Simpson and Australian Maritime Safety Authority
[2006] AATA 813
•22 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 813
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2006/0104
GENERAL ADMINISTRATIVE DIVISION ) Re GRAHAME SIMPSON Applicant
And
AUSTRALIAN MARITIME SAFETY AUTHORITY
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly Date22 September 2006
PlaceSydney
Decision I affirm the decision under review in that his steam training is more than ten years old and does not satisfy provision 32.2 of MO3, and provision 15 does not permit experience to be considered as equivalent to “training”. I set aside the decision to refuse the Motor Certificate and remit the matter for reconsideration in accordance with the following recommendations:
(a) That further consideration be given to the revalidation course Mr Simpson did in 2005 for his Steam certificate, and to the course he did to qualify for his Class 3 certificate when determining whether he has equivalent training;
(b) That all the material available at the hearing before me and any additional material Mr Simpson may provide be taken into account;
(c) That consideration be given to conducting the oral examination before all other eligibility criteria are satisfied.
[sgd] Senior Member, Mrs Josephine Kelly
CATCHWORDS
AUSTRALIAN MARITIME SAFETY AUTHORITY – Applicant seeks Certificate of Competency as an Engineer Class 2 (Motor) – whether experience can satisfy course training component – decision under review affirmed.
LEGISLATION
S 15, 16, 425AA, 426A of the Navigation Act 1912 (Cth)
Ss 6, 7, 15, 58 Australian Maritime Safety Authority Act 1990 (Cth)
Provisions 1.1, 2, 6, 7.3, 7.4, 15, 16, 32.2, 32.3 Marine Orders Part 3 Issue 6 – Seagoing Qualifications
Regulation I/6 Amended annex to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978
Section A-I/6 and Table A-III/2 of the Seafarers’ Training, Certification and Watchkeeping Code,
REASONS FOR DECISION
22 September 2006 Senior Member, Mrs Josephine Kelly Introduction
2. This case is about one of the requirements that must be satisfied to gain a particular seafarer’s qualification, a Certificate of Competency as an Engineer Class 2 (Motor) (“the Motor Certificate”). It permits an engineer to work on vessels propelled by motors more than 3,000 kW in power, and up to 200 nautical miles to sea. The Australian Maritime Safety Authority (AMSA) is the body responsible for issuing the Certificate.
3. Mr Grahame Simpson has held an AMSA Certificate of Competency as an Engineer Class 1 (Steam) (“the Steam certificate”) since 1981. He requires the Motor Certificate to work on three tug boats operating in Newcastle which have motors larger than 3,000 kW power.
Issue
4. The only issue in these proceedings is whether Mr Simpsons’ 18 years’ experience as a ship’s surveyor satisfies a requirement to qualify for the Motor Certificate to undertake an 18 week course of study (“the course”).
5. By way of background, on 5 April 2006, Deputy President Purvis determined that the Tribunal has jurisdiction in this matter. He said: The General Manager made a decision as that word is defined in section 3 of the Administrative Appeals Tribunal Act 1975. He refused to give a certificate and/or refused to give consent to dispensing with completion of the course”.
6. Following a series of e-mails and letters between AMSA and Mr Simpson, his understanding when he came to the hearing was that the only hurdle he had to overcome was to satisfy the course requirement. The course is not available in Sydney. Mr Simpson would have to resign his present position in Sydney, seek accommodation in Newcastle, and spend 18 weeks studying (subject to any exemptions that might be given) in order to do the course. He regards the Motor Certificate as a lower level Certificate than the one he holds (although for a different kind of propulsion), and he considers that his 18 years’ experience and training as a ships’ surveyor more than satisfies the course requirement. Mr Simpson provided to me a copy of the course program.
7. AMSA’s position at the beginning of the hearing was that he also failed to meet other requirements. However, after hearing from Mr Simpson that he believed AMSA had been satisfied about various matters, AMSA’s legal representative expressed some uncertainty about AMSA’s position on some requirements, but not about the requirement to do the course.
8. During discussion, Mr Simpson said that he never expected to get a certificate as a result of these proceedings. Both he and AMSA’s legal representative agreed that he had to do an oral examination. They also agreed that I should deal only with the question of whether Mr Simpson has to undertake the prescribed course. In any event, given the uncertainty of AMSA’s position on other requirements and the lack of evidence about those other matters, I was not in a position to do otherwise.
The Law
9. Section 16 of the Navigation Act 1912 (Cth) (“the Navigation Act”) makes it an offence to falsely represent oneself to be a qualified master, officer or seaman of any designation, to perform such duties or employ someone to perform those duties if you are not qualified under the regulations and orders. What is the relevant regulatory scheme?
10. Australia is a party to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (as amended) (“the STCW Convention”). Australia is also a party to the mandatory Seafarers’ Training, Certification and Watchkeeping (STCW) Code which came into force in Australia on 1 February 1997. AMSA is the entity with primary responsibility for enforcing STCW Convention standards in this country although some state based seafarer qualifications are aligned with STCW requirements.
11. Section A-I/6 of the STCW Code deals with training and assessment. Clause 1 provides:
Each party shall ensure that all training and assessment of seafarers for certification under the Convention is:
.1 structured in accordance with written programmes, including such methods and media of delivery, procedures, and course material as are necessary to achieve the prescribed standard of competence; and
.2 conducted, monitored, evaluated and supported by persons qualified in accordance with paragraphs 4, 5, and 6.
12. Clause 2 provides that people conducting in-service training or assessment on board ship should only do so when it would not adversely affect the normal operation of the ship and they can “dedicate their time and attention to training or assessment”.
13. Clause 3 requires each party to the Code to ensure that instructors, supervisors and assessors are appropriately qualified. Clauses 4, 5 and 6 provide criteria to be satisfied by a person conducting in-service training either on board or ashore, a person supervising in-service training, and a person conducting in-service assessment, respectively.
14. Clause 7 requires each party which recognizes a course of training, a training institution or a qualification granted by a training institution, to ensure that the qualifications and experience of instructors and assessors satisfy certain quality standard provisions.
15. Table A-III/2 in the STCW Code is headed “Specification of minimum standard of competence for chief engineer officers and second engineer officers on ships powered by main propulsion machinery of 3,000 kW propulsion power or more”. It sets out the criteria of competence to be satisfied.
16. AMSA is created by the Australian Maritime Safety Authority Act 1990 (Cth) (“the AMSA Act”). The following is a summary of relevant provisions of that Act. AMSA’s functions are outlined in section 6, and include such other functions as are conferred on it by or under any other Act (s 6(1)(d)). Section 6 confers on AMSA the responsibility for the administration of the Navigation Act. Section 7 requires AMSA to perform its functions in a manner consistent with Australia’s obligations under any agreement it has with another country. Section 58 allows AMSA to delegate to a person all or any of its powers by written instrument.
17. Part II of the Navigation Act deals with masters and seamen. Section 15 allows for the making of regulations with respect to the qualification of masters, officers and seamen. Section 425(1AA) allows for the making of orders in any circumstances in which regulations can be made. Section 426A provides that an order made under that section is to be taken to be an enactment for the purposes of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”).
18. On 20 August 2004, the Chief Executive Officer of AMSA made Marine Orders Part 3 Issue 6 – Seagoing Qualifications (“MO3”). Provision 1.1 of MO3 states that its purpose is to specify matters for the purpose of section 15 of the Navigation Act, and in so doing gives effect to the STWC Convention.
19. Provision 6 of MO3 specifies the certificates that are required for the purposes of section 16 of the Navigation Act. Provision 2 defines “approved” as “means approved by the Manager”. Provision 6.2 confers on the Manager, as defined, a discretion to permit the holder of a certificate other than a certificate referred to in Provision 6.1 to serve or to be taken into employment on a ship operating wholly within the Australian near coastal area for such period and subject to such conditions as the Manager determines. Provision 6.3 allows the Manager, upon written application, to grant temporary dispensation from provision 6.1, consistent with Article VIII of the STCW Convention.
20. Provision 7.1 requires applicants for a certificate of competency to serve as a seafarer to lodge an application in the approved form. Provision 8.1 requires the Manager to issue a certificate, if satisfied that the requirements of MO3 have been met.
21. Other relevant provisions of MO3 are 32.2, 7.3, 7.4 and 15.
Provision 32.2 Engineer Class 2
To be eligible for a certificate of competency as Engineer Class 2, a person must:
(a) hold a certificate as Engineer Watchkeeper, which need not be current, or such other certificate as the Manager considers to be equivalent or superior,
(b) have completed at least 24 months qualifying sea service on ships of at least 750 kW propulsion power, of which at least 15 months must have been while holding a certificate as Engineer Watchkeeper and at least 9 months being on ships using propulsion of the kind to which the certificate relates;
(c) have satisfactorily completed an appropriate approved course of study that:
(i) at least meets the standards specified in table A-III/2 of the STCW Code and includes management training and knowledge of the International Safety Management Code; and
(ii) includes practical training in:
(A) first aid at sea;
(B) advanced fire fighting in accordance with the provisions of section A-VI/3 of the STCW Code;
(d) hold a certificate of proficiency in survival craft and rescue boats other than fast rescue boats; and
(e) have passed an oral examination in appropriate operational knowledge conducted by an examiner.
7.3 Where, under this Part, the issue of a certificate to a person is dependent upon that person satisfactorily completing an approved course, that course must have been completed:
(a) if the applicant provides proof of continuity of sea service since completion of the course which is at least equivalent to the requirements for revalidation in 10.1(a)(i)—within 10 years of the certificate being issued; or
(b) in any other case—within 5 years of the certificate being issued, unless otherwise specified in this Part.
22. Provision 7.4 provides that where an oral examination is necessary, it is to be passed when all other eligibility criteria have been met and within the 12 months before the certificate is issued, but confers a discretion on the Manager Provision to determine otherwise.
23. Provision 32.3 sets out the requirements for Engineer Watchkeeper.
24. Provision 15 of MO3 is headed Equivalent qualifying sea service and training and provides:
If a person has satisfactorily completed sea service or training which the Manager considers is equivalent to all or part of the qualifying sea service or training prescribed by this Part in relation to eligibility to hold a certificate, that person is deemed to have satisfactorily completed all or that part, as appropriate, of the prescribed qualifying sea service or training in respect of that certificate.
25. There are four approved courses for certification as an Engineer Class 2 (Motor), one of which is offered at Newcastle as already mentioned.
26. Provision 16 deals with the calculation of sea service.
Mr Simpson’s evidence
27. Mr Simpson has been a marine engineer since 1974. He went to sea with the Australian National Line, working on a variety of motor and steam ships in the overseas trade. Over the next few years he obtained various qualifications including his Steam Certificate in 1981. It was revalidated in 2000, and again in 2005 when it was extended until 17 August 2010. Mr Simpson said that the revalidation training was the same for Motor and Steam.
28. He worked in the petrochemical industry from 1982 until 1986 and then joined the then Maritime Services Board (now the Waterways Authority) in New South Wales as a Marine Engineer and Ship Surveyor. His Steam Certificate was a pre-requisite for the position.
29. Mr Simpson’s duties included all facets of ship construction, repair, operation, safety equipment and maintenance for vessels in NSW survey, which I understand to mean which operated intra-state. He supervised the construction, fit-out and completion of a vessel from a collection of steel plates on the shipyard floor, to the issuing of a Certificate of Survey to operate as a commercial vessel. He inspected and surveyed all types of vessels, including passenger ferries carrying up to 1100 persons, powered by diesel engines up to 4,400 kW. The vessels were certified as being safe to operate and carry passengers or cargo for the next 12 months or until the expiry of the Certificate of Survey. Mr Simpson provided a copy of the detailed Job Specification for that position.
30. The Steam Certificate allows him to work on steam propelled vessels of unlimited size to an unlimited distance to sea. He can sail around the world. As Chief Engineer he would be in full charge of all machines on board a vessel. He said that ships are very similar in every way, except for the main propulsion engine and its associated support systems. The similarities include:
“personnel or crewing requirements
hull contruction, bulkheads and decks
propellers, shafting and rudders
bilge and ballast systems (stability)
fire protection and safety systems
switchboard and electrical systems
diesel generators and power systems
fuel storage and reticulation
sewerage and waste systemshotel services”
31. Since December 2004 he has also held a Certificate of Competency Marine Engineer Class 3 issued by the Waterways Authority (NSW) (“the Class 3 Certificate) which permits him to work on 11 tugs on Sydney Harbour and Port Botany. They are motor powered vessels of less than 3000 kW power. The Class 3 Certificate allows him to operate as Chief Engineer on ships of less than 3000 kW, out to 200 nautical miles. Although it does not state it on the certificate, Mr Simpson described the Class 3 Certificate as a Motor Certificate. He also believed that it was an STCW certificate, although he acknowledged that if he went overseas he would have to get it endorsed by AMSA.
32. Mr Simpson originally applied to AMSA for a Certificate to allow him to work on vessels up to say 5000 kW, but he understood that AMSA “apparently prefer not to issue certificates with restrictions”. As he inquired further, Mr Simpson said that he “encountered obstacles, to what should have been a fairly straightforward process, involving the completion of mine months approved sea time, as an engineer on motorships, of more than 750 kW, followed by an Oral exam, by an AMSA examiner”.
33. Mr Simpson provided evidence to AMSA of sea service on tugs from 3 December 2004 to 5 April 2005. He understood that AMSA had accepted that he had satisfied the qualifying sea service requirement of 9 months. I understood Mr Simpson’s evidence to be that since he had provided that information, he had continued to accrue experience which he considered contributed to the qualifying sea service.
34. He believed that he had applied for validation in 1982 for a Class 1 Motor Certificate and had sat for an oral examination, but apparently there is no record of his having done so (see T9).
35. During cross-examination Mr Simpson said that the largest vessel he would have surveyed was 600 tonnes. He had not surveyed a vessel as large as the Spirit of Tasmania. He only slept on board a vessel a couple of times a year. He often went to shipyards and supervised construction and installation of engines; he tested safety equipment and was involved in power trials. He would sail no more than five or ten miles off the coast. He would supervise the engineer during these trials and tell him what to test. He spent a lot of time on vessels. He did initial surveys, surveys for modifications, and for extensions of certification. A surveyor’s jurisdiction covers all equipment on a ship from the wheel house, navigation, compass, steering and manoeuvring. There are two kinds of surveyor – an engineer surveyor which he was, or a shipwright’s surveyor. He acknowledged that a naval architect could be a surveyor for limited purposes, including looking at stability and construction drawings but could not do the engineer’s survey including power trials. A person with construction or maintenance experience may be a ship’s surveyor but for smaller vessels.
36. He also said that since a recent crew change, there is no watchkeeper on the tugs on which he works, and one engineer is responsible for all the engineering. Therefore he has not had the opportunity to work with an Engineer Class 1 (Motor). He also made the point that the tugs he wishes to work on are only 400 kW more powerful than those he now works on relying on his Class 3 Certificate. Mr Simpson also pointed out that the requirement for sea-service to qualify for the Motor Certificate which he needs, is on vessels of more than 750 kW, much smaller than the vessels he is working on.
37. He conceded that he has not had experience on large ships.
AMSA’S POSITION
38. AMSA’s reasons for refusing Mr Simpson’s application as maintained at the beginning of the hearing before me may be summarised as:
- he does not hold the qualification of Engineer Watchkeeper Motor or an equivalent or superior certificate (32.2(a);
- he has not satisfied the sea service requirement of provision 32.2(b);
- he has not satisfactorily completed an appropriate approved course of study (32.2(c)); (prescribed training or have the equivalent);
- he has not sat for the oral examination (32.2(e) which AMSA contends may only be completed when all other requirements have been met (subject to the Manager’s discretion (7.4)(a)).
39. There were other requirements which were apparently not in issue, such as familiarity with the English language and medical fitness.
40. AMSA maintains the requirements of provisions 32.2, 16 and 7.3 of MO3 are non-discretionary except to the extent that equivalence can be found under provision 15.
41. AMSA submitted that provision 15 does not assist Mr Simpson because AMSA assesses applications on a case by case basis. The basis of the assessment is the degree to which the non-standard sea service or training meets the STCW Convention requirements and how closely it aligns with currently existing standards accepted by the Australian maritime industry. It maintained that such an approach should not be changed without consultation with the international and Australian maritime industries. AMSA explained that the International Maritime Organisation (IMO) web-site explains in detail why the code was restructured in 1995. In short, it was because the previous provisions had conferred too much discretion on states administering the Code, with the consequence that IMO standards were not being followed.
42. AMSA pointed to Regulation I/6 in the Amended annex to the 1978 STCW Convention (“the Annex”) which requires each party to ensure that the training and assessment of seafarers, as required under the Convention, are administered, supervised and monitored in accordance with the provisions of section A-I/6 of the STCW Code, and that those responsible for such training and assessment are qualified as required by that Code.
43. AMSA said that the courses are approved in accordance with national training certification procedures by the National Training Certification Authority. AMSA works with the bodies offering courses to ensure that the courses satisfy the requirements of the STCW Code.
44. In response to Mr Simpson’s argument that his work experience was “in-service training” within the meaning of the STCW Code, AMSA said that it was not. Rather where that term is used in the Code, it is in the context of a seafarer, for example a master, undertaking training in the course of his working in that role. AMSA also said that in-service training was not experience, but rather a structured approved training program.
45. The term “in-service” is not defined.
Consideration
46. On 3 February 2006 the General Manager decided that Mr Simpson did not satisfy provision 32.2 of MO3 because his steam training was more than 10 years old and provision 15 of MO3 does not permit experience to be considered equivalent to training, “Therefore MSA has no legislative basis on which to accept your work experiences as a substitute for the required training course”.
47. Clearly the course Mr Simpson completed to qualify for his Steam Certificate between 1978 and 1981 cannot be taken into account to satisfy provision 32.2(c) of MO3 because it is more than 10 years old and therefore excluded by provision 7.3 of MO3.
48. I am unable to accept Mr Simpson’s argument that his experience is relevantly “in-service training”. The provisions of the STWC Code and the Annex referred to above provide a structure of training, including in-service training, and assessment, administered, supervised and assessed by appropriately qualified and experienced people. Mr Simpson’s experience while extensive, does not satisfy that description in the context of those provisions. The provisions of MO3 also provide for structured “training”, including assessment, and therefore his experience does not satisfy the requirements of MO3 in relation to training.
49. It follows that I consider that the General Manager was correct in concluding that provision 15 of MO3 does not permit experience to be considered as equivalent to “training”.
50. I sympathise with Mr Simpson’s obvious frustration. I found him to be an impressive witness in terms of his knowledge and his willingness to make appropriate concessions. However, the regulatory scheme is in my view restrictive as I have found. On the evidence before me, I must affirm the decision under review in that his steam training is more than ten years old and does not satisfy provision 32.2 of MO3, and provision 15 does not permit experience to be considered as equivalent to “training”. I have to make the correct or preferable decision (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 69. I note that the General Manager acknowledged that Mr Simpson will be required to undertake part of the course and not the whole.
51. Given Deputy President Purvis’s decision on jurisdiction set out earlier in this decision, I should address the possible interpretation that there was a decision to refuse to give Mr Simpson a certificate. I set that decision aside and remit the matter for reconsideration in accordance with the recommendations set out at the end of this decision.
52. In the event that AMSA is not satisfied that Mr Simpson satisfies the training requirement, I make the following comments which may assist it to make a decision that accommodates Mr Simpson’s circumstances and its regulatory responsibilities under the STCW Convention and Code. There are discretions conferred by provisions of MO3 which and are clearly intended to avoid inflexibility.
53. Although not mentioned by either party, I referred to Provision 6.2 of MO3 in the outline of the law because it confers a discretion on the Manager which might be thought to be relevant to Mr Simpson’s circumstances. As I understand the provision, it applies to certificates issued by other authorities, which would include Mr Simpson’s Class 3 certificate issued by Waterways NSW. That certificate permits Mr Simpson to work on motor vessels less than 3000 kW in power, that is only 401 kW less powerful than those he wishes to work on. I note also that qualifying sea service for the Motor Certificate refers to vessels of only 750 kW, whereas Mr Simpson is currently working on much more powerful vessels as I understand his evidence.
54. As I understand the discretion, it may permit the Manager to allow Mr Simpson to serve on the tugs in Newcastle subject to time or other conditions as a holder of his Class 3 Certificate. One condition that comes to mind would be that he complete the necessary components of the course within a certain period of time, which would then satisfy the course requirement for the Motor Certificate. By adopting such an approach, it seems to me that AMSA would not be compromising the standards imposed by the STWC Convention, the STWC Code and MO3.
Decision
55. I affirm the decision under review in that his steam training is more than ten years old and does not satisfy provision 32.2 of MO3, and provision 15 does not permit experience to be considered as equivalent to “training”. I set aside the decision to refuse the Motor Certificate and remit the matter for reconsideration in accordance with the following recommendations:
(a)That further consideration be given to the revalidation course Mr Simpson did in 2005 for his Steam certificate, and to the course he did to qualify for his Class 3 certificate when determining whether he has equivalent training;
(b)That all the material available at the hearing before me and any additional material Mr Simpson may provide be taken into account;
(c)That consideration be given to conducting the oral examination before all other eligibility criteria are satisfied.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member
Signed: Ms Preethi Nimmagadda
AssociateDate of Hearing 27 July 2006
Date of Decision 22 September 2006
Solicitor for the Applicant Unrepresented
Solicitor for the Respondent AMSA Legal
Counsel for the Respondent Barbara Pearson
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