Marine Orders Miscellaneous Amendment Order 2026 (No. 3)

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

Legislation au F2026L00316 Not in force Legislative Instrument

Legislation content

Replacement Explanatory Statement

Marine Orders Miscellaneous Amendment Order 2026 (No. 3)(Order 2026/3)

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.     Paragraph 340(1)(a) of the Navigation Act provides that the regulations may provide for giving effect to the International Convention for the Safety of Life at Sea (SOLAS).
  3.       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.
  4.       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.
  5.       This amending Marine Order is a legislative instrument for the Legislation Act 2003.

Purpose

  1.       This Marine Order makes amendments to Marine Order 12 (Construction — subdivision and stability, machinery and electrical installations) 2023 (Marine Order 12) and Marine Order 32 (Cargo handling equipment) 2016 (Marine Order 32).
  2.       The Marine Orders being amended are exempt from sunsetting under item 1, section 11 of the Legislation (Exemptions and Other Matters) Regulation 2015.

Overview

  1.       This Marine Order makes amendments to:
  • give effect to changes to regulation 3-13 of Chapter II-1 of SOLAS; and
  • give effect to the arrangements mentioned in Guidelines for Lifting Appliances MSC. 1/Circ. 1663 and the arrangements mentioned in Guidelines for Anchor Handling Winches MSC. 1/Circ. 1662; and
  • clarify text of the amended Orders.

Consultation

  1.       A copy of the draft of this Marine Order was placed on AMSA’s website on 12 January 2026 for public consultation and open for comments until 8 February 2026. Around 125 stakeholders were contacted by email and invited to comment. These included vessel operators, seafarer representative organisations, relevant government agencies and a group known as the Shipping Consultative Forum. The review was also advised on social media and as an AMSA news article.
  2.   One submission was received in relation to transitional matters and was taken into account in preparation of the final instrument.
  3.   The Office of Impact Analysis considers that the changes made by the Marine Order have regulatory impacts of a minor or machinery nature and no regulation impact statement is required. The OIA numbers are OIA23-06166, OIA23-06229 and OIA24-08607.

Documents incorporated by reference

  1.   The following documents or parts of them are incorporated by reference in the amendments:
  • regulation 3-13 of Chapter II-1 of the International Convention for the Safety of Life at Sea (SOLAS) adopted by resolution MSC.532(107) on 8 June 2023
  • Guidelines for Lifting Appliances MSC. 1/Circ. 1663 approved by MSC at 107th session on 28 June 2023
  • Guidelines for Anchor Handling Winches MSC. 1/Circ. 1662 approved by MSC at 107th session on 27 June 2023
  • Marine Order 12 (Construction — subdivision and stability, machinery and electrical installations) 2023.
  1.   SOLAS is incorporated as amended and in force from time to time. The Convention is in the Australian Treaties Library accessible online at the AustLII website at www.austlii.edu.au or the Australian Treaties Database at www.info.dfat.gov.au/treaties. A link to the Australian Treaties Library is available at the Marine Orders webpage on the AMSA website at www.amsa.gov.au. The Marine Orders webpage also contains information on the purchase of SOLAS and availability at libraries.
  2.   The guidelines are revised or replaced from time to time. Any IMO resolutions or guidelines are available to download from the IMO website at no cost. A link to these IMO documents is available on the Marine Orders webpage at AMSA website www.amsa.gov.au.
  3.   Marine Order 12 is adopted as in force from time to time because it is adopted by reference to title 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 can be accessed through the Marine Orders webpage on the AMSA website at www.amsa.gov.au and is available for free download from the Federal Register of Legislation through that link.

Commencement

  1.   This Marine Order commenced on 1 May 2026.

Contents of this instrument

  1.   Section 1 sets out the name of the Marine Order.
  2.   Section 2 provides for the commencement of the Marine Order.
  3.   Section 3 states the purpose of the Marine Order, which is to amend two Marine Orders.
  4.   Division 1 of Schedule 1 sets out the amendments to Marine Order 12 (Construction — subdivision and stability, machinery and electrical installations) 2023.
  5.   Item 1 of Division 1 updates the authority for Marine Order 12 to clarify that a supporting legislative power for the Marine Order is paragraph 339(2)(f) of the Navigation Act.
  6.   Item 2 of Division 1 updates the interpretative provision in relation to the use of the expression competent person and other expressions.
  7.   Item 3 of Division 1 adds 4 new provisions in relation to lifting appliances and anchor handling winches.
  8.   There are 7 new offences, with associated civil penalties, created in relation to the design, construction, installation, testing, examination, marking, inspection, operation and maintenance of equipment, including the isolation of inoperative equipment. The offences secure strict adherence to relevant international maritime requirements, including new safety requirements of the Guidelines for Lifting Appliances MSC. 1/Circ. 1663, the Guidelines for Anchor Handling Winches MSC. 1/Circ. 1662 and regulation 3-13 of Chapter II-1 of SOLAS. Each offence is strict liability with a maximum penalty of 50 penalty units. The associated civil penalty is also 50 penalty units. The penalty provisions are authorised by subsection 341(1) of the Navigation Act. Further justification for the application of strict liability is set out in the statement of compatibility with human rights.
  9.   Two of the new requirements and related offences refer to the SOLAS implementation date of 1 January 2026. The obligations apply only from commencement of this amending instrument and do not impose liability for conduct occurring before 1 May 2026.
  10.   Further explanation of the use of the 1 January 2026 implementation date is set out in the statement of compatibility with human rights.
  11.   Item 4 of Division 1 omits text that set requirements for lifting gear and machinery space cranes on vessels subject to SOLAS Chapter II‑1. These provisions are now unnecessary following the changes to regulation 3‑13 of SOLAS Chapter II‑1.
  12.   Division 2 of Schedule 1 sets out an amendment to Marine Order 32 (Cargo handling equipment) 2016.
  13.   Item 5 of Division 2 updates the requirements for marking and determining the safe working load to allow compliance with the process set out in Marine Order 12 as an option.
  14.   Item 6 is a consequential change related to item 5.
  15.   Item 7 of Division 2 updates testing, examination and certification requirements for material handling equipment to allow compliance with the process set out in Marine Order 12 as an option.

Statement of compatibility with human rights

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

Overview of the legislative instrument

  1.   This amending Marine Order is made under the Navigation Act and gives effect to Australia’s international obligations under SOLAS. It makes amendments including:
  • amending Marine Order 12 to give effect to regulation 3-13 of Chapter II-1 of SOLAS including mandating the arrangements mentioned in the Guidelines for Anchor Handling Winches MSC. 1/Circ. 1662 and the Guidelines for Lifting Appliances MSC. 1/Circ. 1663;
  • updating Marine Order 32 to provide the option of complying with Marine Order 12 for marking, testing, examination, inspection and certification.

Human rights implications

  1.   Item 3 of Division 1 of the amending Marine Order deals with lifting appliances and anchor handling winches and creates criminal offences to which strict liability applies. Seven new offences are created with associated civil penalty provisions. The penalty provisions are directed at owners and masters of vessels, rather than the community at large, and are regulatory in nature. Their objective is to achieve compliance with internationally accepted standards for the design, construction, installation, testing, examination, marking, operation and maintenance of vessel equipment, including requirements for the isolation of inoperative equipment, for the safety of vessels and crew.
  2.   Strict liability is considered appropriate because the offences support maritime safety at sea, the prevention of damage to cargo and vessels, and the prevention of harm to individuals working on vessels. Non-compliance with the technical requirements imposed may create risks of equipment failure, uncontrolled movement of heavy machinery, cargo incidents and injury to crew on board. To the extent cargo is lost overboard due to equipment failure, a threat may also be posed to the environment.
  3.   The application of strict liability is consistent with the principles in paragraph 2.2.6 of the Attorney-General’s Department’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. The offences arise in a regulatory context, protect public safety, enforce compliance in relation to matters that are straightforward to prove, and apply to persons who are best placed to ensure compliance. Whether relevant equipment has been tested, examined, maintained, marked, operated and properly recorded in accordance with applicable standards will generally be a matter within the knowledge, control or supervision of owners and masters.
  4.   The penalties are moderate, being 50 penalty units for each offence, and no term of imprisonment applies. The defence of honest and reasonable mistake of fact under section 9.2 of the Criminal Code is available. The associated civil penalty provisions further demonstrate the regulatory and compliance-focused character of the regime. The inclusion of strict liability reflects the importance of ensuring effective enforcement of maritime safety requirements and is justified by the need to deter non-compliance before it results in injury, loss of life, damage to property or damage to the environment.
  5.   The offences also support compliance with relevant international conventions with which vessels must comply in order to trade internationally and avoid detention in a foreign port. This regulatory control is part of the port State control regime supported by SOLAS and associated IMO requirements.
  6.   Although two provisions incorporate the SOLAS implementation date of 1 January 2026, this does not create retrospectivity that is contrary to section 12 of the Legislation Act 2003 and Article 15 of ICCPR. The instrument does not make a person liable to a criminal penalty for conduct that occurred before the instrument commenced. Rather, the offences apply only to the condition of equipment and operation after commencement, even where the condition relates to a requirement that SOLAS mandated to be in place from 1 January 2026. This approach is necessary to ensure domestic law faithfully reflects the timing under SOLAS regulation 3‑13 and associated guidelines for requirements that are technical in nature.
  7.   Any retrospective effect is therefore limited to referencing an earlier technical compliance date, not to penalising earlier conduct. Further, no practical disadvantage arises because owners and masters of SOLAS‑classed vessels were already required to ensure compliance with the relevant lifting‑appliance and anchor‑handling‑winch standards from 1 January 2026 under classification rules and port State control expectations. Existing Marine Order 32 requirements on testing, examination, inspection, marking and certification also mitigated the effect of any impact for vessels.
  8.   The criminal penalty provisions in this Marine Order are authorised by paragraph 341(1)(a) of the Navigation Act. The civil penalty provisions in this Marine Order are authorised by paragraph 341(1)(b) of the Navigation Act.
  9.   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.

Conclusion

  1.   AMSA considers the instrument compatible with human rights. To the extent it may limit rights, those limitations are reasonable, necessary and proportionate to the objective of safety of life at sea.

Making the instrument

  1.   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.

Interactions

Authorises

All Versions

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.