Referral of inquiry
1.1
On 18 February 2019, the Senate Rural and Regional Affairs and Transport Legislation Committee (the committee) self-referred an inquiry into the Performance of the Australian Maritime Safety Authority (AMSA) under Standing Order 25(2)(a).
1.2
On 11 April 2019, the 45th Parliament was prorogued and the House of Representatives was dissolved. A general election for the House of Representatives and half of the Senate was held on 18 May 2019. The inquiry subsequently lapsed at the end of the 45th Parliament on 30 June 2019.
1.3
On 23 July 2019, following the formation of the new committee, the Senate agreed to the committee's recommendation to re-adopt the inquiry for the 46th Parliament.
Conduct of inquiry
1.4
In undertaking its general oversight responsibilities with regard to AMSA, the committee held a public hearing in Canberra on 4 December 2018. Thereafter, on 18 February 2019 during a Senate Additional Estimates hearing, the committee heard further evidence from AMSA regarding maritime safety and, in particular, the role of AMSA in investigating the death of Mr Damien Mills in October 2014. On the same day, the committee self-referred an inquiry into the performance of AMSA.
1.5
The committee advertised the inquiry on its website, calling for submissions to be lodged by 29 March 2019. Details regarding the inquiry and associated documents are available on the committee's webpage.
1.6
The committee received 14 public submissions which are listed at Appendix 1. Public submissions to the inquiry are also published on the committee webpage.
1.7
In addition to the initial public hearing in Canberra on 4 December 2018, prior to the self-referral of the inquiry, the committee held four further public hearings:
Ascot, Western Australia on 21 March 2019;
Canberra, Australian Capital Territory on 1 April 2019;
Brisbane, Queensland on 25 September 2019; and
Canberra, Australian Capital Territory on 11 November 2019.
1.8
A list of the witnesses who provided evidence at the public hearings is available at Appendix 2.
Structure of Report
1.9
The report is broken down into six chapters. The first chapter provides an overview of the committee's conduct as well as a brief background to the pertinent issues raised during the inquiry.
1.10
Chapter 2 provides an overview of the legislative framework which underpins maritime safety and regulation in Australia.
1.11
Chapter 3 explores the issue of headcounts as a safety measure on domestic commercial vessels (DCVs). It focuses specifically on the events surrounding the incident on the Ten-Sixty-Six and the steps taken by AMSA following the findings of the coronial inquiry to address legislative concerns regarding headcounts.
1.12
Chapter 4 considers the investigations and administrative action taken under the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (the National Law) against the owner of the Ten-Sixty-Six and Dolphin Dive Centre Fremantle (DDCF). The Chapter also considers the work undertaken by AMSA in response to recommendations from the Western Australian Police to launch prosecutorial action in relation to the DDCF. Further, it discusses the decision making process by AMSA to not proceed with a brief of evidence for the purposes of possible prosecutorial action.
1.13
Chapter 5 considers a number of coronial inquiries where concerns were raised about the role and actions of AMSA and the National Law.
1.14
Chapter 6 focuses on the evidence received by the committee regarding the functions of AMSA, as well as its legislative framework, that potentially require review and reform. The chapter considers the regulatory approach of AMSA as well as focussing on specific issues for review, including Safety Management Systems, grandfathering arrangements and Marine Orders.
Background
1.15
The initial focus of the committee during the inquiry was on matters relating to the performance of AMSA in response to a maritime accident that took place on a passenger charter boat in October 2014. This incident became a focal point from which the committee considered the role of AMSA, its performance as the regulator of maritime safety, and the legislative framework underpinning maritime safety in Australia.
1.16
On 31 October 2014, thirty-five-year-old mortgage broker, Mr Damien Mills, attended a networking function aboard a passenger charter boat, the Ten‑Sixty‑Six, operated by the DDCF and supplied to Swan River Boat Charters for the function. Mr Mills was last seen alive off Rottnest Island, Western Australia.
1.17
Mr Mills' disappearance from the boat was not observed by anyone on board. On 1 November 2014, Mr Mills was reported missing by his family. At approximately the same time his body was found floating in the Indian Ocean about three nautical miles off Leighton Beach, at approximately midday on 1 November 2014.
1.18
There were two key matters of particular concern to the committee with regard to the vessel—the Ten-Sixty-Six—and the role of AMSA, being:
the safety measures introduced by AMSA, with particular focus on headcounts, following the coronial inquest into the death of Mr Mills; and
the decision-making process within AMSA not to proceed with a brief of evidence for possible prosecutorial action in relation to the death of Mr Mills.
1.19
As the inquiry progressed, the committee identified a number of other matters of concern with regard to AMSA. These issues included AMSA's regulatory approach, the application and administration of health and safety provisions under the National Law, grandfathering arrangements, increased red tape and safety management systems.
1.20
Each of these matters has a direct bearing on the safety of maritime operations and is considered in this report.
Timeline
1.21
While the report goes into greater detail regarding the investigation into Mr Mills' death, and concerns about the actions of AMSA, the committee is of the strong view that far too much time elapsed between Mr Mills' death, and AMSA taking definitive action to address serious marine safety concerns.
1.22
Table 1.1 below highlights the events of the past six years, alongside relevant legislative developments. This timeline highlights the fact that these issues have been ongoing for a considerable period of time.
Table 1.1: Timeline of action by AMSA
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1 November 2014
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The death of Mr Damien Mills off the Ten‑Sixty‑Six vessel, operated by Dolphin Dive Centre Fremantle (DDCF)
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7 November 2014
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WA Department of Transport (DoT) issued a temporary direction notice to DDCF to operate with additional crew members
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13 November 2014
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DoT issued the DDCF with a Notice of Suspension of its Certificate of Operation
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20 November 2014
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DoT conducted a full investigation of three DDCF vessels, due to systemic failings in the safe operation of the vessels
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3 December 2014
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DoT issued a show cause notice to DDCF and the operator of DDCF was directed to undertake a full out‑of‑water survey of its three vessels
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12 December 2014
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DDCF requests that the show cause notice be revoked and AMSA review its suspension decision
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December 2014
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DoT provided all information it collected to AMSA for an internal review process
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21 December 2014
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DoT provided AMSA with a summary report, suggesting a failure by the owner to comply with general safety duties
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22 December 2014
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DDCF sought an emergency injunction to have the show cause notice and direction notice lifted
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24 December 2014
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Federal Court hearing, where a stay was put on the show cause and direction decisions, with a full hearing scheduled for February 2015
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24 December 2014
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AMSA advised DoT that after internal review, it had determined to overturn the direction to DDCF to perform out‑of‑water surveys (the show cause notice remained in place)
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14 and 23 January 2015
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WA marine safety inspectors determined that all of DDCF's vessels were compliant and on advice from AMSA, DoT lifted the suspension on the DDCF certificate of operation
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30 January to 3 February 2015
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DoT expressed to AMSA its concerns about the ability of DDCF to operate safely and legally; DoT would not withdraw the show cause notice unless advised by AMSA
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3 February 2015
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AMSA advised DoT to discontinue the matter; DoT formally withdrew the show cause notice
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12 February 2015
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WA Police submitted its report to AMSA, recommending two charges against the master of the Ten-Sixty-Six
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17 February 2015
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AMSA completed its internal review of DoT decision to suspend the DDCF certificate of operation, and overturned that decision
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February to August 2015
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AMSA reviewed the reports from WA Police and DoT
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22 May 2015
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DoT provided its completed investigation report to AMSA, recommending a number of offences be considered for possible prosecution
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29 May 2015
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AMSA completed an internal review into its handling of the DDCF investigation, making four recommendations
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August 2015
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AMSA consulted with Commonwealth Director of Public Prosecutions (CDPP)
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26 August 2015
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DoT informed AMSA of further apparent fraudulent behaviour, relating to false declarations
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27 August and 2 September 2015
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AMSA and the CDPP discussed the DDCF matter
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2 September 2015
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AMSA commenced the production of a brief of evidence for alleged offences against the Criminal Code Act
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14 September 2015
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AMSA investigators conducted additional work and received further statements
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31 October 2015
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Due date for bringing prosecutorial action, due to one‑year statute of limitations
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30 November 2015
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CDPP indicated to AMSA that there were significant obstacles to completing a brief of evidence with a reasonable likelihood of successful prosecution
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22 February 2016
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AMSA told DoT that it had decided not to complete a brief of evidence, as pursuing charges was unlikely to be successful
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December 2016
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The owner of the DDCF was fined for illegally selling beer during the cruise from which Mr Mills went missing
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30 October 2017
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Findings of the coronial inquest into the death of Mr Mills delivered
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1 July 2018
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AMSA assumed responsibility for all service functions under the National Law
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1 July 2018
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Marine Order 504 (Certificates of operation and operation requirements – national law) 2018 commenced, with provisions about headcounts
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18 February 2019
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Committee commenced its inquiry into the performance of AMSA
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1 April 2019
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AMSA confirmed to the committee it would seek legislative amendments to allow two years to commence prosecutorial proceedings
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September 2019
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AMSA confirmed to the committee that it had provided a brief of evidence to the CDPP
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27 October to 1 November 2019
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An AMSA investigator was in Perth, investigating allegations against DDCF and Mr Lippiatt
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8 November 2019
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Additional material provided by AMSA to the CDPP for prosecution assessment
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5 December 2019
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Senator Glenn Sterle introduced a Private Senator's Bill to improve legislative requirements around headcounts
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16 December 2019
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AMSA published proposed amendment to Marine Order 504, inviting public comment
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28 February 2020
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Following consultation, Marine Order 504 (Certificates of operation and operation requirements – national law) Amendment Order 2020 was made, strengthening the legislative requirements for headcounts on certain domestic vessels, and for situations where a passenger is unaccounted for
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31 May 2020
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Amended Marine Order 504 commences (see above)
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Source: collated by the Rural and Regional Affairs and Transport Legislation Committee, based on evidence received
Acknowledgements
1.23
The committee thanks those individuals and organisations who contributed to the inquiry by preparing written submissions and giving verbal evidence at hearings.
1.24
In particular the committee acknowledges the substantial contribution to the inquiry of Ms Nicole Mills, wife of Mr Damien Mills, and Mr Richard Mills, father of Mr Damien Mills. The committee acknowledges the anguish and grief suffered by the Mills family and applauds their determination in advocating for greater safety on DCVs.
1.25
The committee also recognises the pain suffered by other families who have lost loved ones on DCVs, including passengers and crew.
Notes to references
1.26
References in this report to the Hansard for the public hearings may be to the proof Hansard. Page numbers may vary between the proof and official Hansard transcripts.