BILLS DIGEST NO. 36, 2018–19              22 October 2018

Shipping Registration Amendment Bill 2018

Kaushik Ramesh
Law and Bills Digest Section

Date introduced: 13 September 2018

House: House of Representatives

Portfolio: Infrastructure, Transport and Regional Development

Commencement: On proclamation or six months after Royal Assent (whichever is earlier).

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at October 2018.

Purpose of the Bill

The purpose of the Shipping Registration Amendment Bill 2018 (the Bill) is to amend the Shipping Registration Act 1981 (SRA) to:

•       remove references to prescribed forms of certificates

•       clarify the Regulation-making power in the SRA and

•       make other minor technical amendments.

Background

Shipping registration

The SRA was enacted with the central purpose of providing Australia with its own regime for the registration of ships (and the associated conditions for this registration) and to allow ships to be conferred Australian nationality.[1] The United Nations Convention on the Law of the Sea gives a nation the right to fix the conditions for the grant of its nationality to ships, for the registration of ships and for the right to fly its flag.[2]

Subsection 12(1) of the SRA stipulates that every Australian owned ship is to be registered under that Act (either under the General Register or the Australian International Shipping Register, as discussed further below). However, section 13 of the SRA provides an exemption for the following categories of ships:

•       ships less than 24 metres in tonnage length

•       government ships

•       fishing vessels and

•       pleasure craft.

In effect this means that the SRA makes it compulsory for Australian owned commercial ships larger than 24 metres in tonnage length and capable of navigating the high seas to be registered under that Act.[3] The categories of vessel listed above must still be registered if they are to leave Australia.[4]

The following categories of vessels may be registered on the Australian General Shipping Register (but are not necessarily required to be):

•       Australian-owned ships

•       small craft that are wholly owned by Australian residents, or by Australian residents and Australian nationals

•       small craft that are operated solely by Australian residents, or by Australian nationals, or by both and

•       ships that are on demise charter to Australian-based operators.[5]

The Australian International Shipping Register provides Australian companies with the opportunity to maintain Australian nationality for vessels if they predominantly trade overseas.[6]

Shipping registration under the SRA is administered by the Australian Maritime Safety Authority.[7] In his second reading speech, the Minister noted that there are approximately 12,000 vessels currently registered on the Australian General Shipping Register.[8]

The Bill makes technical amendments to the SRA; it does not make any substantive policy changes to the current regime for shipping registration in Australia.

Sunsetting and the SRA regulations

The Legislation Act 2003 provides for the ‘sunsetting’ of legislative instruments. As outlined in the Attorney-General’s Department’s Guide to Managing Sunsetting of Legislative Instruments (Guide to Sunsetting), ‘sunsetting provisions in legislation provide that a law is repealed after a specific date unless further legislative action is taken to extend that law’.[9] For instruments registered on 1 January 2005 (that is, instruments made prior to the commencement of the substantive provisions of the Legislation Act), subsection 50(2) of the Legislation Act stipulates when these instruments will be repealed.

The Shipping Registration Regulations were due to sunset on 1 April 2018 as per item 7 in the table in subsection 50(2) of the Legislation Act. However, the Attorney-General deferred the sunsetting date of these Regulations using the power provided by paragraph 51(1)(c) of the Legislation Act.[10] The new sunsetting date for the Shipping Registration Regulations is 1 April 2019.[11]

The Guide to Sunsetting notes that ‘an initial review of instruments that have been identified as sunsetting is an essential part of the process’ to determine whether to remake the instrument or to allow it to sunset.[12] It appears that, as a part of that process, a review found that minor changes to the SRA were required in order for the Regulations to be remade.[13] The Bill implements these technical changes.

The Bill’s accompanying second reading speech noted that the review of the SRA was conducted by the Office of Parliamentary Counsel, Australian Maritime Safety Authority (AMSA) and the Department of Infrastructure, Regional Development and Cities, and that this review recommended changes on the basis of best practice drafting principles.[14] The second reading speech also notes that the Regulations cannot be remade in accordance with Clearer Commonwealth Laws principles until these changes are implemented,[15] which is relevant given the imminent sunsetting date of the Regulations:

Without these changes, the regulations would not be remade in accordance with the clearer Commonwealth laws principles as advised by the Office of Parliamentary Counsel. The Australian Government is committed to making Commonwealth law clear and easy to understand and accessible for the community. These reforms are a reflection of that commitment, and will benefit all current and future shipping registration stakeholders.

Minor technical changes to the [A]ct are required before the regulations can be remade. The regulations are due to sunset on 1 April 2019. If the regulations are not remade by 1 April 2019, there will be no mechanism by which shipowners can register their vessels in Australia, or through which transfer of ownership and registration could occur. Therefore it is imperative that this bill be passed in a timely manner.[16]

Committee consideration

Senate Standing Committee for Selection of Bills

The Senate Standing Committee for Selection of Bills decided that the Bill should not be referred to a committee for inquiry.[17]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills had no comment on the Bill.[18]

Financial implications

The Explanatory Memorandum states that the Bill has no financial implications.[19]

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. The Government considers that the Bill is compatible.[20]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights found that the Bill did not raise human rights concerns.[21]

Key issues and provisions

Approved forms

Currently, the SRA makes reference to ‘prescribed forms’ throughout that Act, including in relation to applications for ship registration as well as the form that shipping registration certificates must take. A prescribed form essentially means a form that is prescribed by the Regulations.

Item 3 inserts proposed section 3B to allow AMSA to approve forms for the purposes of the SRA and the Regulations. Proposed subsection 3B(2) allows AMSA to approve different forms of registration certificates or provisional certificates for different kinds of ships. Proposed subsection 3B(4) requires AMSA to publish all approved forms on its website (thereby making those forms accessible to relevant stakeholders).[22]

Item 1 inserts a new definition of approved form that refers to proposed section 3B. Item 2 and items 4–13 replace references to prescribed forms in the SRA with references to an approved form or otherwise clarify existing sections of the SRA by inserting a reference to an approved form.

These amendments effectively mean that such forms can now be approved administratively by AMSA, as opposed to needing to be prescribed in disallowable instruments that must be tabled in Parliament. The Explanatory Memorandum notes the following rationale for this change:

Currently, ship registration certificates are prescribed by the Regulations. Prescribing certificates of this kind in disallowable instruments no longer complies with general drafting principles and makes it difficult to alter certificates to modernise them. This item will simplify the process for modernising and changing certificates.[23]

Clarifying the regulation-making powers

Section 83 of the SRA contains a Regulation making power, which allows the Governor-General to make Regulations under the SRA, including in relation to a range of matters specified in subsection 83(2). Many items in the Bill clarify the Regulation-making powers in subsection 83(2) of the SRA.

For example, item 20 inserts proposed paragraph 83(2)(ea) to allow the Regulations to specify how documents that are lodged with the Registrar must be signed. Similarly, item 21 amends paragraph 83(2)(n) to provide the explicit power for Regulations to provide AMSA with the ability to determine home ports for registered ships. Item 22 repeals and replaces paragraph 83(2)(p) to clarify that the Regulations can provide for AMSA to exempt particular ships, or classes of ships, from marking requirements under the SRA, subject to conditions.

Items 16 and 18 amend paragraphs 83(2)(a) and 83(2)(e) respectively to clarify that the Regulations can specify both the manner and form in which applications are made under the SRA or the manner and form in which documents and information are to be lodged with the Registrar. Item 19 inserts proposed subparagraphs 83(2)(e)(iii) and 83(2)(e)(iv) which clarify that the Regulations can provide for the Registrar to refuse applications if they do not meet requirements prescribed by the Regulations, and for the Registrar to extend the timeframe for lodgement of documents.

Item 17 amends paragraph 83(2)(b) to clarify that the Regulations can make provision in relation to statutory declarations submitted by applicants.

The rationale for these provisions in the Bill seems to centre on ensuring greater clarity in the shipping registration regulatory framework: the amendments do not make any substantial administrative changes. This reasoning is summarised in the Minister’s second reading speech:

Currently in some provisions of the [A]ct the head of power needed to give the regulations authority is either missing or is unclear in its wording. This bill will correct those uncertainties by clarifying a head of power for those regulations and will also provide a head of power which provides AMSA with the capacity to act as the authority under the act and the regulations.[24]

Other technical amendments

The Bill also makes a range of other minor technical amendments to the SRA, in many cases to correct drafting errors within the legislation or to improve clarity in the various provisions. Some of these proposed amendments include:

•       item 14 which repeals and replaces subsection 65(3), which requires ‘proper officers’ (defined at section 3 of the SRA) to provide documents relating to a provisional registration to the Registrar. Proposed paragraph 65(3)(c) clarifies that the Regulations can prescribe certain documents that must be provided to the Registrar in relation to that provisional registration and

•       items 15 and 23 which make minor changes to the wording of subsection 83(2) and paragraph 83(2)(w) respectively to clarify their meaning and rectify drafting errors.

As noted in the Explanatory Memorandum, the Bill does not change the policy intent or substance of the SRA through these technical changes.

Concluding comments

The Bill seems to be a result of processes surrounding the imminent sunsetting of the Shipping Registration Regulations. The Bill allows AMSA to approve forms for the purposes of the SRA, clarifies the Regulation-making power and makes other technical amendments. The Bill does not make substantial policy changes to the shipping registration framework.

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[1].              See discussion in: Department of Workplace Relations and Small Business, Australian Maritime Safety Authority and Bureau of Transport and Communications Economics, Review of the Shipping Registration Act 1981, Australian Government, Canberra, December 1997.

[2].              United Nations Convention on the Law of the Sea, done in Montego Bay on 10 December 1982, [1994] ATS 31 (entered into force for Australia and generally 16 November 1994), article 91.

[3].              See the definition of ship under Shipping Registration Act 1981, section 3.

[4].              Shipping Registration Act 1981, section 68.

[5].              Ibid., section 14. ‘Demise charter’ is defined in section 3.

[6].              Ibid., sections 15A and 15B.

[7].              Australian Maritime Safety Authority (AMSA), ‘Shipping Registration Office’, AMSA website, updated 10 November 2017.

[8].              M McCormack, ‘Second reading speech: Shipping Registration Amendment Bill 2018’, House of Representatives, Debates (proof), 13 September 2018, p. 1.

[9].              Attorney-General’s Department (AGD), Civil Justice Policy and Programmes Division, Guide to managing sunsetting of legislative instruments (Guide to sunsetting), AGD, Canberra, 2016, p. 3.

[10].              Legislation (Deferral of Sunsetting—Shipping Registration Regulations) Certificate 2018.

[11].              Ibid.

[12].              AGD, Guide to sunsetting, op. cit., p. 13.

[13].              Explanatory Memorandum, Shipping Registration Amendment Bill 2018, p. 2.

[14].              McCormack, ‘Second reading speech’, op. cit., p. 1.

[15].              AGD, ‘Reducing the complexity of legislation’, AGD website.

[16].              Ibid., p. 2.

[17].              Senate Standing Committee for Selection of Bills, Report, 12, 2018, The Senate, 18 October, p. 3.

[18].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 11, 2018, The Senate, 19 September 2018, p. 16.

[19].              Explanatory Memorandum, Shipping Registration Amendment Bill 2018, p. 1.

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

[21].              Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 10, 2018, 18 September 2018, p. 20.

[22].              Explanatory Memorandum, Shipping Registration Amendment Bill 2018, p. 4.

[23].              Ibid., p. 3.

[24].              M McCormack, ‘Second reading speech’, op. cit., p. 1.