EXPLANATORY STATEMENT
STATUTORY RULES NO. 262 OF 1985
ISSUED UNDER THE AUTHORITY OF THE MINISTER OF STATE FOR TRANSPORT SHIPPING REGISTRATION ACT 1981
SHIPPING REGISTRATION REGULATIONS (AMENDMENT)
Sub-section 83(1) of the Shipping Registration Act 1981 (‘the Act’) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matter required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act. The Shipping Registration Regulations (‘the Regulations’) which provide the administrative basis for the registration of Australian Shipping are made pursuant to that sub-section.
The amending regulations make a number of changes to the Regulations to achieve the following:
1) correct drafting errors and overcome ambiguities in the existing drafting;
2) increase fees associated with the costs of registering ships. Prior to 1982, Australian ships were registered under United Kingdom legislation. To avoid confusion and unnecessary complications during changeover to Australian registration, it was directed that the starting rate of fees for Australian registration would be equivalent to the United Kingdom fee structure current at the commencement of the Australian system, although these fees would not cover the administrative costs of the new system. Full recovery would be achieved over five years. In 1982/83 fees were increased to recover 43% of the costs, in 1983/84 to recover 65% and in 1984/85 to recover 85%. It is proposed to achieve a recovery of 94% for the year 1985/86, the fourth year of the five year programme;
3) accommodate changes to the legislation made by the Shipping Registration Amendment Act 1984: and
4) make amendments gained from experience in administering the Act since the establishment of the Australian Register of Ships in 1982. These amendments are aimed at enhancing the Registrar’s ability to maintain an up-to-date register, an essential feature of a register of titles while the remainder are designed to remove inflexibilities in the system.
Details of the amending regulations are set out in the attachment.
ATTACHMENT
SHIPPING REGISTRATION REGULATIONS (AMENDMENT)
DETAILS OF PROPOSED REGULATIONS
Regulation 1 is a formal provision.
Regulation 2 amends existing regulation 2, which defines words and phrases used in the regulations, by:
(a) amending the definition of ‘name’ in sub-regulation 2(1) to cover names of persons as well as ships;
(b) amending the definition of ‘prescribed office’ in the same sub-regulation to take advantage of an amendment to the Acts Interpretation Act 1901 and will obviate the need for amendment in the event of a future change in the name of the department; and
(c) deleting sub-regulation 2 (3) which in its current form is inaccurate and is now considered unnecessary.
Regulation 3 amends existing regulation 3 by correcting a drafting error and removing a redundant provision.
Regulation 4 inserts a new regulation 6A to define ‘tonnage length’ in a manner consistent with the appropriate provisions of the Navigation Act 1912.
Regulation 5 amends existing regulation 7, which deals with applications for registration of ships, by:
(a) providing for a person appointed as registered agent for a ship to indicate agreement to the appointment;
(b) requiring evidence that a ship has been marked in accordance with regulation 20;
(c) removing a superfluous and potentially confusing provision concerning the length of time allowed for completing the formalities associated with making an application;
(d) replacing the word ‘length’ by ‘overall length’, in line with changes made in the amending Act;
(e) extending the circumstances in which registration can be effected, notwithstanding the unavailability of certain documents; and
(f) clarifying ambiguous wording.
Regulation 6 amends existing regulation 8, which sets out requirements for a builder’s certificate, to require such a certificate to specify the date on which the ship was handed over in addition to specifying the date of completion.
Regulation 7 amends existing regulation 9, which deals with declaration of ownership and nationality, to require such a declaration to contain the date on which the person making the declaration acquired his interest in the ship.
Regulation 8 amends existing regulation 10 by replacing the word ‘length’ by ‘overall length’, in line with changes made in the amending Act.
Existing regulation 13 requires that particulars of the master of the ship are to be endorsed on the certificate of registration before leaving a port in Australia for overseas. Regulation 9 extends this requirement to ships departing from certain overseas ports.
Regulation 10 amends existing regulation 14, which deals with the issue of new (replacement) certificates, by:
(a) allowing the Registrar to issue replacement certificates when the original was lost overseas;
(b) when application for a replacement certificate is made by the master, requiring evidence of his appointment as master; and
(c) providing a penalty for a person who fails to surrender a certificate for cancellation when a replacement has been issued and the original subsequently found.
Regulation 11 amends existing regulation 15, which deals with the issue of provisional certificates for ships becoming entitled to be registered when abroad, by requiring an expired provisional certificate to be surrendered and providing a penalty for non-compliance.
Regulation 12 amends existing regulation 16, which deals with applications for extension of validity of provisional certificates, by requiring an applicant to state the name of the Australian port at which it is expected that the ship will next arrive, as well as the anticipated date of arrival.
Regulation 13 amends existing regulation 17, which deals with temporary passes, by providing a penalty of a fine not exceeding $500 for a person convicted of failing to surrender an expired pass.
Regulation 14 repeals existing regulation 18 as a consequence of the repeal by the amending Act of section 24 of the Act.
Regulation 15 amends existing regulation 19 by providing penalties of $500 for failure to advise change of name, address and nationality.
Regulation 16 amends existing regulation 20, which deals with the markings to be placed on ships, by:
(a) extending the power of the Minister to exempt ships from certain requirements when he considers compliance to be unreasonable in the circumstances; and
(b) requiring evidence to be produced that a ship has been marked in accordance with the regulations.
Regulation 17 amends existing regulation 21, which deals with the names of ships, by:
(a) allowing the owner to apply for a change of name, as well as the registered agent; and
(b) adding to the list of classes of names disallowed, a name which includes a prefix denoting a type of ship, eg. ‘M.V.’
Regulation 18 amends existing regulation 22, which deals with national, flags flown by ships, by correcting a drafting error and deleting a provision which requires an applicant to give irrelevant details about his interest in the ship.
Regulation 19 amends existing regulation 23, which deals with the transfer of a ship, by:
(a) requiring a bill of sale to contain particulars of any mortgages relating to the ships; and
(b) requiring a bill of sale to be accompanied when appropriate by notification of change of registered agent.
Regulation 20 amends existing regulation 24, which deals with the transmission of a ship by operation of law, by:
(a) clarifying some ambiguous drafting; and
(b) requiring, in the case of the death of the sole owner or owner in common, an instrument identifying the person who has become the new owner.
Regulation 21 inserts a new regulation 25A as a consequence of the insertion by the amending Act of subsection 41(2) of the Act. The regulation specifies the details to be provided by a mortgagee-in-possession who intends to exercise his right of disposal.
Regulation 22 amends existing regulation 26, which deals with the transfer of a mortgage, by requiring the instrument of transfer to specify the conditions of the transfer and to be affixed to the instrument of mortgage to which it relates.
Regulation 23 inserts a new sub-regulation 28(2) and a new regulation 28A. Sub-regulation 28(2) is inserted as a consequence of the insertion by the amending Act of subsection 44(3) of the Act. The regulation specifies the details to be provided by a mortgagor when registering the discharge of a mortgage in cases where the mortgage instrument is not available.
Regulation 28A is inserted as a consequence of the insertion by the amending Act of section 47A of the Act, dealing with the lodgement of caveats. Section 47A requires both lodgement and notification of change of address of the caveator to be in a prescribed form. Regulation 28A prescribes Form 5 and Form 6 respectively which provide the notice of caveat and the notice of change of address etc. of caveator.
Section 58 of the Act empowers the Registrar to take certain action towards the rectification of an incorrect or obselete entry in the register when that entry has been on the register for a prescribed period of time. Existing regulation 29 prescribed 5 years, which has proved ineffective in practice. Regulation 24 amends regulation 29 by substituting 30 days for the present 5 years.
Regulation 25 amends existing regulation 30 as a consequence of the alteration by the amending Act of sub-section 64(2) of the Act. A prescribed form is replaced by prescribed information.
Regulation 26 amends existing regulation 31 to take account of alterations to ships which involve engine-installers rather than ship-builders.
Regulation 27 amends existing regulation 33A by extending to ships propelled only by means of oars the exemption for the requirement in section 68 of the Act to be registered before leaving Australia.
Regulation 28 amends existing regulation 35 to remove ambiguities in the current wording and to provide a penalty of $500 where a registered agent of a ship fails without reasonable excuse to notify the Registrar within 30 days that changes to markings of ships have been made.
Regulation 29 inserts a new regulation 36A as a consequence of the insertion by the amending Act of subsection 92(3) of the Act. That sub-section empowers the Registrar to take certain action in cases where no entries have been made in the Register in respect of a ship, registered under the United Kingdom law, for a prescribed period. Regulation 36A prescribes 25 years.
Regulation 30 inserts in Schedule A the forms referred to in regulation 28A.
Regulation 31 repeals the existing Schedule 3 and substitutes a new Schedule 3 indicating new fees based on 94% recovery to be payable in respect of:
(a) the making of applications under the Act;
(b) the lodging and registration of documents or information;
(c) the registration and re-registration of ships
(d) the issue of registration certificates, provisional registration certificates and temporary passes; and
(e) the supplying of copies of, or abstracts from, entries in the Register or documents forming part of, or associated with, the Register.