Marine Order 502 (Vessel identifiers — national law) Amendment 2016 (No. 1)

Explanatory Statement

Marine Order 502 (Vessel identifiers — national law) Amendment 2016 (No. 1) (Order 2016/11)

Authority

1.      The Marine Safety (Domestic Commercial Vessel) National Law, set out in Schedule 1 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (the national law), provides for this Order to be made.
2.           Paragraph 31(1)(b) of the national law provides for the regulations to prescribe criteria for the issue of a unique identifier.
3.           Paragraphs 34(1)(b) and 35(1)(b) of the national law provide for the regulations to prescribe the way in which a unique identifier must be displayed.
4.           Section 75 of the national law provides for the regulations to provide for matters in relation to unique identifiers.
5.           Subsection 76(1) of the national law provides for the regulations to prescribe specified matters about unique identifiers including the persons who may make applications.
6.           Paragraph 77(1)(a) of the national law provides for the regulations to set out the criteria to be satisfied for the National Regulator to issue unique identifiers.
7.           Subsection 159(1) of the national law authorises the Governor-General to make regulations necessary or convenient for carrying out or giving effect to the national law.
8.           Paragraph 159(3)(c) of the national law provides for the regulations to prescribe requirements for the marking of domestic commercial vessels.
9.           Section 162 of the national law provides that the regulations may prescribe penalties for offences against the regulations.
10.       Subsection 163(1) of the national law allows Marine Orders to be made for any matter for which provision may be made by regulations, with some specified exceptions.
11.       Subsection 33(3) of the Acts Interpretation Act 1901 provides that a power in an Act to make a legislative instrument includes the power to repeal or amend the instrument, subject to any conditions that apply to the initial power.
12.       This Order is a legislative instrument for the Legislation Act 2003.

Purpose

13.          This Order amends Marine Order 502 (Vessel identifiers — national law) 2013 (Marine Order 502) to allow a unique identifier to be issued for a domestic commercial vessel irrespective of whether or not the vessel has a certificate of survey or certificate of operation.

Overview

14.          This Order amends the criterion for the issue of a unique identifier to the circumstance where a unique identifier has not previously been issued by the National Regulator (the Australian Maritime Safety Authority) for the vessel. This replaces the previous criteria for issuing a unique identifier which required a certificate of operation or a certificate of survey to be issued for the vessel, in addition to the vessel not having previously been issued a unique identifier.

15.          This Order also makes minor changes to clarify the requirements for the display of a unique identifier. It also clarifies the notification requirements for a vessel with a unique identifier. The opportunity has also been taken to include in the Order the other provisions of the national law that enable Marine Order 502 to be made.

Consultation

16.          A copy of the draft of this Order was sent to each member of the Maritime Agencies Forum, which represents the maritime safety authorities of each State and the Northern Territory. No significant issues were raised with the proposed amendments.

17.          A draft of the Order was not distributed more widely because the amendments are minor administrative in nature that do not substantially alter existing arrangements.

18.          The Office of Best Practice Regulation (OBPR) has advised that based on the information provided to the OBPR, the regulatory impacts of the amendments in this Order appear minor and no formal Regulation Impact Statement assessed by the OBPR is required. The OBPR reference number is 16724.

Documents incorporated by reference

19.          This Order does not incorporate any new documents by reference.

Commencement

20.          This Order commences on 1 July 2016.

Contents of this instrument

21.          Section 1 of this Order states the name of this Order.

22.          Section 2 of this Order states that this Order commences on 1 July 2016.

23.          Section 3 of this Order provides that Marine Order 502 is amended in accordance with the amendments in Schedule 1 to the Order.

Schedule 1 Amendment

24.          Item 1 of Schedule 1 of this Order amends section 4 to make clear that there is further authority in the national law for the regulations to prescribe matters relating to unique identifiers including the person who may apply for a unique identifier. The clarification relates to the authority in section 75, subsection 76(1) and paragraph 77(1)(a) of the national law.

25.          Item 2 of Schedule 1 of this Order amends section 4 to make clear that the authority in the national law also provides for the regulations to prescribe penalties for offences against the regulations. This authority is subsection 162.

26.          Item 3 of Schedule 1 of this Order amends section 4(5) to provide the subsection of the national law for which the National Regulator may make Marine Orders.

27.          Item 4 of Schedule 1 of this Order replaces section 5. A definition of ‘old unique identifier’ is inserted which has the meaning set out in the Marine Safety (Domestic Commercial Vessel) National Law Regulation 2013. This definition relates only to note 2 of section 7 which provides guidance as to who may apply for a unique identifier.

28.          Item 5 of Schedule 1 of this Order replaces section 6(1). It states that the person who may apply to the National Regulator for the issue of a unique identifier for a domestic commercial vessel is the owner of the vessel. This minor change makes the wording of the provision consistent with the national law.

29.          Item 6 of Schedule 1 of this Order replaces section 7. It provides that the criterion for the issue of a unique identifier is that a unique identifier has not previously been issued by the National Regulator for the vessel. This replaces the previous criteria for the issue of a unique identifier which required a certificate of operation or a certificate of survey to be held by the vessel, in addition to the vessel not having previously been issued a unique identifier.

30.          Item 7 of Schedule 1 of this Order replaces section 8. Changes to the section set out more clearly the manner of display of a unique identifier that is permitted under the Order. It also specifies in the Order requirements for an application for approval by the National Regulator of another way of displaying a unique identifier.

31.          Item 8 of Schedule 1 of this Order replaces section 9 to clarify when specified events must be notified to the National Regulator that relate to a vessel with a unique identifier. The changes remove unnecessary information requirements and set out the elements of the strict liability offence more clearly.

Statement of compatibility with human rights

32.          This statement is made for subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative instrument

33.          Item 8 of this Order replaces section 9 of Marine Order 502 which created an offence to which strict liability applied. Strict liability continues to apply to the replaced provision. Any strict liability offences may engage and limit the presumption of innocence mentioned in Article 14 of the International Covenant on Civil and Political Rights (ICCPR). Civil penalty provisions may engage the criminal process provisions under Articles 14 and 15 of the ICCPR.

34.          The objective of this strict liability offence remains unchanged. It ensures that the National Regulator is told of transfer of ownership, sinking or scrapping, and if the vessel ceases to be a domestic commercial vessel. The accurate identification of a vessel enhances maritime safety by ensuring proper records of vessel history and prompt access to vessel information that could assist in a maritime incident.

35.          The penalty is set at the same relatively low amount of 50 penalty units and is within the limit imposed by section 162 of the national law.

Conclusion

36.          This instrument 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 because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate for ensuring maritime safety.

Making the instrument

37.          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 Safety Authority Act 1990.