wreck should be set out either in the Act or in regulations.

In the sections which deal with apportionment of salvage between the persons entitled to it (ss. 325, 326) the limit to receiver's ability to apportion is set at $400. This amount fixed in 1894 (see above) obviously needs to be raised considerably. To obviate the difficulties associated with the

frequent amendments in inflationary circumstances the Commission recommends that the reference to a fixed amount be replaced by a reference to an amount fixed by a determination of the Minister and published in the Gazette.

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DIVISION 5. JURISDICTION IN SALVAGE.

Subject to the Act, jurisdiction to decide all claims relating to salvage is conferred upon the Supreme Court of every State and all Courts having Admiralty jurisdiction, irrespective of where the salvage services were performed or where the wreck is found (s.328).

This is not a matter on which the Commission has any views or comments.

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DIVISION 6. REMOVAL OF WRECK.

The Minister is given power to require the owner, within a time specified, to remove the wreck of any ship wrecked, stranded, sunk, or abandoned on or near the coast of Australia, and, in the event of the owner failing to do so, to

have the wreck removed or destroyed at the expense of the owner. In the process, he may sell any wreck recovered, paying the surplus, if any, to the owner (s.329(1)).

For this purpose, the owner is the owner immediately prior to the loss or abandonment of the ship (s.329(2)). As has been pointed out earlier in this Report the use of the word 'wreck' in s.329(l)(a) to (c) should be clarified.

In sub-sections (a) to (c), the term wreck should include every article or thing being or forming part of the ship or part of any wreck including the tackle, equipment, cargo, stores, or ballast of a vessel (see proposed amendment to this

section in the 1975 Bill).

In sub-section (c), the owner of the cargo, for example, which may be portion of the wreck, may not be the same person as the owner of the vessel,

and for the purpose of this section it seems to

the Commission to be necessary to regard the proceeds of the sale of the wreck as a whole as a

common fund which may be used to cover the costs of removal.

As one of the purposes of the Division is to ensure

that wrecks are removed or destroyed so as not to be a hazard

to the navigation of ships, there is an argument for seeking to extend the application of the Division to a ship wrecked, stranded, sunk, or abandoned outside the territorial waters but within sea lanes vital to Australian sea transport (e.g. the Torres Strait or the inner passages of the Great Barrier Reef where it may be a dangerous obstruction or may prevent passage

altogether). The Commission recommends that the section be extended to apply to any vessel wrecked, stranded, sunk, or abandoned:

(a) within the territorial limits of Australia;

(b) within prescribed areas e.g. in the Torres Strait and in the inner passages of the

Great Barrier Reef;

which in the opinion of the Minister i s or is likely to become

an obstruction or a danger to navigation.

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The Commission also believes that for the purpose of this part, the term 'vessel' should include every article of tackle, equipment, cargo, stores, or ballast of or belonging to the vessel or comprising a part of any wreck, and any proceeds of sale arising from a vessel and from the cargo thereof shall be regarded as a common fund and the term 'owner' should include not only the owner immediately prior to the time of the loss

or abandonment of the vessel but also any subsequent purchaser or owners of the vessel so long as the vessel remains sunk,

stranded, or abandoned.

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DIVISION 7. SALVAGE CLAIMS BY AND AGAINST THE CROWN.

The provisions relating to life salvage (s.315), salvage for assisting a ship within the limits of Australia or saving wreck (s.317), the methods of determining disputes as to salvage (ss. 318-320) and the apportionment of salvage (ss. 325-327) apply in relation to services rendered in:

(a) saving life from or assisting a Government ship; or

(b) saving a wreck or any cargo or equipment

which belongs to the Commonwealth or a State;

as if the ship or wreck belonged to a private person (s.329B). A Government ship is defined in Section 6.

As there can be no salvage proceedings in rem against the Crown the provisions relating to valuation (s.321) or detention of property by the receiver until salvage is paid (s.322), the sale of detained property by the receiver (s.323) and the abandonment of a lien by agreement (s.324) are not applied.

A claim does not lie against the Commonwealth in respect of a postal article being carried by sea (s.329B).

There is also a provision (s.329C) that where salvage services are rendered by or on behalf of the Australian Government, a State or the Government of a Commonwealth country other than Australia then the Government of that country or State is entitled to claim salvage in the same way as any other salvor.

A power to make regulations in relation to such salvage services and claims is given but no regulations have yet been made.

The origin of the existing provisions seems to have been the general move in the U.K. to put the Crown in the same

position as the private individual as regards legal liability for the acts of its servants and as regards the enforcement of

such liability.

This resulted in the Crown Proce edings Act of 194 7 under which among other things the Crown was made liable to s alvage claims and is put in the same position as a private

salvor as regards claims it might make for salvage and was f ollowed by the insertion of similar provisions (ss.329A-329C) in the Navigation Act in 1958.

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In 1967 an international move to make warships and ships in public service subject to the same duties and

opportunities in regard to salvage as other vessels resulted in a protocol amending Article 14 of the 1910 Convention.

The British legislation (Crown Proceedings Act 1947) seems to cover the terms of the protocol in regard to claims

against the Crown, but there may be some doubt as to whether or

not the provisions of the Australian legislation as they now stand would do so. They refer to government ships which are defined so as not to include a ship belonging to the Australian Shipping Commission. The Convention however refers to assistance

or salvage services rendered to a ship of war or any other ship

owned, operated or chartered by a State or Public Authority.

References in the legislation to ships belonging to or chartered to the Australian Coastal Shipping Commission (see s,44 of the Australian Shipping Commission Act 1956-1974) may need reconsideration if Australia, which is a party to the

1910 Convention, decides on ratification of the Protocol of 1967.

The need to include any reference to salvage services rendered by or on behalf of the government of a country which is a member of the Commonwealth other than Australia needs consideration. The original purpose seems to have been to

f ollow the usual pattern of British shipping legislation and to cover all salvage services rendered by or on behalf of the Crown in the right of an Australian or any other Commonwealth Government. With the coming into force of the 1967 Protocol

the position has changed. The requirements of the Protocol should be met by prov iding only for salvag e service s r e ndered by or on behalf of the Australian or a State Government. Other members of the Commonwealth are, of course, free to pass their

own legislation to accept the Protocol.

It therefore seems to this Commission that the references to salvage services r e ndered by the government of a Commonwealth country other than Australia should be deleted.

Regulations relating to procedures, salvage bonds, securities and conditions under which claims for s a lvage may be made, should be fram e d in relation only to salvage services rendered by or on behalf of Australian governments.

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PART VIIA. PREVENTION ETC. OF POLLUTION BY OIL OF

AUSTRALIAN COAST, COASTAL WATERS AND REEFS

(SECTIONS 329D-329L).

This part which was first inserted in the Act in 1970

was designed to give the Minister powers to deal with ships and their cargoes in cases where pollution is occurring or there is a threat of pollution of the Australian coast or coastal waters by oil.

It followed a grounding of the oil tanker 'Oceanic Grandeur' in Torres Strait. There was, at the time, a

possibility that leaked oil could cause serious damage to pearling then being carried out in the area.

Apart from the usual provisions relating to interpretation (s.329D) and saving of other legislation (s.329L) the part has four main provisions:

(a) it provides for the Minister to take action to

prevent or reduce pollution where oil is escaping or is likely to escape from a ship (s,329E);

(b) the action may include requiring the owner to

take action specified in a notice served on him (s.329F). Where a requirement is not complied with the Minister may himself cause such action to be taken as he thinks proper, to

prevent pollution by oil (s.329J);

(c) failure by an owner to comply with a requirement

is an offence (s.329G) and the cost or any other

liability incurred by the Minister in the exercise of his powers is a debt due to the Commonwealth

and a charge on the ship (s.329J);

(d) where oil escapes from an oil tanker irrespective

of any action taken along the lines indicated above the Minister may cause such action to be taken as he thinks proper to prevent or reduce pollution by oil and the expense of so doing or

any liabilities incurred in the exercise of the Minister's powers is a debt due to the Commonwealth and a charge on the ship (s.329K). The liability

of a tanker owner is however limited to $120 a ton

of the ship's tonnage with an overall limit of $12.6m.

The provisions may be said to follow the principles of the 1969 Oil Pollution Conventions particularly with regard to the limitation of tanker owner's liability and the defences available to shipowners.

175

There are however some important differences, e.g. these provisions apply to the non-persistent as well as the persistent oils. They relate to intervention within the coastal waters and there is no limitation of liability of the owner of a ship other than a tanker which fails to comply with

a notice.

In general the Commission is of the view that the provisions of this part are essential if Australia is to be able to take appropriate action to deal with or prevent oil pollution. It fills a gap left by the 1969 Conventions and

should be retained.

It has been suggested by shipowners that where the Minister, following non compliance by the owner with a direction, incurs expense which is recoverabLe from the owner, the liability of the owner should be confined to preventive measures taken by

the Minister which are in the circumstances reasonable. (See Article VI of the Intervention Convention 1969.) It was also suggested that the Minister should be responsible for the damage resulting or consequences of any action taken by him which was not reasonable in the circumstances.

Obviously it is not a valid argument to suggest that this selected requirement should be taken from one of the 1969 Conventions and applied to a shipowner's liability unless the substance of the remaining articles of the Convention are

included in the legislationo

However if Australia is to be a party to the

Conventions (see the Commission's Report on International Maritime Conventions) and legislation is introduced to give effect to the Conventions some such amendments to the provisions of Part VIIA seem to be justified.

Another point relates to the application of the part.

The part applies to any ship including a foreign ship within Australian coastal waters from which escaping oil may pollute the Australian coast or coastal waters. It would seem that because of Section 2, the part may not apply to an escape

of oil from an intrastate ship.

In order to enhance its effectiveness it seems to the Commission that the part should not be subject to any r'estrictions such as those imposed by Section 2. The definition of Australian coastal waters may also require consideration in relation to the Seas and Submerged Lands Act 1973.

176

As it seems likely that Part VIIA will be subsumed in separate legislation related to pollution of the sea the Commission is not making any detailed recommendation on the need for the revision of the Navigation Act in this respect.

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PART VIII. LIMITATION OF LIABILITY IN RESPECT OF

GOVERNMENT SHIPS- (SECTIONS 330-336).

The existing prov1s1ons apply the limitation of liability provisions of the British Merchant in so far as

they are part of the laws of Australia, to Australian and State Governments in respect of ships owned or chartered by them.

Australia is considering ratification of the International Convention Relating to the Limitation of Liability of Owners of Sea-going Ships (Brussels 1957) which came into force in 1968 .

Provisions proposed in the 1975 Bill which would give this Convention the force of law in Australia cover the substance of the existing Part VIII.

If legislation along these lines was enacted there would be no need for Part VIII as it now stands.

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PART IX. COURTS OF MARINE INQUIRY- (SECTIONS 355A-377A).

The existing Act provides for the establishment of Courts of Marine Inquiry, to hear and determine appeals, charges, complaints, inquiries and references under the Act (s.356).

A Court shall be constituted by judges or magistrates of the Commonwealth or a State (s.358) and shall be assisted by not less than two assessors,appointed by the Minister or the Court (s.359-360) who advise but do not adjudicate (s.359 and

361). '

Officers of Courts are appointed by the Minister (s.357) and regulations prescribe their power s and duties (s.363). In addition Courts are given jurisdiction to make inquiries as to all casualties affecting certain ships or entailing loss of life

on or from such ships, and as to charges of incompetency or misconduct or of failure of duty on the part of certificated officers (s. 364 (1)). Certain cases in which an inquiry cannot be held are

a lso specified (s.364(2)).

A Court holds an inquiry when requested to do so by the Minister (s.365) and must forward a copy of its decision to the Minister (s.367).

In certain circumstances, such as the production of new evidence, the Minister may order a re-hearing (s.366).

Administrative matters, such as the appointment and payment of assessors, and Court practices, and procedures, are either laid down in the Act (ss. 367-370A, 373) or covered by regulations. (The Navigation (Courts of Marine Inquiry)

Regulations). 'The Court is given power to award costs (s.371) and offences in relation to Courts are set out (s.370B).

A Court has power to cancel or suspend a certificate of competency issued in Australia or a certificate issued in a Commonwealth country other than Australia in so far as it concerns its validity in Australia (s.372).

Where a certificate is cancelled or suspended by the Court there is provision for appeal by the officer who held the certificate to the Commonwealth Industrial Court (s.375B). Also a Court of Marine Inquiry is empowered to sit as

a Court of Survey, in a case where it is desired to appeal

against a refusal to issue a survey certificate or where a ship is alleged to be unseaworthy (s.377).

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Another provision (section 375A) gives the Minister power, if he thinks the justice of the case requires it, to

reverse or amend the decision of a Court of Marine Inquiry to cancel or suspend a certificate valid within Australia.

The powers of a Court to make inquiries are related to two main areas. A Court is given jurisdiction in specified cases to make inquiries as to (1) all casualties affecting certain ships or entailing loss of life on or from such ships, and (2) charges of incompetency or misconduct or of failure of duty on the part of certificated officers.

Examples of cases coming within (1) in which it has jurisdiction are:-(a) where a shipwreck or casualty occurs to a

ship on or near the coast of Australia, or

in the course of a voyage to a port within

Australia;

(b) where a shipwreck or casualty occurs in any

part of the world to a ship registered in

Australia; (c) where some of the crew of a ship, which has

been wrecked or to which a casualty has occurred, who are competent witnesses to the facts, are found in Australia; (d) where any ship is lost or supposed to have

been lost, and any evidence is obtainable in Australia as to the circumstances under which the ship went to sea or was last heardof; and

Examples of cases coming within (2) in which it has jurisdiction are: (a) where the incompetency or misconduct has occurred on board a British ship on or near

the coasts of Australia, or on board a British ship in the course of a voyage to a

port within Australia;

(b) where the incompetency or misconduct or failure of duty has occurred on board a ship registered in Australia;

(c) where the master, mate or engineer of a

British ship who is charged with incompetency or misconduct is found in Australia;

(d) where it appears to the Minister, on a report

made in consequence of a medical examination made under this Act, that a master, mate or engineer holding a certificate of competency issued or recognised is incompetent by reason

of his unfitness to perform his duties. 182

Earlier British legislation which was the source of Part IX, provided that an inquiry could take place in all cases where a casualty occurred to any ship on or near the coast of

the United Kingdom. In the case of a casualty occurring elsewhere an inquiry should not be held unless the ship was British and in practice inquiries regarding foreign ships were seldom held.

According to the new British Merchant Shipping Act 1970 a preliminary and/or a formal investigation may be held into a casualty which occurred to a ship if at the time it was

registered in the United Kingdom. In the case of any other

ship for an investigation to be held the ship must have been in

the United Kingdom or its territorial waters.

As the Commission has pointed out earlier in this Report this is in accord with the international maritime principle that by the Safety Convention each administration is responsible for its own ships in matters of this nature and is required to conduct its own investigations in regard to

casualties occurring to its own ships wherever they occur (cf. SOLAS 1960 Chapter I, Regulation 21).

It seemed to the Commission that Australia must follow this principle. A formal inquiry should be made into a casualty occurring:

(a) to a ship which is registered in Australia,

wherever it may be;

(b) to a ship registered elsewhere which is

engaged in the coasting trade or is at the

time of the occurrence within the territorial waters of Australia.

One pifficulty arises from the proposal to exclude a casualty occurring outside territorial waters to a ship not registered in Australia. Obviously it would be desirable to be able to hold in

Australia an inquiry into a ship casualty which occurred outside the territorial waters but within the passages of the Torres Strait or the Great Barrier Reef. The reason is, of course,

that a major mishap to a large ship in these waters could result

in severe restrictions on the ability of other ships to use these passages. The breadth of the territorial sea which will eventually gain international acceptance is somewhat indefinite at this stage. The problem would be alleviated if the breadth

of the territorial sea were to be increased from the present 3 miles which means that important passages in these waters lie outside the 'territorial sea'.

There is of course the possibility that the maritime administration of the country to which the ship belonged could be persuaded to agree to the investigation being held in

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Australia. This may fail in respect of an i mportant case . If

it were practicable to do so on the grounds that Australia has

a real interest in casualties occurring i n such areas and an international obligation to keep these passages free of hazard and obstruction the Commission would strongly recommend the extension of the power to inquire into such casualties.

Another aspect is the question of what is a wreck or

casualty to a ship. The existi ng Act onl y refers t o ' all

casualties affecting ships or entailing loss of l i fe on or from ships '. The British i n their new Merchant Sh ipping Ac t , 1970 , have defined the nature of the casualties which may be the subject of a preliminary or formal investigation . The list in addition to the usual references incl udes a reference to damage caused by a ship which is not now referred to in the

Australian Act .

The Commission feels there are advan t ages in following the existing pattern of the Australian Act which does not define 'casualty ' too formally and that the i n clusion of some reference to damage caused by a ship is worthwhile.

In regard to the Court's powers (2) to deal with

certificates, a Court of Marine Inquiry has jurisdiction to make inquiries as to charges of incompetency etc . on the part of masters , mates or engineers where this has occurred:

(a) on board a ship registered in Aus t ralia;

(b) on board a British ship on or near the

coast of Australia or in the course of

a voyage to a port in Australia; or

(c) where an officer of a British ship who

is charged wi t h incompetency is found in Australia.

The new British legislation (Merchant Shipping Act, 1970) now provides that an inquiry by one or more persons appointed by t he Board of Trade may dea l with a certificate issued qualifying an officer to serve on:

(a) a ship registered in the U. K. ; or

(b) passenger ships not registered in the U. K. which carry passengers to and from ports in the U.K.

This is a necessary coro l lary to the proposa l that

the manning requirements of such ships are to be controlled and the Commission recommends the acceptance of the pri nciple in the new Australian Act .

184

The question of where the incompetency or misconduct has occurred . is not now involved nor is the place where the officer may b e found. The inquiry c a n d ea l with licences

which are a valid qualification to serve on ships for wh i ch the maritim e authority has a responsibility to maintain s t a nda rds o f competency.

The Commission feels that the area of validity of the licence concerned is a better criterion on which to base j urisdict i on than the nature and location of t h e s hip on which

the incompetency or misconduct occurred.

It seemed to the Commission to be appropriate t h a t the power to deal with licences should b e restricted t o licences issued under the Act, (S e e l a t er i n thi s Re p ort on

Part IX and the report on Pa r t II) ,

The manner in which the proceedings in a Court of Marine Inquiry shall be co ndu c t ed a r e s et out in Part II of the

Nav i gation (Courts of Marin e Inquiry) Regulations. Th e proc eedin g s are u sually commenced by an officer of the Department o f Transport, who through c ou nse l emp l oyed by the Commo nweal th, opens hi s case a n d proc e e d s with the examination

o f witnesses. Wi tne sses after being examin ed by or on b e ha l f

of the representativ e of th e Depar tm e n t may be cross examined by the other parties and th e n r e - exam ined by the Departmental representative. When a ll the ex a mina t i ons of witnesses have been concluded t h e Departm e nta l representative sta t es in open

Court the que s tions upon which the opinions of the Court are desired.

During the proceed ings c harges against a s hip ' s officer may b e made by the Departmental representative. In s ubmi ssions t o the Commission and in di scus s i ons with it the view has b een expressed that the existing sys t em

g ive s a n impression of unfa irness and that justice is not

seen t o be d one. The Court in the one h e aring inquires into

the caus e of a casual t y a nd into c harges of incompetency or

misconduct aga inst a person.

The Court in the same h ear ing may, then, proceed t o

deal wi th a certificate he ld by t hat person who may have t a k e n

part in the inquir y before h e was made aware of the cha r ges

aga inst h im and indeed before the charges were, in fac t,

formul ated .

185

This criticism of 'unfairness' appears to arise from the nature of the proceedings adopted to achieve the two objects of the inquiry. To discover the cause of a casualty the

proceedings must be inquisitorial. During these proceedings, to achieve the second object of dealing with a certificate, a charge may be laid against a person, who may already have given evidence.

It has been suggested to the Commission that the position would be improved if at the inquiry into the cause of the casualty no charges were laid. A tribunal conducting such an inquiry should not have the power to deal with certificates or impose any penalties. Its only concern would be t o make a

finding and a report on the cause of the casualty and if

necessary to refer to action which might be taken to prevent a repetition of a similar incident.

Another criticism of the existing system which has been made to the Commission is the high level of cost which a

person faces if he feels he needs to be a party to the

proceedings. In recent years it seems to the Commission that there has been a trend towards hearings which are more formal, more lengthy, and with more parties. The cost of being represented is likely to impose in terms of money and working time lost a considerable burden on any person who desires to protect himsel f from charges which may be made during the proceedings.

The Commission believes that one of the reasons for the high levels of legal representation and therefore the length and cost of proceedings in recent cases is the fact that by sections 259-261 of the Act the owner's liabilities for damage or loss are related to the degree in which the vessel was at fault. The dramatic rise in the size and value of ships

in recent years has increased the interests of insurers and underwriters in the proceedings and has compounded the problem.

In such circumstances the practice seems to have been that a person who feels he must be represented seeks assistance from his union or professional association and ultimately if the costs are high, assistance is sought from the Government.

Returning to the main consideration, the Commission agrees that an administrative commission or tribunal constituted in the pattern of the existing Court of Marine Inquiry which conducts an open inquiry into the causes of the more important shipping casualties is essential .

The Commission feels it would be preferable if that the commission or tribunal were not known as a 'Court', As an

administrative tribunal it might appropriately have a title such as the 'Marine Inquiry Commission' .

186

The Commission recommends that its only function should be to inquire into a ca9ualty occurring to an Australian ship wherever it might be or to a foreign (i.e. non Australian) ship which is engaged in the coasting trade or which at the time of

the occurrence is within the territorial waters of Australia. (If possible these waters might be extended to include adjacent waters in which Australia has special interests).

The constitution and proceedings of the proposed 'commission' should be 'inquisitorial' and should follow the general pattern of the existing practices and procedures for a Court of Marine Inquiry save that there should be no penal proceedings. Instead the power which a Court of Marine Inquiry has under the existing legislation to cancel or suspend

certificates should be exercised by an officer so authorised by the Minister and his decision should be subject to review by an Administrative Appeals Tribunal constituted under the Administrative Appeals Tribunal Act 1975.

To the Commission this is the best answer to the

criticism which has been levelled at the justice of the existing system. It effectively separates the inquisitorial proceedings from the penal, it places the responsibility for cancellations and suspension of certificates with the Department which carries

the responsibility for the safety aspects, and it provides an adequate avenue for appeal from that decision. Its principal disadvantage is that it may (e.g. in the case of an appeal)

involve two inquiries into related aspects of the circumstances in which the misconduct or incompetency occurred. However, it seems to the Commission the matters concerned are of such importance to the parties involved that they should be so treated.

The Commission believes that it makes good sense to have a uniform method of depriving any seafarer of his licence whatever the circumstances were in which the unfitness became apparent. This' is done by the responsible authority when he

is satisfied that the holder is not a fit and proper person to

hold that licence. The Commission's proposals provide for one method of appeal against such a decision and that is to an

Administrative Appeals Tribunal. It seems to the Commission that such a Tribunal is likely to be less formal and more

appropriate to the task than the existing Court in which issues associated with such matters as apportionment of blame and degrees of responsibility for damage may tend to dominate the proceedings.

One further matter remains to be discussed on the subject of Courts of Marine Inquiry. Section 375A in effect gives the Minister power, if he thinks the justice of the case requires it, to reverse · or

amend the decision of a Court of Marine Inquiry as to the manner in which a certificate is to be dealt with.

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It is based on a provision first made in the British

Merchant Shipping Act of 1862 when there was no specific provision for a re-hearing or right of appeal from the decision of the Court. An officer deprived of his certificate by a Court of Marine Inquiry now has a right of appeal to the

Commonwealth Industrial Court. The Minister on his part, if he feels there has been a miscarriage of justice, is able to order a re-hearing of the case by the Court.

The existing section is however used occasionally in circumstances where the Court has recommended that a certificate of lower grade be issued in place of a certificate cancelled or suspended. The provisions of the section enable a certificate of much lower grade to be issued.

However if the Commission's recommendation relating to the power to grant, cancel or suspend licences is adopted the matter will be covered adequately by other provisions. The Commission considers that this provision will no longer be necessary.

Preliminary Investigation

Section 377A provides that a person appointed by the Minister may make a preliminary investigation respecting any casualty affecting a ship or entailing loss of life on or from a ship. These preliminary proceedings, which are not open to

the public, generally take the form of an examination on oath of the available witnesses and sometimes an inspection of the ship. The powers of , the investigator are laid down. Penalties are provided for failure to appear if summoned and for failure to answer questions.

A report is made to the Minister although this is not covered in the Act. This report generally includes a recommendation as to whether or not a more formal investigation in the form of a Court of Marine Inquiry is desirable.

In the present circumstances the purpose of a preliminary investigation seems to the Commission to be:

(a) to obtain

while the witnesses disperse;

evidence of what happened immediately incidents are fresh in the minds of and before they go to sea again and

and

(b) to provide material on which the Minister may determine whether or not a more formal investigation in the form of a Court of Marine Inquiry is necessary.

There were criticisms of the existing system made in submissions to the Commission.

188

It was suggested that it was unfair that statements on oath made . at a preliminary investigation by a person required to answer questions should be used in subsequent proceedings. The person who has been compelled to make the statements may

later be charged with incompetency, or a failure in duty and the statements may tend to incriminate him.

It was submitted that where a casualty occurs an investigator should investigate, obtain statements offered voluntarily and report. The investigator should not be able to compel answers nor should there be a power to punish for refusal

to answer based on the possibility of self incrimination. On the other hand the investigator should be empowered to bring charges for obstruction. In other words the investigator shou1d have the same powers as police and no more.

Another point made was that in view of the possible involvement of the Department of Transport in the causes or circumstances of the casualty the investigator should not be a departmental officer.

The Commission here points out that section 377A allows the appointment of a person and does not specify an officer. It has however been the practice for departmental officers to conduct preliminary investigations and the Commission recommends this continues. (See Commission."s Report

on Maritime Standards and Controls).

Also bearing in mind its recommendation earlier in this Report relating to licences and permits (dealt with under Division 11) and Courts of Marine Inquiry (this Division) the Commission sees a need for a replacement of this section with a provision which would enable the Minister to appoint a suitably

qualified person or persons to make a preliminary investigation. The purpose of the investigation should be to establish facts relating to a casualty to a ship with the object of obtaining evidence immediately the casualty has occurred and to provide material upon which the Minister may decide whether or not a further inquiry is necessary.

The person so

to go aboard ships etc.

production of documents to summon witnesses, to However it should be an

appointed should have the usual powers (subsection l(a)) and to require the (subsection l(b)) but should not be able require answers or administer oaths. offence to obstruct an investigation.

There should also be provision for a report to be made to the Minister.

189

The preliminary investigation will be an investigation of a casualty to a ship. There remains to be decided the

classes of ships to which the proposed provision will apply.

As the main purpose of the preliminary investigation will be to obtain information upon which the Minister may decide whether or not a further inquiry should be held it is desirable that this provision should apply to all the ships

that may be the subject of the more formal inquiry by the administrative tribunal.

They are:-(a) A ship registered in Australia wherever it may be;

(b) A ship registered elsewhere which is engaged in the coasting trade or is an off-shore ship, or is at the time of the occurrence within the

territorial waters of Australia.

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PART X. LEGAL PROCEEDINGS- (SECTION 378-405A).

The Commission has seen its Terms of Reference as a whole as being directed primarily to the policy and the practical aspects of the development of the maritime industry. It has regarded this particular Term of Reference No. (1) as

being mainly concerned with those needs for revision which arise from policy and practical aspects and has not been particularly concerned with revision associated with legal aspects. In the absence of specific submissions relating to a need for revision of the provisions of the Act relating to this part the Commission has not specifically directed its attention to these provisions.

The Commission has suggested in Part I of this Report that the Navigation Act should be completely redrafted. This would afford an opportunity for an appropriate revision of its legal provisions by the Attorney-General's Department.

The Commission does not therefore mention more than a few points of policy which seem to it to be relevant.

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DIVISION 1. JURISDICTION- (SECTIONS 37&-3&5).

In relation to two sections (sections 383 and 385) which h ave policy implications the Commission offers the following comments which may be relevant to any proposals to revise this Part in the process of rearranging and redrafting the Act.

Section 383 deals with the power to detain in Australia a foreign ship which by the misconduct or lack of skill of its crew has caused injury to property , It seems to

the Commission that Australia should not now take action to d e tain a foreign ship which has caused injury to property belonging to a Commonwealth country other than Australia or belonging to a person other than a n Australian citizen ,

In the light of the current international discussions on the breadth of the territorial sea, the reference to 'a

foreign ship found within three miles of coast' may also need revision.

Section 385 gives to a Court having admiralty jurisdiction power to remove the master of a ship if it thinks it necessary to do so.

Nowadays it is difficult to imagine any circumstances in which the removal of a master by a Court would be necess a ry or desirable.

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DIVISION 2. OFFENCES - (SECTIONS 386-391).

In view of the Commission's earlier recommendation that desertion be no longer treated as a criminal offence the Commission recommends that section 387B which deals with the offence of harbouring a deserter should be repealed.

Similarly, section 390 which provides that a person belonging to or even employed on or being about a ship at a

port who is insubordinate or refuses to work may be apprehended and brought before a magistrate is out of touch with present day industrial conditions in Australia. No master would be prepared to make such a complaint and the section should be repealed.

Section 391 which subjects a beneficial owner as well as the registered owner to any pecuniary penalties imposed by the Act will no doubt be covered in the proposed legislation for the registration of Australian ships.

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DIVISION 3. PROSECUTION AND PENALTIES - (SECTIONS 392-399).

As the origins of the two limitations of actions imposed by section 396 are in the two International Conventions respecting Collisions Between Vessels and Assistance and Salvage at Sea, Brussesl 1910, it seems to the Commission that

it would be more useful and appropriate if these limitations were included separately in those parts of the Act which deal with 'Collisions, Loss and Damage', and 'Salvage' respectively.

If the Commission's earlier recommendations in relation to discipline result in the elimination of forfeiture of wages as a penalty section 398 will not be required.

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DIVISION 4. EVIDENCE AND SERVICE - (SECTIONS 400-405).

DIVISION 5. PROCEEDINGS AGAINST THE CROWN- (SECTION 405A).

For the reason already mentioned, the Commission has no comment on these two Divisions.

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PART XI. MISCELLANEOUS - (SECTIONS 406-425).

The section 406 names the red ensign usually worn by British merchant ships defaced with the white seven pointed star and the five stars of the Southern Cross as the proper

colours for Australian merchant ships.

The Commission agrees with a proposal made to it that the Australian national flag should be in the proper colours and sees a need for amendment accordingly. A consequential amendment to the Flags Act 1953-1973 may be necessary (see later in section

3 of this Report).

Section 407 provides for the payment of penalties, forfeitures, fees or moneys recovered or received under the Act to the consolidated revenue fund. In a like manner to the

main provisions of Part X Legal Proceedings, these provisions will have to be reconsidered and redrafted in the light of the form and contents of the redrafted Act. The Commission can have no views or comments at this stage on this matter.

The next four sections, 407A and 407B (which are not yet in force), and 408 and 409 (an amendment to which is not

yet in force) relate to tonnage measurement. Because of the fact that the provisions for the registration of ships in Australia are provisions of Part I of the British Merchant Shipping Act of 1894, ships in Australia are measured under

British tonnage measurement regulations. The main purpose of the amendments made in 1972 to these sections which are not yet in force was to provide a

power to make our own regulations relating to tonnage measurement.

The Commission is informed that the drafting of the regulations is ' nearly complete and they may be in force by September 1976.

In Section I of this Report the Commission is suggesting new legislation for the registration of ships in Australia. A proposed provision which gives power to make regulations relating to ascertaining the tonnage of ships for

the purpose of registration will be recommended which will make these four sections (s. 407A, 407B, 408, 409) unnecessary.

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The circumstances in which the registered tonnages will be recognised and the purposes other than registration, for which registered tonnages may be used (see ss. 329K, 335) should be covered in the Act. Provisions relating to the recognition of tonnage certificates issued in countries other than Australia should also be included.

(Certain treaty obligations relating to the recog­ nition of tonnages determined in other countries and the position of Australia in relation to the International Convention on Tonnage Measurement of Ships 1969 are referred to in the Comm­

ission's Report on International Maritime Conventions.) The master of a ship is required to keep on board the

ship a copy of the Act (s.410) and suitable charts (s.410A) to

which officers shall have free access.

The only comment which the Commission has to offer on these sections (ss.410, 410A) relates to their application. The Commission recommends that they should apply to all ships to which Part II of the proposed new Act will apply.

The position of a pilot in relation to the authority of the master and the responsibilities of the master and owner for the conduct and navigation of a ship under pilotage are set out (s.410B) and the Commission does not suggest any change.

Application of the Act is again taken up in section 411, which says the Act shall apply to any unregistered British ship which ought to have been registered under any Imperial Act as if the ship had been registered in Australia. In terms of

the proposed legislation for registration of ships under Australian law this would mean a provision which applies the Act to any ship which is unregistered but which is required to be registered in Australia under an Australian law. A

provision along these lines is suggested in Section I of this Report dealing with registration of ships.

The two sections which follow give powers in relation to duties imposed on the Minister or other persons under the Act.

Section 412 gives a person authorised by the Minister power to search any vessel in any port. Under section 413 the

Minister or any person authorised by him is given powers to go aboard and inspect a ship or any premises or to require and enforce the production of documents. Persons ma y be summoned to appear and required to answer questions. Oaths may be administered. The crew and passengers of a s hip ma y be mustered and the Minister or the person authorised may require and take securities.

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Sections 414 and 416 relate to the detention of ships by a superintendent or an officer of Customs and as has been pointed out earlier in this Report there are now difficulties associated with the process of detaining a coastal ship by refusing to grant an outward clearance.

The Commission suggests that as an alternative a provision should be written into the Act which will enable an officer authorised by the Minister to prohibit, by notice in writing, the removal of the ship from a port specified in the

notice. A suitable penalty for failure to comply with the notice should be imposed on the master and the owner.

The existing provisions that no official performing any duty under the Act shall be taken to sea without his

consent (s.415) should be retained.

Section 417 provides for the recording of births and deaths etc. occurring on ships.

The master of a ship registered in Australia or engaged in the coasting trade is required to record in his official log book in respect of every person carried in the ship, particulars of births, deaths, disappearance; and in

respect of crew members, any hurt, injury or illness which incapacitates him from duty.

The master of a British ship not registered in Australia or engaged in the coasting trade carrying passengers to a port in Australia, is required to record births, deaths, disappearances in relation to persons other than members of

the crew.

A report of these occurrences must be furnished to the Department.

In accordance with the principles the Commission has already put forward in its Report on Part II of the Act the

requirement to record and report births, deaths etc. should extend only to ships to which Part II applies.

If the Commission's suggestion that Part II of the Act should not be applied to visiting British ships not registered in Australia is accepted there is no need to continue the second requirement relating to visiting passenger ships. If there is or should be a statutory requirement for births or deaths occurring on any ship on a voyage to Australia to be reported the requirement should apply to all such ships (not merely British ships).

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The section also provides that where there is a report of a death, disappearance, hurt, injury or illness in respect of a crew member the proper authority or any other approved official may, unless the Minister otherwise directs, inquire into the occurrence.

The person who makes the inquiry is required to enter in the official log book a statement as to whether or not the

record entered therein by the master is correct or not correct and must furnish a copy of the entry he makes in the log book

to the Minister.

It has been claimed that these inquiries, generally made by superintendents, are a necessary part of the protection of seamen who may die, disappear or be hurt or injured when their ship is beyond the reach of the ordinary processes of public inquiries into such occurrences. It seems to the

Commission that there is some substance in the claim, that the existing practice should be continued particularly, and perhaps only, in a case of a death or disappearance where a coroner's inquest is not held.

The Commission sees a need for an amendment to require such an inquiry to be held in all such cases except where the

Minister otherwise directs. In the case of a death or

disappearance an inquiry should not be held if a coroner's inquest is held.

Some of the more detailed requirements in the existing section relating to such procedural matters as furnishing reports and making entries in the official log book could with advantage be covered in regulations.

Under section 418A the Minister may approve the manner and form of any security required under the Act and the security may, subject to that approval, be by bond, guarantee, cash or any other method. The form of the security is set out

in Schedule V.

The form and nature of securities might be more appropriately prescribed by regulation.

Section 419 provides that the Minister shall have a seal.

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The Commission has not been able to ascertain any circumstances in which it would now be essential that the Minister had a seal. The modern tendency is towards less formality and the Commission suggests the requirement be

examined by the Minister.

Section 420 provides that where the holder of a certificate of competency has been convicted of a criminal offence in Australia or elsewhere, or where a tribunal established under a law of a State has cancelled or suspended a certificate of competency in so far as concerns its validity

in a State, the Minister may cancel or suspend the certificate. The suspensions ?may be revoked by the Minister at any time or he may, if he thinks the justice of the case requires it,

reissue the certificate or grant a certificate of a lower grade.

If the proposals put forward by the Commission in relation to Parts II and IX of the Act are accepted there is

no good reason for retaining this provision. In either of the eventualities there are provisions proposed to enable the authorised officer to deal with the licence. If the holder was convicted of a serious offence which might affect his fitness to serve, his case can be decided by this officer and the holder will have the rights of appeal if suspension or cancellation of

the licence takes place.

As long as there are circumstances in which State Courts may deal with a · licence in so far as its validity in

that State is concerned, there remains a requirement for some form of review of the validity of the certificate or permit in Australia. It seems appropriate that this should also be undertaken by the officer authorised to issue, suspend or cancel

licences and his decision should be subject to appeal. Accordingly section 420 should be repealed.

The Minister may under section 421 direct that the Act, or such provisions of the Act as he may specify, shall not apply to a troop ship. 'Troop ship' is defined for the purpose of this

section. This section was inserted in the Act in 1961 when a need was felt for such a provision in relation to Australian military operations overseas. It should be retained.

Then follow three sections dealing with powers to the operation, or the application,of provisions or to

dispense with their requirements.

The first (section 422), provides that the Governor­ General may, if he is satisfied that the enforcement of any provision of the Act would be inconsistent with any obligations under an international treaty made by the United Kingdon, by

proclamation, suspend the operation of that provision in regard to ships of the country with which the treaty was made.

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No proclamations are in force and so far as the

Commission has been able to ascertain there have never been any proclamations.

Section 422A set out two sets of circumstances in which power to dispense with compliance with specified requirements of the Act is given. First, where the Governor­ General is satisfied as regards a ship or class of ships that:

(a) any specified requirement has been substantially complied with;

(b) compliance with any specified requirement is unnecessary; or

(c) action taken is as effective as actual compliance;

he may by order dispense with compliance with that requirement.

Second where the Governor-General is satisfied as regards any ship or class of ships that compliance with that requirement is impracticable or undesirable in the public interest.

A special report must be presented to Parliament each year stating the cases in which the dispensing power has been exercised.

This section was inserted in the Navigation Act in 1925. There was at that time no power under the Act to suspend

or vary its requirements in extraordinary circumstances involving perhaps the public welfare. Nor at that time, could the Parliament itself deal expeditiously with such a matter however serious the crisis, as all shipping Bills had to be reserved for the Royal not Vice-Regal, Assent. Under Section 78 of the British Merchant

Shipping Act of 1906 the Board of Trade had a power to dispense with any of the requirements of the Merchant Shipping Acts and it was agreed that a similar power was necessary in Australia.

At the time it was said that the proposal was to give

the Government power to cope with new and emergent conditions during the existence of special circumstances. The power was conferred on the Governor-General. Certain safeguards are also included, the one that remains (sub-section (4)) requiring an annual report to Parliament on exemptions granted.

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The orders currently in force relate to exemptions of minor significance, only one relating to visiting British ships has any importance. However, for the reasons put forward in 1925 it seems to the Commission that the retention of the provision is necessary and justified, not as a means of providing minor exemptions but for use in emergency circumstances. The

Commission suggests that as is usual in such provisions today, the Minister, and not the Governor-General, should exercise the power.

Under section 423 the Governor-General has power to suspend the application of the Act tobarges, fishing vessels, pleasure craft, missionary ships, or other vessels not carrying passengers or goods for hire ,

The Commission sees a need for such a power to give

flexibility in the application of the provisions of the Act to small craft not engaged in ordinary commercial operations.

Indeed this requirement for flexibility in the application to non-commercial vessels and fishing boats acquires considerable significance if section 2 were to be repealed or modified and if as a result of the High Court's decision in the

Seas and Submerged Lands Act Case the powers of the Commonwealth to legislate in relation to intrastate operations were extended.

The Fisheries Division of the Department of Primary Industry in discussions with the Commission expressed the view that it was essential to retain this power to exempt fishing vessels from any or all of the provisions of the Act,

particularly in the present circumstances of uncertainty as to the extent of State and Commonwealth legal powers and administrative responsibilities.

The section should be retained but as with s.422A it is recommended that the power should be given to the Minister instead of to the Governor-General.

Section 424 provides for the establishment of a Marine Council which shall inquire into and report on any matter arising out of or related to the Act which the Minister refers to it for

advice.

Matters which must be referred for advice are:

(a) Regulations under s.l4(2) or s.43(2) prescribing the complement of officers or the crew for a ship.

(b) The scale of provisions prescribed under section 177.

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The section itself covers the Constitution of the Marine Council which is based on equal representation of employers and unions with a departmental officer as chairman.

The Minister may also, for the purpose of obtaining advice on any particular matter, appoint persons to constitute a of advice. They shall include representatives of

persons interested in the matter and may include persons having special knowledge of the matter.

Regulations may make provision in respect of the Marine Council and committees of advice for the manner in which they may exercise their powers and functions, the conduct of meetings and payment of fees and allowances to members and witnesses.

The general consensus of opinion expressed to the Commission by representatives of unions and employers was that in relation to dealing with the punishment of deserters and the exclusion of unsuitable persons from employment in the industry, the Marine Council had a long term record of successful operation and should continue to operate within the existing framework.

The only submission made, from representatives of smaller unions was that they should have direct representation on the Council. As only two persons representing seamen other than deck officers and engineer officers can serve on the Council at one time and as there are at least five separate organi­ sations of such employees obviously some of them must miss out.

In fact they are represented by the nominee of another union but they do not regard this as a completely satisfactory answer where the case of one of their own members is under discussion.

It is not easy to suggest an acceptable solution. An

increase in the number of representatives of unions would necessitate a corresponding increase in number of employer's representatives which may make the Council less effective.

The Commission's Report on Maritime Standards and Controls suggests a change in the composition of the Marine Council. Such a change would create a need for a revision of

section 424 to allow the Minister to appoint any number of persons as members of the Council (s.424(3)). The Council, in respect of any act which it is empowered to do, would however st i ll cons ist of a Cha i rman and say four members representing

shipowners and say four members representing sea-going unions who for any particular meeting of the Council would be chosen by the Chairma n from the l i st of persons appointed as members by the Minister.

The subj ect matter of sub-sections (4), (4A), (4B), (4C) and (4D) which are matters of detail relating to the proceeding s and meetings of the Council on which flexibility is necessary, should be included in regulations rather than in the Act.

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The last provision in the Act relating to the making of regulations (s.425) gives a general power to make regulations and power in particular to provide in relation to the loading and unloading of ships, stability, safety, remuneration of medical inspectors, certificates of sea service, penalties for

breaches of regulations and fees.

The matters which in particular may be covered by regulation will need revision in the light of the revision of recommendations in this Report.

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SECTION 3. OTHER AUSTRALIAN MARITIME LEGISLATION.

CONTENTS

LEGISLATION ADMINISTERED BY THE DEPARTMENT OF TRANSPORT

OTHER LEGISLATION

207

Page

211

216

SECTION 3. OTHER AUSTRALIAN MARITIME LEGISLATION.

Sections 1 and 2 have covered the British and the Australian legislation which relates specifically to shipping in Australia. In this legislation the main framework of the law within which the Australian maritime industry operates is

laid down. Obviously it is first in importance in relation to the Term of Reference and is the area to which the Commission has devoted most of its attention in suggesting needs for revision and modernisation of the legislation.

The remaining Australian maritime legislation is in the main administered by the Department of Transport and relates to such matters as coastal shipping operations, overseas conferences, bills of lading and pollution of the sea. The Commission is not suggesting any major need for revision in

these areas.

In this Report the Commission has not dealt with legislation relating to conference operations. The Department of Transport administers Part XII and sections 155-159 of the Restrictive Trade Practices Act 1971-1973. This Act deals with restrictive trade practices in relation to overseas cargo

shipping which is also the subject of the Convention on a Code of Conduct for Liner Conferences (New York) 1974.

The Commission believes that Australia's primary interests in both the legislation and the Convention relate to the carriage of outwards cargoes and the conduct of the shipping conferences in relation to freight rates and other aspects of

the service provided for these cargoes. These are 'shippers' interests and are not motivated by effects on the development of Australia's shipping industry. In to the private maritime law the Commission

has taken a similar stance. Since the private law is not solely

and directly related to the opera tion of ships but deals with the legal relationships of shipowners, shippers, insurers and the like the Commission has not dealt with the need to revise the private law.

It has received a number of comments and submissions on such ma tters including a well considered submission made by the Council of Marine Underwriters of the Commonwealth of Australia which the Commission feels are outside its Terms of Reference.

Nevertheless it seems to the Commission that inquiry and research by lawyers and interested parties such as shippers, insurers and transport operators would be useful in arriving at reasonable conclusions as to the needs for the revision of this

legislation. It believes tha t action to irritate the review and reform of maritime laws is already being sponsored by the Attorney-General's Department. The Commission suggests that the

209

Attorney-General's Department and the Department of Transport might arrange some form of joint consultation specifically on the revision of the private maritime law in which representatives of the legal profession might join with commercial and

departmental experts in shipping in considering such matters so that advice could be offered to the Government.

It seems to the Commission that the newly formed Maritime Law Association of Australia which has as one of its objects the study of the maritime law and which is seeking to represent Australia at the Comite Maritime Internationale should

be considered; and perhaps assisted, in relation to suggestions to organise such consultations.

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LEGISLATION ADMINISTERED BY THE DEPARTMENT OF TRANSPORT

The Australian Coastal Shi in A reement Act 1956 approves a twenty year agreement entere into y t e ustra 1an

Government with respect to the conditions under which the Australian Coastal Shipping Commission and private shipping companies in Australia would share and conduct shipping operations on the Australian coast.

The Agreement which is set out in a schedule to the

Act:-(a) applies to interstate and territorial

shipping services;

(b) expires in 1976 (20 years);

(c) sets a limit of 325,000 gross tons on the

tonnage to be operated by the Commission;

(d) prohibits the Commission from engaging in

stevedoring or from undertaking the booking and handling of its own cargo.

It also provides a procedure whereby the Minister, if he is of the opinion that efficient and economical services cannot be maintained by private shipping companies by reason of the age or obsolescence of their ships, may initiate action which will require the companies to acquire further or

replacement tonnage.

If the Australian shipbuilding industry is not operating at a , reasonably adequate level of production the Minister may take action to require orders to be placed with Australian shipbuilding yards.

The provisions mentioned were designed to deal with the condition in which the Australian coastal trade found itself in 1956. It was short of suitable tonnage as a result

of war and with private shipowners unable or reluctant to re-enter the trade which during the war was conducted by the Australian Shipping Boardo

The Agreement expires on 30.9.76 and the Commission sees no need for its extension (see the Commission's Report on The Future of the Maritime Industry).

The Australian Shippins Commission Act 1956-1974 which established in 1956 a national sh1pping l1ne wh1ch was 1n conjunction with the private shipowners to assist in and re-equipping the coastal shipping fleet.

211

This is done through the Australian Shipping Commission now a statutory body of seven persons each appointed for five years to operate the interstate or overseas shipping services which were thought to fall within the constitutional powers of the Government. The Commission is given the functions, powers and duties of a shipowner.

The Act requires the Commission to charge the lowest possible rates so as to meet all its expenditure and make a reasonable return on its capital.

It gives the Minister power to direct the provision of shipping services for which, if operated at a loss in any

financial year, the Commission is entitled to be reimbursed the extent of the loss.

The Act provided for the winding up of the Australian Shipping Board , It also deals with the following matters which are not directly related to the operations of the Commission:-(a) Power to the Minister, with the concurrence

of the Treasurer, to purchase ships for disposal (section 47).

(b) Places restrictions on the transfer or mortgage of ships registered in Australia (section 48) (see Section 1 of this Report).

On the need for its revision the Commission notes that the Act was recently amended (by Act No. 83 of 1974).

The amendment recognising the Commission's existing role as a shipowner in overseas trades has deleted the word 'coastal' from the title of the Act and the name of the Commission. It

revises and updates the provisions relating to the establishment and constitution of the Commission, the reimbursement of losses incurred in operating uneconomic shipping services at the direction of the Minister, and certain housekeeping and administrative requirements relating to matters such as superannuation, borrowing, accounts, audit and taxation.

In view of this recent review this Commission sees no need for further revision in these areas and offers no comment on these aspects of the legislation.

However in a broader context it that

consideration would be worthwhile of amendments which would:

(a) in line with the new view of the Australian

Parliament's power to make laws relating to intrastate shipping which seems to the Commission to flow from the High Court's decision in the Seas and Submerged Lands Act 1973, extend the functions of the Commission

212

(section 15) to establish, maintain and operate intrastate shipping services.

(b) having in mind the existing method of

assisting the shipbuilding industry by direct subsidy- repeal section 47. (c) accepting that the Commission's proposals in relating to new legislation for the

registration of ships will mean that the substance of section 48 will be included in that legislation - repeal section 48 0

It is also necessary to draw attention to possible needs to amend the Act if the proposal to inject private equity into some of the shipping operations now conducted by the Commission (proposed in the Commission's Report on the Future of the Australian Maritime Industry) were to be implemented.

For the purpose of considering in the broadest terms the degree of amendment there are probably two extreme positions.

The simplest, which would involve least disturbance to the Act, would be for the Commission to participate in an incorporated company or companies formed by others to operate shipping services in certain tradeso

Amendments to sections 15 and 16 may be all that would be necessary.

At the other extreme a proposal that the Commission be reconstituted so that representatives of private shareholders could become part of the Commission (i.e. "company directors" of the Commission itself or of some subsidiary "companies") would

probably involve a complete change in basic concept underlying the Act and would necessitate sweeping changes in its structure.

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The Pollution of the Sea br Oil Act 1960-1973 relates to the prevention of the pollut1on o the sea by oil from ships

and gives effect to the provision of the International Convention for the Prevention of Pollution of the Sea by Oil 1954 (as amended to 1962). (See Commission's Report on International Maritime Conventions).

Contributions to the cost of preventing or dealing with pollution of the Australian coast or coastal waters by pollution by oil from ships are covered in two further Acts. They are the Pollution of the Sea by Oil LeVY) Act

1972 and the of the b_ 01l (§fi1 __ in_ Lev_

COITection) Act 1972.

The first imposes a levy not exceeding four cents per ton of the tonnage of a ship whose tonnage exceeds 100 tons which has on board at a port in Australia 10 tons or more of

oil in bulk.

The regulations, at present, provide for a levy of one cent per ton.

The second relates to the collection of the levy imposed on ships in Australian ports with oil in bulk on board. The levy is payable to a Collector of Customs in a manner similar to light dues.

It also provides that a notice requ1r1ng payment of the levy shall be served on the master personally or by post and prescribes the manner in which a notice to pay a levy may be served on a master.

Amendments to the Pollution of the Sea by Oil Act will be necessary if Australia is to accept the 1969-1973 amendments to the Convention (see Commission's Report on International Maritime Conventions which refers to these three amendments).

ACt a m1n1stere y t e Department of ransport

except for section 3 which is ·administered by the Department of Health) regulates and controls the sinking at sea of vessels and hulks for the purpose of their disposal.

Section 3 regulates and controls the discharge from ships in Australian waters of garbage, rubbish, ashes or organic refuse.

The subject matter of the Act is covered by the

International Convention relating to the Dumping of Wastes at Sea, 1972. (See Commission's Report on International Maritime Conventions) and if legislation is passed to give effect to these Conventions the existing provisions may be unnecessary.

214

The Sea Carriage of Goods Act 1924-1973 is private maritime law wh1ch 1n a schedule to the Act lays down rules of law relating to the carriage of goods by sea in ships. It

imposes liability on the shipowner in respect of cargo carried by sea and limits that liability. It requires the use of bills

of lading and similar documents.

The rules do apply to the carriage of goods from

a port in any State to any other port in the same State.

The Act gives effect, in relation to overseas and interstate carriage, to the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, Brussels 1924 (Australia acceded to the Convention in

1955).

A protocol to the Convention was signed in Brussels in 1968 but no action has yet been suggested to amend the Act to take account of the protocol.

The Commission believes consideration should be given to an amendment to extend the application of the Sea Carriage of Goods Act to cover the carriage of cargo between ports in a State.

215

OTHER LEGISLATION

The Act 1953-1973 is administered by the

Department of ther1me Minister and Cabinet. It provides that the flag declared in section 406 of the Navigation Act to be the proper colours for all Australian merchant ships shall be the fl ag known as the Australian Red Ensign.

This Commission in section 1 of this Report recommends that the Australian flag and not the Red Ensign should be the proper colours for a ship registered in Australia. If this recommendation is accepted an amendment of the Flags Act will be necessary.

216

INFORMATION RECEIVED

in respect of the four reports presented in June 1976

In its three previous reports the Commission has listed parties who have assisted the Commission with written submissions or discussions in respect of the subject of the report.

Because of the wide nature of the subjects of this last group of four reports, the Commission has drawn generally on all submissions and information which it has received throughout the inquiry. It would be repetitious to list particular parties in

respect of each of these reports.

The Commission gratefully acknowledges the help which has ' been provided to it by way of submissions and discussions on many aspects of the facts and the views dealt with in these reports.

24400/ 76-L 217 R75/1421