Navigation (Confidential Marine Reporting Scheme) Regulations 2004 (Cth)

Navigation (Confidential Marine Reporting Scheme) Regulations 2004

Statutory Rules 2004 No. 951

I, JOHN SANDERSON, Administrator of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Navigation Act 1912.

Dated 13 May 2004

JOHN SANDERSON

Administrator

By His Excellency’s Command

JOHN ANDERSON

Minister for Transport and Regional Services

Contents

1Name of Regulations

These Regulations are the Navigation (Confidential Marine Reporting Scheme) Regulations 2004.

2Commencement

These Regulations commence on the date of their notification in the Gazette.

3Definitions

In these Regulations:

Act means the Navigation Act 1912.

Confidential Marine Reporting Scheme or CMRS means the scheme established under subregulation 5 (1) for confidential reporting of reportable safety issues.

Executive Director means the person for the time being holding, occupying or performing the duties of the position of Executive Director of Transport Safety Investigation referred to in section 12 of the TSI Act.

mandatory reporting requirement means a requirement to report a matter under any of the following:

1. (a)

   section 151, 190A, 268, 269, 269A or 417 of the Act;

2. (b)

   subsection 18 (1) or 19 (1) of the TSI Act;

3. (c)

   provision 9.2.3 of Part 32, or provision 8.2.1 of Part 54, of the Marine Orders;

4. (d)

   section 107 of the Occupational Health and Safety (Maritime Industry) Act 1993.

Marine Orders means the Marine Orders made under subsection 425 (1AA) of the Act, as in force from time to time.

reportable safety issue means a matter that may be reported under subregulation 9 (1).

reporter, in relation to a report purportedly made under CMRS, means the person who made the report.

TSI Act means the Transport Safety Investigation Act 2003.

unlawful interference with a ship has the meaning given by subregulation 14 (2).

4Application of these Regulations

These Regulations apply to marine activities associated with the operation or safety of a ship to which the Act applies.

5Establishment and purposes of scheme

1. (1)

   There is established a scheme (to be known as the Confidential Marine Reporting Scheme) for the confidential reporting of reportable safety issues.

2. (2)

   The scheme is to be administered by the Executive Director.

3. (3)

   The purpose of the scheme is to enable the Executive Director:

   1. (a)

      to provide a confidential reporting scheme for maritime safety issues; and

   2. (b)

      to use the reports made under the scheme to identify unsafe procedures, practices or conditions in order to prevent or lessen the likelihood of maritime accidents.

6Powers and functions of Executive Director

Without limiting the generality of the powers and functions of the Executive Director as administrator of CMRS, the Executive Director has the following powers and functions:

1. (a)

   to accept and process reports;

2. (b)

   to forward or destroy reports;

3. (c)

   to review information contained in reports;

4. (d)

   to establish and maintain databases for storing information contained in reports;

5. (e)

   if appropriate, to contact reporters about their reports;

6. (f)

   to send information contained in reports to the Australian Maritime Safety Authority;

(g) to issue information briefs or alert bulletins that the Executive Director considers are necessary or desirable in the interests of maritime safety;

1. (h)

   to publish details of reviews made under paragraph (c);

2. (i)

   to liaise with any group or committee established to assess the effectiveness of CMRS.

Note Regulations 16, 17 and 18 affect the powers and functions of the Executive Director relating to information contained in reports.

7Who may make a report – general

The following persons may make a report under CMRS about a reportable safety issue:

1. (a)

   a person engaged in, or connected with, marine activities to which these Regulations apply;

2. (b)

   a person who, although not engaged in or connected with such marine activities, observes or becomes aware of a reportable safety issue.

Examples for paragraph (b)

A passenger on board a ship, or a person on shore, who observes a near collision involving a ship to which the Act applies.

8Who may make a report – persons with other reporting obligations

1. (1)

   A person who has an obligation to make a report under a mandatory reporting requirement must not use CMRS to make the report.

2. (2)

   A person who has an obligation to make a report under a mandatory reporting requirement may make a report under CMRS but only if the report is about a reportable safety issue that is not a matter that the person is required to report under the mandatory reporting requirement.

Note 1 It is possible for the same matter to be both a reportable safety issue and a matter that a person is required to report under a mandatory reporting requirement (for example, a near collision involving a ship to which the Act applies).

Note 2 A person who erroneously makes a report under CMRS about a matter that the person is required to report under a mandatory reporting requirement or any other legislative reporting requirement does not satisfy his or her reporting obligations under the requirement.

9What may be reported?

1. (1)

   Each of the following matters may be reported under CMRS if it is in relation to the safety of a ship to which the Act applies (reportable safety issue):

   1. (a)

      the ship nearly being stranded or involved in a collision;

   2. (b)

      the ship suffering a significant loss of stability to the extent that the safety of the ship is, or could be, seriously endangered;

   3. (c)

      the ship having unsafe handling characteristics;

   4. (d)

      a procedure, practice or condition associated with maritime safety that a reasonable person would consider endangers, or, if not corrected, would endanger, the safety of the ship or a person, for example:

      1. (i)

         unsafe navigation; or

      2. (ii)

         deviation from established collision-avoidance procedures; or

      3. (iii)

         inadequate passage planning; or

      4. (iv)

         poor bridge procedures; or

      5. (v)

         crew schedules that result in fatigue; or

      6. (vi)

         bypassing of safety procedures because of operational or commercial pressures; or

      7. (vii)

         unsafe cargo stowage; or

      8. (viii)

         extreme corrosion of hull or other plating; or

      9. (ix)

         substandard condition of hatches, water-tight doors or openings; or

      10. (x)

          substandard condition of machinery or steering systems; or

      11. (xi)

          substandard condition of cargo handling equipment; or

      12. (xii)

          inadequate navigational equipment, charts or publications; or

      13. (xiii)

          crew’s inadequate language skills; or

      14. (xiv)

          crew’s poor knowledge of navigation, safety, or seamanship; or

      15. (xv)

          inadequately marked obstructions to safe navigation; or

      16. (xvi)

          lack of traffic or weather information;

   5. (e)

      non-compliance with regulations associated with maritime safety, for example:

      1. (i)

         inadequate certification of crew; or

      2. (ii)

         defective life saving or fire fighting equipment; or

      3. (iii)

         inadequate fire or boat drills; or

      4. (iv)

         unsafe manning or working practices;

   6. (f)

      any other matter that endangers, or could endanger, the safety of the ship or of a person.

2. (2)

   To avoid doubt, the following are not reportable safety issues:

   1. (a)

      unlawful interference with a ship;

   2. (b)

      industrial relations issues;

   3. (c)

      for a person who has an obligation to make a report under a mandatory reporting requirement — a matter that the person is required to report under the mandatory reporting requirement.

10How are reports to be made?

1. (1)

   A person entitled to make a report under regulation 7 or 8 may make a report about a reportable safety issue.

2. (2)

   The report must be made to the Executive Director in a form and manner approved by the Executive Director.

3. (3)

   A report that is not made in writing must be reduced to writing by the Executive Director.

Example for subregulation (3)

A report made over the phone to the Executive Director must be reduced to writing by the Executive Director.

1. (4)

   The report must include the following information:

   1. (a)

      the name of the reporter;

   2. (b)

      the preferred means by which the Executive Director may contact the reporter (mailing or e-mail address, telephone or fax number);

   3. (c)

      a description of the matter comprising the reportable safety issue;

   4. (d)

      any of the following details, if relevant and known to the reporter:

      1. (i)

         the name or description of the ship or ships involved;

      2. (ii)

         the date and local time when the reportable safety issue occurred or was observed;

      3. (iii)

         the position or location of the ship or ships involved at the time the reportable safety issue occurred or was observed;

      4. (iv)

         the weather at the time the reportable safety issue occurred or was observed;

      5. (v)

         the name of the owner or charterer of the ship or ships involved;

      6. (vi)

         the number of crew and passengers of the ship or ships involved;

      7. (vii)

         if the reportable safety issue has been reported by the reporter to another person (for example, to a ship’s safety delegate, a regulatory authority, a union or the ship’s manager), a statement to that effect and the name or position of the person to whom the reportable safety issue was reported;

      8. (viii)

         the occupation of the reporter.

Note 1 A copy of the approved form is available from ATSB’s website ( 2 A report that does not include the name of the reporter and that fails to give sufficient information to enable the reporter to be identified may nevertheless be accepted by the Executive Director (see subregulation 11 (3)).

11Processing of reports

1. (1)

   A report purportedly made in accordance with regulation 10 must be assessed by the Executive Director to determine whether the following conditions are complied with in relation to the report:

   1. (a)

      that the reporter is a person who may make a report under regulation 7 or 8;

   2. (b)

      that the matter described in the report is a reportable safety issue.

2. (2)

   A report in relation to which paragraphs (1) (a) and (b) are complied with must be accepted by the Executive Director.

3. (3)

   A report in relation to which the Executive Director is unable to determine whether paragraph (1) (a) is complied with because the reporter is not identified or identifiable may be accepted by the Executive Director if:

   1. (a)

      the Executive Director determines that the report is about a reportable safety issue that is important enough to warrant further consideration; and

   2. (b)

      the contents of the report can be independently verified.

Note Regulation 12 sets out the procedure for dealing with a report that has been accepted by the Executive Director.

1. (4)

   A report in relation to which paragraph (1) (a) or (b) is not complied with or a report that is not accepted under subregulation (3) must be destroyed, unless:

   1. (a)

      the report is made by a person who should have made the report under a mandatory reporting requirement, and is to be dealt with under regulation 13; or

   2. (b)

      the report is about an unlawful interference with a ship, and is to be dealt with under regulation 14.

12Dealing with reports that have been accepted

If the Executive Director accepts a report under subregulation 11 (2) or (3), the Executive Director:

1. (a)

   must determine, having regard to regulation 18, what information contained in the report is to be included in databases maintained for the purposes of CMRS; and

2. (b)

   must ensure that the report is destroyed after he or she considers that it is no longer necessary or desirable to keep the report for the purposes of keeping in contact with the reporter.

13Dealing with reports that should have been made under a mandatory reporting requirement

If the Executive Director receives a report from a person about a matter that the person should have reported under a mandatory reporting requirement, the Executive Director:

1. (a)

   if practicable, must inform the reporter of the reporter’s obligations under the mandatory reporting requirement; and

2. (b)

   may forward the report to the person to whom the matter should have been reported under the mandatory reporting requirement; and

3. (c)

   if the report is forwarded under paragraph (b), may keep a copy of the report; and

4. (d)

   if the report is not forwarded under paragraph (b), may keep or destroy the report.

14Dealing with reports relating to unlawful interference

1. (1)

   If a report is about an unlawful interference with a ship, the Executive Director must send the report to an APS employee performing a maritime security function in the Department.

2. (2)

   Each of the following acts done without lawful authority is an unlawful interference with a ship:

   1. (a)

      intentionally interfering with, damaging or destroying the ship or its equipment;

   2. (b)

      intentionally causing interference with, damage to or destruction of the ship or its equipment;

   3. (c)

      forcible boarding of the ship;

   4. (d)

      taking control of a ship by force, or threat of force, or any other form of intimidation;

   5. (e)

      restraining, or taking as hostage, a person on board the ship;

   6. (f)

      intentionally placing, or causing to be placed, on board the ship a weapon, hazardous device or material, or anything that puts the safety of the ship, or any person or property on board or off the ship, at risk;

   7. (g)

      intentionally putting the safety of the ship at risk by communicating false information.

15When Executive Director may contact reporter

1. (1)

   The Executive Director may contact a reporter if the Executive Director considers it necessary or desirable to do so for the purpose of these Regulations.

2. (2)

   Without limiting subregulation (1), the Executive Director may contact the reporter to:

   1. (a)

      confirm the reporter’s safety concern; or

   2. (b)

      seek clarification or more information about the report; or

   3. (c)

      determine if the reporter has tried to pursue the matter through other channels (such as company safety programs); or

   4. (d)

      evaluate the veracity of the report; or

   5. (e)

      give feedback about the report; or

   6. (f)

      seek agreement of the reporter for the purposes of subregulation 16 (4).

16Forwarding information to AMSA

1. (1)

   The Executive Director may send information contained in a report that has been accepted under these Regulations to the Australian Maritime Safety Authority.

2. (2)

   The Executive Director must not send information unless he or she considers that it is necessary or desirable to do so in the interests of maritime safety.

3. (3)

   To maintain the confidentiality of reporters, the Executive Director must ensure that, to the extent practicable, information that identifies, or tends to identify, the reporter is not included in any information sent by the Executive Director.

4. (4)

   If the Executive Director considers that, despite subregulation (3), the identity of the reporter may be inferred from the information to be sent, the Executive Director must not send the information without the consent of the reporter.

5. (5)

   The Executive Director may send information that identifies, or tends to identify, any other person referred to in the report if the Executive Director considers it necessary or desirable to do so in the interests of maritime safety.

17Use of information without consent of reporter

Information contained in a report that has been accepted under these Regulations (other than information that is personal information within the meaning of the Privacy Act 1988) may be used by the Executive Director, without the consent of the reporter, in connection with the following powers and functions of the Executive Director:

1. (a)

   to issue information briefs or alert bulletins;

2. (b)

   to publish details of reviews of information contained in reports;

3. (c)

   to liaise with any group or committee established to assess the effectiveness of the CMRS.

Note The Executive Director may use for another purpose, or disclose, information contained in a report (including personal information within the meaning of the Privacy Act 1988) if:

(a) the Executive Director believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the reporter or of another person; or

1. (b) the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.

   (See paragraphs 1 (b) and (d) of Principle 10, and paragraphs 1 (c) and (e) of Principle 11, of Section 14 of the Privacy Act 1988).

18Databases

The Executive Director must ensure that, to the extent practicable, information that identifies, or tends to identify, a reporter or any person referred to in a report is not permanently stored in any database maintained for the purposes of CMRS.

19Delegation by Executive Director

1. (1)

   The Executive Director may, in writing, delegate to a person engaged to perform duties in the Department (whether as an APS employee, SES employee or under any other arrangement) a power (except this power of delegation), function or duty of the Executive Director under these Regulations.

2. (2)

   In exercising powers, functions and duties under a delegation, the delegate must comply with any directions of the Executive Director.

Note APS employee and SES employee are defined in the Public Service Act 1999.

Note

1. Notified in the Commonwealth of Australia Gazette on 20 May 2004.