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2010-2011-2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
COASTAL TRADING (REVITALISING AUSTRALIAN SHIPPING) BILL 2012
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Infrastructure and Transport,
the Honourable Anthony Albanese, MP)
COASTAL TRADING (REVITALISING AUSTRALIAN SHIPPING) BILL 2012
POLICY CONTEXT
In September 2011, the Government released its Stronger Shipping for a Stronger Economy
package to revitalise the Australian shipping industry. Australia is heavily dependant on
shipping, with 99 per cent of international trade volumes transported by ship and Australian
ports managing 10 per cent of the world's sea trade. A viable shipping industry is recognised
by a wide range of OECD and developing countries as critical to national economic
prosperity.
A vibrant domestic maritime sector is also required to maintain the supply of maritime skills
to fill specialist shore-based roles. Australia's maritime safety and environmental regulators,
as well as port authorities, draw their skills from the sea-based labour pool. Significant
seagoing experience is requried to attain the high levels of technical expertise required.
The shipping task throughout Australian waters is forecast to double by 2029-30, which will
substantially increase demand for these technical skills. Relying on immigration to fill these
positions is not sustainable, as a global shortage increases competition for these skills. A
domestic shipping industry provides the foundation to build a sustainable workforce.
The Need for Action
The Australian shipping industry has been in decline over an extended period. The number
of Australian registered ships in the major trading fleet has dropped from 55 in 1995-96 to 22
in 2010-11. Without action, there are unlikely to be any Australian registered vessels
operating in the major trades within the next five years. This decline stems from the failure
of Australian shipping policy to keep pace with global changes in the industry, as well as the
regulatory and competitive settings faced by the domestic industry.
Australia's coastal trading framework is one of the most liberal in the world. Foreign
flagged and crewed vessels can operate in the domestic economy under `permit', without any
obligation to meet Australian regulatory requirements. Coastal shipping is the only sector in
the Australian domestic transport industry where lower paid foreign workers are employed.
While the Fair Work Regulations 2009 extended award coverage to a number of permit
vessels, foreign flagged vessels continue to enjoy favourable cost structures when compared
to Australian licensed vessels.
Since the early 1990s, many developed countries have implemented fiscal and policy
measures to support their domestic industry. Access to beneficial taxation and other
arrangements further entrenches operating cost differentials. The inability of Australian
vessels to compete on a level playing field with international operators has led to the current
decline. Indicative of this in 2010-11 approximately 417 ships operated on the Australian
coast under permit, compared to 22 Australian-registered and licensed vessels.
Previous policy development processes and consultation
A number of major reviews have been undertaken into the shipping industry since the mid-
1990s, notably the Report of the Shipping Reform Group (1997) and the Independent Review
of Australian Shipping (2003). These reviews found that without Government action the
Australian shipping fleet would continue to decline. None of the recommendations of these
reviews were implemented.
In 2008, the House Representatives Committee on Infrastructure, Transport, Regional
Development and Local Government undertook an inquiry into coastal shipping policy and
regulation (Rebuilding Australia's Coastal Shipping Industry). The key themes arising from
the inquiry included:
· Shipping is legally able to acquire a national character that is independent of its owner
and operate internationally to take advantage of key tax incentives offered by the
country of registration. This has created an intensely competitive global fiscal
environment in a bid to attract shipping tonnage.
· Australian shipping companies are subject to the standard corporate tax arrangement,
which puts them at a competitive disadvantage with ships registered in countries like
Singapore, Hong Kong and Canada that offer zero tax or very low rates for shipping
businesses.
· Traditional maritime nations, mainly from Europe, have for some time now
successfully introduced differential corporate tax arrangements and created new
international registers to retain national tonnage.
· Australian ships face severe disadvantage in competing with foreign ships.
Stakeholders expressed concern regarding costs related to wages and maintenance.
· There exist differences amongst stakeholders on productivity and efficiency gains but
there is general agreement on the range of fiscal and regulatory measures required,
including an optional tonnage tax, withdrawal of royal withholding tax, accelerated
depreciation, seafarer taxation and changes to the cabotage regime with a view to an
increased Australian presence in the coastal trade.
The Committee considered the benefits of a competitive and sustainable coastal trading sector
and through its 14 recommendations articulated a comprehensive policy framework aimed at
revitalising the industry.
Given the broad ranging nature of the Committee's recommendations, a Shipping Policy
Advisory Group, comprising industry and unions was established in 2009. This Group
advised the Government on how best to implement the Committee's recommendations. The
outcomes of these deliberations were incorporated into Reforming Australia's Shipping - A
Discussion Paper for Stakeholder Consultation that was released in December 2010.
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The Discussion Paper outlined the Government's shipping policy framework and sought
industry and public comment on the proposals. Three industry reference groups met from
February - May 2011 and advised on implementation issues relating to the key areas of the
reform package.
Exposure Draft Legislation
On 19 December 2011, the Government released exposure drafts of the Coastal Trading Bill
2012 and the Coastal Trading (Consequential Amendments and Transitional Provisions) Bill
2012. Over 20 submissions were received in response.
On 20 February 2012, the Government released the following exposure draft bills:
· Coastal Trading (Revitalising Australian Shipping) Bill 2012
· Coastal Trading (Revitalising Australian Shipping) (Consequential Amendments and
Transitional Provisions) Bill 2012
· Shipping Registration Amendment (Australian International Shipping Register) Bill
2012
· Shipping Reform (Tax Incentives) Bill 2012
· Tax Laws Amendment (Shipping Reform) Bill 2012
An industry roundtable was held on 28 February 2012 to provide industry with the
opportunity to provide feedback on major policy issues arising from the Bill ahead of the
close of public consultation on 5 March. Over 60 industry representatives attended, and 27
written submissions were received.
Stronger Shipping for a Stronger Economy Legislative Package
The shipping reforms are an integrated policy framework consisting of three legislative
packages:
Coastal Trading · Coastal Trading (Revitalising Australian Shipping)
Bill 2012
· Coastal Trading (Revitalising Australian Shipping)
(Consequential Amendments and Transitional
Provisions) Bill 2012
Australian International · Shipping Registration Amendment (Australian
Shipping Register International Shipping Register) Bill 2012
Taxation Incentives · Shipping Reform (Tax Incentives) Bill 2012
· Tax Laws Amendment (Shipping Reform) Bill
2012
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The reforms are seeking to create a stable regulatory environment and provide internationally
competitive fiscal incentives to encourage the revitalisation of the Australian shipping
industry.
While the Committee's Terms of Reference did not extend to include consideration of
establishing an international shipping registration, the consultation process identified that
there was widespread support for this initiative. Further, increasing Australian shipping's
participation in international trade (currently there are only four Australian registered vessels
undertaking only international trade operations), is considered a necessary catalyst for
reinvigoration of the domestic industry.
Parliamentary Committee inquiries
The Bill was referred to two Parliamentary Committee inquiries - one by the House of
Representatives Standing Committee on Infrastructure and Communications and one by the
Senate Standing Economics Legislation Committee. The House of Representatives
Committee delivered its report on 24 May 2012.
During the debate in the House of Representatives, amendments were made to the Bill in
response to issues raised by stakeholders through the Parliamentary inquiries, as well as
addressing other minor and technical matters to correct inadvertent mistakes, provide
consistency between related legislation and rectify unintended consequences.
OUTLINE
The Coastal Trading (Revitalising Australian Shipping) Bill 2012 (the Bill) provides for the
regulatory framework for access by vessels to coastal trading in Australia. It replaces the
regulatory arrangements set out in Part VI of the Navigation Act 1912 (Navigation Act). Part
VI of the Navigation Act will be repealed by the Coastal Trading (Revitalising Australian
Shipping) (Consequential Amendments and Transitional Provisions) Bill 2012.
The Bill aims to address the regulatory uncertainty that exists under the current arrangements.
In particular, concerns regarding ambiguity in the wording of the Navigation Act and the
reliance on Ministerial Guidelines, which are open to broad interpretation, have been
considered in developing the Bill's provisions.
The Bill makes it clear that no vessel may engage in coastal trading unless it has the
appropriate licence issued under the Coastal Trading (Revitalising Australian Shipping) Act
2012. The key contents of the Bill are as follows:
· The object of the Act is to provide a regulatory framework for coastal trading in
Australia that promotes a viable shipping industry which contributes to the broader
Australian economy; facilitates long-term growth of the Australian shipping industry;
enhances the efficiency and reliability of Australian shipping; and maximises the use
of Australian vessels registered under the Australian General Shipping Register.
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· It establishes three types of licences (general licences, temporary licences and
emergency licences) which would authorise vessels to carry passengers or cargo
between ports in Australia.
· It deals with the application process for a licence, the decision-making process
including criteria in making such decision, conditions of licences, cancellations of
licences, Ministerial exemptions from the Act, appointment and enforcement of the
requirements of the Act.
· It also provides for review of certain decisions by the Administrative Appeals
Tribunal and the delegation of the functions and powers by the Minister and the
Secretary.
FINANCIAL IMPACT STATEMENT
There will be no impact on Commonwealth expenditure.
REGULATORY IMPACT STATEMENT
A Regulatory Impact Statement was prepared on the shipping reform package. This can be
accessed at
http://www.infrastructure.gov.au/maritime/shipping_reform/files/RIS_post_OBPR_20110816
_formatted.pdf
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Coastal Trading (Revitalising Australian Shipping) Bill 2012
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in clause 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Overview of the Bill
The Coastal Trading (Revitalising Australian Shipping) Bill 2012 (the Bill) provides for the
regulatory framework for coastal trading in Australia. It replaces the regulatory arrangements
set out in Part VI of the Navigation Act 1912 (Navigation Act). Part VI of the Navigation Act
1912 will be repealed by the Coastal Trading (Consequential Amendments and Transitional
Provisions) Bill 2012.
The key contents of the Bill are as follows:
· The Act provides a regulatory framework for coastal trading in Australia that
promotes a viable shipping industry which contributes to the broader Australian
economy; facilitates long-term growth of the Australian shipping industry; enhances
the efficiency and reliability of Australian shipping; and maximises the use of
Australian-registered vessels.
· It establishes three types of licences (general licences, temporary licences and
emergency licences) which would authorise vessels to engage in trade on Australian
coastal waters.
· It deals with the application process for a licence, the decision-making process
including criteria in making such decision, conditions of licences, cancellations of
licences, Ministerial exemptions from the Act, appointment and investigative powers
of authorised persons, and enforcement of the requirements of the Act.
· It also provides for review of certain decisions by the Administrative Appeals
Tribunal and the delegation of the functions and powers by the Minister and the
Secretary.
The proposed legislation provides for unrestricted carriage of domestic cargo and passengers
to General Licence holders and restricted carriage to Temporary Licence and Emergency
Licence operators.
The restrictions on Temporary Licence holders relate to the voyages that are applied for by
the applicant. All Temporary Licence applications are subject to negotiation for carriage by a
General Licence holder ability to nominate for the trade. The proposed legislation mirrors
the current practice under Part VI of the Navigation Act 1912, which provides operators of
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foreign registered vessels the ability to apply for a permit to carry Australian domestic cargo
and passengers on the basis that there is no licensed vessel available, adequate and that it is in
the public interest.
However, the Bill will strengthen the merits review process for all operators by including an
Administrative Appeals Tribunal review of decisions for the following:
· Refusal to exempt a particular vessel or a particular person from this Act (clause 11);
· Grant an exemption subject to conditions (clause 11);
· Refusal to make a declaration in relation to a vessel (clause 12);
· Cancellation of a general licence (subclause 25(3)); and
· Cancellation of a temporary licence (subclause 44(3)).
This Bill does not make substantial changes to the current regulatory arrangements for coastal
shipping and is consistent with international maritime practices under World Trade
Organisation and Free Trade Agreement provisions which provide States with the ability to
reserve its coastal trade and cabotage provisions.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
Minister for Infrastructure and Transport, The Hon Anthony Albanese MP
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NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 is a formal provision specifying the short title of the Act.
Clause 2 - Commencement
This clause provides that the Act commences on 1 July 2012.
Clause 3 - Object of the Act
This clause sets out the object of the Act which 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;
(b) facilitates the long term growth of the Australian shipping industry;
(c) enhances the efficiency and reliability of Australian shipping as part of the national
transport system;
(d) maximises the use of vessels registered in the Australian General Shipping Register
(under the Shipping Registration Act 1981);
(e) promotes competition in coastal trading; and
(f) ensures efficient movement of passengers and cargo between Australian ports.
This provision outlines the types of licences available to engage in coastal trading and what
access each licence gives to engage in coastal trading. The object of the Act will be achieved
by ensuring that:
· a general licence (for Australian General Shipping Register vessels) provides
unrestricted access to engage in coastal trading in Australian waters;
· a temporary licence provides access to engage in coastal trading in Australian waters
which is limited in time and is also limited to the voyages authorised by the licence;
· an emergency licence provides access to engage in coastal trading in Australian
waters which is also time limited and is to deal with the identified emergency
situation.
Clause 4 - Constitutional basis for Act
Subclause 4(1) identifies the constitutional heads of power enabling the Commonwealth to
legislate in relation to the matters covered by the Act.
Subclause 4(2) explains that an `activity of a vessel' or a `matter that relates to a vessel' as
provided in subclause (1) includes, but is not limited to, an activity done by the:
· owner of the vessel; or
· seafarer working on the vessel.
Subclause 4(3) defines what is meant by `external to Australia' for purposes of subclause (1).
This Act applies to activities and other matters relating to a vessel external to Australia. This
means the Act applies to a vessel that is operating:
· beyond the baseline from which the breadth of the territorial sea is measured under
clause 7 of the Seas and Submerged Lands Act 1973; or
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· any waters on the landward side of the territorial sea that are not within the limits of a
State or internal Territory.
Clause 5 - Simplified outline
This clause provides a simplified outline of the Act.
This Act deals with the regulatory requirements to authorise vessels to carry passengers and /
or cargo, for or in connection with a commercial activity, between ports in Australia.
Part 1 deals with the preliminary provisions which include the commencement date, the
object of the Act and the constitutional basis for the Act.
Part 2 contains definitions for the Act including the definition of coastal trading in clause 7.
Part 3 deals with the application of the Act to various vessels, lists the vessels to which the
Act does not apply, provides for the power to exempt certain vessels or persons from the
application of the Act, and provides for the power to declare vessels on intrastate voyages to
be covered by the Act.
Part 4 establishes the three categories of licences that may be granted and the application
process for each. The three types of licences are general licences, temporary licences and
emergency licences. Part 4 also deals with matters such as conditions of licences,
cancellations and other penalties, and reporting requirements.
Part 5 deals with enforcement of the Act and provides for civil penalty provisions and
infringement notice scheme.
Part 6 deals with miscellaneous matters such as merits review, appointment of authorised
persons, delegation of the Minister's and Secretary's powers and the regulation-making
power.
Clause 6 - Definitions
A definition of `acceptable tolerance limits' is provided. The inclusion in the Bill of
`acceptable tolerance limits' was the outcome of industry comments provided during
consultation on this Bill.
In relation to a cargo, the acceptable tolerance limit is plus or minus 20% of the volume of
cargo authorised to be carried on a vessel under a temporary licence. In relation to
passengers, the acceptable tolerance limit is plus or minus 20% of the passengers authorised
to be carried on a vessel under a temporary licence.
In relation to a loading date, the acceptable tolerance limit is five days before or after the
loading date authorised under a temporary licence. While current arrangements provide for a
tolerance in regard to the sailing date, this Bill uses the loading date. This is consistent with
industry advice that the loading date may in certain circumstances be more critical to the
ongoing management of operations (clearing a stockpile/empty storage tanks etc), including
upstream production.
9
Australia, when used in a geographical sense, includes the external Territories. It should be
noted that the Act applies to 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 means a vessel registered on the Shipping Registration Act 1981.
authorised person means a person appointed as such under clause ^108.
business day means a day that is not:
(a) a Saturday; or
(b) a Sunday; or
(c) a public holiday in the Australian Capital Territory; or
(d) 27, 28, 29, 30 or 31 December.
The definition of business day is relevant in determining the statutory period for making a
decision on a licence application.
cargo means any personal property:
(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 clause ^86.
civil penalty provision means a provision which provides for a civil penalty and one or more
amounts in penalty units. A contravention of a civil penalty provision may be subject to an
infringement notice.
coastal trading has the meaning provided under clause ^7.
Commonwealth agency means:
(a) an agency within the meaning of the Financial Management and Accountability Act
1997; or
(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 authority.
emergency licence means a licence granted under Division 3 of Part 4.
energy security situation is defined in subclause (1A). An energy security situation exists if
a vessel that is used to undertake a voyage authorised by a temporary licence is carrying a
liquid fuel product (as defined in this Bill) and there are special circumstances that would
require such vessel to divert from its authorised voyage in order to load or unload a liquid
fuel product at a port not authorised by the licence. When an energy security situation exists,
the holder of a temporary licence may apply for a variation of the licence and such
application will be decided within 24 hours.
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.
10
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. The Act does not apply to activities of, or matters relating to, a
fishing fleet support vessel.
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. The Act does not apply to
activities of, or matters relating to, a fishing vessel.
general licence means a licence granted to an Australian vessel registered under the
Australian General Shipping Register under Division 1 of Part 4.
harbour means a harbour properly so called, whether natural or artificial, 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. This definition does not include an `offshore terminal'. This is consistent with
the intended policy that this Act does not apply to activities on offshore terminals, offshore
industry vessels or activities or matters relating to the offshore industry.
inland waterways vessel means a vessel (other than a Commonwealth vessel) that is used
wholly in waters other than waters of the sea. The Act does not apply to activities of, or
matters relating to, an inland waterways vessel.
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.
liquid fuel product means any of the following:
· biodiesel - within the meaning of paragraph (a) of the definition of this term in the
Energy Grants (Cleaner Fuels) Scheme Act 2004;
· liquid fuel - within the meaning of the Liquid Fuel Emergency Act 1984;
· liquid petrochemical - within the meaning of the Liquid Fuel Emergency Act 1984;
· liquid petroleum - within the meaning of the Liquid Fuel Emergency Act 1984;
· liquid petroleum product - within the meaning of the Liquid Fuel Emergency Act
1984;
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· petrochemical - within the meaning of the Liquid Fuel Emergency Act 1984;
· petroleum - within the meaning of the Liquid Fuel Emergency Act 1984;
· petroleum product - within the meaning of the Liquid Fuel Emergency Act 1984;
· refined liquid petroleum product - within the meaning of the Liquid Fuel Emergency
Act 1984.
A holder of a temporary licence, who uses a vessel used to carry any of the above products
and operating under a temporary licence, is eligible to make an application for an energy
security variation which would be decided urgently within 24 hours.
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 is the response given to the Minister or delegate by a holder of a general
licence in relation to a temporary licence application, as provided for under clause ^31.
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. This Act does not apply to
activities on offshore terminals, offshore industry vessels or activities or matters relating to
the offshore industry.
owner of a vessel includes:
(a) a person who has a legal or beneficial interest in the vessel, other than as a mortgagee;
(b) a person with overall general control and management of the vessel;
(c) a person who has assumed responsibility for the vessel from a person referred to in
paragraph (a) or (b).
For the purposes of paragraphs (b) and (c), a person is not taken to have overall general
control and management of a vessel, or to have assumed responsibility for a vessel, merely
because he or she is the master or pilot of the vessel. For purposes of the Act, `owner'
includes an operator who has overall general control and management of the vessel.
passenger means a person who is carried on board a vessel with the knowledge or consent of
the owner, charterer, master or operator 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 is broadly defined. It includes a harbour which is also defined broadly and includes a
place in, or at, which vessels can obtain shelter or load and unload goods or embark and
disembark passengers.
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). The Act does not
apply to activities of, or matters relating to, a recreational vessel.
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 navigable waters or in any other waters.
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salvage vessel means a vessel that is used wholly or primarily for salvage operations. The
Act does not apply to activities of, or matters relating to, a salvage vessel.
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:
(a) a pilot (which is taken to have its ordinary meaning);
(b) an owner of the vessel or a person representing the owner;
(c) law enforcement personnel;
(d) special personnel (within the meaning of clause 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 to operators of either a
foreign-registered vessel or an Australian International Shipping Register vessel 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). This is a departure from the notion that a voyage is
`empty ship to empty ship' and that various legs or segments form part of the whole
movement. Having regard to industry comments, the definition of voyage adopted is a
movement of a vessel from one port to another port where the movement constitutes coastal
trading within the meaning of that term in clause 7. For example:
· a movement of cargo or passengers from Newcastle to Melbourne is one voyage [as
per paragraph 7(1)(a)];
· a movement of cargo or passengers from Newcastle to Sydney then to Melbourne is
one voyage [as per paragraph 7(1)(b)]; however, if there is a declaration under
subclause 12(2), the movement from Newcastle to Sydney constitutes one voyage
and the movement to Melbourne will be another voyage.
Subclause 6(1A) provides for the circumstances when an `energy security situation' occurs.
An energy security situation exists if a vessel that is used to undertake a voyage authorised by
a temporary licence is carrying a liquid fuel product (as defined in this Bill) and there are
special circumstances that would require such a vessel to divert from its authorised voyage in
order to load or unload a liquid fuel product at a port not authorised by the licence. The
regulations will prescribe these `special circumstances'.
When an energy security situation exists, the holder of a temporary licence may apply for a
variation of the licence and such application will be decided within 24 hours.
Subclause 6(2) lists the activities in support of the fishing operations of a fishing vessel to
include:
(a) the storage and transport of fish taken, caught or captured by the fishing
vessel; and
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(b) the provision of food, fuel and other supplies to the fishing vessel while it is
engaged in fishing operations; and
(c) the transport of crew to and from the fishing vessel while it is engaged in
fishing operations.
Clause 7 - Meaning of coastal trading
The intention of this Act is that a vessel engaged in coastal trading is required to operate
under the appropriate licence issued under the Act.
A vessel is engaging in coastal trading if it operates under any of the following basic
scenarios:
(a) A vessel, for or in connection with a commercial activity, which takes on board
passengers or cargo at a port in a State or Territory and 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.
To illustrate:
State A *********** State B
From Port 1 To Port 1
- Unload all
State A **** State B *** State C
Port 1 Port 1
- Unload some - Unload the rest
(b) A vessel takes on board passengers or cargo at a port in a State or Territory and
carries the passengers or cargo to a port in the same State or Territory where some
passengers disembark or some cargo is unloaded and 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.
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To illustrate:
A vessel that loaded cargo from port 1 in State A unloads a part of that same cargo (loaded in
port 1 of State A) in port 2 of State A and the vessel continues to transport part or all of the
remaining cargo (loaded originally in port 1 of State A) to a port in another State is coastal
trading under paragraph 7 (1)(b).
Under this definition, there is an intra-state voyage and an inter-state voyage involved.
State A *** State A *** State B
Port 1 Port 2
Unload some - Unload some or
Unload all of the rest
(c) A vessel takes on board passengers or cargo at a port in a State or Territory and
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 a
declaration under subclause 12(2) is in force.
To illustrate:
State A *** State A
Port 1 Port 2
- Unload all &
Declaration
State A *** State A *** Overseas
Port 1 Port 2
- Unload some & - Unload the rest
& Declaration 15
Paragraph (c) contemplates a vessel on an intra-state voyage, where neither paragraph (a) nor
paragraph (b) above applies, and a declaration under subclause 12 is in force.
Further example:
All of the cargo loaded in port 1 of State A is unloaded in port 2 of State A, and the
same vessel loads a new cargo in port 2 of State A and transports the cargo taken from
port 2 of State A in State B.
The voyage from port 1 to port 2 of State A is not coastal trading unless there is a
declaration in force under clause 12 of the Act applying to the vessel.
The voyage from port 2 of State A to another port in a port in State B is coastal
trading for purposes of this Act under paragraph 7(1)(a).
Subclause 7(2) provides for exclusions from the definition of `coastal trading'. The
following situations are not `coastal trading' for purposes of the Act:
(a) A vessel which carries passengers who hold through tickets to and from a port outside
Australia and disembarks at a port in Australia for transit purposes only -- A vessel
which carries passengers from a port in Australia and disembarks them at an overseas
port where the overseas port is the final port of destination, and such vessel does not
fall under any of the situations described in subclause 7(1), is not engaging in coastal
trading. Likewise a vessel, which carries passengers who boarded from an overseas
port and disembarked at a port in Australia [and such vessel does not fall under any of
the situations described in subclause 7(1)], is not engaging in coastal trading.
(b) A vessel which carries cargo that is consigned on a through bill of lading to or from a
port outside Australia -- If such vessel unloads the cargo at a port in Australia for
transhipment purposes only, the vessel is not engaging in coastal trading (for purposes
of this Act) if the cargo that is transhipped has an international bill of lading.
16
To illustrate:
A vessel (carrying cargo with an international bill of lading) which unloads the cargo
at a port in Australia for transhipment and the cargo (with an international bill of
lading) is transferred to another vessel which carries the cargo (with an international
bill of lading) to its final destination is not engaging in coastal trading for purposes of
the Act.
The second vessel which carries the cargo (with an international bill of lading) to its
final destination is likewise not engaging in coastal trading for purposes of the Act.
This situation contemplates a vessel carrying cargo with international bill of lading
only and does not fall under any of the situations under subclause 7(1).
(c) The regulations may prescribe other exclusions from the definition of coastal trading.
Part 3 - Provisions relating to the application of this Act
Clause 8 - Extension to Territories
This Act applies to all external Territories.
Clause 9 - Act to bind the Crown
The Act binds the Crown in each of its capacities.
Clause 10 - Act does not apply to certain vessels
This clause lists the kinds of vessels to which the Act does not apply and they are:
(a) A vessel belonging to or operated by the Australian Defence Force or the naval,
military or air forces of a foreign country.
(b) A Commonwealth vessel used wholly or primarily for non-commercial activities.
`Non-commercial activities' of a Commonwealth vessel include marine or ocean
research activities so long as the Commonwealth vessel is not undertaking the
research as part of a commercial activity.
(c) A fishing vessel or fishing fleet support vessel.
(d) An inland waterways vessel.
(e) An offshore industry vessel.
(f) A recreational vessel.
(g) A salvage vessel,
(h) A tugboat. A tugboat, by its very nature, pulls another vessel or craft. The vessel or
craft being pulled by a tugboat is not exempt unless it is of a kind listed in clause 10.
17
Clause 11 - Minister may exempt certain vessels or persons
The Minister may issue a direction which exempts from the Act a vessel or class of vessels or
a person or class of persons.
This provision maintains the power to exempt under clause 421 of the Navigation Act 1912.
The Ministerial direction (to exempt) is a legislative instrument which means it will have to
be registered in the Federal Register of Legislative Instruments (FRLI) and would be subject
to Parliamentary scrutiny through the disallowance process.
An exemption may be confined to one or both of the following:
(a) one or more specified periods;
(b) one or more specified voyages.
The Minister may attach a condition or conditions to an exemption. A breach of such a
condition may be subject to a civil penalty under clause 84 and 85.
The Ministerial exemption should not breach Australia's obligation under an international
agreement. Furthermore, such exemption should not be given if it will jeopardise the safety
of a vessel or persons on board a vessel.
The power of the Minister to issue a direction to exempt certain vessels or persons will not be
capable of being delegated to other officers.
Clause 12 - Application to vessels on intrastate voyages
The Minister may issue a declaration applying the Act to a vessel operating on intrastate
voyages. The owner of the vessel may apply for such Ministerial declaration. This provision
maintains the ability of vessel owners to `opt-in' to the coastal trading regime under clause
8AA of the Navigation Act 1912.
The declaration will be in force until its expiry date or upon revocation.
If the owner of the vessel requests revocation of the declaration, the Minister must revoke it.
The Minister on his/her own may revoke a declaration if the Minister is satisfied that:
(a) the vessel no longer exists or has been lost; or
(b) the name or any other details of the vessel have been changed since the making of the
declaration; or
(c) the vessel no longer operates in Australia.
A declaration under clause 12 is not a legislative instrument within the meaning of clause 5 of
the Legislative Instruments Act 2003.
18
Part 4 - Licences
Division 1 - General Licences
Subdivision A - Application for, and grant of, general licences
Clause 13 - Application for general licence
The owner, charterer, master or agent of the vessel (or a person prescribed by the regulations)
may apply to the Minister for a general licence, including renewal of a general licence, to
engage in coastal trading using a vessel that is registered in the Australian General Shipping
Register.
An application must be:
· accompanied by evidence of registration under the Australian General Shipping
Register (such evidence may include the vessel's International Maritime Organisation
(IMO) identification number);
· accompanied by a statement that the vessel will be crewed by Australian citizens,
permanent residents or persons with appropriate work visas;
· accompanied by the application fee prescribed by the regulations or evidence of
payment of such fee; and
· accompanied by any information required by the regulations.
For an application to be a valid and complete application, it must be one that has complied
with all of the above requirements. The decision-making period will not start to run unless
the application is complete.
A general licence only applies to one vessel and each general licence requires an application.
A person who wants a general licence for two or more vessels should lodge a separate
application for each vessel.
An application for renewal of a general licence is the same process as a first-time application
for a general licence.
Clause 14 - Application may be varied or withdrawn
At any time before an application is decided by the Minister, the applicant may vary or
withdraw the application. The variation or withdrawal of the application must be in writing.
If an application is withdrawn, any application fee paid is not refundable.
Clause 15 - Deciding applications
The Minister may grant or refuse the application. In deciding an application, the Minister
may have regard to the following:
(a) whether the applicant has previously held a licence that was cancelled (the term
`licence' refers to a general licence, temporary licence or emergency licence issued
under this Act);
(b) whether the applicant has been issued an infringement notice under this Act;
19
(c) the object of this Act;
(d) any other matters the Minister thinks relevant. For purposes of this paragraph, the
Minister may consider whether the applicant has held a licence or a permit issued
under Part VI of the Navigation Act 1912.
The Minister has 10 business days to decide an application after the application is made. If
the application was varied, under clause 14, the Minister has 10 business days to decide the
application from the date the Minister received the written variation.
Clause 16 - Grant of general licence
If the Minister decides to grant the application, he or she must issue the general licence for a
period not more than five years. Under current arrangements, licences are only granted for
one year. Introduction of a five-year licence period, reinforces the policy intent of providing
greater certainty for industry and to encourage long term investment planning.
If an application for a general licence is granted, the Minister must cause the following
information to be published on the Department's website:
(a) general licence number;
(b) holder of the licence (the person to whom the licence is issued);
(c) holder's business name and business address;
(d) the vessel to which the licence relates;
(e) period of the licence;
(f) any other information prescribed by the regulations.
Clause 17 - Application taken to be granted in certain circumstances
If the Minister has not made a decision within the 10-business day period, the licence is
deemed to have been granted. In this situation, the Minister is taken to have determined that
the licence is valid for five years.
Clause 18 - Issue of general licence
If the Minister grants the licence, or is deemed to have granted the licence, he or she must, as
soon as practicable, give the applicant a general licence.
The licence must specify the following:
(a) general licence number
(b) holder of the licence (the person to whom the licence is issued)
(c) holder's business name and business address
(d) the vessel to which the licence relates
(e) that the licence is subject to the conditions specified in clause 21 (referring to clause
21, without necessarily listing the conditions in the licence would be sufficient)
(f) any additional conditions which the Minister may impose pursuant to clause 22
(g) the day the licence commences and the period of validity of the licence
(h) other matters prescribed by the regulations.
20
Clause 19 - When general licence is in force
A general licence commences on the day specified in the licence and expires at the end of the
period specified in the licence, unless the licence is cancelled or surrendered before that time.
Clause 20 - Refusal of application
If the Minister decides to refuse an application for a general licence, he or she must, as soon
as practicable, notify the applicant, in writing of the decision and the reasons for the decision.
Subdivision B - Conditions of general licences
Clause 21 - Conditions imposed on all general licences
A general licence is subject to the following conditions:
(a) the vessel authorised by the general licence must continue to be registered in the
Australian General Shipping Register;
(b) each seafarer working on the vessel (when it is used to engage in coastal trading) must
be an Australian citizen, or hold a permanent visa, or hold a temporary visa with
appropriate work rights;
(c) a copy of the licence must be displayed in a conspicuous place on the vessel (when
the vessel is used to engage in coastal trading);
(d) the holder of the licence must comply with the reporting requirements under clause
27;
(e) the holder of the licence must comply with any other condition specified in the
regulations.
Clause 22 - Additional conditions may be imposed by Minister
The Minister may, at any time, impose an additional condition on a general licence including
after the licence has been granted. The Minister must notify in writing the holder of the
general licence of any condition imposed.
The Minister, may at anytime, vary or remove such condition. The Minister must notify, in
writing, the holder of the general licence of any variation or removal of such condition.
The Minister cannot impose a condition that is inconsistent with the conditions imposed by
the Act under clause 21.
Clause 23 - Breaching condition of general licence
A holder of a general licence contravenes clause 23 if the holder breaches a condition
imposed on the licence under clause 21 or 22. The civil penalty for such breach would be 50
penalty units (for an individual) or 250 penalty units (for a corporation).
A breach of condition of a general licence may also lead to cancellation of the licence.
21
Subdivision C - Renewal, cancellation and surrender of general licences
Clause 24 - Renewal of general licence
The holder of a general licence may apply, before it expires, for a renewal of the general
licence.
The process for deciding an application for renewal of the licence is the same as the
application for a licence.
While an application for renewal of the licence is pending, the general licence continues to be
valid and in force. This way, the movement of goods will not be impeded by reason only that
the administrative process for renewal of the general licence has not been completed.
A general licence may be renewed more than once.
Clause 25 - Cancellation of general licence
A general licence cannot be cancelled unless the Minister has given a show cause notice.
If the Minister believes on reasonable grounds that a condition of a general licence has been
contravened, the Minister may give a show cause notice to the holder of the licence.
The show cause notice must state the grounds on which the notice is given. It must also
invite the holder of the licence to give the Minister, within 10 business days after the day the
notice is given, a written statement why the licence should not be cancelled.
After considering the written response from the holder of the licence, the Minister is satisfied
that a condition of the licence has been contravened, the Minister may cancel the licence.
A decision to cancel a general licence may be the subject of an application for review by the
Administrative Appeals Tribunal.
If the Minister decides to cancel the licence, he or she must give a written notice to the holder
of the licence setting out the following:
(a) the day the cancellation takes effect;
(b) the reasons for the cancellation; and
(c) that fact that if the licence is not returned to the Minister within 10 business days after
the day the cancellation takes effect, the holder is in breach of the Act. The civil
penalty for such breach would be 50 penalty units (for an individual) or 250 penalty
units (for a corporation).
A show cause notice issued by the Minister under subclause 25(1) is not a legislative
instrument within the meaning of clause 5 of the Legislative Instruments Act 2003.
Clause 26 - Surrender of general licence
The holder of a general licence may surrender at any time the licence by returning the licence
to the Minister and notifying the Minister in writing.
22
The general licence ceases to have force and effect on the day the notice (to surrender the
licence) is received by the Minister or at a later date specified in the notice of surrender.
Subdivision D - Miscellaneous
Clause 27 - Reporting requirements for general licence
A holder of a general licence must give to the Department, no later than 30 business days
after the end of each financial year during the period of validity of the licence, a report
containing the following information:
(a) if passengers were carried during the year:
· the number of passengers carried; and
· ports of loading and disembarkation of passengers
(b) if cargo was carried during the year:
· the kinds and volume of cargo carried; and
· ports of loading and unloading of the cargo.
A breach of the reporting requirement may be subject to a civil penalty of 50 penalty units
(for an individual) or 250 penalty units (for a corporation).
The Minister must cause the publication on the Department's website a summary of the
information contained in the report.
Division 2 - Temporary licences
Subdivision A - Application for, and grant of, temporary licences
As stated in clause 3, a temporary licence provides access to engage in coastal trading in
Australian waters which is limited in time and is also limited to the voyages authorised by the
licence.
A foreign-registered vessel or a vessel registered in the Australian International Shipping
Register will need a temporary licence to engage in coastal trading in Australian waters.
A temporary licence is limited for a period of 12 months although it may be renewed (and the
number of times it may be renewed is not limited depending on the satisfaction of criteria
provided in the Act).
Unlike a general licence which enables a vessel to have unrestricted access to coastal trading,
a temporary licence is restricted to the matters authorised in the licence--for example, the
number of voyages, kinds and volume of cargo or number of passengers, ports of loading and
disembarkation etc.
The application process for a temporary licence was the most contentious issue raised during
stakeholder consultations on the Bill with a diverse range of views expressed by industry
reflecting the range of businesses and industries operating and using shipping services. A
number of models for the application and granting of a temporary licence were discussed
with industry. The provisions of the Bill are designed to balance the needs and priorities of
these businesses and industries whilst providing ample opportunity for general licence
23
holders to nominate to carry passengers or cargo that would otherwise be carried by either
foreign-registered vessels or vessels registered on the Australian International Shipping
Register.
The Bill provides that a temporary licence covers a period of 12 months. However, only
those voyages where the required information is known (including expected loading dates,
loading and discharge ports and cargo type and volumes) would be authorised.
An application for a temporary licence is subject to a minimum of five voyages. One
exposure draft of the Bill released for public consultation proposed that the minimum number
of voyages be set at ten voyages. There was broad consensus from industry that many
operators could not provide sufficient detail for ten voyages and that five voyages was more
practical.
The Bill provides that a general licence holder can nominate to carry passengers or cargo as
stated in the temporary licence application (or a variation) and the minimum number of
voyages underpins this process.
Clause 28 - Application for temporary licence
The owner, charterer, master, shipper, or agent of the vessel may apply to the Minister for a
temporary licence for one or more vessels to be used to engage in coastal trading.
The application should cover a period of 12 months. The application will have to be for a
minimum of five voyages. Variations may be applied for during the period of validity of the
licence to include additional voyages.
The Act requires that the application should specify:
· the number of voyages which must be at least five;
· the expected loading dates;
· the number of passengers to be carried (if any);
· the kinds of and volume of cargo expected to be carried (if any);
· the type and size or type and capacity of the vessel (if known);
· the name of the vessel (if known);
· the ports of loading and unloading of cargo (in the case of passengers, the ports of
disembarkation);
· such other information prescribed by the regulations.
The temporary licence will authorise only those known voyages specified over a 12-month
period. When new voyages are anticipated to be undertaken during the life of the temporary
licence, the licence holder should seek a variation of the temporary licence to obtain
authorisation for the new voyages. However, any application to increase the number of
voyages must have a minimum of five voyages.
During industry consultations, it was proposed that an applicant for a temporary licence
should be allowed to nominate multiple ports of discharge (referred to as a port range). The
law will allow this and so an application may specify a range of ports where a particular kind
of cargo is expected to be discharged.
24
There is no limit to the number of times a temporary licence may be varied. A holder of a
general licence will be given the opportunity to nominate (or give a notice in response) for
every application to vary a temporary licence.
A temporary licence may be applied for only in relation to a vessel that is registered under the
Australian International Shipping Register or under a law of a foreign country. This means
that a vessel registered under the Australian General Shipping Register cannot operate under
a temporary licence. However, such vessel is open to operate under a general licence or an
emergency licence.
Unless all requirements of clause 28 are complied with, an application is not considered
complete and therefore the assessment period will not commence.
An application fee prescribed in the regulations must be paid. A person whose application
for temporary licence was refused may re-apply even if the 12-month period has not lapsed.
During the debate in the House of Representatives, a government amendment was made
inserting paragraph 2(ea) in clause 28 to provide that the applicant must provide the name of
the vessel, if the vessel is known at the time of application. This requirement ties-in with the
criterion for decision-making in clause 34 about an application relating to cargo and a vessel
registered in the Australian International Shipping Register, which are both owned by the
applicant. In order for the applicant to have the benefit of this consideration, it would be
necessary for the applicant to identify the vessel to be used and indicate that it is registered in
the Australian International Shipping Register.
Clause 29 - Application may be withdrawn
At any time before the Minister decides an application, the applicant may withdraw the
application by notifying the Minister in writing.
If the application is withdrawn, any application fee paid is not refundable.
Clause 30 - Publication and notification of application
Within two business days after the Minister receives an application under clause 28, a copy of
the application will be published on the Department's website. However, any information
which the Minister considers commercial-in confidence or consists of personal details of an
individual will not be published.
Also, within the same two-business-day period, the holder of a general licence and a body or
organisation directly affected will be notified of the temporary licence application.
Clause 31 - Holder of general licence may give notice in response
Within two business days after the day an application is published, a holder of a general
licence may give the Minister a written notice (a `notice in response') stating that:
· all of the passengers specified in the application could be carried under the holder's
general licence; or
· all of a particular kind of cargo could be carried under the holder's general licence; or
· all of the passengers and all of a particular kind of cargo could be carried under the
25
holder's general licence; or
· all of the passengers and all of the cargo could be carried under the holder's general
licence; or
· one or more voyages specified in the application could be undertaken under the
holder's general licence.
It is not required that a holder of a general licence is able to carry all of the cargo specified in
the application. However, if the general licence holder is nominating to carry passengers or a
particular kind of cargo, it must identify which passengers or cargo could be carried. If
nominating to carry one or more voyages, the general licence holder must identify the voyage
or voyages could be undertaken. A holder of a general licence may nominate to carry only
one (or more) of the voyages for a particular kind of cargo specified in the application.
Clause 32 - Process if notice in response received
If the Minister receives one or more notices in response, the Minister must, as soon as
practicable, give a copy of each notice in response to the temporary licence applicant.
Within two business days after the applicant receives a copy of each notice in response, the
applicant must undertake negotiations with each general licence holder who gave a notice in
response. Such negotiations must have regard to the requirements of the shipper of the cargo.
Also within the two-business-day period, the temporary licence applicant must notify the
Minister of the outcome of the negotiations.
Clause 33 - Comments by third parties
A third party (whether an individual, corporation, body or organisation) who would be
directly affected if the application were granted, may give the Minister written comments on
the temporary licence application. These comments should be given within two business
days after the application is published on the Department's website.
Clause 34 - Minister to decide applications
The Minister decides an application by either granting or refusing to grant the application.
Matters the Minister may have regard to
If the Minister does not receive a notice in response in relation to the application, he or she
may have regard to the following:
· whether the applicant has previously held, or applied for, a temporary licence;
· if the applicant has previously held a licence that was cancelled (be it a general
licence or temporary licence or emergency licence);
· whether the applicant owns the cargo and the vessel registered in the Australian
International Shipping Register that is used to carry the cargo;
· whether the applicant has been issued with an infringement notice;
· any written comments received from third parties;
· any report given by the applicant under clause 62;
· the object of the Act;
· any other matters the Minister thinks relevant.
26
It is open for the Minister to refuse an application if the Minister has information indicating
the applicant has inappropriately used a licence previously held.
If the applicant has previously held a licence or permit (issued under the old law) which has
been cancelled, this may also be considered by the Minister as it would be a matter that the
Minister may consider relevant to the application.
If the Minister receives one or more notices in response in relation to an application, in
addition to the matters the Minister may have regard to as listed above; the Minister must
have regard to the following:
· the outcome of the negotiations;
· whether, and to what extent, the vessel authorised under a general licence is equipped
to carry the passengers or cargo;
· whether those passengers or cargo can be carried on the expected loading dates or
within 5 days before or after the relevant loading date;
· the reasonable requirements of a shipper of the kind of cargo specified in the
application , if the application relates to the carriage of cargo.
The phrase `whether, and to what extent, the vessel authorised under a general licence is
equipped to carry the passengers or cargo' is intended to allow a holder of a general licence
to be able to nominate to undertake a specific voyage (or voyages). The Act also allows for a
holder of general licence to nominate to carry a particular kind of cargo in all the movements
required for such cargo. It is not necessary for the holder of a general licence to be able to
nominate for all the types of cargo or all voyages specified in the application.
In relation to the criterion concerning `the reasonable requirements of a shipper of the kind of
cargo specified in the application', it is the intent of the legislation that the decision-maker
will consider the reasonable requirements of a shipper who ordinarily ships that kind of cargo
specified in the application, and not merely the requirements of the specific shipper
concerned in that particular application.
To illustrate:
A temporary licence application may contain the following information:
Kind of cargo and Expected loading Port of loading Ports of discharge Type and size of
volume date vessel or type and
capacity of vessel
Bulk wheat 15 April 2013 Townsville Newcastle, Bulk carrier
Melbourne,
100 tonnes
Adelaide
Sugar 25 April 2013 Townsville Newcastle, Bulk carrier
Melbourne,
100 tonnes
Hobart
Animal feed 15 May 2013 Brisbane Sydney Bulk carrier
Townsville
100 tonnes Newcastle,
Melbourne,
27
Bulk wheat 20 May 2013 Cairns Melbourne Bulk carrier
100 tonnes Hobart
Bulk wheat 20 June 2013 Cairns Melbourne Bulk carrier
100 tonnes Hobart
A holder of a general licence may nominate to:
· carry all of the various kinds of cargo specified in the application (bulk wheat, sugar,
animal feed, bulk wheat) allowing for the tolerances provided in this Act; or
· carry all the bulk wheat in April and June; or
· carry the bulk wheat in April but not in May; or
· carry the sugar in April from Townsville to Hobart; carry the wheat in June from
Cairns to Hobart and so on.
During the debate in the House of Representatives, paragraph 34(2)(ba) was inserted so that
the Minister may also have regard to whether the applicant is moving its own cargo using a
vessel registered in the Australian International Shipping Register which the applicant owns.
Paragraph 34(3)(c) was also amended so that in deciding whether to grant a temporary
licence where a holder of a general licence nominated for a voyage specified in the temporary
licence application, the Minister must have regard to whether the vessels of the general
licence holder could carry the passengers or cargo on the expected loading dates (as specified
in the temporary licence application) or within five days before or after such loading date.
Timeframe for making a decision
The Minister must decide an application for a temporary licence within 15 business days.
The Act, however, allows for a shorter timeframe in case of variation of an existing
temporary licence.
For purposes of counting the statutory decision-making period, the following days are not to
be counted as `business days':
· on or after the day the Minister receives a notice in response in respect of the
application;
· on or before the day the applicant notifies the Minister under paragraph 32(2)(b) or if
the applicant fails to notify the Minister, on or before the last day of the period within
which the applicant was required to notify the Minister.
Clause 35 - Grant of temporary licence
If the Minister decides to grant a temporary licence, the Minister must also determine the
number of voyages authorised.
If the Minister grants a temporary licence, the following information must be published on
the Department's website:
(a) licence number
(b) day the licence commences
(c) number of voyages authorised by the licence
(d) dates of loading
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(e) number of passengers (if any) authorised to be carried under the licence
(f) kinds and volume of cargo (if any) authorised to be carried under the licence
(g) ports at which passengers or cargo will be taken on board
(h) ports of disembarkation or unloading
(i) any other information prescribed by the regulations.
Clause 36 - Application taken to be granted in certain circumstances
If the Minister did not decide an application within the statutory timeframe required under
clause 34, then at the end of the last day of that period, the application is taken to be granted
authorising the matters specified in the application.
Clause 37 - Issue of temporary licence
If the Minister decides to grant an application, the Minister must, as soon as practicable, give
the applicant a temporary licence. If an application is deemed granted, the Minister must
also, as soon as practicable, give the applicant a temporary licence.
The temporary licence must specify the following:
(a) licence number
(b) holder of the licence (the person to whom the licence is issued)
(c) holder's business name and business address
(d) number of voyages authorised by the licence
(e) dates of loading
(f) that the loading dates are subject to acceptable tolerance limits of 5 days before and 5
days after the date of loading
(g) number of passengers authorised to be carried (if relevant to a vessel)
(h) if paragraph (g) is applicable, a tolerance of plus or minus 20% of the number of
passengers authorised
(i) kinds and volume of cargo authorised to be carried (if relevant to a vessel)
(j) if paragraph (i) is applicable, a tolerance of plus or minus 20% of the volume of cargo
authorised
(k) ports at which passengers or cargo are authorised to be taken on board
(l) ports at which passengers are authorised to disembark or the cargo is authorised to be
unloaded
(m) that the licence is subject to conditions under clause 40 (referring to clause 40,
without necessarily listing the conditions in the licence would be sufficient)
(n) any additional conditions imposed on the licence under clause 41
(o) the date of commencement of the licence
(p) any other matters prescribed by the regulations.
If the Minister grants an application for temporary licence, the Minister, must, as soon as
practicable, notify in writing, each holder of a general licence who gave a notice in response
in relation to the application.
Clause 38 - When temporary licence is in force
A temporary licence starts to have force and effect on the day specified in the licence and
expires at the end of the period specified in the licence unless it is cancelled or surrendered
before its expiry date. The decision-maker determines the number of voyages and other
29
matters authorised by the licence. The temporary licence is valid for 12 months (as provided
under clause 35).
Clause 39 - Refusal of application
If the Minister decides to refuse an application, the Minister must, as soon as practicable,
notify the applicant, in writing, of the decision and reasons for the refusal.
The decision will be published on the Department's website.
Subdivision B - Conditions of temporary licences
Clause 40 - Conditions imposed on all temporary licences
Clause 40 provides for conditions of a temporary licence. A temporary licence is subject to
the following conditions:
(a) any vessel used to undertake a voyage under the licence must be registered either in
the Australian International Shipping Register or under a law of a foreign country;
(b) every time a vessel operates under the licence, a copy of the licence must be displayed
on the vessel in a conspicuous place accessible to all persons on board;
(c) the holder of the licence must comply with what is authorised by the licence, as
specified in the licence, pursuant to clause 37;
(ca) if a voyage authorised by the licence is not going to be undertaken, the holder of the
licence must notify the Secretary, in writing, of that fact and the reasons why the voyage
is not going to be undertaken;
(d) the holder of the licence must comply with the notification requirements under clause
61;
(e) the holder of the licence must comply with the reporting requirements under clause
62;
(f) the holder of the licence must comply with any other condition prescribed by the
regulations.
Clause 40 was amended during the Parliamentary debate to insert paragraph (ca) which
effectively provides that if a voyage authorised by a temporary licence is not going to be
undertaken, the holder of the licence must inform the Secretary (or delegate) of that fact and
provide reasons. It would not be necessary for the holder of the licence to seek a variation of
the licence. If the voyage authorised was not undertaken and the licence holder has informed
the Secretary (or delegate) of that fact and reasons, there is no breach of the conditions of the
licence for not undertaking the voyage.
Clause 41 - Additional conditions may be imposed by Minister
The Minister may, at any time, impose an additional condition on a temporary licence. Such
condition must not be inconsistent with a condition imposed under clause 40.
The Minister may, at any time, vary or cancel such condition. Any additional condition,
variation or cancellation of such condition, must be in writing.
30
Clause 42 - Breaching condition of temporary licence
If a holder of a temporary licence breaches any condition imposed under clause 40 or any
additional condition imposed by the Minister pursuant to clause 41, such person may be
liable to a civil penalty. If the person is an individual, the maximum civil penalty is 50
penalty units and if it is a body corporate, 250 penalty units.
A breach of condition of a temporary licence may also lead to cancellation of the licence.
Subdivision C - Variation, cancellation and surrender of temporary licences
The variation process was the subject of substantial industry comment. The Bill seeks to
maintain the policy integrity of the reforms, while ensuring there is sufficient flexibility in the
system to meet the genuine operating requirements of many in the industry.
Accordingly, two types of variation have been provided for in relation to temporary licence:
· variation of matters already authorised by the temporary licence which is in force--
for example, a temporary licence is authorised to undertake 8 voyages, 5 voyages
have been undertaken but there will be changes in the port routes for the last two;
· variation of a temporary licence in force for matters not yet authorised--in the
example above, if the holder of the temporary licence needs to increase the number of
voyages, he or she applies for a variation for matters not yet authorised.
The assessment period for the first type of variation is two business days while for the second
type, it is seven business days.
There is no limit on the number of variations made to a temporary licence. However, a
variation cannot be made to extend the period of validity of the licence.
Clause 43 - Application to vary matters authorised by temporary licence
A holder of a temporary licence may apply to vary matters authorised by a temporary licence
already in force.
During the Parliamentary debate in the House of Representatives, an amendment was made to
clause 43 which effectively provides that if a voyage authorised was not undertaken and the
licence holder has informed the Secretary (or delegate) of that fact and given the reasons,
there is no need to seek a variation of the licence.
Paragraph 43(2)(ba) was also inserted to provide that if the application (for variation) relates
to an energy security situation, the application must be accompanied by a statutory
declaration giving details of the special circumstances which justify the expedited variation.
Further, subclause 43(3) was also inserted to provide that an application relating to an energy
security situation may be given at any time after complying with a voyage notification
requirement under clause 61. This means that an energy security variation may be made even
if the vessel has been loaded or has commenced the voyage.
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In relation to other cases (that is, other than an energy security variation), an application for
variation for matters authorised by a temporary licence may be given only before a voyage
notification under clause 61 has been complied with. This means that once a voyage
notification has been given, no variation for that particular voyage may be made.
Clause 44 - Application may be withdrawn
An application for variation of a temporary licence may be withdrawn before the Minister
makes a decision by informing the Minister in writing.
Any application fee paid is non-refundable.
Clause 45 - Consultation on proposed variation
Upon receipt of an application for variation of matters already authorised under a temporary
licence, other than an energy security variation, the Minister must notify general licence
holders and a body or organisation directly affected should the granting of such temporary
licence occur.
A general licence holder who wishes to nominate to undertake the voyage proposed by the
temporary licence holder must give a notice in response within 24 hours from the time he or
she was notified of the application.
During the debate of the Bill in the House of Representatives, an energy security variation
was inserted into the Bill. Because of the special circumstances which require immediate
action by the holder of a temporary licence, an energy security situation will be processed
quickly and urgently within 24 hours from the time of application. This will enable carriers
of liquid fuel product to respond to urgent situations where there is a threat to Australia's
energy security.
Clause 46 - Minister to decide application
The Minister in granting or refusing a temporary licence application for variation will
consider whether the applicant has previously held, or applied for a temporary licence or
variation of a temporary licence; including whether the applicant has acted in accordance
with licence provisions where a licence has previously been granted. The Minister will also
consider whether an infringement notice has been issued to the applicant or whether he or she
has held a licence that was cancelled.
The Minister will also consider the object of the Act and any report provided previously by
the person. The Minister may also consider any other matters which he or she thinks
relevant.
In deciding the application for variation of a temporary licence, the Minister must have
regard to a nomination by a holder of a general licence.
During the debate of the Bill in the House of Representatives, clause 46 was amended to
provide that an application relating to an energy security situation will be decided within 24
hours of receiving the application. All other types of variation application under Subdivision
C will be decided within 2 business days after the day the application is made.
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Clause 47 - Grant of variation to temporary licence
The details of the variation to the temporary licence will be published on the Department's
website.
Clause 47A - Application taken to be granted in certain circumstances
If the Minister (or delegate) has not decided an application relating to an energy security
situation at the end of the decision-making period specified in clause 46 (that is, 24 hours
from receipt of the application), the application is taken to be granted and that the matters
specified in the application are taken to be authorised by the licence.
Clause 48 - Issue of varied temporary licence
The Minister must issue a varied temporary licence detailing the licence number, the holder
of the licence, the business name and address, the number of voyages authorised, the loading
dates (within the tolerance limits), the number of passengers, the kinds and volume of cargo
and ports the passengers and / or cargo are authorised to be taken on board and disembarked/
unloaded.
The temporary licence holder is obliged to follow the conditions imposed (or any further
conditions imposed by the Minister at any time) on the licence variation. Such conditions
include that the vessel be registered in the Australian International Shipping Register or under
a law of a foreign country; a copy of the licence be displayed on the vessel; comply with what
is authorised in the licence; provide a voyage notification at least 2 business days before
loading and provide a report to the Department 10 business days following completion of
each voyage authorised.
The Minister is also obliged to inform the general licence holder, in circumstances where a
notice in response is received, of the decision.
Clause 49 - Refusal of application
The Minister is obliged to inform in writing the applicant for variation of a temporary licence
if the application is refused and the reasons for the refusal. The Minister must also cause the
decision to be published on the Department's website.
Subdivision D - Variation of temporary licences to include new matters
Clause 50 - Application of Subdivision
A variation for a temporary licence may be received in regard to new voyages by the
temporary licence holder that have not been previously advised to the Department.
Clause 51 - Application to vary temporary licence
A temporary licence holder may seek authorisation for new voyages under a temporary
licence through a variation to the licence.
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The Act requires that the application should specify:
· the number of voyages which must be at least five;
· the expected loading dates;
· the number of passengers to be carried (if any);
· the kinds of and volume of cargo expected to be carried (if any);
· the type of the vessel;
· the size or capacity of the vessel (if known);
· the ports of loading and unloading of cargo (in the case of passengers, the ports of
disembarkation);
· such other information prescribed by the regulations.
The application must be accompanied by the application fee prescribed by the regulations.
Clause 52 Application may be withdrawn
An application for variation of a temporary licence may be withdrawn before the Minister
makes a decision by the applicant informing the Minister in writing that they wish to
withdraw the application. Any application fee paid is non-refundable.
Clause 53 - Process for deciding application
The same process that applies to an application for temporary licence will apply for a
variation of temporary licence.
Clause 54 - Time for deciding application
If a holder of a temporary licence applies to vary an existing temporary licence for new
matters, the Minister must decide the application for variation within seven business days
after the application is made.
For purposes of counting the statutory decision-making period, the following days are not to
be counted as `business days':
· on or after the day the Minister receives a notice in response in respect of the
application;
· on or before the day the applicant notifies the Minister under paragraph 32(2)(b) or if
the applicant fails to notify the Minister, on or before the last day of the period within
which the applicant was required to notify the Minister.
Clause 55 - Grant of variation to temporary licence
If the Minister grants a variation to a temporary licence for new matters, the details of the
variation will be published on the Department's website as provided for under clause 55.
Clause 56 - Application taken to be granted in certain circumstances
If the Minister did not decide a variation to a temporary licence for new matters within the
statutory timeframe required under clause 54, then at the end of the last day of that period, the
temporary licence is taken to be varied in accordance with the application.
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Clause 57 - Issue of varied temporary licence
If the Minister decides to grant an application for variance of a temporary licence, the
Minister must, as soon as practicable, give the applicant a varied temporary licence.
The varied temporary licence must specify the following:
· licence number
· holder of the licence (the person to whom the licence is issued)
· holder's business name and business address
· number of voyages authorised by the licence
· dates those voyages will be undertaken
· number of passengers authorised to be carried (if relevant to a vessel)
· kinds and volume of cargo authorised to be carried (if relevant to a vessel)
· ports at which passengers or cargo are authorised to be taken on board
· ports at which passengers are authorised to disembark or the cargo is authorised to be
unloaded
· that the licence is subject to conditions under clause 40 (referring to clause 40,
without necessarily listing the conditions in the licence would be sufficient)
· any additional conditions imposed on the licence under clause 41
· the date of commencement of the licence and period of validity of the licence
· any other matters prescribed by the regulations.
If the Minister grants an application for varied temporary licence, the Minister, must, as soon
as practicable, notify in writing, each holder of a general licence who gave a notice in
response in relation to the application.
Clause 58 - Refusal of application
If the Minister decides to refuse an application for varied temporary licence, the Minister
must, as soon as practicable, notify the applicant, in writing, of the decision and reasons for
the refusal.
The decision will be published on the Department's website.
Subdivision E - Cancellation and surrender of temporary licences
Clause 59 - Cancellation of temporary licence
If the Minister believes on reasonable grounds that a condition of a temporary licence has
been contravened, the Minister may give the holder of the licence a `show cause notice'. The
show cause notice must state the reasons for issuing the notice and invite the holder of the
licence to respond in writing within 10 business days after the day the show cause notice is
given.
After considering the written response provided by the holder of the licence, the Minister is
satisfied that a condition of the licence has been contravened, the Minister may cancel the
licence.
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A decision to cancel a temporary licence may be appealed for review by the Administrative
Appeals Tribunal.
If the Minister decides to cancel the licence, he or she must give a written notice to the holder
of the licence setting out the following:
(a) the day the cancellation takes effect;
(b) the reasons for the cancellation; and
(c) that fact that if the licence is not returned to the Minister within 10 business days after
the day the cancellation takes effect, the holder is in breach of the Act. The civil
penalty for such breach would be 50 penalty units (for an individual) or 250 penalty
units (for a corporation).
A show cause notice issued by the Minister under subclause 63(1) is not a legislative
instrument within the meaning of clause 5 of the Legislative Instruments Act 2003.
Clause 60 - Surrender of temporary licence
The holder of a temporary licence may surrender at any time the licence by returning the
licence to the Minister and notifying the Minister in writing.
The temporary licence ceases to have force and effect on the day the notice (to surrender the
licence) is received by the Minister or at a later date specified in the notice of surrender.
Subdivision F - Miscellaneous
Clause 61 - Voyage notification requirements for temporary licences
At least two business days before the vessel is loaded to undertake a voyage authorised by the
licence, the holder of the licence must notify the Minister, in writing, of the following:
(a) the vessel to be used to undertake the voyage;
(b) evidence of registration in the Australian International Shipping Register or in a
foreign country;
(ba) date of the voyage;
(c) number of passengers to be carried during the voyage (if any);
(d) kinds and volume of cargo to be carried during the voyage (if any);
(e) ports of loading of the passengers or cargo;
(f) ports of disembarkation of passengers or unloading of cargo.
This notification requirement is a condition of the temporary licence as provided under clause
40.
A contravention of this requirement may be subject to civil penalty. Such contravention may
also lead to a `show cause notice' and cancellation of the temporary licence.
Clause 62 - Reporting requirements for temporary licences
Improved transparency through stronger reporting and publishing requirements is a key
policy aim of the new regulatory arrangements. This is consistent with the information
policy that has been in place since 2008, with the details of single voyage permits issued
(including vessel name, cargo type and volumes, dates of sailing and ports of loading and
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discharge) being published.
The Bill provides that within 10 business days after the completion of each voyage
(authorised by the licence), the holder of the temporary licence must give a report to the
Department containing the following information:
(a) name of the vessel used;
(b) if passengers were carried: the number of passengers carried; dates of voyages; and
ports of loading and disembarkation of the passengers;
(c) if cargo was carried: the kinds and volume of cargo carried, dates of voyages; and
ports of loading and unloading; and
(d) such other information prescribed by the regulations.
Failure to comply with the reporting requirement may be subject to a civil penalty. Such
failure to report is a breach of a condition of licence which may also lead to cancellation of
the licence.
A copy of the report will be published on the Department's website.
Clause 63 - Inappropriate use of temporary licence
This clause provides that the Minister may issue a show cause notice to a holder of a
temporary licence if, having considered the matters listed in subclause 63(1), in the
Minister's view the holder of the temporary licence is circumventing the purpose of the
general licence provisions or the object of this Act.
The purpose of the general licence provisions is to ensure that an Australian vessel operating
under a general licence is given the opportunity to maximise its trade. It is expected that the
applicant of a temporary licence would disclose truthful and accurate information to enable
the holder of a general licence to determine whether it is able to carry the trade and nominate
to do the service.
Division 3 - Emergency licences
Subdivision A - Application for, and grant of, emergency licences
Clause 64 - Application for emergency licence
The owner, charterer, master or agent of the vessel or a shipper may apply to the Minister for
an emergency licence for one or more vessels to be used to engage in coastal trading.
The application must be in writing and specify the following:
· details of the emergency (the regulations will prescribe the emergency situations for
purposes of clause 64; examples of an emergency would include flooding, bushfire or
other natural disaster);
· number of voyages for which the applicant is seeking the licence (if known)
· number of passengers expected to be carried (if any)
· kinds and volume of cargo expected to be carried (if any) and the shipper of the cargo
· ports of loading of passengers or cargo (if known)
· ports of disembarkation or unloading (if known)
· set out the reasons why the voyages cannot be undertaken by a vessel operating under
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a general licence
· if the vessel is known at the time of application, evidence of registration in the
Australian General Shipping Register, Australian International Shipping Register or in
a foreign registry (if a vessel in the Australian General Shipping Register, which does
not operate under a general licence, would be used to undertake voyages for genuine
emergency situations, it needs to have an emergency licence)
· such other information prescribed by the regulations
· application fee prescribed by the regulations.
Clause 65 - Application may be varied or withdrawn
At any time before the application is decided, the applicant may vary or withdraw the
application by written notice to the Minister. If the application is withdrawn, any application
fee paid is not refundable.
Clause 66 - Deciding applications
The Minister must either grant or refuse to grant the emergency licence (subject to any
conditions the Minister may impose).
In deciding the application, the Minister may have regard to the following:
(a) whether the applicant has previously held a licence (issued under this Act) that was
cancelled;
(b) whether the applicant has been issued with an infringement notice under this Act;
(c) the object of the Act;
(d) any other matters the Minister thinks relevant--for example, whether the applicant
has held a previous licence or permit (issued under the Navigation Act 1912) that was
cancelled.
Furthermore, the Minister must not grant the emergency licence unless he or she is satisfied
that the emergency specified in the application exists.
The Minister has three business days to decide an application:
· after the date the application is made; or
· after the date the notice to vary the application is received by the Minister.
Clause 67 - Grant of emergency licence
If the Minister grants an application, the Minister must also determine the period of validity
of the emergency licence which must not be more than 30 days.
When an emergency licence is granted, the following information will be published on the
Department's website:
(a) the holder of the licence (the person to whom the licence is issued)
(b) the holder's name and business address
(c) the period of the licence
(d) any other information prescribed by the regulations.
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Clause 68 - Application taken to be granted in certain circumstances
If the Minister has not decided an application by the end of the three-business day decision
period (provided under clause 66), the application is taken to have been granted. In this case,
the emergency licence is deemed granted to be valid for 30 days.
Clause 69 - Issue of emergency licence
If the Minister decides to grant an application for an emergency licence, the Minister must, as
soon as practicable, give the applicant an emergency licence.
Even if the Minister has not made an active decision on the application but the application
was deemed approved under clause 68, the Minister is required to give, as soon as
practicable, the applicant an emergency licence.
The emergency licence must specify the following:
(a) holder of the licence (the person to whom the licence is issued)
(b) holder's business name and business address
(c) number of passengers authorised (if any) to be carried under the licence
(d) kinds and volume of cargo authorised (if any) to be carried under the licence
(e) ports at which the passengers or cargo are authorised to be taken on board (if known)
(f) 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 the conditions under clause 72
(h) any additional conditions imposed on the licence under clause 73
(i) the day the licence commences to be in force and the period of validity of the licence
(j) any other matters prescribed in the regulations.
Clause 70 - When emergency licence is in force
An emergency licence commences operation on the day specified in the licence and expires at
the end of the period specified in the licence.
Clause 71 - Refusal of application
If the Minister decides to refuse the application for emergency licence, the Minister, must as
soon as practicable, notify the applicant, in writing, of the decision and reasons for the
decision.
Subdivision B - Conditions of emergency licences
Clause 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;
(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
(c) the licence holder must comply with what is authorised by the licence
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(ca) the licence holder must comply with the notification requirements under clause 74A
(d) the licence holder must comply with the reporting requirements under clause 75
(e) the licence holder must comply with any other condition prescribed by the
regulations.
Clause 73 - Additional conditions may be imposed by Minister
The Minister may, at any time, impose an additional condition on the emergency licence,
vary or remove such condition by notifying the holder of the licence in writing.
Any additional condition imposed, including a variation of the condition, should not be
inconsistent with clause 72.
Clause 74 - Breaching condition of emergency licence
A person who contravenes a condition imposed by the Act (under clause 72) or by the
Minister (under clause 73) may be subject to a civil penalty of:
· 50 penalty units for an individual; and
· 250 penalty units for a corporation.
Clause 74A - Voyage notification requirements for emergency licences
At least two business days before the vessel is loaded to undertake a voyage, the holder of the
licence must notify the Minister, in writing, of the following:
(a) the vessel to be used to undertake the voyage;
(b) date of the voyage;
(c) number of passengers to be carried during the voyage (if any);
(d) kinds and volume of cargo to be carried during the voyage (if any);
(e) ports of loading of the passengers or cargo;
(f) ports of disembarkation of passengers or unloading of cargo.
Failure to comply with the reporting requirement may be subject to a civil penalty.
Clause 75 - Reporting requirements for emergency licences
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:
(a) name of the vessel used
(b) if passengers were carried: the number of passengers carried, dates these passengers
were carried, and the ports of loading and disembarkation of the passengers;
(c) if cargo was carried during the voyage: the kinds and volume of cargo carried, dates
when the cargo was carried, and the ports of loading and unloading of the cargo;
(d) such other information prescribed by the regulations.
The report must be given to the Department no later than 10 business days after the end of
end of the period of validity of the emergency licence.
A person who fails to comply with the reporting requirement within the required timeframe
may be liable for a civil penalty of:
· 50 penalty units for an individual; and
· 250 penalty units for a corporation.
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A copy of each report submitted under subclause 75(1) will be published on the Department's
website.
Division 4 - Miscellaneous
Clause 76 - Requests for further information - general and emergency licence
applications
Under clause 76, the Minister may, by written notice, seek further information in relation to
general and emergency licence applications. The assessment period is stopped on the day the
Minister seeks further information and resumes on the day after the Minister has notified the
applicant that the information provided is satisfactory.
To illustrate:
If the Minister sought information on 3 March (assuming this is a business day), this
day is not counted in the statutory assessment period. While the Minister awaits the
response from the applicant, the statutory assessment period continues to be
suspended. Once the Minister is satisfied with the information received, the Minister
will notify the applicant that the information is satisfactory. In this example, if the
Minister notified the applicant on 6 March that the information provided is
satisfactory, the assessment period will resume on 7 March (assuming this is a
business day).
Clause 77 - Requests for further information - temporary licence applications
If the Minister needs further information to decide an application made under clause 28, the
Minister may, by written notice, ask any or all 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.
The Minister may not request further information in relation to an application during the two-
business-day period within which a holder of a general licence may give a notice in response.
If the two-business- day period has lapsed, and no notice in response is received, the Minister
may seek further information if necessary.
Where the Minister receives a notice in response from a holder of a general licence, the
Minister may not request for further information in relation to an application while the
temporary licence applicant and the person who gave the notice in response are undertaking
negotiations under clause 32. If the temporary licence applicant failed to notify the Minister
of the outcome of the negotiations under subclause 32(2) within the required timeframe, the
Minister may seek further information after the lapse of the timeframe.
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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.
The assessment period is stopped on the day the Minister seeks further information and
resumes on the day after the Minister has notified the applicant that the information provided
is satisfactory.
Clause 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 clause 22, 41 or
73, respectively; and
(b) the licence may be cancelled under clause 25 or 59, as applicable; and
(c) the licence may be cancelled, revoked, terminated or varied 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.
This explains that a licence is granted on the basis that conditions may be imposed, varied or
removed in accordance with this Act, that the licence may be cancelled under the Act or later
legislation, and that no compensation is payable in circumstances of this kind.
Part 5 - Enforcement
Inclusion of enforcement provisions in the Bill, addresses a long standing concern about the
lack of regulatory powers to support enforcement and compliance activity.
Part 5 deals with the provisions to enforce the requirements of the Act. The enforcement
powers are:
· the power of authorised persons to require a person to give information or produce a
document or thing;
· the power of the Secretary to apply to the Federal Court or the Federal Magistrates
Court for an order against a person alleged to have contravened a civil penalty
provision;
· the power of authorised persons to investigate suspected contraventions of the
legislation, seek information and require production of documents and to issue
infringement notices.
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Division 1 - Requiring people to give information and produce documents or things
Subdivision A - Notices to give information or produce documents or things
Clause 79 - Notice to give information or produce document or thing
The Bill enables the Secretary of the Department to appoint `authorised persons' under clause
108.
Clauses 79 and 80 deal with the powers, functions and obligations of authorised persons. The
powers of authorised persons in the Act are framed in accordance with the Guide to Framing
Commonwealth Offences, Infringement Notices and Enforcement Powers.
Under clause 79, an authorised person is empowered to require a person to do any or all of
the following:
(a) give information, orally or in writing, specified in the written notice;
(b) produce the documents or things specified in the written notice;
(c) appear before the authorised person specified in the written notice to answer any
questions put by the authorised person.
The authorised person may require that information provided under paragraph (a) is verified
on oath and that answers provided under paragraph (c) is given on oath. The authorised
person is empowered under this clause to administer an oath.
Clause 80 - Department may retain documents and things
An authorised person may take possession of, and make copies of, any document or thing, or
take extracts from the document which was produced to the authorised person under clause
79.
The Department may retain possession of the document or thing for such period as necessary
for purposes listed in clause 80. While the Department retains possession of the document or
thing, it must allow a person entitled to inspect the document or view the thing to do so at the
times the person would ordinarily be able to do so, which is generally during business hours.
Subdivision B - Offence and related provisions
Clause 81 - Failure to comply with notice etc.
Clause 81 provides for penalties for failure of a person to comply, within the required
timeframe, with the requirements specified in a written notice issued by an authorised person
under clause 79.
A person who commits an offence under clause 81 may be liable to the following penalty:
30 penalty units or imprisonment for 6 months, or both.
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Clause 82 - Self-incrimination etc.
The right against self-incrimination is not an excuse for a person not to:
(a) give information; or
(b) produce a document or thing; or
(c) answer a question asked by an authorised person
in relation to a notice under clause 79.
However, in the case of an individual, none of the following:
(a) the information or answer given;
(b) the document or thing produced;
(c) the giving of the information or the answer, or the producing 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 criminal proceedings (except the proceedings listed
in clause 82) or in civil proceedings for a contravention of a civil penalty provision.
Clause 79 of the Bill empowers an authorised person to require a person to give information,
produce documents or things specified in the notice, or appear before an authorised person to
answer questions. Under subclause 82(1), a person may not refuse to produce the
information or documents or answer questions because it might incriminate them or expose
them to penalty. Subclause 82(1) is only a partial abrogation of the privilege against self-
incrimination. The partial abrogation by subclause 82(1) of the privilege against self-
incrimination has been included to ensure an authorised person is able to seek relevant
information or require the production of documents or things necessary to determine whether
there is a contravention of the requirements of the legislation. The type of information
expected to be requested under clause 79 might typically not be available from persons other
than licence holders or associated parties and it is important that relevant information can be
obtained to ensure the effective administration of the Bill.
Division 2 - Civil penalty provisions
Clause 83 - Engaging in coastal trading without licence
If a vessel is used to engage in coastal trading without the relevant licence, the owner,
charterer, shipper, master and/or agent of the vessel may be subject to a civil penalty of up to
300 penalty units (for an individual) or 1,500 penalty units (for a body corporate).
Clause 84 - Breaching condition of exemption - vessels
If a condition is attached to a vessel that is subject to an exemption under clause 11 and such
condition is breached, the owner and master of the vessel may be subject to civil penalty of
up to 300 penalty units (for an individual) or 1,500 penalty units (for a body corporate).
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Clause 85 - Breaching condition of exemption - persons
If a person who is subject to an exemption under clause 11 breaches a condition of the
exemption, that person may be subject to a civil penalty of up to 300 penalty units (for an
individual) or 1,500 penalty units (for a body corporate).
Division 3 - Civil penalty proceedings
Subdivision A - Obtaining a civil penalty order
Clause 86 - Civil penalty orders
The civil penalty scheme allows the Secretary of the Department administering the legislation
or a delegate to apply to the Federal Court or the Federal Magistrates Court for an order that a
person must pay the Commonwealth a pecuniary penalty for contravening a civil penalty
provision.
The Secretary must make the application within six years of the alleged contravention.
The civil penalty scheme is designed to encourage compliance with the legislative
requirements without resorting to criminal prosecution. Contraventions of a civil penalty
provision must be proved on the balance of probabilities in a court. If a court is satisfied that
a person has contravened the civil penalty provision, the court may order the person to pay
the Commonwealth such amount (pecuniary penalty) as the court determines to be
appropriate.
Subclause 86(5) lists the matters which the court may take into account in determining the
pecuniary penalty. This list is non-exhaustive.
Clause 87 - Civil enforcement of penalty
A pecuniary penalty, imposed by a court on a person for contravention of a requirement
under the Act, is a debt payable to the Commonwealth. 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. The debt arising from the order is taken to be a judgement debt.
Clause 88 - Conduct contravening more than one civil penalty provision
If a person contravenes two or more civil penalty provisions, proceedings may be instituted
against that person in relation to one or more of those provisions. A person may be ordered
to pay two or more pecuniary penalties - one for each contravention. However, a person may
not be ordered to pay more than one pecuniary penalty for the same conduct.
Clause 89 - Multiple contraventions
A court may make a single 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.
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Clause 90 - Proceedings may be heard together
A court may direct that two or more proceedings relating to a contravention, or proposed
contravention, of a civil penalty provisions be heard together.
Clause 91 - Civil evidence and procedure rules to apply
The rules of evidence and procedure for civil matters must be applied by the relevant court
when hearing and determining an application for alleged contravention of a civil penalty
provision.
Clause 92 - Contravening a civil penalty provision is not an offence
Contravening a civil penalty provision is not an offence. The burden of proof is not `proof
beyond reasonable doubt'. The civil penalty is not a criminal punishment. It is a monetary
penalty to compensate the Commonwealth for committing a breach of the law.
Subdivision B - Miscellaneous
Clause 93 - Ancillary contravention of civil penalty provisions
A person who does any of the following conduct in relation to a civil penalty provision is
taken to have contravened the provision:
(a) attempts to contravene a civil penalty provision;
(b) aids, abets, counsels or procures a contravention of a civil penalty provision;
(c) induces (by threats, promises or otherwise) a contravention of a civil penalty
provision;
(d) be in any way, directly or indirectly, knowingly concerned in, or party to, a
contravention of a civil penalty provision; or
(e) conspires with others to effect a contravention of a civil penalty provision.
A note in this clause indicates that a person's state of mind (as provided for in clause 112)
needs to be proven in proceedings relating to any of the above conduct.
Clause 94 - Continuing contraventions of civil penalty provisions
This is a standard provision in Commonwealth statutes relating to an act or thing being
required to be done within a particular period or before a particular time. A person who
contravenes a civil penalty provision that requires an act or thing to be done within a
particular period or before a particular time commits a separate contravention of that
provision in respect of each day during which the contravention occurs.
Clause 95 - Mistake of fact
Mistake of fact is a defence against an allegation of contravention of a civil penalty provision.
The person who wishes to rely on mistake of fact as a defence bears the evidential burden of
proof in relation to that matter. This means that the person has to adduce or point to evidence
that suggests a reasonable possibility that the matter exists or does not exist.
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Clause 96 - State of mind
In proceedings for alleged contravention of a civil penalty provision [other than subclause
109(1)], it is necessary to prove the state of mind of the person which may include the
person's intention, knowledge, recklessness, or negligence.
This clause, however, does not affect the operation of clause 95 on mistake of fact.
Clause 97 - Civil penalty provisions contravened by employees, agents or officers
This provision concerns the liability of a body corporate for an action done by an employee,
agent or officer of the body corporate acting within the actual or apparent scope of his/ her
employment, or within his/ her actual or apparent authority.
Clause 98 - Civil penalty provisions contravened by executive officers
This provision imposes a civil penalty on an executive officer of a corporation who knew that
the corporation would contravene a civil penalty provision and the officer, who was in a
position to influence the conduct of the corporation, failed to take all reasonable steps to
prevent the contravention.
Clause 99 - Establishing whether an executive officer took reasonable steps to prevent
the contravention of a civil penalty provision
This clause provides for the matters which a court is to have regard to in determining whether
an executive officer of a corporation failed to take all reasonable steps to prevent the
contravention of a civil penalty provision. The list in subclause 99(1) does not limit the
generality of clause 98.
Division 4 - Infringement notices
This Division establishes that an authorised person can give infringement notices when he or
she has reasonable grounds to believe a person has contravened an `enforceable provision'.
Clause 100 provides that a civil penalty provision is enforceable.
The infringement notice scheme is designed to encourage compliance with the legislative
requirements, without resorting to civil penalty proceedings in a court. Failure to pay the
amount specified in an infringement notice may lead to civil penalty proceedings.
The infringement notice scheme is drafted consistently with the requirements of Chapter 6 of
A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Officers.
Clause 100 - Enforceable provisions
A civil penalty provision is enforceable under this Division. This means that an authorised
person may issue an infringement notice for a contravention of a civil penalty provision but
not for an offence provision contained in Part 5.
47
Clause 101 - When an infringement notice may be given
If an authorised person has reasonable grounds to believe that a person has contravened a
civil penalty provision, the authorised person may give the person an infringement notice for
the alleged contravention.
If the person pays the penalty contained in the infringement notice, the person is immune
from a potential court proceeding for the alleged contravention.
The infringement notice must be given within 12 months after the day the contravention is
alleged to have taken place. The requirement that a notice must be issued within 12 months
of the alleged contravention is a standard provision in most Commonwealth laws containing
an infringement notice scheme.
Clause 102 - Matters to be included in an infringement notice
This clause sets out matters that must be included in an infringement notice. These matters
include information that will help to identify the particular infringement notice, the relevant
authorised officer, the person the infringement notice is issued to, and the circumstances of
the alleged infringement. Other information that is required includes details about the
recipient's rights in dealing with the infringement notice including how and when to pay,
avenues to appeal the notice, and circumstances when the infringement notice might be
withdrawn.
It is important to note that payment of the amount stated in the infringement notice is not an
admission of guilt. The recipient of the infringement notice may write to the Secretary of the
Department to seek withdrawal of the notice. If the recipient of the notice chooses not to pay
the amount, proceedings seeking a penalty order may be brought in relation to the
contravention.
Clause 103 - Extension of time to pay amount
This clause provides that the recipient of an infringement notice may apply to the Secretary
of the relevant Department for an extension to pay an infringement notice penalty, and the
Secretary may grant an extension at their discretion as many times as they see fit. If the
Secretary does not grant the extension, the recipient will still have at least seven days to pay
the penalty, following notice of the Secretary's decision.
A decision made by the Secretary under this clause is not reviewable by an external merits
review, as the decision to issue an infringement notice itself is not subject to external merits
review, and the Secretary's decision is not a final determination of rights.
Clause 104 - Withdrawal of an infringement notice
This clause provides that a person can make written representations requesting that the
Secretary of the relevant Department withdraw an infringement notice.
48
The Secretary may withdraw an infringement notice at his or her discretion, whether or not
the person has made written representations. In making that decision, the Secretary must take
into account the applicant's written representations (if any), and may also consider other
factors including the circumstances of the alleged contravention, any prior contraventions and
any other matter considered relevant.
The person must be advised in writing of any withdrawal. The withdrawal notice must
include details which will identify the person and the infringement notice. The withdrawal
notice must state that proceedings may be instituted against the person concerned. If a
penalty has already been paid under the notice, it must be refunded to the person concerned.
A decision made by the Secretary under this clause is not reviewable by an external merits
review, as the decision to issue an infringement notice itself is not subject to external merits
review, and the Secretary's decision is not a final determination of rights.
Clause 105 - Effect of payment of amount
This clause provides that if a person pays the amount of an infringement notice penalty and
the infringement notice is not withdrawn, then any liability for the contravention is
discharged. No court proceedings may be brought against the person for the same conduct.
Payment of the infringement notice penalty is not considered as admission of guilt by the
concerned person.
However, if the infringement notice has been withdrawn, court proceedings seeking a civil
penalty order may be brought against the concerned person for the alleged contravention.
Clause 106 - Effect of this Division
This clause clarifies the effect of the requirements under Division 4, Part 5 on infringement
notices, in order to ensure compliance with Chapter 6 of A Guide to Framing Commonwealth
Offences, Civil Penalties and Enforcement Powers.
In particular, this clause provides that infringement notices are not required for any alleged
contravention of a civil penalty provision, and are issued at the discretion of the authorised
officer.
It also provides that the availability of infringement notices does not affect the liability of a
person for an alleged contravention of a civil penalty provision, unless the recipient pays the
infringement notice penalty (in which case, any liability of the person for the alleged
contravention is discharged). In particular, if a person is not given an infringement notice, or
if given a notice but he or she does not comply with it or the notice is subsequently
withdrawn, the person's liability for an alleged contravention is not affected (which means
court proceedings to seek a civil penalty order may be brought against the person).
The availability of infringement notices does not limit a court's discretion in setting penalty
amounts if a person is found to have contravened a civil penalty provision.
49
The Division allows the giving of two or more infringement notices for an alleged
contravention of a civil penalty provision.
In addition, no part of the infringement notice scheme limits the number of infringement
notices that may be given to a person. An authorised officer may give a person two or more
infringement notices in relation to a single contravention.
Part 6 - Miscellaneous
Division 1 - Review of decisions
Clause 107 - Review by the Administrative Appeals Tribunal
This clause provides that an application may be made to the Administrative Appeals Tribunal
(AAT) for review of certain decisions under the Act. These decisions are reviewable by the
AAT:
· a decision by the Minister refusing to exempt a particular vessel or person under
clause 11;
· a decision to grant an exemption subject to conditions, which is granted under clause
11.
AAT review of the above decisions is consistent with previous arrangements as provided in
clause 377L of the Navigation Act 1912. A decision to grant an exemption, without
conditions, is not subject to merits review.
Further, the following decisions may also be subject to AAT review:
· a decision under clause 12 refusing to make a declaration in relation to a vessel;
· a decision to cancel a general licence;
· a decision to cancel a temporary licence.
For decisions listed in subclause 107(1), any affected person may seek review by the AAT
within the period allowed under the Administrative Appeals Tribunal Act 1975.
The following decisions may also be brought to the AAT for merits review by the persons
specified in the clause:
· a decision to refuse an application for a temporary licence - only the person who made
the application may seek review [subclause 107 (2)];
· a decision to refuse an application for a variation of a temporary licence under clause
51 - only the person who made the application may seek review [subclause 107 (3)];
· a decision to grant a temporary licence - the holder of a general licence who gave a
notice in response in relation to the application may seek review [paragraph 107
(4)(a)];
· where no active decision was made and the application was deemed approved under
clause 36 - the holder of a general licence who gave a notice in response in relation to
the application may seek review [paragraph 107 (4)(b)];
· a decision to grant a variation of a temporary licence - the holder of a general licence
who gave a notice in response in relation to the application may seek review
[paragraph 107 (5)(a)];
· where no active decision was made and the application for variation was deemed
50
approved under clause 56 - the holder of a general licence who gave a notice in
response in relation to the application may seek review [paragraph 107 (5)(b)].
For the matters listed in subclauses 107 (2), (3), (4) and (5), the period for making an
application is 20 business days after the relevant person was notified of the decision.
Transport of cargo or passengers made under a valid licence pending AAT review
A couple of `notes' are inserted in clause 107 to alert readers that a decision under review
continues to operate during the review process by the AAT.
The legislative intent is to ensure that any application for review by the AAT does not disrupt
the supply chain or the movement of goods and passengers pending decision by the AAT.
This means that a valid temporary licence granted by the Minister, but has been made subject
of an appeal to the AAT, may continue to be used to enable a vessel to carry cargo (or
passengers) while the licence is still under review. In the event such temporary licence was
invalidated by the AAT, the AAT decision does not invalidate the movement of the relevant
cargo (or passengers) made under the temporary licence while it was still valid.
Division 2 - Appointment of authorised persons etc.
Clause 108 - Appointment of authorised persons
The Secretary of the Department may appoint any of the following as `authorised person':
(a) a person engaged under the Public Service Act 1999; or
(b) a staff member of the Australian Maritime Safety Authority.
The Secretary has to be satisfied that the person to be appointed as an `authorised person' has
suitable qualifications and experience to properly exercise the powers of an authorised
person.
The Secretary may issue directions to an authorised person and an authorised person is
required to comply with the Secretary's directions.
The Secretary's direction (given to an authorised person) is not a legislative instrument
within the meaning of clause 5 of the Legislative Instruments Act 2003.
Clause 109 - Identity cards
The Secretary must issue an identity card to each authorised person appointed. The identity
card must be in a form approved by the Secretary and contain a recent photograph of the
authorised person.
A person who is no longer an authorised person must return his/her identity card to the
Secretary, as soon as practicable after ceasing to be an authorised person. A person commits
an offence for failure to return the relevant identity card. However, no offence is committed
if the identity card was lost or destroyed.
An authorised person is required to carry his/her identity card at all times when exercising the
powers as an authorised person.
51
Division 3 - Disclosure of information
Clause 110 - Disclosure of information by the Secretary
This clause allows the Secretary of the Department to share information or document with the
Minister or the head of a Commonwealth agency or a Commonwealth authority. This
provision implements the Government's policy intention to ensure relevant Commonwealth
agencies are able to share information to ensure the requirements of this Act are complied
with or being enforced. For example, information may have to be shared with the Australian
Customs and Border Protection Service (Customs), the Department of Immigration and
Citizenship (DIAC), and the Australian Maritime Safety Authority (AMSA). Customs and
DIAC, under their respective legislation, are allowed to disclose relevant information to other
government agencies. In relation to AMSA, a consequential amendment to the Australian
Maritime Safety Authority Act 1990 will be made to ensure that AMSA would be able to give
to the Secretary of the Department information for the purpose of administering or enforcing
the requirements of this Act.
Consistent with privacy principles and the right of companies to be protected from
unnecessary disclosure of commercial-in-confidence information, this clause also ensures that
the disclosure of information by the Secretary is subject to the conditions set out in subclause
110(2) and (3).
Division 4 - Miscellaneous
Clause 111 - Delegation
The Minister may delegate any of his/her powers or functions under this Act, except the
power to provide an exemption under clause 11, to an SES or acting SES employee of the
Department.
The Secretary likewise may delegate any of his/her powers or functions under this Act to an
SES or acting SES employee of the Department.
The delegation instrument must be in writing.
Clause 112 - Customs treatment of certain vessels
The intention is that vessels operating in Australian coastal waters under a temporary or an
emergency licence are not imported into Australia for the purposes of the Customs Act 1901
only because it is operating under a temporary licence or an emergency licence.
Clause 113 - Regulations
This clause provides for a general regulation-making power.
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