Bills Digest No. 78, 2012–13

25 February 2013

Marine Safety (Domestic Commercial Vessel) National Law Amendment Bill 2013

Moira Coombs
Law and Bills Digest Section 

Date introduced: 6 February 2013

House: House of Representatives

Portfolio: Infrastructure and Transport

Commencement: Sections 1—3 commence on Royal Assent. Schedule 1 commences on the later of the following: the day of Royal Assent and the commencement of section 3 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012.[1]

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The purpose of the Marine Safety (Domestic Commercial Vessel) National Law Amendment Bill 2013 (the Bill) is to amend the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (the Act) to change references to the ‘Commonwealth’ to the ‘National Regulator’ in provisions relating to infringement notices and penalties.[2] This change will enable the National Regulator to collect the money from these infringement notices and penalties and reimburse the states and the Northern Territory under existing section 10 of the Act.[3]

Background

The Act implements the Intergovernmental Agreement on Commercial Vessel Safety Reform[4] agreed to and signed by the Council of Australian Governments (COAG) Ministers on 19 August 2011.[5] The Ministers agreed ‘to develop a national approach to the safety regulation of domestic commercial vessels and to establish the Australian Maritime Safety Authority (AMSA) as the single national regulator for domestic commercial vessel safety in Australia’.[6]

The Act is part of the national transport package which is:

… intended to improve safety and reduce the regulatory burden and costs on the Australian rail, heavy vehicle and maritime industries. The maritime component of this reform package will be implemented in three key projects.[7]

The three key projects were:

·         national shipping reforms designed to ensure the long-term future of the Australian shipping industry through tax regulation and training

·         revision of the Navigation Act 1912 (which was replaced by the Navigation Act 2012[8]) with the intent of modernising the regulatory framework and

·         the creation of a new National Law for the regulation of domestic commercial vessel safety and the establishment of a National Marine Safety Regulator.[9]

The Act was assented to on 12 September 2012. Schedule 1 of the Act, which is the new National Law, will come into force on the earlier of a date fixed by proclamation or 12 months after Royal Assent.

Draft regulations and Marine Orders[10] were available for consultation until 8 October 2012 on AMSA’s website.[11] The consultation report on the exposure draft of the Regulations is now available on AMSA’s website.[12]

The National Law ‘replaces eight existing federal, state and territory laws with a single law for the safety of all domestic commercial vessels and their crew members in Australian waters’.[13]

The proposed Marine Safety (Domestic Commercial Vessel) National Law Regulation 2012 (Regulation) was released for public comment on Thursday 20 September 2012, with consultation closing on 8 October 2012. The Regulation addresses two issues:

              Refinements to the definitions of domestic commercial vessel and vessel; and

Transitional arrangements for vessels and persons that operate under State and Northern Territory laws prior to the commencement of the National Law.

Marine Orders and Exemptions will be used to implement the remaining aspects of the National System, including applicable standards, survey requirements and certification arrangements. The proposed Marine Orders were released for public comment in September 2012, with consultation on these documents closing on 26 October 2012.[14]

National System for Domestic Commercial Vessel Safety

The National System will come into being in 2013 under the Act. The National Law will apply to the domestic commercial vessel fleet operating in Australian waters across all states and territories.[15] The National Regulator will be AMSA. ‘States and the Northern Territory maritime safety agencies will continue to deliver operations and services to the industry as delegates of the National Regulator.’[16] The aims of the National System are to:

·         simplify maritime safety laws

·         apply nationally agreed standards clearly and consistently across the country

·         make it easier for seafarers and their vessels to work and move around the nation without barriers and

·         deliver a uniform approach to maritime safety requirements.[17]

Committee consideration

Senate Selection of Bills Committee

The Senate Selection of Bills Committee resolved at its meeting on 6 February 2013 not to refer this Bill to a Committee for inquiry and report.[18]

Senate Standing Committee for the Scrutiny of Bills

At the time of writing this Bills Digest, the Senate Standing Committee for the Scrutiny of Bills had not published any comments in relation to the Bill.

Parliamentary Joint Committee on Human Rights

At the time of writing this Bills Digest, the Parliamentary Joint Committee on Human Rights had not published any comments in relation to the Bill.

Financial implications

The Explanatory Memorandum states that ‘the proposed amendments do not place any additional financial regulatory burden on the domestic commercial vessel industry’.[19]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[20]

Key issues and provisions

Existing section 10 of the Act provides that if an amount is paid to the National Regulator under an infringement notice issued by, or on the recommendation of, a marine safety inspector of a state or the Northern Territory, the National Regulator must pay that amount to the relevant state or the Northern Territory.

Section 6 of the National Law (at Schedule 1 to the Act) defines an infringement notice as:

·         a notice that is given under regulations made for the purposes of section 138 to a person alleged to have committed an offence against the National Law and states that if the person pays a specified amount within a specified period the person will not be liable to be prosecuted for the offence or

·         a notice that is given under regulations made for the purposes of section 162(3) to a person alleged to have contravened a provision described in that subsection and states that if the person pays a specified amount within a specified period the person will not be liable to proceedings for a civil penalty for the contravention.

This Bill amends subsections 138(1) and 162(3) of the National Law.

Subsection 138 concerns infringement notices under the National Law. Currently subsection 138(1) provides that regulations may make provision for the payment of a penalty to the Commonwealth as an alternative to prosecution for an offence against the National Law. The penalty must equal one fifth of the maximum fine that a court could impose for the same offence.[21]

Section 162 allows regulations to be made that prescribe two types of penalties. The first type is penalties for offences against the regulations.[22] The amount of these penalties must not be more than 50 penalty units.[23] The second type is civil penalties for contraventions of the regulations.[24] The amount of these penalties must not be more than:

·         for a body corporate—500 penalty units[25] and

·         for any other case—100 penalty units.[26]

Subsection 162(3) of the Act allows the regulations to also provide for a person to pay a civil penalty to the Commonwealth as an alternative to proceedings for a civil penalty.[27] In such cases, the penalty must not exceed one-tenth of the maximum penalty that a court could have ordered the person to pay for contravening the relevant provision.[28]

The references to the Commonwealth in the above mentioned subsections are amended by this Bill due to:

a legislative drafting error, which has a significant operational impact, [and] was discovered whilst undertaking the implementation work. The National Law’s original policy intention as negotiated and agreed by the Commonwealth, state and territory jurisdictions was that AMSA as the National Regulator will reimburse amounts collected by the states or Northern Territory for infringement notices issued under the National Law…

The Commonwealth has no power to reimburse the amounts to the jurisdictions because the National Law does not contain an appropriations power.[29]

Items 1 and 2 remove the reference to the Commonwealth in proposed subsections 138(1) and 162(3) and substitute those occurrences with the term National Regulator.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

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ISSN 1328-8091

[1].              The text of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 can be viewed at: http://www.comlaw.gov.au/Details/C2012A00121/Download. Although this Act has been enacted, at the time of writing this Bills Digest section 3 had not commenced. It commences on the earlier of a single day to be fixed by Proclamation or 12 months after the Royal Assent. As the Act received Royal Assent on 12 September 2012, section 3 will commence no later than 12 September 2013.

[2].              The Marine Safety (Domestic Commercial Vessel) National Law Act 2012 created a new National Law for the regulation of domestic commercial vessel safety and established a National Marine Safety Regulator (known as the National Regulator). Source: Replacement Explanatory Memorandum, Marine Safety (Domestic Commercial Vessel) National Law Bill 2012, accessed 19 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr4835_ems_b22b5c08-bec4-45f8-839b-772b0d1e9c6a%22

[3].              Existing section 10 of the Act provides that if an amount is paid to the National Regulator under an infringement notice issued by, or on the recommendation of, a marine safety inspector of a state or the Northern Territory, the National Regulator must pay that amount to the relevant state or the Northern Territory.

[4].              Council of Australian Governments (COAG), Intergovernmental Agreement on Commercial Vessel Safety Reform, 19 August 2011, COAG, accessed 14 February 2013, http://www.coag.gov.au/node/53

[5].              Department of Infrastructure and Transport website, ‘National Maritime Safety Regulator’, 12 February 2013, accessed 13 February 2013, http://www.infrastructure.gov.au/maritime/nmsr.aspx

[6].              Ibid.

[7].              Explanatory Memorandum, Marine Safety (Domestic Commercial Vessel) National Law Bill 2012, p. 1, accessed 13 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr4835_ems_6141a675-10d6-47f1-96ea-dcb02c171736%22

[8].              The text of the Navigation Act 2012 can be viewed at: http://www.comlaw.gov.au/Details/C2012A00128/Download

[9].              Explanatory Memorandum, Marine Safety (Domestic Commercial Vessel) National Law Bill 2012, op. cit.

[10].              Marine orders are a form of regulation or legislative instrument made by the Chief Executive of AMSA.

[11].              Australian Maritime Safety Authority (AMSA), Public consultation on draft regulations and marine orders under the National Law, media release, 20 September 2012, accessed 14 February 2013, http://www.amsa.gov.au/media/documents/120920_publicconsultation.pdf

[12].              AMSA website, Consultation feedback report on exposure draft of the regulations, accessed 14 February 2013, http://www.nationalsystem.amsa.gov.au/documents/National_Law_Regulations_Consultation_Feedback_Report_25-10-2012.pdf

[13].              AMSA, Public consultation on draft regulations and marine orders under the National Law, op. cit.

[14].              AMSA website, op. cit.

[15].              AMSA, National System for Domestic Commercial Vessel Safety: your guide to the National System for Domestic Commercial Vessel Safety, October 2012, p. 2, accessed 14 February 2013, http://www.nationalsystem.amsa.gov.au/documents/Guide200912.pdf

[16].              Ibid.

[17].              Ibid.

[18].              Selection of Bills Committee, Report No. 1 of 2013, Senate, Canberra, 7 February 2013, accessed 12 February 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=selectionbills_ctte/reports/2013.htm

[19].              Explanatory Memorandum, Marine Safety (Domestic Commercial Vessel) National Law Amendment Bill 2013, p. 1.

[20].              The Statement of Compatibility with Human Rights is located at page 2 of the Explanatory Memorandum.

[21].              Subsection 138(2) of Schedule 1 to the Marine Safety (Domestic Commercial Vessel) National Law Act 2012.

[22].              Subsection 162(1) of Schedule 1 to the Marine Safety (Domestic Commercial Vessel) National Law Act 2012.

[23].              A penalty is defined in section 4AA of the Crimes Act 1914 as being equivalent to $170. This means that the maximum penalty is $8500.

[24].              Subsection 162(2) of Schedule 1 to the Marine Safety (Domestic Commercial Vessel) National Law Act 2012.

[25].              This means that the maximum penalty is $85 000.

[26].              This means that the maximum penalty is $17 000.

[27].              Subsection 162(3) of Schedule 1 to the Marine Safety (Domestic Commercial Vessel) National Law Act 2012.

[28].              Subsection 162(4) of Schedule 1 to the Marine Safety (Domestic Commercial Vessel) National Law Act 2012.

[29].              A Albanese (Minister for Infrastructure and Transport), ‘Second reading speech: Marine Safety (Domestic Commercial Vessel) National Law Amendment Bill 2013’, 6 February 2013, p. 1, accessed 18 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F27c8c7aa-70e7-442b-8ceb-93bd0691de92%2F0005%22