EXPLANATORY STATEMENT
Minute No. 24 of 2018 – Assistant Minister for Regional Development and Territories
Subject - Cocos (Keeling) Islands Act 1955
Cocos (Keeling) Islands Designation of Waters Ordinance 2018
The Cocos (Keeling) Islands were acquired by the Commonwealth of Australia in 1955 under section 122 of the Commonwealth of Australia Constitution Act 1900.
The Cocos (Keeling) Islands Act 1955 (the Act) provides the legal framework for the governance of the Territory of the Cocos (Keeling) Islands.
Subsection 12(1) of the Act provides that the Governor-General may make Ordinances for the peace, order and good government of the Territory of the Cocos (Keeling) Islands.
Ordinances created under the Act allow for the laws of the Cocos (Keeling) Islands to reflect Commonwealth policy, governance and legislative arrangements.
The purpose of the Cocos (Keeling) Islands Designation of Waters Ordinance 2018 (the Ordinance) is to reclassify the waters within the baseline of the Cocos (Keeling) Islands atoll to operational area Category D ‘sheltered waters in partially smooth and smooth waters only’.
The Cocos (Keeling) Islands are a ‘participating Territory’ for the purposes of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (the National Law).
The Australian Maritime Safety Authority (AMSA) has regulatory responsibility for safety regulation of domestic commercial vessels under the National Law, including those operating in the Territory of the Cocos (Keeling) Islands.
The National Standard for Commercial Vessels (NSCV), as defined in section 6 of Schedule 1 to the National Law, is a prescribed standard for the purposes of the National Law.
Part B of the NSCV deals with, among other things, the operation of domestic commercial vessels in specified designated waters, including waters that have been designated as being ‘partially smooth’ under a law in force in a State or Territory.
The waters within the main lagoon of Cocos (Keeling) Islands are currently classified operational area Category C (open ocean). This is an automatic designation as a result of Part B of the NSCV. However, an assessment of the local conditions conducted by AMSA in 2016 found the lagoon has features of waters that are shallow and protected, meaning a ‘partially smooth waters’ designation is considered a more appropriate reflection of the local conditions.
The current category C designation imposes higher safety requirements on vessel operators than a category D designation. Operators of smaller vessels are not eligible to access a number of AMSA’s general exemptions that are limited to vessels operating in smooth or partially smooth waters.
AMSA considers this disproportionate to the risks involved with these vessels, which only operate within the lagoon and imposes an unnecessary regulatory burden on local businesses. These concerns were confirmed during consultations with local operators.
Before the Ordinance was drafted, Senator the Hon Fiona Nash, the then Minister with responsibility for Territories considered the general obligation to consult imposed by section 17 of the Legislation Act 2003. She was satisfied that consultation was appropriate and reasonably practicable to be undertaken.
AMSA conducted two face to face community information sessions on the proposed designation of waters with the Cocos (Keeling) Islands community in August 2017. Feedback received during these sessions supported the proposed designation.
Officers of the Department also consulted with the Cocos (Keeling) Islands community by way of a Community Bulletin within which a community member could provide comments via email to the AMSA Liaison Officer (Region West) in relation to the proposed Ordinance. This consultation was conducted between 25 May and 1 June 2018. No comments were received during this external consultation period.
Geoscience Australia was involved in developing the co-ordinates and description of the boundary for the operational are that is the subject of the Ordinance.
The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required (OBPR reference 23771).
Details of the Ordinance are set out in the Attachment.
The Act specifies no conditions that need to be satisfied before the power to make the Ordinance may be exercised.
The Ordinance is a legislative instrument for the purposes of the Legislation Act 2003.
The Ordinance commences on the day after it is registered on the Federal Register of Legislation.
Authority: Subsection 12(1) of the Cocos (Keeling) Islands Act 1955
ATTACHMENT
Details of the Cocos (Keeling) Islands Designation of Waters Ordinance 2018
Section 1- Name
This section provides the name of this Ordinance as the Cocos (Keeling) Islands Designation of Waters Ordinance 2018.
Section 2 – Commencement
This section provides that this Ordinance commences on the day after it is registered. .
Section 3 – Authority
This section provides that this Ordinance is made under the Cocos (Keeling) Islands Act 1955.
Section 4 – Designation of waters as partially smooth waters
Section 4 provides the object of the section being to designate certain specified waters for the purposes of the definition of partially smooth waters in the Dictionary in Part B of the NSCV, as defined in section 6 of the National Law. The waters to be designated are described in Schedule 1 of the Ordinance.
Schedule 1 – Area containing partially smooth waters
Schedule 1 to the Ordinance describes, point to point, the area within the Cocos (Keeling) Islands to be designated as partially smooth waters.
This Schedule has 19 items with each item describing a particular geographical coordinate.
The first coordinate is located at the northernmost point at Ujong Tanjong, on West Island. The following coordinates at items two to 19 then describes the waters encompassed by the other major connecting islands, namely Direction Island, Home Island, and South Island, proceeding in a clockwise direction.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Cocos (Keeling) Islands Designation of Waters Ordinance 2018
This Ordinance 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 Ordinance
The Cocos (Keeling) Islands Designation of Waters Ordinance 2018 designates specified waters in the Cocos (Keeling) Islands as waters that are ‘partially smooth waters’ for associated purposes, including for the regulation of domestic commercial vessels operating on those waters.
Human rights implications
This instrument does not engage any of the applicable rights or freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.