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2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MARINE SAFETY (DOMESTIC COMMERCIAL VESSEL) NATIONAL LAW
AMENDMENT BILL 2014
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Infrastructure and Regional Development
the Hon Warren Truss MP)
MARINE SAFETY (DOMESTIC COMMERCIAL VESSEL) NATIONAL LAW
AMENDMENT BILL 2014
OUTLINE
The purpose of the Bill is to amend the Marine Safety (Domestic Commercial Vessel)
National Law Act 2012 (the National Law), and for related purposes.
The National Law commenced on 1 July 2013, introducing nationally consistent law for the
regulation of domestic commercial vessel safety and establishing the Australian Maritime
Safety Authority (AMSA) as the National Marine Safety Regulator for the domestic
commercial vessel fleet operating in Australian waters across all states and territories,
including the Christmas and Cocos (Keeling) Islands.
The policy basis for the National Law derives from the Council of Australian Governments
Intergovernmental Agreement on Commercial Vessel Safety Reform (the IGA), signed by
First Ministers on 19 August 2011.
The IGA sets out the mechanism for making any amendments to the National Law. It requires
the unanimous agreement of the members of the Standing Council on Transport and
Infrastructure (SCOTI), or its successor the Transport and Infrastructure Council, comprised
of transport ministers from all jurisdictions, including the Deputy Prime Minister, the Hon
Warren Truss MP. The amendments proposed in this Bill were agreed by SCOTI on 15
November 2013.
AMSA and the Department of Infrastructure and Regional Development have identified a
number of necessary amendments to ensure the intentions of the parties to the IGA are fully
realised. The amendments are largely minor.
Financial impact statement
Nil
Statement of Compatibility with Human Rights
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.
Human rights implications
The Bill engages the following human rights:
Right to fair trial and fair hearing
Overview of the Bill
The Marine Safety (Domestic Commercial Vessel) National Law Amendment Bill 2014 (the
Bill) will ensure the National Marine Safety Regulator is able to exercise discretion when
considering the suspension, revocation and variation of vessel certificates. This will provide
greater flexibility to accommodate the variety of operational variables within Australias
domestic commercial vessel fleet.
This Bill also provides minor amendments to ensure the definition of ,,defence vessel aligns
with the Navigation Act 2012, which also deals with marine safety.
In addition to those amendments already mentioned the Bill provides amendments to ensure
the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (the Act):
clarifies one of the National Regulators functions as the function of surveying
vessels;
allows for the sub-delegation of powers to accommodate the range of organisational
arrangements within each jurisdiction; and
consistently and correctly uses legislative referencing, corrects minor grammatical
errors of the Act and clarifies review rights within the Act.
Human rights implications
Items 19 to 23 of this Bill clarify that review rights under the Act are consistent with the
original intentions of the Act. These amendments ensure that those human rights relating to
review rights, as recognised in Article 14(1) of the International Convention on Civil and
Political Rights (ICCPR) are made available.
Conclusion
This Bill is compatible with human rights as it clarifies that the review rights as recognised in
the ICCPR are available.
Minister for Infrastructure and Regional Development, the Hon Warren Truss MP
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NOTES ON CLAUSES
Clause 1: Short Title
1. This is a formal provision that specifies that the Act may be cited as the Marine Safety
(Domestic Commercial Vessel) National Law Amendment Act 2014 (the Act).
Clause 2: Commencement
2. This clause sets out the Act will commence on the day the Act receives the Royal Assent.
Clause 3: Schedule(s)
3. This clause provides that the Act will be amended as specified and set out in Schedule 1
to the Act.
SCHEDULE 1 -
Item 1 - Section 6 of the Marine Safety (Domestic Commercial Vessel) National Law
(definition of defence vessel)
4. The definition of "defence vessel" under section 6 of the Marine Safety (Domestic
Commercial Vessel) National Law (the National Law) is not the same as subsections
10(a) and 10(b) of the Navigation Act 2012 (the Navigation Act), which also deals with
marine safety. This means that, without aligning the definitions, the terms "defence
vessel" must be interpreted differently in each piece of legislation, to the extent of the
difference. Item 1 clarifies that defence vessels under the Navigation Act are the same as
the defence vessels under the National Law.
Item 2 - Section 6 of the Marine Safety (Domestic Commercial Vessel) National Law
5. Item 2 will insert the definition of "Government vessel" and clarify that this term has the
same meaning as the Navigation Act. This will ensure that the legislative scope of what is
meant by this term is interpreted in the same manner as the Navigation Act.
Item 3 - After paragraph 10(c) of the Marine Safety (Domestic Commercial Vessel) National
Law
6. Item 3 will insert sub-clause 10(ca) to make explicit that the National Regulator has the
function of surveying vessels and dealing with matters relating to the survey of vessels by
accredited vessel surveyors.
Item 4 - Subsection 11(3) of the Marine Safety (Domestic Commercial Vessel) National Law
7. Subsection 11(3) of the National Law will be amended to broaden the sub-delegation
power of a delegate of the National Regulator that is an employee of a State or the
Northern Territory to enable them to sub-delegate any of their powers or functions to an
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officer or employee of an agency of their State or Northern Territory. This is required to
ensure the appropriate National Regulator functions can be delegated to any officer
regardless of the various organisational structures within the jurisdictions. Sub-
delegations are subject to subsection 11(2) and 11(5), which provide the National
Regulator with the authority to establish conditions on how the sub-delegate is to exercise
their functions and delegated powers.
Item 5 - Subsection 40(2) of the Marine Safety (Domestic Commercial Vessel) National Law
8. Subsection 40(2) of the National Law will be amended to give the National Regulator
discretion in deciding whether to vary a certificate of survey.
Item 6 - Subsection 41(2) of the Marine Safety (Domestic Commercial Vessel) National Law
9. Subsection 41(2) of the National Law will be amended to give the National Regulator
discretion in deciding whether to suspend a certificate of survey under new subsections
41(2) and (2A).
Item 7 - Subsection 42(2) of the Marine Safety (Domestic Commercial Vessel) National Law
10. Subsection 42(2) of the National Law will be amended to give the National Regulator
discretion in deciding whether to revoke a certificate of survey.
Item 8 - Subsection 50(2) of the Marine Safety (Domestic Commercial Vessel) National Law
11. Subsection 50(2) of the National Law will be amended to give the National Regulator
discretion in deciding whether to vary a certificate of operation.
Item 9 - Subsection 51(2) of the Marine Safety (Domestic Commercial Vessel) National Law
12. Subsection 51(2) of the National Law will be amended to give the National Regulator
discretion in deciding whether to suspend a certificate of operation under new subsections
51(2) and (2A).
Item 10 - Subsection 51(4) of the Marine Safety (Domestic Commercial Vessel) National
Law
13. Item 10 changes the term "subparagraph" to "subsection" to ensure the consistent use of
terminology in the National Law.
Item 11 - Subsection 52(2) of the Marine Safety (Domestic Commercial Vessel) National
Law
14. Subsection 52(2) of the National Law will be amended to give the National Regulator
discretion in deciding whether to revoke a certificate of operation.
Item 12 - Subsection 62(2)- Variation of certificate of competency
15. Subsection 62(2) of the National Law will be amended to give the National Regulator
discretion in deciding whether to vary a certificate of competency.
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Item 13 - Subsection 63(2) of the Marine Safety (Domestic Commercial Vessel) National
Law
16. Subsection 63(2) of the National Law will be amended to give the National Regulator
discretion in deciding whether to suspend a certificate of competency under new
subsections 63(2) and (2A).
Item 14 - Subsection 63(4) of the Marine Safety (Domestic Commercial Vessel) National
Law
17. Item 14 changes the term "subparagraph" to "subsection" to ensure the consistent use of
terminology in the National Law.
Item 15 - Subsection 64(2) of the Marine Safety (Domestic Commercial Vessel) National
Law
18. Subsection 64(2) of the National Law will be amended to give the National Regulator
discretion in deciding whether to vary a certificate of competency.
Item 16 - Section 72 of the Marine Safety (Domestic Commercial Vessel) National Law
19. Section 72 of the National Law requires the National Regulator to give a show cause
notice before suspending a certificate. Item 16 will be a consequential amendment
required to give effect to those amendments proposed at items 6, 9 and 13.
Item 17 - Paragraph 104(2)(h) of the Marine Safety (Domestic Commercial Vessel) National
Law
20. Paragraph 104(2)(h) of the National Law will be amended to remove reference to
subsection (7) as this subsection does not exist.
Item 18 - Section 139 of the Marine Safety (Domestic Commercial Vessel) National Law
21. Section 139 of the National Law will be amended to correct a minor drafting error.
Item 19 - At the end of subparagraph 139(a)(ii) and (iii) of the Marine Safety (Domestic
Commercial Vessel) National Law
22. Section 139 of the National Law will be amended to correct a minor drafting error and
make clear that an applicant has the right to have a decision reviewed where the National
Regulator acts in accordance with subsections 48(2) or 60(2) of the Act.
Item 20 - At the end of subparagraph 139(g)(i), (ii) and (iii) of the Marine Safety (Domestic
Commercial Vessel) National Law
23. Item 20 will be consequential amendments required to give effect to those amendments
proposed at items 6, 9 and 13.
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Item 21 - At the end of subparagraph 139(i)(ii) and (iii) of the Marine Safety (Domestic
Commercial Vessel) National Law
24. Section 139 of the National Law will be amended to correct errors in the Act and make
clear that an applicant has the right to have a decision reviewed where the National
Regulator acts under subsections 52(3) and 64(3).
Item 22 - Paragraphs 139(m), (n) and (o) of the Marine Safety (Domestic Commercial
Vessel) National Law
25. Paragraphs 139(m), (n) and (o) are stated as decisions made by the National Regulator
which are subject to review. However, the decisions made under paragraphs 139(m), (n)
and (o) are made by a marine safety inspector, not the National Regulator and therefore
the paragraphs will be repealed. Reviewable decisions made by marine safety inspectors
are addressed at item 23.
Item 23 - At the end of section 139 of the Marine Safety (Domestic Commercial Vessel)
National Law
26. New subsection 139(2) will be added so that decisions made under sections 101(1),
110(1) and 111(2) will be specified in the National Law as reviewable decisions made by
a marine safety inspector.
Item 24 - Subsection 140(1) of the Marine Safety (Domestic Commercial Vessel) National
Law
27. Subsection 140(1) of the National Law will be amended so that when a reviewable
decision is made in relation to a person either the National Regulator or a marine safety
inspector must issue a notice to that person.
Item 25 - Subsection 140(4) of the Marine Safety (Domestic Commercial Vessel) National
Law
28. Subsection 140(4) of the National Law will be amended to correct a grammatical error.
Item 26 - After subsection 159(5) of the Marine Safety (Domestic Commercial Vessel)
National Law
29. Sub-clause 10(ca) will be inserted to specify that survey of vessels is a function of the
National Regulator. New subsection 159(5A) will be inserted to specify that regulations
may be made in relation to the conduct of the survey of vessels.
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