In brief – New harmonised regime to apply national standards across shipping industry
The Navigation Act 2012 has substantially rewritten earlier legislation and granted inspectors additional powers to monitor compliance with the Act. The Marine Safety (Domestic Commercial Vessel) National Law Act 2012 has replaced eight separate regimes and will make it easier for ships to move around the country.
New legislation administered by Australian Maritime Safety Authority
After a number of false starts, the Navigation Act 2012 and the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (National Law) have now come into operation with effect from 1 July 2013.
This time last year, we saw the creation of an Australian International Shipping Register.
This latest suite of legislation rounds out the Commonwealth government's regulatory reform in the maritime sector which it started early in this current parliamentary session.
The Australian Maritime Safety Authority (AMSA) has been charged to administer both Acts, and will clearly have a busy time ahead in doing so.
Navigation Act 2012 enacts provisions of international conventions
As a brief reminder, there has been a substantial rewriting of the Navigation Act 1912, which was in force for over 100 years.
The new Navigation Act 2012 enacts provisions which arise from a number of international conventions which have been ratified by Australia, including the International Convention for the Safety of Life at Sea 1974 (SOLAS) and the International Convention for the Prevention of Pollution from Ships 1973 (MARPOL).
Which vessels will be subject to the Navigation Act 2012?
Those vessels which will be subject to substantive requirements of the Navigation Act 2012 are:
• foreign flagged vessels operating in Australian waters
• Australian (commercial/non recreational) vessels which go beyond Australia's exclusive economic zone (EEZ), operate entirely outside the EEZ or are for use on voyages outside the EEZ
• Australian vessels which maintain certification for unrestricted operations under the Navigation Act 2012
• other vessels which may "opt in" by applying to AMSA
If none of these four categories apply to the vessel in question, then the vessel will likely be subject to the Marine Safety (Domestic Commercial Vessel) National Law Act 2012. However, a recreational (non commercial) vessel will remain subject to state or territory law.
Inspectors to have power to issue increased financial penalties
Some of the more significant changes in the Navigation Act 2012 include to the definitions of terms used in the legislation such as "overseas voyage", "vessel", "seafarer", "owner" and "seaworthy".
Furthermore, there have been some enhanced provisions in the Navigation Act 2012 introducing tools for achieving compliance and enforcement. Inspectors appointed under the Act may board vessels at any time in order to monitor compliance.
If inspectors then find evidence of breach, their powers are extensive and will include increased financial penalties for non compliant vessels.
Transitional arrangements recognise existing certificates, exemptions and determinations
There are a number of transitional arrangements in place such that all existing certificates issued under the Navigation Act 1912 will be recognised under the Navigation Act 2012 (for example, seafarer certificates). The earlier certificates continue to be valid until they expire or are replaced.
Similarly, exemptions and determinations issued under Marine Orders prior to the commencement of the Navigation Act 2012 will continue to be recognised.
Marine Safety (Domestic Commercial Vessel) National Law Act 2012
The Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (National Law) is intended to improve safety and to apply nationally agreed standards clearly and consistently across the country.
The legislation applies to "domestic commercial vessels" being:
…vessels capable of being used in navigation by water, however propelled or moved, that is for use in connection with a commercial, governmental or research activity.
Importantly, the National Law does not include any vessel which is regulated by the Navigation Act 2012.
One National Law replaces eight individual regimes
One of the outcomes of the new legislation will be that it will be easier for seafarers and their vessels to work and move around the nation, under one set of national regulation (rather than the previous eight separate regimes).
Furthermore, the National Law will establish a National Standard for Commercial Vessels, create a system for the issue of national certificates and deliver a uniform approach to maritime safety requirements.
Each of the state and territory agencies will be responsible for the effective day-to-day operation of the National Law, under delegation from the national regulator, AMSA. More information about the National System for Commercial Vessel Safety can be found at a dedicated AMSA website.
We will bring you further updates about new developments as the Navigation Act 2012 and National Law are implemented across the shipping industry over the coming months.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.