Marine (Domestic Commercial Vessel National Law Application) Bill 2013
Introduction Print
EXPLANATORY MEMORANDUM
571271
BILL LA INTRODUCTION 7/5/2013
General
The primary purpose of the Marine (Domestic Commercial Vessel National Law Application) Bill 2013 is to adopt in Victoria a national approach to the regulation of commercial vessels by—
· applying the Commonwealth domestic commercial vessel national law as a law of Victoria; and
· making provision to enable the Commonwealth law and the applied law of Victoria to be administered on a uniform basis by the Commonwealth (and by Victorian officials as delegates of the Commonwealth) as if they constituted a single law of the Commonwealth.
The Bill also—
· repeals provisions of the Marine Safety Act 2010 which are no longer required; and
· makes consequential amendments to affected Victorian statutes.
The Bill forms part of a scheme for the national regulation of commercial vessels, including the establishment of a national marine regulator, in accordance with the State's intergovernmental obligations.
Together with the Commonwealth domestic commercial vessel national law, the Bill makes the most significant changes since settlement to the way small commercial craft are regulated in Victoria. The Bill does this by facilitating an historic shift in responsibility from States and Territories to the Commonwealth.
Commonwealth and State division of responsibility for vessels
Regulatory control of all commercial vessels in Australian waters, including certification of vessels and their crew and controls on equipment and operations, was originally the responsibility of colonial governments and later became the province of states and territories following federation in 1901.
These responsibilities changed in the early part of the twentieth century with the establishment of a national marine statute—the Navigation Act 1912 of the Commonwealth—which gave the Commonwealth control of commercial vessels on overseas or interstate voyages, effectively the largest vessels on our waters.
From that point the Commonwealth regulated three different types of commercial vessel types. These are trading vessels on overseas and interstate voyages, fishing vessels on overseas voyages and offshore drilling rigs and similar structures. The trading vessels are generally the largest operating in Australian waters and include large container and passenger ships.
The State and Territories, on the other hand, currently have legislative responsibility for trading vessels on intrastate voyages, fishing vessels on intrastate and interstate voyages and all hire and drive vessels operating in State and Territory waters.
In addition, States and Territory marine safety legislation (such as the Marine Safety Act 2010) regulates vessel operations for all commercial vessels in State waters. This regulation includes—
· local waterway rules; and
· drug and alcohol controls; and
· rules dictating when pilots are required to assist with vessel movements; and
· harbour masters' powers to direct commercial vessels in ports.
This regulatory arrangement has evolved over time. Some harmonisation of regulatory practices in the marine sector across Australia has taken place through the introduction of national standards and the work of the former Australian Transport Council and the current Standing Council on Transport and Infrastructure.
However, there have been concerns raised by some jurisdictions and stakeholders that the jurisdiction-based nature of land and water transport regulation has impeded national efficiency and held back improvements in regulatory outcomes. This was seen as particularly the case for stakeholders in the commercial vessel sector, especially boat designers and builders and those who have an interest in moving their intrastate operations to another jurisdiction.
The national marine scheme
These concerns led to the development of a national scheme for commercial vessels ("the national scheme"). The national scheme is part of the Council of Australian Governments ("COAG") agenda which seeks to improve national economic outcomes.
Under the national scheme, the Commonwealth assumes responsibility for the regulation of commercial vessels currently regulated by States and Territories. The Australian Maritime Safety Authority ("AMSA") becomes the regulator ("National Regulator") for all commercial vessels in Australian coastal and inland waters.
An intergovernmental agreement to this effect was signed on 19 August 2011.
Victoria currently has around 1465 domestic commercial vessels operating on State waters. The vessels vary widely in nature and purpose and include fishing craft, passenger and trading boats, houseboats and a wide range of other small and medium sized vessels. Many of the vessels are operated by their owners while others are hired to members of the public.
The national proposal is structured predominantly as a Commonwealth scheme. The Commonwealth has enacted the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 to provide the platform for the scheme and establish the National Regulator.
Under the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of the Commonwealth, the Commonwealth takes responsibility for the regulation of commercial vessels to the extent possible under the Commonwealth's constitutional powers. This amounts to control of over 90% of Victoria's commercial vessel fleet. However, the Commonwealth does not have the power to regulate all Victorian commercial vessels, particularly those that are not owned by constitutional corporations and which operate on inland waters in Victoria.
Retaining a separate State-based regulatory regime for a small percentage of the commercial vessel fleet sector is not tenable. State legislation is therefore needed to give the National Regulator responsibility for the regulation of those Victorian regulated vessels that the Commonwealth cannot otherwise regulate under its own powers.
Accordingly, clause 4 of the Bill applies the Commonwealth domestic commercial vessel national law as a law of Victoria ("the applied provisions"). The Bill contains a number of provisions to ensure the applied provisions are applied in the same way as the Commonwealth domestic commercial vessel national law.
The Bill also amends Victoria's Marine Safety Act 2010 and other affected local statutes.
The Bill contains transitional arrangements that help the commercial marine industry move to the national scheme so that persons and vessels operating under current State or Territory legislation can continue operations when the national scheme commences.
Matters remaining under local regulation
The Commonwealth domestic commercial vessel national law has been heavily influenced by Victoria's marine safety laws, particularly, the Marine Safety Act 2010, and adopts many of the key features of the Victorian law such as safety duties, certification of safe operations and most of the compliance and enforcement powers and sanctions.
The Commonwealth domestic commercial vessel national law does not fully replace existing State and Territory laws. The Marine Safety Act 2010, for example, continues to apply to aspects of commercial vessel operations across the State. The key aspects that remain regulated by the Marine Safety Act 2010 are—
· local waterway rules (Part 5.5); and
· harbour masters powers to direct commercial vessels in ports (Chapter 6); and
· rules dictating when pilots are required to assist with vessel movements (Chapter 7).
Drug and alcohol controls also continue to apply under the Marine (Drug, Alcohol and Pollution Control) Act 1988.
The national law preserves the operation of important State laws which regulate occupational health and safety. This enables the oversight of WorkSafe to continue in workplaces in our commercial marine sector.
The national scheme does not envisage AMSA having a substantial day to day role in administering the scheme. Instead, the intergovernmental agreement provides that AMSA will delegate all or most of its new powers back to existing State and Territory regulators who will administer the framework on the ground.
General
The Bill applies, as a law of Victoria, the "Commonwealth domestic commercial vessel national law", meaning—
· the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth (being the provisions applying as a law of the Commonwealth because of section 4 of the Commonwealth Act); and
· the regulations and other legislative instruments in force under that Law, and
· any other provision of a Commonwealth Act, or of a regulation or other legislative instrument in force under a Commonwealth Act, that is of a savings or transitional nature consequent on the enactment or amendment of that Law.
The Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth ("the National Law (Cth)") is set out in Schedule 1 to the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of the Commonwealth. That Act was passed by the Commonwealth Parliament on23 August 2012 and received the Royal Assent on 12 September 2012. The Act and the explanatory memorandum for the Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 are reproduced in Annexure 1 tothe Bill. The Commonwealth domestic commercial vessel national law establishes the national scheme for the regulation of domestic commercial vessels and appoints AMSA as the National Regulator for all commercial vessels in Australian coastal and inland waters. The Director, Transport Safety Victoria ("the Safety Director") will be responsible for administration of the national scheme in Victoria under delegation from AMSA, consistent with the intergovernmental agreement, and provisions are included in the Bill to facilitate this.
The Commonwealth domestic commercial vessel national law and the applied provisions together form the Marine Safety (Domestic Commercial Vessel) National Law for the purposes of regulation of domestic commercial vessels in Victoria.
Model application law
The Bill was prepared following the model for applying the Marine Safety (Domestic Commercial Vessel) National Law developed by the joint Parliamentary Counsel's Committee. The intention of the model Bill is to provide a consistent basis for State and Territory application statutes.
Victorian variations
The model Bill is supplemented by provisions necessary to accommodate the regulatory position in Victoria. These provisions include clarifying that the Victorian Charter of Human Rights and Responsibilities Act 2006 applies to the Safety Director and Victorian officials when acting as delegates of the National Regulator.
The variations also make consequential amendments to affected Victorian statutes.
The Director, Transport Safety Victoria (and Transport Safety Victoria)
The Safety Director is a statutory office created under Part 7 of the Transport Integration Act 2010.
The Safety Director is charged with the independent safety regulation of rail, bus and marine transport in Victoria. The object of the Safety Director is to independently seek the highest transport safety standards that are reasonably practicable and consistent with the vision statement and the transport system objectives as set out in section 172 of the Transport Integration Act 2010.
Section 11 of the National Law (Cth) allows the National Regulator to delegate certain powers and functions to an officer or employee of a Commonwealth agency, or an officer or employee of a State or Territory agency, with the consent of the relevant State or Territory.
In Victoria, the Safety Director will assume responsibility for day to day administration of the Marine Safety (Domestic Commercial Vessel) National Law in accordance with the intergovernmental agreement and will use officers of the Department of Transport. The relevant area is known as Transport Safety Victoria.
Delegations of powers and functions by the National Regulator must be in writing.
The Bill amends the Transport Integration Act 2010 to enable the Safety Director to accept delegations from the National Regulator.
Clause 20 of the Bill provides, among other things, that the Safety Director is authorised to be a delegate for the purposes of the Marine Safety (Domestic Commercial Vessel) National Law if authorised by the relevant Minister (theMinister for Ports).
Clause 20 further provides that the Minister can only make such an authorisation if satisfied that there are sufficient arrangements in place and resources available to enable the Safety Director to carry out functions and powers delegated by the National Regulator. In making that determination, the Minister would place reliance on the existence of an agreement for the provision of services signed by the National Regulator, the local regulator and the Minister.
Clause 93 makes it clear, for the avoidance of doubt, that the Safety Director is an officer of an agency within the meaning of section 11 of the National Law (Cth).
The functions likely to be delegated to the Safety Director include the assessment of applications for various certifications, issuing of certificates and the conduct of on the ground compliance monitoring and enforcement activities.
Fees and charges
It is intended that the Bill form a component of a nationally consistent cooperative scheme across Australia for the regulation of commercial vessels by AMSA.
Each jurisdiction committed to using best endeavours to adopt the national law and to making other changes so that the Marine Safety (Domestic Commercial Vessel) National Law applies as intended from commencement.
Paragraph 50(f) of the intergovernmental agreement states that the National Regulator will not provide reimbursement to States and Territories for services carried out on behalf of the National Regulator.
Accordingly, States and Territories must put in place fees charging mechanisms to recover the costs incurred when delivering functions on behalf of the National Regulator.
The Bill includes the required fees in the Bill which currently apply under the Marine Safety Regulations 2012 in Victoria for services provided by the Safety Director on behalf of the National Regulator.
The fees set out in the Bill ensure that costs incurred by the Safety Director can be recovered as soon as the Marine Safety (Domestic Commercial Vessel) National Law commences.
The fees in the Bill are the same as currently apply under the Marine Safety Act 2010. The Bill provides that the fees apply in Victoria until cost recovery levels are reviewed and new fee regulations can be made in accordance with the requirements of the Subordinate Legislation Act 1994.
Strict liability offences
Strict liability offences arise in a regulatory context where the sanction of a criminal penalty is justified on the grounds of public safety and the public interest in ensuring compliance with a regulatory regime.
Strict liability offences are also considered appropriate where because of his or her professional involvement in a particular sector, a person can reasonably be expected to know the requirements of the law governing that sector. It is generally accepted that excluding the mental or fault element of an offence in this context is justified.
The rationale for this is that persons who owe general safety duties such as employers, people in control of aspects of work and designers and manufacturers of work structures and products are expected to be aware of their duties and obligations to workers and the general public.