Transport Legislation Amendment (Marine Safety and Other Amendments) Bill 2011
Introduction Print
EXPLANATORY MEMORANDUM
571034
BILL LA INTRODUCTION 7/11/2011
General
The broad purpose of the Transport Legislation Amendment (Marine Safety and Other Amendments) Bill 2011 is to make improvements to the regulatory framework for marine safety and ports in Victoria.
The Bill makes miscellaneous amendments to the Marine Safety Act 2010, the Marine Act 1988, the Port Management Act 1995 and the Transport Integration Act 2010.
The Bill broadly aims to promote marine safety by making a number of changes to the Marine Safety Act 2010 to facilitate the operation of that Act. Some of the more significant adjustments made by the Bill to that Act include—
· ensuring that operators of hire and drive vessels are covered by the same statutory duty of care as operators of recreational vessels;
· allowing Victoria to recognise marine licences and certificates issued by international authorities which are recognised by the Commonwealth; and
· facilitating better renewal procedures for marine licences and permissions.
The Bill also clarifies responsibilities and cost recovery provisions for marine pollution functions.
The Bill extends the scope of the hoon boating scheme so that the sanctions of embargo, impoundment and forfeiture apply to a broader range of antisocial offences, including the active pursuit of marine wildlife.
The Bill also facilitates more efficient management and operation at Victoria's ports by—
· repealing the Victorian Channels Access Regime, which has never been used;
· removing the power of the Essential Services Commission to invoke highly prescriptive ports regulation;
· narrowing the scope of port services regulated by the Essential Services Commission; and
· repealing the three year sunset clause on the regulation of towage operations at the Port of Melbourne.
The Bill also makes amendments which align the regulatory framework for the issuing of marine and marine (drug and alcohol) infringement notices with the framework for other transport infringement schemes under the Transport (Compliance and Miscellaneous) Act 1983.
In addition, the Bill makes a number of minor, miscellaneous or machinery amendments.
Clause Notes
PART 1—PRELIMINARY
Clause 1 sets out the main purposes of the Bill which are—
· to further provide for safe marine operations by amending the Marine Safety Act 2010 and the Marine Act 1988 (to be renamed the Marine (Drug and Alcohol and Pollution) Act 1988 upon the commencement of the Marine Safety Act 2010); and
· to provide for management of Victorian ports by amending the Port Management Act 1995; and
· to amend the Marine Safety Act 2010 to enable the enforcement of offences against the Marine Safety Act 2010, the Marine Act 1988 and the Port Management Act 1995 by infringement notice by amending the Transport (Compliance and Miscellaneous) Act 1983; and
· to make consequential amendments to the Transport Integration Act 2010.
Clause 2 deals with commencement and provides that the Bill comes into operation on a day or days to be proclaimed. The clause further provides that if a provision in the Bill has not come into operation before 1 October 2012, it comes into operation on that day.
PART 3—AMENDMENT OF MARINE SAFETY ACT 2010
Clause 3 Subclause (1) makes amendments to the definitions section in section 3(1) of the Marine Safety Act 2010.
Clause 3(1)(a) inserts a definition of accreditation in section 3(1) of the Marine Safety Act 2010 to provide that accreditation means an accreditation granted under section 271F of the Marine Safety Act 2010. New section 271F is inserted by the Bill in clause 28.
Clause 3(1)(b) inserts the words "or a certificate or other authority recognised by the Safety Director, in accordance with the regulations, as an equivalent to a certificate issued under section 78", at the end of the definition of certificate of competency. This enables certificates issued by other Australian jurisdictions and international authorities recognised in accordance with the regulations to be treated as equivalent to certificates issued under section 78 of the Marine Safety Act 2010.
Clause 3(1)(c) repeals the definition of marine infringement. The definition is no longer needed because Part 4.4 of the Marine Safety Act 2010 is being repealed. Marine infringements will instead be enforced using the infringements scheme established under the Transport (Compliance and Miscellaneous) Act 1983. This will be achieved by including "marine or port law" in the definition of transport safety infringement law in section 228S(1) of the latter Act. The term "marine or port law" is defined to include offences against the Marine Safety Act 2010, the Marine (Drug and Alcohol and Pollution Control) Act 1988, the Port Management Act 1995 and regulations made under those Acts.
Clause 3(1)(d) inserts the words "or a certificate or other authority recognised by the Safety Director, in accordance with the regulations, as an equivalent to a certificate issued under section 65" at the end of the definition of safe construction certificate. This enables certificates issued by other Australian jurisdictions and those issued to international operators by classification societies recognised in accordance with the regulations to be treated as equivalent to those certificates issued under section 65 of the Marine Safety Act 2010.
The term "Classification Society" is defined in clause 42(9) of theBill as "a member of the International Association of Classification Societies recognised by the Australian Maritime Safety Authority".
Clause 3(1)(e) inserts the words "or a certificate or other authority recognised by the Safety Director, in accordance with the regulations, as an equivalent to a certificate issued under section 70" at the end of the definition of safe operation certificate. This enables certificates issued by other Australian jurisdictions and those issued to international operators by classification societies to be taken to be equivalent to those certificates issued under section 70 of the Marine Safety Act 2010.
Clause 3(2)(a) provides a new definition of permission which inserts "any endorsement on a marine licence" and "any endorsement on a certificate of competency" as separate and distinct classes of permission. The current definition does not include endorsements as separate and distinct permissions. Thenew definition of permission also inserts an accreditation. An accreditation is a new class of permission that is being inserted in the Marine Safety Act 2010 (new sections 271A to271F) by clause 28 of the Bill.
Clause 3(2)(b) inserts new paragraph (ea) into the definition of vessel to provide that the definition includes a thing prescribed to be a vessel.
Clause 4 amends the heading of Part 2.5 of the Marine Safety Act 2010 to insert the words "AND HIRE AND DRIVE VESSEL" to reflect that this Part now applies to the masters and operators of these vessels.
Part 2.5 places duties on masters and other persons involved in the operation of recreational vessels. Hire and drive vessels are not defined to be recreational vessels and accordingly are not subject to the general safety duties which apply in respect of the operation of those vessels. The amendments make it clear that safety duties apply to the masters and operators of hire and drive vessels. Hire and drive vessels are essentially equivalent to recreational vessels in terms of use but are commercially owned.
Clause 5 Subclause (1) amends the heading to section 31 of the Marine Safety Act 2010 to insert the words "or hire and drive vessels".
Clause 5(2) amends section 31 of the Marine Safety Act 2010 to insert the words "or hire and drive vessel" after "recreational vessel" wherever these words occur, to clarify that section 31 now also applies to the masters and operators of those vessels.
Clause 6 Subclause (1) amends the heading to section 32 of the Marine Safety Act 2010 to insert the words "or hire and drive vessels".
Clause 6(2) amends section 32 of the Marine Safety Act 2010 to insert the words "or hire and drive vessel" after "recreational vessel" wherever these words occur, to clarify that section 32 now also applies to the masters and operators of those vessels.
Clause 7 inserts new paragraph (d) into section 43(1) of the Marine Safety Act 2010 to provide that the Safety Director may cancel or suspend registration of a vessel if the vessel has been exempted from registration by the regulations. The effect is to ensure that a commercially operated vessel is not registered as a recreational vessel.
Clause 8 amends the heading of Part 3.2 of the Marine Safety Act 2010 to insert the words "AND HIRE AND DRIVE VESSELS" to reflect that this Part now applies to these vessels. This clause and clauses 9-10 clarify that a licence holder is authorised to be the master of a recreational vessel and a regulated hire and drive vessel.
Clause 9 Subclause (1) amends section 53(1)(c) of the Marine Safety Act 2010 to provide that the Safety Director may impose conditions on a marine licence and vary those conditions.
Clause 9(2) amends section 53(2)(a)(i) of the Marine Safety Act 2010 to provide that if the Safety Director requires an applicant for a general licence to undertake any training about the operation of recreational vessels, the training must be of a prescribed type.
Clause 9(3) amends section 53(3) of the Marine Safety Act 2010 to omit the word "recreational", so that a general marine licence authorises the holder to be the master of a vessel to which the licence applies.
Clause 10 Subclause (1) amends section 54(1)(c) of the Marine Safety Act 2010 to provide that the Safety Director may impose conditions on a marine licence and vary those conditions.
Clause 10(2) amends section 54(2)(a)(i) of the Marine Safety Act 2010 to provide that if the Safety Director requires an applicant for a restricted marine licence to undertake any training about the operation of recreational vessels, the training must be of a prescribed type.
Clause 10(3) amends section 54(3) of the Marine Safety Act 2010 to omit the word "recreational", so that a restricted marine licence authorises the holder to be the master of a vessel to which the licence applies.
Clause 11 amends section 55(a)(ii) of the Marine Safety Act 2010 to clarify that if the Safety Director requires an applicant for an endorsement of a marine licence to undertake training about the operation of recreational vessels, the training must be of a prescribed type.
Clause 12 substitutes the penalty provision at the foot of section 62(2) of the Marine Safety Act 2010, which currently provides a penalty for a natural person and a body corporate, with a single penalty provision. The offence applies to a natural person only and accordingly there is no need to set a penalty for a body corporate. The penalty for a natural person is unchanged.
Clause 13 amends section 64(1) of the Marine Safety Act 2010 to provide that in accordance with the regulations, a person may apply to theSafety Director for a safe construction certificate for a commercially operated vessel or a fleet of commercially operated vessels. Section 64(1) currently refers to an "owner" rather than a "person" which restricts the capacity of persons other than owners, such as prospective purchasers of vessels, to apply for certification.
Clause 14 is consequential on clause 13 and amends section 65(1) of the Marine Safety Act 2010 to provide that if a person has made an application under section 64, the Safety Director may issue the person with a safe construction certificate for a commercially operated vessel or fleet of commercially operated vessels.
Clause 15 substitutes the penalty provision at the foot of section 67(2) of the Marine Safety Act 2010, which currently provides a penalty for a natural person and a body corporate, with a single penalty provision. The offence applies to a natural person only and accordingly there is no need to set a penalty for a body corporate. The penalty for a natural person is unchanged.
Clause 16 substitutes section 69(1) and (2) of the Marine Safety Act 2010 which provide for applications for safe operation certificates. The current provisions refer to an "owner" rather than a "person" which restricts the capacity of persons other than owners, such as prospective purchasers of vessels, to apply for certification.
Section 69(1) provides that in accordance with the regulations, a person may apply to the Safety Director for a safe operation certificate for a commercially operated vessel or a fleet of commercially operated vessels.
Section 69(2) provides that a person may apply for approval to use a commercially operated vessel or a fleet of commercially operated vessels for recreational purposes if—
· the person has applied for a safe operation certificate; or
· the person has been issued with a safe operation certificate.
An application for approval must be made in accordance with the regulations.
Clause 17 Subclause (1) is consequential on clause 16 and substitutes section 70(1) and (2) of the Marine Safety Act 2010 which provides for the issue of a safe operation certificate by the Safety Director.
Section 70(1) provides that the Safety Director may issue a safe operation certificate in respect of a commercially operated vessel or fleet of commercially operated vessels to a person who has made an application under section 69.