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Maritime Legislation Amendment Bill 2000
Date Introduced: 31 August 2000
House: House of Representatives
Portfolio: Transport and Regional Services
Commencement: If Royal Assent is given by 1 January 2001, the Act commences on 1 January 2001. Otherwise, on a date to be fixed by Proclamation, but not later than six months after Royal Assent.
The main purposes of the Bill are to:
- amend the Navigation Act 1912 (Commonwealth) to rearrange Commonwealth, State and Territory responsibilities regarding safety regulation of Australian trading ships and foreign flagged trading ships visiting Australia.
- amend the Seafarers Rehabilitation and Compensation Act 1992 (Commonwealth) and Occupational Health and Safety (Maritime Industry) Act 1993 (Commonwealth) to reflect, as far as possible, the jurisdictional rearrangements proposed by amending the Navigation Act 1912.
The Navigation Act
The Navigation Act 1912 is the basic Commonwealth legislation that regulates most safety-related operational aspects of overseas and interstate voyages by Australian and foreign-flagged trading ships. Historically, the main constitutional head of power for the Act has been section 98 of the Commonwealth Constitution, the relevant part of which states:
the power of the Parliament to make laws with respect to trade and commence extends to navigation and shipping....
The Commonwealth's power with respect to 'trade and commence' is contained in section 51(i) of the Constitution.(1) This means that only interstate or overseas(2) navigation and shipping activities are covered by section 98, not purely intrastate trade, nor shipping of a non-trade or commercial nature.
The types of vessels and voyages that currently fall outside the coverage of the Navigation Act are described in section 2 of the Act. In particular, subsection 2(1) says the Act does not apply to:
- trading vessels not proceeding on an interstate or overseas voyage
- fishing vessels(3) or fishing fleet support vessels not proceeding on an overseas voyage, and
- inland waterway crafts and pleasure crafts.
The current form of subsection 2(1) was inserted by the Navigation Amendment Act 1980, part of legislative package designed to give effect to the offshore constitutional settlement (OCS) reached between the Commonwealth and States in 1979. While the issue of shipping was not central to the dispute between the Commonwealth and the States that gave rise to the OCS, the series of agreements reached under the OCS included one on shipping and navigation.(4) In introducing the Navigation Amendment Bill 1980, the Government said:(5)
The division of responsibility between the Commonwealth and the States and in matters relating to the regulation and safety of shipping has been confused since Federation...In addressing itself to these problems, the Government took the approach that the Commonwealth should leave local matters to the States and exercise its powers only where this is essential in the national interest...[the approach taken by the OCS shipping and navigation agreement] will ensure that the Government best equipped administratively to deal with particular aspects of shipping and navigation will have the legal powers to carry out that particular function.
However, some twenty years later, the Government has conceded that:(6)
Practical experience in the intervening years has revealed a number of complications and duplications which this Bill is designed to address....some large trading ships such as bulk carriers and tankers [on intra-State voyages], including foreign flagged vessels...[are currently] the responsibility of a State or the Northern Territory. The Australian Maritime Safety Authority is clearly the expert in the regulation of these types of vessels...On the other hand...small trading ships...now more regularly operate on an interstate basis...this has resulted in undesirable duplication of Commonwealth and State/Territory safety regulation applying to these vessels. Many of these [small trading] ships make only occasional interstate voyages and when they do so, they are required to comply with two and sometimes three sets of rules, and incur the associated compliance costs.
Maritime Occupational Health and Safety
Both the Seafarers Rehabilitation and Compensation Act 1992 and Occupational Health and Safety (Maritime Industry) Act 1993 apply to those ships to which Part II ('Masters and Seaman') of the Navigation Act 1912 itself applies. In broad terms, in order for Part II to apply to crews, the ship in question must:
- be registered in Australia, or
- be engaged in Australian coastal trade, or
- have a majority Australian crew(7) and be operated by an Australian or a company that is incorporated in Australia or otherwise has Australia as its principal place of business.
The issue of the relationship between Commonwealth and State occupational health and safety legislation and the Navigation Act 1912 arose in the 1995 Commonwealth Parliamentary Inquiry, Ships of Shame - A Sequel(8). The inquiry heard that there were differing requirements for reporting accidents and the like for different jurisdictions and different Acts. The inquiry committee report recommended that the Minister for Transport initiate an inquiry into the matter.(9) It is not clear whether any significant action, such as the recommended inquiry, was taken on this matter.(10)
In introducing the Bill, the Minister stated that:(11)
The Bill gives effect to the decisions of the Commonwealth, States and Territory governments, through the Australian Transport Council and the Workplace Relations Minister's Council...the change to jurisdictional responsibility is not only sought by the States and Territories but also supported by the shipping industry.
It is understood that consultation included shipowners and operators, unions and professional associations, maritime legal and insurance organisations(12) as well as the Australia Maritime Safety Authority (AMSA) and other Commonwealth departments. Notwithstanding the Minister's comments above, at least one organisation, the Australian Institute of Marine and Power Engineers (AIMPE) has some concerns about the proposed changes.(13) Amongst other things, AIMPE's main concerns relate to the Constitutional validity of the jurisdictional changes and the potential ability of large vessels to 'opt out' of Commonwealth jurisdiction(14).
Schedule 1 - Navigation Act
Item 1 substitutes a new paragraph 2(1)(a) in order to alter the criteria for defining the jurisdictional 'boundary' between the Commonwealth and the States / Northern Territory's regulation of trading vessels. The proposed criterion is essentially the size of the vessel (over 500 gross tonnes vs under 500 gross tonnes) rather than the current nature of the voyage (overseas/interstate vs intrastate). However, all foreign flagged trading vessels engaged in interstate voyages will continue to be regulated by the Commonwealth, as will overseas voyages by all sized vessels.
Item 3 inserts a new subsection 2(1A). This further limits the application of Commonwealth jurisdiction. It provides that, even if Commonwealth jurisdiction is not excluded under item 1 above, it only applies where the ship conforms to certain criteria. These criteria correspond to various Commonwealth constitutional heads of power: external affairs,(15) interstate or overseas trade or commerce, and corporations.(16)
Items 7 and 8 amend existing subsections 8AA(1) and 8AA(2) respectively. Existing section 8AA is an 'opt in' clause - it allows a shipowner to apply to AMSA to be subject to the Navigation Act 1912 rather than the equivalent State or Territory law, even when the ship is normally engaged in intra-state, rather than interstate or overseas, trade. Items 7 and 8 enable the opt in provision to continue by allowing an owner of a vessel of less than 500 gross tonnage to apply for the vessel to come under the Navigation Act 1912.
Item 9 inserts a new section 8AC. This is in effect the opposite of section 8AA, as it allows the owner of a trading ship to apply to 'opt out' of the Navigation Act 1912 except for Part VI of the Act.(17) According to the Government, this provision has been included because there may be some larger vessels such as harbour ferries that are best regulated by the relevant State or Territory.(18) In making a decision whether to grant an opt out, AMSA will be required by new subsection 8AC(6) to 'have regard' to any guidelines specified under regulations. The guidelines will be disallowable by either House of Parliament under the normal tabling and disallowance procedures of the Acts Interpretation Act 1901.
Item 10 substitutes new section 284. Section 284 defines what ships are subject to Part VI (Coasting trade) of the Navigation Act 1912. Currently, section 284 provides that Part VI applies to all ships not subject to Part II, ie trading ships on intra-state voyages, fishing vessels operating in domestic waters etc. However, the main purpose of Part VI is different from the rest of the Navigation Act in that Part VI deals with the economic regulation of a particular aspect of shipping (coasting trade) rather than regulation of maritime safety and associated issues. The Bill does not to intend to alter jurisdiction arrangements with respect to Part VI. As the Bill alters jurisdictional arrangements under Part II, arrangements for Part VI now have to be defined without the current reference to Part II. The new section 284 does this and this preserves the status quo.
Item 11 amends section 425(1AA). Section 425(1AA) specifies those parts of the Navigation Act for which AMSA can make marine orders. Currently, AMSA cannot make an order in relation to a matter falling under Part I. Part I is the introductory Part of the Navigation Act, and encompasses sections which define the applicability of the Navigation Act to various situations, including the opt in and opt out provisions of sections 8AA and 8AC respectively. As covered in item 9, the Bill contemplates that guidelines will be developed to which AMSA must have regard in considering an 'opt out' application. The effect of item 11 is therefore to allow these guidelines to be made as marine orders by AMSA.
Schedule 2 - Occupational Health and Safety (Maritime Industry) Act 1993
Items 1-24 amend section 4 of the Occupational Health and Safety (Maritime Industry) Act 1993 by inserting or substituting new definitions of various terms used in explaining key concepts that are contained in new sections 4A-4H.
Item 25 inserts new sections 4A-4H.
New Section 4A determines whether a ship is a prescribed ship. The importance of this is that, subject to certain conditions,(19) if a ship is a prescribed ship, the Occupational Health and Safety (Maritime Industry) Act 1993 will apply; if not, it doesn't. Section 4A defines prescribed ships as including Australian-registered vessels,(20) foreign vessels which are engaged in the coasting trade or, if not engaged in the coasting trade (as defined), foreign vessels operated by a person who is a resident of, or has their principal place of business in Australia, or a company that is incorporated, or has its principal place of business in Australia. New Section 4A(2) It also excludes various ships; notably, ships covered by the Petroleum (Submerged Lands) Act 1967, fishing vessels or fishing fleet support vessels not proceeding on an overseas voyage, inland waterway or pleasure crafts, non-self propelled vessels, and those excluded from coverage of the Navigation Act under a section 8AC 'opt out' declaration.(21)
New section 4B determines what is coasting trade. Subject to certain exceptions, it is defined as when a ship takes on board passengers or cargo at any port in a State, or a Territory, to be carried to, and landed or delivered at, any other port in the same State or Territory or in any other State or other such Territory.
New section 4C defines intrastate, interstate and overseas voyages. Included in the definition of an overseas voyage is the situation where a ship starts or finishes its voyage at a 'place above the continental shelf' of the relevant country rather than a port. This would cover, for example, bulk ore carriers that are loaded at sea from shuttle barges because of the lack of deepwater ports in some remote locations.
New section 4D covers the situation where the tonnage of a ship has not been determined under international standards. In this case, for the purposes of the Bill, the ship is assumed to be 500 tonnes or more if it has an overall length of at least 35 metres.
New section 4F defines Australian fishing vessel and related terms. The definitions in new subsection 4E(1) are the same as existing definitions under section 6 of the Navigation Act. New subsection 4E(2) defines 'activities in support of the fishing vessel operations of a fishing vessel'. New subsection 4E(3) provides that regulations can be made to exclude any class of ship from the definition of fishing fleet support vessel.
New section 4G defines seaman and related terms. This provision is also taken from existing definitions under section 6 of the Navigation Act 1912. Under new subsection 4G(1), a seaman is a person employed or engaged in any capacity on board a ship on the business of the ship other than the ship's master, a pilot, or a person temporarily employed on the ship in port. New subsection 4G(2) provides that, for the purposes of the Occupational Health and Safety (Maritime Industry) Act 1993, a member of the crew 'belongs to the ship' until they cease to become a crew member. New subsection 4G(3) provides that, for the purposes of the Act, where person temporarily ceases to become a crew member, they also cease to 'belong to the ship' until they once again become a crew member. However, such a temporary cessation does mean they are considered to have been discharged from the ship: new subsection 4G(4). New section 4G does not define temporary in this context.
New section 4H defines various types of offshore units and structures. This provision is also taken from existing definitions under section 6 of the Navigation Act. Importantly, 'offshore industry mobile units' are not prescribed ships and thus not covered by the Occupational Health and Safety (Maritime Industry) Act 1993. These include structures such as mobile petroleum production and exploration rigs, vessels primarily used in activities directly associated with such structures, or barges that have living quarters for 12 or more persons and are used in connection with fixed offshore structures.
Item 26 replaces the existing subsection 6(1). The purpose of subsection 6(1) is to qualify what prescribed ships the Occupational Health and Safety (Maritime Industry) Act 1993 applies to. The current provision says the Act applies to interstate and overseas trading voyages. The proposed replacement will mean the Act applies to all trading voyages unless they are domestic voyages undertaken by ships of under 500 tonnes.
Schedule 3 - Seafarers Rehabilitation and Compensation Act 1992
Items 1-23 essentially duplicate items 1-26 in Schedule 2. The slightly small number of items is due to the fact some terms in Schedule 2 are not relevant to Schedule 3.
Schedule 4 - Transitional provisions
Item 1 allows for regulations to be under the Navigation Act to prescribe those States or Territories that have not made the necessary amendments to regulate ships less than 500 tonnes that, under the proposed amendments to the Navigation Act, the Commonwealth will otherwise no longer regulate. The effect of this item is that where such small ships undertake a voyage to a prescribed State or Territory, the Commonwealth will retain regulatory power over the ship under the Navigation Act. Once a State or Territory implements complementary legislation to ensure coverage of trading ships under 500 tonnes on interstate voyages, they will be removed from the prescribed list.
Item 2 provides for the same 'safety net' transitional provisions as item 1, except in this case it maintains Commonwealth regulatory power under the Occupational Health and Safety (Maritime Industry) Act 1993.
Item 3 provides for the same 'safety net' transitional provisions as items 1 and 2, except in this case it maintains Commonwealth regulatory power under the Seafarers Rehabilitation and Compensation Act 1992.
Item 4 enables the making of regulations relevant to prescribing matters covered by the Bill.
- 51(i) states that 'the Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to trade and commerce with other countries, and among the States'.
- This includes ships entering into Australia with overseas trade.
- In general, each State or Territory is responsible for regulating its own fishing vessels. There is some inconsistency between jurisdictions with respect to rules applying to fishing vessels in State waters other than their own. It is understood that the Commonwealth has engaged in dialogue aimed at encouraging the States and Territories to establish a mutual recognition system whereby each jurisdiction would agree to recognise one another's survey standards / registration requirements.
- A summary of the shipping and navigation agreement can be found in the Attorney-General's Department publication, Offshore Constitutional Settlement: A milestone in cooperative federalism 1980, pp. 14-16.
- See Second Reading Speech, House of Representative Debates, 23 April 1980, pp. 2178-9.
- Second Reading Speech, House of Representative Debates, 31 August 2000, pp. 17940-1.
- That is, they must be residents of Australia, rather than necessarily Australian citizens.
- Report of the House of Representatives Standing Committee on Transport, Communications and Infrastructure, Inquiry into Ship Safety, November 1995.
- Ibid, p. 13.
- A number of pieces of legislation affecting shipping crews have been debated and/or passed by Parliament since 1995, but they do not appear to directly relate to this recommendation.
- Second Reading Speech, op cit.
- It is understood the list includes the Australia Shipowners Association, the Australian Chamber of Shipping, the Australian Marine Pilots Association, the Australian Boating Industry Association, the Maritime Union of Australia, the ACTU, the Australian Maritime Officers Union and the Australian Institute of Marine and Power Engineers. A number of these bodies are also represented through Seacare, an independent Authority created to oversee the operation of the Seafarers Rehabilitation and Compensation Act 1992 and Occupational Health and Safety (Maritime Industry) Act 1993
- Personal communication, 7 September 2000.
- See item 9, Schedule 1 in the main provisions section of this digest.
- In relation to proposed paragraph 2(1A)(f), the external affairs power allows the Commonwealth to legislate with regard to matters lying beyond the low water mark: See NSW and Others v Commonwealth (1975) 8 ALR 1 at 6-7, 91. Nothwithstanding the OCS, the constitutional limits of the States lie on the low water mark.
- A recent consideration of the breadth of the corporations power by the High Court is in Re Dingan (1995) 183 CLR 323. In that case, while there was some variation between the members of the Court, Mason CJ, Dean and Gaudron JJ considered a law relying on the corporations power would be valid if it was 'expressed to operate on or by reference to the business functions, activities or relationships' of corporations.
- In relation to Part VI, the Explanatory Memorandum states: '[AMSA] is not permitted to declare that Part VI of the Act does not apply to a trading ship. Part VI regulates participation in the coasting trade and is administered by the Department of Transport and Regional Services. The current regime of licensing and permits for economic regulation of the coasting trade is not related to matters of safety regulation and will not change under these amendments.' Explanatory Memorandum, p. 11.
- Second Reading Speech, op cit, p. 17941.
- In particular, the requirement in subsection 6(1). See commentary in relation to item 26.
- This includes vessels that are required to be registered in Australia.
- See item 9 of Schedule 1.
25 September 2000
Bills Digest Service
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