EXPLANATORY STATEMENT
Select Legislative Instrument 2012 No. 17
Issued under the authority of the Minister for Infrastructure and Transport
Shipping Registration Act 1981
Shipping Registration Amendment Regulation 2012 (No. 1)
Subsection 83(1) of the Shipping Registration Act 1981 (the SR Act) provides that the Governor‑General may make regulations, not inconsistent with the SR Act, prescribing matters required or permitted by the SR Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the SR Act.
The SR Act was amended by the Personal Property Securities (Consequential Amendments) Act 2009 (the PPS Consequential Amendments Act). The PPS Consequential Amendments Act amended 25 Commonwealth Acts that deal with the creation, registration, priority, extinguishment or enforcement of interests in personal property. It is consequential upon the enactment of the Personal Property Securities Act 2009 (the PPS Act) which has created a single national law governing security interests in personal property.
The effect of the amendments to the SR Act made by the PPS Act is that mortgages over ships will no longer be registered on the Australian Register of Ships (the Register). Such mortgages will be registered on the Personal Property Securities Register which has been established by the PPS Act. The amendments to the SR Act made by the PPS Consequential Amendments Act commenced on 30 January 2012.
The regulation amends the Shipping Registration Regulations 1981 (the Principal Regulations) consequential upon amendments to the SR Act made by the PPS Consequential Amendments Act. The regulation also makes a number of unrelated amendments to the Principal Regulations to:
- express some provisions in modern drafting style including, in particular, where the word "shall" is currently used;
- amend gender specific language; and
- update prescribed forms used by the Australian Shipping Registration Office.
Details of the regulation are set out in the Attachment.
The regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The amendments made by the regulation are 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.
No formal consultation was undertaken in relation to these amendments as they are of a minor or machinery nature and do not substantially alter existing arrangements. Extensive consultations were undertaken by the Attorney-General's Department during the development of the PPS Act and the PPS Consequential Amendments Act.
The amendments commenced the day after the regulations was registered on the Federal Register of Legislative Instruments.
ATTACHMENT
Details of the Shipping Registration Amendment Regulation 2012 (No. 1)
Section 1 – Name of regulation
Section 1 provides that the title of the regulation is the Shipping Registration Amendment Regulation 2012 (No. 1).
Section 2 – Commencement
Section 2 provides that the regulation commenced on the day after registration on the Federal Register of Legislative Instruments.
Section 3 – Amendment of Shipping Registration Regulations 1981
Section 3 provides that Schedule 1 amends the Shipping Registration Regulations 1981.
Schedule 1 – Amendments
Item 1 – Regulation 4
Item 1 makes a drafting change to regulation 4 of the Shipping Registration Regulations 1981 (the Principal Regulations) by replacing the phrase "shall be satisfied" with "is satisfied".
Item 2 – Subparagraph 5(a)(ii)
Regulation 5 of the Principal Regulations sets out how documents may be lodged with the Registrar of Ships (the Registrar). Item 2 amended subparagraph 5(a)(ii) to remove the reference to a mortgage instrument consequential upon amendments to the Shipping Registration Act 1981 (the SR Act) made by the Personal Property Securities (Consequential Amendments) Act 2009 (the PPS Consequential Amendments Act).
Item 3 – Subregulation 6(2)
Item 3 makes a drafting change to subregulation 6(2) of the Principal Regulations to replace "shall be deemed" with "is taken".
Item 4 – Subregulation 7(8)
Subregulation 7(8) of the Principal Regulations provides that if the applicant for registration of a ship is unable to produce documents relating to the description or ownership of the ship as required by subregulations 7(5) and (6) respectively, then the requirements of those subregulations may be satisfied by the provision of a statutory declaration. Item 4 rewrites subregulation 7(8) to make it easier to read without changing its meaning or effect.
Item 5 – Subregulation 7(9)
Item 5 makes a drafting change to subregulation 7(9) of the Principal Regulations to replace "shall be taken" with "are taken".
Item 6 – Subregulation 7(10)
Item 6 makes a drafting change to subregulation 7(10) of the Principal Regulations to replace "shall not be taken" with "are not to be taken".
Item 7 – Paragraph 9(d)
Item 7 amends paragraph 9(d) of the Principal Regulations to remove a repeated word "shall".
Item 8 – Subparagraph 11(1)(j)(ii)
Item 8 amends subparagraph 11(1)(j)(ii) of the Principal Regulations to omit the words "or register". The effect of this amendment is to replace the reference to "net or register tonnage" with "net tonnage". This removes the reference to "register tonnage" which is an old term that referred to the volume of the cargo spaces of a ship. The more modern term "net tonnage" has the same meaning.
Item 9 – Subregulation 11(2)
Item 9 makes a drafting change to subregulation 11(2) of the Principal Regulations to replace "shall be the number" with "is the number".
Item 10 – Sub-subparagraph 15(2)(A)(ix)(B) and subparagraph 17(1)(h)(ii)
Item 10 amends sub-subparagraph 15(2)(A)(ix)(B) and subparagraph 17(1)(h)(ii) of the Principal Regulations to replace "register tonnage" with "net tonnage". "Register tonnage" is an old term which referred to the volume of the cargo spaces of a ship. The more modern term "net tonnage" has the same meaning.
Item 11 – Subregulation 19(2)
Subregulation 19(2) of the Principal Regulations required a person whose name appears in the Australian Register of Ships (the Register) as that of a mortgagee of a ship to notify the Registrar of any changes to his or her name or address. Item 11 omits subregulation 19(2) consequential upon amendments to the SR Act made by the PPS Consequential Amendments Act.
Item 12 – Subregulation 19(2A)
Item 12 amends subregulation 19(2A) of the Principal Regulations to omit the reference to subregulation 19(2) consequential upon the omission of subregulation 19(2) by item 11.
Item 13 – Subregulation 19(3)
Item 13 amends subregulation 19(3) of the Principal Regulations to omit the reference to subregulation 19(2) consequential upon the omission of subregulation 19(2) by item 11.
Item 14 – Subparagraph 19(3)(a)(ii)
Item 14 amends subparagraph 19(3)(a)(ii) of the Principal Regulations to omit the reference to subregulation 19(2) consequential upon the omission of subregulation 19(2) by item 11.
Item 15 – Paragraph 20(3)(b)
Paragraph 20(3)(b) of the Principal Regulations previously required the inscription on a ship of the net tonnage, register tonnage or length of the ship. Item 15 substitutes paragraph 20(3)(b) to remove the reference to register tonnage and to retain the references to net tonnage and length. "Register tonnage" is an old term which referred to the volume of the cargo spaces of a ship. The more modern term "net tonnage" has the same meaning.
Item 16 – Subparagraph 23(1)(a)(v)
Subparagraph 23(1)(a)(v) of the Principal Regulations previously required a bill of sale for a ship to specify particulars of any mortgage registered in relation to the ship. Item 16 omits subparagraph 23(1)(a)(v) consequential upon amendments to the SR Act made by the PPS Consequential Amendments Act.
Item 17 – Regulations 25 to 28AA inclusive
Regulations 25 to 28AA of the Principal Regulations related to mortgages over ships. Item 17 omits regulations 25 to 28AA consequential upon amendments to the SR Act made by the PPS Consequential Amendments Act.
Item 18 – Subregulation 28A(1)
Subsection 47A(1) of the SR Act refers to the prescribed form for lodging a caveat with the Registrar. Item 18 amends subregulation 28A(1) of the Principal Regulations to replace the reference in that subregulation to section 47A of the SR Act with a reference to subsection 47A(1) to ensure that there is a more precise reference to the relevant provision of the SR Act.
Item 19 – Paragraph 31(2)(g)
Item 19 substitutes paragraph 31(2)(g) of the Principal Regulations to express the paragraph more clearly and to replace the reference to "register tonnage" with "net tonnage". "Register tonnage" is an old term which referred to the volume of the cargo spaces of a ship. The more modern term "net tonnage" has the same meaning.
Item 20 – Subregulation 31(5)
Paragraph 65(1)(d) of the SR Act refers to the prescribed form for a provisional registration certificate. Item 20 amends subregulation 31(5) of the Principal Regulations to replace the reference in that subregulation to subsection 65(1) of the SR Act with a reference to paragraph 65(1)(d) to ensure that there is a more precise reference to the relevant provision of the SR Act.
Item 21 – Subregulation 31(7)
Item 21 amends subregulation 31(7) of the Principal Regulations to replace "he shall" with "the proper officer must". This is to remove gender-specific language and to reflect modern drafting practice.
Item 22 – Subregulation 31(8)
Subregulation 31(8) of the Principal Regulations provided that if a ship is altered so that its net or register tonnage is not the same as the tonnage inscribed on the ship, the Register is not to be altered to reflect the revised tonnage until the inscription on the ship is changed. Item 22 rewrites subregulation 31(8) to make it easier to read without changing its meaning or effect other than to replaces an incorrect reference to paragraph 65(1)(c) with a reference to paragraph 65(1)(e) and to remove the reference to the outdated term "register tonnage".
Item 23 – Subregulation 33(4)
Item 23 amends subregulation 33(4) of the Principal Regulations to replace "he shall" with "the Registrar must". This is to remove gender-specific language and to reflect modern drafting practice.
Item 24 – Subregulation 33(4)
Item 24 amends subregulation 33(4) of the Principal Regulations to remove the reference to subregulation 33(5) consequential upon the omission of subregulation 33(5) by item 25.
Item 25 – Subregulation 33(5)
Subregulation 33(5) of the Principal Regulations related to entries in the Register that are subject to unsatisfied mortgages. Item 25 omits subregulation 33(5) consequential upon amendments to the SR Act made by the PPS Consequential Amendments Act.
Item 26 – Subregulation 35(2)
Subregulation 35(2) of the Principal Act provides that ports that were ports of registry under the law that applied before the commencement of the SR Act are taken to be home ports until a notice listing home ports approved by the Australian Maritime Safety Authority has been published in the Gazette. Item 26 rewrites subregulation 35(2) to make it easier to read.
Item 27 – Paragraph 37(4)(b)
Item 27 makes a drafting change to paragraph 37(4)(b) of the Principal Regulations to replace "shall not affect the validity" with "does not affect the validity".
Item 28 – Subregulation 39(1)
Item 28 amends subregulation 39(1) of the Principal Regulations to replace "him" with "the Registrar". This is to remove gender-specific language.
Item 29 – Subregulation 40(1)
Item 29 amends subregulation 40(1) of the Principal Regulations to replace "lodged with him or produced to him" with "lodged with or provided to the Registrar". This is to remove gender-specific language.
Item 30 – Paragraph 40(1)(b
Paragraph 40(1)(b) of the Principal Regulations provides that the Registrar may require the submission of further documents to verify the authenticity of documents provided to the Register or of the information contained in those documents. Item 30 rewrites paragraph 40(1)(b) to make it easier to read.
Items 31 to 35 – Schedule 2, Forms 2 to 6
Items 31 to 35 substitute, respectively, Forms 2 to 6 in Schedule 2 of the Principal Regulations. The revised forms, which are forms used by the Australian Shipping Registration Office, do not differ significantly from the forms which they replace. They are simply updated to, for example, remove references to "register tonnage".
Item 36 – Further amendments
Item 36 amends a number of provisions within the Principal Regulations to comply with modern drafting practice. References to "shall be taken" are changed to "is taken"; references to "shall be read" are changed to "is read"; and references to "shall" are changed to "must".