Maritime Legislation Amendment Act 2006 (Cth)

Maritime Legislation Amendment Act 2006 No. 24, 2006 An Act to amend maritime legislation, and for related purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Amendment of the Lighthouses Act 1911 Lighthouses Act 1911 Schedule 2—Amendment of the Navigation Act 1912 Navigation Act 1912 Schedule 3—Amendment of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 Protection of the Sea (Prevention of Pollution from Ships) Act 1983 Schedule 4—Amendment of the Shipping Registration Act 1981 Shipping Registration Act 1981 Maritime Legislation Amendment Act 2006 No. 24, 2006 An Act to amend maritime legislation, and for related purposes [Assented to 6 April 2006] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Maritime Legislation Amendment Act 2006. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 6 April 2006 2. Schedule 1 The 28th day after the day on which this Act receives the Royal Assent. 4 May 2006 3. Schedule 2, item 1 The day after this Act receives the Royal Assent. 7 April 2006 4. Schedule 2, item 2 On the day after the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent. 6 October 2006 5. Schedule 2, items 3 to 7 The day after this Act receives the Royal Assent. 7 April 2006 6. Schedule 2, item 8 On the day after the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent. 6 October 2006 7. Schedule 2, items 9 to 15 The day after this Act receives the Royal Assent. 7 April 2006 8. Schedule 2, item 16 The 28th day after the day on which this Act receives the Royal Assent. 4 May 2006 9. Schedule 2, items 17 and 18 The day after this Act receives the Royal Assent. 7 April 2006 10. Schedule 2, items 19 to 23 The 28th day after the day on which this Act receives the Royal Assent. 4 May 2006 11. Schedule 2, items 24 to 28 On the day after the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent. 6 October 2006 12. Schedule 2, items 29 to 31 The 28th day after the day on which this Act receives the Royal Assent. 4 May 2006 13. Schedule 2, item 32 On the day after the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent. 6 October 2006 14. Schedule 2, items 33 to 38 The day after this Act receives the Royal Assent. 7 April 2006 15. Schedule 2, items 39 to 42 The 28th day after the day on which this Act receives the Royal Assent. 4 May 2006 16. Schedule 2, items 43 to 46 The day after this Act receives the Royal Assent. 7 April 2006 17. Schedule 2, items 47 to 54 On the day after the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent. 6 October 2006 18. Schedule 2, items 55 to 59 The 28th day after the day on which this Act receives the Royal Assent. 4 May 2006 19. Schedule 2, item 60 On the day after the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent. 6 October 2006 20. Schedule 2, items 61 and 62 The 28th day after the day on which this Act receives the Royal Assent. 4 May 2006 21. Schedule 2, items 63 and 64 The day after this Act receives the Royal Assent. 7 April 2006 22. Schedule 2, items 65 to 74 On the day after the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent. 6 October 2006 23. Schedule 2, items 75 and 76 The 28th day after the day on which this Act receives the Royal Assent. 4 May 2006 24. Schedule 2, items 77 to 80 The day after this Act receives the Royal Assent. 7 April 2006 25. Schedule 2, items 81 to 99 On the day after the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent. 6 October 2006 26. Schedule 2, items 100 to 102 The day after this Act receives the Royal Assent. 7 April 2006 27. Schedule 2, items 103 to 105 The 28th day after the day on which this Act receives the Royal Assent. 4 May 2006 28. Schedule 2, items 106 to 108 The day after this Act receives the Royal Assent. 7 April 2006 29. Schedule 3 On the day after the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent. 6 October 2006 30. Schedule 4, items 1 to 5 The day after this Act receives the Royal Assent. 7 April 2006 31. Schedule 4, item 6 On the day after the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent. 6 October 2006 32. Schedule 4, items 7 to 9 The day after this Act receives the Royal Assent. 7 April 2006 Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendment of the Lighthouses Act 1911 Lighthouses Act 1911 1 Subsections 10(1) and (2) Repeal the subsections, substitute: (1) The Authority may, by notice in writing served on the owner of any marine navigational aid or of any lamp or light, if in its opinion it is desirable for the safety of navigation to do so, require the owner of the marine navigational aid, lamp or light: (a) by a date specified in the notice—to remove it entirely or to move it to another position; or (b) by a date specified in the notice—to modify it or to alter its character to such an extent and in such a manner as the Authority specifies in the notice; or (c) in the case of a lamp, with effect from a date specified in the notice—to refrain from lighting the lamp either entirely or for such a period as the Authority specifies in the notice; or (d) in the case of a light, with effect from a date specified in the notice—to cease exhibiting the light either entirely or for such a period as the Authority specifies in the notice. (2) Unless exceptional circumstances relating to the safety of persons or ships require otherwise, the date specified in a notice referred to in subsection (1) must be at least one day after the service of the notice on the owner of the marine navigational aid, lamp or light concerned. Note: If the person who is required under subsection (1) to take action by or from a date specified in the notice does not take that action by or from that specified date, the obligation to take that action continues after that specified date, with daily offences being committed until the obligation is complied with (see section 4K of the Crimes Act 1914). 2 Subsection 10(5) Repeal the subsection, substitute: (5) A person commits an offence if the person does not comply with a notice under this section. Penalty: 40 penalty units. (5AA) Subsection 4K(2) of the Crimes Act 1914 ceases to apply in relation to an offence against subsection (5) of this section on the sixth day after the day on which the obligation to take the action first arose. Note: Because of this subsection, 200 penalty units is the maximum penalty that can be imposed for offences against subsection (5). 3 At the end of the section 10 Add: (7) A notice under subsection (1) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003. 4 Saving provision—notices in force under subsection 10(1) Any notice served by the Authority under subsection 10(1) of the Lighthouses Act 1911 as in force immediately before the date of commencement of the amendments of that Act by this Act has effect, on and after that date, as if it were a notice served under subsection 10(1) of that Act as amended by this Act. 5 Subsections 19(1), (1A) and (1B) Repeal the subsections, substitute: Intentionally destroying, fouling or damaging marine navigational aids etc. (1) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct results in the destruction or fouling of, or damage to: (i) any marine navigational aid; or (ii) any light exhibited on a marine navigational aid; or (iii) any ship, vessel, stores, equipment, or other property used by, or on behalf of, the Authority in connection with the establishment, maintenance or servicing of a marine navigational aid; and (c) the person intends that the conduct will have that result; and (d) the marine navigational aid is the property of, or under the control of, the Authority. Penalty: Imprisonment for 10 years. Recklessly destroying, fouling or damaging marine navigational aids etc. (1A) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct results in the destruction or fouling of, or damage to: (i) any marine navigational aid; or (ii) any light exhibited on a marine navigational aid; or (iii) any ship, vessel, stores, equipment, or other property used by, or on behalf of, the Authority in connection with the establishment, maintenance or servicing of a marine navigational aid; and (c) the person is reckless as to whether the conduct will have that result; and (d) the marine navigational aid is the property of, or under the control of, the Authority. Penalty: Imprisonment for 7 years. Negligently destroying, fouling or damaging marine navigational aids etc. (1B) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct involves the destruction or fouling of, or damage to: (i) any marine navigational aid; or (ii) any light exhibited on a marine navigational aid; or (iii) any ship, vessel, stores, equipment, or other property used by, or on behalf of, the Authority in connection with the establishment, maintenance or servicing of a marine navigational aid; and (c) the person is negligent as to whether the conduct will have that result; and (d) the marine navigational aid is the property of, or under the control of, the Authority. Penalty: 200 penalty units. (1C) Absolute liability applies to paragraphs (1)(d), (1A)(d) and (1B)(d). Intentionally obstructing the view of marine navigational aids (1D) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct results in the obstruction of the view of any marine navigational aid; and (c) the person intends that the conduct will have that result; and (d) the marine navigational aid is the property of, or under the control of, the Authority. Penalty: Imprisonment for 10 years. Recklessly obstructing the view of marine navigational aids (1E) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct results in the obstruction of the view of any marine navigational aid; and (c) the person is reckless as to whether the conduct will have that result; and (d) the marine navigational aid is the property of, or under the control of, the Authority. Penalty: Imprisonment for 7 years. Negligently obstructing the view of marine navigational aids (1F) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct results in the obstruction of the view of any marine navigational aid; and (c) the person is negligent as to whether the conduct will have that result; and (d) the marine navigational aid is the property of, or under the control of, the Authority. Penalty: 200 penalty units. (1G) Absolute liability applies to paragraphs (1D)(d), (1E)(d) and (1F)(d). Intentionally interfering with marine navigational aids (1H) A person commits an offence if: (a) the person engages in conduct; and (b) that conduct results in an interference with the operation of, or the use by a person of, a marine navigational aid; and (c) the person intends that the conduct will have that result; and (d) the marine navigational aid is the property of, or under the control of, the Authority. Penalty: Imprisonment for 10 years. Recklessly interfering with marine navigational aids (1J) A person commits an offence if: (a) the person engages in conduct; and (b) that conduct results in an interference with the operation of, or the use by a person of, a marine navigational aid; and (c) the person is reckless as to whether the conduct will have that result; and (d) the marine navigational aid is the property of, or under the control of, the Authority. Penalty: Imprisonment for 7 years. Negligently interfering with marine navigational aids (1K) A person commits an offence if: (a) the person engages in conduct; and (b) that conduct results in an interference with the operation of, or the use by a person of, a marine navigational aid; and (c) the person is negligent as to whether the conduct will have that result; and (d) the marine navigational aid is the property of, or under the control of, the Authority. Penalty: 200 penalty units. (1L) Absolute liability applies to paragraphs (1H)(d), (1J)(d) and (1K)(d). Defence to offences against subsections (1), (1A), (1B), (1D), (1E), (1F), (1H), (1J) and (1K) (1M) Subsection (1), (1A), (1B), (1D), (1E), (1F), (1H), (1J) or (1K) does not apply if: (a) the conduct that resulted in the destruction, fouling, damage, obstruction or interference referred to in that subsection was necessary to save a life or a ship, or to prevent pollution; and (b) the defendant took all reasonable steps to avoid causing that destruction, fouling, damage, obstruction or interference. Note: A defendant bears a legal burden in relation to the matters in this subsection (see section 13.4 of the Criminal Code). Intentional removal of marine navigational aids (1N) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct involves removing, altering, riding by, or making fast to, a marine navigational aid; and (c) the person intends that the conduct will result in that removal, alteration, riding by or making fast; and (d) the marine navigational aid is the property of, or under the control of, the Authority. Penalty: Imprisonment for 10 years. Reckless removal of marine navigational aids (1O) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct involves removing, altering, riding by, or making fast to, a marine navigational aid; and (c) the person is reckless as to whether the conduct will result in that removal, alteration, riding by or making fast; and (d) the marine navigational aid is the property of, or under the control of, the Authority. Penalty: Imprisonment for 7 years. (1P) Absolute liability applies to paragraphs (1N)(d) and (1O)(d). Trespassing on marine navigational aids (1Q) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct involves trespassing or going on a marine navigational aid; and (c) the marine navigational aid is the property of, or under the control of, the Authority. Penalty: 10 penalty units. (1R) Absolute liability applies to paragraph (1Q)(c). Trespassing on ships, vessels, or property used by the Authority (1S) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct involves trespassing or going on any ship, vessel, or property; and (c) the ship, vessel, or property is used by, or on behalf of, the Authority in the establishment, maintenance or servicing of marine navigational aids. Penalty: 10 penalty units. (1T) Absolute liability applies to paragraph (1S)(c). Note: The heading to section 19 is replaced by the heading "Destroying or damaging marine navigational aids etc.". 6 At the end of section 19 Add: (4) In this section: conduct means an act or an omission to perform an act or a state of affairs. engage in conduct means: (a) do an act; or (b) omit to perform an act. 7 Subsection 19B(1) (penalty) Repeal the penalty, substitute: Penalty: 60 penalty units. Schedule 2—Amendment of the Navigation Act 1912 Navigation Act 1912 1 Section 3 Repeal the section, substitute: 3 Act does not apply to naval ships etc. Except where the contrary intention appears, this Act does not apply to or in relation to a ship belonging to, or operated by: (a) the Australian Defence Force; or (b) the naval, military or air forces of a country other than Australia. 2 Subsection 6(1) Insert: Australian coastal sea means: (a) the territorial sea of Australia; and (b) the sea on the landward side of the territorial sea of Australia and not within the limits of a State or Territory. 3 Subsection 6(1) Insert: exclusive economic zone has the same meaning as in the Seas and Submerged Lands Act 1973. 4 Subsection 6(1) (definition of Government ship) Omit "that belongs to an arm of the Defence Force", substitute "that belongs to, or that is operated by, the Australian Defence Force". 5 Subsection 6(1) Insert: regulated ship has the meaning given by section 186G. 6 Subsection 6(1) (definition of the Customs Act) Omit "the Customs Act 1901‑1966", substitute "the Customs Act 1901". 7 Subsection 6(1) (definition of the regulations) Omit "sections 425 and 426", substitute "section 425". 8 Subsection 8(1) (definition of Australian coastal sea) Repeal the definition. 9 After subsection 8A(2) Insert: (2A) A declaration under subsection (2) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003. 10 Subsection 8AA(4) Repeal the subsection, substitute: (4) A declaration under subsection (2) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003. 11 Subsection 8AB(1) Repeal the subsection, substitute: (1) The owner of a fishing fleet support vessel may apply to the Authority for a declaration under subsection (1A) in relation to the vessel. (1A) Despite subsection (2), the Authority may, in writing, declare that this Act applies to the fishing fleet support vessel even when the vessel is proceeding on a voyage that is not an overseas voyage. (1B) A declaration under subsection (1A) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003. 12 Subsection 8AB(2) Omit "subsection (1)", substitute "subsection (1A)". 13 Transitional provision A declaration of the Minister in force under subsection 8AB(1) of the Navigation Act 1912 immediately before the day on which items 11 and 12 commence continues in force, on and after that day, as if it were a declaration made by the Authority under subsection 8AB(1A) of the Navigation Act 1912 as amended by this Act. 14 After section 8AB Insert: 8AC Expiration or revocation of declarations (1) A declaration made under section 8A, 8AA or 8AB ceases to have effect, unless sooner revoked, at the end of the period, if any, specified in the declaration. (2) The Authority must revoke a declaration made under section 8A, 8AA or 8AB if requested to do so by the owner of the vessel or ship to which the declaration relates. (3) The Authority may revoke a declaration made under section 8A, 8AA or 8AB if the Authority is satisfied: (a) that the vessel or ship to which the declaration relates no longer exists or has been lost; or (b) that the name or any other details of the vessel or ship have been changed since the making of the declaration; or (c) that the vessel or ship no longer operates in Australia. 15 Section 9A Repeal the section, substitute: 9A Definitions In this Part, unless the contrary intention appears: ship does not include a barge, lighter or other floating vessel that is not self‑propelled. STCW Convention means the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 adopted at London by the International Maritime Organization on 7 July 1978 as affected by any amendments made under Article XII of the Convention that have entered into force for Australia. Note: The text of the Convention is set out in the Australian Treaties Series 1984, No. 7. In 2005 this was available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible on the Internet through that Department's world‑wide web site. 16 Subsection 14(8) Omit "$2,000", substitute "60 penalty units". 17 Subsection 14(12) Repeal the subsection. 18 After subsection 15(1) Insert: (1A) Without limiting the generality of subsection (1), regulations may give effect to the STCW Convention. (1B) Regulations giving effect to the STCW Convention are not intended to exclude the operation of a law of a State or of the Northern Territory that gives effect to that Convention. Note: The heading to section 15 is replaced by the heading "Regulations respecting qualifications and watchkeeping obligations of masters, officers and seamen". 19 Section 16 (penalty) Repeal the penalty, substitute: Penalty: 50 penalty units. 20 Section 99 Repeal the section. 21 Subsection 171(1) (penalty) Repeal the penalty, substitute: Penalty: 30 penalty units. 22 Subsection 171(4) (penalty) Repeal the penalty, substitute: Penalty: 30 penalty units. 23 Subsection 171(5) (penalty) Repeal the penalty, substitute: Penalty: 5 penalty units. 24 Before section 186A Insert: Division 1—General provisions applicable to pilotage 25 Subsections 186A(1) and (2) Repeal the subsections, substitute: (1) This Part applies only to pilots and pilotage in relation to ships: (a) that are in, or in transit to or from, any waters of the Australian coastal sea that are specified in the regulations; or (b) that are in any waters of Australia's exclusive economic zone that are specified in the regulations. 26 Subsection 186A(3) Omit "Subject to subsection (1), this", substitute "This". 27 Section 186B Insert: pilotage provider means a person who assigns or allocates a pilot to the transit of a ship through particular waters, irrespective of the legal relationship, contractual or otherwise, between that person and the pilot. 28 Before paragraph 186D(a) Insert: (aa) the operations of a pilotage provider, including, but without limiting the foregoing: (i) the duties of a pilotage provider and the manner of discharging those duties; and (ii) the professional relationship between a pilotage provider and a licensed pilot; and (iii) the making by the Authority of safety management codes for pilotage providers; and (iv) the observation of such codes by a pilotage provider and by a licensed pilot under the control of a pilotage provider; and (v) matters relating to pilotage safety management systems including the content and implementation of such systems; and (vi) the keeping of records by a pilotage provider; and (vii) training of pilots, and monitoring of their performance, by a pilotage provider; and (viii) the professional liability of a pilotage provider and the limitation of that liability; and 29 Subsection 186E(1) (penalty) Repeal the penalty, substitute: Penalty: Imprisonment for 2 years. 30 Subsection 186E(2) (penalty) Repeal the penalty, substitute: Penalty: 50 penalty units. 31 Subsection 186E(5) (penalty) Repeal the penalty, substitute: Penalty: 50 penalty units. 32 At the end of Part IIIA Add: Division 2—Compulsory pilotage 186G Definitions (1) In this Division: length overall, in relation to a ship, has the meaning given by subsection (2) or (3). navigates without a pilot has the meaning given by subsections (4) and (5). regulated ship means any kind of ship: (a) that is 70 metres or longer in length overall; or (b) that is a loaded: (i) oil tanker; or (ii) chemical carrier; or (iii) liquefied gas carrier. (2) Subject to subsection (3), the length overall of a ship is 110% of the length as shown on the ship's load‑line certification. (3) If the length overall of a ship cannot be worked out under subsection (2), the length is taken to be the distance between: (a) a vertical line passing through a point that is the foremost part of the stem; and (b) a vertical line passing through a point that is the aftermost part of the stern. (4) Subject to subsection (5), a ship navigates without a pilot if the ship does not have a pilot on board to assist the master in navigating it. (5) If: (a) apart from this subsection, a ship navigates without a pilot; and (b) the ship is being towed by another vessel that is navigating with a pilot; the ship under tow is to be treated as if it were navigating with a pilot. 186H Regulations may provide for compulsory pilotage in certain circumstances (1) For the purposes of this Division, the regulations may make provision in relation to compulsory pilotage including provision specifying the waters that are compulsory pilotage areas for the purposes of this Division. (2) The waters that may be specified for the purposes of subsection (1) must be waters included within the waters referred to in subsection 186A(1). (3) This Division operates in addition to, and not in derogation from, any requirement for compulsory pilotage under the Great Barrier Reef Marine Park Act 1975 within the compulsory pilotage area under that Act. (4) A person is not liable to be prosecuted under this Act and the Great Barrier Reef Marine Park Act 1975 in respect of the same act or omission. 186I Offence to navigate without a pilot (1) If: (a) a ship is a regulated ship; and (b) the ship navigates in a compulsory pilotage area; and (c) the ship navigates in that area without a pilot; the master and the owner of the ship each commit an offence. Penalty: 500 penalty units. Note: If a body corporate is convicted of an offence, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine up to 5 times the maximum fine that could be imposed by a court on an individual convicted of the same offence. (2) An offence against subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (3) In any proceedings for an offence against subsection (1), it is a defence if the defendant proves: (a) that the ship was exempted under section 186K from the requirement to navigate with a pilot in the area; and (b) that the navigation complied with the terms of the exemption. Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code. 186J Pilots to issue certificates (1) If a pilot has provided pilotage services for a regulated ship in a compulsory pilotage area, the pilot must give the master of the ship a certificate in a form approved by the Authority. (2) The pilot must provide the certificate to the master before disembarking from the ship after the navigation in the area. (3) The certificate must: (a) identify the ship; and (b) identify the area; and (c) state that the pilot has provided pilotage services for the ship in the area; and (d) provide any other information specified by the Authority in the approval of the form of the certificate. 186K Exemption from requirement to navigate with a pilot (1) The master or owner of a regulated ship may apply to the Authority for an exemption from the requirement to navigate with a pilot in a compulsory pilotage area. (2) The application must: (a) be in writing; and (b) contain the prescribed information; and (c) be made in a form approved by the Authority. (3) The Authority must, after consideration of the application: (a) by instrument in writing, grant or refuse to grant the exemption applied for; and (b) give the applicant a copy of the instrument, and, in the case of a refusal, a statement of the reasons for that refusal. (4) A refusal to grant the exemption applied for may be a refusal to grant the exemption at all or a refusal to grant the exemption as to a part of the ship's proposed navigation in the compulsory pilotage area. (5) If the Authority grants an exemption, whether it is the exemption applied for or a lesser exemption, the exemption may be expressed to be subject to such conditions as are specified by the Authority in the instrument granting the exemption. (6) If: (a) a regulated ship is navigating in a compulsory pilotage area; and (b) the Authority has granted an exemption in respect of the proposed navigation by the ship in that area; and (c) that exemption is subject to conditions; and (d) the ship, in navigating in that area, fails to comply with those conditions; the master and the owner of the ship each commit an offence punishable on conviction by a fine not exceeding 500 penalty units. (7) An offence against subsection (6) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (8) An instrument under this section granting or refusing an exemption is not a leg