EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 15

 

Issued by the authority of

the Parliamentary Secretary to the Minister for Transport and Regional Services

 

Navigation Act 1912

 

Navigation (Coasting Trade) Regulations 2007

 

Part VI of the Navigation Act 1912 (the Act) provides for the granting of permits and licences for ships to engage in the domestic coasting trade of Australia. Section 7 of the Act deems a ship to be engaging in the coasting trade where, except in defined circumstances, the ship “takes on board passengers or cargo at any port in a State, or a Territory, to be carried to, and landed or delivered at, any other port in the same State or Territory or in any other State or other such Territory”.

 

Section 425 of the the Act provides that the Governor-General may make regulations prescribing all matters which are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act or for the conduct of any business under the Act.

 

Part VI of the Act provides that the Minister may issue licences for ships to engage in the coasting trade (to carry domestic cargo and passengers between Australian ports while on an inter-state or overseas voyage). Part VI further provides that the Minister may issue permits to unlicensed ships to carry domestic cargo and passengers between Australian ports while on inter-state or overseas voyages, provided that no licensed ship is available for the service or the service provided by the licensed ships is inadequate, and the Minister considers that the issue of a permit is desirable in the public interest. These arrangements allow vessels to participate in Australia’s coasting trade irrespective of flag and crew nationality.

 

Subsection 288(2) provides that the period of a licence, not exceeding three years, may be prescribed and a licence may be granted as prescribed in the regulations.

 

The purpose of the Regulations is to repeal the Navigation (Coasting Trade) Regulations 1937 (the 1937 Regulations) and set out revised regulations on:

• how applications for coasting trade permits are to be made, and either granted, amended or refused;
• how applications for coasting trade licences are to be made, and either granted or refused; and
• the fees for such applications and amendments.

 

Apart from redrafting the regulations in modern form, there are two notable changes in the Regulations from the 1937 Regulations:

• while amendments to continuing permits are currently issued free of charge, the new Regulations institute a fee to be charged for an amendment to such permits on the same basis as is done for single voyage permits; and
• the time allowed for processing urgent applications for single voyage permits has been extended by one working day (to two working days after the day on which the application is made) to allow for increased safety, environmental and security checking.

 

Details of the Regulations are set out in the Attachment.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commenced on the day after registration on the Federal Register of Legislative Instruments.

 

 

 

 

 

Details of the Navigation (Coasting Trade) Regulations 2007

 

 

Part 1 Introductory

 

Regulation 1: Name of Regulations

 

Regulation 1 provides that the title of the Regulations is the Navigation (Coasting Trade) Regulations 2007 (the Regulations).

 

 

Regulation 2: Commencement

 

Regulation 2 provides for the Regulations to commence on the day after registration on the Federal Register of Legislative Instruments.

 

 

Regulation 3: Repeal

 

Regulation 3 repeals the Navigation (Coasting Trade) Regulations 1937 (the 1937 Regulations).

 

 

Regulation 4: Definitions

 

Regulation 4 provides definitions for various terms used in the Regulations and in particular that a reference to a form, by number (e.g. Form 1), is a reference to a form set out in Schedule 1 to the Regulations.

 

 

Part 2 Permits for unlicensed ships

 

Regulation 5: Applications for permits for unlicensed ships to carry cargo or passengers

 

Regulation 5 sets out who may apply to the Minister for Transport and Regional Services for:

·        the grant of a permit for an unlicensed ship to engage in the coasting trade;

·        an amendment of an application for the grant of a permit for an unlicensed ship to engage in the coasting trade; or

·        an amendment to a permit that has been granted.

 

Regulation 5 specifies that applications must be made in the relevant form specified and as set out in Schedule 1, being:

·        Form 1 – Application for permit for carrying passengers – single voyage;

·        Form 2 – Application for permit for carrying cargo – single voyage

·        Form 3 – Application for permit for carrying passengers – continuing

·        Form 4 – Application for permit for carrying cargo – continuing

 

Regulation 6: Form of permits

 

Regulation 6 sets out the form that permits issued by the Minister must take, specifying that a single voyage permit must be in accord with Form 5 in Schedule 1, and a continuing permit must be in accord with Form 6 in Schedule 1.

 

 

Regulation 7: Refusal to grant a permit

 

Under section 286 of the Navigation Act 1912 (the Act) the Minister may only grant a permit if no licensed ship is available for the service or if the service provided by licensed ships is not adequate and the Minister is satisfied that the issue of a permit is desirable in the public interest.

 

Regulation 7 provides that the Minister must give the applicant written notice of a refusal of a permit, together with reasons for the refusal.

 

 

Regulation 8: Urgent applications for permits

 

Regulation 8 provides that a person may make an application on an urgent basis for a single voyage permit, and sets out the performance standard for issue or refusal of such a permit. Urgent applications for permits must be processed before the end of the second working day after the day on which the application is received (“working day” is defined in subregulation 8(4)).

 

This is an increase of one working day from the standard of the 1937 Regulations. This increase is required in order for necessary safety, environmental and security checks to be carried out for ships proposed to be used by applicants. Although the performance standard has been extended, permits may still be processed in a shorter time if circumstances allow.

 

 

Regulation 9: Fees for permit applications

 

The fees payable for the permit applications listed in subregulation 5(1), are set out in regulation 9.

 

The fees differ from those in the 1937 Regulations in that a fee is charged for applications for amendments to continuing permits on the same basis as was previously done for single voyage permits.

 

 

Part 3 Licences to engage in the coasting trade

 

Regulation 10: Applications for licences to engage in the coasting trade

 

Regulation 10 sets out who may apply to the Minister for a licence for a ship to engage in the coasting trade, and specifies that the application must be made in accordance with Form 7 in Schedule 1.

 

Regulation 11: Applications for renewal of licences

 

Regulation 11 provides that the holder of a licence may apply to renew the licence before it expires. The regulation also specifies that the application must be made in accordance with Form 8 in Schedule 1.

 

 

Regulation 12: Fees for licence applications

 

Fees for applications for licences or renewals of licences, under regulations 10 and 11, are set out in regulation 12.

 

 

Regulation 13: Grant of licences and renewals

 

Subregulation 13(1) sets out how an application is to be made to the Minister for a coasting trade licence or renewal of a licence, including the forms to be used and the payment of the applicable fee.

 

Subregulation 13(2) provides for the form of a coasting trade licence (Form 9 in Schedule 1) and the expiry date of the licence, being the last day of June following the grant or renewal of the licence.

 

Subregulation 13(3) provides that licence may be renewed annually.

 

Subregulation 13(4) provides that two copies of the licence are to be given to the applicant, a “Ship’s Copy” and a “Master’s Copy”.

 

 

Regulation 14: Refusal to grant licences or renewals

 

Regulation 14 provides that the Minister must give the applicant written notice of a decision to refuse to grant a licence or renewal of a licence, together with reasons for the refusal.

 

 

Regulation 15: Dealing with licences

 

Regulation 15 provides that the ship’s master commits an offence if the “Ship’s Copy” of a coasting trade licence is not posted conspicuously on board the ship (subject to a penalty of one penalty unit), or if the “Master’s copy” is not shown on request to a Customs officer on entering or leaving Australia (subject to a penalty of one penalty unit).

 

Regulation 15 also provides that a person who defaces or destroys a current “Ship’s Copy” of a licence commits an offence (subject to a penalty of one penalty unit).

 

Subsection 4AA(1) of the Crimes Act 1914 currently provides that “penalty unit” means $110.
Regulation 16: Evidence of payment of wages at Australian rates

 

Under subsection 288(3) of the Act one of the conditions for the issue of a coasting trade licence is that the crew must be paid wages at or above the current rates payable to an officer or seaman working in Australia while the ship is engaged in the coasting trade.

 

Regulation 16 sets out the evidence that must be shown by the master of a ship, other than a ship registered in Australia or operated by an Australian resident or resident entity, to a Customs officer before clearance for an overseas voyage is granted. The evidence takes the form of a statement signed by the master (using Form 10 in Schedule 1) covering the period for which the ship has been engaged in the coasting trade, and an acknowledgement (using Form 11 of Schedule 1) by the officers and seamen of the licensed ship declaring that Australian rates of wages or higher have been paid to them in full while the ship was engaged in the coasting trade.

 

 

Notes

 

Note 1 provides the address details, including e-mail address, where applications for coasting trade licences and permits may be sent.

 

Note 2 provides instructions for the payment of fees by electronic transfer to facilitate electronic applications.

 

 

Schedule 1: Forms

 

Schedule 1 provides the requirements for the forms which must be used under the regulations. The mandated forms are:

 

Form 1 – Application for permit for carrying passengers – single voyage (regulation 5);

Form 2 – Application for permit for carrying cargo – single voyage (regulation 5);

Form 3 – Application for permit for carrying passengers – continuing (regulation 5);

Form 4 – Application for permit for carrying cargo – continuing (regulation 5);

Form 5 – Permit for unlicensed ship – single voyage (regulation 6);

Form 6 – Permit for unlicensed ship – continuing (regulation 6);

Form 7 – Application for a licence to engage in the coasting trade (regulation 10);

Form 8 – Application for the renewal of a licence to engage in the coasting trade (regulation 11);

Form 9 – Licence to engage in the coasting trade (regulation 13);

Form 10 – Statement of period of engagement in the coasting trade (regulation 16); and

Form 11 – Acknowledgement of receipt of wages at Australian rates (regulation 16).