BILLS DIGEST NO. 24, 2014–15              9 September 2014

Marine Safety (Domestic Commercial Vessel) National Law Amendment Bill 2014

Moira Coombs
Law and Bills Digest Section 

Date introduced: 16 July 2014

House:  House of Representatives

Portfolio: Infrastructure and Regional Development

Commencement:  On the day of Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The purpose of the Marine Safety (Domestic Commercial Vessel) National Law Amendment Bill 2014 (the Bill) is to amend the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (the National Law)[1] to:

•       enable the National Marine Safety Regulator (‘National Regulator’) to exercise a discretion when considering the suspension, revocation and variation of vessel certificates

•       amend the definition of ‘defence vessel’ so that it accords with section 10 of the Navigation Act 2012[2] and

•       amend the National Law to include an additional function for the National Regulator to survey vessels and deal with related matters.

Background

Intergovernmental Agreement on Commercial Vessel Safety Reform

The policy basis for the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 derives from the Council of Australian Government (COAG) Intergovernmental Agreement (IGA) on Commercial Vessel Safety Reform (‘the COAG IGA’) made between the Commonwealth, the states and the territories and signed on 19 August 2011.[3] This agreement committed the parties to work toward the ‘establishment of national law for all commercial vessels operating in Australian waters’[4] and established a single National Regulator for commercial vessel safety–a function that was conferred on the Australian Maritime Safety Authority (AMSA). Clauses 20 and 21 of the COAG IGA require amendments to the National Law to be approved by unanimous agreement of all the Parties. The Minister for Infrastructure and Regional Development notes in his second reading speech that the amendments in the current Bill have been agreed to by all Transport Ministers at the Standing Council of Transport and Infrastructure Ministers’ meeting in November 2013.[5]

Marine Safety (Domestic Commercial Vessel) National Law 2012

The National Law was a component of the National Transport reform package, which was intended to ‘improve safety and reduce the regulatory burden and costs on the Australian rail, heavy vehicle and maritime industries’.[6] The legislation was the final component of the maritime reform package.[7] There were three key areas comprising the maritime component:

1.       national shipping reforms designed to ensure the long-term future of the Australian shipping industry through tax regulation and training

2.       the revision of the Navigation Act 1912 (replaced by the Navigation Act 2012) intended to modernise the regulatory framework and provide much-needed confidence and certainty for industry and

3.       the introduction of a new National Law for the regulation of domestic commercial vessel safety and to establish a National Marine Safety Regulator (the National Regulator).[8]

The discussion paper released in mid-December 2011 and which formed part of the consultation process outlined the scope of the National Law:

The National Law is intended to replace current State and Territory laws governing the operational safety of commercial vessels, in particular their construction, operation and crew qualification standards. Although it is being developed using these laws as a base, the National Law will be established through separate legislation in each jurisdiction and will be applied as if it were a law of that jurisdiction. This will ensure national coverage and allow any standards, rules and subordinate legislation (such as regulations and Marine Orders) to have consistent application and effect around the country.[9]

What is the National Law intended to do?

The Explanatory Memorandum for the Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 sets out the intention of the National Law and how it will apply:

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 National Standard for Commercial Vessels (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.[10]

The Explanatory Memorandum further notes:

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 NSCV - are applied consistently around the country. The NSCV will be implemented through subordinate legislation made under the National Law.[11]

Committee consideration

Senate Standing Committee for the Scrutiny of Bills

The Committee in its recent report, draws attention to proposed subsection 11(3) which would broaden the sub-delegation power of a delegate who is an employee of a state or the Northern Territory to enable them to sub-delegate their powers and functions to an officer or employee of any agency of their state or territory.[12] Under the existing provision, such sub-delegation can only be made to a person who is in the same agency as the delegate.

The Committee had raised similar concerns with the existing provision when analysing the Marine Safety (Domestic Commercial Vessel) National Law Bill in 2012. The Committee noted the following in 2012:

The question of accountability arrangements in relation to decisions made by delegates who are officers of a State or Territory agency is of particular interest to the Committee. In relation to this issue, the explanatory memorandum makes two main points (at page 26). First, the National Regulator will provide directions to promote appropriate standards and consistency. Secondly, decisions made by officers who are employed by the States and Territories will not be excluded from administrative law accountability mechanisms. The basis for this claim is that the National Regulator will be ‘required to respond to applications for external review of the delegate’s decision’ because decisions of delegates are deemed to be decisions of the National Regulator by operation of paragraph 34AB(c) of the Acts Interpretation Act 1901.

Paragraph 34AB(c) of the Acts Interpretation Act 1901 (Cth), provides that ‘a function or power so delegated, when performed or exercised by the delegate, shall, for the purposes of the Act, be deemed to have been performed or exercised by the authority [i.e. the principal]’. To the Committee's knowledge there has been little judicial discussion of the meaning and effect of this provision. However, it seems probable that the provision means that in litigation either the principal or delegate could be nominated as the defendant. Furthermore, although there are older cases which cast doubt on the extent to which State decision-makers exercising Commonwealth powers would be subject to judicial review jurisdiction under s 75(v) of the Constitution (and section 39B of the Judiciary Act), it is doubtful whether this position would be maintained where a state officer exercises powers delegated to them under Commonwealth law. Also, such powers would be reviewable under the ADJR Act. For these reasons, the Committee leaves to Senate as a whole the question of whether the proposed approach is appropriate.[13]

The Committee refers to the justification for proposed subsection 11(3) in the current Bill set out in the Explanatory Memorandum (which is that the broader sub-delegation powers are needed to allow for differing organisational structures in each jurisdiction[14]) and notes:

In light of the above explanation, the committee leaves the question of whether the proposed approach is appropriate to the consideration of the Senate as a whole.[15]

Senate Selection of Bills Committee

At its meetings on 17 July 2014 and 28 August 2014, the Committee deferred consideration of the Bill to its next meeting.[16]

Financial implications

The Explanatory Memorandum notes that the Bill has no financial impact.[17]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.[18] The Government considers that the Bill is compatible with human rights as it clarifies that the review rights as recognised in the International Covenant on Civil and Political Rights (ICCPR) are available.[19]

The Parliamentary Joint Committee on Human Rights considers that the Bill is compatible with human rights.[20]

Key issues and provisions

Item 1 amends the definition of ‘defence vessel’ in section 6 of the National Law. The amendment aligns the definition in the National Law with the definition in paragraphs 10(a) and (b) of the Navigation Act 2012. Section 10 of the Navigation Act provides that the Act does not apply to naval vessels and then defines what is meant by a naval vessel. The Explanatory Memorandum to the Navigation Bill stated:

[Clause 10] excludes warships and other vessels operated for naval or military purposes by Australia or a foreign country from the operation of the Bill. For this exclusion to apply, these vessels must satisfy certain criteria relating to external markings, manning, and command that are consistent with the definition of warship in Art 29 of UNCLOS.[21]

The clause also excludes from the operation of the Act certain government vessels that are naval auxiliaries and customs and law enforcement vessels operated by a foreign country.[22]

Vessels which operate internationally, foreign vessels and vessels which maintain certification under the International Convention for Safety of Life at Sea (SOLAS) are regulated by the Commonwealth under the Navigation Act and are outside with scope of the National Law. Defence vessels and recreational vessels are also outside the application of the National Law. However, interstate vessels that were regulated under the previous Navigation Act 1912 are covered under the National Law.[23]

National Regulator to survey vessels

Existing section 10 of the National Law deals with the functions of the National Regulator. Item 3 inserts proposed paragraph 10(ca) as an additional function for the National Regulator to survey vessels and deal with associated matters relating to the survey by accredited surveyors. A certificate of survey provides evidence of a vessel having been surveyed to meet specified standards for construction stability and safety equipment.[24]

Section 159 of the National Law contains the regulation-making power which specifies that the Governor-General may make regulations prescribing matters required or permitted by this Law or that are necessary to give effect to this Law. The section lists certain purposes for which regulations may be made but is not limited to those purposes listed. Item 26 inserts proposed subsection 159(5A) which includes the further purpose of making regulations relating to the conduct of the survey of vessels.

AMSA is currently developing vessel surveyor qualifications and a National Accreditation scheme to be progressively implemented by 2016. State and territory arrangements for the survey of vessels remain in place until the new national arrangements are finalised.[25]

Delegations

Under current subsection 11(3) of the National Law, a delegate of the National Regulator who is an officer of a state or the Northern Territory may sub-delegate any of their powers or functions to an officer or employee of their own agency. Item 4 amends subsection 11(3) of the National Law to broaden these sub-delegation powers so that a delegate who is an officer of a state or the Northern Territory may sub-delegate to an officer or employee of any agency in the delegate’s state or the territory. The Explanatory Memorandum notes that sub-delegations are subject to subsections 11(2) and (5).[26] Subsection 11(2) provides that a delegate is subject to any directions of the National Regulator when exercising delegated powers or functions. Subsection 11(5) provides that a delegate must give a corresponding direction to a sub-delegate in performing a power or function delegated to the sub-delegate. As set out above, the Scrutiny of Bills Committee has commented on this provision.

Discretions applying to certificates

Existing section 40 deals with the variation of a certificate of survey. A certificate of survey provides the evidence that a vessel has been surveyed and meets specified standards for construction stability and safety equipment.[27] Item 5 repeals and substitutes subsection 40(2) with proposed subsection 40(2) to give the National Regulator discretion when deciding whether to vary a certificate of survey in accordance with criteria prescribed in the regulations. Similar discretions are inserted into the following sections:

•       proposed subsection 42(2) at item 7 which relates to revoking a certificate of survey

•       proposed subsection 50(2) at item 8 which relates to varying a certificate of operation. A certificate of operation is normally issued for five years to a person or business, who can demonstrate competency and capacity in relation to the safe operation of domestic commercial vessels[28]

•       proposed subsection 52(2) at item 11 which relates to revoking a certificate of operation

•       proposed subsection 62(2) at item 12 which relates to varying a certificate of competency and

•       proposed subsection 64(2) at item 15 which relates to revoking a certificate of competency. A certificate of competency will allow the holder to operate anywhere in Australian waters subject to the operational and distance limitations of the certificate.[29]

Existing section 41 deals with the suspension of a certificate of survey. Item 6 repeals subsection 41(2) and substitutes proposed subsections 41(2) and (2A). Proposed subsection 41(2) provides for a mandatory suspension of a certificate of survey if the National Regulator is satisfied that it is for the purpose of protecting human life, securing the safe navigation of vessels or dealing with an emergency that involves a serious threat to the environment. Proposed subsection 41(2A) provides the National Regulator with a discretion to suspend a certificate of survey on the National Regulator’s initiative for a purpose prescribed by the regulations. Similar discretions have been inserted into the following sections in addition to the mandatory elements:

•       subsection 51(2A) at item 9 which relates to suspension of a certificate of operation and

•       subsection 63(2A) at item 13 which relates to suspension of a certificate of competency.

Existing section 139 lists reviewable decisions of the National Regulator. Item 22 amends section 139 by repealing paragraphs 139(m), (n), and (o) as they are decisions of a marine safety inspector and do not belong in the list of reviewable decisions by the National Regulator. Item 23 inserts proposed subsection 139(2) to include the decisions of a marine safety inspector as reviewable decisions in a separate subsection.

Concluding comments

The amendments are minor in nature. A number of the amendments give the National Regulator discretion when deciding whether to vary, suspend or revoke a certificate of survey, a certificate of operation or a certificate of competency. These amendments allow the Regulator greater flexibility when making decisions of this type.

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[1].              Marine Safety (Domestic Commercial Vessel) National Law Act 2012, accessed 19 August 2014.

[2].              Navigation Act 2012, accessed 2 September 2014.

[3].              Council of Australian Governments (COAG), Intergovernmental agreement on commercial vessel safety reform, 19 August 2011, accessed 19 August 2014.

[4].              Ibid., clause 14.

[5].              W Truss, ‘Second reading speech: Marine Safety (Domestic Commercial Vessel) National Law Amendment Bill 2014’, House of Representatives, Debates, 16 July 2014, p. 5, accessed 19 August 2014.

[6].              Australian Maritime Safety Authority (AMSA), ‘National system for domestic commercial vessel safety’, AMSA website, accessed 2 September 2014.

[7].              Explanatory Memorandum, Marine Safety (Domestic Commercial Vessel) National Law Bill 2012, p. 1, accessed 5 August 2014.

[8].              Ibid.

[9].              Australian Maritime Safety Authority (AMSA), National system for domestic commercial vessel safety, Discussion paper, p. 1, AMSA website, accessed 5 August 2014.

[10].              Explanatory Memorandum, Marine Safety (Domestic Commercial Vessel) National Law Bill 2012, op. cit., p. 18.

[11].              Ibid., p. 10.

[12].              Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 10 of 2014, The Senate, 27 August 2014, accessed 3 September 2014.

[13].              Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 6 of 2012, The Senate, 20 June 2012, pp. 47–48, accessed 3 September 2014.

[14].              Explanatory Memorandum, Marine Safety (Domestic Commercial Vessel) National Law Bill Amendment 2014, p. 4, accessed 5 August 2014.

[15].              Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 10 of 2014, op. cit., p. 27.

[16].              Senate Standing Committee for Selection of Bills, Reports, The Senate, Canberra, 2014, accessed 2 September 2014.

[17].              Explanatory Memorandum, Marine Safety (Domestic Commercial Vessel) National Law Amendment Bill 2014, p. 1, accessed 2 September 2014.

[18].              The Statement of Compatibility with Human Rights can be found at page 2 of the Explanatory Memorandum to the Bill.

[19].              Explanatory Memorandum, Marine Safety (Domestic Commercial Vessel) National Law Bill Amendment 2014, op. cit., p. 2.

[20].              Parliamentary Joint Committee on Human Rights, Tenth report of the 44th Parliament, The Senate, Canberra, 26 August 2014, p. 38, accessed 2 September 2014.

[21].              Article 29 of the UN Convention on the Law of the Sea defines warships as follows: ‘For the purposes of this Convention, ‘warship’ means a ship belonging to the armed forces of a state bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the state and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.’

[22].              Explanatory Memorandum, Navigation Bill 2012, p. 9, accessed 6 August 2014.

[23].              This was explained in the Explanatory Memorandum to the Marine Safety (Domestic Commercial Vessel) National Law Bill 2012. See also the definition of ‘domestic commercial vessel’ in section 7 of the National Law, which is Schedule 1 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012.

[24].              AMSA, ‘Guidance notice: certificate of survey’, AMSA website, August 2014, accessed 6 August 2014.

[25].              AMSA, ‘Surveyors’, AMSA website, accessed 6 August 2014.

[26].              Explanatory Memorandum, Marine Safety (Domestic Commercial Vessel) National Law Amendment Bill 2014, op. cit., pp. 3–4.

[27].              AMSA, ‘Guidance notice: certificate of survey’, AMSA website, August 2014, accessed 7 August, 2014.

[28].              AMSA, ‘Guidance notice: certificate of operation’, AMSA website, June 2014, accessed 7 August 2014.

[29].              AMSA, ‘Certificate of competency’, AMSA website, accessed 7 August 2014.