In 1912, when the Titanic was launched and tragically sank, the Australian Navigation Act 1912 (Cth) came into the force. The 1912 Act has of course been subject to revision over the last 100 years but the structure and many of the original sections remained.
2012 brought a whole suite of new maritime legislation from the Australian Government. The Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth) provides a new framework for the licensing of Australian cabotage trade. The Maritime Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth) seeks to achieve the uniform regulation of Australian domestic vessels across the States and bring them all under the control of the Australian Maritime Safety Authority ("AMSA").
The Navigation Act 2012 (Cth) ("the 2012 Act"), the Navigation Regulations 2013 and amended AMSA Marine Orders represent a complete and long awaited re-write of the original Navigation Act 1912 (Cth) which, among other things, implements the ILO Maritime Labour Convention ("MLC") and gives AMSA wide powers of inspection and enforcement by way of Civil Penalties. The Government's intention was not to amend the substance of the existing regulation but to modernise it. To a large extent that has been achieved but the introduction of Civil Penalties has sharpened AMSA's teeth when it comes to the enforcement of its provisions.
One of the primary roles of the 2012 Act is to ensure compliance with the many International Conventions to which Australia is a signatory including STCW, the MLC, Load Lines Convention, SOLAS, the Collision Regs, CSC, the Tonnage Convention, MARPOL, CLC, the Salvage Convention and UNCLOS.
A complete the review of the 2012 Act is beyond the scope of this article but we raise below three areas for the attention of ship owners, operators and charterers and for caution when calling to Australian waters.
Seafarers
The Navigation Act has been updated to provide for MLC compliance for both foreign flagged and Australian vessels. Australia ratified the MLC in December 2011 and has prepared for its enforcement by careful drafting of the 2012 Act and Marine Order 11 (Living and Working Conditions on Vessels) 2013. We would encourage a review of Marine Order 11 before a vessel calls to an Australian port (see www.amsa.gov.au).
Marine Order 11 applies to both Regulated Australian Vessels and Foreign Flagged Vessels in Australian Ports. Article V, paragraph 7 of the MLC requires members to implement the MLC in such a way as to ensure that ships that fly the flag of non-ratifying states receive "no more favourable treatment". Australia will do so and Marine Order 11 provides for MLC compliance for all foreign flagged vessels in Australian Ports (including documentary evidence of MLC compliance) from 21 August 2013.
MLC compliance will be policed by AMSA. Under the Act AMSA has wide powers to board and inspect vessels and request delivery up of ships certificates by way of formal Port State Control (PSC) inspection or otherwise. PSC inspections may include an inspection of the living and working conditions on board the vessel and will include an inspection of MLC Certificates.
AMSA has indicated that it will detain vessels that are found not to conform to MLC if "the conditions on board are clearly hazardous to the safety, health and security of seafarers or the non conformity constitutes a serious breach of the requirements of MLC (including seafarers' rights)"
Foreign shipowners and operators should be aware and appreciate that Australia has highly developed and prescriptive workplace health and safety regulations. The welfare of employees and workers is taken very seriously and the benchmark for compliance is generally considered high. This will no doubt translate into how AMSA approaches MLC compliance, whether the vessel is Australian or foreign flagged.
Port State Control and Enforcement
Chapter 8 of the Act grants wide powers to AMSA for the detention, inspection and direction of vessels in Australian waters.
In its Port State Control role AMSA may detain a vessel that it "reasonably suspects" is unseaworthy or substandard. "Seaworthiness" extends to the condition of the hull and equipment, stowage of cargo, numbers and qualification of seafarers, overloading and the living and working conditions onboard. A vessel is "substandard" if it is without its Safety, Load Line or Prevention of Pollution Convention certificates or the condition of the vessel does not correspond substantially to those certificates.
Chapter 8 of the 2012 Act also grants Australian Customs wide ranging powers of detention of vessels in Australian Ports with regard to applications for clearance under the Customs Act 1901 (Cth) and the production of vessel certificates.
Failure to comply with a direction of AMSA or Customs may give rise to an offence punishable by imprisonment or one of the numerous Civil Penalties created by the 2012 Act. For example, it is an offence to operate a detained vessel, punishable by up to 10 years imprisonment or a Civil Penalty of up to AUS$1,020,000. This fine has been increased from AUS$20,000 under the 1912 Act which reflects the general increase in both number and size of Civil Penalties throughout the 2012 Act.
Crew members should note section 310 of the 2012 Act which now expressly makes it an offence to destroy or mutilate an official log book or entry in a logbook or render such entry illegible. It is also an offence to sign an entry knowing that the entry is false or fraudulent or omit to make an entry knowing that the omission will result in the logbook being false or fraudulent (punishable by imprisonment for 12 months and Civil Penalty of up to AUS$102,000). Oil Record Books and other records must therefore be accurately maintained.
These increased fines and long prison sentences further necessitate a cautious approach to Australian PSC inspections.
Prevention of Pollution
The protection of the environment ranks high on the Australian political agenda and this continues to be reflected in the maritime legislation.
Section 140 and 141 of the 2012 Act set out offences by the Master "operating a vessel so as to pollute or damage the Australian marine environment" and "failure to ensure a vessel is operated so as not to cause pollution or damage to the Australian marine environment". The offences are fault based and as such the Master will have had to have been reckless or negligent to be found guilty (maximum penalty of AUS$102,000). Aggravated contraventions which result in serious harm or the potential for serious harm to the marine environment carry maximum penalties ten times the size of the basic offence (i.e. AUS$1.02 million) and AMSA may refuse port entry to a vessel not operated, constructed or equipped in accordance with the Prevention of Pollution Convention.
The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) sets out Commonwealth oil or oily water (MARPOL) strict liability pollution offences for owners, masters and charterers with maximum fines increased this year from AUS$11 million to AUS$17 million for a corporation and from AUS$2.2 to AUS$3.4 million for an individual (on account of a 55% Penalty Unit increase from $110 to $170 per unit with effect from January 2013).
Conclusion
While the new Navigation Act 2012 does not seek a wholesale amendment the substance of the existing maritime legislation of shipping in Australia, the introduction of MLC, the further express powers provided to AMSA, and the more liberal use of Civil Penalties throughout the 2012 Act does result in a generally more prescriptive piece of legislation. Owners, operators, charterers and crew members should be careful to ensure compliance to avoid fines, detentions, PSC non-conformities or simply commercial delay brought about by an AMSA investigation. AMSA and the Australian legislators remain focused on safety of life and property at sea and an overarching desire to protect Australia's marine environment. The new Navigation Act 2012 reflects this focus.
We are grateful to Joe Hurley and Chris Sacré if HWL Ebsworth Lawyers in Sydney for this article
