7 March, 2016
A seamless transition for the regulation of domestic commercial vessels in Queensland?
What you need to know
- On 16 February 2016, two pieces of legislation were passed by the Queensland Parliament:
- the Transport Operations (Marine Safety) and Other Legislation Amendment Bill 2015 (Marine Safety Amendment Bill), with the stated objective of ensuring the "seamless interaction between Commonwealth and Queensland legislation for the regulation of domestic commercial vessels"; and
- the Transport Operations (Marine Safety-Domestic Commercial Vessel National Law Application) Bill 2015 (National Law Application Bill), which seeks to bring all domestic commercial vessels, including those of non-commercial entities, within the purview of the Commonwealth legislation.
- This legislation is intended to transfer all regulatory power to the Commonwealth over registration, licensing and other safety-related matters for "domestic commercial vessels" operating in Queensland under the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth) (National Law Act).
- However, certain provisions of the Transport Operations (Marine Safety) Act 1994 (Qld) will continue to apply to domestic commercial vessels operating in Queensland (for example, those provisions relating to the regulation of ships within pilotage areas).
- It remains to be seen whether this legislative reform will achieve in practice the intended objective of "seamless interaction" between the various layers of regulation that apply to ships within Queensland waters.
What you need to do
- Owners and operators of all domestic commercial vessels in Queensland should familiarise themselves with the provisions of the National Law Act which now exclusively govern all registration, licensing and certain safety matters applicable to those vessels.
- Owners and operators of all recreational and other non-commercial vessels in Queensland should familiarise themselves with the reformed obligations under the Marine Safety Amendment Bill, as applicable.
- Owners and operators of ships located within Queensland waters should be aware that certain provisions of the Transport Operations (Marine Safety) Act 1994 (Qld) will continue to apply to all ships operating in Queensland waters (for example, those provisions relating to the regulation of ships within pilotage areas).
Background
Constitutional conundrums – the objective of reform
On 1 July 2013 the regulatory landscape for Australian domestic commercial vessels was transformed by the commencement of the National Law Act. In essence, the National Law Act sought to introduce a uniform national approach to the regulation of domestic commercial vessels. This was intended to encourage nationally agreed safety standards and improve the ease with which those who either build or work with commercial vessels across multiple jurisdictions could meet certification and regulatory requirements.
However, notwithstanding the introduction of the National Law Act, in Queensland the Transport Operations (Marine Safety) Act 1994 (Qld) (TOMSA) continued to govern certain aspects of maritime operations for domestic commercial vessels and all matters relating to recreational vessels. TOMSA also contained provisions relating to other areas of regulation for domestic commercial vessels which, constitutionally, ceased to have effect since 1 July 2013 as a result of the National Law Act. This created a situation of regulatory uncertainty and overlapping competencies with respect to the regulation of ships registered in Queensland or located within Queensland waters.
The Marine Safety Amendment Bill was passed on 16 February 2016 to address this regulatory uncertainty and these overlapping competencies and to implement the transfer of responsibility for all registration, licensing and certain safety matters for domestic commercial vessels within the jurisdictional limits of Queensland to the Commonwealth under the National Law Act.
Regulated Australian vessels and foreign vessels will continue to be regulated under the Navigation Act 2012 (Cth).
Key areas of reform
Constitutional consistency
Upon the passing of the National Law Act, the majority of domestic commercial vessels in Queensland fell within the jurisdiction of the Commonwealth. However, the Queensland legislation still purported to apply to (relevantly) all ships within Queensland waters and to commercial ships owned by individuals, sole traders, partnerships and other non-corporate entities outside of the constitutional reach of the Commonwealth. The passing of the National Law Application Bill intends to remove the need for regulators and enforcement officers to determine whether a particular vessel is covered by the Commonwealth legislation or the Queensland Legislation and to bring this small number of ships into the remit of the National Law Act, ostensibly to ensure consistency across the regulation of all domestic commercial vessels.
A new category – the "Queensland regulated ship"
The Marine Safety Amendment Bill introduces a new category of ships in Queensland known as "Queensland regulated ships", which is defined as:
- recreational ships; and
- "other Queensland regulated ships".
An "other Queensland regulated ship" is a vessel that is not a domestic commercial vessel, but is, however, used for purposes other than solely private recreation. The examples provided are ships owned by schools and community groups, or surf lifesaving boats, and, in effect, it is a "catch all" definition for ships that fall outside of the regulatory scheme for domestic commercial vessels in the National Law Act.
The definition of a recreational ship, on the other hand, has remained unchanged and is defined either as a ship used only for private recreation or a tender to such a ship.
Addressing inconsistencies
The Marine Safety Amendment Bill expressly provides that the National Law Act prevails in the event of any inconsistency with TOMSA in Queensland. TOMSA is now explicit about which of its provisions do not apply to domestic commercial vessels by stating certain provisions only apply to a "Queensland regulated ship".
The Marine Safety Amendment Bill provides further clarification as to which ships the National Law Act applies to, and therefore fall outside the scope of TOMSA, depending on the subject matter. For example:
- All provisions of TOMSA dealing with registration and licensing do not apply to domestic commercial vessels because these areas of regulation are within the exclusive competence of the National Law Act; but
- Provisions dealing with pilotage will continue to apply to all Queensland ships including domestic commercial vessels because the National Law Act does not regulate pilotage.
Impact on safety obligations
The Marine Safety Amendment Bill also creates significant changes for the safety obligations imposed on ship builders, ship designers and marine surveyors under section 30 of TOMSA.
Essentially, there are no longer general safety obligations imposed on anyone acting in these capacities in Queensland because their activities are only relevant to domestic commercial vessels, which fall outside the scope of TOMSA. Conversely, safety obligations are now placed on ship owners, ship masters and other competent persons who issue a survey report for a ship, exclusively in relation to the new category of Queensland regulated ships.
Other amendments
A number of consequential amendments were also made to the Criminal Proceeds Confiscation Act 2002, Maritime Safety Queensland Act 2002, Transport Operations (Marine Pollution) Act 1995 and the Transport Operations (Road Use Management) Act 1995, in relation to the transfer of all regulatory power over domestic commercial vessels from the State to the Commonwealth.
A seamless transition?
As the Explanatory Notes to the Marine Safety Amendment Bill acknowledge, the legislative amendments are complex, particularly because some matters for domestic commercial vessels will be regulated by the National Law Act while other matters will continue to be regulated under TOMSA. To that end it is relevant to note that, the Transport Operations (Marine Safety) Regulation 2004 (a significant component of maritime regulation in Queensland), is currently under review and in the process of being rewritten. The intended clarification of the application of the National Law Act within Queensland by the Marine Safety Amendment Bill and the National Law Application Bill is certainly a welcome development. However, it remains to be seen whether this legislative reform will achieve in practice the intended objective of "seamless interaction" between the various layers of regulation that apply to ships within Queensland waters.
For further information, please contact:
Shane Bosma, Ashurst
shane.bosma@ashurst.com
