COASTAL TRADING (REVITALISING AUSTRALIAN SHIPPING) BILL 2012

i Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

Contents

Part 1--Preliminary

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

Object of Act ...................................................................................... 2

4 Constitutional

basis for Act ............................................................... 2

5 Simplified

outline

..............................................................................

Part 2--Interpretation

6 Definitions

.........................................................................................

7 Meaning

coastal trading ................................................................ 9

Part 3--Provisions relating to the application of this Act

Extension to Territories ................................................................... 11

Act to bind the Crown ...................................................................... 11

Act does not apply to certain vessels ............................................... 11

Minister may exempt certain vessels or persons .............................. 11

12 Application

vessels

on intrastate voyages .................................... 12

Part 4--Licences

Division 1--General licences

Subdivision A--Application for, and grant of, general licences

13 Application

for

general licence ........................................................ 14

Application may be varied or withdrawn ......................................... 15

15 Deciding

applications

......................................................................

Grant of general licence ................................................................... 16

Application taken to be granted in certain circumstances ................ 16

Issue of general licence .................................................................... 16

When general licence is in force ...................................................... 17

Refusal of application ...................................................................... 17

Subdivision B--Conditions of general licences

Conditions imposed on all general licences ..................................... 17

Additional conditions may be imposed by Minister ........................ 18

Breaching condition of general licence ............................................ 18

Subdivision C--Renewal, cancellation and surrender of general

licences

Renewal of general licence .............................................................. 18

Cancellation of general licence ........................................................ 19

Surrender of general licence ............................................................ 20

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 ii

Subdivision D--Miscellaneous

27 Reporting

requirements

for general licences ................................... 20

Division 2--Temporary licences

Subdivision A--Application for, and grant of, temporary licences

28 Application

for

temporary licence ................................................... 22

29 Application

may

be withdrawn ........................................................ 22

30 Publication

and

notification of application ...................................... 23

Holder of general licence may give notice in response .................... 23

Process if notice in response received.............................................. 24

Comments by third parties ............................................................... 25

Minister to decide applications ........................................................ 25

Grant of temporary licence .............................................................. 26

Application taken to be granted in certain circumstances ................ 27

Issue of temporary licence ............................................................... 27

When temporary licence is in force ................................................. 28

Refusal of application ...................................................................... 28

Subdivision B--Conditions of temporary licences

Conditions imposed on all temporary licences ................................ 29

Additional conditions may be imposed by Minister ........................ 29

Breaching condition of temporary licence ....................................... 29

Subdivision C--Variation of matters authorised by temporary

licences

Application to vary matters authorised by temporary licence .......... 30

44 Application

may

be withdrawn ........................................................ 30

Consultation on proposed variation ................................................. 30

Minister to decide application .......................................................... 31

Grant of variation to temporary licence ........................................... 32

Issue of varied temporary licence .................................................... 32

Refusal of application ...................................................................... 32

Subdivision D--Variation of temporary licences to include new

matters

50 Application

Subdivision .............................................................. 32

51 Application

vary

temporary licence ............................................. 32

52 Application

may

be withdrawn ........................................................ 33

Process for deciding application ...................................................... 33

Time for deciding application .......................................................... 33

Grant of variation to temporary licence ........................................... 34

Application taken to be granted in certain circumstances ................ 34

Issue of varied temporary licence .................................................... 34

Refusal of application ...................................................................... 35

iii Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

Subdivision E--Cancellation and surrender of temporary licences

Cancellation of temporary licence ................................................... 35

Surrender of temporary licence ........................................................ 36

Subdivision F--Miscellaneous

Voyage notification requirements for temporary licences ............... 37

Reporting requirements for temporary licences ............................... 37

Inappropriate use of temporary licence ............................................ 38

Division 3--Emergency licences

Subdivision A--Application for, and grant of, emergency licences

64 Application

for

emergency licence .................................................. 40

Application may be varied or withdrawn ......................................... 41

66 Deciding

applications

......................................................................

Grant of emergency licence ............................................................. 42

Application taken to be granted in certain circumstances ................ 42

Issue of emergency licence .............................................................. 42

When emergency licence is in force ................................................ 43

Refusal of application ...................................................................... 43

Subdivision B--Conditions of emergency licences

Conditions imposed on all emergency licences ............................... 43

Additional conditions may be imposed by Minister ........................ 44

Breaching condition of emergency licence ...................................... 44

75 Reporting

requirements

for emergency licences .............................. 44

Division 4--Miscellaneous

Requests for further information--general and emergency

licence applications .......................................................................... 46

Requests for further information--temporary licence

applications ...................................................................................... 46

Basis on which licences granted ...................................................... 47

Part 5--Enforcement

Division 1--Requiring people to give information and produce

documents or things

Subdivision A--Notices to give information or produce documents

or things

Notice to give information or produce document or thing ............... 48

Department may retain documents and things ................................. 49

Subdivision B--Offence and related provisions

81 Failure

comply

with notice etc. .................................................... 49

82 Self-incrimination etc. ..................................................................... 50

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 iv

Division 2--Civil penalty provisions

Engaging in coastal trading without licence .................................... 52

Breaching condition of exemption--vessels .................................... 52

Breaching condition of exemption--persons ................................... 52

Division 3--Civil penalty proceedings

Subdivision A--Obtaining a civil penalty order

Civil penalty orders .......................................................................... 54

87 Civil

enforcement of penalty ........................................................... 54

Conduct contravening more than one civil penalty provision .......... 55

89 Multiple

contraventions

...................................................................

Proceedings may be heard together ................................................. 55

91 Civil

evidence

and

procedure rules to apply .................................... 55

Contravening a civil penalty provision is not an offence ................. 56

Subdivision B--Miscellaneous

Ancillary contravention of civil penalty provisions ......................... 56

Continuing contraventions of civil penalty provisions .................... 56

Mistake of fact ................................................................................. 57

State of mind .................................................................................... 57

Civil penalty provisions contravened by employees, agents

or officers ......................................................................................... 58

Civil penalty provisions contravened by executive officers ............ 58

Establishing whether an executive officer took reasonable

steps to prevent the contravention of a civil penalty provision ........ 58

Division 4--Infringement notices

100

Enforceable provisions .................................................................... 60

101

When an infringement notice may be given .................................... 60

102

Matters to be included in an infringement notice ............................. 60

103

Extension of time to pay amount ..................................................... 61

104

Withdrawal of an infringement notice ............................................. 62

105

Effect of payment of amount ........................................................... 63

106

Effect of this Division ...................................................................... 64

Part 6--Miscellaneous

Division 1--Review of decisions

107

Review by the Administrative Appeals Tribunal ............................. 65

Division 2--Appointment of authorised persons etc.

108

Appointment of authorised persons ................................................. 67

109 Identity

cards

...................................................................................

Part 1 Preliminary

Section 3

2 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

3 Object of Act

(1) The object of this Act is to provide a regulatory framework for

coastal trading in Australia that:

(a) promotes a viable shipping industry that contributes to the

broader Australian economy; and

(b) facilitates the long term growth of the Australian shipping

industry; and

as part of the national transport system; and

(d) maximises the use of vessels registered in the Australian

General Shipping Register in coastal trading.

(2) This Act aims to achieve its object by the following means:

(a) ensuring that a vessel that is used to engage in coastal trading

under a general licence has unrestricted access to Australian

waters;

(b) ensuring that a vessel that is used to engage in coastal trading

has access to Australian waters under a temporary licence

that is limited in time and to voyages authorised by the

licence;

under an emergency licence has the access to Australian

waters required to deal with the emergency to which the

licence relates.

4 Constitutional basis for Act

(1) Without limiting its effect apart from this section, this Act applies

to activities of, or matters that relate to, the following:

(a) a vessel engaged in trade and commerce:

(i) among the States; or

(ii) between a State and a Territory; or

(iii) between 2 Territories;

(b) a vessel that is external to Australia;

constitutional corporation;

Preliminary Part 1

Section 5

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 3

(d) a vessel, so far as the application of this Act to activities of,

or in relation to, the vessel is reasonably appropriate and

adapted to giving effect to Australia's obligations under an

international agreement;

(e) a vessel of which the owner, or any of the owners, is the

Commonwealth or a Commonwealth agency;

(f) navigation or shipping, to the extent that the navigation or

shipping relates to trade and commerce:

(i) among the States; or

(ii) between a State and a Territory; or

(iii) between 2 Territories;

(g) things that are incidental to activities or matters referred to in

any of the above paragraphs.

(2) For the purposes of subsection (1), an activity of, or a matter that

relates to, a vessel includes, but is not limited to, an activity done

by a person, or in relation to a person, in the capacity of owner of

the vessel or seafarer working on the vessel.

(3) For the purposes of subsection (1), external to Australia means:

(a) beyond the baseline from which the breadth of the territorial

sea is measured under section 7 of the Seas and Submerged

Lands Act 1973; or

(b) any waters on the landward side of the territorial sea that are

not within the limits of a State or internal Territory.

Note:

For the baseline see Australia's territorial sea baseline (AGPS) 1988:

generally the baseline is the lowest astronomical tide along the coast

but it also includes lines enclosing bays and indentations that are not

bays and straight baselines that depart from the coast.

5 Simplified outline

The following is a simplified outline of this Act:

�

This Act regulates coastal trading by providing for licences to

be granted that authorise vessels to carry passengers or cargo

between ports in Australia. Using a vessel to engage in coastal

trading without a licence may lead to a pecuniary penalty

Part 1 Preliminary

Section 5

4 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

being imposed for the contravention of a civil penalty

provision.

�

Part 2 contains definitions for the Act, including a definition

of coastal trading and voyage.

�

Part 3 contains provisions relating to the application of the Act

to various kinds of vessels, including provisions allowing the

Minister to grant exemptions from the Act for vessels and

people.

�

Part 4 sets out the 3 kinds of licences (general licences,

temporary licences and emergency licences) that may be

granted and the application process for each. It also deals with

matters such as conditions of licences and the cancellation of

licences.

�

Part 5 contains provisions relating to the enforcement of the

Act.

�

Part 6 deals with miscellaneous matters such as the review of

certain decisions by the Administrative Appeals Tribunal and

the delegation of the Minister's and Secretary's functions and

powers under the Act.

Interpretation Part 2

Section 6

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 5

Part 2--Interpretation

6 Definitions

(1) In this Act:

acceptable tolerance limits means:

(a) in relation to cargo authorised to be carried on a vessel under

a temporary licence--not more than 20% more, or less, of the

volume of cargo authorised to be carried under the licence; or

(b) in relation to passengers authorised to be carried on a vessel

under a temporary licence--not more than 20% more, or less,

of the number of passengers authorised to be carried under

the licence; or

loading date.

Australia, when used in a geographical sense, includes the external

Territories.

Australian General Shipping Register has the same meaning as in

the Shipping Registration Act 1981.

Australian International Shipping Register has the same meaning

as in the Shipping Registration Act 1981.

Australian nationality: a vessel has Australian nationality if it is a

ship that has Australian nationality within the meaning of the

Shipping Registration Act 1981.

authorised person means a person appointed as an authorised

person under section 108.

business day means a day that is not:

(a) a Saturday; or

(b) a Sunday; or

(d) 27, 28, 29, 30 or 31 December.

cargo means any personal property:

Part 2 Interpretation

Section 6

6 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

(a) that is carried on board a vessel; and

(b) for which a bill of lading, or a receipt of a similar kind, is

issued.

civil penalty order has the meaning given by section 86.

civil penalty provision means a subsection, or a section that is not

divided into subsections, that has set out at its foot the words "civil

penalty" and one or more amounts in penalty units.

coastal trading: see section 7.

Commonwealth agency includes:

(a) an Agency (within the meaning of the Financial

Management and Accountability Act 1997); and

(b) a body corporate established for a public purpose under a law

of the Commonwealth.

Commonwealth vessel means a vessel that is owned by, or in the

possession or control of, the Commonwealth or a Commonwealth

agency.

emergency licence means a licence granted under Division 3 of

Part 4.

evidential burden, in relation to a matter, means the burden of

adducing or pointing to evidence that suggests a reasonable

possibility that the matter exists or does not exist.

executive officer of a body corporate means a person, by whatever

name called and whether or not a director of the body, who is

concerned in, or takes part in, the management of the body.

Federal Court means the Federal Court of Australia.

fish includes turtles, dugong, crustacea, molluscs and any other

living resources of the sea or of the seabed.

fishing fleet support vessel means a vessel (other than a

Commonwealth vessel or an inland waterways vessel) that is used

wholly or primarily in activities in support of the fishing operations

of a fishing vessel.

Interpretation Part 2

Section 6

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 7

Note: For

in support of the fishing operations, see subsection (2).

fishing operations means:

(a) the taking, catching or capturing of fish for trading or

manufacturing purposes; and

(b) the processing or carrying of the fish that are taken, caught or

captured.

fishing vessel means a vessel (other than a Commonwealth vessel

or an inland waterways vessel) that is used wholly or primarily for

fishing operations.

general licence means a licence granted or renewed under

Division 1 of Part 4.

harbour means a natural or artificial harbour, and includes an

estuary, navigable river, creek, channel, haven, roadstead, dock,

pier, jetty or other place in or at which vessels can obtain shelter or

load and unload goods or embark and disembark passengers.

inland waterways vessel means a vessel (other than a

Commonwealth vessel) that is used wholly in waters other than

waters of the sea.

internal waters of Australia has the same meaning as in the Seas

and Submerged Lands Act 1973.

international agreement means a treaty or agreement whose

parties are:

(a) Australia and a foreign country; or

(b) Australia and 2 or more foreign countries.

licence means a general licence, a temporary licence or an

emergency licence.

loading date means the date passengers or cargo are expected to be

loaded on board a vessel.

master of a vessel means a person who has command or charge of

the vessel, but does not include a pilot of the vessel.

notice in response, in relation to an application, has the meaning

given by section 31.

Part 2 Interpretation

Section 6

8 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

offshore industry vessel means a vessel that is used wholly or

primarily in, or in any operations or activities associated with or

incidental to, exploring or exploiting the mineral and other

non-living resources of the seabed and its subsoil.

owner of a vessel includes:

(a) a person who has a legal or beneficial interest in the vessel,

other than as a mortgagor; and

(b) a person with overall general control and management of the

vessel.

For this purpose, a person is not taken to have overall general

control and management of a vessel merely because he or she is the

master or pilot of the vessel.

passenger means a person who is carried on board a vessel with

the knowledge or consent of the owner, charterer or master of the

vessel, if consideration (whether monetary or otherwise) is

required to be, or has been, paid for the person to be so carried.

permanent visa has the same meaning as in the Migration Act

1958.

port includes a harbour.

recreational vessel means a vessel (other than a Commonwealth

vessel or an inland waterways vessel) that is used wholly for

recreational or sporting activities (whether or not let, or intended to

be let, for hire or reward or consideration of any kind).

salvage operation means any act or activity undertaken to assist a

vessel or any other property not permanently and intentionally

attached to the shoreline (including freight at risk) in danger in any

waters.

salvage vessel means a vessel that is used wholly or primarily for

salvage operations.

sea includes any waters within the ebb and flow of the tide.

seafarer means any person who is employed or engaged or works

in any capacity on board a vessel on the business of the vessel,

other than the following:

Interpretation Part 2

Section 7

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 9

(a)

pilot;

(b) an owner of the vessel or a person representing the owner;

(d) special personnel (within the meaning of section 283 of the

Navigation Act 1912);

(e) a person temporarily employed on the vessel in port;

(f) a person prescribed by the regulations.

temporary licence means a licence granted under Division 2 of

Part 4 and includes such a licence as varied under that Division.

temporary visa has the same meaning as in the Migration Act

1958.

vessel means any kind of vessel used in navigation by water,

however propelled or moved.

voyage means the movement of a vessel from one port to another

port in a way that would satisfy paragraph 7(1)(a), (b) or (c).

(2) For the purposes of this Act, activities in support of the fishing

operations of a fishing vessel include:

(a) the storage and transport of fish taken, caught or captured by

the fishing vessel; and

(b) the provision of food, fuel and other supplies to the fishing

vessel while it is engaged in fishing operations; and

engaged in fishing operations.

7 Meaning of coastal trading

(1) For the purposes of this Act, and subject to subsection (2), a vessel

is used to engage in coastal trading if, for or in connection with a

commercial activity:

(a)

the

vessel:

(i) takes on board passengers or cargo at a port in a State or

Territory; and

(ii) carries the passengers or cargo to a port in another State

or Territory where some or all of the passengers

disembark or some or all of the cargo is unloaded; or

Part 2 Interpretation

Section 7

10 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

(b)

the

vessel:

(i) takes on board passengers or cargo at a port in a State or

Territory; and

(ii) carries the passengers or cargo to a port in the same

State or Territory where some passengers disembark or

some cargo is unloaded; and

(iii) carries passengers or cargo to a port in another State or

Territory where some or all of the passengers disembark

or some or all of the cargo is unloaded; or

(c)

the

vessel:

(i) takes on board passengers or cargo at a port in a State or

Territory; and

(ii) carries the passengers or cargo to a port in the same

State or Territory where some or all of the passengers

disembark or some or all of the cargo is unloaded; and

(iii) is one in relation to which a declaration under

subsection 12(2) is in force.

(2) Subsection (1) does not apply in respect of the following:

(a)

passenger

who:

(i) holds a through ticket to or from a port outside

Australia; and

(ii) disembarks at a port in Australia for transit purposes

only;

(b)

cargo

that:

(i) is consigned on a through bill of lading to or from a port

outside Australia; and

(ii) is unloaded at a port in Australia for transshipment only;

for the purposes of this paragraph.

Provisions relating to the application of this Act Part 3

Section 8

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 11

Part 3--Provisions relating to the application of

this Act

8 Extension to Territories

This Act extends to every external Territory.

9 Act to bind the Crown

This Act binds the Crown in each of its capacities.

10 Act does not apply to certain vessels

This Act does not apply to or in relation to the following kinds of

vessels:

(a) a vessel belonging to, or operated by:

(i) the Australian Defence Force; or

(ii) the naval, military or air forces of a country other than

Australia;

(b) a Commonwealth vessel that is used wholly or primarily for

non-commercial activities;

(d) an inland waterways vessel;

(e) an offshore industry vessel;

(f) a recreational vessel;

(g) a salvage vessel;

(h)

tugboat.

11 Minister may exempt certain vessels or persons

(1) The Minister may, by legislative instrument, direct that this Act

does not apply to:

(a) a vessel or class of vessels; or

(b) a person or class of persons.

(2) An exemption under subsection (1) may be confined to one or both

of the following:

Part 3 Provisions relating to the application of this Act

Section 12

12 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

(a) one or more specified periods;

(b) one or more specified voyages.

(3) An exemption under subsection (1) is subject to such conditions (if

any) as are specified in the direction.

Note:

Breach of a condition of an exemption is a civil penalty provision, see

sections 84 and 85.

(4) The Minister must not make a direction if the proposed exemption

would be inconsistent with an obligation of Australia under an

international agreement.

(5) The Minister must not make a direction unless satisfied that the

proposed exemption will not jeopardise the safety of a vessel or

persons on board a vessel.

12 Application to vessels on intrastate voyages

(1) The owner of a vessel may apply to the Minister for a declaration

under subsection (2) in relation to the vessel.

(2) The Minister may, in writing, declare that this Act applies in

relation to the vessel even when, for or in connection with a

commercial activity, the vessel:

(a) takes on board passengers or cargo at a port in a State or

Territory; and

(b) carries the passengers or cargo to a port in the same State or

Territory where some or all of the passengers disembark or

some or all of the cargo is unloaded.

Expiry or revocation of declaration

(3) A declaration made under subsection (2) ceases to have effect at

the end of the period, if any, specified in the declaration, unless it

is revoked before that time.

(4) The Minister must revoke a declaration made under subsection (2)

if requested to do so by the owner of the vessel to which the

declaration relates.

Part 4 Licences

Division 1 General licences

Section 13

14 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

Part 4--Licences

Division 1--General licences

Subdivision A--Application for, and grant of, general licences

13 Application for general licence

(1) A person may apply to the Minister for a general licence, including

renewal of a general licence, authorising a vessel to be used to

engage in coastal trading if:

(a) the vessel is registered in the Australian General Shipping

(b) the person is:

(i) the owner, charterer, master or agent of the vessel; or

(ii) a person of a kind prescribed by the regulations.

(2) The application must be in writing and be accompanied by the

following:

(a) evidence that the vessel is registered in the Australian

General Shipping Register;

(b) a statement that each seafarer working on the vessel, when

the vessel is used to engage in coastal trading:

(i) is or will be an Australian citizen; or

(ii) is or will hold a permanent visa; or

(iii) is or will hold a temporary visa that does not prohibit

the seafarer from performing the work he or she

performs on the vessel;

(d) the application fee prescribed by the regulations.

Note:

The Minister may ask the applicant to provide further information, see

section 76.

(3) The application must relate to one vessel only.

Licences Part 4

General licences Division 1

Section 14

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 15

14 Application may be varied or withdrawn

(1) At any time before the Minister decides an application, the

applicant may notify the Minister, in writing, that the applicant

wishes to:

(a) vary the application; or

(b) withdraw the application.

Note:

Varying an application affects the period within which the Minister

must decide the application, see section 15.

(2) If the applicant withdraws the application, the application fee is not

refundable.

15 Deciding applications

(1) The Minister decides an application by:

(a) granting the application; or

(b) refusing the application.

(2) In deciding an application, the Minister may have regard to the

following:

(a) whether the applicant has previously held a licence that was

cancelled;

(b) whether the applicant has been issued with an infringement

notice under this Act;

(d) any other matters the Minister thinks relevant.

(3) The Minister must decide an application:

(a) within 10 business days after the day the application is made;

(b) if the applicant varies the application under section 14--

within 10 business days after the day the Minister receives

written notice of the variation.

Note:

The period within which an application is to be decided may be

affected by section 76.

Part 4 Licences

Division 1 General licences

Section 16

16 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

16 Grant of general licence

(1) If the Minister grants an application, the Minister must also

determine the period for which the general licence is granted or

renewed. The period must not be more than 5 years.

Note:

For conditions of general licences, see sections 21 and 22.

(2) If the Minister grants an application for a general licence, including

renewal of a general licence, the Minister must cause the following

information to be published on the Department's website:

(a) the general licence number;

(b) the holder of the licence;

(d) the vessel to which the licence relates;

(e) the period of the licence;

(f) any other information prescribed by the regulations.

17 Application taken to be granted in certain circumstances

If the Minister has not decided an application by the end of the

period within which a decision is required under section 15, then,

at the end of the last day of that period:

(a) the Minister is taken to have granted the application; and

(b) the Minister is taken to have determined that the period for

which the general licence is granted or renewed, as the case

may be, is 5 years.

18 Issue of general licence

(1) If the Minister decides to grant an application, or is taken to have

granted an application, he or she must, as soon as practicable, give

the applicant a general licence.

(2) The licence must specify the following:

(a) the general licence number;

(b) the holder of the licence;

(d) the vessel to which the licence relates;

Licences Part 4

General licences Division 1

Section 19

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 17

(e) that the licence is subject to conditions under section 21;

(f) any additional conditions imposed on the licence under

section 22;

(g) the day the licence commences and the period of the licence;

(h) any other matters prescribed by the regulations.

19 When general licence is in force

A general licence:

(a) commences on the day specified in the licence; and

(b) expires at the end of the period specified in the licence,

unless the licence is cancelled or surrendered before that

time.

Note:

A general licence is taken to continue in force beyond its expiry date

in certain circumstances, see subsection 24(2).

20 Refusal of application

If the Minister decides to refuse an application, he or she must, as

soon as practicable, notify the applicant, in writing, of:

(a) the decision; and

(b) the reasons for the decision.

Subdivision B--Conditions of general licences

21 Conditions imposed on all general licences

A general licence is subject to the following conditions:

(a) the vessel to which the licence relates must continue to be

registered in the Australian General Shipping Register;

(b) when the vessel is used to engage in coastal trading, each

seafarer working on the vessel must:

(i) be an Australian citizen; or

(ii) hold a permanent visa; or

(iii) hold a temporary visa that does not prohibit the seafarer

from performing the work he or she performs on the

vessel;

Part 4 Licences

Division 1 General licences

Section 22

18 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

of the licence must be displayed on the vessel in a

conspicuous place accessible to all persons on board;

(d) the holder of the licence must comply with the reporting

requirements under section 27;

(e) the holder of the licence must comply with any other

condition prescribed by the regulations.

22 Additional conditions may be imposed by Minister

(1) The Minister may, at any time:

(a) impose an additional condition on a general licence; or

(b) vary or remove such a condition;

by notifying, in writing, the holder of the licence.

(2) A condition imposed under subsection (1), including such a

condition as varied, must not be inconsistent with a condition

under section 21.

23 Breaching condition of general licence

A person contravenes this section if:

(a) the person is the holder of a general licence; and

(b) the person does an act or omits to do an act; and

licence under section 21 or 22.

Civil penalty:

(a) for an individual--50 penalty units; and

(b) for a body corporate--250 penalty units.

Subdivision C--Renewal, cancellation and surrender of general

licences

24 Renewal of general licence

(1) The Minister may renew a general licence if the holder of the

licence makes an application for renewal before the licence

expires.

Licences Part 4

General licences Division 1

Section 25

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 19

(2) If an application for renewal of a general licence is made, the

licence is taken to continue to be in force until the application is

decided.

(3) A general licence may be renewed more than once.

25 Cancellation of general licence

Minister to give show cause notice

(1) If the Minister believes on reasonable grounds that a condition of a

general licence has been contravened, the Minister may give a

written notice (a show cause notice) to the holder of the licence.

(2) The show cause notice must:

(a) state the grounds on which the notice is given; and

(b) invite the holder of the licence to give the Minister, within 10

business days after the day the notice is given, a written

statement showing cause why the licence should not be

cancelled.

Minister may decide to cancel licence

(3)

the

Minister:

(a) has given a show cause notice under subsection (1) to the

holder of a general licence; and

(b) after considering any written statement given in accordance

with the show cause notice, is satisfied that a condition of the

licence has been contravened;

the Minister may cancel the licence.

Note:

Section 107 provides that an application may be made to the

Administrative Appeals Tribunal for review of a decision by the

Minister to cancel a general licence.

(4) The Minister must give written notice of the cancellation to the

holder of the licence. The notice must set out:

(a) the day the cancellation takes effect; and

(b) the reasons for the cancellation; and

Part 4 Licences

Division 1 General licences

Section 26

20 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

Holder of licence to return cancelled licence

(5) The holder of a general licence contravenes this subsection if:

(a) the licence is cancelled under this section; and

(b) the holder of the licence does not return the licence to the

Minister within 10 business days after the day the

cancellation takes effect.

Civil penalty:

(a) for an individual--50 penalty units; and

(b) for a body corporate--250 penalty units.

Show cause notice not a legislative instrument

(6) A show cause notice given under subsection (1) is not a legislative

instrument.

26 Surrender of general licence

(1) The holder of a general licence may, at any time, surrender the

licence by:

(a) returning the licence to the Minister; and

(b) giving the Minister written notice that it is surrendered.

(2) The surrender of the licence takes effect on the day the notice is

received by the Minister or, if a later day is specified in the notice,

on that later day.

Subdivision D--Miscellaneous

27 Reporting requirements for general licences

(1) A person who holds a general licence at any time during a financial

year must give to the Department a report containing the following

information relating to the vessel used to engage in coastal trading

under the licence during the year:

(a) if passengers were carried during the year:

(i) the number of passengers carried; and

(ii) the ports at which the passengers were taken on board;

and

Licences Part 4

General licences Division 1

Section 27

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 21

(iii) the ports at which the passengers disembarked;

(b) if cargo was carried during the year:

(i) the kinds and volume of cargo carried; and

(ii) the ports at which the cargo was taken on board; and

(iii) the ports at which the cargo was unloaded;

(2) The report must be given to the Department no later than 30

business days after the end of the financial year to which the report

relates.

(3) A person contravenes this subsection if:

(a) the person holds a general licence at any time during a

financial year; and

(b) the person fails to give the Department a report containing

the information required by subsection (1) within the time

required by subsection (2).

Civil penalty:

(a) for an individual--50 penalty units; and

(b) for a body corporate--250 penalty units.

(4) After the end of each financial year, the Minister must cause a

summary of the information contained in the reports given under

subsection (1) in respect of the year to be published on the

Department's website.

Part 4 Licences

Division 2 Temporary licences

Section 28

22 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

Division 2--Temporary licences

Subdivision A--Application for, and grant of, temporary

licences

28 Application for temporary licence

(1) A person may apply to the Minister for a temporary licence to

enable a vessel to be used to engage in coastal trading over a

12-month period if the person is:

(a) the owner, charterer, master or agent of a vessel; or

(b)

shipper.

(2) The application must be in writing and specify the following:

(a) the number of voyages, which must be 5 or more, to be

authorised by the licence;

(b) the expected loading dates;

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

(e) the type and size, or type and capacity, of the vessel to be

used to carry the passengers or cargo (if known);

(f) the ports at which the passengers or cargo are expected to be

taken on board;

(g) the ports at which the passengers are expected to disembark

or the cargo is expected to be unloaded;

(h) such other information as is prescribed by the regulations.

Note:

The Minister may ask the applicant to provide further information, see

section 77.

(3) The application must be accompanied by the application fee

prescribed by the regulations.

29 Application may be withdrawn

(1) At any time before the Minister decides an application, the

applicant may notify the Minister, in writing, that the applicant

wishes to withdraw the application.

Licences Part 4

Temporary licences Division 2

Section 30

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 23

(2) If the applicant withdraws the application, the application fee is not

refundable.

30 Publication and notification of application

Within 2 business days after the day the Minister receives an

application under section 28, the Minister must:

(a) cause to be published on the Department's website a copy of

the application, but must delete from the copy information

that the Minister is satisfied:

(i) is commercial in confidence; or

(ii) consists of personal details of an individual; and

(b) cause the following persons to be notified of the application:

(i) every holder of a general licence;

(ii) a body or organisation that the Minister considers would

be directly affected, or whose members would be

directly affected, if the application were granted.

31 Holder of general licence may give notice in response

The holder of a general licence may, within 2 business days after

the day an application is published under section 30, give the

Minister a written notice (a notice in response):

(a)

stating

that:

(i) all of the passengers specified in the application could

be carried under the holder's general licence; or

(ii) all of a particular kind of cargo specified in the

application could be carried under the holder's general

licence; or

(iii) all of the passengers and all of a particular kind of cargo

specified in the application could be carried under the

holder's general licence; or

(iv) all of the passengers and all of the cargo specified in the

application could be carried under the holder's general

licence; or

(v) one or more voyages specified in the application could

be undertaken under the holder's general licence; and

Part 4 Licences

Division 2 Temporary licences

Section 32

24 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

(b) if subparagraph (a)(i), (ii) or (iii) applies--identifying which

passengers or cargo could be so carried; and

voyages could be so undertaken.

Note:

The period within which the Minister must decide an application does

not run if the Minister receives a notice in response in relation to the

application, see subsection 34(5).

32 Process if notice in response received

Minister to give copy of notice in response to applicant

(1) If the Minister receives one or more notices in response in relation

to an application, the Minister must, as soon as practicable after the

end of the 2 business day period mentioned in section 31, give a

copy of each notice in response to the applicant.

Negotiation between applicant and holder of general licence

(2) Within 2 business days after the day the applicant receives a copy

of each notice in response, the applicant must:

(a) undertake negotiations in accordance with subsection (3); and

(b) notify the Minister, in writing, of the outcome of the

negotiations.

(3) For the purposes of paragraph (2)(a), the applicant must negotiate,

with each holder of a general licence who gave a notice in

response, in respect of the following matters:

(a) whether, and to what extent, the vessel authorised by the

holder's general licence is equipped to carry the passengers

or cargo specified in the application;

(b) whether those passengers or cargo can be carried in a timely

manner.

(4) If an application relates to the carriage of cargo, negotiations under

subsection (3) in relation to the application must have regard to the

requirements of the shipper of the cargo.

Licences Part 4

Temporary licences Division 2

Section 33

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 25

33 Comments by third parties

Within 2 business days after the day an application is published

under section 30, written comments on the application may be

given to the Minister by:

(a) a person (other than the holder of a general licence) who

would be directly affected if the application were, or were

not, granted; or

(b) a body or organisation that would be directly affected, or

whose members would be directly affected, if the application

were, or were not, granted.

34 Minister to decide applications

(1) The Minister decides an application by:

(a) granting the application; or

(b) refusing the application.

(2) In deciding an application, the Minister may have regard to the

following (whether or not the Minister receives a notice in

response in relation to the application):

(a) whether the applicant has previously held, or applied for, a

temporary licence;

(b) whether the applicant has previously held a licence that was

cancelled;

notice under this Act;

(d) any written comments received by the Minister in relation to

the application;

(e) any report given to the Department by the applicant under

section 62;

(f) the object of this Act;

(g) any other matters the Minister thinks relevant.

(3) If the Minister receives one or more notices in response in relation

to an application, the Minister must have regard to the following in

deciding the application:

(a) the outcome of negotiations, as notified by the applicant

under paragraph 32(2)(b);

Part 4 Licences

Division 2 Temporary licences

Section 35

26 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

(b) whether, and to what extent, the vessel authorised by the

holder's general licence is equipped to carry the passengers

or cargo specified in the application;

manner;

(d) if the application relates to the carriage of cargo--the

reasonable requirements of a shipper of the kind of cargo

specified in the application.

(4) The Minister must decide an application for a temporary licence

within 15 business days after the day the application is made.

(5) A day is not to be counted as a business day for the purposes of

subsection (4) if it is:

(a) on or after the day the Minister receives a notice in response

in respect of the application; and

(b) on or before:

(i) the day the applicant notifies the Minister under

paragraph 32(2)(b); or

(ii) if the applicant fails to notify the Minister under that

paragraph--the last day of the period within which the

applicant was required to notify the Minister under that

paragraph.

Note:

The period within which an application is to be decided may also be

affected by section 77.

35 Grant of temporary licence

(1) If the Minister grants an application:

(a) the licence is valid for 12 months; and

(b) the Minister must determine the number of voyages

authorised by the licence.

Note:

For conditions of temporary licences, see sections 40 and 41.

(2) If the Minister grants an application for a temporary licence, the

Minister must cause the following information to be published on

the Department's website:

(a) the temporary licence number;

(b) the day the licence commences;

Licences Part 4

Temporary licences Division 2

Section 36

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 27

(d) the loading dates;

(e) the number of passengers (if any) authorised to be carried

under the licence;

(f) the kinds and volume of cargo (if any) authorised to be

carried under the licence;

(g) the ports at which the passengers or cargo will be taken on

board;

(h) the ports at which the passengers will disembark or the cargo

will be unloaded;

(i) any other information prescribed by the regulations.

36 Application taken to be granted in certain circumstances

If the Minister has not decided an application by the end of the

period within which a decision is required under section 34, then,

at the end of the last day of that period, the Minister is taken to

have:

(a) granted the application; and

(b) determined that the matters specified in the application are

authorised by the licence.

37 Issue of temporary licence

(1) If the Minister decides to grant an application, or is taken to have

granted an application, he or she must, as soon as practicable, give

the applicant a temporary licence.

(2) The licence must specify the following:

(a) the temporary licence number;

(b) the holder of the licence;

(d) the number of voyages authorised by the licence;

(e) the loading dates;

(f) that the loading dates are subject to acceptable tolerance

limits;

(g) the number of passengers authorised to be carried under the

licence (if any);

Part 4 Licences

Division 2 Temporary licences

Section 38

28 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

(h) that, if paragraph (g) applies, the number of passengers is

subject to acceptable tolerance limits;

(i) the kinds and volume of cargo authorised to be carried under

the licence (if any);

(j) that, if paragraph (i) applies, the volume of cargo is subject to

acceptable tolerance limits;

(k) the ports at which the passengers or cargo are authorised to

be taken on board;

(l) the ports at which the passengers are authorised to disembark

or the cargo is authorised to be unloaded;

(m) that the licence is subject to conditions under section 40;

(n) any additional conditions imposed on the licence under

section 41;

(o) the day the licence commences;

(p) any other matters prescribed by the regulations.

(3) If the Minister grants an application for which he or she received

one or more notices in response, the Minister must, as soon as

practicable, give written notice of the decision to each holder of a

general licence who gave a notice in response.

38 When temporary licence is in force

A temporary licence:

(a) commences on the day specified in the licence; and

(b) expires at the end of the period specified in the licence,

unless it is cancelled or surrendered before that time.

39 Refusal of application

(1) If the Minister decides to refuse an application, he or she must, as

soon as practicable, notify the applicant, in writing, of:

(a) the decision; and

(b) the reasons for the decision.

(2) The Minister must cause the decision to be published on the

Department's website.

Licences Part 4

Temporary licences Division 2

Section 40

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 29

Subdivision B--Conditions of temporary licences

40 Conditions imposed on all temporary licences

A temporary licence is subject to the following conditions:

(a) any vessel used to undertake a voyage authorised by the

licence must be registered in the Australian International

Shipping Register or under a law of a foreign country;

(b) when a vessel undertakes such a voyage, a copy of the

licence must be displayed on the vessel in a conspicuous

place accessible to all persons on board;

by the licence, as specified in the licence under section 37;

(d) the holder of the licence must comply with the notification

requirements under section 61;

(e) the holder of the licence must comply with the reporting

requirements under section 62;

(f) the holder of the licence must comply with any other

condition prescribed by the regulations.

41 Additional conditions may be imposed by Minister

(1) The Minister may, at any time:

(a) impose an additional condition on a temporary licence; or

(b) vary or remove such a condition;

by notifying, in writing, the holder of the licence.

(2) A condition imposed under subsection (1), including such a

condition as varied, must not be inconsistent with a condition

under section 40.

42 Breaching condition of temporary licence

A person contravenes this section if:

(a) the person is the holder of a temporary licence; and

(b) the person does an act or omits to do an act; and

licence under section 40 or 41.

Part 4 Licences

Division 2 Temporary licences

Section 43

30 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

Civil penalty:

(a) for an individual--50 penalty units; and

(b) for a body corporate--250 penalty units.

Subdivision C--Variation of matters authorised by temporary

licences

43 Application to vary matters authorised by temporary licence

(1) A person may apply to the Minister for a variation of a matter

authorised by a temporary licence.

(2) The application must:

(a) be in writing; and

(b)

specify:

(i) the matter authorised by the temporary licence that the

applicant wishes to vary; and

(ii) how the applicant wishes to vary that matter; and

regulations.

44 Application may be withdrawn

(1) At any time before the Minister decides an application, the

applicant may notify the Minister, in writing, that the applicant

wishes to withdraw the application.

(2) If the applicant withdraws the application, the application fee is not

refundable.

45 Consultation on proposed variation

(1) As soon as the Minister receives an application under section 43,

the Minister must cause the following persons to be notified of the

application:

(a) every holder of a general licence;

(b) a body or organisation that the Minister considers would be

directly affected, or whose members would be directly

affected, if the application were granted.

Licences Part 4

Temporary licences Division 2

Section 46

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 31

(2) If the variation proposed by the application could be

accommodated by a voyage to be undertaken under a holder's

general licence, the holder must notify the Minister, in writing, of

that fact.

(3) Notification must be provided to the Minister within 24 hours of

receiving notification of the application.

46 Minister to decide application

(1) The Minister decides an application by:

(a) granting the application; or

(b) refusing the application.

(2) In deciding an application, the Minister may have regard to the

following:

(a) whether the applicant has previously held, or applied for, a

temporary licence;

(b) whether the applicant has previously applied for a variation

of a temporary licence (whether under this Subdivision or

Subdivision D of this Division);

cancelled;

(d) whether the applicant has been issued with an infringement

notice under this Act;

(e) any report given to the Department by the applicant under

section 62;

(f) the object of this Act;

(g) any other matters the Minister thinks relevant.

(3) If the Minister is notified that the variation proposed by the

application could be accommodated by a voyage to be undertaken

under a holder's general licence, the Minister must have regard to

that fact in deciding the application.

(4) The Minister must decide an application for variation of a

temporary licence within 2 business days after the day the

application is made.

Part 4 Licences

Division 2 Temporary licences

Section 47

32 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

47 Grant of variation to temporary licence

If the Minister grants an application for the variation of a

temporary licence, the Minister must cause the details of the

variation to be published on the Department's website.

48 Issue of varied temporary licence

(1) If the Minister decides to grant an application, he or she must, as

soon as practicable, give the applicant a varied temporary licence.

(2) The licence must specify the matters set out in subsection 37(2).

49 Refusal of application

(1) If the Minister decides to refuse an application, he or she must, as

soon as practicable, notify the applicant, in writing, of:

(a) the decision; and

(b) the reasons for the decision.

(2) The Minister must cause the decision to be published on the

Department's website.

Subdivision D--Variation of temporary licences to include new

matters

50 Application of Subdivision

This Subdivision applies if a holder of a temporary licence

proposes to vary the licence to include a matter not already

authorised by the licence.

51 Application to vary temporary licence

(1) A holder of a temporary licence may apply to the Minister for a

variation of the licence.

(2) The application must be in writing and specify the following:

(a) the number of voyages, which must be 5 or more, to be

authorised by the licence;

Licences Part 4

Temporary licences Division 2

Section 52

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 33

(b) the expected loading dates;

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

(e) the type and size, or type and capacity, of the vessel to be

used to carry the passengers or cargo (if known);

(f) the ports at which the passengers or cargo are expected to be

taken on board;

(g) the ports at which the passengers are expected to disembark

or the cargo is expected to be unloaded;

(h) such other information as is prescribed by the regulations.

(3) The application must be accompanied by the application fee

prescribed by the regulations.

52 Application may be withdrawn

(1) At any time before the Minister decides an application, the

applicant may notify the Minister, in writing, that the applicant

wishes to withdraw the application.

(2) If the applicant withdraws the application, the application fee is not

refundable.

53 Process for deciding application

Sections 30 to 34 apply in relation to an application made under

subsection 51(1), except that, in deciding the application, the

Minister may also have regard to whether the applicant has

previously applied for a variation of a temporary licence (whether

under this Subdivision or Subdivision C of this Division).

54 Time for deciding application

(1) The Minister must decide an application for variation of a

temporary licence within 7 business days after the day the

application is made.

(2) A day is not to be counted as a business day for the purposes of

subsection (1) if it is:

Part 4 Licences

Division 2 Temporary licences

Section 55

34 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

(a) on or after the day the Minister receives a notice in response

in respect of the application; and

(b) on or before:

(i) the day the applicant notifies the Minister under

paragraph 32(2)(b); or

(ii) if the applicant fails to notify the Minister under that

paragraph--the last day of the period within which the

applicant was required to notify the Minister under that

paragraph.

Note:

The period within which an application is to be decided may also be

affected by section 77.

55 Grant of variation to temporary licence

If the Minister grants an application for the variation of a

temporary licence, the Minister must cause the details of the

variation to be published on the Department's website.

56 Application taken to be granted in certain circumstances

If the Minister has not decided an application by the end of the

period within which a decision is required under section 54, then,

at the end of the last day of that period, the Minister is taken to

have varied the licence in accordance with the application.

57 Issue of varied temporary licence

(1) If the Minister decides to grant an application, he or she must, as

soon as practicable, give the applicant a varied temporary licence.

(2) The licence must specify the matters set out in subsection 37(2).

(3) If the Minister grants an application for which he or she received

one or more notices in response, the Minister must, as soon as

practicable, give written notice of the decision to each holder of a

general licence who gave a notice in response.

Licences Part 4

Temporary licences Division 2

Section 58

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 35

58 Refusal of application

(1) If the Minister decides to refuse an application, he or she must, as

soon as practicable, notify the applicant, in writing, of:

(a) the decision; and

(b) the reasons for the decision.

(2) The Minister must cause the decision to be published on the

Department's website.

Subdivision E--Cancellation and surrender of temporary

licences

59 Cancellation of temporary licence

Minister to give show cause notice

(1) If the Minister believes on reasonable grounds that a condition of a

temporary licence has been contravened, the Minister may give a

written notice (a show cause notice) to the holder of the licence.

Note:

The Minister may also give a show cause notice if the Minister

considers that a temporary licence is being used inappropriately, see

section 63.

(2) The show cause notice must:

(a) state the grounds on which the notice is given; and

(b) invite the holder of the licence to give the Minister, within 10

business days after the day the notice is given, a written

statement showing cause why the licence should not be

cancelled.

Minister may decide to cancel licence

(3)

the

Minister:

(a) has given a show cause notice under subsection (1) to the

holder of a temporary licence; and

(b) after considering any written statement given in accordance

with the show cause notice, is satisfied that a condition of the

licence has been contravened;

the Minister may cancel the licence.

Part 4 Licences

Division 2 Temporary licences

Section 60

36 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

Note:

Section 107 provides that an application may be made to the

Administrative Appeals Tribunal for review of a decision by the

Minister to cancel a temporary licence.

(4) The Minister must give written notice of the cancellation to the

holder of the licence. The notice must set out:

(a) the day the cancellation takes effect; and

(b) the reasons for the cancellation; and

Holder of licence to return cancelled licence

(5) The holder of a temporary licence contravenes this subsection if:

(a) the licence is cancelled under this section; and

(b) the holder of the licence does not return the licence to the

Minister within 10 business days after the day the

cancellation takes effect.

Civil penalty:

(a) for an individual--50 penalty units; and

(b) for a body corporate--250 penalty units.

Show cause notice not a legislative instrument

(6) A show cause notice given under subsection (1) is not a legislative

instrument.

60 Surrender of temporary licence

(1) The holder of a temporary licence may, at any time, surrender the

licence by:

(a) returning the licence to the Minister; and

(b) giving the Minister written notice that it is surrendered.

(2) The surrender of the licence takes effect on the day the notice is

received by the Minister or, if a later day is specified in the notice,

on that later day.

Licences Part 4

Temporary licences Division 2

Section 61

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 37

Subdivision F--Miscellaneous

61 Voyage notification requirements for temporary licences

The holder of a temporary licence must, at least 2 business days

before the actual loading date for a voyage authorised by the

licence, notify the Minister, in writing, of the following:

(a) the vessel to be used to undertake the voyage;

(b) evidence that the vessel to be used is registered in the

Australian International Shipping Register or under a law of a

foreign country;

any);

(d) the kinds and volume of cargo to be carried during the

voyage (if any);

(e) the ports at which the passengers or cargo will be taken on

board;

(f) the ports at which the passengers will disembark or the cargo

will be unloaded.

Civil penalty:

(a) for an individual--50 penalty units; and

(b) for a body corporate--250 penalty units.

62 Reporting requirements for temporary licences

(1) A person who is or was the holder of a temporary licence must

give to the Department a report containing the following

information in respect of each voyage authorised by the licence:

(a) the name of the vessel used;

(b) the actual loading date for the voyage;

(i) the number of passengers carried; and

(ii) the dates the passengers were carried; and

(iii) the ports at which the passengers were taken on board;

and

(iv) the ports at which the passengers disembarked;

(d) if cargo was carried during the voyage:

Part 4 Licences

Division 2 Temporary licences

Section 63

38 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

(i) the kinds and volume of cargo carried; and

(ii) the dates the cargo was carried; and

(iii) the ports at which the cargo was taken on board; and

(iv) the ports at which the cargo was unloaded;

(e) such other information as is prescribed by the regulations.

(2) The report must be given to the Department no later than 10

business days after the end of each voyage authorised by the

licence.

(3) A person contravenes this subsection if:

(a) the person is or was the holder of a temporary licence; and

(b) the person fails to give the Department a report containing

the information required by subsection (1) within the time

required by subsection (2).

Civil penalty:

(a) for an individual--50 penalty units; and

(b) for a body corporate--250 penalty units.

(4) The Minister must cause a copy of each report given under

subsection (1) to be published on the Department's website.

63 Inappropriate use of temporary licence

(1) The Minister may give a written notice (a show cause notice) to

the holder of a temporary licence under subsection 59(1) if the

Minister considers that, having regard to:

(a) the number of voyages authorised by the temporary licence;

and

(b) the loading dates authorised by the temporary licence; and

and

(d) the ports at which passengers disembark or cargo is

unloaded; and

(e) whether the licence has been varied under Subdivision C or

D of this Division, and if so, how many times; and

(f) the provisions of Division 1 of this Part for the grant of a

general licence;

Licences Part 4

Temporary licences Division 2

Section 63

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 39

the temporary licence is being used in a way that circumvents the

purpose of the general licence provisions or the object of this Act.

(2) If subsection (1) applies, paragraph 59(3)(b) applies as if it

required the Minister, after considering any written statement given

in accordance with the show cause notice, to be satisfied that the

temporary licence is being used in a way that circumvents the

purpose of the general licence provisions or the object of this Act.

Note:

The Minister may cancel a temporary licence under subsection 59(3).

Part 4 Licences

Division 3 Emergency licences

Section 64

40 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

Division 3--Emergency licences

Subdivision A--Application for, and grant of, emergency

licences

64 Application for emergency licence

(1) A person may apply to the Minister for an emergency licence for

one or more vessels to be used to engage in coastal trading if:

(a) the person is the owner, charterer, master or agent of the

vessel or those vessels; or

(b)

shipper.

(2) The application must:

(a) be in writing; and

(b)

specify:

(i) details of the emergency, being an emergency of a kind

prescribed by the regulations; and

(ii) the number of voyages for which the applicant is

seeking the licence (if known); and

(iii) the number of passengers expected to be carried (if

any); and

(iv) the kinds and volume of cargo expected to be carried (if

any) and the shipper of the cargo; and

(v) the ports at which the passengers or cargo are expected

be taken on board (if known); and

(vi) the ports at which the passengers are expected to

disembark or the cargo is expected to be unloaded (if

known); and

a vessel authorised to be used to engage in coastal trading

under a general licence.

(3) The application must be accompanied by:

(a) if the vessel, or each vessel, to which the licence will relate is

known at the time the application is made--evidence that the

vessel, or each vessel, is registered in the Australian General

Licences Part 4

Emergency licences Division 3

Section 65

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 41

Shipping Register, the Australian International Shipping

(b) such other information as is prescribed by the regulations;

and

Note:

The Minister may ask the applicant to provide further information, see

section 76.

65 Application may be varied or withdrawn

(1) At any time before the Minister decides an application, the

applicant may notify the Minister, in writing, that the applicant

wishes to:

(a) vary the application; or

(b) withdraw the application.

Note:

Varying an application affects the period within which the Minister

must decide the application, see section 66.

(2) If the applicant withdraws the application, the application fee is not

refundable.

66 Deciding applications

(1) The Minister decides an application by:

(a) granting the application; or

(b) refusing the application.

(2) In deciding an application, the Minister may have regard to the

following:

(a) whether the applicant has previously held a licence that was

cancelled;

(b) whether the applicant has been issued with an infringement

notice under this Act;

(d) any other matters the Minister thinks relevant.

(3) The Minister must not grant an application unless he or she is

satisfied that the emergency specified in the application exists.

(4) The Minister must decide an application:

Part 4 Licences

Division 3 Emergency licences

Section 67

42 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

(a) within 3 business days after the application is made; or

(b) if the applicant varies the application under section 65--

within 3 business days after the Minister receives written

notice of the variation.

Note:

The period within which an application is to be decided may be

affected by section 76.

67 Grant of emergency licence

(1) If the Minister grants an application, the Minister must also

determine the period for which the emergency licence is granted,

which must not be more than 30 days.

Note:

For conditions of emergency licences, see sections 72 and 73.

(2) If the Minister grants an application for an emergency licence, the

Minister must cause the following information to be published on

the Department's website:

(a) the holder of the licence;

(b) the holder's business name and business address;

(d) any other information prescribed by the regulations.

68 Application taken to be granted in certain circumstances

If the Minister has not decided an application by the end of the

period within which a decision is required under section 66, then,

at the end of the last day of that period:

(a) the Minister is taken to have granted the application; and

(b) the Minister is taken to have determined that the period for

which the emergency licence is granted is 30 days.

69 Issue of emergency licence

(1) If the Minister decides to grant an application, or is taken to have

granted an application, he or she must, as soon as practicable, give

the applicant an emergency licence.

(2) The licence must specify the following:

(a) the holder of the licence;

Licences Part 4

Emergency licences Division 3

Section 70

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 43

(b) the holder's business name and business address;

licence (if any);

(d) the kinds and volume of cargo authorised to be carried under

the licence (if any);

(e) the ports at which the passengers or cargo are authorised to

be taken on board (if known);

(f) the ports at which the passengers are authorised to disembark

or the cargo is authorised to be unloaded (if known);

(g) that the licence is subject to conditions under section 72;

(h) any additional conditions imposed on the licence under

section 73;

(i) the day the licence commences and the period of the licence;

(j) any other matters prescribed by the regulations.

70 When emergency licence is in force

An emergency licence:

(a) commences on the day specified in the licence; and

(b) expires at the end of the period specified in the licence.

71 Refusal of application

If the Minister decides to refuse an application, he or she must, as

soon as practicable, notify the applicant, in writing, of:

(a) the decision; and

(b) the reasons for the decision.

Subdivision B--Conditions of emergency licences

72 Conditions imposed on all emergency licences

An emergency licence is subject to the following conditions:

(a) any vessel used to undertake a voyage under the licence must

be registered in the Australian General Shipping Register, the

Australian International Shipping Register or under a law of a

foreign country;

Part 4 Licences

Division 3 Emergency licences

Section 73

44 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

(b) when a vessel undertakes a voyage under the licence, a copy

of the licence must be displayed on the vessel in a

conspicuous place accessible to all persons on board;

by the licence, as specified in the licence under section 69;

(d) the holder of the licence must comply with the reporting

requirements under section 75;

(e) the holder of the licence must comply with any other

condition prescribed by the regulations.

73 Additional conditions may be imposed by Minister

(1) The Minister may, at any time:

(a) impose an additional condition on an emergency licence; or

(b) vary or remove such a condition;

by notifying, in writing, the holder of the licence.

(2) A condition imposed under subsection (1), including such a

condition as varied, must not be inconsistent with a condition

under section 72.

74 Breaching condition of emergency licence

A person contravenes this section if:

(a) the person is the holder of an emergency licence; and

(b) the person does an act or omits to do an act; and

licence under section 72 or 73.

Civil penalty:

(a) for an individual--50 penalty units; and

(b) for a body corporate--250 penalty units.

75 Reporting requirements for emergency licences

(1) A person who is or was the holder of an emergency licence must

give to the Department a report containing the following

information in respect of each voyage undertaken under the

licence:

Licences Part 4

Emergency licences Division 3

Section 75

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 45

(a) the name of the vessel used;

(b) if passengers were carried during the voyage:

(i) the number of passengers carried; and

(ii) the dates the passengers were carried; and

(iii) the ports at which the passengers were taken on board;

and

(iv) the ports at which the passengers disembarked;

(i) the kinds and volume of cargo carried; and

(ii) the dates the cargo was carried; and

(iii) the ports at which the cargo was taken on board; and

(iv) the ports at which the cargo was unloaded;

(d) such other information as is prescribed by the regulations.

(2) The report must be given to the Department no later than 10

business days after the end of each voyage undertaken under the

licence.

(3) A person contravenes this subsection if:

(a) the person is or was the holder of an emergency licence; and

(b) the person fails to give the Department a report containing

the information required by subsection (1) within the time

required by subsection (2).

Civil penalty:

(a) for an individual--50 penalty units; and

(b) for a body corporate--250 penalty units.

(4) The Minister must cause a copy of each report given under

subsection (1) to be published on the Department's website.

Part 4 Licences

Division 4 Miscellaneous

Section 76

46 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

Division 4--Miscellaneous

76 Requests for further information--general and emergency

licence applications

(1) If the Minister needs further information to decide an application

made under section 13 or 64, the Minister may, by written notice,

ask the applicant to provide the information to the Minister.

(2) The Minister must, as soon as practicable after receiving the

information, notify the applicant, in writing, whether or not the

information provided satisfies the Minister's request.

(3) A day is not to be counted as a business day for the purposes of

section 15 or 66, as applicable, if it is:

(a) on or after the day the Minister asks for the further

information; and

(b) on or before the day the Minister notifies the applicant that

the further information provided satisfies the Minister's

request.

77 Requests for further information--temporary licence

applications

(1) If the Minister needs further information to decide an application

made under section 28 or 51, the Minister may, by written notice,

ask one or more of the following persons (as the Minister considers

appropriate):

(a)

the

applicant;

(b) any holder of a general licence who has given a notice in

response in relation to the application;

to provide the information to the Minister.

(2) A request under subsection (1) in relation to an application must

not be made before:

(a) if one or more notices in response have been given in relation

to the application--either:

(i) the day the applicant notifies the Minister under

paragraph 32(2)(b); or

Licences Part 4

Miscellaneous Division 4

Section 78

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 47

(ii) in a case where the applicant fails to notify the Minister

under that paragraph--the end of the period within

which the applicant was required to notify the Minister

under that paragraph; or

(b) otherwise--the end of the 2 business day period mentioned in

section 31.

(3) The Minister must, as soon as practicable after receiving the

information, notify the person who provided the information, in

writing, whether or not the information provided satisfies the

Minister's request.

(4) A day is not to be counted as a business day for the purposes of

subsection 34(4) or 54(1) if it is:

(a) on or after the day the Minister asks a person for further

information under subsection (1); and

(b) on or before the day the Minister notifies the person that the

further information provided satisfies the Minister's request.

78 Basis on which licences granted

A licence granted under this Act is granted on the basis that:

(a) conditions may be imposed on the licence, varied or removed

under section 22, 41 or 73, respectively; and

(b) the licence may be cancelled under section 25 or 59, as

applicable; and

by or under later legislation; and

(d) no compensation is payable if:

(i) conditions are imposed on the licence, varied or

removed, as mentioned in paragraph (a); or

(ii) the licence is cancelled, revoked, terminated or varied as

mentioned in any of the above paragraphs.

Part 5 Enforcement

Division 1 Requiring people to give information and produce documents or things

Section 79

48 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

Part 5--Enforcement

Division 1--Requiring people to give information and

produce documents or things

Subdivision A--Notices to give information or produce

documents or things

79 Notice to give information or produce document or thing

(1) For the purposes of this Act, an authorised person may, by notice

in writing, require a person to do one or more of the following:

(a) give the information specified in the notice;

(b) produce the documents or things specified in the notice;

answer any questions put by the authorised person;

if the authorised person has reasonable grounds to believe that the

person is capable of giving the information, producing the

documents or things, or answering the questions.

(2) The authorised person may require that information to be provided

under paragraph (1)(a) is to be provided in writing.

(3) The authorised person may require that:

(a) information to be provided under paragraph (1)(a) be verified

on oath; or

(b) answers under paragraph (1)(c) be given on oath;

and for that purpose the authorised person may administer an oath.

(4) The notice must:

(a) be served on the person; and

(b) be signed by the authorised person; and

which the person must comply with the notice; and

(d) if paragraph (1)(c) applies--both:

(i) specify the time and place at which the person must

appear; and

Enforcement Part 5

Requiring people to give information and produce documents or things Division 1

Section 80

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 49

(ii) state that the person may be accompanied by a lawyer;

and

(e) set out the effect of sections 81 and 82.

(5) The period specified under paragraph (4)(c) must be at least 14

days after the notice is served on the person.

(6) The person must comply with the notice within the time specified

in the notice, or within such further time as the authorised person

allows.

Note:

Failure to comply with a notice is an offence, see section 81.

80 Department may retain documents and things

(1) If a document or thing is produced to an authorised person in

accordance with a notice served under section 79:

(a) the authorised person may take possession of, and may make

copies of, the document or thing, or take extracts from the

document; and

(b) the Department may retain possession of the document or

thing for such period as is necessary:

(i) for the purposes of this Act; or

(ii) for the purposes of an investigation to which the

document or thing relates; or

(iii) to enable evidence to be secured for the purposes of a

prosecution or proceedings for a civil penalty order.

(2) While the Department retains the document or thing, it must allow

a person who would otherwise be entitled to inspect the document

or view the thing to do so at the times that the person would

ordinarily be able to do so.

Subdivision B--Offence and related provisions

81 Failure to comply with notice etc.

(1) A person commits an offence if:

(a) the person is served with a notice under section 79; and

(b) the notice requires the person to:

Part 5 Enforcement

Division 1 Requiring people to give information and produce documents or things

Section 82

50 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

(i) give information; or

(ii) produce documents or things;

specified in the notice; and

(i) within the period specified in the notice; or

(ii) if the authorised person has allowed the person further

time under subsection 79(6)--within such further time.

Penalty: 30 penalty units or imprisonment for 6 months, or both.

(2) A person commits an offence if:

(a) the person is served with a notice under section 79; and

(b) the notice requires the person to appear before an authorised

person to answer questions put by the authorised person; and

Penalty: 30 penalty units or imprisonment for 6 months, or both.

(3) A person commits an offence if:

(a) the person is required to take an oath; and

(b) the person refuses or fails to comply with the requirement.

Penalty: 30 penalty units or imprisonment for 6 months, or both.

(4) A person commits an offence if:

(a) the person is served with a notice under section 79; and

(b) the notice requires the person to appear before an authorised

person to answer questions put by the authorised person; and

authorised person.

Penalty: 30 penalty units or imprisonment for 6 months, or both.

82 Self-incrimination etc.

(1) A person is not excused from:

(a) giving information; or

(b) producing a document or thing; or

Enforcement Part 5

Requiring people to give information and produce documents or things Division 1

Section 82

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 51

in relation to a notice under section 79 on the ground that doing so

might tend to incriminate the person or expose the person to a

penalty.

(2) However, in the case of an individual, none of the following:

(a) the information or answer given;

(b) the document or thing produced;

of the document or thing;

(d) any information, document or thing obtained as a direct or

indirect consequence of giving the information or answer, or

producing the document or thing;

is admissible in evidence against the individual in:

(e) criminal proceedings, other than:

(i) proceedings for an offence against section 81; or

(ii) proceedings for an offence against section 137.1 or

137.2 of the Criminal Code (which deal with false or

misleading information or documents) that relates to

this Act; or

(iii) proceedings for an offence against section 149.1 of the

Criminal Code (which deals with obstruction of

Commonwealth public officials) that relates to this Act;

and

(f) civil proceedings for a contravention of a civil penalty

provision.

Part 5 Enforcement

Division 2 Civil penalty provisions

Section 83

52 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

Division 2--Civil penalty provisions

83 Engaging in coastal trading without licence

A person contravenes this section if:

(a) the person is:

(i) the owner, charterer, master or agent of a vessel; or

(ii) a shipper in relation to a vessel; and

(b) the vessel is used to engage in coastal trading; and

in coastal trading; and

(d) neither of the following apply:

(i) the vessel is not subject to an exemption under

section 11;

(ii) the person is not subject to an exemption under

section 11.

Civil penalty:

(a) for an individual--300 penalty units; and

(b) for a body corporate--1,500 penalty units.

84 Breaching condition of exemption--vessels

The owner and the master of a vessel contravene this section if:

(a) the vessel is subject to an exemption under section 11; and

(b) a condition applies to the exemption; and

Civil penalty:

(a) for an individual--300 penalty units; and

(b) for a body corporate--1,500 penalty units.

85 Breaching condition of exemption--persons

A person contravenes this section if:

(a) the person is subject to an exemption under section 11; and

(b) the person does an act or omits to do an act; and

Part 5 Enforcement

Division 3 Civil penalty proceedings

Section 86

54 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

Division 3--Civil penalty proceedings

Subdivision A--Obtaining a civil penalty order

86 Civil penalty orders

Application for order

(1) The Secretary may apply to the Federal Court or the Federal

Magistrates Court for an order that a person, who is alleged to have

contravened a civil penalty provision, pay the Commonwealth a

pecuniary penalty.

(2) The Secretary must make the application within 6 years of the

alleged contravention.

Court may order person to pay pecuniary penalty

(3) If the court is satisfied that the person has contravened the civil

penalty provision, the court may order the person to pay to the

Commonwealth such pecuniary penalty for the contravention as the

court determines appropriate.

Note:

Subsection (5) sets out the maximum penalty that the court may order

the person to pay.

(4) An order under subsection (3) is a civil penalty order.

(5) In determining a pecuniary penalty, the court may take into

account all relevant matters, including:

(a) the nature and extent of the contravention; and

(b) the nature and extent of any loss or damage suffered because

of the contravention; and

(d) whether the person has previously been found by a court to

have engaged in any similar conduct.

87 Civil enforcement of penalty

(1) A pecuniary penalty is a debt payable to the Commonwealth.

Enforcement Part 5

Civil penalty proceedings Division 3

Section 88

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 55

(2) The Commonwealth may enforce a civil penalty order as if it were

an order made in civil proceedings against a person to recover a

debt due by the person. The debt arising from the order is taken to

be a judgement debt.

88 Conduct contravening more than one civil penalty provision

(1) If conduct constitutes a contravention of 2 or more civil penalty

provisions, proceedings may be instituted under this Subdivision

against a person in relation to the contravention of any one or more

of those provisions.

(2) However, the person is not liable to more than one pecuniary

penalty under a law of the Commonwealth in relation to the same

conduct.

89 Multiple contraventions

(1) A court may make a single civil penalty order against a person for

multiple contraventions of a civil penalty provision if proceedings

for the contraventions are founded on the same facts, or if the

contraventions form, or are part of, a series of contraventions of the

same or a similar character.

Note:

For continuing contraventions of civil penalty provisions, see

section 94.

(2) However, the penalty must not exceed the sum of the maximum

penalties that could be ordered if a separate penalty were ordered

for each of the contraventions.

90 Proceedings may be heard together

A court may direct that 2 or more proceedings relating to a

contravention, or proposed contravention, of a civil penalty

provision be heard together.

91 Civil evidence and procedure rules to apply

A court must apply the rules of evidence and procedure for civil

matters when hearing and determining an application relating to a

Part 5 Enforcement

Division 3 Civil penalty proceedings

Section 92

56 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

contravention, or proposed contravention, of a civil penalty

provision.

92 Contravening a civil penalty provision is not an offence

A contravention of a civil penalty provision is not an offence.

Subdivision B--Miscellaneous

93 Ancillary contravention of civil penalty provisions

(1) A person must not:

(a) attempt to contravene a civil penalty provision; or

(b) aid, abet, counsel or procure a contravention of a civil

penalty provision; or

a civil penalty provision; or

(d) be in any way, directly or indirectly, knowingly concerned in,

or party to, a contravention of a civil penalty provision; or

(e) conspire with others to effect a contravention of a civil

penalty provision.

Note:

Section 96 (which provides that a person's state of mind does not need

to be proven in relation to a civil penalty provision) does not apply to

this subsection.

Civil penalty

(2) A person who contravenes subsection (1) in relation to a civil

penalty provision is taken to have contravened the provision.

94 Continuing contraventions of civil penalty provisions

(1) If an act or thing is required under a civil penalty provision to be

done:

(a) within a particular period; or

(b) before a particular time;

then the obligation to do that act or thing continues until the act or

thing is done (even if the period has expired or the time has

passed).

Enforcement Part 5

Civil penalty proceedings Division 3

Section 95

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 57

(2) A person who contravenes a civil penalty provision that requires an

act or thing to be done:

(a) within a particular period; or

(b) before a particular time;

commits a separate contravention of that provision in respect of

each day during which the contravention occurs (including the day

the relevant civil penalty order is made or any later day).

95 Mistake of fact

(1) A person is not liable to have a civil penalty order made against the

person for a contravention of a civil penalty provision if:

(a) at or before the time of the conduct constituting the

contravention, the person:

(i) considered whether or not facts existed; and

(ii) was under a mistaken but reasonable belief about those

facts; and

(b) had those facts existed, the conduct would not have

constituted a contravention of the civil penalty provision.

(2) For the purposes of subsection (1), a person may be regarded as

having considered whether or not facts existed if:

(a) the person had considered, on a previous occasion, whether

those facts existed in the circumstances surrounding that

occasion; and

(b) the person honestly and reasonably believed that the

circumstances surrounding the present occasion were the

same, or substantially the same, as those surrounding the

previous occasion.

(3) A person who wishes to rely on subsection (1) or (2) in

proceedings for a civil penalty order bears an evidential burden in

relation to that matter.

96 State of mind

(1) In proceedings for a civil penalty order against a person for a

contravention of a civil penalty provision (other than subsection

93(1)), it is not necessary to prove:

Part 5 Enforcement

Division 3 Civil penalty proceedings

Section 97

58 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

(a) the person's intention; or

(b) the person's knowledge; or

(d) the person's negligence; or

(e) any other state of mind of the person.

(2) Subsection (1) of this section does not affect the operation of

section 95 (which is about mistake of fact).

97 Civil penalty provisions contravened by employees, agents or

officers

If an element of a civil penalty provision is done by an employee,

agent or officer of a body corporate acting within the actual or

apparent scope of his or her employment, or within his or her

actual or apparent authority, the element must also be attributed to

the body corporate.

98 Civil penalty provisions contravened by executive officers

(1) An executive officer of a body corporate contravenes this

subsection if:

(a) the body corporate contravenes a civil penalty provision; and

(b) the officer knew that the contravention would occur; and

body in relation to the contravention; and

(d) the officer failed to take all reasonable steps to prevent the

contravention.

(2) The civil penalty for a contravention of subsection (1) is the civil

penalty that a Court could impose in respect of an individual for

the civil penalty provision contravened by the body corporate.

99 Establishing whether an executive officer took reasonable steps to

prevent the contravention of a civil penalty provision

(1) For the purposes of section 98, in determining whether an

executive officer of a body corporate failed to take all reasonable

Enforcement Part 5

Civil penalty proceedings Division 3

Section 99

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 59

steps to prevent the contravention of a civil penalty provision, a

court is to have regard to:

(a) what action (if any) the officer took towards ensuring that the

body's employees, agents and contractors have a reasonable

knowledge and understanding of the requirements to comply

with this Act, in so far as those requirements affect the

employees, agents or contractors concerned; and

(b) what action (if any) the officer took when he or she became

aware that the body was contravening this Act.

(2) This section does not, by implication, limit the generality of

section 98.

Part 5 Enforcement

Division 4 Infringement notices

Section 100

60 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

Division 4--Infringement notices

100 Enforceable provisions

A civil penalty provision is enforceable under this Division.

101 When an infringement notice may be given

(1) If an authorised person has reasonable grounds to believe that a

person has contravened a provision enforceable under this

Division, the authorised person may give the person an

infringement notice for the alleged contravention.

(2) The infringement notice must be given within 12 months after the

day the contravention is alleged to have taken place.

(3) A single infringement notice must relate only to a single

contravention of a single provision enforceable under this Division.

102 Matters to be included in an infringement notice

(1) An infringement notice must:

(a) be identified by a unique number; and

(b) state the day on which it is given; and

(d) state the name of the person who gave the notice; and

(e) give brief details of the alleged contravention, including:

(i) the provision that was allegedly contravened; and

(ii) the maximum penalty that a court could impose for the

contravention; and

(iii) the time (if known) and day of, and the place of, the

alleged contravention; and

(f) state the amount that is payable under the notice; and

(g) give an explanation of how payment of the amount is to be

made; and

(h) state that, if the person to whom the notice is given pays the

amount within 28 days after the day the notice is given, then

(unless the notice is withdrawn) proceedings seeking a civil

Enforcement Part 5

Infringement notices Division 4

Section 103

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 61

penalty order will not be brought in relation to the alleged

contravention; and

(i) state that payment of the amount is not an admission of guilt

or liability; and

(j) state that the person may apply to the Secretary to have the

period in which to pay the amount extended; and

(k) state that the person may choose not to pay the amount and, if

the person does so, proceedings seeking a civil penalty order

may be brought in relation to the alleged contravention; and

(l) set out how the notice can be withdrawn; and

(m) state that, if the notice is withdrawn, proceedings seeking a

civil penalty order may be brought in relation to the alleged

contravention; and

(n) state that the person may make written representations to the

Secretary seeking the withdrawal of the notice.

(2) For the purposes of paragraph (1)(f), the amount to be stated in the

notice for the alleged contravention of the provision must be equal

to one-fifth of the maximum penalty that a court could impose on

the person for that contravention.

103 Extension of time to pay amount

(1) A person to whom an infringement notice has been given may

apply to the Secretary for an extension of the period referred to in

paragraph 102(1)(h).

(2) If the application is made before the end of that period, the

Secretary may, in writing, extend that period. The Secretary may

do so before or after the end of that period.

(3) If the Secretary extends that period, a reference in this Division to

the period referred to in paragraph 102(1)(h), is taken to be a

reference to that period so extended.

(4) If the Secretary does not extend that period, a reference in this

Division to the period referred to in paragraph 102(1)(h) is taken to

be a reference to the period that ends on the later of the following

days:

Part 5 Enforcement

Division 4 Infringement notices

Section 104

62 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

(a) the day that is the last day of the period referred to in

paragraph 102(1)(h);

(b) the day that is 7 days after the day the person was given

notice of the Secretary's decision not to extend.

(5) The Secretary may extend the period more than once under

subsection (2).

104 Withdrawal of an infringement notice

Representations seeking withdrawal of notice

(1) A person to whom an infringement notice has been given may

make written representations to the Secretary seeking the

withdrawal of the notice.

Withdrawal of notice

(2) The Secretary may withdraw an infringement notice given to a

person (whether or not the person has made written representations

seeking the withdrawal).

(3) When deciding whether or not to withdraw an infringement notice

(the relevant infringement notice), the Secretary:

(a) must take into account any written representations seeking

the withdrawal that were given by the person to the

Secretary; and

(b) may take into account the following:

(i) whether a court has previously imposed a penalty on the

person for a contravention of a provision enforceable

under this Division if the contravention is constituted by

conduct that is the same, or substantially the same, as

the conduct alleged to constitute the contravention in the

relevant infringement notice;

(ii) the circumstances of the alleged contravention;

(iii) whether the person has paid an amount, stated in an

earlier infringement notice, for a contravention of a

provision enforceable under this Division if the

contravention is constituted by conduct that is the same,

or substantially the same, as the conduct alleged to

Enforcement Part 5

Infringement notices Division 4

Section 105

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 63

constitute the contravention in the relevant infringement

notice;

(iv) any other matter the Secretary considers relevant.

Notice of withdrawal

(4) Notice of the withdrawal of the infringement notice must be given

to the person. The withdrawal notice must state:

(a) the person's name and address; and

(b) the day the infringement notice was given; and

(d) that the infringement notice is withdrawn; and

(e) that proceedings seeking a civil penalty order may be brought

in relation to the alleged contravention.

Refund of amount if infringement notice withdrawn

(5)

If:

(a) the Secretary withdraws the infringement notice; and

(b) the person has already paid the amount stated in the notice;

the Commonwealth must refund to the person an amount equal to

the amount paid.

105 Effect of payment of amount

(1) If the person to whom an infringement notice for an alleged

contravention is given pays the amount stated in the notice before

the end of the period referred to in paragraph 102(1)(h):

(a) any liability of the person for the alleged contravention is

discharged; and

(b) proceedings seeking a civil penalty order may not be brought

against the person in relation to the alleged contravention;

and

for the alleged contravention.

(2) Subsection (1) does not apply if the notice has been withdrawn.

Part 5 Enforcement

Division 4 Infringement notices

Section 106

64 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

106 Effect of this Division

This Division does not:

(a) require an infringement notice to be given to a person for an

alleged contravention of a provision enforceable under this

Division; or

(b) affect the liability of a person for an alleged contravention of

a provision enforceable under this Division if:

(i) the person does not comply with an infringement notice

given to the person for the contravention; or

(ii) an infringement notice is not given to the person for the

contravention; or

(iii) an infringement notice is given to the person for the

contravention and is subsequently withdrawn; or

person for an alleged contravention of a provision

enforceable under this Division; or

(d) limit a court's discretion to determine the amount of a

penalty to be imposed on a person who is found to have

contravened a provision enforceable under this Division.

Miscellaneous Part 6

Review of decisions Division 1

Section 107

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 65

Part 6--Miscellaneous

Division 1--Review of decisions

107 Review by the Administrative Appeals Tribunal

(1) Applications may be made to the Administrative Appeals Tribunal

for review of any of the following decisions:

(a) a decision under section 11 refusing to exempt a particular

vessel or a particular person from this Act;

(b) a decision to grant an exemption under section 11 subject to

conditions;

relation to a vessel;

(d) a decision by the Minister to cancel a general licence under

subsection 25(3);

(e) a decision by the Minister to cancel a temporary licence

under subsection 59(3).

(2) A person who made an application for a temporary licence under

section 28 may apply to the Administrative Appeals Tribunal for

review of a decision by the Minister to refuse the application under

section 39.

(3) A person who applied for a variation of a temporary licence under

section 51 may apply to the Administrative Appeals Tribunal for

review of a decision by the Minister to refuse the application under

section 58.

(4) The holder of a general licence who gave the Minister a notice in

response to an application for a temporary licence may apply to the

Administrative Appeals Tribunal for review of:

(a) a decision by the Minister to grant the application under

section 35; or

(b) a decision by the Minister to have taken to have granted the

application under section 36.

Note:

The decision under review continues to operate during the review

process, see section 41 of the Administrative Appeals Tribunal Act

1975.

Part 6 Miscellaneous

Division 1 Review of decisions

Section 107

66 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

(5) The holder of a general licence who gave the Minister a notice in

response to an application for a variation of a temporary licence

under section 51 may apply to the Administrative Appeals Tribunal

for review of:

(a) a decision by the Minister to grant the application under

section 55; or

(b) a decision by the Minister to have taken to have granted the

application under section 56.

Note:

The decision under review continues to operate during the review

process, see section 41 of the Administrative Appeals Tribunal Act

1975.

(6) An application for review mentioned in subsection (2) or (3) must

be made within 20 business days after the day the person is notified

of the decision.

(7) An application for review mentioned in subsection (4) or (5) must

be made within 20 business days after the day of the holder of the

general licence is notified of the decision.

Note:

Other applications for review must be made within the time prescribed

for the purposes of paragraph 29(1)(d) of the Administrative Appeals

Tribunal Act 1975.

Miscellaneous Part 6

Appointment of authorised persons etc. Division 2

Section 108

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 67

Division 2--Appointment of authorised persons etc.

108 Appointment of authorised persons

(1) The Secretary may, in writing, appoint:

(a) a person engaged under the Public Service Act 1999; or

(b) a member of staff of the Australian Maritime Safety

Authority;

to be an authorised person for the purposes of this Act.

(2) The Secretary must not appoint a person as an authorised person

unless the Secretary is satisfied that the person has suitable

qualifications and experience to properly exercise the powers of an

authorised person.

(3) An authorised person must, in exercising powers as an authorised

person, comply with any directions of the Secretary.

(4) If a direction is given under subsection (3) in writing, the direction

is not a legislative instrument.

109 Identity cards

(1) The Secretary must issue an identity card to an authorised person.

Form of identity card

(2) The identity card must:

(a) be in the form approved by the Secretary; and

(b) contain a recent photograph of the authorised person.

Offence

(3) A person commits an offence if:

(a) the person has been issued with an identity card; and

(b) the person ceases to be an authorised person; and

return the identity card to the Secretary.

Penalty: 1 penalty unit.

Part 6 Miscellaneous

Division 2 Appointment of authorised persons etc.

Section 109

68 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

(4) Subsection (3) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

Defence: card lost or destroyed

(5) Subsection (3) does not apply if the identity card was lost or

destroyed.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection, see subsection 13.3(3) of the Criminal Code.

Authorised person must carry card

(6) An authorised person must carry his or her identity card at all times

when exercising powers as an authorised person.

Miscellaneous Part 6

Disclosure of information Division 3

Section 110

Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012 69

Division 3--Disclosure of information

110 Disclosure of information by the Secretary

(1) The Secretary may disclose any information, or give any

document, obtained or generated for the purposes of this Act, to:

(a) the Minister; or

(b) the head (however described) of:

(i) an Agency within the meaning of the Financial

Management and Accountability Act 1997; or

(ii) a Commonwealth authority, within the meaning of the

Commonwealth Authorities and Companies Act 1997;

for a purpose connected with administering this Act.

(2) The Secretary may disclose information under subsection (1) only

if the Secretary is satisfied that the recipient of the information will

not disclose the information to anyone else without the Secretary's

consent.

(3) The Secretary may give a document under subsection (1) only if

the Secretary is satisfied that the recipient of the document will not

disclose any of the contents of the document to anyone else

without the Secretary's consent.

Relationship with other laws

(4) Subsection (1) applies despite:

(a) a law of the Commonwealth other than this section; and

(b) a law of a State or a Territory.

Part 6 Miscellaneous

Division 4 Miscellaneous

Section 111

70 Coastal Trading (Revitalising Australian Shipping) Bill 2012 No. , 2012

Division 4--Miscellaneous

111 Delegation

(1) The Minister may, by writing, delegate all or any of his or her

functions and powers under this Act (other than under section 11)

to an SES employee or acting SES employee in the Department.

(2) The Secretary may, by writing, delegate all or any of his or her

functions and powers under this Act to an SES employee or acting

SES employee in the Department.

112 Customs treatment of certain vessels

A vessel is not imported into Australia for the purposes of the

Customs Act 1901 only because it is used to carry passengers or

cargo under a temporary licence or an emergency licence.

113 Regulations

The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

Commonwealth of Australia Bills

COASTAL TRADING (REVITALISING AUSTRALIAN SHIPPING) BILL 2012