PLAYING IT SAFE: The New National Marine Safety Laws
Are you an owner; designer; operator or crew-member of an existing or future commercial vessel? From July 1 2013, the Australian Federal Government’s National System for Commercial Vessel Safety will apply. These new national safety standards coincide with the passing of legislation, the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 and have a direct impact on Australia’s boating and yachting industry. With the introduction of these new laws certain standards, requirements and obligations are placed on those charged with the responsibility of designing and operating commercial vessels. The National System is a cooperative scheme between the Commonwealth, the States, and the Northern Territory providing a single national framework to ensure the safe operation, design, construction and equipping of commercial vessels.
According to the Australian Maritime Safety Authority (AMSA), the aims of the National Standards are to simplify maritime safety laws; remove barriers to inter-state commercial business activities; provide uniform safety requirements and standards; and provide a national framework for enforcement and compliance with these standards. Under the National Standards, AMSA becomes the national regulator, with responsibilities for:
- Developing national safety standards, guidelines, and codes of practice for marine safety.
- The issuing of identifiers and operation certificates.
- The accreditation of persons and organisations in relation to marine safety training
- Investigation, enforcement, and monitoring activities.
- Consultation with State and Northern Territory bodies regarding the activities of the National Regulator.
The new laws are of particular relevance to domestic businesses offering services in relation to the hire and charter of super-yachts within Australian waters. The continued operation and growth of the superyacht industry within Australian waters means updating procedures and standards in relation to how these vessels are designed, built, and operated is a welcome & logical step.
Who is covered by the new National Standards?
The new National System laws are of particular importance for those entering the industry and embarking on a new business venture, and everyone from designers, operators, masters and crews of superyachts will be affected by the new laws. They have a broad scope, and are aimed at covering as much of the field of commercial marine activity as possible. Any vessel that is used in connection with a commercial, government or research activity, will be subject to the new regulations. If a vessel is not used in connection with a commercial, government or research activity, then the vessel is considered recreational, and the new laws will not apply. State and Territory safety laws will continue to apply to these vessels instead. Significantly, Foreign flagged vessels that are used in connection with a commercial, government or research activity will not fall under these laws, but come under the Navigation Act 2012 (Cth).
If you are a new business entering the marine industry, then you will need to apply for a ‘National Law Certificate’ in order to operate your business in compliance with the laws. For those businesses already operating, you will need to apply for a ‘National Law Certificate, however this will occur when your existing state or territory certificates are up for renewal, to be completed by 2016.
Vessels operated by community groups, even if they are being used in connection with a commercial, government, or research activity, avoid the requirements of registration and certification under the new National System. A community group is considered to be a formal association that operates on a not for profit basis. These vessels will continue to be subject to State and Territory recreational vessel laws. Importantly, vessels cannot be used by non-members, where payment for use of the vessel has been made. So let’s say a non-member of the community group/association uses a vessel for hire or charter, and that non-member has provided payment for the use of the vessel. In this case the new laws will apply to that vessel and the people on it. This distinction must be clear, as the tax department are very interested in vessels being passed off as not for profit when in fact the opposite applies.
What is required by the new National Standards?
New and current commercial businesses should take note of the following regulations that will apply as a result of the implementation of the national laws.
New commercial operations with vessels greater than 7.5 metres in length (needless to say superyachts fall into this category), or operating in A, B or C waters, or vessels that carry passengers, or vessels specified as high risk will fall under the National Law Survey (Scheme S). Vessels in this scheme have to have a National Law Certificate of Operation. This certificate identifies the vessel(s), its area of operation, its service categories, and the activities related to its operation. In addition, vessels in this class are required to have a Certificate of Survey, and the Master (or Engineer or Deck Crew) who are required to hold a Certificate of Competency in relation to the vessel. Each vessel needs to display a unique registration identifier issued by the National Regulator. Importantly, existing vessels in survey prior to the commencement of the National Law will fall within Survey (Scheme S). No changes are required to their registration and certification until such a time as these vessels are transitioned onto the National System.
New vessels which are less than 7.5 metres in length, which operate in D or E waters, which do not carry passengers, and are not high risk will not fall within the Survey Scheme. These vessels will fall into Scheme NS, which does not require a certificate of survey for their operation. These vessels are still required to display their unique registration identifier, as well as have a National Law Certificate of Operation. Existing vessels which fall into this category are still required to abide by their State or Territory requirements until certificate and registration renewal is required, at which point, they will transition to the National Law standards. Failure to meet these requirements under the National Law can result in the imposition of fines for each contravention.
The National System places safety duties on owners of commercial vessels. Owners are required to ensure the safety and operation of the vessel, as well as provide and maintain safety equipment in relation to that vessel. Owners are required to provide training or supervision to people on board the vessel to a standard that is reasonably required to ensure their safety. Owners who breach these duties can face hefty fines or a maximum period of imprisonment of 2 years. Similar duties are imposed on manufacturers, designers, suppliers, and even people who maintain marine vessels to ensure that vessels are built up to a requisite safety standard. The vessel and its related safety equipment must be safe for the purpose for which it has been created. Testing and examination of the vessel and equipment may be required in order for manufacturers, builders etc. to discharge this duty. Breaching these duties attracts the same penalties that may be imposed on owners of vessels.
In short, owners, masters, crew members and vessel users must all do what is reasonably capable of being done to ensure the safety of the vessel and the people on board at all times. Moreover, Masters of commercial vessels are required to provide assistance to people believed to be in distress on a commercial vessel or in any waters, where it is reasonable to do so. Failure to render such assistance can result in imprisonment for 4 years. Similarly, owners of commercial vessels are required under the National System to report to the National Regulator any marine incidents involving the death or injury of a person, loss of vessel, loss of person from a vessel, or significant damage caused to a vessel.
Conclusion
The new National Law will provide a uniform approach to marine safety in Australia, and owners and operators of commercial vessels, as well as individuals wishing to enter the commercial marine industry need to be aware of the new system and what is required of them. The legislation isn’t something that should worry owners and operators, and meeting the requirements under the law will not involve any significant new costs. If anything the uniformity provided by the new scheme gives certainty to operators who are or are looking to operate interstate, as there will only be one scheme, as opposed to different schemes for each state. More importantly though, owners and operators need to understand the ongoing duties and responsibilities imposed upon them by the National Law to ensure the safe and continued enjoyment of our waterways by everyone!