Explanatory Statement
Marine Order 1, issue 2 (Administration)
Authority
- Subsection 425(1) of the Navigation Act 1912 (Navigation Act) authorises the Governor-General to make regulations necessary or convenient for carrying out or giving effect to the Navigation Act.
- Subsection 425(1AA) of the Navigation Act allows the Australian Maritime Safety Authority (AMSA) to make orders for any matter in the Act for or in relation to which provision may be made by regulations.
- Section 25 of the Protection of the Sea (Harmful Anti-fouling Systems) Act 2006 (AFS Act) authorises the Governor-General to make regulations necessary or convenient for carrying out or giving effect to the AFS Act.
- Section 24 of the AFS Act allows AMSA to make orders for any matter on which regulations may be made.
- Section 33 of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Pollution Prevention Act) authorises the Governor-General to make regulations necessary or convenient for carrying out or giving effect to the Pollution Prevention Act.
- Section 34 of the Pollution Prevention Act allows AMSA to make orders for any matter on which regulations may be made.
- This instrument was made under subsection 425(1AA) of the Navigation Act, section 25 of the AFS Act and section 34 of the Pollution Prevention Act. It is a legislative instrument for the Legislative Instruments Act 2003.
Purpose
8. This instrument deals with administration and interpretation of the other Marine Orders. Its purpose is to reduce the volume of the Marine Orders and to facilitate their consistent interpretation. It sets out definitions to apply to all Orders, a list of approved survey authorities and a single application and review process for exemptions and equivalents. This process can be adopted by reference by other Orders and varied as necessary.
Overview
9. This instrument sets out:
- definitions for the instrument itself
- definitions and rules of interpretation for all Marine Orders
- a list of approved survey authorities for ships
- a single application and review process for exemptions from requirements of Orders, for equivalents to be used instead of matters required by Orders, for equivalent guidelines to apply, for modifications of requirements of Orders to apply or for any other matter for which an application may be made.
10. Each other Order may or may not adopt the application and review processes in this instrument. However, the process in this instrument is likely to apply eventually to all applications for exemptions or equivalents as AMSA amends or reissues Orders.
11. The effect of the Order is minor or machinery in nature. For these reasons, and based on the information available, no further analysis in the form of a Regulation Impact Statement is required (OBPR reference number 12832).
Consultation
In addition to posting the draft Order on AMSA’s website for public comment, 51 stakeholder organisations were directly invited by e-mail to comment and provided with a copy of the draft Order. A list of these organisations can be provided by AMSA on request.
12. Only the Department of Infrastructure and Transport provided comments on the draft Order. Those comments were taken into account in preparing this instrument.
Documents incorporated by reference
13. No documents are incorporated by reference in this instrument.
Commencement
14. This instrument commences on the day after it is registered on the Federal Register of Legislative Instruments.
15. Schedule 3 of Marine Orders Part 97 Amendment 2011 (No.1) commences on commencement of this instrument.
Contents of the Order
Division 1 Preliminary
16. Section 1 states the name of the Order.
17. Section 2 states that the Order commences on the day after it is registered.
18. Section 3 repeals the previous issue of the Order.
19. Section 4 states the purpose of the Order. It aims to avoid duplication and inconsistent interpretation of Marine Orders by settings out rules of interpretation that apply to all Marine Orders. It also sets out a generic application and review process for exemptions and equivalents that may be adopted by individual Marine Orders.
20. Section 5 provides definitions of terms for the Order.
Division 2 Interpretation of Marine Orders
21. Section 6 defines terms that will apply in all Marine Orders unless an individual Order provides otherwise. This will in effect be a dictionary for the Marine Orders. More terms that are used in more than 1 Order will be included in future if required.
22. Section 7 approves survey authorities, listed in Schedule 1, for section 6 of the Navigation Act. Survey authorities are mentioned in a number of Orders. Changes to the list are infrequent. They are listed here to help users of the Orders.
23. Section 8 deals with fact that the basic unit of text of Marine Orders before 2011 was called a provision, or was identified only by its number. For new Orders starting in 2011, provisions will be called sections, subsections, paragraphs etc. This section ensures that references in a Marine Order to a provision of another Order will have effect.
24. Section 9 is a transitional provision that updates references in Marine Orders to certain AMSA managers, pending amendment or reissue of those Orders to make the changes substantively.
25. Section 10 provides a convenient way of referring to penal provisions to which Subregulation 4(1) of the Navigation (Orders) Regulations 1980 or subregulation 4 (1) of the Protection of the Sea (Prevention of Pollution from Ships) Orders Regulations 1994 applies.
Division 3 Application and review process
26. This Division sets out a single application and review process for exemptions and equivalents that can be adopted by reference by other Orders. Currently the application and review process is set out in each Order that deals with exemptions and equivalents.
27. Each Order can define what is an equivalent or an equivalent guideline. This will generally be an alternative to a fitting, material, appliance or apparatus that the Order requires to be fitted or carried in a ship, or an arrangement or procedure that could be made in or for a ship as an alternative to a requirement of the Order. Examples of equivalents previously approved are carriage of a life raft instead of a lifeboat, fitting a specified number of global positioning systems instead of specified speed and distance measuring devices, and external examination and thickness measurements of gas cylinders instead of pressure testing.
28. Section 11 states the type of applications to which this Division may be made to apply. These are applications for exemptions from requirements of Orders, for equivalents to be allowed instead of requirements of Orders, for equivalent guidelines to apply, for modifications of requirements of Orders or for any other matter for which an application may be made.
29. Another Marine Order may vary the process in this instrument as it applies to applications under the other Order. For example, it may provide for a longer deadline for deciding an application for approval that is complex, such as for tripartite assessments of solid bulk cargoes not listed in the IMO’s International Maritime Solid Bulk Cargoes Code. These types of assessments may take some months to process properly.
30. Section 12 provides for the form and content of an application.
31. Section 13 provides for the AMSA decision-maker to ask for further information or documents or agreements when dealing with an application. This may be from the applicant or from the other bodies or persons listed in the section, eg the International Maritime Organization, the flag State of a vessel, state maritime agencies (for survey records) or privately owned entities (eg test laboratories for test results on solid bulk cargoes).
32. Section 14 provides that the decision maker must tell the applicant about any request made under section 13, and the effect the request may have on the period for consideration of the application.
33. Section 15 sets out deadlines for considering an application. They may be varied by an Orders that adopts the application and review process. The standard deadline is 90 days after an application is made. Depending upon the nature of the exemption or equivalent sought, AMSA may need to inspect a ship, or a surveyor may require additional items to be provided to a ship before granting an exemption.
34. Section 16 sets out the procedure for dealing with an application. If a decision is not made on time, the decision maker is taken to have decided not to approve the application or, for an exemption, decided not to grant the exemption.
35. However, if the decision maker requests further information, documents etc, the deadline for consideration of the application is 90 days after the decision maker receives what has been requested.
36. Also, if the decision maker asks for information etc but does not receive it all within a reasonable time, he or she can continue to consider the application. It is not possible to put a fixed time limit on this circumstance. Different periods may be reasonable in different cases. The decision maker is constrained by the requirement to consider the application after allowing a reasonable time for requests to be answered.
37. The decision maker must give reasons if the decision is not to approve an application or grant an exemption. If the decision maker does not decide the application by the deadline that applies, he or she is taken to have decided not to approve the application (triggering a right of review).
38. Section 17 provides that a decision mentioned in section 16 is a reviewable decision. A decision is made under the Order that adopts the application and review process in this Division.
39. Section 18 provides that a person who is affected by a reviewable decision may apply to AMSA for internal review of the decision. The standard timeframe for a decision on internal review is 90 days after the applicant is notified of the initial decision. The General Manager, Maritime Operations Division of AMSA is tasked with conducting internal reviews. Standard internal review arrangements apply for notification of the applicant of the outcome of the internal review, that the applicant may apply to the Administrative Appeals Tribunal (AAT) for review of the decision and may request a statement of reasons for the decision.
40. Section 19 provides for AAT review of the decision made on review.
Division 4 Approved forms
41. This Division sets out arrangements for approved forms. It provides that approved forms must be used for the purpose of an Order for which it is approved. Approved forms are available on the AMSA website.
Schedule 1 Survey authorities
42. This Schedule lists the survey authorities approved under section 7. The acronym and website of each approved survey authority is included to help users.
Making the Order
43. This instrument has been made by the Chief Executive Officer of the Australian Maritime Safety Authority, in accordance with subsection 49 (4) of the Australian Maritime Authority Act 1990.