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Marine Safety (Domestic Commercial Vessel) National Law Amendment Bill 2014

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2013-2014

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

MARINE SAFETY (DOMESTIC COMMERCIAL VESSEL) NATIONAL LAW AMENDMENT BILL 2014

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Infrastructure and Regional Development

the Hon Warren Truss MP)

 

 



 

MARINE SAFETY (DOMESTIC COMMERCIAL VESSEL) NATIONAL LAW AMENDMENT BILL 2014

 

OUTLINE

 

The purpose of the Bill is to amend the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (the National Law), and for related purposes.

 

The National Law commenced on 1 July 2013, introducing nationally consistent law for the regulation of domestic commercial vessel safety and establishing the Australian Maritime Safety Authority (AMSA) as the National Marine Safety Regulator for the domestic commercial vessel fleet operating in Australian waters across all states and territories, including the Christmas and Cocos (Keeling) Islands.

 

The policy basis for the National Law derives from the Council of Australian Governments’ Intergovernmental Agreement on Commercial Vessel Safety Reform (the IGA), signed by First Ministers on 19 August 2011.

 

The IGA sets out the mechanism for making any amendments to the National Law. It requires the unanimous agreement of the members of the Standing Council on Transport and Infrastructure (SCOTI), or its successor the Transport and Infrastructure Council, comprised of transport ministers from all jurisdictions, including the Deputy Prime Minister, the Hon Warren Truss MP. The amendments proposed in this Bill were agreed by SCOTI on 15 November 2013.

 

AMSA and the Department of Infrastructure and Regional Development have identified a number of necessary amendments to ensure the intentions of the parties to the IGA are fully realised. The amendments are largely minor.

 

 

Financial impact statement

 

Nil

 

 





 

Statement of Compatibility with Human Rights

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

Human rights implications

The Bill engages the following human rights:

Right to fair trial and fair hearing

Overview of the Bill  

The Marine Safety (Domestic Commercial Vessel) National Law Amendment Bill 2014 (the Bill) will ensure the National Marine Safety Regulator is able to exercise discretion when considering the suspension, revocation and variation of vessel certificates. This will provide greater flexibility to accommodate the variety of operational variables within Australia’s domestic commercial vessel fleet.

This Bill also provides minor amendments to ensure the definition of ‘defence vessel’ aligns with the Navigation Act 2012, which also deals with marine safety.

In addition to those amendments already mentioned the Bill provides amendments to ensure the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (the Act):

·          clarifies one of the National Regulator’s functions as the function of surveying vessels;

·          allows for the sub-delegation of powers to accommodate the range of organisational arrangements within each jurisdiction; and

·          consistently and correctly uses legislative referencing, corrects minor grammatical errors of the Act and clarifies review rights within the Act.

Human rights implications

Items 19 to 23 of this Bill clarify that review rights under the Act are consistent with the original intentions of the Act. These amendments ensure that those human rights relating to review rights, as recognised in Article 14(1) of the International Convention on Civil and Political Rights (ICCPR) are made available.

Conclusion

This Bill is compatible with human rights as it clarifies that the review rights as recognised in the ICCPR are available.

 

 

 

Minister for Infrastructure and Regional Development, the Hon Warren Truss MP

 

NOTES ON CLAUSES

 

Clause 1: Short Title

 

1.         This is a formal provision that specifies that the Act may be cited as the Marine Safety (Domestic Commercial Vessel) National Law Amendment Act 2014 (the Act).

 

Clause 2: Commencement

 

2.         This clause sets out the Act will commence on the day the Act receives the Royal Assent.

 

Clause 3: Schedule(s)

 

3.       This clause provides that the Act will be amended as specified and set out in Schedule 1 to the Act.

 

SCHEDULE 1 -

 

Item 1 - Section 6 of the Marine Safety (Domestic Commercial Vessel) National Law (definition of defence vessel)

 

4.         The definition of “defence vessel” under section 6 of the Marine Safety (Domestic Commercial Vessel) National Law (the National Law) is not the same as subsections 10(a) and 10(b) of the Navigation Act 2012 (the Navigation Act) , which also deals with marine safety. This means that, without aligning the definitions, the terms “defence vessel” must be interpreted differently in each piece of legislation, to the extent of the difference. Item 1 clarifies that defence vessels under the Navigation Act are the same as the defence vessels under the National Law .

 

Item 2 - Section 6 of the Marine Safety (Domestic Commercial Vessel) National Law

 

5.         Item 2 will insert the definition of “Government vessel” and clarify that this term has the same meaning as the Navigation Act. This will ensure that the legislative scope of what is meant by this term is interpreted in the same manner as the Navigation Act.

 

Item 3 - After paragraph 10(c) of the Marine Safety (Domestic Commercial Vessel) National Law

 

6.         Item 3 will insert sub-clause 10(ca) to make explicit that the National Regulator has the function of surveying vessels and dealing with matters relating to the survey of vessels by accredited vessel surveyors.

 

Item 4 - Subsection 11(3) of the Marine Safety (Domestic Commercial Vessel) National Law

 

7.       Subsection 11(3) of the National Law will be amended to broaden the sub-delegation power of a delegate of the National Regulator that is an employee of a State or the Northern Territory to enable them to sub-delegate any of their powers or functions to an officer or employee of an agency of their State or Northern Territory. This is required to ensure the appropriate National Regulator functions can be delegated to any officer regardless of the various organisational structures within the jurisdictions. Sub-delegations are subject to subsection 11(2) and 11(5), which provide the National Regulator with the authority to establish conditions on how the sub-delegate is to exercise their functions and delegated powers.

 

Item 5 - Subsection 40(2) of the Marine Safety (Domestic Commercial Vessel) National Law

 

8.     Subsection 40(2) of the National Law will be amended to give the National Regulator discretion in deciding whether to vary a certificate of survey.

 

Item 6 - Subsection 41(2) of the Marine Safety (Domestic Commercial Vessel) National Law

 

9.     Subsection 41(2) of the National Law will be amended to give the National Regulator discretion in deciding whether to suspend a certificate of survey under new subsections 41(2) and (2A).

 

Item 7 - Subsection 42(2) of the Marine Safety (Domestic Commercial Vessel) National Law

 

10.     Subsection 42(2) of the National Law will be amended to give the National Regulator discretion in deciding whether to revoke a certificate of survey.

 

Item 8 - Subsection 50(2) of the Marine Safety (Domestic Commercial Vessel) National Law

 

11.     Subsection 50(2) of the National Law will be amended to give the National Regulator discretion in deciding whether to vary a certificate of operation.

 

Item 9 - Subsection 51(2) of the Marine Safety (Domestic Commercial Vessel) National Law

 

12.     Subsection 51(2) of the National Law will be amended to give the National Regulator discretion in deciding whether to suspend a certificate of operation under new subsections 51(2) and (2A).

 

Item 10 - Subsection 51(4) of the Marine Safety (Domestic Commercial Vessel) National Law

 

13.     Item 10 changes the term “subparagraph” to “subsection” to ensure the consistent use of terminology in the National Law.

 

Item 11 - Subsection 52(2) of the Marine Safety (Domestic Commercial Vessel) National Law

 

14.     Subsection 52(2) of the National Law will be amended to give the National Regulator discretion in deciding whether to revoke a certificate of operation.

 

Item 12 - Subsection 62(2)- Variation of certificate of competency

 

15.     Subsection 62(2) of the National Law will be amended to give the National Regulator discretion in deciding whether to vary a certificate of competency.

 

Item 13 - Subsection 63(2) of the Marine Safety (Domestic Commercial Vessel) National Law

 

16.     Subsection 63(2) of the National Law will be amended to give the National Regulator discretion in deciding whether to suspend a certificate of competency under new subsections 63(2) and (2A).

 

Item 14 - Subsection 63(4) of the Marine Safety (Domestic Commercial Vessel) National Law

 

17.     Item 14 changes the term “subparagraph” to “subsection” to ensure the consistent use of terminology in the National Law.

 

Item 15 - Subsection 64(2) of the Marine Safety (Domestic Commercial Vessel) National Law

 

18.     Subsection 64(2) of the National Law will be amended to give the National Regulator discretion in deciding whether to vary a certificate of competency.

 

Item 16 - Section 72 of the Marine Safety (Domestic Commercial Vessel) National Law

 

19.     Section 72 of the National Law requires the National Regulator to give a show cause notice before suspending a certificate. Item 16 will be a consequential amendment required to give effect to those amendments proposed at items 6, 9 and 13.

 

Item 17 - Paragraph 104(2)(h) of the Marine Safety (Domestic Commercial Vessel) National Law

 

20.     Paragraph 104(2)(h) of the National Law will be amended to remove reference to subsection (7) as this subsection does not exist.

 

Item 18 - Section 139 of the Marine Safety (Domestic Commercial Vessel) National Law

 

21.     Section 139 of the National Law will be amended to correct a minor drafting error.

 

Item 19 - At the end of subparagraph 139(a)(ii) and (iii) of the Marine Safety (Domestic Commercial Vessel) National Law

 

22.     Section 139 of the National Law will be amended to correct a minor drafting error and make clear that an applicant has the right to have a decision reviewed where the National Regulator acts in accordance with subsections 48(2) or 60(2) of the Act.

 

Item 20 - At the end of subparagraph 139(g)(i), (ii) and (iii) of the Marine Safety (Domestic Commercial Vessel) National Law

 

23.     Item 20 will be consequential amendments required to give effect to those amendments proposed at items 6, 9 and 13.

 

Item 21 - At the end of subparagraph 139(i)(ii) and (iii) of the Marine Safety (Domestic Commercial Vessel) National Law

 

24.     Section 139 of the National Law will be amended to correct errors in the Act and make clear that an applicant has the right to have a decision reviewed where the National Regulator acts under subsections 52(3) and 64(3).

 

Item 22 - Paragraphs 139(m), (n) and (o) of the Marine Safety (Domestic Commercial Vessel) National Law

 

25.     Paragraphs 139(m), (n) and (o) are stated as decisions made by the National Regulator which are subject to review. However, the decisions made under paragraphs 139(m), (n) and (o) are made by a marine safety inspector, not the National Regulator and therefore the paragraphs will be repealed. Reviewable decisions made by marine safety inspectors are addressed at item 23.

 

Item 23 - At the end of section 139 of the Marine Safety (Domestic Commercial Vessel) National Law

 

26.     New subsection 139(2) will be added so that decisions made under sections 101(1), 110(1) and 111(2) will be specified in the National Law as reviewable decisions made by a marine safety inspector. 

 

Item 24 - Subsection 140(1) of the Marine Safety (Domestic Commercial Vessel) National Law

 

27.     Subsection 140(1) of the National Law will be amended so that when a reviewable decision is made in relation to a person either the National Regulator or a marine safety inspector must issue a notice to that person.

 

Item 25 - Subsection 140(4) of the Marine Safety (Domestic Commercial Vessel) National Law

 

28.     Subsection 140(4) of the National Law will be amended to correct a grammatical error.

 

Item 26 - After subsection 159(5) of the Marine Safety (Domestic Commercial Vessel) National Law

 

29.     Sub-clause 10(ca) will be inserted to specify that survey of vessels is a function of the National Regulator. New subsection 159(5A) will be inserted to specify that regulations may be made in relation to the conduct of the survey of vessels.