Explanatory Statement
Marine Orders Miscellaneous Amendment Order 2024 (Order 2024/2)
Authority
- Subsection 339(1) of the Navigation Act 2012, section 25 of the Protection of the Sea (Harmful Anti-fouling Systems) Act 2006, subsection 33(1) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 and subsection 159(1) of the Marine Safety (Domestic Commercial Vessel) National Law authorise the Governor-General to make regulations necessary or convenient for carrying out or giving effect to that legislation.
- Subsection 342(1) of the of the Navigation Act 2012, section 24 of the Protection of the Sea (Harmful Anti-fouling Systems) Act 2006, subsection 34(1) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 and subsection 163(1) of the Marine Safety (Domestic Commercial Vessel) National Law 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 Marine Order is a legislative instrument for the Legislation Act 2003.
Purpose
- The Administrative Review Tribunal Act 2024 establishes the Administrative Review Tribunal (Tribunal) as a fit-for-purpose federal administrative review body which will replace the Administrative Appeals Tribunal (AAT). That Act and related legislation received Royal Assent on 3 June 2024 and were proclaimed to commence on 14 October 2024.
- This Marine Order is an amending instrument that implements the necessary changes to Marine Orders to give effect to these administrative review reforms.
Overview
- Three Marine Orders are amended to replace outdated references to the Administrative Appeals Tribunal (AAT) or its establishing legislation. The changes are consequential to the establishment of the replacement Administrative Review Tribunal (ART).
- The Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (No. 38, 2024) amends relevant provisions in the principal legislation that operate in conjunction with references in the Marine Orders. These provisions also provide for external merits review of administrative decisions made by AMSA.
Consultation
- The website of the Attorney General’s Department sets out the public consultation process for the establishment of the replacement Tribunal including the consultation process of changes to principal legislation. See www.ag.gov.au/legal-system/new-system-federal-administrative-review.
- For the Office of Impact Analysis, no regulation impact statement is required. The OIA reference number is OIA ID reference OIA23-06166.
Documents incorporated by reference
- The Administrative Review Tribunal Act 2024 becomes a document incorporated by reference. As an Act of Parliament, it is subject to section 10 of the Acts Interpretation Act 1901 and is in force from time to time.
Commencement
- This Marine Order commenced on the day after registration.
Contents of this instrument
- Section 1 sets out the name of the Marine Order.
- Section 2 provides for the commencement of the Marine Order.
- Section 3 states the purpose of the Marine Order which is to amend three Marine Orders.
Statement of compatibility with human rights
- This statement is made for subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011.
Human rights implications
- The amendments in the Marine Order may engage the following rights:
- the right to an effective remedy in Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR), and
- the right to a fair and public hearing in Article 14 of the ICCPR.
- As the amendments advance the right to an effective remedy and the right to a fair hearing, AMSA considers that this instrument is compatible with human rights. The Marine Order does not limit any rights or freedoms to which the Human Rights (Parliamentary Scrutiny) Act 2011 apply.
Making the instrument
- 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 Miscellaneous Amendment Order 2024 (Order 2024/2) was enacted to implement the changes necessitated by the establishment of the Administrative Review Tribunal (ART) as outlined in the Administrative Review Tribunal Act 2024. This Act, which received Royal Assent on 3 June 2024 and commenced on 14 October 2024, seeks to establish a fit-for-purpose federal administrative review body to replace the Administrative Appeals Tribunal (AAT). The Marine Order is a legislative instrument under the Legislation Act 2003, which provides the Australian Maritime Safety Authority (AMSA) with the authority to make orders necessary for carrying out or giving effect to the Navigation Act 2012, the Protection of the Sea (Harmful Anti-fouling Systems) Act 2006, the Protection of the Sea (Prevention of Pollution from Ships) Act 1983, and the Marine Safety (Domestic Commercial Vessel) National Law. The purpose of the Marine Order is to amend existing Marine Orders to replace outdated references to the AAT with the ART, ensuring the legislative framework aligns with the reforms introduced by the Administrative Review Tribunal Act 2024. The order is compatible with human rights, as it advances the rights to an effective remedy and a fair hearing under the International Covenant on Civil and Political Rights.
Scope and Application
The Marine Orders Miscellaneous Amendment Order 2024 applies to the amendments of existing Marine Orders, specifically updating references from the Administrative Appeals Tribunal (AAT) to the newly established Administrative Review Tribunal (ART) as mandated by the Administrative Review Tribunal Act 2024. This Order affects entities and persons involved in maritime activities regulated by the Navigation Act 2012, the Protection of the Sea (Harmful Anti-fouling Systems) Act 2006, the Protection of the Sea (Prevention of Pollution from Ships) Act 1983, and the Marine Safety (Domestic Commercial Vessel) National Law. The geographic reach of the Order is national, ensuring that all maritime operations within Australia comply with the new administrative review framework. The Order excludes any provisions not directly related to the specified Acts or that do not require amendment to reflect the establishment of the ART. While the primary focus is on updating references, the Order may be extended or restricted through subordinate instruments as necessary to address specific compliance or operational issues arising from the transition to the ART.
Key Provisions
The main operative sections of this Marine Order focus on the replacement of references to the Administrative Appeals Tribunal (AAT) with the newly established Administrative Review Tribunal (ART). Section 3 of the Order explicitly states its purpose, which is to amend three Marine Orders by replacing outdated references to the AAT or its establishing legislation. This change is consequential to the establishment of the Administrative Review Tribunal under the Administrative Review Tribunal Act 2024, which received Royal Assent on 3 June 2024 and commenced on 14 October 2024.
The obligations imposed by this Marine Order require the Australian Maritime Safety Authority (AMSA) and other entities governed by the amended Marine Orders to update their practices and procedures to reflect the new terminology and references to the Administrative Review Tribunal. This includes updating internal documents, systems, and any other relevant materials to ensure consistency with the new administrative review framework. AMSA must also ensure that all external communications and documents reflect the changes made by this Order.
In terms of consequences for non-compliance, the Order itself does not specify any specific offences, penalties, or civil/criminal consequences for breach. However, failure to comply with the requirements of the amended Marine Orders could potentially lead to legal challenges or administrative actions against AMSA or other affected entities. It is important for AMSA and other parties to ensure that they adhere to the changes mandated by this Order to avoid any potential legal repercussions or disruptions to their operations. The Administrative Review Tribunal Act 2024 and related legislation provide the framework for any such actions, which could include fines, sanctions, or other remedies as determined by the relevant authorities.