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PARLIAMENT OF VICTORIA
Marine (Domestic Commercial Vessel National Law
Application) Bill 2013
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purpose 1
2 Commencement 2
3 Definitions 2
PART 2--THE APPLIED PROVISIONS 5
4 Application of Commonwealth laws as laws of Victoria 5
5 Interpretation of Commonwealth domestic commercial vessel
national law 5
PART 3--FUNCTIONS AND POWERS UNDER APPLIED
PROVISIONS 7
6 Functions and powers of National Regulator and other
authorities and officers 7
7 Delegations by the National Regulator 7
PART 4--OFFENCES 8
8 Object of this Part 8
9 Application of Commonwealth criminal laws to offences
against applied provisions 9
10 Functions and powers conferred on Commonwealth officers
and authorities relating to offences 9
11 No double jeopardy for offences against applied provisions 10
PART 5--ADMINISTRATIVE LAWS 11
12 Application of Commonwealth administrative laws to applied
provisions 11
13 Functions and powers conferred on Commonwealth officers
and authorities 12
571271B.I-7/5/2013 i BILL LA INTRODUCTION 7/5/2013
Clause Page
PART 6--FEES AND FINES 13
14 Fees payable to officers or employees of Victoria acting as
delegates 13
15 Infringement notice fines 13
16 Fines, fees etc not otherwise payable to Victoria 13
PART 7--APPLICATION OF CHARTER ACT 15
17 Charter of Human Rights and Responsibilities Act 2006 15
PART 8--MISCELLANEOUS 16
18 Things done for multiple purposes 16
19 Reference in Commonwealth law to a provision of another law 16
20 Authority to accept delegation of functions 16
21 Victorian regulations 17
PART 9--TRANSITIONAL PROVISIONS 20
22 Regulations dealing with transitional matters 20
PART 10--AMENDMENT OF MARINE SAFETY ACT 2010 21
Division 1--Preliminary 21
23 Purpose 21
24 Definitions 21
25 New sections 4A and 4B inserted 24
4A Meaning of recreational hire and drive vessel 24
4B Meaning of recreational vessel 24
26 Declaration of recreational vessels 25
27 Repeal of section 8--declarations relating to recreational use
of commercially operated vessels 25
28 New section 9 substituted 25
9 Application of Act 25
29 Principle of shared responsibility 26
Division 2--Marine safety duties 26
30 Heading to Part 2.2 26
31 Repeal of section 25--safety duties of owners of
commercially operated vessels 26
32 Safety duties in relation to design, manufacture and supply
of vessels 27
33 Safety duties in relation to design, manufacture and supply
of marine safety equipment 27
34 New section 29 substituted 27
29 Duties of pilotage service providers to owners of
domestic commercial vessels 27
35 Duties of marine safety workers 28
571271B.I-7/5/2013 ii BILL LA INTRODUCTION 7/5/2013
Clause Page
36 Heading to Part 2.5 28
37 Masters of recreational vessels or hire and drive vessels must
take reasonable care 28
38 Persons participating in the operation of a recreational vessel
must take reasonable care 29
39 Passengers on board vessels must take reasonable care 29
Division 3--Operation of vessels 29
40 Purposes of registration 29
41 Offence if vessel not registered 29
42 Vessel may be registered in one name only 30
43 Effecting registration, renewal or transfer 30
44 Safety Director may impose registration conditions 30
45 Prescribed conditions on registration 30
46 Register of registered vessels 30
47 Safety Director may cancel or suspend registration of a vessel 30
48 Cancellation of registration by court 31
49 Heading to Part 3.2 31
50 Repeal of Part 3.3--certification of commercial vessels and
operation 31
51 Heading to Part 3.4 31
52 Repeal of Division 1 of Part 3.4--certificates of competency 31
53 Offence to navigate vessel without local knowledge certificate
in waters requiring certificate 31
54 Application for local knowledge certificates 32
55 Repeal of section 86--offences relating to load lines 32
56 Dangerous operation of a recreational vessel, government
vessel or hire and drive vessel 32
57 Assistance to people in distress 33
58 Reporting requirements in relation to reportable incidents 33
59 Reporting of reportable incidents to Safety Director 33
60 New section 95 substituted 33
95 Definitions 33
61 Regulations giving effect to Prevention of Collisions
Convention 34
62 Regulations giving effect to Safety Convention 34
63 Regulations under this Division 35
64 Authority of Governor in Council to make regulations in
relation to powers under Conventions 35
Division 4--Enforcement 35
65 Police power to prohibit operation of vessels 35
66 When Safety Director may take disciplinary action against
person holding a permission 35
67 Adverse publicity order 35
68 Purpose of Part 35
69 Owner onus offences 35
571271B.I-7/5/2013 iii BILL LA INTRODUCTION 7/5/2013
Clause Page
Division 5--General 36
70 Functions of the Safety Director--section 258 36
71 Safety Director must consult when developing or reviewing
Marine Enforcement Policy 36
72 Repeal of section 295--evidentiary provision 36
73 Repeal of section 300--Nationally Agreed Standards 36
74 Disclosure of information 37
75 General regulation-making powers 37
Division 6--Transitional 37
76 New Part 9.3 inserted 37
PART 9.3--TRANSITIONAL AND SAVING
PROVISIONS--MARINE (DOMESTIC COMMERCIAL
VESSEL NATIONAL LAW APPLICATION) ACT 2013 37
374A Safe construction certificates 37
374B Safe operation certificates 38
374C Certificates of competency 38
Division 7--Amendments to Schedules 39
77 Amendments to Schedule 1--particular powers of the Safety
Director 39
78 Amendments to Schedule 2--subject matter for regulations 39
Division 8--Statute law revision and repeal of Part 41
79 Power to prohibit operation of particular vessel 41
80 Repeal of Part 41
PART 11--AMENDMENT OF OTHER ACTS 42
Division 1--Environment Protection Act 1970 42
81 Service of notices 42
Division 2--Amendment of Federal Courts (State Jurisdiction)
Act 1999 43
82 Definition of relevant State Act 43
Division 3--Amendment of Interpretation of Legislation Act 1984 43
83 References to Marine Safety (Domestic Commercial Vessel)
National Law 43
38I References to Marine Safety (Domestic Commercial
Vessel) National Law 43
571271B.I-7/5/2013 iv BILL LA INTRODUCTION 7/5/2013
Clause Page
Division 4--Amendment of Marine (Drug, Alcohol and Pollution
Control) Act 1988 44
84 Definitions 44
85 New section 6 substituted 45
6 Application of Act 45
86 Provisions about cancellation and disqualification 46
87 New section 28AB inserted 47
28AB Recommendation about cancellation or
disqualification--certificates of competency 47
88 Immediate suspension of marine licence or certificate of
competency in certain circumstances 48
Division 5--Amendment of Transport (Compliance and
Miscellaneous) Act 1983 49
89 Appointment 49
90 General marine related inspection, inquiry and search powers 49
91 Person in charge must stop and provide licence or certificates
when directed 50
Division 6--Amendment of Transport Integration Act 2010 50
92 Definitions 50
93 Director, Transport Safety 51
94 Object of Director, Transport Safety 51
95 Functions of Director, Transport Safety 51
96 Information disclosure by Director, Transport Safety 52
97 Delegation by Director, Transport Safety 52
98 New section 178A inserted 52
178A Delegation of functions by National Regulator 52
Division 7--Repeal of Part 53
99 Repeal of Part 53
__________________
SCHEDULE--Schedule of Fees 54
1 Definitions 54
2 Application fee for certificate of survey 54
3 Fee for survey of new domestic commercial vessel 54
4 Fee for booking a survey for existing domestic commercial
vessel 56
5 Fee for survey of existing domestic commercial vessel 56
6 Fee for additional visit for an existing vessel survey 57
7 Fee for considering application for variation of conditions
of a safe construction certificate 58
8 Fee for survey for alteration to service category of vessel 58
9 Fee for issue or renewal of safe construction certificate 58
10 Fee for issue of duplicate safe construction certificate 58
571271B.I-7/5/2013 v BILL LA INTRODUCTION 7/5/2013
Clause Page
11 Application fee for issue, variation or renewal of certificate of
competency 58
12 Fee for issue or renewal of certificates 59
13 Fee for variation of certificates 59
14 Fee for issue of duplicate certificate 59
15 Examination fees for certificates 59
ENDNOTES 60
Annexure 1 61
Annexure 2 347
Annexure 3 381
571271B.I-7/5/2013 vi BILL LA INTRODUCTION 7/5/2013
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Marine (Domestic Commercial Vessel
National Law Application) Bill 2013
A Bill for an Act to adopt in Victoria a national approach to the
regulation of marine safety in relation to domestic commercial vessels,
to make consequential amendments to the Marine Safety Act 2010,
to make consequential amendments to other Acts and for other
purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purpose
(1) The purpose of this Act is to adopt in Victoria a
national approach to the regulation of marine
5 safety in relation to domestic commercial vessels
(the domestic commercial vessel national law).
571271B.I-7/5/2013 1 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 1--Preliminary
s. 2
(2) Accordingly, this Act--
(a) applies the Commonwealth domestic
commercial vessel national law as a law of
Victoria; and
5 (b) makes provision to enable the
Commonwealth domestic commercial vessel
national law and the applied law of Victoria
to be administered on a uniform basis by the
Commonwealth (and by Victorian officials
10 as delegates of the Commonwealth) as if
they constituted a single law of the
Commonwealth.
Note
A number of aspects of the regulation of domestic commercial
15 vessels are dealt with under the Marine Safety Act 2010 and the
Marine (Drug, Alcohol and Pollution Control) Act 1988 and
other Victorian Acts. These include matters relating to pilotage,
harbour masters, the management of waterways and control of the
use of alcohol and other drugs by masters and crew of domestic
20 commercial vessels.
2 Commencement
This Act comes into operation on a day to be
proclaimed.
3 Definitions
25 (1) In this Act--
applied provisions means the Commonwealth
domestic commercial vessel national law that
applies as a law of Victoria because of
section 4;
30 Commonwealth administrative laws means the
following Commonwealth Acts, regulations
or other legislative instruments--
(a) the Administrative Appeals Tribunal
Act 1975 (excluding Part IVA);
571271B.I-7/5/2013 2 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 1--Preliminary
s. 3
(b) the Freedom of Information Act 1982;
(c) the Ombudsman Act 1976;
(d) the Privacy Act 1988;
(e) the regulations and other legislative
5 instruments in force under any of those
Acts;
Commonwealth domestic commercial vessel
national law means the following
Commonwealth Acts, regulations or other
10 legislative instruments--
(a) the Marine Safety (Domestic
Commercial Vessel) National Law of
the Commonwealth (being the
provisions applying as a law of the
15 Commonwealth because of section 4 of
the Marine Safety (Domestic
Commercial Vessel) National Law Act
2012);
(b) the regulations and other legislative
20 instruments in force under that Law;
(c) any other provision of a
Commonwealth Act (or of a regulation
or other legislative instrument in force
under a Commonwealth Act) that is of
25 a savings or transitional nature
consequent on the enactment or
amendment of that Law.
(2) Terms used in this Act and also in the
Commonwealth domestic commercial vessel
30 national law have the same meanings in this Act
as they have in that law.
571271B.I-7/5/2013 3 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 1--Preliminary
s. 3
(3) In this Act, a reference to a Commonwealth Act
includes a reference to--
(a) that Commonwealth Act, as amended and in
force for the time being; and
5 (b) an Act enacted in substitution for that Act
and, if it is amended, as amended and in
force for the time being.
__________________
571271B.I-7/5/2013 4 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 2--The Applied Provisions
s. 4
PART 2--THE APPLIED PROVISIONS
4 Application of Commonwealth laws as laws of
Victoria
(1) The Commonwealth domestic commercial vessel
5 national law, as in force from time to time, applies
as a law of Victoria.
(2) The Commonwealth domestic commercial vessel
national law so applies as if it extended to matters
in relation to which Victoria may make laws--
10 (a) whether or not the Commonwealth may
make laws in relation to those matters; and
(b) even though the Commonwealth domestic
commercial vessel national law provides that
it applies only to specified matters with
15 respect to which the Commonwealth may
make laws.
(3) Subsection (2) does not operate to exclude a law
of Victoria relating to marine safety that would
not otherwise be excluded by the Commonwealth
20 domestic commercial vessel national law.
(4) The regulations made under this Act may provide
that the Commonwealth domestic commercial
vessel national law applies under this section as if
an amendment to that law--
25 (a) made by a law of the Commonwealth; and
(b) specified in the regulations made under this
Act--
had not taken effect.
5 Interpretation of Commonwealth domestic
30 commercial vessel national law
(1) The Acts Interpretation Act 1901 of the
Commonwealth applies as a law of Victoria in
relation to the interpretation of the applied
provisions, and so applies as if the applied
571271B.I-7/5/2013 5 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 2--The Applied Provisions
s. 5
provisions were a Commonwealth Act or were
regulations or other legislative instruments under
a Commonwealth Act, as the case requires.
(2) The Interpretation of Legislation Act 1984 does
5 not apply to the applied provisions.
__________________
571271B.I-7/5/2013 6 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 3--Functions and Powers under Applied Provisions
s. 6
PART 3--FUNCTIONS AND POWERS UNDER APPLIED
PROVISIONS
6 Functions and powers of National Regulator and
other authorities and officers
5 The National Regulator and other authorities and
officers referred to in the applied provisions have
the same functions and powers under the applied
provisions as they have under the Commonwealth
domestic commercial vessel national law, as that
10 law applies to the Commonwealth.
7 Delegations by the National Regulator
Any delegation by the National Regulator under
the Commonwealth domestic commercial vessel
national law, as that law applies to the
15 Commonwealth, is taken to extend to, and have
effect for the purposes of, the corresponding
provision of the applied provisions.
__________________
571271B.I-7/5/2013 7 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 4--Offences
s. 8
PART 4--OFFENCES
8 Object of this Part
(1) The object of this Part is to further the purpose of
this Act by providing for an offence against the
5 applied provisions to be treated as if it were an
offence against a law of the Commonwealth.
(2) The purposes for which an offence is to be treated
as mentioned in subsection (1) are--
(a) the investigation and prosecution of
10 offences; and
(b) the arrest, custody, bail, trial and conviction
of offenders or persons charged with
offences; and
(c) proceedings relating to a matter referred to in
15 paragraph (a) or (b); and
(d) appeals and reviews relating to criminal
proceedings and to proceedings of the kind
referred to in paragraph (c); and
(e) the sentencing, punishment and release of
20 persons convicted of offences; and
(f) fines, penalties and forfeitures; and
(g) infringement notices in connection with
offences; and
(h) liability to make reparation in connection
25 with offences; and
(i) proceeds of crime; and
(j) spent convictions.
(3) For the purposes of this Part, offences include
contraventions for which a civil penalty may be
30 imposed.
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Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 4--Offences
s. 9
9 Application of Commonwealth criminal laws to
offences against applied provisions
(1) The relevant Commonwealth laws apply as laws
of Victoria in relation to an offence against the
5 applied provisions as if those provisions were a
law of the Commonwealth and not a law of
Victoria.
(2) For the purposes of a law of Victoria, an offence
against the applied provisions--
10 (a) is taken to be an offence against the laws of
the Commonwealth, in the same way as if
those provisions were a law of the
Commonwealth; and
(b) is taken not to be an offence against the laws
15 of Victoria.
(3) Subsection (2) has effect for the purposes of a law
of Victoria except as provided by the regulations
made under this Act.
(4) In this section--
20 relevant Commonwealth law means a law relating
to a purpose set out in section 8(2).
10 Functions and powers conferred on Commonwealth
officers and authorities relating to offences
(1) A Commonwealth law applying because of
25 section 9 that confers on a Commonwealth officer
or authority a function or power in relation to an
offence against the Commonwealth domestic
commercial vessel national law also confers on
the officer or authority the same function or power
30 in relation to an offence against the corresponding
provision of the applied provisions.
(2) In performing a function or exercising a power
conferred by this section, the Commonwealth
officer or authority must act as nearly as
35 practicable as the officer or authority would act in
571271B.I-7/5/2013 9 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 4--Offences
s. 11
performing or exercising the same function or
power in relation to an offence against the
corresponding provision of the Commonwealth
domestic commercial vessel national law.
5 11 No double jeopardy for offences against applied
provisions
If--
(a) an act or omission is an offence against both
the applied provisions and an offence against
10 the Commonwealth domestic commercial
vessel national law; and
(b) the offender has been punished for that
offence under the Commonwealth domestic
commercial vessel national law--
15 the offender is not liable to be punished for the
offence under the applied provisions.
__________________
571271B.I-7/5/2013 10 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 5--Administrative Laws
s. 12
PART 5--ADMINISTRATIVE LAWS
12 Application of Commonwealth administrative laws
to applied provisions
(1) The Commonwealth administrative laws apply as
5 laws of Victoria to any matter arising in relation to
the applied provisions as if those provisions were
a law of the Commonwealth and not a law of
Victoria.
(2) For the purposes of a law of Victoria, a matter
10 arising in relation to the applied provisions--
(a) is taken to be a matter arising in relation to
laws of the Commonwealth in the same way
as if those provisions were a law of the
Commonwealth; and
15 (b) is taken not to be a matter arising in relation
to laws of Victoria.
(3) Subsection (2) has effect for the purposes of a law
of Victoria except as provided by Part 7 and the
regulations made under this Act.
20 (4) Any provision of a Commonwealth administrative
law applying because of this section that purports
to confer jurisdiction on a federal court is taken
not to have that effect.
(5) For the purposes of this section, a reference in a
25 provision of the Administrative Appeals Tribunal
Act 1975 of the Commonwealth (as that provision
applies as a law of this jurisdiction) to the whole
or any part of Part IVA of that Act is taken to be a
reference to the whole or any part of that Part as it
30 has effect as a law of the Commonwealth.
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Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 5--Administrative Laws
s. 13
13 Functions and powers conferred on Commonwealth
officers and authorities
(1) A Commonwealth administrative law applying
because of section 12 that confers on a
5 Commonwealth officer or authority a function or
power also confers on the officer or authority the
same function or power in relation to a matter
arising in relation to the applied provisions.
(2) In performing a function or exercising a power
10 conferred by this section, the Commonwealth
officer or authority must act as nearly as
practicable as the officer or authority would act in
performing or exercising the same function or
power under the Commonwealth administrative
15 law.
__________________
571271B.I-7/5/2013 12 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 6--Fees and Fines
s. 14
PART 6--FEES AND FINES
14 Fees payable to officers or employees of Victoria
acting as delegates
(1) Regulations may be made under this Act for or
5 with respect to fees payable to Victoria in relation
to anything done under the Commonwealth
domestic commercial vessel national law (as that
law applies as a law of the Commonwealth), or
under the applied provisions, by a delegate of the
10 National Regulator, or an accredited person, who
is an officer or employee of, or engaged by,
Victoria or an agency of Victoria.
(2) Without limiting subsection (1), until regulations
are made under that subsection, the fees payable
15 in the circumstances described in subsection (1)
are the fees specified in the Schedule.
15 Infringement notice fines
(1) Any amount paid to Victoria by the National
Regulator under section 10 of the Marine Safety
20 (Domestic Commercial Vessel) National Law Act
2012 of the Commonwealth in relation to an
infringement notice is payable into the
Consolidated Fund.
(2) Any amount payable by Victoria under
25 section 10(2) of the Marine Safety (Domestic
Commercial Vessel) National Law Act 2012 of
the Commonwealth in relation to an infringement
notice is payable out of the Consolidated Fund.
16 Fines, fees etc not otherwise payable to Victoria
30 (1) All fees, penalties, fines and other money that,
under the applied provisions, are authorised or
directed to be payable by or imposed on any
person (but not including an amount ordered to be
refunded to another person) must be paid to the
35 Commonwealth.
571271B.I-7/5/2013 13 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 6--Fees and Fines
s. 16
(2) Subsection (1) does not apply to any fees referred
to in section 14.
__________________
571271B.I-7/5/2013 14 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 7--Application of Charter Act
s. 17
PART 7--APPLICATION OF CHARTER ACT
17 Charter of Human Rights and Responsibilities
Act 2006
(1) Without limiting section 4 of the Charter of
5 Human Rights and Responsibilities Act 2006,
the following persons are public authorities for the
purposes of that Act when exercising powers or
functions delegated under the applied provisions
or the Commonwealth domestic commercial
10 vessel national law, or powers delegated under the
Australian Maritime Safety Authority Act 1990 of
the Commonwealth--
(a) the Director, Transport Safety within the
meaning of section 3 of the Transport
15 Integration Act 2010;
(b) a transport safety officer within the meaning
of section 2(1) of the Transport
(Compliance and Miscellaneous) Act 1983
who is a public official within the meaning
20 of the Public Administration Act 2004;
(c) a person employed under Part 3 of the
Public Administration Act 2004.
(2) Without limiting section 4 of the Charter of
Human Rights and Responsibilities Act 2006, a
25 public official within the meaning of the Public
Administration Act 2004 who is appointed as a
marine safety inspector under the applied
provisions or the Commonwealth domestic
commercial vessel national law is a public
30 authority for the purposes of the Charter of
Human Rights and Responsibilities Act 2006
when exercising functions and powers under the
applied provisions or the Commonwealth
domestic commercial vessel national law.
__________________
571271B.I-7/5/2013 15 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 8--Miscellaneous
s. 18
PART 8--MISCELLANEOUS
18 Things done for multiple purposes
The validity of a licence, certificate or other thing
issued, given or done for the purposes of the
5 applied provisions is not affected only because it
was issued, given or done also for the purposes of
the Commonwealth domestic commercial vessel
national law.
19 Reference in Commonwealth law to a provision of
10 another law
For the purposes of sections 8 and 12, a reference
in a Commonwealth law to a provision of that or
another Commonwealth law is taken to be a
reference to that provision as applying because of
15 those sections.
20 Authority to accept delegation of functions
(1) The following persons or classes of persons are
authorised to be delegates for the purposes of the
Marine Safety (Domestic Commercial Vessel)
20 National Law--
(a) the Director, Transport Safety within the
meaning of section 3 of the Transport
Integration Act 2010, if authorised by the
Minister;
25 (b) a transport safety officer within the meaning
of section 2(1) of the Transport
(Compliance and Miscellaneous) Act 1983,
if the officer is--
(i) an officer of an agency of the State
30 within the meaning of the Marine
Safety (Domestic Commercial Vessel)
National Law; and
(ii) authorised by the Director, Transport
Safety;
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Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 8--Miscellaneous
s. 21
(c) a person employed under Part 3 of the
Public Administration Act 2004 to enable
the Director, Transport Safety to carry out
his or her functions, if authorised by the
5 Director, Transport Safety.
(2) The Minister must not authorise the Director,
Transport Safety to act as a delegate under
subsection (1)(a) unless the Minister is satisfied
that there are sufficient arrangements in place and
10 resources available to enable the Director,
Transport Safety to carry out the delegated
functions.
(3) An authorisation by the Director, Transport Safety
under subsection (1)(b) or (c) may be made--
15 (a) in relation to a person or class of persons
specified in the instrument; or
(b) in relation to the holder, or the holder from
time to time, of an office specified, or of
each office in a class of offices specified, in
20 the instrument.
21 Victorian regulations
(1) The Governor in Council may make regulations
for or with respect to--
(a) prescribing forms (including the information
25 to be included in forms); and
(b) fees for the purposes of section 14, including
the following--
(i) the payment of fees either generally or
under specified conditions or in
30 specified circumstances;
(ii) late payment fees;
(iii) the reduction, waiver or refund, in
whole or in part, of fees;
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Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 8--Miscellaneous
s. 21
(iv) the matters to be included in forms
relating to fees; and
(c) generally prescribing any matter or thing
required or permitted by this Act to be
5 prescribed or necessary to be prescribed to
give effect to this Act or the applied
provisions.
(2) A power conferred by this Act to make
regulations may be exercised--
10 (a) either in relation to all cases to which the
power extends, or in relation to all those
cases subject to specified exceptions, or in
relation to any specified case or class of
case; and
15 (b) so as to make, as respects the cases in
relation which the power is exercised--
(i) the same provision for all cases in
relation to which the power is
exercised, or different provisions for
20 different cases or classes of case, or
provisions for the same case or class of
case for different purposes; or
(ii) any such provision either
unconditionally or subject to any
25 specified condition.
(3) The regulations may--
(a) be of general or limited application; and
(b) differ according to differences in time, place
or circumstances; and
30 (c) confer a discretionary authority or impose a
duty on a specified person or body or a
specified class of persons or bodies; and
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Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 8--Miscellaneous
s. 21
(d) provide in a specified case or class of case
for the exemption of persons or things or a
class of persons or things from any of the
provisions of the regulations, whether
5 unconditionally or on specified conditions
and either wholly or to such an extent as is
specified.
(4) A reduction, waiver or refund, in whole or in part,
of a fee, under a regulation under subsection
10 (1)(b) may be expressed to apply either generally
or specifically--
(a) in respect of certain matters or transactions
or classes of matters or transactions;
(b) in respect of certain documents or classes of
15 documents;
(c) when an event happens;
(d) in respect of certain persons or classes of
persons;
(e) in respect of any combination of such
20 matters, transactions, documents, events or
persons--
and may be expressed to apply subject to specified
conditions or in the discretion of any specified
person or body.
__________________
571271B.I-7/5/2013 19 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 9--Transitional Provisions
s. 22
PART 9--TRANSITIONAL PROVISIONS
22 Regulations dealing with transitional matters
(1) The Governor in Council may make regulations
containing provisions of a transitional nature,
5 including matters of an application or savings
nature, arising as a result of the enactment of this
Act, including any repeals and amendments made
as a result of the enactment of this Act.
(2) Without limiting subsection (1), the regulations
10 may continue on the effect of any specified
provision of the Marine Safety Act 2010 that has
been repealed by this Act and of specified
regulations made under any continued provision.
(3) Regulations made under this section may--
15 (a) have a retrospective effect to a day on or
from a date not earlier than the day on which
this Act receives the Royal Assent; and
(b) be of limited or general application; and
(c) leave any matter or thing to be decided by a
20 specified person or class of person.
(4) Regulations under this section have effect despite
anything to the contrary in any Act (other than this
Act or the Charter of Human Rights and
Responsibilities Act 2006) or in any subordinate
25 instrument.
(5) This section is repealed on 31 December 2017.
__________________
571271B.I-7/5/2013 20 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 10--Amendment of Marine Safety Act 2010
s. 23
PART 10--AMENDMENT OF MARINE SAFETY ACT 2010
Division 1--Preliminary
23 Purpose
In section 1 of the Marine Safety Act 2010-- See:
Act No.
5 (a) in paragraph (b), before "vessels" insert 65/2010
and
"recreational"; amending
Act Nos
(b) in paragraph (c), after "vessels and" insert 65/2010,
29/2011,
"regulated"; 38/2011,
78/2011,
(c) in paragraph (g), for "waters; and" substitute 43/2012 and
10 "waters."; 66/2012.
LawToday:
www.
(d) paragraphs (h) and (i) are repealed. legislation.
vic.gov.au
24 Definitions
(1) In section 3(1) of the Marine Safety Act 2010,
the definitions of Australian fishing vessel,
15 commercially operated vessel, commercial vessel,
fishing vessel, government vessel, National
Standard for Commercial Vessels, National
Standard for the Administration of Marine
Safety, safe construction certificate, safe
20 operation certificate, trading vessel and Uniform
Shipping Laws Code are repealed.
(2) In section 3(1) of the Marine Safety Act 2010,
for the definition of certificate of competency
substitute--
25 "certificate of competency has the same meaning
as in the Marine Safety (Domestic
Commercial Vessel) National Law;".
(3) In section 3(1) of the Marine Safety Act 2010, in
the definition of Commonwealth Navigation Act
30 for "1912" substitute "2012".
571271B.I-7/5/2013 21 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 10--Amendment of Marine Safety Act 2010
s. 24
(4) In section 3(1) of the Marine Safety Act 2010
insert the following definitions--
"customs vessel has the same meaning as in
section 17 of the Commonwealth Navigation
5 Act;
domestic commercial vessel has the same
meaning as in the Marine Safety (Domestic
Commercial Vessel) National Law;
recreational hire and drive vessel has the
10 meaning given by section 4A;
regulated Australian vessel has the same meaning
as in section 15 of the Commonwealth
Navigation Act;".
(5) In section 3(1) of the Marine Safety Act 2010,
15 for the definition of hire and drive vessel
substitute--
"hire and drive vessel means any vessel which is
let for hire or reward or for any other
consideration, including vessels provided in
20 conjunction with holiday establishments or
hotels for the use of guests or tenants;".
(6) In section 3(1) of the Marine Safety Act 2010, in
the definition of marine incident--
(a) paragraph (j)(iv) is repealed;
25 (b) after paragraph (j) insert--
"(k) the fouling or damaging by a vessel
of--
(i) any pipeline or submarine cable;
or
30 (ii) any aid to navigation within the
meaning of the Commonwealth
Navigation Act;".
571271B.I-7/5/2013 22 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 10--Amendment of Marine Safety Act 2010
s. 24
(7) In section 3(1) of the Marine Safety Act 2010, in
the definition of marine safety work--
(a) before "commercial" (wherever occurring)
insert "domestic";
5 (b) for paragraph (f) substitute--
"(f) any work involving the development,
management or monitoring of safe
working systems for marine safety
infrastructure operations;".
10 (8) In section 3(1) of the Marine Safety Act 2010, in
the definition of permission, paragraphs (f), (g),
(h) and (i) are repealed.
(9) In section 3(1) of the Marine Safety Act 2010,
for the definition of recreational vessel
15 substitute--
"recreational vessel has the meaning given by
section 4B;".
(10) In section 3(1) of the Marine Safety Act 2010, in
the definition of registered person, paragraph (b)
20 is repealed.
(11) In section 3(1) of the Marine Safety Act 2010, in
paragraphs (a) and (b) of the definition of
regulated hire and drive vessel, before "hire"
insert "recreational".
25 (12) In section 3(1) of the Marine Safety Act 2010, in
the definition of reportable incident, for
"or (j)(iv)" substitute "or (k)".
(13) In section 3(1) of the Marine Safety Act 2010, in
the definition of vessel, for "an off-shore industry
30 mobile unit that is not self-propelled" substitute
"a facility within the meaning of Schedule 3 to the
Offshore Petroleum and Greenhouse Gas
Storage Act 2010".
571271B.I-7/5/2013 23 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 10--Amendment of Marine Safety Act 2010
s. 25
25 New sections 4A and 4B inserted
After section 4 of the Marine Safety Act 2010
insert--
"4A Meaning of recreational hire and drive
5 vessel
For the purposes of this Act, a vessel is a
recreational hire and drive vessel if--
(a) the vessel is a hire and drive vessel
being used wholly for recreational
10 purposes; and
(b) the master of the vessel is the hirer of
the vessel.
4B Meaning of recreational vessel
(1) For the purposes of this Act, a vessel is a
15 recreational vessel if--
(a) the vessel is used or intended to be used
for the purpose of recreation or sport
and not for hire or reward; or
(b) the vessel is owned by--
20 (i) a primary or secondary school; or
(ii) a community group of a kind
prescribed for the purposes of
section 7(3)(d) of Schedule 1 to
the Marine Safety (Domestic
25 Commercial Vessel) National Law
Act 2012 of the Commonwealth
by regulations made under that
Act;
(c) the vessel is, or is of a class that is,
30 declared under section 7 to be a
recreational vessel or class of
recreational vessel.
571271B.I-7/5/2013 24 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 10--Amendment of Marine Safety Act 2010
s. 26
(2) Despite subsection (1), a vessel is not a
recreational vessel if the vessel is a domestic
commercial vessel.
(3) Despite subsection (1)(b), a vessel is not a
5 recreational vessel at any time if at that time
the vessel is a domestic commercial vessel.".
26 Declaration of recreational vessels
In section 7(1) of the Marine Safety Act 2010,
for paragraphs (a) and (b) substitute--
10 "(a) a vessel to be a recreational vessel;
(b) a class of vessel to be a class of recreational
vessel.".
27 Repeal of section 8--declarations relating to
recreational use of commercially operated vessels
15 Section 8 of the Marine Safety Act 2010 is
repealed.
28 New section 9 substituted
For section 9 of the Marine Safety Act 2010
substitute--
20 "9 Application of Act
(1) Unless specifically provided otherwise by a
provision of this Act, this Act applies to and
in relation to the following vessels, and the
owner, master and crew of any such vessel--
25 (a) a vessel within State waters; and
(b) a vessel connected with Victoria,
wherever it may be.
(2) The Marine Safety (Domestic Commercial
Vessels) National Law prevails over this Act
30 to the extent of any inconsistency.
571271B.I-7/5/2013 25 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 10--Amendment of Marine Safety Act 2010
s. 29
(3) For the purpose of this section, a vessel is
connected with Victoria if it--
(a) is registered or deemed to be registered
under the Shipping Registration Act
5 1981 of the Commonwealth with a
home port in Victoria; or
(b) is owned by a body corporate that is
established under Victorian law or that
has its principal office or place of
10 business in Victoria, or is in the
possession of such a body corporate by
virtue of a charter; or
(c) is owned by any person whose chief
office or place of business in respect of
15 the management of the vessel is in
Victoria, or is in the possession of such
a person by virtue of a charter; or
(d) is registered or licensed or required to
be registered or licensed under
20 Victorian law.".
29 Principle of shared responsibility
Section 15(1)(f)(iii) of the Marine Safety Act
2010 is repealed.
Division 2--Marine safety duties
25 30 Heading to Part 2.2
In the heading to Part 2.2 of the Marine Safety
Act 2010 omit "AND OWNERS OF
COMMERCIALLY OPERATED VESSELS".
31 Repeal of section 25--safety duties of owners of
30 commercially operated vessels
Section 25 of the Marine Safety Act 2010 is
repealed.
571271B.I-7/5/2013 26 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 10--Amendment of Marine Safety Act 2010
s. 32
32 Safety duties in relation to design, manufacture and
supply of vessels
(1) In section 26(1) of the Marine Safety Act 2010,
for "a vessel" (where first occurring) substitute
5 "a recreational vessel".
(2) In section 26(3) of the Marine Safety Act 2010,
for "the vessel" (where first occurring) substitute
"the recreational vessel".
33 Safety duties in relation to design, manufacture and
10 supply of marine safety equipment
After section 27(3) of the Marine Safety Act
2010 insert--
"(4) This section does not apply to a thing that is,
or is to be used as, marine equipment that is
15 solely for domestic commercial vessels.".
34 New section 29 substituted
For section 29 of the Marine Safety Act 2010
substitute--
"29 Duties of pilotage service providers to
20 owners of domestic commercial vessels
(1) A person who is not a marine safety worker
and who supplies pilotage services to an
owner of a domestic commercial vessel
must, so far as is reasonable practicable,
25 ensure the safety of those services.
Penalty: In the case of a natural person,
1800 penalty units;
In the case of a body corporate,
9000 penalty units.
571271B.I-7/5/2013 27 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 10--Amendment of Marine Safety Act 2010
s. 35
(2) Without limiting subsection (1), a person
contravenes that subsection if--
(a) the person operates, or causes or allows
to be operated, the domestic
5 commercial vessel and that vessel is an
unsafe vessel; or
(b) the domestic commercial vessel is,
while in State waters, so loaded that the
load line of the vessel is submerged.
10 (3) An offence against subsection (1) is an
indictable offence.".
35 Duties of marine safety workers
In section 30(6) of the Marine Safety Act 2010
omit "25,".
15 36 Heading to Part 2.5
In the heading to Part 2.5 of the Marine Safety
Act 2010 before "HIRE" insert
"RECREATIONAL".
37 Masters of recreational vessels or hire and drive
20 vessels must take reasonable care
(1) In the heading to section 31 of the Marine Safety
Act 2010, after "vessels or" insert
"recreational".
(2) In section 31(1) of the Marine Safety Act 2010,
25 after "vessel or" insert "recreational".
(3) In section 31(2) of the Marine Safety Act 2010,
after "vessel or" (where twice occurring) insert
"recreational".
(4) In section 31(3) of the Marine Safety Act 2010,
30 after "vessel or" insert "recreational".
571271B.I-7/5/2013 28 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 10--Amendment of Marine Safety Act 2010
s. 38
38 Persons participating in the operation of a
recreational vessel must take reasonable care
(1) In the heading to section 32 of the Marine Safety
Act 2010 omit "or hire and drive vessel".
5 (2) In section 32(1), (2) and (3) of the Marine Safety
Act 2010 omit "or hire and drive vessel"
(wherever occurring).
39 Passengers on board vessels must take reasonable
care
10 (1) In the heading to section 33 of the Marine Safety
Act 2010, after "board" insert "recreational".
(2) In section 33(1), (2), (3), (4) and (5) of the
Marine Safety Act 2010, for "a vessel"
substitute "a recreational vessel".
15 Division 3--Operation of vessels
40 Purposes of registration
In section 36 of the Marine Safety Act 2010--
(a) for "vessels" (where twice occurring)
substitute "recreational vessels";
20 (b) in paragraph (c), for "vessel" substitute
"recreational vessel".
41 Offence if vessel not registered
(1) In the heading to section 37 of the Marine Safety
Act 2010, for "vessel" substitute "recreational
25 vessel".
(2) In section 37 of the Marine Safety Act 2010, for
"a vessel" (wherever occurring) substitute
"a recreational vessel".
571271B.I-7/5/2013 29 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 10--Amendment of Marine Safety Act 2010
s. 42
42 Vessel may be registered in one name only
(1) In the heading to section 38 of the Marine Safety
Act 2010, for "Vessel" substitute "Recreational
vessel".
5 (2) In section 38 of the Marine Safety Act 2010, for
"vessel" substitute "recreational vessel".
43 Effecting registration, renewal or transfer
In section 39(2) and (3) of the Marine Safety Act
2010, for "a vessel" substitute "a recreational
10 vessel".
44 Safety Director may impose registration conditions
In section 40 of the Marine Safety Act 2010, for
"a vessel" (where twice occurring) substitute
"a recreational vessel".
15 45 Prescribed conditions on registration
(1) In section 41(1) of the Marine Safety Act 2010,
for "vessel" substitute "recreational vessel".
(2) In section 41(2) of the Marine Safety Act 2010,
for "vessel" (where first occurring) substitute
20 "recreational vessel".
46 Register of registered vessels
(1) In the heading to section 42 of the Marine Safety
Act 2010, for "vessels" substitute "recreational
vessels".
25 (2) In section 42 of the Marine Safety Act 2010, for
"vessels" (wherever occurring) substitute
"recreational vessels".
47 Safety Director may cancel or suspend registration
of a vessel
30 (1) In the heading to section 43 of the Marine Safety
Act 2010, for "vessel" substitute "recreational
vessel".
571271B.I-7/5/2013 30 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 10--Amendment of Marine Safety Act 2010
s. 48
(2) In section 43(1) of the Marine Safety Act 2010,
for "a vessel" substitute "a recreational vessel".
(3) In section 43(2) of the Marine Safety Act 2010,
for "the vessel" (where first occurring) substitute
5 "the recreational vessel".
(4) In section 43(4) of the Marine Safety Act 2010,
for "a vessel" substitute "a recreational vessel".
48 Cancellation of registration by court
In section 44(1) of the Marine Safety Act 2010,
10 for "the vessel" substitute "the recreational
vessel".
49 Heading to Part 3.2
In the heading to Part 3.2 of the Marine Safety
Act 2010 after "VESSELS AND" insert
15 "REGULATED".
50 Repeal of Part 3.3--certification of commercial
vessels and operation
Part 3.3 of the Marine Safety Act 2010 is
repealed.
20 51 Heading to Part 3.4
In the heading to Part 3.4 of the Marine Safety
Act 2010 omit "CERTIFICATES OF
COMPETENCY AND".
52 Repeal of Division 1 of Part 3.4--certificates of
25 competency
Division 1 of Part 3.4 of the Marine Safety Act
2010 is repealed.
53 Offence to navigate vessel without local knowledge
certificate in waters requiring certificate
30 In section 80 of the Marine Safety Act 2010,
before "commercial" insert "domestic".
571271B.I-7/5/2013 31 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 10--Amendment of Marine Safety Act 2010
s. 54
54 Application for local knowledge certificates
In section 82(1) of the Marine Safety Act 2010,
before "commercial" insert "domestic".
55 Repeal of section 86--offences relating to load lines
5 Section 86 of the Marine Safety Act 2010 is
repealed.
56 Dangerous operation of a recreational vessel,
government vessel or hire and drive vessel
(1) In section 87(1) of the Marine Safety Act 2010
10 omit ", government vessel or hire and drive
vessel".
(2) After section 87(2) of the Marine Safety Act
2010 insert--
"(2A) The master of a recreational hire and drive
15 vessel must not operate the vessel at a speed
or in a manner which is dangerous to the
public, having regard to all the circumstances
in the case.
Penalty: 240 penalty units or imprisonment
20 for 2 years.
(2B) Subsection (2A) does not apply to a person
who is complying with a requirement under
the Marine Safety (Domestic Commercial
Vessel) National Law.".
25 (3) In section 87(3) of the Marine Safety Act 2010
omit ", government vessel or hire and drive
vessel".
(4) In section 87(4) of the Marine Safety Act 2010,
for ", government vessel or" substitute
30 "or recreational".
571271B.I-7/5/2013 32 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 10--Amendment of Marine Safety Act 2010
s. 57
57 Assistance to people in distress
(1) In section 91(1) and (2) of the Marine Safety Act
2010, for "a vessel" substitute "a recreational
vessel".
5 (2) In section 91(2) of the Marine Safety Act 2010
omit "or certificate of competency".
58 Reporting requirements in relation to reportable
incidents
In section 93(7) of the Marine Safety Act 2010
10 omit "or certificate of competency" (wherever
occurring).
59 Reporting of reportable incidents to Safety Director
In section 94 of the Marine Safety Act 2010, for
"commercially operated vessel" substitute
15 "domestic commercial vessel or regulated
Australian vessel, other than a vessel that is a
customs vessel,".
60 New section 95 substituted
For section 95 of the Marine Safety Act 2010
20 substitute--
"95 Definitions
In this Division--
Prevention of Collisions Convention has the
same meaning as in section 14(1) of the
25 Commonwealth Navigation Act;
Safety Convention has the same meaning as
in section 14(1) of the Commonwealth
Navigation Act.".
571271B.I-7/5/2013 33 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 10--Amendment of Marine Safety Act 2010
s. 61
61 Regulations giving effect to Prevention of Collisions
Convention
(1) For section 96(1) of the Marine Safety Act 2010
substitute--
5 "(1) The regulations may make provision for and
in relation to giving effect to the Prevention
of Collisions Convention in relation to the
following vessels while those vessels are in
State waters--
10 (a) domestic commercial vessels;
(b) regulated Australian vessels, other than
vessels that are customs vessels.".
(2) In section 96(3) of the Marine Safety Act 2010,
for "and (2) do" substitute "does".
15 62 Regulations giving effect to Safety Convention
(1) For section 97(1) of the Marine Safety Act 2010
substitute--
"(1) The regulations may make provision for or in
relation to a provision of Chapter V of the
20 Regulations contained in the Annex to the
Safety Convention (other than Regulation 13
or 15 of that Chapter of those Regulations)
with respect to--
(a) a domestic commercial vessel; or
25 (b) a recreational vessel; or
(c) a facility within the meaning of
Schedule 3 to the Offshore Petroleum
and Greenhouse Gas Storage Act
2010.".
30 (2) In section 97(2) of the Marine Safety Act 2010
omit ", except in the case of an Australian fishing
vessel,".
571271B.I-7/5/2013 34 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 10--Amendment of Marine Safety Act 2010
s. 63
63 Regulations under this Division
For section 98(4) of the Marine Safety Act 2010
substitute--
"(4) In subsection (3)(a), regulations includes
5 orders made under section 342 of the
Commonwealth Navigation Act.".
64 Authority of Governor in Council to make
regulations in relation to powers under Conventions
The note at the foot of section 99(2) of the
10 Marine Safety Act 2010 is repealed.
Division 4--Enforcement
65 Police power to prohibit operation of vessels
In section 155(1) of the Marine Safety Act 2010,
before "hire" insert "recreational".
15 66 When Safety Director may take disciplinary action
against person holding a permission
Section 165(1)(b) of the Marine Safety Act 2010
is repealed.
67 Adverse publicity order
20 In section 173(1) of the Marine Safety Act 2010,
for "commercial marine operations" substitute
"domestic commercial vessel operations".
68 Purpose of Part
In section 174 of the Marine Safety Act 2010,
25 before "vessels" insert "recreational".
69 Owner onus offences
In section 176(1) and (3) of the Marine Safety
Act 2010, for "a vessel" substitute "a recreational
vessel".
571271B.I-7/5/2013 35 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 10--Amendment of Marine Safety Act 2010
s. 70
Division 5--General
70 Functions of the Safety Director--section 258
(1) For section 258(1)(d) of the Marine Safety Act
2010 substitute--
5 "(d) to develop appropriate standards for the safe
construction, equipment and operation of
recreational vessels, and to take steps to
ensure that those standards are maintained;
and".
10 (2) Section 258(1)(e) of the Marine Safety Act 2010
is repealed.
(3) In section 258(1)(g) of the Marine Safety Act
2010 omit "or a certificate of competency".
(4) At the foot of section 258(1) of the Marine Safety
15 Act 2010 insert--
"Note
The Safety Director may also have functions as a delegate
under the Marine Safety (Domestic Commercial Vessel)
National Law.".
20 71 Safety Director must consult when developing or
reviewing Marine Enforcement Policy
In section 281(1)(d) of the Marine Safety Act
2010, after "masters of" insert "domestic".
72 Repeal of section 295--evidentiary provision
25 Section 295 of the Marine Safety Act 2010 is
repealed.
73 Repeal of section 300--Nationally Agreed Standards
Section 300 of the Marine Safety Act 2010 is
repealed.
571271B.I-7/5/2013 36 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 10--Amendment of Marine Safety Act 2010
s. 74
74 Disclosure of information
After section 306(2)(b) of the Marine Safety Act
2010 insert--
"(ba) if the disclosure or use is to the National
5 Regulator within the meaning of the Marine
Safety (Domestic Commercial Vessel)
National Law or any delegate of the National
Regulator for a purpose relating to the
administration or enforcement of that law or
10 marine safety; or".
75 General regulation-making powers
Section 309(5) of the Marine Safety Act 2010 is
repealed.
Division 6--Transitional
15 76 New Part 9.3 inserted
After Part 9.2 of the Marine Safety Act 2010
insert--
"PART 9.3--TRANSITIONAL AND SAVING
PROVISIONS--MARINE (DOMESTIC
20 COMMERCIAL VESSEL NATIONAL LAW
APPLICATION) ACT 2013
374A Safe construction certificates
(1) Despite the amendment of this Act by
sections 24(8) and 50 of the Marine
25 (Domestic Commercial Vessel National
Law Application) Act 2013, this Act
continues to apply in relation to an
application for a safe construction certificate
that was made but not determined before the
30 commencement day as if the amendments
had not been made.
(2) This section ceases to have effect at the end
of 6 months after the commencement date.
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Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 10--Amendment of Marine Safety Act 2010
s. 76
(3) In this section commencement day means
the date of commencement of sections 24(8)
and 50 of the Marine (Domestic
Commercial Vessel National Law
5 Application) Act 2013.
374B Safe operation certificates
(1) Despite the amendment of this Act by
sections 24(8) and 50 of the Marine
(Domestic Commercial Vessel National
10 Law Application) Act 2013, this Act
continues to apply in relation to an
application for a safe operation certificate
that was made but not determined before the
commencement day as if the amendments
15 had not been made.
(2) This section ceases to have effect at the end
of 6 months after the commencement date.
(3) In this section commencement day means
the date of commencement of sections 24(8)
20 and 50 of the Marine (Domestic
Commercial Vessel National Law
Application) Act 2013.
374C Certificates of competency
(1) Despite the amendment of this Act by
25 sections 24(2) and 52 of the Marine
(Domestic Commercial Vessel National
Law Application) Act 2013, this Act
continues to apply in relation to an
application for a certificate of competency
30 that was made but not determined before the
commencement day as if the amendments
had not been made.
(2) This section ceases to have effect at the end
of 6 months after the commencement date.
571271B.I-7/5/2013 38 BILL LA INTRODUCTION 7/5/2013
Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 10--Amendment of Marine Safety Act 2010
s. 77
(3) In this section commencement day means
the date of commencement of sections 24(2)
and 52 of the Marine (Domestic
Commercial Vessel National Law
5 Application) Act 2013.
__________________".
Division 7--Amendments to Schedules
77 Amendments to Schedule 1--particular powers of
the Safety Director
10 In Schedule 1 to the Marine Safety Act 2010--
(a) the heading "CERTIFICATES OF
COMPETENCY" preceding item 1 is
repealed;
(b) items 1, 2 and 3 are repealed;
15 (c) the heading preceding item 13 is repealed;
(d) item 13 is repealed;
(e) for the heading preceding item 14 substitute
"SURVEY OF VESSELS";
(f) item 14 is repealed;
20 (g) in item 15, for "vessels" substitute
"recreational vessels";
(h) the heading preceding item 18 is repealed;
(i) items 18 and 19 are repealed.
78 Amendments to Schedule 2--subject matter for
25 regulations
In Schedule 2 to the Marine Safety Act 2010--
(a) the heading "CERTIFICATES OF
COMPETENCY" preceding item 1 is
repealed;
30 (b) items 1, 2, and 3 are repealed;
(c) the heading preceding item 12 is repealed;
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Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 10--Amendment of Marine Safety Act 2010
s. 78
(d) items 12, 13, 14 and 15 are repealed;
(e) for the heading preceding item 16 substitute
"SURVEY OF VESSELS";
(f) in item 16, before "vessels" insert
5 "recreational";
(g) items 17 and 18 are repealed;
(h) in item 19, before "vessels" (where twice
occurring) insert "recreational";
(i) in the heading preceding item 25, before
10 "VESSELS" insert "RECREATIONAL";
(j) in item 25, before "vessels" insert
"recreational";
(k) in items 26 and 27, before "vessel" insert
"recreational";
15 (l) in items 28 and 30, before "vessels" insert
"recreational";
(m) in item 31, before "vessel" insert
"recreational";
(n) in items 32 and 33, after "registered" insert
20 "recreational";
(o) the heading preceding item 56 is repealed;
(p) items 56 to 65 are repealed;
(q) in the heading preceding item 66, before
"HIRE" insert "RECREATIONAL";
25 (r) in item 66, before "hire" insert
"recreational";
(s) items 67 and 68 are repealed;
(t) in item 69, before "hire" insert
"recreational";
30 (u) items 70, 72 and 73 are repealed;
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Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Part 10--Amendment of Marine Safety Act 2010
s. 79
(v) in item 74, before "hire" (where first
occurring) insert "recreational";
(w) in the heading preceding item 75, before
"HIRE" insert "REGULATED";
5 (x) the heading preceding item 85 is repealed;
(y) items 85 to 87 are repealed.
Division 8--Statute law revision and repeal of Part
79 Power to prohibit operation of particular vessel
In section 269(4) of the Marine Safety Act 2010,
10 for "or (2)" substitute "or (3)".
80 Repeal of Part
This Part is repealed on the first anniversary of
the first day on which all of its provisions are in
operation.
15 Note
The repeal of this Part does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
__________________
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Part 11--Amendment of Other Acts
s. 81
PART 11--AMENDMENT OF OTHER ACTS
Division 1--Environment Protection Act 1970
81 Service of notices
See: For section 61(1B)(b) of the Environment
Act No.
5 8056. Protection Act 1970 substitute--
Reprint No. 18
as at "(b) in the case of an offence alleged against the
26 July 2012
and
registered owner of a motor vehicle--the
amending address appearing as the address of the
Act Nos
78/2012 and
owner in the certificate of registration of the
10 82/2012. motor vehicle for the time being in force
LawToday:
www.
under the Road Safety Act 1986 or under
legislation. any corresponding Act or law of a State or
vic.gov.au
Territory of the Commonwealth; and
(c) in the case of an offence alleged against the
15 registered owner of a vessel--the address
appearing as the address of the owner--
(i) for a recreational vessel within the
meaning of section 3 of the Marine
Safety Act 2010, in the certificate of
20 registration of the vessel for the time
being in force under the Marine Safety
Act 2010 or under any corresponding
Act or law of a State or Territory of the
Commonwealth; or
25 (ii) for a domestic commercial vessel
within the meaning of section 3 of the
Marine Safety Act 2010, in the
certificate of survey of the domestic
commercial vessel for the time being in
30 force under the Marine Safety
(Domestic Commercial Vessel)
National Law--".
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Part 11--Amendment of Other Acts
s. 82
Division 2--Amendment of Federal Courts (State
Jurisdiction) Act 1999
82 Definition of relevant State Act
In section 3 of the Federal Courts (State See:
Act No.
5 Jurisdiction) Act 1999, after paragraph (e) of the 54/1999
definition of relevant State Act insert-- and
amending
Act Nos
"(ea) Marine (Domestic Commercial Vessel 28/2007 and
National Law Application) Act 2013;". 30/2008.
LawToday:
www.
legislation.
vic.gov.au
Division 3--Amendment of Interpretation of Legislation
10 Act 1984
83 References to Marine Safety (Domestic Commercial
Vessel) National Law
Before section 39 of the Interpretation of See:
Act No.
Legislation Act 1984 insert-- 10096.
Reprint No. 1
15 "38I References to Marine Safety (Domestic as at
17 January
Commercial Vessel) National Law 2013
and
In an Act or subordinate instrument-- amending
Act No.
Marine Safety (Domestic Commercial 7/2013.
Vessel) National Law means-- LawToday:
www.
20 (a) the Commonwealth domestic legislation.
vic.gov.au
commercial vessel national law
within the meaning of section 3 of
the Marine (Domestic
Commercial Vessel National
25 Law Application) Act 2013; and
(b) the applied provisions within the
meaning of section 3 of the
Marine (Domestic Commercial
Vessel National Law
30 Application) Act 2013.".
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Part 11--Amendment of Other Acts
s. 84
Division 4--Amendment of Marine (Drug, Alcohol and
Pollution Control) Act 1988
84 Definitions
See: (1) In section 3(1) of the Marine (Drug, Alcohol and
Act No.
5 52/1988. Pollution Control) Act 1988--
Reprint No. 8
as at (a) the definitions of Australian fishing vessel,
1 January
2011
commercial vessel, fishing vessel,
and government vessel and trading vessel are
amending
Act Nos
repealed;
93/2009,
10 65/2010, (b) for the definition of certificate of
74/2010, competency substitute--
38/2011,
65/2011, "certificate of competency has the same
78/2011 and
66/2012. meaning as in the Marine Safety
LawToday: (Domestic Commercial Vessel)
www.
15 legislation. National Law;";
vic.gov.au
(c) insert the following definitions--
"domestic commercial vessel has the same
meaning as in the Marine Safety
(Domestic Commercial Vessel)
20 National Law;
National Regulator means the National
Marine Safety Regulator within the
meaning of the Marine Safety
(Domestic Commercial Vessel)
25 National Law;";
(d) for the definition of hire and drive vessel
substitute--
"hire and drive vessel has the same meaning
as in the Marine Safety Act 2010;";
30 (e) in the definition of prescribed concentration
of alcohol, in paragraph (a)(ii), for
"commercial or government vessel"
substitute "domestic commercial vessel";
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Part 11--Amendment of Other Acts
s. 85
(f) for the definition of recreational vessel
substitute--
"recreational vessel has the same meaning as
in the Marine Safety Act 2010;".
5 (2) Section 3(3)(c) of the Marine (Drug, Alcohol
and Pollution Control) Act 1988 is repealed.
85 New section 6 substituted
For section 6 of the Marine (Drug, Alcohol and
Pollution Control) Act 1988 substitute--
10 "6 Application of Act
(1) Unless specifically provided otherwise by a
provision of this Act, this Act applies to and
in relation to the following vessels, and the
owner, master and crew of any such vessel--
15 (a) a vessel within State waters; and
(b) a vessel connected with Victoria,
wherever it may be.
(2) For the purpose of this section, a vessel is
connected with Victoria if it--
20 (a) is registered or deemed to be registered
under the Shipping Registration Act
1981 of the Commonwealth with a
home port in Victoria; or
(b) is owned by a body corporate that is
25 established under Victorian law or that
has its principal office or place of
business in Victoria, or is in the
possession of such a body corporate by
virtue of a charter; or
30 (c) is owned by any person whose chief
office or place of business in respect of
the management of the vessel is in
Victoria, or is in the possession of such
a person by virtue of a charter; or
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Part 11--Amendment of Other Acts
s. 86
(d) is registered or licensed or required to
be registered or licensed under
Victorian law.".
86 Provisions about cancellation and disqualification
5 (1) In section 28A(1) of the Marine (Drug, Alcohol
and Pollution Control) Act 1988--
(a) for "marine licence or certificate of
competency" (where twice occurring)
substitute "marine licence";
10 (b) for "that licence or certificate" substitute
"that licence".
(2) In section 28A(2) of the Marine (Drug, Alcohol
and Pollution Control) Act 1988--
(a) for "marine licence or certificate of
15 competency" (where twice occurring)
substitute "marine licence";
(b) for "that licence or certificate" substitute
"that licence".
(3) In section 28A(3) of the Marine (Drug, Alcohol
20 and Pollution Control) Act 1988 omit
"or certificate of competency".
(4) In section 28A(5) of the Marine (Drug, Alcohol
and Pollution Control) Act 1988--
(a) for "marine licence or certificate of
25 competency" (where twice occurring)
substitute "marine licence";
(b) for "that licence or certificate" substitute
"that licence".
(5) In section 28A(6) of the Marine (Drug, Alcohol
30 and Pollution Control) Act 1988--
(a) for "marine licence or certificate of
competency" (where twice occurring)
substitute "marine licence";
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Part 11--Amendment of Other Acts
s. 87
(b) for "that licence or certificate" substitute
"that licence".
(6) In section 28A(7) of the Marine (Drug, Alcohol
and Pollution Control) Act 1988--
5 (a) for "marine licence or certificate of
competency" (where twice occurring)
substitute "marine licence";
(b) for "that licence or certificate" substitute
"that licence".
10 (7) In section 28A(8) of the Marine (Drug, Alcohol
and Pollution Control) Act 1988--
(a) for "marine licence or certificate of
competency" (where twice occurring)
substitute "marine licence";
15 (b) for "that licence or certificate" substitute
"that licence".
(8) In section 28A(9) of the Marine (Drug, Alcohol
and Pollution Control) Act 1988--
(a) for "marine licence or certificate of
20 competency" (where twice occurring)
substitute "marine licence";
(b) for "that licence or certificate" substitute
"that licence".
87 New section 28AB inserted
25 After section 28A of the Marine (Drug, Alcohol
and Pollution Control) Act 1988 insert--
"28AB Recommendation about cancellation or
disqualification--certificates of
competency
30 (1) A court may recommend to the National
Regulator or a delegate of the National
Regulator that the National Regulator take
any of the following actions in relation to a
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Part 11--Amendment of Other Acts
s. 88
person convicted of an offence under
section 28(1)--
(a) cancel a certificate of competency that
the person holds;
5 (b) disqualify the person from obtaining a
certificate of competency for a
specified period.
(2) A recommendation must not be made under
this section unless a similar action could be
10 taken under section 28A to cancel a marine
licence of a person convicted of the same
offence or disqualify such a person from
holding a marine licence.
(3) A court may make a recommendation under
15 this section in addition to imposing any
penalty for the offence concerned.".
88 Immediate suspension of marine licence or
certificate of competency in certain circumstances
(1) For the heading to section 28C of the Marine
20 (Drug, Alcohol and Pollution Control) Act 1988
substitute--
"Immediate suspension of marine licence in
certain circumstances".
(2) In section 28C(1) of the Marine (Drug, Alcohol
25 and Pollution Control) Act 1988--
(a) for "marine licence or certificate of
competency" substitute "marine licence";
(b) for "licence document or certificate"
substitute "licence document".
30 (3) In section 28C(1A) of the Marine (Drug, Alcohol
and Pollution Control) Act 1988--
(a) for "marine licence or certificate of
competency" substitute "marine licence";
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Part 11--Amendment of Other Acts
s. 89
(b) for "licence document or certificate"
substitute "licence document".
(4) In section 28C(3) of the Marine (Drug, Alcohol
and Pollution Control) Act 1988 omit "or
5 certificate of competency".
(5) In section 28C(4) of the Marine (Drug, Alcohol
and Pollution Control) Act 1988, after "(1)"
insert "or (1A)".
Division 5--Amendment of Transport (Compliance and
10 Miscellaneous) Act 1983
89 Appointment
After section 228T(3) of the Transport See:
Act No.
(Compliance and Miscellaneous) Act 1983 9921.
insert-- Reprint No. 18
as at
15 "(4) To avoid doubt, a transport safety officer is 2 March 2013
and
an officer of the State.". amending
Act Nos
34/2011 and
9/2013.
LawToday:
www.
legislation.
vic.gov.au
90 General marine related inspection, inquiry and
search powers
(1) After section 228ZBA(1)(c) of the Transport
20 (Compliance and Miscellaneous) Act 1983
insert--
"(ca) direct the master or owner of a vessel or the
person operating a vessel to supply
information, answer questions or produce
25 documents for the purpose of determining
whether the vessel is a domestic commercial
vessel within the meaning of the Marine
Safety (Domestic Commercial Vessel)
National Law;".
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Part 11--Amendment of Other Acts
s. 91
(2) In section 228ZBA(3) of the Transport
(Compliance and Miscellaneous) Act 1983, after
"subsection (1)(c)" insert ", (ca)".
91 Person in charge must stop and provide licence or
5 certificates when directed
In section 228ZNA(4) of the Transport
(Compliance and Miscellaneous) Act 1983, after
"2010" insert "or the Marine Safety (Domestic
Commercial Vessel) National Law".
10 Division 6--Amendment of Transport Integration Act 2010
92 Definitions
See: (1) In section 3 of the Transport Integration Act
Act No.
6/2010. 2010, in paragraph (b)(i) of the definition of
Reprint No. 3 marine safety matter, for "holding a certificate of
as at
15 24 January competency or service" substitute "providing a
2013 service".
and
amending
Act Nos
(2) In section 3 of the Transport Integration Act
6/2010, 2010 insert the following definition--
34/2011 and
61/2011. "National Regulator means the National Marine
LawToday:
20 www. Safety Regulator within the meaning of the
legislation. Marine Safety (Domestic Commercial
vic.gov.au
Vessel) National Law;".
(3) In section 3 of the Transport Integration Act
2010, after paragraph (ga) of the definition of
25 transport legislation insert--
"(gb) the Marine Safety (Domestic Commercial
Vessel) National Law;
(gc) the Marine (Domestic Commercial Vessel
National Law Application) Act 2013;".
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Part 11--Amendment of Other Acts
s. 93
93 Director, Transport Safety
After section 171(3) of the Transport
Integration Act 2010 insert--
"(4) To avoid doubt, the Director, Transport
5 Safety is an officer of the State.".
94 Object of Director, Transport Safety
After section 172(2)(a) of the Transport
Integration Act 2010 insert--
"(ab) section 3 of Schedule 1 to the Marine Safety
10 (Domestic Commercial Vessel) National
Law Act 2012 of the Commonwealth;".
95 Functions of Director, Transport Safety
(1) After section 173(1)(a) of the Transport
Integration Act 2010 insert--
15 "(ab) perform any functions or duties conferred on
the Director, Transport Safety as a delegate
of the National Regulator by the Marine
Safety (Domestic Commercial Vessel)
National Law or the Australian Maritime
20 Safety Authority Act 1990 of the
Commonwealth;".
(2) After section 173(1)(b)(v) of the Transport
Integration Act 2010 insert--
"(vi) the enforcement of the Marine Safety
25 (Domestic Commercial Vessel) National
Law;".
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Part 11--Amendment of Other Acts
s. 96
96 Information disclosure by Director, Transport
Safety
After section 177(2)(b) of the Transport
Integration Act 2010 insert--
5 "(ba) an investigation by him or her under the
Marine Safety (Domestic Commercial
Vessel) National Law as a delegate of the
National Regulator; or".
97 Delegation by Director, Transport Safety
10 After section 178(4) of the Transport
Integration Act 2010 insert--
"(5) The Director, Transport Safety must not
delegate any power or function delegated to
the Director, Transport Safety under the
15 Marine Safety (Domestic Commercial
Vessel) National Law, except as provided
under that law.
Note
The Marine Safety (Domestic Commercial Vessel)
20 National Law permits the sub-delegation of functions
delegated under that law to certain persons.".
98 New section 178A inserted
After section 178 of the Transport Integration
Act 2010 insert--
25 "178A Delegation of functions by National
Regulator
(1) Subject to subsection (2), the Director,
Transport Safety by instrument may
authorise any of the following persons to act
30 as a delegate under section 58 of the
Australian Maritime Safety Authority Act
1990 of the Commonwealth for the purposes
of the Marine Safety (Domestic Commercial
Vessel) National Law--
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Part 11--Amendment of Other Acts
s. 99
(a) a transport safety officer;
(b) a person employed under Part 3 of the
Public Administration Act 2004 to
enable the Director, Transport Safety to
5 carry out his or her functions;
(c) a consultant, contractor or agent
engaged by the Director, Transport
Safety.
(2) An authorisation under subsection (1) may
10 be made--
(a) in relation to a person or class of
persons specified in the instrument; or
(b) in relation to the holder, or the holder
from time to time, of an office
15 specified, or of each office in a class of
offices specified, in the instrument.".
Division 7--Repeal of Part
99 Repeal of Part
This Part is repealed on the first anniversary of
20 the first day on which all of its provisions are in
operation.
Note
The repeal of this Part does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
25 Interpretation of Legislation Act 1984).
__________________
571271B.I-7/5/2013 53 BILL LA INTRODUCTION 7/5/2013
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Sch.
SCHEDULE
Section 14
SCHEDULE OF FEES
1 Definitions
5 (1) In this Schedule--
certificate of competency has the same meaning
as in the Marine Safety (Domestic
Commercial Vessel) National Law;
certificate of survey has the same meaning as in
10 the Marine Safety (Domestic Commercial
Vessel) National Law;
National Regulator means the National Marine
Safety Regulator within the meaning of the
Marine Safety (Domestic Commercial
15 Vessel) National Law.
(2) In this Schedule, Class and Class 1 vessel have
the same meanings respectively as they have in
the Marine Safety Regulations 2012 as in force
before the commencement of this Act as if a
20 reference in those definitions to a commercially
operated vessel were a reference to a domestic
commercial vessel.
2 Application fee for certificate of survey
The fee to be paid for an application for a
25 certificate of survey is 154 fee units.
3 Fee for survey of new domestic commercial vessel
(1) The fee to be paid for the survey of the design
phase of a new domestic commercial vessel of a
size specified in Column 2 of the following Table
30 is the amount calculated by multiplying the length
of the vessel in metres by the amount specified for
that class of vessel in Column 3 or 4 of the Table
opposite that size of vessel.
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Sch.
Table
Column 1 Column 2 Column 3 Column 4
For all
For all other
Class 1 Classes of
vessels vessels
fee per fee per
metre of the metre of
length of the length
Item Size of vessel vessel of vessel
1 For new vessels 314 fee 314 fee
of or not units units
exceeding
7·5 metres in
length
2 For new vessels 505 fee 44 fee
exceeding units units
7·5 metres in
length and less
than 20 metres
in length
3 For new vessels 664 fee 565 fee
of or exceeding units units
20 metres
in length
(2) The fee to be paid for the survey of the
construction and commissioning phases of a new
domestic commercial vessel of a size specified in
5 Column 2 of the following Table is the amount
calculated by multiplying the length of the vessel
in metres by the amount specified for that class of
vessel in Column 3 or 4 of the Table opposite that
size of vessel.
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Sch.
Table
Column 1 Column 2 Column 3 Column 4
For all
For all other
Class 1 Classes of
vessels vessels
fee per fee per
metre of the metre of
length of the length
Item Size of vessel vessel of vessel
1 For new vessels 565 fee 565 fee
of or not units units
exceeding
7·5 metres in
length
2 For new vessels 505 fee 44 fee
exceeding units units
7·5 metres in
length and less
than 20 metres
in length
3 For new vessels 44 fee units 314 fee
of or exceeding units
20 metres in
length
4 Fee for booking a survey for existing domestic
commercial vessel
The fee to be paid at the time of booking a survey
5 for an existing domestic commercial vessel is
84 fee units.
5 Fee for survey of existing domestic commercial
vessel
The fee to be paid for the survey of an existing
10 domestic commercial vessel of a size specified in
Column 2 of the following Table is the amount
specified for that class of vessel in Column 3 or 4
of the Table opposite that size of vessel.
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Sch.
Table
Column 1 Column 2 Column 3 Column 4
Class 1 All other
Item Size of vessel vessels Classes
1 For vessels of or 885 fee 585 fee
not exceeding units units
5 metres in
length
2 For vessels 19 fee units 1265 fee
exceeding units
5 metres in
length or of or
not exceeding
10 metres in
length
3 For vessels 253 fee 169 fee
exceeding units units
10 metres in
length or of or
not exceeding
20 metres
in length
4 For vessels 38 fee units 253 fee
exceeding units
20 metres
in length or
of or not
exceeding
35 metres in
length
5 For vessels 57 fee units 38 fee
exceeding units
35 metres in
length
6 Fee for additional visit for an existing vessel survey
The fee to be paid for each additional visit by a
surveyor authorised by the National Regulator that
5 is required for the purposes of an existing
domestic commercial vessel survey is 84 fee
units.
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Sch.
7 Fee for considering application for variation of
conditions of a safe construction certificate
The fee to be paid for an application to vary the
conditions of the safe construction certificate for a
5 domestic commercial vessel or a fleet of domestic
commercial vessels is 21 fee units.
8 Fee for survey for alteration to service category of
vessel
(1) The fee to be paid for each hour spent by a person
10 authorised by the National Regulator conducting a
survey of the design phase of an alteration to the
service category of a domestic commercial vessel
is 63 fee units.
(2) The fee to be paid for each inspection of a
15 domestic commercial vessel for the purposes of a
survey of the construction and commissioning
phases of an alteration to the service category of
the vessel is 84 fee units.
9 Fee for issue or renewal of safe construction
20 certificate
The fee to be paid for the issue or renewal of a
safe construction certificate for a domestic
commercial vessel is 46 fee units.
10 Fee for issue of duplicate safe construction
25 certificate
The fee to be paid for the issue of a duplicate safe
construction certificate for a domestic commercial
vessel is 46 fee units.
11 Application fee for issue, variation or renewal of
30 certificate of competency
The fee to be paid for an application for the issue,
variation or renewal of a certificate of competency
is 154 fee units.
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Sch.
12 Fee for issue or renewal of certificates
The fee to be paid for the issue or renewal of a
certificate of competency is 46 fee units.
13 Fee for variation of certificates
5 The fee to be paid for the variation of a certificate
of competency is 29 fee units.
14 Fee for issue of duplicate certificate
The fee to be paid for the issue of a duplicate
certificate of competency is 46 fee units.
10 15 Examination fees for certificates
(1) The fee to be paid by a person who sits a written
examination conducted by or on behalf of the
National Regulator for the issue, variation or
renewal of a certificate of competency is 334 fee
15 units.
(2) The fee to be paid by a person who sits an oral
examination conducted by the National Regulator
for the issue, variation or renewal of a certificate
of competency is 67 fee units.
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Endnotes
ENDNOTES
571271B.I-7/5/2013 60 BILL LA INTRODUCTION 7/5/2013
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Annexure 1
ANNEXURES
ANNEXURE 1
Marine Safety (Domestic Commercial Vessel)
National Law Act 2012 of the Commonwealth
Note
This Act will be amended by the Marine Safety (Domestic
Commercial Vessel) National Law (Consequential Amendments) Act
2012 of the Commonwealth and the Marine Safety (Domestic
Commercial Vessel) National Law Amendments Act 2013 of the
Commonwealth. See Annexure 2 and Annexure 3.
Explanatory Memorandum
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.
571271B.I-7/5/2013 61 BILL LA INTRODUCTION 7/5/2013
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Annexure 1
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;
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Annexure 1
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.
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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 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
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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.
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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
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).
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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
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.
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.
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.
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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.
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
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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.
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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.
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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.
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
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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.
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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
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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.
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.
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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
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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.
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.
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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.
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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.
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.
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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.
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.
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.
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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).
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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.
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.
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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.
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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.
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.
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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;
(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;
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(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.
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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).
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.
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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.
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.
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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.
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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'.
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 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.
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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
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undertaking such other functions as provided in this Bill
or conferred by any other law.
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
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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.
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.
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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.
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
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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.
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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.
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.
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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.
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.
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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.
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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.
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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.
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.
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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.
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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.
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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.
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.
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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.
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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.
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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.
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.
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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.
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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.
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.
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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.
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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.
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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.
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
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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.
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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.
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.
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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.
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.
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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.
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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.
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.
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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.
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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.
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.
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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.
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.
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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.
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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.
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.
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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.
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.
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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.
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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.
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.
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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.
Sub-clause 5 permits the National Regulator to revoke the
recognition of a certificate, as provided in the regulations under
this Bill.
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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.
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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.
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.
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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.
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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.
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.
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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.
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
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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.
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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.
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
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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.
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
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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
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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.
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.
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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).
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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.
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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.
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
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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.
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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.
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.
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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.
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.
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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
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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).
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
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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.
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.
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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.
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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.
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.
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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.
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
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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.
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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.
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.
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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.
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.
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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.
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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.
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.
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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.
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.
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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.
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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.
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.
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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.
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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.
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.
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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.
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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.
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.
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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 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.
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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.
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.
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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.
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
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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.
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.
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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.
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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.
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.
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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.
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.
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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
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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.
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
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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.
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.
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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.
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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.
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.
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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.
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.
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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 Voluntary Enforceable
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.
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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.
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.
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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.
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),
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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.
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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.
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.
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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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Marine Safety (Domestic Commercial
Vessel) National Law Act 2012
Contents
1 Short title 196
2 Commencement 196
3 Definitions 197
4 Adoption of Marine Safety (Domestic Commercial
Vessel) National Law 198
5 Constitutional reach of Act 199
6 Relationship with State and Territory laws 200
7 Avoiding inconsistency, including operational
inconsistency, arising between this Act and State
and Territory workplace health and safety laws 202
8 Extraterritorial operation 203
9 Charging of fees by States etc. not prevented 204
10 National Regulator to pay amounts to States, etc. 204
11 Commonwealth consent to conferral of functions
etc. on the National Regulator etc. by corresponding
State-Territory laws 204
12 Meaning of corresponding State-Territory law 205
13 Meaning of imposes a duty 206
14 When duty imposed 206
15 Imposing duty under State or Territory law 208
16 Review of decisions under corresponding
State-Territory laws 209
17 References in instruments to the National Law 209
18 Powers of magistrates 210
19 Regulations 210
Schedule 1--Marine Safety (Domestic
Commercial Vessel) National Law 211
Part 1--Preliminary 211
1 Short title 211
2 Commencement 211
3 Objects of Law 211
4 Law binds the Crown 212
5 Extended geographical jurisdiction--category A 212
6 Definitions 212
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7 Definition of domestic commercial vessel 220
8 Definition of vessel 221
Part 2--The National Marine Safety Regulator 223
9 The National Marine Safety Regulator 223
10 Functions of the National Regulator 223
11 Delegation 224
Part 3--General safety duties relating to domestic
commercial vessels 226
Division 1--Duties of owners 226
12 Duty of owners of domestic commercial vessels to
ensure safety of vessels, marine safety equipment
and operations 226
13 Offences relating to contraventions of section 12 227
Division 2--Duties of designers, builders, suppliers etc. 228
14 Duty relating to design, manufacture etc. of domestic
commercial vessels 228
15 Offences relating to contraventions of section 14 229
Division 3--Duties of masters 230
16 Duty of masters of domestic commercial vessels to
ensure safety of vessels, marine safety equipment
and operations 230
17 Duty of masters of domestic commercial vessels to
take reasonable care for safety of persons 231
18 Offences relating to contraventions of section 16
or 17 231
Division 4--Duties of crew 233
19 Duty of crew of domestic commercial vessels to
take reasonable care for safety of persons, etc. 233
20 Offences relating to contraventions of section 19 233
Division 5--Duties of passengers 235
21 Duty of passengers on domestic commercial vessels
to take reasonable care for safety of persons, etc. 235
22 Offences relating to contraventions of section 21 235
Division 6--Other duties 237
23 Duty of persons relating to safety of persons on
domestic commercial vessels, etc. 237
24 Offences relating to contraventions of section 23 237
25 Duty of persons in relation to domestic commercial
vessels 238
26 Offences relating to contraventions of section 25 239
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Division 7--General provisions 240
27 Determining what is reasonably practicable to
ensure safety 240
28 Functions and powers of marine safety inspectors
not affected 240
29 Requirements imposed by this Part do not limit one
another 241
Part 4--Vessel identifiers and certificates for vessels
and seafarers 242
Division 1--Unique identifiers 242
30 Person may apply for unique identifier 242
31 Issue of unique identifier 242
32 Offence--operating etc. a vessel without a unique
identifier (owner) 243
33 Offence--operating etc. a vessel without a unique
identifier (master) 243
34 Offence--display etc. of a unique identifier (owner) 244
35 Offence--display etc. of unique identifier (master) 244
36 Offence--removal or alteration of a unique
identifier 245
Division 2--Certificates of survey 246
37 Person may apply for a certificate of survey 246
38 Issue of certificate of survey 246
39 Person may apply for variation, suspension or
revocation of a certificate of survey 247
40 Variation of certificate of survey 247
41 Suspension of certificate of survey 248
42 Revocation of certificate of survey 249
43 Offence--operating etc. a vessel without a
certificate of survey (owner) 249
44 Offence--operating etc. a vessel without a
certificate of survey (master) 249
45 Offence--breach of a condition of a certificate of
survey (owner) 250
46 Offence--breach of a condition of a certificate of
survey (master) 250
Division 3--Certificates of operation 252
47 Person may apply for a certificate of operation 252
48 Issue of certificate of operation 252
49 Person may apply for variation, suspension or
revocation of a certificate of operation 253
50 Variation of certificate of operation 254
51 Suspension of certificate of operation 254
52 Revocation of certificate of operation 255
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53 Offence--operating etc. a vessel without a
certificate of operation (owner) 256
54 Offence--operating etc. a vessel without a
certificate of operation (master) 256
55 Offence--breach of a condition of a certificate of
operation (owner) 257
56 Offence--breach of a condition of a certificate of
operation (master) 257
57 Obligation to notify National Regulator of certain
matters 258
Division 4--Certificates of competency 259
58 Regulations may provide for certificate of
competency 259
59 Individual may apply for a certificate of competency 259
60 Issue of certificate of competency 259
61 Person may apply for variation, suspension or
revocation of a certificate of competency 261
62 Variation of certificate of competency 261
63 Suspension of certificate of competency 261
64 Revocation of certificate of competency 262
65 Offence--owner causing etc. performance of duties
or functions without a certificate of competency 263
66 Offence--person performing duties or functions
without a certificate of competency 263
67 Offence--master causing etc. performance of duties
or functions without a certificate of competency 264
68 Offence--owner causing etc. breach of a condition
of a certificate of competency 264
69 Offence--breach of a condition of a certificate of
competency by any person 265
70 Offence--master causing etc. breach of a condition
of a certificate of competency 265
Division 5--General matters relating to unique
identifiers and certificates 266
71 National Regulator may require information 266
72 National Regulator must give a show cause notice
before varying, suspending or revoking a certificate 266
73 National Regulator may recognise certificates 267
74 Fit and proper person 268
75 Regulations may provide for matters relating to
certificates and unique identifiers 268
76 Regulations may provide for matters relating to
applications for certificates and unique identifiers 268
77 Regulations may make provision in relation to the
issue, variation and revocation of certificates and
unique identifiers 269
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78 Regulations may make provision in relation to
renewal and transfer of certificates 270
79 Regulations may require display of certificates 270
80 Regulations may provide for certificate of operation
for persons 270
81 Effect of certificate of operation for persons 270
82 Defeasibility 271
83 Certificates etc. to be made available 271
84 National Regulator may require delivery of revoked
certificates 272
Part 5--Assistance and reporting requirements 273
85 Obligation to render assistance 273
86 Obligation to render assistance if requisitioned 274
87 Obligation to record requests for assistance 275
88 Reporting of marine incidents to National Regulator
(owner) 275
89 Reporting of marine incidents to National Regulator
(master) 276
90 Evidence of marine incidents 277
Part 6--Powers of marine safety inspectors 278
Division 1--Appointment of marine safety inspectors
etc. 278
91 Appointment of marine safety inspectors 278
92 Identity cards 278
93 False representation about being a marine safety
inspector 279
94 Obstructing or hindering a marine safety inspector 280
Division 2--Entry, search, seizure, detention and
information-gathering powers 281
Subdivision A--Powers to facilitate boarding with or
without consent or warrant 281
95 Requirement to facilitate boarding 281
96 Entering certain premises for access to domestic
commercial vessel 282
Subdivision B--Powers relating to vessels, exercisable
without consent or warrant 282
97 Boarding a vessel 282
98 Requiring master of a vessel to answer questions
about the nature of the vessel 284
99 Monitoring domestic commercial vessels 284
100 Sampling, securing or seizing things found using
vessel monitoring powers 287
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101 Detaining domestic commercial vessels 288
102 Offence--not complying with requirement made
under section 99 289
Subdivision C--Powers relating to any premises,
exercisable with consent or warrant 290
103 Entering premises with consent or under warrant 290
104 Monitoring premises 291
105 Enforcement powers 293
106 Requiring persons on premises entered under
warrant to answer questions and produce
documents 296
107 Using force in executing a warrant 296
108 Relationship with Subdivision B 297
Division 3--Other powers 298
109 Giving directions 298
110 Issuing improvement notices 299
111 Issuing prohibition notices 300
112 Copies of notices to be displayed and distributed 302
113 Notices not to be tampered with or removed 303
Division 4--Persons assisting marine safety inspectors 304
114 Persons assisting marine safety inspectors 304
Division 5--Obligations and incidental powers of
marine safety inspectors 305
115 Consent 305
116 Announcement before entry under warrant 305
117 Marine safety inspector to be in possession of
warrant 306
118 Details of warrant etc. to be given to occupier 306
119 Completing execution of warrant after temporary
cessation 307
120 Completing execution of warrant stopped by court
order 308
121 Expert assistance to operate electronic equipment 308
122 Compensation for damage to electronic equipment 309
123 Extending period for which something is secured 310
124 Offence--interfering with securing of thing 310
Division 6--Occupier's rights and responsibilities 311
125 Occupier entitled to observe execution of warrant 311
126 Occupier to provide marine safety inspector with
facilities and assistance 311
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Division 7--General provisions relating to seizure and
detention 312
127 Copies of seized things to be provided 312
128 Receipts for seized things 312
129 Return of seized things 312
130 Magistrate may permit a thing to be retained 313
131 Costs of detention 314
132 Disposal of seized things and detained vessels 315
133 Compensation for acquisition of property 316
Division 8--Warrants 317
134 Monitoring warrants 317
135 Enforcement warrants 318
136 Enforcement warrants by telephone, fax etc. 319
137 Offence relating to warrants by telephone, fax etc. 320
Part 7--Infringement notices 322
138 Infringement notices 322
Part 8--General matters 323
Division 1--Review of decisions 323
139 Reviewable decisions 323
140 Internal review of reviewable decisions 324
141 Applications for AAT review 325
142 Review of decisions made under the regulations 326
Division 2--Exemptions 327
143 Power of exemption 327
144 Offence of breaching a condition of exemption
(owner) 328
145 Offence of breaching a condition of exemption
(master) 328
146 Offence of breaching a condition of exemption
(all persons) 328
Division 3--Application of National Law to certain
bodies 329
147 Treatment of partnerships 329
148 Treatment of unincorporated associations 329
149 Treatment of trusts with multiple trustees 330
Division 4--Fees 332
150 Charging of fees by the National Regulator 332
151 Charging of fees by accredited persons 332
Division 5--Disclosure of information 333
152 Disclosure of information by certain persons to the
National Regulator 333
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Division 6--Immunity from suit 334
153 Immunity from suit 334
Division 7--Matters relating to evidence and
proceedings, etc. 335
154 National Regulator may require certain
information 335
155 Offence not to give information 335
156 Evidentiary certificates 336
157 Burden of proving certain matters lies on
defendant 337
Division 8--Adverse publicity orders 338
158 Adverse publicity orders 338
Division 9--Regulations and other legislative
instruments 340
159 Regulations 340
160 Regulations may prescribe matters relating to
accreditation and approval 341
161 Offence of contravening a condition of accreditation 342
162 Regulations may prescribe penalties etc. 344
163 Legislative instruments other than regulations 344
164 Incorporation of material, etc. 345
165 Regulations may deal with transitional matters 345
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Marine Safety (Domestic Commercial
Vessel) National Law Act 2012
No. 121, 2012
An Act to provide for a national law about
marine safety for certain commercial vessels,
and for related purposes
[Assented to 12 September 2012]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Marine Safety (Domestic
Commercial Vessel) National Law Act 2012.
2 Commencement
(1) Each provision of this Act specified in column 1 of the
table commences, or is taken to have commenced, in
accordance with column 2 of the table. Any other
statement in column 2 has effect according to its terms.
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Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
1. Sections 1 The day this Act receives the Royal 12 September
and 2 and Assent. 2012
anything in
this Act not
elsewhere
covered by
this table
2. Sections 3 A single day to be fixed by
to 19 Proclamation.
However, if the provision(s) do not
commence within the period of
12 months beginning on the day this
Act receives the Royal Assent, they
commence on the day after the end of
that period.
3. Schedule 1 At the same time as the provisions
covered by table item 2.
Note: This table relates only to the provisions of this Act as
originally enacted. It will not be amended to deal with any
later amendments of this Act.
(2) Any information in column 3 of the table is not part of
this Act. Information may be inserted in this column, or
information in it may be edited, in any published version
of this Act.
3 Definitions
(1) For the purposes of this Act, the local application
provisions of this Act are the provisions of this Act other
than the Marine Safety (Domestic Commercial Vessel)
National Law set out in Schedule 1 to this Act.
(2) In the local application provisions of this Act:
Commonwealth Minister means the Minister of State
administering this Act.
constitutional corporation means a corporation to which
paragraph 51(xx) of the Constitution applies.
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corresponding State-Territory law: see section 12.
imposes a duty: see section 13.
international agreement means a treaty or agreement
whose parties are:
(a) Australia and a foreign country; or
(b) Australia and 2 or more foreign countries.
Marine Safety (Domestic Commercial Vessel) National
Law of the Commonwealth means the provisions
applying as a law of the Commonwealth because of
section 4.
participating Territory means the following:
(a) the Australian Capital Territory;
(b) the Jervis Bay Territory;
(c) the Territory of Ashmore and Cartier Islands;
(d) the Territory of Christmas Island;
(e) the Territory of Cocos (Keeling) Islands.
this jurisdiction means the Commonwealth.
(3) Terms used in the local application provisions of this Act
and also in the Marine Safety (Domestic Commercial
Vessel) National Law set out in Schedule 1 to this Act
have the same meanings in those provisions as they have
in that Law.
4 Adoption of Marine Safety (Domestic Commercial Vessel)
National Law
The Marine Safety (Domestic Commercial Vessel)
National Law set out in Schedule 1 to this Act, and
regulations and other legislative instruments made under
that Law:
(a) apply as a law of this jurisdiction; and
(b) as so applying, may be referred to as the Marine
Safety (Domestic Commercial Vessel) National
Law of the Commonwealth.
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5 Constitutional reach of Act
(1) This Act applies to activities of, or matters that relate to,
the following:
(a) a vessel engaged in trade and commerce:
(i) among the States; or
(ii) between a State and a Territory; or
(iii) between 2 Territories;
(b) a vessel that is external to Australia;
(c) a vessel of which the owner, or any of the owners,
is a constitutional corporation;
(d) a vessel, so far as the application of this Act to
activities of, or in relation to, the vessel is
reasonably appropriate and adapted to giving effect
to Australia's obligations under an international
agreement;
(e) a vessel of which the owner, or any of the owners,
is the Commonwealth or a Commonwealth
authority;
(f) a vessel that is within a participating Territory;
(g) navigation or shipping, to the extent that the
navigation or shipping relates to trade and
commerce:
(i) among the States; or
(ii) between a State and a Territory; or
(iii) between 2 Territories;
(h) any matter that may be made the subject of the
jurisdiction of the High Court under paragraph
76(iii) of the Constitution;
(i) things that are incidental to activities or matters
referred to in any of the above paragraphs.
(2) For the purposes of subsection (1), an activity of, or a
matter in relation to, a vessel includes, but is not limited
to, an activity done by a person, or in relation to a person,
in the capacity of owner, master or crew of the vessel.
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(3) For the purposes of subsection (1), external to Australia
means:
(a) beyond the baseline from which the breadth of the
territorial sea is measured under section 7 of the
Seas and Submerged Lands Act 1973; or
(b) any waters on the landward side of the territorial
sea that are not within the limits of a State or
internal Territory.
Note 1: For the baseline see Australia's territorial sea baseline
(AGPS) 1988: generally the baseline is the lowest
astronomical tide along the coast but it also includes lines
enclosing bays and indentations that are not bays and
straight baselines that depart from the coast.
Note 2: A reference to Australia in any other provision of this Act
includes a reference to the coastal sea of Australia: see
section 15B of the Acts Interpretation Act 1901.
6 Relationship with State and Territory laws
(1) This Act is intended to apply to the exclusion of a law of
a State or Territory that relates to marine safety so far as
it would otherwise apply in relation to domestic
commercial vessels.
(2) However, subsection (1) does not apply to a law of a
State or Territory so far as:
(a) the law is prescribed by the regulations as a law to
which that subsection does not apply; or
(b) the law deals with any of the following matters:
(i) management of ports, harbours and moorings;
(ii) environmental management, including
pollution, impact assessments and sanctuaries;
(iii) pilotage;
(iv) management of dangerous goods;
(v) designation of waters, including designation of
waters by reference to the vessels that are or
are not permitted to operate in those waters;
(vi) regulation or prohibition of the operation of
specified vessels or classes of vessels in
specified areas;
(vii) harbour masters;
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(viii) speed limits, navigation aids, traffic
management plans, rules for prevention of
collisions, no wash zones, the management of
events on waterways, wrecks, salvage, passing
dredges, towing objects, bar crossings and
local knowledge requirements;
(ix) removing obstructions (including abandoned,
sinking and derelict vessels) from navigable
waters;
(x) the actions of persons under the influence of
alcohol or other drugs;
(xi) false distress signals and calls;
(xii) management of passengers;
(xiii) repairs, cutting or welding occurring on board
vessels;
(xiv) requirements for vessels conducting particular
dangerous operations or operations that may
cause offence, including hauling garbage;
(xv) prices charged for the provision of commercial
services;
(xvi) fisheries management;
(xvii) storage, preparation, service and disposal of
food and beverages on vessels;
(xviii) marine radio;
(xix) monitoring of marine communication services;
(xx) gas and electrical safety;
(xxi) workplace health and safety;
(xxii) emergency management and response;
(xxiii) any other matters prescribed by the
regulations.
(3) To avoid doubt, this Act is not intended to apply to the
exclusion of a law of a State or Territory that relates to
activities or matters to which this Act does not apply
under subsection 5(1).
(4) This Act is not intended to exclude or limit the operation
of a law that is covered by subsection (2) and is capable
of operating concurrently with this Act.
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(5) This Act is not intended to exclude or limit the
concurrent operation of a law of a State or Territory that
is covered by subsection (2) and that makes an act or
omission that is an offence against a provision of this Act
an offence against the law of the State or Territory.
(6) Subsections (4) and (5) apply even if the law of the State
or Territory does any one or more of the following:
(a) provides for a penalty for the offence that differs
from the penalty provided for in this Act;
(b) provides for a fault element in relation to the
offence that differs from the fault elements in
relation to the offence against this Act;
(c) provides for a defence in relation to the offence that
differs from the defences in relation to the offence
against this Act.
(7) If:
(a) an act or omission of a person is both an offence
against the Marine Safety (Domestic Commercial
Vessel) National Law of the Commonwealth and an
offence against the law of a State or Territory or the
common law; and
(b) the person is convicted of either of those offences;
the person is not liable to be convicted of the other of
those offences.
(8) To avoid doubt, a reference in this section to a law of a
State or Territory includes a reference to a provision of
such a law.
7 Avoiding inconsistency, including operational
inconsistency, arising between this Act and State
and Territory workplace health and safety laws
(1) This section has effect despite anything else in the
Marine Safety (Domestic Commercial Vessel) National
Law of the Commonwealth.
(2) This section does not apply to a provision of a law of a
State or Territory that is capable of concurrent operation
with the Marine Safety (Domestic Commercial Vessel)
National Law of the Commonwealth.
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(3) A provision of the Marine Safety (Domestic Commercial
Vessel) National Law of the Commonwealth does not:
(a) prohibit the doing of an act; or
(b) impose a liability (whether civil or criminal) for
doing an act;
if the doing of that act is specifically authorised or
required by or under a provision of a law of a State or
Territory that deals with workplace health and safety.
(4) A provision of the Marine Safety (Domestic Commercial
Vessel) National Law of the Commonwealth does not:
(a) require the doing of an act; or
(b) impose a liability (whether civil or criminal) for not
doing an act;
if the doing of that act is specifically prohibited by or
under a provision of a law of a State or Territory that
deals with workplace health and safety.
(5) A provision of the Marine Safety (Domestic Commercial
Vessel) National Law of the Commonwealth does not
operate to the extent necessary to ensure that no
inconsistency (including operational inconsistency) arises
between:
(a) the provision of the Marine Safety (Domestic
Commercial Vessel) National Law of the
Commonwealth; and
(b) a provision of a law of a State or Territory that
deals with workplace health and safety that would,
but for this subsection, be inconsistent with the
provision of the Marine Safety (Domestic
Commercial Vessel) National Law of the
Commonwealth.
8 Extraterritorial operation
This Act applies within and outside Australia.
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9 Charging of fees by States etc. not prevented
This Act does not prevent a State or the Northern
Territory, or an agency of a State or the Northern
Territory, charging a fee in relation to a thing done under
the Marine Safety (Domestic Commercial Vessel)
National Law of the Commonwealth by a delegate of the
National Regulator, or an accredited person, who is an
officer or employee of that State, the Northern Territory
or that agency.
10 National Regulator to pay amounts to States, etc.
(1) If:
(a) an amount payable under an infringement notice is
paid to the National Regulator; and
(b) the infringement notice was issued by a marine
safety inspector who is an officer or employee of an
agency of a State or the Northern Territory, or by
the National Regulator on the recommendation of
such a marine safety inspector;
the National Regulator must pay to that State or Territory
an amount equal to that amount.
(2) A payment of an amount to a State or Territory under
subsection (1) is subject to the condition that, if the
National Regulator becomes liable to refund the whole or
part of that amount, the State or Territory must pay to the
National Regulator an amount equal to the amount that
the National Regulator is liable to refund.
11 Commonwealth consent to conferral of functions etc. on
the National Regulator etc. by corresponding
State-Territory laws
(1) A corresponding State-Territory law may confer
functions or powers, or impose duties, on the National
Regulator or other officer or authority of the
Commonwealth.
(2) Subsection (1) does not authorise the conferral of a
function or power, or the imposition of a duty, by a
corresponding State-Territory law to the extent to which:
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(a) the conferral or imposition, or the authorisation,
would contravene any constitutional doctrines
restricting the duties that may be imposed on the
National Regulator or other officer or authority; or
(b) the authorisation would otherwise exceed the
legislative power of the Commonwealth.
(3) Subsection (1) does not extend to a function, power or
duty of a kind specified in regulations made for the
purposes of this subsection.
(4) This Act is not intended to exclude or limit the operation
of a corresponding State-Territory law that confers any
functions or powers, or imposes any duties, on the
National Regulator or other officer or authority to the
extent to which that law:
(a) is consistent with subsections (1) to (3); and
(b) is capable of operating concurrently with this Act.
12 Meaning of corresponding State-Territory law
(1) For the purposes of this Act, corresponding
State-Territory law means a law of a State or the
Northern Territory that is declared by the Commonwealth
Minister, by legislative instrument, to correspond to this
Act, including such a law as amended from time to time.
(2) The Commonwealth Minister may revoke a declaration
under subsection (1) in relation to a law of a State or the
Northern Territory only if:
(a) the Minister is requested by the State or Territory
concerned to revoke the declaration; or
(b) the State or Territory law has been amended
otherwise than as unanimously agreed by the
members of the COAG Council under the
Intergovernmental Agreement for Commercial
Vessel Safety Reform; or
(c) proposed amendments of the State or Territory law
have been unanimously agreed by the members of
the COAG Council under the Intergovernmental
Agreement for Commercial Vessel Safety Reform,
and the State or Territory law has not been
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amended in accordance with that agreement within
a reasonable period after the agreement.
13 Meaning of imposes a duty
For the purposes of this Act, a corresponding
State-Territory law imposes a duty on the National
Regulator or other officer or authority if:
(a) the corresponding State-Territory law confers a
function or power on the National Regulator or
other officer or authority; and
(b) the circumstances in which the function or power is
conferred give rise to an obligation on the National
Regulator or other officer or authority to perform
the function or to exercise the power.
14 When duty imposed
Application
(1) This section applies if a corresponding State-Territory
law purports to impose a duty on the National Regulator
or other officer or authority of the Commonwealth.
State or Territory legislative power sufficient to support
duty
(2) The duty is taken not to be imposed by this Act (or any
other law of the Commonwealth) to the extent to which:
(a) imposing the duty is within the legislative powers
of the State or Territory concerned; and
(b) imposing the duty by the law of the State or
Territory is consistent with the constitutional
doctrines restricting the duties that may be imposed
on the National Regulator or other officer or
authority of the Commonwealth.
Note: If this subsection applies, the duty will be taken to be
imposed by force of the law of the State or Territory
(the Commonwealth having consented under section 11
to the imposition of the duty by that law).
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Commonwealth legislative power sufficient to support
duty but State or Territory legislative powers are not
(3) If, to ensure the validity of the purported imposition of
the duty, it is necessary that the duty be imposed by a law
of the Commonwealth (rather than by force of the law of
a State or Territory), the duty is taken to be imposed by
this Act to the extent necessary to ensure that validity.
(4) If, because of subsection (3), this Act is taken to impose
the duty, it is the intention of the Parliament to rely on all
powers available to it under the Constitution to support
the imposition of the duty by this Act.
(5) The duty is taken to be imposed by this Act in accordance
with subsection (3) only to the extent to which imposing
the duty:
(a) is within the legislative powers of the
Commonwealth; and
(b) is consistent with the constitutional doctrines
restricting the duties that may be imposed on the
National Regulator or other officer or authority of
the Commonwealth.
(6) To avoid doubt, neither this Act (nor any other law of
the Commonwealth) imposes a duty on the National
Regulator or other officer or authority of the
Commonwealth to the extent to which imposing such a
duty would:
(a) contravene any constitutional doctrine restricting
the duties that may be imposed on the National
Regulator or other officer or authority of the
Commonwealth; or
(b) otherwise exceed the legislative power of the
Commonwealth.
(7) This section does not limit section 11.
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15 Imposing duty under State or Territory law
(1) This section:
(a) applies only for the purposes of the application of
the provisions of this Act or another law of the
Commonwealth (with or without modification) as
a law of a State or the Northern Territory by a
provision of a corresponding State-Territory law;
and
(b) does not apply for those purposes if the
corresponding State-Territory law otherwise
provides.
(2) If the corresponding State-Territory law purports to
impose a duty on the National Regulator or other officer
or authority of the Commonwealth to do a particular
thing, the duty is taken to be imposed by the
corresponding State-Territory law to the extent to which
imposing the duty:
(a) is within the legislative powers of the State or
Territory concerned; and
(b) is consistent with the constitutional doctrines
restricting the duties that may be imposed on the
National Regulator.
(3) To avoid doubt, the corresponding State-Territory law
does not impose the duty on the National Regulator or
other officer or authority of the Commonwealth to the
extent to which imposing the duty would:
(a) contravene any constitutional doctrine restricting
the duties that may be imposed on the National
Regulator or other officer or authority of the
Commonwealth; or
(b) otherwise exceed the legislative powers of the State
or Territory concerned.
(4) If imposing on the National Regulator or other officer or
authority of the Commonwealth the duty to do that thing
would:
(a) contravene any constitutional doctrine restricting
the duties that may be imposed on the National
Regulator or other officer or authority of the
Commonwealth; or
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(b) otherwise exceed the legislative powers of both the
State or Territory and the Commonwealth;
the corresponding State-Territory law is taken instead to
confer on the National Regulator or other officer or
authority of the Commonwealth a power to do that thing
at the discretion of the National Regulator or other officer
or authority of the Commonwealth.
16 Review of decisions under corresponding State-Territory
laws
(1) Applications may be made to the Administrative Appeals
Tribunal for review of reviewable State-Territory
decisions.
(2) A decision made by the National Regulator in the
performance of a function or the exercise of a power
conferred by a corresponding State-Territory law is a
reviewable State-Territory decision for the purposes of
this section if:
(a) the law under which the decision was made
provides for review by the Administrative Appeals
Tribunal; and
(b) the decision is declared by the regulations to be a
reviewable State-Territory decision for the purposes
of this section.
(3) For the purposes of this section, the Administrative
Appeals Tribunal Act 1975 has effect as if a
corresponding State-Territory law were an enactment.
17 References in instruments to the National Law
(1) A reference in any Act or instrument to the Marine Safety
(Domestic Commercial Vessel) National Law is a
reference to:
(a) the Marine Safety (Domestic Commercial Vessel)
National Law as applied under section 4; and
(b) a corresponding State-Territory law.
(2) Subsection (1) has effect except so far as the contrary
intention appears in the Act or instrument or the context
of the reference otherwise requires.
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18 Powers of magistrates
(1) A power conferred on a magistrate by the Marine Safety
(Domestic Commercial Vessel) National Law of the
Commonwealth is conferred on the magistrate:
(a) in a personal capacity; and
(b) not as a court or a member of a court.
(2) The magistrate need not accept the power conferred.
(3) A magistrate exercising a power conferred by the Marine
Safety (Domestic Commercial Vessel) National Law of
the Commonwealth has the same protection and
immunity as if he or she were exercising the power:
(a) as the court of which the magistrate is a member; or
(b) as a member of the court of which the magistrate is
a member.
19 Regulations
The Governor-General may make regulations prescribing
matters:
(a) required or permitted by the local application
provisions of this Act to be prescribed; or
(b) necessary or convenient to be prescribed for
carrying out or giving effect to the local application
provisions of this Act.
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Schedule 1--Marine Safety (Domestic
Commercial Vessel) National
Law
Note: See section 4.
Part 1--Preliminary
1 Short title
This Law may be cited as the Marine Safety (Domestic
Commercial Vessel) National Law.
2 Commencement
This Law commences as a law of this jurisdiction as
provided by the Act of this jurisdiction that applies this
Law as a law of this jurisdiction.
3 Objects of Law
The objects of this Law are as follows:
(a) to form a part of a cooperative scheme between the
Commonwealth, the States and the Northern
Territory that provides a single national framework
for ensuring the safe operation, design, construction
and equipping of domestic commercial vessels;
(b) to implement Australia's international obligations
in relation to the safety of domestic commercial
vessels;
(c) to facilitate the development of a safety culture that
will prevent, or mitigate the effects of, marine
incidents;
(d) to provide a framework for the development and
application of consistent national standards relating
to the operation, design, construction and equipping
of domestic commercial vessels;
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(e) to enhance the efficient and orderly operation of
domestic commercial vessels;
(f) to provide an effective enforcement framework.
4 Law binds the Crown
(1) This Law binds the Crown in each of its capacities.
(2) This Law does not make the Crown liable to a pecuniary
penalty or to be prosecuted for an offence.
5 Extended geographical jurisdiction--category A
Section 15.1 of the Criminal Code (extended
geographical jurisdiction--category A) applies to an
offence against this Law.
6 Definitions
In this Law:
accredited person means a person who is accredited in
accordance with regulations made for the purposes of
section 160.
acquisition of property has the same meaning as in
paragraph 51(xxxi) of the Constitution of the
Commonwealth.
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.
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approved training organisation means a training
organisation that is approved in accordance with
regulations made for the purposes of section 160.
certificate means any of the following:
(a) a certificate of operation;
(b) a certificate of survey;
(c) a certificate of competency.
certificate of competency means a certificate issued
under section 60.
certificate of operation means a certificate issued under
section 48.
certificate of survey means a certificate issued under
section 38.
close quarters situation means a situation in which
vessels pass each other, or a vessel passes another vessel,
a person or an object, in such proximity that a reasonable
person would conclude that in all the circumstances there
was a risk of an imminent collision.
COAG means the Council of Australian Governments.
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.
company has the same meaning as in the Income Tax
Assessment Act 1997 of the Commonwealth.
Note: Under the Income Tax Assessment Act 1997 of the
Commonwealth, company includes an unincorporated
association or body of persons.
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.
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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: see section 7.
enforcement powers: see section 105.
enforcement warrant means:
(a) a warrant issued under section 135; or
(b) a warrant signed by a magistrate under section 136.
entity means any of the following:
(a) an individual;
(b) a company;
(c) a trust;
(d) a partnership;
(e) a corporation sole;
(f) a body politic.
evidential material means:
(a) a thing with respect to which an offence against this
Law has been committed or is suspected, on
reasonable grounds, of having been committed; or
(b) a thing that there are reasonable grounds for
suspecting will afford evidence as to the
commission of an offence against this Law; or
(c) a thing that there are reasonable grounds for
suspecting is intended to be used for the purpose of
committing an offence against this Law.
foreign vessel has the same meaning as in the Navigation
Act 2012 of the Commonwealth.
general monitoring powers: see section 104.
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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.
hirer of a hire and drive vessel means:
(a) a person who hires the vessel; or
(b) a person, other than the owner of the vessel or a
person acting on the owner's behalf, who operates
the vessel while it is under hire.
improvement notice means an improvement notice issued
under section 110.
infringement notice means:
(a) a notice that:
(i) is given under regulations made for the
purposes of section 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 section 162(3) to a person alleged
to have contravened a provision described in
that subsection; 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.
just terms has the same meaning as in paragraph 51(xxxi)
of the Constitution of the Commonwealth.
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;
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(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;
(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 equipment means equipment designed or
used to prevent a marine incident, or mitigate the
consequences of a marine incident, and includes, but is
not limited to, the following things carried or installed on
a domestic commercial vessel:
(a) personal flotation devices;
(b) telecommunications systems;
(c) flares and other devices that can be used to attract
attention to the vessel or indicate the vessel's
position;
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(d) position identification systems;
(e) anchors and other devices that may be used to
maintain the vessel's position or stability;
(f) oars and other alternative means of propulsion;
(g) fire extinguishers;
(h) lights;
(i) thermal protective aids;
(j) such other equipment as is prescribed by the
regulations.
marine safety inspector means:
(a) a person appointed as an inspector under
section 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.
monitoring purposes means one or more of the
following:
(a) finding out whether this Law is being, or has been,
complied with;
(b) assessing the correctness of information provided
under this Law;
(c) investigating a marine incident.
monitoring warrant means a warrant issued under
section 134.
National Marine Safety Regulator: see section 9.
National Regulator: see section 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.
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occupier, in relation to premises, includes:
(a) a person who apparently represents the occupier of
the premises; and
(b) if the premises are a vessel--the master of the
vessel.
offence against this Law includes an offence against the
Crimes Act 1914 of the Commonwealth or the Criminal
Code that relates to this Law.
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) load or unload 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.
partnership has the same meaning as in the Income Tax
Assessment Act 1997 of the Commonwealth.
personal information means information or an opinion
(including information or an opinion forming part of a
database), whether true or not, and whether recorded in a
material form or not, about an individual whose identity
is apparent, or can reasonably be ascertained, from the
information or opinion.
person assisting a marine safety inspector: see
section 114.
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pilot means a person who does not belong to, but has the
conduct of, a 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).
prohibition notice means a prohibition notice issued
under section 111.
regulated Australian vessel has the same meaning as in
the Navigation Act 2012 of the Commonwealth.
reviewable decision: see section 139.
this Law includes the regulations and any other
legislative instrument made under this Law.
trust means a person in the capacity of trustee or, as the
case requires, a trust estate.
trustee has the same meaning as in the Income Tax
Assessment Act 1997 of the Commonwealth.
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.
unique identifier, in relation to a vessel, means a unique
identifier issued under section 31.
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
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(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: see section 8.
vessel monitoring powers: see section 99.
warrant means a monitoring warrant or an enforcement
warrant.
7 Definition of domestic commercial vessel
(1) In this Law:
domestic commercial vessel means a vessel that is for use
in connection with a commercial, governmental or
research activity.
(2) The use of a vessel in connection with an activity that is
not a commercial, governmental or research activity at
the same time as the vessel is used in connection with a
commercial, governmental or research activity does not
prevent the vessel from being a domestic commercial
vessel.
(3) Despite subsection (1), a vessel is not a domestic
commercial vessel if the vessel:
(a) is a regulated Australian vessel; or
(b) is a foreign vessel; or
(c) is a defence vessel; or
(d) is owned by:
(i) a primary or secondary school; or
(ii) a community group of a kind prescribed by the
regulations.
Note: Generally an Australian vessel will be a regulated
Australian vessel if it voyages outside Australia's
exclusive economic zone at any time. Regulated
Australian vessels are dealt with by the Navigation Act
2012 of the Commonwealth rather than this Law.
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(4) Despite subsection (3)(d), a vessel covered by that
subsection is a domestic commercial vessel at any time
when it is being used for:
(a) a purpose prescribed by the regulations; or
(b) an activity prescribed by the regulations.
(5) Despite subsections (1) and (2), the regulations may
provide as follows:
(a) that a specified thing, or a thing included in a
specified class, is a domestic commercial vessel;
(b) that a specified thing, or a thing included in a
specified class, is not a domestic commercial
vessel.
(6) Regulations made for the purposes of subsection
(3)(d)(ii) may prescribe a kind by reference to a decision
of the National Regulator.
(7) A vessel in the course of construction is a domestic
commercial vessel if the vessel is, after completion, for
use as a domestic commercial vessel.
(8) For the purposes of subsection (7), a vessel that has been
launched, but has not been completed and delivered
under the relevant building contract, is taken to be a
vessel in the course of construction.
8 Definition of vessel
(1) In this Law:
vessel means a craft for use, or that is capable of being
used, in navigation by water, however propelled or
moved, and includes an air-cushion vehicle, a barge, a
lighter, a submersible, a ferry in chains and a
wing-in-ground effect craft.
(2) Despite subsection (1), none of the following is a vessel:
(a) an aircraft;
(b) a thing that is a facility for the purposes of
Schedule 3 to the Offshore Petroleum and
Greenhouse Gas Storage Act 2006 of the
Commonwealth.
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(3) Despite subsections (1) and (2), the regulations may
provide as follows:
(a) that a specified thing, or a thing included in a
specified class, is a vessel;
(b) that a specified thing, or a thing included in a
specified class, is not a vessel.
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Part 2--The National Marine Safety
Regulator
9 The National Marine Safety Regulator
The Australian Maritime Safety Authority is the National
Marine Safety Regulator (referred to in this Act as the
National Regulator).
Note: The Australian Maritime Safety Authority 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.
10 Functions of the National Regulator
The National Regulator has the following functions:
(a) to make and maintain Marine Orders made under
section 163;
(b) to develop and maintain national standards,
guidelines and codes of practice relating to marine
safety;
(c) to issue unique identifiers and certificates for the
purposes of this Law and perform other functions in
relation to such identifiers and certificates;
(d) to accredit persons and approve training
organisations for the purposes of this Law;
(e) to undertake investigation, monitoring and
enforcement activities under or for the purposes of
this Law;
(f) to consult appropriate authorities of the States and
Territories, and other persons, associations and
organisations, on matters related to the activities of
the National Regulator;
(g) to collect and distribute information, and provide
advice, to:
(i) the Commonwealth Minister; and
(ii) the States and Territories; and
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(iii) the public;
on matters related to the activities of the National
Regulator and the operation of this Law;
(h) to develop or commission education programs
relating to marine safety;
(i) to collect, analyse and disseminate data relating to
marine safety;
(j) such other functions as are conferred on the
National Regulator by this Law or any other law
(including a law of the Commonwealth, a State or
the Northern Territory);
(k) to perform functions incidental to any of the
previously described functions.
11 Delegation
(1) The National Regulator may, by writing, delegate one or
more of the National Regulator's powers or functions
under this Law to one or more of the following:
(a) an officer or employee of an agency of the
Commonwealth;
(b) an officer or employee of an agency of a State or
the Northern Territory.
(2) A delegate of the National Regulator is subject to the
National Regulator's directions in the exercise of
delegated powers and the performance of delegated
functions.
(3) A person (the delegate) to whom a power or function is
delegated under subsection (1) may, by writing,
sub-delegate that power or function to another officer or
employee (the sub-delegate) of the agency of which the
delegate is an officer or employee.
(4) A sub-delegate is subject to the directions of the delegate
in the exercise of delegated powers and the performance
of delegated functions.
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(5) If the delegate is subject to a direction by the National
Regulator in relation to the performance of the function
or the exercise of the power sub-delegated under
subsection (3), the delegate must give a corresponding
direction to the sub-delegate.
(6) Sections 34AA, 34AB and 34A of the Acts Interpretation
Act 1901 of the Commonwealth apply to a sub-delegation
in the same way as they apply to a delegation.
(7) The National Regulator must not delegate a power or
function under subsection (1) to an officer or employee of
an agency of a State or the Northern Territory without the
agreement of the State or the Northern Territory, as the
case requires.
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Part 3--General safety duties relating to
domestic commercial vessels
Division 1--Duties of owners
12 Duty of owners of domestic commercial vessels to ensure
safety of vessels, marine safety equipment and
operations
(1) An owner of a domestic commercial vessel must, so far
as reasonably practicable, ensure the safety of:
(a) the vessel; and
(b) marine safety equipment that relates to the vessel;
and
(c) the operation of the vessel.
(2) Without limiting subsection (1), an owner of a domestic
commercial vessel contravenes that subsection if:
(a) the owner does not provide or maintain the vessel
so that the vessel is, so far as reasonably
practicable, safe; or
(b) the owner does not implement and maintain a
safety management system that ensures that the
vessel and the operations of the vessel are, so far as
reasonably practicable, safe; or
(c) the owner does not provide, so far as reasonably
practicable, such information, instruction, training
or supervision to people on board the vessel as is
necessary to ensure their safety.
(3) Without limiting subsection (1), an owner of a domestic
commercial vessel contravenes that subsection if:
(a) the owner operates the vessel, or causes or allows
the vessel to be operated; and
(b) the vessel is an unsafe vessel.
(4) Without limiting subsection (1), an owner of a domestic
commercial vessel contravenes that subsection if the
owner prevents or restricts the master of the vessel from
making or implementing a decision that, in the
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professional opinion of the master, is necessary for the
safety of a person or the vessel.
13 Offences relating to contraventions of section 12
(1) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 12(1); and
(c) the person intends the act or omission to be a risk to
the safety of a person or the domestic commercial
vessel concerned.
Penalty: Imprisonment for 2 years or 1,800 penalty
units, or both.
(2) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 12(1); and
(c) the person is reckless as to whether the act or
omission is a risk to the safety of a person or the
domestic commercial vessel concerned.
Penalty: 200 penalty units.
(3) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 12(1); and
(c) the person is negligent as to whether the act or
omission is a risk to the safety of a person or the
domestic commercial vessel concerned.
Penalty: 120 penalty units.
(4) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 12(1).
Penalty: 60 penalty units.
(5) An offence against subsection (4) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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Division 2--Duties of designers, builders, suppliers
etc.
14 Duty relating to design, manufacture etc. of domestic
commercial vessels
A person who designs, commissions, constructs,
manufactures, supplies, maintains, repairs or modifies a
domestic commercial vessel, or marine safety equipment
that relates to such a vessel, must:
(a) ensure, so far as reasonably practicable, that the
vessel or equipment is safe if used for a purpose for
which it was designed, commissioned, constructed,
manufactured, supplied, maintained, repaired or
modified, as the case may be; and
(b) either:
(i) carry out, or arrange the carrying out of, such
testing and examination as may be necessary
for compliance with paragraph (a); or
(ii) ensure that such testing and examination has
been carried out; and
(c) take such action as is necessary to ensure that there
will be available, in connection with the use of the
vessel or equipment, adequate information about:
(i) the use for which the vessel or equipment was
designed, commissioned, constructed,
manufactured, supplied, maintained, repaired
or modified, as the case may be; and
(ii) the results of any testing or examination
referred to in paragraph (b); and
(iii) any conditions necessary to ensure the vessel
or equipment is safe if it is used for a purpose
for which it was designed, commissioned,
constructed, manufactured, supplied,
maintained, repaired or modified, as the case
may be.
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15 Offences relating to contraventions of section 14
(1) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 14; and
(c) the person intends the act or omission to be a risk to
the safety of a person or the domestic commercial
vessel concerned.
Penalty: Imprisonment for 2 years or 1,800 penalty
units, or both.
(2) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 14; and
(c) the person is reckless as to whether the act or
omission is a risk to the safety of a person or the
domestic commercial vessel concerned.
Penalty: 200 penalty units.
(3) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 14; and
(c) the person is negligent as to whether the act or
omission is a risk to the safety of a person or the
domestic commercial vessel concerned.
Penalty: 120 penalty units.
(4) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 14.
Penalty: 60 penalty units.
(5) An offence against subsection (4) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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Division 3--Duties of masters
16 Duty of masters of domestic commercial vessels to ensure
safety of vessels, marine safety equipment and
operations
(1) The master of a domestic commercial vessel must, so far
as reasonably practicable, ensure the safety of:
(a) the vessel; and
(b) marine safety equipment that relates to the vessel;
and
(c) the operation of the vessel.
(2) Without limiting subsection (1), the master of a domestic
commercial vessel contravenes that subsection if the
master does not, so far as reasonably practicable,
implement and comply with the safety management
system for the vessel and the operations of the vessel.
(3) Without limiting subsection (1), the master of a domestic
commercial vessel contravenes that subsection if:
(a) the master operates the vessel, or causes or allows
the vessel to be operated; and
(b) the vessel is an unsafe vessel.
(4) Without limiting subsection (1), the master of a domestic
commercial vessel contravenes that subsection if, when
carrying out duties as master or doing anything in relation
to the vessel, the master interferes with or misuses
anything provided on the vessel in the interests of the
safety of the vessel.
(5) Subsection (1) does not apply if:
(a) the vessel is a hire and drive vessel being used
wholly for recreational purposes; and
(b) the master of the vessel is a hirer of the vessel.
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17 Duty of masters of domestic commercial vessels to take
reasonable care for safety of persons
(1) The master of a domestic commercial vessel must, when
carrying out duties as master of the vessel:
(a) take reasonable care for his or her own safety; and
(b) take reasonable care for the safety of persons who
may be affected by his or her acts or omissions.
(2) The master of a domestic commercial vessel must not
unreasonably place the safety of another person at risk
when carrying out duties as master of the vessel.
(3) Subsections (1) and (2) do not apply if:
(a) the vessel is a hire and drive vessel being used
wholly for recreational purposes; and
(b) the master of the vessel is a hirer of the vessel.
18 Offences relating to contraventions of section 16 or 17
(1) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 16(1) or
17(1) or (2); and
(c) the person intends the act or omission to be a risk to
the safety of a person or the domestic commercial
vessel concerned.
Penalty: Imprisonment for 2 years or 1,800 penalty
units, or both.
(2) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 16(1)
or 17(1) or (2); and
(c) the person is reckless as to whether the act or
omission is a risk to the safety of a person or the
domestic commercial vessel concerned.
Penalty: 200 penalty units.
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(3) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 16(1)
or 17(1) or (2); and
(c) the person is negligent as to whether the act or
omission is a risk to the safety of a person or the
domestic commercial vessel concerned.
Penalty: 120 penalty units.
(4) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 16(1)
or 17(1) or (2).
Penalty: 60 penalty units.
(5) An offence against subsection (4) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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Division 4--Duties of crew
19 Duty of crew of domestic commercial vessels to take
reasonable care for safety of persons, etc.
(1) A member of the crew of a domestic commercial vessel,
when carrying out duties as a member of the crew, must:
(a) take reasonable care for his or her own safety; and
(b) take reasonable care for the safety of persons who
may be affected by his or her acts or omissions; and
(c) comply with any reasonable and lawful directions
of the master of the vessel or a supervisor.
(2) A member of the crew of a domestic commercial vessel
must not interfere with or misuse anything provided on
the vessel in the interests of the safety of the vessel.
(3) A member of the crew of a domestic commercial vessel
must not unreasonably place the safety of another person
at risk when carrying out duties as a member of the crew.
(4) Without limiting subsection (1), a member of the crew of
a domestic commercial vessel contravenes that
subsection if the member of the crew prevents or restricts
the master of the vessel from making or implementing a
decision that, in the professional opinion of the master, is
necessary for the safety of a person or the vessel.
20 Offences relating to contraventions of section 19
(1) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 19(1), (2)
or (3); and
(c) the person intends the act or omission to be a risk to
the safety of a person or the domestic commercial
vessel concerned.
Penalty: Imprisonment for 2 years or 1,800 penalty
units, or both.
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(2) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 19(1), (2)
or (3); and
(c) the person is reckless as to whether the act or
omission is a risk to the safety of a person or the
domestic commercial vessel concerned.
Penalty: 200 penalty units.
(3) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 19(1), (2)
or (3); and
(c) the person is negligent as to whether the act or
omission is a risk to the safety of a person or the
domestic commercial vessel concerned.
Penalty: 120 penalty units.
(4) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 19(1), (2)
or (3).
Penalty: 60 penalty units.
(5) An offence against subsection (4) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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Division 5--Duties of passengers
21 Duty of passengers on domestic commercial vessels to
take reasonable care for safety of persons, etc.
(1) A passenger on board a domestic commercial vessel
must:
(a) take reasonable care for his or her safety; and
(b) comply with any reasonable and lawful directions
of the master or a member of the crew of the vessel,
if the passenger has been advised that
non-compliance may constitute an offence.
(2) A passenger on board a domestic commercial vessel must
not interfere with or misuse anything provided on the
vessel in the interests of the safety of the vessel.
(3) A passenger on board a domestic commercial vessel must
not unreasonably place at risk the safety of another
person.
(4) Without limiting subsection (1), a passenger on board a
domestic commercial vessel contravenes that subsection
if the passenger prevents or restricts the master of the
vessel from making or implementing a decision that, in
the professional opinion of the master, is necessary for
the safety of a person or the vessel.
22 Offences relating to contraventions of section 21
(1) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 21(1), (2)
or (3); and
(c) the person intends the act or omission to be a risk to
the safety of a person or the domestic commercial
vessel concerned.
Penalty: Imprisonment for 12 months or 200 penalty
units, or both.
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(2) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 21(1), (2)
or (3); and
(c) the person is reckless as to whether the act or
omission is a risk to the safety of a person or the
domestic commercial vessel concerned.
Penalty: 160 penalty units.
(3) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 21(1), (2)
or (3); and
(c) the person is negligent as to whether the act or
omission is a risk to the safety of a person or the
domestic commercial vessel concerned.
Penalty: 120 penalty units.
(4) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 21(1), (2)
or (3).
Penalty: 60 penalty units.
(5) An offence against subsection (4) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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Division 6--Other duties
23 Duty of persons relating to safety of persons on domestic
commercial vessels, etc.
(1) A person embarking on, on board or disembarking from a
domestic commercial vessel must take reasonable care
for his or her own safety.
(2) Without limiting subsection (1), a person contravenes
that subsection if the person prevents or restricts the
master of the vessel from making or implementing a
decision that, in the professional opinion of the master, is
necessary for the safety of the person.
(3) A person must take reasonable care that his or her acts
and omissions do not adversely affect the safety of
another person if that other person:
(a) is on board a domestic commercial vessel; or
(b) is taking an action connected with a domestic
commercial vessel.
(4) Without limiting subsection (3), a person contravenes
that subsection if the person prevents or restricts the
master of the vessel from making or implementing a
decision that, in the professional opinion of the master, is
necessary for the safety of another person referred to in
that subsection.
24 Offences relating to contraventions of section 23
(1) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 23(1)
or (3); and
(c) the person intends the act or omission to be a risk to
the safety of a person.
Penalty: Imprisonment for 12 months or 200 penalty
units, or both.
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(2) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 23(1)
or (3); and
(c) the person is reckless as to whether the act or
omission is a risk to the safety of a person.
Penalty: 160 penalty units.
(3) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 23(1)
or (3); and
(c) the person is negligent as to whether the act or
omission is a risk to the safety of a person.
Penalty: 120 penalty units.
(4) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 23(1) or (3).
Penalty: 60 penalty units.
(5) An offence against subsection (4) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
25 Duty of persons in relation to domestic commercial
vessels
(1) A person must not unreasonably cause, or do an act or
omit to do an act that may cause, the loss or destruction
of, or serious damage to, a domestic commercial vessel.
(2) A person must take such actions as are reasonably
practicable to prevent the loss or destruction of, or
serious damage to, a domestic commercial vessel.
(3) Without limiting subsection (1), a person contravenes
that subsection if the person prevents or restricts the
master of the vessel from making or implementing a
decision that, in the professional opinion of the master,
is necessary for the safety of the vessel.
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26 Offences relating to contraventions of section 25
(1) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 25(1)
or (2); and
(c) the person intends the act or omission to cause the
loss or destruction of, or serious damage to, the
domestic commercial vessel concerned.
Penalty: Imprisonment for 12 months or 200 penalty
units, or both.
(2) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 25(1)
or (2); and
(c) the person is reckless as to whether the act or
omission will cause the loss or destruction of, or
serious damage to, the domestic commercial vessel
concerned.
Penalty: 160 penalty units.
(3) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 25(1)
or (2); and
(c) the person is negligent as to whether the act or
omission will cause the loss or destruction of, or
serious damage to, the domestic commercial vessel
concerned.
Penalty: 120 penalty units.
(4) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 25(1) or (2).
Penalty: 60 penalty units.
(5) An offence against subsection (4) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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Division 7--General provisions
27 Determining what is reasonably practicable to ensure
safety
In this Law, reasonably practicable, in relation to a duty
imposed upon a person to ensure safety, means that
which is, or was at a particular time, reasonably able to
be done in relation to ensuring safety, taking into account
and weighing up all relevant matters, including:
(a) the likelihood of the hazard or risk concerned
eventuating; and
(b) the degree of harm that might result from the
hazard or risk concerned eventuating; and
(c) what the person concerned knows, or ought
reasonably to know, about:
(i) the hazard or the risk concerned; and
(ii) ways of eliminating or minimising the hazard
or risk concerned; and
(d) the availability and suitability of ways to eliminate
or minimise the hazard or risk concerned; and
(e) after assessing the extent of the hazard or risk
concerned and the available ways of eliminating or
minimising the hazard or risk concerned, the cost
associated with available ways of eliminating or
minimising the hazard or risk concerned, including
whether the cost is grossly disproportionate to the
hazard or risk concerned.
28 Functions and powers of marine safety inspectors not
affected
To avoid doubt, subsections 21(4), 23(2) and (4) and
25(3) do not affect the performance of a function or the
exercise of a power under this Law by a marine safety
inspector.
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29 Requirements imposed by this Part do not limit one
another
The requirements imposed by this Part do not limit one
another.
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Part 4--Vessel identifiers and certificates for
vessels and seafarers
Division 1--Unique identifiers
30 Person may apply for unique identifier
(1) A person may apply to the National Regulator for a
unique identifier for a domestic commercial vessel.
(2) The application must be in accordance with the
regulations and must be accompanied by the fee
prescribed by the regulations (if any).
Note: Regulations could provide for the application to be
made in conjunction with an application for a certificate
(for example, a certificate of operation).
31 Issue of unique identifier
(1) The National Regulator must, by written instrument,
issue a unique identifier for a domestic commercial
vessel if:
(a) an application for the unique identifier has been
made under section 30; and
(b) the National Regulator is satisfied that the criteria
prescribed by the regulations are met in relation to
the issue of the unique identifier.
(2) Without limiting the criteria that may be prescribed, the
regulations are to include criteria relating to the
identification of the vessel.
(3) A unique identifier comes into force on the day specified
in the written instrument or, if no day is so specified, on
the day on which it is issued.
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32 Offence--operating etc. a vessel without a unique
identifier (owner)
(1) The owner of a domestic commercial vessel commits an
offence if:
(a) the owner:
(i) operates the vessel, or causes or permits the
vessel to be operated; or
(ii) causes or permits the vessel to be in navigable
waters; and
(b) a unique identifier is not in force for the vessel; and
(c) the vessel is not exempt from the requirement to
have a unique identifier (see section 143).
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
33 Offence--operating etc. a vessel without a unique
identifier (master)
(1) The master of a domestic commercial vessel commits an
offence if:
(a) the master:
(i) operates the vessel, or causes or permits the
vessel to be operated; or
(ii) causes or permits the vessel to be in navigable
waters; and
(b) a unique identifier is not in force for the vessel; and
(c) the vessel is not exempt from the requirement to
have a unique identifier (see section 143).
Penalty: 60 penalty units.
(2) Subsection (1) does not apply if:
(a) the vessel is a hire and drive vessel being used
wholly for recreational purposes; and
(b) the master of the vessel is a hirer of the vessel.
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(3) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
34 Offence--display etc. of a unique identifier (owner)
(1) The owner of a domestic commercial vessel commits an
offence if:
(a) the owner:
(i) operates the vessel, or causes or permits the
vessel to be operated; or
(ii) causes or permits the vessel to be in navigable
waters; and
(b) a unique identifier is not displayed on the vessel in
accordance with the regulations.
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
35 Offence--display etc. of unique identifier (master)
(1) The master of a domestic commercial vessel commits an
offence if:
(a) the master:
(i) operates the vessel, or causes or permits the
vessel to be operated; or
(ii) causes or permits the vessel to be in navigable
waters; and
(b) a unique identifier is not displayed on the vessel in
accordance with the regulations.
Penalty: 60 penalty units.
(2) Subsection (1) does not apply if:
(a) the vessel is a hire and drive vessel being used
wholly for recreational purposes; and
(b) the master of the vessel is a hirer of the vessel.
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(3) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
36 Offence--removal or alteration of a unique identifier
(1) A person commits an offence if:
(a) the person removes or alters a unique identifier that
is displayed on a domestic commercial vessel; and
(b) the removal or alteration is not permitted by the
regulations.
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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Division 2--Certificates of survey
37 Person may apply for a certificate of survey
(1) A person may apply to the National Regulator for a
certificate of survey for a domestic commercial vessel.
(2) The application must be in accordance with the
regulations and must be accompanied by the fee
prescribed by the regulations (if any).
38 Issue of certificate of survey
(1) The National Regulator must issue a certificate of survey
for a domestic commercial vessel if:
(a) an application for the certificate has been made
under section 37; and
(b) the National Regulator is satisfied that the vessel
has been surveyed in accordance with the
regulations; and
(c) the National Regulator is satisfied that the criteria
prescribed by the regulations are met in relation to
the issue of the certificate.
(2) Without limiting the criteria that may be prescribed, the
regulations are to include criteria relating to:
(a) the technical specifications that the vessel must
satisfy; and
(b) the standards prescribed as mentioned in
section 159 that the vessel must satisfy.
(3) A certificate of survey is subject to:
(a) the conditions (if any) prescribed by the
regulations; and
(b) the conditions (if any) imposed by the National
Regulator.
(4) Conditions prescribed by the regulations or imposed by
the National Regulator may include, but are not limited
to, conditions relating to:
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(a) the frequency with which a vessel must be
surveyed; and
(b) compliance with standards prescribed as mentioned
in section 159.
(5) A certificate of survey:
(a) comes into force on the day specified in the
certificate, or, if no day is so specified, on the day
on which it is issued; and
(b) subject to subsection (6), remains in force until the
day specified in the certificate, unless it is revoked
earlier.
(6) A certificate of survey is not in force at any time when it
is suspended.
39 Person may apply for variation, suspension or revocation
of a certificate of survey
(1) A person may apply to the National Regulator for a
variation, suspension or revocation of a certificate of
survey for a domestic commercial vessel.
(2) The application must be in accordance with the
regulations and must be accompanied by the fee
prescribed by the regulations (if any).
40 Variation of certificate of survey
(1) The National Regulator must vary a certificate of survey
if:
(a) an application for variation of the certificate has
been made under section 39; and
(b) the National Regulator is satisfied that the criteria
prescribed by the regulations in relation to the
variation are met.
(2) The National Regulator must vary a certificate of survey
on the National Regulator's initiative if the National
Regulator is satisfied that the criteria prescribed by the
regulations in relation to variation on the initiative of the
National Regulator are met.
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(3) Without limiting subsections (1) and (2), the National
Regulator may vary a certificate of survey to impose a
condition on the certificate or to vary or revoke such a
condition.
41 Suspension of certificate of survey
(1) The National Regulator must suspend a certificate of
survey if:
(a) an application for suspension of the certificate has
been made under section 39; and
(b) the National Regulator is satisfied that the criteria
prescribed by the regulations in relation to the
suspension are met.
(2) The National Regulator must suspend a certificate of
survey on the National Regulator's initiative if the
National Regulator is satisfied that the suspension is
necessary:
(a) for the purpose of:
(i) protecting human life; or
(ii) securing the safe navigation of vessels; or
(iii) dealing with an emergency involving a serious
threat to the environment; or
(b) for another purpose prescribed by the regulations.
(3) A suspension:
(a) comes into force on the day specified by the
National Regulator in writing or, if no day is so
specified, on the day the holder of the certificate is
notified in writing of the suspension; and
(b) remains in force until:
(i) the end of the period specified in writing by
the National Regulator, which must not exceed
the prescribed period; or
(ii) if no period is specified--the end of the
prescribed period;
unless it is revoked earlier.
(4) A period referred to in subsection (3)(b)(i) may be
specified by reference to the fulfilment of a requirement
or condition specified by the Regulator.
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42 Revocation of certificate of survey
(1) The National Regulator must revoke a certificate of
survey if:
(a) an application for revocation of the certificate has
been made under section 39; and
(b) the National Regulator is satisfied that the criteria
prescribed by the regulations in relation to
revocation on application are met.
(2) The National Regulator must revoke a certificate of
survey on the National Regulator's initiative if the
National Regulator is satisfied that the criteria prescribed
by the regulations in relation to revocation on the
initiative of the National Regulator are met.
43 Offence--operating etc. a vessel without a certificate of
survey (owner)
(1) The owner of a domestic commercial vessel commits an
offence if:
(a) the owner operates the vessel, or causes or permits
the vessel to be operated; and
(b) a certificate of survey is not in force for the vessel;
and
(c) the vessel is not exempt from survey (see
section 143).
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
44 Offence--operating etc. a vessel without a certificate of
survey (master)
(1) The master of a domestic commercial vessel commits an
offence if:
(a) the master operates the vessel, or causes or permits
the vessel to be operated; and
(b) a certificate of survey is not in force for the vessel;
and
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(c) the vessel is not exempt from survey (see
section 143).
Penalty: 60 penalty units.
(2) Subsection (1) does not apply if:
(a) the vessel is a hire and drive vessel being used
wholly for recreational purposes; and
(b) the master of the vessel is a hirer of the vessel.
(3) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
45 Offence--breach of a condition of a certificate of survey
(owner)
(1) The owner of a domestic commercial vessel commits an
offence if:
(a) the owner operates the vessel, or causes or permits
the vessel to be operated; and
(b) the operation of the vessel is in breach of a
condition of the certificate of survey of the vessel.
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
46 Offence--breach of a condition of a certificate of survey
(master)
(1) The master of a domestic commercial vessel commits an
offence if:
(a) the master operates the vessel, or causes or permits
the vessel to be operated; and
(b) the operation of the vessel is in breach of a
condition of the certificate of survey of the vessel.
Penalty: 60 penalty units.
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(2) Subsection (1) does not apply if:
(a) the vessel is a hire and drive vessel being used
wholly for recreational purposes; and
(b) the master of the vessel is a hirer of the vessel.
(3) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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Division 3--Certificates of operation
47 Person may apply for a certificate of operation
(1) A person may apply to the National Regulator for a
certificate of operation for one or more domestic
commercial vessels.
(2) The application must be in accordance with the
regulations and must be accompanied by the fee
prescribed by the regulations (if any).
(3) If the application is for more than one domestic
commercial vessel, each vessel must be separately
identified in the application.
48 Issue of certificate of operation
(1) The National Regulator must issue a certificate of
operation for one or more domestic commercial vessels
if:
(a) an application for the certificate has been made
under section 47; and
(b) the National Regulator is satisfied that the applicant
has demonstrated appropriate competence and
capacity in relation to the safe operation of the
vessel; and
(c) the National Regulator is satisfied that the criteria
prescribed by the regulations are met in relation to
the issue of the certificate.
(2) Despite subsection (1), the National Regulator may
refuse to issue a certificate of operation for one or more
domestic commercial vessels if the National Regulator is
satisfied that the applicant is not a fit and proper person
to hold the certificate.
(3) Without limiting the criteria that may be prescribed, the
regulations are to include criteria relating to the safe
operation of vessels.
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(4) A certificate of operation is subject to:
(a) the conditions (if any) prescribed by the
regulations; and
(b) the conditions (if any) imposed by the National
Regulator.
(5) Conditions prescribed by the regulations or imposed by
the National Regulator on a certificate of operation may
include, but are not limited to, conditions relating to the
following for each vessel to which the certificate relates:
(a) the number of crew required to be on board while
the relevant vessel or vessels are being operated;
(b) qualifications of the master and crew;
(c) the number of people that may be on board;
(d) the condition of specified physical parts of the
relevant vessel or vessels;
(e) safety management systems;
(f) limitations on use by reference to geographical and
meteorological factors and time of day;
(g) operating hours;
(h) compliance with standards prescribed as mentioned
in section 159.
(6) A certificate of operation:
(a) comes into force on the day specified in the
certificate, or, if no day is so specified, on the day
on which it is issued; and
(b) subject to subsection (7), remains in force until the
day specified in the certificate, unless it is revoked
earlier.
(7) A certificate of operation is not in force at any time when
it is suspended.
49 Person may apply for variation, suspension or revocation
of a certificate of operation
(1) A person may apply to the National Regulator for a
variation, suspension or revocation of a certificate of
operation.
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(2) The application must be in accordance with the
regulations and must be accompanied by the fee
prescribed by the regulations (if any).
50 Variation of certificate of operation
(1) The National Regulator must vary a certificate of
operation if:
(a) an application for variation of the certificate has
been made under section 49; and
(b) the National Regulator is satisfied that the criteria
prescribed by the regulations in relation to the
variation are met.
(2) The National Regulator must vary a certificate of
operation on the National Regulator's initiative if the
National Regulator is satisfied that the criteria prescribed
by the regulations in relation to variation on the initiative
of the National Regulator are met.
(3) Without limiting subsections (1) and (2), the National
Regulator may vary a certificate of operation to impose a
condition on the certificate or to vary or revoke such a
condition.
51 Suspension of certificate of operation
(1) The National Regulator must suspend a certificate of
operation if:
(a) an application for suspension of the certificate has
been made under section 49; and
(b) the National Regulator is satisfied that the criteria
prescribed by the regulations in relation to the
suspension are met.
(2) The National Regulator must suspend a certificate of
operation on the National Regulator's initiative if the
National Regulator is satisfied that the suspension is
necessary:
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(a) for the purpose of:
(i) protecting human life; or
(ii) securing the safe navigation of vessels; or
(iii) dealing with an emergency involving a serious
threat to the environment; or
(b) for another purpose prescribed by the regulations.
(3) A suspension:
(a) comes into force on the day specified by the
National Regulator in writing or, if no day is so
specified, on the day the holder of the certificate is
notified in writing of the suspension; and
(b) remains in force until:
(i) the end of the period specified in writing by
the National Regulator, which must not exceed
the prescribed period; or
(ii) if no period is specified--the end of the
prescribed period;
unless it is revoked earlier.
(4) A period referred to in subparagraph (3)(b)(i) may be
described by reference to the fulfilment of a requirement
or condition specified by the Regulator.
52 Revocation of certificate of operation
(1) The National Regulator must revoke a certificate of
operation if:
(a) an application for revocation of the certificate has
been made under section 49; and
(b) the National Regulator is satisfied that the criteria
prescribed by the regulations in relation to
revocation on application are met.
(2) The National Regulator must revoke a certificate of
operation on the National Regulator's initiative if the
National Regulator is satisfied that the criteria prescribed
by the regulations in relation to revocation on the
initiative of the National Regulator are met.
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(3) Without limiting subsections (1) and (2), the National
Regulator may revoke a certificate of operation if the
National Regulator is satisfied that the holder of the
certificate is not a fit and proper person to hold the
certificate.
53 Offence--operating etc. a vessel without a certificate of
operation (owner)
(1) The owner of a domestic commercial vessel commits an
offence if:
(a) the owner operates the vessel, or causes or permits
the vessel to be operated by another person; and
(b) the operation of the vessel is not authorised by a
certificate of operation in force for the vessel; and
(c) the vessel is not exempt from the requirement to
have a certificate of operation (see section 143).
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
54 Offence--operating etc. a vessel without a certificate of
operation (master)
(1) The master of a domestic commercial vessel commits an
offence if:
(a) the master operates the vessel, or causes or permits
the vessel to be operated by another person; and
(b) the operation of the vessel is not authorised by a
certificate of operation in force for the vessel; and
(c) the vessel is not exempt from the requirement to
have a certificate of operation (see section 143).
Penalty: 60 penalty units.
(2) Subsection (1) does not apply if:
(a) the vessel is a hire and drive vessel being used
wholly for recreational purposes; and
(b) the master of the vessel is a hirer of the vessel.
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(3) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
55 Offence--breach of a condition of a certificate of
operation (owner)
(1) The owner of a domestic commercial vessel commits an
offence if:
(a) the owner operates the vessel, or causes or permits
the vessel to be operated; and
(b) the operation of the vessel is in breach of a
condition of the certificate of operation for the
vessel.
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
56 Offence--breach of a condition of a certificate of
operation (master)
(1) The master of a domestic commercial vessel commits an
offence if:
(a) the master operates the vessel, or causes or permits
the vessel to be operated; and
(b) the operation of the vessel is in breach of a
condition of the certificate of operation for the
vessel.
Penalty: 60 penalty units.
(2) Subsection (1) does not apply if:
(a) the vessel is a hire and drive vessel being used
wholly for recreational purposes; and
(b) the master of the vessel is a hirer of the vessel.
(3) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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57 Obligation to notify National Regulator of certain
matters
(1) The holder of a certificate of operation for a domestic
commercial vessel commits an offence if:
(a) the vessel is sold, modified, sunk or scrapped; and
(b) the holder does not notify the National Regulator
within the prescribed period of the sale,
modification, sinking or scrapping of the vessel.
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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Division 4--Certificates of competency
58 Regulations may provide for certificate of competency
(1) The regulations may make provision in relation to
certificates of competency.
(2) The regulations may require that an individual hold a
certificate of competency of a particular kind in order to
undertake particular duties, or perform particular
functions, in the person's capacity as the master or a
member of the crew of a domestic commercial vessel.
(3) The regulations may provide for different classes of
certificates of competency.
59 Individual may apply for a certificate of competency
(1) An individual may apply to the National Regulator for a
certificate of competency.
(2) The application must be in accordance with the
regulations and must be accompanied by the fee
prescribed by the regulations (if any).
60 Issue of certificate of competency
(1) The National Regulator must issue a certificate of
competency to a person if:
(a) the person has made an application for the
certificate under section 59; and
(b) the National Regulator is satisfied that the criteria
prescribed by the regulations are met in relation to
the issue of the certificate.
(2) Despite subsection (1), the National Regulator may
refuse to issue a certificate of competency to a person if
the National Regulator is satisfied that the applicant is not
a fit and proper person to hold the certificate.
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(3) Without limiting the criteria that may be prescribed, the
regulations:
(a) are to include criteria required to be satisfied for a
particular certificate of competency to be issued to
a person; and
(b) may include criteria relating to tests, including
medical tests, and assessments of experience and
competence.
(4) A certificate of competency is subject to:
(a) the conditions (if any) prescribed by the
regulations; and
(b) the conditions (if any) imposed by the National
Regulator.
(5) Conditions prescribed by the regulations or imposed by
the National Regulator may include, but are not limited
to:
(a) conditions relating to tests, including medical tests,
and assessments of experience and competence,
that the holder of the certificate must take in order
to retain the certificate; and
(b) limitations relating to the types or classes of
domestic commercial vessels that the holder of the
certificate is authorised to operate; and
(c) the places and kinds of waters in which, and
periods during which, the holder of the certificate is
authorised to operate domestic commercial vessels.
(6) A certificate of competency:
(a) comes into force on the day specified in the
certificate or, if no day is specified, the day on
which it is issued; and
(b) subject to subsection (7), remains in force until the
day specified in the certificate, unless it is revoked
earlier.
(7) A certificate of competency is not in force at any time
when it is suspended.
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61 Person may apply for variation, suspension or revocation
of a certificate of competency
(1) A person may apply to the National Regulator for a
variation, suspension or revocation of a certificate of
competency held by the person.
(2) The application must be in accordance with the
regulations and must be accompanied by the fee
prescribed by the regulations (if any).
62 Variation of certificate of competency
(1) The National Regulator must vary a certificate of
competency if:
(a) an application for variation of the certificate has
been made under section 61; and
(b) the National Regulator is satisfied that the criteria
prescribed by the regulations in relation to the
variation are met.
(2) The National Regulator must vary a certificate of
competency on the National Regulator's initiative if the
National Regulator is satisfied that the criteria prescribed
by the regulations in relation to variation on the initiative
of the National Regulator are met.
(3) Without limiting subsections (1) and (2), the National
Regulator may vary a certificate of competency to
impose a condition on the certificate or to vary or revoke
such a condition.
63 Suspension of certificate of competency
(1) The National Regulator must suspend a certificate of
competency if:
(a) an application for suspension of the certificate has
been made under section 61; and
(b) the National Regulator is satisfied that the criteria
prescribed by the regulations in relation to the
suspension are met.
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(2) The National Regulator must suspend a certificate of
competency on the National Regulator's initiative if the
National Regulator is satisfied that the suspension is
necessary:
(a) for the purpose of:
(i) protecting human life; or
(ii) securing the safe navigation of vessels; or
(iii) dealing with an emergency involving a serious
threat to the environment; or
(b) for another purpose prescribed by the regulations.
(3) A suspension:
(a) comes into force on the day specified by the
National Regulator in writing or, if no day is so
specified, on the day the holder of the certificate is
notified in writing of the suspension; and
(b) remains in force until:
(i) the end of the period specified in writing by
the National Regulator, which must not exceed
the prescribed period; or
(ii) if no period is specified--the end of the
prescribed period;
unless it is revoked earlier.
(4) A period referred to in subparagraph (3)(b)(i) may be
described by reference to the fulfilment of a requirement
or condition specified by the Regulator.
64 Revocation of certificate of competency
(1) The National Regulator must revoke a certificate of
competency if:
(a) an application for revocation of the certificate has
been made under section 61; and
(b) the National Regulator is satisfied that the criteria
prescribed by the regulations in relation to
revocation on application are met.
(2) The National Regulator must revoke a certificate of
competency on the National Regulator's initiative if the
National Regulator is satisfied that the criteria prescribed
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by the regulations in relation to revocation on the
initiative of the National Regulator are met.
(3) Without limiting subsections (1) and (2), the National
Regulator may revoke a certificate of competency if the
National Regulator is satisfied that the holder of the
certificate is not a fit and proper person to hold the
certificate.
65 Offence--owner causing etc. performance of duties or
functions without a certificate of competency
(1) The owner of a domestic commercial vessel commits an
offence if:
(a) the owner causes or permits another person to
perform duties or functions in relation to the vessel;
and
(b) the regulations require the other person to hold a
certificate of competency of a particular kind in
order to perform those duties or functions; and
(c) the other person does not hold a certificate of
competency of that kind; and
(d) the other person is not exempt from the requirement
to hold a certificate of competency of that kind (see
section 143).
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
66 Offence--person performing duties or functions without
a certificate of competency
(1) A person commits an offence if:
(a) the person performs duties or functions in relation
to a domestic commercial vessel; and
(b) the regulations require the person to hold a
certificate of competency of a particular kind in
order to perform those duties or functions; and
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(c) the person does not hold a certificate of
competency of that kind; and
(d) the person is not exempt from the requirement to
hold a certificate of competency of that kind
(see section 143).
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
67 Offence--master causing etc. performance of duties or
functions without a certificate of competency
(1) The master of a domestic commercial vessel commits an
offence if:
(a) the master causes or permits another person to
perform duties or functions in relation to the vessel;
and
(b) the regulations require the other person to hold a
certificate of competency of a particular kind in
order to perform those duties or functions; and
(c) the other person does not hold a certificate of
competency of that kind; and
(d) the other person is not exempt from the requirement
to hold a certificate of competency of that kind
(see section 143).
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
68 Offence--owner causing etc. breach of a condition of a
certificate of competency
(1) The owner of a domestic commercial vessel commits an
offence if:
(a) the owner causes or permits another person to
perform duties or functions in relation to the vessel;
and
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(b) the performance of the duties or functions is in
breach of a condition of a certificate of competency
held by the other person.
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
69 Offence--breach of a condition of a certificate of
competency by any person
(1) A person commits an offence if:
(a) the person performs duties or functions in relation
to a domestic commercial vessel; and
(b) the performance of the duties or functions is in
breach of a condition of a certificate of competency
held by the person.
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
70 Offence--master causing etc. breach of a condition of a
certificate of competency
(1) The master of a domestic commercial vessel commits an
offence if:
(a) the master causes or permits another person to
perform duties or functions in relation to the vessel;
and
(b) the performance of the duties or functions is in
breach of a condition of a certificate of competency
held by the other person.
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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Division 5--General matters relating to unique
identifiers and certificates
71 National Regulator may require information
(1) The National Regulator may require a person to give
further information in relation to an application by the
person for a certificate or a unique identifier.
(2) The National Regulator may require information to be
given under this section at any time before the National
Regulator decides the application, whether before or after
the National Regulator has begun to consider the
application.
(3) If the National Regulator requires information to be given
under this section in relation to an application, the
National Regulator may decline to consider or further
consider the application until the information is provided.
72 National Regulator must give a show cause notice before
varying, suspending or revoking a certificate
(1) The National Regulator must, before varying or revoking
a certificate:
(a) give the holder of the certificate notice in writing
inviting the holder to show cause, within a
reasonable period specified in the notice, why the
variation should not be made or the certificate
should not be revoked; and
(b) consider any representations the holder makes to
the National Regulator within that period.
(2) The National Regulator must, before suspending a
certificate in accordance with section 41(2)(b), 51(2)(b)
or 63(2)(b):
(a) give the holder of the certificate notice in writing
inviting the holder to show cause, within a
reasonable period specified in the notice, why the
certificate should not be suspended; and
(b) consider any representations the holder makes to
the National Regulator within that period.
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(3) The National Regulator is not required to give a notice
under subsection (1) or (2) before varying, suspending or
revoking a certificate on application made by the holder
of the certificate.
73 National Regulator may recognise certificates
(1) The National Regulator may, by written instrument,
recognise a certificate, or a class of certificates, issued for
a vessel or a person under a law of the Commonwealth, a
State or a Territory, or a law of a foreign country, if the
National Regulator is satisfied:
(a) that the certificate is the equivalent of, or that it is
otherwise appropriate to recognise the certificate as
the equivalent of, a prescribed certificate; or
(b) that the class of certificates is the equivalent of, or
that it is otherwise appropriate to recognise the
class of certificates as the equivalent of, a
prescribed class of certificates.
(2) At a time when a certificate in force for a vessel or a
person is recognised under this section, the prescribed
certificate is taken to be in force for the vessel or the
person.
(3) The National Regulator may specify conditions to which
the recognition of the certificate is subject.
(4) A recognition of a certificate ceases to have effect if a
condition to which its recognition is subject is
contravened.
(5) The National Regulator may revoke a recognition of a
certificate in the circumstances prescribed by the
regulations.
(6) An instrument made under subsection (1) is not a
legislative instrument.
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74 Fit and proper person
(1) In determining whether a person is a fit and proper
person for the purposes of deciding whether to issue or
revoke a certificate, the National Regulator may have
regard only to:
(a) any conviction of the person for an offence against
this Law; and
(b) any conviction of the person for an offence against
a law of the Commonwealth, a State or a Territory
that is relevant for the purposes of deciding whether
the person is suitable to hold the certificate; and
(c) any other matter prescribed by the regulations.
(2) This section does not affect the operation of Part VIIC of
the Crimes Act 1914 of the Commonwealth (which
includes provisions that, in certain circumstances, relieve
persons of the requirement to disclose spent convictions
and require persons aware of such convictions to
disregard them).
75 Regulations may provide for matters relating to
certificates and unique identifiers
The regulations may provide for matters in relation to
certificates and unique identifiers.
76 Regulations may provide for matters relating to
applications for certificates and unique identifiers
(1) Without limiting section 75, the regulations may
prescribe the following matters in relation to applications
for certificates and unique identifiers:
(a) the persons who may make applications;
(b) approval of forms for the making of applications;
(c) the manner of making applications;
(d) information required to be included in applications;
(e) documents that must accompany applications;
(f) fees connected with applications;
(g) withdrawal of applications.
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(2) The regulations may require information included in
applications to be verified by statutory declaration.
77 Regulations may make provision in relation to the issue,
variation and revocation of certificates and
unique identifiers
(1) Without limiting section 75, the regulations may make
provision for and in relation to the following:
(a) criteria that must be satisfied in order for the
National Regulator to issue certificates or unique
identifiers, or to vary or revoke certificates;
(b) the time limits within which applications are to be
determined;
(c) the information to be included in certificates;
(d) the person in whose name certificates are to be
issued;
(e) conditions to which certificates are subject;
(f) conditions that the National Regulator may impose
upon certificates;
(g) the time at which certificates, variations of
certificates, suspensions of certificates and
revocations of certificates come into force;
(h) the time at which certificates or suspensions cease
to be in force;
(i) the methods of replacing certificates;
(j) registers of certificates and unique identifiers;
(k) the criteria to be met for variation of certificates:
(i) on application; or
(ii) on the initiative of the National Regulator;
(l) procedures relating to notification of proposed
decisions by the National Regulator.
(2) The criteria that may be prescribed for the purposes of
subsection (1)(a) include, but are not limited to, criteria
relating to compliance with standards prescribed as
mentioned in section 159.
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(3) The conditions that may be prescribed for the purposes of
subsections (1)(e) and (f) include, but are not limited to,
conditions relating to compliance with standards
prescribed as mentioned in section 159.
78 Regulations may make provision in relation to renewal
and transfer of certificates
Without limiting section 75, the regulations may make
provision for and in relation to the following:
(a) the renewal of certificates;
(b) the transfer of certificates;
(c) requiring notification to be given of events
involving domestic commercial vessels that have
unique identifiers, including, but not limited to,
change of ownership.
79 Regulations may require display of certificates
The regulations may require that a person display a
certificate or a unique identifier in the prescribed manner.
80 Regulations may provide for certificate of operation for
persons
(1) The regulations may provide for certificates of operation
to be issued to a person permitting the operation of
domestic commercial vessels by the person and other
persons.
(2) Regulations made for the purposes of subsection (1) may
provide for certificates of operation to be held in relation
to one or more specified vessels (which may be specified
by reference to a class and need not be separately
specified).
81 Effect of certificate of operation for persons
A certificate of operation is taken to be in force for a
vessel, and to be subject to any conditions imposed under
the regulations, to the extent that:
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(a) a certificate of operation has been issued under
regulations made for the purposes of section 80;
and
(b) the certificate of operation permits the operation by
a person of:
(i) the vessel; or
(ii) vessels of a class that includes the vessel; and
(c) the vessel is operated by the person.
82 Defeasibility
A certificate under this Law is issued on the basis that:
(a) the certificate may be revoked or varied under this
Law; and
(b) the certificate may be revoked or varied (however
described) by or under later legislation; and
(c) no compensation is payable if the certificate is
revoked or varied as mentioned in either of the
above paragraphs.
83 Certificates etc. to be made available
(1) A person commits an offence if:
(a) the person is the holder of a certificate or other
document:
(i) required to be held under this Law; or
(ii) issued under this Law; and
(b) a copy of the certificate or other document is not
made available at all reasonable times for
examination on request by either of the following:
(i) the National Regulator;
(ii) a marine safety inspector.
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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84 National Regulator may require delivery of revoked
certificates
If a certificate is revoked, the National Regulator may
require the certificate to be delivered to the National
Regulator in accordance with the regulations.
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Part 5--Assistance and reporting
requirements
85 Obligation to render assistance
(1) The master of a domestic commercial vessel commits an
offence if:
(a) the vessel is in any waters; and
(b) the master has reason to believe that one or more
persons are in distress on a vessel or in any waters;
and
(c) the master does not both:
(i) cause his or her vessel to proceed as fast as
practicable to the assistance of the person or
persons; and
(ii) inform the person or persons that the master is
doing so.
Penalty: Imprisonment for 4 years.
(2) Subsection (1) does not apply if:
(a) the master of the domestic commercial vessel is
unable to comply with subsection (1)(c); or
(b) in the special circumstances of the case, it is
unreasonable or unnecessary for the master of the
domestic commercial vessel to do so; or
(c) the master of the domestic commercial vessel is
informed by the person or persons in distress, or by
the master of another vessel that has reached the
person or persons, that assistance is no longer
necessary; or
(d) the master of the domestic commercial vessel is
informed that another vessel has been requisitioned
and is complying with the requisition.
Note: A defendant bears an evidential burden in relation to the
matter in subsection (2) (see section 13.3(3) of the
Criminal Code).
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86 Obligation to render assistance if requisitioned
(1) The master of a vessel that is in distress in any waters
may, after consulting so far as possible with the masters
of vessels that answer his or her call for assistance,
requisition any domestic commercial vessel that the
master considers best able to render assistance.
(2) The master of a domestic commercial vessel commits an
offence if:
(a) the vessel is requisitioned by the master of another
vessel that is in distress in any waters, in
accordance with subsection (1); and
(b) the master does not cause his or her vessel to
proceed as fast as practicable to the assistance of
the other vessel.
Penalty: Imprisonment for 10 years.
(3) Subsection (2) does not apply if:
(a) the master of the domestic commercial vessel is
unable to comply with subsection (2)(b); or
(b) in the special circumstances of the case, it is
unreasonable or unnecessary for the master to do
so; or
(c) the master of the domestic commercial vessel is
informed by the master of the vessel in distress, or
by the master of another vessel that has reached the
vessel in distress, that assistance is no longer
necessary; or
(d) the master of the domestic commercial vessel is
informed that another vessel has been requisitioned
and is complying with the requisition.
Note: A defendant bears an evidential burden in relation to the
matter in subsection (2) (see section 13.3(3) of the
Criminal Code).
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87 Obligation to record requests for assistance
(1) The master of a domestic commercial vessel commits an
offence if the master:
(a) is required to keep an official logbook for the
vessel; and
(b) receives information that a person or persons are in
distress on a vessel or in any waters; and
(c) does not record in the official logbook:
(i) that he or she proceeded to the assistance of
the person or persons; or
(ii) if he or she did not so proceed--his or her
reasons for not so proceeding.
Penalty: 50 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
88 Reporting of marine incidents to National Regulator
(owner)
(1) The owner of a domestic commercial vessel commits an
offence if:
(a) the vessel is involved in a marine incident that
involves:
(i) the death of a person; or
(ii) serious injury to a person; or
(iii) the loss of a vessel; or
(iv) the loss of a person from the vessel; or
(v) significant damage to a vessel; and
(b) neither the owner nor the master of the vessel
reports the incident to the National Regulator as
soon as reasonably practicable, having regard to the
circumstances, after the owner becomes aware of
the incident.
Penalty: 60 penalty units.
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(2) The owner of a domestic commercial vessel commits an
offence if:
(a) the vessel is involved in a marine incident; and
(b) neither the owner nor the master of the vessel gives
a written report of the incident, in the form
approved by the National Regulator, to the National
Regulator within 72 hours after the owner becomes
aware of the incident.
Penalty: 60 penalty units.
(3) An offence against subsection (1) or (2) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
89 Reporting of marine incidents to National Regulator
(master)
(1) The master of a domestic commercial vessel commits an
offence if:
(a) the vessel is involved in a marine incident that
involves:
(i) the death of a person; or
(ii) serious injury to a person; or
(iii) the loss of a vessel; or
(iv) the loss of a person from a vessel; or
(v) significant damage to a vessel; and
(b) neither the master nor the owner of the vessel
reports the incident to the National Regulator as
soon as reasonably practicable after the master
becomes aware of the incident, having regard to the
circumstances.
Penalty: 60 penalty units.
(2) The master of a domestic commercial vessel commits an
offence if:
(a) the vessel is involved in a marine incident; and
(b) neither the master nor the owner of the vessel gives
a written report of the incident, in the form
approved by the National Regulator, to the National
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Regulator within 72 hours after the master becomes
aware of the incident.
Penalty: 60 penalty units.
(3) An offence against subsection (1) or (2) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
90 Evidence of marine incidents
Preservation of evidence by persons on board vessel
(1) A person commits an offence if:
(a) a domestic commercial vessel is involved in a
marine incident; and
(b) the person does not, so far as reasonably
practicable, preserve any material that may be
relevant to an investigation of the marine incident.
Penalty: 500 penalty units.
Vessel owner's duty to ensure preservation of evidence
(2) The owner of a domestic commercial vessel commits an
offence if:
(a) the vessel is involved in a marine incident; and
(b) the owner does not take all reasonable steps to
ensure the preservation of any material that may be
relevant to an investigation of the marine incident.
Penalty: 500 penalty units.
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Part 6--Powers of marine safety inspectors
Division 1--Appointment of marine safety
inspectors etc.
91 Appointment of marine safety inspectors
(1) The National Regulator may, in writing, appoint either of
the following as a marine safety inspector:
(a) an officer or employee of an agency of the
Commonwealth;
(b) an officer or employee of an agency of a State or
Territory.
(2) A marine safety inspector may exercise all of the powers
of a marine safety inspector under this Law, or such of
those powers as are specified in the inspector's
instrument of appointment.
(3) The National Regulator must not appoint a person as a
marine safety inspector unless the National Regulator is
satisfied that the person has suitable qualifications or
experience to properly exercise the powers of an
inspector.
(4) The National Regulator must not appoint an officer or
employee of an agency of a State or Territory as a marine
safety inspector without the agreement of the State or
Territory.
(5) In exercising his or her powers or performing his or her
functions as a marine safety inspector, the inspector must
comply with any direction of the National Regulator.
92 Identity cards
(1) The National Regulator must issue an identity card to a
marine safety inspector appointed under section 91.
(2) The identity card must:
(a) be in the form approved by the National Regulator;
and
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(b) contain a recent photograph of the marine safety
inspector; and
(c) state the powers that the inspector may exercise.
(3) A person commits an offence if:
(a) the person has been issued with an identity card;
and
(b) the person ceases to be a marine safety inspector;
and
(c) the person does not, as soon as practicable after so
ceasing, return the identity card to the National
Regulator.
Penalty: 5 penalty units.
(4) An offence against subsection (3) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) Subsection (3) does not apply if the identity card was lost
or destroyed.
Note: A defendant bears an evidential burden in relation to the
matter in subsection (5) (see section 13.3(3) of the
Criminal Code).
(6) A marine safety inspector appointed under section 91
must carry his or her identity card at all times when
exercising powers and performing functions and duties as
an inspector.
93 False representation about being a marine safety
inspector
(1) A person must not make a representation that the person
is a marine safety inspector if the person is not a marine
safety inspector.
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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94 Obstructing or hindering a marine safety inspector
A person must not obstruct or hinder a marine safety
inspector in the exercise of his or her powers under this
Law.
Penalty: 500 penalty units.
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Division 2--Entry, search, seizure, detention and
information-gathering powers
Subdivision A--Powers to facilitate boarding with or
without consent or warrant
95 Requirement to facilitate boarding
(1) A marine safety inspector may require a person to take
reasonable steps to facilitate the boarding of a vessel
under this Part.
(2) A requirement under subsection (1) may be made by any
reasonable means.
(3) The requirement is made whether or not the person in
charge of the vessel understands or is aware of the
requirement.
Offence--non-compliance with requirement
(4) A person commits an offence if:
(a) a requirement is made of the person under
subsection (1); and
(b) the person fails to comply with the requirement.
Penalty: 60 penalty units.
(5) Subsection (4) does not apply if the person has a
reasonable excuse.
Note: A defendant bears an evidential burden in relation to the
matter in subsection (5) (see section 13.3(3) of the
Criminal Code).
(6) An offence against subsection (4) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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96 Entering certain premises for access to domestic
commercial vessel
(1) A marine safety inspector may enter any premises that
are a structure, building or place, and are not used as a
residence, to gain access to a domestic commercial vessel
for a purpose referred to in section 97(1).
(2) Subsection (1) does not authorise a marine safety
inspector to enter premises unless:
(a) if the inspector has been appointed under
section 91--the inspector has shown his or her
identity card if required by the occupier; or
(b) if the inspector is a member of the Australian
Federal Police or of the police force (however
described) of a State or a Territory--the inspector
is in uniform, or has shown his or her police
identification if required by the occupier.
(3) A marine safety inspector is not required to comply with
subsection (2) if he or she believes on reasonable grounds
that to do so would endanger a person.
(4) If:
(a) a marine safety inspector does not comply with
subsection (2) because of subsection (3); and
(b) the occupier of the premises is present at the
premises;
the inspector must show his or her identity card to the
occupier or other person, as soon as practicable after
entering the premises.
Subdivision B--Powers relating to vessels, exercisable
without consent or warrant
97 Boarding a vessel
(1) A marine safety inspector may board a vessel for any of
the following purposes:
(a) to ask questions under section 98;
(b) monitoring purposes;
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(c) to issue an improvement notice or prohibition
notice to a person;
(d) if the regulations referred to in section 138 provide
for a marine safety inspector to issue infringement
notices, or notices relating to the issue of
infringement notices--to issue such a notice;
(e) to give a person a notice under section 101;
(f) to give a direction under section 109.
(2) If:
(a) the inspector has been appointed under section 91;
and
(b) the master of the vessel requests the inspector to
produce identification;
the inspector must produce his or her identity card.
(3) If:
(a) the inspector is a member of the Australian Federal
Police or of the police force (however described) of
a State or a Territory and is not in uniform; and
(b) the master of the vessel requests the inspector to
produce identification;
the inspector must produce his or her police
identification.
(4) If the marine safety inspector fails to produce the identity
card or police identification, the inspector must:
(a) leave the vessel; and
(b) not re-board the vessel without producing the
identity card or police identification or wearing
police uniform.
(5) A marine safety inspector is not required to comply with
subsection (2), (3) or (4) if he or she believes on
reasonable grounds that to do so would endanger a
person.
(6) If a marine safety inspector does not comply with
subsection (2) or (3) because of subsection (5), the
inspector must, as soon as practicable after the request
was made, show his or her identity card or police
identification to the master.
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98 Requiring master of a vessel to answer questions about
the nature of the vessel
(1) A marine safety inspector may require the master of a
vessel to:
(a) answer questions put by the inspector about the
nature or operations of the vessel; and
(b) produce any books, records or documents about the
nature or operations of the vessel requested by the
inspector.
(2) A person commits an offence if:
(a) a requirement is made of the person under
subsection (1); and
(b) the person fails to comply with the requirement.
Penalty: 30 penalty units.
(3) Subsection (2) does not apply if the person has a
reasonable excuse.
99 Monitoring domestic commercial vessels
(1) A marine safety inspector may exercise one or more of
the powers (the vessel monitoring powers) mentioned in
subsection (2) in relation to a domestic commercial
vessel for monitoring purposes, whether or not the
inspector is on board the vessel (and whether or not the
inspector has reasonable grounds for suspecting that there
may be evidential material on the vessel).
Note 1: For example, a marine safety inspector could require a
person on board a domestic commercial vessel to show
him or her the safety equipment on board the vessel, even
if the inspector was in another vessel.
Note 2: If the inspector has reasonable grounds for suspecting that
there may be evidential material on the vessel, section 105
gives the inspector extra powers relating to that material if
he or she boards the vessel with the occupier's consent or
under an enforcement warrant. Also, section 100 gives the
inspector some powers relating to evidential material
found on the vessel by the exercise of the vessel
monitoring powers.
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(2) The vessel monitoring powers are as follows:
(a) the power to search the vessel and any thing on the
vessel;
(b) the power to examine or observe any activity
conducted on the vessel;
(c) the power to inspect, examine, take measurements
of or conduct tests on any thing on the vessel;
(d) the power to make any still or moving image or any
recording of the vessel or any thing on the vessel;
(e) the power to inspect any document on the vessel;
(f) the power to take extracts from, or make copies of,
any such document;
(g) the power to take onto the vessel such equipment
and materials as the inspector requires for the
purpose of exercising powers in relation to the
vessel;
(h) the power to require a person on the vessel to show,
or demonstrate the operation of, machinery or
equipment on the vessel;
(i) the power to require a person on the vessel to give a
marine safety inspector one or more of the
following:
(i) the person's name;
(ii) the person's residential address;
(iii) the person's date of birth;
(iv) evidence of the person's identity;
(j) the powers set out in subsections (3), (4) and (5).
Note: Failure to comply with a requirement is an offence: see
section 102.
(3) The vessel monitoring powers include the power to
require (by any reasonable means) the master of the
vessel to do one or more of the following:
(a) stop or manoeuvre the vessel;
(b) adopt a specified course or speed;
(c) maintain a specified course or speed;
(d) take the vessel to a specified place.
Note: Failure to comply with a requirement is an offence: see
section 102.
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(4) The vessel monitoring powers include the power, when
on the vessel, to operate electronic equipment on the
vessel to see whether:
(a) the equipment; or
(b) a disk, tape or other storage device that:
(i) is on the vessel; and
(ii) can be used with the equipment or is
associated with it;
contains information (data) that is relevant for
monitoring purposes.
(5) The vessel monitoring powers include the following
powers exercisable when on or leaving the vessel in
relation to data found in the exercise of the power under
subsections (1), (2) and (4):
(a) the power to operate electronic equipment on the
vessel to put the data in documentary form and
remove the documents so produced from the vessel;
(b) the power to operate electronic equipment on the
vessel to transfer the data to a disk, tape or other
storage device that:
(i) is brought onto the vessel for the exercise of
the power; or
(ii) is on the vessel and the use of which for that
purpose has been agreed in writing by the
occupier of the vessel;
and remove the disk, tape or other storage device
from the vessel.
(6) A marine safety inspector may operate electronic
equipment as mentioned in subsection (4) or (5) only if
he or she believes on reasonable grounds that the
operation of the equipment can be carried out without
damage to the equipment.
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100 Sampling, securing or seizing things found using vessel
monitoring powers
(1) This section applies if:
(a) a thing is found during the exercise of vessel
monitoring powers in relation to a domestic
commercial vessel; and
(b) a marine safety inspector believes on reasonable
grounds that:
(i) the thing is evidential material; and
(ii) any of the powers under this section needs to
be exercised without a warrant, either because
of serious and urgent circumstances or
because it is not practicable to obtain a
warrant, in order to prevent concealment, loss
or destruction of the evidential material.
Note: For example, it may be necessary to seize evidential
material after a marine incident in order to prevent
destruction of evidential material relevant to the marine
incident.
(2) The marine safety inspector may take a sample of the
thing and remove the sample from the domestic
commercial vessel.
(3) The marine safety inspector may secure the thing for up
to 72 hours.
Note: That period may be extended: see section 123.
(4) The marine safety inspector may seize the thing.
(5) However, if the thing is equipment, or a disk, tape or
other storage device, that has been operated under
section 99(4), the marine safety inspector may seize the
thing only if:
(a) it is not practicable to put all the evidential material
the thing contains in documentary form as
mentioned in section 99(5)(a) or to transfer all that
evidential material as mentioned in
section 99(5)(b); or
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(b) possession of the equipment or the disk, tape or
other storage device by the occupier of the vessel
could constitute an offence against a law of the
Commonwealth, a State or a Territory.
Note: Division 7 requires marine safety inspectors to deal with
seized things in certain ways.
(6) If the marine safety inspector exercises a power under
this section on the basis that he or she believes on
reasonable grounds the power needs to be exercised
without a warrant because it is not practicable to obtain a
warrant, he or she must give the National Regulator a
report describing:
(a) the exercise of the power; and
(b) the grounds for his or her belief.
101 Detaining domestic commercial vessels
(1) A marine safety inspector may detain a domestic
commercial vessel and bring it, or cause it to be brought,
to a port, or to another place that he or she considers
appropriate, if the inspector reasonably suspects that the
vessel is, will be or has been involved in a contravention,
either in or outside Australia, of this Law.
(2) If a marine safety inspector detains a domestic
commercial vessel under subsection (1), the inspector
must give written notice, within 14 days, to:
(a) the person who holds the certificate of operation for
the vessel; or
(b) if no such person is able to be located--the person
who had possession or control of the vessel
immediately before it was detained.
(3) If the marine safety inspector cannot conveniently give
the notice in person, the inspector may give the notice by
fixing the notice to a prominent part of the vessel.
(4) The notice must:
(a) identify the vessel; and
(b) state that the vessel has been detained; and
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(c) specify the reason for this; and
(d) specify contact details of a marine safety inspector
who can provide further information; and
(e) include information about the return of the vessel.
(5) The regulations may make provision for and in relation to
the return of detained vessels, including:
(a) the steps that must be taken to return detained
vessels; and
(b) the persons to whom detained vessels are to be
returned.
Note: Division 7 deals with costs of detention and disposal of
vessels that cannot be returned.
(6) A person commits an offence if:
(a) the person operates a vessel, or causes or permits
the operation of a vessel, that has been detained
under subsection (1); and
(b) the vessel has not been released from detention; and
(c) a marine safety inspector has not consented to the
operation of the vessel by the person.
Penalty: 120 penalty units.
102 Offence--not complying with requirement made under
section 99
(1) A person commits an offence if:
(a) a requirement is made of the person:
(i) under section 99(2)(h) (to show, or
demonstrate the operation of, machinery or
equipment on a domestic commercial vessel);
or
(ii) under section 99(2)(i) (to give a marine safety
inspector the person's name, the person's
residential address, the person's date of birth
or evidence of the person's identity); or
(iii) under section 99(3) (to stop or manoeuvre a
vessel, adopt or maintain a specified course or
speed or take a vessel to a specified place);
and
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(b) the person fails to comply with the requirement.
Penalty: 60 penalty units.
(2) Subsection (1) does not apply if the person has a
reasonable excuse.
Note: A defendant bears an evidential burden in relation to the
matter in subsection (2) (see section 13.3(3) of the
Criminal Code).
(3) A person commits an offence if:
(a) a requirement is made of the person under
section 99(2)(i) to give a marine safety inspector
the person's name, the person's residential address,
the person's date of birth or evidence of the
person's identity; and
(b) the person gives a name, address, date or evidence
of the person's identity; and
(c) the name, address, date or evidence is false or
misleading in a material particular.
Penalty: 60 penalty units.
(4) An offence against subsection (1) or (3) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Subdivision C--Powers relating to any premises,
exercisable with consent or warrant
103 Entering premises with consent or under warrant
(1) A marine safety inspector may enter any premises for
monitoring purposes.
(2) A marine safety inspector may enter any premises if he or
she has reasonable grounds for suspecting that there may
be evidential material on the premises.
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(3) Despite subsections (1) and (2), a marine safety inspector
is not authorised to enter the premises unless:
(a) the occupier of the premises has consented to the
entry, and:
(i) if the inspector has been appointed under
section 91--the inspector has shown his or her
identity card if required by the occupier; or
(ii) if the inspector is a member of the Australian
Federal Police or of the police force (however
described) of a State or a Territory--the
inspector is in uniform, or has shown his or
her police identification if required by the
occupier; or
(b) the entry is made under a warrant.
Note 1: This does not limit a marine safety inspector's power to
enter premises under section 96 or 97: see section 108.
Note 2: Section 115 contains rules about obtaining consent and
leaving premises if consent is withdrawn.
Note 3: Sections 116, 117, 118, 119 and 120 contain rules relevant
to entry under a warrant.
104 Monitoring premises
(1) A marine safety inspector may exercise one or more of
the powers (the general monitoring powers) mentioned
in subsection (2) in relation to premises for monitoring
purposes (whether or not the inspector has reasonable
grounds for suspecting that there may be evidential
material on the premises).
Note: If the inspector has reasonable grounds for suspecting that
there may be evidential material on the premises,
section 105 gives the inspector extra powers relating to
that material if he or she enters the premises with the
occupier's consent or under an enforcement warrant.
(2) The general monitoring powers are as follows:
(a) the power to search the premises and any thing on
the premises;
(b) the power to examine or observe any activity
conducted on the premises;
(c) the power to inspect, examine, take measurements
of or conduct tests on any thing on the premises;
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(d) the power to make any still or moving image or any
recording of the premises or any thing on the
premises;
(e) the power to inspect any document on the premises;
(f) the power to take extracts from, or make copies of,
any such document;
(g) the power to take onto the premises such equipment
and materials as the inspector requires for the
purpose of exercising powers in relation to the
premises;
(h) the powers set out in subsections (3), (4), (6)
and (7).
(3) The general monitoring powers include the power to
operate electronic equipment on the premises to see
whether:
(a) the equipment; or
(b) a disk, tape or other storage device that:
(i) is on the premises; and
(ii) can be used with the equipment or is
associated with it;
contains information (data) that is relevant for
monitoring purposes.
(4) The general monitoring powers include the following
powers exercisable when on or leaving premises in
relation to data found in the exercise of the power under
subsections (1), (2) and (3):
(a) the power to operate electronic equipment on the
premises to put the data in documentary form and
remove the documents so produced from the
premises;
(b) the power to operate electronic equipment on the
premises to transfer the data to a disk, tape or other
storage device that:
(i) is brought to the premises for the exercise of
the power; or
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(ii) is on the premises and the use of which for
that purpose has been agreed in writing by the
occupier of the premises;
and remove the disk, tape or other storage device
from the premises.
(5) A marine safety inspector may operate electronic
equipment as mentioned in subsection (3) or (4) only if
he or she believes on reasonable grounds that the
operation of the equipment can be carried out without
damage to the equipment.
(6) The general monitoring powers include the power to
secure a thing on premises for up to 72 hours if:
(a) the thing is found during the exercise of general
monitoring powers on the premises; and
(b) a marine safety inspector believes on reasonable
grounds that:
(i) the thing affords evidence of the commission
of an offence against this Law; and
(ii) it is necessary to secure the thing in order to
prevent it from being concealed, lost or
destroyed before a warrant to seize the thing is
obtained; and
(iii) it is necessary to secure the thing without a
warrant because the circumstances are serious
and urgent.
Note: The period for which the thing is secured may be
extended: see section 123.
105 Enforcement powers
(1) If a marine safety inspector has reasonable grounds for
suspecting that there may be evidential material on any
premises, the inspector may exercise the following
powers (the enforcement powers) in relation to the
premises:
(a) if entry to the premises is with the occupier's
consent--the power to search the premises and any
thing on the premises for the evidential material the
inspector has reasonable grounds for suspecting
may be on the premises;
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(b) if entry to the premises is under an enforcement
warrant:
(i) the power to search the premises and any thing
on the premises for the kind of evidential
material specified in the warrant; and
(ii) the power to seize evidential material of that
kind if the inspector finds it on the premises;
(c) the power to inspect, examine, take measurements
of, conduct tests on or take samples of evidential
material referred to in paragraph (a) or (b);
(d) the power to make any still or moving image or any
recording of the premises or evidential material
referred to in paragraph (a) or (b);
(e) the power to take onto the premises such equipment
and materials as the inspector requires for the
purpose of exercising powers in relation to the
premises;
(f) the power to require a person on the premises to
demonstrate the operation of machinery or
equipment on the premises;
(g) the powers set out in subsections (2), (3) and (6).
Note: Division 7 requires marine safety inspectors to deal with
seized things in certain ways.
(2) The enforcement powers include the power to operate
electronic equipment on the premises to see whether:
(a) the equipment; or
(b) a disk, tape or other storage device that:
(i) is on the premises; and
(ii) can be used with the equipment or is
associated with it;
contains evidential material referred to in
subsection (1)(a) or (b).
(3) The enforcement powers include the following powers
exercisable when on or leaving premises in relation to
evidential material described in subsection (2) found in
the exercise of the power under that subsection:
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(a) if entry to the premises is under an enforcement
warrant--the power to seize the equipment and the
disk, tape or other storage device referred to in that
subsection;
(b) the power to operate electronic equipment on the
premises to put the evidential material in
documentary form and remove the documents so
produced from the premises;
(c) the power to operate electronic equipment on the
premises to transfer the evidential material to a
disk, tape or other storage device that:
(i) is brought to the premises for the exercise of
the power; or
(ii) is on the premises and the use of which for
that purpose has been agreed, in writing, by
the occupier of the premises;
and remove the disk, tape or other storage device
from the premises.
(4) A marine safety inspector may operate electronic
equipment as mentioned in subsection (2) or (3) only if
he or she believes on reasonable grounds that the
operation of the equipment can be carried out without
damage to the equipment.
(5) A marine safety inspector may seize equipment or a disk,
tape or other storage device as mentioned in
subsection (3)(a) only if:
(a) it is not practicable to put the evidential material in
documentary form as mentioned in
subsection (3)(b) or to transfer the evidential
material as mentioned in subsection (3)(c); or
(b) possession of the equipment or the disk, tape or
other storage device by the occupier could
constitute an offence against a law of the
Commonwealth, a State or a Territory.
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(6) If:
(a) entry to the premises is under an enforcement
warrant; and
(b) the marine safety inspector, in the course of
searching for the kind of evidential material
specified in the warrant, finds a thing that the
inspector believes on reasonable grounds to be
other evidential material; and
(c) the inspector believes on reasonable grounds that it
is necessary to seize the thing in order to prevent its
concealment, loss or destruction;
then the enforcement powers include seizing the thing.
106 Requiring persons on premises entered under warrant
to answer questions and produce documents
(1) A marine safety inspector who is on or in premises that
he or she has entered under a warrant may require anyone
on or in the premises to:
(a) answer any questions put by the inspector; and
(b) produce any books, records or documents requested
by the inspector.
(2) A person commits an offence if:
(a) a requirement is made of the person under
subsection (1); and
(b) the person fails to comply with the requirement.
Penalty: 30 penalty units.
(3) Subsection (2) does not apply if the person has a
reasonable excuse.
Note: A defendant bears an evidential burden in relation to the
matter in subsection (3) (see section 13.3(3) of the
Criminal Code).
107 Using force in executing a warrant
In executing a warrant, a marine safety inspector may use
such force against persons and things as is necessary and
reasonable in the circumstances.
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108 Relationship with Subdivision B
(1) This Subdivision does not limit Subdivision B.
(2) Subdivision B does not prevent this Subdivision from
applying to premises that are domestic commercial
vessels.
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Division 3--Other powers
109 Giving directions
(1) If a marine safety inspector believes on reasonable
grounds that:
(a) a person is contravening a provision of this Law in
respect of a thing; or
(b) at least one of the following applies:
(i) it is necessary to exercise powers under this
section in order to protect the safety of people
or to protect the environment;
(ii) it is desirable in the public interest for the
inspector to exercise powers under this
section;
the inspector may give the person a direction requiring
the person, within the time specified in the direction, to
take such steps in relation to the thing as are reasonable
in the circumstances.
Note: For example, a marine safety inspector could give a
direction that a person not operate an unsafe vessel.
(2) The direction must be given in writing, unless the marine
safety inspector believes there is an urgent need to protect
the safety of people or to protect the environment.
(3) A person commits an offence if he or she does not take
the steps specified in a direction under subsection (1)
within the time specified in the direction.
Penalty: 60 penalty units.
(4) An offence against subsection (3) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) If the person does not take the steps specified in the
direction within the time specified in the direction, the
inspector may arrange for those steps to be taken.
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(6) If the National Regulator incurs costs because of
arrangements made by the inspector under subsection (5),
the person is liable to pay to the National Regulator an
amount equal to the costs, and the amount may be
recovered by the National Regulator as a debt due to the
National Regulator in a court of competent jurisdiction.
(7) A time specified in a direction under subsection (1) must
be reasonable having regard to the circumstances.
110 Issuing improvement notices
(1) If a marine safety inspector believes on reasonable
grounds that a person:
(a) is contravening a provision of this Law; or
(b) has contravened a provision of this Law and is
likely to contravene that provision again;
the inspector may issue an improvement notice, in
writing, to the person.
(2) The notice must:
(a) specify the contravention of this Law that the
marine safety inspector believes is occurring or is
likely to occur; and
(b) set out the reasons for that belief; and
(c) specify a period within which the person is to take
the action necessary to prevent any further
contravention, or to prevent the likely
contravention, as the case may be.
(3) The period specified in the notice must be reasonable.
(4) The notice may specify action that the person is to take,
or is not to take, during the period specified in the notice.
(5) Before the end of the specified period, the marine safety
inspector may extend that period in writing.
(6) The person must ensure that the notice is complied with
to the extent that it relates to any matter over which the
person has control.
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(7) A person subject to a requirement under subsection (6)
commits an offence if an act or omission of the person
breaches the requirement.
Penalty: 60 penalty units.
(8) An offence against subsection (7) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
111 Issuing prohibition notices
(1) This section applies if a marine safety inspector believes
on reasonable grounds that:
(a) an activity is occurring in relation to a domestic
commercial vessel that involves or will involve a
risk to the safety of a person or a serious risk to the
environment; or
(b) an activity may occur in relation to a domestic
commercial vessel that, if it occurs, will involve a
risk to the safety of a person or a serious risk to the
environment.
(2) The marine safety inspector may issue a prohibition
notice to the responsible person in relation to the
domestic commercial vessel. For this purpose, the
responsible person is:
(a) the master of the vessel; or
(b) if the inspector cannot locate the master:
(i) the person who holds the certificate of
operation for the vessel; or
(ii) if the inspector cannot locate that person--the
person who has possession or control of the
vessel.
(3) The notice must:
(a) specify the activity the marine safety inspector
believes involves or will involve the risk to safety
or the environment, and set out the reasons for that
belief; and
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(b) either:
(i) direct the responsible person to ensure that the
activity is not engaged in; or
(ii) direct the responsible person to ensure that the
activity is not engaged in in a specified
manner.
Note: For example, a notice could specify that a person not
operate an unsafe vessel.
(4) A specified manner may relate to any one or more of the
following:
(a) any vessel, or part of a vessel, in relation to which
the activity is not to be engaged in;
(b) any thing that is not to be used in connection with
the activity;
(c) any procedure that is not to be followed in
connection with the activity.
(5) The notice ceases to have effect when a marine safety
inspector notifies the responsible person that the
inspector is satisfied that the responsible person has taken
adequate action to remove the risk to safety or the
environment.
(6) The notice may specify action that may be taken to
satisfy a marine safety inspector that adequate action has
been taken to remove the risk to safety or the
environment.
(7) If a marine safety inspector is satisfied that action taken
by the responsible person to remove the risk to safety or
the environment is not adequate, the inspector must
inform the person accordingly.
(8) In making a decision under subsection (7), a marine
safety inspector may exercise any of the vessel
monitoring powers and general monitoring powers that
the inspector considers necessary for the purposes of
making the decision.
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(9) A person issued with a notice under subsection (2)
commits an offence if an act or omission of the person
breaches the notice.
Penalty: 60 penalty units.
(10) An offence against subsection (9) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
112 Copies of notices to be displayed and distributed
(1) If a person (the recipient) is given an improvement notice
under section 110(1) or a prohibition notice under
section 111(2) in relation to a vessel:
(a) the recipient must cause a copy of the notice to be
displayed:
(i) in a place directed by the marine safety
inspector who issued the notice; or
(ii) if the marine safety inspector does not give a
direction--in a prominent place on or near the
vessel; and
(b) the marine safety inspector who issued the notice
must give a copy of the notice to:
(i) the master of the vessel; and
(ii) the person who holds the certificate of
operation for the vessel or, if no such person is
able to be located, the person who had
possession or control of the vessel
immediately before the notice was issued.
(2) A person required by subsection (1)(a) to display a notice
commits an offence if an act or omission of the person
contravenes the requirement.
Penalty: 60 penalty units.
(3) An offence against subsection (2) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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113 Notices not to be tampered with or removed
(1) A person must not:
(a) tamper with a notice while it is displayed under
section 112; or
(b) remove a notice that has been displayed before the
notice has ceased to have effect.
Penalty: 60 penalty units.
(2) Subsection (1) does not apply if the person has a
reasonable excuse.
Note: A defendant bears an evidential burden in relation to the
matter in subsection (2) (see section 13.3(3) of the
Criminal Code).
(3) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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Division 4--Persons assisting marine safety
inspectors
114 Persons assisting marine safety inspectors
(1) A marine safety inspector may be assisted by other
persons in exercising powers or performing functions or
duties under this Part, if that assistance is necessary and
reasonable. A person giving such assistance is a person
assisting the inspector.
(2) A person assisting the marine safety inspector:
(a) may enter the premises; and
(b) may exercise powers and perform functions and
duties under this Part; and
(c) must do so in accordance with a direction given by
the inspector to the person assisting.
(3) In executing a warrant, a person assisting the marine
safety inspector may use such force against things as is
necessary and reasonable in the circumstances.
(4) A power exercised by a person assisting the marine safety
inspector as mentioned in subsection (2) is taken for all
purposes to have been exercised by the inspector.
(5) A function or duty performed by a person assisting the
marine safety inspector as mentioned in subsection (2) is
taken for all purposes to have been performed by the
inspector.
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Division 5--Obligations and incidental powers of
marine safety inspectors
115 Consent
(1) A marine safety inspector must, before obtaining the
consent of an occupier of premises for the purposes of
section 103(3)(a), inform the occupier that the occupier
may refuse consent.
(2) A consent has no effect unless the consent is voluntary.
(3) A consent may be expressed to be limited to entry during
a particular period. If so, the consent has effect for that
period unless the consent is withdrawn before the end of
that period.
(4) A consent that is not limited as mentioned in
subsection (3) has effect until the consent is withdrawn.
(5) If a marine safety inspector entered premises under
section 103 because of the consent of the occupier of the
premises, the inspector, and any person assisting the
inspector, must leave the premises if the consent ceases
to have effect.
116 Announcement before entry under warrant
(1) A marine safety inspector must, before entering premises
under a warrant:
(a) announce that he or she is authorised to enter the
premises; and
(b) if the inspector was appointed under section 91--
show his or her identity card to the occupier of the
premises if the occupier is present at the premises;
and
(c) if the inspector is a member of the Australian
Federal Police or of the police force (however
described) of a State or a Territory and is not in
uniform--show his or her police identification to
the occupier of the premises if the occupier is
present at the premises; and
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(d) give any person at the premises an opportunity to
allow entry to the premises.
(2) However, a marine safety inspector is not required to
comply with subsection (1) if he or she believes on
reasonable grounds that immediate entry to the premises
is required:
(a) to ensure the safety of a person; or
(b) to ensure that the effective execution of the warrant
is not frustrated.
(3) If:
(a) a marine safety inspector does not comply with
subsection (1) because of subsection (2); and
(b) the occupier of the premises is present at the
premises;
the inspector must, as soon as practicable after entering
the premises, show his or her identity card or police
identification to the occupier.
117 Marine safety inspector to be in possession of warrant
If a warrant is being executed in relation to premises, a
marine safety inspector executing the warrant must be in
possession of the warrant or a copy of the warrant.
118 Details of warrant etc. to be given to occupier
If:
(a) a warrant is being executed in relation to premises;
and
(b) the occupier of the premises is present at the
premises;
a marine safety inspector executing the warrant must, as
soon as practicable:
(c) make a copy of the warrant available to the
occupier (which need not include the signature of
the magistrate who issued it); and
(d) inform the occupier of the rights and
responsibilities of the occupier under Division 6.
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119 Completing execution of warrant after temporary
cessation
(1) This section applies if a marine safety inspector, and all
persons assisting, who are executing a warrant in relation
to premises temporarily cease its execution and leave the
premises.
(2) The marine safety inspector, and persons assisting, may
complete the execution of the warrant if:
(a) the warrant is still in force; and
(b) the inspector and persons assisting are absent from
the premises:
(i) for not more than 1 hour; or
(ii) if there is an emergency--for not more than
12 hours or such longer period as allowed by a
magistrate under subsection (5); or
(iii) for a longer period if the occupier of the
premises consents in writing.
(3) A marine safety inspector, or person assisting, may apply
to a magistrate for an extension of the 12-hour period
mentioned in subsection (2)(b)(ii) if:
(a) there is an emergency; and
(b) the inspector or person assisting believes on
reasonable grounds that the inspector and the
persons assisting will not be able to return to the
premises within that period.
(4) If it is practicable to do so, before making the application,
the marine safety inspector or person assisting must give
notice to the occupier of the premises of his or her
intention to apply for an extension.
(5) A magistrate may extend the period during which the
marine safety inspector and persons assisting may be
away from the premises if:
(a) an application is made under subsection (3); and
(b) the magistrate is satisfied, by information on oath
or affirmation, that there are exceptional
circumstances that justify the extension; and
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(c) the extension would not result in the period ending
after the warrant ceases to be in force.
120 Completing execution of warrant stopped by court
order
A marine safety inspector, and any persons assisting, may
complete the execution of a warrant that has been stopped
by an order of a court if:
(a) the order is later revoked or reversed on appeal; and
(b) the warrant is still in force when the order is
revoked or reversed.
121 Expert assistance to operate electronic equipment
(1) This section applies to premises to which a warrant
relates.
(2) If a marine safety inspector believes on reasonable
grounds that:
(a) there is on the premises information (data) relevant
to the monitoring purposes or determining whether
there is evidential material on the premises; and
(b) the data may be accessible by operating electronic
equipment on the premises; and
(c) expert assistance is required to operate the
equipment; and
(d) if he or she does not take action under this
subsection, the data may be destroyed, altered or
otherwise interfered with;
he or she may do whatever is necessary to secure the
equipment for up to 72 hours, whether by locking it up,
placing a guard or other means.
(3) The marine safety inspector must give notice to the
occupier of the premises of his or her intention to secure
the equipment and of the fact that the equipment may be
secured for up to 72 hours.
Note: That period may be extended: see section 123.
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122 Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of electronic equipment being operated
as mentioned in this Part:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is
damaged; or
(iii) programs associated with the use of the
equipment, or with the use of the data, are
damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the
person who was to operate the equipment; or
(ii) insufficient care was exercised by the person
operating the equipment.
(2) The National Regulator must pay the owner of the
equipment, or the user of the data or programs, such
reasonable compensation for the damage or corruption as
the National Regulator and the owner or user agree on.
(3) However, if the owner or user and the National Regulator
fail to agree, the owner or user may institute proceedings
in a court of competent jurisdiction for such reasonable
amount of compensation as the court determines.
(4) In determining the amount of compensation payable,
regard is to be had to whether the occupier of the
premises, or the occupier's employees or agents, if they
were available at the time, provided any appropriate
warning or guidance on the operation of the equipment.
(5) For the purposes of subsection (1):
damage, in relation to data, includes damage by erasure
of data or addition of other data.
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123 Extending period for which something is secured
(1) If a marine safety inspector believes on reasonable
grounds that a thing needs to be secured under
section 100(3), 104(6) or 121(2) for more than 72 hours,
he or she may apply to a magistrate for an extension of
that period.
(2) The marine safety inspector must give notice to the
occupier of the premises on which the thing is secured
of the inspector's intention to apply for an extension.
The occupier is entitled to be heard in relation to that
application.
(3) The provisions of this Part relating to the issue of
warrants apply, with such modifications as are necessary,
to the issue of an extension.
(4) The 72-hour period may be extended more than once.
124 Offence--interfering with securing of thing
A person commits an offence if:
(a) a marine safety inspector is securing, or has
secured, a thing under section 100(3), 104(6) or
121(2); and
(b) the person interferes with the securing of the thing,
or the secured thing; and
(c) the period for which the thing is secured has not
ended.
Penalty: 500 penalty units.
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Division 6--Occupier's rights and responsibilities
125 Occupier entitled to observe execution of warrant
(1) If:
(a) a warrant is being executed in relation to premises;
and
(b) the occupier of the premises is present at the
premises;
the occupier is entitled to observe the execution of the
warrant.
(2) The right to observe the execution of the warrant ceases
if the occupier impedes that execution.
(3) This section does not prevent the execution of the warrant
in 2 or more areas of the premises at the same time.
126 Occupier to provide marine safety inspector with
facilities and assistance
(1) The occupier of premises to which a warrant relates must
provide:
(a) a marine safety inspector executing the warrant;
and
(b) any person assisting the inspector;
with all reasonable facilities and assistance for the
effective exercise of their powers.
(2) A person subject to subsection (1) commits an offence if
the person fails to comply with that subsection.
Penalty: 30 penalty units.
(3) An offence against subsection (2) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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Division 7--General provisions relating to seizure
and detention
127 Copies of seized things to be provided
(1) This section applies if a marine safety inspector seizes
one or more of the following from the premises under
this Part:
(a) a document, film, computer file or other thing that
can be readily copied;
(b) a storage device, the information in which can be
readily copied.
(2) The occupier of the premises may request the marine
safety inspector to give a copy of the thing or the
information to the occupier.
(3) The marine safety inspector must comply with the
request as soon as practicable after the seizure.
(4) However, the marine safety inspector is not required to
comply with the request if possession of the document,
film, computer file, thing or information by the occupier
could constitute an offence against a law of the
Commonwealth, a State or a Territory.
128 Receipts for seized things
(1) If a thing is seized under this Part, a marine safety
inspector must provide a receipt for the thing.
(2) If 2 or more things are seized, they may be covered in the
one receipt.
129 Return of seized things
(1) The marine safety inspector must take reasonable steps to
return a thing seized under this Part when the earliest of
the following happens:
(a) the reason for the thing's seizure no longer exists;
(b) it is decided that the thing is not to be used in
evidence;
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(c) the period of 60 days after the thing's seizure ends.
Note: See subsections (2) and (3) for exceptions to this rule.
Exceptions
(2) Subsection (1):
(a) is subject to any contrary order of a court; and
(b) does not apply if the thing:
(i) is forfeited or forfeitable to the
Commonwealth; or
(ii) is the subject of a dispute as to ownership.
(3) The marine safety inspector is not required to take
reasonable steps to return a thing because of
subsection (1)(c) if:
(a) proceedings in respect of which the thing may
afford evidence were instituted before the end of
the 60 days and have not been completed (including
an appeal to a court in relation to those
proceedings); or
(b) the thing may continue to be retained because of an
order under section 130; or
(c) the Commonwealth, the National Regulator or a
marine safety inspector is otherwise authorised (by
a law, or an order of a court, of the Commonwealth,
a State or a Territory) to retain, destroy, dispose of
or otherwise deal with the thing.
Return of thing
(4) A thing that is required to be returned under this section
must be returned to the person from whom it was seized
(or to the owner if that person is not entitled to possess
it).
130 Magistrate may permit a thing to be retained
(1) A marine safety inspector may apply to a magistrate for
an order permitting the retention of the thing for a further
period if:
(a) before the end of 60 days after the seizure; or
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(b) before the end of a period previously specified in an
order of a magistrate under this section;
proceedings in respect of which the thing may afford
evidence have not been instituted.
(2) If the magistrate is satisfied that it is necessary for the
thing to continue to be retained:
(a) for the purposes of an investigation in respect of an
offence against this Law; or
(b) to enable evidence of an offence against this Law to
be secured for the purposes of a prosecution;
the magistrate may order that the thing may continue to
be retained for a period specified in the order (which
must not exceed 3 years).
(3) Before making the application, the marine safety
inspector must:
(a) take reasonable steps to discover who has an
interest in the retention of the thing; and
(b) if it is practicable to do so, notify each person
whom the inspector believes to have such an
interest of the proposed application.
131 Costs of detention
(1) The National Regulator is liable to pay to the owner of a
domestic commercial vessel a reasonable amount of
compensation:
(a) for the costs of, and incidental to, the detention of
the vessel; and
(b) for any loss or damage incurred by the owner as a
result of the detention of the vessel;
if there was no reasonable or probable cause for the
detention of the vessel.
(2) If:
(a) a domestic commercial vessel is detained under this
Division; and
(b) the National Regulator incurs costs in connection
with the detention of the vessel; and
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(c) the detention was reasonable in the circumstances;
the owner of the vessel is liable to pay to the National
Regulator compensation of a reasonable amount in
respect of the detention of the vessel.
(3) If the National Regulator and the owner of the vessel do
not agree on the amount of compensation payable under
subsection (1) or (2), the National Regulator or the owner
may institute proceedings in a court of competent
jurisdiction for the recovery of such reasonable amount
of compensation as the court determines.
132 Disposal of seized things and detained vessels
(1) The National Regulator may dispose of a thing seized, or
a vessel detained, under this Part if:
(a) the National Regulator has:
(i) in the case of a seized thing--taken reasonable
steps to return the thing to a person; or
(ii) in the case of a detained vessel--taken the
steps required by the regulations to return the
vessel to a person; and
(b) one of the following applies:
(i) the National Regulator has been unable to
locate the person, despite making reasonable
efforts;
(ii) the person has refused to take possession of
the thing or vessel;
(iii) the National Regulator has contacted the
person about the return of the thing or vessel,
and the person has not refused to take
possession of the thing or vessel, but has not
taken possession of the thing or vessel within
3 months of the contact.
(2) The National Regulator may dispose of the thing or
vessel in such manner as the National Regulator thinks
appropriate.
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133 Compensation for acquisition of property
(1) If the operation of section 132 would result in an
acquisition of property from a person otherwise than on
just terms, the National Regulator is liable to pay a
reasonable amount of compensation to the person.
(2) If the National Regulator and the person do not agree on
the amount of the compensation, the person may institute
proceedings in a court of competent jurisdiction for the
recovery from the National Regulator of such reasonable
amount of compensation as the court determines.
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Division 8--Warrants
134 Monitoring warrants
(1) A marine safety inspector may apply to a magistrate for a
warrant under this section in relation to premises.
(2) The magistrate may issue the warrant if the magistrate is
satisfied, by information on oath or affirmation, that it is
reasonably necessary that one or more marine safety
inspectors should have access to the premises for
monitoring purposes.
(3) However, the magistrate must not issue the warrant
unless the marine safety inspector or some other person
has given to the magistrate, either orally or by affidavit,
such further information (if any) as the magistrate
requires concerning the grounds on which the issue of the
warrant is being sought.
(4) The warrant must:
(a) describe the premises to which the warrant relates;
and
(b) state that the warrant is issued under this section;
and
(c) state the purpose for which the warrant is issued;
and
(d) authorise one or more marine safety inspectors
(whether or not named in the warrant) from time to
time while the warrant remains in force:
(i) to enter the premises; and
(ii) to exercise the powers set out in sections 103,
104, 106 and 107, and Division 5, in relation
to the premises; and
(e) state whether entry is authorised to be made at any
time of the day or during specified hours of the day;
and
(f) specify the day (not more than 6 months after the
issue of the warrant) on which the warrant ceases to
be in force.
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135 Enforcement warrants
(1) A marine safety inspector may apply to a magistrate for a
warrant under this section in relation to premises.
(2) The magistrate may issue the warrant if the magistrate is
satisfied, by information on oath or affirmation, that there
are reasonable grounds for suspecting that there is, or
there may be within the next 72 hours, evidential material
on the premises.
(3) However, the magistrate must not issue the warrant
unless the marine safety inspector or some other person
has given to the magistrate, either orally or by affidavit,
such further information (if any) as the magistrate
requires concerning the grounds on which the issue of the
warrant is being sought.
(4) The warrant must:
(a) describe the premises to which the warrant relates;
and
(b) state that the warrant is issued under this section;
and
(c) specify the offence or offences to which the warrant
relates; and
(d) specify the kind of evidential material that is to be
searched for under the warrant; and
(e) name one or more marine safety inspectors; and
(f) authorise the inspector or inspectors so named:
(i) to enter the premises; and
(ii) to exercise the powers set out in sections 103,
105, 106 and 107, Division 5 and section 130
in relation to the premises; and
(g) state whether the entry is authorised to be made at
any time of the day or during specified hours of the
day; and
(h) specify the day (not more than 1 week after the
issue of the warrant) on which the warrant ceases to
be in force.
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136 Enforcement warrants by telephone, fax etc.
(1) A marine safety inspector may apply to a magistrate by
telephone, fax or other electronic means for a warrant
under section 135 in relation to premises:
(a) in an urgent case; or
(b) if the inspector believes, on reasonable grounds,
that the delay that would occur if an application
were made in person would frustrate the effective
execution of the warrant.
(2) The magistrate may require communication by voice to
the extent that it is practicable in the circumstances.
(3) An application under this section must include all
information (of the kind mentioned in section 135(2)) in
relation to the premises that sets out the grounds on
which the warrant is sought. If it is necessary to do so,
the inspector may apply for the warrant before the
information is sworn or affirmed.
(4) If the magistrate is satisfied:
(a) after considering the information; and
(b) after receiving such further information (if any) as
the magistrate requires concerning the grounds on
which the issue of the warrant is being sought;
that there are reasonable grounds for issuing the warrant,
the magistrate may complete and sign the same warrant
that the magistrate would issue under section 135 if the
application had been made under that section.
(5) If the magistrate completes and signs the warrant, the
magistrate must inform the inspector, by telephone, fax
or other electronic means, of:
(a) the terms of the warrant; and
(b) the day on which, and the time at which, the
warrant was signed.
(6) The marine safety inspector must then complete a form of
warrant in the same terms as the warrant completed and
signed by the magistrate, stating on the form:
(a) the name of the magistrate; and
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(b) the day on which, and the time at which, the
warrant was signed.
(7) The marine safety inspector must also, not later than the
day after the earlier of the following days:
(a) the day on which the warrant ceased to be in force;
(b) the day of execution of the warrant;
send to the magistrate:
(c) the form of warrant completed by the inspector; and
(d) the information referred to in subsection (3), which
must have been duly sworn or affirmed.
(8) The magistrate must attach to the documents provided
under subsection (7) the warrant signed by the magistrate.
(9) A form of warrant duly completed under subsection (6) is
authority for the same powers as are authorised by the
warrant signed by the magistrate.
(10) If:
(a) it is material, in any proceedings, for a court to be
satisfied that an exercise of a power was authorised
by this section; and
(b) the warrant signed by the magistrate authorising the
exercise of the power is not produced in evidence;
the court must assume, unless the contrary is proved, that
the exercise of the power was not authorised by such a
warrant.
137 Offence relating to warrants by telephone, fax etc.
A marine safety inspector commits an offence if:
(a) the inspector states in a document that purports to
be a form of warrant under section 136 the name of
a magistrate, unless that magistrate signed the
warrant; or
(b) the inspector states on a form of warrant under that
section a matter that, to the inspector's knowledge,
departs in a material particular from the terms of
the warrant signed by the magistrate under that
section; or
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(c) the inspector purports to execute, or present to
another person, a document that purports to be a
form of warrant under that section that the inspector
knows:
(i) has not been approved by a magistrate under
that section; or
(ii) departs in a material particular from the terms
of a warrant signed by a magistrate under that
section; or
(d) the inspector gives to a magistrate a form of
warrant under that section that is not the form of
warrant that the inspector purported to execute.
Penalty: Imprisonment for 2 years.
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Part 7--Infringement notices
138 Infringement notices
(1) The regulations may make provision for and in relation to
enabling a person who is alleged to have committed an
offence against this Law to pay a penalty to the
Commonwealth as an alternative to prosecution.
(2) The penalty must equal one-fifth of the maximum fine
that a court could impose on the person as a penalty for
that offence.
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Part 8--General matters
Division 1--Review of decisions
139 Reviewable decisions
The following decisions by the National Regulator are
reviewable decisions:
(a) to refuse to issue a certificate under the following:
(i) section 38(1);
(ii) section 48(1);
(iii) section 60(1);
(b) to refuse to issue a unique identifier under
section 31(1);
(c) to impose a condition on a certificate under the
following:
(i) section 38(3)(b);
(ii) section 48(4)(b);
(iii) section 60(3)(b);
(d) to refuse to vary a certificate under the following:
(i) section 40(1);
(ii) section 50(1);
(iii) section 62(1);
(e) to vary a certificate under the following:
(i) section 40(2);
(ii) section 50(2);
(iii) section 62(2);
(f) to refuse to suspend a certificate under the
following:
(i) section 41(1);
(ii) section 51(1);
(iii) section 63(1);
(g) to suspend a certificate under the following:
(i) section 41(2);
(ii) section 51(2);
(iii) section 63(2);
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(h) to refuse to revoke a certificate under the following:
(i) section 42(1);
(ii) section 52(1);
(iii) section 64(1);
(i) to revoke a certificate under the following:
(i) section 42(2);
(ii) section 52(2);
(iii) section 64(2);
(j) to refuse to recognise a certificate under
section 73(1);
(k) to specify a condition under section 73(3);
(l) to give a direction under section 109(1);
(m) to issue a provisional improvement notice under
section 110(1);
(n) to issue prohibition notice under section 111(1);
(o) to detain a vessel under section 101(1);
(p) to refuse to grant an exemption under section 143,
other than an exemption granted on the initiative of
the National Regulator;
(q) to impose a condition on an exemption under
section 143, other than an exemption granted on the
initiative of the National Regulator.
140 Internal review of reviewable decisions
(1) The National Regulator must, as soon as practicable after
a reviewable decision is made in relation to a person, give
a written notice to the person containing:
(a) the terms of the decision; and
(b) the reasons for the decision; and
(c) a statement setting out particulars of the person's
right to have the decision reviewed under this
section.
(2) A person to whom a reviewable decision referred to in
subsection (1) relates may apply to the National
Regulator for review of the decision.
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(3) An application for review must:
(a) be in the form approved by the National Regulator;
and
(b) contain the information required by the regulations;
and
(c) be made within 30 days after the day on which the
written notice of the decision was given to the
applicant, or within such period (if any) as the
National Regulator, either before or after the end of
the 30-day period, allows.
(4) The National Regulator must, on receiving an application
under subsection (3) for review of a reviewable decision,
cause the decision to be reviewed by a person to whom
the National Regulator power under this section is
delegated, being a person who:
(a) was not involved in making the decision; and
(b) occupies a position that is senior to that occupied
by any person involved in making the decision.
(5) A person who reviews a reviewable decision under this
section may:
(a) make a decision affirming, varying or revoking the
reviewable decision; and
(b) if the person revokes the decision--make such
other decision as the person thinks appropriate.
(6) A failure to comply with the requirements of
subsection (1) in relation to a decision does not affect the
validity of the decision.
141 Applications for AAT review
Applications may be made to the Administrative Appeals
Tribunal for review of a decision under section 140(5).
Note: The Administrative Appeals Tribunal Act 1975 of the
Commonwealth provides for the manner of applying for
review, etc.
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142 Review of decisions made under the regulations
The regulations may provide for:
(a) internal review of decisions made under the
regulations; and
(b) the making of applications to the Administrative
Appeals Tribunal for review of decisions under the
regulations.
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Division 2--Exemptions
143 Power of exemption
(1) The National Regulator may exempt from the application
of this Law, or specified provisions of this Law:
(a) a specified vessel or class of vessels; or
(b) a specified person or class of persons.
(2) The exemption may be confined to one or both of the
following:
(a) one or more specified periods;
(b) one or more specified operations.
(3) For the purposes of an exemption for one or more
specified periods, of a vessel that is specified or is in a
specified class, the periods may be specified as periods
for which a specified use is being made of the vessel.
(4) An exemption may be granted:
(a) on application in accordance with the regulations
by a person; or
(b) on the initiative of the National Regulator.
(5) An exemption is subject to such conditions (if any) as are
specified in the instrument of exemption.
(6) The National Regulator must not grant an exemption, or
impose conditions under subsection (5), unless the
National Regulator is satisfied that the exemption
concerned, taken together with the conditions to which it
is subject, will not jeopardise the safety of a vessel or a
person on board a vessel.
(7) An exemption granted under subsection (1) is not a
legislative instrument.
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144 Offence of breaching a condition of exemption (owner)
(1) The owner of a domestic commercial vessel commits an
offence if:
(a) an exemption under section 143 in relation to the
vessel is subject to a condition; and
(b) the owner breaches, or causes or permits another
person to breach, the condition.
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
145 Offence of breaching a condition of exemption (master)
(1) The master of a domestic commercial vessel commits an
offence if:
(a) an exemption under section 143 in relation to the
vessel is subject to a condition; and
(b) the master breaches, or causes or permits another
person to breach, the condition.
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
146 Offence of breaching a condition of exemption (all
persons)
(1) A person commits an offence if:
(a) an exemption under section 143 in relation to the
person is subject to a condition; and
(b) the person breaches the condition.
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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Division 3--Application of National Law to certain
bodies
147 Treatment of partnerships
(1) This Law applies to a partnership as if it were a person,
but with the changes set out in this section.
(2) An obligation that would otherwise be imposed on the
partnership by this Law is imposed on each partner
instead, but may be discharged by any of the partners.
(3) An offence against this Law that would otherwise be
committed by the partnership is taken to have been
committed by each partner.
(4) A partner does not commit an offence because of
subsection (3) if the partner:
(a) does not know of the circumstances that constitute
the contravention of the provision concerned; or
(b) knows of those circumstances but takes all
reasonable steps to correct the contravention as
soon as possible after the partner becomes aware of
those circumstances.
Note: A defendant bears an evidential burden in relation to the
matters in subsection (4) (see section 13.3(3) of the
Criminal Code).
(5) For the purposes of this Law, a change in the composition
of a partnership does not affect the continuity of the
partnership.
148 Treatment of unincorporated associations
(1) This Law applies to an unincorporated association as if it
were a person, but with the changes set out in this
section.
(2) An obligation that would otherwise be imposed on the
association by this Law is imposed on each member of
the association's committee of management instead, but
may be discharged by any of the members.
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(3) An offence against this Law that would otherwise be
committed by the association is taken to have been
committed by each member of the association's
committee of management.
(4) A member of the association's committee of management
does not commit an offence because of subsection (3) if
the member:
(a) does not know of the circumstances that constitute
the contravention of the provision concerned; or
(b) knows of those circumstances but takes all
reasonable steps to correct the contravention as
soon as possible after the member becomes aware
of those circumstances.
Note: A defendant bears an evidential burden in relation to the
matters in subsection (4) (see section 13.3(3) of the
Criminal Code).
149 Treatment of trusts with multiple trustees
(1) If a trust has 2 or more trustees, this Law applies to the
trust as if it were a person, but with the changes set out in
this section.
Note: A trust may be an owner of a vessel (see the definitions of
entity and owner in section 6).
(2) An obligation that would otherwise be imposed on the
trust by this Law is imposed on each trustee instead, but
may be discharged by any of the trustees.
(3) An offence against this Law that would otherwise be
committed by the trust is taken to have been committed
by each trustee.
(4) A trustee does not commit an offence because of
subsection (3) if the trustee:
(a) does not know of the circumstances that constitute
the contravention of the provision concerned; or
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(b) knows of those circumstances but takes all
reasonable steps to correct the contravention as
soon as possible after the trustee becomes aware of
those circumstances.
Note: A defendant bears an evidential burden in relation to the
matters in subsection (4) (see section 13.3(3) of the
Criminal Code).
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Division 4--Fees
150 Charging of fees by the National Regulator
(1) The National Regulator may charge such fees as are
prescribed by the regulations for things done by the
National Regulator under this Law.
(2) The fee is payable to the National Regulator.
(3) The fee must not be such as to amount to taxation.
(4) If the fee is unpaid, it is a debt due to the National
Regulator and is recoverable in a court of competent
jurisdiction.
151 Charging of fees by accredited persons
(1) An accredited person who:
(a) is not an officer or employee of the
Commonwealth, a State or the Northern Territory,
or of an agency of the Commonwealth, a State or
the Northern Territory; or
(b) is such an officer or employee, but does a thing
under this Law other than in that capacity;
may charge another person the fee agreed between the
accredited person and the other person for a thing done
by the accredited person under this Law.
(2) The fee is payable to the accredited person.
(3) The fee must not be such as to amount to taxation.
(4) If the fee is unpaid, it is a debt due to the accredited
person and is recoverable in a court of competent
jurisdiction.
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Division 5--Disclosure of information
152 Disclosure of information by certain persons to the
National Regulator
Any of the following may disclose to the National
Regulator information (including personal information)
that may be relevant to the administration of this Law:
(a) a delegate or sub-delegate of the National
Regulator;
(b) a maritime safety inspector;
(c) an accredited person;
(d) an approved training organisation.
Note: Section 11 of the Australian Maritime Safety Authority Act
1990 of the Commonwealth authorises the National
Regulator to disclose information (including personal
information).
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Division 6--Immunity from suit
153 Immunity from suit
(1) Criminal or civil proceedings do not lie against:
(a) the National Regulator; or
(b) a member of the staff of the National Regulator; or
(c) a delegate or sub-delegate of the National
Regulator; or
(d) an agency of which such a delegate or sub-delegate
is an employee; or
(e) an employee or contractor of such an agency; or
(f) a marine safety inspector;
because of an act done or omitted to be done in the
exercise of any power conferred on the National
Regulator or a marine safety inspector by or under this
Law.
(2) Criminal or civil proceedings do not lie against a person
because of an act done, or omitted to be done, in
compliance with a direction given under this Act.
(3) Subsection (2) does not apply to the extent to which it is
inconsistent with an international agreement to which
Australia is a party.
(4) To avoid doubt, subsection (2) does not apply to
proceedings under section 133.
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Division 7--Matters relating to evidence and
proceedings, etc.
154 National Regulator may require certain information
(1) This section applies if an offence against this Law (the
relevant offence) in relation to a domestic commercial
vessel is alleged to have been committed by:
(a) the master of the vessel; or
(b) the owner of the vessel.
(2) The National Regulator may, within 30 days after the
conduct constituting the relevant offence, give a written
notice:
(a) if the relevant offence is alleged to have been
committed by the master of the vessel--to the
owner of the vessel, requiring the owner to inform
the National Regulator of the name and address of
the person who was the master of the vessel at the
time of the conduct constituting the relevant
offence; or
(b) if the relevant offence is alleged to have been
committed by the owner of the vessel--to the
master of the vessel, requiring the master to inform
the National Regulator of the name and address of
the person who was the owner of the vessel at the
time of the conduct constituting the relevant
offence.
(3) The notice must:
(a) specify the relevant offence; and
(b) state the effect of section 155.
155 Offence not to give information
(1) A person commits an offence if:
(a) the person is given a notice under section 154(2);
and
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(b) the person does not, within 28 days of the giving of
the notice, give the information specified in the
notice to the National Regulator.
Penalty: 60 penalty units.
(2) Subsection (1) does not apply if the person satisfies the
National Regulator that, at the time of the conduct
constituting the relevant offence, the vessel had been
stolen or wrongfully taken.
(3) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
156 Evidentiary certificates
(1) The National Regulator may issue a written certificate
stating:
(a) that a unique identifier was issued, on a specified
day, in relation to a domestic commercial vessel; or
(b) that a specified certificate in relation to a domestic
commercial vessel was issued, suspended or
revoked on a specified day; or
(c) that a specified person was issued, on a specified
day, with a specified certificate in relation to a
domestic commercial vessel; or
(d) that a specified person was, on a specified day,
issued with a certificate of competency; or
(e) that a specified certificate of competency was
suspended or revoked on a specified day; or
(f) the conditions to which a specified certificate is, or
is not, subject; or
(g) that a specified person was issued with an
instrument (however described) of accreditation; or
(h) that a specified instrument (however described) of
accreditation was suspended or revoked on a
specified day.
(2) In any proceedings for an offence under this Law, a
certificate under this section is prima facie evidence of
the matters in the certificate.
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157 Burden of proving certain matters lies on defendant
In proceedings for an offence against this Law, the
prosecution is not required to prove, in the absence of
evidence to the contrary, the following:
(a) that the defendant was the owner or master of a
specified domestic commercial vessel at the time of
the conduct constituting the alleged offence;
(b) that a specified vessel is a domestic commercial
vessel;
(c) that a specified vessel of a specified person is
subject to this Law;
(d) that a specified vessel is not exempt from a
provision of this Law;
(e) that a message or signal was received by the master
of a domestic commercial vessel, if:
(i) the message was transmitted under this Law
by a prescribed person; and
(ii) the vessel was located so as to be able to
receive the message or signal;
(f) that a specified vessel is a particular length or
tonnage;
(g) the time of sunrise and sunset in a particular
location on any day, as published by the
Commonwealth Bureau of Meteorology established
under section 5 of the Meteorology Act 1955.
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Division 8--Adverse publicity orders
158 Adverse publicity orders
(1) This section applies if a court finds a person (the
offender) guilty of an offence against this Law, whether
or not the court convicts the offender of the offence.
(2) The court may make an order (the adverse publicity
order) requiring the offender:
(a) to take either or both of the following actions
within the period specified in the order:
(i) to publicise, in the way specified in the order,
the offence, its consequences, the penalty
imposed and any other related matter;
(ii) to notify a specified person or specified class
of persons, in the way specified in the order,
of the offence, its consequences, the penalty
imposed and any other related matter; and
(b) to give the National Regulator, within 7 days after
the end of the period specified in the order,
evidence that the action or actions were taken by
the offender in accordance with the order.
(3) The court may make the adverse publicity order:
(a) either on its own initiative or on the application of
the person prosecuting the offence; and
(b) in addition to any penalty that may be imposed or
any other action that may be taken in relation to the
offence.
(4) If the offender fails to give evidence to the National
Regulator in accordance with subsection (2)(b), the
National Regulator may take the action or actions
specified in the order.
(5) However, if:
(a) the offender gives evidence to the National
Regulator in accordance with subsection (2)(b); and
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(b) despite that evidence, the National Regulator is not
satisfied that the offender has taken the action or
actions specified in the order in accordance with the
order;
the National Regulator may apply to a court for an order
authorising the National Regulator, or a person
authorised in writing by the National Regulator, to take
the action or actions.
(6) If the National Regulator takes one or more actions under
subsection (4) or an order under subsection (5), the
National Regulator is entitled to recover from the
offender, by action in a court, an amount in relation to the
reasonable expenses of taking the actions as a debt due to
the National Regulator.
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Division 9--Regulations and other legislative
instruments
159 Regulations
(1) The Governor-General may make regulations prescribing
matters:
(a) required or permitted by this Law to be prescribed;
or
(b) necessary or convenient to be prescribed for
carrying out or giving effect to this Law.
(2) The regulations may prescribe standards for the purposes
of this Law including, but not limited to, standards in
relation to the following:
(a) the survey of domestic commercial vessels;
(b) the construction of domestic commercial vessels;
(c) machinery and equipment connected with domestic
commercial vessels;
(d) maintenance of domestic commercial vessels;
(e) operation of domestic commercial vessels;
(f) crewing of domestic commercial vessels;
(g) qualifications of crew and masters of domestic
commercial vessels;
(h) safety of domestic commercial vessels;
(i) communications relating to domestic commercial
vessels.
(3) The regulations may prescribe requirements relating to
the following:
(a) the keeping of records relating to the operation of
domestic commercial vessels;
(b) auditing the operation of domestic commercial
vessels;
(c) the marking of domestic commercial vessels;
(d) advertising the uses of domestic commercial
vessels, including prohibiting advertising of uses
not permitted by a certificate for the vessel.
(4) The regulations may prescribe a scheme for and in
relation to voluntary enforceable undertakings.
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(5) The regulations may make provision for and in relation
to:
(a) requiring persons to hold certificates (within the
ordinary meaning of that expression) or other
documents for the purposes of giving effect to an
international convention or instrument that is in
force for Australia; and
(b) the issuing, varying, revoking and suspending of
such certificates or other documents.
(6) Before the Governor-General makes regulations for the
purposes of section 7(4) or (5), the Commonwealth
Minister must be satisfied that:
(a) the COAG Council has been consulted in relation
to the proposed regulations; and
(b) the COAG Council has unanimously agreed to the
making of the proposed regulations.
160 Regulations may prescribe matters relating to
accreditation and approval
(1) The regulations may prescribe matters relating to
accreditation and approval, including, but not limited to:
(a) the accreditation of persons to perform roles
prescribed by regulations made for the purposes of
this paragraph; and
(b) the approval of training organisations.
(2) Examples of matters that the regulations may deal with
are:
(a) the standards that are to be met by persons who
seek to be accredited or approved; and
(b) who is responsible for determining whether a
person meets the standards; and
(c) how accreditation is to be recognised (for example,
by establishment of a register or other method); and
(d) the standards and other obligations that persons
must continue to meet to remain accredited or
approved; and
(e) who is responsible for monitoring compliance with
ongoing requirements in the regulations; and
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(f) the consequences of accredited persons and
approved training organisations failing to comply
with the provisions of this Law; and
(g) the obligations of accredited persons and approved
training organisations in relation to the monitoring
of their compliance; and
(h) how and by whom an accredited person may have
his or her accreditation (or recognition of that
accreditation) varied, suspended or revoked; and
(i) how and by whom an approved training
organisation may have its approval varied,
suspended or revoked; and
(j) review of decisions to refuse, vary, suspend or
revoke accreditation (or recognition of
accreditation) or approval; and
(k) the process for handling complaints involving
accredited persons or approved training
organisations; and
(l) who may deliver recognised training to accredited
persons or approved training organisations; and
(m) auditing accredited persons or approved training
organisations.
(3) Before the Governor-General makes the first regulations
for the purposes of subsection (1)(a) providing for the
accreditation of persons to perform the role of a surveyor
of vessels, the Commonwealth Minister must be satisfied
that:
(a) the COAG Council has been consulted in relation
to the proposed regulations; and
(b) the COAG Council has agreed to the making of the
proposed regulations.
161 Offence of contravening a condition of accreditation
(1) An accredited person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes a condition
prescribed by the regulations for the purposes of
this paragraph; and
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(c) the act or omission is a risk to the safety of a person
or a domestic commercial vessel; and
(d) the person intends the act or omission to be a risk to
the safety of a person or a domestic commercial
vessel.
Penalty: Imprisonment for 12 months or 200 penalty
units, or both.
(2) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes a condition
prescribed by the regulations for the purposes of
this paragraph; and
(c) the act or omission is a risk to the safety of a person
or a domestic commercial vessel; and
(d) the person is reckless as to whether the act or
omission is a risk to the safety of a person or a
domestic commercial vessel.
Penalty: 160 penalty units.
(3) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes a condition
prescribed by the regulations for the purposes of
this paragraph; and
(c) the act or omission is a risk to the safety of a person
or a domestic commercial vessel; and
(d) the person is negligent as to whether the act or
omission is a risk to the safety of a person or a
domestic commercial vessel.
Penalty: 120 penalty units.
(4) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes a condition
prescribed by the regulations for the purposes of
this paragraph.
Penalty: 60 penalty units.
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(5) An offence against subsection (4) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
162 Regulations may prescribe penalties etc.
(1) The regulations may prescribe penalties not more than
50 penalty units for offences against the regulations.
(2) The regulations may prescribe civil penalties for
contraventions of the regulations, not more than:
(a) for a body corporate--500 penalty units; or
(b) in any other case--100 penalty units.
(3) The regulations may provide for a person who is alleged
to have contravened a provision of the regulations for
whose contravention a civil penalty is prescribed to pay a
penalty to the Commonwealth as an alternative to
proceedings for a civil penalty.
(4) The penalty must not exceed one-tenth of the maximum
penalty that a court could have ordered the person to pay
if the court was satisfied that the person had contravened
that provision.
163 Legislative instruments other than regulations
(1) The National Regulator may, by legislative instrument,
make a Marine Order with respect to any matter for
which provision must or may be made by the regulations,
other than regulations made for the purposes of the
following provisions:
(a) sections 7(4) and (5) (definition of domestic
commercial vessel);
(b) section 8(3)(a) (definition of vessel);
(c) section 150(1) (fees);
(d) section 160(1)(a) (accreditation).
(2) If a Marine Order is inconsistent with this Law, the
Marine Order is, to the extent of the inconsistency, of no
effect.
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(3) A reference to this Law in subsection (2) does not include
a reference to a Marine Order.
164 Incorporation of material, etc.
Despite section 14 of the Legislative Instruments Act
2003 of the Commonwealth, the regulations and Marine
Orders may make provision for or in relation to a matter
by applying, adopting or incorporating any matter
contained in any written instrument in force or existing
from time to time, including but not limited to:
(a) the National Standard for Commercial Vessels; and
(b) the Uniform Shipping Laws Code.
165 Regulations may deal with transitional matters
(1) The regulations may prescribe matters of a transitional
nature (including matters of an application or saving
nature):
(a) arising out of the enactment of this Law; or
(b) relating to the transition from the application of
provisions of laws of the States and the Territories
to the application of provisions of this Law.
(2) The regulations have effect despite anything else in this
Law.
(3) The regulations may provide that certain provisions of
this Law are taken to be modified as set out in the
regulations. Those provisions then have effect as if they
were so modified.
(4) The regulations may provide that a specified identifier,
document, licence, certificate or exemption (however
described) issued, whether before or after the
commencement of this Act, under a law of a State or the
Northern Territory is taken to be a specified identifier,
document, licence, certificate or exemption issued under
this Law, subject to such requirements and modifications
as are prescribed.
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(5) Despite section 12(2) of the Legislative Instruments Act
2003 of the Commonwealth, regulations made under this
section may be expressed to take effect from a date
before the regulations are registered under that Act.
(6) If:
(a) regulations are expressed to take effect from a date
before the date the regulations are registered under
the Legislative Instruments Act 2003 of the
Commonwealth; and
(b) a person did an act or omitted to do an act before
the regulations are registered; and
(c) apart from the retrospective effect of the
regulations, the act or omission would not have
contravened this Law;
then a court must not convict the person of an offence in
relation to the act or omission on the grounds that it
contravened this Law.
[Minister's second reading speech made in--
House of Representatives on 24 May 2012
Senate on 20 June 2012]
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ANNEXURE 2
Amendments to be made to the Marine Safety
(Domestic Commercial Vessel) National Law Act
2012 of the Commonwealth
Marine Safety (Domestic Commercial Vessel)
National Law (Consequential Amendments) Act
2012 of the Commonwealth
Explanatory Memorandum
MARINE SAFETY (DOMESTIC COMMERCIAL
VESSEL) NATIONAL LAW (CONSEQUENTIAL
AMENDMENTS) BILL 2012
OUTLINE
The Marine Safety (Domestic Commercial Vessel) National
Law (Consequential Amendments) Bill (the Bill) provides for
consequential amendments to the Australian Maritime Safety
Authority Act 1990 (AMSA Act) and the Marine Safety
(Domestic Commercial Vessel) National Law Bill 2012
(the National Law) .
Schedule 1 of the Bill amends the AMSA Act to include
definitions defined in the National Law and to reflect the
agreement reached in the Council of Australian Government's
(COAG) Intergovernmental Agreement (IGA) on Commercial
Vessel Safety Reform. Under the IGA, the Commonwealth
will ensure that the AMSA Board membership includes at least
one member with knowledge of, or experience relevant to,
non-SOLAS-Convention commercial vessel operation and/or
construction. The IGA also determined that the Australian
Maritime Safety Authority (AMSA) would be the National
Regulator.
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Schedule 2 of the Bill repeals the existing offences and penalties
for the general safety duties in the National Law and replaces
them with provisions that mirror the provisions of Part 2 of the
Work Health and Safety Act 2011 (WHS Act).
Schedule 2 will take effect when all States and Territories give
effect to, as a State or Territory law, the provisions contained in
Part 2 of the WHS Act. The objective of this arrangement is to
align the National Law general safety obligations and offences
with the WHS duties and offences, once the WHS Act has been
enacted nationally.
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ABBREVIATIONS
AMSA Australian Maritime Safety Authority
AMSA Act Australian Maritime Safety Authority
Act 1990
COAG Council of Australian Governments
Constitution Constitution of the Commonwealth of
Australia
Criminal Code The Code established by the Criminal
Code Act 1995
GSO General Safety Obligation
IGA The Inter-Governmental Agreement for
Commercial Vessel Safety Reform
signed by COAG First Ministers on
19 August 2011
National Law Schedule 1 of the Marine Safety
(Domestic Commercial Vessel)
National Law Act 2012
National Regulator The National Regulator established
under the National Law
The Bill/this Bill Marine Safety (Domestic Commercial
Vessel) National Law (Consequential
Amendments) Bill 2012
The Act/this Act Marine Safety (Domestic Commercial
Vessel) National Law (Consequential
Amendments) Act 2012
WHS Act Work Health and Safety Act 2011
WRMC Workplace Relations Ministers Council
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FINANCIAL IMPACT STATEMENT
This Bill forms part of the legislative package for the Marine
Safety (Domestic Commercial Vessel) National Law Bill 2012
(the National Law Bill). The financial impact of the National
Law has been discussed fully in the Explanatory Memorandum
for the National Law Bill.
Remuneration for the additional AMSA Board member will be
determined by the Remuneration Tribunal. Remuneration costs
will be absorbed by AMSA.
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Statement of Compatibility with Human Rights
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 Bill contains two schedules and should be considered in
conjunction with the National Law Bill.
Schedule 1 amends the Australian Maritime Safety Authority Act
1990 (the AMSA Act) to increase the membership of the
Australian Maritime Safety Authority (AMSA) board by one
member who has knowledge of, or experience relevant to, the
construction or operation of domestic commercial vessels. The
proposed amendments implement the agreement reached in the
COAG IGA on Commercial Vessel Safety Reform, which
underpins the reform.
Schedule 2 amends General Safety Obligations in the National
Law Bill to align the duties with those contained in the Work
Health and Safety Act 2011 (the Model WHS laws). As not all
jurisdictions have enacted the Model WHS legislation, it is
proposed that the amendments under Schedule 2 will commence
when all jurisdictions have enacted the Model WHS laws.
Human rights implications
This Bill does not engage any of the applicable rights or
freedoms.
Conclusion
This Bill is compatible with human rights as it does not raise
any human rights issues.
Minister for Infrastructure and Transport,
the Hon Anthony Albanese MP
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OTHER MATTERS
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.
Penalties for offences
The penalties for offences involving a breach of these GSOs
mirror those in the WHS Act. 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.
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The levels of penalties are higher than those recommended by
Commonwealth offence framing policy. However, they reflect
recommendations of a national review into occupational health
and safety, and were agreed upon by the Workplace Relations
Ministers Council (WRMC). In making these recommendations
the National OHS review noted that, in the case where death or
serious injury results in a breach, the social and economic costs
are likely to be far greater than even the maximum fines
imposed by the Bill.
The penalties in the Bill also 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.
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.
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.
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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 (Consequential Amendments) Act 2012.
Clause 2 - Commencement
This clause sets out when each provision in this Act commences,
or is taken to have commenced.
Clauses 1 to 3 commence on the day on which the Bill receives
Royal Assent.
The provisions relating to Schedule 1, which amends the AMSA
Act, commence immediately after the commencement of the
National Law.
The provisions relating to Schedule 2, which aligns the offences
and penalties for the General Safety Obligations (GSOs) with
the model provisions contained in the Work Health and Safety
Act 2011, will commence on a single day fixed by proclamation,
but not before the first day that a law of a State or Territory that
substantially corresponds to Part 2 of Work Health and Safety
Act 2011 is in force as a law of that State or Territory.
If a proclamation date is not made within 6 months of a law of a
State or Territory that substantially corresponds to Part 2 of the
Work Health and Safety Act 2011 coming into force as a law of
that State or Territory, the provisions relating to Schedule 2 of
this Bill will commence on the first day after this 6 month
period. If the provisions commence in this way the Minister
must announce by a notice in the Gazette the day the provisions
commenced.
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Clause 3 - Schedule(s)
This clause makes it clear that each Act that is specified in one
of the schedules to this Bill is amended or repealed in
accordance with the relevant provisions.
Schedule 1 - Australian Maritime Safety Authority Act 1990
(AMSA Act)
The policy basis for the National Law derives from the COAG
IGA, which determined that AMSA will be the National
Regulator.
The following amendments to the AMSA Act are required to
give effect to the terms agreed at the IGA.
Item 1 - Subsection 3(1)
This clause introduces the defined term "domestic commercial
vessel" into the AMSA Act.
Item 1 - Paragraph 13(1)(e)
This amendment increases the number of AMSA Board
members from 4 to 5. This change is required to implement the
agreement reached in the IGA that the AMSA Board includes a
member with knowledge of, or experience in, the operation or
construction of non-SOLAS-Convention commercial vessels.
Item 2 - After subsection 13(4)
This amendment reflects the IGA agreement regarding the
composition of the AMSA Board. This will ensure the AMSA
Board includes a member with knowledge of, or experience in,
the operation or construction of Domestic Commercial Vessels.
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Item 1 - Subsection 22(6)
This amendment is an adjustment that results from the increase
size of the AMSA Board that is required to accommodate the
agreed composition for the National Regulator's Board. The
number of Board members required to constitute a quorum has
increased from 4 to 5 members.
Schedule 2 - Marine Safety (Domestic Commercial Vessels)
National Law Act 2012 (National Law)
Breaches of General Safety Duties
The following consequential amendments to the National Law
are required to repeal the existing offences and penalties
provisions for the general safety duties contained in the National
Law and replaces them with provisions that mirror the
provisions contained in Part 2 of the WHS Act.
Item 1 - Section 5
The amendment provisions mirror those contained in the WHS
Act and depart from the penalty unit regime provided for in the
National Law.
The insertion of Clause 5A reflects that penalties for a breach of
safety duties in the WHS Act are expressed in dollar amounts
and not penalty units. This approach is based on
recommendations of the national review into occupational health
and safety and agreed by the WRMC, which identified disparity
in the monetary value of penalty units among the jurisdictions
and opted for penalties to be expressed in dollar terms to avoid
any confusion.
Definitions
The following items are required to insert definitions into the
National Law that are required as a result of the consequential
amendments. These give effect to the alignment of the general
safety obligations to those provided for in the WHS Act.
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Item 2 - this inserts the term "conduct" into the National Law.
Item 3 - this inserts the definition of "officer".
Item 4 - this inserts the definition of "volunteer association".
Item 5 - this inserts the term "worker" into the National Law.
Item 6 - this inserts the definition of "conduct a business or
undertaking".
Item 7 - this inserts the definition of "worker".
Offences and penalty provisions
The following items address the alignment of the offence
framework to that contained in the WHS Act in relation to
breaches of general safety duties under the National Law.
The WHS Act provides for three categories of offences against
health and safety duties.
Category 1 offences are for a breach that involves reckless
conduct and carries the highest penalty, including imprisonment
of up to 5 years. These offences involve reckless conduct that
exposes an individual to a risk of death, serious injury or illness
without a reasonable excuse.
Category 2 offences are for a breach that involves intentional
conduct, but is not reckless conduct that exposes an individual to
a risk of death, serious injury or illness without a reasonable
excuse.
Category 3 offences do not require that a breach exposes an
individual to a risk of death, serious injury or illness without a
reasonable excuse, only that the act or omission that
contravened the general safety duty occurred.
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The level of penalties imposed for each of these categories of
offences is dependent on whether the person is an individual, a
body corporate, or an officer or person conducting a business or
undertaking.
Item 8 - Section 13
This amendment aligns the offence provision provided for in
section 13 of the National Law with the WHS Act.
Sub-clause 1 provides for a Category 1 offence, requiring
recklessness and exposing an individual to a risk of death,
serious injury or illness without a reasonable excuse.
Sub-clause 2 makes it clear that the prosecution bears the
evidential burden of proving that a person did not have a
reasonable excuse for the action or inaction that led to the
breach of the general safety duty.
Sub-clause 3 provides for a Category 2 offence, requiring intent
and exposing an individual to a risk of death, serious injury or
illness without a reasonable excuse.
Sub-clause 4 clarifies that the physical element of whether an
individual was or was not exposed to a risk of death or serious
injury or illness is one of strict liability.
Sub-clause 5 provides for a Category 3 offence.
Item 9 - Section 15
This amendment aligns the offence provision provided for in
section 15 of the National Law with the WHS Act.
Sub-clause 1 provides for a Category 1 offence, requiring
recklessness and exposing an individual to a risk of death,
serious injury or illness without a reasonable excuse.
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Sub-clause 2 makes it clear that the prosecution bears the
evidential burden of proving that a person did not have a
reasonable excuse for the action or inaction that led to the
breach of the general safety duty.
Sub-clause 3 provides for a Category 2 offence, requiring intent
and exposing an individual to a risk of death, serious injury or
illness without a reasonable excuse.
Sub-clause 4 clarifies that the physical element of whether an
individual was or was not exposed to a risk of death or serious
injury or illness is one of strict liability.
Sub-clause 5 provides for a Category 3 offence.
Item 10 - Section 18
This amendment aligns the offence provision provided for in
section 18 of the National Law with the WHS Act.
Sub-clause 1 provides for a Category 1 offence, requiring
recklessness and exposing an individual to a risk of death,
serious injury or illness without a reasonable excuse.
Sub-clause 2 makes it clear that the prosecution bears the
evidential burden of proving that a person did not have a
reasonable excuse for the action or inaction that led to the
breach of the general safety duty.
Sub-clause 3 provides for a Category 2 offence, requiring intent
and exposing an individual to a risk of death, serious injury or
illness without a reasonable excuse.
Sub-clause 4 clarifies that the physical element of whether an
individual was or was not exposed to a risk of death or serious
injury or illness is one of strict liability.
Sub-clause 5 provides for a Category 3 offence.
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Item 11 - Section 20
This amendment aligns the offence provision provided for in
section 20 of the National Law with the WHS Act.
Sub-clause 1 provides for a Category 1 offence, requiring
recklessness and exposing an individual to a risk of death,
serious injury or illness without a reasonable excuse.
Sub-clause 2 makes it clear that the prosecution bears the
evidential burden of proving that a person did not have a
reasonable excuse for the action or inaction that led to the
breach of the general safety duty.
Sub-clause 3 provides for a Category 2 offence, requiring intent
and exposing an individual to a risk of death, serious injury or
illness without a reasonable excuse.
Sub-clause 4 clarifies that the physical element of whether an
individual was or was not exposed to a risk of death or serious
injury or illness is one of strict liability.
Sub-clause 5 provides for a Category 3 offence.
Item 12 - Section 161
This amendment aligns the offence provision provided for in
section 161 of the National Law with the WHS Act.
Sub-clause 1 provides for a Category 1 offence, requiring
recklessness and exposing an individual to a risk of death,
serious injury or illness without a reasonable excuse.
Sub-clause 2 makes it clear that the prosecution bears the
evidential burden of proving that a person did not have a
reasonable excuse for the action or inaction that led to the
breach of the general safety duty.
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Sub-clause 3 provides for a Category 2 offence, requiring intent
and exposing an individual to a risk of death, serious injury or
illness without a reasonable excuse.
Sub-clause 4 clarifies that the physical element of whether an
individual was or was not exposed to a risk of death or serious
injury or illness is one of strict liability.
Sub-clause 5 provides for a Category 3 offence.
Item 13 - Application of amendments made by Schedule 2
This amendment makes it clear that the amendments provided
for in Schedule 2 of the Bill only apply to actions or inactions
that occur on or after the commencement of the Schedule.
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Marine Safety (Domestic Commercial
Vessel) National Law (Consequential
Amendments) Act 2012
Contents
1 Short title 363
2 Commencement 363
3 Schedule(s) 365
Schedule 1--Consequential amendments 366
Australian Maritime Safety Authority Act 1990 366
Schedule 2--Breaches of general safety duties 367
Marine Safety (Domestic Commercial Vessel) National Law
Act 2012 367
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Marine Safety (Domestic Commercial
Vessel) National Law (Consequential
Amendments) Act 2012
No. 122, 2012
An Act to make amendments that relate to
the enactment of the Marine Safety (Domestic
Commercial Vessel) National Law Act 2012
and that align that Act with work health and
safety laws, and for related purposes
[Assented to 12 September 2012]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Marine Safety (Domestic
Commercial Vessel) National Law (Consequential
Amendments) Act 2012.
2 Commencement
(1) Each provision of this Act specified in column 1 of the
table commences, or is taken to have commenced, in
accordance with column 2 of the table. Any other
statement in column 2 has effect according to its terms.
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Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
1. Sections 1 The day this Act receives the Royal 12 September
to 3 and Assent. 2012
anything in
this Act not
elsewhere
covered by
this table
2. Schedule 1 Immediately after the commencement
of section 3 of the Marine Safety
(Domestic Commercial Vessel)
National Law Act 2012.
3. Schedule 2 A single day to be fixed by
Proclamation.
A Proclamation must not specify a day
that occurs before the first day there are
in force in each State laws of the State
that the Minister is satisfied correspond
substantially to Part 2 of the Work
Health and Safety Act 2011.
However, if the provision(s) do not
commence within the period of 6
months beginning on that first day,
they commence on the day after the
end of that period. If the provision(s)
commence in this way, the Minister
must announce by notice in the Gazette
the day the provision(s) commenced.
The notice is not a legislative
instrument.
Note: This table relates only to the provisions of this Act as
originally enacted. It will not be amended to deal with any
later amendments of this Act.
(2) Any information in column 3 of the table is not part of
this Act. Information may be inserted in this column, or
information in it may be edited, in any published version
of this Act.
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3 Schedule(s)
Each Act that is specified in a Schedule to this Act is
amended or repealed as set out in the applicable items in
the Schedule concerned, and any other item in a Schedule
to this Act has effect according to its terms.
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Schedule 1--Consequential
amendments
Australian Maritime Safety Authority Act 1990
1 Subsection 3(1)
Insert:
domestic commercial vessel has the same meaning as in
the Marine Safety (Domestic Commercial Vessel)
National Law of the Commonwealth.
Note: For Marine Safety (Domestic Commercial Vessel)
National Law of the Commonwealth, see paragraph 4(b)
of the Marine Safety (Domestic Commercial Vessel)
National Law Act 2012.
2 Paragraph 13(1)(e)
Omit "4", substitute "5".
3 After subsection 13(4)
Insert:
(4A) The Minister must use his or her best endeavours to
ensure that at least one of the members referred to in
paragraph (1)(e) is a person who the Minister is satisfied
has knowledge of, or experience relevant to, the
construction or operation of domestic commercial
vessels.
4 Subsection 22(6)
Omit "4", substitute "5".
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Schedule 2--Breaches of general safety
duties
Marine Safety (Domestic Commercial Vessel)
National Law Act 2012
1 After section 5 of the Marine Safety (Domestic
Commercial Vessel) National Law
Insert:
5A Value of penalties
Section 4AB of the Crimes Act 1914 of the
Commonwealth does not apply to a penalty expressed in
this Law wholly or partly by reference to a number of
dollars.
2 Section 6 of the Marine Safety (Domestic
Commercial Vessel) National Law
Insert:
conduct a business or undertaking: see section 6A.
3 Section 6 of the Marine Safety (Domestic
Commercial Vessel) National Law
Insert:
officer means:
(a) an officer within the meaning of section 9 of the
Corporations Act 2001 other than a partner in a
partnership; or
(b) a person (except a Minister of the Commonwealth,
a State or a Territory) who makes, or participates in
making, decisions that affect the whole, or a
substantial part, of a business or undertaking of the
Commonwealth, a State or a Territory; or
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(c) a person (except an elected member of a local
government authority) who makes, or participates
in making, decisions that affect the whole, or a
substantial part, of the business or undertaking of:
(i) a body corporate that is established for a
public purpose by or under a law of the
Commonwealth, a State or a Territory and that
is not prescribed by the regulations as a body
to which this subparagraph does not apply; or
(ii) a body corporate that is, or is taken to be,
incorporated under the Corporations Act 2001
of the Commonwealth, that is controlled by
the Commonwealth, a State or a Territory and
that is not prescribed by the regulations as a
body to which this subparagraph does not
apply; or
(iii) a body corporate prescribed by the regulations
as a body to which this subparagraph applies.
4 Section 6 of the Marine Safety (Domestic
Commercial Vessel) National Law
Insert:
volunteer association means a group of volunteers
working together for one or more community purposes
where none of the volunteers, whether alone or jointly
with any other volunteers in the group, employs any
person to carry out work for the group.
5 Section 6 of the Marine Safety (Domestic
Commercial Vessel) National Law
Insert:
worker: see section 8A.
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6 After section 6 of the Marine Safety (Domestic
Commercial Vessel) National Law
Insert:
6A Definition of conduct a business or undertaking
(1) For the purposes of this Law, a person conducts a
business or undertaking:
(a) whether the person conducts the business or
undertaking alone or with others; and
(b) whether or not the business or undertaking is
conducted for profit or gain.
(2) A person does not conduct a business or undertaking to
the extent that the person is engaged solely as a worker
in, or as an officer of, that business or undertaking.
(3) An elected member of a local government authority does
not in that capacity conduct a business or undertaking.
(4) The regulations may specify the circumstances in which a
person may be taken not to be a person who conducts a
business or undertaking for the purposes of this Law or
any provision of this Law.
(5) A volunteer association does not conduct a business or
undertaking for the purposes of this Law.
7 At the end of Part 1 of the Marine Safety (Domestic
Commercial Vessel) National Law
Add:
8A Definition of worker
(1) A person is a worker for the purposes of this Law if the
person carries out work in any capacity for a person
conducting a business or undertaking, including work as:
(a) an employee; or
(b) a contractor or subcontractor; or
(c) an employee of a contractor or subcontractor; or
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(d) an employee of a labour hire company who has
been assigned to work in the person's business or
undertaking; or
(e) an outworker; or
(f) an apprentice or trainee; or
(g) a student gaining work experience; or
(h) a volunteer; or
(i) a person of a class prescribed by the regulations.
(2) The person conducting the business or undertaking is also
a worker for the purposes of this Law if the person is an
individual who carries out work in that business or
undertaking.
(3) Each of the following persons is also a worker for the
purposes of this Law:
(a) a member (however described) of a police force of
the Commonwealth, a State or a Territory;
(b) a member of the Australian Defence Force;
(c) a person who holds or is acting in an office
established by a law of the Commonwealth, a State
or a Territory;
(d) a person who constitutes, or is acting as the person
constituting, a public authority;
(e) a person who is, or is acting as, a member or deputy
member of a public authority;
(f) a person who is, or is acting as, a member or a
deputy member of a body that:
(i) is established by or under a law of the
Commonwealth, a State or a Territory
establishing a public authority; and
(ii) is established for a purpose associated with the
performance of the functions of the public
authority;
(g) a person of a class specified in an instrument under
subsection (4).
(4) The National Regulator may by legislative instrument
specify a class of persons for the purposes of
subsection (3)(g) only if persons of that class engage in
activities or perform acts:
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(a) at the request or direction of the Commonwealth, a
State, a Territory or a public authority; or
(b) for the benefit of the Commonwealth, a State, a
Territory or a public authority; or
(c) under a law of the Commonwealth, a State or a
Territory.
8 Section 13 of the Marine Safety (Domestic
Commercial Vessel) National Law
Repeal the section, substitute:
13 Offences relating to contraventions of section 12
(1) A person commits an offence if:
(a) the person does an act, or omits to do an act,
without reasonable excuse; and
(b) the act or omission contravenes section 12(1); and
(c) the act or omission exposes an individual to a risk
of death or serious injury or illness; and
(d) the person is reckless as to the risk to an individual
of death or serious injury or illness.
Penalty:
(a) if the offence is committed by an individual (other
than as a person conducting a business or
undertaking or as an officer of a person conducting
a business or undertaking)--$300,000 or 5 years
imprisonment, or both; or
(b) if the offence is committed by an individual as a
person conducting a business or undertaking or as
an officer of a person conducting a business or
undertaking--$600,000 or 5 years imprisonment, or
both; or
(c) if the offence is committed by a body corporate--
$3,000,000.
(2) The prosecution bears the burden of proving that the
person did not have a reasonable excuse for the act or
omission.
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(3) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 12(1); and
(c) the act or omission exposes an individual to a risk
of death or serious injury or illness.
Penalty:
(a) if the offence is committed by an individual (other
than as a person conducting a business or
undertaking or as an officer of a person conducting
a business or undertaking)--$150,000; or
(b) if the offence is committed by an individual as a
person conducting a business or undertaking or as
an officer of a person conducting a business or
undertaking--$300,000; or
(c) if the offence is committed by a body corporate--
$1,500,000.
(4) Strict liability applies to paragraph (3)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 12(1).
Penalty:
(a) if the offence is committed by an individual (other
than as a person conducting a business or
undertaking or as an officer of a person conducting
a business or undertaking)--$50,000; or
(b) if the offence is committed by an individual as a
person conducting a business or undertaking or as
an officer of a person conducting a business or
undertaking--$100,000; or
(c) if the offence is committed by a body corporate--
$500,000.
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9 Section 15 of the Marine Safety (Domestic
Commercial Vessel) National Law
Repeal the section, substitute:
15 Offences relating to contraventions of section 14
(1) A person commits an offence if:
(a) the person does an act, or omits to do an act,
without reasonable excuse; and
(b) the act or omission contravenes section 14; and
(c) the act or omission exposes an individual to a risk
of death or serious injury or illness; and
(d) the person is reckless as to the risk to an individual
of death or serious injury or illness.
Penalty:
(a) if the offence is committed by an individual (other
than as a person conducting a business or
undertaking or as an officer of a person conducting
a business or undertaking)--$300,000 or 5 years
imprisonment, or both; or
(b) if the offence is committed by an individual as a
person conducting a business or undertaking or as
an officer of a person conducting a business or
undertaking--$600,000 or 5 years imprisonment, or
both; or
(c) if the offence is committed by a body corporate--
$3,000,000.
(2) The prosecution bears the burden of proving that the
person did not have a reasonable excuse for the act or
omission.
(3) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 14; and
(c) the act or omission exposes an individual to a risk
of death or serious injury or illness.
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Penalty:
(a) if the offence is committed by an individual (other
than as a person conducting a business or
undertaking or as an officer of a person conducting
a business or undertaking)--$150,000; or
(b) if the offence is committed by an individual as a
person conducting a business or undertaking or as
an officer of a person conducting a business or
undertaking--$300,000; or
(c) if the offence is committed by a body corporate--
$1,500,000.
(4) Strict liability applies to paragraph (3)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 14.
Penalty:
(a) if the offence is committed by an individual (other
than as a person conducting a business or
undertaking or as an officer of a person conducting
a business or undertaking)--$50,000; or
(b) if the offence is committed by an individual as a
person conducting a business or undertaking or as
an officer of a person conducting a business or
undertaking--$100,000; or
(c) if the offence is committed by a body corporate--
$500,000.
10 Section 18 of the Marine Safety (Domestic
Commercial Vessel) National Law
Repeal the section, substitute:
18 Offences relating to contraventions of section 16 or 17
(1) A person commits an offence if:
(a) the person does an act, or omits to do an act,
without reasonable excuse; and
(b) the act or omission contravenes section 16(1) or
17(1) or (2); and
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(c) the act or omission exposes an individual to a risk
of death or serious injury or illness; and
(d) the person is reckless as to the risk to an individual
of death or serious injury or illness.
Penalty:
(a) if the offence is committed by an individual (other
than as a person conducting a business or
undertaking or as an officer of a person conducting
a business or undertaking)--$300,000 or 5 years
imprisonment, or both; or
(b) if the offence is committed by an individual as a
person conducting a business or undertaking or as
an officer of a person conducting a business or
undertaking--$600,000 or 5 years imprisonment, or
both; or
(c) if the offence is committed by a body corporate--
$3,000,000.
(2) The prosecution bears the burden of proving that the
person did not have a reasonable excuse for the act or
omission.
(3) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 16(1) or
17(1) or (2); and
(c) the act or omission exposes an individual to a risk
of death or serious injury or illness.
Penalty:
(a) if the offence is committed by an individual (other
than as a person conducting a business or
undertaking or as an officer of a person conducting
a business or undertaking)--$150,000; or
(b) if the offence is committed by an individual as a
person conducting a business or undertaking or as
an officer of a person conducting a business or
undertaking--$300,000; or
(c) if the offence is committed by a body corporate--
$1,500,000.
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(4) Strict liability applies to paragraph (3)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 16(1) or
17(1) or (2).
Penalty:
(a) if the offence is committed by an individual (other
than as a person conducting a business or
undertaking or as an officer of a person conducting
a business or undertaking)--$50,000; or
(b) if the offence is committed by an individual as a
person conducting a business or undertaking or as
an officer of a person conducting a business or
undertaking--$100,000; or
(c) if the offence is committed by a body corporate--
$500,000.
11 Section 20 of the Marine Safety (Domestic
Commercial Vessel) National Law
Repeal the section, substitute:
20 Offences relating to contraventions of section 19
(1) A person commits an offence if:
(a) the person does an act, or omits to do an act,
without reasonable excuse; and
(b) the act or omission contravenes section 19(1), (2)
or (3); and
(c) the act or omission exposes an individual to a risk
of death or serious injury or illness; and
(d) the person is reckless as to the risk to an individual
of death or serious injury or illness.
Penalty:
(a) if the offence is committed by an individual (other
than as a person conducting a business or
undertaking or as an officer of a person conducting
a business or undertaking)--$300,000 or 5 years
imprisonment, or both; or
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(b) if the offence is committed by an individual as a
person conducting a business or undertaking or as
an officer of a person conducting a business or
undertaking--$600,000 or 5 years imprisonment, or
both.
(2) The prosecution bears the burden of proving that the
person did not have a reasonable excuse for the act or
omission.
(3) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 19(1), (2)
or (3); and
(c) the act or omission exposes an individual to a risk
of death or serious injury or illness.
Penalty:
(a) if the offence is committed by an individual (other
than as a person conducting a business or
undertaking or as an officer of a person conducting
a business or undertaking)--$150,000; or
(b) if the offence is committed by an individual as a
person conducting a business or undertaking or as
an officer of a person conducting a business or
undertaking--$300,000.
(4) Strict liability applies to paragraph (3)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) A person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes section 19(1), (2)
or (3).
Penalty:
(a) if the offence is committed by an individual (other
than as a person conducting a business or
undertaking or as an officer of a person conducting
a business or undertaking)--$50,000; or
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(b) if the offence is committed by an individual as a
person conducting a business or undertaking or as
an officer of a person conducting a business or
undertaking--$100,000.
12 Section 161 of the Marine Safety (Domestic
Commercial Vessel) National Law
Repeal the section, substitute:
161 Offences relating to contraventions of conditions by
accredited persons
(1) An accredited person commits an offence if:
(a) the person does an act, or omits to do an act,
without reasonable excuse; and
(b) the act or omission contravenes a condition
prescribed by the regulations for the purposes of
this paragraph; and
(c) the act or omission exposes an individual to a risk
of death or serious injury or illness; and
(d) the person is reckless as to the risk to an individual
of death or serious injury or illness.
Penalty:
(a) if the offence is committed by an individual (other
than as a person conducting a business or
undertaking or as an officer of a person conducting
a business or undertaking)--$300,000 or 5 years
imprisonment, or both; or
(b) if the offence is committed by an individual as a
person conducting a business or undertaking or as
an officer of a person conducting a business or
undertaking--$600,000 or 5 years imprisonment, or
both; or
(c) if the offence is committed by a body corporate--
$3,000,000.
(2) The prosecution bears the burden of proving that the
person did not have a reasonable excuse for the act or
omission.
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(3) An accredited person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes a condition
prescribed by the regulations for the purposes of
this paragraph; and
(c) the act or omission exposes an individual to a risk
of death or serious injury or illness.
Penalty:
(a) if the offence is committed by an individual (other
than as a person conducting a business or
undertaking or as an officer of a person conducting
a business or undertaking)--$150,000; or
(b) if the offence is committed by an individual as a
person conducting a business or undertaking or as
an officer of a person conducting a business or
undertaking--$300,000; or
(c) if the offence is committed by a body corporate--
$1,500,000.
(4) Strict liability applies to paragraph (3)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) An accredited person commits an offence if:
(a) the person does an act or omits to do an act; and
(b) the act or omission contravenes a condition
prescribed by the regulations for the purposes of
this paragraph.
Penalty:
(a) if the offence is committed by an individual (other
than as a person conducting a business or
undertaking or as an officer of a person conducting
a business or undertaking)--$50,000; or
(b) if the offence is committed by an individual as a
person conducting a business or undertaking or as
an officer of a person conducting a business or
undertaking--$100,000; or
(c) if the offence is committed by a body corporate--
$500,000.
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13 Application of amendments made by this Schedule
The amendments of Part 3 of the Marine Safety (Domestic
Commercial Vessel) National Law made by this Schedule
apply in relation to acts and omissions occurring on or after
the commencement of this Schedule.
[Minister's second reading speech made in--
House of Representatives on 24 May 2012
Senate on 20 June 2012]
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ANNEXURE 3
Amendments to be made to the Marine Safety
(Domestic Commercial Vessel) National Law Act
2012 of the Commonwealth
Marine Safety (Domestic Commercial Vessel)
National Law Amendments Act 2013 of the
Commonwealth
Explanatory Memorandum
MARINE SAFETY (DOMESTIC COMMERCIAL
VESSEL) NATIONAL LAW AMENDMENTS BILL 2013
OUTLINE
The purpose of the Bill is to amend the Marine Safety (Domestic
Commercial Vessel) National Law Act 2012 to ensure that the
Australian Maritime Safety Authority (AMSA) as the National
Marine Safety Regulator (the National Regulator) is able to
reimburse to the states and Northern Territory amounts collected
for infringement notices.
FINANCIAL IMPACT STATEMENT
The proposed amendments do not place any additional financial
burden on the domestic commercial vessel industry.
REGULATION IMPACT STATEMENT
The proposed amendments do not place any additional
regulatory burden on the domestic commercial vessel industry.
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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
Amendment Bill 2013
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/Legislative Instrument
The purpose of the Bill is to amend the Marine Safety (Domestic
Commercial Vessel) National Law Act 2012 (the Act) to ensure
that the Australian Maritime Safety Authority (AMSA) as the
National Marine Safety Regulator (the National Regulator) is
able to reimburse to the states and Northern Territory amounts
collected for infringement notices.
Human rights implications
This Bill does not engage any of the applicable rights or
freedoms.
Conclusion
This Bill is compatible with human rights as it does not raise
any human rights issues.
Minister for Infrastructure and Transport,
the Honourable Anthony Albanese, MP
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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 Amendment Act 2013 (the Act).
Clause 2: Commencement
This clause sets out when provisions in the Act will commence.
Sections 1 to 3 and anything else in the Act not elsewhere
covered by this table will commence on Royal Assent.
Schedule 1 will commence on the later of Royal Assent, and
immediately after section 3 of the Marine Safety (Domestic
Commercial Vessel) National Law Act 2012.
The intention of the commencement is for the proposed
amendments in the Bill to commence at the same time as the
Marine Safety (Domestic Commercial Vessel) National Law Act
2012 (the National Law Act) to ensure that the infringement
notice framework operates in the way it was originally intended.
Clause 3: Schedule(s)
This clause provides that the National Law Act is amended as
specified and set out in Schedule 1 to the Act.
SCHEDULE 1 - TECHNICAL AMENDMENTS
Item 1 -
Subsection 138(1) of Schedule 1 of the National Law Act will
be amended to substitute the reference to the "Commonwealth"
with "National Regulator". The proposed amendment will allow
for regulations to be made under section 138 of the National
Law Act to enable an alleged offender to pay a penalty to the
National Regulator as an alternative to prosecution.
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Item 2 -
Subsection 162(3) of Schedule 1 of the National Law Act will
be amended to substitute the reference to the "Commonwealth"
with "National Regulator". The proposed amendment will allow
for regulations to be made under section 162 of the National
Law to enable a person who is alleged to have contravened a
provision of the regulations to pay a civil penalty to the National
Regulation as an alternative to proceedings for a civil penalty.
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Marine Safety (Domestic Commercial
Vessel) National Law Amendment
Act 2013
Contents
1 Short title 386
2 Commencement 386
3 Schedule(s) 387
Schedule 1--Technical amendments 388
Marine Safety (Domestic Commercial Vessel) National Law
Act 2012 388
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Marine Safety (Domestic Commercial
Vessel) National Law Amendment
Act 2012
No. 9, 2013
An Act to amend the Marine Safety (Domestic
Commercial Vessel) National Law Act 2012,
and for related purposes
[Assented to 14 March 2013]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Marine Safety (Domestic
Commercial Vessel) National Law Amendment Act 2013.
2 Commencement
(1) Each provision of this Act specified in column 1 of the
table commences, or is taken to have commenced, in
accordance with column 2 of the table. Any other
statement in column 2 has effect according to its terms.
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Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
1. Sections 1 The day this Act receives the Royal 14 March
to 3 and Assent. 2013
anything in
this Act not
elsewhere
covered by
this table
2. Schedule 1 The later of: 1 July 2013
(a) the start of the day this Act receives (paragraph (b)
the Royal Assent; and applies)
(b) immediately after the
commencement of section 3 of the
Marine Safety (Domestic
Commercial Vessel) National Law
Act 2012.
Note: This table relates only to the provisions of this Act as
originally enacted. It will not be amended to deal with any
later amendments of this Act.
(2) Any information in column 3 of the table is not part of
this Act. Information may be inserted in this column, or
information in it may be edited, in any published version
of this Act.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is
amended or repealed as set out in the applicable items in
the Schedule concerned, and any other item in a Schedule
to this Act has effect according to its terms.
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Schedule 1--Technical amendments
Marine Safety (Domestic Commercial Vessel)
National Law Act 2012
1 Subsection 138(1) of Schedule 1
Omit "Commonwealth", substitute "National Regulator".
2 Subsection 162(3) of Schedule 1
Omit "Commonwealth", substitute "National Regulator".
[Minister's second reading speech made in--
House of Representatives on 6 February 2013
Senate on 28 February 2013]
By Authority. Government Printer for the State of Victoria.
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