Labor Senators support Recommendation 1 which recommends amendments be made to the National Law to penalise situations where actions on a vessel have the potential to lead to a loss of life. However we are concerned that this recommendation could lead to individual seafarers being made to be scapegoats for organisational problems.
We are concerned that the term “operator” has no definition in the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (the National Law). The National Law does contain the following definition of the term “owner”:
Owner of a vessel includes:
(a)
a person who has a legal or beneficial interest in the vessel, other than as a mortgagee; and
(b)
a person with overall general control and management of the vessel.
For this purpose, a person is not taken to have overall general control and management of a vessel merely because he or she is the master or pilot of the vessel.
It is the very strong view of Labor Senators that Recommendation 1 must refer to the “owner” of the vessel to be in keeping with the National Law and provide clarity about lines of responsibility.
With regard to the grandfathered requirements, not all grandfathering was ended on 1 July 2018. Crewing requirements for the number of crew working on board and survey standards for the physical safety of the vessel continue to be grandfathered.
Under Marine Order 503, which stipulate the survey standards for the physical safety of the vessel, Labor Senators are of the view that these arrangements should be phased out as soon as possible. In line with the Coroner's recommendation of 2018, the survey requirements should be phased out in a way that ensures all vessels comply with modern safety standards as soon as possible.
In considering Marine Order 504, Labor Senators hold serious concerns that crews on existing vessels may not be of a sufficient number to properly address the safety risks on board, and to risks to the environment or those around the vessel. The fact that an existing vessel does not have to comply with the minimum crewing requirements in the Order suggests that these vessels are not implementing the current safety standards of the National Law.
Labor Senators encourage the use of a vessel's SMS to ensure there are sufficient crew members on board to address the operational and safety requirements of the operation. The committee suggests that an additional crew member on board the Ten‑Sixty‑Six may have allowed for better monitoring of passenger numbers, and thus averted the tragedy which occurred.
Labor Senators also propose that in the event that specific or general exemptions are required to a Marine Order, these should only be issued based on the risk to passengers and crew, the vessel and the environment, rather than based on the cost to the operator of complying with modern safety standards.
As this report has highlighted, there is a real need to improve the marine safety legislative framework, and ensure all vessels are operating as safely as possible. In the light of this and the above views, Labor Senators make the following amendments to Recommendation 1 in the report, and add two additional recommendations:
Recommendation
The committee recommends that amendments be made to the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (the National Law) in regards to the penalties imposed on an owner of a vessel for acting in a reckless or negligent manner, regardless of intent. In particular, the committee recommends that consideration should be given to situations where the owner of a vessel has been found to be acting in a negligent or reckless manner which has the potential to result in the loss of life.
Recommendation
The committee recommends that Australian Maritime Safety Authority amend Marine Order 503 (Certificates of survey – national law) 2018 in order to phase out grandfathered survey requirements and to ensure that all domestic commercial vessels comply with modern safety standards as soon as possible.
Recommendation
The committee recommends that Australian Maritime Safety Authority amend Marine Order 504 (Certificates of operation and operation requirements – national law) 2018 as soon as possible in order to cease grandfathered crewing arrangements.
Labor Senators support the recommended independent review of the National Law. We recommend that the proposed review must also consider AMSA’s implementation of the Act. The proposed review should also include consideration of whether the legislation provides clear and simple standards to improve marine safety on domestic commercial vessels, and how it relates to other maritime and workplace safety legislation, including the international maritime safety conventions.
Senator Glenn Sterle
Deputy Chair
Senator Nita Green
Member