Yamba Shipping Pty Ltd v Australian Maritime Safety Authority

Factual background 8 As observed, the MV Darra was due for a periodic out-of-water survey in July 2021. Her last out-of-water survey appears to have been done on 18 October 2016. As at July 2021, the only suitable slipway to conduct the survey, the BSE Slipway at Morningside (now the Austal Slipway), was not operating. On 15 July 2021, Yamba Shipping applied for and, on 26 July 2021, was granted approval to operate under AMSA EX07 until 19 October 2021. The exemption was based on a partial in-water survey on 23 July 2021 and on the proposed decommissioning of the vessel in October 2021. 9 On 19 October 2021, Yamba Shipping sought a further application for approval to operate under AMSA EX07 on the basis that the slipway remained closed and was not expected to reopen until November 2021. The exemption was proposed on the basis that the MV Darra was due to be replaced by another vessel in December 2021 and thereafter scrapped. On 21 October 2021, AMSA refused the application for an approval (October 2021 Decision). Yamba Shipping applied for judicial review of that refusal in the Federal Circuit and Family Court of Australia. On 18 February 2022, that proceeding was resolved at mediation. The Terms of Settlement included that Yamba Shipping would: have an in-water survey of the MV Darra conducted as soon as practicable; upon receipt of a report from the in-water survey assessment, make a further application for an approval; make the MV Darra reasonably available to AMSA for inspection; and have the vessel slipped for an out-of-water survey as soon as reasonably practicable after the slipway was operational and available. 10 An in-water survey of the MV Darra was undertaken by Mr Stephen Eiszele on 27 April 2022. Mr Eiszele recommended the MV Darra be permitted to operate under AMSA EX07. Yamba Shipping made a further application to AMSA on 21 May 2022. That application included the recommendation of Mr Eiszele and two ultrasonic thickness testing reports prepared by ALS Industrial Pty Ltd on 11 October 2018 and 21 October 2019 respectively. By that application, Yamba Shipping declared, inter alia, that it • consent[s] to AMSA making all reasonable enquiries in order to verify that the information provided by me in this application (and any attachments I have included with this application) is true and correct. • understand[s] and acknowledge[s] that AMSA may ask another person to provide any information, document or agreement that AMSA reasonably considers necessary for consideration of this application. 11 By Notice of Decision dated 14 July 2022 (July 2022 Decision), the Delegate informed Yamba Shipping that he decided to refuse the issue of an approval under the exemption saying, "Having regard to the condition of the vessel set out below, I am not satisfied that approving your application would not jeopardise the safety of a vessel or person." 12 This was the state of satisfaction the Delegate was required to achieve under the National Law before approving the application.

The procedural fairness ground 13 Articulating the requirements of procedural fairness in any given context can be somewhat elusive. In SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212, the Chief Justice put it this way at [7]: Fairness is normative, evaluative, context specific and relative. As such, its assessment is somewhat imprecise in articulation and open to debate. Nevertheless, subject to any clear contrary statutory intention, fairness is an inhering requirement of the exercise of state power: Jarratt v Commissioner of Police for NSW [2005] HCA 50; 224 CLR 44 at 56-57 [26]; and SZRUI at [5]. 14 In the absence of clear legislative intention to the contrary, the Delegate was required to accord procedural fairness to Yamba Shipping: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326. The question is "what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made": WZARH at [30] per Kiefel CJ, Bell and Keane JJ (emphasis added). 15 As was said by the Full Court in Sneddon v Minister for Justice [2014] FCAFC 156; 230 FCR 82 at [175] per Middleton and Wigney JJ, and cited with concordance in Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174; 265 FCR 177 at [38] per Flick, Griffiths and Derrington JJ: There are no concrete rules as to what procedures a decision-maker must employ to provide procedural fairness in any particular case. What will be both sufficient and necessary to ensure a fair hearing in any given case will depend on, and vary with, the context in which a decision-maker acts, including any statutory or regulatory requirements or considerations. (emphasis added) 16 The contextual importance of the enquiry cannot be overstated. In TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; 232 FCR 361, (also cited with concordance in Sneddon at [178] and Stowers at [38]), the Full Court per Allsop CJ, Middleton and Foster JJ, said at [86]: The required content of fairness in any particular case will depend on context: constitutional, statutory and human, on all the circumstances of the case: Salemi v MacKellar (No 2) [1977] HCA 26; 137 CLR 396 at 419. The fairness required relates principally to the procedure employed in dealing with the party in question. That may involve the exercise of state or governmental power over the individual, who may be vulnerable and powerless, or a great corporation. The terms of any statute will be critical. The common element is that, generally speaking, the exercise of power should be fair. That exercise will always have a human context. That is why, as Gleeson CJ said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at 14, fairness is not an abstract concept, but essentially practical. The concern of the law is to avoid practical injustice. Fairness is normative, evaluative, context-specific and relative. 17 In the present case, it is relevant to the contextual inquiry that Yamba Shipping's commercial interests have, and will continue to be, impacted by the refusal to grant the exemption. Ultimately, the touchstone as to whether natural justice or procedural fairness has been afforded is 'practical injustice': NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; 220 FCR 44 at [4] per Allsop CJ and Katzmann J (citations omitted). 18 It is therefore necessary to consider the statutory context within which the decision was made.

The statutory context 19 The National Law commenced on 1 July 2013. It brings all domestic (as opposed to foreign) commercial vessels under the same regulatory regime throughout Australia in relation to construction, crewing, and operations. Section 3 sets out the objects of the National Law, one of which is "to facilitate the development of a safety culture that will prevent, or mitigate the effects of, marine incidents": s 3(c). The requirement for a domestic commercial vessel to have an "in force" certificate of survey, in accordance with the provisions of Part 4, Division 2 of the National Law is one manifestation of that object. 20 It is common ground that the MV Darra was required to have an out-of-water survey conducted by 20 July 2021, failing which she would be in breach of the conditions of the COO because her certificate of survey would no longer be in force. It is also common ground that no out-of-water has subsequently been conducted. 21 Section 43 of the National Law creates an offence of strict liability for an owner of a domestic commercial vessel to operate the vessel, or cause or permit the vessel to operate, if a certificate of survey is not in force. 22 Section 143 of the National Law provides the power of exemption. Relevantly, it provides: (1) The National Regulator may exempt from the application of this Law, or specified provisions of this Law: (a) a specified vessel or class of vessels; or (b) a specified person or class of persons. … (4) An exemption may be granted: (a) on application in accordance with the regulations by a person; or (b) on the initiative of the National Regulator. … (6) The National Regulator must not grant an exemption, or impose conditions under subsection (5), unless the National Regulator is satisfied that the exemption concerned, taken together with the conditions to which it is subject, will not jeopardise the safety of a vessel or a person on board a vessel. 23 The current AMSA EX07 was promulgated pursuant to s 143(1) of the National Law on 29 June 2020. The exemption sought by Yamba Shipping was pursuant to Division 7 - Temporary operations - extension of time to finalise survey after certificate has expired. 15 Exemption (1) A domestic commercial vessel is exempt from the requirement to have a certificate of survey and any requirement to have a load line certificate if: (a) an application for approval for operation without the certificate of survey and required load line certificate is made to the National Regulator in the approved form; and (b) all in-water components of the renewal survey have been completed as far as is reasonably practicable, by an accredited marine surveyor or other person authorised to conduct inspections; and (c) the person who conducted the in-water components of the renewal survey has given the National Regulator a written report of each survey conducted of the vessel; and (d) the National Regulator approves in writing the operation of the vessel without the certificate of survey and load line certificate for the period. 24 The concept of "safety" is not defined expressly, either in the National Law nor in AMSA EX07. Nevertheless, the National Law imposes a duty on an owner to ensure the safety of the vessel, "so far as is reasonably practicable": National Law, s 12(1). Relevantly, s 12(2)(a), provides that without limiting what has been expressed as a general standard in s 12(1), an owner of a domestic vessel contravenes that subsection if "the owner does not provide or maintain the vessel so that the vessel is, so far as reasonably practicable, safe". Section 27 makes provision for determining what is reasonably practicable to ensure safety: In this Law, reasonably practicable, in relation to a duty imposed upon a person to ensure safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring safety, taking into account and weighing up all relevant matters, including: (a) the likelihood of the hazard or risk concerned eventuating; and (b) the degree of harm that might result from the hazard or risk concerned eventuating; and (c) what the person concerned knows, or ought reasonably to know, about: (i) the hazard or the risk concerned; and (ii) ways of eliminating or minimising the hazard or risk concerned; and (d) the availability and suitability of ways to eliminate or minimise the hazard or risk concerned; and (e) after assessing the extent of the hazard or risk concerned and the available ways of eliminating or minimising the hazard or risk concerned, the cost associated with available ways of eliminating or minimising the hazard or risk concerned, including whether the cost is grossly disproportionate to the hazard or risk concerned. 25 The application made by Yamba Shipping was to be exempt from complying with the National Law in circumstances where otherwise, failure to do so would constitute a criminal offence. Further, the National Regulator (acting through the Delegate) was directed, by s 143(6), not to grant such an exemption unless it was satisfied that the exemption will not jeopardise the safety of a vessel or a person on board a vessel. Section 27 provides some guidance to a decision-maker's consideration of whether or not to grant an exemption and if so, on what conditions, within the bounds of what is reasonably practicable not to jeopardise the safety of a vessel. 26 Unlike the provisions of s 38 of the National Law, which mandates the issue of a certificate of survey on application, if certain criteria are met, the obverse pertains to an application for exemption. The grant of an exemption requires a state of satisfaction on the part of the National Regulator that the safety of a vessel or a person on board a vessel will not be jeopardised. Absent that degree of satisfaction, the exemption must not be granted. To this extent, the circumstances of the present case are distinguishable from those considered in Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576.

The alleged procedural unfairness 27 Yamba Shipping contends it should have been provided with the following documents - a report prepared after the inspection of the vessel undertaken on 28 June 2022 by two AMSA- appointed inspectors (Darra Report), and "several documents and reports relevant to the vessel held by AMSA" which were listed in a decision paper prepared by the Delegate (Darra EAPP07-5766 Decision Paper) following receipt of the Darra Report (Historical Documents). Yamba Shipping did not contend it should have been provided with the Darra Decision Paper. 28 Yamba Shipping accepted the Historical Documents were known to it. They included documents relating to the condition of the MV Darra in the period up to 2021, including Improvement Notices and AMSA Directions. Yamba Shipping submitted these documents were relied upon by the Delegate as showing the vessel had a problematic history in terms of its compliance with the National Law. In those circumstances, Yamba Shipping submitted it lost the practical opportunity to make submissions that the documents were irrelevant and that they in fact showed its history of compliance with AMSA directives and the responsible operation of the vessel. 29 Against this background, and within the statutory context, it must be observed that the application for an exemption was Yamba Shipping's third in 10 months. It is somewhat artificial for Yamba Shipping to contend that it was not, or could not be, aware of the material that would be relied upon by a decision-maker in these circumstances: Alphaone [at 31]. Yamba Shipping concedes it was aware of the content of the Historical Documents, and by implication the safety compliance issues which would be of concern to AMSA. It is difficult to accept that Yamba Shipping lost the practical opportunity to make submissions as to the history of its compliance with AMSA directives or to address concerns about the vessel's maintenance. Yamba Shipping must be taken to have been on notice, not merely from its own knowledge of the Historical Documents, but especially from the previous decision of the National Regulator, made by a different Delegate, to refuse an exemption. The October 2021 Decision expressly noted "a negative compliance history as documented by National Law notices" and "numerous outstanding items that have been referenced by attending AMSA surveyors which are yet to be rectified at an out of water slipping". In this context, Yamba Shipping cannot have been ignorant of, nor taken by surprise that such issues would be relevant to any consideration of a subsequent application for exemption. It had the opportunity to address those issues proactively in its current application. It did not do so. 30 Further, in the context of an application for an exemption, the extent to which a decision-maker is obliged to provide an applicant with an opportunity to comment on documents relating to the safety of the vessel is informed by the statutory framework. That framework casts the obligation for being satisfied of the safety of the vessel firmly on the National Regulator. The Application Form for Temporary Operations Domestic Commercial Vessels requires an applicant to "explain how you will ensure the safety of the operation you intend to undertake". An applicant may attach relevant supporting documents. Once an application for exemption is made, the National Regulator must satisfy itself as to matters of safety. It may do so by making enquiries of any person in relation to the information provided in the application, and by requiring further information or documents from the applicant, to which Yamba Shipping expressly consented. It can also require the vessel to be made available to it for inspection. Yamba Shipping did so. 31 In all the circumstances, no practical injustice has been established in relation to the Historical Documents. 32 As to the Darra Report, Yamba Shipping contends it should have been provided with an opportunity to respond to its contents and the fact that two representatives of Yamba Shipping, one of whom was the Master, accompanied the inspectors during the inspection of the MV Darra cannot cure any procedural unfairness. In written submissions, Yamba Shipping contended that, in fact, the document which should have been relied on by the Delegate was the body-worn camera footage generated during the inspection. That contention was not pleaded as a separate ground of review, nor was it addressed in oral submissions. 33 The question is whether the negative considerations outlined in the Darra Report, and which formed the basis of the Darra Decision Paper, applying the touchstone of fairness, were an "obvious or natural evaluation of the material which need not be the subject of particular attention being drawn": Degning v Minister for Home Affairs [2019] FCAFC 67; 270 FCR 451 at [13] per Allsop CJ. 34 For the reasons already given in respect of the Historical Documents, the statutory context informs the enquiry as to "fairness". It is noteworthy that, within that statutory context, s 15(1)(c) of AMSA EX07 provides that the person who conducts the in-water components of the renewal survey is to give the written report of the survey, in this case the Darra Report, to the National Regulator. There is no requirement to give such a report to an applicant. 35 As already observed, Yamba Shipping was given the opportunity to make its case for an exemption in its application. It was also given the opportunity for two of its representatives to accompany the inspectors and to provide whatever commentary it thought relevant to its application during that inspection. It is evident from the Darra Report that a discussion in relation to at least some defects took place between the inspectors and the representatives of Yamba Shipping. The legal representative for Yamba Shipping submitted those matters were relatively minor non-compliance matters and Yamba Shipping understood that, once those matter were attended to, the vessel would be satisfactory. He conceded frankly, however, that there was no evidence before the Court to that effect. 36 The matters identified as requiring further consideration as to the vessel's seaworthiness were: a below the waterline external survey; targeted NDT of areas that are unable to be easily inspected and in particular where repairs have been undertaken; a more detailed inspection of where it is evident that significant amounts of water ingress are or have been (Anchor locker void and void space 2) due to observable corrosion of structural members and hull plating; and a detailed examination of the significant hull plate patches. 37 The Darra Decision Report outlined the negative considerations that emerged from the Darra Report. This in turn informed the Delegate's conclusion in the July 2022 Decision, on the basis of "several factors", that he could not be satisfied that the exemption will not jeopardise the safety of a vessel or a person on board a vessel. These factors were said to include, in summarised form: (1) Hull plate patches that were visible above the water line with "no evidence of the type of repair work having been conducted on the hull that would indicate that the underlying issues that caused the doubler platers to have been fitted below the waterline have been properly rectified". The Delegate opined, "Given the outside of the hull has not been sighted for a considerable period, there is a very real likelihood that existing corrosion has deteriorated, and that new, unidentified localising pitting corrosion has commenced". (2) Thickness test reports were not extensive and were not considered representative of the current condition of the hull, given they were conducted three to four years ago. (3) A temporary cement box remains in the port wing void which records indicate was likely installed around 16 months ago. Although the inspectors noted it appeared to be holding, it was unclear what deterioration occurred to the hull over time in way of the original failure and how it might behave under increased hydrostatic pressure and stresses during prospective operations. (4) Significant amounts of water ingress in way of anchor locker and Void space 2, apparently due to observable corrosion of structural members and hull plating. 38 As to the first factor referred to by the Delegate, being the multiple doubler plates attached to the hull, it is inconceivable that Yamba Shipping could be unaware of the significance of the doubler plates to the inspection given the whole point of the inspection was concerned with whether the Delegate could be satisfied as to the safety of the vessel, which necessarily included the integrity of the hull, in the absence of out-of-water survey since 2016. 39 As to the second factor, the thickness test reports, it is plain that Yamba Shipping was aware that hull thickness was a critical issue relevant to the decision of the Delegate. Yamba Shipping itself included the reports as an attachment to its application. 40 As to the third factor, the cement box, Yamba Shipping was aware the box was installed subsequent to the vessel's last out-of-water survey. It must be taken to have been aware that any temporary repair designed to deal with a breach of the hull would be an issue critical to the Delegate's decision. From the Bar table, the legal representative for Yamba Shipping argued that, whilst usually these boxes are used where there is a breach of the hull, in this case, it was placed over a pinhole leak in a weld. No evidence was led to this effect. 41 As to the final factor, the water ingress in way of the anchor locker and Void Space 2, it is again difficult to conceive that Yamba Shipping could be unaware of the significance of any water ingress to the safety of the vessel and that if any had been detected during the inspection, it may affect the decision to be made. 42 The purpose of Darra Report was not to identify defects and provide the applicant with an opportunity to comment on those findings. The purpose of the Darra Report was to provide a written report to the National Regulator of the in-water survey conducted of the vessel as required by s 15(1)(c) of AMSA EX07. Yamba Shipping must be taken to have been aware of that and, for the reasons already given, the issues or facts on which the decision was likely to turn were obvious and natural: Degning at [13]. 43 In all the circumstances, no practical injustice has been established in relation to the Darra Report. 44 No procedural unfairness having been established in respect of the Historical Documents or the Darra Report, the procedural fairness ground (Orders 1(a) and (b) sought by the Application) cannot succeed.

The jurisdiction ground 45 By Ground 6 (Order 1(f) sought by the Application), Yamba Shipping contends that by his decision, the Delegate decided that not only would the current application be refused, but any such future application would also be refused regardless of further evidence, such as a dive survey recommended by the AMSA inspectors. It was submitted the Delegate made a "future contingent decision" and had no jurisdiction to do so. Alternatively, it was contended the Delegate evinced a closed mind within the meaning of the bias rule. 46 The July 2022 Decision records: I also considered whether an in-water dive survey, if feasible, would provide a satisfactory confirmation of the condition of the outside of the hull below the waterline. In considering this option, I was not satisfied that such an inspection would be capable of ensuring that all areas of potential structural impact of multiple doublers and corrosion would be identified, even putting aside reported difficulties in local water clarity. 47 There is nothing in that passage to suggest the Delegate made a "future contingent decision". Indeed, he could not fetter any future decision-maker's consideration of a subsequent application. Nor does it suggest that he closed his mind to the possibility of considering further evidence that might be produced from a dive survey. To the contrary, the Delegate explicitly said he did consider that option, but for the reasons he articulated, could not reach the required level of satisfaction with an additional dive survey. 48 There is no substance to this ground.

The additional grounds 49 Ground 3 (Order 1(c) sought by the Application) was not pressed. 50 By Ground 4 (Order 1(d) sought by the Application), it was contended, albeit faintly, the Delegate formed a view there was deterioration and localised pitting of the hull, and such deterioration and pitting was "dangerous", with no evidence to support that view. There is no substance to this ground. 51 First, the Delegate was required to be satisfied that permitting the vessel the operate without having had an out-of-water survey will not jeopardise the safety of a vessel or a person on board the vessel. There is no requirement that, in order to reach that state of satisfaction, the Delegate must determine whether or not a particular defect in the vessel is "dangerous". 52 Secondly, there was evidence before the Delegate which included observations and photographs from the out-of-water survey in 2016 which noted the "heavily pitted hull", "deep pitting of bottom hull plate", and "hull bottom repair of indeterminant age". More recent reports identified similar issues, including that of Kedge Marine Surveyors dated 17 May 2021 and by Boat Surveys & Consultants dated 23 July 2021. It was a matter for the Delegate to determine whether that evidence could satisfy him that the exemption would not jeopardise safety. It did not. Further, it is not alleged that such a conclusion was irrational or illogical in the circumstances. 53 Ground 4 cannot succeed. 54 By Ground 5 (Order 1(e) sought by the Application), Yamba Shipping contends the Delegate took into account an irrelevant consideration, being his own idiosyncratic views as to the technical requirements for hull thickness testing. It is said the Delegate proceeded on the basis that the hull thickness reports ought not to be believed without advancing any reason other than the Delegate's own view to that effect. 55 The difficulty with this ground is that the Delegate did no such thing. The Delegate considered the reports which were supplied to it by Yamba Shipping. The Delegate did not disbelieve the reports. Rather, the Delegate observed they were "conducted 3 to 4 years ago". The Delegate also observed the scope of those reports was inadequate. On this basis, the Delegate was unable to reach the relevant state of satisfaction. No error can be discerned in this regard. 56 Ground 5 cannot succeed. 57 By Ground 7 (Order 1(g) sought by the Application), Yamba Shipping contends the Delegate made an error on the face of the record because he did not apply the appropriate test, that is, whether the condition of the vessel would place in jeopardy the safety of the vessel or any person on board the vessel. It was submitted that the Delegate failed to indicate what, if any evidence before him, enabled him to reach the view that the vessel or those aboard would be in jeopardy. Further, it was submitted that there is no indication of the Delegate considering whether any such concerns might be ameliorated by the gathering of further evidence (such as the recommended dive survey) or the application of appropriate conditions. 58 The latter submission cannot be accepted. It is no part of the decision-making process, within the statutory context previously outlined, for the Delegate to delay or postpone a decision while further evidence is gathered subsequent to the detail provided in the application, the in-water survey report, and any enquiries being made, or information and documents being sought, by the National Regulator subsequent to the application. 59 In any event, the test as stated by Yamba Shipping to have been misapplied by the Delegate is not the test. The test is not whether the Delegate has reached the view that the vessel or those aboard her would be in jeopardy. The Delegate is required to be satisfied the grant of an exemption will not jeopardise the safety of a vessel or a person on board the vessel. The Delegate correctly identified the test and, as identified above, specified the matters which caused him not to be so satisfied. 60 No error having been established, Ground 7 cannot succeed.

Utility of the relief sought 61 Had Yamba Shipping been successful in establishing any one of its grounds of review, the question of whether I should exercise the discretion to grant a declaration would have arisen. As at the date of the hearing, Yamba Shipping indicated the vessel was booked in to have her excavator removed and to have the fuel taken off the vessel at week's end in order to have the vessel slipped for an out-of-water survey on 17 October 2022. In such circumstances, there would have been a real question as to whether the relief sought was inutile such that it would have been inappropriate to exercise the discretion. In the circumstances, it is unnecessary to draw any conclusion about the utility of the relief sought.

Disposition 62 For the reasons give, the application must be dismissed with costs. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice SC Derrington.