Compilation number 2

Compilation date: 1 September 2016

This compilation was prepared on 24 August 2016 taking into account amendments up to Marine Order 508 (National law amendment) 2016.

Prepared by the Office of Legislative Drafting, Australian Maritime Safety Authority

Division 1 Preliminary

1 Name of Order

3 Purpose

4 Power

5 References in NSCV and NSAMS

6 Criteria for fit and proper person

6A Standards

Division 2 Interpretation of Marine Orders

7 Definitions

7A Required certificates, licences or qualifications

Division 3 Application process

8 Applications to which this Division applies

9 Form and content of application

10 Request for further information etc

11 Notification of applicant of progress of application

12 Period for consideration of application

13 Decision on application and notification of decision

Division 4 Review process

Subdivision 4.1 Review of decisions under the national law

14 Information required for application for review

Subdivision 4.2 Review of decisions under Marine Orders

15 Reviewable decisions

16 Internal review of decisions

17 Review by AAT

Division 5 Return of detained vessels

18 Application of Division 5

19 Circumstances

20 Arrangements to return vessel

21 Steps to be taken

Division 6 Infringement notices

22 When infringement notice can be given

23 Contents of infringement notice

24 Giving the notice

25 Amount of penalty if notice given

26 Time for payment of penalty

27 Extension of time to pay

28 Payment by instalments

29 Withdrawal of infringement notice

30 Notice of refusal

31 Payment of penalty if infringement notice not withdrawn

32 Effect of payment of infringement notice penalty

33 Admissions under subsection 29(2)

34 Matter not to be taken into account in determining penalty

35 Evidence for hearing

36 Infringement notice not compulsory, etc

Division 7 Approved forms

37 Approved forms

Schedule 1 Infringement notice offences

Division 1 National law

Division 2 Marine orders

Division 1 Preliminary

1 Name of Order

 This Order is Marine Order 501 (Administration — national law) 2013.

Note   The series of Marine Orders under the national law is numbered starting with 501, to distinguish them from Marine Orders made under the Navigation Act 2012, which are numbered starting with 1.

3 Purpose

 The purpose of this Order is to facilitate the consistency and shortening of Marine Orders made under the national law by setting out:

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

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

(c) provisions that apply to all Marine Orders.

4 Power

 (1)Paragraph 74(1)(c) of the national law provides that the regulations may prescribe matters to which the National Regulator may have regard in determining whether a person is a fit and proper person.

 (2)Subsection 101(5) of the national law provides that the regulations may provide for the return of detained vessels.

 (3)Section 138 of the national law provides that the regulations may provide for enabling a person who is alleged to have committed an offence against the national law to pay a penalty to the Commonwealth as an alternative to prosecution.

 (4)Section 142 of the national law provides for regulations to be made providing for review of decisions made under the Orders.

(4A) Paragraph 143(4)(a) of the national law provides that an exemption may be granted on application in accordance with the regulations by a person.

 (5)Subsection 159(1) of the national law 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 national law.

 (6)Subsection 159(2) of the national law provides for regulations to be made prescribing standards for the national law.

 (7)Subsection 163(1) of the national law provides that the National Regulator (AMSA) may make a Marine Order for any matter for which provision must or may be made by regulations, other than for matters mentioned in the subsection.

5 References in NSCV and NSAMS

 In the NSCV and NSAMS, a reference to any of the following is taken to mean the National Regulator:

(a) Commonwealth Authority;

(b) Marine Authority;

(c) Marine Safety Authority;

(d) State Marine Authority;

(e) State or Territory Authority;

(f) State, Territory or Commonwealth Marine Safety Authority;

(g) statutory marine authority;

(h) statutory marine authority of the Commonwealth of Australia or of a State or Territory within the Commonwealth.

6 Criteria for fit and proper person

 For section 74 of the national law, in determining whether a person is a fit and proper person for the purpose of deciding whether to issue or revoke a certificate, the National Regulator may have regard to the following matters:

(a) whether the person has had a similar certificate, issued under a law of the Commonwealth or a State or Territory, suspended, revoked or cancelled;

(b) whether the person is suffering from a medical condition or has a physical or mental incapacity that makes the person unsuitable to hold or to continue to hold the certificate;

(c) whether the person had been found to be not a fit and proper person under a law;

(d) for a certificate of operation:

 (i) whether the person is an undischarged bankrupt or is insolvent; and

 (ii) whether the person has unpaid court-imposed fines; and

 (iii) whether the person has been disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001; and

 (iv) whether any civil penalties have been imposed on the person under the regulations.

Note   For other matters that the National Regulator may consider — see subsection 74(1) of the national law.

6A Standards

 For subsection 159(2) of the national law, the following standards are prescribed:

(a) NSAMS;

(b) NSCV Parts B, C, D, E, F and G;

(c) USL Code.

Division 2 Interpretation of Marine Orders

7 Definitions

 In a Marine Order:

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

AMSA means the Australian Maritime Safety Authority established by the Australian Maritime Safety Authority Act 1990.

AMSA Act means the Australian Maritime Safety Authority Act 1990.

approved form means a form approved by the National Regulator.

increased level of risk, for a vessel’s operations, has the meaning given by section 13 of the Marine Safety (Domestic Commercial Vessel) National Law Regulation 2013.

Load Lines Convention means the International Convention on Load Lines, done at London on 5 April 1966, as amended and in force for Australia from time to time.

Marine Order means an order made under subsection 163(1) of the national law.

Marine Safety (Domestic Commercial Vessel) National Law — see Schedule 1 to the National Law Act.

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

national law means the Marine Safety (Domestic Commercial Vessel) National Law set out in Schedule 1 to the National Law Act.

National Law Act means the Marine Safety (Domestic Commercial Vessel) National Law Act 2012.

NSAMS means the National Standard for the Administration of Marine Safety, endorsed by the Australian Transport Council on 6 November 2009.

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

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

recognised organisation — see section 14 of the Navigation Act.

Note   For organisations that have been prescribed for this definition — see Marine Order 1 (Administration) 2013.

significantly altered, for a vessel, means that the total mass of items added or removed is more than 4% of the displacement of the vessel before the alteration.

USL Code — see section 6 of the national law, meaning of Uniform Shipping Laws Code.

Note   Other terms used in Marine Orders have the same meaning as they have in the national law  — see Part 1 of the national law.

7A Required certificates, licences or qualifications

 (1)A requirement to have a certificate or licence is a requirement to have a certificate or licence that is in force.

 (2)If a certificate or licence is revoked or suspended it ceases to be in force.

 (3)A requirement to have any other qualification is a requirement to have a qualification that has not been revoked, however described.

 (4)This section does not apply to a certificate of survey, certificate of operation or a certificate of competency.

Note 1   A certificate of survey, certificate of operation or certificate of competency also ceases to be in force if it is suspended or revoked —— see sections 38, 48 and 60 of the national law.

Division 3 Application process

8 Applications to which this Division applies

 (1)This Division applies to any matter that a Marine Order provides is a matter for which an application must be made in accordance with this Order.

Note   A Marine Order may require compliance with provisions of a prescribed standard. NSAMS, the USL Code and NSCV Parts B, C, D, E, F and G are prescribed standards — see section 6A.

 (2) A Marine Order that provides that an application must be made in accordance with this Order may vary the process set out in this Order as it applies to the application.

Example

The period for consideration of the application may be varied.

 (3)For paragraph 143(4)(a) of the national law, the granting of an exemption under subsection 143(1) of the national law is a matter for which an application must be made in accordance with this Order.

9 Form and content of application

 An application mentioned in section 8:

(a)  must:

 (i) be in writing; and

 (ii) be in the approved form, if any; and

 (iii) include any other information or document that an Order requires be included; and

 (iv) be accompanied by any fee charged by a State or the Northern Territory, or an agency of a State or the Northern Territory, for a thing done by a delegate of the National Regulator, or an accredited person, who is an officer or employee of that State, the Northern Territory or that agency; and

 (v) be accompanied by any prescribed fee charged by the National Regulator for assessing the application; and

(b) may include any other information or document the applicant considers relevant to the application.

Example for subparagraph (a)(iii)

A Marine Order may require information in accordance with an international agreement that Australia has implemented.

Note 1    For charging of fees by States etc — see section 9 of the National Law Act. For the prescribed fees that may be charged by the National Regulator — see Part 4 of the Marine Safety (Domestic Commercial Vessel) National Law Regulation 2013.

Note 2   Giving false or misleading information in an application is an offence — see subsection 136(1) of the Criminal Code.

10 Request for further information etc

 (1)The National Regulator may, in writing, ask the applicant to provide any information or document that the National Regulator reasonably considers necessary for  consideration of the application.

 (2)The National Regulator may, in writing, ask another person to provide any information, document or agreement that the National Regulator reasonably considers necessary for consideration of the application.

Note   More than 1 request may be made under this section.

11 Notification of applicant of progress of application

 If the National Regulator asks for information, a document or an agreement under section 10, the National Regulator must tell the applicant, in writing:

(a) if the information, document or agreement has been requested under subsection 10(2) — that the information, document or agreement has been requested and from whom; and

(b) about the effect of the request on the period for consideration of the application.

12 Period for consideration of application

 An application must be considered:

(a) if no request for further information or documents is made under section 10 — within 90 days after the National Regulator receives the application; or

(b) within 90 days after the National Regulator receives all the information, documents or final responses requested under section 10; or

(c) if the National Regulator does not receive all the information, documents or final responses requested under section 10 within a reasonable period for the kind of request — within 90 days after that period.

13 Decision on application and notification of decision

 (1)The National Regulator must, within the period mentioned in section 12:

(a) decide the application; and

(b) tell the applicant, in writing:

 (i) the decision on the application and any conditions imposed; and

 (ii) the reasons for the decision if the decision is not to approve the application.

Note   A Marine Order that provides that an application may be made to the National Regulator in accordance with this Order may set out criteria to be considered when deciding the application.

 (2)If the National Regulator does not decide the application within the period mentioned in section 12, the National Regulator is taken to have decided not to approve the application.

Division 4 Review process

Subdivision 4.1 Review of decisions under the national law

14 Information required for application for review

 For paragraph 140(3)(b) of the national law, an application for review must contain the following information:

(a) the decision for which the review is sought;

(b) grounds for the review.

Note  The application must be in the approved form — see national law, s 140(3)(a). Approved forms are on the AMSA website at http://www.amsa.gov.au.

Subdivision 4.2 Review of decisions under Marine Orders

15 Reviewable decisions

 A decision mentioned in section 13 is a reviewable decision.

Note   The term reviewable decision is used here in a different context to that in which it is used in section 139 of the national law. Subsection 139(1) of the national law lists reviewable decisions made under the national law, including a decision not to grant an exemption on application. Those decisions are reviewable under Division 1 of Part 8 of the national law.

16 Internal review of decisions

 (1)A person who is affected by a reviewable decision may apply, in writing, to the National Regulator for internal review of the decision before the later of the following:

(a) 30 days after:

 (i) notification of the decision; or

 (ii) if the decision is not notified within the period mentioned in section 12 — the end of that period;

(b) a longer period determined by the National Regulator.

 (2) The National Regulator must, on receipt of the application, review the reviewable decision.

 (3)The National Regulator must:

(a) affirm the reviewable decision; or

(b) make any other decision that the National Regulator considers appropriate.

 (4)The National Regulator must tell the applicant, in writing, of the outcome of the internal review within 28 days, or a longer period agreed by the applicant, after the application for internal review was received.

 (5)A notice under subsection (4) must include statements to the effect that:

(a) if the applicant is dissatisfied with the decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for review of the decision; and

(b) the applicant may request a statement of reasons under section 28 of that Act.

 (6)Failure to comply with subsection (5) for a decision does not affect the validity of the decision.

17 Review by AAT

 A person affected by a decision under subsection 16(3) may apply to the Administrative Appeals Tribunal for review of the decision.

Division 5 Return of detained vessels

18 Application of Division 5

 For subsection 101(5) of the national law, this Division applies to the return of a vessel that has been detained.

19 Circumstances

 (1)The National Regulator may impose conditions on the return of the vessel.

 (2)In deciding whether to return the vessel, the National Regulator may consider whether:

(a) any fees related to the detention of the vessel have been paid; and

(b) the vessel is in good physical condition; and

(c) any conditions for return of the vessel have been met; and

(d) any penalties payable by the vessel owner in relation to the detention under an infringement notice issued under section 22 or a court-imposed fine have been paid; and

(e) any investigation of a breach of the national law has been completed and the National Regulator is satisfied there is no further safety risk in releasing the vessel; and

(f) the reasons for detaining the vessel have been rectified or otherwise have ceased to exist; and

(g) any conditions placed on the vessel’s release are sufficient to address the reasons for the detention; and

(h) the vessel is, or will be, no longer involved in a contravention of the national law.

20 Arrangements to return vessel

 (1)The National Regulator must, within 7 days after making a decision mentioned in section 19, give notice in writing to:

(a) the owner of the vessel; or

(b) if no such person is able to be located — the person who had possession or control of the vessel immediately before it was detained.

 (2)The notice must:

(a) tell the person that the vessel is to be returned, and of any conditions for the return; and

(b) ask the person for details of the person to whom the vessel is to be returned.

21 Steps to be taken

 The vessel must be returned as soon as practicable to the owner of the vessel or a person authorised in writing by the owner to take possession of it.

Division 6 Infringement notices

22 When infringement notice can be given

 If there are reasonable grounds for believing that a person has committed an offence against a section of the national law or a marine order mentioned in Schedule 1, the National Regulator or a marine safety inspector may give to the person an infringement notice for the infringement notice penalty mentioned in Schedule 1 for the offence.

23 Contents of infringement notice

 (1)The 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 national law, Marine Orders or the regulations that it is alleged has been contravened;

(d) details of the alleged offence, including:

 (i) the day and, if appropriate, the time when it is alleged to have been committed; and

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

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

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

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

(h) a statement that, if the person prefers that the matter not be dealt with by a court, he or she may signify that preference by paying the infringement notice penalty:

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

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

 (iii) if payment by instalments is permitted by the National Regulator 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 the National Regulator, in the way set out in the notice, about any facts or matters that the person thinks should be taken into account for the offence and asks that the National Regulator 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)  the National Regulator 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 criminal liability for the offence is discharged; and

 (ii) further proceedings cannot be taken against the person for the offence; and

 (iii) the person is not taken to have been convicted of the offence;

(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 prosecuted for the alleged offence and may be found liable for an amount up to the maximum penalty for the offence;

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

 (2)An infringement notice may contain any other information that the National Regulator or the marine safety inspector considers necessary.

24 Giving the notice

 (1)The notice must be given to the person within 12 months after the alleged commission of the offence.

 (2)The 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.

25 Amount of penalty if notice given

 The penalty payable under an infringement notice for an alleged commission of an offence mentioned in Schedule 1 is the amount of penalty units mentioned in Schedule 1 for the offence.

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

 (1)On written application by a person to whom an infringement notice has been given, the National Regulator 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.

 (2)If application is made after 28 days after the notice was given, the application must include an explanation why the alleged offender could not deal with the notice within that period.

 (3)the National Regulator 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.

 (4)The 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

 (1)On written application by a person to whom an infringement notice has been given, the National Regulator 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.

 (2)The National Regulator 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.

 (3)The 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

 (1)Whether or not an application is made under subsection (2), the National Regulator, if satisfied that in all the circumstances it is proper to do so, may withdraw an infringement notice.

 (2)Before the end of 28 days after receiving the infringement notice, the recipient may apply, in writing, to the National Regulator for it to be withdrawn.

 (3)Within 28 days after receiving the application, the National Regulator 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.

 (4)In making a decision, the National Regulator must consider:

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

(b) the circumstances in which the offence mentioned in the notice is alleged to have been committed; and

(c) unless the application is only based on the validity of the infringement notice:

 (i) whether the person has been convicted previously of an offence mentioned in Schedule 1; and

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

(d) any other matter the National Regulator considers relevant to the decision.

 (5)If 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 the National Regulator 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 offence; and

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

31 Payment of penalty if infringement notice not withdrawn

 If the National Regulator 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

 (1)If a person is given an infringement notice pays the infringement notice penalty in accordance with this Division:

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

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

(c) the person is not convicted of the offence.

 (2)Subsection (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 offence.

34 Matter not to be taken into account in determining penalty

 (1)This section applies if a person who is given an infringement notice:

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

(b) is prosecuted for, and convicted of, the alleged offence mentioned in the notice.

 (2)In 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

 (1)At the hearing of a prosecution for an offence mentioned in an infringement notice, the following certificates are evidence of the facts stated in the certificate:

(a)  a certificate signed by the National Regulator or a marine safety inspector stating that:

 (i)  the notice was given to the alleged offender; and

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

(b) a certificate signed by the National Regulator or a marine safety inspector and stating that the notice was withdrawn on a day mentioned in the certificate;

(c) a certificate signed by the National Regulator 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 the National Regulator 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 the National Regulator 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.

 (2)A certificate that purports to have been signed by the National Regulator or a marine safety 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 committed an offence mentioned in Schedule 1 be given an infringement notice; or

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

 (i) an infringement notice is not given to the person for the offence; 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 convicted of an offence.

Division 7 Approved forms

37 Approved forms

 (1)The National Regulator may approve a form for a provision of a Marine Order.

 (2)If the National Regulator approves a form under subsection (1), the approved form must be used for the purpose for which it is approved.

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

Schedule 1 Infringement notice offences

(section 22)

Division 1 National law

Note 1   An infringement notice penalty for an offence is one-fifth of the maximum fine that a court could impose on a person as a penalty for the offence — see subsection 138(2) of the national law.

Note 2    An infringement notice penalty for a body corporate is 5 times the maximum fine that a court could impose on an individual as a penalty — see subsection 4B(3) of the Crimes Act 1914.

Division 2 Marine orders

Notes to Marine Order 501 (Administration — national law) 2013

Note 1

Marine Order 501 (Administration — national law) 2013 (in force under subsection 163(1) of the Marine Safety (Domestic Commercial Vessel) National Law) as shown in this compilation comprises Marine Order 501 (Administration — national law) 2013 amended as indicated in the following tables.

Table of Orders

Table of amendments