Bills Digest No. 14 2005–06
Maritime Legislation Amendment Bill
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
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Maritime Legislation Amendment Bill
Date Introduced: 23 June 2005
Portfolio: Transport and Regional Services
Commencement: Various dates, ranging from Royal Assent to six
months after Royal Assent.
The Bill amends various pieces of maritime legislation relating
to ship safety, marine environment, general maritime navigation and
miscellaneous administrative matters. Some of the provisions
substantially increase existing penalties, including the possibly
of imprisonment, so to provide a greater deterrent for breaches of
The bulk of the amendments contained in the Maritime Legislation
Amendment Bill 2005 relate to the Navigation Act 1912 (the
NA). The NA is the main Commonwealth Act dealing with
shipping movements and safety, crewing matters, wrecks and salvage.
It does not apply to all ships or all situations. In general, it
tends to concentrate on commercial shipping engaged in interstate
or international voyages. The application of the NA to crewing
matters depends on the registration of the ship, nationality of
crew, and other circumstances.
During the late 1990s, the NA was extensively reviewed by the
Commonwealth in two stages, the first focussing on crewing matters.
The resulting Navigation Amendment (Employment of Seafarers) Bill
1998 was extensively amended in the Senate in 2000 and seems to
have never passed the Parliament. The second stage of the review
focussed on those parts of the legislation that restrict
competition or trading opportunities, are anachronistic or
redundant, or which impose costs or confer benefits on business.
Part VI (the coasting trade) is excluded from the review as it has
been the subject of a separate review process .(1) The
report of this second stage review is at http://www.dotrs.gov.au/transinfra/pdf/navactfinatlreport.PDF.
The most recent Parliamentary reference to the review appears to be
by the (then) Minister for Transport and Regional Services, Mr
Anderson, who in a May 2003 said:(2)
The implementation of the recommendations is being
considered in the context of the Government's legislative program,
bearing in mind the experience of earlier attempts to amend aspects
of the Navigation Act 1912 that would
have modernised and simplified the regulatory framework for ship
operations. In addition to the Navigation Amendment (Employment of
Seafarers) Bill 1998 referred to above, the Maritime Legislation
Amendment Bill 2000 which sought to revise the trading ship safety
regulatory framework under the Navigation 1912 was also passed by the House of
Representatives but obstructed in the Senate.
A small number of issues canvassed
by the review, such as pilot immunity from civil liability, are
also included in the Bill. However, in general the current Bill
does not seem to be directly related to the review. The review is
not mentioned in either the Explanatory Memorandum or the
second reading speech.
Under existing section 19 of the Lighthouses Act 1911
(LA), it is an offence to damage, destroy, obstruct, remove,
interfere with, or trespass on, any navigational aid or associated
equipment under the control of the Australian Maritime Safety
Authority (AMSA).(3) The current maximum penalty for an
individual is $200, or five times that for companies.(4)
Item 5 substitutes new offence provisions, with a
graduated range of penalties according to the level of culpability
involved. For example, if a person intentionally damages or
destroys a navigational aid or associated equipment, the penalty is
up to 10 years imprisonment. If the damage or destruction was a
result of (only) negligence, the responsible person can be fined up
to 200 penalty units ($22 000), or five times that for companies.
It is a defence that the relevant conduct was necessary to save a
life or a ship, or prevent pollution, and that all reasonable steps
were take to avoid causing the damage, destruction etc.
Note that existing section 19A makes the person responsible for
the damage or destruction to the navigation aid liable to AMSA for
the cost of repair or replacement, unless that person can prove
they were not at fault. This is unchanged by the Bill. Costs that
are not recovered through section 19A are at least partially bourne
by the shipping industry via levies imposed under the Marine
Navigation Levy Act 1989.
Existing section 3 of the
Navigation Act (NA) provides ships belonging to the Australian
Defence Force (ADF) or to foreign naval, military or air forces,
are not subject to the NA. Item 1 extends
this to include ships operated by the ADF or foreign forces. This
will for example allow the exemption from the NA to apply to
vessels leased by the ADF.
Existing section 14 of the NA allows AMSA to prescribe the
minimum number of seamen and officers to be carried on a class of
ships or an individual ship. The Explanatory Memorandum to
the Bill comments that these orders:(5)
have a safety objective to ensure that a ship is
seaworthy by requiring that it is manned with a sufficient crew of
competent persons. An order is issued following assessment of an
application to AMSA from a shipowner. A manning proposal includes
information about the numbers and grades/capacities in a ship s
complement, information on construction, machinery, equipment or
operation and maintenance of the ship, which may affect the safe
manning level, and how the ship s crew will handle emergency and
peak workload situations.
Exemptions may be also given, including subject to certain
conditions. Item 16 increases the existing penalty
for a subsection 14(8) offence of contravening a
manning order or a condition of an exemption from $2,000 to 60
penalty units ($6 600) for an individual. Companies can be fined
five times this amount.
Existing section 16 provides that it is offence for a person
falsely represent himself or herself as qualified;
perform the duties of master, officer or seaman without holding
proper qualifications; or
take a person into employment to perform duties of master,
officer or seaman without that person holding proper
These offences implement the relevant provisions of
International Convention on Standards of Training, Certification
and Watchkeeping for Seafarers (the STCW Convention). In relation
to the issue, the Explanatory Memorandum states
Inappropriate practices concerning seafarer
qualifications has been the subject of increased concern
internationally in recent years. A report released by IMO in June
2001 identified fraudulent practices as globally prevalent and
identified the ongoing shortage of officers and the high cost of
training seafarers as creating an environment that encourages
fraudulent practices. Such practices include seafarers
misrepresenting their level of competency, training and experience
by providing false information as well as impersonation and forgery
of certificates and other documents. The report also noted that
some employers facilitate this fraudulent behaviour by failing to
check with the issuing authority the authenticity of seafarer s
qualifications on engagement.
Item 19 increases the existing penalty for a
section 16 offence from $2,000 to 50 penalty units ($5 500) for an
individual. Companies can be fined five times this amount.
Items 25-32 deal with the pilotage of ships.
Pilots are specially qualified and licensed persons taken on board
larger ships for finite periods of time to navigate the ship in
confined or dangerous areas.
Pilotage in and around ports is regulated by State Governments
and the relevant port authorities. Outside of port areas, the
Commonwealth currently only regulates pilots with respect to
transits of the major shipping routes in the Great Barrier Reef
area. Whilst the requirement for pilots to be taken on board
certain ships(7) in transiting these routes ( compulsory
pilotage ) is contained the Great Barrier Reef Marine Park Act
1975 (GBRMP Act), the actual licensing and general regulation
of pilots is actually done by AMSA under the NA. However, because
of existing section 186 of the NA, AMSA can only regulate pilots
operating on ships that are within, or transit to or from, any
parts of Australia s (12 nautical mile) coastal sea that have been
specified in regulations. Item 25 extends the
regulation of potential pilotage areas to include any areas of the
Australia s (200 nautical mile) Exclusive Economic Zone that have
been specified in regulations.
Items 26-27 will allow regulations to be made
to cover the operations of pilotage providers. Pilotage providers
are defined as an individual or company that assigns or allocates a
pilot to a particular ship. Presumably the lack of the
Commonwealths ability to directly regulate the work practices and
legal liability of such providers is considered to be a gap in the
overall regulation of ship navigation.
Existing section 186E creates various offences relating to
unlicensed persons representing themselves
as a licensed pilot (subsection 186E(1))
unlicensed persons performing the duty of a
licensed pilot (subsection 186E(2));, or
of a person who is not licensed pilot to perform the duties that
are prescribed by the regulations to be the duties of a licensed
pilot. (subsection 186E(5)).
Items 29-31 increases the existing penalty for
the above offences. Notably, for a subsection 186E(1) offence, the
maximum penalty rises from 20 penalty units ($220) to two years
imprisonment. For the others, the increase is from 20 to 50 penalty
Item 32 inserts new sections
186G-L. These will enable the Commonwealth to require
compulsory pilotage of certain ships(8) during the
transit of areas set out in regulations: new section
186H. The new provisions are broadly similar to these
requiring compulsory pilotage for transits of the major shipping
routes in Great Barrier Reef area under the GBRMP Act. As
in the case under the GBRMP Act, a ships master or owner
may apply for an exemption from the compulsory pilotage
requirements: new section 186K. An exemption may
be granted subject to conditions. However, unlike the GBRMP Act,
there are no criteria which AMSA must use in deciding whether to
grant an exemption, although possibly these could be later
prescribed by regulation when declaring an area subject to
compulsory pilotage. The grant of an exemption is not a legislative
instrument and thus not subject to disallowance by either house of
Parliament. A refusal to grant an exemption is reviewable by the
Administrative Appeals Tribunal (AAT): item
Under new section 186I, navigation without a
pilot when one is required is an offence which carries a maximum
penalty for both master and owner of 500 penalty units ($55 000),
although if the owner is a company the maximum penalty is five
times that ($275 000). The same penalties apply if a condition of a
granted exemption is breached. Defences of stress of weather,
saving life at sea or other unavoidable cause are available:
new subsection 186L(1). The owner also has a
defence if they can prove that they took all reasonable precautions
and exercised due diligence to ensure the relevant ship would not
navigate a compulsory pilotage area in contravention of the NA:
new subsection 186L(2).
Items 39-40 both concern increasing penalties
applicable to ships safety offences. Existing section 190AA allows
an authorised ships surveyor to go on board a ship at any
reasonable time and undertake an inspection or require the
production of documents. Currently the penalty for any offence
under section 190AA is $2,000. However, a failure produce
certificates or documents required by a surveyor will increase to
60 penalty units: item 39. Where AMSA directs the
ship to be taken into dock for an inspection, a failure to comply
will now result in a maximumpenalty of 2 years imprisonment. The
Explanatory Memorandum comments:(10)
There is significant economic advantage in
operating a substandard or unseaworthy ship and such a ship may
seek to avoid a thorough inspection of its hull and equipment in a
dock which may result in significant repairs and delays if defects
are identified. These ships may pose a significant threat to life
and the environment and an imprisonment term is required to counter
the cost advantages stemming from non-compliance.
Item 60 inserts a new element into the
definition of seaworthy into existing subsection 207(1).
Specifically, ships which pose a threat to the environment cannot
be considered seaworthy, and thus are potentially subject to
detention by AMSA whilst in port.(11)
If AMSA considers that a relevant ship is not constructed in
accordance with certain provisions of the International Convention
for the Prevention of Pollution from Ships 1973/78 (MARPOL),
existing sections 267K, 267Y and 2367ZQ allow AMSA to direct that
it not enter port, or enter only to certain conditions. There are
strict liability offences for breaches of these directions carrying
maximum penalties of 100 penalty units ($11 000) for individuals.
However, items 66, 68 and 70
create new offences where the master or owner is reckless whether
the ship fails to comply with an AMSA direction. With the
introduction of fault element to these new offences, the maximum
penalties are accordingly greater - 500 penalty units ($55 000) for
individuals, or five times that for companies.
Existing subsection 268(1) requires that certain shipping
accidents or dangerous incidents must be reported by the Master to
relevant authorities as soon as practical. Currently an offence of
failing to report where required is subject to a maximum penalty of
$2,000. Item 73 substitutes new offences that
carrying progressively increasing penalties according to the
seriousness of the accident or incident involved. At the higher
end, where an accident results in loss of life or serious injury, a
failure to report carries a maximum penalty of 500 penalty units.
At the lower end, the maximum penalties are 20 penalty units.
Items 77-78 deal with ships engaged in coasting
trade . Under the NA, this essentially means ships transporting
cargo or passengers between Australian ports and not engaging in
international voyages. Ships engaging in the coasting trade must
generally be licensed by the Commonwealth. Conditions on licences
may include matters such as the crew s minimum wages and
conditions. However, if the Minister is satisfied either that no
licensed ship is available or the available ships are inadequate to
service a particular Australian port or ports, they may issue a
permit to an unlicensed ship for particular coasting trade service.
The Minister must be satisfied that it is desirable in the public
interest to do so. A permit may be for a single voyage only, or may
be a continuing permit. Currently, the Minister must give six
months notice of his or her intention to cancel a continuing
Item 77 amends existing section 86 to enable
the Minister to give notice of his/her intention to cancel a
continuing voyage permit if the Minister forms the view that the
cancellation is the public interest. The Minister must give the
permit holder the opportunity to show cause within 7 days of the
notice why the permit should not be cancelled. After considering
any representations by or on behalf of the holder, the Minister may
cancel the permit and notify the holder. The holder can apply to
the AAT for the review of a decision to cancel a permit.
Existing sections 385-386J create offences regarding the misuse
of alcohol and other drugs by crew. These sections also deal with
how various testing is to be administered etc. A key definition
within these provisions is that of an 'authorised person . If they
have a reasonable cause to believe a crew member s capacity to
perform their duties is impaired due to alcohol or other drugs or
the alcohol content of their blood is over a specified limit, an
authorised person may require any of the ship s crew (including the
master) to undergo a physical examination, allow for the taking of
a blood sample, urine sample or mouth swab. In addition, an
authorised person is permitted to take urine samples or mouth swabs
from a member of the crew.
Persons are authorised for the above purposes by AMSA. However,
currently there appears to be no legislative criteria or
qualifications that a person must satisfy before AMSA authorises
them. Together items 81-82 will require that a
person must have training or experience prescribed by regulation
before AMSA may authorise them. The Explanatory Memorandum
Recasting the definition of authorised
person to provide that the person must be
appropriately qualified provides a safeguard to ensure the
protection of the rights and liberties of persons from whom samples
Item 91 appears to allow an authorised person
to take a urine sample or mouth swab for the purposes of alcohol /
drug testing: new subsection 386E(2). Currently,
only a medical practitioner can do this. The maximum penalty for
refusal to submit to a lawful medical examination or direction to
provide a sample, swab etc remains the same at six months
Section 386A creates offences of a person being under the
influence of alcohol or another drug such that their capacity to
carry out his or her duties is impaired. Specifically, subsection
386A(1) sets out a general offence and subsection 386A(2) provides
for a higher maximum penalty (2 years imprisonment) if the
impairment, breach of duty or manner of operation caused, or
contributed to, the likelihood or actual death of, or injury to, a
person or damage etc to a ship, cargo or equipment. Item
84 replaces the latter with new subsections
386A(2) and (3) which together substitute
new offences that carry progressively increasing penalties
according to the serious of the consequences, or possible
consequences, of the impairment etc. If the conduct results in the
death of another person, the maximum penalty now increases to 10
years imprisonment. At the lower end of the scale, for example
where the offence involves the likelihood damage to the ship or to
cargo or equipment of the ship, the maximum penalty is imprisonment
for 2 years.
Existing subsection 410B(2) provides that the owner or master of
a ship remains liable for any loss or damage caused by the ship
even if a pilot is on duty under State or Territory compulsory
pilotage law. Item 101 amends this to extend the
provision to apply to situations where pilotage is compulsory under
a Commonwealth law. The item also inserts a new subsection
410B(3) to the effect that neither the pilot nor the
pilot's pilotage provider is liable for civil damage that results
from the pilot s actions, advice etc, as long as the action, advice
etc was done in the course of the pilot s duty and in good faith.
According to the Explanatory Memorandum, the rationale for
new subsection 410B(3) is that:(13)
Pilot immunity from civil liability claims is a
longstanding convention and is necessary because of the inability
of pilots to insure themselves against potential liabilities.
Item 102 inserts new subsections
411(1)-(3). New subsection 411(1)
provides that the ships master is not relieved from responsibility
for the conduct and navigation of a ship merely because the ship is
subject to vessel traffic management arrangements. Such
arrangements might be in place in or near a port or other busy or
confined area. New subsection 411(2) appears to
mean that the master or owner of the ship is still liable for any
civil damage whilst acting on the traffic management directions,
even where the directions may have been negligent. Of course, in
such cases the master or owner might be able to bring a separate
civil claim against the giver of the negligent directions.
Schedule 3 Amendment of the Protection of the Sea (Prevention of Pollution from Ships) Act 1981
The Protection of the Sea (Prevention of Pollution from
Ships) Act 1981 (the Pollution Act) implements the
Commonwealth s obligations under the MARPOL Convention.
Item 1 inserts new section 22A
into the Pollution Act which will require Australian ships of 150
tonnes or more, and which are certified to carry noxious liquid
substances in bulk, to have a marine pollution emergency plan. This
provision implements a recent amendment of MARPOL, and is
equivalent to an existing requirement in section 11A of the
Pollution Act for an oil pollution emergency plan. In line with
existing section 11A, a failure to have a relevant plan is a strict
liability offence, with both the ships master and owner liable to a
maximum penalty of 500 penalty units ($55 000), and five times that
Items 2-4 make relatively minor administrative
changes to the Pollution Act.
As it name implies, the Shipping Registration Act 1981
(SRA) is the legislative mechanism for registration of a vessel as
an Australian ship. It also provides for the registration of
mortgages over such ships.
Items 1-9 make various amendments to facilitate
the administration of the SRA. These are principally (i) matters
related to registration of mortgages and (ii) to allow for
delegation of either the Minister s or the Registrar s powers to a
staff member of AMSA.
Probably the only common theme to the Bill is the updating of
various offence provisions, particularly the increasing of
penalties so they represent an appropriate deterrent and/or
punishment. The remainder of the Bill appears to be mainly devoted
to updating various aspects of the Navigation Act 1912 so
that it reflects contemporary shipping practices and trends.
Finally, it is unknown whether the Government intends to act
upon the recommendations of the Navigation Act Review (see
Background section of this Digest) in the immediate future.
Review of the Navigation Act 1912, Final Report, June
2000, p. 181.
Answer to question on notice, House of Representatives
Debates, 14 May 2003, p. 14577.
AMSA manages a network of 430 navigational aids around Australia's
See Crimes Act 1914, subsection 4B(3).
Explanatory Memorandum, p. 16.
ibid., p. 17.
Ships that are at least 70m in length or are loaded oil tankers,
chemical or liquefied gas carriers.
See footnote 5.
The comment contained in the paper version of this digest about the
lack of review by the AAT is incorrect
Memorandum, p. 22.
11. It may also be offence
for ships master or owner to send an unseaworthy ship to sea.
Memorandum, p. 32.
Memorandum, p. 36.
9 August 2005
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