Bills Digest no. 60, 2017–18
PDF version [495KB]
Sophie Power
Science, Technology, Environment and Resources Section
21 December 2017
Contents
Purpose of the Bill
Structure of the Bill
Background
Coastal trade in Australia
Figure 1: coastal freight carried on
the top ten routes, 2014–15 (million tonnes)
Coastal trade regulation
Current state of coastal trade in
Australia
Shipping Legislation Amendment Bill
2015
Discussion Paper
Committee consideration
Rural and Regional Affairs and
Transport Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Industry groups
Unions and professional organisations
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Foreign access to coastal shipping
Application of the Fair Work Act
Temporary licences
Five voyage minimum requirement
Abolition of specific emergency
licences
Approval timeframes for temporary
licences
Energy security situation
Tolerance provisions
Extending the coastal trading regime
Voyages involving offshore facilities
Related consequential amendments
Stakeholders comments on extension to
offshore facilities
Voyages beginning and ending at the
same port
Definition of ‘port’
Dry docking
Temporary licence variation process
Consultation and notification
requirements
Consultation on temporary licence
applications
Voyage notification requirements
Other provisions
IMO numbers
Consequential amendments
Concluding comments
Date introduced: 13 September 2017
House: House of Representatives
Portfolio: Infrastructure and Regional Development
Commencement: A day to be fixed by Proclamation, or six months after Royal Assent, whichever occurs first.
Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.
When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.
All hyperlinks in this Bills Digest are correct as at December 2017.
Purpose of
the Bill
The purpose of the Coastal Trading (Revitalising
Australian Shipping) Amendment Bill 2017 (the Bill) is to amend the Coastal Trading
(Revitalising Australian Shipping) Act 2012 (the Coastal Trading Act)
to streamline the regulation of coastal trading, including by:
- removing
the five-voyage minimum requirement for temporary licences
- simplifying
licence variation, consultation and notification processes
- amending
the tolerance provisions for temporary licence voyages
- abolishing
the separate category of emergency licences and
- extending
the regime to cover, for example, voyages involving offshore petroleum
facilities.
Structure
of the Bill
The Bill contains two Schedules. Schedule 1 contains the
substantive amendments to the Coastal Trading Act. Schedule 2 contains consequential
amendments to the Occupational Health and Safety (Maritime Industry) Act
1993 and the Seafarers Rehabilitation and Compensation Act 1992.
Background
Coastal
trade in Australia
Coastal trading is the movement of cargo or passengers on
ships between ports in different states and territories in Australia in
connection with a commercial activity.[1]
In 2014–15, Australian ports handled, in total, 101.3 million tonnes of
coastal freight.[2]
Figure 1 below shows the top ten routes for coastal freight in 2014–15.
Figure 1: coastal
freight carried on the top ten routes, 2014–15 (million tonnes)
Source: Bureau of Infrastructure, Transport and Regional Economics (BITRE), Australian sea freight 2014–15,
DIRD, Canberra, 2017, p. 30.
Coastal
trade regulation
On 1 July 2012, the Coastal Trading Act created a
new licensing regime to regulate access to coastal trade which replaced the
previous permit system established under Part VI of the Navigation Act
1912.[3]
The aim of the Coastal Trading Act is to:
...promote a viable Australian shipping industry, facilitate
the long term growth of the Australian shipping industry and enhance its
efficiency and reliability as part of the national transport system by
regulating Australian and foreign ships through a licensing regime.[4]
To achieve this, the Coastal Trading Act regulates
coastal trade by granting licences to authorise vessels to carry passengers or
cargo between ports in Australia. The licensing system established under the
Act currently sets out three licence types:
- general
licences, which permit vessels on the Australian General Shipping Register unrestricted
access to engage in coastal trading in Australian waters for five
years
- temporary
licences which allow foreign-flagged vessels to engage in coastal trading in
Australian waters for a 12 month period, limited to the voyages authorised
under the licence and
- emergency
licences which may be granted for up to 30 days and provide access to engage in
coastal trading in Australian waters in identified emergency situations.[5]
Licences are issued for interstate voyages. However, vessel
owners can ‘opt-in’ to apply the Coastal Trading Act to intrastate
voyages by making an application to the Minister for a ‘section 12 declaration’.[6]
The intent of this regime regulating coastal trading is:
...to strike a balance between the interests of users of
shipping services with the interests of the Australian flagged fleet. The
regime allows Australian flagged vessels unrestricted access to the coast and
gives them the opportunity to contest voyages applied for by foreign ships,
thereby providing them with an advantage. The framework therefore had the
intent of generally permitting the use of foreign ships where suitable
Australian ships are not available to carry cargo or passengers.[7]
Current
state of coastal trade in Australia
The total tonnage carried under coastal trading licences
in 2014–15 was 32.7 million tonnes, which represented 65.0 per cent of all
loaded coastal freight. The remaining 17.6 million tonnes of coastal freight
was intrastate cargo not carried under licence.[8]
Of the cargo carried under licences:
- 15.3
million tonnes of cargo was carried under temporary licences
- 10.3
million tonnes was carried by Australian-Flagged vessels under general licences
and
- 7.1
million tonnes was carried by vessels with transitional general licences.[9]
The freight task performed under temporary licences was
40.8 billion tonne-kilometres, accounting for 38.8 per cent of the
coastal freight task (which includes cargo not carried under licence). General licences
and transitional general licences[10]
accounted for 6.0 per cent and 17.7 per cent of the overall coastal freight
task, respectively.[11]
The Regulatory Impact Statement prepared for the Bill
states that, since the current coastal trading regime was implemented in 2012,
‘the decline in the number of Australian flagged vessels has continued’:
The fleet of major Australian registered vessels with coastal
licences has declined from 30 vessels in 2006-07 to 14 in 2015-16, and many
ageing Australian registered vessels are not being replaced... The coastal
shipping freight task fell by 8 percent between 2004-2005 and 2014-2015, while
the total domestic freight task grew by 55 percent. As a result, coastal
shipping moved around 15 percent of Australia’s domestic freight in 2014-15,
down from 25 percent in 2004-05. No ships have been registered on the
Australian International Shipping Register since its establishment in 2012.[12]
Shipping
Legislation Amendment Bill 2015
The decline in Australian vessels engaged in coastal
trading, as outlined above, led to attempted reforms to the current coastal
shipping regime in 2015. In particular, the Coalition Government attempted to
pass significant amendments to the Coastal Trading Act during the last
parliament via the Shipping
Legislation Amendment Bill 2015[13]
(the 2015 Shipping Bill).
Notably, the 2015 Shipping Bill proposed more wide‑reaching
reforms which would have opened the Australian coastal shipping market to
increased foreign competition and also extended the regime to large cruise
ships. In particular, the 2015 Shipping Bill proposed to:
- replace
the existing system of three levels of licences for coastal shipping with a
single permit for both Australian and foreign vessels
- allow
vessels to be registered on the Australian International Shipping Register
(AISR) if they undertake 90 days international trading a year (instead of
the current requirement to be ‘predominantly engaged’ in international trade)
and
- alter
the workplace relations environment so that:
- only
seafarers on vessels engaged in coastal shipping for six months or more are
covered by the Fair
Work Act 2009 and
- making
a collective agreement with workers is no longer a condition for being
registered on the AISR.[14]
The 2015 Shipping Bill was rejected by the Senate in
November 2015,[15]
after it was opposed by the ALP, the Greens, and others including Senators
Xenophon and Lambie.[16]
Further information on the 2015 Shipping Bill is contained in the relevant Parliamentary
Library Bills
Digest.[17]
The Government has acknowledged that given the defeat of
the 2015 Shipping Bill, ‘pursuing a complete overhaul of the framework is not
viable’, despite ‘extensive consultation with industry that highlighted the
failings with the current system’.[18]
Discussion
Paper
On 21 March 2017, the Government released a discussion
paper, Coastal
Shipping Reforms, to seek the views of stakeholders on proposed
amendments to the coastal trading regulatory regime.[19]
The discussion paper states that:
Operators and agents of both Australian and foreign flagged
ships have raised a number of concerns about the operation of the current
regime that regulates coastal shipping in Australia, specifically with regards
to the administrative burden that it imposes.[20]
The discussion paper therefore canvassed a number of
possible amendments to the Coastal Trading Act, which are now contained
in the current Bill, including:
- removing
the five voyage minimum requirement for a temporary licence
- streamlining
the licencing process where no general licence vessels are available
- streamlining
the temporary licence variation process
- amending
the voyage notification requirements and tolerance provisions
- abolishing
the emergency licence category and
- extending
the geographical reach of the Act, including to cover voyages to and from
offshore installations in Australian territory and vessels that are docked for
servicing.[21]
Most of the 67 submissions received in response to the
discussion paper have been published on the Department
of Infrastructure and Regional Development website. Some of these
submissions are discussed where relevant in the ‘position of major interest
groups’ and ‘key issues and provisions’ sections of this Digest.
Committee
consideration
Rural and
Regional Affairs and Transport Committee
The Bill was referred to the Senate Standing Committee on
Rural and Regional Affairs and Transport for inquiry and report by 4 December
2017. The Committee received 19 submissions and did not hold a public hearing. Details
of the inquiry are on the inquiry
homepage.
The majority report of the Committee recommended that the
Bill be passed. The report noted that the Bill ‘does not propose substantial
changes to the current coastal trading regime’, but would ‘reduce red tape and
simplify the administration of the coastal trading regime’.[22]
Liberal Senator for Tasmania, Eric Abetz, made additional comments suggesting
that the Bill does not go far enough and that the Government should progress
wider coastal shipping reform modelled on those contained in the Shipping
Legislation Amendment Bill 2015.[23]
Labor Senators dissented, suggesting that the Bill be
opposed in its entirety because it will only accelerate the decline of the
Australian shipping industry.[24]
Labor Senators pointed to two aspects of the Bill they considered to be ‘particularly
problematic’: the changes to acceptable tolerance limits and the proposed
‘streamlining’ of the temporary licence variation process.[25]
These are discussed further in the ‘key issues and provisions’ section of this
Digest.
The Australian Greens also dissented, recommending that
the Senate reject the Bill. The Australian Greens expressed particular concern
about the Bill’s proposed changes to the tolerance provisions.[26]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Scrutiny of Bills Committee had no comment on the
Bill.[27]
Policy
position of non-government parties/independents
The ALP opposes the Bill. As noted above, Labor Senators
opposed the Bill in their dissenting report to the Senate Standing Committee on
Rural and Regional Affairs and Transport inquiry. When the Bill was introduced,
Anthony Albanese, ALP Shadow Minister for Infrastructure, Transport, Cities and
Regional Development, also expressed concern the legislation had been
introduced ‘without consultation with the Opposition and, more importantly, the
maritime sector’.[28]
He accused the Government of resurrecting the ‘WorkChoices on Water’
legislation, a reference to the 2015 Shipping Bill, which was rejected by the
Senate (as discussed above).[29]
He further suggested that the changes proposed by the Bill ‘would make it
easier for overseas-crewed vessels to obtain temporary licences which allow
them to operate in Australian waters on temporary jobs where no Australian
vessels are available’.[30]
He argued that, rather than revitalising Australian shipping, this meant it
would be ‘easier for shipping companies to sack Australian crews and replace
them with overseas mariners earning third world wages’.[31]
ALP Senator Glenn Sterle further suggested during Senate
Supplementary Estimates in October 2017 that the Bill:
... purports by name and in the subtle wording used in the
explanatory memorandum and the regulation impact statement to give an
impression that it will revitalise Australian shipping when, in fact, at best
it will increase foreign shipping in Australian sea freight at the expense of
Australian shipping.[32]
The Australian Greens also oppose the Bill, as noted above
in the discussion of the Senate Standing Committee on Rural and Regional
Affairs and Transport inquiry.
At the time of writing, other non-government parties and
independents do not appear to have commented directly on this Bill.
Position of
major interest groups
Most major interest groups made submissions
to the Senate Rural and Regional Affairs and Transport Committee’s inquiry into
the Bill. These are available on the Committee’s website and are discussed in
further detail in the Committee report. In addition, many groups had already made
similar submissions
in response to the Department’s discussion paper on coastal shipping
reforms (as discussed in the Background section of this Digest). General
comments made by major interest groups in submissions to the Committee inquiry
and/or the discussion paper are outlined below. Some of the more detailed comments
in relation to particular aspects of the proposed reforms are discussed in further
detail in the ‘key issues and provisions’ of this Digest.
Industry
groups
Industry groups generally supported the Bill in their
submissions. For example, the Australian Industry Group supported the Bill,
submitting that the current coastal shipping regime has led to ‘significant
increases in shipping costs to Australian companies and a greater reliance on
road transport and rail’. The Group considered that the Bill will provide ‘much
needed repair and flexibility to the current coastal trading regulatory regime’,
including ‘increased access of Australian businesses to the services of foreign
ships capable of transporting domestic cargo’.[33]
Shipping Australia, in its submission to the discussion
paper, described the regime under the Coastal Trading Act as
‘inefficient and burdensome on shippers and the shipping industry, restricting
access to the Australian market and resulting in the limitation of access of
local businesses to efficient and cost‑effective shipping services’.[34]
Shipping Australia supported most of the amendments proposed in the discussion
paper.[35]
In its submission to the Senate Committee inquiry, Shipping Australia also
emphasised the importance of ‘regulatory stability’ and a ‘bi-partisan approach
to making changes to coastal shipping regulation’.[36]
Maritime Industry Australia Ltd (MIAL) supported the
retention of the core structure of the Coastal Trading Act, describing
many of the changes proposed by the discussion paper as ‘sensible’ changes.[37]
However, MIAL did raise some issues, including in relation to the changes to
the tolerance provisions and the extension of the regime,[38]
as discussed further in the ‘key issues and provisions’ section of this Digest.
Ports Australia considered that the Coastal Trading Act
has ‘failed to deliver some of its key goals including to “contribute to the
broader Australian economy” and to “promote competition in coastal trading”’.[39]
In particular, Ports Australia submitted that the:
...effect of current legislation is that the movement of
coastal freight is uncompetitive with the movement of international freight.
The high cost of coastal shipping has resulted in disadvantaging Australian
producers and manufacturers attempting to sell domestically because many
imports are cheaper than moving freight between domestic ports.[40]
Ports Australia therefore supported the proposed
amendments as ‘potentially’ bringing about efficiencies, reducing regulatory
burden and improving the current framework.[41]
However, Ports Australia suggested that the Government should ‘in the near
future’ look at ‘further, more meaningful reforms to coastal shipping’.[42]
The Australian Institute of Petroleum (AIP) broadly
supported the changes proposed by the Bill, and generally expressed support for
amendments that reduce the cost and complexity of coastal shipping and provide
greater flexibility.[43]
The AIP was particularly supportive of amendments to extend the reach of the
regime to offshore facilities, suggesting that this would ‘more readily provide
for the supply of Australian crude oils to some Australian refineries’.[44]
However, in its submission to the discussion paper, Woodside did not support
the extension of the regime to cover offshore facilities.[45]
This is discussed further in the ‘key issues and provisions’ section of this
Digest.
The Minerals Council of Australia broadly supported the amendments
proposed in the discussion paper, but suggested that ‘consideration should also
be given to removing the restrictions that protect Australian-flagged ships
from competition by foreign-flagged vessels’.[46]
However, the Minerals Council had some reservations about the proposed
amendments to the definition of ‘coastal trading’ (these are discussed in
further detail later in this Digest).[47]
The Bulk Liquids Industry Association (an industry advocacy
organisation representing companies involved with bulk liquid cargoes other
than petroleum) generally supported the proposed changes which it considered
‘reflect common sense’ and would remove ‘some of the administrative burden’.[48]
The Business Council of Australia supported the Bill, which
it considered contains ‘sensible changes’ that will ‘provide business with
greater flexibility in its use of freight services, help to alleviate high
regulatory and shipping costs under the current regulations...’.[49]
The National Farmers’ Federation (NFF) welcomed the
amendments proposed in the discussion paper, commenting that they will ‘make
coastal shipping arrangements much more flexible, remove layers of red tape and
increase access to additional operators around the Australian coast’.[50]
At the same time, the NFF called for further reforms, including removing the
extension of Australian workplace laws to foreign ships.[51]
The NFF also referred to a 2016 Productivity Commission report on the
Regulation of Australian Agriculture which recommended that coastal shipping
laws be amended ‘as a matter of priority... to substantially reduce barriers to
entry for foreign vessels, to improve competition in coastal shipping
services’.[52]
Similarly, the Australian Food and Grocery Council generally
supported the amendments proposed in the discussion paper, but suggested that
‘the reform process could go further’.[53]
Superyacht Australia supported the Bill, particularly
amendments to the five voyage minimum requirement, and the changes to the
definition of voyage (as discussed further below).[54]
Unions and
professional organisations
The Maritime Union of Australia (MUA) does not support the
Bill[55]
and has described it as resurrecting ‘WorkChoices on Water’,[56]
a reference to the 2015 Shipping Bill. The MUA claims that, since the defeat of
that Bill, ‘the Government has been abusing the temporary licence system,
issuing licences in circumstances where the work was not temporary and in which
Australian vessels were available’.[57]
The MUA has expressed particular concern that the Bill ‘waters down the
cabotage rules surrounding foreign ships gaining temporary licences to operate
between Australian ports’ which would ‘make it more difficult for Australian
ships with Australian crew to compete in the coastal trade’.[58]
Some of the MUA’s more detailed comments on the specific provisions of the Bill
are discussed further in the ‘key issues and provisions’ section of this
Digest.
The Australian Maritime Officers Union (AMOU) is opposed
to the Bill,[59]
and considers that the proposed amendments to the Coastal Trading Act
‘will do little to maximise the use of Australian ships on our coast or provide
additional jobs for Australian mariners in our local industry’.[60]
The AMOU submitted that the Bill ‘represents a piecemeal approach to fixing a
bigger problem’.[61]
The Australian Institute of Marine and Power Engineers
(AIMPE) is similarly opposed to the Bill, suggesting that it ‘streamlines and
accelerates’ the pattern of foreign shipping displacing Australian shipping.[62]
The Australasian Marine Pilots Institute (AMPI) similarly
stated in its submission to the departmental discussion paper that it ‘is not
convinced that this initiative will have the significant flow on benefits for
other sectors of our economy, as we are lead to believe’.[63]
In particular, AMPI suggested that the proposed reforms:
...will enable off shore shipping companies to operate foreign
flag vessels on the Australian coast more freely and improve their
profitability. However it does little to address Australia’s capacity to grow
its own viable shipping industry and maintain the associated workforce that is
critical for the safety and efficiency of all vessels trading through
Australian ports.[64]
Financial
implications
According to the Explanatory Memorandum, there will be no
impact on Commonwealth expenditure.[65]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), 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.[66]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights
considers that the Bill does not raise human rights concerns.[67]
Key issues
and provisions
Foreign
access to coastal shipping
Before discussing the provisions of this Bill in detail,
it is worth noting that there are some overarching issues in relation to the
regulation of coastal shipping. This includes both the level of access of
foreign vessels to Australian coastal trading as well as the application of
Australian employment conditions to workers on foreign vessels engaging in
coastal trading. A related concern was whether the Bill will assist in
achieving the Act’s stated aim of ‘revitalising’ the Australian shipping
industry. These issues are each discussed briefly below, followed by a more
detailed discussion of the specific provisions of this Bill.
As noted earlier in this Digest, one of the most
controversial aspects of the 2015 Shipping Bill related to opening the
Australian coastal shipping market to increased foreign competition.[68]
This Bill does not propose the same wide-reaching reforms as the 2015 Shipping
Bill. However, some stakeholders, such as the Maritime Union of Australia, are
nonetheless concerned that the Bill may increase foreign access to coastal
trading by ‘watering down’ the rules relating to temporary licencing.[69]
In contrast, and as noted above, some industry stakeholders are continuing to
call for the full removal of restrictions that ‘protect Australian-flagged
ships from competition by foreign-flagged vessels’.[70]
Application
of the Fair Work Act
A related concern, and one of the more controversial
aspects of the 2015 Shipping Bill, is the extent to which Australian employment
conditions under the Fair Work Act should apply to foreign vessels
engaging in coastal trading.[71]
Currently, the Fair Work Regulations
2009 provide for the application of the Fair Work Act to ships
engaged in coastal trading, including foreign-flagged ships. This includes
ships operating under a general, transitional or emergency licence under the Coastal
Trading Act. In the case of a ship operating under a temporary licence, the
ship must have made at least two other voyages under a temporary licence in the
last 12 months.[72]
Unlike the 2015 Shipping Bill, this Bill does not make
changes in relation to application of the Fair Work Act to vessels
operating under the coastal trading regime. However, Parliament may wish to
consider whether the changes relating to temporary licences made by the Bill have
implications for the application of the Fair Work Act.
The majority report of the Senate Rural and Regional
Committee’s recent inquiry into Flag of Convenience shipping[73]
also noted claims of ‘loopholes’ being exploited in the Coastal Trading Act,
whereby ‘foreign vessels with foreign crew were loading freight onto vessels in
Australian ports, leaving Australian waters and then returning after visiting
another country’.[74]
The Committee recommended in an interim report that the temporary licensing
scheme be immediately tightened for Flag of Convenience vessels that undertake
permanent coastal freight routes, and should therefore be paying crew
Australian award wages.[75]
In its response, the Government did not support this recommendation, stating
that the temporary licence scheme provided 'an appropriate level of assurance'
and changes were unwarranted.[76]
Nevertheless, in its final report the Committee encouraged the government to ‘ensure
that, if any amendments are made to temporary licensing, appropriate safeguards
are provided to ensure the ongoing viability of the Australian‑flagged
shipping industry and its employees’.[77]
Government Senators O'Sullivan, Back and Bushby issued a dissenting report,
which noted evidence that the Coastal Trading Act does ‘not work as
intended’, particularly in relation to the five voyage minimum required for a
temporary licence, which they considered as ‘resulting in costly and unintended
consequences’.[78]
Parliament may nevertheless wish to consider whether the
Bill contains appropriate safeguards as suggested in the majority report of the
Senate Rural and Regional Affairs Committee.
Temporary licences
Five voyage
minimum requirement
Currently, section 28 of the Coastal Trading Act
requires an application for a new temporary licence to specify the number of
voyages to be authorised by the licence, and that there must be five or more
voyages. A voyage is defined to mean the movement of a vessel from one port to
another port in different states and territories in Australia where passengers
or cargo are loaded and unloaded in connection with a commercial activity.[79]
Under the current regime, a temporary licence cannot be
obtained for a single voyage, and applicants must know in advance the details
of at least five voyages. This makes the system impractical for some operators,
for example international shipping companies, which might otherwise conduct
coastal trade at the end of an international voyage to Australia before
departing.[80]
The Regulation Impact Statement notes that the minimum
voyage requirement also means that ‘shippers may be compelled to use other modes
of transportation instead of shipping, which may not be as cost effective’.[81]
Item 22 in Schedule 1 to the Bill proposes
to amend paragraph 28(2)(a) to remove this five-voyage minimum requirement to
apply for a temporary licence. This means that an application for a temporary
licence can be made for a single voyage.
Many industry stakeholders supported this amendment as
providing greater flexibility.[82]
However, the Maritime Union of Australia (MUA) and the AIMPE opposed the
removal of the five voyage minimum requirement, with the MUA suggesting that
its removal ‘is likely to increase the number of TLs [temporary licences]
granted, when such work could be done by Australian crewed ships, operating
under a GL [general licence]’.[83]
A Departmental official confirmed at the recent Senate
Supplementary Estimates that removing the five voyage minimum requirement means
‘there is greater flexibility for Australian manufacturers to move their goods
on international ships’.[84]
Abolition
of specific emergency licences
As noted earlier, the Coastal Trading Act currently
provides for a category of emergency licences, which may be granted for up to
30 days and provide access to engage in coastal trading in Australian waters in
identified emergency situations (which includes cyclones, flooding, bushfires
and other natural disasters).[85]
The provisions for emergency licences are currently contained in Division 3 of
Part 4 of the Act.
Item 54 of Schedule 1 to the Bill proposes to repeal
that Division in its entirety.
Instead of emergency licences, the Bill proposes to amend
the provisions for temporary licences to enable temporary licences to be issued
in emergency situations. Applications for temporary licences are currently made
under section 28 of the Coastal Trading Act. Item 21 of Schedule 1
inserts a proposed subsection 28(1A), which provides that certain persons
(owners, charterers, masters or agents of vessels, or shippers) may apply for a
temporary licence to enable coastal trading in an emergency situation, as
prescribed by the regulations. Unlike other temporary licences, which are valid
for 12 months, this licence will be valid for 65 days to allow sufficient time
to respond to the relevant emergency (see item 32).
Other items in Schedule 1 contain consequential amendments
as a result of the repeal of emergency licences. This includes, for example, item
8 which repeals the definition of ‘emergency licence’ in subsection 6(1) of
the Act and item 25 which amends the requirements for applications for
temporary licences in emergency situations to include information in relation
to the relevant emergency situation.
As outlined earlier in this Digest, the proposal to
abolish the emergency licence category was canvassed in the coastal reforms
discussion paper, which noted that emergency licences have never been granted
under the regime.[86]
Many stakeholders supported this amendment. Shipping Australia, although supporting
this amendment, noted that ‘the detail and the criteria relating to what
constitutes an emergency will need to be carefully considered’.[87]
However, the MUA did not support this amendment, noting that there have been no
applications for emergency licences in the past five years of operation of the Coastal
Trading Act, and that the retention of the emergency licence provisions
would ‘prevent the creation of unnecessary additional loopholes open to
exploitation by shipping companies’ operating on temporary licences.[88]
Approval
timeframes for temporary licences
The Bill will also reduce the timeframes for deciding on
temporary licences. Currently, under subsection 34(4), the Minister must decide
whether to grant or refuse an application for a temporary licence within 15
business days after receiving the application. Item 31 proposes to amend
this subsection to provide that the Minister must decide on applications for
temporary licences within 10 business days, or in the case of applications for
temporary licences in emergency situations, within three business days.
The Explanatory Memorandum states that this will:
...allow for the expedited consideration of applications in
certain emergency circumstances. It is intended that this amendment will make
it easier for the Minister to respond promptly to emergency situations
including where the emergency relates to energy security.[89]
Energy
security situation
The Coastal Trading Act also currently provides for
temporary licences to be varied in an ‘energy security situation’, which is
defined in subsection 6(1A) of the Coastal Trading Act as a situation
where:
- a
vessel is used to undertake a voyage authorised by a temporary licence
- the
vessel is carrying a liquid fuel product and
- there
are special circumstances, of a kind prescribed by the regulations, requiring
the vessel to load or unload a liquid fuel product at a port that is not
authorised by the licence.
The special circumstances currently prescribed in the
regulations include where there is a shortfall in supply of liquid fuels from
overseas, shutdowns of refineries, failure of energy supply to a refinery, unsuitable
fuel, or a severe weather event.[90]
When such an energy security situation exists, the holder of a temporary
licence may apply for a variation of the licence (under subsection 43(3)) and
that application will be decided within 24 hours (subsection 46(4)(a)).
However, as the Explanatory Memorandum notes, the current
provisions in the Act and regulations relating to ‘energy security situations’
are ‘overly restrictive’ and ‘not sufficiently flexible’. In particular,
subsection 6(1A) only applies to vessels that are already on a voyage
authorised by a temporary licence and already carrying liquid fuel, and thus
the current provisions preclude ‘the rapid authorisation of a vessel to engage
in coastal trading in genuine energy security situations’.[91]
Items 9, 16, 39, 40, 43 and 44 of Schedule 1
propose to remove all relevant provisions relating to ‘energy security
situations’. The Explanatory Memorandum indicates that is it intended that the
new mechanism for granting temporary licences in emergencies will instead
provide the Minister with the ‘flexibility to respond quickly to energy
security situations’.[92]
These specific amendments do not appear to have been
directly foreshadowed in the Government’s discussion paper, although
stakeholders, such as the Australian Institute of Petroleum, did suggest that
an additional amendment to allow variations to load port or discharge port on
approved voyages in order to ‘further assist in responding to energy security
issues’.[93]
Tolerance
provisions
Under section 37 of the Coastal Trading Act,
temporary licences must specify a number of matters, including the loading
dates, the number of passengers (if any) authorised to be carried under the
licence, and the kinds and volume of cargo (if any) authorised to be carried
under the licence. These matters are all subject to ‘acceptable tolerance
limits’: if there are changes within these tolerance limits, then no
variation to the temporary licence is needed. However, if changes occur that
are outside those limits, then an application must be made to the Minister
under the Act for a variation of that matter authorised by the temporary
licence.[94]
‘Acceptable tolerance limits’ are currently defined in
subsection 6(1) of the Coastal Trading Act to mean:
- in
the case of cargo: not more than 20% more, or less, of the volume of cargo
authorised to be carried under a temporary licence
- in
the case of passengers: not more than 20% more, or less, of the number of
passengers authorised to be carried under a temporary licence or
- in
relation to a loading date—five days before or after the loading date.
So, under these current provisions, if a temporary licence
authorises a voyage to carry 100 containers on 20 May 2017, a vessel
can load 80 to 120 containers between 15 and 25 May 2017 without breaching a
condition of the licence.[95]
The Regulation Impact Statement in the Explanatory Memorandum states:
These tolerance limits were intended to allow for industry to
adapt to unforeseen or unplanned changes to cargo or vessel movements, but have
been the most regular cause of breaches of the legislation as they do not
reflect industry’s operating model. Complying with these tolerance limits can
have significant costs to industry, for example when unable to carry additional
cargo to avoid breaching the legislation. Tolerance limits also impose an
indirect cost on industry, as licence holders are forced to apply for and wait
for variation applications to be granted to prevent tolerance breaches.[96]
Items 5 and 6 of Schedule 1 propose to amend
the definition of ‘acceptable tolerance limits’ in subsection 6(1) to increase
the acceptable tolerance limits as follows:
- in
relation to cargo—not more than 200% more, or 100% less, of the volume of cargo
authorised to be carried under a temporary licence
- in
relation to passengers—not more than 200% more, or 100% less, of the number of
passengers authorised to be carried under the licence
- in
relation to the loading date—30 days before or after the loading date.
The Explanatory Memorandum suggests that these amendments
will ‘better reflect industry practice’ and gives an example to illustrate ‘how
these tolerance limits will operation in practice’:
A temporary licence is approved for the agent of vessel A to
transport four shipping containers from Newcastle to Melbourne for a customer.
If the order is changed, and the customer wants to send five shipping
containers instead of four, the previous tolerance limits meant that the agent
of vessel A would have to apply for a variation to their temporary licence to
allow the carriage of the additional container. The amended tolerance limits in
Item 5 would negate the need for an application to vary the temporary licence
for vessel A’s voyage, because vessel A could take up to 12 containers without
needing to apply for a variation.[97]
The Coastal Shipping Reforms discussion paper
proposed to amend the tolerance limit for loading dates to 30 days, from
the current five day limit.[98]
However, the Bill differs from the discussion paper in that the paper proposed
to remove volume tolerances altogether.[99]
Industry groups, including Shipping Australia and Ports
Australia, supported proposed amendments to the tolerance provisions.[100]
However, MIAL expressed concern that the proposed amendments to the tolerance
provisions could undermine the licensing regime and may not ‘operate to the
benefit of the shipper as it is intended’.[101]
Other stakeholders opposed this amendment.[102]
In particular, the Maritime Union of Australia was ‘strongly opposed’ to the
amendments to tolerance provisions arguing that:
Such open-ended tolerance provisions would totally undermine
accepted commercial arrangements and make it impossible for a GL [general
licence] holder to contest a cargo, as the GL holder would not know what they
are contesting. The ability to position a ship when the loading date could vary
by up to 30 days would be commercially untenable for a GL holder, as would be
the unknown nature of the cargo volume.[103]
Extending
the coastal trading regime
The Bill also proposes a number of changes relating to the
definition of ‘coastal trading’, which in turn will extend the operation of the
regime. Currently, ‘coastal trading’ is defined in section 7 of the Coastal Trading
Act to generally cover vessels that carry passengers or cargo (for or in
connection with a commercial activity) from one port to another port either in
another state or territory, or, under certain conditions, within the same state
or territory.
Notably, section 112 of the Coastal Trading Act
currently provides an exemption from the Customs Act 1901.
Under section 112, vessels used to carry passengers or cargo under a temporary licence
are not considered to be imported into Australia for the purposes of the Customs
Act, meaning there is no import duty on those vessels.
However, as currently drafted, the definition of coastal
trading does not cover:
Vessel operators on voyages from the mainland to, or between,
places outside the coastal waters of a State or Territory such as some offshore
installations, floating production, storage and offloading (FPSO) vessels and
roadsteads (places less enclosed than a harbour where ships may ride at anchor)
are not within the coverage of the Coastal Trading Act and cannot apply for a TL
[temporary licence].[104]
This means that those activities cannot benefit from the
exemption from the Customs Act in section 112 of the Coastal Trading
Act. For example, the Regulation Impact Statement states that the current
lack of coverage in the Coastal Trading Act of the carriage of petroleum
products from offshore facilities means that ‘petroleum companies are
discouraged from bringing petroleum products to Australia refiners and instead
ship these products to refineries overseas’, because they do not have the
‘shield from Customs Importation that a TL [temporary licence] provides’.[105]
Voyages involving offshore facilities
Item 18 amends the definition of coastal trading in
section 7 to extend the definition to add a new paragraph 7(1)(d) which will
include vessels that transport liquid fuel product from offshore facilities to
ports in states or territories where some or all of the fuel product is
unloaded. Item 12 inserts a definition of ‘offshore facility’ into
subsection 6(1) the Act, which will provide that it has the same meaning as in
the Maritime
Transport and Offshore Facilities Security Act 2003. Section 17A of
that Act defines an ‘offshore facility’ as a facility, located in an offshore
area, ‘used in the extraction of petroleum from the seabed or its subsoil with
equipment on, or forming part of, the facility’, including any structure or
vessel, located in the offshore area, used in operations or activities
associated with, or incidental to, activities of that kind.[106]
‘Offshore area’ is then defined in subsection 17A(7) of the Maritime
Transport and Offshore Facilities Security Act as an area in Australia
waters, the exclusive economic zone of Australia (including its external
Territories) or the sea over the continental shelf of Australia (including its
external Territories).
The Explanatory Memorandum states that extending the
application of the coastal trading regime to offshore facilities will ‘support
the use of Australian refineries’:
The lack of coverage of coastal trading licences for these
movements has resulted in shipments of crude oil being sent to international
refineries instead of Australian refineries for processing.[107]
The Regulation Impact Statement further suggests this
amendment:
...will not only benefit the operators of these vessels, but
also Australian refineries which may be uncompetitive internationally. By
allowing vessels to be shielded from importation when transporting liquid fuel
from offshore facilities to ports in Australia, this option will make the use
of Australian refineries more viable as operators may be able to minimise tax
and other administrative costs related to importation.[108]
Related
consequential amendments
A number of other items in the Bill then contain
consequential amendments related to the extension of the coastal trading regime
to offshore facilities.[109]
Notably, section 10 of the Coastal Trading Act provides that the Act
does not apply to certain vessels, including, under paragraph 10(e), an
‘offshore industry vessel’. In turn, ‘offshore industry vessel’ is defined in
subsection 6(1) as a vessel that is used wholly or primarily in, or in any
operations or activities associated with or incidental to, exploring or
exploiting the mineral and other non‑living
resources of the seabed and its subsoil. Item 13 amends this definition
of ‘offshore industry vessel’ to exclude vessels that are engaging in coastal
trade under the new paragraph 7(1)(d) (as inserted by item 18,
outlined above). This will ensure that offshore industry vessels engaged in
coastal trading are covered by the Coastal Trading Act.
Stakeholders
comments on extension to offshore facilities
Some industry stakeholders, such as Shipping Australia,
supported this proposed amendment.[110]
In particular, the Australian Institute of Petroleum supported amendments to
extend the reach of the regime to offshore facilities, suggesting that this
would ‘more readily provide for the supply of Australian crude oils to some
Australian refineries’.[111]
In its submission, the Institute noted that ‘there are no Australian registered
petroleum tankers available to contest proposed coastal trading voyages’.[112]
The Institute therefore suggested that foreign vessels used to pick up
petroleum products from offshore facilities in Australian waters and then deliver
that cargo to an Australia port should be exempted from the ‘importation’
provisions of customs legislation.[113]
However, the Minerals Council had some reservations about
this proposed amendment, suggesting that it requires ‘further consideration to
understand better the full implications’.[114]
Others suggested that, if the reason for the amendment is to remove the risks
that foreign vessels are considered to be ‘imported’ for customs purposes, then
it would be better to resolve this issue via amendments to the Customs Act
or determinations.[115]
In particular, Woodside (an Australia gas and oil company with offshore
facilities), in its submission to the discussion paper, did not support
amendments to extend the coastal trading regime to offshore facilities. Woodside
noted that the current regulatory regime has created administrative issues
which discourage Australian oil producers from supplying Australian refineries.
However, Woodside did not ‘consider that the solution to these issues to lie in
extending the geographic reach of the CTA [Coastal Trading Act] to
offshore installations’.[116]
Woodside explained that, if the issue related to the interaction of the Coastal
Trading Act with the Customs Act, simply extending the ambit of the Coastal
Trading Act as proposed would ‘introduce new and additional regulatory
requirements’ for its offshore facilities. Woodside suggested that it would be more
appropriate for the ‘opt-in’ provisions in section 12 of the Coastal Trading
Act (as discussed elsewhere in this Digest) to be extended to voyages
involving offshore facilities.[117]
Voyages
beginning and ending at the same port
Subsection 6(1) of the Coastal Trading Act
currently defines ‘voyage’ as the movement of a vessel from one port to
another port in a way that would satisfy the definition of ‘coastal
trading’ in subsection 7(1) of the Coastal Trading Act (as outlined
above). Item 15 amends this definition to remove the reference to
movement ‘from one port to another port’, effectively extending the definition
of a ‘voyage’ to include voyages that start and finish at the same port.[118]
The Explanatory Memorandum suggests that the purposes of this amendment is to:
...open the coastal trading regime to chartered recreational
vessels that typically embark and disembark at the same port, and wish to apply
to the Minister for a declaration under section 12 of the Coastal Trading Act.
A declaration under section 12 of the Coastal Trading Act allows vessels
engaged in intrastate voyages to be covered by coastal trading licences,
thereby being afforded protection from importation by section 112 of the Act.[119]
Notably, this amendment does not appear to have been
canvassed in the discussion paper on coastal shipping reforms released by the
Department for consultation. However, Superyacht Australia proposed such an
amendment in its submission to the discussion paper to remove the restriction
on foreign flagged superyachts chartering in Australia.[120]
In its submission to the Senate inquiry, Superyacht Australia strongly
supported this amendment (along with the proposed removal of the five voyage
minimum).[121]
The Minister for Trade, Tourism and Investment, Steve
Ciobo, has suggested that the Bill (through these amendments and the removal of
the five voyage minimum requirement) would ‘increase superyacht charters in
Australian waters’:
Superyachts are highly lucrative within the tourism sector.
It is estimated they currently generate around $1.96 billion annually and with
these proposed reforms the industry estimates it could contribute an additional
$1.12 billion to the Australian economy by 2021...
Recently, the Turnbull Government announced 21 new anchorage
points with the Great Barrier Reef and a new vessel boarding station on the
Gold Coast to facilitate growth in this important tourism sector.[122]
However, the MUA is strongly opposed to this proposed
amendment, suggesting that it has ‘wide ranging implications’ for other types
of vessel operations on intra-state voyages:
... such as bunkering, transhipment operations and the domestic
small cruise/marine tourism sector, that would be considered ‘voyages’ under
the CT Act. Operators of such vessels could therefore automatically apply for a
TL [temporary licence] and commence using foreign crew.[123]
Definition
of ‘port’
Item 17 further extends the coastal trading regime by
adding a new subsection 6(3) to provide that ‘a port is taken to be in a
State or Territory if the port is connected with a port that is in a State or
Territory’. A note referring to this new subsection is also added to the
definition of ‘port’ in subsection 6(3) of the Act by item 14.
As the Explanatory Memorandum states, these amendments aim
to clarify that roadsteads, ‘which are often connected with a State or Territory
but not strictly within its waters, can be considered to be “in” a State or
Territory’ for the purposes of the Coastal Trading Act.[124]
As noted earlier, a roadstead is a body of sheltered water, less enclosed than
a harbour, where ships may ride at anchor.[125]
Dry docking
As noted earlier, section 112 of the Coastal Trading
Act currently provides an exemption from the Customs Act 1901
for vessels used to carry passengers or cargo under a temporary licence or an
emergency licence, which are not considered to be imported into Australia for
the purposes of the Customs Act. Item 64 amends section 112 to
extend this exemption to also include vessels that are docked for service while
a temporary licence is in force that enables the vessel to engage in coastal
trading.[126]
Item 7 then inserts a new definition of ‘docked for
service’ into the definitions in section 6 of the Act, which will include when
a vessel is in dry dock; or the vessel is docked for maintenance, repairs,
cleaning or painting and is not undertaking a voyage.
The Regulation Impact Statement notes that the current
regime:
... discourages vessels from docking for service in Australia
to undertake repairs, cleaning or painting as they would need to be imported by
Customs if they choose to dock for service. As a result, foreign vessels are
not bringing business to the Australian dry-docking industry. The current
coastal trading regime is one barrier to Australian dry‑dock facilities
reaching their potential; an amendment to the legislation will allow these
businesses to grow.[127]
Superyacht Australia strongly supported this amendment.[128]
In contrast, Cruise Lines International Association (CLIA) Australasia suggested
that ‘the Bill will not have the desired effect of increasing the use of
Australian dry-dock facilities by large cruise ships’.[129]
CLIA noted that large passenger ships are currently exempt from the licensing
regime under the Coastal Trading Act and that the Bill would only
provide ‘protection against importation for licensed ships’:
We agree with the intention in the Bill to remove the
significant financial disincentive that customs importation represents to
dry-docking in Australia. The Bill proposes a ‘fix’ for this issue by the insertion
of dry-docking in section 112 of the Act. However, this solution will not apply
to exempted cruise ships which still face the importation issue. Without a
solution, CLIA considers it likely that large cruise ship operators will
continue to choose to dry-dock outside Australia.[130]
CLIA suggested that ‘the problem, which has been
unresolved for over 5 years now, should be resolved through amendment of the Customs
Act 1901’.[131]
The MUA submitted that it was ‘not necessarily opposed to
this provision’, but suggested that ‘it must be carefully defined to prevent
abuse’.[132]
Temporary
licence variation process
The Bill also amends the process in the Act for making
changes to temporary licences. Currently, the Coastal Trading Act
provides two processes for amending temporary licences.[133]
Applications may be made under section 43 in Subdivision C of Division 2 of
Part 4 to vary matters authorised by a temporary licence (‘authorised matters
variations’). The Minister generally has two business days to decide on such an
application.[134]
If a matter is not already authorised by the licence, the application is made
under section 51 in Subdivision D of Division 2 of Part 4 of the Act (new
matters variation) and the Minister generally has seven business days to decide
on the application.[135]
Item 45 repeals Subdivision D of Division 2 of Part
4, which currently provides for the process for applications to be made to vary
a temporary licence to include new matters. Instead, all applications to vary
licences will be dealt with under the existing section 43 of the Act, which is
amended by items 36 to 39 to reflect a new, single temporary
licence variation process.[136]
The Minister will have two business days to decide on applications under this
process (under subsection 46(4) as amended by item 43). The consultation
requirements for variations to temporary licences are also amended by item
41, as discussed further below.
Consultation
and notification requirements
Consultation
on temporary licence applications
Section 30 of the Coastal Trading Act currently
provides that, when the Minister receives an application for a temporary
licence, the Minister must, within two business days, publish details of the
application on the Department’s website and notify general licence holders and
other organisations that the Minister considers would be directly affected, or
whose members would be directly affected, if the application were granted.
Items 28 and 29 propose to amend section 30
to provide the Minister the power to determine, by legislative instrument,
certain kinds of cargoes and passengers. Publication and notification will only
be required when applications are made for temporary licences relating to those
kinds of cargoes and passengers determined by the Minister. The Explanatory
Memorandum states that ‘this is intended to promote efficiency in the coastal
trading regime and remove the need for unnecessary consultation where there are
no relevant general licensed ships’.[137]
In particular, it notes that:
At present, there are no Australian ships operating across a
number of sectors in Australian waters, such as oil or gas tankers. It is
therefore inefficient and unnecessary to consult all general licence holders
for every temporary licence application that is received. This amendment allows
the Minister to designate cargo and passenger types where consultation must
take place, thereby limiting consultation to those sectors where Australian
vessels can provide competition to foreign flagged vessels. This reduces the
impost and uncertainty caused to industry due to unnecessary consultation and
allows for the more efficient consideration of licence applications.[138]
However, the MUA strongly opposed this amendment,
suggesting ‘it will deny meaningful consultation with affected stakeholders and
reduce transparency’.[139]
Item 41 makes a similar amendment to section 45 of
the Act, in relation to consultation requirements for variations to temporary
licence, meaning that notification will only be required for variations of
temporary licences relating to those kinds of cargoes and passengers determined
by the Minister.
Voyage
notification requirements
Under section 61 of the Coastal Trading Act,
temporary licence holders are required to provide notification of voyages to
the Minister in writing at least two business days before the actual loading
date for the voyage. That notice must include details of the vessel to be used;
the date of the voyage; the number of passengers to be carried during the
voyage (if any); the kinds and volume of cargo to be carried during the voyage
(if any); the ports at which the passengers or cargo will be taken on board;
and the ports at which the passengers will disembark or the cargo will be
unloaded. This information is already required in an application for temporary
licence under section 28. However, notification is still required under section
61 even if no details have changed since that original application.
Item 49 proposes to insert a new subsection
61(2) to exempt temporary licence holders from the notification requirement
in section 61 when the information has already been given as part of a licence
application under section 28 or for a licence variation application under
section 43. In other words, notification will only be required when voyage
details have changed from that approved on the licence.
Other provisions
IMO numbers
The Bill also proposes to insert a new requirement to
provide a vessel’s International Maritime Organization (IMO) number[140]
when:
- applying
for a temporary licence under section 28 of the Coastal Trading Act (item
23)
- a
temporary licence holder is notifying the Minister of voyage details under
section 61 (item 47) and
- in
all voyage reports made by temporary licence holders under section 62 after the
end of a voyage (item 50).
The Explanatory Memorandum states that these requirements
will add ‘no burden to industry’ and that the IMO number is a ‘key identifier’
that will assist with the easy identification of vessels and could be useful to
the Department and other Commonwealth agencies undertaking compliance
activities.[141]
Consequential
amendments
Schedule 2 contains minor consequential amendments to the Occupational Health
and Safety (Maritime Industry) Act 1993 and the Seafarers
Rehabilitation and Compensation Act 1992 as a result of the removal of
emergency licences by the amendments in Schedule 1.
Concluding comments
This Bill aims to simplify the current coastal trading
regulatory regime and reduce administrative burden, although it would also
expand the coverage of the regime, for example, to offshore facilities. The
Bill does not extend as far as the previous Shipping Legislation Amendment Bill
2015, which was rejected by the Senate. The Bill is nevertheless likely to be
controversial, with key stakeholders divided over aspects of the Bill.
[1]. Department
of Infrastructure and Regional Development (DIRD), ‘Coastal
trading frequently asked questions’, DIRD website, last updated
29 September 2017.
[2]. Bureau
of Infrastructure, Transport and Regional Economics (BITRE), Australian
sea freight 2014–15, DIRD, Canberra, 2017, p. v.
[3]. For
further information on the previous regime and its reform, see L Nielson and M
Brennan, Coastal
Trading (Revitalising Australian Shipping) Bill 2012 [and] Coastal Trading
(Revitalising Australian Shipping) (Consequential Amendments and Transitional
Provisions) Bill 2012, Bills digest, 151, 2011–12, Parliamentary
Library, Canberra, 2012.
[4]. Explanatory
Memorandum, Coastal Trading (Revitalising Australian Shipping) Bill 2012,
p. 4; see also Coastal Trading Act, section 3.
[5]. DIRD,
‘Coastal
trading’, DIRD website, last updated 24 August 2017; DIRD, ‘Coastal
trading frequently asked questions’, op. cit.
[6]. Coastal
Trading Act, section 12. See also section 6 for the definition of ‘owner’.
[7]. DIRD,
Regulation impact statement: Coastal Trading (Revitalising Australian
Shipping) Amendment Bill 2017, September 2017, p. 6 (as contained in the Explanatory
Memorandum to the Coastal Trading (Revitalising Australian Shipping)
Amendment Bill 2017).
[8]. BITRE,
Australian
sea freight 2014–15, op. cit., p. v.
[9]. Transitional
general licences are held under transitional arrangements for owners of foreign
vessels that held a licence issued under Part VI of the Navigation Act 1912
at 30 June 2012.
[10]. BITRE,
Australian
sea freight 2014–15, op. cit., p. vi.
[11]. Ibid.
[12]. DIRD,
Regulation
impact statement, op. cit., p. 6.
[13]. Parliament
of Australia, ‘Shipping
Legislation Amendment Bill 2015 homepage’, Australian Parliament website.
[14]. See
further A Holmes and J Murphy, Shipping
Legislation Amendment Bill 2015, Bills digest, 53, 2015–16,
Parliamentary Library, Canberra, 2015.
[15]. Parliament
of Australia, ‘Shipping
Legislation Amendment Bill 2015 homepage’, op.
cit.
[16]. Australian
Greens, Dissenting
report, Senate Rural and Regional Affairs and Transport Legislation
Committee, Inquiry into the Shipping Legislation Amendment Bill 2015
[Provisions], The Senate, Canberra, 12 October 2015; Australian Labor
Party, ‘Shipping
Legislation Amendment Bill 2015’, Opposition Dissenting report, Senate Rural
and Regional Affairs and Transport Legislation Committee, Inquiry into the
Shipping Legislation Amendment Bill 2015 [Provisions], The Senate,
Canberra, 12 October 2015. See also N Xenophon, ‘Second
reading speech: Shipping Legislation Amendment Bill 2015’ and J Lambie, ‘Second
reading speech: Shipping Legislation Amendment Bill 2015’, Senate, Debates,
25 November 2016, pp. 9035–7, 9040.
[17]. Holmes
and Murphy, Shipping
Legislation Amendment Bill 2015, op. cit.
[18]. DIRD,
Regulation
impact statement, op. cit., p. 6.
[19]. DIRD,
Coastal
shipping reforms: discussion paper, DIRD website, March 2017.
[20]. DIRD,
‘Coastal
shipping reform’, DIRD website, last updated 24 October 2017.
[21]. DIRD,
Coastal
shipping reforms: discussion paper, op. cit., pp. 5–6.
[22]. Senate
Standing Committee on Rural and Regional Affairs and Transport, Coastal
Trading (Revitalising Australian Shipping) Amendment Bill 2017 [Provisions],
The Senate, Canberra, 4 December 2017, p. 31.
[23]. Senator
Abetz, Additional Comments, Senate Standing Committee on Rural and Regional
Affairs and Transport, Coastal
Trading (Revitalising Australian Shipping) Amendment Bill 2017 [Provisions],
The Senate, Canberra, 4 December 2017, pp. 33–5.
[24]. Labor
Senators, Dissenting report, Senate Standing Committee on Rural and Regional
Affairs and Transport, Coastal
Trading (Revitalising Australian Shipping) Amendment Bill 2017 [Provisions],
The Senate, Canberra, 4 December 2017, p. 43.
[25]. Ibid.,
pp. 40–2.
[26]. Australian
Greens, Dissenting report, Senate Standing Committee on Rural and Regional
Affairs and Transport, Coastal
Trading (Revitalising Australian Shipping) Amendment Bill 2017 [Provisions],
The Senate, Canberra, 4 December 2017, p. 45.
[27]. Senate
Scrutiny of Bills Committee, Scrutiny
digest, 12, 2017, The Senate, 18 October 2017, p. 5.
[28]. A
Albanese (Shadow Minister for Infrastructure, Transport, Cities and Regional
Development), Government
resurrects WorkChoices on water, media release, 13 September 2017.
[29]. Ibid.
[30]. Ibid.
[31]. Ibid.
[32]. Senate
Rural and Regional Affairs and Transport Legislation Committee, Official
committee Hansard, 23 October 2017, p. 185.
[33]. Australian
Industry Group, Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017
[Provisions], 15 November 2017, p. 1.
[34]. Shipping
Australia, Submission
to coastal shipping reforms discussion paper, 12 May 2017, p. 1.
[35]. Ibid.,
p. 3; see also Shipping Australia, Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017
[Provisions], 13 November 2017, pp. 11–12.
[36]. Shipping
Australia, Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017
[Provisions], 13 November 2017, p. 11.
[37]. Maritime
Industry Australia Ltd (MIAL), Submission
to coastal shipping reforms discussion paper, 12 May 2017, pp. 4, 8; MIAL, Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017
[Provisions], 13 November 2017, pp. 3, 6.
[38]. MIAL,
Submission
to coastal shipping reforms discussion paper, 12 May 2017, pp. 4–6; MIAL, Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017
[Provisions], 13 November 2017, pp. 4, 5–6.
[39]. Ports
Australia, Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017
[Provisions], 13 November 2017, p. 1.
[40]. Ibid.
[41]. Ibid.,
p. 2.
[42]. Ibid.
[43]. Australian
Institute of Petroleum (AIP), Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Coastal Trading (Revitalising Australian Shipping) Amendment Bill
2017 [Provisions], November 2017, p. 4.
[44]. Ibid.,
p. 6; see also AIP, Submission
to coastal shipping reforms discussion paper, 16 May 2017, p. 6.
[45]. Woodside,
Submission
to coastal shipping reforms discussion paper, April 2017, p. 2.
[46]. Minerals
Council of Australia, Submission
to coastal shipping reforms discussion paper, May 2017, p. 1.
[47]. Ibid.,
p. 5.
[48]. Bulk
Liquids Industry Association, Submission
to coastal shipping reforms discussion paper, n.d., p. 1.
[49]. Business
Council of Australia, Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017
[Provisions], November 2017, p. 1; see also Business Council of Australia, Submission
to coastal shipping reforms discussion paper, April 2017, p. 2.
[50]. National
Farmers’ Federation, Submission
to coastal shipping reforms discussion paper, 12 May 2017, p. 8.
[51]. Ibid.,
p. 12.
[52]. Ibid.,
p. 8; see also Productivity Commission, Regulation
of Australian Agriculture, Inquiry report, 79, Canberra, 15 November
2016, p. 394 (recommendation 9.5).
[53]. Australian
Food and Grocery Council, Submission
to coastal shipping reforms discussion paper, April 2017, p. 4.
[54]. Australian
International Marine Export Group (Superyacht Australia), Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017
[Provisions], 11 November 2017, p. 6.
[55]. MUA,
Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017
[Provisions], 20 November 2017, pp. 7, 13.
[56]. MUA,
Government
resurrects WorkChoices on water, media release, 13 September 2017.
[57]. Ibid.
[58]. MUA,
Turnbull
wants to kill off another vital Australian industry and must be stopped,
media release, 13 September 2017.
[59]. Australian
Maritime Officers Union, Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017
[Provisions], 13 November 2017, p. 2.
[60]. Australian
Maritime Officers Union, Submission
to coastal shipping reforms discussion paper, 12 May 2017, p. 2.
[61]. Australian
Maritime Officers Union, Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017
[Provisions], 13 November 2017, p. 5.
[62]. Australian
Institute of Marine and Power Engineers (AIMPE), Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017
[Provisions], 13 November 2017, n.d., p. 3; see also AIMPE, Submission
to coastal shipping reforms discussion paper, n.d., p. 2.
[63]. Australasian
Marine Pilots Institute (AMPI), Submission
to coastal shipping reforms discussion paper, n.d., p. 1.
[64]. Ibid.
[65]. Explanatory
Memorandum, Coastal Trading (Revitalising Australian Shipping) Amendment
Bill 2017, p. 1.
[66]. The
Statement of Compatibility with Human Rights can be found at page 2 of the Explanatory
Memorandum to the Bill.
[67]. Parliamentary
Joint Committee on Human Rights, Report,
11, 207, 17 October 2017, p. 60.
[68]. Regulation
which limits the use of domestic trade routes by foreign companies is known as
‘cabotage’: for international comparisons and further discussion of this issue,
see Holmes and Murphy, Shipping
Legislation Amendment Bill 2015, op. cit., especially pp. 5–7 and
Appendix A.
[69]. MUA,
Turnbull
wants to kill off another vital Australian industry and must be stopped,
op. cit.
[70]. Minerals
Council of Australia, Submission
to coastal shipping reforms discussion paper, op. cit., p. 5.
[71]. Holmes
and Murphy, Shipping
Legislation Amendment Bill 2015, op. cit., especially pp. 16, 19–20,
33–4.
[72]. See
especially regulations 1.15E and 1.15B; see also Fair Work Ombudsman, ‘Maritime
industry—workplace rights and entitlements’, Fair Work Ombudsman website.
Note that there are certain provisions relating to voyage permits under
now-repealed provisions of the Navigation Act.
[73]. Flag
of convenience (FOC) shipping refers to ‘those vessels that travel
internationally, but are not registered to the state it is most closely
associated with’: Senate Rural and Regional Affairs and Transport References
Committee, Increasing
use of so-called Flag of Convenience shipping in Australia, July 2017,
p. 2.
[74]. Senate
Rural and Regional Affairs and Transport References Committee, Increasing
use of so-called Flag of Convenience shipping in Australia, op. cit.,
pp. 23 and see also p. 24.
[75]. Ibid.,
p. 26.
[76]. Ibid.
[77]. Ibid.,
p. 28.
[78]. Ibid.,
p. 70.
[79]. See
subsection 6(1) and section 7; see also DIRD, ‘Coastal
trading frequently asked questions’, op. cit.
[80]. Explanatory
Memorandum, Coastal Trading (Revitalising Australian Shipping) Amendment
Bill 2017, op. cit., p. 8.
[81]. DIRD,
Regulation
impact statement, op. cit., p. 10.
[82]. See,
for example, Australian Industry Group, Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017
[Provisions], 15 November 2017, p. 5; Shipping Australia, Submission
to coastal shipping reforms discussion paper, op. cit., p. 2; AIP, Submission
to coastal shipping reforms discussion paper, op. cit., p. 4.
[83]. MUA,
Submission
to Senate Rural and Regional Affairs and Transport, op. cit., p. 9; see also
AIMPE, Submission
to coastal shipping reforms discussion paper, op. cit., p. 4.
[84]. Senate
Rural and Regional Affairs and Transport Legislation Committee, Official
committee Hansard, 23 October 2017, p. 188.
[85]. Emergency
situations are prescribed in regulations made under subparagraph 64(2)(b)(i) of
the Act: Regulation 4.3.1 of the Coastal Trading
(Revitalising Australian Shipping) Regulation 2012 currently prescribes
various kinds of emergencies for the purposes of that subparagraph.
[86]. DIRD,
Coastal
shipping reforms: discussion paper, op. cit., p. 6.
[87]. Shipping
Australia, Submission
to coastal shipping reforms discussion paper, op. cit., p. 3.
[88]. MUA,
Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, op. cit.,
p. 9.
[89]. Explanatory
Memorandum, Coastal Trading (Revitalising Australian Shipping) Amendment
Bill 2017, p. 8.
[90]. See
regulation 1.1.4 of the Coastal Trading
(Revitalising Australian Shipping) Regulation 2012.
[91]. Explanatory
Memorandum, Coastal Trading (Revitalising Australian Shipping) Amendment
Bill 2017, p. 6.
[92]. Ibid.,
p. 7.
[93]. AIP,
Submission
to coastal shipping reforms discussion paper, op. cit., p. 6.
[94]. The
provisions for varying temporary licences are discussed further later in this
Digest. See also DIRD, ‘Coastal
trading frequently asked questions’, op. cit.; DIRD, ‘Shipping
business unit industry bulletin 1’, DIRD website, last updated 8 July 2016.
[95]. DIRD,
Regulation
impact statement, op. cit., p. 11.
[96]. Ibid.
[97]. Explanatory
Memorandum, Coastal Trading (Revitalising Australian Shipping) Amendment
Bill 2017, pp. 1, 4.
[98]. DIRD,
Coastal
shipping reforms: discussion paper, op. cit., p. 5.
[99]. Ibid.
[100]. Shipping
Australia, Submission
to coastal shipping reforms discussion paper, op. cit., p. 2; Ports Australia, Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017
[Provisions], 13 November 2017, p. 2; see also Ports Australia, Submission
to coastal shipping reforms discussion paper, op. cit., p. 2.
[101]. MIAL,
Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017
[Provisions], 13 November 2017, p. 4; see also MIAL, Submission
to coastal shipping reforms discussion paper, op. cit., p. 5.
[102]. See
for example, AIMPE, Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017
[Provisions], n. d., p. 10.
[103]. MUA,
Submission
to coastal shipping reforms discussion paper, op. cit., p. 4; MUA, Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017
[Provisions], 20 November 2017, p. 11.
[104]. DIRD,
Coastal
shipping reforms: discussion paper, op. cit., p. 6.
[105]. DIRD,
Regulation
impact statement, op. cit., p. 12.
[106]. Subsections
17A(2) and (3) also specifically provide that offshore facilities include a
Floating Product, Storage and Offtake and Floating Storage Unit in an offshore
area (and these terms are defined further in section 10 of the Maritime
Transport and Offshore Facilities Security Act).
[107]. Explanatory
Memorandum, Coastal Trading (Revitalising Australian Shipping) Amendment
Bill 2017, p. 7; see also DIRD, Coastal
shipping reforms: discussion paper, op. cit., p. 6.
[108]. DIRD,
Regulation
impact statement, op. cit., p. 20.
[109]. See
items 19, 20, 24, 33, 35, 48, 51 and 52.
[110]. Shipping
Australia, Submission
to coastal shipping reforms discussion paper, op. cit., p. 3.
[111]. AIP,
Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, op.
cit., p. 6.
[112]. Ibid.,
p. 4.
[113]. Ibid.
[114]. Minerals
Council of Australia, Submission
to coastal shipping reforms discussion paper, May 2017, p. 5.
[115]. See,
for example, Woodside, Submission
to coastal shipping reforms discussion paper, April 2017, p. 2; MIAL, Submission
to coastal shipping reforms discussion paper, op. cit., p. 5.
[116]. Woodside,
Submission
to coastal shipping reforms discussion paper, op. cit., p. 2.
[117]. Ibid.,
p. 3.
[118]. Explanatory
Memorandum, Coastal Trading (Revitalising Australian Shipping) Amendment
Bill 2017, p. 6.
[119]. Ibid.
[120]. Australian
International Marine Export Group, Submission
to coastal shipping reforms discussion paper, April 2017, pp. 1–2; see also S
Robert, ‘Adjournment:
Superyacht industry’, House of Representatives, Debates, 24 May
2017, p. 5042.
[121]. Superyacht
Australia, Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017
[Provisions], 11 November 2017, p. 6.
[122]. S
Ciobo (Minister for Trade, Tourism and Investment), Superyachts
to bring super gains for Australian tourism and marine industries,
media release, 13 September 2017; see also L Allen, ‘Superyachts
sailing our way’, The Australian, 14 September 2017, p. 19; L Allen,
‘GST
slug deters superyachts’, The Australian, 24 April 2017, p. 19.
[123]. MUA,
Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, op. cit.,
p. 10.
[124]. Explanatory
Memorandum, Coastal Trading (Revitalising Australian Shipping) Amendment
Bill 2017, p. 7.
[125]. DIRD,
Coastal
shipping reforms: discussion paper, op. cit., p. 6.
[126]. Note
that item 64 also removes the reference in section 112 to emergency
licences as a consequence of the removal of that licence category.
[127]. DIRD,
Regulation
impact statement, op. cit., p. 12.
[128]. Superyacht
Australia, Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017
[Provisions], 11 November 2017, p. 6.
[129]. Cruise
Lines International Association (CLIA) Australasia, Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017
[Provisions], 13 November 2017, p. 2.
[130]. Ibid.,
p. 6.
[131]. Ibid.,
p. 2.
[132]. MUA,
Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, op.
cit., p. 12.
[133]. See
further DIRD, ‘Coastal
trading frequently asked questions’, op. cit.; DIRD, ‘Shipping
business unit industry bulletin 1’, op.
cit.; CSL Australia Pty Ltd v Minister for Infrastructure and Transport (2014)
227 FCR 333, [2014]
FCA 1160.
[134]. Coastal
Trading Act, subsection 46(4).
[135]. Coastal
Trading Act, subsection 54(1).
[136]. These
items also clarify that applications for a variation to a temporary licence
must be made by the temporary licence holder rather than ‘a person’.
[137]. Explanatory
Memorandum, Coastal Trading (Revitalising Australian Shipping) Amendment
Bill 2017, p. 9.
[138]. Ibid.
[139]. MUA,
Submission
to Senate Rural and Regional Affairs and Transport Legislation Committee, op. cit.,
p. 9.
[140]. Item
10 then inserts a definition of IMO number.
[141]. Explanatory
Memorandum, Coastal Trading (Revitalising Australian Shipping) Amendment
Bill 2017, pp. 1, 5.
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