5.1
This chapter examines the findings and conclusions of other coroner's reports which have considered the role of AMSA.
5.2
It also considers a number of concerns raised in these coroner's reports about some of the grandfathering provisions of the National Law, and how this has applied in practice, as well as the adequacy of safety management systems.
Inquest into the death of Ryan Harry Donoghue – Northern Territory Coroner's Court
5.3
Twenty-year old, Mr Ryan Donoghue, a First Mate, was killed while on board the Newfish 1, an Austral Fisheries Pty Ltd (Austral Fisheries) prawn trawler in the Gulf of Carpentaria on 29 November 2013. Dressed in shorts and a singlet, Mr Donoghue was using an angle grinder to cut rusted shackles connecting nets to otter boards. At the same time, a deckhand was holding the power lead above the deck to keep it away from water. A wave washed over the deck engulfing Donoghue and the grinder, electrocuting Donoghue.
5.4
An inspection by Maritime Safety Queensland Officers and Senior Electrical Safety Inspectors found that the general purpose socket the grinder had been plugged into on the deck was not protected by a residual current device (RCD), more commonly known as a safety switch.
5.5
Sri Srinivas, the Principal Marine Safety Officer with the Northern Territory Department of Transport estimated that 80 per cent of DCVs working out of Darwin Port did not have RCDs fitted, as required by NT Work Health and Safety Regulations.
5.6
The Territory Coroner, Judge Greg Cavanagh, whose report was released on
3 June 2016, stated that the evidence at the inquest highlighted the:
...unacceptable and indeed shameful state of workplace safety on large numbers of Australian domestic fishing vessels. The lack of regulation and enforcement by authorities is of great concern.
5.7
The Coroner was scathing about the lack of enforcement action undertaken by the regulators, stating that:
Added to the apparent failure of the regulatory environment to ensure compliance, is the fact that to this date there has been no action taken (apart from investigation) by any regulatory authority arising from the death of Ryan Donoghue.
5.8
The Coroner noted that AMSA took 'no compliance or enforcement action as a consequence of the death of Ryan Donoghue'. This was despite the fact that possible offences pursuant to section 12 of the National Law were referred to the Office of Legal Counsel, AMSA Domestic Vessel Division for further analysis and comment. The Coroner continued:
That no Commonwealth, State or Territory regulatory authority has pursued any action against the employer is most unsatisfactory. The lack of action beggars belief and is shameful.
5.9
The Coroner made a number of recommendations including:
...that both Marine Safety authorities and the Work Health and Safety authorities revisit the recommendations of the Western Australian Coroner with a view to ensuring that persons conducting a business or undertaking on Domestic Commercial Vessels well understand the law and their duties to their employees and others.
5.10
With regard to offences, the Coroner went on to note:
I believe that offences may have been committed in connection with the death of Ryan Donoghue and in accordance with section 35(3) I report my belief to the Commissioner of Police and the Director of Public Prosecutions.
Health and safety laws
5.11
During the investigation into Mr Donoghue's death, the Coroner found that maritime regulators believed that they were unable to enforce work health and safety laws when dealing with maritime safety, because the relevant standards and codes have 'grandfathering' clauses built into them. That is, the vessel is only required to meet the standards applicable to it at the time it was built (or first registered in Australia). The Coroner noted that there appeared to be a 'massive and systemic lack of understanding of compliance' when it came to work health and safety legislation.
5.12
The Coroner suggested that this lack of clarity may have been due in part to a division between marine safety and workplace safety, noting that:
Marine safety appears to relate primarily to whether the boat is safe to navigate the high seas. Workplace safety although somewhat related is seen as entirely different and dealt with by different Government Departments that appear to have little expertise or experience in the marine environment.
5.13
Regarding the role of AMSA, the Coroner noted that under the National Law, the regulator was responsible for the standardisation and regulation of marine safety. However, the Coroner stated that the legislation does not 'provide for the merging of marine safety and workplace health and safety functions relating to DCVs' and that 'the operation of sections 6 and 7 [of the National Law] exclude the operation of the Act where inconsistent with State and Territory Law relating to workplace health and safety'.
5.14
The Coroner continued that this 'artificial separation' that had been fostered between marine safety and workplace health and safety was likely to continue because Marine Order 503(8) 'continues the grandfathering of Standards and Codes and is likely to further entrench the belief that RDCs are not required to be fitted to older vessels (unless upgraded)'. The Coroner continued:
It should be stated once more, that is a myth. It is a dangerous myth that has been perpetuated by the separation of workplace safety from marine safety.
Inquest into the death of Murray Allan Turner, Mason Laurence Carter and Chad Alan Fairley – Coroner's Court of Western Australia
5.15
On 6 July 2015, a fishing boat named the Returner left Point Samson with Mr Murray Turner, Mr Chad Fairley and Mr Mason Carter on board. The three men were intending to head to Nickol Bay for a trawling trip and were scheduled to arrive back in Point Samson on 15 July 2015. The last contact with the vessel and its crew was shortly before 2.00 am on 11 July 2015.
5.16
On 15 July 2015, when the vessel did not arrive at the boat harbour as scheduled, Water Police were advised and an extensive air, land and sea search commenced. On 29 July, the Returner was located submerged in water approximately 20 kilometres from Nickol Bay. Police divers boarded the vessel the following day and located the body of Murray Turner inside. Chad Fairley and Mason Carter were not found and no sign of them was discovered. A police investigation concluded that they most likely died at sea in the period after the Returner sank. Coroner Linton delivered her inquest report on 28 February 2018.
5.17
The owner of the vessel, Mr Turner, had made a series of major modifications to the boat including several which were not reported or reflected in the vessel's documentation. The modifications were intended to extend the vessel's period of operation at sea and to maximise the trawl catch potential. The police found that the overall effect of these modifications was to make the vessel less stable in the water. There was also evidence that the vessel was too small for its purpose, and cluttered, making it difficult to move on the deck. The inquest head that:
Mr Turner commenced the works without notifying the DoT, contrary to the DoT procedure, and did not, on the evidence, engage a naval architect or consult a shipwright in regard to the works he was undertaking. Rather, he appears to have relied upon his own judgment as to what was required and engaged individual tradespersons to carry out his instructions, albeit with an understanding that the vessel would also undergo some form of survey through the DoT when the works were completed.
5.18
The DoT marine surveyor, Mr Barry Wren, informed the Coroner that when he undertook a survey of the vessel, the extent of the modifications were not apparent and that he was relying on Mr Turner's explanation of the modification as 'like for like'. Mr Wren provided the inquest with an insight into the culture with regard to owners and operators, stating that:
...in his experience owners and operators often show reluctance towards the survey process and it is plainly obvious to him on many occasions that they are not forthcoming when it comes to modifications to their vessels.
5.19
Following the retrieval of the vessel, a joint investigation into the capsizing and foundering of the vessel was commenced by DoT on behalf of AMSA, with the assistance of AMSA staff. The investigation focussed on determining factors contributing to the incident, including the 'vessel's operation, design and survey'.
5.20
3D modelling was undertaken via a stability software program known as MAXSURF. This program assessed the stability of the vessel in its known configuration at the time of the incident and found that the Returner failed all of the relevant stability criteria other than one. The model further found that the Returner was, on average, 35 per cent more unstable at the time that it sank than in its original configuration.
5.21
Between late 2014 and early to mid-2015, when the relevant events took place with the Returner, the Western Australian DoT retained a delegation from AMSA (as the national regulator) to conduct the survey work for DCVs in WA.
Grandfathering arrangements
5.22
The Coroner noted that:
All domestic commercial vessels in Australia are subject to a system of periodic surveys...Due to changes in the legislation, there is a difference between how older vessels, that existed before the National Law came into effect in July 2013, are treated compared to the processes for new vessels under the National Law.
5.23
In particular, the Coroner commented on how grandfathering arrangements differed markedly between jurisdictions and the effect this had on ensuring vessels meet a certain standard. The Coroner stated that:
...grandfathering provided a politically expedient way to ensure that all the jurisdictions would adopt the National scheme, by reassuring existing operators that they wouldn’t be any worse off. There was a large variation between regulations in different jurisdictions, so any other approach would have made it exceptionally difficult for operators in some of the regions to have their vessels meet standards.
5.24
The Coroner observed that the Returner, having been originally constructed in 1984, was classed as an 'existing vessel' under clause 7 of Marine Order 503. As a grandfathered vessel this meant it was required to comply with the relevant standards that applied prior to the introduction of the National Law on 1 July 2013 (also known as the Uniform Shipping Laws). By comparison, new vessels are required to be surveyed in relation to the National Standard for Commercial Vessels. This is a far more stringent standard.
5.25
Furthermore, the Coroner explained that a grandfathered vessel 'can be considered a new vessel under Marine Order 503 if AMSA, or its delegate, considers that the vessel has been altered to an extent that it must be reassessed against the applicable standards, or its operations have changed so that there is an increased level of risk or its operational area has changed'. This did not take place in relation to the Returner.
5.26
The Coroner raised a number of serious concerns about National Law and grandfathering arrangements on existing vessels, noting that:
This inquest highlighted an important difference in the National Law between how ‘existing vessels’ and ‘new vessels’ are treated, in that if the Returner had been a new vessel, it would have required an automatic stability test as part of the five year renewal survey it was undergoing, whereas as an existing vessel it did not. While there was an option for the Returner to have been treated as a new vessel given the modifications it had undergone, with the consequence that a stability test would be required, that places an onus on the surveyor to form a difficult judgment, as opposed to the very simple automatic requirement for a new vessel.
5.27
Mr Brian Hemming, National Operations Manager for Regions at AMSA gave evidence that:
…AMSA, as the National Regulator, has expressed some concerns with the grandfathering arrangements for existing vessels as it has slowed down industry’s approach to modifying or updating the fleet. Mr Hemming indicated that some of the work AMSA is currently doing is to revise Marine Order 503 to look at things like the trigger points to describe a ‘new’ versus ‘existing vessel’. It is aimed at allowing operators to carry out modifications without having to take the vessel up to full standard, because it is accepted that there would be serious financial implications or obligations to operators if the grandfathering was to end at a point in time. Nevertheless, AMSA has been quite public in saying that, as the National Regulator, they have the right to review the grandfathering scheme as safety concerns are revealed.
5.28
The Coroner made two recommendations on this matter for AMSA, as follows:
I recommend that AMSA, as the National Regulator of the National Law, should give consideration to establishing a transitional approach to ending the grandfathering of safety standards for existing vessels. Compliance with current standards in regard to vessel operations and safety equipment should be given priority.
Recommendation 2:
I recommend that AMSA, as the National Regulator of the National Law, should give guidance to accredited surveyors to remind them of the importance of independently verifying key information when assessing a vessel’s stability, given the critical importance of the stability of a vessel in allowing a vessel to operate safely.
Inquest into the death of Mr Daniel Thomas Bradshaw
5.29
Mr Daniel Bradshaw was a 38‑year‑old deckhand who slipped, hit his head and died while climbing off a barge, the Sammy Express, to a wall (and dry land) in the Northern Territory on 8 January 2017. The wall did not have a permanent gangway and Mr Bradshaw was found floating face down in the water between the barge and the wall.
5.30
On 25 May 2017, Sri Srinivas, Principal Marine Safety Officer with the NT Department of Infrastructure (and delegate of AMSA) submitted breach reports to AMSA recommending prosecutions against the owner and master of the barge. The breaches were suggested according to sections 13(2) and 18(4) of the Schedule to the National Law.
5.31
However, Mr Hemming of AMSA informed the Coroner that AMSA's view was that there were 'insufficient grounds to refer the matter to the Commonwealth Department of Public Prosecutions'.
5.32
The Coroner made the following observation in relation to AMSA's view:
The fact that Dan’s body was found below the bridge wing and tyre used to access the wall and barge, the fact that his hat and phone were on the wall, and the fact that climbing from the vessel to the wall was clearly dangerous, did not appear to sway Mr Hemming's view that the death was a coincidence rather than connected to the unsafe access and egress to and from the vessel.
However, the laceration on the back of Dan's neck is unlikely to have been caused in any other way than falling backward from the tyre while climbing to or from the wall. The presence of the hat and the phone could be indicators of climbing up or down the wall but most indicative of climbing up. Given those facts, the suggestion that his death was not connected to the unsafe access or egress is in my view ludicrous.
5.33
According to Mr Hemming's evidence to the Coroner, AMSA:
[…s]eparately decided that the safety management system (SMS) in force for the Sammy Express…did not ensure that the vessel and the operations of the vessel were, so far as reasonably practical, safe. In particular, neither SMS made explicit provision for a safe means of access to and from the vessel where such access is affected by the rise and fall of the tide (as was the case at the time of Mr Bradshaw).
5.34
Consequently, on 7 November 2017 (10 months after Mr Bradshaw's death), AMSA provided Conlon Murphy Pty Ltd (T/A Barge Express) with the following Direction Notice:
(1)
The safety management system (SMS) …be altered to ensure there are arrangements in place for the safe access to and from its vessels when alongside/berthed that account for the rise and fall of the tide.
(2)
The master and crew … are given proper training and instruction to enable each master and crew member to implement and comply with each SMS.
5.35
The Coroner stated that this was:
…a curious direction, given the evidence that the SMS was unable to be complied with at the Barge Express premises. There were simply no gangways with netting. Lighting was considered an issue and the only gangway other than the permanent gangway on the East wall was too short'.
5.36
The date of the Notice of Direction was 27 November 2017. Three days later, the Manager of the Barge Express sent an email to staff alerting them to adhere to the following procedure:
All staff are prohibited to access or egress a vessel once it is safely moored, if no compliant gangway or bow door arrangement is in place. No Gangway/bow door arrangement – No Access/Egress.
5.37
The following day, the Manager of Compliance at AMSA wrote to indicate that he was 'satisfied that you have now taken the steps specified in Direction Notice…I will close the notice off'.
5.38
The Coroner expressed concern over the lack of evidence provided, in order for AMSA to reach that decision. The Coroner said that there was:
…no evidence provided to AMSA that the Barge Express knew what a "compliant gangway or bow door arrangement" entailed. There was no evidence that there was a compliant gangway available. There was no evidence of what the training indicated. There was no evidence of any training at all.
5.39
When asked why the notice would be closed before the SMS had been changed and without any evidence of proper training and instruction,
Mr Hemming responded:
It's not the perfect practice but it is the accepted practice where a lot of notices issued on behalf of AMSA or by AMSA are done in either through self-declaration or voluntarily giving us information that they had actually done what was required.
Again, it's depending on the nature and specifics of the notice itself. Again, the manager of compliance is the one that's made the decision to lift the notice. I admit that it could have made reference to what training the company intended to do and that may have been part of the discussions had with them verbally that I am unaware of.
5.40
Mr Hemming further listed four main considerations used when determining whether to prosecute a breach of the relevant law:
exhibits a significant degree of criminality or disregard;
was sufficiently serious that the Commonwealth and the community would expect it to be dealt with by prosecution;
results in significant or real harm; and
warrants a prosecution so as to deter future behaviour.
5.41
The conversation between Mr Hemming and the Counsel Assisting was particularly pertinent to this inquiry:
Counsel Assisting: Is what you are saying there are so many
non-compliances in relation to the domestic commercial vessels that it's a very long list?
Mr Hemming: Without being controversial, yes it is. We have a significant generational, cultural change ahead of us and in some cases we need to take small steps, in other cases, you know, over time we need to use the full extent of the suite of tools available to us to influence that change.
5.42
The Coroner then stated that:
The lawyer for AMSA went further and suggested that there was no offence committed due to a strict reading of the wording of Marine Order 23 (applicable because of the “grandfathering clauses”). I invited AMSA to expand on that suggestion in further written submissions. However, they did not expand that point and I am assuming AMSA realised that Marine Order 23 does not and cannot modify the requirements to have a safe means of access and egress.
5.43
In the concluding comments, the Coroner further noted:
This death illustrates the vast difference between the levels of safety existing for those that work on domestic commercial vessels and those that work on land. It also illustrates the differing expectations of the regulators.
There should not be such differences. I was told that change in the industry will be “generational”. However, if that means that this generation of workers are exposed to risks that legally should not exist, it is not good enough.
5.44
Furthermore, the Coroner observed that this was the second such inquest relating to a DCV vessel in the NT within a period of 18 months, where the regulatory authorities appeared 'either slow or unwilling to denounce unsafe practices'. It was noted that in relation to the first, no action at all had been taken by the regulatory authority, despite it being more than two and a half years since the death of Mr Harry Donoghue.
Committee view
5.45
The evidence from these coronial inquiries is disturbing, and suggests systemic issues in the regulation and legislation for maritime safety on domestic commercial vessels. These issues should be further examined and reviewed, and prompt action taken by AMSA to address safety concerns as soon as they are identified.
5.46
The committee supports the comments made in relation to the death of Mr Bradshaw, where the Coroner remarked that it is not good enough that workers are being exposed to risks that legally should not exist. It does not appear to the committee that the 'significant generational and cultural change' spoken of by AMSA has progressed to any significant degree.
5.47
These inquests have also highlighted a number of inadequacies in the marine safety legislative framework, and a lack of adequate enforcement action by AMSA in the face of serious risks to crew and passenger safety.