4.1
This chapter considers the work undertaken by AMSA in response to recommendations from the Western Australian Police Force (WA Police) to prosecute the master of the vessel, Ten-Sixty-Six. It also focuses on the decision‑making process within AMSA not to proceed with a brief of evidence for possible prosecutorial action, following the death of Mr Damien Mills.
4.2
This chapter also considers investigations into Dolphin Dive Centre Fremantle (DDCF) vessels, operations certificates and safety equipment. It traces the efforts of the WA Department of Transport (DoT) to hold the owner and operator to account under the National Law.
Western Australia Police investigation into the death of Mr Mills
4.3
On 21 March 2019, WA Police appeared before the committee in Perth. Senior Constable Bret Brandhoff, Intelligence Division, gave evidence that, at the time of Mr Mills' death, AMSA had no investigators in Western Australia. He explained that it was through necessity that the WA Water Police took on the role of investigating the death of Mr Mills as marine safety inspectors (MSIs) under the National Law.
4.4
Senior Constable Brandhoff indicated that the most appropriate legislation under which to deal with the matter was in the marine environment. It was the view of WA Police at the time that there was 'no other state or criminal offences that we thought were relevant'. Inspector Andrew Henderson, Emergency Management and Maritime Branch, further noted that the possibility of manslaughter charges would have been considered through the coroner's process.
4.5
At the start of the police investigation at the time of Mr Mill’s death, Senior Constable Brandhoff spoke with AMSA to get an understanding of breaches and offences under the National Law that could apply in the case of the death of Mr Mills. On the basis of advice provided by AMSA, Senior Constable Brandhoff wrote the WA Police report with recommendations that the master of the vessel, Ten-Sixty-Six, be charged under the National Law for failing to comply with the vessel safety management system (SMS) with regard to vessel induction and headcounts.
Possible charges
4.6
Section 16(1) of Schedule 1 of the National Law, in relation to general safety duties relating to DCVs, and in particular the duty of masters of DCVs, provides that:
The master of a domestic commercial vessel must, so far as reasonably practicable, ensure the safety of:
(b)
marine safety equipment that relates to the vessel; and
(c)
the operation of the vessel.
4.7
On 12 February 2015, the WA Police submitted its report to AMSA. The report recommended two charges against the master of the Ten-Sixty-Six, for breaches of the general safety duties under section 16(1). The first charge related to a failure to comply with the master's responsibilities and induction requirements as outlined in the SMS. The second related to a failure to implement the SMS by not conducting a count of the passengers disembarking at the conclusion of the charter.
4.8
In relation to the first charge, Senior Constable Brandhoff explained the basis of the recommendation:
Under the national law, they're required to have a safety management system on the boat. That is a document which outlines the operation, safety requirements, a number of things under the act that they have to address. One of the things in his safety management system was headcounts. Under the section relating to headcounts in the safety management system, it had words to the effect that passengers will be counted on and off. From the evidence of passengers and all different accounts I was satisfied that there was no headcount at the end of the journey. The fact that one was not conducted breached the safety management system; therefore, a charge under section 12 of the national law, that a breach of the safety management system occurred for the headcounts.
4.9
Senior Constable Brandhoff further explained the basis for the second charge in relation to crew induction:
Under the safety management system…he was required to do an induction with the crew members that were going to be working on the boat, record the induction, have the induction signed off and the document on the boat. That wasn't there and the induction wasn't done. Again, my reasoning for that was that maybe if an induction was done and the roles and responsibilities explained clearly to the crew, to look after the passengers, maybe he may have spent more time out on the back of the boat looking after passengers in his role, rather than not doing that.
4.10
Senior Constable Brandhoff informed the committee that after submitting the report to the safety authority, he received an initial acknowledgment from AMSA. However, there was no follow-up or discussions on the content of the report and its recommendations thereafter.
4.11
During the period February to August 2015, AMSA advised that it reviewed the report from WA Police, including its recommendation that charges be considered.
AMSA response to WA Police regarding headcount requirements
4.12
AMSA indicated to the committee that under the National Law, the obligation is on the master to follow the vessel's SMS. Ms Clare East, as AMSA’s Acting General Manager, Standards, explained that:
The obligation on the master is to implement and comply with the safety management system so far as reasonably practicable. The safety management system, among other things, set out the requirement to undertake a headcount, and that was the basis of the WA police recommendation.
4.13
As noted in Chapter 3, AMSA confirmed that it had informed the WA Coroner on 2 June 2017 that there was a requirement under law to complete a head count.
4.14
In addition, the Coroner noted that the SMS on the Ten-Sixty-Six set out that passengers 'will always be counted on and off the vessel and the numbers recorded in the vessel's logbook'. While the master of the vessel, Mr Lippiatt, agreed that the accepted procedure was to count passengers on and off the vessel and to record passenger numbers, in accordance with the SMS, there was 'no set procedure as to how those headcounts were to be conducted'.
4.15
Following receipt of the WA Police report in February 2015, AMSA consulted the Commonwealth Director of Public Prosecutions (CDPP) in August of that year. Mr Kinley indicated to the committee that, at that time, the CDPP raised concerns that there was:
…no conclusive evidence that Mr Mills actually fell overboard and no conclusive evidence as to whether or not the operator conducted a headcount of passengers on disembarkation, which is required by the safety management system but not specifically under the national law.
4.16
The SMS required that headcounts be recorded in the vessel's logbook. However, according to AMSA, the master stated that he had conducted three headcounts, two of which were not recorded because the number had not changed. According to Mr Kinley, while such action did not meet the requirements of the SMS, and demonstrated 'complacency', AMSA was not able to prove beyond reasonable doubt that such actions led to general safety duties being breached. Mr Kinley continued:
The master of the vessel was adamant that he had maintained the head counts and actually did that in his head. He counted passengers. He had been very experienced and he did this regularly and that was how he did it. So for us to be prove beyond reasonable doubt to a level of criminal evidence that those actions led to an unsafe vessel, it was thought to be not worth it; the chances of a successful prosecution were not high enough to warrant proceeding.
4.17
The CDPP advised AMSA that, on the basis of the evidence 'to hand', it could not be proven beyond a reasonable doubt that the master had committed any offence under the National Law. Mr Kinley indicated that AMSA accepted that advice 'because there was no evidence that would counter the master's claim that he had conducted the required headcounts'. Furthermore, according to Mr Kinley, the induction issue was 'not significant in the circumstances'. AMSA had concluded that:
Primarily, the evidence supplied in relation to head counts to AMSA by the WA Police, then to the coroner for the inquest into the death of
Mr Mills, did not support, beyond a reasonable doubt, the conclusion that a head count wasn't conducted as required in the SMS. The master maintained that he did conduct the required headcounts, while the statements of other persons on the Ten‑Sixty-Six provided by WA Police are inconclusive in this regard.
4.18
AMSA acknowledged that one of the primary difficulties it faced in assessing the evidence in relation to the allegation that a headcount was not conducted was that there was 'no identified procedure for conducting a headcount listed in the SMS for the operation'.
4.19
As noted in Chapter 3 of this report, the National Law does not provide a specific, preferred method of head counting or any requirement to describe a particular method of head counting. AMSA's evidence regarding its assessment of the offence is significant in this regard:
As a result, it was not possible to prove the master had not done a head count as that process could be undertaken without being obvious to an observer. In addition, there was no specific offence for undertaking an incorrect head count.
If investigators can prove the required action or omission, then the degree of fault of the master becomes relevant. The WA Police report did not make any recommendation as to the level of fault they had found or the evidence specific to the fault element they sought to prove.
4.20
Section 18(1)(c) of the National Law provides that a person commits an offence if the person intends the act or omission to be a risk to the safety of a person or the DCV concerned. The penalty for this contravention includes two years imprisonment.
4.21
AMSA noted that even if it could have proven beyond reasonable doubt that the master failed to conduct a headcount, the fundamental element missing from the offence provision under section 18(1)(c) was intent—that is, that the master omitted to conduct a headcount with the intent of causing a risk of a passenger going overboard. Mr Clinton McKenzie, AMSA General Counsel, explained how the intent provision would have to apply:
...that he (Mr Lippiatt) intended, by failing to conduct the headcount, to create the risk that a passenger would go overboard unnoticed at the time or at the completion of the voyage. There was no evidence to that standard…
AMSA response to WA Police recommendation regarding crew induction
4.22
Despite the crew induction requirements contained in the Ten-Sixty-Six SMS, the WA Police report provided evidence that the crew member on board on the day of Mr Mills' death hadn't been appropriately inducted onto the vessel. AMSA acknowledged that there was also evidence contained in the report that the deckhand had spent some time incapacitated (possibly sea sick) because of the conditions on the voyage. It should be noted that the Coroner's report indicated that the deckhand had spent most of the first part of the return journey from Rottnest Island in the wheelhouse talking to the skipper.
4.23
AMSA noted that its Compliance and Enforcement Policy and associated National Law Protocol that applied at the time of Mr Mills' death 'did not support prosecution for such an alleged breach'. The Protocol stated that 'prosecution would be undertaken for the most serious breaches of the National Law'.
4.24
AMSA also suggested that the WA Police report had not provided evidence that the master intended to, by failing to induct a crew member, put the safety of a person or the DCV at risk. Further, it noted that no evidence was provided to it to support the conclusion that the master was reckless or negligent in failing to conduct a head count and failing to induct a crew member. AMSA continued:
Had these charges been prosecuted without proof of fault, the maximum penalty possible on conviction would have been a fine of $10,200.
AMSA accepts that we could have issued the master with an infringement notice relating to the allegation that he failed to induct the crew member with an associated fine of $2040.
CDPP brief of evidence
4.25
AMSA concluded in its submission, dated March 2019, that the recommendations made by the police did not support and/or warrant prosecution of the master of the Ten‑Sixty-Six.
4.26
However, at a public hearing on 25 September 2019, Mr Stuart Richey, Chairman of AMSA, announced that:
AMSA has...provided the brief of evidence to the Commonwealth Director of Public Prosecutions and is continuing to work with the CDPP.
4.27
Mr Kinley, when queried about the time line for the investigation, noted that the relevant information was with the CDPP and that, as of 25 September, they were filling in the gaps that would ‘allow them to make a decision on whether or not they can prosecute'.
4.28
On 2 December 2019 the committee wrote to AMSA seeking an update on any progress in relation to the brief of evidence provided to the CDPP. AMSA responded on 5 December 2019, informing the committee of the following developments:
An Australian Maritime Safety Authority (AMSA) investigator was in Perth between 27 October and 1 November 2019 to conduct investigations into the allegations raised against Dolphin Dive Centre Fremantle Pty Ltd and Mr Daniel Lippiatt.
As a result, additional material, including a statement of facts and a number of statements and exhibits were provided to the CDPP on 8 November 2019 for prosecution assessment.
AMSA has approached the CDPP for an update on the status of the case and is currently awaiting a response.
Committee view
4.29
The chapter has thus far traced the processes undertaken by the WA Police and AMSA to investigate the matters pertaining to the DDCF and the challenges in taking disciplinary action against the owner and operator of the DDCF. At the time, responsibilities and authority for investigation, compliance and enforcement were shared between three agencies under the IGA.
4.30
The committee notes that the report by the WA Police recommended that charges should be considered against the master of the vessel for breaches of general safety duty under section 16(1) of the National Law.
4.31
It is of particular concern to the committee that in order to prosecute the master of the vessel, it had to be proved beyond a reasonable doubt that a headcount had not taken place, but that if the headcount didn't take place, prosecution under the National Law requires evidence of intent to create a risk to a person on a DCV.
4.32
It is the view of the committee that this is a very high bar to reach, in order to take enforcement action against the operator of a vessel. The committee suggests that a more preferable approach is that the National Law allows for enforcement action to be taken against the operator of a vessel who acts in a reckless or negligent manner, regardless of intent.
4.33
In particular, the committee proposes that consideration be given to situations where a vessel operator has been found to be acting in a negligent manner, which has the potential to result in the loss of life. The committee therefore makes the following recommendation:
4.34
The committee recommends that amendments be made to the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (the National Law) in regards to the penalties imposed on an operator of a vessel for acting in a reckless or negligent manner, regardless of intent. In particular, the committee recommends that consideration should be given to situations where the operator of a vessel has been found to be acting in a negligent or reckless manner which has the potential to result in the loss of life.
Regular inspection and issue of direction notice – 2 November 2014
4.35
Along with the matters concerning the Ten-Sixty-Six, its SMS, and possible prosecutorial action, there were additional concerns identified regarding the safety of DDCF vessels more broadly. This led to ongoing dialogue between AMSA, and the WA DoT as the delegate, around the safety of the vessels and the need for proper enforcement action. The timeline of these events is detailed below.
Pia Rebecca and Takashi
4.36
On 2 November 2014, during a regular inspection of the Pia Rebecca (another vessel owned by Mr Lippiatt), DoT MSIs raised concerns about the fire suppression system in the hull of the vessel. Further inspection identified a number of issues with the fire suppression systems on three of the DDCF's vessels.
4.37
DoT undertook inquiries with WA Fire Protection regarding the validity and authenticity of the fire suppression inspection certificates on the vessels. At the same time, DoT also made inquiries with Survitec Group—RFD (Australia) which inspects life rafts and provides certificates to vessel owners. Survitec advised DoT verbally that the certificate numbers for the Pia Rebecca,
Ten-Sixty-Six and Takashi did not match their official records.
4.38
Two prohibition notices were subsequently issued to the DDCF by the DoT with the effect of:
prohibiting operation of the vessel until specified actions in relation to specific equipment had been carried out; and
prohibiting passenger access to the bow of the vessel and requiring minimisation of crew access and movement around the bow area of the vessel.
4.39
In light of the issues identified, and as the delegate of AMSA, DoT issued a temporary direction notice on 7 November 2014 which required DDCF to operate with an additional crew member on board all vessels with the specific task of monitoring passengers on board the vessel. The direction was in place for a period of 90 days.
4.40
AMSA indicated in its submission to the inquiry that it had 'no evidence as to whether this direction was complied with or whether the vessels continued to operate in accordance with the notice after the 90 day period'.
Suspension of the certificate of operation – 13 November 2014
4.41
DoT investigations continued and a number of discrepancies were identified in the logbooks, fire suppression inspection certificates and life raft inspection certificates of all three DDCF vessels.
4.42
Discrepancies in the logbook of the Ten-Sixty-Six were of particular importance to the investigators because of limitations on the number of passengers allowed on board for certain operations. Where excess passengers are found on board a vessel, a master may be in breach of the vessel's survey conditions.
Fire suppression systems and fire extinguishers
4.43
On 13 November 2014, following the acquisition of further information gathered by WA MSIs, DoT issued the DDCF with a Notice of Suspension of the Certificate of Operation. The operation certificate was suspended pursuant to section 52(1)(a) of the National Law, because of a number of safety problems that AMSA viewed as a serious risk to human life.
4.44
Inspectors alleged that the fire extinguishers were inoperable. Further, there was evidence to indicate that inspections had not taken place and that the certificates had been falsified. Under the National Law, it is a requirement that the fire suppression system is inspected and has a certificate.
4.45
The owner and operator of the DDCF was informed that the suspension could be lifted, and his operations allowed to restart, when all the systems and fire extinguishers were upgraded and new inspection certificates were provided.
Full investigation
4.46
On 20 November 2014, DoT deployed its MSIs to conduct a full investigation of the DDCF vessels, Ten-Sixty-Six, Pia Rebecca and Takashi. For this purpose, it used a surveyor employed by DoT, but who was operating as a delegate under the National Law. The investigation revealed a number of issues:
Ten-Sixty-Six – no compass adjustment card; no life raft certificate; and no fire extinguishers. The geographical location of at least one logbook entry had been altered (1 November 2014) between the time the investigation began (when a copy of the logbook was taken by DoT) and the time of this investigation.
Takashi – incorrect number of flares; no fire extinguishers on board; the annual inspection certificate for the firefighting system and the life raft inspection certificate appeared fraudulent.
Pia Rebecca – bilge high water alarm not operational (a skipper would not be aware the bilge was filling with water); no fire extinguishers; no legitimate certificate of annual inspection of the fixed firefighting system; life raft incorrectly mounted and may not float free if the vessel sinks. DoT also had concerns about the structural integrity of the vessel.
4.47
Vessels operated by DDCF had varying passenger number requirements depending on the area of operations. DoT identified a number of occasions where it believed the vessels had been involved in whale-watching operations that exceeded maximum passenger numbers. Such action could amount to a breach of the survey requirements on a vessel.
Issue of show cause notice – 3 December 2014
4.48
On 2 December 2014, DoT held discussions with AMSA and the WA Police. In light of ongoing concerns regarding systemic failings in the safe operation of the three vessels, the decision was made by DoT as the delegate, in consultation with AMSA, to issue a show cause notice as to why the DDCF's certificate of operation should not be permanently revoked pursuant to section 71(2) of the National Law (Show Cause Decision).
4.49
During discussions between DoT, AMSA and WA Police, it was also agreed that a direction notice would be issued under the National Law pursuant to section 109. Under the notice, the operator of the DDCF was directed to undertake a full out-of-water survey of all three vessels by 31 December 2014. DoT officials informed the committee that it had identified concerns with the structural integrity of the vessels.
Application for internal review of decision to suspend certificate of operation
4.50
The National Law provides a right to internal review by AMSA of 'specified decisions made under the National Law'. Those decisions include the suspension of the certificate of operation and the issue of the direction notice requiring out of water surveys.
4.51
On 12 December 2014, the DDCF, through its legal counsel, wrote to DoT to request that the show cause notice be revoked on the basis that the issues in the notice of suspension had already been resolved or were in the process of being resolved.
4.52
The DDCF also requested a review into the decision to suspend its certificate of operation on the basis that the decision-making process lacked natural justice and because it was not confirmed that the deceased had fallen off the Ten‑Sixty‑Six. The DDCF further argued that the direction notice to have the out‑of-water survey was excessive and not required as the vessels in question had not been involved in a marine incident.
4.53
The suspension notice and direction notice were administrative decisions which were recognised as reviewable under section 139 of the National Law. Mr Lippiatt requested a review, and AMSA indicated to DoT that it would undertake the internal review accordingly. Thereafter, according to Mr Christopher Mather, Director of DoT Waterways Safety Management:
We then spent considerable time and effort providing all the information that we had collected––that includes all the copies of logbooks, the certificates of fire suppression systems, the certificates of life rafts, and prior to that––to AMSA as part of our reasoning for our administrative decisions, and then that review process went on.
4.54
On 22 December 2014, DoT was informed that there was an emergency injunction sought by DDCF to have the show cause notice and the direction notice lifted. On 24 December 2014, the urgent application was heard in the Federal Court. Mr Mather explained the court proceedings:
The outcome of that hearing was that Justice McKerracher stated that it would be difficult to argue the case that the administrative decisions taken by AMSA or their delegate were invalid. However, given he believed there was no immediate threat to life with the condition imposed—and the condition he imposed was that Mr Lippiatt had to record on his log books the most westerly point of the voyage, as in degrees, minutes and seconds, to determine that he was staying within the appropriate water—he put a stay on that decision and thought a full hearing was appropriate. That hearing was scheduled for 10 and 11 February 2015. In effect that allowed Mr Lippiatt to recommence operating his vessels.
4.55
Newspaper reports indicated that DDCF's counsel, Ms Karen Vernon, told the court that there had been no evidence to support AMSA's claim that the suspension of her client's operations was necessary for the protection of life. Ms Vernon argued that the suspension notice had not provided adequate details of claims that there were serious systemic deficiencies in the safety procedures aboard DDCF's vessels. Further:
Ms Vernon said it appeared that Mr Mills' death was the event that had sparked action by AMSA but that police investigations were continuing and there was no evidence that the fatality had been linked to the manner in which Dolphin Dive operated its business.
4.56
AMSA had alleged that logbooks indicated that DDCF's vessels had exceeded passenger number limits on a number of occasions. However, as DDCF's sole director, Mr Lippiatt gave evidence that all except one of the incidents had been based on a misinterpretation of the logbooks and errors in entries by staff.
4.57
Justice Neil McKerracher was persuaded that DDCF had an arguable case against the suspension as the company had provided evidence to explain allegations of overloading its vessels and that its operations would be monitored closely. He proposed granting some preliminary relief to DDCF to stay, on various conditions, the show cause and the direction decision until the issues could be 'more thoroughly ventilated with the benefit of further evidence and legal argument, at a hearing early in February next year'. On that basis, the suspension was stayed.
4.58
Mr Buchholz informed the committee that during the court proceedings reference was made to discrepancies identified by DoT which were categorised as administrative discrepancies. He suggested that instead:
What was lacking was the ability of someone to put to the Chief Justice that it wasn't just an administrative thing; these important systems were actually non-functional or not up to the required standard. In hindsight, had he been made aware that these weren't just administrative discrepancies but they were actually resulting in important systems not being functional, maybe he might have made a different decision. But that was never put to him.
Direction notice for out-of-water survey overturned – 24 December 2014
4.59
On the morning of the December court proceedings, DoT was informed by AMSA that it had completed a review of the direction notice for the out‑of‑water hull survey and had decided to overturn the decision.
4.60
According to AMSA, the decision was overturned because there was 'insufficient evidence' to indicate that the vessels were unsafe, or to justify their removal from the water for inspection. AMSA continued that:
…the vessels were well known to WADOT, which had certified that the vessels were fit for purpose prior to the incident in a recent periodic survey. The report stated that it would be most unusual that a vessel which had recently passed a periodic survey (performed by WADOT) to deteriorate in a manner which required an out of water survey, unless there had been some major trauma to the hull.
4.61
AMSA similarly noted that 'the effect of the Court's orders and the "overturning" of the direction requiring the out of water surveys was that DDCF was lawfully able to return to operations'.
4.62
AMSA further stated that the Federal Court's decision was 'an interim one' and was not a finding that the decisions under review were unlawful. In the Court's judgement it was also noted 'it is the peak usage time of the year for Dolphin Dive...Inability to operate poses a serious financial risk to the viability of the business and its employees'.
DDCF certificate of operation suspension lifted
4.63
Around 14 January 2015, WA MSIs inspected the Takashi and Ten-Sixty-Six, which were now operational, to ensure that they had the required safety equipment. On 23 January, MSIs inspected the Pia Rebecca and found that all the issues of concern had been addressed. All DDCF's vessels were now compliant. On the same day, a letter lifting the suspension was sent to the DoT.
4.64
The MSIs confirmed that the fire suppression systems and life rafts had been repaired and that the fire suppression certificates had been corrected. DoT sought advice from AMSA, as the DDCF had completed all of the requirements under the temporary suspension notice. On the advice of AMSA, DoT lifted the temporary suspension of the DDCF's certificate of operation.
Show cause notice withdrawn – 3 February 2015
4.65
The only administrative instrument still active by this time was the show cause notice. This required DDCF to provide statements to the delegate and to AMSA as to why its certificate of operation should not be withdrawn.
4.66
During discussions in January 2015 it was suggested by AMSA that DoT consider withdrawing the show cause notice, arguing that such action was 'not an effective use of public money'.
4.67
From 30 January to 3 February 2015, discussions between DoT and AMSA continued, as DoT still held significant concerns about the operator's ability to run the business safely and legally. DoT also voiced their concerns that DDCF would not continue to maintain these recently achieved standards in the long term. The DoT continued to raise concerns that these factors could impact on the safety of the community and indicated that it would only withdraw the show cause notice if directed to do so by AMSA as the regulator. Mr Mather of the DoT stated:
The requirement of that show cause notice was for Mr Lippiatt to provide to the delegate and to AMSA statements as to why he should be able to retain his certificate of operation. We did not believe that this was an onerous requirement to provide some confidence to DoT, as the delegate, that he could operate effectively under a certificate of operation in conducting a commercial charter business.
4.68
AMSA, however, recommended that the process be discontinued, despite the serious concerns about DDCF's operations still held by the DoT. Thereafter, a 'robust telephone conversation' took place between the two agencies as explained by Mr Mather:
The robust telephone conversation was around the fact that we believed there were systemic failings in the operation by Mr Lippiatt of this business that raised significant concerns around his ability to operate a business safely and, then, around the impact on the safety of the community. We had found a number of concerns, which, yes, he had repaired and fixed, but based on the evidence before us we still had serious doubts that he would continue to operate legally. I clearly articulated that to Mr Brightman [at AMSA], and we had a robust but polite conversation. At the end of that I said, 'As delegates, we are not prepared to withdraw that show cause notice unless we are directly instructed to do so by AMSA as the regulator’.
4.69
As a follow up to this conversation, AMSA emailed DoT noting that 'it is AMSA's view that a show cause notice itself is not a decision, so continuation of this matter currently before the Federal Court may be a waste of time for all concerned, not to mention the unnecessary costs incurred by AMSA'.
4.70
AMSA held the view that the DDCF had taken the necessary steps to rectify the deficiencies with regard to the fire suppression systems, logbook processes and life rafts. It did acknowledge, however, that it had 'considerable concern' about the practical effect of the operator's SMS, including the crew's capacity to prevent or respond to an incident. On the basis of these concerns, AMSA offered to send an auditor to conduct an audit of the DDCF's SMS. However, DoT declined the SMS audit process and suggested that the 'money and efforts may be better focused on transferring it through to an investigation report and possible prosecution'.
4.71
At the request of AMSA, DoT formally withdrew the show cause notice on 3 February 2015.
Internal review report of decision to suspend DDCF's certificate of operation
4.72
On 17 February 2015, AMSA completed its internal review of DoT's decision to suspend the DDCF's certificate of operation on 13 December 2014.
4.73
This was the first administrative decision that DoT had put forward with AMSA's assistance and was subject to internal review upon Mr Lippiatt's request. Mr Mather informed the committee that the outcome of the review was to 'overturn that decision, noting the suspension had already been lifted'.
DoT report to AMSA – 21 December 2014 – 29 May 2015
4.74
Around 21 December 2014, DoT provided AMSA with a summary report. The report suggested that the master/owner may have failed to comply with the general safety duties set out in sections 12, 16 and 17 of the National Law and may have breached a condition on a certificate of survey under sections 45 and 46 of the National Law.
4.75
DoT completed its investigation report and provided it to AMSA on 22 May 2015 to progress any potential prosecution. DoT officials informed the committee that it had completed 95 per cent of the work that was required for a brief of evidence to go to the CDPP. The report recommended that a number of offences be considered, specifically offences relating to general safety duties and breaches of a condition on a certificate of survey.
4.76
From February to August 2015, AMSA reviewed the respective reports of the WA Police (discussed earlier in this chapter) and the DoT. Both reports recommended that charges be considered against the master of the vessels for breach of general safety duties.
4.77
In relation to the general safety duty, DoT had recommended that:
the owner intentionally, by falsifying the records, put at risk the safety of a person or the domestic commercial vessel (DCV) concerned; and
the owner breached a condition on the certificates of survey held by the DDCF, by operating, or causing or permitting the vessels to be operated with too many passengers for certain prescribed waters; and
the master intentionally, by operating with safety equipment that was unserviceable, put at risk the safety of a person or the DCV concerned; or
as an alternative, that AMSA consider multiple counts of the strict liability offences associated with the breach of duties as the owner and master.
4.78
However, AMSA argued that no evidence was provided by DoT to indicate that the operator or master intended, by allegedly falsifying records or operating with 'unserviceable' safety equipment, to put the safety of persons or the DCV concerned at risk. Furthermore, there was no evidence provided, according to AMSA, that falsified certification directly led to a risk to safety. It suggested as an example that the firefighting systems and life raft may still have worked at the time that the documents were shown to the surveyors on the date that they were last surveyed by DoT.
4.79
Therefore, it was AMSA’s view that the:
…lack of evidence suggesting intent to do harm or being reckless or negligent in relation to general safety duty breaches left AMSA with the option of pursuing multiple counts of the strict liability offences, which carry a maximum penalty of $10,200 per offence and no jail time.
Investigation into alleged fraudulent certificates
4.80
In July and August 2015, AMSA sought further evidence regarding the DDCF's fire suppression certificates. According to AMSA, DoT had agreed to obtain statements from the marine surveyors who had investigated the three vessels on the elements of the alleged offences.
4.81
On 26 August 2015, DoT informed AMSA of further apparent fraudulent behaviour, relating to what appeared to be a false declaration made to clear a prohibition notice.
4.82
AMSA responded to this new information by stating that:
As AMSA was already considering possible offences under the Criminal Code Act 1995 (Cth) (Criminal Code Act) relating to the facts and matters raised by WADOT, AMSA chose to use this new information provided by WADOT to supplement existing evidence of the fraudulent behaviour.
Statute of limitations
4.83
On 27 August and 2 September 2015, AMSA and the CDPP discussed the DDCF matter. On 2 September 2015, AMSA commenced the production of a brief of evidence for alleged offences set out in the following sections of the Criminal Code Act 1995 (Criminal Code Act):
Section 145.1 – using a forged document related to certification for fire suppression and life rafts; and
Section 137.1 – for providing false and misleading information in relation to the clearance of the prohibition notice.
4.84
AMSA noted that the DoT had 'highlighted a litany of issues in relation to fraudulent behaviour' for which some offences carry a term of 10 years imprisonment. AMSA and the CDPP also considered an additional alleged offence of general dishonesty (section 135.1(1)).
4.85
However, the one year statute of limitations to bring a case before the CDPP to commence prosecutorial action was due to end on 31 October 2015. The limitation period applied to any National Law charges recommended by the DoT which were still under consideration. All of the National Law offences would have expired at 12 months, because none of them carried a jail penalty of over six months. However, the Criminal Code Act offences under consideration had no limitation of time due to the quantum of the possible penalty.
4.86
After further investigations between AMSA and DoT officials during September and October 2015, on 30 November 2015 AMSA again discussed the DDCF matter with the CDPP. The CDPP indicated that there were significant obstacles to completing a brief of evidence with a reasonable likelihood of successful prosecution. At that time, the CDPP 'expressed concerns about the matter in general including concerns that quality control across both WADOT and AMSA was poor'.
4.87
The CDPP thereafter provided AMSA with pre-brief advice specifically addressing matters relating to the Pia Rebecca and raising a number of issues with the evidence provided. AMSA then informed DoT on 22 February 2016 that it had decided not to complete the brief of evidence because 'pursuing charges was unlikely to be successful'.
4.88
At a public hearing on 1 April 2019, Mr Kinley indicated that AMSA 'will be seeking legislative amendments...to allow at least two years to commence proceedings rather than the one year now allowed under the Crimes Act for offences warranting less than six months imprisonment'.
4.89
Mr Kinley further suggested that offences under this Act be examined to consider whether they are adequate for matters involving a fatality. He further drew the committee's attention to the 'uncommenced amendments to the national law act that were intended to align the act with the health and safety laws with similar offences and penalties'.
Committee view
General safety duties
4.90
The committee acknowledges that AMSA has recently undertaken further investigations in the case against DDCF, and Mr Lippiatt, and have sought a prosecution assessment from the CDPP, to which they are awaiting a response. However, the long and drawn‑out process to get this far has been highly concerning to the committee, and has added to the ongoing distress endured by the Mills family.
4.91
Both the WA Police and the WA DoT concluded that the owner and operator of the Ten‑Sixty‑Six had breached the general safety duties, and recommended that charges be considered. These findings were put to AMSA shortly after the tragic death of Mr Mills. Yet, no charges resulting from a breach of the general safety duties have ever been made against Mr Lippiatt.
4.92
Further, the offences related to a breach of the general safety duties speak to offences that may unreasonably place the safety of another person at risk, but do not contemplate those circumstances where a breach may result in the loss of life.
4.93
It is therefore the view of the committee that the relevant provisions of the National Law should be amended to include a more serious offence and subsequent penalty in the case where a breach of the general safety duties could lead to a loss of life.
4.94
The committee recommends that general safety duties offences relating to domestic commercial vessels, contained with the Marine Safety (Domestic Commercial Vessel) National Law Act 2012, be augmented by a more serious offence and subsequent penalty in cases where a breach of the general safety duties leads to a loss of life.
Statute of limitations
4.95
The committee acknowledges the evidence given by Mr Kinley regarding the legislative amendments, to allow more time for prosecutorial action to commence. The committee supports AMSA taking this step, but points out that more prompt action on behalf of AMSA, and better engagement from it with other jurisdictions and the CDPP, may have diminished the necessity for such an amendment.
4.96
Having said that, the committee hopes that once implemented, this approach will enable AMSA to better enforce the National Law and take prosecutorial action against serious safety breaches which pose a threat to health and safety. In light of this, the committee lends its support to AMSA's proposed course of action and recommends that the National Law be amended to increase the time period for prosecution.
4.97
The committee recommends that the limitation period for bringing non‑custodial charges under the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (the National Law) be extended from 12 months to two years.
Findings and fallout between AMSA and DoT
4.98
During the committee's public hearing in Perth on 21 March 2019, DoT officials outlined for the committee the nature of the working relationship between DoT (as the AMSA delegate) and AMSA as the regulator. During the early stages when investigations were underway and initial administrative action was taken against DDCF, the relationship between the two agencies was cooperative. Mr Buchholz noted that AMSA was initially very supportive and encouraging, recognising the DDCF case as an opportunity to test the national system.
4.99
DoT noted that the first indication that there was a difference in understanding between the parties was when AMSA overturned its direction to order the out‑of-water hull surveys on 3 December 2014. Mr Buchholz explained to the committee:
We had no indication of what was occurring behind the scenes until just prior to going into the hearing on 24 December, when suddenly we heard that they [the direction to order out-of-water hull surveys] had been overturned.
4.100
Thereafter, there was a divergence in views between the two agencies. This coincided with a change in staffing at AMSA. This divergence came to a head when AMSA advised DoT to withdraw the show cause notice in January 2015. Mr Buchholz noted that the response from AMSA appeared to indicate to DoT that there would not be any possible support in the future if DoT refused to withdraw the show cause notice.
4.101
Mr Buchholz further explained the frustration experienced by DoT officials who had spent considerable time and effort in investigating the DDCF, only to have decisions overturned by AMSA. Thereafter, DoT advised AMSA that it would no longer issue any notices under the National Law because 'we had serious concerns about whether they would stand'. Mr Buchholz continued:
We then put all remaining effort into putting together our report, outlining, at the very least, the evidence we had against specific breaches. We also have a strategic relationship with AMSA. At that point there were discussions around how the national system is delivered and whether AMSA should be responsible for service delivery. There were lots of discussions going on. I don't recall exactly, from that point in time, whether a decision had been made that AMSA was going to be the sole provider of the service delivery. But, certainly, it influenced our relationship with them in terms of how we were going to approach future investigations, because we had put our necks on the line.
4.102
In light of the difficulties faced in conducting extensive investigations and acting as the AMSA delegate, DoT decided that it would not serve as a delegate for future investigations upon the expiration of its service agreement in July 2018. Mr Buchholz indicated that DoT made a deliberate decision not to enter into a Memorandum of Understanding with AMSA.
4.103
At a public hearing on 25 September 2019, Mr Kinley, however, rejected Mr Buchholz's evidence stating that 'it's not actually the case that Western Australia is no longer a delegate; they do have officers that remain as delegates under the national law'.
4.104
When further questioned on the number of delegates in Western Australia, Mr Kinley responded 'there are about three' as well as police officers and water police who are automatically included in the act [National Law] as having powers.
Internal review of AMSA
4.105
AMSA undertook an internal review into the handling of the DDCF investigation and made four recommendations. It informed DoT of its recommendations on 29 May 2015. The first recommendation was that there should be a single point of contact for legal advice between an AMSA liaison officer and each state, as:
AMSA noted that this was a key finding and that there was conflicting legal advice during the investigation.
4.106
In addition, AMSA had recommended that its CEO take no part in future investigations to allow them 'to undertake an independent review if there is a review application'. Thirdly, AMSA recommended that it prepare better guidance notes to delegates with regard to exercising suspension powers. The final recommendation was not discussed during the hearing.
4.107
In its submission, AMSA acknowledged that the National System transitional arrangements in place at the time of the events surrounding the DDCF were 'not working as they should', and stated that:
There were differences of opinion between AMSA and WADOT about the appropriate regulatory and administrative actions in response to technical and operational matters.
There was a disconnect between WA Police, WADOT (who were leading the investigations and gathering evidence) and AMSA who was pursuing the prosecution.
4.108
Further, AMSA gave evidence that it 'accepts responsibility for its part in this process' as the agency 'should have communicated better with WA Police and the WADOT, and we should have made clearer where decisions, directions and responsibilities lay'.
4.109
These events raised questions about the extent to which AMSA had fulfilled the requirements of the national regulator as set out in the August 2011 IGA. In this regard, Schedule B of the IGA states:
State and Territory maritime safety agencies and private service providers will conduct a range of activities to give operational effect to the national system. These activities will be conducted either under delegation or accreditation from the National Regulator. In consultation with maritime safety agencies, the National Regulator will provide guidelines and codes of conduct for these activities to promote consistency across the country.
4.110
The COAG Council later determined, in November 2014, to end these arrangements by passing the full responsibility for all issues relating to a national system to AMSA. A 2014 review of the National System found that, despite having AMSA as the national regulator, there were still inconsistencies in service delivery between the states and territories.
4.111
In recognising that it should have communicated better with DoT and WA Police, and made clearer decisions and directions, AMSA appreciated that the COAG Council decision was a result of its failings:
The November 2014 decision of the COAG Council to end this arrangement by passing full responsibility for all matters relating to the National System to AMSA is evidence of the seriousness of these failings.
Other legal action
Breaching liquor laws
4.112
In December 2016, Mr Lippiatt was fined for illegally selling beer during the charter cruise on the day that Mr Mills went missing. He was fined $3000 for agreeing to sell two cartons of beer to Pepper Australia for its guests on board the boat when their supplies were running low. Pepper Australia was also fined a minimum $10 000 penalty for breaching liquor laws.
4.113
Mr Lippiatt and his company, the DDCF, were also fined $3500 for allowing the unlicensed premises to be used as a resort for the consumption of alcohol. Mr Lippiatt was granted a spent conviction after the court was told of his work as a volunteer paramedic in a country town. Mr Lippiatt sold his boats to pay for his legal fees and no longer works in the industry.
Committee view
4.114
This chapter has revealed a series of shortcomings with regard to AMSA's processes, brought to light by the Mills case and AMSA's interactions with WA state agencies.
4.115
AMSA indicated that since the Mills case, they had implemented new processes and procedures for investigations, including briefing the Chief Executive Officer of all serious incidents. AMSA also referred to the establishment of a new Enforcement and Inspector Support team to investigate and, if necessary, take enforcement action in relation to the most serious breaches of AMSA's regulatory framework and other incidents.
4.116
In line with the views already expressed by the committee, it is hoped that AMSA’s less than satisfactory interactions with the WA agencies will be instructive in guiding AMSA towards better and more collaborative practices, as it continues to improve its administration of the National Law.