Explanatory Statement
Marine Orders Amendment (Marine Order 12 — consequential changes) Order 2023 (Order 2023/8)
Authority
- Subsection 339(1) of the Navigation Act 2012 (Navigation Act) authorises the Governor-General to make regulations necessary or convenient for carrying out or giving effect to the Navigation Act.
- Subsection 342(1) of the Navigation Act allows the Australian Maritime Safety Authority (AMSA) to make orders for any matter in the Act for which provision must or may be made by regulations.
- 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.
- This amending Marine Order was made under subsection 342(1) and is a legislative instrument for the Legislation Act 2003.
Purpose
5. This amending Marine Order makes amendments consequential to the making of Marine Order 12 (Construction — subdivision and stability, machinery and electrical installations) 2023 (Marine Order 12 2023) that replaces Marine Order 12 (Construction — subdivision and stability, machinery and electrical installations) 2016.
Overview
6. This amending Marine Order revises a number of outdated refences in Marine Orders that need correcting as a result of the making of Marine Order 12 2023.
Consultation
7. A copy of the draft of Marine Order 12 was placed on AMSA’s website on 31 July 2023 for public consultation until 10 September 2023. Around 165 stakeholders including offshore petroleum and gas proponents, vessel operators, seafarer representative organisations, classification societies, shipping industry peak bodies and various government bodies were contacted by email and invited to comment.
8. The Office of Impact Analysis (OIA) considers that the changes made by this amending Marine Order have regulatory impacts of a minor or machinery nature and no regulation impact statement is required. The OIA reference number is OIA23-05272.
Documents incorporated by reference
9. Marine Order 12 (Construction — subdivision and stability, machinery and electrical installations) 2023 becomes a document incorporated by reference in the Marine Orders being amended by this instrument — a change necessary as Marine Order 12 (made in 2016) has been repealed and replaced.
10. Due to the operation of section 10 of the Acts Interpretation Act 1901 (as applied by paragraph 13(1)(a) of the Legislation Act 2003), Marine Order 12 is adopted as in force from time to time because it is adopted by reference to title. Any Marine Order can be accessed through the marine orders link on the AMSA website at https://www.amsa.gov.au and are available for free download from the Federal Register of Legislation through that link.
Commencement
11. This amending Marine Order commences immediately after the commencement of Marine Order 12 (Construction — subdivision and stability, machinery and electrical installations) 2023.
Contents of this instrument
12. Section 1 sets out the name of the Marine Order.
13. Section 2 provides for the commencement of the Marine Order.
14. Section 3 provides that Schedule 1 sets out the consequential amendments.
Division 1 of Schedule 1 — Marine Order 16 (Load Lines) 2014
15. The mention of Marine Order 12 (Construction — subdivision and stability, machinery and electrical installations) 2009 has been removed as the requirement to have stability information on board a regulated Australian vessel in accordance with that repealed version of Marine Order 12 is already set out in Marine Order 12 2023. The pre-existing offence is restructured.
Division 2 of Schedule 1 — Marine Order 21 (Safety and emergency arrangements) 2016
16. Division 2 contains 1 substitution. The change is necessary to make reference to Marine Order 12 2023.
Division 3 of Schedule 1 — Marine Order 31 (SOLAS and non-SOLAS certification) 2019
17. Division 3 contains 11 substitutions. The change is necessary to make reference to Marine Order 12 2023.
Division 4 of Schedule 1 — Marine Order 32 (Cargo handling equipment) 2016
18. Division 4 contains 1 substitution. The change is necessary to make reference to Marine Order 12 2023.
Division 5 of Schedule 1 — Marine Order 47 (Offshore industry units) 2019
19. Division 5 contains 6 substitutions. The change is necessary to make reference to Marine Order 12 2023.
Division 6 of Schedule 1 — Marine Order 51 (Fishing vessels) 1989
The mention of Marine Order 12 (Construction — subdivision and stability, machinery and electrical installations) 2009 has been removed as stability requirements for fishing vessels are set out in Marine Order 12 2003.
Statement of compatibility with human rights
20. This statement is made for subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
21. This amending Marine Order makes amendments consequential to the making of Marine Order 12 (Construction — subdivision and stability, machinery and electrical installations) 2023 (Marine Order 12 2023). Changes are made as a result of the name change to the instrument following its repeal and replacement. The amending Marine Order corrects the name of the instrument in a number of Marine Orders. A requirement set out in Marine Order 16 (Load Lines) 2014 that duplicates a requirement in MO12 2023 has also been removed resulting in the restructure of a pre-existing offence in Marine Order 16.
Human rights implications
22. Item 1 of Schedule 1 of this amending Marine Order restructures an offence to which strict liability already applies. A civil penalty also applies. 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.
23. Strict liability is imposed to protect life while the vessel is both at sea and in port. The offence ensures compliance with the Load Lines Convention in relation to stability. The Load Lines Convention is an internationally accepted standard made under the auspices of the International Maritime Organization and ship owners ensure compliance to enable their vessels to trade internationally without sanction for non-compliance.
24. The penalty is relatively low (50 penalty units) and are within the limitation imposed by paragraph 341(1)(a) of the Navigation Act.
25. The civil penalty provision is directed at a master of a foreign vessel rather than the community at large and is regulatory in nature. The civil penalty provision is authorised by paragraph 341(1)(b) of the Navigation Act. Having regard to the objectives of the civil penalty provision (which is protective, preventative, disciplinary or regulatory in nature), and the relatively low level of penalty, the civil penalty should not be considered to be criminal matters for human rights law.
26. It is considered any limitation on human rights as a result of the imposition of strict liability and the creation of a civil penalty is reasonable, necessary and proportionate.
Conclusion
27. AMSA considers that this instrument is compatible with human rights. It does not affect any rights or freedoms to which the Human Rights (Parliamentary Scrutiny) Act 2011 applies.
Making the instrument
28. 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.