Consultation

Extensive consultation has been undertaken with Australian Customs and Border Protection Service and the Australian Maritime Safety Authority in the development of the provisions of the Regulation regarding the management of customs vessels under the Navigation Act 2012. Other government agencies have also been consulted on the development of the Regulation, including the Attorney General's Department, the Department of Agriculture Fisheries and Forestry and the Department of Education, Employment and Workplace Relations.

 

Public consultation that took place from 4 March to 29 March 2013 has also informed the development of this Regulation.  Comments and feedback from public submissions that were received on the exposure draft of the Regulation have been considered and incorporated into the Regulation as appropriate.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Statement of Compatibility with Human Rights

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

 

Navigation Regulation 2013

 

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

The Navigation Regulation 2013 will support the new Navigation Act 2012 (the Act).

In particular the Regulation will:

 

*         deem identified customs vessels to comply with certain parts of the Act where a Customs Vessel Management Plan (CVMP) has been prepared, reviewed and accepted in accordance with the Regulation. Such a plan will require customs vessels to meet alternative safety and environment requirements reviewed by an approved Recognised Organisation to manage and control standards and operations through a risk based approach.  Customs vessels are neither cargo nor passenger ships but are currently classified as 'government vessels on non-commercial service', whose activities place the vessels in a special category which should be monitored and regulated for safety purposes;

 

*         cover liability for loss of life, division of liability and right of contribution. These provisions are a part of established maritime law and have been retained from the Navigation Act 1912.  The Regulation does not create a right of action for a person who suffers personal injury as it merely apportions liability for any fault caused by the owners of the vessel; and

 

*         set out the provisions of the International Convention on Salvage 1989 which will have the force of law in Australia.

 

Human rights implications

The legislative instrument does not engage any of the applicable rights or freedoms.

 

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

 

Minister for Infrastructure and Transport, the Hon Anthony Albanese MP

                                                                                                            ATTACHMENT

Details of the Navigation Regulation 2013

 

Part 1 - Preliminary

 

Section 1 - Name of Regulation

Section 1 sets out the name of the instrument which is the

Navigation Regulation 2013.

 

Section 2 - Commencement

Section 2 provides for the Regulation commencement to coincide with the commencement of the Navigation Act 2012 (the Act) on 1 July 2013.

 

Section 3 - Authority

Section 3 provides for the Regulation to be made under the Navigation Act 2012.

 

Section 4 - Definitions

Section 4 sets out the definitions necessary for the interpretation of the instrument.

 

For Note 2 under the definition of CVMP, the prescribed Recognised Organisations are set out in Marine Order 1 - (Administration) 2011.

 

Part 2 - Customs vessel management plans

Division 2.1 - General

 

Section 11 of the Navigation Act 2012 (the Act) recognises the special role of Australia's border protection vessels (other than Navy vessels) and the challenges they face in complying with all sections of the Act while on operational duty. In order to avoid the need to obtain exemptions from the Act in such circumstances, often on very short notice or in time critical circumstances, section 11 provides for a standing arrangement for identified customs vessels that is intended to produce a safer outcome for those on board.

 

The Australian Customs and Border Protection Service (Customs and Border Protection) operate a number of small and large vessels tasked to perform civil maritime security and regulatory roles encompassing tactical surveillance and enforcement for various agencies. In circumstances where there is an accepted CVMP (Customs Vessel Management Plan) in place, section 11 allows alternate arrangements for certain vessels covered by the CVMP in regard to identified provisions of chapters 2, 3 and 6 of the Act.  This arrangement will only apply to those vessels which, because of the nature of their operations, cannot meet the legislative requirements of the Act and are identified in the CVMP.

 

Section 5 - Application of Part 2

 

The use of a CVMP is only available in regard to a 'customs vessel', which is a vessel undertaking customs and border protection activities declared as such by AMSA in accordance with section 17 of the Act.

 

This Part sets out the requirements that need to be met under section 11 of the Act by Customs and Border Protection, a Recognised Organisation (RO) and AMSA in the preparation, review and acceptance of a CVMP.

 

This Part establishes the scheme including the governance and management of the CVMP.

 

Division 2.2 - Application for acceptance of customs vessel management plan

 

The deeming arrangement available under section 11 of the Act will only apply to those customs vessels which, because of the nature of their operations, cannot meet the legislative requirements of the Act. The CVMP will establish the alternative arrangements that will replace the Act requirements.

 

The CVMP identifies the relevant sections of the Navigation Act 2012 with which Customs cannot comply in relation to the listed vessels and must specify alternative requirements to be met in relation to those provisions, based on appropriate risk treatments.

 

Section 6 - Application for acceptance of CVMP

 

This section provides that Customs and Border Protection is the body that can apply to AMSA for acceptance of a CVMP and sets out what the CVMP must include.  This section also requires the identification of the processes whereby the CVMP will be reviewed, including compliance review.

 

A CVMP cannot be submitted to AMSA unless a RO has reviewed the CVMP in accordance with the requirements set out in section 7 and has made a declaration as to that review. The application to AMSA for acceptance of the CVMP  must be in writing and include the details of the applicant and be accompanied by a copy of the CVMP and the declaration of the RO in relation to the review of the CVMP.     

 

This section also provides that the CVMP must include the kinds of operations the vessel will undertake.  Details of specific operations will be included in the CVMP to the extent possible given operational security concerns.   

 

It is anticipated that Customs and Border Protection will ensure that the CVMP application:

 

*        documents the operations of the customs vessel(s) to which the CVMP will apply;

*        identifies all provisions of the Act with which Customs and Border Protection will not comply for that/those vessels;

*        details all appropriate rules and requirements in relation to survey and certification applicable to the vessel and its operation in lieu of the requirements of Chapter 3 of the Act;

*        identifies, where applicable, manning and crewing of vessels and procedures and processes that address the relevant requirements of Chapter 2 and 6 of the Act where these are to be varied; and

*        provides full detail of the mechanisms that mitigate the risk of varying the relevant requirement of the Act and associated delegated legislation.

 

Section 7 - Review of CVMP by recognised organisation

 

The RO will be a full member of the International Association of Classification Societies and will be approved as a RO in 'Marine Order 1 - (Administration) 2011', in accordance with section 14 (definition of 'recognised organisation') to the Act. 

 

The RO is required to review the alternate arrangements suggested by Customs and Border Protection and to be satisfied that for each identified provision:

 

*         the risks of non-compliance are adequately addressed; and

*         the alternative arrangements are adequately described and mitigate the risks appropriately.

 

Section 8 - Acceptance of CVMP by AMSA

 

This section requires AMSA to accept a CVMP that satisfies the requirements of subsection 6(4) within 28 days of receiving the application. It also allows AMSA to seek further information in order to assess the application. In cases where further information is requested, the 28 day assessment period does not start until the additional information has been received.

 

AMSA's acceptance of the CVMP expires on a date specified in AMSA's acceptance or at the end of five years from the date of acceptance.

 

AMSA may extend the validity of the CVMP beyond the original expiry date.

 

Section 9 - Notification that CVMP will no longer be used

 

This section allows Customs and Border Protection to withdraw from a CVMP by notifying AMSA in writing that the CVMP will no longer be used. The CVMP acceptance expires at the time AMSA receives the notification in writing.

 

In the event that there is no CVMP in place for a customs vessel, that vessel will need to comply with all relevant provisions of the Act that apply to regulated Australian vessels.

 

Division 2.3 - Variation of customs vessel management plan

 

Section 10 - Application for acceptance of variation of CVMP

 

This section requires that Customs and Border Protection apply to AMSA to vary a CVMP if there is a significant change to the vessel or the operation of the vessel.  The section provides that a new risk assessment must be undertaken in relation to a provision of the Act that will not be complied with.

 

Any request to vary the CVMP must be reviewed by a RO in line with requirements under section 7 before submission to AMSA.

 

The application to AMSA for variation of the CVMP must be in writing and include the details of the variation and be accompanied by a copy of the amended part of the CVMP and the declaration of the RO in relation to its assessment of the suitability of the variation to the CVMP.  

  

 A significant change is defined in this subsection to mean:

 

*         a change to any underlying certification of the vessel issued in accordance with the Act or a physical change to the vessel through repairs, modifications or alterations and includes refitting and refurbishment of the vessel that changes its dimensions or extends its service life; or

 

*         an operational change which alters the operations of the vessels as described in the CVMP. An example would be a vessel moving from Southern Ocean enforcement operations to enforcement operations in tropical conditions, carrying additional persons or undertaking voyages to other countries.    

 

 

Section 11 - Acceptance of variation of CVMP by AMSA

 

Subsection 10(3) sets out the administrative requirements for the acceptance of an application to vary a CVMP.  Subsection 11(1) provides that AMSA must accept the application if the requirements under subsection 10(3) are met.

 

 

Division 2.4 - Ongoing review of customs vessel management plan

 

Section 12 - Reporting of non-compliance with requirements of CVMP

 

This section creates a requirement for a RO that becomes aware of non-compliance with a CVMP by a vessel or a person to notify AMSA of the noncompliance and provide any relevant documentation to AMSA that relates to the noncompliance.

 

 

Part 3 - Safety of navigation

Division 3.1 - Liability for loss of life, division of liability and right of contribution

 

Division 3.1 covers damages for personal injuries. These provisions recognise the longstanding principle of apportionment of loss in proportion to the degree of fault of each vessel involved in a collision. This principle was originally recognised in English law with the enactment of the Maritime Conventions Act 1911 applying the Convention for the Unification of Certain Rules of Law with Respect to Collisions 1910.

 

The provisions covering liability and division of loss are a part of established

maritime law and have been retained from the Navigation Act 1912.

 

Section 13 - Application of Division 3.1

This Division is made under section 176 (3) of the Act - Power to make regulations relating to collisions, lights and signals.

 

 

 

 

Section 14 - Damages for personal injuries

 

This section provides that where loss of life or personal injury is suffered by

any person on board a vessel, owing to the fault of that vessel or any other, the owners' liability will be joint and several. This section does not create a right of action for a person who suffers personal injury or deprive any person of any right of defence or right to limit liability as provided by law. This section has the same effect as section 260 of the Navigation Act 1912.

 

Section 15 - Rule as to division of loss

 

Section 15 provides that the liability for any damage or loss caused to one

or more vessels including their cargoes or freight or to any property on board is to be

apportioned to each vessel on the basis of its fault. If it is not possible to apportion fault after considering the circumstances of the case, then liability is to be apportioned equally. This section has the same effect as section 259 of the Navigation Act 1912.

 

Section 16 - Right of Contribution

 

This section allows the owner of a vessel who has paid damages to a person killed or injured aboard a vessel, for instance, in a collision with another vessel, to recover payment from the owner of another vessel involved in the incident. This ability is limited to situations where the payment made by the vessel owner was more than the proportion required by their degree of fault. The section does not allow amounts to be recovered by suing for damages which could not otherwise be recovered. The owner's entitlement to sue for damages will not be affected.  This section will have the same effect as section 261 of the Navigation Act 1912.

 

Part 4 - Salvage

 

Section 17 - Certain provisions of Salvage Convention to have force of law

 

Section 17 sets out the provisions of the International Convention on Salvage 1989 (Salvage Convention) which have the force of law in Australia.

 

Article 6 deals with salvage contracts.

 

Article 7 provides for the annulment and modification of contracts.  

 

Article 8 sets out the duties of the salvor and of the owner and master.

 

Article 12 sets out the reward conditions for salvage operations.

 

Article 13 sets out the criteria for fixing the reward for salvage operations. 

 

Article 14 sets out special compensation provisions for salvors. 

 

Article 15 sets out the apportionment between salvors.

 

Article 16 deals with salvage of persons.

 

Article 17 deals with services rendered under existing contracts.

 

Article 18 sets out the effect of a salvor's misconduct.

 

Article 19 provides for the prohibition of salvage operations.

 

Article 21 sets out the duty to provide security.

 

Article 22 provides for interim payment.

 

Article 23 sets out the limitation of actions

 

Article 26 deals with humanitarian cargoes.

 

Article 30 deals with reservations.

 

Schedule 1 - Salvage Convention, the Common Understanding concerning Articles 13 and 14

 

Schedule 1 sets out the common understanding of the International Conference on Salvage, 1989 concerning Articles 13 and 14 of the Salvage Convention. The International Conference on Salvage, which adopted the Salvage Convention in 1989, recognised that the drafting of Article 14 of the Salvage Convention was unclear. Accordingly, the Parties resolved to add the common understanding as an attachment to the Salvage Convention.