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2010-2011-2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MARINE SAFETY (DOMESTIC COMMERCIAL VESSEL)
NATIONAL LAW BILL 2012
REPLACEMENT EXPLANATORY MEMORANDUM
(Circulated by the authority of the Minister for Infrastructure and Transport,
the Honourable Anthony Albanese, MP)
MARINE SAFETY (DOMESTIC COMMERCIAL VESSEL)
NATIONAL LAW BILL 2012
OUTLINE
The Marine Safety (Domestic Commercial Vessel) National Law Bill (the Bill) is a
component of the national transport reform package, which is intended to improve
safety and reduce the regulatory burden and costs on the Australian rail, heavy vehicle
and maritime industries. The maritime component of this reform package will be
implemented through three key projects.
Firstly, national shipping reforms designed to ensure the long-term future of the
Australian shipping industry through tax regulation and training. Secondly, the
revision of the Navigation Act 1912 (to be replaced by the Navigation Act 2012) will
modernise the regulatory framework and provide much-needed confidence and
certainty for industry.
This Bill represents the third and final component of the maritime reform package.
As a key component of the National System for commercial vessel safety that will
commence on 1 January 2013, this Bill introduces a new National Law for the
regulation of domestic commercial vessel safety and establishes a National Marine
Safety Regulator (the National Regulator). The policy basis for the National Law
derives from the Council of Australian Governments (COAG) Inter-Governmental
Agreement (IGA) on Commercial Vessel Safety Reforms, signed on 19 August 2011.
The IGA also determined that the Australian Maritime Safety Authority (AMSA) will
be the National Regulator.
There are currently eight different marine safety regulatory systems, involving the
Commonwealth, the six States and the Northern Territory, that govern the operation
of domestic commercial vessels in Australia. The overarching objective of the Bill is
to provide for the consistent national regulation of the domestic commercial vessel
industry across Australia.
This objective is to be achieved through a regulatory framework that:
(a) promotes continuous improvement in marine safety;
(b) promotes public confidence in the safety of marine operators;
(c) ensures effective identification and management of safety risks; and
(d) seeks to reduce regulatory burden without compromising safety.
Consistent with these objectives, the Bill:
(a) establishes the National Regulator for the purposes of performing
functions and exercising powers under this Bill;
(b) establishes a system for the issue of national certificates in relation to:
i. vessel identification;
ii. vessel survey;
iii. the commercial operation of vessels; and
iv. seafarer competencies;
(c) establishes offences where a vessel identification or a certificate is
required and not held or not complied with;
(d) establishes General Safety Obligations (GSOs) for individuals who have a
role in the production and operation of commercial vessels, to ensure the
safety of the vessel, their own safety and the safety of others, so far as is
reasonable;
(e) establishes a system within which to conduct compliance and enforcement
activities; and
(f) provides for the consistent application of nationally agreed standards
across Australia.
The IGA provides that the Commonwealth will apply the National Law to the extent
of the Commonwealth's constitutional reach, and each jurisdiction will apply the
National Law to any `gap' in the Commonwealth's constitutional reach. This
approach achieves the consistency objective of the IGA.
Vessels which operate internationally, foreign vessels and vessels which maintain
certification under the international convention for Safety of Life at Sea (SOLAS) will
be regulated by the Commonwealth under the proposed Navigation Act 2012 and are
outside with scope of the Bill. This approach will continue to be applied when the
revised Act is introduced. Defence vessels and recreational vessels are also outside
the application of the Bill. However, interstate vessels that are currently regulated
under the Navigation Act 1912 will be covered under the National Law from its
commencement.
State and Territory agencies will be responsible for the effective day-to-day operation
of the National Law, under delegation from the National Regulator. The jurisdictions
will retain responsibility for the regulation of waterways, the management of ports
and associated issues, such as classifying waters, setting speed limits and the
regulating alcohol consumption.
DEVELOPMENT OF THE BILL
This Bill has been developed with the State and Territory jurisdictions to implement
the decision of COAG on 19 August 2011 to create a single National Law to regulate
the safety of all commercial vessel operations in Australian waters and to establish a
single National Regulator for commercial vessel safety from 1 January 2013.
Extensive consultation has been undertaken on the development of the Bill with the
States and Territories, including through the Standing Council on Transport and
Infrastructure (SCOTI), the Transport and Infrastructure Senior Officials Committee
(TISOC), the Maritime Agencies Forum, the National Marine Safety Committee,
seven workshops with jurisdiction officials and numerous discussions and
correspondence with State and Territory agency contacts.
Public consultation has also informed the development of the Bill, including
consultation on the Regulatory Plan from June to October 2011 (outlining the
proposed elements of the Bill), a detailed discussion paper in mid-December 2011
(providing an overview of the Bill) and the draft Bill itself (released in February
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2012). Comments and feedback from 19 formal public submissions that were received
on the draft Bill have been considered and incorporated into the Bill as appropriate. A
report detailing the responses to these submissions (including the changes made to the
Bill as a result) was also released in May 2012.
Government agencies have also been consulted on the development of the Bill,
including the Department of Prime Minister and Cabinet, the Attorney General's
Department, the Department of Education, Employment and Workplace Relations,
SafeWork Australia, and the Australian Maritime Safety Authority.
The text of the Bill has been unanimously agreed by SCOTI at its meeting of 18 May
2012.
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ABBREVIATIONS
AAT Administrative Appeals Tribunal
AMSA Australian Maritime Safety Authority
COAG Council of Australian Governments
Constitution Constitution of the Commonwealth of Australia
Criminal Code The Code established by the Criminal Code Act 1995
EEZ Australia's Exclusive Economic Zone
EVU Enforceable Voluntary Undertaking
GSO General Safety Obligation
IGA The Inter-Governmental Agreement for Commercial
Vessel Safety Reform signed on 19 August 2011
Inspector A Marine Safety Inspector appointed under Part 6 of the Bill
National Law Marine Safety (Domestic Commercial Vessel) National
Law set out in Schedule 1 of the Bill
National Regulator The National Regulator established under Part 2 of the Bill
NMSC National Marine Safety Committee
NSCV National Standard for Commercial Vessels
OBPR Office of Best Practice Regulation
RIS Regulation Impact Statement
SCOTI Standing Council on Transport and Infrastructure
SOLAS International Convention for the Safety of Life at Sea
The Bill/this Bill Marine Safety (Domestic Commercial Vessel) National
Law Bill 2012
The Act/this Act Marine Safety (Domestic Commercial Vessel) National
Law Act 2012
TISOC Transport and Infrastructure Senior Officials Committee
USL Code Uniform Shipping Laws Code
WHS Act Work Health and Safety Act 2011
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FINANCIAL IMPACT STATEMENT
The COAG IGA underpinning the commercial vessel safety reform articulates the
intentions of the jurisdictions in establishing the National Regulator arrangements.
Jurisdictions have committed to achieving the objective of the reforms with minimum
legal and administrative costs and no overall increase in regulatory burden as a result
of commencement of the National System.
Full cost-recovery is a longer-term aspiration. States and Territories not fully
recovering costs from industry will consider moving progressively to full cost
recovery in the long-term. Any State or Territory-based subsidisation of operators will
take into account implications for the National System.
At the commencement of the scheme, States and Territories will continue to adjust
current cost recovery or fee charging arrangements at a rate of their own discretion.
The Commonwealth has undertaken not to impose upon industry any new fees or
charges for National System related purposes unless otherwise agreed by SCOTI.
States and Territories have agreed to comply with Competitive Neutrality Policy and
Principles outlined in the COAG Competition Principles Agreement in any instance
when a fee for service is charged in competition with the private sector.
From the commencement of the National System, and until alternate arrangements
have been agreed by SCOTI, all jurisdictions will contribute to the funding of the
National Regulator. The first year of funding of AMSA's costs of the National System
have been set at $4 million (in June 2011 dollars). To facilitate the establishment of
new service delivery arrangements, the Commonwealth will meet $1 million of the
National Regulator's costs for the first year of operation of the National System
(2013). As arrangements are bedded down, jurisdictions will work to identify any
efficiencies to be gained through the National System.
The funding contributions for AMSA's costs as the National Regulator for year one
(2013) will be:
a) National Marine Safety Committee (NMSC) funding (as per existing State and
Territory contributions under the NMSC agreed funding formula) - $2,000,000
b) Commonwealth - $1,000,000
c) New South Wales - $288,800
d) Victoria - $238,800
e) Queensland - $238,800
f) Western Australia - $113,800
g) South Australia - $77,700
h) Tasmania - $30,500
i) Northern Territory - $11,100
j) Australian Capital Territory - $0
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The funding formula for AMSA's costs as the National Regulator (beyond 2013),
until any alternate arrangements have been unanimously agreed by SCOTI, will be:
a) Commonwealth - 10%
b) New South Wales - 26%
c) Victoria - 21.5%
d) Queensland - 21.5%
e) Western Australia - 10.25%
f) South Australia - 7%
g) Tasmania - 2.75%
h) Northern Territory - 1%
i) Australian Capital Territory - 0%
These funding arrangements will be reviewed by SCOTI in the first half of 2016, or a
later date agreed by SCOTI.
REGULATORY IMPACT STATEMENT
The commercial vessel safety national reform was first initiated in July 2009 when
COAG decided to take a national approach to regulating the safety of all domestic
commercial vessels in Australian waters by 2013. COAG's decision reflects
recommendations made by the Australian Transport Council (ATC).
ATC's recommendations were informed by a Regulatory Impact Statement (RIS),
which explored perceived problems with the current regulatory framework and
considered alternate options for national reform of maritime safety regulation.
The RIS, which can be found at: http://www.infrastructure.gov.au/maritime/nmsr.aspx
incorporated feedback provided in over 90 written submissions and 22 public
meetings held around Australia.
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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) National Law Bill 2012
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 (`the
National Law Bill') implements the maritime component of the national transport
reform agreed to by the Council of Australian Governments on 19 August 2011. The
National Law Bill introduces a national system for the regulation of domestic
commercial vessels and establishes the Australian Maritime Safety Authority as the
National Regulator for commercial vessel safety (the National Regulator).
There are currently eight different marine safety regulatory systems, the
Commonwealth, the six states and the Northern Territory, governing the operation of
domestic commercial vessels. The overarching objective of the Bill is to provide for
the consistent safety regulation of Australia's domestic commercial vessel industry.
The National Law Bill will extend the Commonwealth jurisdiction for safety
regulation to Australia's domestic fleet, including smaller fishing vessels, dive boat
operators and vessels supporting pearling and oyster farming. These vessels will be
required under Commonwealth law to be designed, built, maintained and equipped to
nationally agreed standards, crewed by people with nationally recognised certificates
of competence who operate the vessel in accordance with national safety standards.
Human rights implications
The Bill engages the following human rights:
Right to privacy
Part 6 of the National Law Bill contains provisions on enforcement powers that
enable Marine Safety Inspectors (inspectors) appointed by the National Regulator (the
Australian Maritime Safety Authority) to detain, board, inspect and search domestic
commercial vessels; and gather information and seize things in relation to domestic
commercial vessel safety regulation and compliance.
The National Law Bill has been drafted consistently with the principles stipulated in
The Guide to Framing Commonwealth Offences, Infringement Notices and
Enforcement Powers (the Guide) developed by the Criminal Justice Division of the
Attorney-General's Department.
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In addition, the National Law Bill provides for enforcement powers equivalent to
those provided in current Commonwealth legislation including:
· Work Health and Safety Act 2011, Section 163 - Powers of entry;
· Crimes Act 1913, Section 3T - Searches without warrant in emergency
situations;
· Quarantine Act 1908, Section 66AB - The monitoring of premises; and,
· Customs Act 1901, Section 185 - Power to board and search etc. ships and
aircraft.
Section 8.6 of the Guide (Entry and Search Without a Warrant) states that "a search
without a warrant will only be permitted where the inherent mobility of the
conveyance means there may not be time, or it would be impractical, to obtain a
warrant".
Domestic commercial vessels are inherently mobile. The nature of the commercial
activities undertaken by these vessels often means that they do not follow any
predictable pattern or timetable. This means that monitoring and compliance activities
need to be undertaken as and when an opportunity presents, frequently while the
vessel is at sea. The vessels may also be operating in geographically remote areas, a
great distance from port and with limited or no mobile telephone access. In these
circumstances, obtaining a warrant is impractical and may limit the regulator's
capacity to undertake their safety regulatory role in a responsive manner. For this
reason, the enforcement powers are appropriate and proportionate for the task.
The guide at 8.6 (exception for licensed premises) sets out that "a person who obtains
a licence or registration for non-residential premises can be taken to accept entry to
those premises by an inspector for the purpose of ensuring compliance with the
licensing or registration conditions". The Senate Scrutiny of Bills Committee has said
that these powers can be conferred "where a person has accepted a commercial
benefit subject to being monitored by this means".
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 the unique identifier and certificates that allow them to operate as a
commercial vessel they are implicitly accepting that their compliance with the
regulatory requirements will be monitored.
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Generally, inspectors will be required to seek the express and informed consent of the
relevant person or obtain a warrant prior to entering a premise. However, an inspector
may enter a premise that is not a residential premise without consent or warrant in
order to gain access to the domestic commercial vessel (see clause 96). An inspector
may also board a domestic commercial vessel without warrant or consent to monitor
compliance, or to issue an improvement, infringement or other notice.
Inspectors, when undertaking monitoring activities, routinely wear uniforms.
However, an inspector must, in order to exercise their powers lawfully under clauses
96 and 97, also show his or her identity card if requested to do so. Similarly, a police
officer who is appointed as an inspector, but who is not wearing a uniform, must show
his or her police identification if requested to do so.
If, in the course of undertaking monitoring activities in relation to a domestic
commercial vessel, an inspector believes that something is evidential material and that
there is a serious or urgent need to exercise powers to preserve the evidential material,
or it is otherwise impracticable to obtain a warrant, then clause 100 allows an
inspector to take a sample of the material, secure the material for up to 72 hours or
seize the material.
These powers are limited to use in relation to a vessel, which because of its inherent
mobility, may make obtaining a warrant impractical (for example, if the vessel is in a
remote area with no mobile telephone reception) or may require that action is taken
immediately to ensure that evidential material is not lost or compromised. The 72
hour statutory time limit to secure a thing, balances the possibility that the safety
operation may be a significant distance from the nearest port, whilst ensuring that a
person's property is not inappropriately retained.
To ensure that the National Regulator can monitor the use of this power and the
circumstances in which it is used, an inspector who exercises these powers will be
required to report to the National Regulator on the exercise of the powers and the
grounds for his or her belief that these powers needed to be exercised without warrant.
Division 7 of Part 6 of the Bill further restricts how an inspector can deal with
material seized from a domestic commercial vessel, which ensures that the handling
of any evidential material is transparent for the person and the National Regulator.
Clause 152 enables certain specified people or groups of people who play a role in the
administration of the National Law to disclose information, including personal
information, to the National Regulator. This power is to ensure that people who have
been delegated functions by the National Regulator, or who are accredited or
approved to undertake activities on behalf of the National Regulator, are able to
disclose information that may be relevant to the administration of the National Law.
Conclusion
The Bill is compatible with human rights because to the extent that it may limit
human rights, those limitations are reasonable and proportionate to the information
sought and the safety benefits conveyed to the maritime industry.
Minister for Infrastructure and Transport, the Hon Anthony Albanese MP
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OTHER MATTERS
Key features of the COAG IGA
On 19 August 2011, the signing of the COAG IGA provided for the establishment of
a single national regulator and a single National Law covering domestic commercial
vessel safety in Australia from 1 January 2013. The IGA formalises the agreement of
all Australian governments to the operating arrangements under which the single
National System will operate. Agreement on the provisions of the IGA is a result of
extensive negotiation between the Commonwealth, States and Territories.
Consistent with the COAG IGA, the National Law is intended to replace current State
and Territory laws governing the operational safety of domestic commercial vessels.
It will ensure that nationally agreed standards - the National Standard for Commercial
Vessels (NSCV) - are applied consistently around the country. The NSCV will be
implemented through subordinate legislation made under the National Law.
As the National Regulator, AMSA will be responsible for the development and
implementation of commercial vessel standards nationally covering vessel
construction, operation and crew qualifications. However, under the National Law,
AMSA will delegate certain functions to State and Territory maritime safety agencies,
which will undertake day-to-day interaction with the domestic commercial vessel
industry.
Scope of this Bill relative to the proposed Navigation Act 2012
The scope of the National Law will apply to any domestic commercial vessels capable
of being used in navigation or designed to float in water, including barges, pontoons,
floating restaurants and floating craft being towed, which are not within the scope of
the proposed Navigation Act 2012.
Vessels within the scope of the proposed Navigation Act 2012 will include:
· Foreign flagged vessels conducting activities (other than warships and vessels
on "freedom of navigation voyages") in Australia's Exclusive Economic Zone
(EEZ) (for example, a foreign flagged vessel conducting fishing activities
inside the EEZ);
· Australian flagged vessels that cross the outer limit of the EEZ, operate
entirely outside the EEZ, or which intend to do so; and
· Australian flagged vessels that apply for or maintain SOLAS Certification,
regardless of where they operate.
These vessels will be regulated by the proposed Navigation Act 2012 and will not be
subject to the National Law, except where a vessel that has SOLAS Certification
actively `opts out' of coverage under that legislation. In that case, the vessel would be
regulated under the National Law and would lose any international certification issued
by AMSA for international voyages.
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National Standards
The National Law is designed to apply the NSCV throughout Australia. The NSCV is
a set of standards covering commercial vessel operation, construction and crew
qualifications that have been developed by all State and Territory transport agencies
and agreed by Transport Ministers.
The NSCV is an evolving document that will be amended and updated as the need
arises, with any changes being subject to broad stakeholder consultation and,
following the implementation of the National System, unanimous agreement by
Transport Ministers. The NSCV will be implemented through subordinate legislation
made under the National Law.
Nationally, jurisdictions have in the past agreed a Uniform Shipping Laws (USL)
Code and the NSCV. However, neither of these instruments has been applied
consistently because of the varied legislative application in each jurisdiction. For the
first time in over 40 years, a single set of standards (the NSCV) will be consistently
applied to domestic commercial vessels through one piece of legislation.
Strict liability offences
Strict liability offences arise in a regulatory context where, for reasons such as public
safety and the public interest in ensuring that regulatory schemes are observed, the
sanction of criminal penalties is justified. They also arise in a context where a
defendant can reasonably be expected, because of his or her professional involvement,
to know what the requirements of the law are, and the mental, or fault, element can
justifiably be excluded.
The rationale is that people who owe general safety duties, such as employers, people
in control of aspects of work and designers and manufacturers of work structures and
products, should be expected to be aware of their duties and obligations to workers
and the wider public.
For strict liability offences in this Bill, the prosecution will have to prove only the
conduct of the accused. However, where the accused produces evidence of an honest
and reasonable, but mistaken, belief in the existence of certain facts which, if true,
would have made that conduct innocent, it will be incumbent on the prosecution to
establish that there was not an honest and reasonable mistake of fact.
The application of strict liability to certain offences has been carefully considered
during the drafting of the Bill and most strict liability offences are subject to other
qualifiers, such as reasonable practicability, due diligence or reasonable care. The Bill
also makes reference in relevant clauses to section 6.1 of the Criminal Code, which
provides further details on strict liability.
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Penalties for offences
The penalties for offences in the Bill are intended to reinforce the deterrent effect of
the Bill and allow courts greater capacity to respond meaningfully and proportionally
to the worst breaches by duty holders. Where death or serious injury results from a
breach, the social and economic costs are likely to be far greater than even the
maximum fines imposed by the Bill. Therefore, the overall objective of the penalties
in the Bill is to increase compliance with the National Law and decrease the resort to
prosecution to achieve that aim.
The penalties in the Bill generally reflect the community's view that any person who
has a work-related duty of care, but does not observe it, should be liable to a criminal
sanction for placing another person's safety at risk. This approach is adopted in the
Work Health and Safety Act 2011 and is in line with international practice.
The Bill provides for three categories of offences. The highest category of offences is
for a breach of duties that is intentional and carries the highest maximum penalty
under the Bill. Other categories of offences are for reckless and negligent breaches,
which attract relatively lower penalties commensurate with the level of culpability of
the defendant in the circumstances. Section 5 of the Criminal Code Act 1995 defines
the meaning of intentional, reckless and negligent, in the context of Commonwealth
offence provisions. Penalties are applied to each category of offence in accordance
with the Criminal Code. As outlined in section 4AA of the Crimes Act 1914, one
'penalty unit' equates to $110.
Penalties and the possibility of imprisonment in the most serious cases are a key part
of achieving and maintaining a credible level of deterrence to complement other types
of enforcement action, such as the issuing of notices by a marine safety inspector. The
maximum penalties provided in the Bill reflect the level of seriousness of the offences
and have been set at levels high enough to cover the worst examples of offence.
Evidential burden
An evidential burden (or `burden of proof') requires a person to provide evidence of
an asserted fact in order to prove that fact to a court. In some instances, the Bill places
an evidential burden on an individual to demonstrate a reasonable excuse as to why
they have failed to meet a duty or obligation.
Several sub-clauses in this Bill shift the evidential burden by requiring the defendant
to show a reasonable excuse. This is because the defendant is the only person in the
circumstances with the relevant knowledge able to provide evidence of any
reasonable excuse for refusing or failing to meet the relevant duty or obligation.
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NOTES ON CLAUSES
Clause 1 - Short Title
This is a formal provision that specifies that the Act may be referred to as the Marine
Safety (Domestic Commercial Vessel) National Law Act 2012.
Clause 2 - Commencement
This clause provides for a commencement by proclamation. The title and the
commencement provisions will become law on the day the Act receives Royal
Assent. The balance of the provisions, both in the local application law and
Schedule 1, will become law either on a specified day to be proclaimed or on the day
after 12 months from which the Act receives Royal Assent.
The provision of a proclamation date intends to avoid the possibility that a specified
date may pass before the Bill has passed through Parliament. This avoids the possible
need to draft an amendment, while the 12 month deadline removes an open ended
commencement date and provides certainty.
Clause 3 - Definitions
Sub-clause 1 explains that the Bill is structured to separate local application
provisions from the Marine Safety (Domestic Commercial Vessel) National Law set
out in Schedule 1.
Owing to this separation within the Bill, a reference to a clause or sub-clause in the
local application provisions relates only to a clause or sub-clause in the local
application provisions, unless otherwise indicated. Likewise, a reference to a clause or
sub-clause in Schedule 1 relates only to a clause or sub-clause in Schedule 1, unless
otherwise indicated.
COAG's intention is that this Bill will be applied in each jurisdiction by a separate
State or Territory Law ("the local application provisions"). Notwithstanding clause 5,
the practical effect of which is to legislate to the extent of the Commonwealth's
constitutional reach, State and Territory laws are required to ensure that any potential
gap in the Commonwealth's reach is addressed.
Sub-clause 2 provides definitions for words and phrases used in the local application
provisions of this Bill. These definitions determine the meaning applied to these
words or phrases wherever they appear in the local application provisions. Schedule 1
contains additional definitions for words and phrases used in Schedule 1.
13
Significant definitions, which are essential to defining the scope of the legislation and
describing how it will be administered, include the following:
`Commonwealth Minister' means the Minister of State administering this Act,
which is the Minister of Infrastructure and Transport.
`Marine Safety (Domestic Commercial Vessel) National Law of the
Commonwealth' is defined to mean this Bill and the Schedule to it.
`Participating Territory' is defined to mean the Australian Capital Territory,
the Jervis Bay Territory, the Territory of Ashmore and Cartier Islands, the
Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.
Sub-clause 3 clarifies that the same words and phrases have the same meaning
wherever they appear in the Bill. This is intended to avoid any conflict in the
interpretation of words and phrases used in the local application provisions or
Schedule 1 of this Bill.
Clause 4 - Adoption of Marine Safety (Domestic Commercial Vessel) National
Law
This clause clarifies that Schedule 1 of the Bill, as well as any regulations or other
legislative instruments made under the Bill, are a law of the Commonwealth and may
be referred to as the Marine Safety (Domestic Commercial Vessel) National Law
2012. The reference to `legislative instruments' is intended to include regulations and
Marine Orders, but exclude exemptions under the Bill (see clause 143).
Clause 5 - Constitutional reach of Act
Sub-clause 1 describes the activities and matters to which the Bill applies. This
includes vessels engaged in inter-State trade and commerce, vessels owned by
constitutional corporations, vessels covered by the implementation of international
agreements, vessels owned by the Commonwealth and vessels that are external to
Australia.
Sub-clause 2 clarifies that any actions or activities undertaken in a person's capacity
as the owner, master or crew member of a vessel is considered to relate to the vessel.
Sub-clauses 3(a) and (b) explain the meaning of `external to Australia'.
Clause 6 - Relationship with State and Territory laws
Sub-clause 1 provides that the Bill overrides any State or Territory law relating to the
same matters of marine safety for domestic commercial vessels provided in this Bill.
However, this Bill is not intended to exclude any application or mirror legislation
enacted in a State and Territory.
Sub-clause 2(a) clarifies that the Bill does not exclude any State or Territory law
specifically stated as being not excluded by the regulations under this Bill.
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Sub-clause 2(b) provides that the Bill does not cover all aspects of domestic
commercial vessel regulation, allowing State and Territory laws to cover the
particular aspects listed. The Bill is not intended to provide for the regulation of every
aspect of commercial maritime activity and many activities will continue to be
regulated by State and Territory law.
Sub-clause 3 clarifies that the Bill is not intended to exclude any State or Territory
law relating to activities or matters that are outside the constitutional reach of the Bill,
as outlined in clause 5.
Sub-clauses 4 and 5 clarify that this Bill is not intended to exclude or limit the
concurrent operation of a law covered by sub-clause 2 that is able to co-exist with this
Bill or that creates an offence that is also an offence under this Bill.
Sub-clause 6 clarifies that sub-clauses 4 and 5 apply even if the law contains a
different penalty, fault element or defence in relation to the offence.
Sub-clause 7 clarifies that a person can only be found guilty of an offence under either
this Bill or the law covered by sub-clause 2 or the common law.
Sub-clause 8 clarifies that a reference to a law under this clause includes any
provision of that law.
Clause 7 - Avoiding inconsistency, including operational inconsistency, arising
between this Act and State and Territory workplace health and safety laws
Section 109 of the Constitution provides that if a law of a State is inconsistent with a
law of the Commonwealth, the Commonwealth law prevails and the State law, to the
extent of the inconsistency, is invalid. Clause 7 is a `roll-back' provision that
accommodates State and Territory legislation dealing with workplace health and
safety, which is not capable of operating concurrently with the National Law. It limits
or qualifies the operation of the National Law so that inconsistency (including
operational inconsistency) with a State or Territory law of this nature is avoided.
Sub-clause 3 operates so that where an act is required or authorised by or under a
relevant State or Territory law, that act is not prohibited or restricted by the
imposition of a liability under the National Law.
Sub-clause 4 operates so that where an act is specifically prohibited by or under a
relevant State or Territory law, the National law does not require that act to be done,
or impose a liability for not doing that act.
Sub-clause 5 ensures that the National Law does not operate in circumstances where,
if it did operate, an inconsistency, including an operational inconsistency, would arise.
Clause 8 - Extraterritorial operation
This clause sets out the geographical scope of the Bill. For the purposes of this Bill,
`external to Australia' has been defined to be beyond the limits of a State or Territory,
(i.e. beyond the low water mark or historical closing lines), as defined in clause 5.
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Clause 9 - Charging of fees by States etc. not prevented
This clause is intended to make clear that the States and Territories, or their agencies,
officers and employees, are free to charge their own fee for any services provided
under this Bill in their capacity as a delegate of the National Regulator. Consistent
with the COAG IGA, nothing in the Bill prevents the States and the Territories from
charging fees for the performance of functions delegated by the National Regulator.
Clause 10 - National Regulator to pay amounts to States, etc.
Sub-clause 1 requires the National Regulator to reimburse a State or Territory for the
amount of funds received for infringement notices issued by or as a result of a
recommendation of agencies, officers and employees of that respective State or
Territory.
Sub-clause 2 requires the States and Territories to reimburse the National Regulator
for the amount of any required refund of infringement notices issued by or as a result
of a recommendation of agencies, officers and employees of that State or Territory
when acting as National Regulator delegates.
Clause 11 - Commonwealth consent to conferral of functions etc. on the National
Regulator etc. by corresponding State-Territory laws
Sub-clauses 1, 2 and 3 permit a State or Territory to impose duties or confer functions
and powers on the National Regulator or another Commonwealth authority. The
exception to this occurs if this would not be constitutional, exceeds the powers of the
Commonwealth or is specified in the regulations under this Bill.
The National Law is intended to allow a corresponding State or Territory law to give
functions or powers to, or impose duties on, the National Regulator to the extent of
any constitutional gap. It is also intended to utilise those constitutional provisions that
would enable the Commonwealth to regulate in this area.
The practical effect of this arrangement is for the Commonwealth to make a National
Law within its constitutional reach and enable States and Territories to pass an
application law, effectively making one law (the National Law) apply to the operation
of all domestic commercial vessels in Australia. The purpose of this provision is,
therefore, to put beyond doubt the National Regulator's powers, notwithstanding
potential limitations of the constitutional reach of the Commonwealth.
Sub-clause 4 clarifies that this Bill does not exclude or limit any State or Territory law
from imposing duties or conferring functions and powers if this is consistent with the
requirements under Sub-clauses 1, 2 and 3 above and the State or Territory law is able
to co-exist with this Bill.
Clause 12 - Meaning of corresponding State-Territory law
Sub-clause 1 provides a definition that determines the meaning applied to the phrase
"corresponding State-Territory law" wherever it is used in this Bill.
16
Sub-clause 2 explains the conditions by which a declaration made under a
"corresponding State-Territory law" may be revoked by the Commonwealth Minister.
This legislative instrument would not be subject to disallowance or sun-setting
because of subsections 44(1) and 54(1) of the Legislative Instruments Act 2003.
Clause 13 - Meaning of imposes a duty
This clause provides a definition of when a `corresponding State-Territory law'
"imposes a duty" on the National Regulator. It includes where a State or Territory law
confers a function or power that gives rise to an obligation on the National Regulator
to perform the function or exercise the power.
Clause 14 - When duty imposed
This clause describes when a duty is considered to be imposed on the National
Regulator. It is intended to avoid any doubt about when such a duty is imposed.
Clause 15 - Imposing duty under State or Territory law
This clause clarifies that a duty is imposed by a State or Territory law on the National
Regulator if, and only if, it is within the powers of the State or Territory and is
consistent with the Constitution. Where these requirements are not met, the duty is
considered to be at the discretion of the National Regulator.
Clause 16 - Review of decisions under corresponding State-Territory laws
This clause allows for certain State and Territory decisions to be reviewed by the
Administrative Appeals Tribunal (AAT). It describes what is determined to be a
"reviewable State-Territory decision" for the purposes of this Bill. It also makes it
clear that the Administrative Appeals Tribunal Act 1975 applies for the purposes of
this clause.
Given the National Law will be applied to the full extent of the constitutional reach of
the Commonwealth, there will be very few State and Territory decisions of the kind to
which clause 16 refers. While regulations will address the review of these decisions,
the practical consequence is that the decisions will occur very infrequently, if at all.
Furthermore, jurisdictions have indicated an intention to provide for the application of
Commonwealth 'adjectival laws', including the AAT legislation, in their application
laws.
Clause 17 - References in instruments to the National Law
This clause clarifies that, unless stated otherwise in this Bill, a reference to the Marine
Safety (Domestic Commercial Vessel) National Law is that applied under clause 4 of
the local application provisions of this Bill or provided in an application law of a State
or Territory.
17
Clause 18 - Powers of magistrates
This clause clarifies that magistrates exercising functions or powers under this Part
perform these functions or exercise these powers in a personal capacity and not as a
court or a member of a court. This reflects the doctrine of persona designata, which
holds that Parliament may confer a non-judicial function on a justice of a court
constituted under Chapter III of the Constitution if the function is conferred on the
justice as an individual rather than a member of the court. Due to the separation of
powers doctrine, functions or powers are conferred on a voluntary basis and need not
be accepted by the magistrate. Subclause (3) clarifies that magistrates acting persona
designata are still entitled to the judicial immunity afforded to them as if they were
exercising functions or powers as a court or a member of a court.
Clause 19 - Regulations
This clause provides powers to the Governor General to make regulations where these
are required and permitted by the local application provisions of this Bill. Division 9
in Part 8 provides further details of the types of matters to be covered in the
regulations under this Bill.
SCHEDULE 1 - MARINE SAFETY NATIONAL LAW
Part 1 - Preliminary
This part of the Bill sets out the key preliminary issues relevant to the National Law.
It contains the short title of the Act, the objects of the National Law and the key
definitions, including those that limit the scope of the National Law. The
commencement provisions contained in clause 2 relate to the matters beyond the
constitutional reach of the Commonwealth.
The National Law is intended to apply to domestic commercial vessels operating in
all Australian States and the Northern Territory, Australian Capital Territory and
Jervis Bay Territory. It is also intended to apply to domestic commercial vessels
operating in Christmas Island, Ashmore and Cartier Islands, and the Cocos (Keeling)
Islands. It will not apply to the Australian Antarctic Territory, Norfolk Island or any
other of Australia's external Territories.
The intention is that all domestic commercial vessels that travel beyond 200 nautical
miles (i.e. beyond the EEZ) and that are currently regulated by relevant States and
Territories will remain within the scope of the National System and covered by the
NSCV. Although such vessels will be covered by the proposed Navigation Act 2012,
they will be exempted from the application of that legislation on the condition that
they comply with the National Law and relevant standards. This does not include
vessels that undertake international voyages (i.e. to and from an international port) or
foreign vessels. These vessels will be subject to the proposed Navigation Act 2012
without exception.
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The cumulative effect of the key definitions of `domestic commercial vessel' and
`vessel' in this part is to capture government vessels (other than Defence Force
vessels and Customs Vessels which travel beyond the EEZ) and vessels that are used
in connection with a commercial or research activity.
However, vessels operated by primary or secondary schools and community groups
are excluded from the National Law, unless they are operated for a purpose or use
identified in the regulations (vessels operated by volunteer search and rescue
organisations will, for example, be subject to the National Law).
Foreign-owned vessels, vessels that continue to be regulated by the proposed
Navigation Act 2012 or vessels that travel to and from Australia's external territories
to the mainland, are excluded from the application of the National Law.
The Bill defines a vessel owner more broadly than a legal owner. For the purposes of
the National Law, it includes an entity with the overall general control and
management of a vessel. A definition of owner is also provided in clause 6.
Clause 1 - Short title
This is a formal provision that specifies the short title of the Act as the Marine Safety
(Domestic Commercial Vessel) National Law.
Clause 2 - Commencement
The Marine Safety (Domestic Commercial Vessel) National Law will commence as a
law of the jurisdiction on the commencement date provided for by the Act (see also
clause 2 of the local application provisions of this Bill).
Clause 3 - Objects of law
This clause provides that the objects of this Bill are to:
(a) form a part of a national scheme for the safe operation, design, construction
and equipping of domestic commercial vessels in Australia;
(b) implement Australia's international obligations for domestic commercial
vessel safety;
(c) facilitate the development of a safety culture to prevent or reduce marine
incidents in Australia;
(d) provide a national framework for the development and application of
consistent national standards relating to the operation, design, construction
and equipping of domestic commercial vessels in Australia;
(e) enhance the efficient and orderly operation of domestic commercial vessels
in Australia; and
(f) provide an effective enforcement framework to prevent or reduce marine
incidents and ensure compliance with international obligations and national
standards in Australia.
These objects give effect to the objectives outlined in the COAG IGA.
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The terms "marine incident" and "Australia" are defined in clause 6. The term
"domestic commercial vessel" is defined in clause 8. The term "vessel" is defined in
clause 9.
Clause 4 - Law binds the Crown
Sub-clause 1 provides that the Act will bind the Crown in each of its capacities.
Sub-clause 2 provides that the Crown may not be prosecuted for a criminal offence
against this Bill or subordinate legislation, including regulations and Marine Orders.
Clause 5 - Extended geographical jurisdiction--category A
This clause describes how the criminal offences established by this Bill will operate.
In particular, it provides that the extended geographical jurisdiction provided in
Category A of section 15.1 of the Criminal Code applies to criminal offences against
this Bill.
The Criminal Code provides four categories of extended geographical jurisdiction for
offences. Category A is considered the most appropriate for offences against the
National Law because most activities under the National Law will occur within the
EEZ and involve vessels with Australian nationality.
Clause 6 - Definitions
This clause sets out a number of definitions for certain words and phrases used in the
National Law. These definitions determine the meaning that is to be attributed to these
words or phrases whenever they are used in the Bill or in the regulations, Marine
Orders and exemptions made under the Bill.
Significant definitions, which are essential to define the scope of the National Law
and describe how it will be administered, include the following:
agency:
(a) of the Commonwealth, includes the following:
(i) an Agency within the meaning of the Financial Management and
Accountability Act 1997 of the Commonwealth;
(ii) a body corporate established for a public purpose by or under a law
of the Commonwealth; and
(b) of a State or a Territory, includes the following:
(i) a Department of State (however described) of the State or Territory;
(ii) a body corporate established for a public purpose by or under a law
of the State or Territory.
certificate means any of the following:
(a) a certificate of operation;
(b) a certificate of survey;
(c) a certificate of competency.
COAG means the Council of Australian Governments.
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COAG council means the council established by COAG that has responsibility
for marine safety.
Commonwealth Minister means the Minister of State of the Commonwealth
administering this Law, which is the Minister for Transport and Infrastructure.
crew of a vessel means individuals employed or engaged in any capacity on
board the vessel on the business of the vessel, other than the master of the
vessel or a pilot.
Criminal Code means the Criminal Code of the Commonwealth.
defence vessel means a warship or other vessel that:
(a) is operated for naval or military purposes by the Australian Defence Force
or the armed forces of a foreign country; and
(b) bears external marks of nationality; and
(c) is manned by seafarers under armed forces discipline (however described).
domestic commercial vessel has the meaning provided in clause 7.
foreign vessel has the same meaning as in the Navigation Act 2012 of the
Commonwealth.
hire and drive vessel means any vessel which is let for hire or reward or for
any other consideration, including vessels provided in conjunction with
holiday establishments or hotels for the use of guests or tenants.
infringement notice means:
(a) a notice that:
(i) is given under regulations made for the purposes of clause 138 to a
person alleged to have committed an offence against this Law; and
(ii) states that if the person pays a specified amount within a specified
period the person will not be liable to be prosecuted for the offence; or
(b) a notice that:
(i) is given under regulations made for the purposes of sub-clause
162(3) to a person alleged to have contravened a provision described in
that sub-clause; and
(ii) states that if the person pays a specified amount within a specified
period the person will not be liable to proceedings for a civil penalty
for the contravention.
marine incident means any of the following:
(a) a death of, or injury to, a person associated with the operation or navigation
of a domestic commercial vessel;
(b) the loss or presumed loss of a domestic commercial vessel;
(c) a collision of a domestic commercial vessel with another vessel;
(d) a collision by a domestic commercial vessel with an object;
(e) the grounding, sinking, flooding or capsizing of a domestic commercial
vessel;
(f) a fire on board a domestic commercial vessel;
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(g) a loss of stability of a domestic commercial vessel that affects the safety of
the vessel;
(h) the structural failure of a domestic commercial vessel;
(i) a close quarters situation;
(j) an event that results in, or could have resulted in:
(i) the death of, or injury to, a person on board a domestic commercial
vessel; or
(ii) the loss of a person from a domestic commercial vessel; or
(iii) a domestic commercial vessel becoming disabled and requiring
assistance;
(k) the fouling or damaging by a domestic commercial vessel of:
(i) any pipeline or submarine cable; or
(ii) any aid to navigation within the meaning of the Navigation Act
2012 of the Commonwealth;
(l) a prescribed incident involving a domestic commercial vessel.
marine safety inspector means:
(a) a person appointed as an inspector under clause 91; or
(b) a member of the Australian Federal Police; or
(c) a member of the police force (however described) of a State or a Territory.
master of a vessel means the person who has command or charge of the
vessel, but does not include a pilot.
National Regulator has the meaning provided in clause 9.
National Standard for Commercial Vessels means the National Standard for
Commercial Vessels adopted by:
(a) the COAG Council; or
(b) if no such entity exists--the entity prescribed by the regulations for the
purposes of this paragraph.
operate a vessel means:
(a) determine or exercise control over the course or direction of the vessel or
over the means of propulsion of the vessel, whether or not the vessel is
underway; or
(b) loading or unloading the vessel when it is moored or berthed.
owner of a vessel includes:
(a) a person who has a legal or beneficial interest in the vessel, other than as a
mortgagee; and
(b) a person with overall general control and management of the vessel.
For this purpose, a person is not taken to have overall general control and
management of a vessel merely because he or she is the master or pilot of the
vessel.
premises includes the following:
(a) a structure, building, vehicle, vessel or aircraft;
(b) a place (whether or not enclosed or built on);
(c) a part of a thing referred to in paragraph (a) or (b).
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regulated Australian vessel has the same meaning as in the Navigation Act
2012 of the Commonwealth.
this Law includes the regulations and any other legislative instrument made
under this Law.
Uniform Shipping Laws Code means the Uniform Shipping Laws Code
adopted by:
(a) the COAG Council; or
(b) if no such entity exists--the entity prescribed by the regulations for the
purposes of this paragraph.
unsafe vessel means a vessel that is likely to endanger any person for any
reason, including because of:
(a) the condition or equipment of the vessel; or
(b) the manner or place in which cargo or equipment on the vessel is stowed or
secured; or
(c) the nature of the cargo; or
(d) the overloading of the vessel with people or cargo (including the
submergence of the vessel's load line); or
(e) the number of its crew or the qualifications of its crew or master.
Vessel has the meaning provided in clause 8.
Clause 7 - Definition of domestic commercial vessel
This clause sets out the definition for the term "domestic commercial vessel" in this
Bill and relies on the definition of `vessel' in clause 8. This definition determines the
meaning that is to be attributed to this term whenever it is used in the Bill and in any
regulations, Marine Orders and exemptions made under the Bill.
Sub-clause 1 provides the definition of a domestic commercial vessel.
Sub-clause 2 clarifies that a vessel used only partly for commercial, government or
research activity may still be considered to be a domestic commercial vessel,
depending on the circumstances of its use. An example of this is a vessel used for hire
and drive purposes where the hirer is undertaking recreational activities. The
definition of a `hire and drive vessel' is provided in clause 6.
Sub-clause 3 provides a definition of vessels that are not considered to be domestic
commercial vessels. The definition of `domestic commercial vessel' specifically
excludes a vessel that:
(a) is regulated under the proposed Navigation Act 2012;
(b) is registered under the law of a foreign country;
(c) is operated by the Australian Defence Force or the armed forces of a foreign
country; and
(d) is owned by a primary or secondary school or a community group described in
the regulations under this Bill.
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The aim of the definition is to capture any commercial activity, but not recreational
activity. In addition, it is not intended to capture school or community group vessels
where these are owned by the school or the group.
The regulations will provide a test to determine a community group. This test will
include the Australian Tax Office `non-profit' definition to determine whether the
group was intended to be profitable and a requirement that the organisation be
incorporated, or similar.
Sub-clause 4 clarifies that vessels that belong to primary or secondary schools and
community groups may be a domestic commercial vessel if they are used for a
purpose or activity described in the regulations under this Bill. This is intended to
include situations where such recreational vessels are also partly used for commercial
purposes, for example, vessels operated by volunteer search and/or rescue
organisations, vessels used as a hire and drive or charter vessel by members of the
public, vessels used in non-curricular or non-community group activities and vessels
operated by dive clubs. The definition of a `hire and drive vessel' is provided in
clause 6.
Sub-clause 5 provides that, in addition to the above definitions, the regulations under
this Bill may also specify whether particular vessels or types of vessels are domestic
commercial vessels or not. The intention is that the designation of what is and is not a
domestic commercial vessel would be refined through regulations under this Bill, but
the intended scope is set out in this clause. While the power to prescribe additional
things as a domestic commercial vessel in the regulations under the Bill is a
significant power, any addition to this definition will be by unanimous agreement by
all SCOTI Ministers.
Sub-clause 6 provides that the regulations under this Bill may refer to a decision of
the National Regulator on whether a vessel is a vessel belonging to a community
group.
Sub-clause 7 provides that a vessel under construction can be a domestic commercial
vessel if its intended use after construction meets the definition at Sub-clause 1.
Sub-clause 8 clarifies that a vessel under construction includes a vessel that has been
launched, but not yet completed and delivered under the relevant building contract.
Clause 8 - Definition of vessel
This clause sets out the definition for the term "vessel" in this Bill. This definition
determines the meaning that is to be attributed to this term and the definition of
`domestic commercial vessel' whenever it is used in the Bill and any regulations,
Marine Orders and exemptions made under the Bill.
The Bill defines "vessel" as a craft for use in navigation by water, however propelled
or moved, including air cushion vehicles, barges, lighters, submersibles,
`wing-in-ground effect' craft and ferries in chains. A `wing-in-ground effect' craft has
a commonly understood meaning within the industry both domestically and
internationally. Additionally, the Bill makes it clear that an aircraft is not a `vessel'.
24
It is intended that regulations made under the Bill will specifically include and
exclude some marine structures as vessels. An example of this is a moored structure
used for tourism activities, such as those used in the Great Barrier Reef Marine Park.
These structures are intended to be included as a `vessel'. However, pens used for
aquaculture will be specifically excluded.
Sub-clause 1 provides the definition of vessel.
Sub-clause 2 provides a definition of particular things that are not a vessel.
Sub-clause 3 provides that the regulations under this Bill may also specify whether or
not a particular thing is a vessel.
Part 2 - The National Marine Safety Regulator
This part of the Bill establishes the role of the National Regulator. It explains the key
functions of the National Regulator and permits the National Regulator to delegate
powers and functions under the National Law.
The National Regulator is responsible for the development and implementation of
domestic commercial vessel construction, operation and crew qualification standards
nationally. It is the implementation of national standards agreed by Transport
Ministers that is central to the new National System for marine safety in Australia.
A key feature of the National System is that the delivery of regulatory services will be
undertaken, under delegation, by jurisdictional staff under the authority of this Bill.
This arrangement is outlined in more detail in the COAG IGA.
Clause 9 - The National Marine Safety Regulator
This clause formally establishes the role of the National Marine Safety Regulator (the
National Regulator) and appoints AMSA to that role. AMSA is established by the
Australian Maritime Safety Authority Act 1990 of the Commonwealth. Section 10 of
that Act sets out the general powers of the Authority.
Clause 10 - Functions of the National Regulator
This clause sets out the specific functions of the National Regulator, which include:
· developing and maintaining Marine Orders, national standards, guidelines and
codes of practice;
· issuing unique identifiers and certificates;
· accrediting people for specific roles and functions;
· consulting with appropriate authorities in State and Territory jurisdictions;
· collecting, analysing and distributing information and data;
· providing advice to the Commonwealth Minister, the States and Territories
and the public;
· undertaking investigative, monitoring and enforcement activities;
· developing or commissioning education programs and functions; and
· undertaking such other functions as provided in this Bill or conferred by any
other law.
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Clause 11 - Delegation
The National Law allows the National Regulator to delegate certain powers and
functions to an employee of a Commonwealth, State or Territory agency, with the
consent of the relevant State and Territory. In practice, powers are intended to be
delegated to the head of each marine safety agency in the States and Territories, who
would then sub-delegate them to appropriate officers in their jurisdiction. This is a
key and intended feature of the National System agreed by COAG and reflected in
Schedule B to the IGA.
The delegation of functions, such as the assessment of applications, issuing of
certificates and conduct of compliance monitoring and enforcement activities, to
employees of State and Territory marine safety agencies is fundamental to the service
model for the day-to-day operation of the National System. It is the employees of the
State and Territory marine safety agencies who will deliver front-line services to the
public, as well as undertake the investigatory and compliance roles in each
jurisdiction, on behalf of the National Regulator.
When a delegate of the National Regulator performs a delegated function or exercises
a delegated power, the activity is deemed to be the activity of the National Regulator.
This is consistent with section 34AB(c) of the Acts Interpretation Act 1901.
Delegated agency employees will be subject to any directions of the National
Regulator in exercising National Law powers and functions. This is to ensure national
consistency and accountability is maintained in the delivery of the National System.
The arrangement under which the National System operates is collegiate in nature,
involving the co-operation of all jurisdictions. Aside from being used in relation to
delegations, it is expected that the power of the National Regulator to issue directions
would be a reserve power used in circumstances such as, for example, where a
jurisdiction departs from the processes and procedures that have been agreed by all
other States and Territories.
The National Regulator will not be able to delegate a power or function to an
employee of an agency of a State or Territory without the consent of the State or
Territory.
The delegation of the National Regulator's powers and functions under the National
Law will be implemented through an `instrument of delegation' signed by the Chief
Executive Officer (CEO) of AMSA. This will allow powers and functions to be
delegated to any person from time to time holding, occupying, or performing the
duties of a specified office or position (for example, to the position of CEO of a State
agency). The occupant of that position may in turn sub-delegate to a specified position
(for example, the Chief Surveyor of the agency). This approach to delegation and
sub-delegation is consistent with section 34AA of the Acts Interpretation Act 1901.
26
The instrument of delegation will:
· Identify the delegates. It is envisaged that the instrument will specify the position
of the CEO-equivalents in each marine safety agency, rather than name them
personally. That way, any person from time to time holding, occupying, or
performing the duties of the CEO-equivalent position will automatically have the
delegated powers and functions.
· Identify the powers and functions of the National Regulator that are delegated. It
is envisaged that these will include the power to:
o assess applications for and issue of Certificates of Survey, competence and
operations;
o vary, suspend and revoke those certificates;
o appoint marine safety inspectors; and
o accredit persons.
· Provide the power to sub-delegate a National Regulator power or function to
another officer or employee of the agency of which the delegate is an officer or
employee. For example, the CEO equivalent will have discretion to decide the
number and level of positions within their own agency, the occupants of which
will have power to issue National Law certificates. As another example, the CEO
equivalent will have the discretion not to sub-delegate the power to appoint
marine safety inspectors, or limit the sub-delegation to a small number of very
senior positions in the agency.
· Provide directions (i.e. conditions) that are imposed on the delegates, both
generally as well as specifically to a power or function, which are required to be
satisfied by the delegate when exercising the National Regulator's powers or
functions. These directions will also include the direction that any sub-delegation
must be made in accordance with the directions of the instrument of delegation
and in a standard form.
The directions imposed on the delegations will support accountability and promote
appropriate standards and consistency across the National System. It is envisaged that
these will include requirements to:
· Send copies of signed instruments of sub-delegation to the National Regulator. In
order to comply with its accountability obligations, the National Regulator will
need to know what positions in each agency have been given the National
Regulator's powers and functions.
· Use a `standard form' instrument of sub-delegation, appointment of marine safety
inspectors and accreditation of persons. Standard forms will be included in the
instrument of delegation and will help to promote consistency.
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· Set minimum qualifications, training and experience requirements for
sub-delegates, inspectors and accredited persons tailored to the particular power
and function. For example, the minimum qualifications for a delegate with power
to issue Certificates of Competency are likely to be different from those of an
inspector. Setting minimum requirements will promote appropriate standards and
consistency across the National System.
· Assist the National Regulator to comply with its own accountability obligations.
For example, because decisions of delegates are deemed to be decisions of the
National Regulator, the National Regulator will be required to respond to
applications for external review of the delegate's decision. It will be able to do
that only if the delegate assists by, for example, providing records relevant to the
decision.
Training packages will also be developed to ensure that delegates undertake their
duties to an acceptable standard when exercising powers and undertaking functions of
the National Regulator. This will include a National Marine Safety Regulator's
Delegate's Handbook, a National Marine Safety Regulator's Compliance and
Enforcement Manual and a range of training materials.
Sub-clause 1 allows the National Regulator to delegate powers and functions under
this Bill to an officer or employee of a Commonwealth or State and Territory agency.
This provision is fundamental to the day-to-day operation of the National System,
which involves certain functions being performed by employees of the State and
Territory marine safety agencies as delegates of the National Regulator. The
delegation must be provided in writing.
Sub-clause 2 provides the National Regulator with the ability to direct a delegate in
the performance of their functions and the exercise of their powers.
Sub-clause 3 provides the delegate with the ability to sub-delegate powers and
functions to another officer or employee of the same Commonwealth or State and
Territory agency. The sub-delegation must be provided in writing.
Sub-clause 4 provides the delegate with the ability to direct a sub-delegate in the
performance of their functions and the exercise of their powers.
Sub-clause 5 provides that any direction by the National Regulator to a delegate must
also be provided by the delegate to the sub-delegate.
Sub-clause 6 provides that sections 34AA, 34AB and 34A of the Acts Interpretation
Act 1901 apply equally to both a delegation and sub-delegation.
Sub-clause 7 requires the National Regulator to seek the agreement of the relevant
State or Territory before delegating a power or function to an officer or employee of
an agency in that jurisdiction.
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Part 3 - General Safety Duties Relating to Domestic Commercial Vessels
This part of the Bill outlines the General Safety Obligations (GSOs) relating to
domestic commercial vessels. The GSOs require that each person that is engaged with
a domestic commercial vessel and its operations does all that is reasonably practical to
ensure that reasonable care is taken for the safety of the vessel and people on board,
as well as the safe design and operation of the vessel.
The GSOs are imposed on:
· owners of domestic commercial vessels;
· a person who designs, commissions, constructs, manufactures,
supplies, maintains, repairs or modifies domestic commercial vessels;
· masters of domestic commercial vessels, or marine safety equipment
that relates to such a vessel;
· crew of domestic commercial vessels;
· passengers on domestic commercial vessels; and
· certain other people.
The GSOs are an important feature of the National Law that will apply to all domestic
commercial vessel operations. The purpose of the GSOs is to encourage the
development, maintenance and continuous improvement of a safety culture by all
parties in the domestic commercial vessel industry. This will assist in minimising the
risk of incidents involving death, injury or damage.
The Bill contains a set of GSOs and corresponding offences that will apply from the
commencement of the National Law until all States give effect to, as a State law, the
provisions contained in Part 2 of the Work Health and Safety Act 2011 (WHS Act).
Once all States and Territories have given effect to those provisions, the GSOs and
corresponding offences provided for in the Marine Safety (Domestic Commercial
Vessel) National Law (Consequential Amendments) Bill 2012: alignment with work
health and safety offences, will apply. The objective of this arrangement is to align the
National Law GSOs and offences with the WHS duties and offences, once the WHS
law has been implemented nationally.
This part of the Bill also provides direction on determining what is `reasonably
practical' to ensure safety.
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GSO PROVISIONS BEFORE ALL STATES GIVE EFFECT TO WHS ACT
Division 1 - Duties of owners
Clause 12 - Duty of owners of domestic commercial vessels to ensure safety of
vessels, marine safety equipment and operations
This clause requires the owner of a domestic commercial vessel to ensure the safety of
the vessel, including its equipment and operation. The conditions under which an
owner will breach this requirement are also provided. Importantly, this clause
provides that the owner of a domestic commercial vessel commits an offence if they
prevent or restrain the master of the vessel from ensuring the safety of the vessel or
people on the vessel.
Clause 13 - Offences relating to contraventions of section 12
Sub-clauses 1, 2 and 3 provide that the owner of a domestic commercial vessel is
guilty of an offence if the owner's action or inaction breaches sub-clause 12(1) and
was intentional, reckless or negligent. A penalty provision is applied according to the
Criminal Code. The level of the penalty depends on whether the action or inaction of
the owner was intentional, reckless or negligent.
Sub-clause 4 provides that the owner is also guilty of an offence if the owner's action
or inaction breaches sub-clause 12(1) but is not proven to be intentional, reckless or
negligent. A penalty provision is applied according to the Criminal Code.
Sub-clause 5 clarifies that an offence against sub-clause 4 is a strict liability offence.
Division 2 - Duties of designers, builders, suppliers etc.
Clause 14 - Duty relating to design, manufacture etc. of domestic commercial
vessels
This clause requires designers and manufacturers etc. of domestic commercial vessels
to:
· ensure the vessel and its equipment are safe for their intended use through
testing and examination; and
· provide adequate information about the safety and use of the vessel.
Clause 15 - Offences relating to contraventions of section 14
Sub-clauses 1, 2 and 3 provide that the designer and manufacturer etc. of a domestic
commercial vessel is guilty of an offence if their action or inaction breaches clause 14
and was intentional, reckless or negligent. A penalty provision is applied according to
the Criminal Code. The level of the penalty depends on whether the action or inaction
of the owner was intentional, reckless or negligent.
30
Sub-clause 4 provides that the designer and manufacturer etc. is also guilty of an
offence if their action or inaction breaches clause 14 but is not proven to be
intentional, reckless or negligent. A penalty provision is applied according to the
Criminal Code.
Sub-clause 5 clarifies that an offence against Sub-clause 4 is a strict liability offence.
Division 3 - Duties of Masters
Clause 16 - Duty of masters of domestic commercial vessels to ensure safety of
vessels, marine safety equipment and operations
This clause requires the master of a domestic commercial vessel to ensure the safety
of the vessel, its equipment and operation. The exception to this requirement applies
to the master of a hire and drive vessel used for recreational purposes. This operation
is viewed as directly comparable to a recreational activity and is not intended to be
captured under this obligation. The definition of a `hire and drive vessel' is provided
in clause 6.
Clause 17 - Duty of masters of domestic commercial vessels to take reasonable
care for safety of persons
This clause requires the master of a domestic commercial vessel to ensure the safety
of people affected by their action or inaction, as well as themselves. The exception to
this requirement applies to the master of a hire and drive vessel used for recreational
purposes. This operation is viewed as directly comparable to a recreational activity
and is not intended to be captured under this obligation. The definition of a `hire and
drive vessel' is provided in clause 6.
Clause 18 - Offences relating to contraventions of section 16 or 17
Sub-clauses 1, 2 and 3 provide that the master of a domestic commercial vessel is
guilty of an offence if the master's action or inaction breaches sub-clauses 16(1),
17(1) or 17(2) and was intentional, reckless or negligent. A penalty provision is
applied according to the Criminal Code. The level of the penalty depends on whether
the action or inaction of the owner was intentional, reckless or negligent.
Sub-clause 4 provides that the master is also guilty of an offence if the master's action
or inaction breaches sub-clauses 16(1), 17(1) or 17(2) but is not proven to be
intentional, reckless or negligent. A penalty provision is applied according to the
Criminal Code.
Sub-clause 5 clarifies that an offence against sub-clause 4 is a strict liability offence.
31
GSO PROVISIONS AFTER ALL STATES GIVE EFFECT TO WHS ACT
Once States have given effect to the Model Work Health and Safety legislation, the
general safety obligations (GSOs) and corresponding offences will be amended to
align with the duties and corresponding offences in the WHS Act. This consequential
amendment has been provided for in Schedule 2 of the Marine Safety (Domestic
Commercial Vessel) National Law (Consequential Amendments) Bill 2012. The
explanatory memorandum for this consequential amendments Bill provides further
detail as to the operation of these provisions.
Division 4 - Duties of crew
Clause 19 - Duty of crew of domestic commercial vessels to take reasonable care
for safety of persons, etc.
This clause requires a crew member of a domestic commercial vessel to:
· take reasonable care for their own safety and that of other people;
· comply with all reasonable and lawful directions from the master or
supervisor;
· not interfere with or misuse safety features of the vessel; and
· not place other people at risk from undertaking their duties.
The conditions under which a crew member will breach these requirements are also
provided.
Clause 20 - Offences relating to contraventions of section 19
Sub-clauses 1, 2 and 3 provide that the crew member of a domestic commercial vessel
is guilty of an offence if the crew member's action or inaction breaches sub-clauses
19(1), 19(2) or 19(3) and was intentional, reckless or negligent. A penalty provision is
applied according to the Criminal Code. The level of the penalty depends on whether
the action or inaction of the owner was intentional, reckless or negligent.
Sub-clause 4 provides that the crew member is also guilty of an offence if the crew
member's action or inaction breaches sub-clauses 19(1), 19(2) or 19(3) but is not
proven to be intentional, reckless or negligent. A penalty provision is applied
according to the Criminal Code.
Sub-clause 5 clarifies that an offence against sub-clause 4 is a strict liability offence.
32
Division 5 - Duties of passengers
Clause 21 - Duty of passengers on domestic commercial vessels to take
reasonable care for safety of persons, etc.
This clause requires a passenger on board a domestic commercial vessel to
· take reasonable care for their own safety;
· comply with all reasonable and lawful directions from the master or crew
member;
· not interfere with or misuse safety features of the vessel; and
· not unreasonably place other people at risk.
The conditions under which a passenger will breach these requirements are also
provided.
Clause 22 - Offences relating to contraventions of section 21
Sub-clauses 1, 2 and 3 provide that a passenger on board a domestic commercial
vessel is guilty of an offence if the passenger's action or inaction breaches sub-clauses
21(1), 21(2) or 21(3) and was intentional, reckless or negligent. A penalty provision is
applied according to the Criminal Code. The level of the penalty depends on whether
the action or inaction of the owner was intentional, reckless or negligent.
Sub-clause 4 provides that the passenger is also guilty of an offence if the passenger's
action or inaction breaches sub-clauses 21(1), 21(2) or 21(3) but is not proven to be
intentional, reckless or negligent. A penalty provision is applied according to the
Criminal Code.
Sub-clause 5 clarifies that an offence against sub-clause 4 is a strict liability offence.
Division 6 - Other duties
Clause 23 - Duty of persons relating to safety of persons on domestic commercial
vessels, etc.
Sub-clause 1 requires a person embarking, disembarking or on board a domestic
commercial vessel to take reasonable care for their own safety.
Sub-clause 2 provides the conditions under which a person will breach the
requirements of Sub-clause 1.
Sub-clause 3 requires a person to take reasonable care to ensure their actions or
inactions do not adversely affect the safety of other people on board a domestic
commercial vessel or engaged in action connected with such vessels.
Sub-clause 4 provides the conditions under which a person will breach the
requirements of sub-clause 3.
33
Clause 24 - Offences relating to contraventions of section 23
Sub-clauses 1, 2 and 3 provide that a person is guilty of an offence if their action or
inaction breaches sub-clauses 23(1) or 23(3) and was intentional, reckless or
negligent. A penalty provision is applied according to the Criminal Code. The level of
the penalty depends on whether the action or inaction of the owner was intentional,
reckless or negligent.
Sub-clause 4 provides that the person is also guilty of an offence if the person's action
or inaction breaches sub-clauses 23(1) or 23(3) but is not proven to be intentional,
reckless or negligent. A penalty provision is applied according to the Criminal Code.
Sub-clause 5 clarifies that an offence against sub-clause 4 is a strict liability offence.
Clause 25 - Duty of persons in relation to domestic commercial vessels
This clause requires a person to:
· not unreasonably cause, either by action or inaction, the loss, destruction or
serious damage of a domestic commercial vessel; and
· take reasonable action to prevent the loss, destruction or serious damage of a
domestic commercial vessel.
The conditions under which a person will breach these requirements are also
provided.
Clause 26 - Offences relating to contraventions of section 25
Sub-clauses 1, 2 and 3 provide that a person is guilty of an offence if their action or
inaction breaches sub-clauses 25(1) or 25(2) and was intentional, reckless or
negligent. A penalty provision is applied according to the Criminal Code. The level of
the penalty depends on whether the action or inaction of the owner was intentional,
reckless or negligent.
Sub-clause 4 provides that the person is also guilty of an offence if the person's action
or inaction breaches sub-clauses 25(1) or 25(2) but is not proven to be intentional,
reckless or negligent. A penalty provision is applied according to the Criminal Code.
Sub-clause 5 clarifies that an offence against sub-clause 4 is a strict liability offence.
Division 7 - General Provisions
Clause 27 - Determining what is reasonably practical to ensure safety
This clause provides direction on determining what is `reasonably practicable' to
ensure safety.
34
Clause 28 - Functions and powers of marine safety inspectors not affected
This clause is included as there may be circumstances where, for example, a marine
safety inspector takes control of the vessel from the master.
Clause 29 - Requirements imposed by this Part do not limit one another
This clause clarifies that a requirement under this part does not limit any other
requirement under this part. For example, clauses 23 and 25 may relate to passengers
as well as masters and the crew of a domestic commercial vessel.
Part 4 - Vessel Identifiers and Certificates for Vessels and Seafarers
This part of the Bill sets out the rules and requirements governing the Vessel
Identification, Certificates of Competency, and Certificates of Survey and Operation
of domestic commercial vessels that will be issued by the National Regulator:
· Vessel Identification - provides the unique identification of a vessel that stays
with the vessel over its life, even if it changes ownership or use.
· Certificate of Survey - provides evidence that the vessel has been surveyed
(initially and/or periodically where required) against specified standards in the
subordinate legislation. It will also outline the survey schedules for the vessel.
In general, only larger vessels (those longer than 7.5 metres), those operating
beyond sheltered waters or those engaged in passenger transport or other high
risk operations, will require survey.
· Certificate of Operation - provides permission to operate the vessel and
identifies any conditions attached to that permission. Importantly, the
Certificate will identify areas of potential risk and what steps the master will
take to minimise crew or passenger exposure to that risk. A certificate may be
issued for the operation of single or multiple vessels , and will identify the
vessel's or vessels' operating class(es) and operational area(s), any restrictions
on the vessel's geographic area of operation, as well as crewing requirements.
· Certificates of Competency - provides evidence that a seafarer has met the
requirements for their specified grade and permits them to serve on a vessel as
a master, officer or crew member with deck and/or engineering
responsibilities.
The National Law requires all vessels to have Vessel Identification. Uniquely
identifying each vessel will allow the National Regulator to monitor vessels and
review the history of their ownership and operation over time. It will also provide the
basis of identifying ownership for compliance and enforcement purposes or to find the
owner if a vessel is found adrift.
35
During the transition period following implementation of the National System
(i.e. from 2013 to 2016), it is intended that existing State and Territory vessel
identification schemes will be recognised as `Vessel Identification', provided they are
unique and are displayed on the vessel in accordance with the National Law. Official
Numbers issued under the Shipping Registration Act 1981 will also be recognised in
this manner, but registration requirements under that legislation are separate to the
National Law. Transport Ministers will consider a national scheme during the
transition period.
The practical details of applying for a certificate, including approved application
forms and the information and documentation required to accompany an application,
are outlined in this part. Additional details may also be contained in subordinate
legislation under the Bill.
The National Law also leaves the States and the Northern Territory free to levy their
own fee for issuing the Vessel Identification, Certificate of Operation, Certificate of
Survey and Certificates of Competency on behalf of the National Regulator.
Division 1 - Unique identifiers
Clause 30 - Person may apply for unique identifier
Sub-clause 1 permits a person to submit an application to the National Regulator for
the issue of a unique identifier for a domestic commercial vessel.
Sub-clause 2 requires an application under sub-clause 1 to meet the requirements in
the regulations under this Bill, including payment of any required fee and provision of
any required documentation. It is noted that the regulations could require an
application to be made in conjunction with an application for a certificate.
Clause 31 - Issue of unique identifier
Sub-clause 1 requires the National Regulator to issue a unique identifier for a
domestic commercial vessel if certain conditions are met.
Sub-clause 2 requires the regulations under this Bill to provide criteria that must be
met for the identification of a domestic commercial vessel.
Sub-clause 3 explains how the date of effect for a unique identifier is determined.
Clause 32 - Offence--operating etc. a vessel without a unique identifier (owner)
Sub-clause 1 provides that the owner of a domestic commercial vessel is guilty of an
offence if the vessel is required to have a unique identifier, but the owner fails to meet
this requirement and is not exempt from this requirement (see clause 143). A penalty
provision is applied according to the Criminal Code.
Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.
36
Clause 33 - Offence--operating etc. a vessel without a unique identifier (master)
Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an
offence if the vessel is required to have a unique identifier, but the master fails to
meet this requirement and is not exempt from this requirement (see clause 143). A
penalty provision is applied according to the Criminal Code.
Sub-clause 2 provides that sub-clause 1 does not apply if the master and vessel meet
certain recreational use requirements.
Sub-clause 3 clarifies that an offence under sub-clause 1 is a strict liability offence.
Clause 34 - Offence--display etc. of a unique identifier (owner)
Sub-clause 1 provides that the owner of a domestic commercial vessel is guilty of an
offence if the vessel is required to have a unique identifier and the owner fails to meet
the requirements for displaying a unique identifier on the vessel, as provided in the
regulations under this Bill. A penalty provision is applied according to the Criminal
Code.
The content of the offence is required to be located in the regulations as the concept of
a unique identifier is new to commercial vessel regulation in Australia. Currently,
there is significant variation between jurisdictions regarding vessel identification and
how the identification of a vessel is displayed. A set of criteria in the regulations
under this Bill needs to be developed in consultation with the jurisdictions to
accommodate these variations for existing vessels and establish standards required for
future vessels. Only after these regulations are developed and communicated to
stakeholders will an offence for not displaying a unique identifier be established.
Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.
Clause 35 - Offence--display etc. of unique identifier (master)
Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an
offence if the vessel is required to have a unique identifier and the master fails to meet
the requirements for displaying a unique identifier on the vessel, as provided in the
regulations under this Bill. A penalty provision is applied according to the Criminal
Code.
Sub-clause 2 provides that sub-clause 1 does not apply if the master and vessel meet
certain hire and drive vessel requirements. This is relevant to the hire and drive
scenario where the recreational master who hires the vessel is not in a position to
know if a unique identifier is in force. The definition of a `hire and drive vessel' is
provided in clause 6.
Sub-clause 3 clarifies that an offence under sub-clause 1 is a strict liability offence.
37
Clause 36 - Offence--removal or alteration of a unique identifier
Sub-clause 1 provides that a person is guilty of an offence if they are required to have
and display a unique identifier, but alter or remove the unique identifier when it is not
permitted by the regulations under this Bill (regulations may permit marine safety
inspectors to alter or remove the identifier). This clause is intended to also apply to
incidents where a person displays a false or fraudulent identifier on a vessel. A
penalty provision is applied according to the Criminal Code.
Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.
Division 2 - Certificates of survey
Clause 37 - Person may apply for a certificate of survey
Sub-clause 1 permits a person to submit an application to the National Regulator for
the issue of a Certificate of Survey for a domestic commercial vessel.
Sub-clause 2 requires an application under sub-clause 1 to meet the requirements in
the regulations under this Bill, including payment of any required fee.
Clause 38 - Issue of certificate of survey
Sub-clause 1 requires the National Regulator to issue a Certificate of Survey for a
domestic commercial vessel if certain conditions are met.
Sub-clause 2 requires the regulations under this Bill to provide criteria that must be
met for the survey of a domestic commercial vessel.
Sub-clause 3 provides that a Certificate of Survey is subject to any conditions
imposed by the regulations under this Bill and by the National Regulator.
Sub-clause 4 provides what the conditions imposed by the regulations under this Bill
and by the National Regulator may include.
Sub-clause 5 explains when a Certificate of Survey comes into force.
Sub-clause 6 clarifies that a suspended Certificate of Survey is not in force.
Clause 39 - Person may apply for variation, suspension or revocation of a
certificate of survey
Sub-clause 1 permits a person to submit an application to the National Regulator for
the variation, suspension or revocation of a Certificate of Survey for a domestic
commercial vessel.
Sub-clause 2 requires an application under sub-clause 1 to meet the requirements in
the regulations under this Bill, including payment of any required fee.
38
Clause 40 - Variation of certificate of survey
Sub-clauses 1 and 2 require the National Regulator to vary a Certificate of Survey for
a domestic commercial vessel if the National Regulator is satisfied that certain criteria
are met. Clause 39 permits a person to apply for a variation of a Certificate of Survey.
Sub-clause 3 permits the National Regulator to vary a Certificate of Survey for a
domestic commercial vessel to impose, vary or revoke a condition on the certificate.
Clause 41 - Suspension of certificate of survey
Sub-clauses 1 and 2 require the National Regulator to suspend a Certificate of Survey
for a domestic commercial vessel if the National Regulator is satisfied that certain
criteria for suspension are met, as provided in this Bill or in the regulations under this
Bill. Clause 39 permits a person to apply for a suspension of a Certificate of Survey.
Sub-clause 3 explains when the suspension of a Certificate of Survey comes into
force.
Sub-clause 4 explains that the suspension of a Certificate of Survey may remain in
force until any requirement or condition is fulfilled, as specified in writing by the
National Regulator. This provides the National Regulator with the flexibility to use
the fulfilment of a requirement or condition, rather than a specified date or period, to
end the suspension of a Certificate of Survey.
Clause 42 - Revocation of certificate of survey
This clause requires the National Regulator to revoke a Certificate of Survey for a
domestic commercial vessel if the National Regulator is satisfied that the criteria for
revocation on application are met, as provided in the regulations under this Bill.
Clause 39 permits a person to apply for a revocation of a Certificate of Survey.
Clause 43 - Offence--operating etc. a vessel without a certificate of survey
(owner)
Sub-clause 1 provides that the owner of a domestic commercial vessel is guilty of an
offence if a vessel is being operated and a Certificate of Survey is required for the
vessel, the vessel is not exempt from this requirement, but a Certificate of Survey is
not in force. A penalty provision is applied according to the Criminal Code.
Sub-clause 2 clarifies that an offence under Sub-clause 1 is a strict liability offence.
Clause 44 - Offence--operating etc. a vessel without a certificate of survey
(master)
Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an
offence if a vessel is being operated and a Certificate of Survey is required for the
vessel, the vessel is not exempt from this requirement, but a Certificate of Survey is
not in force. A penalty provision is applied according to the Criminal Code.
39
Sub-clause 2 provides that sub-clause 1 does not apply if the master and vessel meet
certain recreational use requirements. This is relevant to the hire and drive scenario
where the recreational master who hires the vessel is not in a position to know if a
survey certificate is in force. The definition of a `hire and drive vessel' is provided in
clause 6.
Sub-clause 3 clarifies that an offence under sub-clause 1 is a strict liability offence.
Clause 45 - Offence--breach of a condition of a certificate of survey (owner)
Sub-clause 1 provides that the owner of a domestic commercial vessel is guilty of an
offence if they fail to meet any conditions of a Certificate of Survey. A penalty
provision is applied according to the Criminal Code.
Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.
Clause 46 - Offence--breach of a condition of a certificate of survey (master)
Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an
offence if they fail to meet any conditions of a Certificate of Survey. A penalty
provision is applied according to the Criminal Code.
Sub-clause 2 provides that sub-clause 1 does not apply if the master and vessel meet
certain hire and drive vessel requirements. This is relevant to the hire and drive
scenario where the recreational master who hires the vessel is not in a position to
know if a Certificate of Survey is in force. The definition of a `hire and drive vessel'
is provided in clause 6.
Sub-clause 3 clarifies that an offence under sub-clause 1 is a strict liability offence.
Division 3 - Certificates of operation
Clause 47 - Person may apply for a certificate of operation
Sub-clause 1 permits a person to submit an application to the National Regulator for
the issue of a Certificate of Operation for one or more domestic commercial vessels.
Sub-clause 2 requires an application under sub-clause 1 to meet the requirements in
the regulations under this Bill, including payment of any required fee.
Sub-clause 3 requires an application for more than one domestic commercial vessel
under sub-clause 1 to separately identify each vessel.
Clause 48 - Issue of certificate of operation
Sub-clause 1 requires the National Regulator to issue a Certificate of Operation for
one or more domestic commercial vessels if the National Regulator is satisfied that
certain criteria are met.
40
Sub-clause 2 provides an exception to sub-clause 1 if the National Regulator is
satisfied that the applicant is not a fit and proper person to hold the certificate. A
definition of `fit and proper person' is provided in clause 74.
Sub-clause 3 requires the regulations under this Bill to provide criteria that must be
met for the safe operation of a domestic commercial vessel.
Sub-clause 4 provides that a Certificate of Operation is subject to any conditions
imposed by the regulations under this Bill and by the National Regulator.
Sub-clause 5 provides what conditions may be imposed on a Certificate of Operation
by the regulations under this Bill and by the National Regulator.
Sub-clause 6 explains when a Certificate of Operation comes into force.
Sub-clause 7 clarifies that a suspended Certificate of Operation is not in force.
Clause 49 - Person may apply for variation, suspension or revocation of a
certificate of operation
Sub-clause 1 permits a person to submit an application to the National Regulator for
the variation, suspension or revocation of a Certificate of Operation.
Sub-clause 2 requires an application under sub-clause 1 to meet the requirements in
the regulations under this Bill, including payment of any required fee.
Clause 50 - Variation of certificate of operation
Sub-clauses 1 and 2 require the National Regulator to vary a Certificate of Operation
if the National Regulator is satisfied that the criteria for the variation are met, as
provided in the regulations under this Bill, either on the initiative of the applicant or
the National Regulator. Clause 49 permits a person to apply for a variation of a
Certificate of Operation.
Sub-clause 3 permits the National Regulator to vary a Certificate of Operation to
impose, vary or revoke a condition on a Certificate of Operation.
Clause 51 - Suspension of certificate of operation
Sub-clauses 1 and 2 require the National Regulator to suspend a Certificate of
Operation if the National Regulator is satisfied that the criteria for suspension are met,
as provided in the regulations under this Bill, either on the initiative of the applicant
or the National Regulator. Clause 49 permits a person to apply for a suspension of a
Certificate of Operation.
Sub-clause 3 explains when the suspension of a Certificate of Operation comes into
force and the period it remains in force.
41
Sub-clause 4 explains that the suspension of a Certificate of Operation may remain in
force until any requirement or condition is fulfilled, as specified in writing by the
National Regulator. This provides the National Regulator with the flexibility to use
the fulfilment of a requirement or condition, rather than a specified date or period, to
end the suspension of a Certificate of Operation.
Clause 52 - Revocation of certificate of operation
Sub-clauses 1 and 2 require the National Regulator to revoke a Certificate of
Operation if the National Regulator is satisfied that the criteria for revocation on
application are met, as provided in the regulations under this Bill, either on the
initiative of the applicant or the National Regulator. Clause 49 permits a person to
apply for a revocation of a Certificate of Operation.
Sub-clause 3 permits the National Regulator to revoke a Certificate of Operation if
satisfied that the applicant is not a fit and proper person to hold the certificate. A
definition of `fit and proper person' is provided in Clause 74.
Clause 53 - Offence--operating etc. a vessel without a certificate of operation
(owner)
Sub-clause 1 provides that the owner of a domestic commercial vessel is guilty of an
offence if a vessel is being operated, a Certificate of Operation is required for the
vessel, the vessel is not exempt from this requirement, but a Certificate of Operation
is not in force. A penalty provision is applied according to the Criminal Code.
Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.
Clause 54 - Offence--operating etc. a vessel without a certificate of operation
(master)
Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an
offence if a vessel is being operated, a Certificate of Operation is required for the
vessel, the vessel is not exempt from this requirement, but a Certificate of Operation
is not in force. A penalty provision is applied according to the Criminal Code.
Sub-clause 2 provides that sub-clause 1 does not apply if the master and vessel meet
certain hire and drive vessel requirements. This is relevant to the hire and drive
scenario where the recreational master who hires the vessel is not in a position to
know if a Certificate of Operation is in force. The definition of a `hire and drive
vessel' is provided in clause 6.
Sub-clause 3 clarifies that an offence under sub-clause 1 is a strict liability offence.
Clause 55 - Offence--breach of a condition of a certificate of operation (owner)
Sub-clause 1 provides that the owner of a domestic commercial vessel is guilty of an
offence if they breach a condition of a Certificate of Operation for the vessel. A
penalty provision is applied according to the Criminal Code.
42
Sub-clause 3 clarifies that an offence under sub-clause 1 is a strict liability offence.
Clause 56 - Offence--breach of a condition of a certificate of operation (master)
Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an
offence if they breach a condition of a Certificate of Operation for the vessel. A
penalty provision is applied according to the Criminal Code.
Sub-clause 2 provides that sub-clause 1 does not apply if the master and vessel meet
certain hire and drive vessel requirements. This is relevant to the hire and drive
scenario where the recreational master who hires the vessel is not in a position to
know if a Certificate of Operation is in force. The definition of a `hire and drive
vessel' is provided in clause 6.
Sub-clause 3 clarifies that an offence under sub-clause 1 is a strict liability offence.
Clause 57 - Obligation to notify National Regulator of certain matters
Sub-clause 1 provides that the holder of a Certificate of Operation for a domestic
commercial vessel is guilty of an offence if they dispose of the vessel without
notifying the National Regulator of the disposal within a period specified in the
regulations under this Bill. Disposal includes where the vessel is sold, modified, sunk
or scrapped. A penalty provision is applied according to the Criminal Code.
Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.
Division 4 - Certificates of competency
Clause 58 - Regulations may provide for certificate of competency
This clause permits the regulations under this Bill to require a master or crew member
to hold a Certificate of Competency that is of a particular kind and relevant to their
duties and functions on board a domestic commercial vessel.
Clause 59 - Individual may apply for a certificate of competency
Sub-clause 1 permits a person to submit an application to the National Regulator for
the issue of a Certificate of Competency.
Sub-clause 2 requires an application under sub-clause 1 to meet the requirements in
the regulations under this Bill, including payment of any required fee.
Clause 60 - Issue of certificate of competency
Sub-clause 1 requires the National Regulator to issue a Certificate of Competency to a
person if certain conditions are met.
Sub-clause 2 provides an exception to the requirement under sub-clause 1 if the
National Regulator is satisfied that the applicant is not a fit and proper person to hold
the certificate. A definition of `fit and proper person' is provided in clause 74.
43
Sub-clause 3 requires the regulations under this Bill to provide proficiencies and other
requirements that must be met for a particular Certificate of Competency to be issued.
Sub-clause 4 provides that a Certificate of Competency is subject to any conditions
imposed by the regulations under this Bill and by the National Regulator.
Sub-clause 5 provides what may be included as conditions imposed on a Certificate of
Competency by the regulations under this Bill and by the National Regulator.
Sub-clause 6 explains when a Certificate of Competency comes into force.
Sub-clause 7 clarifies that a suspended Certificate of Competency is not in force.
Clause 61 - Person may apply for variation, suspension or revocation of a
certificate of competency
Sub-clause 1 permits a person to submit an application to the National Regulator for
the variation, suspension or revocation of a Certificate of Competency held by the
person.
Sub-clause 2 requires an application under sub-clause 1 to meet the requirements in
the regulations under this Bill, including payment of any required fee.
Clause 62 - Variation of certificate of competency
Sub-clauses 1 and 2 require the National Regulator to vary a Certificate of
Competency if the National Regulator is satisfied that the criteria for variation are
met, as provided in the regulations under this Bill, either on the initiative of the
applicant or the National Regulator. Clause 61 permits a person to apply for a
variation of a Certificate of Competency.
Sub-clause 3 permits the National Regulator to vary a Certificate of Competency to
impose, vary or revoke a condition on a Certificate of Operation.
Clause 63 - Suspension of certificate of competency
Sub-clauses 1 and 2 require the National Regulator to suspend a Certificate of
Competency if the National Regulator is satisfied that the criteria for suspension are
met, as provided in the regulations under this Bill, either on the initiative of the
applicant or the National Regulator. Clause 61 permits a person to apply for a
suspension of a Certificate of Competency.
Sub-clause 3 explains when the suspension of a Certificate of Competency comes into
force and the period it remains in force.
44
Sub-clause 4 explains that the suspension of a Certificate of Competency may remain
in force until any requirement or condition is fulfilled, as specified in writing by the
National Regulator. This provides the National Regulator with the flexibility to use
the fulfilment of a requirement or condition, rather than a specified date or period, to
end the suspension of a Certificate of Competency.
Clause 64 - Revocation of certificate of competency
Sub-clauses 1 and 2 require the National Regulator to revoke a Certificate of
Competency if the National Regulator is satisfied that the criteria for revocation are
met, as provided in the regulations under this Bill, either on the initiative of the
applicant or the National Regulator. Clause 61 permits a person to apply for a
revocation of a Certificate of Competency.
Sub-clause 3 permits the National Regulator to revoke a Certificate of Competency if
satisfied that the certificate holder is not a fit and proper person to hold the certificate.
A definition of `fit and proper person' is provided in clause 74.
The regulations will reference qualification and competency requirements necessary
to perform various duties and functions in accordance with Part D of the NSCV. This
standard is being developed in consultation with the jurisdictions to accommodate
variations between the jurisdictions and establish suitable future standards to ensure
the required safety outcomes are met. Once developed and communicated to
stakeholders, this standard and any subsequent amendments will be readily available
and known, providing certainty of the content of the offence.
Clause 65 - Offence--owner causing etc. performance of duties or functions
without a certificate of competency
Sub-clause 1 provides that the owner of a domestic commercial vessel is guilty of an
offence if the owner causes or permits a person to perform duties or functions on the
vessel when that person is required to hold a Certificate of Competency, is not exempt
from holding a certificate of competency, but does not hold a Certificate of
Competency. A penalty provision is applied according to the Criminal Code.
Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.
The regulations will reference qualification and competency requirements necessary
to perform various duties and functions in accordance with Part D of the NSCV. This
standard is being developed in consultation with the jurisdictions to accommodate
variations between the jurisdictions and establish suitable future standards to ensure
the required safety outcomes are met. Once developed and communicated to
stakeholders, this standard and any subsequent amendments will be readily available
and known, providing certainty of the content of the offence.
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Clause 66 - Offence--person performing duties or functions without a certificate
of competency
Sub-clause 1 provides that a person performing duties or functions on a domestic
commercial vessel is guilty of an offence if they are required to hold a Certificate of
Competency, they are not exempt from this requirement, but they do not hold a
Certificate of Competency. A penalty provision is applied according to the Criminal
Code.
Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.
The regulations will reference qualification and competency requirements necessary
to perform various duties and functions in accordance with Part D of the NSCV. This
standard is being developed in consultation with the jurisdictions to accommodate
variations between the jurisdictions and establish suitable future standards to ensure
the required safety outcomes are met. Once developed and communicated to
stakeholders, this standard and any subsequent amendments will be readily available
and known, providing certainty of the content of the offence.
Clause 67 - Offence--master causing etc. performance of duties or functions
without a certificate of competency
Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an
offence if the master causes or permits a person to perform duties or functions on the
vessel, the person is required to hold a Certificate of Competency and the person is
not exempt from this requirement, but the person does not hold a Certificate of
Competency. A penalty provision is applied according to the Criminal Code.
Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.
The regulations will reference qualification and competency requirements necessary
to perform various duties and functions in accordance with Part D of the NSCV. This
standard is being developed in consultation with the jurisdictions to accommodate
variations between the jurisdictions and establish suitable future standards to ensure
the required safety outcomes are met. Once developed and communicated to
stakeholders, this standard and any subsequent amendments will be readily available
and known, providing certainty of the content of the offence.
Clause 68 - Offence--owner causing etc. breach of a condition of a certificate of
competency
Sub-clause 1 provides that the owner of a domestic commercial vessel is guilty of an
offence if they cause or permit a person to perform duties or functions on the vessel in
breach of a condition of the Certificate of Competency held by that person. A penalty
provision is applied according to the Criminal Code.
Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.
46
Clause 69 - Offence--breach of a condition of a certificate of competency by any
person
Sub-clause 1 provides that a person is guilty of an offence if they perform duties or
functions on a domestic commercial vessel in breach of a condition of a Certificate of
Competency held by that person. A penalty provision is applied according to the
Criminal Code.
Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.
Clause 70 - Offence--master causing etc. breach of a condition of a certificate of
competency
Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an
offence if they cause or permit a person to perform duties or functions on the vessel in
breach of a condition of the Certificate of Competency held by that person. A penalty
provision is applied according to the Criminal Code.
Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.
Division 5 - General matters relating to unique identifiers and certificates
Clause 71 - National Regulator may require information
This clause permits the National Regulator to require an applicant to provide any
relevant information necessary to make a decision on an application for a certificate
or unique identifier. It also permits the National Regulator to decline to consider or
further consider an application until that further information is provided.
Clause 72 - National Regulator must give a show cause notice before varying,
suspending or revoking a certificate
This clause requires the National Regulator to provide a certificate holder with natural
justice before varying, revoking or suspending that certificate. However, it also
permits the National Regulator to vary, revoke or suspend that certificate without
providing notice to the certificate holder if the National Regulator is acting on the
application of the certificate holder.
Clause 73 - National Regulator may recognise certificates
Sub-clause 1 permits the National Regulator to recognise, in writing, a certificate or
class of certificates issued for a person or vessel under a law of another jurisdiction if
satisfied that certain conditions are met.
Sub-clause 2 provides that if a certificate is recognised by the National Regulator, it is
in force for the period specified on the original certificate.
Sub-clauses 3 and 4 permit the National Regulator to specify conditions on the
recognition of a certificate, which ceases to have effect if a condition is breached.
47
Sub-clause 5 permits the National Regulator to revoke the recognition of a certificate,
as provided in the regulations under this Bill.
Sub-clause 6 clarifies that the written recognition under sub-clause 1 is not a
legislative instrument, as defined under section 5 of the Legislative Instruments Act
2003. This clause is merely declaratory and provided to assist readers, rather than to
exempt such written recognition from the Legislative Instruments Act 2003.
Clause 74 - Fit and proper person
This clause provides that the National Regulator may take into account various
matters when assessing whether a person is a `fit and proper person' for the purposes
of holding or retaining a certificate. Such matters include convictions for an offence
against this Bill and against laws of the Commonwealth, State or Territory which are
relevant in deciding whether the person is able to satisfactorily perform their duties
and functions that the granting of a certificate will authorise.
It also clarifies that this clause does not affect the operation of Part VIIC of the
Commonwealth Crimes Act 1914, which includes provisions that, in certain
circumstances, relieve people of the requirement to disclose spent convictions and
require people aware of such convictions to disregard them.
The National Regulator may refuse to issue or revoke a Certificate of Operation or a
Certificate of Competency if the National Regulator is satisfied that the person is not
`fit and proper' to hold the certificate. A number of jurisdictions have specifically
requested the inclusion of a `fit and proper person' test.
The practical effect of such a provision for Certificates of Competency, for example,
is that the National Regulator may refuse to issue or revoke a certificate on the basis
of any unspent convictions for offences against the National Law and against State
and Territory laws on marine safety.
If a conviction for such an offence led the National Regulator to conclude there was a
potential effect on the safety of marine operation caused by the continued
participation of a person in the industry, this could be addressed through either the
revocation of a certificate or by issuing conditions to minimise the risk. For example,
if a person was repeatedly convicted for driving a motor vehicle under the influence
of alcohol, this may lead to either a refusal to issue a seafarer certificate or a
restriction that the person could only operate in the company of a person holding an
unrestricted certificate.
Such decisions are reviewable (see generally clauses 139 - 142).
Clause 75 - Regulations may provide for matters relating to certificates and
unique identifiers
This clause clarifies that the regulations under this Bill may provide for matters in
relation to certificates and unique identifiers.
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Clause 76 - Regulations may provide for matters relating to applications for
certificates and unique identifiers
This clause provides that the regulations under this Bill may provide for the specific
matters listed in the clause in relation to certificates and unique identifiers. It also
clarifies that the regulations under this Bill may include a requirement for information
provided in an application for a certificate and unique identifier to be verified by
statutory declaration.
Clause 77 - Regulations may make provision in relation to the issue, variation
and revocation of certificates and unique identifiers
Sub-clause 1 provides that the regulations under this Bill may provide for the specific
matters listed in the clause in relation to the issue, variation and revocation of
certificates and unique identifiers.
Sub-clause 2 provides that the required criteria to be satisfied to issue, vary or revoke
certificates or issue unique identifiers may include criteria relating to compliance with
the required standards set out in the regulations under this Bill (see clause 159).
Sub-clause 3 provides that the conditions to which certificates are subject may include
conditions relating to compliance with the required standards set out in the regulations
under this Bill (see clause 159).
Clause 78 - Regulations may make provision in relation to renewal and transfer
of certificates
This clause provides that the regulations under this Bill may provide for the renewal
and transfer of certificates, as well as a requirement to provide notification of events
involving domestic commercial vessels, such as change of ownership or disposal of a
vessel more broadly (see clause 57).
Clause 79 - Regulations may require display of certificates
This clause provides that the regulations under this Bill may impose a requirement to
display a certificate or a unique identifier in a specified manner.
Clause 80 - Regulations may provide for certificate of operation for persons
This clause provides that the regulations under this Bill may provide for Certificates
of Operation to be issued that permit the operation of domestic commercial vessels by
the applicant and other people. Certificates of Operation may also be issued that
permit the operation of one or more specified vessels identified by class.
Clause 81 - Effect of certificate of operation for persons
This clause clarifies that a Certificate of Operation is valid if it has been issued
according to the appropriate regulations under this Bill and the holder of the
certificate is acting in accordance with the requirements of the certificate.
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Clause 82 - Defeasibility
This clause clarifies that an issued certificate can be revoked or varied under the Act
or subsequent legislation. It also clarifies that no compensation is payable if the
certificate is revoked or varied.
Clause 83 - Certificates etc. to be made available
This clause provides that the holder of a certificate or other document issued or
required to be held under this law is guilty of an offence if they do not make the
certificate or other required document available for examination when reasonably
requested by the National Regulator or a marine safety inspector (as described in
Part 6). A penalty provision is applied according to the Criminal Code.
Clause 84 - National Regulator may require delivery of revoked certificates
This clause permits the National Regulator to require a person to return a revoked
certificate to the National Regulator, as described in the regulations under this Bill.
This provision is intended to ensure accountability in certificate holdings and prevent
the misrepresentation or fraudulent use of revoked certificates.
Part 5 - Assistance and Reporting Requirements
This part of the Bill imposes a general obligation on the master of a domestic
commercial vessel to provide assistance to vessels or people in distress when
requested. It also enables the master of a vessel in distress to requisition other vessels
to obtain this assistance.
The National Law makes it an offence not to provide such assistance, except in
circumstances where it is unreasonable or unnecessary for the master of the assisting
vessel to do so. An example of such a circumstance is where providing such
assistance could seriously endanger the responding vessel, its passengers and crew.
The master may be required to prove this, for example with pictorial or
meteorological evidence.
This part of the Bill also imposes a general obligation on the master of a domestic
commercial vessel to record any requests for assistance in the official log book of the
vessel, and for the master and owner of a domestic commercial vessel to report
marine incidents to the National Regulator. A definition of `marine incident' for
domestic commercial vessels is provided in clause 6.
The National Law makes it an offence not to record requests for assistance or report
marine incidents. Where an incident is likely to result in a formal investigation, there
is a general obligation for people on the vessel to preserve any relevant evidence to an
extent that is reasonably practical.
These obligations and powers are consistent with the current provisions of the SOLAS
Convention.
50
Clause 85 - Obligation to render assistance
Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an
offence if the master does not proceed as fast as practical to the assistance of people in
distress and inform them that they are doing so. The requirement to provide assistance
applies to vessels in any waters. A penalty provision is applied according to the
Criminal Code.
Sub-clause 2 provides that sub-clause 1 does not apply if certain conditions are met.
For each of the conditions listed in this sub-clause, the master is required to provide
evidence to support their claim that the condition has been met in the particular
circumstances. Otherwise, they will be guilty of an offence under sub-clause 1.
Clause 86 - Obligation to render assistance if requisitioned
Sub-clause 1 permits the master of a vessel in distress to requisition any domestic
commercial vessel that they consider best able to provide assistance, but only if the
master first consults with the masters of vessels that answer their distress call. The
power to requisition a vessel applies to any vessel in any waters.
Sub-clause 2 provides that the master of a requisitioned domestic commercial vessel
is guilty of an offence if the master does not proceed as fast as practical to the
assistance of people in distress. A penalty provision is applied according to the
Criminal Code.
Sub-clause 3 provides that sub-clause 2 does not apply if certain conditions are met.
For each of the conditions listed in this sub-clause, the master is required to provide
evidence to support their claim that the condition has been met in the particular
circumstances. Otherwise, they will be guilty of an offence under sub-clause 2.
Clause 87 - Obligation to record requests for assistance
Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an
offence if the master does not record the details of any assistance requested, provided
or not provided in the official log book of the vessel, but only if a log book is required
to be kept. A penalty provision is applied according to the Criminal Code.
Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.
Clause 88 - Reporting of marine incidents to National Regulator (owner)
Sub-clause 1 provides that the owner of a domestic commercial vessel is guilty of an
offence if the owner or the master does not provide the details of certain marine
incidents to the National Regulator as soon as reasonably practical after the incident.
In determining what is reasonably practical, the circumstances of the incident and the
time the owner became aware of the incident are relevant considerations. A penalty
provision is applied according to the Criminal Code.
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Sub-clause 2 provides that the owner of a domestic commercial vessel is guilty of an
offence if the owner or the master does not provide a written report of a marine
incident to the National Regulator within 72 hours after the owner becomes aware of
the incident. The written report must be in the form approved by the National
Regulator. A penalty provision is applied according to the Criminal Code.
Clause 89 - Reporting of marine incidents to National Regulator (master)
Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an
offence if the master or the owner does not provide the details of certain marine
incidents to the National Regulator as soon as reasonably practical after the master
becomes aware of the incident. In determining what is reasonably practical, the
circumstances of the incident will be a relevant consideration. A penalty provision is
applied according to the Criminal Code.
Sub-clause 2 provides that the owner of a domestic commercial vessel is guilty of an
offence if the owner or the master does not provide a written report of a marine
incident to the National Regulator within 72 hours after the master becomes aware of
the incident. The written report must be in the form approved by the National
Regulator. A penalty provision is applied according to the Criminal Code.
Clause 90 - Evidence of marine incidents
Sub-clause 1 provides that a person is guilty of an offence if that person fails to
preserve, as far as reasonably practical, material relevant to an investigation of a
marine incident involving a domestic commercial vessel. A penalty provision is
applied according to the Criminal Code.
Sub-clause 2 provides that the owner of a domestic commercial vessel is guilty of an
offence if the owner fails to preserve, as far as reasonably practical, material relevant
to an investigation of a marine incident involving the vessel. A penalty provision is
applied according to the Criminal Code.
The penalty in this provision has been set at a level that is comparable with that set for
offences of this nature, for which prosecution would be frustrated if the conduct
giving rise to an offence under this provision occurred. The intention is to provide no
monetary advantage or incentive to a potential offender to hinder a marine safety
inspector in order to prevent the inspector identifying other offences.
Part 6 - Powers of Marine Safety Inspectors
This part of the Bill creates powers to appoint marine safety inspectors and sets out a
comprehensive suite of monitoring and enforcement powers that they can exercise
throughout Australia to ensure compliance with the National Law. These powers are
necessary to ensure the safety of domestic commercial vessel operations and are
similar to those currently held by State and Territory marine safety inspectors and
compliance regimes in other industries.
52
The National Law also allows a range of people to be appointed as inspectors by the
National Regulator, including members of the Federal or State and Territory police
forces. However, most inspectors will be current employees of Commonwealth, State
or Territory marine agencies. This will provide the most appropriate regulatory
response to ensure compliance with the National Law.
Inspectors are provided with entry, inspection and seizure powers, including the
power to enter certain premises and board vessels with, and in some case without,
warrant or consent. The power of entry and search without a warrant or consent is
consistent with regulatory powers provided to officers of other comparable regimes,
such as appointed officers under the Fisheries Management Act 1991 and officers
under the Customs Act 1901.
These powers are an important function of the National Regulator and the compliance
and enforcement framework of the National Law, as agreed in the COAG IGA. They
are also consistent with the exception provisions of the Commonwealth's criminal law
policy regarding search and entry of conveyances, which recognises that obtaining a
warrant prior to entry of a vessel may be impractical given the inherent mobility of a
ship or may frustrate the maritime law operations because of the geographic and
temporal problems associated with compliance and enforcement of maritime vessels.
Provisions in the proposed Navigation Act 2012 (section 256, consistent with section
190AA Navigation Act 1912) in relation to entry, inspection and seizure powers are
also similar to the circumstances of compliance and enforcement for National Law
vessels. Although it is recognised that the similarity is lessened by the comparatively
close jurisdictional control and access to domestic commercial vessels, the inherent
mobility of a ship and potential for this to frustrate the operation of the law
nonetheless remain and therefore support the powers provided in this Bill.
While the powers of inspectors under the National Law are different to (and in some
cases less intrusive than) those powers that similar officers are familiar with under
State and Territory legislation, the provisions of this Bill are consistent with
Commonwealth policy and COAG agreement, and will allow inspectors to effectively
implement a compliance and enforcement regime that achieves the same regulatory
outcome as provided by current jurisdiction laws.
Inspectors will also be given the power to seize things where consent or a warrant has
been obtained. However, inspectors will also have an appropriately restricted power
to seize evidential material without a warrant, but only in serious or urgent
circumstances, or where circumstances make the obtaining of a warrant impractical,
in order to prevent concealment, loss or destruction of the evidential material.
This is intended to cover a small number of circumstances where it may be
impractical to obtain a warrant because the domestic commercial vessel is in an area
where it is not possible to get telephone reception to obtain a warrant, or the hours of
the safety operation are such that a magistrate is not available. There is also a
safeguard requiring the inspector to report to the National Regulator as soon as
practicable on any exercise of this power, along with the reasons for which the
seeking of a warrant was impractical.
53
Suitable accountability measures in the exercise of these powers will be affected by
conditions contained in the instrument of appointment of a marine safety inspector.
This instrument will provide for both general directions to assist the national regulator
in compliance with Commonwealth adjectival laws and specific directions in relation
to the exercise of the marine safety inspectors powers.
An inspector may also be assisted by other people (e.g. other representatives of the
National Regulator or its delegates) in exercising their powers or performing
functions or duties, if that assistance is necessary and reasonable. Those assisting an
inspector will be subject to the directions of the inspector and will have the same
powers, functions and duties as the inspector.
If an inspector has reasonable grounds to believe that a person is breaching the
National Law, or has breached the National Law and is likely to breach again, the
inspector will be able to issue a written notice to the person (by way of a direction,
prohibition or improvement notice) to address a marine safety risk.
The National Law makes it an offence to fail to obey the direction or requirement of
an inspector, or to hinder or obstruct an inspector in exercising their powers, without a
reasonable excuse.
This part of the Bill also outlines the rights and responsibilities of occupiers of vessels
and premises and imposes obligations on marine safety inspectors in the exercise of
their powers under the National Law. Procedures are also outlined for properly
obtaining and executing warrants for use by inspectors in exercising monitoring and
enforcement powers, as well as for the seizure and detention of things considered by
inspectors to be evidential material.
Division 1 - Appointment of marine safety inspectors etc.
Clause 91 - Appointment of marine safety inspectors
Sub-clause 1 permits the National Regulator to appoint, in writing, officers or
employees of a Commonwealth, State or Territory agency as marine safety inspectors.
This is to ensure the most appropriate regulatory response to secure compliance with
and enforcement of the National Law.
Under the COAG IGA, it has been agreed that operational functions of the National
Regulator will be primarily delivered by existing State and Territory marine safety
administrations, including the undertaking of investigations and compliance and
enforcement activities. As such, most inspectors will be employees of State and
Territory agencies.
A definition of `agency' is provided in clause 6 of the Bill. A number of jurisdictions
currently rely heavily on State water police to undertake compliance monitoring and
enforcement activities on their behalf. Accordingly, members of a State police force
are automatically marine safety inspectors (see the definition of marine safety
inspector in clause 6).
54
Sub-clause 2 provides that an inspector may exercise all of the powers of an inspector
under this Bill, or such powers as are specified in the appointment instrument for the
inspector. This provision ensures that inspectors are given only the powers necessary
for their particular duties.
Sub-clause 3 provides that the National Regulator may only appoint a person as an
inspector if satisfied the person has suitable qualifications or experience to properly
exercise the powers of an inspector. It is intended that, if appropriate, the National
Regulator will utilise existing State and Territory marine safety inspectors that have
suitable qualifications or experience.
Sub-clause 4 requires the National Regulator to seek the agreement of the relevant
State or Territory before appointing an officer or employee of a State or Territory
agency as a marine safety inspector.
Sub-clause 5 provides that an inspector must comply with any direction of the
National Regulator when exercising his or her powers and functions. The appointment
of marine safety inspector will be made by an instrument of appointment. This
instrument will provide for both general directions to assist the national regulator in
compliance with Commonwealth adjectival laws and specific directions in relation to
the exercise of the marine safety inspectors powers.
Clause 92 - Identity cards
Sub-clause 1 provides that the National Regulator must issue identity cards to marine
safety inspectors.
Sub-clause 2 provides that the form of the identity card is required to meet certain
requirements, as provided in this sub-clause.
Sub-clause 3 provides that a person is guilty of an offence if they do not return their
issued identity card to the National Regulator as soon as practical after ceasing to be
an inspector.
Sub-clause 4 provides that an offence against sub-clause 3 is a strict liability offence.
The strict liability nature of this offence will ensure that inspectors quickly return
their identity cards to the National Regulator after they cease to be inspectors, so as to
prevent the misuse of identity cards.
Sub-clause 5 protects inspectors by providing that the offence under sub-clause 3 does
not apply if the identity card has been lost or destroyed. An inspector is required to
provide evidence to support their claim that the identity card was lost or destroyed in
the particular circumstances. Otherwise, they will be guilty of an offence under
sub-clause 3.
Sub-clause 6 provides that an inspector must carry their issued identity card at all
times when exercising powers and performing functions and duties as an inspector.
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Clause 93 - False representation about being a marine safety inspector
This clause provides that a person is guilty of an offence if they misrepresent
themselves as a marine safety inspector. A penalty provision is applied according to
the Criminal Code. The strict liability nature of this offence will ensure that public
confidence in inspectors is maintained.
Clause 94 - Obstructing or hindering a marine safety inspector
This clause provides that a person is guilty of an offence if they hinder or obstruct a
marine safety inspector while exercising their powers. A penalty provision is applied
according to the Criminal Code.
The penalty in this provision has been set at a level that is comparable with that set for
offences of this nature, for which prosecution would be frustrated if the conduct
giving rise to an offence under this provision occurred. The intention is to provide no
monetary advantage or incentive to a potential offender to hinder a marine safety
inspector in order to prevent the inspector identifying other offences.
The obstruction or hindering of a marine safety inspector is considered a serious
offence and requires a significant penalty to deter such behaviour. This approach is
consistent with the Criminal Code Act 1995, where the obstruction of a
Commonwealth public official provides a penalty of 2 years imprisonment.
Division 2 - Entry, search, seizure, detention and information-gathering powers
Subdivision A--Powers to facilitate boarding of domestic commercial vessels
with or without consent or warrant
Clause 95 - Requirement to facilitate boarding a domestic commercial vessel
Sub-clause 1 permits a marine safety inspector to require a person to take reasonable
steps to facilitate the inspector's boarding of the vessel, as provided under clause 103
or clause 97. The purpose of this provision is to enable inspectors to easily board and
inspect a vessel whenever necessary to ensure its compliance with the National Law.
A similar provision can be found in subsection 184A(12) of the Customs Act 1901,
which has a maximum penalty of two years imprisonment for non-compliance (see
also subsection 84(1) of the Fisheries Management Act 1991).
Although the requirement in this sub-clause applies broadly to any person, a test of
reasonability will limit who it is that is obliged to take reasonable steps and what they
have to do to take such reasonable steps.
Sub-clauses 2 and 3 provide that the requirement in sub-clause 1 may be met by any
reasonable means and that the requirement applies whether or not the person in charge
of the vessel understands or is aware of the requirement.
Sub-clause 4 provides that a person is guilty of an offence if they fail to comply with
the requirement in sub-clause 1. A penalty provision is applied according to the
Criminal Code.
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Sub-clause 5 explains that sub-clause 4 does not apply if the person has a reasonable
excuse. The person is required to provide evidence to support their claim that they
have a reasonable excuse in the particular circumstances. Otherwise, they will be
guilty of an offence under sub-clause 4.
Sub-clause 6 clarifies that an offence under sub-clause 4 is a strict liability offence.
Clause 96 - Entering certain premises for access to domestic commercial vessel
Sub-clause 1 permits a marine safety inspector to enter any premises (other than
residential premises) to gain access to a domestic commercial vessel for the purposes
outlined in sub-clause 97(1). This clause provides inspectors with reasonable entry
powers for the places they will need to go to enforce the National Law, such as
commercial premises, but does not provide an automatic right of entry to personal
residences (see also clause 103). It should also be noted that the definition of premises
under this Bill includes a building, vessel, vehicle or aircraft (see clause 6).
Sub-clause 2 clarifies that sub-clause 1 does not permit an inspector to enter premises
unless the inspector has shown their identity card, or police identification if the
inspector is a uniformed police officer, if required by the occupier.
Sub-clauses 3 and 4 provide that an inspector is not required to comply with
sub-clause 2 if the inspector has reasonable grounds for suspecting that doing so
would endanger a person. In such cases, an inspector is required to show their identity
card to the occupier if present, or any other person if the occupier is not present, as
soon as practical after entering the premises.
Subdivision B--Powers relating to domestic commercial vessels, exercisable
without consent or warrant
Clause 97 - Boarding a domestic commercial vessel
Sub-clause 1 permits a marine safety inspector to board a domestic commercial vessel
for specified purposes.
Sub-clause 2 requires an inspector appointed under clause 91 to produce their identity
card if requested by the master of a domestic commercial vessel.
Sub-clause 3 requires an inspector that is a member of the Australian Federal Police
or a State or Territory police force and is not in uniform to produce their police
identification if requested by the master of a domestic commercial vessel.
Sub-clause 4 requires an inspector to leave and not re-board the vessel if they fail to
produce their identity card or police identification, or wear police uniform.
Sub-clauses 5 and 6 provides that an inspector is not required to comply with
sub-clauses 2, 3 or 4 if the inspector has reasonable grounds for suspecting that doing
so would endanger a person. In such cases, an inspector is required to show their
identity card or police identification to the master of the vessel as soon as practical
after boarding the vessel.
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Clause 98 - Requiring master of a vessel to answer questions about the nature of
the vessel
This is a critical provision for marine safety inspectors to enable them to determine
which regulatory scheme is applicable to a vessel (i.e. whether it is a recreational or
commercial vessel). This will enable the proper and valid exercise of applicable
powers.
Sub-clause 1 permits a marine safety inspector to require the master of a domestic
commercial vessel to answer any questions and provide any documents about the
nature or operations of the vessel when requested.
Sub-clause 2 provides that the master of a vessel is guilty of an offence if the master
is requested to meet the requirement under sub-clause 1 and fails to comply with the
requirement. A penalty provision is applied according to the Criminal Code.
Sub-clause 3 provides that sub-clause 2 does not apply if the master has a reasonable
excuse. The master is required to provide evidence to support their claim that they
have a reasonable excuse in the particular circumstances. A reasonable excuse would
include the privilege against self- incrimination.
Clause 99 - Monitoring domestic commercial vessels
Sub-clause 1 provides a marine safety inspector with vessel monitoring powers, as
provided under sub-clause 2. The inspector can exercise one or more of the vessel
monitoring powers and is not required to be on the vessel being monitored to exercise
those powers. This allows the inspector to exercise monitoring powers from a vessel
alongside the domestic commercial vessel where, for example, conditions would
make it unsafe to board.
The powers can be used by the inspector for both routine and targeted monitoring
purposes, as currently occurs in State and Territory jurisdictions. The inspector does
not need to reasonably suspect the presence of evidential material to exercise
monitoring powers. If the inspector has such reasonable suspicions, they may also
exercise additional powers at clauses 105 and 100.
Sub-clause 2 provides a list of the monitoring powers of inspectors, including the
power to observe or search a vessel, examine or inspect things on the vessel and
require people on board the vessel to provide certain details. These powers are
important for the inspector to determine compliance with the National Law and the
identity of a person. Monitoring powers are provided at clause 104. The power to
seize things on a vessel is provided at clause 100.
Sub-clause 3 provides that the monitoring powers permit an inspector to require the
person in charge of a vessel to stop the vessel, manoeuvre the vessel as directed or
take the vessel to a specified place. Failure to comply with this requirement is an
offence (see clause 102).
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Sub-clauses 4 and 5 provide that the monitoring powers permit an inspector to operate
electronic equipment, transfer any data found to a storage device (e.g. a disk) and
remove the data from the vessel to ascertain whether it contains information relevant
for monitoring purposes. Written permission from the occupier of the vessel is
required to use any storage device found on the vessel for the removal of data from
the vessel.
Sub-clause 6 provides that inspectors may only operate electronic equipment on the
vessel if they reasonably believe that such operation will not damage the equipment.
Clause 100 - Sampling, securing or seizing things found using vessel monitoring
powers
Sub-clauses 1, 2, 3 and 4 permit a marine safety inspector without a warrant to seize,
secure or take a sample of a thing found on a domestic commercial vessel during the
exercise of vessel monitoring powers if the inspector reasonably believes that the
thing is evidential material and either a warrant cannot be practically obtained or the
action is urgently required to prevent concealment, loss or destruction of the thing.
This provision is intended to be used where it is impractical to obtain a warrant, such
as in remote locations with little or no mobile phone coverage that would make it
impossible to obtain such a warrant in a reasonable timeframe. Other examples of
Commonwealth provisions similar to this sub-clause include subsection 70A(6) of the
National Health Security Act 2007 and subsection 68(6) of the National Vocational
Education Training Regulator Act 2010.
Sub-clause 5 provides that an inspector can only seize equipment or a disk, tape or
other storage device operated under section clause 99(4) if it is not practical to
transfer the data or transcribe the evidential material into documentary form, or if it
could constitute an offence against a Commonwealth, State or Territory law.
Division 7 requires inspectors to deal with seized things in certain ways.
Sub-clause 6 ensures accountability and the responsible exercise of this power by
requiring an inspector exercising powers under this clause to submit a report
providing specified details to the National Regulator.
Clause 101 - Detaining domestic commercial vessels
Sub-clause 1 permits a marine safety inspector to detain a domestic commercial
vessel, and require it to be brought to a place they considered appropriate, if the
inspector reasonably suspects the vessel will or has breached the National Law, either
within or outside Australia.
Sub-clause 2 requires the inspector to give written notice of the vessel's detention
within 14 days to the holder of the Certificate of Operation for the vessel, if available,
or otherwise the person in possession or control of the vessel before it was detained.
Sub-clause 3 permits the inspector to fix the written notice to a prominent part of the
vessel if the notice cannot conveniently be given in person.
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Sub-clause 4 provides requirements for the form and details of the written notice.
Sub-clause 5 provides that the regulations under this Bill can outline the process for
the return of detained vessels. Division 7 refers to the costs of detention and disposal
of vessels that cannot be returned.
Sub-clause 6 provides that a person is guilty of an offence if they operate, or permit or
cause the operation of, a vessel not released from detention and without the consent of
the inspector. A penalty provision is applied according to the Criminal Code.
Clause 102 - Offence--not complying with requirement made under section
Clause 99
Sub-clause 1 provides that a person is guilty of an offence if the person fails to
comply with the requirements in clauses 99(2)(h), 99(2)(i) and 99(3). A penalty
provision is applied according to the Criminal Code.
Sub-clause 2 provides that sub-clause 1 does not apply if the person has a reasonable
excuse. The person is required to provide evidence to support their claim that they
have a reasonable excuse in the particular circumstances. Otherwise, they will be
guilty of an offence under sub-clause 1.
Sub-clause 3 provides that a person is guilty of an offence if the person fails to
comply with the requirements in clause 99(2)(i) by providing false or misleading
information. A penalty provision is applied according to the Criminal Code.
Sub-clause 4 clarifies that an offence under sub-clause 1 is a strict liability offence.
Subdivision C--Powers relating to any premises, exercisable with consent or
warrant
Clause 103 - Entering premises with consent or under warrant
This clause permits a marine safety inspector to enter any premises for monitoring
purposes if they have reasonable suspicion that there may be evidential material on
the premises. However, sub-clause 3 clarifies that entry is only permitted under a
warrant or if the occupier consents to entry and has been shown an identity card,
police identification, or the inspector is in police uniform.
It is noted that this clause does not limit an inspector's power to enter premises under
clause 96 or clause 97 (see clause 108). Clause 115 contains rules about obtaining
consent and leaving premises if consent is withdrawn. Clauses 116 - 120 contain rules
relevant to entry under a warrant.
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Clause 104 - Monitoring premises
Sub-clause 1 provides a marine safety inspector with general monitoring powers in
relation to premises for monitoring purposes, as provided under sub-clause 2. The
inspector can exercise one or more of the vessel monitoring powers. These powers are
necessary to ensure the safety of commercial vessel operations and compliance with
the National Law. The powers are similar to those available to inspectors for
monitoring domestic commercial vessels, as provided in clause 99, but are only
exercisable with consent or under warrant.
Sub-clause 2 provides a list of the monitoring powers of inspectors. These powers are
important for the inspector to determine compliance with the National Law.
Sub-clauses 3 and 4 provide that the general monitoring powers include the power to
operate electronic equipment and the power to transfer any data found to a storage
device, such as a disk, and remove the data from the premises to ascertain whether it
contains information that is relevant for monitoring purposes. This will allow the
inspector to determine if there is any evidential material on premises. Written
permission from the occupier of the premises is required to use any storage device
found on the premises for the removal of data from the premises.
Sub-clause 5 provides that inspectors may only operate electronic equipment on the
premises if they reasonably believe that such operation will not damage the
equipment.
Sub-clause 6 provides that the general monitoring powers include the power to secure
a thing on premises for a period not exceeding 72 hours if certain conditions are met.
This period recognises that it may be impractical (or impossible) to obtain a warrant
or bring in an expert within a lesser period in some areas of the country (e.g. remote
Queensland and Western Australia). A maximum time of 72 hours is considered
practical and appropriate.
Clause 105 - Enforcement powers
Sub-clause 1 provides a marine safety inspector with a range of enforcement powers,
exercisable with consent or under warrant, in relation to premises if the inspector has
reasonable suspicion that there may be evidential material on premises. The inspector
can exercise one or more of the enforcement powers. These powers are necessary to
ensure the safety of commercial vessel operations and compliance with the National
Law. Division 7 requires inspectors to deal with seized things in certain ways.
Sub-clauses 2 and 3 provide that the enforcement powers include the power to operate
electronic equipment to ascertain whether the equipment or any storage device found
on the premises contains evidential material. The equipment and storage device can
be seized if entry is obtained under an enforcement warrant. Otherwise, the inspector
can use the equipment to transfer any data to a storage device for removal from the
premises. Written permission from the occupier of the premises is required to use any
storage device found on the premises for the removal of data from the premises.
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Sub-clause 4 provides that inspectors may only operate electronic equipment on the
premises if they reasonably believe that such operation will not damage the
equipment.
Sub-clause 5 provides that an inspector can only seize equipment or a disk, tape or
other storage device operated under Sub-clause 3(a) if it is not practical to transfer the
data or transcribe the evidential material into documentary form, or if it could
constitute an offence against a Commonwealth, State or Territory law. Division 7
requires inspectors to deal with seized things in certain ways.
Sub-clause 6 provides that the enforcement powers include the power to seize a thing
on premises only if certain conditions are met, as outlined in this sub-clause.
Clause 106 - Requiring persons on premises entered under warrant to answer
questions and produce documents
Sub-clause 1 permits a marine safety inspector with a warrant to require anyone on or
in the premises to answer questions and produce books, records or documents. The
effect of this sub-clause is that an inspector who has entered the premises under a
warrant, may compel the occupier to answer questions about, or produce documents
relating to, the operation of the National Law.
Sub-clause 2 provides that a person is guilty of an offence if the person fails to
comply with the requirement under sub-clause 1. A penalty provision is applied
according to the Criminal Code.
Sub-clause 3 provides that sub-clause 2 does not apply if the person has a reasonable
excuse. The person is required to provide evidence to support their claim that they
have a reasonable excuse in the particular circumstances. An example of a reasonable
excuse is the privilege against self-incrimination.
Clause 107 - Using force in executing a warrant
This clause permits a marine safety inspector to use force against people and things to
execute a warrant if this is necessary and reasonable in the circumstances. Only the
inspector can use force against a person, while persons assisting the inspector may
only use force against things. It is envisaged that the use of force against a thing
would include, but not be limited to, the moving of furniture or other objects to allow
access to evidentiary material. Actions under this provision would also be subject to
investigation by the Commonwealth Ombudsman.
This clause is similar to existing Commonwealth legislative provisions. Section 70 of
the National Vocational Education and Training Regulation Act 2010 allows the use
of force against things by authorised officers and persons assisting when executing a
warrant under that Act. Section 203J of the Customs Act 1901 and section 85B of the
Fisheries Management Act 1991 also allows the necessary and reasonable use of force
against people and things when executing warrants.
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Clause 108 - Relationship with Subdivision B
This clause clarifies that Subdivision B and C can operate concurrently, so that the
exercise of powers provided in Subdivision C does not limit the ability to also
exercise powers in Subdivision B. This is important to ensure that a marine safety
inspector is able to exercise both monitoring and enforcement powers where
necessary. It is also clarified that Subdivision B does not prevent Subdivision C from
applying to premises that are domestic commercial vessels.
Division 3 - Other powers
Clause 109 - Giving directions
Sub-clause 1 permits a marine safety inspector to give directions to a person requiring
the person to take reasonable steps to comply with the National Law within a
specified time if an inspector reasonably believes the person is not complying with the
National Law. However, an inspector may only give directions if it is reasonably
necessary to protect the health and safety of people or the environment, or else it is in
the public interest to do so. This would enable an inspector, for example, to direct that
equipment on a commercial vessel be operated so that it can be properly inspected in
circumstances if the inspector suspects there is a breach of the National Law in
relation to the equipment. Section 146 of the Gene Technology Act 2000 has a similar
power.
Sub-clause 2 requires an inspector to give directions in writing, unless there is an
urgent need to comply with the National Law to protect the health and safety of
people or the environment.
Sub-clause 3 provides that a person is guilty of an offence if the person does not take
the steps specified in a direction within the specified time. A penalty provision is
applied according to the Criminal Code.
Sub-clause 4 provides that an offence under sub-clause 3 is a strict liability offence.
Sub-clauses 5 and 6 permit the inspector to arrange for the specified steps in a
direction to be undertaken if the person does not take the steps in the specified time.
The person will be liable to pay any costs incurred by the National Regulator for such
arrangements and the amount may be recovered as a debt. Section 146 of the Gene
Technology Act 2000 has a similar cost recovery arrangement.
Sub-clause 7 requires the specified time in a direction to be reasonable in the
circumstances.
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Clause 110 - Issuing improvement notices
Sub-clause 1 permits a marine safety inspector to issue an improvement notice, in
writing, to a person if the inspector believes the person is breaching or has breached a
provision of the National Law and is likely to breach again. The power to issue
improvement notices has for many years been a fundamental tool used by inspectors
to achieve compliance with safety laws. For example, a similar power to issue
improvement notices can be found in section 98 of the Commonwealth Occupational
Health and Safety (Maritime Industry) Act 1993.
Sub-clauses 2 and 3 require the notice to specify the alleged breach of the National
Law, the reasons for that belief and the time period for action to be taken to prevent
any further breach. The period specified in the notice must also be reasonable.
Sub-clauses 4 and 5 permit the notice to specify action that the person is to take, or
not to take, during the period specified in the notice. The inspector is also permitted to
extend the specified period in writing.
Sub-clause 6 requires a person to ensure that the notice is complied with to the extent
of their control.
Sub-clause 7 provides that a person is guilty of an offence if the person fails to
comply with a requirement under a notice. A penalty provision is applied according to
the Criminal Code.
Sub-clause 8 clarifies that an offence under sub-clause 7 is a strict liability offence.
Clause 111 - Issuing prohibition notices
Sub-clauses 1 and 2 permit a marine safety inspector to issue a prohibition notice to
the responsible person in relation to a domestic commercial vessel if the inspector
reasonably believes an activity is occurring, or may occur, in relation to the vessel that
involves or will involve a serious risk to the health and safety of a person or to the
environment. The `responsible person' is defined to be the master of the vessel, but
provides for other people to be the responsible person if the inspector cannot locate
the master. A similar power relating to prohibition notices is in section 93 of the
Commonwealth Occupational Health and Safety (Maritime Industry) Act 1993.
Sub-clause 3 requires that the prohibition notice must set out the activity that the
inspector believes is a serious risk to health, safety or the environment and a direction
to ensure the activity is not engaged in or not engaged in a `specified manner'. For
example, a notice could specify that a person not operate an unsafe vessel.
Sub-clause 4 explains what a `specified manner' may relate to.
Sub-clauses 5 and 6 provide that a notice may specify the action to be taken and
ceases to have effect when an inspector notifies the responsible person that adequate
action has been taken to remove the risk to health, safety or the environment.
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Sub-clauses 7 and 8 permit the inspector to exercise any of the vessel monitoring
powers and general monitoring powers to determine if an action is adequate to
remove the risk to health, safety or the environment. The inspector is required to
inform the responsible person if the action taken is not adequate.
Sub-clause 9 provides that a person is guilty of an offence if the person engages in
conduct that results in a breach of a notice. A penalty provision is applied according
to the Criminal Code.
Sub-clause 10 clarifies that an offence under sub-clause 9 is a strict liability offence.
Clause 112 - Copies of notices to be displayed and distributed
Sub-clause 1 requires a marine safety inspector to provide a copy of an improvement
notice or prohibition notice to the master of a vessel and the Certificate of Operation
holder, or other people if the holder cannot be located. It also requires the recipient of
a notice to display the notice as directed by the inspector or otherwise in a prominent
place on or near the vessel.
Sub-clause 2 provides that a person is guilty of an offence if the person breaches the
requirements for the display of a notice. A penalty provision is applied according to
the Criminal Code.
Sub-clause 3 clarifies that an offence under sub-clause 2 is a strict liability offence.
Clause 113 - Notices not to be tampered with or removed
Sub-clause 1 provides that a person is guilty of an offence if the person tampers with
an improvement notice or prohibition notice while it is displayed or removes such a
notice before it has ceased to have effect. A penalty provision is applied according to
the Criminal Code.
Sub-clause 2 provides that sub-clause 1 does not apply if the person has a reasonable
excuse. The person is required to provide evidence to support their claim that they
have a reasonable excuse in the particular circumstances. Otherwise, they will be
guilty of an offence under sub-clause 1.
Sub-clause 3 clarifies that an offence under sub-clause 1 is a strict liability offence.
Division 4 - Persons assisting marine safety inspectors
Clause 114 - Persons assisting marine safety inspectors
Sub-clause 1 permits a marine safety inspector to be assisted, if necessary and
reasonable, by other people when exercising their powers or performing functions or
duties under Part 6. These people are called `persons assisting' the inspector.
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Persons assisting are intended to include other representatives of the National
Regulator or its delegates (e.g. employees of a State of Territory marine safety
agency). Police officers would not be included in this category because they are
automatically marine safety inspectors, as defined under clause 6. The rules and
conditions imposed by the National Regulator on marine safety inspectors will also
apply to any persons assisting an inspector.
Sub-clause 2 permits persons assisting to enter premises and exercise monitoring or
enforcement powers in accordance with directions given to them by an inspector.
Sub-clause 3 permits persons assisting to use necessary and reasonable force to
execute a warrant in relation to things, but not persons.
Sub-clauses 4 and 5 provide that powers exercised and functions or duties performed
by persons assisting are taken to have been exercised by the inspector.
Division 5 - Obligations and incidental powers of marine safety inspectors
Clause 115 - Consent
This clause requires a marine safety inspector to inform the occupier of premises that
they may refuse to consent to the inspector entering the premises for monitoring
purposes. The inspector must inform the occupier before obtaining that consent and
the consent has no effect unless it is voluntary. It may also be given for only a limited
time and may be withdrawn at any time. The inspector and any persons assisting must
leave the premises if consent no longer has effect.
Clause 116 - Announcement before entry under warrant
Sub-clause 1 requires a marine safety inspector to announce that they are authorised
to enter the premises before entering premises under a warrant. They are also required
to show their identity card and allow any person at the premises an opportunity to
allow entry. If the inspector is a uniformed police officer, the inspector need only
show police identification.
Sub-clause 2 provides that an inspector is not required to comply with sub-clause 1 if
they reasonably believe that immediate entry is required to ensure the safety of a
person or to ensure the effective execution of the warrant.
Sub-clause 3 requires an inspector that does not comply with sub-clause 1 to show
their identity card or police identification to the occupier of the premises as soon as
practical after entering the premises.
Clause 117 - Marine safety inspector to be in possession of warrant
This clause requires a marine safety inspector to possess a warrant, or a copy of it,
when executing a warrant in relation to premises.
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Clause 118 - Details of warrant etc. to be given to occupier
This clause requires a marine safety inspector executing a warrant to, as soon as
practical, provide a copy of the warrant to the occupier of the premises. They must
also inform the occupier of their rights and responsibilities under Division 6.
Clause 119 - Completing execution of warrant after temporary cessation
Sub-clauses 1 and 2 permit a marine safety inspector and any persons assisting to
complete the execution of a warrant if it is still in force and they are away from the
premises for no more than a certain period of time, depending on the circumstances.
This clause applies if the execution of a warrant is temporarily ceased and the
inspector leaves the premises. This provides some limited flexibility in the execution
of warrants. This may be required in circumstances where an emergency situation
arises that prevents the execution of the warrant, or where additional equipment,
people or some other act is necessary to execute the warrant, but is not immediately
available and causes a temporary cessation in the execution of the warrant.
Sub-clauses 3 and 4 permit an inspector or any persons assisting to apply to a
magistrate for an extension of the allowable period of absence from the premises
under certain circumstances. The inspector or persons assisting are required, if
practical, to notify the occupier of the premises of an intention to apply for an
extension before making the application.
Sub-clause 5 permits a magistrate to extend the allowable period of absence from the
premises if certain conditions are met. A magistrate may only extend the period if
satisfied that exceptional circumstances justify the extension and it would not result in
the period ending after the warrant ceases to be in force. Similar legislative powers
can be found in section 203L of the Customs Act 1901.
Clause 120 - Completing execution of warrant stopped by court order
This clause permits a marine safety inspector and any persons assisting to complete
the execution of a warrant that has been stopped by a court order if the order is
revoked or reversed on appeal and the warrant is still in force.
Clause 121 - Expert assistance to operate electronic equipment
Sub-clauses 1 and 2 permit a marine safety inspector to secure, by any means,
electronic equipment at premises to which a warrant applies. The inspector must
reasonably believe there is information relevant to monitoring purposes or that may
provide evidential material, that requires expert assistance to access on the premises,
and that the information may be destroyed, altered or interfered with if not secured.
Sub-clause 3 requires the inspector to give notice to the occupier of the premises of
any intention to secure the equipment and that it may be secured for up to 72 hours.
This period recognises that it may be impractical (or impossible) to obtain a warrant
or bring in an expert within a lesser period in some areas of the country (e.g. remote
Queensland and Western Australia). A maximum time of 72 hours is considered
practical and appropriate.
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Clause 122 - Compensation for damage to electronic equipment
Sub-clauses 1 and 2 require the National Regulator to provide agreed and reasonable
compensation to the owner of electronic equipment for damage or corruption to that
equipment. The damage or corruption must result from insufficient care exercised by
the operator of the equipment or in the selection of the operator of the equipment.
Sub-clause 3 permits the owner of the electronic equipment to seek compensation
determined by a court if agreement cannot be reached with the National Regulator on
reasonable compensation.
Sub-clause 4 provides that the determination of reasonable compensation will include
regard for any appropriate warnings or guidance from the owner about operating the
electronic equipment.
Sub-clause 5 clarifies that damage under sub-clause 1 includes erasing data or adding
other data.
Clause 123 - Extending period for which something is secured
This clause permits a marine safety inspector to apply to a magistrate to secure a thing
for more than 72 hours if they reasonably believe this is needed. The inspector is
required to give notice of an intention to apply for an extension to the occupier of the
premises, who it entitled to be heard in relation to that application. Clause 134
(monitoring powers) applies to the issue of an extension, with any necessary
modifications. The 72 hour period may be extended more than once. This period
recognises that it may be impractical (or impossible) to obtain a warrant or bring in an
expert within a lesser period in some areas of the country (e.g. remote Queensland and
Western Australia). A maximum time of 72 hours is considered practical and
appropriate.
Clause 124 - Offence-interfering with securing a thing
This clause provides that a person is guilty of an offence if they interfere with the
securing of a thing or a thing that has been secured by a marine safety inspector
before the end of the period for which the thing is secured. A penalty provision is
applied according to the Criminal Code.
The penalty in this provision has been set at a level that is comparable with that set for
offences of this nature, for which prosecution would be frustrated if the conduct
giving rise to an offence under this provision occurred. The intention is to provide no
monetary advantage or incentive to a potential offender to hinder a marine safety
inspector in order to prevent the inspector identifying other offences.
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Division 6 - Occupier's rights and responsibilities
Clause 125 - Occupier entitled to observe execution of warrant
This clause provides that the occupier of premises is entitled to observe the execution
of a warrant in relation to the premises if they are present. This entitlement ceases if
the occupier impedes the execution of the warrant. The execution of the warrant may
occur in more than one place at the premises.
Clause 126 - Occupier to provide marine safety inspector with facilities and
assistance
This clause requires the occupier of premises to provide all reasonable facilities and
assistance to a marine safety inspector and any persons assisting in the effective
exercise of their power. A person is guilty of an offence is the person fails to comply
with this requirement. A penalty provision is applied according to the Criminal Code.
It is also clarified that an offence under sub-clause 2 is an offence of strict liability.
Division 7 - General provisions relating to seizure and detention
Clause 127 - Copies of seized things to be provided
This clause requires a marine safety inspector to provide, on the request of the
occupier of premises, a copy of any seized document or information that can be
readily copied as soon as practical after the seizure. An inspector is not required to
comply with this requirement if the seized document or information could constitute
an offence against a Commonwealth, State or Territory law.
Clause 128 - Receipts for seized things
This clause requires a marine safety inspector to provide a receipt for any seized
things. A receipt may cover multiple seized things.
Clause 129 - Return of seized things
Sub-clause 1 requires a marine safety inspector to take reasonable steps to return any
seized thing when the reason for seizure no longer exists, the thing is not to be used in
evidence or 60 days have passed since the thing was seized.
Sub-clauses 2 and 3 provide exceptions to the requirements under sub-clause 1.
Sub-clause 4 requires that any seized thing is returned to the person from whom it was
seized, or to the owner of the thing if the person is not entitled to the thing.
Clause 130 - Magistrate may permit a thing to be retained
Sub-clause 1 permits a marine safety inspector to apply to a magistrate for an order
permitting them to retain a seized thing for a further period if court proceedings in
which the thing is evidence have not commenced. An application must be made
within 60 days from the seizure.
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Sub-clause 2 permits a magistrate to order a seized thing continue to be retained for a
specified period if satisfied that retention is necessary for investigation or prosecution
of an offence. The specified period must not exceed three years.
Sub-clause 3 requires an inspector to take reasonable steps to identify people with an
interest in the retention of the thing and notify each person, if practical, of the
proposed application to retain the thing for a further period.
Clause 131 - Costs of detention
Sub-clause 1 provides that the National Regulator is liable to provide reasonable
compensation to the owner of a detained domestic commercial vessel for costs,
damages or losses resulting from the detention if there was no reasonable or probable
cause for detention.
Sub-clause 2 provides that the owner of a detained domestic commercial is liable to
provide reasonable compensation to the National Regulator for costs incurred in the
detention of the vessel if that detention was reasonable in the circumstances.
Sub-clause 3 permits the National Regulator or the vessel owner to seek compensation
determined by a court if agreement cannot be reached on reasonable compensation.
Clause 132 - Disposal of seized things and detained vessels
This clause permits the National Regulator to dispose of seized things or detained
vessels as they see fit. This applies only if the owner of the thing or vessel cannot be
located after reasonable efforts, the owner refuses to take possession once contacted
or has not taken possession within three months since the person was contacted.
Clause 133 - Compensation for acquisition of property
This clause provides that the National Regulator is liable to provide reasonable
compensation to a person if property is acquired from them on unfair terms under
clause 132. The person is also permitted to seek compensation from the National
Regulator as determined by a court if agreement cannot be reached on reasonable
compensation.
Division 8 - Warrants
Clause 134 - Monitoring warrants
Sub-clause 1 permits a marine safety inspector to apply to a magistrate for a warrant
for monitoring purposes in relation to premises. The definition of premises under this
Bill includes a building, vessel, vehicle or aircraft (see clause 6).
Sub-clause 2 provides that a magistrate may issue a warrant if satisfied that it is
reasonably necessary that an inspector should have access to the premises for
monitoring purposes.
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Sub-clause 3 prevents a magistrate from issuing a warrant unless sufficient
information is provided to the magistrate on the grounds for the issue of a warrant.
Sub-clause 4 provides the form and details required in a warrant.
Clause 135 - Enforcement warrants
Sub-clause 1 permits a marine safety inspector to apply to a magistrate for a warrant
in relation to premises. The definition of premises under this Bill includes a building,
vessel, vehicle or aircraft (see clause 6).
Sub-clause 2 provides that a magistrate may issue a warrant if satisfied that there is
reasonable of evidential material on the premises at the time or within the next 72
hours.
Sub-clause 3 prevents a magistrate from issuing a warrant unless sufficient
information is provided to the magistrate on the grounds for the issue of a warrant.
Sub-clause 4 provides the form and details required in a warrant.
Clause 136 - Enforcement warrants by telephone, fax etc.
Sub-clause 1 permits a marine safety inspector to apply to a magistrate for an
enforcement warrant in relation to premises by telephone, fax or other electronic
means if it is urgent or if the inspector reasonably believes that an application in
person would prevent the effective execution of the warrant.
Sub-clause 2 permits a magistrate to require, if practical, communication by voice for
an application for a warrant.
Sub-clause 3 requires an application for a warrant to include all information in
relation to premises that provides the grounds for seeking the warrant. If it is
necessary to do so, the inspector may apply for the warrant before the information is
sworn or affirmed.
Sub-clause 4 provides for a magistrate to complete and sign a warrant issued under
clause 135 if, after considering the information required, the magistrate is satisfied
that there are reasonable grounds for issuing the warrant.
Sub-clause 5 requires the magistrate signing a warrant to inform the inspector by
telephone, fax or other electronic means, of the terms of the warrant and the day and
time it was signed.
Sub-clause 6 requires the inspector, after being informed by the magistrate, to
complete a form of warrant in the same terms as that approved and signed by the
magistrate, including the name of the magistrate and the day and time it was signed.
Sub-clause 7 requires the inspector to send the magistrate the form of warrant
completed by the inspector and the required information no later than the day after the
day of execution or the day the warrant ceased to be in force, whichever is earlier.
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Sub-clause 8 requires the magistrate to attach the inspector's warrant to the warrant
signed by the magistrate.
Sub-clause 9 provides that a properly completed inspector's warrant holds the same
powers as the warrant signed by the magistrate.
Sub-clause 10 requires a court to assume, unless proven otherwise, that an inspector's
warrant was not properly executed if the warrant signed by the magistrate is not
produced in evidence and the proper execution of a warrant is material to a case.
Clause 137 - Offence relating to warrants by telephone, fax etc.
This clause provides that a marine safety inspector is guilty of an offence if they
knowingly provide false or misleading information in an application for a warrant,
presents or executes a document that falsely purports to be a warrant, or presents a
warrant to a magistrate in a form different to that purported to have been executed. A
penalty provision is applied according to the Criminal Code.
Part 7--Infringement notices
Clause 138 - Infringement notices
This clause provides for the regulations under this Bill to allow an alleged offender to
pay a penalty as an alternative to prosecution. The penalty will be one-fifth of the
maximum fine imposed by a court for the offence. This provision is intended to allow
for effective enforcement of the National Law without imposing an unnecessary
burden on the court system.
Part 8--General matters
This part of the Bill addresses a range of miscellaneous matters important to the
efficient and proper functioning of the National Law. These include provisions for a
review of decisions made under the National Law and subordinate legislation,
exemptions issued under the National Law, the application of the National Law to
certain legal entities, the charging of fees for services and activities, providing
immunity from suit for those administering the National Law, and the matters that
may be provided for in the regulations and other legislative instruments under the
National Law.
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Division 1--Review of decisions
Clause 139 - Reviewable decisions
This clause provides a list of the decisions by the National Regulator that are
considered reviewable decisions under this Bill. In summary, these include a decision
under relevant clauses of this Bill to:
· vary, suspend or revoke a certificate;
· impose a condition on a certificate or an exemption;
· refuse to issue, vary, suspend, revoke or recognise a certificate;
· refuse to issue a unique identifier or grant an exemption;
· specify a condition, give a direction or detain a vessel; and
· issue a provisional improvement notice or a prohibition notice.
Clause 140 - Internal review of reviewable decisions
The consultation undertaken in the development of this Bill highlights that internal
review of reviewable decisions is seen by industry as an important provision that
allows for decisions to be reviewed without the need for more formal review by the
AAT. The provision of internal review mechanisms is also consistent with best
practice guidance on the subject from the Administrative Review Council.
Sub-clause 1 requires the National Regulator to give written notice to a person
regarding a reviewable decision about them. The notice must provide the decision, the
reasons for the decision and the right to have the decision reviewed under this clause.
These requirements are consistent with the general obligation to provide natural
justice in administrative processes.
Sub-clause 2 permits a person to apply to the National Regulator for the review of a
decision made about them.
Sub-clause 3 requires an application for the review of a decision to be in the form and
contain the details provided in this sub-clause.
Sub-clause 4 requires the National Regulator to review the decision when an
application for a review of the decision is received. The review must be undertaken by
a person with delegated powers, who was not involved in making the decision and
that is more senior to the decision maker.
Sub-clause 5 permits the person undertaking a review of a decision to retain, vary or
revoke the decision. The person is also permitted to make their own decision if the
original decision is revoked.
Sub-clause 6 provides that a failure to comply with sub-clause 1 does not affect the
validity of the decision.
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Clause 141 - Applications for AAT review
This clause permits a person to apply to the AAT for review of a decision under
sub-clause 140(5). The Administrative Appeals Tribunal Act 1975 of the
Commonwealth provides for the manner of applying for review.
Clause 142 - Review of decisions made under the regulations
This clause permits the regulations under this Bill to provide for the internal review of
decisions made by the National Regulator in accordance with the regulations under
this Bill. It also permits applications to the AAT for a review of decisions by the
National Regulator in accordance with the regulations under this Bill. The
Administrative Appeals Tribunal Act 1975 of the Commonwealth provides for the
manner of applying for review.
Division 2--Exemptions
Clause 143 - Power of exemption
The power for the National Regulator to provide exemptions under this Bill, along
with the transitional and grandfathering arrangements provided in clause 165, are
important to support the smooth transfer of domestic commercial vessel safety
arrangements from current State and Territory schemes to the new National Law.
Sub-clause 1 permits the National Regulator to exempt specified vessels and people,
or classes of vessels and people, from this Bill or specified provisions of this Bill.
Sub-clauses 2, 3, 4, 5 and 6 provide that an exemption may be confined to specific
periods or operations, may be granted on application or at the National Regulator's
initiative, and may be subject to specified conditions. The National Regulator can
only provide an exemption or impose conditions on an exemption if satisfied that
doing so will not jeopardise the safety of a vessel or a person on board a vessel.
Sub-clause 7 clarifies that exemptions are not legislative instruments. This clause is
merely declaratory and provided to assist readers, rather than to exempt such
exemptions from the Legislative Instruments Act 2003.
Clause 144 - Offence of breaching a condition of exemption (owner)
Sub-clause 1 provides that the owner of a domestic commercial vessel is guilty of an
offence if the owner breaches, or causes or permits another person to breach, a
condition on an exemption.
Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.
Clause 145 - Offence of breaching a condition of exemption (master)
Sub-clause 1 provides that the master of a domestic commercial vessel is guilty of an
offence if the master breaches, or causes or permits another person to breach, a
condition on an exemption.
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Sub-clause 2 clarifies that an offence under sub-clause 1 is a strict liability offence.
Clause 146 - Offence of breaching a condition of exemption (all persons)
Sub-clause 1 provides that a person is guilty of an offence if the person breaches a
condition on an exemption.
Sub-clause 2 clarifies that an offence under Sub-clause 1 is a strict liability offence.
Division 3--Application of National Law to certain bodies
Clause 147 - Treatment of partnerships
Sub-clause 1 provides that this Bill applies to partnerships as if they were a person,
but with the modifications outlined in this clause.
Sub-clause 2 provides that an obligation imposed on a partnership by this Bill is
imposed on each partner, but can be discharged by any partner.
Sub-clause 3 provides that an offence by a partnership under this Bill is an offence by
each partner.
Sub-clause 4 provides that a partner does not commit an offence if they were not
aware of the circumstance that created the offence or if they took all reasonable steps
to correct the offence as soon as possible after becoming aware of the circumstances.
The partner is required to provide evidence to support their claim that they were not
aware or that they took all reasonable steps as soon as possible in the particular
circumstances. Otherwise, they will be guilty of an offence under sub-clause 1.
Sub-clause 5 clarifies that a change in the composition of the partnership does not
allow the partnership to avoid the application of this clause.
Clause 148 - Treatment of unincorporated associations
Sub-clause 1 provides that this Bill applies to an unincorporated association as if it
were a person, but with the modifications outlined in this clause.
Sub-clause 2 provides that an obligation imposed on an unincorporated association by
this Bill is imposed on each member of the association's management committee, but
can be discharged by any partner.
Sub-clause 3 provides that an offence by an unincorporated association under this Bill
is an offence by each member of the association's management committee.
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Sub-clause 4 provides that a member of the association's management committee
does not commit an offence if they were not aware of the circumstance that created
the offence or takes all reasonable steps to correct the offence as soon as possible after
becoming aware of the circumstances. The member is required to provide evidence to
support their claim that they were not aware or took all reasonable steps as soon as
possible in the particular circumstances. Otherwise, they will be guilty of an offence
under sub-clause 1.
Clause 149 - Treatment of trusts with multiple trustees
Sub-clause 1 provides that this Bill applies to a trust of two or more people as if it
were a person, but with the modifications outlined in this clause.
Sub-clause 2 provides that an obligation imposed on a trust by this Bill is imposed on
each trustee, but can be discharged by any trustee.
Sub-clause 3 provides that an offence by a trust under this Bill is an offence by each
trustee.
Sub-clause 4 provides that a trustee does not commit an offence if they were not
aware of the circumstance that created the offence or takes all reasonable steps to
correct the offence as soon as possible after becoming aware of the circumstances.
The trustee is required to provide evidence to support their claim that they were not
aware or that they took all reasonable steps as soon as possible in the particular
circumstances. Otherwise, they will be guilty of an offence under sub-clause 1.
Division 4--Fees
Clause 150 - Charging of fees by the National Regulator
This clause permits the National Regulator to charge fees provided by the regulations
under this Bill. The fees will be payable to the National Regulator, related to goods
and services provided by the National Regulator, and must be commensurate with the
cost of providing the good or service. The National Regulator is able to recover any
unpaid fees in court.
However, it is not envisaged that the National Regulator will collect fees and charges
from industry in practice - these will in most, if not all, cases be levied by State and
Territory administrations to cover their costs of implementing and performing
functions of the National System. The IGA sets out in Part 6 the financial
arrangements that are intended to operate under the Reform. This provision would
allow the National Regulator itself to levy fees, in the event that Transport Minsters in
reviewing the arrangements recommended to COAG to modify the cost recovery
arrangements outlined in the IGA, or if the National Regulator itself had to provide
services, for example, in the Australian Capital Territory.
Fees chargeable by the National Regulator would have to be detailed in the
Regulations under this Bill and would therefore be subject to agreement by SCOTI.
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The National Law also makes clear that the States and Territories are free to charge
their own fees for the performance of functions delegated by the National Regulator.
Clause 151 - Charging of fees by accredited persons
Sub-clause 1 permits an accredited person to charge a fee for goods and services
provided under this Bill if they are not employed by the Commonwealth, a State or
Territory or their agencies. An accredited person so employed is also permitted to
charge a fee for goods and services provided under this Bill if these are provided
outside their employed capacity. As explained at clause 6, the definition of an
`accredited person' relies on the regulations under this Bill to further define what it
includes (see also clause 160).
Sub-clauses 2, 3 and 4 provide that the fees are payable to the accredited person, must
be related to goods and services provided by the accredited person, and must be
reasonably related to the cost of providing the good or service. The accredited person
is able to recover any unpaid fees in court.
Division 5--Disclosure of information
Clause 152 - Disclosure of information by certain persons to the National
Regulator
This clause permits certain persons (i.e. National Regulator delegates and appointed
marine safety inspectors) to disclose relevant information (including personal
information where relevant) to the National Regulator to ensure the proper
functioning of the National Law. For example, this is important to allow officers of
State and Territory agencies to provide information about people, evidential material
and seized things to the National Regulator for the prosecution of alleged offenders. A
definition of `personal information' is provided in clause 6, which is identical to the
definition in the Commonwealth Privacy Act 1988.
Division 6--Immunity from suit
Clause 153 - Immunity from suit
The immunity provisions in this Bill apply to acts or omissions in the exercise of
powers conferred or directions given under the National Law. It provides protection
from legal proceedings initiated by those adversely affected by the National Law,
including those wrongly adversely affected by actions or inaction undertaken in good
faith and within the scope of the powers and functions of the National Law.
The immunity provisions are intended to apply to people in an employer-employee
relationship (e.g. traditional employees), but not those in an engager-contractor
relationship (e.g. private surveyors). This is because traditional employees are subject
to the control and direction of the employer in performing tasks, while hired
contractors have individual control over how the task is performed. Whether the
immunity provision applies to a person in any particular case will depend on whether
they are a party to a `contract of service' or a `contract for service'. There are many
well established legal tests for determining this at common law.
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Marine safety inspectors, in particular, have a crucial role to play in the promotion of
marine safety and in eliminating or minimising serious risks to marine safety. They
may be required to exercise judgment, make decisions and exercise powers with
limited information and in urgent circumstances.
As a result, it is important that they and others engaged in the administration of the
Bill are not deterred from exercising their skill and judgment due to fear of personal
legal liability.
Sub-clause 1 provides immunity from criminal or civil prosecution for any action or
inaction by the National Regulator, marine safety inspectors and others engaged in the
administration of the National Law when exercising powers under this Bill.
Sub-clause 2 provides immunity from criminal or civil prosecution for any action or
inaction by a person when complying with a direction under this Bill.
Sub-clause 3 provides an exception to sub-clause 2 if there is any inconsistency with
an international agreement to which Australia is a party.
Sub-clause 4 provides that sub-clause 2 does not apply in proceedings in relation to
the acquisition of property from a person otherwise on just terms.
Sub-clauses 3 and 4 are consistent with section 17A of the Protection of the Sea
(Powers of Intervention) Act 1981.
Division 7--Matters relating to evidence and proceedings, etc.
Clause 154 - National Regulator may require certain information
Sub-clause 1 explains that this clause applies to any alleged offence of a master or
owner of a domestic commercial vessel against the National Law.
Sub-clause 2 permits the National Regulator to obtain, by a notice given within
30 days of the alleged offence, the name and contact details of the master or the
owner at the time of the alleged offence, depending on who is alleged to have
committed the offence.
Sub-clause 3 requires the notice in sub-clause 2 to specify the offence and the effect
of clause 155.
Clause 155 - Offence not to give information
Sub-clause 1 provides that a person is guilty of an offence if they are required to
provide information to the National Regulator in a notice under sub-clause 154(2) and
does not provide the information within 28 days after the notice is given. A penalty
provision is applied in accordance with the Criminal Code.
Sub-clause 2 provides that sub-clause 1 does not apply if the National Regulator is
satisfied that the vessel was stolen or wrongfully taken at the time of the offence.
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Sub-clause 3 clarifies that the offence in sub-clause 1 is a strict liability offence.
Clause 156 - Evidentiary certificates
Evidentiary certificates will only to be used in relation to technical, objective issues,
with the intent to reduce the time and expense incurred by the court and the relevant
parties in establishing facts that are not in dispute. They will not be available in
situations where there could be some argument about a particular fact and would not
be able to serve as prima facie evidence of intent, negligence, recklessness,
dishonesty or malice.
Sub-clause 1 permits the National Regulator to issue a document certifying that a
unique identifier or other specified certificate, or instrument of accreditation however
described, was in force or issued on a particular day for a domestic commercial
vessel, or that a specified person held a Certificate of Competency or another
specified certificate on a specified day, or that a specified certificate was or was not
subject to a condition on a specified day.
Sub-clause 2 clarifies that a certificate under sub-clause 1 can be used as evidence in
the proceedings of an offence under the National Law.
Clause 157 - Burden of proving certain matters lies on defendant
This clause provides that, in the absence of evidence to the contrary, the prosecution
is not required to prove certain specified facts about an alleged offence under the
National Law.
Division 8--Adverse publicity orders
Clause 158 - Adverse publicity orders
Adverse publicity orders are part of the suite of compliance and enforcement tools
available to the National Regulator. They involve the publication of an offender's
conviction and other relevant facts (such as the consequences of the offence), to either
a specific group of people or to the general public. Adverse publicity can be effective
in ensuring compliance with the National Law because corporations generally view
their reputation as a valuable asset. This approach to enforcement and compliance has
been adopted in several Australian jurisdictions and is a feature of Work Health &
Safety Act 2010 (Section 236), the Competition and Consumer Act 2010 (Section
86D) and the Victorian Marine Safety Bill 2010 (Section 173).
Sub-clause 1 explains the application of this division.
Sub-clause 2 permits a court to make an adverse publicity order requiring those guilty
of an offence against the National Law to publicise or notify people of the offence, the
penalty imposed and other details specified in the order. The offender may also be
required to provide the National Regulator with evidence of their compliance with the
order.
79
Sub-clause 3 permits a court to make the order in addition to any penalty for the
offence, either on its own initiative or on application by the prosecutor.
Sub-clause 4 permits the National Regulator to publicise or notify people of the
offence, the penalty imposed and other details specified in the order if an offender
fails to provide evidence required in sub-clause 2.
Sub-clause 5 permits the National Regulator to apply to a court for authorisation to
take action under sub-clause 4 if the National Regulator is not satisfied with the
evidence provided in sub-clause 2.
Sub-clause 6 permits the National Regulator to recover an amount for any reasonable
expenses incurred in undertaking action under sub-clauses 4 or 5.
Division 9--Regulations and other legislative instruments
Clause 159 - Regulations
Sub-clause 1 permits the Governor General to make regulations on certain matters.
Sub-clauses 2 and 3 permit the regulations under this Bill to provide for certain
standards and requirements in relation to this Bill. The nationally consistent
application of standards is a critical feature and objective of the National Law.
Sub-clause 4 permits the regulations under this Bill to provide for a scheme for and in
relation to Enforceable Voluntary Undertakings (EVU). An EVU is part of the suite of
compliance and enforcement tools available to the National Regulator. While an EVU
is an alternative to administrative or criminal action by the National Regulator, in
some circumstances certain enforcement actions can be combined with EVUs.
EVUs are remedial in nature and are intended to reduce risks to safety by having the
holder of a National Law certificate or other authorisation voluntarily modify their
practices, behaviour, attitude or skills to ensure they comply with the effect and intent
of the National Law and adhere to a culture of marine safety.
Sub-clause 5 permits the regulations under this Bill to provide for the National
Regulator to require a person to hold certificates or other documents that may be
required to comply with international conventions. Further, the sub-clause provides
that regulations under the Bill can provide for the issue, variation, suspension or
revocation of these certificates or other documents.
Sub-clause 6 requires that, before the Governor General makes a regulation that
changes the scope of the definition of a domestic commercial vessel under sub-clause
7(4) and 7(5), the Commonwealth Minister must be satisfied that the COAG Council
has been consulted on the proposed regulation and has unanimously agreed to the
making of the proposed regulation. COAG Council is defined in clause 6.
80
Clause 160 - Regulations may prescribe matters relating to accreditation and
approval
The regulations under the National Law will allow the National Regulator to provide
accreditation of private individuals for certain purposes, such as conducting vessel
survey or training. These provisions will be consistent with current arrangements in
some jurisdictions.
Sub-clause 1 permits the regulations under this Bill to provide for matters relating to
accreditation and approval, including the accreditation of people to perform roles
described by the regulations, as well as the approval of training organisations.
Sub-clause 2 provides examples of the matters that may be provided for in the
regulations under this Bill.
Sub-clause 3 requires that, before the Governor-General makes a regulation for the
purposes of sub-clause 1(a) providing for the accreditation of persons to perform the
role of a surveyor of vessels, the Commonwealth Minister must be satisfied that the
COAG Council has been consulted in relation to the proposed regulation and has
agreed to the making of the proposed regulation. COAG Council is defined in
clause 6.
Clause 161 - Offence of contravening a condition of accreditation
Sub-clauses 1, 2 and 3 provide that an accredited person is guilty of an offence if their
action or inaction breaches a relevant condition provided by the regulations under this
Bill, is a risk to the safety of a person or a domestic commercial vessel and was
intentional, reckless or negligent. A penalty provision is applied according to the
Criminal Code. The level of the penalty depends on whether the action or inaction of
the owner was intentional, reckless or negligent.
Sub-clause 4 provides that the person is also guilty of an offence if the person's action
or inaction breaches a relevant condition provided by the regulations under this Bill
but is not proven to be intentional, reckless or negligent. A penalty provision is
applied according to the Criminal Code.
Sub-clause 5 clarifies that an offence against sub-clause 4 is a strict liability offence.
Clause 162 - Regulations may prescribe penalties etc.
This clause provides that the regulations under this Bill may provide for penalties of
not more than 50 penalty units under the Criminal Code for offences against the
regulations. The regulations may also provide for civil penalties of not more than
500 penalty units for a body corporate or 100 penalty units in any other case. The
regulations may provide for the payment of a penalty as an alternative to a civil
penalty. Any penalty is capped at not more than one-tenth of the maximum penalty
that could be imposed by a court for the offence.
81
Clause 163 - Legislative instruments other than regulations
Sub-clause 1 permits the National Regulator to make a Marine Order in relation to
any matter that is permitted or required to be made under the regulations under this
Bill, except for certain matters. The provisions of sub-clauses 7(4) and 7(5) (definition
of domestic commercial vessel), 8(3a) (definition of vessel), 150(1) (fees) and
160(1)(a) (accreditation) may only be dealt with in the regulations.
The National Regulator is able to make Marine Orders on most matters about which
regulations are made. However, certain elements of the provisions relating to fees and
certain aspects of the definitions of `vessel' and `domestic commercial vessel' will
only be dealt with by regulation. This is because these matters affect the coverage of
the scheme, rather than scheme details, and therefore should be dealt with by
regulation rather than Marine Orders.
It is intended that Marine Orders will be the means for making vessel construction and
operation standards, together with near-coastal seafarer standards. Therefore, Marine
Orders may require compliance with a nationally endorsed standard, such as the
NSCV or the USL Code. The NSCV and the USL Code are sets of standards that have
been agreed by Transport Ministers to apply to the operation of domestic commercial
vessels.
It is intended that Marine Orders will be used to prescribe technical matters, such as:
· procedural matters relating to applications for certificates;
· criteria applicable to making decisions about certificates;
· the application of the NSCV and other national standards;
· procedural matters for review of decisions;
· returning detained vessels;
· prescribing matters for EVUs;
· prescribing matters relating to the accreditation of persons; and
· prescribing the infringement notice scheme.
Marine Orders are a form of government regulation that allows laws to keep pace with
rapid technical amendments and technological change in marine safety. Marine
Orders are also an efficient means of implementing Australia's international maritime
obligations in Australian law.
Marine Orders are made by the Chief Executive Officer of AMSA. However, being
legislative instruments for the purposes of the Legislative Instruments Act 2003,
Marine Orders are subject to review or scrutiny by the Senate Standing Committee on
Regulations and Ordinances, as well as disallowance by Parliament. Marine Orders
have been successfully used for some time in relation to the Navigation Act 1912.
Marine Orders under the National Law will be developed by AMSA in accordance
with the Australian Government's Best Practice Regulation Handbook. AMSA will
consult with industry and the Office of Best Practice Regulation (OBPR) throughout
the development process, including on the need for a RIS if the Marine Order will
have a significant regulatory impact on Australian businesses.
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Marine Orders will be registered on the Federal Register of Legislative Instruments
maintained by the Attorney-General's Department. Registration must occur in order
for the Marine Order to take effect.
Sub-clauses 2 and 3 provide that a Marine Order is invalid if it is inconsistent with
this Bill, but only to the extent of any inconsistency. This means that only that part of
the Marine Order that is inconsistent with this Bill will be invalid, while all other parts
of the Marine Order that are consistent with the Bill will continue to be valid. This
approach does not extend to any inconsistency between Marine Orders.
Clause 164 - Incorporation of material, etc.
This clause permits Marine Orders and the regulations under this Bill to provide for
any matters by applying, adopting or incorporating elements of any legislation in
force at the time, including the NSCV and the USL Code. This is an important
provision as it will enable the national application of those technical standards
adopted by Transport Ministers.
Clause 165 - Regulations may deal with transitional matters
This clause permits the regulations under this Bill to provide for transitional and
grandfathering arrangements. Such regulations will have effect regardless of any
provision of this Bill and may specify modifications to the effect of such provisions.
The regulations may permit a specified identifier, document, licence, certificate or
exemption issued before or after the commencement of this Bill by a State or
Territory to be recognised under this Law, including with requirements and
modifications. The regulations may also allow certain provisions to take effect from a
date before the regulations are registered under that Act, with no retrospective action
to be taken against offences in this case. The power to provide exemptions under this
Bill is also important in supporting transitional arrangements (see clause 143).
The National Law will include provisions for regulations to implement proposed
transitional arrangements. These will allow a smooth transition from individual
jurisdictional regulators to the National Regulator. For example, this is the mechanism
that will recognise a current state vessel registration as a Vessel Identification and a
Certificate of Operation, or a current survey certificate as a Certificate of Survey and
a Certificate of Operation for at least the initial period of the reform. In addition, this
will also be the mechanism to recognise existing State and Territory certificates of
competency as National Certificates of Competency, or as equivalent to the National
Certificates of Competency. These transitional arrangements have been developed
with industry during lengthy consultation on the proposed Regulatory Plan and
ongoing consultations on the crew certification plan and other marine standards.
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