3.1
This chapter considers the coronial findings in relation to the accident aboard the Ten-Sixty-Six. In particular, it focuses on the issue of headcounts as a key safety measure. It considers the findings of the coronial inquest into the death of Mr Damien Mills, the subsequent actions taken by AMSA following the inquest and ongoing efforts to strengthen headcount requirements.
Coronial findings
3.2
A coronial inquest into the death of Mr Mills was undertaken in Western Australia with the findings delivered on 30 October 2017. In her report, Coroner Sarah Linton found that Mr Mills had died on or about 31 October 2014 in the Indian Ocean approximately three nautical miles off Leighton Beach, in circumstances 'consistent with immersion'.
3.3
Mr Daniel Lippiatt was the Managing Director of Swan River Boat Charters and the sole Director of the Dolphin Dive Centre Fremantle Pty Ltd (DDCF). DDCF owned and operated the Ten-Sixty-Six and three other vessels. As part of a commercial arrangement, DDCF supplied the Ten-Sixty-Six to Swan River Boat Charters for the purposes of conducting charter boat cruises. Mr Lippiatt was the master (or skipper) of the Ten-Sixty-Six on the day in question and Mr Aaron Crane was hired as a deck hand. The charter boat was booked by Pepper Australia Pty Ltd, to travel from Fremantle to Rottnest Island.
3.4
In her report, Coroner Linton raised a series of concerns about the procedures on board the charter vessel, particularly in relation to headcounts. The inquest found that there was considerable uncertainty regarding the number of individuals aboard the Ten-Sixty-Six. Ms Kathryn Mortimer, a staff member with Pepper Australia, recalled that before the boat was boarded, she undertook a headcount on the jetty and told Mr Lippiatt that there were 33 people. It is unclear whether Ms Mortimer included herself in the headcount.
3.5
Other evidence presented to the police by other passengers on the boat suggests there were 34 passengers in total (30 invited guests and four Pepper Australia staff). The captain and the deckhand also, independent of each other, conducted headcounts of 35 passengers when they first embarked. The coroner ultimately concluded that there was sufficient evidence to suggest that there were 34 passengers and two crew members aboard the Ten-Sixty-Six for a total of 36 persons on board the boat.
3.6
The inquest also reported on whether Swan River Boat Charters undertook a final headcount upon disembarking at Sardine Jetty in Fremantle. The Coroner noted that Swan River Boat Charters had a safety management plan for its boats including the Ten-Sixty-Six, which indicated that 'Passengers will always be counted on and off the vessel and the numbers recorded in the vessel's log'.
3.7
Mr Lippiatt informed the Coroner that he recalled conducting a headcount of passengers as they were disembarking from the boat at Sardine Jetty on Fremantle Harbour at the conclusion of the journey. He indicated that he remembered counting the same amount of passengers that got off the vessel as the amount of passengers who were at Rottnest Island. Mr Lippiatt relied in part, on the fact that he didn't alter his original logbook entry, which he argued was accurate and reliable.
3.8
There was only one entry in the logbook of a headcount which provided the date but not the time at which it was taken. Mr Lippiatt gave evidence that the entry related to the headcount conducted at the start of the day but was made in the logbook while anchored at Rottnest Island. However, the only evidence that headcounts were conducted after the initial count upon embarkation was provided by Mr Lippiatt.
3.9
The accounts of the deck hand, Mr Crane, and passengers differ significantly from that of Mr Lippiatt. Having considered the available evidence obtained during the police investigation, Senior Constable Brandhoff informed the Coroner that he had formed the view that a headcount had not been conducted when the vessel returned to Sardine Jetty.
Coroner's comments on public safety
3.10
The Coroner noted that there was general agreement amongst the passengers on board the Ten-Sixty-Six that it would have been possible for the deceased to have fallen overboard during the return trip to Fremantle and not be seen.
3.11
The Coroner made note that, at least in the early stages of the trip, the crew did not supervise the passengers on the return journey and that no additional safety briefing was provided when the boat departed Parakeet Bay on Rottnest Island. This is despite the fact that many passengers had been drinking alcohol through the day and rough conditions were expected on the return journey. The Coroner continued:
From that safety point of view, the passengers should have been informed of the likely rougher conditions on the return journey and the need to stay seated and then for a crew member to remain on watch outside to ensure that those instructions were followed, that passengers did not require assistance and that all passengers remained safely on board.
3.12
In regards to the requirement to do a headcount, the Coroner made note of Sergeant Michael Wear's opinion that if the police had been informed of a man overboard situation immediately after the deceased had entered the water, there was an 'extremely high probability that the deceased may have been found alive'. Sergeant Wear put the probability of success in finding the deceased alive under these circumstances at 99.9 per cent. Sergeant Wear also noted that the 'Water Police could have had vessels and helicopters in the vicinity of that location within minutes and 15 to 20 vessels there within half an hour'.
3.13
Sergeant Wear further suggested, based upon his own experience, that it was highly likely that the deceased might have been found alive if a prompt search had been initiated. He noted that, at the very least, it was almost guaranteed that his body would have been found in a timely manner.
3.14
Though Coroner Linton made no specific recommendations regarding headcounts, in the concluding remarks she noted:
While [Mr Mills'] death was an accident, there was evidence that it may have been preventable if his disappearance had been identified sooner. The evidence underscored the need for simple processes, such as performing careful and orderly headcounts and supervising passengers properly while on board, to be undertaken by the crew of charter boats to ensure the safety of their passengers. If that had been done in this case, the deceased might still be alive today.
3.15
The concluding remarks of the Coroner further stated:
With the transition to a new national regulatory body, it is difficult to make any meaningful recommendations. However, I am informed by AMSA, who participated actively in the inquest, that they have understood the safety issues raised by the death of the deceased and it is AMSA’s intention that steps will be taken, within the National Law framework, to promote headcounts as a safety measure.
AMSA's evidence on headcounts
3.16
AMSA informed the inquest that the legal requirements for headcounts on DCVs such as the Ten-Sixty-Six arose from the National Law, which commenced on 1 July 2013.
3.17
AMSA noted that the National Law was complex due to distinctions between various classes of vessels, as well as various transitional and grandfathering provisions relating to existing vessels (as compared to new vessels). This complexity may have contributed to the fact that AMSA gave conflicting evidence to the Coroner regarding headcounts, as discussed below.
3.18
In a written response to the Coroner dated 17 November 2016, AMSA indicated that there was no specific statutory requirement to conduct a head count. However, AMSA noted that there was a requirement upon the operator to implement and maintain a safety management system (SMS) for which the 'risks identified and addressed in such a system are a matter for the operator to determine'. The SMS for the Ten-Sixty-Six, entitled Swan River Boat Charters Safety Management Plan 2014, clearly stated:
Passengers will always be counted on and off the vessel and the numbers recorded in the vessel's log.
3.19
Months later, however, on 2 June 2017, AMSA confirmed in a statement to the Coroner that there was a requirement under law to complete a head count aboard the Ten-Sixty-Six. AMSA noted that this statement 'corrected a response to a question on 17 November 2016 indicating that there was no specific statutory requirement to conduct a head count'. In the 2017 statement, AMSA informed the Coroner that the SMS of the Ten-Sixty-Six specified that a head count must be conducted. AMSA continued that:
Schedule 2 of the 'National Standard for Commercial Vessels (NSCV) Part E Operations' provides a requirement (for passenger vessels on voyages of less than 12 hours long) for at least one head count of all passengers on board the vessel and that the number of passengers on board the vessel must be known by the master at any time. Part 3 of the National Law imposes a separate and additional requirement to implement and maintain a Safety Management System which ensures the safety of the vessel and its operations so far as reasonably practical.
3.20
At the time of the incident, the second edition of the NSCV Part E (Operational Practices), published by the National Marine Safety Council in October 2008, applied and was in effect in Western Australia. AMSA noted that it was this version of NSCV Part E, other than crewing requirements, that applied to the Ten-Sixty-Six on the date of the incident.
Suggested changes to headcount requirements
3.21
At the time of the coronial inquiry, the requirements in relation to headcounts were set out in Part E of the NSCV which specified the minimum requirements for the safe operation of DCVs in Australia. The specific clause states:
2.11.2.2 Passenger manifest
A passenger manifest shall be maintained for all passenger-carrying vessels on voyages that are more than 12 hours in duration.
For all other passenger-carrying vessels a head count of passengers on board at any time shall be maintained.
3.22
The Coroner queried the accuracy of the headcount aboard the Ten-Sixty-Six noting that 'if I am to accept his [Mr Lippiatt's] evidence of having done three headcounts, the process was flawed as the numbers he reached were incorrect'. The Coroner further stated on the headcounts that:
If a proper process of headcounts had been done, with correct numbers taken at the start and end of the charter, it would have been noted that a passenger was missing and hopefully an investigation into the identity of the person, and a search for them, could have been started much sooner and perhaps saved a life.
3.23
In addition, the Coroner stated that it was difficult to see the benefit of a single headcount, and expressed the view that the WA Water Police's suggestion of a second headcount at disembarkation was 'obviously to be preferred' if safety is the objective. The Coroner specifically asked AMSA to explain why the National Law does not mandate at least two headcounts, one at the start of the journey and the other at the end of the journey.
3.24
AMSA advised the Coroner that due to the significant diversity in vessel types and operations, it was difficult to be too prescriptive in headcount procedures. The example given was of the difference between Manly ferries operating on Sydney Harbour with hundreds of passengers hourly, and a small charter vessel with relatively few passengers for the day. AMSA indicated that it would not support a change in legislation to require more than one headcount because of the diverse range of operations that would be covered. Ms Clare East, AMSA Marine and Regulations Manager, was reported to have indicated that AMSA's preference was to 'use our various communication channels…to illustrate what would be sufficient for a head count'.
3.25
AMSA further informed the Coroner that its preferred approach was that different types of operations should be able to calibrate their headcount procedures and requirements in accordance with the nature of their operation and on the basis of guidance provided by AMSA as to what is appropriate and reasonable in the circumstances.
3.26
However, the Western Australian Department of Transport (DoT) disagreed with AMSA's approach and expressed the view that, for small operators, it was better to be prescriptive rather than rely on the operators' own ability to assess what they considered safe without clear guidance. Similarly, the WA Water Police supported a more prescriptive approach with its recommendations that a first headcount be conducted and corroborated by another crew member and that another headcount be conducted when passengers are disembarking.
Headcount method and prescription
3.27
Alongside the concerns raised regarding the number of headcounts required to be conducted during a DCV journey, the coronial inquiry brought to light important questions about how headcounts are conducted. In the case of the Ten-Sixty-Six, the process of head counting was recognised by the Coroner as 'flawed' as the numbers reached by the master were incorrect.
3.28
The SMS on the Ten-Sixty-Six set out a requirement that passengers 'will always be counted on and off the vessel and the numbers recorded in the vessel's logbook'. While there was a direction that passengers would be counted on and off the vessel, with the number recorded, there was no set procedure as to how those headcounts were to be conducted.
3.29
The National Law does not mandate nor prescribe the way in which a count is to be conducted. The method by which passengers are counted on and off a DCV therefore varies from vessel to vessel. Methods include a simple counting of heads, a clicker system, and formal ticketing arrangements. Such methods can be written into a vessel's SMS. However, an SMS can also simply state that headcounts should be conducted without specifying how they should be performed. AMSA indicated that it was a matter for the vessel owner to determine the best practice for conducting head counts on their vessel, taking into consideration the nature of their operation.
AMSA's response to the coronial inquiry
3.30
In response to the Coroner's statement that a single headcount was inadequate, AMSA noted its intention to 'undertake safety initiatives to communicate the need to undertake two headcounts for certain operations'. AMSA indicated that this would be undertaken through:
committees—including the Domestic Commercial Vessel Industry Advisory Committee;
publications—including the Safety Awareness Bulletin and E-news marine notices sent to over 29 000 subscribers;
direct educational activities—including SMS workshops that were organised by vessel operation type and complexity; and
other unspecified interventions.
3.31
The Coroner was reassured that AMSA intended to take an 'active role in promoting the need for multiple headcounts in domestic charter operations'. Although she expressed a preference for multiple headcounts to be made mandatory as a means of ensuring compliance, the Coroner accepted that under the new system, 'it is difficult to legislate such a requirement in a simple way'. The Coroner concluded that:
The system proposed by AMSA of encouraging inclusion of such a system in the SMS of operators of charter operations similar to that of Mr Lippiatt, which would then require compliance, would appear to be the most practical option.
3.32
In her concluding comments, Coroner Linton observed that AMSA intended to take steps to promote headcounts as a safety measure and noted that it is important that 'AMSA do its best to ensure that safety systems implemented are duly carried out by operators with care and diligence'.
3.33
AMSA had indicated to the Coroner that it intended to maintain a 'clear compliance presence, with a focus on the headcount issue for high risk operators'. Following the inquest, AMSA provided further information to the court to indicate that 'AMSA has an expectation that it will be necessary and desirable to conduct two headcounts (or more) on certain operations'. It expressed the view that this was best done in an operator's SMS, noting that as 'part of the risk assessment process an owner/operator of these types of operations will be best placed to identify that a second headcount is necessary (for example, on passenger vessels)'.
AMSA's actions since 2014
3.34
In December 2018, AMSA CEO, Mr Mick Kinley, gave evidence that AMSA had implemented a 'suite of regulatory and operational measures to improve the safety outcome in passenger operations'. He stated that since 1 July 2018, AMSA had ended grandfathering of operational safety standards. Owners and operators of passenger vessels must, as a condition of their certificate of operation, now comply with contemporary safety standards for operations, including headcount requirements, as set out in Marine Order 504. He stated that:
There is now an explicit requirement that the safety management system for the vessel specifically address these operational safety standards, giving clearer substance to safety management system obligations, and vessel owners won't be issued a certificate of operation if they don't do this.
3.35
Mr Kinley also stated that AMSA had 'bolstered' the obligation to undertake at least one headcount and to be aware of the number of passengers on the vessel at any time, by requiring vessel owners to ensure the number of crew on board was adequate to ensure passengers were appropriately monitored.
3.36
In terms of operational and compliance measures, AMSA also undertook a range of measures, including:
SMS assessments in Western Australia, with particular attention given to passenger vessels operating between the mainland and Rottnest Island;
SMS workshops in Western Australia;
developing new guidance for an SMS;
assessing an SMS for passenger vessels considered high risk prior to the issue of a renewal of a certificate of operation; and
planning for an SMS forum in 2019.
Enforcement and Inspector Support
3.37
Following a review of AMSA's compliance functions and enforcement policy in 2017, it created a dedicated Enforcement and Inspector Support (EIS) Unit. The unit reports directly to the CEO and has specialist resources to undertake compliance activities including detailed investigations, prosecutions and the instigation of civil penalty proceedings. AMSA informed the committee that the unit will 'investigate all fatalities relating to the operation of domestic commercial vessels and will continue to work with the CDPP'.
3.38
As AMSA has taken on full regulatory responsibility for compliance of DCVs, the EIS unit will take the lead in investigating incidents under the National Law. At the same time, there remain 225 state and NT agency officers appointed as National Law MSIs. In addition, state police officers remain National Law MSIs. These arrangements are supported by memoranda of understanding (MoUs) and service level agreements.
Marine Order 504 and headcounts
3.39
As discussed in Chapter 2, the current Marine Order 504 commenced on 1 July 2018, following a number of amendments which included moving provisions contained in Part E of the NSCV into the 2018 Marine Order 504 as a schedule. Under the Order, an SMS is required to detail a vessel's operational requirements.
3.40
Further, under Marine Order 504, applications for a certificate of operation must include a written declaration that there is an SMS in place. It specifies that an offence is committed under the National Law if an owner of a vessel does not implement and maintain an SMS for a vessel.
3.41
Schedule 1 of Marine Order 504 states, in relation to headcounts:
Passenger documents
(9) For a voyage that is less than 12 hours long, the master must:
(a) ensure that at least 1 head count is conducted of all passengers on board the vessel; and
(b) know the number of passengers on the vessel at any time.
(10) For a voyage that is at least 12 hours long, the owner must ensure that a readily accessible passenger manifest is kept on board the vessel.
(11) The passenger manifest must include details about the following:
(a) the name of the vessel;
(b) an identification number for the vessel;
(c) the voyage;
(d) if required in an emergency — details of any medical or safety requirements of particular passengers;
(e) for each person on board the vessel — name, address (local and home if a person has both), email address (if any) and phone number.
3.42
AMSA noted that Marine Order 504 requires that the owner conduct and document in their SMS an appropriate crewing evaluation, in order to determine the number and qualifications of the master and crew required for each particular operation (the considerations that they must take into account are set out in the Marine Order). According to AMSA, it has extended the requirement with regard to the need for the owner to consider 'the number of persons to be carried on the vessel', to provide that the owner's evaluation must take into account the 'number of persons to be carried on the vessel and the effectiveness and timeliness arrangements for passenger monitoring by the crew'. AMSA argued that:
This requirement was intended to complement the existing head count requirement to ensure that headcounts be undertaken by crew as frequently as is necessary for the type of operation and reported to the master.
AMSA's information campaign
3.43
In 2018, AMSA produced guidelines to improve understanding of the SMS, particularly in light of the circumstances of Mr Mills' death. The guidelines contain only the following direction with regard to headcounts:
Key questions to consider:
…
How do I accurately conduct a passenger head count? How often will I do a passenger head count?
…
Passenger list
You are required to complete a head count, and for voyages longer than 12 hours, a passenger manifest.
3.44
In terms of information and awareness‑raising, AMSA also placed an article on charter boats in the December 2018 edition of its magazine, Working Boats. It states:
Headcounts
In situations where passengers get on and off there is a risk the vessel could depart for the next destination without all of the passengers.
While boarding, operators should do a headcount and log the number and details of passengers. Once en route, do at least one more headcount to make sure everyone is on board, before departing any stops along the way and again when the vessel gets back to port.
Monitoring passengers
As well as the obligation to do headcounts, operators must also make sure they have enough crew to adequately monitor the number of passengers on-board.
3.45
The committee has not received any evidence to indicate how many vessels have instituted a regime in their SMS to conduct more than one headcount as a consequence of this compliance and awareness-raising activity. AMSA stated that it assesses the SMS for passenger vessels considered high risk prior to the issue of a renewal of a certificate of operation. However, it is not clear how it conducts such assessments, nor what action is taken when an SMS is deemed to be inadequate.
Legislating for headcounts
3.46
The WA Police acknowledged AMSA's concerns that it would be difficult to be prescriptive about head counts, given the diverse range of operations that the Schedule 1 provision covers. However, Senior Constable Brandhoff also acknowledged that for many DCVs, maintaining awareness of two to ten passengers would not be difficult. Inspector Andrew Henderson also noted the importance of maintaining an understanding of passengers throughout a journey:
I can clearly see the benefits of conducting regular headcounts, especially if people are getting on and off the boat like they do in Queensland. Anything that contributes to the safety and welfare of the people, we would certainly be happy to endorse. And anything that makes search and rescue redundant, we would be happy to support that.
3.47
WA DoT officials stated, for operators of vessels similar to the Ten-Sixty-Six, it was necessary to be prescriptive about headcounts and other safety measures. Mr Ray Buchholz, General Manager Marine Safety, suggested that 'unless it's clearly stated that they must do X and Y on and off you'll find that they won't see that as something they must do: it's something that it would be nice to do'. Mr Buchholz continued:
And in terms of that catch-all comment about 'must know at any given time how many are on board', if you think about that practically, how is that done? Whereas if I say to you, 'At the beginning and at the completion of your voyage,' it's crystal clear what has to be done, particularly if it has to be recorded in a logbook, because it then becomes demonstrable that you've done it.
3.48
The WA Police raised similar concerns regarding the requirement under Marine Order 504 to 'know the number of passengers on the vessel at any time'. Senior Constable Brandhoff indicated that 'there is no facility to record that, to know when it was done, how it was done–any of that sort of thing–so it is too much of a grey area'.
3.49
Mr Buchholz raised an additional concern that the national system places considerable emphasis on the SMS. He stated that there is a belief that the vessel operator/owner is best placed to make decisions about safety and to put in place measures to mitigate the risks. He also indicated that where an operator/owner lists various safety measures in an SMS but then doesn't apply those measures in practice, there should be a consequence. Reflecting on the Ten-Sixty-Six matter, Mr Buchholz continued:
And I think that at the core of the work that we did was this belief that they did have a safety management system and they had identified the need to do a count on and off. Clearly, from the evidence presented, that was not done. There has to be a consequence to that.
Planned Amendments to Marine Order 504 - headcounts
3.50
At a public hearing on 1 April 2019, Mr Kinley informed the committee that AMSA had heard the concerns of witnesses, and the committee, regarding the appropriateness of having only one headcount for a DCV operation. AMSA advised it would look to revise Marine Order 504 to make it 'clearer that operators are required to ensure they have appropriate procedures and methods in place to prevent passengers being lost at sea or left behind during a voyage'.
3.51
Mr Kinley, when questioned on what information AMSA was able to discuss at that stage, noted 'it's not a simple matter of saying we should do two headcounts'. He went on to explain that AMSA 'are determined to have a regulation in the first quarter of next year [2020] that articulates that requirement for however many headcounts they [DCVs] have to do to make sure that they've brought back the people they need to bring back'.
3.52
Mr Brad Groves, General Manager, Standards Division, further elucidated upon the feedback from the submissions on the proposed amendments, noting that 'when it comes to the example of the [Ten-Sixty-Six] and smaller vessels, some submissions said a headcount on and off would be appropriate. There were other submissions around using a lanyard system or a sign in and sign out'.
3.53
Mr Groves continued by noting AMSA's preferred method for amending headcount legislation was a 'two-pronged approach'. This would involve making the SMS across all vessels carrying passengers 'more robust in terms of looking after the passengers' as well as the implementation of 'very specific requirements in terms of counting on and off' for smaller vessels such as the Ten-Sixty-Six.
Marine Safety (Domestic Commercial Vessel) National Law Amendment (Improving Safety) Bill 2019
3.54
On 5 December 2019, Senator Sterle, Chair of the Rural and Regional Affairs and Transport References Committee, introduced a Private Senator's Bill ("the Bill")to specifically address concerns about the adequacy of the legislative requirements around headcounts.
3.55
The Bill passed in the Senate on 10 February 2020 and was read a first time in the House of Representatives on 11 February 2020. It has yet to progress any further at the time of writing.
3.56
The Bill, if passed, would require masters of vessels to conduct two headcounts, one at the commencement of the voyage and one at the end. The Bill excludes Class 4 vessels, vessels used for public transport, and vessels longer than 24 metres.
3.57
The purpose of the Bill is explicit, and is in direct response to the death of Mr Damien Mills.
Marine Order 504 – Amendment Order 2020
3.58
Concomitantly with the Private Senator's Bill, AMSA was carrying out a consultation process on proposed amendments to Marine Order 504 to provide for more robust obligations in terms of how headcounts should be managed on certain vessels.
3.59
The proposed amendments were subject to a consultation process, which involved placing the draft Order on AMSA's website on 16 December 2019 and inviting comment for a nine week period. The explanatory statement for the Order sets out the process:
The consultation process details were posted on social media. In addition, 83 stakeholders were emailed a copy of the draft amending Order and their comment invited. Stakeholders included the Domestic Commercial Vessel Industry Advisory Committee, the Fishing Industry Advisory Committee, the Maritime Agencies Forum, charter boat and tourism industry associations, other industry associations and state and territory government departments and agencies. There were 26 submissions received and these responses were taken into account in finalising the amending Order.
3.60
On 28 February 2020, Mr Kinley, as AMSA CEO, made the Marine Order 504 (Certificates of operation and operation requirements — national law) Amendment Order 2020. The Order, which commenced on 31 May 2020, makes several amendments intended to improve the safety of passengers on a vessel through provisions for monitoring and counting passengers. Requirements for managing situations where a passenger is unaccounted for are also strengthened.
3.61
According to the Amendment Order's Explanatory Memorandum, a vessel's SMS will be utilised to include these strengthened provisions:
The amending Order makes new requirements for all vessels carrying passengers to include procedures in the Safety Management System (SMS) for monitoring and counting passengers. All vessels must also include an emergency procedure in the SMS for responding to a situation where a person is unaccounted for. In addition, a range of passenger vessels must include a procedure for counting passengers on embarkation and disembarkation. The passenger counts must be recorded in the vessel’s logbook.
3.62
The procedures require operators of vessels to count all passengers on board 'at any point where one or more passengers embark or disembark the vessel'. This includes at a landing point, and/or when they undertake a water activity.
3.63
The requirements are intended to apply to vessels that meet the following criteria and are specifically designed to exclude passenger ferries. In subclause 7(6) of Schedule 1 of the Order:
…new paragraph (bb) provides that procedures must include a passenger count on embarkation and disembarkation for vessels carrying up to 75 passengers operating in certain waters and for voyages between 30 minutes and 12 hours.
3.64
The provisions are not intended to be prescriptive in how a vessel carries out these checks, although examples include utilising CCTV, crew stationed to visually monitor passengers, or the use of wrist bands, and will be further expanded upon in guidance which will be developed in the coming months. In terms of counting as part of a water-based activity, a count does not have to be done during that activity, every time someone comes on and off the vessel.
3.65
The current Order already provides that there must be procedures in the vessel's SMS for managing the situation where a person is overboard. These are being extended to where a person is overboard or unaccountably missing.
Committee view
3.66
The central focus of the inquiry has always been the tragic death of Mr Damien Mills, the circumstances of his death, and how something similar could be prevented in the future.
3.67
The revelations of the coronial inquest exposed the gaps and limitations in the current requirements around headcounts and monitoring of passengers, and exposed the limitations of the self-regulating approach that underpins the National Law. The committee heard harrowing evidence that if more stringent requirements were in place, and acted upon, it would be highly likely Mr Mills would have been found alive.
3.68
To this end, the committee commends AMSA's amendments to Marine Order 504, and for enacting a prescriptive minimum requirement. It may be that there are other safety‑critical areas of the National Law where a more prescriptive approach could and should be taken.
3.69
Nevertheless, the committee is of the view that there has been avoidable reluctance in implementing enhanced safety requirements for domestic vehicles. While it accepts that it is difficult to prescribe operational matters across a diverse range of vessels with diverse purposes, the length of time the committee has pressed for improvements, even to the point of Senator Sterle's efforts to expedite the process through his Private Senator's Bill, is concerning.
3.70
The committee hopes that this inquiry will lead AMSA to improve its processes, and therefore make it better placed to implement necessary regulatory improvements in a more timely and effective manner moving forward.