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This is a Bill, not an Act. For current law, see the Acts databases.
2016
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Seafarers and Other Legislation
Amendment Bill 2016
No. , 2016
(Employment)
A Bill for an Act to amend the law relating to
seafarers, and for other purposes
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 3
Schedule 1--Repeals
4
Financial Management and Accountability (Establishment of Special
Account) Determination 2002/06
4
Occupational Health and Safety (Maritime Industry) Act 1993
4
Seafarers Rehabilitation and Compensation Levy Act 1992
4
Seafarers Rehabilitation and Compensation Levy Collection Act 1992
4
Schedule 2--Amendments
5
Part 1--Catastrophic injuries to seafarers etc.
5
Seafarers Rehabilitation and Compensation Act 1992
5
Part 2--Implementation of amendments of the Maritime
Labour Convention relating to insurance obligations
of employers of seafarers
9
Seafarers Rehabilitation and Compensation Act 1992
9
Part 3--Other amendments relating to seafarers
14
Offshore Petroleum and Greenhouse Gas Storage Act 2006
14
Safety, Rehabilitation and Compensation Act 1988
14
Seafarers Rehabilitation and Compensation Act 1992
19
Work Health and Safety Act 2011
78
Part 4--Comcare scheme
84
Division 1--Catastrophic injury
84
Safety, Rehabilitation and Compensation Act 1988
84
Division 2--Pension age
87
Safety, Rehabilitation and Compensation Act 1988
87
Part 5--Work health and safety
89
Work Health and Safety Act 2011
89
Schedule 3--Application and transitional provisions
92
ii
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
Part 1--Introduction
92
Part 2--Catastrophic injuries to seafarers
93
Part 3--Implementation of amendments of the Maritime
Labour Convention relating to insurance obligations
of employers of seafarers
94
Part 4--Seacare scheme
95
Part 5--Winding-up of old levy scheme
99
Part 6--Transition from old occupational health and safety
scheme
100
Division 1--Introduction
100
Division 2--Application of old occupational health and safety scheme
101
Division 3--Application of duties imposed under the Work Health
and Safety Act 2011
102
Division 4--Notifiable incidents etc.
109
Division 5--Work groups, health and safety representatives and
committees
109
Division 6--AMSA and inspectors
113
Division 7--Enforcement measures
116
Division 8--Other matters
116
Part 7--Abolition of the Seafarers Safety, Rehabilitation and
Compensation Authority
118
Part 8--Coverage of employees by the seacare scheme
129
Part 9--Comcare scheme
137
Division 1--Catastrophic injury
137
Division 2--Pension age
137
Part 10--Miscellaneous
140
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
1
A Bill for an Act to amend the law relating to
1
seafarers, and for other purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Seafarers and Other Legislation Amendment Act
5
2016.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
1 July 2017.
1 July 2017
3. Schedule 2,
Part 1
The day after this Act receives the Royal
Assent.
4. Schedule 2,
Part 2
The later of:
(a) the 28th day after this Act receives the
Royal Assent; and
(b) 1 January 2017.
5. Schedule 2,
Part 3
1 July 2017.
1 July 2017
6. Schedule 2,
Part 4, Division 1
The day after this Act receives the Royal
Assent.
7. Schedule 2,
Part 4, Division 2
1 July 2017.
1 July 2017
8. Schedule 2,
Part 5
The day after this Act receives the Royal
Assent.
9. Schedule 3,
Part 1
The day after this Act receives the Royal
Assent.
10. Schedule 3,
Part 2
The day after this Act receives the Royal
Assent.
11. Schedule 3,
Part 3
At the same time as the provisions covered
by table item 4.
12. Schedule 3,
Parts 4 to 7
1 July 2017.
1 July 2017
13. Schedule 3,
Part 8
The day after this Act receives the Royal
Assent.
14. Schedule 3,
Part 9, Division 1
The day after this Act receives the Royal
Assent.
15. Schedule 3,
Part 9, Division 2
1 July 2017.
1 July 2017
16. Schedule 3,
The day after this Act receives the Royal
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
3
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
Part 10
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule concerned,
9
and any other item in a Schedule to this Act has effect according to its
10
terms.
11
Schedule 1 Repeals
4
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
Schedule 1--Repeals
1
2
Financial Management and Accountability (Establishment
3
of Special Account) Determination 2002/06
4
1 The whole of the Determination
5
Repeal the Determination.
6
Occupational Health and Safety (Maritime Industry) Act
7
1993
8
2 The whole of the Act
9
Repeal the Act.
10
Seafarers Rehabilitation and Compensation Levy Act 1992
11
3 The whole of the Act
12
Repeal the Act.
13
Seafarers Rehabilitation and Compensation Levy Collection
14
Act 1992
15
4 The whole of the Act
16
Repeal the Act.
17
Amendments Schedule 2
Catastrophic injuries to seafarers etc. Part 1
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
5
Schedule 2--Amendments
1
Part 1--Catastrophic injuries to seafarers etc.
2
Seafarers Rehabilitation and Compensation Act 1992
3
1 Section 3
4
Insert:
5
catastrophic injury means an injury, where the conditions
6
specified in the legislative rules are satisfied.
7
legislative rules means rules made under section 144.
8
2 Section 43 (heading)
9
Repeal the heading, substitute:
10
43 Compensation for household services and attendant care services
11
obtained as a result of a non-catastrophic injury
12
3 Subsections 43(1) and (4)
13
After "injury", insert "(other than a catastrophic injury)".
14
4 At the end of Division 5 of Part 2
15
Add:
16
43A Compensation for household services and attendant care
17
services obtained as a result of a catastrophic injury
18
Household services
19
(1) If, as a result of a catastrophic injury to an employee, the employee
20
obtains household services that he or she reasonably requires,
21
compensation is payable at the rate of such amount per week as is
22
reasonable in the circumstances.
23
(2) Without limiting the matters that may be taken into account in
24
determining the household services that are reasonably required in
25
a particular case, the employer must have regard to the following
26
matters:
27
Schedule 2 Amendments
Part 1 Catastrophic injuries to seafarers etc.
6
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
(a) the extent to which household services were provided by the
1
employee before the date of the catastrophic injury and the
2
extent to which he or she is able to provide those services
3
after that date;
4
(b) the number of persons living with the employee as members
5
of his or her household, their ages and their need for
6
household services;
7
(c) the extent to which household services were provided by the
8
persons referred to in paragraph (b) before the catastrophic
9
injury;
10
(d) the extent to which the persons referred to in paragraph (b),
11
or any other members of the employee's family, might
12
reasonably be expected to provide household services for
13
themselves and for the employee after the catastrophic injury;
14
(e) the need to avoid substantial disruption to the employment or
15
other activities of the persons referred to in paragraph (b).
16
Note:
In relation to paragraph (2)(d), see also section 16.
17
Attendant care services
18
(3) If, as a result of a catastrophic injury to an employee, the employee
19
obtains attendant care services that he or she reasonably requires,
20
compensation is payable at the rate of such amount per week as is
21
reasonable in the circumstances.
22
(4) Without limiting the matters that may be taken into account in
23
determining the attendant care services that are reasonably required
24
in a particular case, the employer must have regard to the following
25
matters:
26
(a) the nature of the employee's catastrophic injury and the
27
degree to which that injury impairs the employee's ability to
28
provide for his or her personal care;
29
(b) the extent to which any medical service or nursing care
30
received by the employee provides for his or her essential
31
and regular personal care;
32
(c) the extent to which it is reasonable to meet any wish by the
33
employee to live outside an institution;
34
(d) the extent to which attendant care services are necessary to
35
enable the employee to undertake or continue employment;
36
Amendments Schedule 2
Catastrophic injuries to seafarers etc. Part 1
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
7
(e) any assessment made in relation to the rehabilitation of the
1
employee;
2
(f) the extent to which a relative of the employee might
3
reasonably be expected to provide attendant care services.
4
Note:
In relation to paragraph (4)(f), see also section 16.
5
Recipient of compensation
6
(5) An amount of compensation payable under subsection (1) or (3) is
7
payable:
8
(a) if the employee has paid for the household services or
9
attendant care services, as the case may be--to the employee;
10
or
11
(b) in any other case--to the person who provided those
12
services.
13
(6) If an amount of compensation is paid under subsection (1) or (3) to
14
a person who provided household services or attendant care
15
services to an employee, the payment of the amount is, to the
16
extent of the payment, a discharge of the liability of the employee
17
to pay for those services.
18
5 Subsection 76(1) (definition of determination)
19
After "43,", insert "43A,".
20
6 At the end of Part 9
21
Add:
22
144 Legislative rules
23
(1) The Minister may, by legislative instrument, make rules
24
(legislative rules) prescribing matters:
25
(a) required or permitted by this Act to be prescribed by the
26
legislative rules; or
27
(b) necessary or convenient to be prescribed for carrying out or
28
giving effect to this Act.
29
(2) To avoid doubt, the legislative rules may not do the following:
30
(a) create an offence or civil penalty;
31
(b) provide powers of:
32
Schedule 2 Amendments
Part 1 Catastrophic injuries to seafarers etc.
8
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
(i) arrest or detention; or
1
(ii) entry, search or seizure;
2
(c) impose a tax;
3
(d) set an amount to be appropriated from the Consolidated
4
Revenue Fund under an appropriation in this Act;
5
(e) directly amend the text of this Act.
6
Amendments Schedule 2
Implementation of amendments of the Maritime Labour Convention relating to
insurance obligations of employers of seafarers Part 2
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
9
Part 2--Implementation of amendments of the
1
Maritime Labour Convention relating to
2
insurance obligations of employers of
3
seafarers
4
Seafarers Rehabilitation and Compensation Act 1992
5
7 At the end of section 93
6
Add:
7
(5) An employer applying for membership of:
8
(a) a protection and indemnity association; or
9
(b) an employers' mutual indemnity association;
10
in relation to liability under this Act must give the association a full
11
and correct statement of:
12
(c) all salaries or wages paid to employees; and
13
(d) all other remuneration provided to employees, whether in
14
monetary form or otherwise;
15
for the period relevant to working out the membership fee.
16
(6) An employer's membership of:
17
(a) a protection and indemnity association; or
18
(b) an employers' mutual indemnity association;
19
in relation to liability under this Act is not subject to stamp duty or
20
any other tax under a law of a State or Territory.
21
8 After section 94
22
Insert:
23
94A Employer to notify Authority of changes to, or cancellation or
24
termination of, insurance or indemnity arrangements
25
(1) If:
26
(a) an employer:
27
(i) has a policy of insurance or indemnity; or
28
(ii) is a member of a protection and indemnity association
29
or an employers' mutual indemnity association;
30
Schedule 2 Amendments
Part 2 Implementation of amendments of the Maritime Labour Convention relating to
insurance obligations of employers of seafarers
10
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
referred to in section 93; and
1
(b) either:
2
(i) there is a change to the policy or membership; or
3
(ii) the policy or membership is cancelled or terminated;
4
the employer must:
5
(c) notify the Authority of the change, cancellation or
6
termination, as the case may be; and
7
(d) do so within 14 days after the change, cancellation or
8
termination, as the case may be.
9
Offence
10
(2) A person commits an offence if:
11
(a) the person is subject to a requirement under subsection (1);
12
and
13
(b) the person omits to do an act; and
14
(c) the omission breaches the requirement.
15
Penalty: 20 penalty units.
16
(3) Subsection (2) is an offence of strict liability.
17
Note:
For strict liability, see section 6.1 of the Criminal Code.
18
9 At the end of Division 1 of Part 7
19
Add:
20
95A Employer to notify employees of prospective cancellation or
21
termination of insurance or indemnity arrangements
22
(1) If:
23
(a) an employer:
24
(i) has a policy of insurance or indemnity; or
25
(ii) is a member of a protection and indemnity association
26
or an employers' mutual indemnity association;
27
referred to in section 93; and
28
(b) the employer becomes aware that the policy or membership
29
is to be cancelled or terminated;
30
the employer must:
31
Amendments Schedule 2
Implementation of amendments of the Maritime Labour Convention relating to
insurance obligations of employers of seafarers Part 2
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
11
(c) notify the prospective cancellation or termination to each of
1
the employees of the employer; and
2
(d) do so:
3
(i) as soon as practicable after becoming so aware; and
4
(ii) before the policy or membership is cancelled or
5
terminated.
6
Offence
7
(2) A person commits an offence if:
8
(a) the person is subject to a requirement under subsection (1);
9
and
10
(b) the person omits to do an act; and
11
(c) the omission breaches the requirement.
12
Penalty: 20 penalty units.
13
(3) Subsection (2) is an offence of strict liability.
14
Note:
For strict liability, see section 6.1 of the Criminal Code.
15
95B Information about insurance or indemnity arrangements to be
16
displayed on board a vessel
17
Vessel operated by employer
18
(1) If:
19
(a) an employer:
20
(i) has a policy of insurance or indemnity; or
21
(ii) is a member of a protection and indemnity association
22
or an employers' mutual indemnity association;
23
referred to in section 93; and
24
(b) one or more employees of the employer are employed on a
25
vessel that is registered under the Shipping Registration Act
26
1981; and
27
(c) the employer is the operator of the vessel;
28
the employer must ensure that, at all times when any of those
29
employees is on the vessel:
30
(d) a certificate that complies with subsection (3); and
31
(e) a statement that complies with subsection (4);
32
Schedule 2 Amendments
Part 2 Implementation of amendments of the Maritime Labour Convention relating to
insurance obligations of employers of seafarers
12
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
are displayed on board the vessel in a conspicuous position that is
1
readily accessible to each of those employees.
2
Vessel operated by person other than employer
3
(2) If:
4
(a) an employer:
5
(i) has a policy of insurance or indemnity; or
6
(ii) is a member of a protection and indemnity association
7
or an employers' mutual indemnity association;
8
referred to in section 93; and
9
(b) one or more employees of the employer are employed on a
10
vessel that is registered under the Shipping Registration Act
11
1981; and
12
(c) the employer is not the operator of the vessel;
13
the operator must ensure that, at all times when any of those
14
employees is on the vessel:
15
(d) a certificate that complies with subsection (3); and
16
(e) a statement that complies with subsection (4);
17
are displayed on board the vessel in a conspicuous position that is
18
readily accessible to each of those employees.
19
Certificate of insurance etc.
20
(3) The certificate mentioned in paragraph (1)(d) or (2)(d) must:
21
(a) in the case of a policy of insurance or indemnity from an
22
authorised insurer:
23
(i) be issued by the authorised insurer; and
24
(ii) set out such information about the policy as is specified
25
in the legislative rules; and
26
(b) in the case of membership of a protection and indemnity
27
association or an employers' mutual indemnity association:
28
(i) be issued by the association; and
29
(ii) set out such information about the membership as is
30
specified in the legislative rules.
31
Information statement
32
(4) The statement mentioned in paragraph (1)(e) or (2)(e) must set out:
33
Amendments Schedule 2
Implementation of amendments of the Maritime Labour Convention relating to
insurance obligations of employers of seafarers Part 2
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
13
(a) such information about the vessel as is specified in the
1
legislative rules; and
2
(b) such other information (if any) as is specified in the
3
legislative rules.
4
Offence
5
(5) A person commits an offence if:
6
(a) the person is subject to a requirement under subsection (1) or
7
(2); and
8
(b) the person omits to do an act; and
9
(c) the omission breaches the requirement.
10
Penalty: 20 penalty units.
11
(6) Subsection (5) is an offence of strict liability.
12
Note:
For strict liability, see section 6.1 of the Criminal Code.
13
Definitions
14
(7) In this section:
15
operator of a vessel means:
16
(a) a person with overall general control and management of the
17
vessel; or
18
(b) a person who has assumed responsibility for the vessel from:
19
(i) a person referred to in paragraph (a); or
20
(ii) a person who has a legal or beneficial interest in the
21
vessel.
22
vessel means a ship.
23
Schedule 2 Amendments
Part 3 Other amendments relating to seafarers
14
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
Part 3--Other amendments relating to seafarers
1
Offshore Petroleum and Greenhouse Gas Storage Act 2006
2
10 Subsection 640(3) (paragraph (b) of the definition of
3
Commonwealth maritime legislation)
4
Repeal the paragraph, substitute:
5
(b) the Work Health and Safety Act 2011, so far as that Act
6
applies because of subsection 12(8A) of that Act; and
7
Safety, Rehabilitation and Compensation Act 1988
8
11 Subsection 4(1)
9
Insert:
10
designated actuary has the same meaning as in the Seafarers
11
Safety and Compensation Levies Act 2016.
12
Seacare Advisory Group means the Seacare Advisory Group
13
constituted under section 89RA.
14
12 Section 69 (note)
15
After "2005", insert ", the Seafarers Rehabilitation and Compensation
16
Act 1992".
17
13 Section 72A (heading)
18
Repeal the heading, substitute:
19
72A Duty to assist the Commission
20
14 Subsection 72A(1)
21
Omit "(1)".
22
15 Subsection 72A(2)
23
Repeal the subsection.
24
Amendments Schedule 2
Other amendments relating to seafarers Part 3
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
15
16 Section 89B (note)
1
After "by", insert "the Seafarers Rehabilitation and Compensation Act
2
1992, the Seafarers and Other Legislation Amendment Act 2016 and".
3
17 After section 89R
4
Insert:
5
89RA Seacare Advisory Group
6
(1) The Chairperson may constitute a committee, to be known as the
7
Seacare Advisory Group.
8
(2) The Seacare Advisory Group has the following functions:
9
(a) to assist the Commission in the performance of the
10
Commission's functions, and the exercise of the
11
Commission's powers, under the following provisions:
12
(i) Divisions 3 and 4 of Part 1A of the Seafarers
13
Rehabilitation and Compensation Act 1992;
14
(ii) subsection 274(2B) of the Work Health and Safety Act
15
2011;
16
(b) to give advice or information to the Commission about a
17
matter that relates to:
18
(i) the Seafarers Rehabilitation and Compensation Act
19
1992; or
20
(ii) the Seafarers Safety and Compensation Levies Act
21
2016; or
22
(iii) the Seafarers Safety and Compensation Levies
23
Collection Act 2016;
24
if the Seacare Advisory Group is requested to do so by the
25
Commission;
26
(c) to give advice or information to Comcare about a matter that
27
relates to compliance with section 93 of the Seafarers
28
Rehabilitation and Compensation Act 1992;
29
(d) to give advice or information to Comcare about any other
30
matter that relates to the Seafarers Rehabilitation and
31
Compensation Act 1992, if:
32
(i) the Seacare Advisory Group is requested to do so by
33
Comcare; or
34
Schedule 2 Amendments
Part 3 Other amendments relating to seafarers
16
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
(ii) the Seacare Advisory Group considers that doing so on
1
its own initiative is likely to assist Comcare in the
2
performance of Comcare's functions, or the exercise of
3
Comcare's powers, under that Act;
4
(e) to give advice or information to the designated actuary about
5
a matter that relates to the exercise of the designated
6
actuary's powers under the Seafarers Safety and
7
Compensation Levies Act 2016, if the Seacare Advisory
8
Group is requested to do so by the designated actuary;
9
(f) such other functions as are conferred on the Seacare
10
Advisory Group by a law of the Commonwealth other than
11
this Act; and
12
(g) to do anything incidental to or conducive to the performance
13
of any of the above functions.
14
(3) In performing its functions, or exercising its powers under:
15
(a) the Seafarers Rehabilitation and Compensation Act 1992; or
16
(b) the Seafarers Safety and Compensation Levies Act 2016; or
17
(c) the Seafarers Safety and Compensation Levies Collection Act
18
2016;
19
the Commission must have regard to any relevant advice or
20
information given to it by the Seacare Advisory Group.
21
(4) Subsection (3) does not, by implication, limit the matters to which
22
the Commission may have regard.
23
(5) In performing its functions, or exercising its powers under the
24
Seafarers Rehabilitation and Compensation Act 1992, Comcare
25
must have regard to any relevant advice or information given to it
26
by the Seacare Advisory Group.
27
(6) Subsection (5) does not, by implication, limit the matters to which
28
Comcare may have regard.
29
(7) In exercising his or her powers under the Seafarers Safety and
30
Compensation Levies Act 2016, the designated actuary must have
31
regard to any relevant advice or information given to the
32
designated actuary by the Seacare Advisory Group.
33
(8) Subsection (7) does not, by implication, limit the matters to which
34
the designated actuary may have regard.
35
Amendments Schedule 2
Other amendments relating to seafarers Part 3
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
17
(9) The Seacare Advisory Group has the power to do all things that are
1
necessary or convenient to be done for or in connection with the
2
performance of its functions.
3
Members
4
(10) The Seacare Advisory Group is to be constituted by such persons
5
as the Chairperson appoints.
6
(11) At least one member of the Seacare Advisory Group must be a
7
person appointed on the nomination of an organisation or
8
organisations that the Chairperson is satisfied represents the
9
interests of employers of employees (within the meaning of the
10
Seafarers Rehabilitation and Compensation Act 1992).
11
(12) At least one member of the Seacare Advisory Group must be a
12
person appointed on the nomination of an organisation or
13
organisations that the Chairperson is satisfied represents the
14
interests of employees (within the meaning of the Seafarers
15
Rehabilitation and Compensation Act 1992).
16
(13) A member of the Seacare Advisory Group must not be paid
17
remuneration or allowances.
18
(14) However, the Chairperson may determine that a member of the
19
Seacare Advisory Group is to be reimbursed the expenses that the
20
member reasonably incurs in performing duties as a member.
21
(15) A member of the Seacare Advisory Group may resign his or her
22
appointment by giving the Chairperson a written resignation.
23
(16) The resignation takes effect on the day it is received by the
24
Chairperson or, if a later day is specified in the resignation, on that
25
later day.
26
(17) The Chairperson may terminate the appointment of a member of
27
the Seacare Advisory Group.
28
(18) A member of the Seacare Advisory Group holds office on the
29
terms and conditions (if any) in relation to matters not covered by
30
this Act that are determined by the Chairperson.
31
Schedule 2 Amendments
Part 3 Other amendments relating to seafarers
18
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
Procedures
1
(19) The procedures under which the Seacare Advisory Group is to
2
operate are to be as determined by the Chairperson.
3
Reports, documents and information
4
(20) The Seacare Advisory Group must give the Commission such
5
reports, documents and information in relation to the Seacare
6
Advisory Group's functions as the Commission requests.
7
18 At the end of section 89S
8
Add:
9
(3) If the Seacare Advisory Group was constituted under section 89RA
10
during the whole or a part of a financial year, a report under this
11
section for the financial year must include a statement that:
12
(a) outlines the membership of the Seacare Advisory Group
13
during the financial year; and
14
(b) outlines the activities of the Seacare Advisory Group during
15
the financial year in relation to:
16
(i) the function set out in paragraph 89RA(2)(a); and
17
(ii) the consultation requirements set out in
18
subsection 4A(4) of the Seafarers Rehabilitation and
19
Compensation Act 1992; and
20
(iii) the consultation requirements set out in subsection 10(5)
21
of the Seafarers Safety and Compensation Levies Act
22
2016; and
23
(iv) the consultation requirements set out in subsection 14(6)
24
of the Seafarers Safety and Compensation Levies Act
25
2016; and
26
(c) lists the significant matters on which the Seacare Advisory
27
Group gave advice to the Commission during the financial
28
year.
29
(4) If the Seacare Advisory Group was not constituted under
30
section 89RA during the whole or a part of a financial year, a
31
report under this section for the financial year must include a
32
statement that sets out the reasons why the Seacare Advisory
33
Group was not so constituted.
34
Amendments Schedule 2
Other amendments relating to seafarers Part 3
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
19
(5) Subsection (4) does not apply to a financial year that ended before
1
the commencement of that subsection.
2
Seafarers Rehabilitation and Compensation Act 1992
3
19 Section 3
4
Insert:
5
action for non-economic loss means any action (whether or not it
6
involves the formal institution of a proceeding):
7
(a) to recover an amount for damages for non-economic loss
8
sustained by an employee as a result of an injury suffered by
9
that employee; and
10
(b) that is taken by the employee against the employer or another
11
employee; and
12
(c) that follows an election made by the first-mentioned
13
employee under subsection 55(1).
14
20 Section 3 (paragraph (a) of the definition of approved
15
Guide)
16
Omit "the Authority", substitute "Comcare".
17
21 Section 3 (definition of approved industry training course)
18
Repeal the definition.
19
22 Section 3
20
Insert:
21
Australia, when used in a geographical sense, includes the external
22
Territories.
23
Australian coastal sea means the area comprising:
24
(a) the territorial sea of Australia; and
25
(b) the sea on the landward side of the territorial sea of Australia
26
and not within the limits of a State or Territory.
27
23 Section 3 (definition of Australian General Shipping
28
Register)
29
Repeal the definition.
30
Schedule 2 Amendments
Part 3 Other amendments relating to seafarers
20
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
24 Section 3 (definition of Australian International Shipping
1
Register)
2
Repeal the definition.
3
25 Section 3 (definition of Australian Maritime Safety
4
Authority)
5
Repeal the definition.
6
26 Section 3 (definition of Authority)
7
Repeal the definition.
8
27 Section 3 (definition of Chairperson)
9
Repeal the definition.
10
28 Section 3 (definition of coastal trading)
11
Repeal the definition.
12
29 Section 3
13
Insert:
14
Commission means the Safety, Rehabilitation and Compensation
15
Commission.
16
Note:
The Commission is established by section 89A of the Safety,
17
Rehabilitation and Compensation Act 1988.
18
30 Section 3 (definition of company trainee)
19
Repeal the definition.
20
31 Section 3
21
Insert:
22
constitutional corporation means a corporation to which
23
paragraph 51(xx) of the Constitution applies.
24
32 Section 3 (definition of default event)
25
Repeal the definition, substitute:
26
default event has the meaning given by section 4A.
27
Amendments Schedule 2
Other amendments relating to seafarers Part 3
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
21
33 Section 3
1
Insert:
2
designated waters:
3
(a) in relation to a State--means:
4
(i) the territorial sea of Australia that is adjacent to the
5
State; and
6
(ii) the sea that is on the landward side of the territorial sea
7
mentioned in subparagraph (i) and not within the limits
8
of the State; and
9
(iii) waters within the limits of the State; or
10
(b) in relation to the Northern Territory--means:
11
(i) the territorial sea of Australia that is adjacent to the
12
Northern Territory; and
13
(ii) the sea that is on the landward side of the territorial sea
14
mentioned in subparagraph (i) and not within the limits
15
of the Northern Territory; and
16
(iii) waters within the limits of the Northern Territory.
17
34 Section 3 (definition of disease)
18
Repeal the definition, substitute:
19
disease has the meaning given by section 5B.
20
35 Section 3 (definition of emergency licence)
21
Repeal the definition.
22
36 Section 3 (definition of financial corporation)
23
Repeal the definition.
24
37 Section 3
25
Insert:
26
fish includes turtles, dugong, crustacea, molluscs and any other
27
living resources of the sea or of the seabed.
28
fishing fleet support vessel has the meaning given by section 3B.
29
fishing operations means:
30
Schedule 2 Amendments
Part 3 Other amendments relating to seafarers
22
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
(a) the taking, catching or capturing of fish for trading or
1
manufacturing purposes; or
2
(b) the processing or carrying of the fish that are taken, caught or
3
captured.
4
fishing vessel has the meaning given by section 3B.
5
38 Section 3 (definition of foreign corporation)
6
Repeal the definition.
7
39 Section 3
8
Insert:
9
foreign vessel means a ship (within the meaning of the Shipping
10
Registration Act 1981) that does not have Australian nationality.
11
Note:
See section 29 of the Shipping Registration Act 1981.
12
40 Section 3 (definition of Fund)
13
Repeal the definition.
14
41 Section 3 (definition of general licence)
15
Repeal the definition.
16
42 Section 3 (definition of Government ship)
17
Repeal the definition.
18
43 Section 3
19
Insert:
20
government vessel means a vessel:
21
(a) that belongs to the Commonwealth or a State or Territory; or
22
(b) the beneficial interest in which is vested in the
23
Commonwealth or a State or Territory; or
24
(c) that is for the time being demised or sub-demised to, or in the
25
exclusive possession of, the Commonwealth or a State or
26
Territory;
27
and includes a vessel that belongs to an arm of the Defence Force,
28
but does not include a vessel:
29
Amendments Schedule 2
Other amendments relating to seafarers Part 3
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
23
(d) that belongs to a trading corporation that is an authority or
1
agency of the Commonwealth or of a State or a Territory; or
2
(e) the beneficial interest in which is vested in such a trading
3
corporation; or
4
(f) that is for the time being demised or sub-demised to, or in the
5
exclusive possession of, such a trading corporation; or
6
(g) that is operated by seafarers supplied (directly or indirectly)
7
by a corporation under a contract with the Commonwealth or
8
a State or Territory.
9
harbour means a natural or artificial harbour, and includes:
10
(a) a navigable estuary, river, creek or channel; and
11
(b) a haven, roadstead, dock, pier, jetty or offshore terminal; and
12
(c) any other place in or at which vessels can obtain shelter or
13
load and unload goods or embark and disembark passengers.
14
44 Section 3 (definition of industry trainee)
15
Repeal the definition.
16
45 Section 3 (definition of injury)
17
Repeal the definition, substitute:
18
injury has the meaning given by section 5A.
19
46 Section 3
20
Insert:
21
inland waterways vessel means a vessel that is used wholly in
22
waters other than waters of the sea.
23
local tourism vessel means a vessel that is wholly or
24
predominantly engaged in tourism, other than tourism that involves
25
a voyage by the vessel:
26
(a) between Australia and a foreign country; or
27
(b) between 2 States; or
28
(c) between 2 Territories, neither of which is the Coral Sea
29
Islands Territory; or
30
(d) between a State and a Territory (other than the Coral Sea
31
Islands Territory).
32
Schedule 2 Amendments
Part 3 Other amendments relating to seafarers
24
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
47 Section 3 (at the end of the definition of medical
1
treatment)
2
Add:
3
; or (i) anything else that is prescribed by the legislative rules for the
4
purposes of this definition.
5
48 Section 3 (definition of member)
6
Repeal the definition.
7
49 Section 3
8
Insert:
9
offshore floating storage or production unit has the meaning
10
given by section 3D.
11
offshore industry mobile unit has the meaning given by
12
section 3C.
13
operator of a vessel means:
14
(a) a person with overall general control and management of the
15
vessel; or
16
(b) a person who has assumed responsibility for the vessel from:
17
(i) a person referred to in paragraph (a); or
18
(ii) a person who has a legal or beneficial interest in the
19
vessel.
20
opt-in declaration means a declaration under section 25H.
21
pension age has the meaning given by subsection 23(5A), (5B),
22
(5C) or (5D) of the Social Security Act 1991.
23
50 Section 3 (paragraph (a) of the definition of place of work)
24
Omit "ship", substitute "vessel".
25
51 Section 3 (paragraph (b) of the definition of place of work)
26
Repeal the paragraph, substitute:
27
(b) if the employee is a trainee--includes the prescribed vessel
28
on which the employee performs the role of a trainee.
29
Amendments Schedule 2
Other amendments relating to seafarers Part 3
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
25
52 Section 3
1
Insert:
2
port includes a harbour.
3
53 Section 3 (definition of prescribed ship)
4
Repeal the definition.
5
54 Section 3
6
Insert:
7
prescribed vessel has the meaning given by section 3A.
8
recreational vessel has the same meaning as in the Navigation Act
9
2012.
10
registered organisation means an organisation registered under the
11
Fair Work (Registered Organisations) Act 2009.
12
sea includes any waters within the ebb and flow of the tide.
13
55 Section 3 (definition of seafarer)
14
Repeal the definition, substitute:
15
seafarer means a person who is employed in any capacity
16
(including that of master) on a prescribed vessel, on the business of
17
the vessel, other than the following:
18
(a) a licensed pilot of the vessel (acting as such a pilot);
19
(b) an owner of the vessel or a person (except the master)
20
representing the owner;
21
(c) law enforcement personnel (in their capacity as law
22
enforcement personnel);
23
(d) if the vessel is a special purpose vessel--special personnel in
24
relation to the vessel;
25
(e) a person temporarily employed on the vessel in port;
26
(f) a person prescribed by regulations made for the purposes of
27
paragraph (f) of the definition of seafarer in section 14 of the
28
Navigation Act 2012.
29
For the purposes of this definition, master, licensed pilot, owner,
30
special purpose vessel and special personnel have the same
31
respective meanings as in the Navigation Act 2012.
32
Schedule 2 Amendments
Part 3 Other amendments relating to seafarers
26
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
56 Section 3 (definition of seafarer berth)
1
Repeal the definition.
2
57 Section 3
3
Insert:
4
seafarers insurance levy has the same meaning as in the Seafarers
5
Safety and Compensation Levies Act 2016.
6
58 Section 3
7
Insert:
8
significant degree means a degree that is substantially more than
9
material.
10
59 Section 3 (definition of superannuation scheme)
11
Repeal the definition, substitute:
12
superannuation scheme means:
13
(a) a superannuation scheme, or superannuation fund, under
14
which an employer makes contributions on behalf of its
15
employees; or
16
(b) a retirement savings account to which an employer makes
17
contributions on behalf of its employees.
18
For the purposes of this definition, disregard sections 25B, 25C and
19
25D.
20
60 Section 3 (definition of trainee)
21
Repeal the definition, substitute:
22
trainee means a person who:
23
(a) is undergoing a training course as required by his or her
24
employer before becoming a seafarer; or
25
(b) is obtaining sea service as required by his or her employer
26
before becoming a seafarer.
27
61 Section 3
28
Insert:
29
Amendments Schedule 2
Other amendments relating to seafarers Part 3
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
27
transitional declaration has the same meaning as in Part 8 of
1
Schedule 3 to the Seafarers and Other Legislation Amendment Act
2
2016.
3
vessel means any kind of vessel used in navigation by water,
4
however propelled or moved, and includes:
5
(a) a barge, lighter or other floating vessel; and
6
(b) an air-cushion vehicle, or other similar craft, used wholly or
7
primarily in navigation by water.
8
62 Section 3A
9
Repeal the section, substitute:
10
3A Prescribed vessel
11
(1) In this Act:
12
prescribed vessel means:
13
(a) a vessel registered, or required to be registered, under the
14
Shipping Registration Act 1981; or
15
(b) a foreign vessel of which the majority of the crew are
16
residents of Australia; or
17
(c) a vessel that is declared under subsection (2) to be a
18
prescribed vessel;
19
but does not include:
20
(d) a recreational vessel; or
21
(e) an inland waterways vessel; or
22
(f) a fishing vessel; or
23
(g) a fishing fleet support vessel; or
24
(h) an offshore floating storage or production unit; or
25
(i) an offshore industry mobile unit; or
26
(j) a government vessel; or
27
(k) a local tourism vessel; or
28
(l) a vessel that is declared under subsection (3) not to be a
29
prescribed vessel.
30
(2) The legislative rules may declare a vessel to be a prescribed vessel.
31
(3) The legislative rules may declare a vessel not to be a prescribed
32
vessel.
33
Schedule 2 Amendments
Part 3 Other amendments relating to seafarers
28
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
(4) If a vessel is the subject of a transitional declaration, the vessel is
1
taken to be a prescribed vessel for the purposes of this Act (other
2
than Division 2 or 3 of Part 1A).
3
3B Fishing vessels
4
(1) In this Act:
5
fishing fleet support vessel means a vessel that is used wholly or
6
primarily in activities in support of the fishing operations of a
7
fishing vessel or vessels, but does not include an inland waterways
8
vessel.
9
fishing vessel means a vessel:
10
(a) that is used wholly or primarily for fishing operations; and
11
(b) that:
12
(i) is registered, or entitled to be registered, under the
13
Shipping Registration Act 1981; or
14
(ii) is covered by an instrument in force under
15
subsection 4(2) of the Fisheries Management Act 1991;
16
but does not include an inland waterways vessel.
17
(2) For the purposes of this Act, activities in support of the fishing
18
operations of a fishing vessel include:
19
(a) the storage and transport of fish taken, caught or captured by
20
the fishing vessel; and
21
(b) the provision of food, fuel and other supplies to the fishing
22
vessel while it is engaged in fishing operations; and
23
(c) the transport of crew members to and from the fishing vessel
24
while it is engaged in fishing operations.
25
3C Offshore industry mobile unit
26
(1) In this Act:
27
offshore industry mobile unit means:
28
(a) an offshore industry floating structure; or
29
(b) an offshore industry living quarters barge; or
30
(c) an offshore industry drilling vessel.
31
(2) In this section:
32
Amendments Schedule 2
Other amendments relating to seafarers Part 3
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
29
natural resources means the mineral and other non-living
1
resources of the seabed and its subsoil.
2
offshore industry drilling vessel means a vessel that is used, or
3
intended for use, wholly or primarily in, or in any operations or
4
activities associated with or incidental to, exploring or exploiting
5
the natural resources of:
6
(a) the continental shelf of Australia; or
7
(b) the seabed of the Australian coastal sea; or
8
(c) the subsoil of that seabed;
9
by drilling the seabed or its subsoil, or by obtaining substantial
10
quantities of material from the seabed or its subsoil, with
11
equipment that is on, or forms part of, the vessel.
12
offshore industry fixed structure means a structure (including a
13
pipeline) that:
14
(a) is fixed to the seabed and is not able to move or be moved as
15
an entity from one place to another; and
16
(b) is used, or intended for use, in, or in any operations or
17
activities associated with or incidental to, exploring or
18
exploiting the natural resources of:
19
(i) the continental shelf of Australia; or
20
(ii) the seabed of the Australian coastal sea; or
21
(iii) the subsoil of that seabed.
22
offshore industry floating structure means a structure that:
23
(a) is not a vessel; and
24
(b) is able to float or be floated; and
25
(c) is able to move or be moved as an entity from one place to
26
another; and
27
(d) is used, or intended for use, wholly or primarily in, or in any
28
operations or activities associated with or incidental to,
29
exploring or exploiting the natural resources of:
30
(i) the continental shelf of Australia; or
31
(ii) the seabed of the Australian coastal sea; or
32
(iii) the subsoil of that seabed;
33
by drilling the seabed or its subsoil, or by obtaining
34
substantial quantities of material from the seabed or its
35
subsoil, with equipment that is on, or forms part of, the
36
structure.
37
Schedule 2 Amendments
Part 3 Other amendments relating to seafarers
30
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
offshore industry living quarters barge means a barge, or similar
1
vessel, that:
2
(a) is fitted with living quarters for more than 12 persons; and
3
(b) is used, or intended for use, wholly or primarily in
4
connection with the construction, maintenance or repair of
5
offshore industry fixed structures.
6
3D Offshore floating storage or production unit
7
(1) In this Act:
8
offshore floating storage or production unit means a vessel that
9
is:
10
(a) constructed or modified to accept petroleum, directly or
11
indirectly, from a sub-sea well or pipeline; and
12
(b) capable of storing the petroleum and delivering it to another
13
vessel or pipeline; and
14
(c) designed to be disconnected from its mooring:
15
(i) during bad weather; or
16
(ii) during an operational emergency; or
17
(iii) for the purposes of maintenance of the vessel; or
18
(iv) for the purposes of a survey of the vessel;
19
but does not include a vessel capable of engaging in drilling
20
operations for the exploration for, or the exploitation of, resources
21
beneath the seabed.
22
(2) For the purposes of subsection (1), it is immaterial whether the
23
vessel is capable of modifying petroleum while in storage on the
24
vessel:
25
(a) to suit it for transport; or
26
(b) to fit it for the commercial requirements of a consignee.
27
(3) For the purposes of this section, petroleum has the same meaning
28
as in the Offshore Petroleum and Greenhouse Gas Storage Act
29
2006.
30
63 Subsection 4(1) (paragraph (b) of the definition of
31
employee)
32
Omit "trainee; or", substitute "trainee.".
33
Amendments Schedule 2
Other amendments relating to seafarers Part 3
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
31
64 Subsection 4(1) (paragraph (c) of the definition of
1
employee)
2
Repeal the paragraph.
3
65 At the end of subsection 4(1)
4
Add:
5
Note:
See also section 18A of the Acts Interpretation Act 1901.
6
66 Subsection 4(2)
7
Repeal the subsection.
8
67 Subsection 4(3)
9
Repeal the subsection, substitute:
10
(3) If:
11
(a) a default event occurs in relation to the employer of a
12
seafarer or of a trainee; or
13
(b) immediately before the start of 1 July 2017, the Seafarers
14
Safety, Rehabilitation and Compensation Authority was the
15
employer of:
16
(i) a seafarer (within the meaning of this Act as in force
17
immediately before the start of 1 July 2017); or
18
(ii) a trainee (within the meaning of this Act as in force
19
immediately before the start of 1 July 2017);
20
because of repealed subsection (2) or (3) of this section
21
(when read together with repealed section 101);
22
then, for the purposes of this Act:
23
(c) the seafarer or trainee is taken to be employed by Comcare;
24
and
25
(d) Comcare is taken to be the employer of the seafarer or
26
trainee.
27
68 Subsection 4(5)
28
Repeal the subsection, substitute:
29
(5) To avoid doubt, a reference in this Act to the employment of an
30
employee is, if the employee is a trainee, a reference to the
31
employee's performance of the role of a trainee.
32
Schedule 2 Amendments
Part 3 Other amendments relating to seafarers
32
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
69 After section 4
1
Insert:
2
4A Default event
3
(1) For the purposes of this Act, a default event occurs in relation to an
4
employer when Comcare, by writing, declares that Comcare is
5
satisfied that the employer is unable to meet the employer's
6
liabilities under this Act.
7
(2) If an employer is a body corporate, Comcare must not make a
8
declaration under subsection (1) in relation to the employer unless
9
the employer:
10
(a) is being wound-up; or
11
(b) ceases to exist.
12
(3) If an employer is an individual, Comcare must not make a
13
declaration under subsection (1) in relation to the employer unless
14
the employer:
15
(a) becomes bankrupt; or
16
(b) applies to take the benefit of any law for the relief of
17
bankrupt or insolvent debtors; or
18
(c) compounds with the employer's creditors; or
19
(d) makes an assignment of the employer's property for the
20
benefit of the employer's creditors.
21
(4) If the Seacare Advisory Group has been constituted under
22
section 89RA of the Safety, Rehabilitation and Compensation Act
23
1988, then, before making a declaration under subsection (1) of
24
this section, Comcare must consult the Seacare Advisory Group.
25
(5) Comcare must publish a declaration under subsection (1) on
26
Comcare's website.
27
(6) A declaration under subsection (1) is not a legislative instrument.
28
70 Section 5
29
Omit "ship" (wherever occurring), substitute "vessel".
30
71 After section 5
31
Insert:
32
Amendments Schedule 2
Other amendments relating to seafarers Part 3
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
33
5A Injury
1
(1) In this Act:
2
injury means:
3
(a) a disease suffered by an employee; or
4
(b) an injury (other than a disease) suffered by an employee, that
5
is a physical or mental injury arising out of, or in the course
6
of, the employee's employment; or
7
(c) an aggravation of a physical or mental injury (other than a
8
disease) suffered by an employee (whether or not that injury
9
arose out of, or in the course of, the employee's
10
employment), that is an aggravation that arose out of, or in
11
the course of, that employment;
12
but does not include a disease, injury or aggravation suffered as a
13
result of reasonable administrative action taken in a reasonable
14
manner in respect of the employee's employment.
15
Note:
For disease, see section 5B.
16
Reasonable administrative action
17
(2) For the purposes of subsection (1), reasonable administrative
18
action includes (but is not limited to) the following:
19
(a) a reasonable appraisal of the employee's performance;
20
(b) a reasonable counselling action (whether formal or informal)
21
taken in respect of the employee's employment;
22
(c) a reasonable suspension action in respect of the employee's
23
employment;
24
(d) a reasonable disciplinary action (whether formal or informal)
25
taken in respect of the employee's employment;
26
(e) anything reasonable done in connection with an action
27
mentioned in paragraph (a), (b), (c) or (d);
28
(f) anything reasonable done in connection with the employee's
29
failure to obtain a promotion, reclassification, transfer or
30
benefit, or to retain a benefit, in connection with his or her
31
employment.
32
5B Disease
33
(1) In this Act:
34
Schedule 2 Amendments
Part 3 Other amendments relating to seafarers
34
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
disease means:
1
(a) an ailment suffered by an employee; or
2
(b) an aggravation of such an ailment;
3
that was contributed to, to a significant degree, by the employee's
4
employment.
5
(2) In determining whether an ailment or aggravation was contributed
6
to, to a significant degree, by an employee's employment, the
7
following matters may be taken into account:
8
(a) the duration of the employment;
9
(b) the nature of, and particular tasks involved in, the
10
employment;
11
(c) any predisposition of the employee to the ailment or
12
aggravation;
13
(d) any activities of the employee not related to the employment;
14
(e) any other matters affecting the employee's health.
15
This subsection does not limit the matters that may be taken into
16
account.
17
72 Section 9
18
Omit "ship" (wherever occurring), substitute "vessel".
19
73 Paragraph 9(2)(c)
20
Omit "required course of training", substitute "training course that the
21
trainee was required by his or her employer to undergo".
22
74 Paragraph 9(2)(c)
23
Omit "that course of training", substitute "that training course".
24
75 Paragraph 9(2)(d)
25
Repeal the paragraph, substitute:
26
(d) if the employee is a trainee--while the trainee was obtaining
27
sea service that the trainee was required by his or her
28
employer to obtain (including during an ordinary recess in
29
that sea service); or
30
76 Subparagraph 9(2)(e)(iii)
31
Repeal the subparagraph.
32
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77 Subparagraph 9(2)(e)(v)
1
Omit "a required course of training was being conducted", substitute
2
"the trainee was undergoing training that the trainee was required by his
3
or her employer to undergo".
4
78 Subsection 9(3)
5
Omit "(iii),".
6
79 After subsection 9(3)
7
Insert:
8
(3A) Subparagraph (2)(e)(i), (iv), (v) or (vi) does not apply in relation to
9
travel by an employee if:
10
(a) the travel was from the employee's place of work; and
11
(b) the employee delayed commencing the travel; and
12
(c) the reason for the delay was private or domestic;
13
unless:
14
(d) the delay is attributable to circumstances beyond the control
15
of the employee; or
16
(e) both:
17
(i) the delay does not exceed 72 hours; and
18
(ii) the employer has given written agreement to the delay.
19
(3B) Subparagraph (2)(e)(i), (iv), (v) or (vi) does not apply in relation to
20
travel by an employee if:
21
(a) the travel was by a route that was not direct having regard to
22
the means of transport used; and
23
(b) the reason for taking the route was private or domestic;
24
unless taking the route is attributable to circumstances beyond the
25
control of the employee.
26
(3C) Subparagraph (2)(e)(i), (iv), (v) or (vi) does not apply in relation to
27
travel by an employee if:
28
(a) there was an interruption of the travel; and
29
(b) the reason for the interruption was private or domestic;
30
unless:
31
(c) the interruption is attributable to circumstances beyond the
32
control of the employee; or
33
(d) both:
34
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(i) the interruption does not exceed 72 hours; and
1
(ii) the employer has given written agreement to the
2
interruption.
3
80 Subsection 9(5)
4
Repeal the subsection.
5
81 Subsection 13(3)
6
Repeal the subsection.
7
82 Section 19
8
Repeal the section.
9
83 Section 20A
10
Repeal the section.
11
84 After Part 1
12
Insert:
13
Part 1A--Coverage
14
Division 1--Introduction
15
25A Simplified outline of this Part
16
•
This Act applies to the employment of an employee on a
17
prescribed vessel if:
18
(a)
the vessel is not used wholly or predominantly for
19
intra-State voyages or tasks; and
20
(b)
a constitutional condition is satisfied.
21
•
This Act applies to the employment of an employee on a
22
prescribed vessel if:
23
(a)
the vessel is the subject of an opt-in declaration; and
24
(b)
a constitutional condition is satisfied.
25
•
This Act applies to the employment of an employee on a
26
vessel if:
27
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(a)
the vessel is the subject of a transitional declaration; and
1
(b)
a constitutional condition is satisfied.
2
•
The Commission may exempt the employment of any or all of
3
the employees on a particular vessel from the application of
4
this Act.
5
Division 2--Employment covered by this Act
6
25B Basic coverage rules
7
(1) This Act applies to the employment of an employee on a
8
prescribed vessel if:
9
(a) the vessel is not used wholly or predominantly for intra-State
10
voyages or tasks; and
11
(b) any of the conditions set out in subsection (3) is satisfied.
12
(2) This Act applies to the employment of a trainee who, as required
13
by his or her employer, is undergoing a training course in
14
connection with, or for the purpose of, employment by the
15
employer on a prescribed vessel if:
16
(a) the vessel is not used wholly or predominantly for intra-State
17
voyages or tasks; and
18
(b) any of the conditions set out in subsection (3) is satisfied.
19
Constitutional conditions
20
(3) For the purposes of paragraphs (1)(b) and (2)(b), the conditions are
21
as follows:
22
(a) the employer is a constitutional corporation;
23
(b) the operator of the vessel is a constitutional corporation;
24
(c) any of the following subparagraphs applies:
25
(i) a constitutional corporation holds more than 50% of the
26
legal ownership of the vessel;
27
(ii) a constitutional corporation holds more than 50% of the
28
beneficial ownership of the vessel;
29
(iii) 2 or more constitutional corporations hold, in total,
30
more than 50% of the legal ownership of the vessel;
31
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(iv) 2 or more constitutional corporations hold, in total,
1
more than 50% of the beneficial ownership of the
2
vessel;
3
(d) the vessel is engaged in trade or commerce:
4
(i) between Australia and places outside Australia; or
5
(ii) among the States; or
6
(iii) within a Territory, between a State and a Territory or
7
between 2 Territories;
8
(e) the vessel is not within the limits of a State or Territory;
9
(f) the vessel is within the limits of a Territory.
10
(4) Subparagraphs (3)(c)(i) to (iv) do not apply to a constitutional
11
corporation that has no involvement, or negligible involvement, in
12
the overall general control and management of the vessel.
13
Intra-State voyages or tasks
14
(5) For the purposes of this section, intra-State voyage or task means:
15
(a) a voyage, or other task, that is wholly within the designated
16
waters of a particular State; or
17
(b) a voyage, or other task, that is wholly within the designated
18
waters of the Northern Territory.
19
Certain voyages taken to be wholly within designated waters
20
(6) For the purposes of paragraph (5)(a), if:
21
(a) a vessel is proceeding on a voyage between 2 places in a
22
particular State; and
23
(b) in the course of the voyage, the vessel is present in waters
24
beyond the outer limits of the designated waters of the State;
25
and
26
(c) the presence of the vessel in waters beyond those outer limits
27
is because it is not reasonably practicable for the vessel to
28
remain within the designated waters of the State;
29
the voyage is taken to be wholly within the designated waters of
30
the State.
31
(7) For the purposes of paragraph (5)(b), if:
32
(a) a vessel is proceeding on a voyage between 2 places in the
33
Northern Territory; and
34
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(b) in the course of the voyage, the vessel is present in waters
1
beyond the outer limits of the designated waters of the
2
Northern Territory; and
3
(c) the presence of the vessel in waters beyond those outer limits
4
is because it is not reasonably practicable for the vessel to
5
remain within the designated waters of the Northern
6
Territory;
7
the voyage is taken to be wholly within the designated waters of
8
the Northern Territory.
9
Note:
See also sections 25M and 25N (exemptions).
10
25C Opt-in vessels
11
(1) This Act applies to the employment of an employee on a
12
prescribed vessel if:
13
(a) the vessel is the subject of an opt-in declaration; and
14
(b) the employee is covered by the declaration; and
15
(c) any of the conditions set out in subsection (3) is satisfied.
16
(2) This Act applies to the employment of a trainee who, as required
17
by his or her employer, is undergoing a training course in
18
connection with, or for the purpose of, employment by the
19
employer on a prescribed vessel if:
20
(a) the vessel is the subject of an opt-in declaration; and
21
(b) any of the conditions set out in subsection (3) is satisfied.
22
Constitutional conditions
23
(3) For the purposes of paragraphs (1)(c) and (2)(b), the conditions are
24
as follows:
25
(a) the employer is a constitutional corporation;
26
(b) the operator of the vessel is a constitutional corporation;
27
(c) any of the following subparagraphs applies:
28
(i) a constitutional corporation holds more than 50% of the
29
legal ownership of the vessel;
30
(ii) a constitutional corporation holds more than 50% of the
31
beneficial ownership of the vessel;
32
(iii) 2 or more constitutional corporations hold, in total,
33
more than 50% of the legal ownership of the vessel;
34
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(iv) 2 or more constitutional corporations hold, in total,
1
more than 50% of the beneficial ownership of the
2
vessel;
3
(d) the vessel is engaged in trade or commerce:
4
(i) between Australia and places outside Australia; or
5
(ii) among the States; or
6
(iii) within a Territory, between a State and a Territory or
7
between 2 Territories;
8
(e) the vessel is not within the limits of a State or Territory;
9
(f) the vessel is within the limits of a Territory.
10
(4) Subparagraphs (3)(c)(i) to (iv) do not apply to a constitutional
11
corporation that has no involvement, or negligible involvement, in
12
the overall general control and management of the vessel.
13
Disregard conditions of declaration
14
(5) For the purposes of this section, in determining whether a vessel is
15
the subject of an opt-in declaration, disregard any conditions of the
16
declaration.
17
Note 1:
For opt-in declaration, see section 25H.
18
Note 2:
See also sections 25M and 25N (exemptions).
19
25D Transitional vessels
20
(1) This Act applies to the employment of an employee on a vessel if:
21
(a) the vessel is the subject of a transitional declaration; and
22
(b) any of the conditions set out in subsection (3) is satisfied.
23
(2) This Act applies to the employment of a trainee who, as required
24
by his or her employer, is undergoing a training course in
25
connection with, or for the purpose of, employment by the
26
employer on a vessel if:
27
(a) the vessel is the subject of a transitional declaration; and
28
(b) any of the conditions set out in subsection (3) is satisfied.
29
Constitutional conditions
30
(3) For the purposes of paragraphs (1)(b) and (2)(b), the conditions are
31
as follows:
32
(a) the employer is a constitutional corporation;
33
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41
(b) the operator of the vessel is a constitutional corporation;
1
(c) any of the following subparagraphs applies:
2
(i) a constitutional corporation holds more than 50% of the
3
legal ownership of the vessel;
4
(ii) a constitutional corporation holds more than 50% of the
5
beneficial ownership of the vessel;
6
(iii) 2 or more constitutional corporations hold, in total,
7
more than 50% of the legal ownership of the vessel;
8
(iv) 2 or more constitutional corporations hold, in total,
9
more than 50% of the beneficial ownership of the
10
vessel;
11
(d) the vessel is engaged in trade or commerce:
12
(i) between Australia and places outside Australia; or
13
(ii) among the States; or
14
(iii) within a Territory, between a State and a Territory or
15
between 2 Territories;
16
(e) the vessel is not within the limits of a State or Territory;
17
(f) the vessel is within the limits of a Territory.
18
(4) Subparagraphs (3)(c)(i) to (iv) do not apply to a constitutional
19
corporation that has no involvement, or negligible involvement, in
20
the overall general control and management of the vessel.
21
Note 1:
For transitional declaration, see Part 8 of Schedule 3 to the Seafarers
22
and Other Legislation Amendment Act 2016.
23
Note 2:
See also sections 25M and 25N (exemptions).
24
Division 3--Opt-in declarations
25
25E Application for opt-in declaration
26
(1) A person may apply to the Commission for an opt-in declaration
27
that:
28
(a) relates to a prescribed vessel; and
29
(b) covers the employment on the vessel of:
30
(i) all employees; or
31
(ii) a specified group or specified groups of employees; or
32
(iii) a specified employee or specified employees.
33
(2) The applicant must be:
34
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(a) the owner or operator of the vessel; or
1
(b) the employer of the employee or employees proposed to be
2
covered by the declaration.
3
(3) The application must:
4
(a) be in writing; and
5
(b) be in a form approved, in writing, by the Commission; and
6
(c) nominate a number of days as the duration of the declaration;
7
and
8
(d) be accompanied by such information as is specified in the
9
legislative rules; and
10
(e) be accompanied by such documents (if any) as are specified
11
in the legislative rules; and
12
(f) be accompanied by the fee (if any) specified in the legislative
13
rules.
14
(4) The number of days nominated under paragraph (3)(c) must not be
15
greater than 1,095.
16
(5) The approved form of application may provide for verification by
17
statutory declaration of statements in applications.
18
(6) The approved form of application may require the applicant to state
19
that the applicant took reasonable steps to inform:
20
(a) each registered organisation (if any) that is entitled to
21
represent the interests of employees employed on the vessel;
22
and
23
(b) the employees employed on the vessel;
24
of a proposal to make the application.
25
(7) A fee specified under paragraph (3)(f) must not be such as to
26
amount to taxation.
27
Renewal application
28
(8) If:
29
(a) when the application is made, the vessel is already the subject
30
of an opt-in declaration (the earlier declaration); and
31
(b) the application is made at least 28 days before the expiry of
32
the earlier declaration;
33
the application may be expressed to be a renewal application.
34
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(9) If:
1
(a) when the application is made, the vessel is already the subject
2
of an opt-in declaration (the earlier declaration); and
3
(b) the application is expressed to be a renewal application; and
4
(c) the earlier declaration would, apart from this subsection,
5
expire before the Commission makes, or refuses to make, an
6
opt-in declaration in response to the application;
7
the earlier declaration continues in force until the Commission
8
makes, or refuses to make, an opt-in declaration in response to the
9
application.
10
(10) Subsection (9) has effect subject to section 25J.
11
25F Further information
12
(1) The Commission may, by written notice given to an applicant,
13
require the applicant to give the Commission, within the period
14
specified in the notice, further information in connection with the
15
application.
16
(2) If the applicant breaches the requirement, the Commission may, by
17
written notice given to the applicant:
18
(a) refuse to consider the application; or
19
(b) refuse to take any action, or any further action, in relation to
20
the application.
21
25G Withdrawal of application
22
(1) An applicant may withdraw the application at any time before the
23
Commission makes a decision on the application.
24
(2) This Act does not prevent the applicant from making a fresh
25
application.
26
(3) If:
27
(a) the applicant withdraws the application; and
28
(b) the applicant has paid a fee in relation to the application;
29
the Commission must, on behalf of the Commonwealth, refund the
30
application fee.
31
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25H Opt-in declaration
1
Scope
2
(1) This section applies if an application under section 25E has been
3
made for an opt-in declaration that:
4
(a) relates to a prescribed vessel; and
5
(b) covers the employment on the vessel of:
6
(i) all employees; or
7
(ii) a specified group or specified groups of employees; or
8
(iii) a specified employee or specified employees.
9
Declaration
10
(2) After considering the application, the Commission must:
11
(a) by writing, declare that the vessel is an opt-in vessel for the
12
purposes of this Act, and that the declaration covers the
13
employment on the vessel of:
14
(i) all employees; or
15
(ii) a specified group or specified groups of employees; or
16
(iii) a specified employee or specified employees; or
17
(b) refuse to make such a declaration.
18
(3) A declaration under subsection (2) is known as an opt-in
19
declaration.
20
(4) In deciding whether to make an opt-in declaration, the Commission
21
must have regard to:
22
(a) the matters (if any) prescribed by the legislative rules; and
23
(b) such other matters (if any) as the Commission considers
24
relevant.
25
(5) The Commission must not exercise the power under subsection (2)
26
in a way that would be inconsistent with an obligation of Australia
27
under an international agreement.
28
(6) An opt-in declaration is subject to the conditions (if any) set out in
29
the declaration.
30
Duration
31
(7) If:
32
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(a) the application is not expressed to be a renewal application;
1
and
2
(b) the Commission makes an opt-in declaration in response to
3
the application;
4
the opt-in declaration:
5
(c) comes into force on the day specified in the declaration; and
6
(d) remains in force for the number of days specified in the
7
declaration.
8
(8) The day specified under paragraph (7)(c) must be later than the day
9
on which the declaration is made.
10
(9) If:
11
(a) the application is expressed to be a renewal application; and
12
(b) the Commission makes an opt-in declaration in response to
13
the application;
14
the opt-in declaration:
15
(c) comes into force immediately after the expiry of the opt-in
16
declaration that:
17
(i) related to the vessel; and
18
(ii) was in force when the application was made; and
19
(d) remains in force for the number of days specified in the
20
declaration.
21
(10) Subsections (7) and (9) have effect subject to section 25J.
22
(11) The number of days specified under paragraph (7)(d) or (9)(d)
23
must be the same as the number of days nominated under
24
paragraph 25E(3)(c), unless the applicant agrees to the
25
specification of a different number of days.
26
Deadline
27
(12) If:
28
(a) the application is not expressed to be a renewal application;
29
and
30
(b) the Commission does not, within 28 days after:
31
(i) receiving the application; or
32
(ii) if the Commission has requested further information
33
under section 25F in relation to the application--
34
receiving that further information;
35
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Seafarers and Other Legislation Amendment Bill 2016
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make a decision under subsection (2) in relation to the
1
application:
2
then:
3
(c) the Commission is taken, at the end of that 28-day period, to
4
have made a declaration under subsection (2) that the vessel
5
is an opt-in vessel for the purposes of this Act; and
6
(d) the declaration is taken to cover the employment on the
7
vessel of the employees covered by the application; and
8
(e) the declaration is taken to have specified under
9
paragraph (7)(d) or (9)(d), as the case requires, the number of
10
days nominated under paragraph 25E(3)(c).
11
Publication etc.
12
(13) The Commission must:
13
(a) give a copy of an opt-in declaration to:
14
(i) the owner and operator of the prescribed vessel to which
15
the declaration relates; and
16
(ii) the employer or employers of the employees covered by
17
the declaration; and
18
(b) publish the declaration on the Commission's website.
19
Refusal
20
(14) If the Commission decides to refuse to make an opt-in declaration,
21
the Commission must give written notice of the decision to the
22
applicant.
23
25J Suspension or revocation of opt-in declaration
24
(1) If an opt-in declaration is in force in relation to a prescribed vessel,
25
the Commission may, by writing:
26
(a) suspend the declaration for a specified period; or
27
(b) revoke the declaration.
28
(2) A suspension of an opt-in declaration takes effect on the day
29
specified in the instrument of suspension. The specified day must
30
be later than the day on which the instrument of suspension is
31
made.
32
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(3) A revocation of an opt-in declaration takes effect on the day
1
specified in the instrument of revocation. The specified day must
2
be later than the day on which the instrument of revocation is
3
made.
4
(4) The Commission may exercise the power under subsection (1):
5
(a) on its own initiative; or
6
(b) on application by:
7
(i) the owner or operator of the prescribed vessel to which
8
the declaration relates; or
9
(ii) the employer of any of the employees covered by the
10
declaration.
11
Application
12
(5) An application under paragraph (4)(b) must:
13
(a) be in writing; and
14
(b) be in a form approved, in writing, by the Commission.
15
(6) The approved form of application may provide for verification by
16
statutory declaration of statements in applications.
17
(7) The approved form of application may require the applicant to state
18
that the applicant took reasonable steps to inform:
19
(a) each registered organisation (if any) that is entitled to
20
represent the interests of employees employed on the vessel;
21
and
22
(b) the employees employed on the vessel;
23
of a proposal to make the application.
24
Criteria
25
(8) In deciding whether to suspend or revoke an opt-in declaration, the
26
Commission must have regard to:
27
(a) the matters (if any) prescribed by the legislative rules; and
28
(b) if the declaration is subject to one or more conditions--
29
whether there have been any contraventions of those
30
conditions; and
31
(c) such other matters (if any) as the Commission considers
32
relevant.
33
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Consultation
1
(9) Before deciding whether to suspend or revoke an opt-in declaration
2
that relates to a prescribed vessel, the Commission must:
3
(a) publish on its website a notice:
4
(i) setting out the draft instrument of suspension or
5
revocation; and
6
(ii) setting out the reasons for the proposed suspension or
7
revocation; and
8
(iii) inviting persons to make submissions to the
9
Commission about the draft instrument within 7 days
10
after the notice is published; and
11
(b) consider any submissions received within the 7-day period
12
mentioned in subparagraph (a)(iii).
13
Notification
14
(10) Within 14 days after suspending or revoking an opt-in declaration
15
that relates to a prescribed vessel, the Commission must:
16
(a) give a copy of the instrument of suspension or revocation to:
17
(i) the owner of the vessel; and
18
(ii) the operator of the vessel; and
19
(iii) the employer of any of the employees covered by the
20
declaration; and
21
(iv) each person who made a submission under
22
subsection (9) relating to the suspension or revocation;
23
and
24
(b) if the owner, operator, employer or person made a
25
submission under subsection (9) objecting to the suspension
26
or revocation--give the owner, operator, employer or person
27
a statement setting out the reasons for the suspension or
28
revocation.
29
Publication
30
(11) If the Commission suspends or revokes an opt-in declaration, the
31
Commission must publish the instrument of suspension or
32
revocation on the Commission's website.
33
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Suspension
1
(12) An opt-in declaration has no effect while it is suspended.
2
Refusal
3
(13) If:
4
(a) an application is made under paragraph (4)(b) for suspension
5
or revocation of an opt-in declaration; and
6
(b) the Commission decides not to suspend or revoke the
7
declaration;
8
the Commission must give written notice of the decision to the
9
applicant.
10
25K Review of decisions
11
Applications may be made to the AAT for review of a decision of
12
the Commission under subsection 25H(2) or (6) or 25J(1).
13
25L Extended meaning of owner
14
In this Division:
15
owner of a vessel means:
16
(a) the person who holds the whole of the legal ownership of the
17
vessel; or
18
(b) each of the persons who hold a part of the legal ownership of
19
the vessel.
20
Division 4--Exemption of employment
21
25M Exemption of employment
22
Exemption
23
(1) The Commission may make a written instrument exempting the
24
employment on a particular vessel of:
25
(a) all employees; or
26
(b) a specified group or specified groups of employees; or
27
(c) a specified employee or specified employees;
28
from the application of:
29
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(d) this Act; and
1
(e) the Seafarers Safety and Compensation Levies Act 2016; and
2
(f) the Seafarers Safety and Compensation Levies Collection Act
3
2016.
4
(2) An exemption may be:
5
(a) general; or
6
(b) as otherwise provided in the instrument of exemption.
7
(3) The Commission may make an instrument of exemption under
8
subsection (1):
9
(a) on its own initiative; or
10
(b) on application by:
11
(i) the owner or operator of the vessel to which the
12
exemption relates; or
13
(ii) the employer of the employee or employees covered by
14
the proposed exemption.
15
(4) If a person makes an application under paragraph (3)(b), the
16
Commission may, by written notice given to the applicant, refuse
17
the application.
18
(5) In deciding whether to make an instrument of exemption under
19
subsection (1), the Commission must have regard to:
20
(a) the matters (if any) prescribed by the legislative rules; and
21
(b) such other matters (if any) as the Commission considers
22
relevant.
23
(6) The Commission must not exercise the power under subsection (1)
24
in a way that would be inconsistent with an obligation of Australia
25
under an international agreement.
26
(7) An exemption is subject to the conditions (if any) set out in the
27
instrument of exemption.
28
Duration
29
(8) An instrument of exemption made on the Commission's own
30
initiative:
31
(a) comes into force on the day specified in the instrument of
32
exemption; and
33
(b) remains in force for:
34
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(i) one year; or
1
(ii) if a shorter period is specified in the instrument of
2
exemption--that period.
3
(9) The day specified under paragraph (8)(a) must be later than the day
4
on which the instrument of exemption is made.
5
(10) If:
6
(a) an application under paragraph (3)(b) is not expressed to be a
7
renewal application; and
8
(b) the Commission makes an instrument of exemption in
9
response to the application;
10
the instrument of exemption:
11
(c) comes into force on the day specified in the instrument of
12
exemption; and
13
(d) remains in force for:
14
(i) one year; or
15
(ii) if a shorter period is specified in the instrument of
16
exemption--that period.
17
(11) The day specified under paragraph (10)(c) must be later than the
18
day on which the instrument of exemption is made.
19
(12) If:
20
(a) an application under paragraph (3)(b) is expressed to be a
21
renewal application; and
22
(b) the Commission makes an instrument of exemption in
23
response to the application;
24
the instrument of exemption:
25
(c) comes into force immediately after the expiry of the
26
instrument of exemption that:
27
(i) related to the vessel; and
28
(ii) was in force when the application was made; and
29
(d) remains in force for one year.
30
(13) Subsections (9), (10) and (12) have effect subject to section 25Q.
31
Consultation
32
(14) Before deciding whether to make an instrument of exemption
33
under subsection (1) in relation to a vessel, the Commission must:
34
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(a) publish on its website a notice:
1
(i) setting out the draft instrument of exemption; and
2
(ii) setting out the reasons for the proposed exemption; and
3
(iii) inviting persons to make submissions to the
4
Commission about the draft instrument within 7 days
5
after the notice is published; and
6
(b) consider any submissions received within the 7-day period
7
mentioned in subparagraph (a)(iii).
8
Deadline
9
(15) If:
10
(a) a person makes an application under paragraph (3)(b) in
11
relation to a vessel; and
12
(b) the Commission does not, within 28 days after whichever is
13
the later of the following:
14
(i) the end of the 7-day period mentioned in
15
subparagraph (14)(a)(iii);
16
(ii) if the Commission has requested further information
17
under subsection 25P(9)--receiving that further
18
information;
19
either:
20
(iii) exercise the power under subsection (1); or
21
(iv) make a decision under subsection (4) to refuse the
22
application;
23
the Commission is taken to have made a decision under
24
subsection (4) at the end of that 28-day period to refuse the
25
application.
26
Notification
27
(16) Within 14 days after making an instrument of exemption under
28
subsection (1) that relates to a vessel, the Commission must:
29
(a) give a copy of the instrument of exemption to:
30
(i) the owner of the vessel; and
31
(ii) the operator of the vessel; and
32
(iii) the employer of any of the employees covered by the
33
exemption; and
34
(iv) each person who made a submission under
35
subsection (14) relating to the exemption; and
36
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(b) if the owner, operator, employer or person made a
1
submission under subsection (14) objecting to the
2
exemption--give the owner, operator, employer or person a
3
statement setting out the reasons for the exemption.
4
Publication
5
(17) If the Commission makes an instrument of exemption under
6
subsection (1), the Commission must publish the instrument of
7
exemption on the Commission's website.
8
25N Effect of exemption
9
If an instrument of exemption is in force under section 25M in
10
relation to a vessel:
11
(a) this Act (other than this section); and
12
(b) the Seafarers Safety and Compensation Levies Act 2016; and
13
(c) the Seafarers Safety and Compensation Levies Collection Act
14
2016;
15
do not apply, to the extent stated in the instrument of exemption, in
16
relation to the employment on the vessel of employees to whom
17
the exemption applies.
18
25P Application for exemption
19
Scope
20
(1) This section applies to an application under paragraph 25M(3)(b).
21
Form
22
(2) The application must be:
23
(a) in writing; and
24
(b) in a form approved, in writing, by the Commission; and
25
(c) accompanied by such information as is specified in the
26
legislative rules; and
27
(d) accompanied by such documents (if any) as are specified in
28
the legislative rules; and
29
(e) accompanied by the fee (if any) specified in the legislative
30
rules.
31
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(3) The approved form of application may provide for verification by
1
statutory declaration of statements in applications.
2
(4) The approved form of application may require the applicant to state
3
that the applicant took reasonable steps to inform:
4
(a) each registered organisation (if any) that is entitled to
5
represent the interests of employees employed on the relevant
6
vessel; and
7
(b) the employees employed on the relevant vessel;
8
of a proposal to make the application.
9
(5) A fee specified under paragraph (2)(e) must not be such as to
10
amount to taxation.
11
Renewal application
12
(6) If:
13
(a) when the application is made, the relevant vessel is already
14
the subject of a section 25M exemption (the earlier
15
exemption); and
16
(b) the application is made at least 28 days before the expiry of
17
the instrument of the earlier exemption;
18
the application may be expressed to be a renewal application.
19
(7) If:
20
(a) when the application is made, the relevant vessel is already
21
the subject of a section 25M exemption (the earlier
22
exemption); and
23
(b) the application is expressed to be a renewal application; and
24
(c) the instrument of the earlier exemption would, apart from this
25
subsection, expire before the Commission makes, or refuses
26
to make, an instrument of exemption in response to the
27
application;
28
the instrument of the earlier exemption continues in force until the
29
Commission makes, or refuses to make, an instrument of
30
exemption in response to the application.
31
(8) Subsection (7) has effect subject to section 25Q.
32
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Further information
1
(9) The Commission may, by written notice given to an applicant,
2
require the applicant to give the Commission, within the period
3
specified in the notice, further information in connection with the
4
application.
5
(10) If the applicant breaches the requirement, the Commission may, by
6
written notice given to the applicant:
7
(a) refuse to consider the application; or
8
(b) refuse to take any action, or any further action, in relation to
9
the application.
10
Withdrawal of application
11
(11) An applicant may withdraw the application at any time before the
12
Commission makes a decision on the application.
13
(12) This Act does not prevent the applicant from making a fresh
14
application.
15
(13) If:
16
(a) the applicant withdraws the application; and
17
(b) the applicant has paid a fee in relation to the application;
18
the Commission must, on behalf of the Commonwealth, refund the
19
application fee.
20
25Q Suspension or revocation of exemption
21
(1) If an instrument of exemption is in force under section 25M in
22
relation to a vessel, the Commission may, by writing:
23
(a) suspend the instrument of exemption for a specified period;
24
or
25
(b) revoke the instrument of exemption.
26
(2) A suspension of a section 25M exemption instrument takes effect
27
on the day specified in the instrument of suspension. The specified
28
day must be later than the day on which the instrument of
29
suspension is made.
30
(3) A revocation of a section 25M exemption instrument takes effect
31
on the day specified in the instrument of revocation. The specified
32
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day must be later than the day on which the instrument of
1
revocation is made.
2
(4) The Commission may exercise the power under subsection (1):
3
(a) on its own initiative; or
4
(b) on application by:
5
(i) the owner or operator of the vessel; or
6
(ii) the employer of any of the employees covered by the
7
exemption.
8
Criteria
9
(5) In deciding whether to suspend or revoke a section 25M exemption
10
instrument, the Commission must have regard to:
11
(a) the matters (if any) prescribed by the legislative rules; and
12
(b) if the exemption is subject to one or more conditions--
13
whether there have been any contraventions of those
14
conditions; and
15
(c) such other matters (if any) as the Commission considers
16
relevant.
17
Consultation
18
(6) Before deciding whether to suspend or revoke a section 25M
19
exemption instrument that relates to a vessel, the Commission
20
must:
21
(a) publish on its website a notice:
22
(i) setting out the draft instrument of suspension or
23
revocation; and
24
(ii) setting out the reasons for the proposed suspension or
25
revocation; and
26
(iii) inviting persons to make submissions to the
27
Commission about the draft instrument within 7 days
28
after the notice is published; and
29
(b) consider any submissions received within the 7-day period
30
mentioned in subparagraph (a)(iii).
31
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Notification
1
(7) Within 14 days after suspending or revoking a section 25M
2
exemption instrument that relates to a vessel, the Commission
3
must:
4
(a) give a copy of the instrument of suspension or revocation to:
5
(i) the owner of the vessel; and
6
(ii) the operator of the vessel; and
7
(iii) the employer of any of the employees covered by the
8
exemption; and
9
(iv) each person who made a submission under
10
subsection (6) relating to the suspension or revocation;
11
and
12
(b) if the owner, operator, employer or person made a
13
submission under subsection (6) objecting to the suspension
14
or revocation--give the owner, operator, employer or person
15
a statement setting out the reasons for the suspension or
16
revocation.
17
Publication
18
(8) If the Commission suspends or revokes a section 25M exemption
19
instrument, the Commission must publish the instrument of
20
suspension or revocation on the Commission's website.
21
Suspension
22
(9) A section 25M exemption instrument has no effect while it is
23
suspended.
24
Refusal
25
(10) If:
26
(a) an application is made under paragraph (4)(b) for suspension
27
or revocation of a section 25M exemption instrument; and
28
(b) the Commission decides not to suspend or revoke the
29
instrument;
30
the Commission must give written notice of the decision to the
31
applicant.
32
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25R Review of decisions
1
(1) Applications may be made to the AAT for review of a decision of
2
the Commission under subsection 25M(1), (4) or (7).
3
(2) An application under subsection (1) may only be made if the
4
decision was made in response to an application under
5
paragraph 25M(3)(b).
6
(3) Applications may be made to the AAT for review of a decision of
7
the Commission under subsection 25Q(1).
8
25S Extended meaning of owner
9
In this Division:
10
owner of a vessel means:
11
(a) the person who holds the whole of the legal ownership of the
12
vessel; or
13
(b) each of the persons who hold a part of the legal ownership of
14
the vessel.
15
85 Paragraph 28(4)(a)
16
Before "to", insert "if the employee has paid the cost of the medical
17
treatment--".
18
86 Paragraph 28(4)(c)
19
Omit "if that cost has not been paid and the employee, or the legal
20
personal representative of the employee, does not claim the
21
compensation--", substitute "in any other case--".
22
87 Paragraph 29(5)(e)
23
Omit "the Authority", substitute "Comcare".
24
88 Subsection 30(2)
25
Omit "$3,500", substitute "$11,654.06".
26
89 Subsection 31(14)
27
Omit "ship", substitute "vessel".
28
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90 Subsections 38(1) and (2)
1
Repeal the subsections, substitute:
2
(1) Compensation is not payable under this Division to an employee
3
who has reached pension age.
4
(2) However, if an employee who has reached the age that is one year
5
before pension age suffers an injury:
6
(a) subsection (1) does not apply; and
7
(b) compensation is payable under this Division in respect of the
8
injury:
9
(i) to the extent that this Act (other than subsection (1))
10
allows; and
11
(ii) for a maximum of 52 weeks (whether consecutive or
12
not) during which the employee is incapacitated.
13
91 Subsection 39(7)
14
Repeal the subsection, substitute:
15
(7) Subject to section 40, if:
16
(a) the employee has a permanent impairment other than a
17
hearing loss; and
18
(b) the employer determines that the degree of permanent
19
impairment is less than 10%;
20
an amount of compensation is not payable to the employee under
21
this section.
22
(7A) Subject to section 40, if:
23
(a) the employee has a permanent impairment that is a hearing
24
loss; and
25
(b) the employer determines that the binaural hearing loss
26
suffered by the employee is less than 5%;
27
an amount of compensation is not payable to the employee under
28
this section.
29
92 Subsection 40(4)
30
After "an employee", insert "(other than a hearing loss)".
31
93 At the end of section 40
32
Add:
33
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(5) If a final assessment is made of the degree of permanent
1
impairment of an employee constituted by a hearing loss, no
2
further amounts of compensation are payable to the employee in
3
respect of a subsequent increase in the hearing loss, unless the
4
subsequent increase in the degree of binaural hearing loss is 5% or
5
more.
6
94 Subsections 42(1) and (2)
7
Omit "The Authority", substitute "Comcare".
8
95 Subsection 42(3)
9
Omit "the Authority", substitute "Comcare".
10
96 Subsections 42(3) and (3A)
11
Repeal the subsections, substitute:
12
(3) A Guide prepared under subsection (1), and a variation or
13
revocation under subsection (2) of such a Guide, must be approved
14
by the Minister.
15
(3A) A Guide prepared under subsection (1), and a variation or
16
revocation under subsection (2) of such a Guide, is a legislative
17
instrument made by the Minister on the day on which the Guide, or
18
variation or revocation, is approved by the Minister.
19
97 Subsection 42(6)
20
Omit "the Authority", substitute "Comcare".
21
98 Subsection 42(8)
22
Omit "The Authority", substitute "Comcare".
23
99 Subsection 44(2) (definition of
y
[number of years])
24
Repeal the definition, substitute:
25
y
[number of years] means the number (calculated to 3 decimal
26
places) worked out by dividing by 365 the number of days in the
27
period beginning on the day after the date of the determination and:
28
(a) if the employee is injured before reaching the age that is 2
29
years before pension age--ending on the day immediately
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before the day on which the employee reaches pension age;
1
and
2
(b) if the employee is injured on or after reaching the age that is
3
2 years before pension age--ending on the day immediately
4
before the employee would cease to be entitled to receive
5
compensation under section 31, 33, 34, 35 or 36.
6
100 Subparagraphs 53(d)(i), (ii), (iii) and (iv)
7
Omit "ship", substitute "vessel".
8
101 At the end of section 54
9
Add:
10
(4) If:
11
(a) an employee has suffered an injury in the course of his or her
12
employment; and
13
(b) that injury results in that employee's death;
14
subsection (1) does not prevent a dependant of that employee
15
bringing an action against the employer, or another employee, in
16
respect of the death of the first-mentioned employee.
17
(5) Subsection (4) applies whether or not the deceased employee,
18
before his or her death, had made an election under
19
subsection 55(1).
20
102 At the end of section 55
21
Add:
22
(6) The election by an employee under this section to institute an
23
action or proceeding against the employer or another employee
24
does not prevent the employee, before, or instead of, formally
25
instituting such action or proceeding, doing any other thing that
26
constitutes an action for non-economic loss.
27
103 Section 56 (heading)
28
Repeal the heading, substitute:
29
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56 Notice of common law claims against third party
1
104 Paragraph 56(1)(c)
2
Omit "institutes proceedings", substitute "makes a claim".
3
105 Subsection 56(1)
4
Omit "those proceedings" (first occurring), substitute "the claim".
5
106 Subsection 56(1)
6
Omit "that those proceedings had been instituted", substitute "of the
7
claim".
8
107 Section 57 (heading)
9
Repeal the heading, substitute:
10
57 Notice of common law claims against employer
11
108 Paragraph 57(1)(b)
12
Omit "institutes proceedings", substitute "makes a claim".
13
109 Subsection 57(1)
14
Omit "those proceedings" (first occurring), substitute "the claim".
15
110 Subsection 57(1)
16
Omit "that those proceedings had been instituted", substitute "of the
17
claim".
18
111 Subsection 58(3)
19
After "paid to", insert ", or for the benefit of,".
20
112 Subsection 58(5)
21
Omit "proceedings instituted", substitute "a claim made".
22
113 Subsection 58(5)
23
Omit "such proceedings", substitute "such a claim".
24
114 Subsection 58(6)
25
Repeal the subsection, substitute:
26
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(6) Subsection (4) does not apply in relation to damages if the
1
damages were recovered:
2
(a) as a result of a claim, or fresh claim, made by the employer
3
under section 59 (whether or not that claim progressed to the
4
formal institution of proceedings); or
5
(b) as a result of the employer's taking over the conduct of a
6
claim under that section; or
7
(c) as a result of a claim made by the employee as a result of an
8
election by the employee under section 55; or
9
(d) by way of settlement of such a claim or of such an action
10
(whether or not that claim or that action progressed to the
11
formal institution of proceedings).
12
115 Section 59 (heading)
13
Repeal the heading, substitute:
14
59 Common law claims against third parties
15
116 Paragraph 59(2)(b)
16
Omit "instituting proceedings, or taking over the conduct of
17
proceedings", substitute "making a claim or a fresh claim, or taking
18
over the conduct of an existing claim,".
19
117 Subsection 59(2)
20
Omit "institute proceedings or fresh proceedings", substitute "make a
21
claim, or a fresh claim,".
22
118 Subsection 59(2)
23
Omit "take over the conduct of the proceedings", substitute "take over
24
the conduct of the existing claim".
25
119 Paragraph 59(3)(b)
26
Omit "instituting proceedings, or taking over the conduct of
27
proceedings", substitute "making a claim or a fresh claim, or taking
28
over the conduct of an existing claim,".
29
120 Paragraph 59(3)(c)
30
Omit "proceedings", substitute "a claim".
31
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121 Subparagraph 59(3)(c)(i)
1
Omit "have not been instituted", substitute "has not been made".
2
122 Subparagraph 59(3)(c)(i)
3
Omit "instituting the proceedings", substitute "making the claim".
4
123 Subparagraph 59(3)(c)(ii)
5
Omit "have been so instituted but have not been", substitute "has been
6
made, but has not been".
7
124 Subsection 59(3)
8
Omit "institute proceedings or fresh proceedings", substitute "make a
9
claim, or a fresh claim,".
10
125 Subsection 59(3)
11
Omit "take over the conduct of the proceedings", substitute "take over
12
the conduct of the existing claim".
13
126 Subsections 59(4) to (9)
14
Repeal the subsections, substitute:
15
(4) If the employer:
16
(a) makes a claim or a fresh claim; or
17
(b) takes over the conduct of an existing claim under
18
subsection (2) or (3);
19
the employer must conduct the claim in the interests of the person
20
in whose name the claim was made.
21
(5) The employer is liable to pay all costs of, or incidental to, any
22
claim taken over by it, being costs payable by the plaintiff in that
23
claim, other than those costs unreasonably incurred by the plaintiff.
24
(6) If the employer makes, or takes over the conduct of, a claim under
25
this section, the employer may:
26
(a) take whatever steps are appropriate to bring the claim to a
27
conclusion; and
28
(b) if the claim is before a court--subject to subsection (7), settle
29
the proceedings, either with or without obtaining judgment;
30
and
31
(c) if:
32
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(i) the claim is before a court; and
1
(ii) judgment has been obtained in the proceedings in favour
2
of the plaintiff;
3
take such steps as are necessary to enforce the judgment.
4
(7) The employer may only settle the claim:
5
(a) with the written consent of the employee or dependant in
6
whose name the claim was made; or
7
(b) without the consent of the employee or dependant in whose
8
name the claim was made, if the employee or dependant
9
withholds consent unreasonably.
10
(8) Subject to subsection (7), if the employer requires the employee or
11
dependant to sign any document relevant to a claim made, or taken
12
over, by the employer under this section (including the settlement
13
of the claim):
14
(a) the employee or dependant must sign it; and
15
(b) if he or she fails to do so--the court or tribunal in which the
16
claim is made may direct that the document may be signed on
17
his or her behalf by a person appointed by the employer for
18
the purpose.
19
(9) If the employer makes, or takes over the conduct of, a claim under
20
this section:
21
(a) the employee or dependant must comply with any reasonable
22
requirement of the employer for the purposes of the claim;
23
and
24
(b) if the employee or dependant fails do so--the right of the
25
employee or dependant to compensation under this Act in
26
respect of the injury, loss, damage or death to which the
27
proceedings relate is suspended until such time as the
28
employee or dependant complies with that requirement.
29
127 Subsection 59(11)
30
Omit "in proceedings", substitute "as a result of a claim".
31
128 Subsection 59(11)
32
Omit "such proceedings", substitute "such a claim".
33
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129 Paragraph 59(11)(a)
1
After "paid to", insert ", or for the benefit of,".
2
130 Paragraph 59(11)(a)
3
Omit "proceedings relate", substitute "claim relates".
4
131 Paragraph 59(11)(b)
5
Omit "those proceedings", substitute "the claim".
6
132 Paragraph 60(1)(d)
7
Omit "the proceedings instituted", substitute "as a result of a claim
8
made".
9
133 Paragraph 60(1)(d)
10
Omit "in proceedings instituted", substitute "as a result of a claim
11
made".
12
134 Subparagraphs 60(2)(b)(i) and (ii)
13
Omit "in proceedings instituted", substitute "as a result of a claim
14
made".
15
135 Subsection 62(3)
16
Omit "ship" (wherever occurring), substitute "vessel".
17
136 Paragraphs 63(2)(a) and (b)
18
Omit "the Authority", substitute "Comcare".
19
137 Subsections 71(1) and (2)
20
Omit "the Fund" (wherever occurring), substitute "Comcare".
21
138 Paragraph 72(1)(b)
22
Omit "the Authority", substitute "Comcare".
23
139 Subsection 72(3)
24
Omit "the Authority", substitute "Comcare".
25
140 Paragraph 73(2)(c)
26
Omit "the Authority", substitute "Comcare".
27
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141 Subsection 73(3)
1
Omit "the Authority", substitute "Comcare".
2
142 Paragraph 73A(1)(b)
3
Omit "the Authority", substitute "Comcare".
4
143 Subsection 73A(3)
5
Omit "the Authority", substitute "Comcare".
6
144 Section 74 (heading)
7
Repeal the heading, substitute:
8
74 Employer may seek review of Comcare's decision
9
145 Section 74
10
Omit "the Authority", substitute "Comcare".
11
146 Section 75
12
Repeal the section, substitute:
13
75 Sections 72 to 74 (inclusive) not to apply to Comcare in its
14
capacity as the default employer
15
Sections 72 to 74 (inclusive) do not apply to Comcare in its
16
capacity as an employer under subsection 4(3).
17
147 Subsection 76(1) (definition of extension of time
18
decision)
19
Omit "the Authority", substitute "Comcare".
20
148 Subsections 78(4) and (5)
21
Repeal the subsections, substitute:
22
(4) On receipt of a request, the employer may, for the purposes of this
23
section, arrange with Comcare for a Comcare officer to assist the
24
employer in reconsidering the determination under subsection (5).
25
(5) If the employer receives a request, the employer must:
26
(a) reconsider the determination; and
27
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(b) do so:
1
(i) if the employer has made arrangements under
2
subsection (4)--after making those arrangements; or
3
(ii) otherwise--after receipt of the request.
4
149 Subsection 78(7)
5
Repeal the subsection.
6
150 Paragraph 79(1)(b)
7
Omit "the Authority", substitute "Comcare".
8
151 Subsection 79(4)
9
Omit "the Authority", substitute "Comcare".
10
152 Section 80 (heading)
11
Repeal the heading, substitute:
12
80 Employer may seek review of Comcare's decision
13
153 Section 80
14
Omit "the Authority", substitute "Comcare".
15
154 Sections 81 and 82
16
Repeal the sections, substitute:
17
81 Sections 79 and 80 not to apply to Comcare in its capacity as the
18
default employer
19
Sections 79 and 80 do not apply to Comcare in its capacity as an
20
employer under subsection 4(3).
21
82 Comcare officer to give copy of report to claimant
22
A Comcare officer must give the claimant a copy of any report the
23
officer gives to an employer in relation to the reconsideration of a
24
determination under subsection 78(5).
25
155 Subsections 86(1) and (2)
26
Omit "the Fund" (wherever occurring), substitute "Comcare".
27
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69
156 Paragraph 89(4)(b)
1
Omit "the Fund", substitute "Comcare".
2
157 Paragraph 89(4)(c)
3
Repeal the paragraph, substitute:
4
(c) the AAT Act has effect as if a reference to the person who
5
made the reviewable decision were a reference to Comcare;
6
and
7
158 Subsection 91(2)
8
Omit "determination, the employer is liable to reimburse the claimant
9
for costs reasonably incurred by the claimant in connection with that
10
proceeding.", substitute:
11
determination:
12
(a) the employer is liable to reimburse the claimant for costs
13
reasonably incurred by the claimant in connection with that
14
proceeding; and
15
(b) the AAT may tax those costs under section 69A of the AAT
16
Act as if the AAT had, under this Act, ordered the employer
17
to pay those costs to the claimant.
18
159 Part 7 (heading)
19
Repeal the heading, substitute:
20
Part 7--Compulsory insurance
21
160 Division 1 of Part 7 (heading)
22
Repeal the heading.
23
161 Subsection 93(1)
24
Omit ", other than the Fund,".
25
162 Subparagraph 93(1)(b)(i)
26
Omit "the Authority", substitute "Comcare".
27
163 Paragraph 93(1)(c)
28
Omit "the Authority", substitute "Comcare".
29
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164 At the end of section 93
1
Add:
2
(7) This section does not apply to Comcare in its capacity as an
3
employer under subsection 4(3).
4
165 Section 94 (heading)
5
Repeal the heading, substitute:
6
94 Employer to give details of insurance or indemnity arrangements
7
to Comcare
8
166 Subsection 94(1)
9
Omit "the Authority", substitute "Comcare".
10
167 Section 94A (heading)
11
Repeal the heading, substitute:
12
94A Employer to notify Comcare of changes to, or cancellation or
13
termination of, insurance or indemnity arrangements
14
168 Paragraph 94A(1)(c)
15
Omit "the Authority", substitute "Comcare".
16
169 Section 95 (heading)
17
Repeal the heading, substitute:
18
95 Comcare may require evidence from employer
19
170 Section 95
20
Omit "The Authority", substitute "(1) Comcare".
21
171 Section 95 (penalty)
22
Repeal the penalty.
23
172 At the end of section 95
24
Add:
25
(2) A person commits an offence if:
26
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71
(a) the person is subject to a requirement under subsection (1);
1
and
2
(b) the person omits to do an act; and
3
(c) the omission breaches the requirement.
4
Penalty: 20 penalty units.
5
(3) Subsection (2) is an offence of strict liability.
6
Note:
For strict liability, see section 6.1 of the Criminal Code.
7
173 Subsection 95B(7)
8
Repeal the subsection.
9
174 After section 95B
10
Insert:
11
95C Comcare to insure
12
(1) Comcare must, on each day, have a policy of insurance or
13
indemnity from an authorised insurer, so that Comcare is insured
14
or indemnified for any amount of Comcare's liability under this
15
Act that exceeds:
16
(a) $2 million; or
17
(b) if another amount is prescribed by the legislative rules--that
18
other amount;
19
for a single event which results in an injury to one or more
20
employees.
21
(2) Before making legislative rules prescribing an amount for the
22
purposes of paragraph (1)(b), the Minister must consult:
23
(a) Comcare; and
24
(b) any organisations that:
25
(i) represent employers or employees; and
26
(ii) the Minister thinks appropriate.
27
(3) A failure to consult as required by subsection (2) does not affect
28
the validity of a legislative rule prescribing an amount for the
29
purposes of paragraph (1)(b).
30
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Seafarers and Other Legislation Amendment Bill 2016
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175 Divisions 2 and 3 of Part 7
1
Repeal the Divisions.
2
176 Part 8
3
Repeal the Part, substitute:
4
Part 8--Administration
5
6
103 Simplified outline of this Part
7
•
The Commission's functions include:
8
(a)
monitoring the operation of this Act; and
9
(b)
promoting high operational standards of claims
10
management, and effective rehabilitation procedures, by
11
employers; and
12
(c)
advising the Minister about the operation of this Act.
13
•
The Commission may obtain information from an employer if
14
the information is relevant to the compilation of statistics for
15
injury prevention purposes.
16
•
Comcare may obtain information from an employer if the
17
information is relevant to a claim made by an employee of the
18
employer.
19
•
The Seafarers Rehabilitation and Compensation Account
20
continues in existence as a Special Account under this Act.
21
104 Additional functions of Commission
22
The Commission has the following functions:
23
(a) to monitor the operation of this Act (other than section 95B);
24
(b) to promote high operational standards of claims management,
25
and effective rehabilitation procedures, by employers;
26
(c) to co-operate with other bodies or persons with the aim of
27
reducing the incidence of injuries to employees;
28
(d) to publish material relating to the functions referred to in
29
paragraphs (a), (b) and (c);
30
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(e) to advise the Minister about:
1
(i) anything relating to the operation of this Act; and
2
(ii) other matters relating to the compensation and
3
rehabilitation of employees.
4
105 Additional function of the Australian Maritime Safety Authority
5
The Australian Maritime Safety Authority has the function of
6
monitoring the operation of section 95B.
7
106 Power to obtain information
8
(1) The Commission may, by written notice given to an employer,
9
require the employer to:
10
(a) give the Commission any documents or information (or both)
11
that:
12
(i) are specified in the notice; and
13
(ii) are in the possession or control of the employer; and
14
(iii) are relevant to the compilation of statistics for injury
15
prevention purposes; and
16
(b) do so within such reasonable period as is specified in the
17
notice.
18
(2) Comcare may, by written notice given to an employer, require the
19
employer to:
20
(a) give Comcare any documents or information (or both) that:
21
(i) are specified in the notice; and
22
(ii) are in the possession or control of the employer; and
23
(iii) are relevant to a claim made by, or in relation to, an
24
employee of the employer; and
25
(b) do so within such reasonable period as is specified in the
26
notice.
27
(3) Comcare may, by written notice given to an employer, require the
28
employer to:
29
(a) give Comcare any documents or information (or both) that:
30
(i) are specified in the notice; and
31
(ii) are in the possession or control of the employer; and
32
(iii) are relevant to the power conferred on Comcare by
33
section 4A; and
34
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(b) do so within such reasonable period as is specified in the
1
notice.
2
(4) Comcare may, by written notice given to an employee, require the
3
employee to:
4
(a) give Comcare any documents or information (or both) that:
5
(i) are specified in the notice; and
6
(ii) are in the possession or control of the employee; and
7
(iii) are relevant to the power conferred on Comcare by
8
section 4A; and
9
(b) do so within such reasonable period as is specified in the
10
notice.
11
Offence
12
(5) A person commits an offence if:
13
(a) the person is subject to a requirement under subsection (1),
14
(2) or (3); and
15
(b) the person omits to do an act; and
16
(c) the omission breaches the requirement.
17
Penalty: 20 penalty units.
18
(6) Subsection (5) is an offence of strict liability.
19
Note:
For strict liability, see section 6.1 of the Criminal Code.
20
(7) Subsection (5) does not apply if the person has a reasonable
21
excuse.
22
Note:
A defendant bears an evidential burden in relation to the matter in
23
subsection (7) (see subsection 13.3(3) of the Criminal Code).
24
(8) Subsection (5) does not apply to Comcare in its capacity as an
25
employer under subsection 4(3).
26
Note:
This section constitutes authorisation for the purposes of other laws,
27
such as paragraph 6.2(b) of Australian Privacy Principle 6.
28
107 Seafarers Rehabilitation and Compensation Special Account
29
(1) The special account established by the Financial Management and
30
Accountability (Establishment of Special Account)
31
Determination 2002/06 continues in existence as a special account
32
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under this Act, under the name Seafarers Rehabilitation and
1
Compensation Special Account.
2
(2) The Seafarers Rehabilitation and Compensation Special Account is
3
a special account for the purposes of the Public Governance,
4
Performance and Accountability Act 2013.
5
(3) For the purposes of the Public Governance, Performance and
6
Accountability Act 2013, the Seafarers Rehabilitation and
7
Compensation Special Account is taken to have been established
8
by this Act.
9
(4) The Secretary of the Department is responsible for the Seafarers
10
Rehabilitation and Compensation Special Account.
11
108 Credits to the Seafarers Rehabilitation and Compensation
12
Special Account
13
There must be credited to the Seafarers Rehabilitation and
14
Compensation Special Account amounts equal to the following:
15
(a) amounts of seafarers insurance levy collected under the
16
Seafarers Safety and Compensation Levies Collection Act
17
2016;
18
(b) amounts of late payment penalty collected under the
19
Seafarers Safety and Compensation Levies Collection Act
20
2016 in relation to seafarers insurance levy;
21
(c) amounts collected after the commencement of this section
22
under the repealed Seafarers Rehabilitation and
23
Compensation Levy Collection Act 1992;
24
(d) amounts paid to the Commonwealth for any of the purposes
25
of the Seafarers Rehabilitation and Compensation Special
26
Account.
27
Note:
An Appropriation Act may contain a provision to the effect that, if any
28
of the purposes of a Special Account is a purpose that is covered by an
29
item in the Appropriation Act (whether or not the item expressly refers
30
to the Special Account), then amounts may be debited against the
31
appropriation for that item and credited to that Special Account.
32
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109 Purposes of the Seafarers Rehabilitation and Compensation
1
Special Account
2
The purposes of the Seafarers Rehabilitation and Compensation
3
Special Account are as follows:
4
(a) the payment of claims, or other amounts payable, by
5
Comcare in its capacity as an employer under
6
subsection 4(3);
7
(b) the payment of any premium for a policy of insurance or
8
indemnity for any amount of Comcare's liability under this
9
Act;
10
(c) the payment of expenditure incurred in, or attributable to, the
11
administration of this Act, so far as that administration
12
concerns Comcare in its capacity as an employer under
13
subsection 4(3);
14
(d) the payment of expenditure incurred in, or attributable to, the
15
administration of the Seafarers Safety and Compensation
16
Levies Collection Act 2016, so far as that Act relates to
17
seafarers insurance levy;
18
(e) payment to persons from whom seafarers insurance levy was
19
collected under the Seafarers Safety and Compensation
20
Levies Collection Act 2016;
21
(f) the payment of expenditure incurred in, or attributable to, the
22
administration of the repealed Seafarers Rehabilitation and
23
Compensation Levy Collection Act 1992;
24
(g) payment to persons from whom levy was collected under the
25
repealed Seafarers Rehabilitation and Compensation Levy
26
Collection Act 1992;
27
(h) meeting the expenses of administering the Seafarers
28
Rehabilitation and Compensation Special Account.
29
Note:
See section 80 of the Public Governance, Performance and
30
Accountability Act 2013.
31
177 Section 129 (heading)
32
Repeal the heading, substitute:
33
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129 Subrogation of rights of actual employer to Comcare
1
178 Subsections 129(1) and (2)
2
Omit "the Fund" (wherever occurring), substitute "Comcare".
3
179 Subsections 133(1) and (2)
4
Omit "the Authority" (wherever occurring), substitute "Comcare".
5
180 Subsection 133(4)
6
Omit "The Authority", substitute "Comcare".
7
181 Subsection 133(5)
8
Omit "the Authority" (wherever occurring), substitute "Comcare".
9
182 Subsections 134(2) and (4)
10
Omit "the Authority", substitute "Comcare".
11
183 Subsection 135(1)
12
Omit "the Authority", substitute "Comcare".
13
184 Subsection 135(2)
14
Omit "the Fund", substitute "Comcare".
15
185 Subsection 135(3)
16
Repeal the subsection, substitute:
17
(3) Except as provided by:
18
(a) the Child Support (Registration and Collection) Act 1988; or
19
(b) the Social Security Act 1991; or
20
(c) the Family Law Act 1975; or
21
(d) regulations under the Family Law Act 1975;
22
any compensation payable under this Act is not subject to
23
attachment.
24
186 Subsection 141(1)
25
Omit "prescribed fee", substitute "fee prescribed by the legislative
26
rules".
27
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187 Subsection 141(2)
1
Omit "regulations", substitute "legislative rules".
2
188 Subsection 141(2)
3
After "prescribed", insert "by the legislative rules".
4
189 After section 141
5
Insert:
6
142 Variation or revocation of instruments
7
A provision of this Act that deals with the variation or revocation
8
of an instrument does not, by implication, prevent the application
9
of subsection 33(3) of the Acts Interpretation Act 1901 to another
10
instrument under this Act.
11
Work Health and Safety Act 2011
12
190 Section 4 (definition of regulator)
13
Repeal the definition, substitute:
14
regulator means:
15
(a) so far as this Act, other than:
16
(i) subsection 38(5); or
17
(ii) paragraph 72(1)(a); or
18
(iii) paragraph 152(a); or
19
(iv) a provision of the regulations prescribed for the
20
purposes of this subparagraph;
21
applies because of subsection 12(8A)--the Australian
22
Maritime Safety Authority; or
23
(b) otherwise--Comcare.
24
Note:
See also the definition of this Act.
25
191 After subsection 12(8)
26
Insert:
27
Maritime sector
28
(8A) If:
29
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Seafarers and Other Legislation Amendment Bill 2016
79
(a) the Seafarers Rehabilitation and Compensation Act 1992
1
applies to the employment of an employee on a vessel; or
2
(b) assuming that an employee was employed on a vessel, the
3
Seafarers Rehabilitation and Compensation Act 1992 would
4
apply to the employment of the employee on the vessel;
5
this Act applies in relation to each of the following:
6
(c) to the extent that a person is conducting a business or
7
undertaking on the vessel--that person;
8
(d) to the extent that a worker carries out work on the vessel in
9
any capacity for a business or undertaking--that worker;
10
(e) if work is carried out on the vessel for a business or
11
undertaking--the vessel.
12
(8B) Subsection (8A) has effect subject to section 640 of the Offshore
13
Petroleum and Greenhouse Gas Storage Act 2006.
14
Note:
Section 640 of the Offshore Petroleum and Greenhouse Gas Storage
15
Act 2006 deals with the application of Commonwealth maritime
16
legislation in the offshore area of a State or Territory.
17
(8C) A corresponding WHS law does not apply to a person to the extent
18
that this Act applies to the person because of subsection (8A).
19
(8D) For the purposes of subsections (8A) and (8C), disregard
20
paragraph 61AA(b) of the Shipping Registration Act 1981.
21
(8E) For the purposes of subsection (8A) and (8C):
22
(a) assume that:
23
(i) an offshore floating storage or production unit; and
24
(ii) an offshore industry mobile unit that is self-propelled or
25
under tow;
26
were a vessel for the purposes of the Seafarers Rehabilitation
27
and Compensation Act 1992; and
28
(b) assume that an offshore industry mobile unit that is neither
29
self-propelled nor under tow were neither a vessel, nor a
30
prescribed vessel, for the purposes of the Seafarers
31
Rehabilitation and Compensation Act 1992; and
32
(c) disregard paragraphs (h) and (i) of the definition of
33
prescribed vessel in subsection 3A(1) of the Seafarers
34
Rehabilitation and Compensation Act 1992.
35
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Part 3 Other amendments relating to seafarers
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Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
(8F) For the purposes of subsections (8A) and (8E), employee, offshore
1
floating storage or production unit, offshore industry mobile unit
2
and vessel have the same respective meanings as in the Seafarers
3
Rehabilitation and Compensation Act 1992.
4
192 Section 12A (heading)
5
Repeal the heading, substitute:
6
12A Act does not apply to certain facilities
7
193 Subsection 12A(1)
8
Repeal the subsection.
9
194 Subsection 12A(2)
10
Omit "(2)".
11
195 After subsection 274(2)
12
Insert:
13
(2A) Subsection (2) does not apply to a code of practice that relates only
14
to matters to which this Act applies because of subsection 12(8A).
15
(2B) If a code of practice relates only to matters to which this Act
16
applies because of subsection 12(8A), the Minister may only
17
approve, vary or revoke the code of practice under subsection (1)
18
of this section if the code of practice, variation or revocation was
19
developed by a process that involved consultation with the Safety,
20
Rehabilitation and Compensation Commission.
21
196 At the end of Part 2 of Schedule 2
22
Add:
23
2A Annual reports
24
(1) The annual report given by the Chairperson of the Safety,
25
Rehabilitation and Compensation Commission to the Minister
26
under section 89S of the Safety, Rehabilitation and Compensation
27
Act 1988 for a financial year must include:
28
(a) statistics, with appropriate details, of each of the following:
29
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81
(i) notifiable incidents of which the Australian Maritime
1
Safety Authority is notified under section 38 during the
2
financial year;
3
(ii) all investigations conducted by the Australian Maritime
4
Safety Authority during the financial year;
5
(iii) all seizures made under section 175 or 176 during the
6
financial year;
7
(iv) all improvement notices issued under section 191 during
8
the financial year;
9
(v) all prohibition notices issued under section 195 during
10
the financial year;
11
(vi) all non-disturbance notices issued under section 198
12
during the financial year;
13
(vii) all remedial action taken under section 211 or 212
14
during the financial year;
15
(viii) all written undertakings accepted by the Australian
16
Maritime Safety Authority under section 216 during the
17
financial year;
18
(ix) all applications for internal review made under
19
section 224 during the financial year;
20
(x) all applications for external review made under
21
section 229 during the financial year;
22
(xi) all infringement notices given under section 243 during
23
the financial year; and
24
(b) details of prosecutions instituted under this Act during the
25
financial year; and
26
(c) any other matter prescribed.
27
(2) For the purposes of subclause (1), disregard subsections 12(1) to
28
(8).
29
(3) The Australian Maritime Safety Authority must give the Safety,
30
Rehabilitation and Compensation Commission such statistics and
31
other information as the Commission requires to enable the
32
Chairperson of the Commission to comply with subclause (1).
33
197 Clause 3 of Schedule 2
34
Before "The annual report", insert "(1)".
35
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Part 3 Other amendments relating to seafarers
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No. , 2016
198 At the end of clause 3 of Schedule 2
1
Add:
2
(2) For the purposes of subclause (1), disregard subsections 12(8A) to
3
(8F).
4
199 At the end of Schedule 2
5
Add:
6
Part 5--Miscellaneous
7
8
5 Functions and powers of the Australian Maritime Safety
9
Authority
10
The Australian Maritime Safety Authority may perform a function,
11
or exercise a power, under this Act outside Australia if the
12
performance of the function, or the exercise of the power, relates to
13
this Act so far as this Act applies because of subsection 12(8A).
14
6 Functions and powers of inspectors appointed by the Australian
15
Maritime Safety Authority
16
(1) An inspector appointed by the Australian Maritime Safety
17
Authority must not perform a function, or exercise a power, under
18
this Act unless the performance of the function, or the exercise of
19
the power, relates to this Act so far as this Act applies because of
20
subsection 12(8A).
21
(2) An inspector appointed by the Australian Maritime Safety
22
Authority may perform a function, or exercise a power, under this
23
Act outside Australia if the performance of the function, or the
24
exercise of the power, relates to this Act so far as this Act applies
25
because of subsection 12(8A).
26
7 Australian Maritime Safety Authority and Comcare may share
27
information
28
(1) The Australian Maritime Safety Authority and Comcare may share
29
information with each other to achieve the object of this Act so far
30
as this Act applies because of subsection 12(8A).
31
Amendments Schedule 2
Other amendments relating to seafarers Part 3
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
83
(2) Subsection (1) does not limit the application of paragraph 152(g).
1
Schedule 2 Amendments
Part 4 Comcare scheme
84
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
Part 4--Comcare scheme
1
Division 1
--Catastrophic injury
2
Safety, Rehabilitation and Compensation Act 1988
3
200 Subsection 4(1)
4
Insert:
5
catastrophic injury means an injury, where the conditions
6
specified in the legislative rules are satisfied.
7
legislative rules means rules made under section 122A.
8
201 Subsection 29 (heading)
9
Repeal the heading, substitute:
10
29 Compensation for household services and attendant care services
11
obtained as a result of a non-catastrophic injury
12
202 Subsections 29(1) and (3)
13
After "injury", insert "(other than a catastrophic injury)".
14
203 After section 29
15
Insert:
16
29A Compensation for household services and attendant care
17
services obtained as a result of a catastrophic injury
18
Household services
19
(1) If, as a result of a catastrophic injury to an employee, the employee
20
obtains household services that he or she reasonably requires,
21
Comcare is liable to pay compensation of such amount per week as
22
Comcare considers reasonable in the circumstances.
23
(2) Without limiting the matters that Comcare may take into account in
24
determining the household services that are reasonably required in
25
Amendments Schedule 2
Comcare scheme Part 4
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
85
a particular case, Comcare must, in making such a determination,
1
have regard to the following matters:
2
(a) the extent to which household services were provided by the
3
employee before the date of the catastrophic injury and the
4
extent to which he or she is able to provide those services
5
after that date;
6
(b) the number of persons living with the employee as members
7
of his or her household, their ages and their need for
8
household services;
9
(c) the extent to which household services were provided by the
10
persons referred to in paragraph (b) before the catastrophic
11
injury;
12
(d) the extent to which the persons referred to in paragraph (b),
13
or any other members of the employee's family, might
14
reasonably be expected to provide household services for
15
themselves and for the employee after the catastrophic injury;
16
(e) the need to avoid substantial disruption to the employment or
17
other activities of the persons referred to in paragraph (b).
18
Note:
In relation to paragraph (2)(d), see also subsection 4(2).
19
Attendant care services
20
(3) If, as a result of a catastrophic injury to an employee, the employee
21
obtains attendant care services that he or she reasonably requires,
22
Comcare is liable to pay compensation of such amount per week as
23
Comcare considers reasonable in the circumstances.
24
(4) Without limiting the matters that Comcare may take into account in
25
determining the attendant care services that are reasonably required
26
in a particular case, Comcare must, in making such a
27
determination, have regard to the following matters:
28
(a) the nature of the employee's catastrophic injury and the
29
degree to which that injury impairs his or her ability to
30
provide for his or her personal care;
31
(b) the extent to which any medical service or nursing care
32
received by the employee provides for his or her essential
33
and regular personal care;
34
(c) the extent to which it is reasonable to meet any wish by the
35
employee to live outside an institution;
36
Schedule 2 Amendments
Part 4 Comcare scheme
86
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
(d) the extent to which attendant care services are necessary to
1
enable the employee to undertake or continue employment;
2
(e) any assessment made in relation to the rehabilitation of the
3
employee;
4
(f) the extent to which a relative of the employee might
5
reasonably be expected to provide attendant care services.
6
Note:
In relation to paragraph (4)(f), see also subsection 4(2).
7
Recipient of compensation
8
(5) An amount of compensation payable by Comcare under
9
subsection (1) or (3) is payable:
10
(a) if the employee has paid for the household services or
11
attendant care services, as the case may be--to the employee;
12
or
13
(b) in any other case--to the person who provided those
14
services.
15
(6) If Comcare pays an amount under subsection (1) or (3) to a person
16
who provided household services or attendant care services to an
17
employee, the payment of the amount is, to the extent of the
18
payment, a discharge of the liability of the employee to pay for
19
those services.
20
204 Subsection 60(1) (definition of determination)
21
After "29,", insert "29A,".
22
205 At the end of Part IX
23
Add:
24
122A Legislative rules
25
(1) The Minister may, by legislative instrument, make rules
26
(legislative rules) prescribing matters:
27
(a) required or permitted by this Act to be prescribed by the
28
legislative rules; or
29
(b) necessary or convenient to be prescribed for carrying out or
30
giving effect to this Act.
31
(2) To avoid doubt, the legislative rules may not do the following:
32
(a) create an offence or civil penalty;
33
Amendments Schedule 2
Comcare scheme Part 4
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
87
(b) provide powers of:
1
(i) arrest or detention; or
2
(ii) entry, search or seizure;
3
(c) impose a tax;
4
(d) set an amount to be appropriated from the Consolidated
5
Revenue Fund under an appropriation in this Act;
6
(e) directly amend the text of this Act.
7
Division 2
--Pension age
8
Safety, Rehabilitation and Compensation Act 1988
9
206 Subsection 4(1)
10
Insert:
11
pension age has the meaning given by subsection 23(5A), (5B),
12
(5C) or (5D) of the Social Security Act 1991.
13
207 Subsection 23(1)
14
Omit "65", substitute "pension age".
15
208 Subsections 23(1A) and (1B)
16
Omit "63 suffers an injury (whether before or after the commencement
17
of this subsection)", substitute "the age that is 2 years before pension
18
age suffers an injury".
19
209 Subsection 30(3) (paragraph (a) of the definition of
20
number of days)
21
Repeal the paragraph, substitute:
22
(a) if the employee is injured before reaching the age that is 2
23
years before pension age--on the day immediately before the
24
day on which the employee reaches pension age; and
25
210 Subsection 30(3) (paragraph (b) of the definition of
26
number of days)
27
Omit "63 years of age", substitute "the age that is 2 years before
28
pension age".
29
Schedule 2 Amendments
Part 4 Comcare scheme
88
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
211 Subsection 137(5) (definition of number of days)
1
Omit "65 years of age", substitute "pension age".
2
Amendments Schedule 2
Work health and safety Part 5
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
89
Part 5--Work health and safety
1
Work Health and Safety Act 2011
2
212 Paragraphs 12(1)(a) and (b)
3
Repeal the paragraphs, substitute:
4
(a) if the Commonwealth is conducting a business or
5
undertaking--the Commonwealth;
6
(b) if a public authority is conducting a business or
7
undertaking--the public authority;
8
213 Paragraph 12(1)(c)
9
Omit "person is a worker and", substitute "worker".
10
214 Paragraph 12(1)(c)
11
Omit "that person", substitute "that worker".
12
215 Paragraph 12(1)(d)
13
Omit "person is a worker and", substitute "worker".
14
216 Paragraph 12(1)(d)
15
Omit "that person", substitute "that worker".
16
217 Paragraph 12(1)(e)
17
Omit "place (as defined for the purposes of section 8)", substitute
18
"workplace".
19
218 Paragraph 12(1)(e)
20
Omit "that place", substitute "that workplace".
21
219 Paragraph 12(1)(f)
22
Omit "place (as defined for the purposes of section 8)", substitute
23
"workplace".
24
220 Paragraph 12(1)(f)
25
Omit "that place", substitute "that workplace".
26
Schedule 2 Amendments
Part 5 Work health and safety
90
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
221 Subsection 12(3)
1
Omit "in relation".
2
222 Paragraph 12(4)(b)
3
Omit "a person", substitute "a worker".
4
223 Paragraph 12(4)(b)
5
Omit "the person", substitute "that worker".
6
224 Paragraph 12(4)(c)
7
Omit "place (as defined for the purposes of section 8)", substitute
8
"workplace".
9
225 Paragraph 12(4)(c)
10
Omit "that place", substitute "that workplace".
11
226 Subsections 12(5) and (9)
12
Omit "in relation".
13
227 Subsection 74(1)
14
Omit "(1)".
15
228 Subsection 74(2)
16
Repeal the subsection.
17
229 Section 93
18
Repeal the section, substitute:
19
93 Provisional improvement notice may include recommendations to
20
remedy contravention
21
A provisional improvement notice may include recommendations
22
concerning the measures that may be taken:
23
(a) to remedy the contravention to which the notice relates; or
24
(b) to prevent the likely contravention, or the matters or activities
25
causing the contravention or likely contravention, to which
26
the notice relates.
27
Amendments Schedule 2
Work health and safety Part 5
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
91
230 At the end of section 247
1
Add:
2
(3) Neither a Justice of the High Court, nor a Judge or Justice of a
3
court created by the Parliament, is in that capacity an officer of the
4
Commonwealth for the purposes of this Act.
5
(4) A Head of Mission (within the meaning of the Public Service Act
6
1999) is not in that capacity an officer of the Commonwealth for
7
the purposes of this Act.
8
Schedule 3 Application and transitional provisions
Part 1 Introduction
92
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
Schedule 3--Application and transitional
1
provisions
2
Part 1--Introduction
3
1 Definitions
4
In this Schedule:
5
transitional rules means rules made under item 64.
6
transition time means the commencement of Part 3 of Schedule 2.
7
Application and transitional provisions Schedule 3
Catastrophic injuries to seafarers Part 2
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
93
Part 2--Catastrophic injuries to seafarers
1
2 Application
--catastrophic injury
2
(1)
The amendments of section 43 of the Seafarers Rehabilitation and
3
Compensation Act 1992 made by this Act apply in relation to
4
compensation in respect of a week beginning after the commencement
5
of the first legislative rules made for the purposes of the definition of
6
catastrophic injury in section 3 of that Act (as amended by this Act).
7
(2)
Section 43A of the Seafarers Rehabilitation and Compensation Act
8
1992 (as amended by this Act) applies in relation to compensation in
9
respect of a week that begins after the commencement of the first
10
legislative rules made for the purposes of the definition of catastrophic
11
injury in section 3 of that Act (as amended by this Act).
12
Schedule 3 Application and transitional provisions
Part 3 Implementation of amendments of the Maritime Labour Convention relating to
insurance obligations of employers of seafarers
94
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
Part 3--Implementation of amendments of the
1
Maritime Labour Convention relating to
2
insurance obligations of employers of
3
seafarers
4
3 Application
--compulsory insurance
5
Subsections 93(5) and (6) of the Seafarers Rehabilitation and
6
Compensation Act 1992 (as amended by this Act) apply in relation to an
7
application made by an employer after the commencement of this item.
8
Application and transitional provisions Schedule 3
Seacare scheme Part 4
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
95
Part 4--Seacare scheme
1
4 Application
--coverage of employees etc.
2
Despite the amendments of the Seafarers Rehabilitation and
3
Compensation Act 1992 made by items 19, 21, 23, 24, 28, 30, 34, 35,
4
36, 38, 41, 42, 44, 45, 50, 51, 53, 55, 60, 62, 63, 68, 70 to 80, 82, 83,
5
84, 91, 92, 93 and 100 to 135 of Schedule 2 to this Act, the Seafarers
6
Rehabilitation and Compensation Act 1992 continues to apply, in
7
relation to:
8
(a) an injury suffered by an employee before the transition time;
9
or
10
(b) the loss of, or damage to, property used by an employee, if
11
the loss or damage occurred:
12
(i) as a result of an accident that occurred before the
13
transition time; and
14
(ii) in the circumstances mentioned in section 27 of that
15
Act; or
16
(c) an injury suffered by an employee, where the injury
17
happened at or after the transition time while the employee
18
was travelling between his or her place of work or place of
19
residence and any other place for a purpose that:
20
(i) is referred to in sub-subparagraph 9(2)(e)(vi)(A), (B),
21
(C), (D) or (E) of that Act; and
22
(ii) is in connection with a matter covered by paragraph (a)
23
or (b) of this item; or
24
(d) an injury suffered by an employee, where the injury
25
happened at or after the transition time while the employee
26
was at a place for a purpose that:
27
(i) is referred to in sub-subparagraph 9(2)(e)(vi)(A), (B),
28
(C), (D) or (E) of that Act; and
29
(ii) is in connection with a matter covered by paragraph (a)
30
or (b) of this item;
31
as if those amendments had not been made.
32
5 Transitional
--exemption of employment
33
(1)
For the purposes of this item, an old exemption instrument means an
34
instrument of exemption that was in force under subsection 20A(1) of
35
Schedule 3 Application and transitional provisions
Part 4 Seacare scheme
96
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
the Seafarers Rehabilitation and Compensation Act 1992 immediately
1
before the transition time.
2
(2)
The Seafarers Rehabilitation and Compensation Act 1992 (as amended
3
by this Act) has effect as if:
4
(a) immediately after the transition time, the Commission had,
5
on its own initiative, made an instrument (the deemed
6
exemption instrument) under subsection 25M(1) of the
7
Seafarers Rehabilitation and Compensation Act 1992 (as
8
amended by this Act) in the same terms as the old exemption
9
instrument; and
10
(b) a reference in the deemed exemption instrument to the
11
Seafarers Rehabilitation and Compensation Levy Act 1992
12
were a reference to the Seafarers Safety and Compensation
13
Levies Act 2016; and
14
(c) a reference in the deemed exemption instrument to the
15
Seafarers Rehabilitation and Compensation Levy Collection
16
Act 1992 were a reference to the Seafarers Safety and
17
Compensation Levies Collection Act 2016.
18
(3)
Subsections 25M(14) and (16) of the Seafarers Rehabilitation and
19
Compensation Act 1992 (as amended by this Act) do not apply to the
20
deemed exemption instrument.
21
6 Application
--funeral expenses
22
The amendment of subsection 30(2) of the Seafarers Rehabilitation and
23
Compensation Act 1992 made by this Act applies in relation to a death
24
that occurred after the transition time.
25
7 Transitional
--indexation
26
Section 23 of the Seafarers Rehabilitation and Compensation Act 1992
27
applies in relation to the amount specified in subsection 30(2) of that
28
Act (as amended by this Act) as if the reference in the definition of
29
relevant year in subsection 23(1) of that Act to 1 July 1992 were a
30
reference to 1 July 2018.
31
Application and transitional provisions Schedule 3
Seacare scheme Part 4
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
97
8 Application
--compensation for injuries resulting in
1
incapacity
2
The amendment of section 31 of the Seafarers Rehabilitation and
3
Compensation Act 1992 made by this Act applies in relation to a
4
payment of compensation in respect of a week that began after the
5
transition time.
6
9 Application
--pension age
7
(1)
The amendments of section 38 of the Seafarers Rehabilitation and
8
Compensation Act 1992 made by this Act apply in relation to a payment
9
of compensation in respect of a week that began after the transition
10
time.
11
(2)
However, in the case of an employee who suffered an injury before the
12
transition time, subitem (1) does not prevent a week from being counted
13
for the purposes of subparagraph 38(2)(b)(ii) of the Seafarers
14
Rehabilitation and Compensation Act 1992 (as amended by this Act)
15
even if the week began before the transition time.
16
(3)
If:
17
(a) an employee suffered an injury before the transition time; and
18
(b) compensation is payable under Division 3 of Part 2 of the
19
Seafarers Rehabilitation and Compensation Act 1992 in
20
respect of the injury for 52 weeks (whether consecutive or
21
not) during which the employee is incapacitated; and
22
(c) the last of those weeks (the final payment week) ends before
23
the employee reaches pension age (within the meaning of the
24
Seafarers Rehabilitation and Compensation Act 1992 (as
25
amended by this Act));
26
subsection 38(2) of the Seafarers Rehabilitation and Compensation Act
27
1992 (as amended by this Act) has effect, in relation to the injury, as if
28
the number of weeks mentioned in subparagraph (b)(ii) of that
29
subsection were increased by the number of weeks in the period:
30
(d) beginning immediately after the end of the final payment
31
week; and
32
(e) ending immediately before the employee reaches pension age
33
(within the meaning of the Seafarers Rehabilitation and
34
Compensation Act 1992 (as amended by this Act)).
35
Schedule 3 Application and transitional provisions
Part 4 Seacare scheme
98
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
10 Application
--superannuation scheme
1
The amendment made by item 59 of Schedule 2 to this Act applies in
2
relation to a payment of compensation in respect of a week that began
3
after the transition time.
4
11 Application
--reconsideration of decisions
5
The amendments of section 78 of the Seafarers Rehabilitation and
6
Compensation Act 1992 made by this Act apply in relation to a request
7
made after the transition time.
8
12 Application
--costs of proceedings before the
9
Administrative Appeals Tribunal
10
The amendment of section 91 of the Seafarers Rehabilitation and
11
Compensation Act 1992 made by this Act applies in relation to
12
proceedings instituted after the transition time.
13
Application and transitional provisions Schedule 3
Winding-up of old levy scheme Part 5
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
99
Part 5--Winding-up of old levy scheme
1
13 Application
--repeal of old Levy Act
2
The repeal of the Seafarers Rehabilitation and Compensation Levy Act
3
1992 by this Act does not apply in relation to seafarer berths on a
4
prescribed ship on a day before the transition time.
5
14 Application
--repeal of old Levy Collection Act
6
Despite the repeal of the Seafarers Rehabilitation and Compensation
7
Levy Collection Act 1992 by this Act, that Act continues to apply, in
8
relation to:
9
(a) levy imposed by the repealed Seafarers Rehabilitation and
10
Compensation Levy Act 1992; and
11
(b) returns relating to seafarer berths on a prescribed ship on a
12
day before the transition time;
13
as if:
14
(c) that repeal had not happened; and
15
(d) a reference to the Compensation Act in the definitions of
16
prescribed ship, seafarer and seafarer berth in section 3 of
17
the Seafarers Rehabilitation and Compensation Levy
18
Collection Act 1992 were read as a reference to the
19
Compensation Act as in force before the transition time.
20
Schedule 3 Application and transitional provisions
Part 6 Transition from old occupational health and safety scheme
100
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
Part 6--Transition from old occupational health and
1
safety scheme
2
Division 1
--Introduction
3
15 Definitions
4
In this Part:
5
AMSA means the Australian Maritime Safety Authority.
6
notifiable incident has the same meaning as in the Work Health and
7
Safety Act 2011.
8
Occupational Health and Safety (Maritime Industry) Act 1993
9
includes any instrument made under that Act.
10
plant:
11
(a) in relation to duties imposed under the Occupational Health
12
and Safety (Maritime Industry) Act 1993 that continue to
13
apply because of a provision of this Part--has the same
14
meaning as in that Act; and
15
(b) in relation to duties imposed under the Work Health and
16
Safety Act 2011--has the same meaning as in that Act.
17
residual operation of the Occupational Health and Safety (Maritime
18
Industry) Act 1993 means the operation of the Occupational Health and
19
Safety (Maritime Industry) Act 1993:
20
(a) in relation to actions and failures to act that occur before the
21
transition time; and
22
(b) to the extent that the Occupational Health and Safety
23
(Maritime Industry) Act 1993 continues to apply in relation to
24
actions, and failures to act, that occur after the transition time
25
because of a provision of this Part--in relation to those
26
actions and failures to act.
27
structure:
28
(a) in relation to duties imposed under the Occupational Health
29
and Safety (Maritime Industry) Act 1993 that continue to
30
apply because of a provision of this Part--has the same
31
meaning as in that Act; and
32
(b) in relation to duties imposed under the Work Health and
33
Safety Act 2011--has the same meaning as in that Act.
34
Application and transitional provisions Schedule 3
Transition from old occupational health and safety scheme Part 6
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
101
substance:
1
(a) in relation to duties imposed under the Occupational Health
2
and Safety (Maritime Industry) Act 1993 that continue to
3
apply because of a provision of this Part--has the same
4
meaning as in that Act; and
5
(b) in relation to duties imposed under the Work Health and
6
Safety Act 2011--has the same meaning as in that Act.
7
supply:
8
(a) in relation to duties imposed under the Occupational Health
9
and Safety (Maritime Industry) Act 1993 that continue to
10
apply because of a provision of this Part--has the same
11
meaning as in that Act; and
12
(b) in relation to duties imposed under the Work Health and
13
Safety Act 2011--has the same meaning as in that Act.
14
Work Health and Safety Act 2011 includes any instrument made under
15
that Act.
16
Division 2
--Application of old occupational health and
17
safety scheme
18
16 Application of old occupational health and safety scheme
19
to certain breaches etc.
20
(1)
Despite the repeal of the Occupational Health and Safety (Maritime
21
Industry) Act 1993 by this Act, that Act continues in force (subject to
22
this Schedule), in relation to a breach of that Act that:
23
(a) occurred before the transition time; or
24
(b) is alleged to have occurred before the transition time;
25
as if that repeal had not happened.
26
(2)
However, if the action or failure to act that constitutes the breach
27
continues after the transition time then, subject to any other item of this
28
Schedule, the Occupational Health and Safety (Maritime Industry) Act
29
1993 does not apply to that action or failure to act to the extent that it
30
occurs after the transition time.
31
Schedule 3 Application and transitional provisions
Part 6 Transition from old occupational health and safety scheme
102
Seafarers and Other Legislation Amendment Bill 2016
No. , 2016
Division 3
--Application of duties imposed under the
1
Work Health and Safety Act 2011
2
17 Duties of designers
3
(1)
Subject to this item, the duties imposed on a designer under section 22
4
of the Work Health and Safety Act 2011, so far as that Act applies
5
because of subsection 12(8A) of that Act, do not apply in relation to any
6
plant, substance or structure if:
7
(a) the designer started (or started and completed) designing the
8
plant, substance or structure before the transition time; and
9
(b) before the transition time, the designer was not subject to any
10
duties imposed under:
11
(i) section 22 of the Work Health and Safety Act 2011; or
12
(ii) an identical, or nearly identical, provision of a law of a
13
State or Territory.
14
(2)
For the purposes of subparagraph (1)(b)(ii), in determining whether a
15
provision is identical, or nearly identical, to section 22 of the Work
16
Health and Safety Act 2011, disregard sections 12 to 12E of that Act.
17
(3)
If:
18
(a) apart from this subitem, subitem (1) would apply to a
19
designer; and
20
(b) the designer started designing any plant, substance or
21
structure before the transition time but has not completed the
22
design by the second anniversary of the transition time;
23
then:
24
(c) the designer will, in relation to the plant, substance or
25
structure, cease to have the benefit of subitem (1); and
26
(d) the designer must comply with the requirements of the Work
27
Health and Safety Act 2011 in relation to the duties of a
28
designer.
29
(4)
If:
30
(a) apart from this subitem, subitem (1) would apply to a
31
designer; and
32
(b) the designer carries out any calculations, analysis, testing or
33
examination that may be relevant to determining whether any
34
plant, substance or structure is designed to be without risks to
35
Application and transitional provisions Schedule 3
Transition from old occupational health and safety scheme Part 6
No. , 2016
Seafarers and Other Legislation Amendment Bill 2016
103
the health and safety of persons mentioned in paragraphs
1
22(2)(a) to (f) of the Work Health and Safety Act 2011, so far
2
as that Act applies because of subsection 12(8A) of that Act;
3
then, despite subitem (1):
4
(c) the duty imposed on the designer under paragraph 22(4)(b) of
5
that Act applies to the results of the calculations, analysis,
6
testing or examination; and
7
(d) to the extent that it relates to the results, subsection 22(5) of
8
that Act applies to the designer.
9
18 Duties of manufacturers
10
(1)
Subject to this item, the duties imposed on a manufacturer under
11
section 23 of the Work Health and Safety Act 2011, so far as that Act
12
applies because of subsection 12(8A) of that Act, do not apply in
13
relation to any plant, substance or structure if:
14
(a) the manufacturer started (or started and completed) any
15
process associated with the manufacture of the plant,
16
substance or structure before the transition time; and
17
(b) before the transition time, the manufacturer was not subject
18
to any duties imposed under:
19
(i) section 23 of the Work Health and Safety Act 2011; or
20
(ii) an identical, or nearly identical, provision of a law of a
21
State or Territory.
22
(2)
For the purposes of subparagraph (1)(b)(ii), in determining whether a
23
provision is identical, or nearly identical, to section 23 of the Work
24
Health and Safety Act 2011, disregard sections 12 to 12E of that Act.
25
(3)
Despite the repeal of the Occupational Health and Safety (Maritime
26
Industry) Act 1993, the duties imposed on a manufacturer under
27
sections 15 and 16 of that Act apply to and in relation to any plant or
28
substance if the manufacturer started (or started and completed) any
29
process associated with the manufacture of the plant or substance before
30
the transition time.
31
(4)
If a duty under the Occupational Health and Safety (Maritime Industry)
32
Act 1993 applies because of subitem (3), that Act applies in relation to a
33
breach, or alleged breach, of that duty, despite the repeal of that Act.
34
(5)
If:
35
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(a) apart from this subitem, subitem (1) would apply to a
1
manufacturer; and
2
(b) the manufacturer started any process associated with the
3
manufacture of any plant, substance or structure before the
4
transition time but has not completed the manufacture by the
5
first anniversary of the transition time;
6
then:
7
(c) the manufacturer will, in relation to the plant, substance or
8
structure, cease to have the benefit of subitem (1); and
9
(d) the manufacturer must comply with the requirements of the
10
Work Health and Safety Act 2011 in relation to the duties of a
11
manufacturer.
12
(6)
If:
13
(a) apart from this subitem, subitem (1) would apply to a
14
manufacturer; and
15
(b) the manufacturer carries out any calculations, analysis,
16
testing or examination that may be relevant to determining
17
whether any plant, substance or structure is manufactured to
18
be without risks to the health and safety of persons
19
mentioned in paragraphs 23(2)(a) to (f) of the Work Health
20
and Safety Act 2011, so far as that Act applies because of
21
subsection 12(8A) of that Act;
22
then, despite subitem (1):
23
(c) the duty imposed on the manufacturer under
24
paragraph 23(4)(b) of that Act applies to the results of the
25
calculations, analysis, testing or examination; and
26
(d) to the extent that it relates to the results, subsection 23(5) of
27
that Act applies to the manufacturer.
28
19 Duties of importers
29
(1)
Subject to this item, the duties imposed on an importer under section 24
30
of the Work Health and Safety Act 2011, so far as that Act applies
31
because of subsection 12(8A) of that Act, do not apply in relation to any
32
plant, substance or structure if:
33
(a) the importer started (or started and completed) any steps
34
constituting the importation of the plant, substance or
35
structure before the transition time; and
36
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(b) before the transition time, the importer was not subject to any
1
duties imposed under:
2
(i) section 24 of the Work Health and Safety Act 2011; or
3
(ii) an identical, or nearly identical, provision of a law of a
4
State or Territory.
5
(2)
For the purposes of subparagraph (1)(b)(ii), in determining whether a
6
provision is identical, or nearly identical, to section 24 of the Work
7
Health and Safety Act 2011, disregard sections 12 to 12E of that Act.
8
(3)
Despite the repeal of the Occupational Health and Safety (Maritime
9
Industry) Act 1993, the duties imposed under sections 15 and 16 of that
10
Act on an importer who is taken to be the manufacturer of any plant or
11
substance because of section 17 of that Act apply to and in relation to
12
the plant or substance if the importer started (or started and completed)
13
any steps constituting the importation of the plant or substance before
14
the transition time.
15
(4)
If a duty under the Occupational Health and Safety (Maritime Industry)
16
Act 1993 applies because of subitem (3), that Act applies in relation to a
17
breach, or alleged breach, of that duty, despite the repeal of that Act.
18
(5)
If:
19
(a) apart from this subitem, subitem (1) would apply to an
20
importer; and
21
(b) the importer started any process associated with the
22
importing of any plant, substance or structure before the
23
transition time but has not completed the importing by the
24
first anniversary of the transition time;
25
then:
26
(c) the importer will, in relation to the plant, substance or
27
structure, cease to have the benefit of subitem (1); and
28
(d) the importer must comply with the requirements of the Work
29
Health and Safety Act 2011 in relation to the duties of an
30
importer.
31
(6)
If:
32
(a) apart from this subitem, subitem (1) would apply to an
33
importer; and
34
(b) the importer carries out any calculations, analysis, testing or
35
examination that may be relevant to determining whether any
36
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plant, substance or structure that is imported is without risks
1
to the health and safety of persons mentioned in paragraphs
2
24(2)(a) to (f) of the Work Health and Safety Act 2011, so far
3
as that Act applies because of subsection 12(8A) of that Act,
4
or ensures that they have been carried out;
5
then, despite subitem (1):
6
(c) the duty imposed on the importer under paragraph 24(4)(b) of
7
that Act applies to the results of the calculations, analysis,
8
testing or examination; and
9
(d) to the extent that it relates to the results, subsection 24(5) of
10
that Act applies to the importer.
11
20 Duties of suppliers
12
(1)
Subject to this item, the duties imposed on a supplier under section 25
13
of the Work Health and Safety Act 2011, so far as that Act applies
14
because of subsection 12(8A) of that Act, do not apply in relation to any
15
plant, substance or structure if:
16
(a) the supplier started (or started and completed) any process
17
associated with the supply of the plant, substance or structure
18
before the transition time; and
19
(b) before the transition time, the supplier was not subject to any
20
duties imposed under:
21
(i) section 25 of the Work Health and Safety Act 2011; or
22
(ii) an identical, or nearly identical, provision of a law of a
23
State or Territory.
24
(2)
For the purposes of subparagraph (1)(b)(ii), in determining whether a
25
provision is identical, or nearly identical, to section 25 of the Work
26
Health and Safety Act 2011, disregard sections 12 to 12E of that Act.
27
(3)
Despite the repeal of the Occupational Health and Safety (Maritime
28
Industry) Act 1993, the duties imposed under section 19 of that Act:
29
(a) on a supplier; or
30
(b) on a person who, because of section 20 of that Act, is ta