Occupational Health and Safety (Maritime Industry) (Prescribed Ship or Unit — Intra-State Trade) Declaration 2017

Administered by Department of Employment and Workplace Relations

Legislation au F2017L00673 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by the authority of the Minister for Employment

 

Occupational Health and Safety (Maritime Industry) Act 1993

Subsections 4A(2) and 4B(2)

 

Occupational Health and Safety (Maritime Industry) (Prescribed Ship or Unit — Intra-State Trade) Declaration 2017

 

 

Overview

 

This instrument, the Occupational Health and Safety (Maritime Industry) (Prescribed Ship or Unit — Intra-State Trade) Declaration 2017, replaces the Occupational Health and Safety (Maritime Industry) (Prescribed Ship or Unit — Intra-State Trade) Declaration 2015 (No. 2) (the current instrument) which will cease to have effect on 23 June 2017. This instrument is being remade in its current form to maintain the status quo while legislative reform is pursued.

 

Background

 

The Occupational Health and Safety (Maritime Industry) Act 1993 (OHS(MI) Act) regulates work health and safety for a defined part of the Australian maritime industry. The OHS(MI) Act operates in conjunction with the Seafarers Rehabilitation and Compensation Act 1992 (Seafarers Act) to provide a combined work health and safety and workers’ compensation scheme known as the ‘Seacare scheme’. As of July 2016, the scheme was known to apply to 219 vessels and approximately 6000 employees (a small portion of approximately 80,000 domestic seafarers in Australia).

 

Prior to the decision in Samson Maritime Pty Ltd v Aucote [2014] FCAFC 182 (the Aucote decision), coverage of the Seacare scheme was historically understood by maritime industry regulators and participants to operate primarily by reference to the form of trade or commerce engaged in by a ship. Ships engaged in interstate or international trade or commerce were understood to be covered by the Seacare scheme, while ships engaged in intrastate trade or commerce were understood to be covered by the legislation of the state in which they operate.

 

The Federal Court held in Aucote that the scheme applied to seafarers employed by a trading, financial or foreign corporation on a prescribed ship engaged in intrastate trade, substantially broadening coverage of the Seacare scheme to potentially over 10, 000 Australian registered ships.

 

Several interim measures were taken in 2015 to address the uncertainty caused by the Aucote decision. The retrospective effect of the decision was addressed by the Seafarers Rehabilitation and Compensation and Other Legislation Amendment Act 2015 (Amendment Act), while the prospective application of the OHS(MI) Act was clarified by the current declaration. The prospective application of the Seafarers Act is addressed by two exemptions issued by the Seacare Authority and the Seafarers Rehabilitation and Compensation (Prescribed Ship — Intra-State Trade) Declaration 2015 (No. 2).

 

The combined effect of the current declaration and the Amendment Act is that ships understood to be outside the coverage of the OHS(MI) Act prior to the Federal Court’s Aucote decision are not covered by the OHS(MI) Act.

 

Effect of Declaration

 

Clause 1 repeals the current instrument.

Clause 2 declares that a ship or vessel which is only engaged in intrastate trade is not a prescribed ship or a prescribed unit for the purposes of the OHS(MI) Act. These ships and vessels will continue to be subject to relevant state work health and safety laws.

 

Clause 3 ensures this declaration will not affect ships that are subject to subsections 6(3) and (3A) of the OHS(MI) Act because they are covered by a declaration under sections 8A or 8AA of the now repealed Navigation Act 1912 or because they are licenced under the Coastal Shipping (Revitalising Australian Shipping) Act 2012.

 

This instrument will come into effect the day after it is registered on the Federal Register of Legislation.

 

Consultation

 

Maritime industry stakeholders and the co-regulators of the Seacare scheme – the Seacare Authority and the Australian Maritime Safety Authority - support the remaking of the declaration pending legislative reform.

 

The Office of Best Practice Regulation was consulted regarding this declaration and indicated that a Regulation Impact Statement was not required for this declaration (OBPR 22374).


Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Occupational Health and Safety (Maritime Industry) (Prescribed Ship or Unit — Intra‑State Trade) Declaration 2017

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

This instrument, the Occupational Health and Safety (Maritime Industry) (Prescribed Ship or Unit — Intra-State Trade) Declaration 2017, replaces the Occupational Health and Safety (Maritime Industry) (Prescribed Ship or Unit — Intra-State Trade) Declaration 2015 (No. 2) (the current instrument) which will cease to have effect on 23 June 2017. The instrument is being remade in its current form to maintain the status quo while legislative reform is pursued. The instrument remains an interim measure supported by industry and unions to address issues arising from the Federal Court decision in Samson Maritime Pty Ltd v Aucote [2014] FCAFC 182 (the Aucote decision).

 

The impacts of the current instrument were discussed in the Human Rights Compatibility Statement for the current instrument.[1] The Committee did not identify any human rights issues at that time for comment.

 

As with the current declaration this instrument will maintain the coverage of the OHS(MI) Act as it was traditionally understood prior to the Aucote decision. All employees not covered by the OHS(MI) Act as a result of this declaration will continue to be protected by more modern work health and safety laws of the state in which the ship or vessel operates. The declaration does not create any change, but merely continues the interim measures taken in 2015, while legislative reform is being pursued. The Seafarers and Other Legislation Amendment Bill 2016 (Seafarers Bill) is currently before the Parliament and would remove the need for continued reliance on the instrument to clarify the coverage of the Seacare scheme following the Federal Court’s decision in Aucote.

 

Conclusion

The Legislative Instrument is compatible with human rights.

 

 

 

 

[1] Statement of Compatibility with Human Rights, Occupational Health and Safety (Maritime Industry) (Prescribed Ship or Unit — Intra-State Trade) Declaration 2015 (No. 2) [F2015L00863]

Overview

The Occupational Health and Safety (Maritime Industry) (Prescribed Ship or Unit — Intra-State Trade) Declaration 2017 was enacted to address the implications of the Federal Court’s decision in Samson Maritime Pty Ltd v Aucote [2014] FCAFC 182, which significantly broadened the scope of the Seacare scheme’s coverage to potentially encompass over 10,000 Australian registered ships. This decision caused uncertainty regarding the application of the Occupational Health and Safety (Maritime Industry) Act 1993 (OHS(MI) Act) to ships engaged in intrastate trade. The Declaration, issued by the Minister for Employment, seeks to maintain the status quo while legislative reform is pursued. It clarifies that ships engaged solely in intrastate trade are not considered prescribed ships or units under the OHS(MI) Act, thereby ensuring they remain subject to relevant state work health and safety laws. This interim measure is supported by maritime industry stakeholders and co-regulators of the Seacare scheme, aiming to provide stability until the Seafarers and Other Legislation Amendment Bill 2016 is enacted.

Scope and Application

The Occupational Health and Safety (Maritime Industry) (Prescribed Ship or Unit — Intra-State Trade) Declaration 2017 applies to ships and vessels engaged in intrastate trade, ensuring they are not classified as prescribed ships or units under the Occupational Health and Safety (Maritime Industry) Act 1993. This exclusion means that such ships and vessels are instead governed by the work health and safety laws of the state in which they operate. The declaration is a Commonwealth instrument, reflecting the federal nature of maritime regulation in Australia. The declaration explicitly excludes ships that are subject to specific declarations under the repealed Navigation Act 1912 or are licensed under the Coastal Shipping (Revitalising Australian Shipping) Act 2012, thereby maintaining their coverage under the Occupational Health and Safety (Maritime Industry) Act 1993. This legislative instrument functions as an interim measure to maintain the status quo in the maritime industry's occupational health and safety framework while broader legislative reforms are being pursued.

Key Provisions

The Occupational Health and Safety (Maritime Industry) (Prescribed Ship or Unit — Intra-State Trade) Declaration 2017 (the Declaration) is a legislative instrument that replaces the previous declaration from 2015 and comes into effect on the day after it is registered on the Federal Register of Legislation. Clause 1 of the Declaration repeals the earlier instrument, while Clause 2 explicitly states that ships or vessels engaged solely in intrastate trade are not considered prescribed ships or units for the purposes of the Occupational Health and Safety (Maritime Industry) Act 1993 (OHS(MI) Act). Consequently, these vessels will remain subject to the relevant state work health and safety laws (Section 2). Clause 3 ensures that the Declaration does not affect ships that are already covered by the OHS(MI) Act under subsections 6(3) and (3A) of the Act due to being subject to a declaration under sections 8A or 8AA of the Navigation Act 1912 or because they are licensed under the Coastal Shipping (Revitalising Australian Shipping) Act 2012 (Section 3). The Declaration imposes specific obligations on parties and entities governed by the OHS(MI) Act. For instance, it mandates that ships or vessels engaged exclusively in intrastate trade are not subject to the OHS(MI) Act and must therefore comply with the relevant state work health and safety laws. This requirement ensures that maritime industry participants understand their jurisdictional obligations and comply with the appropriate legislative framework. Furthermore, the Declaration clarifies that ships or vessels covered by certain declarations or licenses under the Navigation Act 1912 or the Coastal Shipping (Revitalising Australian Shipping) Act 2012 are not affected by the provisions of this Declaration and continue to be subject to the OHS(MI) Act (Section 3). Failure to comply with the requirements set out in the Declaration may result in civil or criminal consequences. However, the Declaration itself does not explicitly outline specific offences or penalties for non-compliance. Instead, the consequences of non-compliance would be determined by the relevant state work health and safety laws or the OHS(MI) Act, depending on the circumstances. Penalties for breaches of state work health and safety laws or the OHS(MI) Act can vary significantly, depending on the severity of the breach and the specific provisions of the applicable legislation. In general, penalties can include fines, imprisonment, or both, with maximum penalties varying based on the specific offence and jurisdiction. It is essential for maritime industry participants to understand and comply with the relevant legislative requirements to avoid potential civil or criminal consequences.

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Occupational Health and Safety Law
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Declaration
Concepts
Definitions & Interpretation
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.