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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MARITIME LEGISLATION AMENDMENT BILL 2018
EXPLANATORY MEMORANDUM
(Circulated by authority of the Deputy Prime Minister and Minister for Infrastructure,
Transport and Regional Development, the Hon Michael McCormack MP)
MARITIME LEGISLATION AMENDMENT BILL 2018
OUTLINE
The purpose of the Bill is to make important machinery amendments the Marine Safety
(Domestic Commercial Vessel) National Law Act 2012 (National Law Act) and Navigation
Act 2012 (Navigation Act) to clarify that references to 'regulations' in each Act generally
includes Marine Orders made under the Acts. This is necessary to ensure the existing
regulatory framework under these Acts operates as intended.
The Bill primarily inserts a definition for the term regulations in both Acts to clarify that this
term includes Marine Orders. Marine Orders are legislative instruments made by the
Australian Maritime Safety Authority (AMSA) under section 163 of Schedule 1 of the
National Law Act and section 342 of the Navigation Act. Marine Orders can be made with
respect to any matters for which provisions must or may be made by regulations under the
Acts, with limited exceptions. Those exceptions are set out in section 163 of the National
Law Act and section 342 of the Navigation Act. The Bill does not change any of those
exceptions.
It is important to clarify that the term regulations includes Marine Orders to ensure that
fundamental parts of Australia's regulatory framework for maritime safety and protection of
the marine environment, established under these Acts operate as intended. Many provisions
of the National Law Act and the Navigation Act rely on vessel owners and individuals
operating or working on vessels complying with requirements of regulations, such as
requirements to hold valid safety or pollution certificates.
Marine Orders are used to set out details of standards, certification obligations and other
technical and operational requirements for industry. Marine Orders set out these potentially
complex standards and requirements in the clearest and simplest manner possible to help the
maritime industry to understand and comply with their obligations. Use of Marine Orders also
ensures these requirements are set out in a consistent and familiar way that is easily and freely
accessible to industry in one place on AMSA's website (www.amsa.gov.au). The relative
agility of Marine Orders also ensures that legislation keeps up to date with technical and
operational advances in maritime safety and environmental protection, ensuring the legislative
framework remains current.
The definition of the term regulations will provide clarity and certainty for maritime
industries and AMSA that, where provisions of both Acts which rely on seafarers and vessel
owners complying with requirements of regulations, this includes compliance with existing
requirements set out in Marine Orders, in line with long-standing regulatory practice and the
original policy intent of both Acts. This definition will also ensure consistency with
definitions and structures in other related contemporary maritime legislation such as the
Protection of the Sea (Prevention of Pollution from Ships) Act 1983.
It is clear from the 2012 Explanatory Memoranda for the relevant Bills for both Acts that
policy makers intended Marine Orders, rather than the Acts or regulations, to be used to set
out operational and technical matters and requirements under the Acts.
1
The Explanatory Memorandum for the Marine Safety (Domestic Commercial Vessel)
National Law Bill 2012 notes Marine Orders may be made in relation to any matters
permitted or required to be made under the regulations, with certain exceptions. Matters
which can only be dealt with in regulations include fees, accreditation of marine surveyors,
and matters affecting the coverage rather than details of the resulting national safety scheme
(such as the definition of domestic commercial vessel). The Explanatory Memorandum
states:
"It is intended that Marine Orders will be the means for making vessel construction and
operation standards, together with near-coastal seafarer standards ... It is intended that
Marine Orders will be used to prescribe technical matters, such as:
procedural matters relating to applications for certificates;
criteria applicable to making decisions about certificates;
the application of the National Standard for Commercial Vessels and other national
standards;
procedural matters for review of decisions;
returning detained vessels;
prescribing matters for Enforceable Voluntary Undertakings;
prescribing matters relating to the accreditation of persons; and
prescribing the infringement notice scheme.
The Explanatory Memorandum for the Navigation Bill 2012 noted that the making of Marine
Orders in relation to any matter for which regulations may be made:
" ... is accepted practice with which the shipping industry is familiar and it is anticipated that
the bulk of regulations on operational matters would continue to be in the form of marine
orders."
Accordingly, Marine Orders contain detailed requirements and processes. For example,
Marine Order 503 (Certificates of survey -- national law) 2018 provides information about:
survey, design, construction and equipment standards;
who can survey a domestic commercial vessel;
applying for a certificate of survey;
criteria which must be met for AMSA to issue a certificate of survey;
conditions on a certificate of survey;
variation, suspension or cancellation of a certificate of survey; and
applying for an equivalent means of compliance.
Marine Orders are also used to give effect to international obligations and standards, such as
requirements of the International Convention for the Prevention of Pollution from Ships,
known as MARPOL.
Marine Orders are legislative instruments for the purpose of the Legislation Act 2003.
Accordingly, they are subject to Parliamentary scrutiny and disallowance, and are registered
and freely available on the Federal Register of Legislation (www.legislation.gov.au).
Guidance material on Marine Orders for seafarers, ship owners, vessel owners and other
interested parties, as well as links to the Marine Orders on the Federal Register of Legislation,
are also freely available on AMSA's website (www.amsa.gov.au).
2
The Bill also sets out limited exceptions to this definition where the contrary intent applies.
For example, the definition does not extend to the provisions in each Act empowering the
Governor-General to make regulations, or the Australian Maritime Safety Authority (AMSA)
to make Marine Orders. The Bill also makes amendments to two sections of the National
Law Act to ensure references to this Law (which, as defined, includes the regulations and
other instruments made under the Act such as Marine Orders) do not create circular or
confusing references.
In practical terms, machinery changes made by the Bill will have no impact on maritime
industries operating under these Acts. Individual seafarers and vessel owners will continue to
comply with the same requirements set out under the existing Acts, regulations and Marine
Orders in the same manner as today, and continue to be subject to the existing compliance
framework.
Financial impact statement
The Bill is machinery in nature and is not expected to have any significant financial impact.
3
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Maritime Legislation Amendment Bill 2018
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Overview of the Bill
The purpose of the Bill is to make important machinery amendments the Marine Safety
(Domestic Commercial Vessel) National Law Act 2012 (National Law Act) and Navigation
Act 2012 (Navigation Act) to clarify that references to 'regulations' in each Act generally
includes Marine Orders made under the Acts. This is necessary to ensure the existing
regulatory framework under these Acts operates as intended.
The Bill primarily inserts a definition for the term regulations in both Acts to clarify that this
term includes Marine Orders. Marine Orders are legislative instruments made by the
Australian Maritime Safety Authority (AMSA) under section 163 of Schedule 1 of the
National Law Act and section 342 of the Navigation Act. Marine Orders can be made with
respect to any matters for which provisions must or may be made by regulations under the
Acts, with limited exceptions. Those exceptions are set out in section 163 of the National
Law Act and section 342 of the Navigation Act. The Bill does not change any of those
exceptions.
It is important to clarify that the term regulations includes Marine Orders to ensure that
fundamental parts of Australia's regulatory framework for maritime safety and protection of
the marine environment, established under these Acts operate as intended. Many provisions
of the National Law Act and the Navigation Act rely on vessel owners and individuals
operating or working on vessels complying with requirements of regulations, such as
requirements to hold valid safety or pollution certificates.
Marine Orders are used to set out details of standards, certification obligations and other
technical and operational requirements for industry. Marine Orders set out these potentially
complex standards and requirements in the clearest and simplest manner possible to help the
maritime industry to understand and comply with their obligations. Use of Marine Orders also
ensures these requirements are set out in a consistent and familiar way that is easily and freely
accessible to industry in one place on AMSA's website (www.amsa.gov.au). The relative
agility of Marine Orders also ensures that legislation keeps up to date with technical and
operational advances in maritime safety and environmental protection, ensuring the legislative
framework remains current.
The definition of the term regulations will provide clarity and certainty for maritime
industries and AMSA that, where provisions of both Acts which rely on seafarers and vessel
owners complying with requirements of regulations, this includes compliance with existing
4
requirements set out in Marine Orders, in line with long-standing regulatory practice and the
original policy intent of both Acts. This definition will also ensure consistency with
definitions and structures in other related contemporary maritime legislation such as the
Protection of the Sea (Prevention of Pollution from Ships) Act 1983.
It is clear from the 2012 Explanatory Memoranda for the relevant Bills for both Acts that
policy makers intended Marine Orders, rather than the Acts or regulations, to be used to set
out operational and technical matters and requirements under the Acts.
The Explanatory Memorandum for the Marine Safety (Domestic Commercial Vessel)
National Law Bill 2012 notes Marine Orders may be made in relation to any matters
permitted or required to be made under the regulations, with certain exceptions. Matters
which can only be dealt with in regulations include fees, accreditation of marine surveyors,
and matters affecting the coverage rather than details of the resulting national safety scheme
(such as the definition of domestic commercial vessel). The Explanatory Memorandum
states:
"It is intended that Marine Orders will be the means for making vessel construction and
operation standards, together with near-coastal seafarer standards ... It is intended that
Marine Orders will be used to prescribe technical matters, such as:
procedural matters relating to applications for certificates;
criteria applicable to making decisions about certificates;
the application of the National Standard for Commercial Vessels and other national
standards;
procedural matters for review of decisions;
returning detained vessels;
prescribing matters for Enforceable Voluntary Undertakings;
prescribing matters relating to the accreditation of persons; and
prescribing the infringement notice scheme.
The Explanatory Memorandum for the Navigation Bill 2012 noted that the making of Marine
Orders in relation to any matter for which regulations may be made:
" ... is accepted practice with which the shipping industry is familiar and it is anticipated that
the bulk of regulations on operational matters would continue to be in the form of marine
orders."
Accordingly, Marine Orders contain detailed requirements and processes. For example,
Marine Order 503 (Certificates of survey -- national law) 2018 provides information about:
survey, design, construction and equipment standards;
who can survey a domestic commercial vessel;
applying for a certificate of survey;
criteria which must be met for AMSA to issue a certificate of survey;
conditions on a certificate of survey;
variation, suspension or cancellation of a certificate of survey; and
applying for an equivalent means of compliance.
Marine Orders are also used to give effect to international obligations and standards, such as
requirements of the International Convention for the Prevention of Pollution from Ships,
known as MARPOL.
5
Marine Orders are legislative instruments for the purpose of the Legislation Act 2003.
Accordingly, they are subject to Parliamentary scrutiny and disallowance, and are registered
and freely available on the Federal Register of Legislation (www.legislation.gov.au).
Guidance material on Marine Orders for seafarers, ship owners, vessel owners and other
interested parties, as well as links to the Marine Orders on the Federal Register of Legislation,
are also freely available on AMSA's website (www.amsa.gov.au).
The Bill also sets out limited exceptions to this definition where the contrary intent applies.
For example, the definition does not extend to the provisions in each Act empowering the
Governor-General to make regulations, or the Australian Maritime Safety Authority (AMSA)
to make Marine Orders. The Bill also makes amendments to two sections of the National
Law Act to ensure references to this Law (which, as defined, includes the regulations and
other instruments made under the Act such as Marine Orders) do not create circular or
confusing references.
In practical terms, machinery changes made by the Bill will have no impact on maritime
industries operating under these Acts. Individual seafarers and vessel owners will continue to
comply with the same requirements set out under the existing Acts, regulations and Marine
Orders in the same manner as today, and continue to be subject to the existing compliance
framework.
6
Human rights implications
The Bill does not engage human rights as the provisions of the Bill are confined to machinery
amendments to existing legislation.
The Bill is designed to clarify current regulatory practice and ensure the existing regulatory
framework under the Marine Safety (Domestic Commercial Vessel) National Law Act 2012
and the Navigation Act 2012 operates as intended.
The Bill will not alter existing regulatory practice, the original policy intent of the Primary
Acts, nor substantially change the effect of those Acts.
Human rights implications of the Primary Acts were set out in the Statements of
Compatibility with Human Rights within the Explanatory Memoranda for the Marine Safety
(Domestic Commercial Vessel) National Law Bill 2012 and the Navigation Bill 2012.
These Statements of Compatibility concluded the Bills were compatible with human rights
because to the extent that they may limit human rights, those limitations were reasonable and
proportionate to the information sought and the safety benefits conveyed to the maritime
industry.
These human rights implications and conclusions were assessed as part of the Senate Standing
Committee for the Scrutiny of Bills' consideration of these 2012 Bills (shortly prior to the
Parliamentary Joint Committee on Human Rights commencing operation). The Senate
Standing Committee for the Scrutiny of Bills requests for further advice and ministerial
responses are set out in that Committee's Seventh Report of 2012 of 27 June 2012.
Ultimately, the Committee did not raise significant concern with the human rights
implications of the Bills, or dispute the conclusions of the Statements of Compatibility.
Those conclusions are not altered by provisions of the Maritime Legislation Amendment Bill
2018.
Conclusion
This Bill is compatible with human rights because it does not raise any human rights issues.
Deputy Prime Minister and Minister for Infrastructure, Transport and
Regional Development, the Hon Michael McCormack MP
7
NOTES ON CLAUSES
Clause 1: Short Title
1. This is a formal provision that specifies the Act may be cited as the Maritime Legislation
Amendment Act 2018.
Clause 2: Commencement
2. This clause provides for when each provision of the Act will commence. In this case, the
whole of the Act commences the day after the Act receives Royal Assent.
Clause 3: Schedule(s)
3. This clause provides that legislation that is specified in a Schedule to this Act is amended
or repealed as set out in the applicable items in the Schedule concerned, and any other
item in a Schedule to this Act has effect according to its terms.
SCHEDULE 1 - Amendments
Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (National Law Act)
Item 1- At the end of section 3
4. This clause provides that, while terms used in the local application provisions of the
National Law Act and Schedule 1 of the National Law Act have the same meanings, this
does not apply to the term "regulations". In the local application provisions, the term
"regulations" only means regulations made by the Governor-General under section 19 of
the National Law Act. The local application provisions deal with matters that are
appropriate for regulations made by the Governor-General. However, in Schedule 1 of
the National Law Act, the term "regulations" has the broader meaning defined below to
include Marine Orders which may deal with more technical and operational matters.
Item 2 - Section 6 of Schedule 1
5. This clause inserts the following definition:
regulations (except in sections 159(1), 163(1) and 164 and any other provision where
the context indicates otherwise) includes Marine Orders made under section 163(1).
This definition clarifies that throughout Schedule 1 of the National Law Act, any
reference to "regulations" includes Marine Orders, except in the provisions specified or
where context indicates otherwise. This clarification ensures that provisions referring to
requirements set out in Marine Orders made under section 163 of Schedule 1 of the
National Law Act are interpreted in line with the original policy intent of the Act.
The definition does not extend to the provisions empowering the Governor-General to
make regulations (s.159(1)) or empowering the Australian Maritime Safety Authority
8
(AMSA) to make Marine Orders (s.163(1)). These exemptions provide clarity that, in
these provisions, the term 'regulations' means only regulations and not Marine Orders.
This also makes clear that policy intent remains for the Governor-General to make
regulations and for AMSA to make Marine Orders, and avoids confusing or circular
references to 'regulations' in the provision empowering the Australian Maritime Safety
Authority (AMSA) to make Marine Orders.
Similarly, the provision for incorporation of material (s.164) refers to both regulations and
Marine Orders, so has been exempted from the definition to avoid confusing or circular
references.
Item 3 - At the end of section 159 of Schedule 1
6. This clause clarifies that within section 159 of Schedule 1 of the National Law Act
(Regulations) the term this Law only refers to the Marine Safety (Domestic Commercial
Vessel) National Law Act 2012. This clarification is necessary to avoid creating create
circular or confusing references.
In other parts of the Act, the term this Law includes regulations and any other legislative
instruments made under the Act, such as Marine Orders
Item 4 - At the end of section 165 of Schedule 1
7. This clause clarifies that within subsection 165(3) the term this Law only refers to the
Marine Safety (Domestic Commercial Vessel) National Law Act 2012. Similar to Item 3
above, this clarification is necessary to avoid creating create circular or confusing
references.
Navigation Act 2012 (Navigation Act)
Item 5 - Subsection 14(1)
8. This clause inserts the following definition:
regulations (except in subsections 331(2), 339(1), 341(2), 342(1) and 343(1) and any
other provision where the context indicates otherwise) includes Marine Orders made
under subsection 342(1).
This definition clarifies that throughout the Navigation Act, any reference to "regulations"
includes Marine Orders, except in the provisions specified or where context indicates
otherwise. This clarification ensures that provisions referring to requirements set out in
Marine Orders made under section 342 of the Navigation Act, such as for safety or pollution
certification, are interpreted in line with the original policy intent of the Act.
Subsections 331(2) of the Navigation Act has been excluded from the definition to avoid
potentially inappropriate delegation of legislative powers. Subsection 331(2) allows
regulations to provide that section 19B of the Crimes Act 1914 does not apply to specified
offences against the regulations. Section 19B of the Crimes Act 1914 provides for
circumstances in which a court may discharge offenders without proceeding to conviction.
9
The definition does not extend to subsection 339(1) of the Navigation Act, which empowers
the Governor-General to make regulations, or subsection 243(1), which empowers AMSA to
make Marine Orders. These exemptions provide clarity that, in these provisions, the term
'regulations' means only regulations and not Marine Orders. This also makes clear that policy
intent remains for the Governor-General to make regulations and for AMSA to make Marine
Orders, and avoids confusing or circular references to 'regulations' in the provision
empowering the Australian Maritime Safety Authority (AMSA) to make Marine Orders.
Subsection 341(2) has been excluded from the definition to avoid creating confusing
references or duplicating subsection 342(4). These subsections allow regulations or Marine
Orders respectively to make provisions for matters by applying, adopting or incorporating
instruments or documents.
Similarly, subsection 343(1) has been excluded from the definition to avoid creating
confusing references or duplicating subsection 343(2). These subsections allow regulations or
Marine Orders respectively to provide for regulations and orders under the now-repealed
Navigation Act 1912.
10