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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MARINE SAFETY (DOMESTIC COMMERCIAL VESSEL) LEVY BILL 2018
MARINE SAFETY (DOMESTIC COMMERCIAL VESSEL) LEVY COLLECTION
BILL 2018
MARINE SAFETY (DOMESTIC COMMERCIAL VESSEL) LEVY
(CONSEQUENTIAL AMENDMENTS) BILL 2018
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Regional Development, Territories and Local
Government, the Hon Dr John McVeigh MP)
MARINE SAFETY (DOMESTIC COMMERCIAL VESSEL) LEVY BILL 2018
MARINE SAFETY (DOMESTIC COMMERCIAL VESSEL) LEVY COLLECTION
BILL 2018
MARINE SAFETY (DOMESTIC COMMERCIAL VESSEL) LEVY
(CONSEQUENTIAL AMENDMENTS) BILL 2018
OUTLINE
The purpose of the Bills is to impose a levy on certain domestic commercial vessels. The
Bills also address related matters, such as collection of the levy, and make changes to existing
laws that are necessary as a result of the creation of this levy.
Background
Since 1 July 2013, the National System for Domestic Commercial Vessel Safety (national
system) has regulated maritime safety requirements for 27,000 vessels and 66,000 seafarers
under the Marine Safety (Domestic Commercial Vessel) National Law Act 2012. Since the
commencement of the national system, the states and Northern Territory have delivered
national system services on behalf of the Australian Maritime Safety Authority (AMSA) as
the National Marine Safety Regulator.
However, from 1 July 2018, AMSA will deliver all national system services, including the
certification of vessels and seafarers and ensuring they comply with safety standards; the
states and Northern Territory will cease delivery of services at this time. This change in
service delivery arrangements will implement decisions of the Council of Australian
Governments' Transport and Infrastructure Council and the Australian Government, and will
realise safety, productivity and efficiency benefits by creating a truly national system.
The levy imposed by these Bills will ultimately recover AMSA's costs of delivering services
under the National System for Domestic Commercial Vessel Safety (national system). No
levy will be charged to industry in the first year of AMSA's service delivery to ensure fair
and equitable treatment of all operators as charging arrangements are standardised and
services transition across Australia. Levy charges will then increase gradually.
The levy will ultimately be AMSA's primary funding source for safety services under the
national system, including development and maintenance of safety standards, safety education
and support, compliance and enforcement activities, and administrative support.
New Acts of Parliament
The Bills will create two new Acts of Parliament.
The Marine Safety (Domestic Commercial Vessel) Levy Act will:
impose an annual levy on defined vessels;
define persons liable to pay this levy in respect of a leviable vessel; and
provide that the Minister may make rules to set the amount of levy after seeking
advice from the Australian Maritime Safety Authority (AMSA).
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The Marine Safety (Domestic Commercial Vessel) Levy Collection Act will:
define when the levy is due and payable for both full-year and pro-rata
circumstances;
provide that the levy may be paid by instalment;
create a late payment penalty;
address administrative matters including that the levy may be paid in advance and
that overpayments of the levy, instalments of the levy, or penalties must be refunded;
provide that the Minister may make rules about matters prescribed or required by this
Act, and
provide that the Minister may make rules about matters necessary or convenient to
carry out or give effect to this Act.
The Bills will also amend existing laws:
Amendments to the Australian Maritime Safety Authority Act 1990 will expand
existing provisions addressing payment of levies to AMSA to include payments under
the new domestic commercial vessel levy to AMSA.
Amendments to the Marine Navigation (Regulatory Functions) Levy Collection Act
1991 will clarify that leviable domestic commercial vessels are exempt from the
Marine Navigation (Regulatory Functions) Levy.
Amendments to the Marine Safety (Domestic Commercial Vessel) National Law Act
2012 will expand AMSA's existing powers to suspend or revoke certificates of survey
or detain a domestic commercial vessel to allow AMSA to exercise these powers in
response to non-payment of an amount or instalment of the new domestic commercial
vessel levy.
Financial impact statement
AMSA's costs of delivering services under the national system from 1 July 2018 will be met
through a combination of transition funding by governments, fees for services paid by
individuals, and a gradual phasing in of this levy on Australia's domestic commercial vessel
fleet. Costs and charging arrangements for AMSA's delivery of the national system have
been agreed by the Australian Government and comply with the Australian Government
Charging Framework.
Transition funding provided by governments will allow the levy for the national system to be
phased in gradually to allow time for industry to adjust and prepare for changes to service
delivery and charging arrangements. On 6 December 2017, the Transport and Infrastructure
Council announced a $102.4 million package to be provided jointly by the Commonwealth,
states and Northern Territory. This package responds to industry feedback received through
consultation in 2016 by increasing the level of government funding over the next 10 years
from $10 million to over $100 million to support industry and ease transition to new
arrangements.
No levy will be charged to industry in the first year of AMSA's service delivery to ensure fair
and equitable treatment of all operators as charging arrangements are standardised and
services transition across Australia. Levy charges will then increase gradually.
The levy will ultimately be AMSA's primary funding source for safety services under the
national system, including development and maintenance of safety standards, safety education
and support, compliance and enforcement activities, and administrative support.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Marine Safety (Domestic Commercial Vessel) Levy Bill 2018
Marine Safety (Domestic Commercial Vessel) Levy Collection Bill 2018
Marine Safety (Domestic Commercial Vessel) Levy (Consequential Amendments)
Bill 2018
These Bills are compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill/Legislative Instrument
The purpose of the Bills is to impose a levy on certain domestic commercial vessels. The
Bills also address related matters, such as collection of the levy, and make changes to existing
laws that are necessary as a result of the creation of this levy.
Background
Since 1 July 2013, the National System for Domestic Commercial Vessel Safety (national
system) has regulated maritime safety requirements for 27,000 vessels and 66,000 seafarers
under the Marine Safety (Domestic Commercial Vessel) National Law Act 2012. Since the
commencement of the national system, the states and Northern Territory have delivered
national system services on behalf of the Australian Maritime Safety Authority (AMSA) as
the National Marine Safety Regulator.
However, from 1 July 2018, AMSA will deliver all national system services, including the
certification of vessels and seafarers and ensuring they comply with safety standards; states
and the Northern Territory will cease delivery of services at this time. This change in service
delivery arrangements will implement decisions of the Council of Australian Governments'
Transport and Infrastructure Council and the Australian Government, and will realise safety,
productivity and efficiency benefits by creating a truly national maritime safety regulator.
The levy imposed by these Bills will ultimately recover a portion of AMSA's costs delivering
services under the National System for Domestic Commercial Vessel Safety (national
system). No levy will be charged to industry in the first year of AMSA's service delivery to
ensure fair and equitable treatment of all operators as charging arrangements are standardised
and services transition across Australia. Levy charges will then increase gradually.
The levy will ultimately be AMSA's primary funding source for safety services under the
national system, including development and maintenance of safety standards, safety education
and support, compliance and enforcement activities, and administrative support.
New Acts of Parliament
The Bills will create two new Acts of Parliament.
The Marine Safety (Domestic Commercial Vessel) Levy Act will:
impose an annual levy on defined vessels;
4
define persons liable to pay this levy in respect of a leviable vessel; and
provide that the Minister may make rules to set the amount of levy after seeking
advice from the Australian Maritime Safety Authority (AMSA).
The Marine Safety (Domestic Commercial Vessel) Levy Collection Act will:
define when the levy is due and payable for both full-year and pro-rata
circumstances;
provide that the levy may be paid by instalment;
create a late payment penalty;
address administrative matters including that the levy may be paid in advance and
that overpayments of the levy, instalments of the levy, or penalties must be refunded;
provide that the Minister may make rules about matters prescribed or required by this
Act, and
provide that the Minister may make rules about matters necessary or convenient to
carry out or give effect to this Act.
The Bills will also amend existing laws:
Amendments to the Australian Maritime Safety Authority Act 1990 will expand
existing provisions addressing payment of levies to AMSA to include payments under
the new domestic commercial vessel levy to AMSA.
Amendments to the Marine Navigation (Regulatory Functions) Levy Collection Act
1991 will clarify that leviable domestic commercial vessels are exempt from the
Marine Navigation (Regulatory Functions) Levy.
Amendments to the Marine Safety (Domestic Commercial Vessel) National Law Act
2012 will expand AMSA's existing powers to suspend or revoke certificates of survey
or detain a domestic commercial vessel to allow AMSA to exercise these powers in
response to non-payment of an amount or instalment of the new domestic commercial
vessel levy.
Human rights implications
These Bills engage human rights without imposing unacceptable limitations.
The safety regulation of domestic commercial vessel activity is not new and regulation has
occurred under state and territory legislation for some time. Owners and masters of domestic
commercial vessels are aware that the safety requirements pertaining to domestic commercial
vessels are subject to regulatory oversight, and by applying for permissions to operate as a
commercial vessel they are implicitly accepting their compliance with the regulatory
requirements will be monitored.
Penalty provisions in these Bills expand compliance requirements to include timely payment
of the levy. The levy will ultimately be the primary source of funding for the regulation and
provision of safety services by AMSA to Australia's domestic commercial vessel industries
from 1 July 2018.
Marine Safety (Domestic Commercial Vessel) Levy Bill 2018
The Levy Bill engages Article 7 of the International Covenant on Economic, Social and
Cultural Rights, which recognises the right of everyone to the enjoyment of just and
favourable conditions of work, including safe and healthy working conditions.
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The Levy Bill imposes a levy on defined domestic commercial vessels that will ultimately
fund AMSA to deliver safety services to Australia's domestic commercial vessel industries
under the national system, in combination with fees for services.
The levy will ultimately be AMSA's primary funding source for safety services under the
national system, including development and maintenance of safety standards, safety education
and support, compliance and enforcement activities, and administrative support.
On this basis, the Levy Bill is compatible with human rights and supports and protects the
right to safe and healthy working conditions for Australia's domestic commercial vessel
industries.
Marine Safety (Domestic Commercial Vessel) Levy Collection Bill 2018
The Collection Bill engages Article 14 International Covenant on Civil and Political Rights,
which provides that every person shall have the right to a fair and public hearing by a
competent, independent and impartial tribunal established by law, and the right to be
presumed innocent until proven guilty according to law.
The Collection Bill creates a penalty for late payment of the levy. Section 10 of the
Collection Bill provides a range of safeguards to ensure the penalty is proportionate and does
not unduly limit human rights, including that:
the penalty is limited to 20 per cent per annum of the assessed levy;
AMSA may remit the penalty if AMSA is satisfied a person did not contribute to the
delay in payment or has taken reasonable steps to mitigate the causes of delay;
should AMSA decide to refuse to remit all or part of a penalty in response to an
application, AMSA must give written notice of the decision to the applicant; and
applications may be made to the Administrative Appeals Tribunal for review of a
decision of AMSA to refuse to remit all or part of a penalty.
Further, section 11 of the Collection Bill requires AMSA to pursue non-payment of the levy
and/or late payment penalty through the courts. It is envisaged that pursuit of amounts of levy
through the courts would only be a last resort, following failure of a range of other deterrents
to non-payment that will be available1 to AMSA, including show cause notices, suspension or
revocation of safety certification, or detention of a vessel.
On this basis, the levy Collection Bill is compatible with human rights because, to the extent
that it may limit human rights, those limitations are reasonable, necessary and proportionate
to the objective of protecting revenue to adequately fund AMSA to regulate and provide
safety services to Australia's domestic commercial vessel industries.
Marine Safety (Domestic Commercial Vessel) Levy (Consequential Amendments) Bill 2018
The Consequential Amendments Bill also engages Article 14 International Covenant on Civil
and Political Rights.
The Consequential Amendments Bill expands AMSA's existing powers to suspend or revoke
certificates of survey under sections 41 and 42 of the Marine Safety (Domestic Commercial
1
Expansion of AMSA's existing powers of under the national law to suspend or revoke certificates or detain domestic
commercial vessels is addressed in explanatory notes on the Marine Safety (Domestic Commercial Vessel) Levy
Consequential Amendments Bill.
6
Vessel) National Law Act 2012 (national law) to allow AMSA to exercise these powers in
response to non-payment of an amount or instalment of the domestic commercial vessel levy.
However, the Bill also expands existing safeguards at section 72 of the national law, which
require AMSA to issue a 'show cause notice' before suspending or revoking a certificate.
This provision ensures certificate holders are given notice in writing that they are invited to
show cause, within a reasonable period specified in the notice, why the certificate should not
be suspended or revoked.
Further, existing safeguards under section 139 of the national law will be expanded to define
decisions of AMSA to suspend or revoke a certificate in response to non-payment of the levy
are as 'reviewable decisions' under the national law. This will allow applications to be made
to AMSA and then, if required, the Administrative Appeals Tribunal to review such decisions.
Similarly, the Consequential Amendment s Bill also expands existing powers of marine safety
inspectors to detain a domestic commercial vessel to allow these powers to be exercised in
response to non-payment of an amount or instalment of the domestic commercial vessel levy.
The power to detain a vessel in response to non-payment of a levy is consistent with existing
powers under the existing levy legislation that funds all AMSA's activities promoting
maritime safety and protection the marine environment. These powers are specified at:
section 10 of the Marine Navigation Levy Collection Act 1989
section 9 of the Marine Navigation (Regulatory Functions) Levy Collection Act 1991
section 12 of the Protection of the Sea (Shipping Levy Collection) Act 1981
The amendments ensure the power for a marine safety inspector to detain a vessel is
proportionate and does not unduly limit human rights because the amendments also provide
that a vessel is to be released from detention when the amount is paid.
Again, existing safeguards under section 139 of the national law will be expanded to define
decisions of a marine safety inspector to detain a vessel in response to non-payment of the
levy as 'reviewable decisions' under the national law, allowing applications to be made to
AMSA and then, if required, the Administrative Appeals Tribunal to review such decisions.
On this basis, the Consequential Amendment Bill is compatible with human rights because,
to the extent that it may limit human rights, those limitations are reasonable, necessary and
proportionate to the objective of protecting revenue to adequately fund AMSA to regulate and
provide safety services to Australia's domestic commercial vessel industries.
Conclusion
These Bills are compatible with human rights because, to the extent that the Bills may limit
rights to a fair hearing or the presumption of innocence, those limitations are reasonable,
necessary and proportionate to the objective of protecting revenue to adequately fund AMSA
to regulate and provide safety services to Australia's domestic commercial vessel industries.
Further, the objective of the Bills supports and protects the right to safe and healthy working
conditions for Australia's domestic commercial vessel industries.
Minister for Regional Development, Territories and Local Government,
the Hon Dr John McVeigh MP
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NOTES ON CLAUSES
These notes explain clauses of the Marine Safety (Domestic Commercial Vessel) Levy Act
2018, the Marine Safety (Domestic Commercial Vessel) Levy Collection Act 2018, and the
Marine Safety (Domestic Commercial Vessel) Levy (Consequential Amendments) Act 2018.
For clarity, these will be referred to as the Levy Act, the Levy Collection Act, and the
Consequential Amendments Act.
Clause 1: Short Title
1. This is a formal provision that specifies:
i. the Levy Act may be cited as the Marine Safety (Domestic Commercial Vessel)
Levy Act 2018;
ii. the Levy Collection Act may be cited as the Marine Safety (Domestic Commercial
Vessel) Levy Collection Act 2018; and
iii. the Consequential Amendments Act may be cited as the Marine Safety (Domestic
Commercial Vessel) Levy (Consequential Amendments) Act 2018.
Clause 2: Commencement
2. This clause sets out when parts of each Act enter into legal force:
i. the whole of the Levy Act would commence the day after the Levy Act receives
Royal Assent.
ii. Clauses 3 to 20 of the Levy Collection Act and Schedule 1 of the Consequential
Amendments Act commence at the same time the Levy Act commences because
these clauses are necessary to give full effect to the levy imposed by the Levy Act.
However, these clauses can only function effectively once the Levy Act
commences. Accordingly, in the event the Levy Act did not commence, these
interdependent clauses also would not commence.
iii. the remainder of the Levy Collection Act and the Consequential Amendments Act
commence the day after those Acts receive Royal Assent;
SCHEDULE 1 - Marine Safety (Domestic Commercial Vessel) Levy Act 2018
Section 3 - Definitions
3. The items listed are defined for clarity, to give effect to the levy, or to align the levy with
the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (national law).
The national law provides the legal framework for the National System for Domestic
Commercial Vessel Safety (the national system) which regulates safety for domestic
commercial vessels.
'AMSA' means the Australian Maritime Safety Authority.
'certificate of survey' has the same meaning as in the national law.
'domestic commercial vessel' has the same meaning as in the national law.
8
'eligible financial year' means:
(a) the financial year beginning on 1 July 2019, because this is when levy charging
is expected to commence. As a result of transition funding by governments no
levy will be charged during the financial year commencing 1 July 2018, when
AMSA assumes full responsibility for the national system or
(b) a later financial year, this refers to all years after the 2019-20 financial year.
'leviable domestic commercial vessel' has the meaning given by section 4 of the Levy
Act.
'Marine Safety (Domestic Commercial Vessel) National Law' has the meaning given by
section 17 of the national law.
'National Standard for Commercial Vessels' has the same meaning as in the national
law.
'owner' of a vessel has the same meaning as in the national law.
'partnership' has the same meaning as in the national law.
'trust' has the same meaning as in the national law.
'trustee' has the same meaning as in the national law.
'Uniform Shipping Laws code' has the same meaning as in the national law.
'vessel' has the same meaning as in the national law.
Section 4 - Leviable domestic commercial vessel
4. This section creates a definition of 'leviable domestic commercial vessel', and creates a
specific power for the Minister to make rules that exempt particular groups of vessels
from this definition after consulting with AMSA.
5. In effect, this will mean any vessel defined as a 'domestic commercial vessel' under the
national law will be liable to pay the levy unless the Minister creates an exemption.
Sections 5 and 6 - Extension to external Territories and extraterritorial operation
6. These clauses clarify the levy will apply to leviable domestic commercial vessels
regardless of whether they are located in Australia, an external territory, or outside
Australia.
7. This ensures vessels that will receive the benefits of regulation under the national system
will accordingly pay their share of costs through the levy.
8. These sections ensure vessels cannot avoid their legal obligation to pay the levy by
relocating away from Australia at the time the levy becomes payable, then return to
Australia and enjoy the benefits of the national system without payment.
9
Section 7 - Act to bind Crown
9. This is a technical legal provision which defines how the levy will be applied to the
Commonwealth, states and territories.
10. Some domestic commercial vessels may be used in connection with government activities.
Such vessels will be liable to pay the levy, except where the Constitution precludes this.
The Commonwealth cannot technically charge itself, so a provision for 'notional
payments' will be created (see notes on clauses of the Collection Act).
Section 8 - Imposition of levy
11. This section provides that, in general, the levy will be imposed annually at the start of a
financial year (on 1 July) in respect of the following 12 month period.
12. However, if a vessel becomes a leviable domestic commercial vessel part-way through a
financial year, it will be liable to pay an amount of levy proportionate to the remainder of
the financial year.
13. A vessel may not be a leviable domestic commercial vessel until after 1 July, when the
levy would become payable, if:
i. it does not exist until after 1 July - for example, if a vessel under construction was
completed after 1 July and then became a leviable domestic commercial vessel; or
ii. a vessel did not meet the definition of a leviable domestic commercial vessel until
after 1 July - for example, if:
a vessel that was exempt from the levy on 1 July ceased to meet the criteria
for that exemption, or
if a vessel did not meet the definition of a leviable domestic commercial
vessel until after 1 July: for example, if a recreational vessel, such as a jet
ski for purely private use, was later used in a commercial hire-and-drive
setting, making it subject to regulation under the national system and liable
to pay the levy.
14. If a vessel that pays the 'pro-rata' levy in a particular year is still a leviable domestic
commercial vessel on 1 July of the following financial year, it would then be liable to pay
the full-year levy.
Section 9 - Amount of levy
15. This section provides the Minister with a specific power to make rules to set, and later
adjust, the rate of the levy. Which is consistent with similar levies, such as the Marine
Navigation Levy and the Marine Navigation (Regulatory Functions) Levy.
16. Providing the Minister with power to set and adjust the rate of levy also creates flexibility
for the rate of a levy to be adjusted in response to changing circumstances - for example,
should an increase in efficiency of services warrant an adjustment.
10
17. This section also provides the formula for calculating the amount of a pro-rata levy if
required, and specifies the amount calculated using this formula will be rounded to the
nearest whole dollar.
Sections 9 and 10 - Advice by AMSA
18. Sections 9 and 10 together create a safeguard intended to ensure the levy charged to
Australia's domestic commercial vessel industry recovers the full cost of AMSA
delivering the safety services and activities.
19. In effect, the Minister must seek and have regard to AMSA's advice regarding appropriate
cost recovery arrangements before making rules about the rate of levy.
20. This will ensure the levy charges remains appropriate over time, and can respond in a
timely manner to changing circumstances such as the size of the domestic commercial
vessel fleet, changes in demand for services, or changes in AMSA's activity costs.
21. Section 10, Subsection (2) explicitly excludes from the calculation of levy any services or
activities that are to be recovered by charging fees to individuals for services - for
example, certification of vessel survey or seafarer certification. This ensures activity costs
and charges under the levy and fees remain separate so that industry will not be charged
twice for the same activity or service.
22. Section 10, subsections 4 and 5 empower the Minister to make rules to exclude activities
or amounts of funding from the levy calculations. This is a critical mechanism that will
allow implementation of transition funding arrangements announced by the Transport and
Infrastructure Council on 6 December 2017. This mechanism will also allow the Minister
to not charge the levy in the first year and then introduce levy charges gradually from
1 July 2019 by excluding the amount of government transition funding from levy
calculations in each subsequent year.
23. These provisions will also provide flexibility for the Minister to respond to possible future
events or policy changes by changing levy charges, as has occurred with similar levies.
Section 11 - Persons liable to pay levy
24. The domestic commercial vessel levy is imposed in respect of a vessel; however, a vessel
cannot pay a levy. Consequently, this section defines the person or people liable to pay
the levy in respect of a vessel.
25. Where a single person is responsible for a vessel - that is they are the sole owner of the
vessel and, where relevant, the holder of that vessel's certificate of survey under the
national law - that person is liable to pay the levy.
26. Where multiple people are responsible for a vessel - this may include the holder of that
vessel's certificate of survey and one or more owners - those people are 'jointly and
severally' liable to pay the levy.
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27. Where a group of people are 'jointly and severally' liable to pay the levy, the levy can be
recovered by imposing the charge on any individual, some of the group, or the entire
group, depending on circumstances - for example, one owner may be exempt from
liability to pay the levy.
28. For clarity, the joint and several liability provisions do not allow charges to be imposed
multiple times; the total amount of levy payable in respect of a single vessel can only be
recovered once per financial year. For example, where three people might be responsible
for a vessel, the levy could be imposed on them as a group, any subset of the group, or any
individual as appropriate. However, the full amount of levy could not be imposed three
separate times on each of the three members of the group because this would recover three
times more money than is appropriate for that vessel.
Sections 12 to 14 - Treatment of partnerships, unincorporated associations, and trusts with
multiple trustees
29. These provisions clarify that where responsibility for a vessel is more complex - for
example if a vessel is owned or partly owned by a company, association or trust - the levy
is still imposed on that responsible party as if it was a person.
30. Any individual member of a partnership, committee of management for an association, or
trustee may pay the relevant levy on behalf of their organisation.
Section 15 - Act does not impose a tax on property of a State
31. This section recognises Section 114 of Australia's Constitution which prevents the
Commonwealth from imposing any tax on property of any kind belonging to a State.
32. Consequently, this levy cannot be imposed to a vessel if that vessel meets the definition of
'property of any kind belonging to a State' under the Constitution. This can be a complex
legal matter to test and individuals or organisations seeking to determine whether a
particular vessel would be exempt from liability to pay the levy on this basis should seek
legal advice.
Section 16 - Disallowance of certain rules
33. Where the Minister makes rules that impose an amount of levy (under subsection 9(2)),
these do not take effect until both Houses of Australia's Parliament have had opportunity
over 15 sitting days to consider and potentially disallow the rules in accordance with
parliamentary processes in accordance with section 42 of the Legislation Act 2003.
Section 17 - Incorporation of material
34. This section permits rules to be made to provide for any matters by applying, adopting or
incorporating any matter contained in any written instrument including, but not limited to,
the National Standard for Commercial Vessels (NSCV) and the Uniform Shipping Laws
Code (USL Code). These documents have served as the foundation of the safety
regulation framework for domestic commercial vessels since their introduction in 2002
and 1970 respectively. The NSCV and USL Code are readily and freely available on
AMSA's website: www.amsa.gov.au.
12
35. Use of this section is expected to be limited to Part B of the NSCV, which sets out key
definitions and concepts - such as 'operational area', 'service category', and 'measured
length' - that are familiar to industry and necessary for consistent and transparent
calculation of the amount of levy payable in respect of a vessel. The ability to incorporate
other material retains flexibility to respond to possible future changes, such as advances in
safety or maritime technology.
36. This section presents a low risk of introducing retrospective laws. The NSCV and USL
Code are longstanding foundation documents which are not expected to be subject to
change in future. Additionally, should any unforeseen changes to material incorporated
under this section be considered in future, the Australian Maritime Safety Authority Act
1990 and the national law require AMSA to consult with any appropriate government
authorities, persons, associations and organisations
SCHEDULE 2 - Marine Safety (Domestic Commercial Vessel) Levy Collection Act 2018
Section 3 - Simplified outline of the Act
37. This section provides a short summary of the Act to assist with accessibility:
Section 4 - Definitions
38. The items listed are defined for clarity, to give effect to the levy, or to align the levy with
other legislation:
'AMSA' means the Australian Maritime Safety Authority.
'eligible financial year' has the same meaning as in the Levy Act.
'Finance Minister' means the Minister administering the Public Governance,
Performance and Accountability Act 2013.
'late payment penalty' means the penalty imposed under this Act (see section 10).
'legislative rules' means rules made under this Act (see section 20).
'leviable domestic commercial vessel' has the same meaning as in the Levy Act.
'levy' means the levy imposed by the Levy Act.
'Marine Safety (Domestic Commercial Vessel) National Law' has the meaning given by
section 17 of the national law.
'partnership' has the same meaning as in the national law.
'trust' has the same meaning as in the national law.
'trustee' has the same meaning as in national law.
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Section 5 and 6 - Extension to external Territories and extraterritorial operation
39. Consistent with sections 5 and 6 of the Levy Act, these sections clarify the levy will apply
to leviable domestic commercial vessels regardless of whether they are located in
Australia, an external territory, or outside Australia.
40. This ensures vessels that will receive the benefits of regulation under the National System
will accordingly pay their share of costs through the levy and cannot avoid this obligation
by temporarily relocating outside Australia.
Section 7 - Act to bind Crown
41. This is a technical legal provision which defines how the levy will be applied to the
Commonwealth, states and territories.
42. Some domestic commercial vessels may be used in connection with government activities.
Such vessels will be liable to pay the levy, except where the Constitution precludes this.
The Commonwealth cannot technically charge itself, so a provision for 'notional
payments' will be created (see notes on Section 15 of this Act).
Sections 8 and 9 - when full-year and pro-rata levy are due and payable
43. These sections define the timeframe in which persons liable to pay the levy must make
payment.
44. Where a person pays a full-year levy, this amount of levy becomes due and payable at the
end of 28 July of the relevant financial year. In effect, this provides four weeks for the
levy to be paid, noting that under the Levy Act, the levy is generally imposed at the start
of a financial year on 1 July.
45. Similarly, where a pro-rata levy applies, this becomes payable 28 days after the vessel
becomes a leviable domestic commercial vessel.
46. The Minister may make rules to allow individuals and groups to elect to pay the levy in
quarterly instalments instead of a single annual payment. This will provide flexibility to
businesses and assist them in managing their cash flow by allowing them to elect the levy
payment frequency that suits their circumstances.
Section 10 - Late payment penalty
47. This section creates a late payment penalty if the levy payment, whether a full payment or
an instalment, has not been paid by the due date. The purpose of the penalty is to
encourage timely payment of the levy and thereby ensure funding certainty for AMSA's
provision of safety services to Australia's domestic commercial vessels.
48. The Minister may make rules to specify the penalty rate per annum noting it must not
exceed 20 percent on the amount unpaid.
49. This section also creates a range of safeguards to ensure the penalty is proportionate and
implemented fairly, including the power to remit the late payment penalty.
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50. However, if AMSA decided to refuse to remit all or part of a penalty in response to an
application, AMSA must give written notice of the decision to the applicant; and
applications may be made to the Administrative Appeals Tribunal for review of a decision
of AMSA to refuse to remit all or part of a penalty.
Section 11 - Recovery of levy and late payment penalty
51. This section clarifies that the levy charges, instalments of levy charges, and late payment
penalties are all technically debts to the Commonwealth.
52. Consequently, AMSA may recover these amounts through Australia's court system if
necessary. However, this option is expected to be used as a last resort. AMSA will have
a range of other powers it may exercise in response to non-payment of levy, including
suspension or revocation of a vessel's certificate of survey, or detention of that vessel.
Section 12 - Assessments
53. This section allows AMSA to make and amend assessments in writing of the amount of
levy imposed on a leviable domestic commercial vessel. Such an assessment must be
provided as soon as practicable to a person liable to pay the levy.
54. Where an assessment is produced as part of a civil proceeding, such as a review of a
decision or court process, the document is to be presumed to be genuine. In such a
proceeding, should a party claim that an assessment is incorrect, that party is responsible
for proving their claim.
Section 13 - Advance on account of levy
55. The levy may be paid in advance, including in increments. If more levy is paid than will
be owed, AMSA must refund any excess.
Section 14 - Refund of overpayments
56. If an amount or instalment of levy or a late payment penalty are overpaid, AMSA must
refund any excess.
Section 15 - Notional payments by the Commonwealth etc.
57. This is a technical provision to allow AMSA to charge the levy to other Commonwealth
entities where those entities are responsible for leviable domestic commercial vessels,
unless that entity is an untaxable Commonwealth entity under the Public Governance,
Performance and Accountability Act 2013. This mechanism is required because the
Commonwealth cannot technically charge itself.
58. As required, the Finance Minister may make rules to give effect to this intent.
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Sections 16 to 18 - Treatment of partnerships, unincorporated associations, and trusts with
multiple trustees
59. Similar to the Levy Act, these provisions clarify that where responsibility for a vessel is
more complex the levy is still imposed on all responsible parties as if they are people.
60. Any individual member of a partnership, committee of management for an association, or
trustee may pay the relevant levy on behalf of their organisation.
Sections 19 - Delegation
61. In accordance with section 58 of the Australian Maritime Safety Authority Act 1990,
AMSA may delegate any power conferred on AMSA by the Levy Collection Act or
legislative rules made under the Levy Collection Act to members of AMSA's staff.
62. AMSA requires this ability to delegate powers within the limits of its workforce to be able
to operate effectively and deliver services to the 27,000 domestic commercial vessels
around and across Australia.
63. Powers are expected to be delegated appropriately to specific, expert offices within
AMSA through an instrument of delegation signed by AMSA's Chief Executive Officer.
For example, the power to detail a vessel is expected to be delegated to marine safety
inspectors, while the power to make written assessments of amounts of levy payable and
the power to refund an amount of levy are expected to be delegated to administrative
officers.
64. Additionally, the Chief Executive Officer's delegation instrument is expected to: set
minimum qualifications, training and experience requirements for delegates specific to
each power and function; set conditions and requirements to be satisfied by a delegate
when exercising a power; and be supported by AMSA governance policies and processes
to ensure delegates understand how to exercise powers appropriately and consistently.
Section 20 - Legislative rules
65. This section empowers the Minister to make rules about matters prescribed or required by
the Levy Collection Act, or matters necessary or convenient to carry out or give effect to
the Levy Collection Act, including refunds and powers conferred on AMSA.
66. Subsection 20(2) outlines what the legislative rules may not do, such as creating an
offence or civil penalty or imposing a tax.
67. For clarity, the domestic commercial vessel levy will be imposed by the Levy Act. The
Levy Collection Act, the Consequential Amendments Act, and legislative rules will not
'impose' taxation; rather, they will perform separate but related legal functions such as
prescribing the amount of levy, or when and how the levy is to be paid.
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SCHEDULE 3 - Marine Safety (Domestic Commercial Vessel) Levy (Consequential
Amendments) Act 2018
Section 3 - Schedules
68. This is a formal clause that provides that other Acts will be amended as specified and set
out in Schedule 1 of the Consequential Amendments Act
Schedule 1 - Amendments
Australian Maritime Safety Authority Act 1990
69. These clauses will expand the existing provisions of the Australian Maritime Safety
Authority Act 1990 that address payment of existing levies to AMSA to include payments
under the new domestic commercial vessel levy to AMSA.
Marine Navigation (Regulatory Functions) Levy Collection Act 1991
70. These clauses clarify that leviable domestic commercial vessels are exempt from the
Marine Navigation (Regulatory Functions) Levy.
71. This is appropriate because regulatory services for domestic commercial vessels will be
provided under the national system, rather than under AMSA's current suite of services,
so should not be charged both levies.
72. However, for clarity, should a leviable domestic commercial vessel also be liable to pay
the Marine Navigation Levy or the Protection of the Sea Levy, they will pay these levies
in addition to the domestic commercial vessel levy.
Marine Safety (Domestic Commercial Vessel) National Law Act 2012
73. These clauses will expand AMSA's existing powers to suspend or revoke certificates of
survey or detain a domestic commercial vessel to allow AMSA to exercise these powers
in response to non-payment of an amount or instalment of the new domestic commercial
vessel levy.
74. Encouraging timely payment of the levy is critical to ensure effective ongoing funding of
AMSA's provision of safety services to Australia's domestic commercial vessels.
75. Accordingly, an escalating series of disincentives to late payment or non-payment of levy
has been designed comprising a late-payment penalty, issue of a show cause notice,
suspension or revocation of a vessel certificate, detention of a vessel, or pursuit of non-
payment as a civil matter through Australia's court system.
76. Stronger sanctions are designed primarily to serve as a disincentive and are expected to
exercised infrequently as a last resort.
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77. As previously outlined, each sanction contains inbuilt safeguards. All decisions by
AMSA or its staff are reviewable, including if required through the Administrative
Appeals Tribunal or courts. Additionally, individuals will receive timely advice of when
levy payments will become due and payable, and must be issued a show cause notice
before AMSA could exercise its power to suspend or revoke a certificate.
78. AMSA's staff are already appropriately trained, qualified and empowered to exercise
these powers in response to other contraventions of the national law. AMSA staff are
also trained, qualified and empowered to detain international ships in response to non-
payment of the marine navigation, regulatory functions and protection of the sea levies.
79. The Chief Executive Officer's delegation instrument is expected to empower appropriate
experts within AMSA to exercise these powers. That instrument is expected to: set
minimum qualifications, training and experience requirements for delegates specific to
these powers and functions; set conditions and requirements to be satisfied by a delegate
when exercising these powers; and, be supported by AMSA governance policies and
processes to ensure delegates understand how to exercise the powers appropriately and
consistently.
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