AMSA MO 2013/3

Marine Order 4 (Transitional modifications) 2013

I, Graham Peachey, Chief Executive Officer of the Australian Maritime Safety Authority, make this Order under subsection 342(1) of the Navigation Act 2012.

16 May 2013

 Graham Peachey
Chief Executive Officer 

1 Name of Order

2 Commencement

3 Modification of orders

Schedule 1 Marine Order 1, issue 2

Schedule 2 Marine Orders Part 3, issue 6

Schedule 3 Marine Orders Part 6, issue 5

Schedule 4 Marine Orders Part 9, issue 6

Schedule 5 Marine Orders Part 12, issue 3

Schedule 6 Marine Orders Part 15, issue 5

Schedule 7 Marine Orders Part 16, issue 3

Schedule 8 Marine Orders Part 17, issue 6

Schedule 9 Marine Orders Part 18, issue 4

Schedule 10 Marine Orders Part 19, issue 4

Schedule 11 Marine Orders Part 21, issue 8

Schedule 12 Marine Orders Part 25, issue 7

Schedule 13 Marine Orders Part 27, issue 4

Schedule 14 Marine Order 28, issue 4

Schedule 15 Marine Orders Part 30, issue 8

Schedule 16 Marine Orders Part 31, issue 6

Schedule 17 Marine Orders Part 32, issue 3

Schedule 18 Marine Orders Part 33, issue 4

Schedule 19 Marine Orders Part 34, issue 6

Schedule 20 Marine Orders Part 35, issue 2

Schedule 21 Marine Orders Part 41, issue 10

Schedule 22 Marine Orders Part 42, issue 2

Schedule 23 Marine Orders Part 43, issue 6

Schedule 24 Marine Orders Part 44, issue 5

Schedule 25 Marine Orders Part 47, issue 3

Schedule 26 Marine Orders Part 49, issue 5

Schedule 27 Marine Orders Part 50, issue 6

Schedule 28 Marine Orders Part 51, issue 1

Schedule 29 Marine Orders Part 52, issue 2

Schedule 30 Marine Orders Part 54, issue 5

Schedule 31 Marine Orders Part 55, issue 2

Schedule 32 Marine Orders Part 56, issue 2

Schedule 33 Marine Orders Part 57, issue 3

Schedule 34 Marine Orders Part 58, issue 2

Schedule 35 Marine Order 59, issue 2

Schedule 36 Marine Order 60, issue 2

Schedule 37 Marine Order 62, issue 1

Schedule 38 Marine Order 91, issue 5

Schedule 39 Marine Orders Part 93, issue 5

Schedule 40 Marine Orders Part 94, issue 5

Schedule 41 Marine Orders Part 96, issue 2

Schedule 42 Marine Orders Part 97, issue 1

1 Name of Order

 This Order is Marine Order 4 (Transitional modifications) 2013.

2 Commencement

 (1)This Order commences on 1 July 2013.

 (2)However, for Schedules 7 and 16, Division 2 commences immediately after Division 1.

3 Modification of orders

 For subsection 343(2) of the Navigation Act 2012, each order mentioned in the title of a Schedule has effect with the modifications of the order mentioned in the Schedule.

Note 1   Marine Orders Part 11 (Substandard ships) is not supported by the Navigation Act 2012 and is not being modified. It therefore ceases to have effect on 1 July 2013. However, a new Marine Order 11 (Living and working conditions on vessels) 2013 commences on 1 July 2013. It combines the material formerly in Marine Orders Part 10 (Medical first aid on ships), Marine Orders Part 14 (Accommodation) and Marine Orders Part 53 (Employment of crews), which also are not being modified and therefore cease to have effect on 1 July 2013.

Note 2   Marine Orders Part 61 (Safe working on board ships) is also not supported by the Navigation Act 2012 and is not being modified. It therefore ceases to have effect on 1 July 2013. The effect of the order is dealt with under the Occupational Health and Safety (Maritime Industry) Act 1993.

Note 3   Provisions of some orders as in force immediately before 1 July 2013 were made under both the Navigation Act 1912 and the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 and are modified by this Order to the extent that they were made under the Navigation Act 1912.  Therefore, from 1 July 2013, the text of those provisions to the extent that they were made under the Navigation Act 1912 (and modified) will differ from the text of the provisions to the extent that they were made under the Protection of the Sea (Prevention of Pollution from Ships) Act 1983.

Note 4   The orders as modified do not constitute compilations for the Legislative Instruments Act 2003. Compilations of the modified orders are available on AMSA’s website at http://www.amsa.gov.au.

Schedule 1 Marine Order 1, issue 2

(section 3)

[1] Section 4

substitute

4 Purpose

 The purpose of this Order is:

(a) to facilitate the consistency and shortening of Marine Orders by setting out:

 (i) rules of interpretation that generally apply to all Marine Orders; and

 (ii) generic provisions that a Marine Order may adopt; and

(b) to prescribe recognised organisations; and

(c) to prescribe matters for the Navigation Act arrangements for vessels to opt in to coverage under the Navigation Act; and

(d) to provide for the enforcement of civil penalty provisions in Marine Orders.

4A Power

 4A.1Paragraph 25(2)(d) of the Navigation Act provides for regulations to prescribe matters of which AMSA must be satisfied before, by written instrument, making an opt-in declaration for a vessel.

 4A.2Subsection 26(2) of the Navigation Act provides that if AMSA is satisfied of matters prescribed by the regulations AMSA is to revoke an opt- in declaration for a vessel if requested by the owner, or any of the owners.

 4A.3Subsection 305(1) of the Navigation Act provides for regulations to provide for a person who is alleged to have contravened a civil penalty provision to pay a penalty as an alternative to civil proceedings.

 4A.4Subsection 339(1) of the Navigation Act provides for regulations to be made prescribing matters required or permitted to be prescribed or that are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 4A.5Paragraph 339(2)(o) of the Navigation Act provides for regulations to be made providing for regulations of a transitional nature arising out of the enactment of the Navigation Act or the repeal of the Navigation Act 1912.

 4A.6 Paragraph 341(3)(b) of the Navigation Act provides for regulations to be made providing for review of decisions under the regulations.

 4A.7 Subsection 342(1) of the Navigation Act provides that AMSA may, by legislative instrument, make a Marine Order with respect to any matter for which provision must or may be made by the regulations.

[2] Section 5, definition of Act

omit

[3] Section 5, definition of surveyor

substitute

Marine Order means an order made under subsection 342(1) of the Navigation Act, section 24 of the AFS Act or section 34 of the Pollution Prevention Act.

[4] Sections 6 and 7

substitute

6 Definitions

 In a Marine Order, unless otherwise provided:

AFS Act means the Protection of the Sea (Harmful Anti-fouling Systems) Act 2006.

Area Manager means the person occupying the AMSA position of:

(a) Manager, Ship Safety Division — North; or

(b) Manager, Ship Safety Division — South; or

(c) Manager, Ship Safety Division — East; or

(d) Manager, Ship Safety Division — West.

Australian fishing vessel means a fishing vessel that is registered or entitled to be registered, in Australia.

Australian General Shipping Register has the same meaning as in subsection 3(1) of the Shipping Registration Act 1981.

Australian International Shipping Register has the same meaning as in subsection 3(1) of the Shipping Registration Act 1981.

cargo vessel has the meaning given to cargo ship in Regulation 2 of Chapter 1 of SOLAS.

fishing operations means:

(a) the taking, catching or capturing of fish for trading or manufacturing purposes; and

(b) the processing or carrying of the fish that are taken, caught or captured.

fishing vessel means a vessel that:

(a) is used wholly or principally for fishing operations; and

(b) is not:

 (i) a customs vessel; or

 (ii) a government vessel; or

 (iii) a recreational vessel; or

 (iv) a domestic commercial vessel.

Note   The vessels mentioned in paragraph (b) are defined in the Navigation Act — see s 14(1) of the Act.

General Manager, Emergency Response Division means the person occupying the position of General Manager, Emergency Response Division, AMSA.

General Manager, Marine Environment Division means the person occupying the position of General Manager, Marine Environment Division, AMSA.

General Manager, Ship Safety Division means the person occupying the position of General Manager, Ship Safety Division, AMSA.

IMO means the International Maritime Organization.

length, for a vessel, has the same meaning as in the International Convention on Load Lines, 1966, as amended by the Protocol of 1988 relating to the International Convention on Load Lines, 1966.

Manager, Marine Environment Standards means the person occupying the position of Manager, Marine Environment Standards, AMSA.

Manager, Ship Inspection and Registration means the person occupying the position of Manager, Ship Inspection and Registration, AMSA.

Manager, Ship Operations and Qualifications means the person occupying the position of Manager, Ship Operations and Qualifications, AMSA.

MARPOL — see subsection 3(1) of the Pollution Prevention Act, meaning of the Convention.

national law — see section 14 of the Navigation Act, meaning of Marine Safety (Domestic Commercial Vessel) National Law.

National Standard for Commercial Vessels (or NSCV) — see section 6 of the national law, meaning of National Standard for Commercial Vessels.

natural resources means the mineral and other non-living resources of the seabed and its subsoil.

Navigation Act means the Navigation Act 2012.

offshore industry mobile unit means:

(a) a vessel or structure that is used or intended to be used wholly or primarily in, or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources by drilling the seabed or its subsoil or by obtaining substantial quantities of material from the seabed or its subsoil, with equipment that is on or forms part of the vessel or structure; or

(b) a barge or similar vessel that is used or intended to be used wholly or primarily in connection with the construction, maintenance or repair of offshore industry fixed structures.

offshore support vessel means a vessel, other than an offshore industry mobile unit, that is used or intended to be used in any operations or activities associated with, or incidental to, exploring or exploiting natural resources.

passenger vessel has the same meaning as passenger ship in Regulation 2 of Chapter I of SOLAS.

Pollution Prevention Act means the Protection of the Sea (Prevention of Pollution from Ships) Act 1983.

SOLAS has the same meaning as Safety Convention in section 14 of the Navigation Act.-

STCW Code means the Seafarers’ Training, Certification and Watchkeeping (STCW) Code as adopted by resolution of the 2010 Conference of Parties to the STCW Convention.

Note    The resolution mentioned in the definition of STCW Code forms part of a package of amendments (the Manila amendments) made by the 2010 Conference of the Parties to the STCW Convention (STCW/CONF.2/34).

structure, for paragraph (a) of the definition of offshore industry mobile unit,  means a structure that is:

(a) not a vessel; and

(b) able to float or be floated; and

(c) able to move or be moved as an entity from place to place.

USL Code means the Uniform Shipping Laws Code adopted by the Australian Transport Council established by the Council of Australian Governments (COAG) and as in force from time to time.

Note 1   Other terms used in Marine Orders have the same meaning they have in the Act or Acts under which they are made — see s 14(1) of the Navigation Act, s 3 of the AFS Act and s 3 of the Pollution Prevention Act.

Note 2   The term owner is defined in s 14(1) of the Navigation Act. It includes the person with overall general control and management of the operation of a vessel. This is equivalent to a Company defined in paragraph .25 of regulation I/1 of the STCW Convention, regulation IX-1 of SOLAS and paragraph 1.1.2 of Part A of the International Safety Management Code (ISM Code) of the IMO.

7 Recognised organisations

 For the definition of recognised organisation in section 14 of the Navigation Act, each corporation or association mentioned in Schedule 1 is prescribed.

[5] Section 10, notes 1 and 2

substitute

Note 1   Subregulation 4 of the Protection of the Sea (Prevention of Pollution from Ships) Orders Regulations 1994 provides that a person who fails to comply with a provision of an Order made under subsection 34(1) of the Act that is expressed to be a penal provision is guilty of an offence punishable by a fine not exceeding 50 penalty units. Subregulation 4(2) provides that an offence against subregulation 4(1) is an offence of strict liability. Regulation 4 of the Protection of the Sea (Prevention of Pollution from Ships) Orders Regulations 1994 provides similarly about provisions of Orders made under the Pollution Prevention Act. Section 24 of the AFS Act provides that Orders made under that Act cannot impose penalties for contravention of the Orders.

Note 2   Orders made under the Navigation Act (unlike those made under the Navigation Act  1912)  may directly impose penalties for contravention of an Order or of a notice, direction etc given under an Order — see Navigation Act, s 341(1)(a) and s 342(1). Penalties cannot be more than 50 penalty units for an individual or 250 penalty units for a body corporate — see Navigation Act, s 341(1)(a) and Crimes Act 1914, s 4B. Orders may also impose civil penalties — see Navigation Act, s 341(1)(b).

Note 3    For the value of a penalty unit — see Crimes Act 1914, s 4AA.

Note 4    For an act or omission constituting an offence under 2 or more laws — see Crimes Act 1914, s 4C.

[6] Division 4

substitute

Division 4 Approved forms

20 Approved forms

 If AMSA approves a form for a particular purpose in an Order, the approved form must be used for that purpose.

Note 1   AMSA may, in writing, approve a form for a provision of an Order made under the Navigation Act or the Pollution Prevention Act — see Navigation Act, s 338 and definition of this Act in s14(1), and Pollution Prevention Act, s3A and definition of this Act in s3(1).

Note 2   Approved forms are available on the AMSA website at http://www.amsa.gov.au/forms.

Division 5 Opting in to coverage

21 Opt-in declaration — prescribed matters

 21.1An application under subsection 25(1) of the Navigation Act for an opt-in declaration must be in the approved form.

Note 1   See section 20 for information about approved forms.

Note 2   AMSA may determine fees for processing applications — see section 47 of the AMSA Act.

 21.2For paragraph 25(2)(d) of the Navigation Act, other matters of which AMSA must be satisfied are the following:

(a) the vessel is in class with a recognised organisation and is maintained in accordance with the requirements of the recognised organisation for the class;

(b) the vessel is not any of the following:

 (i) a recreational vessel;

 (ii) a Class 1E vessel;

 (iii) a Class 2D or 2E vessel;

 (iv) a Class 3B, 3C, 3D or 3E vessel;

 (v) a Class 4C, 4D or 4E vessel;

(c) if AMSA considers that the vessel must be inspected before making a decision on the application —the vessel has been inspected by an inspector;

(d) if the vessel is a Class 1B or 2B vessel —it complies after 19 August 2013 with each requirement of the Maritime Labour Convention that applies to a vessel of its size;

(e) the vessel complies with the safety management requirements mentioned in section 7 of Marine Order 58 (International Safety Management Code) 2002 or the operation requirements that apply to the vessel under NSCV Part E — Operations.

Note 1   For paragraph (b), vessels are assigned a service category according to the nature of vessel’s use and operational areas — see clause 3.5.1 of Part B of the NSCV.

Note 2   Opt-in declarations are made by AMSA under subsection 25(2) of the Navigation Act. AMSA must be satisfied of the matters mentioned in subsection 21.1, together with other things mentioned in subsection 25(2), before making a declaration. AMSA may revoke a declaration under subsection 26(4) of the Navigation Act if no longer satisfied of these matters.

Note 3   For review by the Administrative Appeals Tribunal of decisions made under the Navigation Act — see section 313 of the Navigation Act.

22 Revocation of opt-in declaration — prescribed matters

 For subsection 26(2) of the Navigation Act, other matters of which AMSA must be satisfied are the following:

(a) the vessel has not been maintained in accordance with the requirements of the recognised organisation with which it is in class;

(b) the vessel does not, after 30 days after commencement of the opt-in declaration for the vessel, comply with the requirements of the Navigation Act, including certification requirements, that apply to a vessel of its size and class;

(c) the vessel does not comply with any other condition that AMSA has applied to the declaration.

Note   AMSA must revoke an opt-in declaration for a vessel if the owner, or any of the owners, of the vessel requests, and AMSA is satisfied of the matters mentioned in this section — see subsection 26(2) of the Navigation Act.

Division 6 Infringement notices

23 When infringement notice can be given

 If there are reasonable grounds for believing that a person has contravened a civil penalty provision, AMSA or an inspector may give to the person an infringement notice for the infringement notice penalty of one-fifth of the maximum penalty that a court could impose on the person for contravention of the provision.

24 Contents of infringement notice

 24.1The notice must include the following information:

(a) the name and address of the person given the notice;

(b) if the person is an individual — the person’s date of birth;

(c) the provision of the Navigation Act, Marine Orders or the regulations that is alleged to have been contravened;

(d) details of the alleged contravention, including:

 (i) the day and, if known, the time when it is alleged to have occurred; and

 (ii) the place where it is alleged to have occurred;

(e) the maximum penalty that may be imposed by a court for the alleged contravention;

(f) the amount payable as the infringement notice penalty;

(g) a statement that the person can apply to AMSA for an extension of time to pay under section 27;

(h) a statement that the person may pay a penalty as an alternative to civil proceedings:

 (i) before the end of 28 days after the day the notice is given; or

 (ii) if a further period is allowed by AMSA under section 27 — before the end of the further period; or

 (iii) if payment by instalments is permitted by the AMSA under section 28 — in accordance with the permission;

(i) how and where the infringement notice penalty may be paid;

(j) a statement that if, before the end of 28 days after service of the notice, the person tells AMSA, in the way set out in the notice, about any facts or matters that the person thinks should be taken into account for the contravention and asks that AMSA withdraw the notice in accordance with section 29;

 (i) time for payment of the penalty will be extended to the extent necessary for a decision to be made about those facts or matters; and

 (ii)  AMSA must consider the matters mentioned in section 29;

(k) a statement that, if the infringement notice penalty is paid in time:

 (i) the person’s liability for the contravention is discharged; and

 (ii) further proceedings cannot be taken against the person for the contravention.

(l) a statement to the effect that, if none of the things mentioned in paragraph (h) or (j) is done within the time specified, the person may be proceeded against for the alleged contravention and may be found liable for an amount up to the maximum penalty for the contravention;

(m) the name or identifying number of the person who gave the notice.

 24.2An infringement notice may contain any other information that AMSA or the inspector considers necessary.

25 Giving the notice

 25.1The notice must be given to the person within 12 months after the alleged contravention occurred.

 25.2The notice must be given by:

(a) handing the notice to the person; or

(b) mailing it to the person’s last known address; or

(c) leaving it at the person’s last known address with a person apparently over 16 years old; or

(d) if the person is a body corporate:

 (i) mailing it to the registered office of the person; or

 (ii) leaving it at the registered office of the person with a person apparently over 16 years old.

26 Time for payment of penalty

 The penalty stated in an infringement notice must be paid within:

(a) 28 days after the day when the notice is given to the recipient; or

(b) another period mentioned in this Order.

27 Extension of time to pay

 27.1On written application by a person to whom an infringement notice has been given, AMSA may grant, if satisfied that in all the circumstances it is reasonable to do so, a further period for payment of the infringement notice penalty, whether or not it is more than 28 days after the notice was given.

 27.2If application is made after 28 days after the notice was given, the application must include an explanation why the person issued the notice could not deal with the notice within that period.

 27.3AMSA must:

(a) grant or refuse a further period; and

(b) give the applicant written notice of the decision; and

(c) if the decision is a refusal — mention in the notice the reasons for refusal.

 27.4The person must pay the penalty:

(a) if a further period is granted — before the end of that period; or

(b) if the decision is a refusal — before the end of the later of:

 (i) 7 days after receiving notice of the refusal; or

 (ii) the 28 day period.

28 Payment by instalments

 28.1On written application by a person to whom an infringement notice has been given, AMSA may make an arrangement with a person to whom an infringement notice has been given (whether or not the period of 28 days after the date of giving the notice has ended) for payment of the amount of the infringement notice penalty by instalments.

 28.2AMSA must:

(a) grant or refuse to make an arrangement; and

(b) give the applicant written notice of the decision; and

(c) if the decision is a refusal — mention in the notice the reasons for refusal.

 28.3The person must pay the penalty:

(a) if an arrangement is made — in accordance with the arrangement; or

(b) if the decision is a refusal — before the end of the later of:

 (i) the 28 day period; or

 (ii) 7 days after receiving the notice of the refusal.

29 Withdrawal of infringement notice

 29.1Whether or not a notice is received under subsection 29.2, AMSA, if satisfied that in all the circumstances it is proper to do so, may withdraw an infringement notice.

 29.2Before the end of 28 days after receiving the infringement notice, the recipient may apply, in writing, to AMSA for it to be withdrawn.

 29.3Within 28 days after receiving the application, AMSA must:

(a) withdraw, or refuse to withdraw, the notice; and

(b) give the applicant written notice of the decision; and

(c) if the decision is a refusal — mention in the notice the reasons for the refusal.

 29.4In making a decision, AMSA must consider:

(a) the facts or matters mentioned in the application; and

(b) the circumstances in which the contravention of the Navigation Act mentioned in the notice is alleged to have occurred; and

(c) whether the person has been found previously to have contravened a civil penalty provision in the Navigation Act; and

(d) whether an infringement notice has previously been given to the person for an contravention of the same kind as that mentioned in the notice; and

(e) any other matter AMSA considers relevant to the decision.

 29.5If an infringement notice is withdrawn, any amount of infringement notice penalty paid under the notice must be repaid to the person who paid it.

30 Notice of refusal

 If AMSA decides to refuse to withdraw an infringement notice, notice of the decision must state:

(a) that if the amount of the infringement notice penalty is paid within 28 days after notice of the decision is given to the person, the person will not be prosecuted for the alleged contravention; and

(b) that if the amount is not paid, the person may be prosecuted for the alleged contravention.

31 Payment of penalty if infringement notice not withdrawn

 If AMSA refuses to withdraw an infringement notice, the applicant for withdrawal must pay the infringement notice penalty before the end of the 28 days after receiving notice of the refusal.

32 Effect of payment of infringement notice penalty

 32.1If a person who is given an infringement notice pays the infringement notice penalty in accordance with this Division:

(a) the person’s liability for the contravention is discharged; and

(b) further civil proceedings cannot be taken against the person for the contravention; and

(c) the person is not taken to have done the contravention.

 32.2Subsection 32.1 applies to a person who makes an arrangement to pay the infringement notice penalty by instalments, only if the person makes payments in accordance with the arrangement.

33 Admissions under subsection 29.2

 Evidence of an admission made by a person in an application under subsection 29.2 is inadmissible in proceedings against the person for the alleged contravention.

34 Matter not to be taken into account in determining penalty

 34.1This section applies if a person who is given an infringement notice:

(a) elects not to pay the infringement notice penalty; and

(b) is found by an eligible court to have contravened the civil penalty provision mentioned in the notice.

 34.2In determining the penalty to be imposed, the court must not take into account the fact that the person chose not to pay the infringement notice penalty.

35 Evidence for hearing

 35.1At the hearing of proceedings for an alleged contravention mentioned in an infringement notice, the following certificates are evidence of the facts stated in the certificate:

(a) a certificate signed by AMSA or an inspector stating that:

 (i) the notice was given to the person alleged to have done the contravention; and

 (ii) the infringement notice penalty has not been paid in accordance with this Division;

(b) a certificate signed by AMSA or an inspector and stating that the notice was withdrawn on a day mentioned in the certificate;

(c) a certificate signed by AMSA and stating that:

 (i) a further period was refused, under section 27, for payment of the infringement notice penalty; and

 (ii) the infringement notice penalty has not been paid in accordance with this Division;

(d) a certificate signed by AMSA and stating that a notice, a copy of which is attached to the certificate, was given on the day mentioned in the certificate;

(e) a certificate signed by AMSA and stating that:

 (i) for section 27, the further time mentioned in the certificate for payment of the infringement notice penalty was granted; and

 (ii) the infringement notice penalty was not paid in accordance with the notice or within the further time.

 35.2A certificate that purports to have been signed by AMSA or an inspector is taken to have been signed by that person unless the contrary has been proved.

36 Infringement notice not compulsory, etc

 Nothing in this Division is taken:

(a) to require that a person suspected of having contravened a civil penalty provision in the Navigation Act be given an infringement notice; or

(b) to affect the liability of a person to be prosecuted for an alleged contravention, if:

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

 (ii) an infringement notice is given, and withdrawn; or

(c) to limit the penalty that may be imposed by a court on a person for the contravention.

Division 7 Transitional matters

37 Certificates

 37.1For paragraph 339(2)(o) of the Navigation Act, a certificate of a kind mentioned in the table that was in force under the provision of the Navigation Act 1912 mentioned in the table immediately before the repeal of the Navigation Act 1912 has effect as if it was a certificate issued under the corresponding provision of the Navigation Act until the earlier of:

(a) the date that the certificate would have expired under the Navigation Act 1912; or

(b) if the certificate is revoked  — the date of revocation.

 37.2However, a tonnage measurement certificate issued under section 405F of the Navigation Act 1912 that is a perpetual certificate has continued effect as if it was a certificate issued under section 155 of the Navigation Act unless it is revoked.

38 Things done

 38.1For paragraph 339(2)(o) of the Navigation Act, a thing done under a provision of the Navigation Act 1912, that is of a kind mentioned in the table that was in force immediately before the repeal of the Navigation Act 1912, has effect under the corresponding provision of the Navigation Act or a Marine Order until the earlier of:

(a) the date that the thing done would have expired under the Navigation Act 1912; or

(b) if the thing done is revoked —— the date of revocation.

 38.2For paragraph 339(3)(b) of the Navigation Act, each of the following things done under the Navigation Act 1912 that was in force immediately before the repeal of the Navigation Act 1912, has effect under the Navigation Act unless it is revoked:

(a) an order under subsection 427(2) about the Uniform Shipping Laws Code;

(b) an order under subsection 427(3) about the National Standard for Commercial Vessels.

[7] Schedule 1, heading

substitute

Schedule 1 Recognised organisations

(section 7)

[8] Further amendments

Schedule 2 Marine Orders Part 3, issue 6

(section 3)

[1] Section 1

substitute

1 Name of Order

 This Order is Marine Order 3 (Seafarer qualifications) 2004.

1A Purpose

 This Order:

(a) specifies standards of competence and other conditions to be met by a person performing the duties or functions of a seafarer under the Navigation Act; and

(b) provides for seafarer certificates; and

(c) gives effect to the STCW Convention.

1B Power

 1B.1Part 2 of Chapter 2 of the Navigation Act generally provides for the regulations to provide for applications for, and dealings with, seafarer certificates.

 1B.2Section 28 of the Navigation Act provides for the regulations to provide for seafarer certificates, including giving effect to the STCW Convention.

 1B.3Subsection 31(2) provides that a seafarer certificate is subject to conditions prescribed in the regulations.

 1B.4Section 314 of the Navigation Act provides that the regulations may prescribe certain matters for certificates.

 1B.5Subsection 339(1) of the Navigation Act provides for regulations to be made prescribing matters required or permitted to be prescribed or that are necessary or convenient to be prescribed for carrying out or giving effect to the Navigation Act.

 1B.6Paragraph 340(1)(h) of the Navigation Act provides for regulations to be made giving effect to the STCW Convention.

 1B.7Subsection 342(1) of the Navigation Act provides for the making of Marine Orders for any matter for which provision must or may be made by the regulations.

[2] Section 2, heading

substitute

2 Definitions

 In this Order:

[3] Section 2, definitions of AMSA and General Manager

omit

[4] Section 2, definition of endorsement

substitute

endorsement  means an endorsement mentioned in sections D and L, other than an STCW Endorsement.

[5] Section 2, definition of International Safety Management Code

substitute

International Safety Management Code — see section 2 of Marine Order 58 (International Safety Management Code) 2002.

[6] Section 2, definitions of Manager, Navigation Act, NSCV, penal provision, STCW Code, STCW Convention and USL

omit

[7] Section 2, definition of valid, footnote 3

substitute as note to definition

Note   Marine Order 9 (Health — medical fitness) 2010 requires a person to hold a valid Certificate of Medical Fitness to serve at sea.

[8] Section 2, after definition of WIG craft

insert

Note 1   Terms used in this Order have the same meaning that they have in the Navigation Act, including:

•                      AMSA

•                      marine incident

•                      master

•                      owner

•                      seafarer

•                      STCW Convention

•                      Tonnage Convention.

Note 2   Some terms used in this Order are defined or explained in Marine Order 1

(Administration) 2011, including:

• General Manager, Ship Safety Division

• Manager, Ship Operations and Qualifications

• Navigation Act

• offshore industry mobile unit

• SOLAS

• STCW Code.

[9] Subsection 3.2

omit

[10] Sections 5 and 6

substitute

5 Review of decisions

 A decision under section 10 is taken to be a reviewable decision for section 18 of Marine Order 1 (Administration) 2011.

Note   For review of decisions by the Administrative Appeals Tribunal made under the Navigation Act — see section 313 of the Navigation Act.

6 Kinds of seafarer certificates

6.1 Seafarer certificates that may be applied for

 6.1.1For section 30(1) of the Navigation Act, a kind of seafarer certificate is a certificate that is:

(a) a certificate of a particular designation or grade that belongs to the following classes of certificate:

 (i) certificate of competency;

 (ii) certificate of proficiency (integrated rating);

 (iii) certificate of rating; or

(b) a WIG Officer Certificate; or

(c) a certificate of proficiency as ship security officer; or

(d) a certificate of proficiency in survival craft and rescue boats; or

(e) a certificate of safety training; or

(f) a certificate of recognition; or

(g) an endorsement, which may be included in a certificate.

6.2 Seafarer certificates required to be held

 6.2.1For section 35(1) of the Navigation Act, a person must hold a particular seafarer certificate for performance of duties or functions mentioned in sections D, E, F, G, H, I, J and L of this Order.

 6.2.2For section 35(1) of the Navigation Act, a person who performing specific duties or functions related to cargo or cargo equipment on tankers must hold:

(a) a certificate of competency as Master, deck officer or engineer officer; or

(b) a certificate of proficiency (integrated rating); or

(c) a certificate of rating as Able Seaman, Deck Rating or Engine Room Rating.

Note   Section 35(1) of the Navigation Act provides that a person must not perform duties or functions in relation to an Australian regulated vessel if the person does not hold particular seafarer certificate required to perform those duties or functions.

[11] Subsections 7.3, 7.4 and 7.5

substitute

 7.3An offence against subsection 7.2 is a strict liability offence.

 7.4A person is liable to a civil penalty if the person contravenes subsection 7.2.

Civil penalty: 50 penalty units.

[12] Section 8

substitute

8 Criteria for, and conditions imposed on, the issue of seafarer certificates

 For section 31 of the Navigation Act:

(a) the criteria for the issue of a seafarer’s certificate are those mentioned for the certificate in section C, D, E, F, G, H, I, J, K or L; and

(b) the conditions that may be imposed on the issue of a seafarer certificate are those mentioned for the certificate in section CA, D, E, F, G, H, I, J, K or L.

[13] After subsection 9.4

insert

9.5 Duration of endorsements

 9.5.1An endorsement as a responsible officer on tankers, mentioned in section 48, remains current for 5 years.

 9.5.2A type rating endorsement for high speed craft, mentioned in section 49, remains current for:

(a) 2 years; or

(b) a shorter period, or for a voyage or voyages, mentioned in the endorsement.

[14] Section 9, footnote 6

substitute as note at foot of subsection 9.2.1

Note   A lesser period may be appropriate, eg if the applicant intends to work for a limited period on a regulated Australian vessel.

[15] Before subsection 10.1

insert

 10.1AIf the Manager, Ship Operations and Qualifications is satisfied that an applicant has met the eligibility criteria mentioned in this Order for the revalidation of a seafarer certificate, the Manager, Ship Operations and Qualifications will revalidate that seafarer certificate accordingly.

[16] After subsection 10.3

insert

 10.3AAn endorsement as a responsible officer on tankers, mentioned in section 49, is eligible to have the endorsement revalidated if the holder:

(a)  has approved sea service, performing functions appropriate to the endorsement, of at least 3 months in total during the 5 years before the application date; or

(b) has satisfactorily completed the appropriate course of training mentioned in subsection 49.2.3 within the 12 months before the application date.

 10.3BThe holder of a type rating endorsement for high speed craft, mentioned in section 50, is eligible to have the endorsement revalidated if the holder:

(a) has approved sea service of at least 6 months within the preceding 2 years on high speed craft of the type and on the route to which the endorsement applies; or

(b) has within the year immediately before the application for revalidation satisfactorily completed an approved training program for high speed craft operation.

[17] Subsection 11.1.2

omit

(a) cancelling it; or

[18] After subsection 11.1.4

insert

 11.1.5For section 33 of the Navigation Act, the criteria for revoking a seafarer certificate are that:

(a) the holder of a seafarer certificate has demonstrated incompetence or misconduct relating to the safe navigation, management or working of a vessel; or

(b) the holder of a seafarer certificate is unable from any cause to perform properly the duties appropriate to the certificate; or

(c) a seafarer certificate was obtained by false representation.

[19] Subsection 11.3, footnote 8

substitute as note at foot of subsection 11.3

Note   In making a decision to suspend or impose restrictions on the use of a seafarer certificate under subsection 11.3, the General Manager, Ship Safety Division must take into account the degree of risk involved in allowing the holder of the certificate to continue to serve in various capacities for which the certificate could otherwise be valid.

[20] Subsection 11.5

substitute

11.5 Unlawful alteration

 For section 33 of the Navigation Act, the Manager, Ship Operations and Qualifications may revoke a seafarer certificate that has been unlawfully altered by any kind of addition, interpolation or erasure.

[21] After subsection 11.6.1

insert

11.6.1A An offence against subsection 11.6.1 is a strict liability offence.

11.6.1B A person is liable to a civil penalty if the person contravenes subsection 11.6.1.

Civil penalty: 50 penalty units.

[22] Subsection 11.7

substitute

11.7 Seafarer certificates containing factual errors

 For section 33 of the Navigation Act, the Manager, Ship Operations and Qualifications may revoke a seafarer certificate that contains factual errors.

[23] Subsection 11.8.1

substitute

 11.8.1The Manager, Ship Operations and Qualifications may issue a replacement certificate if:

(a) satisfied that a certificate has been lost, stolen, damaged or destroyed; or

(b) it has been revoked under subsection 11.5 or 11.7.

[24] After subsection 11.8.2

insert

 11.8.3An offence against subsection 11.8.2 is a strict liability offence.

 11.8.4A person is liable to a civil penalty if the person contravenes subsection 11.8.2.

Civil penalty: 50 penalty units.

[25] After subsection 11.8

insert

11.9 Return of revoked seafarer certificates

 11.9.1If a seafarer certificate has been revoked under subsection 11.5 or 11.7, the holder of the certificate must arrange for it to be delivered to an AMSA office within 21 days after being notified that the certificate has been revoked.

Penalty: 50 penalty units.

 11.9.1An offence against subsection 11.9.1 is a strict liability offence.

 11.9.2A person is liable to a civil penalty if the person contravenes subsection 11.9.1.

Civil penalty: 50 penalty units.

[26] After subsection 16.6

insert

16A Requirements for approved courses and oral examinations

 16A.1If a person must complete an approved course before being issued a seafarer certificate, the course must have been completed:

(a) if the person provides proof of continuity of sea service since completion of the course that is at least equivalent to the requirements for revalidation mentioned in subparagraph 10.1(a)(i) — within 10 years before the certificate is issued; or

(b) in any other case — within 5 years before the certificate is issued.

 16A.2If a person must pass an oral examination before being issued a seafarer certificate, the examination must be passed, unless the Manager, Ship Operations and Qualifications determines otherwise:

(a) when all other eligibility criteria have been met; and

(b) within the 12 months before the certificate is issued.

 16A.3If the examiner considers that a person is unable to meet the standard required to pass the oral examination because the person lacks sufficient practical knowledge, the person cannot be re-examined for a period, determined by the examiner as reasonably required for the person to gain the practical knowledge, of up to 6 months.

[27] Before section 17

insert

Section CA Conditions for particular kinds of seafarer certificates

[28] Subsections 17.1, 17.2 and 17.3

substitute

 The holder of a seafarer certificate that is a certificate of rating as Able Seaman, Deck Rating or Engine Room Rating must have evidence of satisfactorily completing a tanker familiarisation course that complies with paragraphs 1 to 7 of section A-V/1 of the STCW Code if undertaking specific duties or functions related to cargo or cargo equipment on tankers.

 [29] Subsection 18.1.1

substitute

 18.1.1A seafarer certificate is subject to the condition that the holder of the certificate must have evidence of satisfactorily completing the training mentioned in subsections 18.1.2 to 18.1.6 if undertaking duties to assist passengers in emergency situations on board a passenger vessel (other than a ro-ro passenger vessel).

[30] Subsection 18.1.4, footnote 9

substitute as note at foot of subsection 18.1.4

Note  For this Order, seafarers who have not completed the appropriate safety training are taken to be passengers.

[31] Subsection 18.2.1

substitute

 18.2.1A seafarer certificate is subject to the condition that the holder of the certificate must have evidence of satisfactorily completing the training mentioned in subsections 18.2.2 to 18.2.6 if undertaking duties to assist passengers in emergency situations on board a ro-ro passenger vessel.

[32] Sections 19 to 22

substitute

19 GMDSS General Operators Certificate

 If a person is required to hold a valid GMDSS General Operators Certificate for the issue or revalidation of a seafarer certificate mentioned in Section D, it is a condition that the GMDSS General Operators Certificate be valid for the term of the seafarer certificate.

[33] Section 23

substitute

23 Watchkeeping

 23.1A person who takes charge of a navigational watch must hold a valid certificate of competency or certificate or recognition permitting the watchkeeping duties in accordance with section 24.

 23.2A person who holds a seafarer certificate in order to perform watchkeeping duties in accordance with subsection 24.1 must also hold a current certificate of medical fitness for the deck department.

[34] Subsection 24.1

substitute text before Table 1

24.1 Grades of certificate and duties

 Subject to any specific requirement of this Order, a person who performs the duties mentioned in an item in Table 1 must hold a certificate of competency or an equivalent certificate of recognition of a grade mentioned in Table 1 for the item.

Note   Some duties, or service on some vessels, require additional training or endorsements.

[35] Subsections 26.7

substitute

 26.7Service performed on offshore industry mobile units will not be accepted as qualifying sea service.

[36] Sections 28 and 29

omit

[37] Section 30

substitute

30 Watchkeeping

 30.1A person who takes charge of an engine room watch must hold a valid certificate of competency or an equivalent certificate of recognition permitting the watchkeeping duties in accordance with section 31.

 30.2A person who holds a seafarer certificate in order to perform engine room watch duty in accordance with section 31 must also hold a current certificate of medical fitness for the engine department.

[38] Subsection 31.3

omit

[39] Subsection 32.4, footnote 14

substitute as note at foot of subsection 32.4

Note   Generally, the certificates mentioned in subsection 32.4 are issued under the Marine Safety (Domestic Commercial Vessel) National Law Act 2012.

[40] Section 36

substitute

36 Watchkeeping

 36.1A person who performs duties as part of a navigational watch must hold:

(a) a valid certificate of proficiency (integrated rating); or

(b) a valid certificate of rating as Able Seaman or Deck Rating; or

(c) a valid certificate of safety training, together with documentary evidence to the satisfaction of the Master that the person is competent to form part of a navigational watch; or

(d)  a valid certificate of recognition equivalent to a certificate mentioned in paragraph (a), (b) or (c).

 36.2A person who performs duties as part of an engine room watch must hold:

(a) a valid certificate of proficiency (integrated rating); or

(b) a valid certificate of rating as Engine Room Rating; or

(c) a valid certificate of safety training, together with documentary evidence to the satisfaction of the Chief Engineer that the person is competent to form part of an engine room watch; or

(d)  a valid certificate of recognition equivalent to a certificate mentioned in paragraph (a), (b) or (c).

 36.3A person who holds a seafarer certificate in order to perform watchkeeping duties in accordance with subsections 36.1 and 36.2 must also hold a current certificate of medical fitness applicable to the duties for which the seafarer certificate is to be used.

[41] Subsection 37.1

substitute text before Table

37.1 Grades of certificate and duties

 Subject to any specific requirement of this Order, a person who performs the duties mentioned in column 2 of Table 5 must hold a seafarer certificate or an equivalent certificate of recognition mentioned in column 1 of Table 5.

Note   Some duties, or service on some ships, require additional training and/or endorsements.

[42] Subsection 37.1, Table 5, definition of designated ship, footnote 17

substitute as note at foot of subsection 37.1

Note   The Manager, Ship Operations and Qualifications will not consider the suitability of a vessel unless the vessel is recommended for that purpose by the owner and by a seafarers union.

[43] Before section 43

insert

43A Requirement for certificate of proficiency as ship security officer

 A person who performs the duties or functions of a ship security officer must hold a certificate of proficiency as a ship security officer.

[44] Section 44

omit

[45] After Section H

insert

Section I Specific requirements for the issue of certificate of proficiency in survival craft and rescue boats

45.1 Requirement for certificate of proficiency in survival craft and rescue boats

 A person who takes charge of a survival craft or rescue boat, other than a fast rescue boat, must hold:

(a) a certificate of competency, certificate of recognition, certificate of proficiency (integrated rating) or certificate of rating; or

(b) a certificate of proficiency in survival craft and rescue boats other than fast rescue boats issued in accordance with subsection 45.2.

45.2 Eligibility criteria for certificate of proficiency in survival craft and rescue boats

 A person is eligible to be issued with a certificate of proficiency in survival craft and rescue boats other than fast rescue boats if the person:

(a) is at least18; and

(b) has completed at least 6 months sea service on vessels carrying SOLAS survival equipment; and

(c) has satisfactorily completed an approved program of training that complies with  paragraphs 1 to 4 of section A-VI/2 of the STCW Code.

45.3 Requirement for certificate of proficiency in fast rescue boats

 A person who takes charge of a fast rescue boat must hold a certificate of proficiency in fast rescue boats issued in accordance with subsection 45.4.

45.4 Eligibility criteria for certificate of proficiency in fast rescue boats

 A person is eligible to be issued with a certificate of proficiency in fast rescue boats if that person:

(a) holds a certificate of proficiency in survival craft and rescue boats other than fast rescue boats; and

(b) has satisfactorily completed an approved program of training that complies with  paragraphs 5 to 8 of section A-VI/2 of the STCW Code.

Section J Certificate of safety training

46.1 Requirement for certificate of safety training

 A person who does not hold a certificate of competency, a certificate of recognition, a certificate of proficiency (integrated rating) or a certificate of rating and is engaged in a capacity on board a vessel as part of the vessel’s complement with designated safety or pollution prevention duties must hold a certificate of safety training.

46.2 Eligibility criteria for certificate of safety training

 46.2.1A person is eligible to be issued with a certificate of safety training if the person:

(a) is at least 16; and

(b) has satisfactorily completed an approved training course that complies with the training and assessment standards specified in paragraph 2 of section A-VI/1 of the STCW Code.

 46.2.2If the Manager, Ship Operations and Qualifications is satisfied that circumstances are such that it would be unreasonable or impracticable to require a person to comply fully with paragraph 46.2.1(b), the person may be issued with a certificate of safety training for voyages, and subject to conditions, that the Manager, Ship Operations and Qualification determines.

Section K Certificates of recognition

47 Recognition of certificates issued by a foreign country

47.1 Certificate of recognition – eligibility criteria

 A person is eligible to be issued with a certificate of recognition if the person:

(a) holds a current certificate of medical fitness; and

(b) holds a certificate issued by a marine administration in a country other than Australia that:

 (i) has been approved as having training and certification standards in accordance with the STCW Convention; and

 (ii) for a certificate for deck or engineer officer duties — has an agreement with Australia about the recognition of the other country’s certificates; and

(c) produces evidence to the satisfaction of the Manager, Ship Operations and Qualification that:

 (i) the certificate mentioned in paragraph (b) was issued in accordance with the STCW Convention and is equivalent in grade to the grade of certificate of recognition applied for; and

 (ii) the person has completed practical training and short courses equivalent to that required for the issue of an equivalent certificate of competency; and

 (iii) the person has completed qualifying sea service equivalent to that required for the issue of an equivalent certificate of competency; and

(d) for a certificate for deck or engineer officer duties — has passed an oral examination appropriate for the grade of certificate conducted by an examiner, including knowledge of Australian maritime legislation; and

(e) for a certificate for deck officer duties — holds a valid GMDSS General Operators Certificate; and

(f) is an Australian or New Zealand citizen, a permanent resident of Australia or produces evidence that he or she is to be employed in a regulated Australian vessel.

Note   An application for a certificate of recognition will be accepted as a skills assessment from a prospective migrant before arrival in Australia if evidence of approval for migration is produced. However, a certificate will not be issued until the applicant takes up residence in Australia.

47.2 Restricted certificate of recognition – eligibility criteria

 A person is eligible to be issued with a certificate of recognition restricted to duties, and for a period, determined by the Manager, Ship Operations and Qualifications if:

(a) the person is required to perform duties on a regulated Australian vessel in particular circumstances or for a particular time; and

(b) the person is not eligible under subsection 47.1 for the issue of a certificate of recognition; and

(c) the Manager, Ship Operations and Qualification is satisfied that the person holds qualifications that are adequate for the performance of those duties in the particular circumstances or for the particular time.

48 Recognition of national law certificates

 48.1 If satisfied that the holder of a valid certificate issued under the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 meets the requirements of this Order for the grade of certificate, the Manager, Ship Operations and Qualifications is to certify that by issuing an appropriate document to accompany the certificate.

 48.2 The certificate issued is to be recognised as a certificate of competency corresponding to the qualification mentioned in column 2 of an item in Table 3 if it:

(a) was issued, renewed, endorsed or recognised to permit the holder to perform duties on a vessel of a size and in an operational area identified with an asterisk in column 1 of the item; and

(b) is certified in accordance with subsection 48.1.

 48.3 If the certificate is subject to conditions or limitations on its use, its recognition under subsection 48.2 is subject to the same conditions or limitations.

Section L Endorsements

49 Tanker endorsement

49.1 Requirement for tanker endorsement

 49.1.1 A person who performs duties and functions as a responsible officer on an oil tanker, a chemical tanker or a liquefied gas tanker must hold a certificate of competency or certificate of recognition bearing an endorsement.

 49.1.2In subsection 49.1:

responsible officer means Master, Chief Mate, Chief Engineer, First Engineer or any other seafarer on operational duty in the cargo control room or any other operational control position and with the immediate responsibility for loading, discharging, care in transit or other handling of cargo.

49.2 Eligibility criteria for tanker endorsement

 49.2.1A person is eligible to be issued with an endorsement mentioned in subsection 49.1 if the person has:

 (a) shipboard service requirements mentioned in subsection 49.2.2; and

 (b) satisfactorily completed the approved courses of training mentioned in subsection 49.2.3.

 49.2.2For subparagraph 49.2.1(a), the shipboard service requirements are:

(a) 6 months shipboard service in the previous 5 years in connection with cargo handling duties on an oil tanker, a chemical tanker or a liquefied gas tanker, as appropriate for the kind of endorsement, or at least 3 months of that service including experience of 6 loads and 6 discharges; or

(b) approved shipboard training in cargo handling duties on an oil tanker, chemical tanker or liquefied gas tanker, as appropriate for the kind of endorsement, in the previous 5 years; or

(c) other service that the Manager, Ship Operations and Qualifications determines to be equivalent to that mentioned in paragraph (a) or (b).

 49.2.3For subparagraph 49.2.1(b), the courses of training are:

(a) for an oil tanker — a course of training that meets the requirements of paragraphs 9 to 14 of section A-V/1 of the STCW Code; and

(b) for a chemical tanker — a course of training that meets the requirements of paragraphs 16 to 21 of section A-V/1 of the STCW Code; and

(c) for a liquefied gas tanker — a course of training that meets the requirements of paragraphs 23 to 34 of section A-V/1 of the STCW Code.

 49.2.4An endorsement is subject to the condition that the person must be capable of carrying out the duties as a responsible officer without supervision.

50 High speed craft endorsement

50.1 Requirement for type rating endorsement for high speed craft

 A person who performs duties and functions as Master, Chief Mate, or Watchkeeper (Deck) on a high speed craft must hold:

(a) a certificate of competency or certificate of recognition for the deck officer duties; and

(b) a type rating endorsement appropriate to that type of high speed craft on that route.

50.2 Eligibility criteria for type rating endorsement for high speed craft

 A type rating endorsement may be issued to a person for a high speed craft for a route if the person:

(a) holds a certificate of competency or certificate of recognition for the deck officer duties; and

(a) has satisfactorily completed approved high speed craft training, relevant to the type of craft and the route, that meets the requirements of paragraphs 18.3.3.1 to 18.3.3.12 of the  International Code of Safety for High Speed Craft, adopted by IMO Resolution MSC.97(73); and

(b) has practical experience and familiarisation training to the satisfaction of the Manager, Ship Operations and Qualifications.

51 Sailing vessel endorsement

51.1 Requirement for sailing vessel endorsement

 51.1.1 A person who performs the functions or duties as a master on a square rig sailing vessel must hold a certificate of competency or certificate of recognition for deck officer duties with an endorsement for square rig sailing vessels.

 51.1.2 A person who performs the functions or duties as a master on a fore and aft rig sailing vessel must hold a certificate of competency or certificate of recognition for deck officer duties with an endorsement for square rig, or for fore and aft rig, sailing vessels.

51.2 Eligibility criteria for sailing vessel endorsement

 51.2.1 A certificate may be endorsed for service as a master on a sailing vessel if the holder:

(a) has completed an approved course, including assessment, in knowledge of sailing vessels; and

(b) for square rig vessels — holds a Nautical Institute Square Rig Sailing Ship Certificate; and

(c) for fore and aft rig vessels only — holds Yachting Australia Ocean Going Certificate, endorsed ‘Offshore Instructor’; and

(d) has served as a deck officer, on a sailing vessel of the type for which the endorsement is required, for at least 12 months, or for at least 6 months and produces testimonials from the master of the vessel confirming that the holder was assessed on board vessel and found competent to serve as master.

 51.2.2 The Manager, Ship Operations and Qualifications may accept alternative evidence of knowledge and experience of sailing vessels to meet the requirements of subsection 51.2.1.

[46] Other amendments

 [47] Further amendments — definitions

 Each definition in section 2 (other than the definition of International Safety Management Code is amended by:

(a) for definitions other than the definition of WIG craft  — omitting the concluding semi-colon and inserting a full stop; and

(b) formatting the defined term in bold italic.

[48] Further amendments — footnotes

Note   Footnotes not mentioned in this instrument are omitted as a consequence of the text to which they relate being omitted.

Schedule 3 Marine Orders Part 6, issue 5

(section 3)

 [1]  Section 1

substitute

1 Name of Order

 This Order is Marine Order 6 (Marine radio qualifications) 2000.

2 Purpose  

 This Order:

(a) gives effect to Regulation 16 of Chapter IV of SOLAS which provides that every ship must carry personnel qualified for distress and safety radio communication to the satisfaction of the Administration; and

(b) gives effect to Regulation IV/2 of Chapter IV of the STCW Convention which requires that every person in charge of or performing radio duties on a ship that is required to participate in the GMDSS must hold an appropriate certificate related to the GMDSS; and

(c) provides for certification requirements for persons operating radio installations, radio navigational aids and communication equipment in a vessel.

3 Power

 3.1Sections 28 to 33 and 40 of the Navigation Act provide for the making of regulations for seafarer certificates.

 3.2Subsection 28(2) and paragraph 340(1)(h) of the Navigation Act provide that regulations may give effect to the STCW Convention.

 3.3Section 314 provides that the regulations may prescribe certain matters for certificates.

 3.4Subsection 339(1) of the Navigation Act provides for regulations to be made prescribing matters required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 3.5Paragraph 340(1)(a) of the Navigation Act provides that the regulations may give effect to SOLAS.

 3.6Subsection 342(1) of the Navigation Act provides for the making of Marine Orders for any matter for which provision must or may be made by the regulations.

[2]  Section 2, heading

substitute

4 Definitions

 In this Order:

[3]  Section 2, definitions of approved and AMSA

substitute

appropriate certificate means a certificate that:

(a) is issued in a country other than Australia; and

(b) permits the operation of radio installations on a ship; and

(c) the Manager is satisfied is equivalent to a GMDSS certificate.

approved means approved in writing by the Manager, Ship Operations and Qualifications.

[4]  Section 2, definitions of Certificate of Recognition, General Manager, GMDSS certificate and GMDSS ship

substitute

certificate of recognition means a certificate issued under the Act and mentioned in section 9.

fully fitted, for GMDSS equipment, means that the equipment satisfies the functional requirements of:

(a) for a vessel to which SOLAS applies — regulation 4 of Chapter IV of SOLAS; or

(b) for a vessel to which SOLAS does not apply — subsection 7.2 of Marine Order 27 (Radio equipment) 2009.

GMDSS certificate means a certificate issued under the Act and mentioned in section 8.

[5]  Section 2, definitions of Manager, the Radio Regulations, the STCW Code, the STCW Convention, surveyor and valid

substitute

 Radio Regulations has the same meaning as in Regulation 2.11 of Chapter IV of SOLAS.

Note   The text of the Radio Regulations is available at the International Telecommunication Union website: http://www.itu.int.

valid, for a certificate, means a certificate that:

(a) is current; and

(b) is not revoked or suspended; and

(c) bears the signature of the holder.

Note 1   Some terms used in this Order are defined in Marine Order 1 (Administration) 2011, including:

• Manager, Ship Operations and Qualifications
• Navigation Act
• SOLAS
• STCW Code.

Note 2   Other terms used in this Order are defined in the Navigation Act, including:

• AMSA
• regulated Australian vessel
• seafarer certificate
• STCW Convention.

[6]  Sections 3 to 6

substitute

5 Application

 This Order applies to a person who:

(a) operates or intends to operate the radio installation of a regulated Australian vessel; or

(b) holds a GMDSS certificate.

6 Exemptions

 6.1 A person may apply, in accordance with the application process set out in Marine Order 1 (Administration) 2011, for an exemption from a requirement of this Order.

 6.2  The decision maker for the application is the Manager, Ship Operations and Qualifications.

 6.3  The Manager, Ship Operations and Qualifications may give an exemption only if he or she is satisfied that giving the exemption would not contravene SOLAS or SCTW.

Note   Marine Order 1 (Administration) 2011 deals with the following matters about exemptions and equivalents:

 making an application

 seeking further information about an application

 the time allowed for consideration of an application

 imposing conditions on approval of an application

 notification of a decision on an application

 review of decisions.

[7]  Subsection 7.1

omit

 issued in a country other than Australia

[8]  Subsection 7.2

substitute

 7.2For subsection 30(1) of the Navigation Act, a GMDSS certificate and a certificate of recognition are seafarer certificates.

Note   It is an offence under sections 35 and 36 of the Navigation Act for a person to perform, or for the master to allow another person to perform, duties or functions without a seafarer certificate if the regulations require a particular seafarer certificate for the performance of those duties or functions.

[9]  Sections 8 and 9

substitute

8 GMDSS certificates — criteria for issue

 8.1.For paragraph 31(1)(b) of the Navigation Act, the criteria for the issue of a GMDSS certificate are that:

(a) the applicant is at least 18 years; and

(b) the Manager, Ship Operations and Qualifications is satisfied that the applicant:

 (i) has, in the 12 months before the application, satisfactorily completed an approved course that meets the standard of competence mentioned in section A-IV/2 of the STCW Code; or

 (ii) was issued with a certificate equivalent to a GMDSS certificate by the Department of Transport and Communications, the Spectrum Management Agency or the Australian Communications Authority and meets the requirements mentioned in section 17 for revalidation of a GMDSS certificate or a certificate of recognition.

 8.2However, the Manager, Ship Operations and Qualifications may refuse to issue a GMDSS certificate to a person who has previously held a GMDSS certificate that was varied, suspended or revoked.

9 Certificates of recognition — criteria for issue

 9.1For paragraph 31(1)(b) of the Navigation Act, the criteria for the issue of a certificate of recognition are that:

(a) the applicant is at least 18 years; and

(b) the applicant holds an appropriate certificate ; and

(c) Australia has an agreement in place for mutual recognition of GMDSS certificates with the country that issued the appropriate certificate; or

(d) if Australia has no agreement of the kind mentioned in paragraph (c) — the applicant has undergone a formal assessment or completed additional training approved by the Manager, Ship Operations and Qualifications.

 9.2However, the Manager, Ship Operations and Qualifications may refuse to issue a certificate of recognition to a person whose appropriate certificate has been varied, suspended or revoked.

10 Certificates — application

 For subsection 30(2) of the Navigation Act, an application for a GMDSS certificate or a certificate of recognition must:

(a) be in writing; and

(b) mention the seafarer certificate applied for; and

(c) include details of how the applicant satisfies the criteria for issue of the certificate.

Note   If a form is approved for the application, the approved form must be used and is available on the AMSA website at http://www.amsa.gov.au — see Marine Order 1 (Administration) 2011.

11 Certificates — criteria for variation

 11.1For section 32 of the Navigation Act, the criteria for variation of a GMDSS certificate or a certificate of recognition are that the holder:

(a)  applies in writing to the Manager, Ship Operations and Qualifications, stating the nature of the variation sought; and

(b) is complying with the conditions of the certificate; and

(c) undertakes any additional training approved by the Manager, Ship Operations and Qualifications.

 11.2The Manager, Ship Operations and Qualifications may also vary a GMDSS certificate or a certificate of recognition without an application, by imposing restrictions on the use of the certificate, if any of the grounds mentioned in section 12 is established.

12 Certificates — criteria for revocation

 For section 33 of the Navigation Act, the criteria for revocation of a GMDSS certificate or a certificate of recognition are that the holder:

(a) has provided false or misleading information in the application for the certificate; or

(b) has contravened, or is contravening, a condition of the certificate; or

(c) has demonstrated incompetence or misconduct in navigation, management or working of a vessel; or

(d) cannot properly perform the duties the person is permitted to perform under the certificate.

13 Suspension of certificates

 13.1For paragraph 314(5)(b) of the Navigation Act, the Manager, Ship Operations and Qualifications may suspend a GMDSS certificate or a certificate of recognition if any of the grounds mentioned in section 12 is established.

 13.2If a GMDSS certificate or a certificate of recognition is suspended, it is not in force during the period of suspension.

 13.3A certificate may be suspended:

(a) for a stated period; or

(b) until a stated event happens.

14 Procedures required for revocation, suspension or variation

 The Manager, Ship Operations and Qualifications may revoke, suspend or vary a certificate by imposing restrictions on the use of the certificate only if:

(a) the holder has been told that action against the certificate is proposed, and has been given reasons for the proposed action; and

(b) the holder has been given copies of any documents that the Manager, Ship Operations and Qualifications will be using to make his or her decision; and

(c) the holder has been allowed at least 28 days to make submissions, which need not be in writing, about the proposed action; and

(d) the Manager, Ship Operations and Qualifications has considered any submissions made by the holder.

15 Return of revoked or suspended certificates

 15.1For section 40 and paragraph 314(5)(d) of the Navigation Act, a person who receives notice of a revoked or suspended GMDSS certificate or certificate of recognition must return the certificate to the Manager, Ship Operations and Qualifications within 14 days after receiving notice of the revocation or suspension.

Penalty 50 penalty units.

 15.2An offence against subsection 15.1 is a strict liability offence.

 15.3A person is liable to a civil penalty if the person contravenes subsection 15.1.

16 Duration of certificates

 16.1A GMDSS certificate:

(a) comes into force on the day it is issued; and

(b) expires on the earliest of the following:

 (i) the day determined by the Manager, Ship Operations and Qualifications;

 (ii) the day 5 years after it is issued;

 (ii) when it is revoked.

 16.2A certificate of recognition:

(a) comes into force on the day it is issued; and

(b) expires on the earliest of the following:

 (i) the day determined by the Manager, Ship Operations and Qualifications;

 (ii) the expiry date of the GMDSS certificate on which the certificate of recognition is based;

 (ii) when it is revoked.

17 Renewal of certificates

 17.1For paragraph 314(5)(a) of the Navigation Act, an application to renew a GMDSS certificate or a certificate of recognition must:

(a) be in writing; and

(b) mention the certificate sought to be renewed; and

(c) include evidence of the applicant’s relevant service; and

(d) include any other documents that the Manager, Ship Operations and Qualifications considers necessary for assessing the application.

Note   If a form is approved for the renewal application, the approved form must be used and is available on the AMSA website at http://www.amsa.gov.au — see Marine Order 1 (Administration) 2011.

 17.2The Manager, Ship Operations and Qualifications may renew a GMDSS certificate or a certificate of recognition for a stated period of up to 5 years if the holder:

(a) has maintained a radio watch as a master or an officer of the watch in a seagoing ship fully fitted with GMDSS equipment for at least 12 months in the 5 years before applying for renewal; or

(b) has performed functions, relating to the category of GMDSS Certificate held by the person, that the Manager, Ship Operations and Qualifications considers to be at least equivalent to those mentioned in paragraph (a); or

(c) has successfully completed training approved by the Manager, Ship Operations and Qualifications.

18 Lost, stolen or destroyed certificates

 18.1If a GMDSS certificate is lost, stolen or destroyed, the holder must tell the Manager, Ship Operations and Qualifications within 14 days.

Penalty: 50 penalty units.

 18.2An offence against subsection 18.1 is a strict liability offence.

 18.3A person is liable to a civil penalty if the person contravenes subsection 18.1.

 18.4If a lost or stolen GMDSS certificate is subsequently recovered, it must be given as soon as practicable to the Manager, Ship Operations and Qualifications.

 18.5The Manager, Ship Operations and Qualifications may issue a new GMDSS certificate to replace a certificate that has been lost, stolen or destroyed.

Note   A certificate issued by the Department of Transport and Communications, the Spectrum Management Agency or the Australian Communications Authority can only be replaced by the Australian Communications and Media Authority (ACMA). If necessary, the Manager, Ship Operations and Qualifications will send the certificate to ACMA for replacing.

[10] Further amendment — definitions

 The definition of holder in section 2 is amended by:

(a) omitting the concluding semi-colon and inserting a full stop; and

(b) formatting the defined term in bold italic.

[11] Further amendment

Schedule 4 Marine Orders Part 9, issue 6

(section 3)

[1] Before section 1

insert

1A Name of Order

 This Order is Marine Order 9 (Health — medical fitness) 2010.

[2] Subsection 1.1

substitute

1.1 Purpose

 This Order:

(a) for subsection 29(2) of the Navigation Act — prescribes matters relating to the health of persons performing, or intending to perform, the duties of a seafarer; and

(b) for subsection 65(2) of the Navigation Act — provides for the medical examination of, and the issue of certificates of fitness to, seafarers and persons proposing to engage in employment as seafarers; and

(c) for paragraph 164(2)(a) of the Navigation Act — provides for the medical fitness of licensed pilots; and

(d) gives effect to regulation I/9 of the STCW Convention and section B-I/9 of the STCW Code.

[3] Subsection 1.2.1

substitute

 1.2.1Paragraph 164(2)(a) of the Navigation Act provides for regulations to make provision for conditions, including conditions as to medical fitness, relating to the licensing of pilots under the Act.

[4] Sections 2 to 7

substitute

2 Definitions

 In this Order:

applicant means a person who is examined in accordance with subsection 8.2.

Certificate of Medical Fitness means a Certificate of Medical Fitness issued in accordance with this Order and that contains at least the information mentioned in Schedule 2.

holder, of a Certificate of Medical Fitness, means the person identified as holder by the certificate.

Medical Examination Guidelines means the Guidelines for the medical examination of seafarers and licensed pilots, obtainable from AMSA’s website at http://www.amsa.gov.au.

medical inspector means a person appointed as a medical inspector under section 8A.

relevant vessel — see section 3.

valid, for a Certificate of Medical Fitness, means a certificate that is in force and that has not been cancelled.

Note 1   Some terms used in this Order are defined in Marine Order 1 (Administration) 2011, including:

• General Manager, Ship Safety Division
• Manager, Ship Inspection and Registration
• Manager, Ship Operations and Qualifications
• Navigation Act
• SOLAS
• STCW Code.

Note 2   Other terms used in this Order are defined in the Navigation Act, including:

• AMSA
• inspector
• licensed pilot
• master
• seafarer
• STCW Convention.

Note 3   A sail trainee is a passenger — see Marine Order 52 (Sailing vessels) 1999.

3 Meaning of relevant vessel

 For the Order, a relevant vessel is:

(a) a regulated Australian vessel; or

(b) a vessel that, but for paragraph 15(1)(c) of the Navigation Act, would be a regulated Australian vessel, for which most of the crew are residents of Australia and that is operated by any of the following (whether or not in association with anyone else):

 (i) a person who is a resident of, or has his or her principal place of business in, Australia;

 (ii) a company or association that is incorporated, or has its principal place of business, in Australia.

4 Application

 This Order applies to:

(a) a person employed, or proposing to engage in employment, on a relevant vessel; and

(b) a person performing, or intending to perform, the duties of a licensed pilot; and

(c) a person who employs, or proposes to employ, a person mentioned in paragraph (a) or (b); and

(d) an applicant for the issue or revalidation of a certificate under Marine Order 3 (Seagoing qualifications) 2004.

5 Review of decisions

 A decision under this Order is taken to be a reviewable decision for section 18 of Marine Order 1 (Administration) 2011.

6 Requirement to be medically fit

 6.1A person may perform duties as a seafarer on a relevant vessel only if person is medically fit to perform the duties.

Penalty: 50 penalty units.

 6.2An offence against subsection 6.1 is a strict liability offence.

 6.3A person is liable to a civil penalty if the person contravenes subsection 6.1.

Civil penalty: 50 penalty units.

 6.4The owner of a relevant vessel may take a person into employment to perform duties as a seafarer only if the person is medically fit to perform the duties.

Penalty: 50 penalty units.

 6.5An offence against subsection 6.4 is a strict liability offence.

 6.6A person is liable to a civil penalty if the person contravenes subsection 6.4.

Civil penalty: 50 penalty units.

 6.7A person may perform the duties of a licensed pilot only if the person is medically fit to perform the duties.

Penalty: 50 penalty units.

 6.8An offence against subsection 6.7 is a strict liability offence.

 6.9A person is liable to a civil penalty if the person contravenes subsection 6.7.

Civil penalty: 50 penalty units.

7 Evidence of medical fitness

 For section 6, a person is medically fit to perform duties if:

(a) the person has a valid Certificate of Medical Fitness; and

(b) there is no evidence that his or her medical condition has altered since the Certificate of Medical Fitness was issued to an extent that would make him or her unfit to perform the duties.

[5] Subsection 8.1, first note

omit

[6] Subsection 8.3, note

substitute

Note   If an owner of a vessel has additional fitness requirements for particular duties or voyages (eg for the handling of specific cargoes or voyages to the Antarctic), the owner should advise the medical inspector of those requirements and request a supplementary report against them.

[7] Subsection 8.8

substitute

8.8 Showing Certificate of Medical Fitness

 8.8.1A person required by any provision of a Marine Order to be the holder of a valid Certificate of Medical Fitness must show the certificate on demand to the owner or master of a vessel on which the person serves or intends to serve, or to an inspector.

Penalty: 50 penalty units.

 8.8.2An offence against subsection 8.8.1 is a strict liability offence.

 8.8.3A person is liable to a civil penalty if the person contravenes subsection 8.8.1.

Civil penalty: 50 penalty units.

[8] After subsection 8.9

insert

 8.9.2An offence against subsection 8.9.1 is a strict liability offence.

 8.9.3A person is liable to a civil penalty if the person contravenes subsection 8.9.1.

Civil penalty: 50 penalty units.

[9] After section 8

insert

8A Appointment of medical inspectors

 8A.1AMSA may appoint a person as a medical inspector.

 8A.2The person must be registered as a medical practitioner in a State or Territory of Australia.

Note 1   In appointing a medical inspector, preference is given to a person who either has a Fellowship of the Australasian Faculty of Occupational Medicine (AFOM) or is a trainee of AFOM and works under the direct supervision of a Fellow.

Note 2   Under section 33 of the Acts Interpretation Act 1901, AMSA may remove or suspend any person appointed and appoint another person temporarily in the place of any person so suspended.

[10] Section 9

substitute

9 Aids to vision or hearing

 9.1A seafarer or licensed pilot whose Certificate of Medical Fitness shows that an aid to vision or hearing was used for the purpose of being found medically fit must, at all times when on duty on a vessel:

(a) use the aid; and

(b) for an aid to vision — keep a spare aid to vision available.

Penalty: 50 penalty units.

 9.2An offence against subsection 9.1 is a strict liability offence.

 9.3A person is liable to a civil penalty if the person contravenes subsection 9.1.

Civil penalty: 50 penalty units.

[11] Appendix 1

omit

[12] Appendix 2, heading

substitute

Schedule 2 Information to be contained in Certificate of Medical Fitness

(section 2, definition of Certificate of Medical Fitness)

[13] Further amendments

Schedule 5 Marine Orders Part 12, issue 3

(section 3)

[1] Section 1A

omit

Marine Orders Part 12, issue 3

insert

Marine Order 12 (Construction — subdivision and stability, machinery and electrical installations) 2009

[2] Subsection 1.2.1

substitute

 1.2.1Paragraphs 339(2)(a) and (b) of the Navigation Act provides that regulations may provide for design and construction of vessels, including machinery and equipment to be carried on board vessels.

 1.2.1AParagraph 339(2)(e) of the Navigation Act provides that regulations may provide for the stability of vessels, including information about, and testing of, the stability of vessels.

 1.2.1BParagraph 340(1)(a) of the Navigation Act provides that regulations may provide for giving effect to SOLAS.

[3] Section 2, definition of Guidelines

omit

[4] Section 2, definition of IS Code

substitute

IS Code means the Code on Intact Stability, 2008 adopted by IMO Resolution MSC.267 (85), as in force from time to time.

Note   A copy of each IMO resolution that adopts or amends this Code is available on AMSA’s website at http://www.amsa.gov.au.

[5] Section 2, definitions of SOLAS ship and surveyor

substitute

OSV Design and Construction Guidelines means the Guidelines for the Design and Construction of Offshore Supply Vessels 2006 adopted by IMO Resolution MSC.235 (82), as in force from time to time.

Note 1   A copy of each IMO resolution that adopts or amends these Guidelines is available on AMSA’s website at http://www.amsa.gov.au.

[6] Section 2, note 2

substitute

Note 3   Some terms used in this Order are defined in Marine Order 1 (Administration) 2011, including:

• cargo vessel
• General Manager, Maritime Operations Division
• IMO
• Manager, Ship Inspection and Registration
• national law
• SOLAS
• USL Code.

Note 4   Other terms used in this Order are defined in the Navigation Act, including:

• AMSA
• inspector
• owner
• recognised organisation (for organisations that have been prescribed for the definition — see Marine Order 1 (Administration) 2011)
• regulated Australian vessel
• seafarer
• overseas voyage.

[7] Section 4

substitute

4 Application

 4.1This Order applies to:

(a) a regulated Australian vessel; and

(b) a foreign vessel:

 (i) in an Australian port; or

 (ii) entering or leaving an Australian port; or

 (iii) in the internal waters of Australia; or

 (iv) in the territorial sea of Australia, other than in the course of innocent passage.

 4.2However, this Order applies to a foreign vessel to which SOLAS applies only to the extent that the vessel fails to comply with Chapter II-1 of SOLAS.

[8] After subsection 8.1

insert

 8.1AAn offence against subsection 8.1 is a strict liability offence.

 8.1BA person is liable to a civil penalty if the person contravenes subsection 8.1.

Civil penalty: 50 penalty units.

[9] Subparagraphs 8.2(c)(i) and (ii)

substitute

 (i) for a regulated Australian vessel — by the Manager, Ship Inspection and Registration or a recognised organisation; or

 (ii) for a foreign vessel — by the maritime administration of the country where the vessel is registered.

[10] Schedule 1, subclause 8.2, definition of passenger

substitute

Note   For the meaning of passenger — see s 14 of the Navigation Act.

[11] Other amendments