EXPLANATORY STATEMENT

 

Issued by the Authority of the Deputy Prime Minister and
Minister for Infrastructure, Transport and Regional Development

 

Marine Navigation Levy Act 1989

Marine Navigation Levy Regulations 2018

 

Marine Navigation Levy Collection Act 1989

Marine Navigation Levy Collection Regulations 2018

 

OUTLINE

 

The Marine Navigation Levy Regulations 1991 and the Marine Navigation Levy Collection Regulations 1990 (together referred to as the Existing Regulations) are due to sunset on 1 October 2018, in accordance with subsection 50(2) of the Legislation Act 2003.

 

The Marine Navigation Levy Regulations 2018 (the Levy Regulations) and the Marine Navigation Levy Collection Regulations 2018 (the Levy Collection Regulations), together referred to as the Regulations, will repeal and remake the Existing Regulations without significant change.

The marine navigation levy (the levy) is a cost-recovery charge imposed on certain sea-going ships to fund the Australian Maritime Safety Authority’s (AMSA) operation and maintenance of the Australian Government's coastal marine aids to the navigation network, including for heritage assets. The levy is also used to maintain relevant standards and regulations and for related vessel management and monitoring in accordance with Australia’s obligations under international conventions such as the International Convention on Safety of Life at Sea (SOLAS) and the Convention on the International Regulations for Preventing Collisions at Sea (COLREG).

Marine Navigation Levy Regulations 2018

 

The Marine Navigation Levy Act 1989 (the Levy Act) prescribes the rates of the levy in relation to a ship, in effect creating default rates for the levy (subsection 7(2) refers). Subsection 8(1) of the Levy Act provides that the Governor-General may make regulations for the purposes of subsection 7(2) of the Act.

 

The Regulations will prescribe the same rates for the marine navigation levy as those in the Existing Regulations, which are significantly lower than those in the Act. This will ensure that they remain commensurate with the expected cost to AMSA of its activities in relation to the coastal marine aids to the navigation network.

 

 

 

The levy rates will remain set at the following values:

·         23.5 cents per ton up to and including the first 5,000 tons of a ship’s tonnage;

·         12 cents per ton for each ton more than 5,000 and up to and including 20,000;

·         7 cents per ton for each ton more than 20,000 and up to and including 50,000; and

·         2.5 cents per ton for each ton more than 50,000.

 

In effect, the same stakeholders will pay the same rates of levy in the same manner as is currently the case.

 

Details of the Levy Regulations are at Attachment A.

 

Marine Navigation Levy Collection Regulations 2018

 

The Marine Navigation Levy Collection Act 1989 (the Levy Collection Act) specifies the parties required to pay the marine navigation levy, as well as the circumstances in which the levy is payable and to whom the levy may be paid. Subsection 12(1) of the Levy Collection Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The purpose of the Levy Collection Regulations is to continue to:

·         list ships which would be exempt from the marine navigation levy, as well as the levy imposed by the Marine Navigation (Regulatory Functions) Levy Act 1991;

·         provide refund and remission mechanisms and formulae for the levy;

·         provide payment methods for the levy; and

·         define key terms relating to the levy.

The Levy Collection Regulations make minor changes to the provisions in the Existing Regulations, which will:

 

·         ensure the list of exempt ships aligns with international and constitutional obligations;

·         simplify the language around the refund and remission mechanisms to ensure accessibility; and

·         update the instrument in line with contemporary drafting practices.

 

Details of the Levy Collection Regulations are at Attachment B.

 

 

 

 

 

 

 

 

Other matters

 

Limited consultation has been undertaken within government. The Deputy Prime Minister and Minister for Infrastructure, Transport and Regional Development, as the rule maker responsible for these instruments under subsection 6(1) of the Legislation Act 2003, is satisfied that this level of consultation is appropriate for the purpose of subsection 17(1) of that Act. The Regulations will not involve significant changes, and will maintain accepted cost-recovery levels commensurate with AMSA’s activity costs. The Existing Regulations have not been controversial or the subject of industry complaint.

 

The Regulations will both be legislative instruments for the purposes of the Legislation Act 2003 (the Legislation Act). The Legislation Act specifies no conditions that need to be satisfied before the power to make the instruments may be exercised.

 

The Office of Best Practice Regulation has advised that no Regulation Impact Statement (RIS), regulatory costing or certification letter is required to remake the Regulations without significant change (OBPR Reference 23699 refers).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Statement of Compatibility with Human Rights

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

Marine Navigation Levy Regulations 2018
Marine Navigation Levy Collection Regulations 2018

 

These Disallowable Legislative Instruments are compatible with the human rights and freedoms recognised and declared in the international instruments listed in Section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

OUTLINE

 

The Marine Navigation Levy Regulations 1991 and the Marine Navigation Levy Collection Regulations 1990 (together referred to as the Existing Regulations) are due to sunset on 1 October 2018, in accordance with subsection 50(2) of the Legislation Act 2003.

 

The Marine Navigation Levy Regulations 2018 (the Levy Regulations) and the Marine Navigation Levy Collection Regulations 2018 (the Levy Collection Regulations), together referred to as the Regulations, will repeal and remake the Existing Regulations without significant change.

The marine navigation levy (the levy) is a cost-recovery charge imposed on certain sea-going ships to fund the Australian Maritime Safety Authority’s (AMSA) operation and maintenance of the Australian Government's coastal marine aids to the navigation network, including for heritage assets. The levy is also used to maintain relevant standards and regulations and for related vessel management and monitoring in accordance with Australia’s obligations under international conventions such as the International Convention on Safety of Life at Sea (SOLAS) and the Convention on the International Regulations for Preventing Collisions at Sea (COLREG).

 

Marine Navigation Levy Regulations 2018

 

The Marine Navigation Levy Act 1989 (the Levy Act) prescribes the rates of the levy in relation to a ship, in effect creating default rates for the levy (subsection 7(2) refers). Subsection 8(1) of the Levy Act provides that the Governor-General may make regulations for the purposes of subsection 7(2) of the Act.

 

The Regulations will prescribe the same rates for the marine navigation levy as those the Existing Regulations, which are significantly lower than those in the Act. This will ensure that they remain commensurate with the expected cost to AMSA of its activities in relation to the coastal marine aids to the navigation network.

 

 

The levy rates will remain set at the following values:

·         23.5 cents per ton up to and including the first 5,000 tons of a ship’s tonnage;

·         12 cents per ton for each ton more than 5,000 and up to and including 20,000;

·         7 cents per ton for each ton more than 20,000 and up to and including 50,000; and

·         2.5 cents per ton for each ton more than 50,000.

 

In effect, the same stakeholders will pay the same rates of levy in the same manner as is currently the case.

 

Details of the Levy Regulations are at Attachment A.

 

Marine Navigation Levy Collection Regulations 2018

 

The Marine Navigation Levy Collection Act 1989 (the Levy Collection Act) specifies the parties required to pay the marine navigation levy, as well as the circumstances in which the levy is payable and to whom the levy may be paid. Subsection 12(1) of the Levy Collection Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The purpose of the Levy Collection Regulations is to continue to:

·         list ships which are exempt from the marine navigation levy;

·         provide refund and remission mechanisms and formulae for the levy;

·         provide payment methods for the levy; and

·         define key terms relating to the levy.

The Levy Collection Regulations make minor changes to the provisions in the Existing Regulations, which will:

 

·         ensure the list of exempt ships aligns with international and constitutional obligations;

·         simplify the language around the refund and remission mechanisms to ensure accessibility; and

·         update the instrument in line with contemporary drafting practices. 

 

Details of the Levy Collection Regulations are at Attachment B.

Human rights implications

These Disallowable Legislative Instruments engage and promote the right to the enjoyment of just and favourable conditions of work, in particular, safe and healthy working conditions, under article 7(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The Regulations may indirectly limit the right to work under article 6 of the ICESCR, as well as the right to freedom of movement under article 12 of the International Covenant on Civil and Political Rights (ICCPR), in certain circumstances.  

The imposition of the marine navigation levy is not a new activity as the levy has been collected by AMSA for some time. Owners and masters of relevant sea-going ships are aware of the levy, and by paying the charge they are implicitly accepting their compliance with the levy. Penalty provisions relevant to this levy, particularly the detention of ships, are intended to ensure timely payment of the levy.

Rights promoted by the Regulations

Article 7 (ICESCR): the right to the enjoyment of just and favourable conditions of work

Article 7(b) of the ICESCR provides that State Parties recognise the right to enjoyment of just and favourable conditions of work which ensure safe and healthy working conditions.

The Regulations engage and promote this right because they contribute to safe working conditions on and around ships. The Regulations stipulate the rates of a cost-recovery levy which funds AMSA to operate and maintain marine aids to navigation systems, as well as the maintenance of standards and monitoring activities in accordance with international obligations.

The Regulations improve the safety of these ships, making conditions for those working aboard the ships safer. This levy directly funds the maintenance of lighthouses, electronic aids to navigation, and AMSA’s implementation of Australia’s obligations under international conventions relating to maritime safety. If the levy were not paid, AMSA would be unable to deliver these services.

In this way, the Regulations promote the right to the enjoyment of just and favourable conditions of work, including safe and healthy working conditions.

Rights potentially limited by the Regulations

Article 6 (ICESCR): the right to work

Article 6 provides that State Parties recognise the right to work, which includes the right of everyone to the opportunity to gain a living by work which they freely choose or accept, and will take appropriate steps to safeguard this right.

The Regulations may indirectly limit this right in certain circumstances because they set the levy rates to be paid by certain sea-going ships. If the levy is not paid at these rates, subsection 10(1) of the Marine Navigation Levy Collection Act 1989 provides that the ship may be detained until the levy is paid.

In circumstances where a ship is detained for non-payment of the levy, this detention may limit the right to work of the master of the ship and any seafarers on board the ship, if they were unable to work until the detention was lifted. This detention may also indirectly limit the right to work of the owner of a detained ship, because their ability to collect income may be limited until appropriate levy fees were paid and the detention was lifted. However, seafarers working aboard a detained ship would typically be free to leave and to seek other employment at will.

Article 12 (ICCPR): the right to freedom of movement

Article 12 provides that everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement.

The Regulations may indirectly engage this right in the same manner as Article 6 of the ICESCR, because they set the levy rates to be paid by certain sea-going ships and if the levy is not paid at these rates, subsection 10(1) of the Marine Navigation Levy Collection Act 1989 provides that the ship may be detained until the levy is paid.

In circumstances where a ship is detained for non-payment of the levy, this detention may limit the right to freedom of movement for the master of the ship, as well as any seafarers, if they were unable to leave the ship due to the nature of their work. However, seafarers working aboard a detained ship would typically be free to leave and to seek other employment at will.

Justification of potential limitations

The potential limitations on the right to work and the right to freedom of movement are permissible as they:

a)      pursue a legitimate objective

The marine navigation levy directly funds AMSA’s operation and maintenance of marine aids to navigation, as well as the maintenance of standards and monitoring activities in accordance with international obligations. AMSA is a cost-recovered agency, and so funds its services, excluding its search and rescue function, through charges to industry. Ensuring that marine aids to navigation are in operation and are maintained appropriately is an important role of AMSA, and directly contributes to the safety and efficiency of the shipping industry by ensuring that the aids to navigation, such as lighthouses, are functional and appropriate for their purpose.

If there were widespread non-payment or late payment of the levy, AMSA would no longer receive sufficient funds for these essential functions, potentially affecting its ability to provide, and the quality of, these services. This may result in poor safety outcomes for ships and seafarers, as well as Australia not fulfilling its obligations under international conventions.

The detention penalty for non-payment described in the Marine Navigation Levy Collection Act 1989 supports these functions by allowing AMSA to ensure that all ships which are required to pay the levy do so in a timely manner.

 

Consequently, any limitation imposed by the detention penalty on the right to work and the right to freedom of movement is permissible because it pursues a legitimate objective.

b)      have a rational connection to this objective

The marine navigation levy directly funds AMSA’s operation and maintenance of marine aids to navigation for domestic commercial vessels, as well as the maintenance of standards and monitoring activities in accordance with international obligations. Timely payment of the levy is critical to ensure AMSA is sufficiently funded to perform these functions.

The detention penalty for non-payment described in the Marine Navigation Levy Collection Act 1989 deters non-payment and directly enforces the payment of this levy.

Consequently, any limitation imposed by the detention penalty on the right to work and the right to freedom of movement is permissible because it is rationally connected to a legitimate objective.

c)      are reasonable, necessary, and proportionate

The levy rates to be paid to AMSA are commensurate with AMSA’s expected service delivery costs, and are the same as those that were set by the Marine Navigation Levy Regulations 1991. These levy rates are significantly lower than the original rates prescribed by the Act and should not in practice prevent for seafarers from accessing work or from moving freely. The current levy rates have been uncontroversial and have not been the subject of industry complaints.

The detention penalty is a necessary deterrent and enforcement mechanism, and is the most reasonable way to ensure that ships comply with the levy. Ships are mobile, and if a ship were to leave Australian waters without having paid the levy it would be extremely difficult for Australian authorities to enforce payment.

Therefore, detention is the most appropriate enforcement mechanism for payment of the levy. Any limitation on the right to work and the right to freedom of movement is reasonable, and seafarers working on board a detained ship would typically be free to leave and seek other employment at will.

 

Consequently, any limitation imposed by the detention penalty on the right to work and the right to freedom of movement is permissible because it is reasonable, necessary, and proportionate.

 

Conclusion

These Disallowable Legislative Instruments are compatible with human rights as, to the extent that they limit human rights, those limitations are reasonable, necessary and proportionate, pursue a legitimate objective, and have a rational connection to this objective.

These instruments also promote human rights as they support the right to the enjoyment of just and favourable conditions of work, including the right to safe working conditions.

The Hon Michael McCormack MP
Deputy Prime Minister and Minister for Infrastructure, Transport and Regional Development

ATTACHMENT A

NOTES ON CLAUSES

 

These notes explain clauses of the Marine Navigation Levy Regulations 2018.

 

For clarity, the Marine Navigation Levy Regulations 2018 will be referred to as the Levy Regulations.

 

Section 1 – Name

 

This is a formal provision that specifies the title of this instrument is the Marine Navigation Levy Regulations 2018.

 

Section 2 – Commencement

 

This section provides that the Levy Regulations will commence on 1 October 2018, the date that the Marine Navigation Levy Regulations 1991 are scheduled to sunset in accordance with subsection 50(2) of the Legislation Act 2003.

 

Section 3 – Authority

 

This section provides that the Levy Regulations are to be made under the Marine Navigation Levy Act 1989.

 

Section 4 – Schedules

 

This section provides that each instruments specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Section 5 – Definitions

This section provides that in the Levy Regulations, ‘Act’ is defined as the Marine Navigation Levy Act 1989.

 

Section 6 – Levy rates

This section prescribes the levy rates at the following values:

 

·         23.5 cents per ton up to and including the first 5,000 tons of a ship’s tonnage;

·         12 cents per ton for each ton more than 5,000 and up to and including 20,000;

·         7 cents per ton for each ton more than 20,000 and up to and including 50,000; and

·         2.5 cents per ton for each ton more than 50,000.

In effect, the same ships will continue to pay the same rates of levy in the same manner as is currently prescribed under the Marine Navigation Levy Regulations 1991.

Schedule 1 – Repeals

This Schedule provides for the repeal of the whole instrument. That is, the Marine Navigation Levy Regulations 1991 will be repealed and replaced by these Levy Regulations.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ATTACHMENT B

NOTES ON CLAUSES

 

These notes explain clauses of the Marine Navigation Levy Collection Regulations 2018.

 

For clarity, the Marine Navigation Levy Collection Regulations 2018 will be referred to as the Levy Collection Regulations.

 

Section 1 – Name

 

This is a formal provision that specifies the title of this instrument is the Marine Navigation Levy Collection Regulations 2018.

 

Section 2 – Commencement

 

This section provides that the Levy Regulations will commence on 1 October 2018, the date that the Marine Navigation Levy Collection Regulations 1990 are scheduled to sunset in accordance with subsection 50(2) of the Legislation Act 2003.

 

Section 3 – Authority

 

This section provides that the Levy Regulations are to be made under the Marine Navigation Levy Collection Act 1989.

 

Section 4 – Schedules

 

This section provides that each instruments specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

 

Section 5 – Definitions

 

This section provides that in the Levy Collection Regulations, ‘Act’ means the Marine Navigation Levy Collection Act 1989. It also refers readers to where other terms are defined within the Levy Collection Act and the Levy Collection Regulations.

 

Section 6 – Exempt ships

This section continues to provide for some ships to be exempt from the levy. Some provisions are restructured and clarified as follows:

 

a)      A ship owned or operated by a foreign country, other than a ship being used in trade or carrying goods under freight or charter;

This provision has been updated to align with Australia’s current international obligations. As a matter of international law, sovereign immunity attaches to vessels owned and operated by a State and used in governmental, non-commercial service and to warships, which are political and military instruments of the State.

 

b)      A ship belonging to the Australian Defence Force;

c)      A ship belonging to, or requisitioned or charted by, the Commonwealth;

Exemptions under provisions (b) and (c) continue to be included for clarity only. The Commonwealth is unable to tax itself. The Act does not bind the Crown in right of the Commonwealth and does not contain ‘notional payment’ provisions to allow for payment of the levy by the Commonwealth or untaxable Commonwealth entities.

d)     A ship that is property of any kind belonging to a State;

The term ‘State’ under this provision includes the Australian Capital Territory and the Northern Territory.

e)      A ship being used for the purposes of a State or Territory or its authority, other than those used or trade or carrying goods under freight or charter;

Paragraphs (d) and (e) have been added for legal clarity. Under section 114 of the Constitution, the Commonwealth cannot ‘impose any tax on property of any kind belonging to a State’.

f)       A ship only used for fishing or searching for or taking sedentary organisms;

g)      A ship only being used in attending upon a fishing ship or a ship searching for or taking sedentary organisms;

h)      A ship other than a tug that is only carrying ballast, or only arriving at an Australian port for a purpose not involving loading cargo or taking on passengers;

i)        A recreational vessel (within the meaning of the Navigation Act 2012);

This provision has been updated to align with current legislation. The reference to ‘pleasure craft’, a term used in the now-repealed Navigation Act 1912, has been replaced by the term ‘recreational vessel’ to align with the Navigation Act 2012, which is now in force.

j)        A ship that is less than 24 metres in tonnage length;

k)      A ship only being used for a charitable purpose;

This provision has been updated to reflect contemporary drafting language and practices. The reference to ships belonging to a ‘religious missionary society’ has been replaced by ships being used for a ‘charitable purpose’ within the meaning of the Charities Act 2013 to reflect policy intent.

 

l)        A ship only being used in laying or repairing submarine cables;

m)    A hospital ship, other than ships being used in trade or carrying goods under freight or charter;

n)      A sailing ship with a tonnage (within the meaning of the Levy Act) of less than 500 tons.

 

Additional subsections clarify that in the Regulations, ‘property of any kind belonging to a State’ has the same meaning as in section 114 of the Constitution, and ‘tonnage length’ of a ship means the length of a ship for the purposes of the International Convention on Load Lines, done at London on 5 April 1966, as amended and in force for Australia on 1 October 2018.

 

They also clarify that, for the purposes of paragraph (d), the term ‘State’ includes the Australian Capital Territory and the Northern Territory.

 

Section 7 – Refund of levy

 

This section continues to provide the circumstances in which a Collector must refund an amount of the levy that has already been paid, and the formula for determining this amount.

 

For clarity and accessibility, the language around the refund mechanism for the levy has been simplified.

 

Section 8 – Remission of levy

 

This section continues to provide the circumstances in which a Collector must remit an amount of the levy to be paid, and the formula for determining this amount.

 

For clarity and accessibility, the language around the remittance of levy mechanism has been simplified.

 

Section 9 – Payment of levy

 

This section continues to provide that levy payment may be made by electronic funds transfer to a Collector. This continues to be intended as a facilitative provision, indicating how payment may, rather than must, be paid.

 

Section 10- When a ship is prevented from putting to sea

This section provides for the term ‘prevented from putting to sea’ to be defined as a ship that is:

·         wrecked, stranded or laid up for repairs; or

·         prevented from putting to sea as a result of an industrial dispute; or

·         moored in a harbour and not engaged in the ordinary employment of a merchant ship for hire or reward, including the loading and unloading of passengers or cargo.

Schedule 1 – Repeals

This item repeals the Marine Navigation Levy Collection Regulations 1990. That is, the Marine Navigation Levy Collection Regulations 1990 will be repealed and replaced by the Regulations.