Simpson and the Australian Maritime Safety Authority

[2006] AATA 315

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 315

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No:    N2006/104

GENERAL ADMINISTRATIVE DIVISION		)
Re		GRAHAME SIMPSON

Applicant

And THE AUSTRALIAN MARITIME SAFETY AUTHORITY

Respondent

DECISION

Tribunal The Hon RNJ Purvis AM QC, Deputy President

Date5 April 2006

PlaceSydney

Decision The Tribunal has jurisdiction in this matter.

[Sgd] The Hon RNJ Purvis AM QC
  Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – hearing of jurisdiction – whether the Tribunal has jurisdiction to hear the matter – whether Tribunal has jurisdiction to review a position asserted by the General Manager of the Australian Maritime Safety Authority that the Applicant must complete the Australian Maritime Safety Authority approved course before being eligible for issue of an Engineering Class 2 (Motor) Certificate – Tribunal has jurisdiction in this matter – substantive application might now proceed.

Navigation Act 1912 – section 425(1AA)

Australian Maritime Safety Authority Act 1900

Administrative Appeals Tribunal Act 1975

Marine Orders, Part III, Issue 6

REASONS FOR DECISION

5 April 2006              The Hon RNJ Purvis AM Q.C., Deputy President

1.      The application presently before the Tribunal requires a determination to be made as to whether it has jurisdiction to review a position asserted by the General Manager of the Australian Maritime Safety Authority, AMSA, (the Respondent) on 6 January 2006 namely, that Mr Simpson must complete the Australian Maritime Safety Authority approved course again before being eligible for issue of an Engineering Class 2 (Motor) Certificate.

2. Pursuant to section 425(1AA) of the Navigation Act 1912 (“the Act”), on 20 August 2004 the Chief Executive Officer of the Australian Maritime Safety Authority made an order issuing Marine Orders Part III, Issue 6 to come into operation on 8 September 2004.  The Chief Executive Officer is under the Australian Maritime Safety Authority to manage the Authority (section 49 of the Australian Maritime Safety Authority Act 1990).  Anything done in the name of, or on behalf of the Authority by the Chief Executive Officer is to be taken to have been done by the Authority.

3.      Jurisdiction is by paragraph 5 of the Marine Orders conferred upon the Tribunal.  The Marine Orders provide:

“REVIEW OF DECISIONS

5.1      Internal review.

5.1.1    If the Manager makes a decision under this part a person affected by the decision may apply to the General Manager for review of that decision.

…

5.1.3     The General Manager may:

(a)     affirm the original decision of the Manager; or

(b)     make any decision that could be made by the Manager in accordance with this part.

5.2     Review by the AAT.

5.2.1     Application may be made to the Administrative Appeals Tribunal for review of a decision by the General Manager under 5.1.3.

5.2.2     The General Manager must give a decision in writing within 28 days of receiving the application for internal review. The notice must include a statement to the effect that, if the person is dissatisfied with the decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for review of the decision. The notice must also include a statement to the effect that the person may request a statement under section 28 of that Act.

5.2.3     Failure to comply with 5.2.2 in relation to a decision does not affect the validity of that decision.”

4.      A Manager is defined by Order 2 to mean:

“Manager means the person occupying the position of manager, ship operations and qualifications, in AMSA or, in respect of any particular purpose under this part, a suitably qualified person authorised by the manager for that purpose.”

5.      The General Manager is defined to mean:

“General Manager means the person occupying the position of General Manager, Maritime operations, in AMSA.”

6.      The issue arises in this application as to whether the General Manager in asserting the position referred to in paragraph 1 above  made a “decision” within the meaning of paragraph 5.1.1 of Marine Orders, Part 3, more particularly, paragraph 8.1.

7. Section 425(1AA) of the Act provides that “The Authority [the Australian Maritime Safety Authority], may make orders with respect to any matter in Part II for or in relation to which provision may be made by the regulations other than matters referred to in paragraph 1(h) [the imposition of penalties]”. An Order made under section 425(1AA) shall be taken for the purposes of the Administrative Appeals Tribunal Act 1975 to be an enactment (section 426A).

8. Part II, Division 3, section 15 of the Act as here relevant provides:

“Division 3 – Qualifications of masters, officers and seamen

15.     Regulations with respect to qualifications of masters, officers and seamen

(1)     The regulations may specify standards of competence to be obtained and other conditions to be satisfied, or specify conditions to be satisfied, by a person in order to be a qualified master, officer or seaman or any designation for the purposes of this Act.

(2)     Without limiting the generality of subsection (1), the conditions specified in regulations made for the purposes of that subsection may include conditions as to age, character, health, nationality, citizenship or residence, and regulations made for the purposes of that subsection may make provision for and in relation to:

…

(d)       the instruction, training and examination of masters, officers and seamen, including the gaining of sea service and other experience, and the conduct of examinations, the conditions for admission to examinations and the appointment and remuneration of examiners;

…

(f)      the reconsideration of decisions made under regulations made for the purposes of subsection (1) or under orders made in pursuance of regulations made by virtue of paragraph (h) of this sub section;

(g)     the exemption of persons, in whole or in part and whether conditionally or unconditionally, from any requirement in relation to which provision is made by the regulations made for the purposes of subsection (1).

(3)     In subsection (2) decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.”

9. Section 3(3) of the Administrative Appeals Tribunal Act 1975 provides that unless the contrary intention appears, a reference in this act to a decision includes a reference to:

“(a)      …

(b)       giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

…

(g)       doing or refusing to do any other act or thing.”

10.     The application made by Mr Simpson was for the issue of a certificate in accord with paragraph 7.1 of the Marine Orders which as here relevant provides:

“7.       Applying for the issue, revalidation or endorsement of a certificate.

7.1     Application for the issue, revalidation or endorsement of a certificate must be made in an approved form and accompanied by such evidence of relevant service, certificates held or other documents as the manager considers necessary.

…

7.3      Where, under this Part, the issue of a certificate to a person is dependant 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 ten years of the certificate being issued; or

(b)   in any other case – within five years of the certificate being issued; unless otherwise specified in this part.” 

11.     The certificate is to be issued in accord with order 8.1 namely:

“8.       Issue, revalidation and endorsement of certificates.

8.1      If the Manager is satisfied that an Applicant has met the requirements specified in this Part for the issue of a certificate of a particular designation and particular grade, the Manager will issue to that Applicant a certificate of that designation and of that grade.”

12.     Paragraph 15 of the Orders provides:

“15.     Equivalent qualifying sea service and training

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.”

13.     The approved course referred to in Order 7.2 is specifically dealt with in Order 32 where as relevant to these reasons it is provided:

32.3    Engineer Class 2

To be eligible for a certificate of competency as Engineer Class 2, a person must:

…

(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 provision of s A-vi/3 of the STCW Code;

...”

14.     Hence the issue crystallises.  Was the assertion of the General Manager a decision, within the meaning of the Administrative Appeals Tribunal Act 1975, pursuant to Order 8.1 of Marine Orders, Part 3? If so, it is reviewable by the Tribunal.  If not, the Tribunal is without jurisdiction to consider the assertion.

15.     Mr Simpson was a ship surveyor with the NSW Maritime (Waterways) from 1986 until November 2004.  He is currently employed as a permanent full-time engineer by Adsteam Harbour in Sydney.  He is the holder of a First Class Engineer of a Steam Ship Certificate of Competency and a STCW 95 Third Class Motor Certificate.

16.     In his letter addressed to “Mr Peter Ferguson AMSA Examiner Australian Maritime Safety Authority” under date 10 October 2005, Mr Simpson stated that he sought to obtain a Second Class Motor Certificate (Engineer Class 2 Motor Ship).  He sought assistance from Mr Ferguson as to:

“How much motor time is required by a Second Class Motor Certificate for an engineer with my current qualifications.  However it [Marine Orders Part 3 on the Internet] seems to indicate that nine months must be on ships using the propulsion of the kind to which the new certificate relates”.

17.     Under date 27 October 2005 Mr Peter Ferguson describing himself as the “Examiner of Engineers Newcastle Maritime Operations – East” replied to Mr Simpson’s letter of 10 October 2005.  It was stated in the Examiner’s letter that “despite” his qualifications and experience Mr Simpson did “not meet the requirements for entry into the Engineers Class 2 Certificate of Competency oral examination”.  The reasons given, as relevant to the present matter, were:

“…

2.      The accepted procedure for completing motor sea time for entry into the Engineer Class 1 or Class 2 Motor Ship oral exam for persons having an Engineer Class 1 Steam Ships is to first gain an Engineer Watch Keeper Motor Ships Certificate of Competency.  Then accumulate nine months qualifying sea service on vessels equal to or over 3,000 kilowatt power for Class 1, and equal to or over 750 kilowatt for class 2 (Marine Orders, Part 3, 32.2(a)).

3.      Sea time without having a Watch Keeper Motor C.O.C. will not be counted towards the 9 months required…

4.      Your college courses for the “motor ship” component are over 10 years old and will have to be updated by attending college and complete a number of “Part B” subjects prior to sitting the Engineer Class 1 or Class 2 Motor oral examination.  (10 years after the completion of that course is the time limit for acceptance of your college course for Marine Engineer’s validity).”

18.     The examiner concluded his letter by stating that Mr Simpson “may plead your case in a letter to The Manager, Ship Operations and Qualifications AMSA Canberra, for his assessment and whether any dispensation may be given.”

19.     On 7 November 2005 a Mr Neil Anderson describing himself as the “Principal Qualifications Officer, Engineering Australian Maritime Safety Authority” by email stated:

“I have done some further research and had discussions with the Manager, Ship Operations and Qualifications in respect of Mr Simpson’s request.

AMSA can accept his sea service on tugs while using his Class 3 Engineer Certificate but the amount of sea service accredited will be in accordance with Marine Orders Part 3.

In respect to having to complete a college course or components of a college course it is unknown what course(s) he has completed in past in respect to obtaining a Motor Certificate of Competency.

However, based upon the information on file it would appear that he completed the college course for his Class 1 (Steam Certificate) in 1981 and if he did complete a course suitable for obtaining a motor certificate at the same time it is now beyond the allowable period as set out in Marine Orders Part 3 Provision 7.3.  If Mr Simpson has more updated information regarding completion of an AMSA approved college course suitable for a Class 1 or Class 2 (Motor Certificate) he should submit that information to AMSA for assessment.”

20.     On 14 December 2005 Mr Simpson wrote to “the General Manager Maritime Operations” AMSA.  He detailed his maritime experience, which is extensive.  He referred to his qualifications.  He sought dispensation from Marine Order 7.3 and being “asked to redo some of the TAFE subjects for a Second Class Certificate before I may sit for the oral examination”, and this because his “original TAFE courses are over ten years old”.

21.     Mr Simpson maintained in his December 2005 letter that “a decision made within the strict confines of Marine Orders would not be fair and reasonable in this case.”  Further, that “I am hoping that you will agree that my argument is a valid one even though I do not conform to the normal path as defined by Marine Orders”. He continued by stating “I know that I have the knowledge and experience to pass a second class oral exam.  I just need the opportunity”.

22.     On 6 January 2006 Mr Michael Kinley the “General Manager, Maritime Operations Australian Maritime Safety Authority” replied to the most recent letter of Mr Simpson.  In that letter Mr Kinley relevantly stated:

“I refer to your letter dated 14 December 2005 in which you request AMSA to allow you undertake an oral examination for issue of an Engineering Class 2 (Motor) Certificate of Competency without having to undertake the AMSA approved college course again.

Despite your past work experience the applicable legislation, Marine Orders Part 3 Seagoing Qualifications, Provision 7.3 specifies that the issue of a certificate where it is dependant upon that person having satisfactorily completed an approved course, that course must have been completed within 10 years of issue of the certificate if the applicant has had twelve months sea service within the preceding 5 years.

You completed what was then the approved course in the 1981, so the 10 year validity period allowed for in the applicable legislation has now elapsed.

Considering the above you must complete the AMSA approved course again before being eligible for issue of the certificate”.

23.     The matter now before the Tribunal relates only to its having jurisdiction to entertain Mr Simpson’s application.  The request of Mr Simpson was that he should not have to “undertake the AMSA approved college course again”.

24.     The General Manager determined that the Marine Orders required that the approved course must have been completed within the stipulated timeframe, this before attendance at an update approved course could be dispensed with.  Mr Simpson was advised that he “must complete the AMSA approved course before being eligible for issue of the certificate”.

25. The General Manager in his letter stated that Mr Simpson must complete the approved course before being eligible for issue of the certificate. This was tantamount to a refusal to give a certificate and refusal to give consent to dispensing with completion of the course, each on the basis of the factual situation as it then was, and now is; decisions within the meaning of section 3 of the Administrative Appeals Tribunal Act 1975.

26.     It may be that the decision of the General Manager was correct.  But this issue is not the subject of the present application.

27. I am satisfied that the Tribunal has jurisdiction in this matter. 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.

28.     The substantive application might now proceed.  In the event of Mr Simpson not withdrawing his application within 14 days of this date the Respondent is to lodge with the Tribunal and serve upon Mr Simpson the section 37 documents, this within 42 days of this date.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:         Associate

Date of Hearing                   14 March 2006
Date of Decision  5 April 2006
Representative for the Applicant               Mr G Simpson          
Representative for the Respondent          Ms M Dean