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Primary content

Act No. 54 of 2012 as made
An Act to amend the shipping law, and for related purposes
Administered by: Infrastructure, Transport, Cities and Regional Development
Originating Bill: Shipping Registration Amendment (Australian International Shipping Register) Bill 2012
Registered 25 Jun 2012
Date of Assent 21 Jun 2012
Table of contents.

 

 

 

 

 

 

Shipping Registration Amendment (Australian International Shipping Register) Act 2012

 

No. 54, 2012

 

 

 

 

 

An Act to amend the shipping law, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 2

3............ Schedule(s)......................................................................................... 2

Schedule 1—The Australian International Shipping Register                   3

Part 1—Amendments                                                                                                    3

Shipping Registration Act 1981                                                                               3

Part 2—Application, saving and transitional provisions relating to Part 1             22

Schedule 2—Seafarers                                                                                                      25

Shipping Registration Act 1981                                                                             25

Schedule 3—Enforcement                                                                                              37

Shipping Registration Act 1981                                                                             37

Schedule 4—Other amendments                                                                                 54

Australian Maritime Safety Authority Act 1990                                                  54

Marine Navigation (Regulatory Functions) Levy Collection Act 1991         54

Navigation Amendment Act 2011                                                                           55

 


 

 

Shipping Registration Amendment (Australian International Shipping Register) Act 2012

No. 54, 2012

 

 

 

An Act to amend the shipping law, and for related purposes

[Assented to 21 June 2012]

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Shipping Registration Amendment (Australian International Shipping Register) Act 2012.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

21 June 2012

2.  Schedules 1, 2 and 3

1 July 2012.

1 July 2012

3.  Schedule 4, items 1 to 5

1 July 2012.

1 July 2012

4.  Schedule 4, items 6 to 12

The day this Act receives the Royal Assent.

21 June 2012

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


 

Schedule 1The Australian International Shipping Register

Part 1Amendments

Shipping Registration Act 1981

1  Subsection 3(1)

Insert:

Australian General Shipping Register means the Register referred to in subsection 56(1).

2  Subsection 3(1)

Insert:

Australian International Shipping Register means the Register referred to in subsection 56(2).

3  Subsection 3(1)

Insert:

Australian resident: see resident of Australia.

4  Subsection 3(1)

Insert:

fixed fee, in respect of a matter, means a fee determined by the Authority under section 47 of the Australian Maritime Safety Authority Act 1990 in respect of the matter.

5  Subsection 3(1)

Insert:

General Register means the Australian General Shipping Register.

6  Subsection 3(1)

Insert:

International Register means the Australian International Shipping Register.

7  Subsection 3(1)

Insert:

predominantly used to engage in international trading: a ship is predominantly used to engage in international trading if, in a calendar year, the percentage of the time that the ship is used to engage in international trading exceeds the percentage of the time that the ship is used to engage in coastal trading or intra‑State trading.

8  Subsection 3(1) (definition of Register)

Repeal the definition.

9  Subsection 3(1) (definition of registered)

Repeal the definition, substitute:

registered means registered under this Act in:

                     (a)  the General Register; or

                     (b)  the International Register.

10  Subsection 3(1) (definition of registered agent)

Repeal the definition, substitute:

registered agent, in relation to a ship that is registered in the General Register or International Register, means the person whose name and address are entered in the relevant register in respect of that ship under section 64.

11  Subsection 3(1)

Insert:

Registers means:

                     (a)  the General Register; and

                     (b)  the International Register.

12  Subsection 3(1)

Insert:

relevant register, in relation to a ship, means:

                     (a)  if the ship is, or is to be, registered in the General Register—the General Register; and

                     (b)  if the ship is, or is to be, registered in the International Register—the International Register.

13  Subsection 3(1)

Insert:

resident of Australia or Australian resident means an individual:

                     (a)  whose permanent place of abode is in Australia, whether or not he or she is from time to time temporarily absent from Australia; or

                     (b)  whose domicile is in Australia, unless his or her permanent place of abode is outside Australia.

14  Subsection 3(1)

Insert:

ship entitled to be registered means:

                     (a)  a ship that is required to be registered; or

                     (b)  a ship that is permitted to be registered.

15  Subsection 3(1) (at the end of the definition of ship permitted to be registered)

Add “or 15B”.

16  Subsection 3(1)

Insert:

surveyor has the same meaning as in the Navigation Act.

17  Subsection 3(1)

Insert:

trading ship means a ship for use in connection with a commercial activity, but does not include:

                     (a)  a Government ship; or

                     (b)  a fishing vessel; or

                     (c)  a pleasure craft.

Example:    An example of a trading ship is a ship that is used wholly for the carriage of passengers or cargo for hire or reward.

18  Subsections 3(3) and (4)

Repeal the subsections.

19  After section 3

Insert:

3A  Effect of closure or cancellation of registration

                   If the registration of a ship is closed or cancelled under this Act, the ship ceases to be registered.

20  Subsection 9(1)

After “paragraph 14(a), (b) or (c)”, insert “or 15B(a), (b) or (c)”.

21  Before section 12

Insert:

Subdivision AObligation to register Australian‑owned ships

22  After subsection 12(3A)

Insert:

          (3B)  The owner does not commit an offence against subsection (3), and the ship may not be detained under that subsection, if:

                     (a)  the owner has made an application in accordance with section 15 or 15C to register the ship; and

                     (b)  the Registrar has not made a decision on the application about whether to register the ship under section 15E or subsection 15F(1).

          (3C)  The owner does not commit an offence against subsection (3), and the ship may not be detained under that subsection, if:

                     (a)  the owner has made an application in accordance with section 15C to register the ship in the International Register; and

                     (b)  the Registrar has made a decision not to register the ship under subsection 15F(1); and

                     (c)  either:

                              (i)  the Registrar has not notified the owner of the decision; or

                             (ii)  the owner has made an application under section 78A for review of the Registrar’s decision, and a decision has not been made on the application.

          (3D)  The owner does not commit an offence against subsection (3), and the ship may not be detained under that subsection, if:

                     (a)  the Registrar has made a decision to cancel the registration of the ship under section 33B; and

                     (b)  either:

                              (i)  the Registrar has not notified the owner of the decision; or

                             (ii)  the owner has made an application under section 78A for review of the Registrar’s decision, and a decision has not been made on the application.

23  After section 13

Insert:

Subdivision BThe General Register

24  Sections 14 and 15

Repeal the sections, substitute:

14  Ships that may be registered in the General Register

                   The following ships may be registered in the General Register:

                     (a)  Australian‑owned ships;

                     (b)  small craft that are wholly owned by Australian residents, or by Australian residents and Australian nationals;

                     (c)  small craft that are operated solely by Australian residents, or by Australian nationals, or by both;

                     (d)  ships that are on demise charter to Australian‑based operators.

15  Application for registration in the General Register

                   An application to register a ship in the General Register must:

                     (a)  be made in accordance with the regulations; and

                     (b)  be accompanied by the fixed fee (if any) for the application.

25  Before section 16

Insert:

Subdivision CThe International Register

15A  Objects of the International Register

                   The objects of the International Register are to:

                     (a)  facilitate Australian participation in international trade; and

                     (b)  provide an internationally competitive register to facilitate the long term growth of the Australian shipping industry; and

                     (c)  promote the enhancement and viability of the Australian maritime skills base and the Australian shipping industry.

15B  Ships that may be registered in the International Register

                   The following ships may be registered in the International Register if they are at least 24 metres in tonnage length:

                     (a)  trading ships that are Australian‑owned ships;

                     (b)  trading ships that are wholly owned by Australian residents, or by Australian residents and Australian nationals;

                     (c)  trading ships that are operated solely by Australian residents, or by Australian nationals, or by both;

                     (d)  trading ships that are on demise charter to Australian‑based operators.

15C  Application for registration in the International Register

                   An application to register a ship in the International Register must:

                     (a)  be made in accordance with the regulations; and

                     (b)  be accompanied by the fixed fee (if any) for the application; and

                     (c)  be accompanied by evidence that a collective agreement has been made under section 11A.

15D  Pre‑registration inspection

             (1)  If the Registrar receives an application under section 15C to register a ship in the International Register, the Registrar may require that the ship be inspected by a surveyor for the purposes of determining the application for registration.

             (2)  A surveyor may, at any reasonable time, go on board a ship and inspect the ship for the purposes of subsection (1).

             (3)  However, a surveyor must not inspect a ship unless the fixed fee (if any) for the inspection has been paid.

Subdivision DRegistration

15E  Registration in the General Register

                   If an application under section 15 is made to register a ship in the General Register, then, subject to sections 16 and 17, the Registrar must register the ship in that register by entering in that register such particulars relating to the ship as are prescribed by the regulations.

15F  Registration in the International Register

             (1)  If an application under section 15C is made to register a ship in the International Register, then, subject to sections 16 and 17, the Registrar may register the ship in that register by entering in that register such particulars relating to the ship as are prescribed by the regulations.

             (2)  When deciding under subsection (1) whether to register a ship in the International Register, the Registrar must have regard to:

                     (a)  the age of the ship; and

                     (b)  any information contained in the ship’s port state control inspection records in relation to the period prescribed by the regulations; and

                     (c)  the ship’s classification society records in relation to the period prescribed by the regulations; and

                     (d)  any inspection of the ship made by a surveyor under section 15D; and

                     (e)  any matter that the Registrar considers relevant; and

                      (f)  any matter prescribed by the regulations.

             (3)  The Registrar must refuse to register the ship in the International Register if the Registrar is satisfied that:

                     (a)  the ship will not be predominantly used to engage in international trading; or

                     (b)  a collective agreement has not been made between the owner of the ship and the ship’s seafarers’ bargaining unit under section 11A.

             (4)  The Registrar may refuse to register the ship in the International Register if the applicant for registration refuses to allow a surveyor to go on board or inspect the ship under section 15D.

             (5)  Subsections (3) and (4) do not limit the grounds on which the Registrar may refuse to register a ship in the International Register.

             (6)  If the Registrar refuses to register a ship in the International Register, the Registrar must give written notice of the decision to the applicant, specifying the reasons for the refusal.

26  Subsection 16(1)

Repeal the subsection, substitute:

             (1)  The Registrar must not register a ship in the General Register or International Register unless and until a certificate relating to the tonnage measurement of the ship issued under, or otherwise having effect because of, the Navigation Act has been lodged with the Registrar.

27  Section 17 (heading)

Repeal the heading, substitute:

17  No multiple registrations

28  Subsection 17(1)

Repeal the subsection, substitute:

             (1)  The Registrar must not:

                     (a)  register a ship in the General Register if it is registered:

                              (i)  in the International Register; or

                             (ii)  under a law of a foreign country; and

                     (b)  register a ship in the International Register if it is registered:

                              (i)  in the General Register; or

                             (ii)  under a law of a foreign country.

29  Section 18

Repeal the section.

30  Section 19

Repeal the section, substitute:

19  Grant of registration certificate

             (1)  Upon the registration of a ship in the General Register or International Register, the Registrar must grant a registration certificate for the ship.

             (2)  The registration certificate must:

                     (a)  be in the prescribed form; and

                     (b)  contain the particulars relating to the ship that were entered in the relevant register; and

                     (c)  contain such other matters as are prescribed.

31  Section 22B

After “section 15”, insert “or 15C”.

32  Paragraph 27(4)(a)

Omit “Register”, substitute “relevant register”.

33  Paragraph 30(1)(a)

After “paragraph 14(d)”, insert “or ships registered by virtue of section 15B”.

34  At the end of Part II

Add:

Division 5Special provisions relating to the International Register

Subdivision AConditions of registration in the International Register

33A  Conditions of registration in the International Register

             (1)  It is a condition of registration of a ship in the International Register that the person referred to in subsection (3) in relation to the ship must ensure that:

                     (a)  an Australian national or Australian resident is the master or chief mate of the ship; and

                     (b)  an Australian national or Australian resident is the chief engineer or first engineer of the ship.

Civil penalty:          300 penalty units.

             (2)  It is a condition of registration of a ship in the International Register that the person referred to in subsection (3) in relation to the ship must take reasonable steps to ensure that the positions of master and chief engineer are occupied by a person who is an Australian national or Australian resident.

Civil penalty:          300 penalty units.

             (3)  For the purposes of subsections (1) and (2), the person is:

                     (a)  if the ship is registered because of paragraph 15B(a) or (b)—the owner of the ship; and

                     (b)  if the ship is registered because of paragraph 15B(c) or (d)—the operator of the ship.

Subdivision BCancellation of registration in the International Register

33B  Cancellation of registration in the International Register

             (1)  The Registrar may cancel the registration of a ship in the International Register if the Registrar is satisfied that:

                     (a)  the ship is or has been involved in a contravention, either in or outside of Australia, of:

                              (i)  this Act; or

                             (ii)  the Navigation Act; or

                            (iii)  the Protection of the Sea (Prevention of Pollution from Ships) Act 1983; or

                            (iv)  a law prescribed by the regulations; or

                     (b)  the ship:

                              (i)  is not seaworthy (within the meaning of section 207 of the Navigation Act); or

                             (ii)  is substandard (within the meaning of section 207A of the Navigation Act); or

                     (c)  the ship has not been, or will not be, predominantly used to engage in international trading; or

                     (d)  a collective agreement, made between the owner of the ship and the ship’s seafarers’ bargaining unit under section 11A, is not in force when the ship is used to engage in international trading; or

                     (e)  a prescribed ground for cancelling the registration applies to the ship.

             (2)  If the Registrar cancels the registration of a ship in the International Register, the Registrar must give written notice of the decision to the owner, specifying the reasons for the cancellation.

             (3)  The regulations may prescribe requirements in relation to the cancellation of registration under this section.

Subdivision CBasis of registration in the International Register

33C  Basis of registration in the International Register

             (1)  A ship is registered in the International Register on the basis that:

                     (a)  the registration may be closed under this Act; and

                     (b)  the registration may be cancelled under section 33B; and

                     (c)  the registration may be closed, cancelled, revoked, terminated or varied by or under later legislation; and

                     (d)  no compensation is payable if the registration is closed, cancelled, revoked, terminated or varied as mentioned in any of the above paragraphs.

             (2)  Subsection (1) does not, by implication, affect the interpretation of any other provision of this Act.

35  Subsection 36(2A)

Omit “Register”, substitute “relevant register”.

36  Subparagraph 36(3)(b)(iii)

After “paragraph 14(b) or (c)”, insert “or 15B(b) or (c)”.

37  Subsection 37(1A)

Omit “Register”, substitute “relevant register”.

38  Sections 45 and 46

Omit “Register”, substitute “relevant register”.

39  Subsections 47A(1), (3) and (4)

Omit “Register”, substitute “relevant register”.

40  Subsection 47A(7)

Omit “Register” (wherever occurring), substitute “relevant register”.

41  Subsection 47B(1)

Omit “Register” (wherever occurring), substitute “relevant register”.

42  Subsection 47B(2)

Omit “Register”, substitute “relevant register”.

43  Section 47C

Omit “Register” (wherever occurring), substitute “relevant register”.

44  Subsection 47D(1)

Omit “Register”, substitute “relevant register”.

45  Subsection 47D(2)

Omit “Register” (wherever occurring), substitute “relevant register”.

46  Subsection 47D(3)

Omit “Register”, substitute “relevant register”.

47  Subsection 48(1)

Omit “under the Authority, be responsible for the maintenance of the Register”, substitute “subject to the control of the Authority, be responsible for the maintenance of the Registers”.

48  Subsection 49(1)

Omit “Register” (wherever occurring), substitute “Registers”.

49  Part V (heading)

Repeal the heading, substitute:

Part VThe Registers

50  Section 56

Repeal the section, substitute:

56  The Registers

             (1)  There is to be a register, to be known as the Australian General Shipping Register.

             (2)  There is to be a register, to be known as the Australian International Shipping Register.

             (3)  The Registers are not legislative instruments.

51  Section 57 (heading)

Repeal the heading, substitute:

57  Inspection of the Registers

52  Subsection 57(1)

Omit “Register”, substitute “Registers”.

53  Subsection 57(1) (note)

Repeal the note.

54  Subsection 57(2)

Omit “Register has been maintained in electronic form, provide for it”, substitute “Registers have been maintained in electronic form, provide for them”.

55  Subsections 57(3), (4) and (5)

Repeal the subsections, substitute:

             (3)  A person may inspect the Registers at any reasonable time during the hours when the Registration Office is open for business on payment of the fixed fee (if any) for the inspection.

             (4)  A person is entitled to be provided with a copy of, or an extract from, any entry in the Registers on payment of the fixed fee (if any) for the copy or extract.

             (5)  If the Registrar has made provision for electronic inspection of the Registers otherwise than at the Registration Office, a person may electronically inspect the Registers and make a copy of any electronic entry in the Registers on payment of the fixed fee (if any) for the inspection and copy.

56  Section 58 (heading)

Repeal the heading, substitute:

58  Obsolete or incorrect entries in the Registers

57  Paragraph 58(1)(a)

Omit “, no entry or amendment of an entry has been made in the Register”, substitute “that is registered in the General Register or International Register, no entry or amendment of an entry has been made in the relevant register”.

58  Subparagraphs 58(1)(b)(i) and (ii)

Omit “Register”, substitute “relevant register”.

59  Paragraph 58(2)(b)

Omit “Register”, substitute “relevant register”.

60  Subsection 58(2A)

Omit “Register”, substitute “relevant register”.

61  Paragraph 58(3)(a)

Omit “Register”, substitute “relevant register”.

62  Section 59 (heading)

Repeal the heading, substitute:

59  Rectification of the Registers

63  Paragraphs 59(1)(a), (b), (c) and (d)

Omit “Register”, substitute “General Register or International Register”.

64  Subsection 59(1)

Omit “rectification of the Register” (wherever occurring), substitute “rectification of that register”.

65  Subsection 59(2)

Omit “Register” (first occurring), substitute “General Register or International Register”.

66  Subsection 59(2)

Omit “the Register” (second and third occurring), substitute “that register”.

67  Subsection 59(3)

Omit “Register”, substitute “General Register or International Register”.

68  Subsection 59(5)

Omit “shall, upon receipt of the order, rectify the Register accordingly”, substitute “must, upon receipt of the order, rectify the General Register or International Register accordingly”.

69  Section 60 (heading)

Repeal the heading, substitute:

60  Correction of clerical errors in the Registers

70  Section 60

Omit “Register”, substitute “General Register or International Register”.

71  Section 61 (heading)

Repeal the heading, substitute:

61  False entries in the Registers

72  Section 61

Omit “Register”, substitute “General Register or International Register”.

73  Section 62 (paragraph (b) of the definition of owner)

After “14(b)”, insert “or 15B(b)”.

74  Section 62 (paragraph (c) of the definition of owner)

Omit “or a ship registered by virtue of paragraph 14(d)”, substitute “, 14(d), 15B(c) or 15B(d)”.

75  Subsection 64(1)

Omit “shall be entered in the Register in respect of every registered ship”, substitute “must be entered in the General Register or International Register, in respect of every ship registered in that register,”.

76  Paragraph 64(1)(a)

After “14(c)”, insert “or 15B(c)”.

77  Paragraph 64(1)(b)

After “14(d)”, insert “or 15B(d)”.

78  Subsection 64(1A)

Omit “section 15, the name and address of the first person to be the registered agent of the ship shall be entered in the Register”, substitute “section 15 or 15C, the name and address of the first person to be the registered agent of the ship must be entered in the relevant register”.

79  Paragraph 64(2)(a)

Omit “Register”, substitute “relevant register”.

80  Subsection 65(1)

Omit “Register” (wherever occurring), substitute “relevant register”.

81  Subsection 65(6)

Omit “Register”, substitute “relevant register”.

82  Subsection 66(1)

Omit “if”, substitute “If”.

83  Paragraph 66(1)(a)

Repeal the paragraph, substitute:

                     (a)  a ship registered in the General Register or International Register:

                              (i)  is lost (whether actually or constructively); or

                             (ii)  is taken by an enemy; or

                            (iii)  is burnt or broken up; or

                            (iv)  ceases to be entitled to be registered in that register; and

84  Subsection 66(2)

Omit “Register”, substitute “relevant register”.

85  Subsection 66(3)

Omit “Register”, substitute “relevant register”.

86  Paragraph 66(3)(b)

After “registered”, insert “in the relevant register”.

87  Subsection 77(2)

Omit “Register” (first occurring), substitute “General Register or International Register,”.

88  Subsection 77(2)

Omit “Register” (last occurring), substitute “General Register or International Register”.

89  Section 78 (heading)

Repeal the heading, substitute:

78  AAT review of certain decisions

90  After section 78

Insert:

78A  Internal review of certain decisions

             (1)  An application may be made to the Chief Executive Officer of the Authority for review of a decision made by the Registrar under:

                     (a)  subsection 15F(1) (which is about the registration of ships in the International Register); or

                     (b)  subsection 33B(1) (which is about cancelling the registration of ships in the International Register).

             (2)  The regulations may make provision for review under this section.

91  Paragraph 83(2)(c)

Omit “Register” (wherever occurring), substitute “Registers”.

92  Paragraph 83(2)(d)

Omit “Register”, substitute “Registers”.

93  Paragraph 83(2)(f)

Omit “Register”, substitute “General Register or International Register”.

94  Subparagraph 83(2)(t)(iv)

Omit “; and”, substitute “;”.

95  Subparagraph 83(2)(t)(v)

Repeal the subparagraph.

96  Subsection 83(5)

Repeal the subsection, substitute:

             (5)  The regulations may:

                     (a)  provide for offences against the regulations; and

                     (b)  provide for civil penalties for contraventions of the regulations.

          (5A)  The penalties for offences or civil penalties referred to in subsection (5) must not be more than 50 penalty units for an individual or 250 penalty units for a body corporate.


 

Part 2Application, saving and transitional provisions relating to Part 1

97  Interpretation

In this Part:

commencement means the day this Schedule commences.

Registration Act means the Shipping Registration Act 1981.

98  Application of Part 1

(1)       The amendments made by Part 1 of this Schedule apply on and after commencement in relation to:

                     (a)  ships that are registered immediately before commencement; and

                     (b)  ships that are registered, or that are required or permitted to be registered, on or after commencement.

(2)       In addition, the amendment made by item 22 applies on and after commencement in relation to applications to register a ship that are made before, on or after commencement.

99  Transitioning the Register, registration and certificates

(1)       The register known as the Australian Register of Ships that was in existence under section 56 of the Registration Act immediately before commencement continues in existence (and may be dealt with) as if it were the Australian General Shipping Register referred to in subsection 56(1) of that Act (as amended by this Schedule).

(2)       If, immediately before commencement, a ship is registered in the Australian Register of Ships under section 18 of the Registration Act, then the registration of the ship continues in effect (and may be dealt with) as if the ship were registered in the Australian General Shipping Register under section 15E of that Act (as amended by this Schedule).

(3)       A reference to “the Australian Register of Ships” in:

                     (a)  a registration certificate granted before commencement under section 19 or 21 of the Registration Act; or

                     (b)  a provisional registration certificate granted before commencement under section 21, 22 or 22A of the Registration Act;

is taken, on and after commencement, to be a reference to “the Australian General Shipping Register”.

100  Transitioning applications for registration

If, before commencement:

                     (a)  an application had been made in accordance with section 15 of the Registration Act to register a ship; and

                     (b)  the Registrar had not made a decision on the application;

then the application is taken to have been made in accordance with section 15 of that Act (as amended by this Schedule).

101  Saving of regulations relating to registration

Regulations relating to applications for registration

(1)       Despite the repeal of section 15 of the Registration Act by item 24 of this Schedule, regulations that:

                     (a)  were made for the purposes of that section; and

                     (b)  were in force immediately before commencement;

continue in force (and may be dealt with) as if they had been made for the purposes of section 15 of that Act (as amended by this Schedule).

Regulations relating to entry of particulars in the Register

(2)       Despite the repeal of section 18 of the Registration Act by item 29 of this Schedule, regulations that:

                     (a)  were made for the purposes of that section; and

                     (b)  were in force immediately before commencement;

continue in force (and may be dealt with) as if they had been made for the purposes of section 15E of that Act (as amended by this Schedule).

Regulations relating to grant of registration certificate

(3)       Despite the repeal of section 19 of the Registration Act by item 30 of this Schedule, regulations that:

                     (a)  were made for the purposes of that section; and

                     (b)  were in force immediately before commencement;

continue in force (and may be dealt with) as if they had been made for the purposes of paragraph 19(2)(c) of that Act (as amended by this Schedule).

102  Saving of regulations providing for offences

Despite the repeal of subsection 83(5) of the Registration Act by item 96 of this Schedule, regulations that:

                     (a)  were made for the purposes of that subsection; and

                     (b)  were in force immediately before commencement;

continue in force (and may be dealt with) as if they had been made for the purposes of subsection 83(5) of that Act (as amended by this Schedule).

103  Saving of other regulations

Despite the amendment of sections 37, 47A, 58 and 65 and subsection 83(2) of the Registration Act by this Schedule, regulations that:

                     (a)  were made for the purposes of those provisions; and

                     (b)  were in force immediately before commencement;

continue in force (and may be dealt with) as if they had been made for the purposes of those provisions of that Act (as amended by this Schedule).

104  Transitioning references to “the Register” in regulations

A reference to “the Register” in regulations that:

                     (a)  were made for the purposes of a provision of the Registration Act; and

                     (b)  were in force immediately before commencement;

is taken, on and after commencement, to be a reference to “the relevant Register”.


 

Schedule 2Seafarers

  

Shipping Registration Act 1981

1  Subsection 3(1)

Insert:

coastal trading has the same meaning as in the Coastal Trading (Revitalising Australian Shipping) Act 2012.

2  Subsection 3(1)

Insert:

employee organisation means:

                     (a)  an organisation registered under the Fair Work (Registered Organisations) Act 2009; or

                     (b)  an organisation recognised under a law of a foreign country as entitled to represent the industrial interests of seafarers.

3  Subsection 3(1)

Insert:

harbour means a natural or artificial harbour, and includes an estuary, navigable river, creek, channel, haven, roadstead, dock, pier, jetty, offshore terminal or other place in or at which vessels can obtain shelter or load and unload goods or embark and disembark passengers.

4  Subsection 3(1)

Insert:

international trading has the meaning given by section 61AB.

5  Subsection 3(1)

Insert:

ITF template agreement means a standard form of agreement that:

                     (a)  relates to the working conditions of seafarers; and

                     (b)  is formulated by the International Transport Workers’ Federation; and

                     (c)  is known as the International Transport Workers’ Federation Uniform Total Crew Cost Collective Agreement; and

                     (d)  is available on the Authority’s website, or is otherwise available (without charge) from the Authority.

6  Subsection 3(1)

Insert:

intra‑State trading: a ship is used to engage in intra‑State trading if, for or in connection with a commercial activity, the ship:

                     (a)  takes on board passengers or cargo at a port in a State or Territory; and

                     (b)  carries those passengers or that cargo to another port in the same State or Territory where:

                              (i)  some or all of those passengers disembark; or

                             (ii)  some or all of that cargo is unloaded.

7  Subsection 3(1)

Insert:

Navigation Act means the Navigation Act 1912.

8  Subsection 3(1) (definition of owner)

Repeal the definition, substitute:

owner of a ship:

                     (a)  except in sections 8, 11A, 12, 30 and 58 and in Parts VA and VI—means a person registered as owner in accordance with the regulations; and

                     (b)  in sections 8, 12, 30 and 58—has its ordinary meaning; and

                     (c)  in section 11A and Part VA—has the same meaning as in the Navigation Act; and

                     (d)  in Part VI—has the meaning given by section 62.

9  Subsection 3(1)

Insert:

port includes a harbour.

10  Subsection 3(1)

Insert:

seafarer means any person who is employed or works in any capacity on board a ship on the business of the ship, other than the following:

                     (a)  a pilot;

                     (b)  an owner of the ship or a person representing the owner;

                     (c)  law enforcement personnel;

                     (d)  special personnel (within the meaning of section 283 of the Navigation Act) in relation to the ship;

                     (e)  a person temporarily employed on the ship in port;

                      (f)  a person prescribed by the regulations.

11  Subsection 3(1)

Insert:

seafarers’ bargaining unit, for a ship, has the meaning given by subsection 11A(2).

12  Section 11A

Repeal the section, substitute:

11A  Collective agreement with the seafarers’ bargaining unit

             (1)  The owner of a ship may make an agreement (a collective agreement) with the seafarers’ bargaining unit for the ship about the terms and conditions of employment or engagement of all the seafarers working on board the ship when it is used to engage in international trading.

Note:          Before a ship can be registered in the International Register, the owner of the ship must make a collective agreement under subsection (1): see paragraph 15F(3)(b).

             (2)  The seafarers’ bargaining unit for a ship is a body consisting of a representative from each employee organisation that:

                     (a)  has, as a member, one or more seafarers who will work on the ship when it is used to engage in international trading; and

                     (b)  is entitled to represent the industrial interests of those seafarers in relation to that work; and

                     (c)  has given written notice to the owner of the ship that it wishes to be a member of the body and has not withdrawn that notice.

             (3)  The regulations may prescribe requirements in relation to the making of a collective agreement under this section.

             (4)  The Fair Work Act 2009 does not apply in relation to the making of a collective agreement under this section, and a collective agreement under this section is not an enterprise agreement for the purposes of that Act.

13  After Part V

Insert:

Part VASeafarers

Division 1Application of other laws to International Register ships

61AA  Application of other laws to International Register ships

                   If a ship is registered in the International Register, then:

                     (a)  the Fair Work Act 2009 does not apply in relation to when the ship is used to engage in international trading; and

                     (b)  the Seafarers Rehabilitation and Compensation Act 1992 does not apply in relation to the ship at any time; and

                     (c)  any legislation of a State or Territory that:

                              (i)  provides for workers’ compensation; or

                             (ii)  is prescribed by the regulations;

                            does not apply in relation to the ship at any time.

61AB  When is a ship used to engage in international trading?

             (1)  A ship is used to engage in international trading if, for or in connection with a commercial activity:

                     (a)  the ship:

                              (i)  takes on board passengers or cargo at one or more ports in Australia; and

                             (ii)  carries some or all of the passengers or cargo to one or more ports in one or more foreign countries; or

                     (b)  the ship:

                              (i)  takes on board passengers or cargo at one or more ports in one or more foreign countries; and

                             (ii)  carries all of the passengers or cargo to one or more ports in one or more countries (which could be the same foreign country, another foreign country or Australia); or

                     (c)  the ship undertakes an activity for, or in connection with, an activity referred to in paragraph (a) or (b).

             (2)  However, a ship is not used to engage in international trading at any time it is used to engage in:

                     (a)  coastal trading; or

                     (b)  intra‑State trading.

Division 2Work agreements

Subdivision AApplication of this Division

61AC  Application of this Division

                   This Division applies to:

                     (a)  a ship that is registered in the International Register; and

                     (b)  a seafarer working, or proposing to work, on board the ship when it is used to engage in international trading.

Subdivision BRequirements that apply to work agreements

61AD  Work agreement must comply with this Division

             (1)  In addition to the requirements of section 45A of the Navigation Act that a work agreement of a seafarer must comply with, the owner of the ship must ensure that the work agreement complies with the requirements of this Division when the ship is used to engage in international trading.

Civil penalty:          300 penalty units.

             (2)  Subsection (1) applies to the extent that the agreement applies to the seafarer while he or she is working on board the ship when it is used to engage in international trading.

61AE  Wages

             (1)  The work agreement must specify the amount of the seafarer’s wages, or the method for working that out.

             (2)  The amount of the wages must not be less than the relevant amount of wages determined by the Minister under subsection (3).

             (3)  The Minister must, by legislative instrument, determine the amount of wages of seafarers performing particular types of work.

             (4)  If, when making a determination under subsection (3):

                     (a)  there is an ITF template agreement; and

                     (b)  the ITF template agreement specifies an amount of wages of seafarers performing particular types of work;

then the amount of wages determined by the Minister under subsection (3) for a particular type of work must not be less than the amount of wages specified in the ITF template agreement for that type of work.

             (5)  If, after the Minister makes a determination under subsection (3), the ITF template agreement changes, then as soon as is reasonably practicable after becoming aware of that:

                     (a)  the Minister must, by legislative instrument, revoke the determination made under subsection (3); and

                     (b)  the Minister must make a new determination under subsection (3).

61AF  Paid annual leave

             (1)  The work agreement must provide that the seafarer is entitled to at least 2.5 days of paid annual leave for each month of service on board the ship.

Calculating service

             (2)  For the purposes of subsection (1), a period of service by the seafarer on board the ship is a period during which the seafarer is employed or engaged in relation to the ship, but does not include:

                     (a)  any period of unauthorised absence; or

                     (b)  any period of unpaid leave.

Paid annual leave not to include other absences

             (3)  The work agreement must not provide that the seafarer is on paid annual leave during any of the following periods:

                     (a)  a period that is a public holiday in the Australian Capital Territory;

                     (b)  a period during which the seafarer is incapacitated for work as a result of illness or injury;

                     (c)  a period of any other type of absence authorised under the work agreement.

61AG  Dispute resolution procedure

             (1)  The work agreement must provide for a procedure for settling disputes about any matters arising in relation to the agreement, this Part or Part II of the Navigation Act.

             (2)  The procedure must:

                     (a)  entitle the seafarer to make a complaint directly to the master of the ship and, if the seafarer considers it necessary, to an independent person or body specified in the agreement; and

                     (b)  entitle the seafarer to be accompanied or represented by another person during the complaint process; and

                     (c)  comply with any other requirements prescribed by the regulations.

Subdivision CEffect of other agreements on the work agreement

61AH  Effect of collective agreement with the seafarers’ bargaining unit

             (1)  This section applies while a collective agreement made under section 11A between the owner of the ship and the seafarers’ bargaining unit for the ship is in force.

             (2)  The work agreement referred to in section 45A of the Navigation Act, to the extent that the work agreement applies to the seafarer while he or she is working on board the ship when it is used to engage in international trading, is taken to include the terms and conditions of the collective agreement.

Note:          It does not matter whether the work agreement was made before or after the collective agreement was made.

             (3)  However, a term or condition of the collective agreement that is included in the work agreement because of subsection (2) has no effect to the extent that it is less beneficial to the seafarer than another term or condition of the work agreement.

61AI  Effect of other agreements

             (1)  This section applies if:

                     (a)  on or after the commencement of this section, the owner of the ship makes an agreement with another person or persons about the terms and conditions of employment or engagement of one or more seafarers working on board the ship when it is used to engage in international trading; and

                     (b)  the agreement is not a work agreement referred to in section 45A of the Navigation Act; and

                     (c)  the agreement is not a collective agreement made under section 11A.

             (2)  If the work agreement referred to in section 45A of the Navigation Act incorporates any of the terms or conditions of the agreement referred to in paragraph (1)(a), then those terms or conditions have no effect to the extent that they apply to the seafarer while he or she is working on board the ship when it is used to engage in international trading.

Subdivision DEnforcement of work agreement in relation to wages and annual leave

61AJ  Wages to be paid

                   The owner of the ship must ensure that any wages that are payable to the seafarer under the seafarer’s work agreement are paid to the seafarer.

Civil penalty:          300 penalty units.

61AK  Annual leave may be taken

                   The owner of the ship must ensure that the seafarer is entitled to take any paid annual leave that the seafarer is entitled to take under the seafarer’s work agreement.

Civil penalty:          300 penalty units.

Division 3Protection against victimisation of seafarers

61AL  Protection against victimisation

             (1)  This section applies to:

                     (a)  a ship that is registered in the International Register; and

                     (b)  a seafarer who works, or a prospective seafarer who proposes to work, on board the ship when it is used to engage in international trading.

             (2)  A person must not victimise the seafarer because the seafarer:

                     (a)  has made, proposes to make, or at any time has proposed to make a complaint under the dispute resolution procedure in the seafarer’s work agreement (unless the complaint is manifestly vexatious or maliciously made); or

                     (b)  has refused to make, proposes to refuse to make, or at any time has proposed to refuse to make a complaint under the dispute resolution procedure in the seafarer’s work agreement; or

                     (c)  has participated, proposes to participate, or at any time has proposed to participate in collective bargaining; or

                     (d)  has refused to participate, proposes to refuse to participate, or at any time has refused to participate in collective bargaining; or

                     (e)  has exercised, proposes to exercise, or at any time has proposed to exercise the right to organise and to take industrial action; or

                      (f)  has refused to exercise, proposes to refuse to exercise, or at any time has proposed to refuse to exercise the right to organise and to take industrial action; or

                     (g)  has joined, proposes to join, or at any time has proposed to join an employee organisation; or

                     (h)  has refused to join, proposes to refuse to join, or at any time has proposed to refuse to join an employee organisation; or

                      (i)  has participated, proposes to participate, or at any time has proposed to participate in the activities of an employee organisation; or

                      (j)  has refused to participate, proposes to refuse to participate, or at any time has proposed to refuse to participate in the activities of an employee organisation; or

                     (k)  has requested, proposes to request, or at any time has proposed to request representation by an employee organisation; or

                      (l)  has refused, proposes to refuse, or at any time has proposed to refuse representation by an employee organisation.

Civil penalty:          300 penalty units.

             (3)  For the purposes of subsection (2), a person victimises a seafarer if the person:

                     (a)  dismisses, or threatens or organises to dismiss, the seafarer; or

                     (b)  injures, or threatens or organises to injure, the seafarer in his or her employment or engagement on board a ship; or

                     (c)  alters the position of, or threatens or organises to alter the position of, the seafarer to the seafarer’s prejudice; or

                     (d)  discriminates, or threatens or organises to discriminate, between the seafarer and other seafarers; or

                     (e)  refuses, or threatens or organises to refuse, to employ the seafarer on board a ship.

Division 4Injury etc. of seafarers

61AM  Compulsory insurance for death or long‑term disability

             (1)  The owner of a ship that is registered in the International Register must have a policy of insurance or indemnity that:

                     (a)  insures or indemnifies the owner for any liability of the owner to pay compensation for the death or long‑term disability suffered by a seafarer as a result of sickness or injury occurring while on board the ship; and

                     (b)  provides a level of insurance or indemnity that is sufficient to cover the amount of compensation that is determined by the Minister under subsection (2).

Civil penalty:          300 penalty units.

             (2)  The Minister must, by legislative instrument, determine the amount of compensation for the death or long‑term disability suffered by a seafarer as a result of sickness or injury occurring while on board the ship.

             (3)  If:

                     (a)  there is an ITF template agreement; and

                     (b)  the ITF template agreement specifies an amount of compensation for the death or long‑term disability of a seafarer, or a method for working that out;

then the amount of compensation determined by the Minister under subsection (2) for the death or long‑term disability of a seafarer must not be less than the amount of compensation specified in, or worked out under, the ITF template agreement for the death or long‑term disability of the seafarer.

             (4)  If, after the Minister makes a determination under subsection (2), the ITF template agreement changes, then as soon as is reasonably practicable after becoming aware of that:

                     (a)  the Minister must, by legislative instrument, revoke the determination made under subsection (2); and

                     (b)  the Minister must make a new determination under subsection (2).

61AN  Liability for medical attendance etc.

             (1)  This section applies if the owner of a ship that is registered in the International Register would, apart from subsection (2), be liable under section 127 of the Navigation Act to pay expenses relating to a hurt or injury received, disease contracted or illness suffered by a seafarer while on board the ship when it was used to engage in international trading.

             (2)  Any liability of the owner under that section ceases on the earlier of the following days:

                     (a)  the day after the seafarer has recovered;

                     (b)  the day that is 16 weeks after the first day the seafarer received the hurt or injury, contracted the disease or suffered the illness.

61AO  Liability for wages of sick or injured seafarers

             (1)  This section applies if the owner of a ship that is registered in the International Register would, apart from subsection (2), be liable under section 132 of the Navigation Act to pay wages to a seafarer who is hurt or injured, or becomes ill, while on board the ship when it was used to engage in international trading.

             (2)  Any liability of the owner under that section ceases on the earlier of the following days:

                     (a)  the day after the seafarer has recovered;

                     (b)  the day that is 16 weeks after the first day the seafarer was hurt or injured, or became ill.


 

Schedule 3Enforcement

  

Shipping Registration Act 1981

1  Subsection 3(1)

Insert:

civil penalty order has the meaning given by subsection 61BA(4).

2  Subsection 3(1)

Insert:

civil penalty provision means a subsection, or a section that is not divided into subsections, that has set out at its foot the words “civil penalty” and one or more amounts in penalty units.

3  Subsection 3(1)

Insert:

relevant court, in relation to a matter, means any of the following courts:

                     (a)  the Federal Court of Australia;

                     (b)  the Federal Magistrates Court;

                     (c)  a superior court, or lower court, of a State or Territory;

that has jurisdiction in relation to the matter (see section 61BZD).

4  Before Part VI

Insert:

Part VBEnforcement

Division 1Civil penalty provisions

Subdivision AObtaining a civil penalty order

61BA  Civil penalty orders

Application for order

             (1)  The Authority may apply to a relevant court for an order that a person, who is alleged to have contravened a civil penalty provision, pay a pecuniary penalty.

             (2)  The Authority must make the application within 6 years of the alleged contravention.

Relevant court may order person to pay pecuniary penalty

             (3)  If the relevant court is satisfied that the person has contravened the civil penalty provision, the relevant court may order the person to pay such pecuniary penalty for the contravention as the relevant court determines to be appropriate.

Note:          Subsection (5) sets out the maximum penalty that the relevant court may order the person to pay.

             (4)  An order under subsection (3) is a civil penalty order.

Determining pecuniary penalty

             (5)  The pecuniary penalty must not be more than:

                     (a)  if the person is a body corporate—5 times the pecuniary penalty specified for the civil penalty provision; and

                     (b)  otherwise—the pecuniary penalty specified for the civil penalty provision.

             (6)  In determining the pecuniary penalty, the relevant court may take into account all relevant matters, including:

                     (a)  the nature and extent of the contravention; and

                     (b)  the nature and extent of any loss or damage suffered because of the contravention; and

                     (c)  the circumstances in which the contravention took place; and

                     (d)  whether the person has previously been found by a court in proceedings under one or more of the following Acts to have engaged in any similar conduct:

                              (i)  this Act;

                             (ii)  the Navigation Act;

                            (iii)  the Crimes Act 1914 or the Criminal Code in relation to this Act.

61BB  Civil enforcement of penalty

             (1)  A pecuniary penalty is a debt payable to the Authority on behalf of the Commonwealth.

             (2)  The Authority may enforce a civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgement debt.

61BC  Conduct contravening more than one civil penalty provision

             (1)  If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Division against a person in relation to the contravention of any one or more of those provisions.

             (2)  However, the person is not liable to more than one pecuniary penalty under this Division in relation to the same conduct.

61BD  Multiple contraventions

             (1)  A relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character.

             (2)  However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions.

61BE  Proceedings may be heard together

                   A relevant court may direct that 2 or more proceedings for civil penalty orders are to be heard together.

61BF  Civil evidence and procedure rules for civil penalty orders

                   A relevant court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.

61BG  Contravening a civil penalty provision is not an offence

                   A contravention of a civil penalty provision is not an offence.

Subdivision BCivil proceedings and criminal proceedings

61BH  Civil proceedings after criminal proceedings

                   A relevant court may not make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention.

61BI  Criminal proceedings during civil proceedings

             (1)  Proceedings for a civil penalty order against a person for a contravention of a civil penalty provision are stayed if:

                     (a)  criminal proceedings are commenced or have already been commenced against the person for an offence; and

                     (b)  the offence is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention.

             (2)  The proceedings for the order (the civil proceedings) may be resumed if the person is not convicted of the offence. Otherwise, the civil proceedings are dismissed.

61BJ  Criminal proceedings after civil proceedings

                   Criminal proceedings may be commenced against a person for conduct that is the same, or substantially the same, as conduct that would constitute a contravention of a civil penalty provision, regardless of whether a civil penalty order has been made against the person in relation to the contravention.

61BK  Evidence given in civil proceedings not admissible in criminal proceedings

             (1)  Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:

                     (a)  the individual previously gave the evidence or produced the documents in proceedings for a civil penalty order against the individual for an alleged contravention of a civil penalty provision (whether or not the order was made); and

                     (b)  the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention.

             (2)  However, subsection (1) does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the civil penalty order.

Subdivision CMiscellaneous

61BL  Ancillary contravention of civil penalty provisions

             (1)  A person must not:

                     (a)  attempt to contravene a civil penalty provision; or

                     (b)  aid, abet, counsel or procure a contravention of a civil penalty provision; or

                     (c)  induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or

                     (d)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil penalty provision; or

                     (e)  conspire with others to effect a contravention of a civil penalty provision.

Note:          Section 61BN (which provides that a person’s state of mind does not need to be proven in relation to a civil penalty provision) does not apply to this subsection.

             (2)  A person who contravenes subsection (1) in relation to a civil penalty provision is taken to have contravened the provision.

61BM  Mistake of fact

             (1)  A person is not liable to have a civil penalty order made against the person for a contravention of a civil penalty provision if:

                     (a)  at or before the time of the conduct constituting the contravention, the person:

                              (i)  considered whether or not facts existed; and

                             (ii)  was under a mistaken but reasonable belief about those facts; and

                     (b)  had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision.

             (2)  For the purposes of subsection (1), a person may be regarded as having considered whether or not facts existed if:

                     (a)  the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and

                     (b)  the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.

             (3)  A person who wishes to rely on a matter in subsection (1) or (2) in proceedings for a civil penalty order bears an evidential burden in relation to that matter.

61BN  State of mind

             (1)  In proceedings for a civil penalty order against a person for a contravention of a civil penalty provision (other than because of subsection 61BL(1)), it is not necessary to prove:

                     (a)  the person’s intention; or

                     (b)  the person’s knowledge; or

                     (c)  the person’s recklessness; or

                     (d)  the person’s negligence; or

                     (e)  any other state of mind of the person;

other than as expressly provided.

             (2)  Subsection (1) does not affect the operation of section 61BM (mistake of fact).

61BO  Civil penalty provisions contravened by employees, agents or officers

                   If an element of a civil penalty provision is done by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the element must also be attributed to the body corporate.

61BP  Continuing contraventions of civil penalty provisions

             (1)  If an act or thing is required under a civil penalty provision to be done:

                     (a)  within a particular period; or

                     (b)  before a particular time;

then the obligation to do that act or thing continues until the act or thing is done (even if the period has expired or the time has passed).

             (2)  A person who contravenes a civil penalty provision that requires an act or thing to be done:

                     (a)  within a particular period; or

                     (b)  before a particular time;

commits a separate contravention of that provision in respect of each day during which the contravention occurs (including the day the relevant civil penalty order is made or any later day).

Division 2Infringement notices, voluntary enforceable undertakings and injunctions

Subdivision AInfringement notices

61BQ  When an infringement notice may be given

             (1)  If the Authority has reasonable grounds to believe that a person has contravened a civil penalty provision, the Authority may give to the person an infringement notice for the alleged contravention.

             (2)  The infringement notice must be given within 12 months after the day the contravention is alleged to have taken place.

             (3)  A single infringement notice must relate only to a single contravention of a single civil penalty provision unless subsection (4) applies.

             (4)  The Authority may give a person a single infringement notice relating to multiple contraventions of a single provision if:

                     (a)  the provision requires the person to do a thing within a particular period or before a particular time; and

                     (b)  the person fails or refuses to do that thing within that period or before that time; and

                     (c)  the failure or refusal occurs on more than one day; and

                     (d)  each contravention is constituted by the failure or refusal on one of those days.

Note:          For continuing offences, see subsection 4K(2) of the Crimes Act 1914. For continuing contraventions of civil penalty provisions, see section 61BP of this Act.

61BR  Matters to be included in an infringement notice

             (1)  An infringement notice must:

                     (a)  be identified by a unique number; and

                     (b)  state the day it is given; and

                     (c)  state the name of the person to whom the notice is given; and

                     (d)  state the name of the person who gave the notice; and

                     (e)  give brief details of the alleged contravention, including:

                              (i)  the provision that was allegedly contravened; and

                             (ii)  the maximum penalty a court could impose for the contravention; and

                            (iii)  the time (if known) and day of, and the place of, the alleged contravention; and

                      (f)  state the amount that is payable under the notice; and

                     (g)  give an explanation of how payment of the amount is to be made; and

                     (h)  state that, if the person to whom the notice is given pays the amount within 28 days after the day the notice is given, then (unless the notice is withdrawn):

                              (i)  if the provision is an offence provision and does not also constitute a civil penalty provision—the person will not be liable to be prosecuted in a court for the alleged contravention; or

                             (ii)  if the provision is an offence provision that can also constitute a civil penalty provision—the person is not liable to be prosecuted in a court, and proceedings seeking a civil penalty order will not be brought, in relation to the alleged contravention; or

                            (iii)  if the provision is a civil penalty provision—proceedings seeking a civil penalty order will not be brought in relation to the alleged contravention; and

                      (i)  state that payment of the amount is not an admission of guilt or liability; and

                      (j)  state that the person may apply to the Authority to have the period in which to pay the amount extended; and

                     (k)  state that the person may choose not to pay the amount and, if the person does so:

                              (i)  if the provision is an offence provision and does not also constitute a civil penalty provision—the person may be prosecuted in a court for the alleged contravention; or

                             (ii)  if the provision is an offence provision and can also constitute a civil penalty provision—the person may be prosecuted in a court, or proceedings seeking a civil penalty order may be brought, in relation to the alleged contravention; or

                            (iii)  if the provision is a civil penalty provision—proceedings seeking a civil penalty order may be brought in relation to the alleged contravention; and

                      (l)  set out how the notice can be withdrawn; and

                    (m)  state that if the notice is withdrawn:

                              (i)  if the provision is an offence provision and does not also constitute a civil penalty provision—the person may be prosecuted in a court for the alleged contravention; or

                             (ii)  if the provision is an offence provision and can also constitute a civil penalty provision—the person may be prosecuted in a court, or proceedings seeking a civil penalty order may be brought, in relation to the alleged contravention; or

                            (iii)  if the provision is a civil penalty provision—proceedings seeking a civil penalty order may be brought in relation to the alleged contravention; and

                     (n)  state that the person may make written representations to the Authority seeking the withdrawal of the notice.

             (2)  For the purposes of paragraph (1)(f), the amount to be stated in the notice for the alleged contravention of the provision must be equal to one‑fifth of the maximum penalty that the court could impose on the person for that contravention.

61BS  Extension of time to pay amount

             (1)  A person to whom an infringement notice has been given may apply to the Authority for an extension of the period referred to in paragraph 61BR(1)(h).

             (2)  If the application is made before the end of that period, the Authority may, in writing, extend that period. The Authority may do so before or after the end of that period.

             (3)  If the Authority extends that period, a reference in this Division, or in a notice or other instrument under this Division, to the period referred to in paragraph 61BR(1)(h) is taken to be a reference to that period so extended.

             (4)  If the Authority does not extend that period, a reference in this Division, or in a notice or other instrument under this Division, to the period referred to in paragraph 61BR(1)(h) is taken to be a reference to the period that ends on the later of the following days:

                     (a)  the day that is the last day of the period referred to in paragraph 61BR(1)(h);

                     (b)  the day that is 7 days after the day the person was given notice of the Authority’s decision not to extend.

             (5)  The Authority may extend the period more than once under subsection (2).

61BT  Withdrawal of an infringement notice

Representations seeking withdrawal of notice

             (1)  A person to whom an infringement notice has been given may make written representations to the Authority seeking the withdrawal of the notice.

Withdrawal of notice

             (2)  The Authority may withdraw an infringement notice given to a person (whether or not the person has made written representations seeking the withdrawal).

             (3)  When deciding whether or not to withdraw an infringement notice (the relevant infringement notice), the Authority:

                     (a)  must take into account any written representations seeking the withdrawal that were given by the person to the Authority; and

                     (b)  may take into account the following:

                              (i)  whether a court has previously imposed a penalty on the person for a contravention of a civil penalty provision;

                             (ii)  the circumstances of the alleged contravention;

                            (iii)  whether the person has paid an amount, stated in an earlier infringement notice, for a contravention of a civil penalty provision if the contravention is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention in the relevant infringement notice;

                            (iv)  any other matter the Authority considers relevant.

Notice of withdrawal

             (4)  Notice of the withdrawal of the infringement notice must be given to the person. The withdrawal notice must state:

                     (a)  the person’s name and address; and

                     (b)  the day the infringement notice was given; and

                     (c)  the identifying number of the infringement notice; and

                     (d)  that the infringement notice is withdrawn; and

                     (e)  that:

                              (i)  if the provision is an offence provision and does not also constitute a civil penalty provision—the person may be prosecuted in a court for the alleged contravention; or

                             (ii)  if the provision is an offence provision and can also constitute a civil penalty provision—the person may be prosecuted in a court, or proceedings seeking a civil penalty order may be brought, in relation to the alleged contravention; or

                            (iii)  if the provision is a civil penalty provision—proceedings seeking a civil penalty order may be brought in relation to the alleged contravention.

Refund of amount if infringement notice withdrawn

             (5)  If:

                     (a)  the Authority withdraws the infringement notice; and

                     (b)  the person has already paid the amount stated in the notice;

the Commonwealth must refund to the person an amount equal to the amount paid.

61BU  Effect of payment of amount

             (1)  If the person to whom an infringement notice for an alleged contravention of a civil penalty provision is given pays the amount stated in the notice before the end of the period referred to in paragraph 61BR(1)(h), then:

                     (a)  any liability of the person for the alleged contravention is discharged; and

                     (b)  either:

                              (i)  if the provision is an offence provision—the person may not be prosecuted in a court for the alleged contravention; or

                             (ii)  if the provision is a civil penalty provision—proceedings seeking a civil penalty order may not be brought against the person in relation to the alleged contravention; and

                     (c)  the person is not regarded as having admitted guilt or liability for the alleged contravention; and

                     (d)  if the provision is an offence provision—the person is not regarded as having been convicted of the alleged offence.

             (2)  Subsection (1) does not apply if the notice has been withdrawn.

61BV  Effect of this Division

                   This Division does not:

                     (a)  require an infringement notice to be given to a person for an alleged contravention of a civil penalty provision; or

                     (b)  affect the liability of a person for an alleged contravention of a civil penalty provision if:

                              (i)  the person does not comply with an infringement notice given to the person for the contravention; or

                             (ii)  an infringement notice is not given to the person for the contravention; or

                            (iii)  an infringement notice is given to the person for the contravention and is subsequently withdrawn; or

                     (c)  prevent the giving of 2 or more infringement notices to a person for an alleged contravention of a civil penalty provision; or

                     (d)  limit the court’s discretion to determine the amount of a penalty to be imposed on a person who is found to have contravened a civil penalty provision.

Subdivision BEnforceable undertakings

61BW  Acceptance of undertakings

             (1)  The Authority may accept any of the following undertakings:

                     (a)  a written undertaking given by a person that the person will, in order to comply with a civil penalty provision, take specified action;

                     (b)  a written undertaking given by a person that the person will, in order to comply with a civil penalty provision, refrain from taking specified action;

                     (c)  a written undertaking given by a person that the person will take specified action directed towards ensuring that the person does not contravene a civil penalty provision, or is unlikely to contravene such a provision, in the future.

             (2)  The undertaking must be expressed to be an undertaking under this section.

             (3)  The person may withdraw or vary the undertaking at any time, but only with the written consent of the Authority.

             (4)  The consent of the Authority is not a legislative instrument.

             (5)  The Authority may, by written notice given to the person, cancel the undertaking.

61BX  Enforcement of undertakings

             (1)  If:

                     (a)  a person has given an undertaking under section 61BW; and

                     (b)  the undertaking has not been withdrawn or cancelled; and

                     (c)  the Authority considers that the person has breached the undertaking;

the Authority may apply to a relevant court for an order under subsection (2).

             (2)  If the relevant court is satisfied that the person has breached the undertaking, the court may make any or all of the following orders:

                     (a)  an order directing the person to comply with the undertaking;

                     (b)  an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

                     (c)  any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

                     (d)  any other order that the court considers appropriate.

Subdivision CInjunctions

61BY  Grant of injunctions

Restraining injunctions

             (1)  If a person has engaged, is engaging or is proposing to engage, in conduct in contravention of a civil penalty provision, a relevant court may, on application by the Authority, grant an injunction:

                     (a)  restraining the person from engaging in the conduct; and

                     (b)  if, in the court’s opinion, it is desirable to do so—requiring the person to do a thing.

Performance injunctions

             (2)  If:

                     (a)  a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do a thing; and

                     (b)  the refusal or failure was, is or would be a contravention of a civil penalty provision;

the court may, on application by the Authority, grant an injunction requiring the person to do that thing.

61BZ  Interim injunctions

Grant of interim injunctions

             (1)  Before deciding an application for an injunction under section 61BY, a relevant court may grant an interim injunction:

                     (a)  restraining a person from engaging in conduct; or

                     (b)  requiring a person to do a thing.

No undertakings as to damages

             (2)  The court must not require an applicant for an injunction under section 61BY to give an undertaking as to damages as a condition of granting an interim injunction.

61BZA  Discharging or varying injunctions

                   A relevant court may discharge or vary an injunction granted by that court under this Division.

61BZB  Certain limits on granting injunctions not to apply

Restraining injunctions

             (1)  The power of a relevant court under this Division to grant an injunction restraining a person from engaging in conduct may be exercised:

                     (a)  whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; and

                     (b)  whether or not the person has previously engaged in conduct of that kind; and

                     (c)  whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind.

Performance injunctions

             (2)  The power of a relevant court under this Division to grant an injunction requiring a person to do a thing may be exercised:

                     (a)  whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; and

                     (b)  whether or not the person has previously refused or failed to do that thing; and

                     (c)  whether or not there is an imminent danger of substantial damage to any other person if the person refuses or fails to do that thing.

61BZC  Other powers of a relevant court unaffected

                   The powers conferred on a relevant court under this Division are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.

Division 3Civil jurisdiction of courts

61BZD  Civil jurisdiction of courts

             (1)  Jurisdiction is conferred on a court referred to in an item in the following table in relation to civil matters arising under this Part, subject to the limits on the court’s jurisdiction (if any) specified in the item:

 

Civil jurisdiction of courts

Item

Court on which civil jurisdiction is conferred

Limits of jurisdiction

1

The Federal Court of Australia

No specified limits.

2

The Federal Magistrates Court

No specified limits.

3

A superior court, or lower court, of a State or Territory

The court’s general jurisdictional limits, including limits as to locality and subject matter.

             (2)  Jurisdiction is conferred on the courts of a Territory only to the extent that the Constitution permits.

             (3)  Section 15C of the Acts Interpretation Act 1901 does not apply to civil proceedings under this Part.


 

Schedule 4Other amendments

  

Australian Maritime Safety Authority Act 1990

1  Section 46 (at the end of the definition of charge)

Add:

               ; or (d)  a fee in respect of a matter referred to in section 15, 15C, 15D or 57 of the Shipping Registration Act 1981.

Marine Navigation (Regulatory Functions) Levy Collection Act 1991

2  Section 3

Insert:

Australian International Shipping Register has the same meaning as in the Shipping Registration Act 1981.

3  Section 3 (definition of sea‑going ship)

Repeal the definition, substitute:

sea‑going ship means:

                     (a)  a ship which, in the course of a voyage to or from an Australian port, passes a marine navigational aid under the control of the Commonwealth; or

                     (b)  a ship that is registered in the Australian International Shipping Register.

4  Subsection 6(3)

Omit “or (2)”, substitute “, (2) or (4A)”.

5  After subsection 6(4)

Insert:

          (4A)  Levy in respect of a ship that is registered in the Australian International Shipping Register is payable on the first day of each quarter.

Navigation Amendment Act 2011

6  Subsection 2(1) (table item 2)

Repeal the item, substitute:

2.  Schedule 1, item 1

1 July 2012.

1 July 2012

2A.  Schedule 1, items 2 and 3

A single day to be fixed by Proclamation.

A Proclamation must not specify a day that occurs before the day the Maritime Labour Convention, 2006, done at Geneva on 23 February 2006, comes into force for Australia.

However, if the provision(s) do not commence within the period of 6 months beginning on the day the Convention comes into force for Australia, they commence on the day after the end of that period. If the provision(s) commence in this way, the Minister must announce by notice in the Gazette the day the provision(s) commenced. The notice is not a legislative instrument.

 

2B.  Schedule 1, items 3A to 33

1 July 2012.

1 July 2012

2C.  Schedule 1, items 34 to 40

At the same time as the provision(s) covered by table item 2A.

 

2D.  Schedule 1, items 41 and 42

1 July 2012.

1 July 2012

2E.  Schedule 1, items 43 and 44

At the same time as the provision(s) covered by table item 2A.

 

2F.  Schedule 1, item 45

1 July 2012.

1 July 2012

2G.  Schedule 1, items 46 and 47

At the same time as the provision(s) covered by table item 2A.

 

2H.  Schedule 1, item 48

1 July 2012.

1 July 2012

2J.  Schedule 1, items 49 to 57

At the same time as the provision(s) covered by table item 2A.

 

2K.  Schedule 1, items 58 to 62

1 July 2012.

1 July 2012

2L.  Schedule 1, items 63 to 72

At the same time as the provision(s) covered by table item 2A.

 

2M.  Schedule 1, item 73

1 July 2012.

1 July 2012

2N.  Schedule 1, items 74 to 77

At the same time as the provision(s) covered by table item 2A.

 

2P.  Schedule 1, items 78 to 79A

1 July 2012.

1 July 2012

7  After item 3 of Schedule 1

Insert:

3A  Subsection 6(1)

Insert:

owner of a ship means one or more of the following:

                     (a)  a person who has a legal or beneficial interest in the ship;

                     (b)  a person with overall general control and management of the ship;

                     (c)  a person who has assumed responsibility for the ship from a person referred to in paragraph (a) or (b).

For the purposes of paragraphs (b) and (c), a person is not taken to have overall general control and management of a ship, or to have assumed responsibility for a ship, merely because he or she is the master or pilot of the ship.

3B  Subsection 6(4)

Repeal the subsection.

8  Item 4 of Schedule 1

Repeal the item, substitute:

4  Division 8 of Part II (heading)

Repeal the heading, substitute:

Division 8Engagement of seamen and masters etc.

Subdivision AWork agreements

45A  Work agreements

Requirement that seaman have a work agreement

             (1)  A person commits an offence if:

                     (a)  the person is the master or owner of a ship; and

                     (b)  the master takes the ship to sea; and

                     (c)  a seaman is on board the ship; and

                     (d)  when the ship is taken to sea, a work agreement that complies with this section is not in force in relation to the seaman.

Penalty:  20 penalty units.

When a work agreement complies with this section

             (2)  A work agreement complies with this section if the work agreement is in accordance with any regulations made for the purposes of subsection (3).

Regulations about work agreements

             (3)  The regulations may prescribe matters relating to work agreements including, but not limited to, the following:

                     (a)  the content and form of work agreements (including terms and conditions about the amount of wages and paid annual leave);

                     (b)  the right of a seaman to review, and seek advice on, a work agreement before signing it;

                     (c)  the process for signing work agreements;

                     (d)  the information or documents that must be given to, or made available to, seamen in relation to work agreements and the manner in which such information or documents must be given or made available;

                     (e)  the termination of work agreements.

Definitions

             (4)  In this section:

agreement has its ordinary meaning.

seaman includes the master of a ship.

work agreement means an agreement that is made between a seaman and the owner of a ship.

Subdivision BArticles of agreement etc.

9  Item 6 of Schedule 1

Repeal the item.

10  Items 11 and 21 of Schedule 1

Repeal the items.

11  Items 61 and 62 of Schedule 1

Repeal the items, substitute:

61  After subsection 190AA(2)

Insert:

       (2AA)  The powers of a surveyor under subsection (1) extend to:

                     (a)  the inspection of a ship for the purpose of ascertaining whether the ship complies with such of the provisions of:

                              (i)  this Act, the regulations and orders; and

                             (ii)  Part VA of the Shipping Registration Act 1981;

                            relating to the working and living conditions of the seamen on board the ship and of the master of the ship as apply to the ship; and

                     (b)  requiring the production to the surveyor of any document relating to those conditions.

       (2AB)  The powers of a surveyor under subsection (1) extend to:

                     (a)  the inspection of a ship for the purpose of ascertaining whether the ship complies with section 33A of the Shipping Registration Act 1981 (which is about registration conditions for certain ships); and

                     (b)  requiring the production to the surveyor of any document relating to compliance with that section.

       (2AC)  Subsections (2), (2AA) and (2AB) do not limit subsection (1).

62  Subsection 190AA(2A)

Omit “or (2)”, substitute “, (2), (2AA) or (2AB)”.

12  At the end of Part 1 of Schedule 1

Add:

79A  Application of items that commence on 1 July 2012

(1)       The amendments made by the items of this Schedule that commence on 1 July 2012 (see the commencement table in section 2) apply, on and after that day, in relation to ships that are registered in the Australian International Shipping Register (within the meaning of the Shipping Registration Act 1981).

(2)       The amendments made by those items also apply, on and after 1 January 2013, in relation to ships that are registered in the Australian General Shipping Register (within the meaning of that Act).

 

 

 

[Minister’s second reading speech made in—

House of Representatives on 22 March 2012

Senate on 18 June 2012]

(55/12)