MARINE SAFETY (DOMESTIC COMMERCIAL VESSEL) NATIONAL LAW (APPLICATION) BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (17:49): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

I am pleased to introduce the Marine Safety (Domestic Commercial Vessel) National Law (Application) Bill 2013.

In 2009, the Council of Australian Governments (COAG) agreed to a national system for regulating the safety of domestic commercial vessels in Australia; 'domestic' referring to the commercial vessels involved only in coastal voyages, not overseas voyages.

In August 2011, COAG agreed to establish a single National Regulator—the Australian Maritime Safety Authority (AMSA). AMSA as the National Regulator will replace eight existing federal, state and territory regulators.

This national system for domestic commercial vessels is the culmination of over three years of dedicated collaborative effort between South Australian Department of Planning, Transport and Infrastructure and other state and territory marine safety authorities, AMSA and the Commonwealth Department of Infrastructure and Transport.

The Commonwealth Marine Safety (Domestic Commercial Vessel) National Law Act 2012 passed by the Federal Parliament, and received Royal Assent on 12 September 2012, and will commence by proclamation on 1 July 2013. On proclamation, the Commonwealth National Law Act applies to the extent to the Commonwealth's Constitutional reach.

This Application Bill is South Australia's contribution to the delivery of a single, nationally consistent marine safety regime for all domestic commercial vessels.

This Bill applies the Commonwealth National Law as the law of South Australia and extends coverage of the National Law to cover any gap in the Commonwealth's Constitutional reach. The Commonwealth arguably has the Constitutional powers to regulate a substantial proportion of the State's domestic commercial vessels. These powers are however largely untested by the courts and may not apply to vessels owned by sole traders, partnership or family trusts operating only within the waters of the Gulf St Vincent, Spencer Gulf, historic bays, the River Murray and inland waters, and that do not engage in interstate trade. In light of this legal uncertainty of the total coverage of commercial vessels by the Commonwealth's Constitutional power, the States and Northern Territory are to apply the National Law in order to ensure a consistent and seamless single maritime safety regime.

If the Application Bill is not passed, this will result in two regulatory schemes for commercial vessels in South Australia—one for Commonwealth regulated commercial vessels and one for South Australian gap vessels. This will result in inefficiencies and inconsistencies in standards, administration, certificate regimes, enforcement and penalties.

There are approximately 2,000 domestic commercial vessels operating in South Australia and a total of over 28,000 commercial vessels throughout Australia.

The Intergovernmental Agreement which underpins the National Law requires that the Commonwealth, States and Northern Territory agree not to submit a Bill that would be inconsistent with, or alter the effect of, the National Law; and that the States and Northern Territory discontinue their commercial vessel safety regulation to the extent that it is inconsistent with the National Law.

The National Law (both Commonwealth and State) confers regulatory powers and functions on the National Regulator (AMSA) which:

will be responsible for the development of standards and regulations;

will delegate powers and functions under both the State and Commonwealth laws to State officers (if agreed by the State) and Commonwealth officers;

will enter into service level agreements with the States;•will appoint State officers as marine safety inspectors under both the State and Commonwealth Acts.

In keeping with the requirements of the Intergovernmental Agreement, the Application Bill amends the South Australian Harbors and Navigation Act 1993 to remove provisions related to matters covered by the National Law.

The National Law and supporting subordinate legislation will enable vessels and seafarers to be certificated for work in any Australian waters. This flexibility will maximise business opportunities through minimising different jurisdictional regulatory requirements. Consistent and efficient regulation of commercial vessel operations will reduce regulatory burden and administrative costs on business.

The National Law will apply to vessels used for commercial, government or research activities, subject to some exclusions. It will not apply to recreational vessels, foreign vessels, defence vessels, vessels regulated under the Commonwealth Navigation Act 2012 or vessels owned by primary or secondary schools or community groups.

The development of the national marine safety regulatory reform has been the subject of extensive consultation since 2009 and has received support from the maritime industry.

Existing vessels and crew will be able to continue operating as they do now. Current certificates will be recognised until they expire or until 2016, whichever is the soonest. As South Australian certificates expire, new national certificates will be issued, with grandfathering provisions to ensure current requirements apply, provided there are no changes to operations (including area) which increase the level or risk or modifications of the vessel which will require reassessment against standards.

Vessels not currently regulated as a commercial vessel in South Australia, which include those of the State Emergency Services, volunteer marine rescue organisations, the Crown (excluding primary and secondary school vessels), small hire vessels, and vessels used by yachting clubs to train persons for a recreational qualifications, will be able to continue to operate as they do now under transitional provisions in the National Law. These stakeholders will be consulted in relation any new requirements that may apply to them within three years from commencement. In South Australia, there will be approximately 230 Crown Vessels and approximately 50 industry vessel operations that will be newly captured under the national system. The Department of Planning, Transport and Infrastructure is working closely with these organisations to endeavour to minimise impacts while ensuring that a risk-based safety system is maintained.

Domestic commercial vessel marine safety services are to continue to be provided by State employees under delegation from the National Regulator. South Australia will continue to collect fees for these services.

South Australia will retain responsibility for regulating South Australian waterways, ports, harbors and moorings and will continue to enforce speed limits and drug and alcohol offences on the water.

This Bill also addresses several pressing matters affecting the administrative efficiency of the Harbors and Navigation Act. These amendments will:

provide the ability to determine, by regulation, compulsory pilotage areas outside harbors for large laden vessels with limited under keel clearance transiting our Gulf waters, which could create high navigation risks if no pilot is used;

devolve the power from the Minister to the Chief Executive (the marine authority in South Australia) to cancel a Boat Operator's Licence when a court has convicted the person of an offence showing the holder to have been incompetent or guilty of misconduct or failing in navigation duties; or where the holder has been disqualified from holding a certificate in another jurisdiction; or where the holder has been shown to have suffered from a mental or physical incapacity. This cancellation is a reviewable decision;

remove the requirement for a port operator to manage a port in a way that avoids unfair discrimination against or in favour of any particular user of the port or port facilities, as this is intended for multi-user ports which are already regulated by the Maritime Services (Access) Act 2000 and monitored by the Essential Services Commission of South Australia. This will also remove uncertainty for the management of shipping safety in a harbor that is subject to an Indenture (eg. Whyalla) or a single user facility;

clarify the expiation fees applying when a vessel is marked but not registered, and when a vessel is neither registered nor marked;

increase the maximum court imposed penalties for seven provisions of the Harbors and Navigation Act from $2,500 to $5,000 to bring the penalties into line with the penalties for offences with similar potential consequence; or to reflect the seriousness of the offence.

I trust honourable members will lend their support to this Bill and I commend the Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Purposes of Act

This clause sets out the purpose of this measure, namely to adopt in this State a national approach to regulation of marine safety in relation to certain commercial vessels.

4—Interpretation

This clause defines key terms used in this measure.

Part 2—Applied provisions

5—Application of Commonwealth laws as laws of this State

This clause extends the operation of the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth and associated subordinate legislation to this State.

6—Interpretation of Commonwealth domestic commercial vessel national law

This clause provides that the Acts Interpretation Act 1901 of the Commonwealth applies as a law of this State in relation to the interpretation of the applied provisions, and accordingly disapplies the Acts Interpretation Act 1915.

Part 3—Functions and powers under applied provisions

7—Functions and powers of National Regulator and other authorities and officers

This clause provides that the National Regulator under the national law, as well as other authorities and officers, have the same functions and powers under the extended national law as they do under that law as it applies as a Commonwealth law.

8—Delegations by the National Regulator

This clause provides that effect of any delegation done by the National Regulator under the national law as it applies as a Commonwealth law will extend to the national law as it applies as a State law.

Part 4—Offences

9—Object of Part

This clause sets out the object of proposed Part 4, namely to ensure that an offence against the national law as it applies as a State law will be treated in all respects as if it were an offence against the Commonwealth law.

10—Application of Commonwealth criminal laws to offences against applied provisions

This clause provides that an offence against the national law as it applies as a State law will be treated in all respects as if it were an offence against the Commonwealth law and not an offence against the laws of this State.

11—Functions and powers conferred on Commonwealth officers and authorities relating to offences

This clause provides that functions and powers relating to offences conferred on a Commonwealth officer etc under the national law as it applies as a Commonwealth law will extend to the officer etc in respect of the national law as it applies as a State law.

12—No double jeopardy for offences against applied provisions

This clause prevents a person from being punished twice for the same offence under the national law as it applies both as a Commonwealth law and a State law.

Part 5—Administrative laws

13—Application of Commonwealth administrative laws to applied provisions

This clause applies the Commonwealth administrative laws (as defined in clause 4) to the operation of the national law as extended to this State in substitution for the equivalent State laws.

14—Functions and powers conferred on Commonwealth officers and authorities

This clause provides that administrative functions and powers conferred on a Commonwealth officer etc under the national law as it applies as a Commonwealth law will extend to the officer etc in respect of the national law as it applies as a State law.

Part 6—Fees and fines

15—Fees payable in relation to officers or employees of State

This clause is a regulation-making power, enabling the Governor to set fees and charges for things done under the national law (as it applies both as a Commonwealth and a State law).

16—Infringement notice fines

This clause requires amounts received by the State in relation to an infringement notice to be paid into the Consolidated Account.

17—Fines, fees etc not otherwise payable to State

This clause requires fees payable under the national law (other than fees contemplated by clause 15) to be paid to the Commonwealth.

Part 7—Miscellaneous

18—Things done for multiple purposes

This clause provides that things done under the national law as it applies as a Commonwealth law will not be invalid (in respect of the national law as it applies as a State law) merely because they were done under the Commonwealth law and not the State law.

19—Reference in Commonwealth law to a provision of another law

This clause clarifies references to provisions of Commonwealth laws in sections 10 and 13 of the measure.

20—Regulations

This is a regulation-making power, enabling the Governor to make regulations under the measure.

Schedule 1—Marine Safety (Domestic Commercial Vessel) National Law

This Schedule comprises the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth, extended in its operation to this State by virtue of this measure.

Schedule 2—Related amendments and transitional provisions

This Schedule makes amendments to the Harbors and Navigation Act 1993 that are consequential to the enactment of the national law by the Commonwealth, and comprise, in general terms, the removal from the Harbors and Navigation Act 1993 of provisions relating to domestic commercial vessels, since those vessels will now be covered by the national law (either the Commonwealth law or that law as it is extended by this measure).

The Schedule makes some cognate amendments to the Harbors and Navigation Act 1993 that:

provide the ability to determine, by regulation, compulsory pilotage areas outside harbors;

allow the Chief Executive to cancel a Boat Operator's Licence in specified circumstances;

remove the requirement for a port operator to manage a port in a way that avoids unfair discrimination against or in favour of any particular user of the port or port facilities;

increase certain expiation fees applying when a vessel is marked but not registered, and when a vessel is neither registered nor marked;

increase the maximum court imposed penalties for seven provisions of the Harbors and Navigation Act from $2,500 to $5,000.

The Schedule also makes a transitional provision, continuing in force certificates of competency to operate recreational vessels issued under the Harbors and Navigation Act 1993.

Debate adjourned on motion of Hon. J.S.L. Dawkins.