Marine (Domestic Commercial Vessel National Law Application) Act 2013 (Vic)

Version No. 005

Marine (Domestic Commercial Vessel National Law Application) Act 2013

No. 36 of 2013

Version incorporating amendments as at

22 October 2025

TABLE OF PROVISIONS

Section  Page

Part 1—Preliminary

1Purpose

2Commencement

3Definitions

Part 2—The applied provisions

4Application of Commonwealth laws as laws of Victoria

5Interpretation of Commonwealth domestic commercial vessel national law

Part 3—Functions and powers under applied provisions

6Functions and powers of National Regulator and other authorities and officers

7Delegations by the National Regulator

Part 4—Offences

8Object of this Part

9Application of Commonwealth criminal laws to offences against applied provisions

10Functions and powers conferred on Commonwealth officers and authorities relating to offences

11No double jeopardy for offences against applied provisions

Part 5—Administrative laws

12Application of Commonwealth administrative laws to applied provisions

13Functions and powers conferred on Commonwealth officers and authorities

Part 6—Fees and fines

14Fees payable to officers or employees of Victoria acting as delegates

15Infringement notice fines

16Fines, fees etc not otherwise payable to Victoria

Part 7—Application of Charter Act

17Charter of Human Rights and Responsibilities Act 2006

Part 8—Miscellaneous

18Things done for multiple purposes

19Reference in Commonwealth law to a provision of another law

20Authority to accept delegation of functions

21Victorian regulations

Part 9—Transitional provisions

Schedule

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Endnotes

1      General information

2      Table of Amendments

3      Explanatory details

Annexure 1

Annexure 2

Annexure 3

Version No. 005

Marine (Domestic Commercial Vessel National Law Application) Act 2013

No. 36 of 2013

Version incorporating amendments as at

22 October 2025

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1Purpose

(1)The purpose of this Act is to adopt in Victoria a national approach to the regulation of marine safety in relation to domestic commercial vessels (the domestic commercial vessel national law).

(2)Accordingly, this Act—

(a)applies the Commonwealth domestic commercial vessel national law as a law of Victoria; and

(b)makes provision to enable the Commonwealth domestic commercial vessel national 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.

Note

A number of aspects of the regulation of domestic commercial vessels are dealt with under the Marine Safety Act 2010 and the Marine (Drug, Alcohol and Pollution Control) Act 1988 and other Victorian Acts. These include matters relating to pilotage, harbour masters, the management of waterways and control of the use of alcohol and other drugs by masters and crew of domestic commercial vessels.

2Commencement

This Act comes into operation on a day to be proclaimed.

3Definitions

(1)In this Act—

applied provisions means the Commonwealth domestic commercial vessel national law that applies as a law of Victoria because of section 4;

Commonwealth administrative laws means the following Commonwealth Acts, regulations or other legislative instruments—

(a)the Administrative Review Tribunal Act 2024 (excluding Part 7);

(b)the Freedom of Information Act 1982;

(c)the Ombudsman Act 1976;

(d)the Privacy Act 1988;

(e)the regulations and other legislative instruments in force under any of those Acts;

Commonwealth domestic commercial vessel national law means the following Commonwealth Acts, regulations or other legislative instruments—

(a)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 Marine Safety (Domestic Commercial Vessel) National Law Act 2012);

(b)the regulations and other legislative instruments in force under that Law;

(c)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.

(2)Terms used in this Act and also in the Commonwealth domestic commercial vessel national law have the same meanings in this Act as they have in that law.

(3)In this Act, a reference to a Commonwealth Act includes a reference to—

(a)that Commonwealth Act, as amended and in force for the time being; and

(b)an Act enacted in substitution for that Act and, if it is amended, as amended and in force for the time being.

PART 2—THE APPLIED PROVISIONS

4Application of Commonwealth laws as laws of Victoria

(1)The Commonwealth domestic commercial vessel national law, as in force from time to time, applies as a law of Victoria.

(2)The Commonwealth domestic commercial vessel national law so applies as if it extended to matters in relation to which Victoria may make laws—

(a)whether or not the Commonwealth may make laws in relation to those matters; and

(b)even though the Commonwealth domestic commercial vessel national law provides that it applies only to specified matters with respect to which the Commonwealth may make laws.

(3)Subsection (2) does not operate to exclude a law of Victoria relating to marine safety that would not otherwise be excluded by the Commonwealth domestic commercial vessel national law.

(4)The regulations made under this Act may provide that the Commonwealth domestic commercial vessel national law applies under this section as if an amendment to that law—

(a)made by a law of the Commonwealth; and

(b)specified in the regulations made under this Act—

had not taken effect.

5Interpretation of Commonwealth domestic commercial vessel national law

(1)The Acts Interpretation Act 1901 of the Commonwealth applies as a law of Victoria in relation to the interpretation of the applied provisions, and so applies as if the applied provisions were a Commonwealth Act or were regulations or other legislative instruments under a Commonwealth Act, as the case requires.

(2)The Interpretation of Legislation Act 1984 does not apply to the applied provisions.

PART 3—FUNCTIONS AND POWERS UNDER APPLIED PROVISIONS

6Functions and powers of National Regulator and other authorities and officers

The National Regulator and other authorities and officers referred to in the applied provisions have the same functions and powers under the applied provisions as they have under the Commonwealth domestic commercial vessel national law, as that law applies to the Commonwealth.

7Delegations by the National Regulator

Any delegation by the National Regulator under the Commonwealth domestic commercial vessel national law, as that law applies to the Commonwealth, is taken to extend to, and have effect for the purposes of, the corresponding provision of the applied provisions.

PART 4—OFFENCES

8Object of this Part

(1)The object of this Part is to further the purpose of this Act by providing for an offence against the applied provisions to be treated as if it were an offence against a law of the Commonwealth.

(2)The purposes for which an offence is to be treated as mentioned in subsection (1) are—

(a)the investigation and prosecution of offences; and

(b)the arrest, custody, bail, trial and conviction of offenders or persons charged with offences; and

(c)proceedings relating to a matter referred to in paragraph (a) or (b); and

(d)appeals and reviews relating to criminal proceedings and to proceedings of the kind referred to in paragraph (c); and

(e)the sentencing, punishment and release of persons convicted of offences; and

(f)fines, penalties and forfeitures; and

(g)infringement notices in connection with offences; and

(h)liability to make reparation in connection with offences; and

(i)proceeds of crime; and

(j)spent convictions.

(3)For the purposes of this Part, offences include contraventions for which a civil penalty may be imposed.

9Application of Commonwealth criminal laws to offences against applied provisions

(1)The relevant Commonwealth laws apply as laws of Victoria in relation to an offence against the applied provisions as if those provisions were a law of the Commonwealth and not a law of Victoria.

(2)For the purposes of a law of Victoria, an offence against the applied provisions—

(a)is taken to be an offence against the laws of the Commonwealth, in the same way as if those provisions were a law of the Commonwealth; and

(b)is taken not to be an offence against the laws of Victoria.

(3)Subsection (2) has effect for the purposes of a law of Victoria except as provided by the regulations made under this Act.

(4)In this section—

relevant Commonwealth law means a law relating to a purpose set out in section 8(2).

10Functions and powers conferred on Commonwealth officers and authorities relating to offences

(1)A Commonwealth law applying because of section 9 that confers on a Commonwealth officer or authority a function or power in relation to an offence against the Commonwealth domestic commercial vessel national law also confers on the officer or authority the same function or power in relation to an offence against the corresponding provision of the applied provisions.

(2)In performing a function or exercising a power conferred by this section, the Commonwealth officer or authority must act as nearly as practicable as the officer or authority would act in performing or exercising the same function or power in relation to an offence against the corresponding provision of the Commonwealth domestic commercial vessel national law.

11No double jeopardy for offences against applied provisions

If—

(a)an act or omission is an offence against both the applied provisions and an offence against the Commonwealth domestic commercial vessel national law; and

(b)the offender has been punished for that offence under the Commonwealth domestic commercial vessel national law—

the offender is not liable to be punished for the offence under the applied provisions.

PART 5—ADMINISTRATIVE LAWS

12Application of Commonwealth administrative laws to applied provisions

(1)The Commonwealth administrative laws apply as laws of Victoria to any matter arising in relation to the applied provisions as if those provisions were a law of the Commonwealth and not a law of Victoria.

(2)For the purposes of a law of Victoria, a matter arising in relation to the applied provisions—

(a)is taken to be a matter arising in relation to laws of the Commonwealth in the same way as if those provisions were a law of the Commonwealth; and

(b)is taken not to be a matter arising in relation to laws of Victoria.

(3)Subsection (2) has effect for the purposes of a law of Victoria except as provided by Part 7 and the regulations made under this Act.

(4)Any provision of a Commonwealth administrative law applying because of this section that purports to confer jurisdiction on a federal court is taken not to have that effect.

(5)For the purposes of this section, a reference in a provision of the Administrative Review Tribunal Act 2024 of the Commonwealth (as that provision applies as a law of this jurisdiction) to the whole or any part of Part 7 of that Act is taken to be a reference to the whole or any part of that Part as it has effect as a law of the Commonwealth.

13Functions and powers conferred on Commonwealth officers and authorities

(1)A Commonwealth administrative law applying because of section 12 that confers on a Commonwealth officer or authority a function or power also confers on the officer or authority the same function or power in relation to a matter arising in relation to the applied provisions.

(2)In performing a function or exercising a power conferred by this section, the Commonwealth officer or authority must act as nearly as practicable as the officer or authority would act in performing or exercising the same function or power under the Commonwealth administrative law.

PART 6—FEES AND FINES

14Fees payable to officers or employees of Victoria acting as delegates

(1)Regulations may be made under this Act for or with respect to fees payable to Victoria in relation to anything done under the Commonwealth domestic commercial vessel national law (as that law applies as a law of the Commonwealth), or under the applied provisions, by a delegate of the National Regulator, or an accredited person, who is an officer or employee of, or engaged by, Victoria or an agency of Victoria.

(2)Without limiting subsection (1), until regulations are made under that subsection, the fees payable in the circumstances described in subsection (1) are the fees specified in the Schedule.

15Infringement notice fines

(1)Any amount paid to Victoria by the National Regulator under section 10 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of the Commonwealth in relation to an infringement notice is payable into the Consolidated Fund.

(2)Any amount payable by Victoria under section 10(2) of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of the Commonwealth in relation to an infringement notice is payable out of the Consolidated Fund.

16Fines, fees etc not otherwise payable to Victoria

(1)All fees, penalties, fines and other money that, under the applied provisions, are authorised or directed to be payable by or imposed on any person (but not including an amount ordered to be refunded to another person) must be paid to the Commonwealth.

(2)Subsection (1) does not apply to any fees referred to in section 14.

PART 7—APPLICATION OF CHARTER ACT

17Charter of Human Rights and Responsibilities Act 2006

(1)Without limiting section 4 of the Charter of Human Rights and Responsibilities Act 2006, the following persons are public authorities for the purposes of that Act when exercising powers or functions delegated under the applied provisions or the Commonwealth domestic commercial vessel national law, or powers delegated under the Australian Maritime Safety Authority Act 1990 of the Commonwealth—

(a)the Chief Executive of Safe Transport Victoria appointed under section 115H of the Transport Integration Act 2010;

(b)a transport safety officer within the meaning of section 2(1) of the Transport (Compliance and Miscellaneous) Act 1983 who is a public official within the meaning of the Public Administration Act 2004;

(c)a person employed under Part 3 of the Public Administration Act 2004.

(2)Without limiting section 4 of the Charter of Human Rights and Responsibilities Act 2006, a public official within the meaning of the Public Administration Act 2004 who is appointed as a marine safety inspector under the applied provisions or the Commonwealth domestic commercial vessel national law is a public authority for the purposes of the Charter of Human Rights and Responsibilities Act 2006 when exercising functions and powers under the applied provisions or the Commonwealth domestic commercial vessel national law.

PART 8—MISCELLANEOUS

18Things done for multiple purposes

The validity of a licence, certificate or other thing issued, given or done for the purposes of the applied provisions is not affected only because it was issued, given or done also for the purposes of the Commonwealth domestic commercial vessel national law.

19Reference in Commonwealth law to a provision of another law

For the purposes of sections 8 and 12, a reference in a Commonwealth law to a provision of that or another Commonwealth law is taken to be a reference to that provision as applying because of those sections.

20Authority to accept delegation of functions

(1)The following persons or classes of persons are authorised to be delegates for the purposes of the Marine Safety (Domestic Commercial Vessel) National Law—

(a)the Chief Executive of Safe Transport Victoria appointed under section 115H of the Transport Integration Act 2010, if authorised by the Minister;

(b)a transport safety officer within the meaning of section 2(1) of the Transport (Compliance and Miscellaneous) Act 1983, if the officer is—

(i)an officer of an agency of the State within the meaning of the Marine Safety (Domestic Commercial Vessel) National Law; and

(ii)authorised by Safe Transport Victoria (within the meaning of section 3 of the Transport Integration Act 2010);

(c)a person employed under Part 3 of the Public Administration Act 2004 to enable Safe Transport Victoria to carry out its functions, if authorised by Safe Transport Victoria.

(2)The Minister must not authorise the Chief Executive of Safe Transport Victoria to act as a delegate under subsection (1)(a) unless the Minister is satisfied that there are sufficient arrangements in place and resources available to enable the Chief Executive of Safe Transport Victoria to carry out the delegated functions.

(3)An authorisation by Safe Transport Victoria under subsection (1)(b) or (c) may be made—

(a)in relation to a person or class of persons specified in the instrument; or

(b)in relation to the holder, or the holder from time to time, of an office specified, or of each office in a class of offices specified, in the instrument.

21Victorian regulations

(1)The Governor in Council may make regulations for or with respect to—

(a)prescribing forms (including the information to be included in forms); and

(b)fees for the purposes of section 14, including the following—

(i)the payment of fees either generally or under specified conditions or in specified circumstances;

(ii)late payment fees;

(iii)the reduction, waiver or refund, in whole or in part, of fees;

(iv)the matters to be included in forms relating to fees; and

(ba)prescribing matters that are designated or otherwise specified for the purposes of Part B of the National Standard for Commercial Vessels; and

Note

See section 3(2). The term National Standard for Commercial Vessels is defined under the Commonwealth domestic commercial vessel national law. See also section 164 of the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth.

(c)generally prescribing any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act or the applied provisions.

(2)A power conferred by this Act to make regulations may be exercised—

(a)either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified case or class of case; and

(b)so as to make, as respects the cases in relation which the power is exercised—

(i)the same provision for all cases in relation to which the power is exercised, or different provisions for different cases or classes of case, or provisions for the same case or class of case for different purposes; or

(ii)any such provision either unconditionally or subject to any specified condition.

(3)The regulations may—

(a)be of general or limited application; and

(b)differ according to differences in time, place or circumstances; and

(c)confer a discretionary authority or impose a duty on a specified person or body or a specified class of persons or bodies; and

(d)provide in a specified case or class of case for the exemption of persons or things or a class of persons or things from any of the provisions of the regulations, whether unconditionally or on specified conditions and either wholly or to such an extent as is specified.

(4)A reduction, waiver or refund, in whole or in part, of a fee, under a regulation under subsection (1)(b) may be expressed to apply either generally or specifically—

(a)in respect of certain matters or transactions or classes of matters or transactions;

(b)in respect of certain documents or classes of documents;

(c)when an event happens;

(d)in respect of certain persons or classes of persons;

(e)in respect of any combination of such matters, transactions, documents, events or persons—

and may be expressed to apply subject to specified conditions or in the discretion of any specified person or body.

PART 9—TRANSITIONAL PROVISIONS

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SCHEDULE

Section 14

Schedule of fees

1Definitions

(1)In this Schedule—

certificate of competency has the same meaning as in the Marine Safety (Domestic Commercial Vessel) National Law;

certificate of survey has the same meaning as in the Marine Safety (Domestic Commercial Vessel) National Law;

National Regulator means the National Marine Safety Regulator within the meaning of the Marine Safety (Domestic Commercial Vessel) National Law.

(2)In this Schedule, Class and Class 1 vessel have the same meanings respectively as they have in the Marine Safety Regulations 2012 as in force before the commencement of this Act as if a reference in those definitions to a commercially operated vessel were a reference to a domestic commercial vessel.

2Application fee for certificate of survey

The fee to be paid for an application for a certificate of survey is 1×54 fee units.

3Fee for survey of new domestic commercial vessel

(1)The fee to be paid for the survey of the design phase of a new domestic commercial vessel of a size specified in Column 2 of the following Table is the amount calculated by multiplying the length of the vessel in metres by the amount specified for that class of vessel in Column 3 or 4 of the Table opposite that size of vessel.

Table

Column 1 Item	Column 2 Size of vessel	Column 3 For all Class 1 vessels fee per metre of the length of vessel	Column 4 For all other Classes of vessels fee per metre of the length of vessel
1	For new vessels of or not exceeding 7·5 metres in length	3×14 fee units	3×14 fee units
2	For new vessels exceeding 7·5 metres in length and less than 20 metres in length	5×05 fee units	4×4 fee units
3	For new vessels of or exceeding 20 metres in length	6×64 fee units	5×65 fee units

(2)The fee to be paid for the survey of the construction and commissioning phases of a new domestic commercial vessel of a size specified in Column 2 of the following Table is the amount calculated by multiplying the length of the vessel in metres by the amount specified for that class of vessel in Column 3 or 4 of the Table opposite that size of vessel.

Table

Column 1 Item	Column 2 Size of vessel	Column 3 For all Class 1 vessels fee per metre of the length of vessel	Column 4 For all other Classes of vessels fee per metre of the length of vessel
1	For new vessels of or not exceeding 7·5 metres in length	5×65 fee units	5×65 fee units
2	For new vessels exceeding 7·5 metres in length and less than 20 metres in length	5×05 fee units	4×4 fee units
3	For new vessels of or exceeding 20 metres in length	4×4 fee units	3×14 fee units

4Fee for booking a survey for existing domestic commercial vessel

The fee to be paid at the time of booking a survey for an existing domestic commercial vessel is 8×4 fee units.

5Fee for survey of existing domestic commercial vessel

The fee to be paid for the survey of an existing domestic commercial vessel of a size specified in Column 2 of the following Table is the amount specified for that class of vessel in Column 3 or 4 of the Table opposite that size of vessel.

Table

Column 1 Item	Column 2 Size of vessel	Column 3 Class 1 vessels	Column 4 All other Classes
1	For vessels of or not exceeding 5 metres in length	8×85 fee units	5×85 fee units
2	For vessels exceeding 5 metres in length or of or not exceeding 10 metres in length	19 fee units	12×65 fee units
3	For vessels exceeding 10 metres in length or of or not exceeding 20 metres in length	25×3 fee units	16×9 fee units
4	For vessels exceeding 20 metres in length or of or not exceeding 35 metres in length	38 fee units	25×3 fee units
5	For vessels exceeding 35 metres in length	57 fee units	38 fee units

6Fee for additional visit for an existing vessel survey

The fee to be paid for each additional visit by a surveyor authorised by the National Regulator that is required for the purposes of an existing domestic commercial vessel survey is 8×4 fee units.

7Fee for considering application for variation of conditions of a safe construction certificate

The fee to be paid for an application to vary the conditions of the safe construction certificate for a domestic commercial vessel or a fleet of domestic commercial vessels is 2×1 fee units.

8Fee for survey for alteration to service category of vessel

(1)The fee to be paid for each hour spent by a person authorised by the National Regulator conducting a survey of the design phase of an alteration to the service category of a domestic commercial vessel is 6×3 fee units.

(2)The fee to be paid for each inspection of a domestic commercial vessel for the purposes of a survey of the construction and commissioning phases of an alteration to the service category of the vessel is 8×4 fee units.

9Fee for issue or renewal of safe construction certificate

The fee to be paid for the issue or renewal of a safe construction certificate for a domestic commercial vessel is 4×6 fee units.

10Fee for issue of duplicate safe construction certificate

The fee to be paid for the issue of a duplicate safe construction certificate for a domestic commercial vessel is 4×6 fee units.

11Application fee for issue, variation or renewal of certificate of competency

The fee to be paid for an application for the issue, variation or renewal of a certificate of competency is 1×54 fee units.

12Fee for issue or renewal of certificates

The fee to be paid for the issue or renewal of a certificate of competency is 4×6 fee units.

13Fee for variation of certificates

The fee to be paid for the variation of a certificate of competency is 2×9 fee units.

14Fee for issue of duplicate certificate

The fee to be paid for the issue of a duplicate certificate of competency is 4×6 fee units.

15Examination fees for certificates

(1)The fee to be paid by a person who sits a written examination conducted by or on behalf of the National Regulator for the issue, variation or renewal of a certificate of competency is 3×34 fee units.

(2)The fee to be paid by a person who sits an oral examination conducted by the National Regulator for the issue, variation or renewal of a certificate of competency is 6×7 fee units.

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ENDNOTES

1   General information

See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 8 May 2013

Legislative Council: 30 May 2013

The long title for the Bill for this Act was "A Bill for an Act to adopt in Victoria a national approach to the regulation of marine safety in relation to domestic commercial vessels, to make consequential amendments to the Marine Safety Act 2010, to make consequential amendments to other Acts and for other purposes."

The Marine (Domestic Commercial Vessel National Law Application) Act 2013 was assented to on 18 June 2013 and came into operation on 1 July 2013: Special Gazette (No. 226) 25 June 2013 page 1.

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

•     Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms.  See section 36(1A)(2A).

•     Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act.  See section 36(3A).

•     Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act.  Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  See section 36(3B).

•     Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001.  Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs.  See section 36(3C).

•     Location of "legislative items"

A "legislative item" is a penalty, an example or a note.  As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision.  For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision.  See section 36B.

•     Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act. 
See section 36(3)(3D)(3E).

2   Table of Amendments

This publication incorporates amendments made to the Marine (Domestic Commercial Vessel National Law Application) Act 2013 by Acts and subordinate instruments.

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Marine (Domestic Commercial Vessel National Law Application) Act 2013, No. 36/2013

Assent Date:	18.6.13
Commencement Date:	Ss 22(5), 80, 99 on 1.7.13: Special Gazette (No. 226) 25.6.13 p. 1
Note:	S. 80 repealed Pt 10 (ss 23–80) on 1.7.14; s. 99 repealed Pt 11 (ss 81–99) on 1.7.14; s. 22(5) repealed s. 22 on 31.12.17
Current State:	This information relates only to the provision/s amending the Marine (Domestic Commercial Vessel National Law Application) Act 2013

Transport Legislation Amendment Act 2023, No. 34/2023

Assent Date:	21.11.23
Commencement Date:	Ss 32, 127(Sch. 1 item 5) on 22.11.23: s. 2(1)
CurrentState:	This information relates only to the provision/s amending the Marine (Domestic Commercial Vessel National Law Application) Act 2013

Statute Law Revision Act 2025, No. 41/2025

Assent Date:	21.10.25
Commencement Date:	S. 3(Sch. 1 item 22) on 22.10.25: s. 2
Current State:	This information relates only to the provision/s amending the Marine (Domestic Commercial Vessel National Law Application) Act 2013

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3   Explanatory details

No entries at date of publication.

ANNEXURES

ANNEXURE 1

Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of the Commonwealth

Note

This Act will be amended by the Marine Safety (Domestic Commercial Vessel) National Law (Consequential Amendments) Act 2012 of the Commonwealth and the Marine Safety (Domestic Commercial Vessel) National Law Amendments Act 2013 of the Commonwealth. See Annexure 2 and Annexure 3.

Explanatory Memorandum

MARINE SAFETY (DOMESTIC COMMERCIAL VESSEL) NATIONAL LAW BILL 2012

OUTLINE

The Marine Safety (Domestic Commercial Vessel) National Law Bill (the Bill) is a component of the national transport reform package, which is intended to improve safety and reduce the regulatory burden and costs on the Australian rail, heavy vehicle and maritime industries. The maritime component of this reform package will be implemented through three key projects.

Firstly, national shipping reforms designed to ensure the long-term future of the Australian shipping industry through tax regulation and training. Secondly, the revision of the Navigation Act 1912 (to be replaced by the Navigation Act 2012) will modernise the regulatory framework and provide much-needed confidence and certainty for industry.

This Bill represents the third and final component of the maritime reform package. As a key component of the National System for commercial vessel safety that will commence on 1 January 2013, this Bill introduces a new National Law for the regulation of domestic commercial vessel safety and establishes a National Marine Safety Regulator (the National Regulator). The policy basis for the National Law derives from the Council of Australian Governments (COAG) Inter‑Governmental Agreement (IGA) on Commercial Vessel Safety Reforms, signed on 19 August 2011. The IGA also determined that the Australian Maritime Safety Authority (AMSA) will be the National Regulator.

There are currently eight different marine safety regulatory systems, involving the Commonwealth, the six States and the Northern Territory, that govern the operation of domestic commercial vessels in Australia. The overarching objective of the Bill is to provide for the consistent national regulation of the domestic commercial vessel industry across Australia.

This objective is to be achieved through a regulatory framework that:

(a)promotes continuous improvement in marine safety;

(b)promotes public confidence in the safety of marine operators;

(c)ensures effective identification and management of safety risks; and

(d)seeks to reduce regulatory burden without compromising safety.

Consistent with these objectives, the Bill:

(a)establishes the National Regulator for the purposes of performing functions and exercising powers under this Bill;

(b)establishes a system for the issue of national certificates in relation to:

i.vessel identification;

ii.vessel survey;

iii.the commercial operation of vessels; and

iv.seafarer competencies;

(c)establishes offences where a vessel identification or a certificate is required and not held or not complied with;

(d)establishes General Safety Obligations (GSOs) for individuals who have a role in the production and operation of commercial vessels, to ensure the safety of the vessel, their own safety and the safety of others, so far as is reasonable;

(e)establishes a system within which to conduct compliance and enforcement activities; and

(f)provides for the consistent application of nationally agreed standards across Australia.

The IGA provides that the Commonwealth will apply the National Law to the extent of the Commonwealth’s constitutional reach, and each jurisdiction will apply the National Law to any ‘gap’ in the Commonwealth’s constitutional reach. This approach achieves the consistency objective of the IGA.

Vessels which operate internationally, foreign vessels and vessels which maintain certification under the international convention for Safety of Life at Sea (SOLAS) will be regulated by the Commonwealth under the proposed Navigation Act 2012 and are outside with scope of the Bill. This approach will continue to be applied when the revised Act is introduced. Defence vessels and recreational vessels are also outside the application of the Bill. However, interstate vessels that are currently regulated under the Navigation Act 1912 will be covered under the National Law from its commencement.

State and Territory agencies will be responsible for the effective day-to-day operation of the National Law, under delegation from the National Regulator. The jurisdictions will retain responsibility for the regulation of waterways, the management of ports and associated issues, such as classifying waters, setting speed limits and the regulating alcohol consumption.

DEVELOPMENT OF THE BILL

This Bill has been developed with the State and Territory jurisdictions to implement the decision of COAG on 19 August 2011 to create a single National Law to regulate the safety of all commercial vessel operations in Australian waters and to establish a single National Regulator for commercial vessel safety from 1 January 2013.

Extensive consultation has been undertaken on the development of the Bill with the States and Territories, including through the Standing Council on Transport and Infrastructure (SCOTI), the Transport and Infrastructure Senior Officials Committee (TISOC), the Maritime Agencies Forum, the National Marine Safety Committee, seven workshops with jurisdiction officials and numerous discussions and correspondence with State and Territory agency contacts.

Public consultation has also informed the development of the Bill, including consultation on the Regulatory Plan from June to October 2011 (outlining the proposed elements of the Bill), a detailed discussion paper in mid-December 2011 (providing an overview of the Bill) and the draft Bill itself (released in February 2012). Comments and feedback from 19 formal public submissions that were received on the draft Bill have been considered and incorporated into the Bill as appropriate. A report detailing the responses to these submissions (including the changes made to the Bill as a result) was also released in May 2012.

Government agencies have also been consulted on the development of the Bill, including the Department of Prime Minister and Cabinet, the Attorney General’s Department, the Department of Education, Employment and Workplace Relations, SafeWork Australia, and the Australian Maritime Safety Authority.

The text of the Bill has been unanimously agreed by SCOTI at its meeting of 18 May 2012.

ABBREVIATIONS

AATAdministrative Appeals Tribunal

AMSAAustralian Maritime Safety Authority

COAGCouncil of Australian Governments

Constitution Constitution of the Commonwealth of Australia

Criminal Code The Code established by the Criminal Code Act 1995

EEZAustralia’s Exclusive Economic Zone

EVUEnforceable Voluntary Undertaking

GSOGeneral Safety Obligation

IGAThe Inter-Governmental Agreement for Commercial Vessel Safety Reform signed on 19 August 2011

InspectorA Marine Safety Inspector appointed under Part 6 of the Bill

National Law  Marine Safety (Domestic Commercial Vessel) National Law set out in Schedule 1 of the Bill

National Regulator            The National Regulator established under Part 2 of the Bill

NMSCNational Marine Safety Committee

NSCVNational Standard for Commercial Vessels

OBPROffice of Best Practice Regulation

RISRegulation Impact Statement

SCOTIStanding Council on Transport and Infrastructure

SOLASInternational Convention for the Safety of Life at Sea

The Bill/this Bill                Marine Safety (Domestic Commercial Vessel) National Law Bill 2012

The Act/this Act Marine Safety (Domestic Commercial Vessel) National Law Act 2012

TISOCTransport and Infrastructure Senior Officials Committee

USL Code Uniform Shipping Laws Code

WHS ActWork Health and Safety Act 2011

FINANCIAL IMPACT STATEMENT

The COAG IGA underpinning the commercial vessel safety reform articulates the intentions of the jurisdictions in establishing the National Regulator arrangements.  Jurisdictions have committed to achieving the objective of the reforms with minimum legal and administrative costs and no overall increase in regulatory burden as a result of commencement of the National System.

Full cost-recovery is a longer-term aspiration. States and Territories not fully recovering costs from industry will consider moving progressively to full cost recovery in the long-term. Any State or Territory-based subsidisation of operators will take into account implications for the National System.

At the commencement of the scheme, States and Territories will continue to adjust current cost recovery or fee charging arrangements at a rate of their own discretion.  The Commonwealth has undertaken not to impose upon industry any new fees or charges for National System related purposes unless otherwise agreed by SCOTI. States and Territories have agreed to comply with Competitive Neutrality Policy and Principles outlined in the COAG Competition Principles Agreement in any instance when a fee for service is charged in competition with the private sector.

From the commencement of the National System, and until alternate arrangements have been agreed by SCOTI, all jurisdictions will contribute to the funding of the National Regulator. The first year of funding of AMSA’s costs of the National System have been set at $4 million (in June 2011 dollars). To facilitate the establishment of new service delivery arrangements, the Commonwealth will meet $1 million of the National Regulator’s costs for the first year of operation of the National System (2013). As arrangements are bedded down, jurisdictions will work to identify any efficiencies to be gained through the National System.

The funding contributions for AMSA’s costs as the National Regulator for year one (2013) will be:

a)National Marine Safety Committee (NMSC) funding (as per existing State and Territory contributions under the NMSC agreed funding formula) – $2,000,000

b)Commonwealth – $1,000,000

c)New South Wales – $288,800

d)Victoria – $238,800

e)Queensland – $238,800

f)Western Australia – $113,800

g)South Australia – $77,700

h)Tasmania – $30,500

i)Northern Territory – $11,100

j)Australian Capital Territory – $0

The funding formula for AMSA’s costs as the National Regulator (beyond 2013), until any alternate arrangements have been unanimously agreed by SCOTI, will be:

a)Commonwealth – 10%

b)New South Wales – 26%

c)Victoria – 21.5%

d)Queensland – 21.5%

e)Western Australia – 10.25%

f)South Australia – 7%

g)Tasmania – 2.75%

h)Northern Territory – 1%

i)Australian Capital Territory – 0%

These funding arrangements will be reviewed by SCOTI in the first half of 2016, or a later date agreed by SCOTI.

REGULATORY IMPACT STATEMENT

The commercial vessel safety national reform was first initiated in July 2009 when COAG decided to take a national approach to regulating the safety of all domestic commercial vessels in Australian waters by 2013. COAG’s decision reflects recommendations made by the Australian Transport Council (ATC).

ATC’s recommendations were informed by a Regulatory Impact Statement (RIS), which explored perceived problems with the current regulatory framework and considered alternate options for national reform of maritime safety regulation.

The RIS, which can be found at: incorporated feedback provided in over 90 written submissions and 22 public meetings held around Australia.

Statement of Compatibility with Human Rights

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Human rights implications

The Bill engages the following human rights:

Right to privacy

Part 6 of the National Law Bill contains provisions on enforcement powers that enable Marine Safety Inspectors (inspectors) appointed by the National Regulator (the Australian Maritime Safety Authority) to detain, board, inspect and search domestic commercial vessels; and gather information and seize things in relation to domestic commercial vessel safety regulation and compliance.

The National Law Bill has been drafted consistently with the principles stipulated in The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) developed by the Criminal Justice Division of the Attorney‑General’s Department.

In addition, the National Law Bill provides for enforcement powers equivalent to those provided in current Commonwealth legislation including:

—Work Health and Safety Act 2011, Section 163 – Powers of entry;

—Crimes Act 1913, Section 3T – Searches without warrant in emergency situations;

—Quarantine Act 1908, Section 66AB – The monitoring of premises; and,

—Customs Act 1901, Section 185 – Power to board and search etc. ships and aircraft.

Section 8.6 of the Guide (Entry and Search Without a Warrant) states that “a search without a warrant will only be permitted where the inherent mobility of the conveyance means there may not be time, or it would be impractical, to obtain a warrant”.

Domestic commercial vessels are inherently mobile. The nature of the commercial activities undertaken by these vessels often means that they do not follow any predictable pattern or timetable. This means that monitoring and compliance activities need to be undertaken as and when an opportunity presents, frequently while the vessel is at sea. The vessels may also be operating in geographically remote areas, a great distance from port and with limited or no mobile telephone access. In these circumstances, obtaining a warrant is impractical and may limit the regulator’s capacity to undertake their safety regulatory role in a responsive manner. For this reason, the enforcement powers are appropriate and proportionate for the task.

The guide at 8.6 (exception for licensed premises) sets out that “a person who obtains a licence or registration for non-residential premises can be taken to accept entry to those premises by an inspector for the purpose of ensuring compliance with the licensing or registration conditions”. The Senate Scrutiny of Bills Committee has said that these powers can be conferred “where a person has accepted a commercial benefit subject to being monitored by this means”.

The safety regulation of domestic commercial vessel activity is not new and regulation has occurred under State and Territory legislation for some time. Owners and masters of domestic commercial vessels are aware that the safety requirements pertaining to domestic commercial vessels are subject to regulatory oversight, and by applying for the unique identifier and certificates that allow them to operate as a commercial vessel they are implicitly accepting that their compliance with the regulatory requirements will be monitored. 

Generally, inspectors will be required to seek the express and informed consent of the relevant person or obtain a warrant prior to entering a premise. However, an inspector may enter a premise that is not a residential premise without consent or warrant in order to gain access to the domestic commercial vessel (see clause 96). An inspector may also board a domestic commercial vessel without warrant or consent to monitor compliance, or to issue an improvement, infringement or other notice.

Inspectors, when undertaking monitoring activities, routinely wear uniforms. However, an inspector must, in order to exercise their powers lawfully under clauses 96 and 97, also show his or her identity card if requested to do so. Similarly, a police officer who is appointed as an inspector, but who is not wearing a uniform, must show his or her police identification if requested to do so.

If, in the course of undertaking monitoring activities in relation to a domestic commercial vessel, an inspector believes that something is evidential material and that there is a serious or urgent need to exercise powers to preserve the evidential material, or it is otherwise impracticable to obtain a warrant, then clause 100 allows an inspector to take a sample of the material, secure the material for up to 72 hours or seize the material. 

These powers are limited to use in relation to a vessel, which because of its inherent mobility, may make obtaining a warrant impractical (for example, if the vessel is in a remote area with no mobile telephone reception) or may require that action is taken immediately to ensure that evidential material is not lost or compromised. The 72 hour statutory time limit to secure a thing, balances the possibility that the safety operation may be a significant distance from the nearest port, whilst ensuring that a person’s property is not inappropriately retained.

To ensure that the National Regulator can monitor the use of this power and the circumstances in which it is used, an inspector who exercises these powers will be required to report to the National Regulator on the exercise of the powers and the grounds for his or her belief that these powers needed to be exercised without warrant.

Division 7 of Part 6 of the Bill further restricts how an inspector can deal with material seized from a domestic commercial vessel, which ensures that the handling of any evidential material is transparent for the person and the National Regulator.

Clause 152 enables certain specified people or groups of people who play a role in the administration of the National Law to disclose information, including personal information, to the National Regulator. This power is to ensure that people who have been delegated functions by the National Regulator, or who are accredited or approved to undertake activities on behalf of the National Regulator, are able to disclose information that may be relevant to the administration of the National Law.

Conclusion

The Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable and proportionate to the information sought and the safety benefits conveyed to the maritime industry.

Minister for Infrastructure and Transport,
the Hon Anthony Albanese MP

OTHER MATTERS

Key features of the COAG IGA

On 19 August 2011, the signing of the COAG IGA provided for the establishment of a single national regulator and a single National Law covering domestic commercial vessel safety in Australia from 1 January 2013. The IGA formalises the agreement of all Australian governments to the operating arrangements under which the single National System will operate. Agreement on the provisions of the IGA is a result of extensive negotiation between the Commonwealth, States and Territories. 

Consistent with the COAG IGA, the National Law is intended to replace current State and Territory laws governing the operational safety of domestic commercial vessels. It will ensure that nationally agreed standards - the National Standard for Commercial Vessels (NSCV) - are applied consistently around the country.  The NSCV will be implemented through subordinate legislation made under the National Law.

As the National Regulator, AMSA will be responsible for the development and implementation of commercial vessel standards nationally covering vessel construction, operation and crew qualifications. However, under the National Law, AMSA will delegate certain functions to State and Territory maritime safety agencies, which will undertake day-to-day interaction with the domestic commercial vessel industry.

Scope of this Bill relative to the proposed Navigation Act 2012

The scope of the National Law will apply to any domestic commercial vessels capable of being used in navigation or designed to float in water, including barges, pontoons, floating restaurants and floating craft being towed, which are not within the scope of the proposed Navigation Act 2012.

Vessels within the scope of the proposed Navigation Act 2012 will include:

—Foreign flagged vessels conducting activities (other than warships and vessels on “freedom of navigation voyages”) in Australia’s Exclusive Economic Zone (EEZ) (for example, a foreign flagged vessel conducting fishing activities inside the EEZ);

—Australian flagged vessels that cross the outer limit of the EEZ, operate entirely outside the EEZ, or which intend to do so; and

—Australian flagged vessels that apply for or maintain SOLAS Certification, regardless of where they operate.

These vessels will be regulated by the proposed Navigation Act 2012 and will not be subject to the National Law, except where a vessel that has SOLAS Certification actively ‘opts out’ of coverage under that legislation. In that case, the vessel would be regulated under the National Law and would lose any international certification issued by AMSA for international voyages.

National Standards

The National Law is designed to apply the NSCV throughout Australia. The NSCV is a set of standards covering commercial vessel operation, construction and crew qualifications that have been developed by all State and Territory transport agencies and agreed by Transport Ministers.

The NSCV is an evolving document that will be amended and updated as the need arises, with any changes being subject to broad stakeholder consultation and, following the implementation of the National System, unanimous agreement by Transport Ministers. The NSCV will be implemented through subordinate legislation made under the National Law.

Nationally, jurisdictions have in the past agreed a Uniform Shipping Laws (USL) Code and the NSCV. However, neither of these instruments has been applied consistently because of the varied legislative application in each jurisdiction. For the first time in over 40 years, a single set of standards (the NSCV) will be consistently applied to domestic commercial vessels through one piece of legislation.

Strict liability offences

Strict liability offences arise in a regulatory context where, for reasons such as public safety and the public interest in ensuring that regulatory schemes are observed, the sanction of criminal penalties is justified. They also arise in a context where a defendant can reasonably be expected, because of his or her professional involvement, to know what the requirements of the law are, and the mental, or fault, element can justifiably be excluded.

The rationale is that people who owe general safety duties, such as employers, people in control of aspects of work and designers and manufacturers of work structures and products, should be expected to be aware of their duties and obligations to workers and the wider public.

For strict liability offences in this Bill, the prosecution will have to prove only the conduct of the accused. However, where the accused produces evidence of an honest and reasonable, but mistaken, belief in the existence of certain facts which, if true, would have made that conduct innocent, it will be incumbent on the prosecution to establish that there was not an honest and reasonable mistake of fact.

The application of strict liability to certain offences has been carefully considered during the drafting of the Bill and most strict liability offences are subject to other qualifiers, such as reasonable practicability, due diligence or reasonable care. The Bill also makes reference in relevant clauses to section 6.1 of the Criminal Code, which provides further details on strict liability.

Penalties for offences

The penalties for offences in the Bill are intended to reinforce the deterrent effect of the Bill and allow courts greater capacity to respond meaningfully and proportionally to the worst breaches by duty holders. Where death or serious injury results from a breach, the social and economic costs are likely to be far greater than even the maximum fines imposed by the Bill. Therefore, the overall objective of the penalties in the Bill is to increase compliance with the National Law and decrease the resort to prosecution to achieve that aim.

The penalties in the Bill generally reflect the community’s view that any person who has a work-related duty of care, but does not observe it, should be liable to a criminal sanction for placing another person’s safety at risk. This approach is adopted in the Work Health and Safety Act 2011 and is in line with international practice.

The Bill provides for three categories of offences. The highest category of offences is for a breach of duties that is intentional and carries the highest maximum penalty under the Bill. Other categories of offences are for reckless and negligent breaches, which attract relatively lower penalties commensurate with the level of culpability of the defendant in the circumstances. Section 5 of the Criminal Code Act 1995 defines the meaning of intentional, reckless and negligent, in the context of Commonwealth offence provisions. Penalties are applied to each category of offence in accordance with the Criminal Code. As outlined in section 4AA of the Crimes Act 1914, one 'penalty unit' equates to $110.

Penalties and the possibility of imprisonment in the most serious cases are a key part of achieving and maintaining a credible level of deterrence to complement other types of enforcement action, such as the issuing of notices by a marine safety inspector. The maximum penalties provided in the Bill reflect the level of seriousness of the offences and have been set at levels high enough to cover the worst examples of offence.

Evidential burden

An evidential burden (or ‘burden of proof’) requires a person to provide evidence of an asserted fact in order to prove that fact to a court. In some instances, the Bill places an evidential burden on an individual to demonstrate a reasonable excuse as to why they have failed to meet a duty or obligation.

Several sub-clauses in this Bill shift the evidential burden by requiring the defendant to show a reasonable excuse. This is because the defendant is the only person in the circumstances with the relevant knowledge able to provide evidence of any reasonable excuse for refusing or failing to meet the relevant duty or obligation.

NOTES ON CLAUSES

Clause 1 – Short Title

This is a formal provision that specifies that the Act may be referred to as the Marine Safety (Domestic Commercial Vessel) National Law Act 2012.

Clause 2 – Commencement

This clause provides for a commencement by proclamation. The title and the commencement provisions will become law on the day the Act receives Royal Assent. The balance of the provisions, both in the local application law and Schedule 1, will become law either on a specified day to be proclaimed or on the day after 12 months from which the Act receives Royal Assent.

The provision of a proclamation date intends to avoid the possibility that a specified date may pass before the Bill has passed through Parliament. This avoids the possible need to draft an amendment, while the 12 month deadline removes an open ended commencement date and provides certainty.

Clause 3 – Definitions

Sub-clause 1 explains that the Bill is structured to separate local application provisions from the Marine Safety (Domestic Commercial Vessel) National Law set out in Schedule 1.

Owing to this separation within the Bill, a reference to a clause or sub-clause in the local application provisions relates only to a clause or sub-clause in the local application provisions, unless otherwise indicated. Likewise, a reference to a clause or sub-clause in Schedule 1 relates only to a clause or sub-clause in Schedule 1, unless otherwise indicated.

COAG’s intention is that this Bill will be applied in each jurisdiction by a separate State or Territory Law (“the local application provisions”). Notwithstanding clause 5, the practical effect of which is to legislate to the extent of the Commonwealth’s constitutional reach, State and Territory laws are required to ensure that any potential gap in the Commonwealth’s reach is addressed.

Sub-clause 2 provides definitions for words and phrases used in the local application provisions of this Bill. These definitions determine the meaning applied to these words or phrases wherever they appear in the local application provisions. Schedule 1 contains additional definitions for words and phrases used in Schedule 1.

Significant definitions, which are essential to defining the scope of the legislation and describing how it will be administered, include the following:

‘Commonwealth Minister’ means the Minister of State administering this Act, which is the Minister of Infrastructure and Transport.

‘Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth’ is defined to mean this Bill and the Schedule to it.

‘Participating Territory’ is defined to mean the Australian Capital Territory, the Jervis Bay Territory, the Territory of Ashmore and Cartier Islands, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.

Sub-clause 3 clarifies that the same words and phrases have the same meaning wherever they appear in the Bill. This is intended to avoid any conflict in the interpretation of words and phrases used in the local application provisions or Schedule 1 of this Bill.

Clause 4 – Adoption of Marine Safety (Domestic Commercial Vessel) National Law

This clause clarifies that Schedule 1 of the Bill, as well as any regulations or other legislative instruments made under the Bill, are a law of the Commonwealth and may be referred to as the Marine Safety (Domestic Commercial Vessel) National Law 2012. The reference to ‘legislative instruments’ is intended to include regulations and Marine Orders, but exclude exemptions under the Bill (see clause 143).

Clause 5 – Constitutional reach of Act

Sub-clause 1 describes the activities and matters to which the Bill applies. This includes vessels engaged in inter-State trade and commerce, vessels owned by constitutional corporations, vessels covered by the implementation of international agreements, vessels owned by the Commonwealth and vessels that are external to Australia.

Sub-clause 2 clarifies that any actions or activities undertaken in a person’s capacity as the owner, master or crew member of a vessel is considered to relate to the vessel.

Sub-clauses 3(a) and (b) explain the meaning of ‘external to Australia’.

Clause 6 – Relationship with State and Territory laws

Sub-clause 1 provides that the Bill overrides any State or Territory law relating to the same matters of marine safety for domestic commercial vessels provided in this Bill. However, this Bill is not intended to exclude any application or mirror legislation enacted in a State and Territory.

Sub-clause 2(a) clarifies that the Bill does not exclude any State or Territory law specifically stated as being not excluded by the regulations under this Bill.

Sub-clause 2(b) provides that the Bill does not cover all aspects of domestic commercial vessel regulation, allowing State and Territory laws to cover the particular aspects listed. The Bill is not intended to provide for the regulation of every aspect of commercial maritime activity and many activities will continue to be regulated by State and Territory law.

Sub-clause 3 clarifies that the Bill is not intended to exclude any State or Territory law relating to activities or matters that are outside the constitutional reach of the Bill, as outlined in clause 5.

Sub-clauses 4 and 5 clarify that this Bill is not intended to exclude or limit the concurrent operation of a law covered by sub-clause 2 that is able to co-exist with this Bill or that creates an offence that is also an offence under this Bill.

Sub-clause 6 clarifies that sub-clauses 4 and 5 apply even if the law contains a different penalty, fault element or defence in relation to the offence.

Sub-clause 7 clarifies that a person can only be found guilty of an offence under either this Bill or the law covered by sub-clause 2 or the common law.

Sub-clause 8 clarifies that a reference to a law under this clause includes any provision of that law.

Clause 7 – Avoiding inconsistency, including operational inconsistency, arising between this Act and State and Territory workplace health and safety laws

Section 109 of the Constitution provides that if a law of a State is inconsistent with a law of the Commonwealth, the Commonwealth law prevails and the State law, to the extent of the inconsistency, is invalid. Clause 7 is a ‘roll-back’ provision that accommodates State and Territory legislation dealing with workplace health and safety, which is not capable of operating concurrently with the National Law. It limits or qualifies the operation of the National Law so that inconsistency (including operational inconsistency) with a State or Territory law of this nature is avoided.

Sub-clause 3 operates so that where an act is required or authorised by or under a relevant State or Territory law, that act is not prohibited or restricted by the imposition of a liability under the National Law.

Sub-clause 4 operates so that where an act is specifically prohibited by or under a relevant State or Territory law, the National law does not require that act to be done, or impose a liability for not doing that act.

Sub-clause 5 ensures that the National Law does not operate in circumstances where, if it did operate, an inconsistency, including an operational inconsistency, would arise.

Clause 8 – Extraterritorial operation

This clause sets out the geographical scope of the Bill. For the purposes of this Bill, ‘external to Australia’ has been defined to be beyond the limits of a State or Territory, (i.e. beyond the low water mark or historical closing lines), as defined in clause 5.

Clause 9 – Charging of fees by States etc. not prevented

This clause is intended to make clear that the States and Territories, or their agencies, officers and employees, are free to charge their own fee for any services provided under this Bill in their capacity as a delegate of the National Regulator. Consistent with the COAG IGA, nothing in the Bill prevents the States and the Territories from charging fees for the performance of functions delegated by the National Regulator.

Clause 10 – National Regulator to pay amounts to States, etc.

Sub-clause 1 requires the National Regulator to reimburse a State or Territory for the amount of funds received for infringement notices issued by or as a result of a recommendation of agencies, officers and employees of that respective State or Territory.

Sub-clause 2 requires the States and Territories to reimburse the National Regulator for the amount of any required refund of infringement notices issued by or as a result of a recommendation of agencies, officers and employees of that State or Territory when acting as National Regulator delegates.

Clause 11 – Commonwealth consent to conferral of functions etc. on the National Regulator etc. by corresponding State-Territory laws

Sub-clauses 1, 2 and 3 permit a State or Territory to impose duties or confer functions and powers on the National Regulator or another Commonwealth authority. The exception to this occurs if this would not be constitutional, exceeds the powers of the Commonwealth or is specified in the regulations under this Bill.

The National Law is intended to allow a corresponding State or Territory law to give functions or powers to, or impose duties on, the National Regulator to the extent of any constitutional gap. It is also intended to utilise those constitutional provisions that would enable the Commonwealth to regulate in this area.

The practical effect of this arrangement is for the Commonwealth to make a National Law within its constitutional reach and enable States and Territories to pass an application law, effectively making one law (the National Law) apply to the operation of all domestic commercial vessels in Australia. The purpose of this provision is, therefore, to put beyond doubt the National Regulator’s powers, notwithstanding potential limitations of the constitutional reach of the Commonwealth.

Sub-clause 4 clarifies that this Bill does not exclude or limit any State or Territory law from imposing duties or conferring functions and powers if this is consistent with the requirements under Sub-clauses 1, 2 and 3 above and the State or Territory law is able to co-exist with this Bill.

Clause 12 – Meaning of corresponding State-Territory law

Sub-clause 1 provides a definition that determines the meaning applied to the phrase “corresponding State-Territory law” wherever it is used in this Bill.

Sub-clause 2 explains the conditions by which a declaration made under a “corresponding State-Territory law” may be revoked by the Commonwealth Minister. This legislative instrument would not be subject to disallowance or sun-setting because of subsections 44(1) and 54(1) of the Legislative Instruments Act 2003.

Clause 13 – Meaning of imposes a duty

This clause provides a definition of when a ‘corresponding State‑Territory law’ “imposes a duty” on the National Regulator. It includes where a State or Territory law confers a function or power that gives rise to an obligation on the National Regulator to perform the function or exercise the power.

Clause 14 – When duty imposed

This clause describes when a duty is considered to be imposed on the National Regulator. It is intended to avoid any doubt about when such a duty is imposed.

Clause 15 – Imposing duty under State or Territory law

This clause clarifies that a duty is imposed by a State or Territory law on the National Regulator if, and only if, it is within the powers of the State or Territory and is consistent with the Constitution. Where these requirements are not met, the duty is considered to be at the discretion of the National Regulator.

Clause 16 – Review of decisions under corresponding State-Territory laws

This clause allows for certain State and Territory decisions to be reviewed by the Administrative Appeals Tribunal (AAT). It describes what is determined to be a “reviewable State‑Territory decision” for the purposes of this Bill. It also makes it clear that the Administrative Appeals Tribunal Act 1975 applies for the purposes of this clause.

Clause 17 – References in instruments to the National Law

This clause clarifies that, unless stated otherwise in this Bill, a reference to the Marine Safety (Domestic Commercial Vessel) National Law is that applied under clause 4 of the local application provisions of this Bill or provided in an application law of a State or Territory.

Clause 18 – Powers of magistrates

This clause clarifies that magistrates exercising functions or powers under this Part perform these functions or exercise these powers in a personal capacity and not as a court or a member of a court. This reflects the doctrine of persona designata, which holds that Parliament may confer a non-judicial function on a justice of a court constituted under Chapter III of the Constitution if the function is conferred on the justice as an individual rather than a member of the court. Due to the separation of powers doctrine, functions or powers are conferred on a voluntary basis and need not be accepted by the magistrate. Subclause (3) clarifies that magistrates acting persona designata are still entitled to the judicial immunity afforded to them as if they were exercising functions or powers as a court or a member of a court.

Clause 19 – Regulations

This clause provides powers to the Governor General to make regulations where these are required and permitted by the local application provisions of this Bill. Division 9 in Part 8 provides further details of the types of matters to be covered in the regulations under this Bill.

SCHEDULE 1 – MARINE SAFETY NATIONAL LAW

Part 1 – Preliminary

This part of the Bill sets out the key preliminary issues relevant to the National Law. It contains the short title of the Act, the objects of the National Law and the key definitions, including those that limit the scope of the National Law. The commencement provisions contained in clause 2 relate to the matters beyond the constitutional reach of the Commonwealth.

The National Law is intended to apply to domestic commercial vessels operating in all Australian States and the Northern Territory, Australian Capital Territory and Jervis Bay Territory. It is also intended to apply to domestic commercial vessels operating in Christmas Island, Ashmore and Cartier Islands, and the Cocos (Keeling) Islands. It will not apply to the Australian Antarctic Territory, Norfolk Island or any other of Australia’s external Territories.

The intention is that all domestic commercial vessels that travel beyond 200 nautical miles (i.e. beyond the EEZ) and that are currently regulated by relevant States and Territories will remain within the scope of the National System and covered by the NSCV. Although such vessels will be covered by the proposed Navigation Act 2012, they will be exempted from the application of that legislation on the condition that they comply with the National Law and relevant standards. This does not include vessels that undertake international voyages (i.e. to and from an international port) or foreign vessels. These vessels will be subject to the proposed Navigation Act 2012 without exception.

The cumulative effect of the key definitions of ‘domestic commercial vessel’ and ‘vessel’ in this part is to capture government vessels (other than Defence Force vessels and Customs Vessels which travel beyond the EEZ) and vessels that are used in connection with a commercial or research activity.

However, vessels operated by primary or secondary schools and community groups are excluded from the National Law, unless they are operated for a purpose or use identified in the regulations (vessels operated by volunteer search and rescue organisations will, for example, be subject to the National Law).

Foreign-owned vessels, vessels that continue to be regulated by the proposed Navigation Act 2012 or vessels that travel to and from Australia’s external territories to the mainland, are excluded from the application of the National Law.

The Bill defines a vessel owner more broadly than a legal owner. For the purposes of the National Law, it includes an entity with the overall general control and management of a vessel. A definition of owner is also provided in clause 6.

Clause 1 – Short title

This is a formal provision that specifies the short title of the Act as the Marine Safety (Domestic Commercial Vessel) National Law.

Clause 2 – Commencement

The Marine Safety (Domestic Commercial Vessel) National Law will commence as a law of the jurisdiction on the commencement date provided for by the Act (see also clause 2 of the local application provisions of this Bill).

Clause 3 – Objects of law

This clause provides that the objects of this Bill are to:

(a)form a part of a national scheme for the safe operation, design, construction and equipping of domestic commercial vessels in Australia;

(b)implement Australia’s international obligations for domestic commercial vessel safety;

(c)facilitate the development of a safety culture to prevent or reduce marine incidents in Australia;

(d)provide a national framework for the development and application of consistent national standards relating to the operation, design, construction and equipping of domestic commercial vessels in Australia;

(e)enhance the efficient and orderly operation of domestic commercial vessels in Australia; and

(f)provide an effective enforcement framework to prevent or reduce marine incidents and ensure compliance with international obligations and national standards in Australia.

These objects give effect to the objectives outlined in the COAG IGA.

The terms “marine incident” and “Australia” are defined in clause 6. The term “domestic commercial vessel” is defined in clause 8. The term “vessel” is defined in clause 9.

Clause 4 – Law binds the Crown

Sub-clause 1 provides that the Act will bind the Crown in each of its capacities.

Sub-clause 2 provides that the Crown may not be prosecuted for a criminal offence against this Bill or subordinate legislation, including regulations and Marine Orders.

Clause 5 – Extended geographical jurisdiction—category A

This clause describes how the criminal offences established by this Bill will operate. In particular, it provides that the extended geographical jurisdiction provided in Category A of section 15.1 of the Criminal Code applies to criminal offences against this Bill.

The Criminal Code provides four categories of extended geographical jurisdiction for offences. Category A is considered the most appropriate for offences against the National Law because most activities under the National Law will occur within the EEZ and involve vessels with Australian nationality.

Clause 6 – Definitions

This clause sets out a number of definitions for certain words and phrases used in the National Law. These definitions determine the meaning that is to be attributed to these words or phrases whenever they are used in the Bill or in the regulations, Marine Orders and exemptions made under the Bill.

Significant definitions, which are essential to define the scope of the National Law and describe how it will be administered, include the following:

agency:

(a) of the Commonwealth, includes the following:

(i) an Agency within the meaning of the Financial Management and Accountability Act 1997 of the Commonwealth;
(ii) a body corporate established for a public purpose by or under a law of the Commonwealth; and

(b) of a State or a Territory, includes the following:

(i) a Department of State (however described) of the State or Territory;
(ii) a body corporate established for a public purpose by or under a law of the State or Territory.

certificate means any of the following:

(a) a certificate of operation;
(b) a certificate of survey;
(c) a certificate of competency.

COAG means the Council of Australian Governments.

COAG council means the council established by COAG that has responsibility for marine safety.

Commonwealth Minister means the Minister of State of the Commonwealth administering this Law, which is the Minister for Transport and Infrastructure.

crew of a vessel means individuals employed or engaged in any capacity on board the vessel on the business of the vessel, other than the master of the vessel or a pilot.

Criminal Code means the Criminal Code of the Commonwealth.

defence vessel means a warship or other vessel that:

(a) is operated for naval or military purposes by the Australian Defence Force or the armed forces of a foreign country; and
(b) bears external marks of nationality; and
(c) is manned by seafarers under armed forces discipline (however described).

domestic commercial vessel has the meaning provided in clause 7.

foreign vessel has the same meaning as in the Navigation Act 2012 of the Commonwealth.

hire and drive vessel means any vessel which is let for hire or reward or for any other consideration, including vessels provided in conjunction with holiday establishments or hotels for the use of guests or tenants.

Sub-clause 1 provides for a Category 1 offence, requiring recklessness and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.

Sub-clause 2 makes it clear that the prosecution bears the evidential burden of proving that a person did not have a reasonable excuse for the action or inaction that led to the breach of the general safety duty.

Sub-clause 3 provides for a Category 2 offence, requiring intent and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.

Sub-clause 4 clarifies that the physical element of whether an individual was or was not exposed to a risk of death or serious injury or illness is one of strict liability.

Sub-clause 5 provides for a Category 3 offence.

Item 12 – Section 161

This amendment aligns the offence provision provided for in section 161 of the National Law with the WHS Act.

Sub-clause 1 provides for a Category 1 offence, requiring recklessness and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.

Sub-clause 2 makes it clear that the prosecution bears the evidential burden of proving that a person did not have a reasonable excuse for the action or inaction that led to the breach of the general safety duty.

Sub-clause 3 provides for a Category 2 offence, requiring intent and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.

Sub-clause 4 clarifies that the physical element of whether an individual was or was not exposed to a risk of death or serious injury or illness is one of strict liability.

Sub-clause 5 provides for a Category 3 offence.

Item 13 – Application of amendments made by Schedule 2

This amendment makes it clear that the amendments provided for in Schedule 2 of the Bill only apply to actions or inactions that occur on or after the commencement of the Schedule.

Marine Safety (Domestic Commercial Vessel) National Law (Consequential Amendments) Act 2012

Contents

1Short title  333

2Commencement  333

3Schedule(s)  335

Schedule 1—Consequential amendments  336

Australian Maritime Safety Authority Act 1990  336

Schedule 2—Breaches of general safety duties  337

Marine Safety (Domestic Commercial Vessel) National Law Act 2012 337

Marine Safety (Domestic Commercial Vessel) National Law (Consequential Amendments) Act 2012

No. 122, 2012

An Act to make amendments that relate to the enactment of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 and that align that Act with work health and safety laws, and for related purposes

[Assented to 12 September 2012]

The Parliament of Australia enacts:

1Short title

This Act may be cited as the Marine Safety (Domestic Commercial Vessel) National Law (Consequential Amendments) Act 2012.

2Commencement

(1)Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	12 September 2012
2.  Schedule 1	Immediately after the commencement of section 3 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012.
3.  Schedule 2	A single day to be fixed by Proclamation. A Proclamation must not specify a day that occurs before the first day there are in force in each State laws of the State that the Minister is satisfied correspond substantially to Part 2 of the Work Health and Safety Act 2011. However, if the provision(s) do not commence within the period of 6 months beginning on that first day, they commence on the day after the end of that period. If the provision(s) commence in this way, the Minister must announce by notice in the Gazette the day the provision(s) commenced. The notice is not a legislative instrument.

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2)Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Consequential amendments

Australian Maritime Safety Authority Act 1990

1Subsection 3(1)

Insert:

domestic commercial vessel has the same meaning as in the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth.

Note:For Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth, see paragraph 4(b) of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012.

2Paragraph 13(1)(e)

Omit “4”, substitute “5”.

3After subsection 13(4)

Insert:

(4A)The Minister must use his or her best endeavours to ensure that at least one of the members referred to in paragraph (1)(e) is a person who the Minister is satisfied has knowledge of, or experience relevant to, the construction or operation of domestic commercial vessels.

4Subsection 22(6)

Omit “4”, substitute “5”.

Schedule 2—Breaches of general safety duties

Marine Safety (Domestic Commercial Vessel) National Law Act 2012

1After section 5 of the Marine Safety (Domestic Commercial Vessel) National Law

Insert:

5AValue of penalties

Section 4AB of the Crimes Act 1914 of the Commonwealth does not apply to a penalty expressed in this Law wholly or partly by reference to a number of dollars.

2Section 6 of the Marine Safety (Domestic Commercial Vessel) National Law

Insert:

conduct a business or undertaking: see section 6A.

3Section 6 of the Marine Safety (Domestic Commercial Vessel) National Law

Insert:

officer means:

(a)an officer within the meaning of section 9 of the Corporations Act 2001 other than a partner in a partnership; or

(b)a person (except a Minister of the Commonwealth, a State or a Territory) who makes, or participates in making, decisions that affect the whole, or a substantial part, of a business or undertaking of the Commonwealth, a State or a Territory; or

(c)a person (except an elected member of a local government authority) who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of:

(i)a body corporate that is established for a public purpose by or under a law of the Commonwealth, a State or a Territory and that is not prescribed by the regulations as a body to which this subparagraph does not apply; or

(ii)a body corporate that is, or is taken to be, incorporated under the Corporations Act 2001 of the Commonwealth, that is controlled by the Commonwealth, a State or a Territory and that is not prescribed by the regulations as a body to which this subparagraph does not apply; or

(iii)a body corporate prescribed by the regulations as a body to which this subparagraph applies.

4Section 6 of the Marine Safety (Domestic Commercial Vessel) National Law

Insert:

volunteer association means a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers in the group, employs any person to carry out work for the group.

5Section 6 of the Marine Safety (Domestic Commercial Vessel) National Law

Insert:

worker: see section 8A.

6After section 6 of the Marine Safety (Domestic Commercial Vessel) National Law

Insert:

6ADefinition of conduct a business or undertaking

(1)For the purposes of this Law, a person conducts a business or undertaking:

(a)whether the person conducts the business or undertaking alone or with others; and

(b)whether or not the business or undertaking is conducted for profit or gain.

(2)A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.

(3)An elected member of a local government authority does not in that capacity conduct a business or undertaking.

(4)The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Law or any provision of this Law.

(5)A volunteer association does not conduct a business or undertaking for the purposes of this Law.

7At the end of Part 1 of the Marine Safety (Domestic Commercial Vessel) National Law

Add:

8ADefinition of worker

(1)A person is a worker for the purposes of this Law if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:

(a)an employee; or

(b)a contractor or subcontractor; or

(c)an employee of a contractor or subcontractor; or

(d)an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or

(e)an outworker; or

(f)an apprentice or trainee; or

(g)a student gaining work experience; or

(h)a volunteer; or

(i)a person of a class prescribed by the regulations.

(2)The person conducting the business or undertaking is also a worker for the purposes of this Law if the person is an individual who carries out work in that business or undertaking.

(3)Each of the following persons is also a worker for the purposes of this Law:

(a)a member (however described) of a police force of the Commonwealth, a State or a Territory;

(b)a member of the Australian Defence Force;

(c)a person who holds or is acting in an office established by a law of the Commonwealth, a State or a Territory;

(d)a person who constitutes, or is acting as the person constituting, a public authority;

(e)a person who is, or is acting as, a member or deputy member of a public authority;

(f)a person who is, or is acting as, a member or a deputy member of a body that:

(i)is established by or under a law of the Commonwealth, a State or a Territory establishing a public authority; and

(ii)is established for a purpose associated with the performance of the functions of the public authority;

(g)a person of a class specified in an instrument under subsection (4).

(4)The National Regulator may by legislative instrument specify a class of persons for the purposes of subsection (3)(g) only if persons of that class engage in activities or perform acts:

(a)at the request or direction of the Commonwealth, a State, a Territory or a public authority; or

(b)for the benefit of the Commonwealth, a State, a Territory or a public authority; or

(c)under a law of the Commonwealth, a State or a Territory.

8Section 13 of the Marine Safety (Domestic Commercial Vessel) National Law

Repeal the section, substitute:

13Offences relating to contraventions of section 12

(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.

Penalty:

(a)if the offence is committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$300,000 or 5 years imprisonment, or both; or

(b)if the offence is committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$600,000 or 5 years imprisonment, or both; or

(c)if the offence is committed by a body corporate—$3,000,000.

(2)The prosecution bears the burden of proving that the person did not have a reasonable excuse for the act or omission.

(3)A person commits an offence if:

(a)the person does an act or omits to do an act; 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.

Penalty:

(a)if the offence is committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$150,000; or

(b)if the offence is committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$300,000; or

(c)if the offence is committed by a body corporate—$1,500,000.

(4)Strict liability applies to paragraph (3)(c).

Note:For strict liability, see section 6.1 of the Criminal Code.

(5)A person commits an offence if:

(a)the person does an act or omits to do an act; and

(b)the act or omission contravenes section 12(1).

Penalty:

(a)if the offence is committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$50,000; or

(b)if the offence is committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$100,000; or

(c)if the offence is committed by a body corporate—$500,000.

9Section 15 of the Marine Safety (Domestic Commercial Vessel) National Law

Repeal the section, substitute:

15Offences relating to contraventions of section 14

(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 14; 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.

Penalty:

(a)if the offence is committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$300,000 or 5 years imprisonment, or both; or

(b)if the offence is committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$600,000 or 5 years imprisonment, or both; or

(c)if the offence is committed by a body corporate—$3,000,000.

(2)The prosecution bears the burden of proving that the person did not have a reasonable excuse for the act or omission.

(3)A person commits an offence if:

(a)the person does an act or omits to do an act; and

(b)the act or omission contravenes section 14; and

(c)the act or omission exposes an individual to a risk of death or serious injury or illness.

Penalty:

(a)if the offence is committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$150,000; or

(b)if the offence is committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$300,000; or

(c)if the offence is committed by a body corporate—$1,500,000.

(4)Strict liability applies to paragraph (3)(c).

Note:For strict liability, see section 6.1 of the Criminal Code.

(5)A person commits an offence if:

(a)the person does an act or omits to do an act; and

(b)the act or omission contravenes section 14.

Penalty:

(a)if the offence is committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$50,000; or

(b)if the offence is committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$100,000; or

(c)if the offence is committed by a body corporate—$500,000.

10Section 18 of the Marine Safety (Domestic Commercial Vessel) National Law

Repeal the section, substitute:

18Offences relating to contraventions of section 16 or 17

(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 16(1) or 17(1) or (2); 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.

Penalty:

(a)if the offence is committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$300,000 or 5 years imprisonment, or both; or

(b)if the offence is committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$600,000 or 5 years imprisonment, or both; or

(c)if the offence is committed by a body corporate—$3,000,000.

(2)The prosecution bears the burden of proving that the person did not have a reasonable excuse for the act or omission.

(3)A person commits an offence if:

(a)the person does an act or omits to do an act; and

(b)the act or omission contravenes section 16(1) or 17(1) or (2); and

(c)the act or omission exposes an individual to a risk of death or serious injury or illness.

Penalty:

(a)if the offence is committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$150,000; or

(b)if the offence is committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$300,000; or

(c)if the offence is committed by a body corporate—$1,500,000.

(4)Strict liability applies to paragraph (3)(c).

Note:For strict liability, see section 6.1 of the Criminal Code.

(5)A person commits an offence if:

(a)the person does an act or omits to do an act; and

(b)the act or omission contravenes section 16(1) or 17(1) or (2).

Penalty:

(a)if the offence is committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$50,000; or

(b)if the offence is committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$100,000; or

(c)if the offence is committed by a body corporate—$500,000.

11Section 20 of the Marine Safety (Domestic Commercial Vessel) National Law

Repeal the section, substitute:

20Offences relating to contraventions of section 19

(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 19(1), (2) or (3); 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.

Penalty:

(a)if the offence is committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$300,000 or 5 years imprisonment, or both; or

(b)if the offence is committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$600,000 or 5 years imprisonment, or both.

(2)The prosecution bears the burden of proving that the person did not have a reasonable excuse for the act or omission.

(3)A person commits an offence if:

(a)the person does an act or omits to do an act; and

(b)the act or omission contravenes section 19(1), (2) or (3); and

(c)the act or omission exposes an individual to a risk of death or serious injury or illness.

Penalty:

(a)if the offence is committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$150,000; or

(b)if the offence is committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$300,000.

(4)Strict liability applies to paragraph (3)(c).

Note:For strict liability, see section 6.1 of the Criminal Code.

(5)A person commits an offence if:

(a)the person does an act or omits to do an act; and

(b)the act or omission contravenes section 19(1), (2) or (3).

Penalty:

(a)if the offence is committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$50,000; or

(b)if the offence is committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$100,000.

12Section 161 of the Marine Safety (Domestic Commercial Vessel) National Law

Repeal the section, substitute:

161Offences relating to contraventions of conditions by accredited persons

(1)An accredited 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 a condition prescribed by the regulations for the purposes of this paragraph; 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.

Penalty:

(a)if the offence is committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$300,000 or 5 years imprisonment, or both; or

(b)if the offence is committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$600,000 or 5 years imprisonment, or both; or

(c)if the offence is committed by a body corporate—$3,000,000.

(2)The prosecution bears the burden of proving that the person did not have a reasonable excuse for the act or omission.

(3)An accredited person commits an offence if:

(a)the person does an act or omits to do an act; and

(b)the act or omission contravenes a condition prescribed by the regulations for the purposes of this paragraph; and

(c)the act or omission exposes an individual to a risk of death or serious injury or illness.

Penalty:

(a)if the offence is committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$150,000; or

(b)if the offence is committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$300,000; or

(c)if the offence is committed by a body corporate—$1,500,000.

(4)Strict liability applies to paragraph (3)(c).

Note:For strict liability, see section 6.1 of the Criminal Code.

(5)An accredited person commits an offence if:

(a)the person does an act or omits to do an act; and

(b)the act or omission contravenes a condition prescribed by the regulations for the purposes of this paragraph.

Penalty:

(a)if the offence is committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$50,000; or

(b)if the offence is committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$100,000; or

(c)if the offence is committed by a body corporate—$500,000.

13Application of amendments made by this Schedule

The amendments of Part 3 of the Marine Safety (Domestic Commercial Vessel) National Law made by this Schedule apply in relation to acts and omissions occurring on or after the commencement of this Schedule.

[Minister’s second reading speech made in—
House of Representatives on 24 May 2012
Senate on 20 June 2012]

ANNEXURE 3

Amendments to be made to the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 of the Commonwealth

Marine Safety (Domestic Commercial Vessel) National Law Amendments Act 2013 of the Commonwealth

Explanatory Memorandum

MARINE SAFETY (DOMESTIC COMMERCIAL VESSEL) NATIONAL LAW AMENDMENTS BILL 2013

OUTLINE

The purpose of the Bill is to amend the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 to ensure that the Australian Maritime Safety Authority (AMSA) as the National Marine Safety Regulator (the National Regulator) is able to reimburse to the states and Northern Territory amounts collected for infringement notices.

FINANCIAL IMPACT STATEMENT

The proposed amendments do not place any additional financial burden on the domestic commercial vessel industry.

REGULATION IMPACT STATEMENT

The proposed amendments do not place any additional regulatory burden on the domestic commercial vessel industry.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Marine Safety (Domestic Commercial Vessel) National Law Amendment Bill 2013

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill/Legislative Instrument

The purpose of the Bill is to amend the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (the Act) to ensure that the Australian Maritime Safety Authority (AMSA) as the National Marine Safety Regulator (the National Regulator) is able to reimburse to the states and Northern Territory amounts collected for infringement notices.

Human rights implications

This Bill does not engage any of the applicable rights or freedoms.

Conclusion

This Bill is compatible with human rights as it does not raise any human rights issues.

Minister for Infrastructure and Transport,
the Honourable Anthony Albanese, MP

NOTES ON CLAUSES

Clause 1: Short Title

This is a formal provision that specifies that the Act may be referred to as the Marine Safety (Domestic Commercial Vessel) National Law Amendment Act 2013 (the Act).

Clause 2: Commencement

This clause sets out when provisions in the Act will commence.  Sections 1 to 3 and anything else in the Act not elsewhere covered by this table will commence on Royal Assent.  Schedule 1 will commence on the later of Royal Assent, and immediately after section 3 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012.

The intention of the commencement is for the proposed amendments in the Bill to commence at the same time as the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (the National Law Act) to ensure that the infringement notice framework operates in the way it was originally intended.

Clause 3: Schedule(s)

This clause provides that the National Law Act is amended as specified and set out in Schedule 1 to the Act.

SCHEDULE 1 – TECHNICAL AMENDMENTS

Item 1 -

Subsection 138(1) of Schedule 1 of the National Law Act will be amended to substitute the reference to the “Commonwealth” with “National Regulator”. The proposed amendment will allow for regulations to be made under section 138 of the National Law Act to enable an alleged offender to pay a penalty to the National Regulator as an alternative to prosecution.

Item 2 -

Subsection 162(3) of Schedule 1 of the National Law Act will be amended to substitute the reference to the “Commonwealth” with “National Regulator”. The proposed amendment will allow for regulations to be made under section 162 of the National Law to enable a person who is alleged to have contravened a provision of the regulations to pay a civil penalty to the National Regulation as an alternative to proceedings for a civil penalty.

Marine Safety (Domestic Commercial Vessel) National Law Amendment Act 2013

Contents

1Short title  356

2Commencement  356

3Schedule(s)  357

Schedule 1—Technical amendments  358

Marine Safety (Domestic Commercial Vessel) National Law Act 2012 358

Marine Safety (Domestic Commercial Vessel) National Law Amendment Act 2012

No. 9, 2013

An Act to amend the Marine Safety (Domestic Commercial Vessel) National Law Act 2012, and for related purposes

[Assented to 14 March 2013]

The Parliament of Australia enacts:

1Short title

This Act may be cited as the Marine Safety (Domestic Commercial Vessel) National Law Amendment Act 2013.

2Commencement

(1)Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	14 March 2013
2.  Schedule 1	The later of: (a) the start of the day this Act receives the Royal Assent; and (b) immediately after the commencement of section 3 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012.	1 July 2013 (paragraph (b) applies)

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2)Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Technical amendments

Marine Safety (Domestic Commercial Vessel) National Law Act 2012

1 Subsection 138(1) of Schedule 1

Omit “Commonwealth”, substitute “National Regulator”.

2Subsection 162(3) of Schedule 1

Omit “Commonwealth”, substitute “National Regulator”.

[Minister’s second reading speech made in—
House of Representatives on 6 February 2013
Senate on 28 February 2013]