Division 9—Regulations and other legislative
instruments 310
159 Regulations 310
160 Regulations may prescribe matters relating to accreditation and approval 311
161 Offence of contravening a condition of accreditation 312
162 Regulations may prescribe penalties etc. 314
163 Legislative instruments other than regulations 314
164 Incorporation of material, etc. 315
165 Regulations may deal with transitional matters 315
No. 121, 2012
An Act to provide for a national law about marine safety for certain commercial vessels, and for related purposes
[Assented to 12 September 2012]
This Act may be cited as the Marine Safety (Domestic Commercial Vessel) National Law Act 2012.
(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.
| 1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 12 September 2012 |
| 2. Sections 3 to 19 | A single day to be fixed by Proclamation.<br>However, if the provision(s) do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | |
| 3. Schedule 1 | At the same time as the provisions covered by table item 2. | |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Definitions
(1) For the purposes of this Act, the local application provisions of this Act are the provisions of this Act other than the Marine Safety (Domestic Commercial Vessel) National Law set out in Schedule 1 to this Act.
(2) In the local application provisions of this Act:
Commonwealth Minister means the Minister of State administering this Act.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
corresponding State‑Territory law: see section 12.
Section 158 - Marine (Domestic Commercial Vessel National Law Application) Act 2013 - Adverse publicity orders 308 | Zoe
imposes a duty: see section 13.
international agreement means a treaty or agreement whose parties are:
(a) Australia and a foreign country; or
(b) Australia and 2 or more foreign countries.
Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth means the provisions applying as a law of the Commonwealth because of section 4.
participating Territory means the following:
(a) the Australian Capital Territory;
(b) the Jervis Bay Territory;
(c) the Territory of Ashmore and Cartier Islands;
(d) the Territory of Christmas Island;
(e) the Territory of Cocos (Keeling) Islands.
this jurisdiction means the Commonwealth.
(3) Terms used in the local application provisions of this Act and also in the Marine Safety (Domestic Commercial Vessel) National Law set out in Schedule 1 to this Act have the same meanings in those provisions as they have in that Law.
4 Adoption of Marine Safety (Domestic Commercial Vessel) National Law
The Marine Safety (Domestic Commercial Vessel) National Law set out in Schedule 1 to this Act, and regulations and other legislative instruments made under that Law:
(a) apply as a law of this jurisdiction; and
(b) as so applying, may be referred to as the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth.
5 Constitutional reach of Act
(1) This Act applies to activities of, or matters that relate to, the following:
(a) a vessel engaged in trade and commerce:
(i) among the States; or
(ii) between a State and a Territory; or
(iii) between 2 Territories;
(b) a vessel that is external to Australia;
(c) a vessel of which the owner, or any of the owners, is a constitutional corporation;
(d) a vessel, so far as the application of this Act to activities of, or in relation to, the vessel is reasonably appropriate and adapted to giving effect to Australia’s obligations under an international agreement;
(e) a vessel of which the owner, or any of the owners, is the Commonwealth or a Commonwealth authority;
(f) a vessel that is within a participating Territory;
(g) navigation or shipping, to the extent that the navigation or shipping relates to trade and commerce:
(i) among the States; or
(ii) between a State and a Territory; or
(iii) between 2 Territories;
(h) any matter that may be made the subject of the jurisdiction of the High Court under paragraph 76(iii) of the Constitution;
(i) things that are incidental to activities or matters referred to in any of the above paragraphs.
(2) For the purposes of subsection (1), an activity of, or a matter in relation to, a vessel includes, but is not limited to, an activity done by a person, or in relation to a person, in the capacity of owner, master or crew of the vessel.
(3) For the purposes of subsection (1), external to Australia means:
(a) beyond the baseline from which the breadth of the territorial sea is measured under section 7 of the Seas and Submerged Lands Act 1973; or
(b) any waters on the landward side of the territorial sea that are not within the limits of a State or internal Territory.
Note 1: For the baseline see Australia’s territorial sea baseline (AGPS) 1988: generally the baseline is the lowest astronomical tide along the coast but it also includes lines enclosing bays and indentations that are not bays and straight baselines that depart from the coast.
Note 2: A reference to Australia in any other provision of this Act includes a reference to the coastal sea of Australia: see section 15B of the Acts Interpretation Act 1901.
6 Relationship with State and Territory laws
(1) This Act is intended to apply to the exclusion of a law of a State or Territory that relates to marine safety so far as it would otherwise apply in relation to domestic commercial vessels.
(2) However, subsection (1) does not apply to a law of a State or Territory so far as:
(a) the law is prescribed by the regulations as a law to which that subsection does not apply; or
(b) the law deals with any of the following matters:
(i) management of ports, harbours and moorings;
(ii) environmental management, including pollution, impact assessments and sanctuaries;
(iii) pilotage;
(iv) management of dangerous goods;
(v) designation of waters, including designation of waters by reference to the vessels that are or are not permitted to operate in those waters;
(vi) regulation or prohibition of the operation of specified vessels or classes of vessels in specified areas;
(vii) harbour masters;
(viii) speed limits, navigation aids, traffic management plans, rules for prevention of collisions, no wash zones, the management of events on waterways, wrecks, salvage, passing dredges, towing objects, bar crossings and local knowledge requirements;
(ix) removing obstructions (including abandoned, sinking and derelict vessels) from navigable waters;
(x) the actions of persons under the influence of alcohol or other drugs;
(xi) false distress signals and calls;
(xii) management of passengers;
(xiii) repairs, cutting or welding occurring on board vessels;
(xiv) requirements for vessels conducting particular dangerous operations or operations that may cause offence, including hauling garbage;
(xv) prices charged for the provision of commercial services;
(xvi) fisheries management;
(xvii) storage, preparation, service and disposal of food and beverages on vessels;
(xviii) marine radio;
(xix) monitoring of marine communication services;
(xx) gas and electrical safety;
(xxi) workplace health and safety;
(xxii) emergency management and response;
(xxiii) any other matters prescribed by the regulations.
(3) To avoid doubt, this Act is not intended to apply to the exclusion of a law of a State or Territory that relates to activities or matters to which this Act does not apply under subsection 5(1).
(4) This Act is not intended to exclude or limit the operation of a law that is covered by subsection (2) and is capable of operating concurrently with this Act.
(5) This Act is not intended to exclude or limit the concurrent operation of a law of a State or Territory that is covered by subsection (2) and that makes an act or omission that is an offence against a provision of this Act an offence against the law of the State or Territory.
(6) Subsections (4) and (5) apply even if the law of the State or Territory does any one or more of the following:
(a) provides for a penalty for the offence that differs from the penalty provided for in this Act;
(b) provides for a fault element in relation to the offence that differs from the fault elements in relation to the offence against this Act;
(c) provides for a defence in relation to the offence that differs from the defences in relation to the offence against this Act.
(7) If:
(a) an act or omission of a person is both an offence against the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth and an offence against the law of a State or Territory or the common law; and
(b) the person is convicted of either of those offences;
the person is not liable to be convicted of the other of those offences.
(8) To avoid doubt, a reference in this section to a law of a State or Territory includes a reference to a provision of such a law.
7 Avoiding inconsistency, including operational inconsistency, arising between this Act and State and Territory workplace health and safety laws
(1) This section has effect despite anything else in the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth.
(2) This section does not apply to a provision of a law of a State or Territory that is capable of concurrent operation with the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth.
(3) A provision of the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth does not:
(a) prohibit the doing of an act; or
(b) impose a liability (whether civil or criminal) for doing an act;
if the doing of that act is specifically authorised or required by or under a provision of a law of a State or Territory that deals with workplace health and safety.
(4) A provision of the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth does not:
(a) require the doing of an act; or
(b) impose a liability (whether civil or criminal) for not doing an act;
if the doing of that act is specifically prohibited by or under a provision of a law of a State or Territory that deals with workplace health and safety.
(5) A provision of the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth does not operate to the extent necessary to ensure that no inconsistency (including operational inconsistency) arises between:
(a) the provision of the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth; and
(b) a provision of a law of a State or Territory that deals with workplace health and safety that would, but for this subsection, be inconsistent with the provision of the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth.
8 Extraterritorial operation
This Act applies within and outside Australia.
9 Charging of fees by States etc. not prevented
This Act does not prevent a State or the Northern Territory, or an agency of a State or the Northern Territory, charging a fee in relation to a thing done under the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth by a delegate of the National Regulator, or an accredited person, who is an officer or employee of that State, the Northern Territory or that agency.
10 National Regulator to pay amounts to States, etc.
(1) If:
(a) an amount payable under an infringement notice is paid to the National Regulator; and
(b) the infringement notice was issued by a marine safety inspector who is an officer or employee of an agency of a State or the Northern Territory, or by the National Regulator on the recommendation of such a marine safety inspector;
the National Regulator must pay to that State or Territory an amount equal to that amount.
(2) A payment of an amount to a State or Territory under subsection (1) is subject to the condition that, if the National Regulator becomes liable to refund the whole or part of that amount, the State or Territory must pay to the National Regulator an amount equal to the amount that the National Regulator is liable to refund.
11 Commonwealth consent to conferral of functions etc. on the National Regulator etc. by corresponding State‑Territory laws
(1) A corresponding State‑Territory law may confer functions or powers, or impose duties, on the National Regulator or other officer or authority of the Commonwealth.
(2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by a corresponding State‑Territory law to the extent to which:
(a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the National Regulator or other officer or authority; or
(b) the authorisation would otherwise exceed the legislative power of the Commonwealth.
(3) Subsection (1) does not extend to a function, power or duty of a kind specified in regulations made for the purposes of this subsection.
(4) This Act is not intended to exclude or limit the operation of a corresponding State‑Territory law that confers any functions or powers, or imposes any duties, on the National Regulator or other officer or authority to the extent to which that law:
(a) is consistent with subsections (1) to (3); and
(b) is capable of operating concurrently with this Act.
12 Meaning of corresponding State‑Territory law
(1) For the purposes of this Act, corresponding State‑Territory law means a law of a State or the Northern Territory that is declared by the Commonwealth Minister, by legislative instrument, to correspond to this Act, including such a law as amended from time to time.
(2) The Commonwealth Minister may revoke a declaration under subsection (1) in relation to a law of a State or the Northern Territory only if:
(a) the Minister is requested by the State or Territory concerned to revoke the declaration; or
(b) the State or Territory law has been amended otherwise than as unanimously agreed by the members of the COAG Council under the Intergovernmental Agreement for Commercial Vessel Safety Reform; or
(c) proposed amendments of the State or Territory law have been unanimously agreed by the members of the COAG Council under the Intergovernmental Agreement for Commercial Vessel Safety Reform, and the State or Territory law has not been amended in accordance with that agreement within a reasonable period after the agreement.
13 Meaning of imposes a duty
For the purposes of this Act, a corresponding State‑Territory law imposes a duty on the National Regulator or other officer or authority if:
(a) the corresponding State‑Territory law confers a function or power on the National Regulator or other officer or authority; and
(b) the circumstances in which the function or power is conferred give rise to an obligation on the National Regulator or other officer or authority to perform the function or to exercise the power.
14 When duty imposed
Application
(1) This section applies if a corresponding State‑Territory law purports to impose a duty on the National Regulator or other officer or authority of the Commonwealth.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:
(a) imposing the duty is within the legislative powers of the State or Territory concerned; and
(b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the National Regulator or other officer or authority of the Commonwealth.
Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 11 to the imposition of the duty by that law).
Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not
(3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by force of the law of a State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.
(4) If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.
(5) The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:
(a) is within the legislative powers of the Commonwealth; and
(b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the National Regulator or other officer or authority of the Commonwealth.
(6) To avoid doubt, neither this Act (nor any other law of the Commonwealth) imposes a duty on the National Regulator or other officer or authority of the Commonwealth to the extent to which imposing such a duty would:
(a) contravene any constitutional doctrine restricting the duties that may be imposed on the National Regulator or other officer or authority of the Commonwealth; or
(b) otherwise exceed the legislative power of the Commonwealth.
(7) This section does not limit section 11.
15 Imposing duty under State or Territory law
(1) This section:
(a) applies only for the purposes of the application of the provisions of this Act or another law of the Commonwealth (with or without modification) as a law of a State or the Northern Territory by a provision of a corresponding State‑Territory law; and
(b) does not apply for those purposes if the corresponding State‑Territory law otherwise provides.
(2) If the corresponding State‑Territory law purports to impose a duty on the National Regulator or other officer or authority of the Commonwealth to do a particular thing, the duty is taken to be imposed by the corresponding State‑Territory law to the extent to which imposing the duty:
(a) is within the legislative powers of the State or Territory concerned; and
(b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the National Regulator.
(3) To avoid doubt, the corresponding State‑Territory law does not impose the duty on the National Regulator or other officer or authority of the Commonwealth to the extent to which imposing the duty would:
(a) contravene any constitutional doctrine restricting the duties that may be imposed on the National Regulator or other officer or authority of the Commonwealth; or
(b) otherwise exceed the legislative powers of the State or Territory concerned.
(4) If imposing on the National Regulator or other officer or authority of the Commonwealth the duty to do that thing would:
(a) contravene any constitutional doctrine restricting the duties that may be imposed on the National Regulator or other officer or authority of the Commonwealth; or
(b) otherwise exceed the legislative powers of both the State or Territory and the Commonwealth;
the corresponding State‑Territory law is taken instead to confer on the National Regulator or other officer or authority of the Commonwealth a power to do that thing at the discretion of the National Regulator or other officer or authority of the Commonwealth.
16 Review of decisions under corresponding State‑Territory laws
(1) Applications may be made to the Administrative Appeals Tribunal for review of reviewable State‑Territory decisions.
(2) A decision made by the National Regulator in the performance of a function or the exercise of a power conferred by a corresponding State‑Territory law is a reviewable State‑Territory decision for the purposes of this section if:
(a) the law under which the decision was made provides for review by the Administrative Appeals Tribunal; and
(b) the decision is declared by the regulations to be a reviewable State‑Territory decision for the purposes of this section.
(3) For the purposes of this section, the Administrative Appeals Tribunal Act 1975 has effect as if a corresponding State‑Territory law were an enactment.
17 References in instruments to the National Law
(1) A reference in any Act or instrument to the Marine Safety (Domestic Commercial Vessel) National Law is a reference to:
(a) the Marine Safety (Domestic Commercial Vessel) National Law as applied under section 4; and
(b) a corresponding State‑Territory law.
(2) Subsection (1) has effect except so far as the contrary intention appears in the Act or instrument or the context of the reference otherwise requires.
18 Powers of magistrates
(1) A power conferred on a magistrate by the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth is conferred on the magistrate:
(a) in a personal capacity; and
(b) not as a court or a member of a court.
(2) The magistrate need not accept the power conferred.
(3) A magistrate exercising a power conferred by the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth has the same protection and immunity as if he or she were exercising the power:
(a) as the court of which the magistrate is a member; or
(b) as a member of the court of which the magistrate is a member.
19 Regulations
The Governor‑General may make regulations prescribing matters:
(a) required or permitted by the local application provisions of this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to the local application provisions of this Act.