Navigation Act 1912 - Direction under subsection 421(1) (18/03/2010)

Overview

The Navigation Act 1912, enacted by the Commonwealth Parliament, was designed to regulate maritime trade within Australian waters, including the issuance of permits and licenses for ships involved in the domestic coasting trade. The Act defines the coasting trade as the carriage of passengers or cargo between ports within the same state or territory or between different states or territories. To address specific needs, the Act allows the Minister to exempt certain classes of ships from its provisions under subsection 421(1). In 1998, an exemption was granted for shipping between Christmas Island and other states or territories, a decision that was based on the need to provide competitive freight rates for Christmas Island Phosphates and to rectify an anomaly where Christmas Island was the only Commonwealth island territory without such an exemption. This exemption has been periodically renewed every three years since its inception, most recently by the Minister for Infrastructure, Transport, Regional Development and Local Government, reflecting the unchanged nature of the shipping requirements for the island. The exemption continues to be justified on the grounds of maintaining flexibility in meeting the island’s unique shipping needs, considering its remote location from main trading routes.

Scope and Application

The Navigation Act 1912, as amended through the issuance of the Direction under subsection 421(1), applies to ships that engage in the domestic coasting trade of Australia. This encompasses any ship that takes on board passengers or cargo at any port within a state or territory to be carried to, and landed or delivered at, another port within the same state or territory, or another state or territory, except under specified circumstances. The Act provides for the granting of permits and licenses for such ships. However, pursuant to the Direction issued by the Minister for Infrastructure, Transport, Regional Development and Local Government, a class of ships involved in shipping between Christmas Island and other states and territories has been exempted from certain provisions of Part VI of the Act. This exemption, initially granted in 1998 and subsequently renewed every three years, aims to facilitate access for Christmas Island Phosphates to competitive freight rates and to address an anomaly by providing a similar exemption to other Commonwealth island territories. The exemption is subject to the conditions that it does not conflict with any international agreements Australia is party to and does not jeopardise the safety of ships or persons on board. The current exemption, which takes effect from 8 April 2010 and remains in force until 7 April 2013, continues to allow for flexibility in meeting the shipping needs of Christmas Island, considering its remote location and limited shipping appeal.

Key Provisions

The main operative sections of the legislation pertain to the exemption of a class of ships from certain provisions of the Navigation Act 1912 (the Act) (s421). Section 7 of the Act defines the coasting trade, which includes taking on board passengers or cargo at any port in a state or territory to be carried to, and landed or delivered at, another port in the same state or territory or in any other state or territory. The exemption granted under section 421(1) of the Act, which was initially introduced in 1998 and has been renewed periodically, allows ships to operate between Christmas Island and other states and territories without the need for a permit or licence under Part VI of the Act. This exemption was designed to allow Christmas Island Phosphates to access competitive freight rates and to address an anomaly whereby Christmas Island was the only Commonwealth island territory without such an exemption. The Act imposes specific obligations and requirements on the parties or entities it governs. The Minister for Infrastructure, Transport, Regional Development and Local Government must be satisfied that any exemption granted under section 421(1) would not be inconsistent with an international agreement nor jeopardise the safety of ships or persons on board (s421(6), s421(7)). The exemption must be granted for a specified period, ensuring that the exemption remains in force for a defined duration (s421(2)). Additionally, the exemption is subject to review and renewal every three years, with the latest renewal extending until 7 April 2013. Failure to comply with the provisions of the Act may result in civil or criminal consequences, although the specific penalties are not detailed in the explanatory statement. The Act, however, does not outline the maximum penalties for breaches, and these would need to be referred to in the main body of the legislation. It is important to note that any exemption granted under section 421(1) is a legislative instrument for the purposes of the Legislative Instruments Act 2003. The Direction, which is the legislative instrument in this case, does not require external consultation as it is deemed to be of a minor or machinery nature and does not alter existing arrangements. The Direction commenced on 8 April 2010 and remains in force until 7 April 2013.