Marine Orders Amendment (Marine Order 12 — consequential changes) Order 2023

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Legislation au F2023L01538 Not in force Legislative Instrument

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Explanatory Statement

Marine Orders Amendment (Marine Order 12 — consequential changes) Order 2023 (Order 2023/8)

Authority

  1.    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.
  2.    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.
  3.    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.
  4.    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      This amending Marine Order revises a number of outdated refences in Marine Orders that need correcting as a result of the making of Marine Order 12 2023.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.

Overview

The Marine Orders Amendment (Marine Order 12 — consequential changes) Order 2023 (Order 2023/8) was enacted to address the need for updated references in various Marine Orders following the replacement of Marine Order 12 (Construction — subdivision and stability, machinery and electrical installations) 2016 with Marine Order 12 (Construction — subdivision and stability, machinery and electrical installations) 2023. This amendment was made under the authority granted by subsection 342(1) of the Navigation Act 2012 and is a legislative instrument for the Legislation Act 2003. The Australian Maritime Safety Authority (AMSA) was responsible for making this order, which aims to ensure consistency and accuracy across the relevant marine regulations. The Order underwent public consultation, with feedback from 165 stakeholders, and was deemed to have minor regulatory impacts, thus not requiring a regulation impact statement.

Scope and Application

The Marine Orders Amendment (Marine Order 12 — consequential changes) Order 2023 amends several marine orders to reflect the replacement of Marine Order 12 (Construction — subdivision and stability, machinery and electrical installations) 2016 with Marine Order 12 (Construction — subdivision and stability, machinery and electrical installations) 2023. The amendment is necessary to correct outdated references and ensure consistency across various marine orders, including Marine Order 16 (Load Lines) 2014, Marine Order 21 (Safety and emergency arrangements) 2016, Marine Order 31 (SOLAS and non-SOLAS certification) 2019, Marine Order 32 (Cargo handling equipment) 2016, Marine Order 47 (Offshore industry units) 2019, and Marine Order 51 (Fishing vessels) 1989. This amending Marine Order applies to all regulated vessels operating in Australian waters and their operators, including those in the offshore petroleum and gas industry, maritime transport, fishing, and offshore units. It ensures that all referenced marine orders are updated to reflect the new Marine Order 12 2023, thereby maintaining regulatory coherence and compliance with international maritime standards. The amendments do not introduce new obligations or penalties but ensure that existing ones are correctly referenced and applied.

Key Provisions

The primary sections of this Marine Orders Amendment involve Schedule 1, which outlines consequential amendments to various Marine Orders. Specifically, Schedule 1 is divided into six divisions, each corresponding to a different existing Marine Order that requires updating due to the replacement of Marine Order 12 (Construction — subdivision and stability, machinery and electrical installations) 2016 with Marine Order 12 (Construction — subdivision and stability, machinery and electrical installations) 2023. For instance, Division 1 of Schedule 1 amends Marine Order 16 (Load Lines) 2014 by removing references to the repealed Marine Order 12 (Construction — subdivision and stability, machinery and electrical installations) 2009 and restructuring a related offence. Similarly, Divisions 2 through 6 amend Marine Orders 21, 31, 32, 47, and 51 by substituting references to the old Marine Order 12 with the new Marine Order 12. These changes ensure consistency and accuracy across the Marine Orders. The amending Marine Order imposes several obligations on parties and entities governed by the Marine Orders. Primarily, it requires stakeholders to update their compliance practices to align with the new Marine Order 12 2023. Vessel operators, offshore petroleum and gas proponents, seafarer representative organisations, and classification societies must ensure that their vessels and operations meet the updated standards and requirements outlined in the amended Marine Orders. This includes maintaining proper documentation and stability information as specified by the new regulations. Additionally, the Australian Maritime Safety Authority (AMSA) is responsible for ensuring that these amendments are effectively communicated and enforced. Breaching the provisions of the amending Marine Order can lead to various offences, penalties, or consequences. For example, the restructuring of the offence in Marine Order 16 (Load Lines) 2014 means that any failure to comply with the updated requirements for stability information can result in strict liability, meaning that the offence does not require proof of negligence or intent. The penalty for this offence is set at 50 penalty units, a relatively low amount that reflects the regulatory nature of the offence. Additionally, the civil penalty provision, which applies to the master of a foreign vessel, is also authorised under the Navigation Act. While strict liability and civil penalties may limit certain presumptions of innocence, they are considered necessary and proportionate to protect maritime safety and ensure compliance with international standards.

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Maritime Law
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Order
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Commencement Provisions
Regulatory Standards
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.