2.1
This chapter provides an overview of the regulatory framework with regard to domestic commercial vessels (DCVs) in Australia. It explores the establishment of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (the National Law) as well as the role of AMSA, and considers a number of legislative and administrative amendments made since the National Law's commencement.
Background
2.2
National reform of commercial vessel safety was first initiated in July 2009 when the Council of Australian Governments (COAG) agreed to take a national approach to regulating the safety of all DCVs in Australian waters by 2013.
2.3
In August 2011, COAG signed an Intergovernmental Agreement on Commercial Vessel Safety Reform (IGA). The parties agreed to develop a national approach to the safe regulation of DCVs and to establish AMSA as the single national regulator for DCV safety in Australia.
2.4
The role of state and territory maritime agencies in service delivery was central to the agreement, as expressed in Clause 5 of the IGA Recitals:
In entering this Agreement, the Commonwealth and the States and Territories recognise that they have a mutual interest in a national system for commercial vessel safety regulation, and affirm their commitment to work cooperatively to achieve this outcome. The ongoing role of State and Territory maritime agencies in service delivery is integral to the national system.
2.5
The aim of the IGA was to 'deliver a national safety system for commercial vessels that is effective, consistent and efficient; minimises legal and administrative costs; and does not result in an overall increase in regulatory burden'.
2.6
The IGA further stipulated that the outcomes of the agreement would include a national law for all commercial vessels operating in Australian waters and a national regulator that develops, maintains and monitors national standards for those vessels.
2.7
COAG’s Standing Council on Transport and Infrastructure (SCOTI) noted that the purpose of the national system for DVCs was to provide the industry with 'simpler safety rules, applied consistently around Australia'.
The role of AMSA
2.8
AMSA is a statutory authority established under the Australian Maritime Safety Authority Act 1990 (the Act). As stipulated in the Act, AMSA's roles are to:
combat pollution in the marine environment;
provide a search and rescue service;
provide, on request, services to the maritime industry on a commercial basis;
cooperate with the Australian Transport Safety Bureau in relation to investigations under the Transport Safety Investigation Act 2003 that relate to aircraft and ships; and
perform such other functions as are conferred on it by or under any other Act.
2.9
The National Law also specifies AMSA's functions as the national regulator. Amongst its responsibilities, AMSA is required to:
make and maintain Marine Orders;
develop and maintain national standards, guidelines and codes of practice relating to marine safety;
undertake investigation, monitoring and enforcement activities; and
consult appropriate authorities of the states and territories, and other persons, associations and organisations, on matters related to the activities of the national regulator.
Application of the National Law
2.10
Prior to the introduction of the National Law, there were eight different marine safety regulatory systems including the Commonwealth, six states and the Northern Territory (NT) that governed the operation of the domestic commercial vessel industry in Australia.
2.11
When the National Law came into force on 1 July 2013, its purpose was to enable 'consistent national regulation of the domestic commercial vessel industry across Australia'. This objective would be achieved through a regulatory framework that promoted continuous improvement in marine safety; promoted public confidence in the safety of marine operations; ensured effective identification and management of safety risks; and sought to reduce the regulatory burden without compromising safety.
2.12
All states and the NT were encouraged to apply the National Law in their respective jurisdictions to the extent necessary to ensure 'national coverage and allow any standards, rules and subordinate legislation (such as regulations and Marine Orders) to have consistent application and effect around the country'.
Purpose of the National Law
2.13
The National Law applies to all DCVs operating in all Australian states and the NT, Australian Capital Territory and Jervis Bay Territory. In addition, all DCVs that travel beyond 200 nautical miles and are currently regulated by relevant states and territories will remain within the scope of the National System. The National Law regulates approximately 27 000 vessels and 66 000 masters and crew across the country.
2.14
The National Law is also designed to apply the National Standard for Commercial Vessels (NSCV) throughout Australia. The NSCV provides an integrated safety system that combines a vessel's technical characteristics, operator competencies and operational procedures to control risk. It establishes standards for vessel survey, construction, equipment, design, operation and crew competencies for DCVs. The NSCV was developed by all state and territory transport agencies and agreed by the relevant transport ministers. It is an evolving document that is amended and updated as required.
Compliance and enforcement under the National Law
2.15
In recognition of the fact that the Commonwealth, states and territories have a 'mutual interest in the national system for commercial vessel safety regulation', the IGA highlighted that the 'ongoing role of State and Territory maritime agencies in service delivery is integral to the national system'. To this end, the IGA stated:
The National Regulator will be responsible for the operation and administration of safety regulation of commercial vessels in Australian waters. State and Territory jurisdictions will deliver a range of National Regulator's operational and enforcement functions within their respective jurisdictional territory. This will enable staffing and resourcing to remain at the discretion of each respective maritime agency.
2.16
Thus, the primary agencies for service delivery under the national system are the respective state departments. Under the new arrangements, each jurisdiction was to continue carrying out all activities they previously undertook prior to 2013, other than those that would now be undertaken by the National Regulator. In terms of investigation, compliance and enforcement activities, the IGA stated that:
State and Territory maritime safety agencies will be delegated all necessary powers, including the ability to engage third party enforcement agencies to conduct incident investigations and exercise a range of operational policy, compliance and enforcement powers, such as the power to vary, suspend or cancel certificates, as well issue infringement notices and prepare briefs for prosecutions on behalf of the National Regulator.
2.17
The IGA noted that these arrangements were established to ensure that the most appropriate regulatory response would be used to secure compliance with, and enforcement of, the National Law. Furthermore, such activities were to be conducted to agreed guidelines and codes of conduct with jurisdictions involved in the setting of such protocols through consultative functions.
2.18
The National Law further established a national compliance and enforcement framework whereby Marine Safety Inspectors (MSIs) have the power to check and enforce industry compliance. This empowers AMSA, as the regulator, to appoint MSIs and sets out the monitoring and enforcement powers that they can exercise to ensure compliance with the National Law.
2.19
MSIs are provided with entry, inspection and seizure powers, including the power to enter certain premises and board vessels, in some cases without warrant or consent. As agreement had been reached under the COAG IGA that operational functions of the regulator would be primarily delivered by existing state and territory marine safety administrators, most such inspectors were employees of state and territory agencies.
2.20
These service delivery provisions were designed to ensure that AMSA could delegate certain functions to state and territory maritime safety agencies to undertake day‑to‑day interaction with the DCV industry. As an AMSA delegate, a state department could additionally be authorised to conduct surveys and approvals; issue, suspend, vary and revoke (upon application) a range of certificates; and to appoint MSIs.
2.21
In relation to the Ten‑Sixty‑Six matter, which occurred in October 2014, the respective agencies operated under the IGA as follows:
[The Western Australian Department of Transport] had primary responsibility for the physical conduct of compliance and enforcement activities including investigations, and AMSA had primary responsibility for ensuring WA officers had the necessary powers and guidance to conduct compliance and enforcement activities under the Marine Safety (Domestic Commercial Vessel) National Law Act 2013 (the National Law)…The WA Police also played a vital role as marine safety inspectors (MSI) in compliance and enforcement activities, and still do.
Changes to service delivery
2.22
In 2014, a streamlining review of the National Law was undertaken in line with the government's red tape reduction and deregulation agenda, and in response to industry concerns about the effectiveness of the national system and concerns about the cost of regulation. The review was also to consider changes in international trends such as the increased focus on safety management systems.
2.23
The review found that the service-delivery model limited the potential benefits of the national system due to 'inconsistencies in service delivery, regulatory and cost-recovery arrangements between jurisdictions'. The then‑Assistant Minister to the Deputy Prime Minster, Mr Damian Drum MP, later noted that:
Following an independent review of the national system in 2014, it was evident that there were inefficiencies and inconsistencies in the way it was being delivered. Inconsistent approaches between the state-based service delivery arrangements were identified as the key cause of the full benefits of the national system not being realised.
2.24
AMSA argued that centralised service delivery would 'simplify how the regulatory framework is applied consistently, across Australia'.
2.25
In November 2014, state and territory transport and infrastructure ministers agreed that AMSA should position itself to take up service delivery on a cost recovery basis by 1 July 2017. Over time, it was expected that AMSA would achieve full cost recovery for these services through the introduction of a levy for the national system.
2.26
AMSA reported the changes in its Working Boats publication as follows:
In November 2014, Commonwealth, State and Territory Transport and Infrastructure Ministers unanimously agreed that AMSA be positioned to take up service delivery by July 2017 under the 'one system, one process and one decision maker' principle.
From 1 July 2017, not only will the rules and standards for DCVs be consistent across Australia, but the way you receive services (and the fees for those services) will also be the same across Australia, regardless of where you operate.
2.27
In November 2016, the transport and infrastructure ministers agreed to extend the timeframe to 1 July 2018 to 'allow jurisdictions and industry to better consult and prepare for these significant changes'.
2.28
Thereafter, on 1 July 2018, AMSA finally assumed full responsibility for service delivery under the national system, thereby replacing the seven state and territory service models. At that time, states and territories stopped delivering services and imposing charges.
National System Statement of Regulatory Approach
2.29
In 2015, in response to the findings of the streamlining review, AMSA released the National System Statement of Regulatory Approach. The approach was underpinned by the view that the amount of regulatory oversight should reflect the level of risk posed by a particular operation.
2.30
The statement sets out nine points to guide AMSA when addressing the need for regulation. These include that regulation—and its application—should be flexible enough to address the risks of a highly varied industry in order to support safety, innovation and business and environmental sustainability; that the regulatory scheme is 'performance-based, not prescriptive; and that the operator has the primary responsibility for ensuring the vessel is safe and operates safely'.
2.31
In 2018, a revised Statement of Regulatory Approach was produced by AMSA. It states that under the regulatory scheme AMSA would 'take a risk based and proportionate approach in determining where to focus legislative and compliance responses so that those who demonstrate a safety culture, and are compliant, are rewarded by reduced regulatory intervention'.
2.32
The 2018 Statement further noted that AMSA would be 'non-prescriptive where possible, leaving choice to those who bear the responsibility for the outcome'. The statement continues:
Prescriptive requirements can discourage the regulated community from looking at how they can best manage safety and environment protection, and can stifle innovation. In most cases, the person who is required to manage a risk is best placed to work out how to do that, and we will endeavour to help them do so. In some cases, however, a prescriptive approach is required and appropriate (particularly to give effect to international obligations).
Marine Orders
2.33
The National Law permits AMSA to introduce regulations by way of Marine Orders, which contain detailed requirements and processes to ensure that legislation keeps up to date with technical and operational advances in maritime safety. The Marine Orders numbered 500 to 507 apply specifically to DCVs.
2.34
In 2015, AMSA undertook a review of the operational safety requirements then made under Marine Order 504, and Part E of the NSCV (Part E related to vessel operation requirements, including headcounts). The intent was to reassess the regulatory approach specifically to operational requirements for DCVs and implement measures identified in the 2014 streamlining review.
2.35
The Marine Order review focused on a number of key proposed changes identified by AMSA with the aim of:
placing a greater focus on an outcomes-based approach to regulation of operational safety under the National Law;
incorporating NSCV Part E (that is, the national standards for operations), into a new Marine Order 504; and
simplifying operational requirements and clarifying linkages with safety management system requirements.
2.36
Under the proposed change, components for a documented safety management system (SMS) would be set out in detail in the new Marine Order 504. The new Marine Order 504 would require the SMS to address the matters previously dealt with in NSCV Part E.
2.37
As a consequence of its 2015 review, AMSA prepared Marine Order 504 (Certificates of Operation and Operational Requirements—National Law) 2018, which took effect on 1 July 2018.
2.38
As discussed in Chapter 3 of this report, Marine Order 504 was further amended on 28 February 2020 to incorporate the Marine Order 504 (Certificates of Operation and Operational Requirements—National Law) Amendment Order 2020 which specifically strengthens requirements around headcounts and managing situations where a passenger is unaccounted for. The amended Order commenced on 31 May 2020.
Marine Safety (Domestic Commercial Vessel) National Law (Consequential Amendments) Act 2012
2.39
The bill to enact the Marine Safety (Domestic Commercial Vessel) National Law (Consequential Amendments) Act 2012 was introduced to Parliament at the same time as the bill for the National Law. While this legislation has been enacted, Schedule 2 to the Consequential Amendments Act has not yet commenced.
2.40
The amendments contained in Schedule 2 relate to breaches of the general safety duties under the National Law. AMSA advises on its website that general safety duties:
…apply to everyone working on, travelling on, designing, building, or servicing domestic commercial vessels, including those under grandfathering arrangements. They are a legal requirement under the national law. General safety duties are in place to:
eliminate or minimise the risk of incidents involving death, injury or damage
encourage the development, maintenance, and continuous improvement of a safety culture within the domestic commercial vessel industry.
2.41
The Schedule to the Consequential Amendments Act proposed to repeal offence provisions arising from a failure to comply with the general duties of owners of DCVs, and to replace it with the following:
(1) A person commits an offence if:
(a) the person does an act, or omits to do an act, without reasonable excuse; and
(b) the act or omission contravenes section 12(1); and
(c) the act or omission exposes an individual to a risk of death or serious injury or illness; and
(d) the person is reckless as to the risk to an individual of death or serious injury or illness.
2.42
In addition, Schedule 2 amends the existing offense and penalties for breaches of the general safety duties under the National Law, and replaces them with provisions that mirror Part 2 of the Work Health and Safety Act 2011 (WHS Act).
2.43
When the bill to enact the Consequential Amendments Act was introduced, it was proposed that the amendments under Schedule 2 would commence when all jurisdictions had enacted Model WHS laws. In other words, despite the bill becoming law, the provisions contained in Schedule 2 remained outstanding, to take effect only when all jurisdictions had enacted the WHS legislation.
2.44
This is explained in the Explanatory Memorandum as follows:
Schedule 2 will take effect when all States and Territories give effect to, as a State or Territory law, the provisions contained in Part 2 of the WHS Act. The objective of this arrangement is to align the National Law general safety obligations and offences with the WHS duties and offences, once the WHS Act has been enacted nationally.
2.45
As of March 2013, seven jurisdictions with WHS laws had enacted the new, harmonised Work Health and Safety legislation. These jurisdictions included the Commonwealth, New South Wales, South Australia, Queensland, Tasmania, the Australian Capital Territory and the NT. In July 2017, the government of Western Australia announced that it would initiate the development of modernised health and safety laws for WA. However, as Victoria and WA have yet to enact the new legislation, the provisions in Schedule 2 have not taken effect. Therefore, amendments intended to align the National Law with WHS legislation, with similar offences and penalties, have not commenced.