Commonwealth Numbered Regulations - Explanatory Statements
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NAVIGATION REGULATIONS 2023 (F2023L01329)
EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Infrastructure, Transport, Regional Development and Local Government
Navigation Act 2012
The Navigation Act 2012 (the Act) is the primary legislative means for the Australian Government to regulate international ship and seafarer safety, shipping aspects of protecting the marine environment and employment conditions of Australian seafarers. It also gives effect to certain international conventions to which Australia is a signatory.
Subsection 339(1) of the Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Navigation Regulations 2023 (the Regulations) are primarily concerned with the management of Australian Border Force vessels but also address matters related to liability, loss and salvage. In line with the Navigation Regulation 2013, the Regulations provide for Australian Border Force (ABF) vessels to have their own, risk-based safety and environmental protection requirements, as established through vessel management plans. This reflects the unique design and operation of these vessels, distinct from commercial craft.
The Regulations remake the Navigation Regulation 2013, with improvements to administrative processes for vessel management plans, including:
* enhancing compliance reporting arrangements to provide a clear reporting structure from workers through to the Australian Maritime Safety Authority (AMSA) about the operation of the plan and compliance with relevant requirements under the Act;
* introducing a five-year lifespan for plans, with improved arrangements for their commencement and revocation. This aligns with good regulatory practice and helps ensure currency;
* introducing arrangements for minor amendments to be made to plans, without the need for a complete renewal process; and
* arrangements to transition existing plans made under the Navigation Regulation 2013 to be accepted as plans for the Regulations.
The Regulations retain matters related to liability, loss and salvage, with minor changes to reflect contemporary drafting. These arrangements:
- cover damages for personal injuries, including liability for loss of life, division of liability and right of contribution. These provisions recognise the longstanding principle of apportionment of loss in proportion to the degree of fault of each vessel involved in a collision. These provisions are a part of established maritime law and were retained in the Navigation Regulation 2013 from the Navigation Act 1912 when the Act was established. The Regulations continue these arrangements; and
- set out the provisions of the International Convention on Salvage 1989 which have the force of law in Australia.
Consultation was undertaken by the Department of Infrastructure, Transport, Regional Development, Communications and the Arts with key stakeholders including AMSA, ABF and relevant unions in preparing the Regulations. This included a process of calling for submissions and direct engagement with affected parties. The submissions process was undertaken in 2021 and further engagement undertaken throughout the preparation of the Regulations in 2023. In response to feedback received, compliance reporting arrangements have been enhanced. The administrative arrangements reflect engagement with AMSA and ABF.
The Office of Impact Assessment has confirmed the Regulations are unlikely to have a more than minor impact (OBPR21-01114).
Details of the Regulations are set out in the Attachment.
The Regulations commenced on 1 October 2023.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Navigation Regulation 2023
This Disallowable Legislative Instrument 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 Legislative Instrument
The Navigation Act 2012 (the Act) is the primary legislative means for the Australian Government to regulate international ship and seafarer safety, shipping aspects of protecting the marine environment and employment conditions of Australian seafarers. It also gives effect to certain international conventions to which Australia is a signatory.
The Navigation Regulations 2023 (the Regulations) are primarily concerned with the management of Australian Border Force vessels but also address matters related to liability, loss and salvage. In line with the Navigation Regulation 2013, the Regulations provide for Australian Border Force (ABF) vessels to have their own, risk-based safety and environmental protection requirements, as established through vessel management plans. This reflects the unique design and operation of these vessels, distinct from commercial craft.
The Regulations remake the Navigation Regulation 2013, with improvements to administrative processes for vessel management plans. These improvements include enhancing compliance reporting arrangements, introducing a five-year lifespan for plans and providing for minor amendments to plans. Transitional arrangements for existing plans are also provided for.
The Regulations also retain matters related to liability, loss and salvage, with minor changes to reflect contemporary drafting. These arrangements:
- cover damages for personal injuries, including liability for loss of life, division of liability and right of contribution. These provisions recognise the longstanding principle of apportionment of loss in proportion to the degree of fault of each vessel involved in a collision; and
- set out the provisions of the International Convention on Salvage 1989 which have the force of law in Australia
Human rights implications
This Disallowable Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Disallowable Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
Attachment - Details of the Navigation Regulation 2023
Part 1 - Preliminary
Section 1 - Name
This section provides for the title to be the Navigation Regulations 2023.
Section 2 - Commencement
This section provides for the Regulations to commence on 1 October 2023, which is also the date that the Navigation Regulation 2013 sunsets.
Section 3 - Authority
This section provides that the Regulations are made under Navigation Act 2012.
Section 4 - Schedule 2
This section provides that each instrument specified in Schedule 2 is amended or repealed as set out in the applicable items in that Schedule, and that any other item in a Schedule has effect according to its terms.
Section 5 - Definitions
Section 5 sets out the definitions necessary for the interpretation of the instrument.
This includes the meaning of the term 'significant change', which is referred to in Section 12, Section 13 and Section 14, in relation to the circumstances in which an amendment to a vessel management plan is provided for.
The definition of a significant change is not exhaustive but includes, for a vessel, a variation to a certificate, or a change to the vessel that substantially alters the vessel's dimensions, passenger accommodation spaces, or service life. For the operation of a vessel it includes a change to the kind of operations covered by the plan.
Notes to this section also set out definitions in the Act used in the Regulations and that Recognised organisations are prescribed in the Marine Orders.
Part 2 - ABF vessel management plans
Division 1--Review and acceptance of ABF vessel management plans
Section 11 of the Navigation Act 2012 (the Act) recognises the special role of Australian Border Force (ABF) vessels and the challenges they face in complying with sections of the Act while on operational duty. In order to avoid the need to obtain exemptions from the Act in such circumstances, often on very short notice or in time critical circumstances, section 11 provides for a standing arrangement for identified ABF vessels that is intended to produce a safer outcome for those on board.
The ABF operate a number of small and large vessels tasked to perform civil maritime security and regulatory roles encompassing tactical surveillance and enforcement.
In circumstances where there is an accepted ABF vessel management plan in place, section 11 allows alternate arrangements for certain vessels covered by the plan in regard to identified provisions of chapters 2, 3 and 6 of the Act. This arrangement only applies to those identified vessels which, because of the nature of their operations, would otherwise be required to seek administratively cumbersome exemptions to meet the legislative requirements.
In line with section 11 of the Act, ABF vessel management plans must be 'prepared', 'reviewed' and 'accepted' in accordance with the regulations. 'Preparation' is done by the Australian Border Force, 'review 'is done by Recognised Organisations (as defined by marine orders in line with 342(1) of the Act) and 'acceptance' is done by the Australian Maritime Safety Authority (AMSA).
Subdivision A--Introduction
Section 6 - Purpose of this Division
This section provides that Division 1 sets out matters regarding the preparation, review and acceptance of an ABF vessel management plan, and that these arrangements relate to compliance with provisions of Chapter 2, 3 or 6 of the Act. It sets out that the Division is made for the purposes of Section 11 of the Act and provides that this compliance is in relation to an ABF vessel, or a person, or a class of persons, in relation to an ABF vessel.
Subdivision B-- Review and acceptance of ABF vessel management plan
Section 7 - Review of ABF vessel management plan by recognised organisation
This section sets out requirements for the review of ABF vessel management plans by a recognised organisation.
Paragraph 1 provides that it is the Comptroller General of Customs that may submit an ABF vessel management plan to a recognised organisation for review.
Selection and engagement of a recognised organisation for the purposes of reviewing the plan is a commercial matter for the ABF that does not fall within the scope of the Regulations.
A recognised organisation so selected is the recognised organisation for the purposes of the Regulations.
Paragraph 2 sets out the mandatory contents of a plan, including information that identifies each vessel covered by the plan (subparagraph (a)), information that identifies the person, including the name of the person, if it relates to a non-compliance by a person (subparagraph (b)), and information that identifies the class of persons, including a description of the class and any exclusions, if it relates to non-compliance by a class of persons (subparagraph c)).
Paragraph 2 also requires the plan to include each provision of the Act that will not be complied with and an explanation of why, for each vessel covered by the plan (subparagraph d)), and for each person covered by the plan (subparagraph e)).
Subparagraph (2)(f) requires the plan to set out, in relation to each provision of the Act that will not be complied with, the requirements to be complied with instead, an assessment of any risk that may arise from the non-compliance and how that risk will be averted or mitigated by the alternative requirements.
Subparagraph (2)(g) requires the plan to set out arrangements for the review of the plan, including the review process, their frequency and nature, and how reviews will be reported and acted upon. These arrangements are required to be agreed by the Comptroller General of Customs and the recognised organisation.
Subparagraphs 2(h) and 2(i) establishes new requirements for vessel management plans to set out reporting arrangements. These operate with section 16 to provide a clear reporting structure from workers through to the Australian Maritime Safety Authority (AMSA) about the operation of the plan and compliance with relevant Act requirements.
Subparagraph (2)(h) requires the plan to set out arrangements for persons performing work for the ABF to make reports within the ABF about the operation of the plan and compliance with relevant requirements under the Act. The subparagraph provides for this requirement to be met by providing information identifying any other document setting out further details of the arrangements for such reporting. It is expected this requirement would be met by identifying existing reporting and quality control arrangements within ABF.
Subparagraph (2)(i) requires the plan to set out arrangements for reports to be made on behalf of the Comptroller General of Customs to the recognised organisation about the operation of the plan and compliance with relevant requirements under the Act. The subparagraph provides for this requirement to be met by providing information identifying any other document setting out further details of the arrangements for such reporting. It is expected this requirement would be met by identifying existing reporting and quality control arrangements within ABF.
Subparagraph (2)(j) requires the plan to set out the process by which compliance with relevant requirements under the Act will be reviewed by the recognised organisation, including the frequency of the reviews and the manner in which the reviews will be reported. This is distinct from subparagraph 2(g) which is about reviewing the plan itself.
Paragraph 3 establishes a requirement that a recognised organisation may only review the plan if relevant requirements for the content of a plan (paragraph 2) are met.
Paragraph 4 provides for the recognised organisation to take into account additional information or documents provided by the Comptroller General of Customs for the purposes of the review.
Paragraph 5 provides for a recognised organisation to declare it is satisfied that, for each provision of the Act that the vessel or person will not comply with, the risk of the non-compliance is adequately assessed, the alternative arrangements are adequately described, can be complied with and appropriately mitigate the identified risks. This declaration then becomes a key component of an application to AMSA for acceptance of the ABF vessel management plan.
Section 8 - Application for acceptance of ABF vessel management plan
Section 8 sets out requirements for applying for acceptance of an ABF vessel management plan.
Paragraph 1 establishes a criterion that the Comptroller General of Customs may apply to AMSA for acceptance of an ABF vessel management plan only if a recognised organisation has made a declaration under subsection 7(5) in relation to the plan.
Paragraph 2 sets out what the application must include. The application is required to include the plan, the declaration made by a recognised organisation and details of each contact person nominated by the Comptroller General of Customs for the plan.
Paragraph 3 provides for the Comptroller-General of Customs to propose a day for the plan's acceptance to commence and to end. It also provides that the end date must not be later than 5 years after commencement. These are new administrative arrangements establish a clear expiry for vessel management plans.
Section 9 - Acceptance of ABF vessel management plan by AMSA
Section 9 sets out arrangements for the acceptance of ABF vessel management plans, including ending acceptance.
Paragraph 1 prescribes that AMSA must accept the plan if it is satisfied the requirements for the application for acceptance of the plan (subparagraph 8(2)) have been met. The paragraph also requires AMSA give the Comptroller-General of Customs written notice of the acceptance. AMSA is required to complete both actions within 28 days of receiving the application.
Paragraph 2 provides for AMSA to specify when acceptance commences and ends. It requires these days to be set out in the notice to the Comptroller-General of Customs required by Paragraph 1. The latest date for the end of acceptance is five years. This five-year life span ensures periodic review of plans and supports their continued accuracy and currency.
Paragraph 3 provides that the dates specified may be, but are not required to be, the same as the days requested by the Comptroller-General of Customs.
Paragraph 4 sets out when acceptance commences, being the beginning of the day set out in the acceptance notice, if specified, or otherwise when AMSA gives notice of the acceptance.
Paragraph 5 sets out when acceptance ends, being the earliest date one of the events set out in subparagraphs(a) to (d) occur.
Subparagraph (a) provides for acceptance to end at the beginning of the day set out in the notice of acceptance, where specified.
Subparagraph (b) provides for acceptance to end by the Comptroller-General of Customs' decision, as provided for in Section 10.
Subparagraph (c) provides for acceptance to end if the acceptance is revoked in line with arrangements set out in Section 11. This includes revocation if a new plan is accepted covering the same vessel or person, or partial revocation to the extent a new plan covers some of the vessels or persons in the previous plan.
Subparagraph (d) provides for acceptance to end five years from acceptance. This sets a maximum lifespan of five years for any particular plan. This five-year life span ensures periodic review of plans and supports their continued accuracy and currency.
Paragraph 6 sets the arrangements for ending acceptance where a plan is partially revoked, as provided for under subparagraph 11(2). Under this arrangement the revoked part of a plan ends when the revocation occurs, while the remaining component continues until revoked in line with paragraph 5.
Section 10 - End of acceptance by Comptroller General of Customs
Section 10 provides a mechanism for ABF to end the acceptance of their vessel management plans. The provision sets out that acceptance ends at the discretion of the Comptroller General of Customs by giving AMSA written notice of their decision to do so. Provision is made for the notice to specify a day the acceptance is to end. In these cases, the acceptance ends at the beginning of the day specified. Otherwise the acceptance ends when AMSA receives the notice.
Section 11 - Revocation of acceptance if new ABF vessel management plan is accepted
Section 11 provides for vessel management plans to be replaced with new plans either in their entirety or partially, where appropriate.
Paragraph 1 provides that the acceptance of a plan ceases immediately before a new plan, for the vessel or person covered by the plan, is accepted.
Paragraphs 2 and 3 provides for the partial revocation of acceptance of previous plan where a new plan covers a subset of the matters of the existing plan. This is a new arrangement that is intended to provide greater flexibility and reduce administration in managing vessel management plans. These provisions allow AMSA to revoke the acceptance of the previous plan to the extent that the acceptance relates to the previous plan's coverage of that vessel or person. If AMSA chooses to do this, AMSA is required to give the Comptroller General of Customs written notice of the revocation, specifying the vessel or person to which the revocation relates.
Paragraph 4 makes clear that, where AMSA does not choose to partially revoke a plan the acceptance of the previous plan is taken to be wholly revoked when the acceptance of the new plan commences.
Subdivision C--Amendment to ABF vessel management plan
Subdivision C provides an arrangement for ABF to make amendments to a vessel management plan without having to go through the process of preparing a new plan. This is a new arrangement that was not provided for in the Navigation Regulation 2013 and is intended to provide greater flexibility and reduce administration in managing vessel management plans. Broadly, the amendments follow the same process foreshadowed in the Act for vessel management plans of prepare, review and accept.
Section 12 - Amendment to accepted ABF vessel management plan
Section 12 provides for the Comptroller General of Customs to submit an amendment to an accepted plan to a recognised organisation. The recognised organisation could then review the amendment and determine if they are satisfied that the amendment does not relate to a significant change. If so satisfied, recognised organisations are required to notify the Comptroller General of Customs in writing that it is satisfied that the amendment does not relate to a significant change. This step provides a level of technical oversight to ensure significant changes are not inadvertently treated as minor.
Section 13 - Application for acceptance of amendment to ABF vessel management plan
Section 13 provides for the Comptroller General of Customs to apply to AMSA for acceptance of an amendment to an ABF vessel management plan. This is only permitted where written confirmation from the recognised organisation is received that the amendment does not relate to a significant change. The application for acceptance is required to be in writing, set out the amendment; be accompanied by a copy of the part of the plan affected by the amendment, clearly identifying the amendment, and be accompanied by the notice given by the recognised organisation that the amendment does not relate to a significant change.
Section 14 - Acceptance of amendment to ABF vessel management plan by AMSA
Section 14 sets out arrangements for the acceptance of amendments to ABF vessel management plans.
Paragraph 1 prescribes that AMSA must accept the plan if it is satisfied the requirements for the application for acceptance of the plan (subparagraph 13(2)) are met and that the amendment does not relate to a significant change.
Paragraph 2 requires AMSA give the Comptroller-General of Customs and the recognised organisation written notice of the decision on the application.
Paragraph 3 stipulates that if AMSA does not give written notice of its decision within the 28 day period, the amendment is taken to be accepted at the end of that period.
Paragraph 4 clarifies that, if AMSA accepts the amendment, AMSA is taken to have accepted the plan as amended.
Paragraph 5 provides that the acceptance of the amendment does not affect the commencement or end of acceptance, as set out in subsections 9(4) and (5).
Paragraph 6 clarifies that, if AMSA does not accept the amendment, the acceptance of the plan continues as if the amendment had not been made.
Division 2--Non-compliance with ABF vessel management plan
Section 15 - Purpose of this Division
Section 15 clarifies that this division is made for made for the purposes of paragraph 339(2)(n) of the Act - the exercise of powers, and performance of functions, of issuing bodies.
Section 16 - Reporting of non compliance with requirements of ABF vessel management plan
Section 16 sets out a compliance obligation for recognised organisations to report to AMSA if they become aware that an Australian Border Force vessel or a person has not complied with a requirement of the ABF vessel management plan. In this event, the recognised organisation is required to notify AMSA as soon as practicable and provide any relevant documentation about the non-compliance.
Section 16 operates with subparagraphs 7(2)(h) and 7(2)(i) to provide a clear reporting link about the operation of the plan and compliance with relevant requirements under the Act from individuals working for ABF through to AMSA.
Part 3--Safety of navigation
Part 3 covers damages for personal injuries. These provisions recognise the longstanding principle of apportionment of loss in proportion to the degree of fault of each vessel involved in a collision. This principle was originally recognised in English law with the enactment of the Maritime Conventions Act 1911 applying the Convention for the Unification of Certain Rules of Law with Respect to Collisions 1910.
The provisions covering liability and division of loss are a part of established maritime law and were retained in the Navigation Regulation 2013 from the Navigation Act 1912 when the Act was established and continue to be retained in the Navigation Regulations 2023.
Section 17 – Application of this Part
Section 17 clarifies that Part 3 is made for the purposes of subsection 176(3) of the Act - Power to make regulations relating to collisions, lights and signals.
Section 18 - Liability for personal injuries
This section provides that where loss of life or personal injury is suffered by any person on board a vessel, owing to the fault of that vessel or any other, the owners' liability are joint and several. This section does not create a right of action for a person who suffers personal injury or deprive any person of any right of defence or right to limit liability as provided by law.
Section 19 - Rule as to division of liability
Section 19 provides that the liability for any damage or loss caused to one or more vessels including their cargoes or freight or to any property on board is to be apportioned to each vessel on the basis of its fault. If it is not possible to apportion fault after considering the circumstances of the case, then liability is to be apportioned equally.
Section 20 - Right of contribution
This section allows the owner of a vessel who has paid damages to a person killed or injured aboard a vessel, for instance, in a collision with another vessel, to recover payment from the owner of another vessel involved in the incident. This ability is limited to situations where the payment made by the vessel owner was more than the proportion required by their degree of fault. The section does not allow amounts to be recovered by suing for damages which could not otherwise be recovered. The owner's entitlement to sue for damages is not affected.
Part 4 - Salvage
Section 21 - Certain provisions of Salvage Convention to have force of law
Section 21 sets out the provisions of the International Convention on Salvage 1989 (Salvage Convention) which have the force of law in Australia. These are
* Article 6, which deals with salvage contracts;
* Article 7, which provides for the annulment and modification of contracts;
* Article 8, which sets out the duties of the salvor and of the owner and master;
* Article 12, which sets out the reward conditions for salvage operations;
* Article 13, which sets out the criteria for fixing the reward for salvage operations - as interpreted by The Common Understanding concerning Articles 13 and 14;
* Article 14, which sets out special compensation provisions for salvors - as interpreted by The Common Understanding concerning Articles 13 and 14;
* Article 15, which sets out the apportionment between salvors;
* Article 16, which deals with salvage of persons;
* Article 17, which deals with services rendered under existing contracts;
* Article 18, which sets out the effect of a salvor's misconduct;
* Article 19, which provides for the prohibition of salvage operations;
* Article 21, which sets out the duty to provide security;
* Article 22, which provides for interim payment;
* Article 23, which sets out the limitation of actions;
* Article 26, which deals with humanitarian cargoes; and
* Article, which 30 deals with reservations.
Part 5--Application, transitional and savings provisions
Section 22 - Transitional provision--ABF vessel management plan accepted before commencement
Section 22 provides for the transition of vessel management plans accepted under the Navigation Regulation 2013 to continue for the purposes of the Navigation Regulation 2023. It provides that, if the acceptance of the old plan had not expired the acceptance continues.
It also stipulates that, for the purposes setting a date for the end of acceptance, the plan's acceptance is to have commenced on 1 October 2023 and expires on 1 October 2028 unless otherwise set. The acceptance may end earlier than this date in accordance with this instrument, or where an earlier date had been already set under the Navigation Regulation 2013.
Schedule 1--Salvage Convention, the Common Understanding Concerning Articles 13 and 14
Schedule 1 sets out the common understanding of the International Conference on Salvage, 1989 concerning Articles 13 and 14 of the Salvage Convention. The International Conference on Salvage, which adopted the Salvage Convention in 1989, recognised that the drafting of Article 14 of the Salvage Convention was unclear. Accordingly, the Parties resolved to add the common understanding as an attachment to the Salvage Convention.
Schedule 2 repeals the Navigation Regulation 2013 in its entirety.