Schedule Sch 2 - Marine (Domestic Commercial Vessel National Law Application) Act 2013 - amends General Safety Obligations in the National Law Bill to align the duties with those contained in the *Work Health and Safety Act 2011* (the Model WHS laws). As not all jurisdictions have enacted the Model WHS legislation, it is proposed that the amendments under Schedule 2 will commence when all jurisdictions have enacted the Model WHS laws. | Zoe
Marine (Domestic Commercial Vessel National Law Application) Act 2013
Sch 2amends General Safety Obligations in the National Law Bill to align the duties with those contained in the *Work Health and Safety Act 2011* (the Model WHS laws). As not all jurisdictions have enacted the Model WHS legislation, it is proposed that the amendments under Schedule 2 will commence when all jurisdictions have enacted the Model WHS laws.
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Schedule 2 amends General Safety Obligations in the National Law Bill to align the duties with those contained in the Work Health and Safety Act 2011 (the Model WHS laws). As not all jurisdictions have enacted the Model WHS legislation, it is proposed that the amendments under Schedule 2 will commence when all jurisdictions have enacted the Model WHS laws.
This Bill does not engage any of the applicable rights or freedoms.
This Bill is compatible with human rights as it does not raise any human rights issues.
the Hon Anthony Albanese MP**
OTHER MATTERS
Strict liability offences
Strict liability offences arise in a regulatory context where, for reasons such as public safety and the public interest in ensuring that regulatory schemes are observed, the sanction of criminal penalties is justified. They also arise in a context where a defendant can reasonably be expected, because of his or her professional involvement, to know what the requirements of the law are, and the mental, or fault, element can justifiably be excluded.
The rationale is that people who owe general safety duties, such as employers, people in control of aspects of work and designers and manufacturers of work structures and products, should be expected to be aware of their duties and obligations to workers and the wider public.
For strict liability offences in this Bill, the prosecution will have to prove only the conduct of the accused. However, where the accused produces evidence of an honest and reasonable, but mistaken, belief in the existence of certain facts which, if true, would have made that conduct innocent, it will be incumbent on the prosecution to establish that there was not an honest and reasonable mistake of fact.
Penalties for offences
The penalties for offences involving a breach of these GSOs mirror those in the WHS Act. The penalties for offences in the Bill are intended to reinforce the deterrent effect of the Bill and allow courts greater capacity to respond meaningfully and proportionally to the worst breaches by duty holders. Where death or serious injury results from a breach, the social and economic costs are likely to be far greater than even the maximum fines imposed by the Bill. Therefore, the overall objective of the penalties in the Bill is to increase compliance with the National Law and decrease the resort to prosecution to achieve that aim.
The levels of penalties are higher than those recommended by Commonwealth offence framing policy. However, they reflect recommendations of a national review into occupational health and safety, and were agreed upon by the Workplace Relations Ministers Council (WRMC). In making these recommendations the National OHS review noted that, in the case where death or serious injury results in a breach, the social and economic costs are likely to be far greater than even the maximum fines imposed by the Bill.
The penalties in the Bill also generally reflect the community’s view that any person who has a work-related duty of care, but does not observe it, should be liable to a criminal sanction for placing another person’s safety at risk.
The Bill provides for three categories of offences. The highest category of offences is for a breach of duties that is intentional and carries the highest maximum penalty under the Bill. Other categories of offences are for reckless and negligent breaches, which attract relatively lower penalties commensurate with the level of culpability of the defendant in the circumstances. Section 5 of the Criminal Code Act 1995 defines the meaning of intentional, reckless and negligent, in the context of Commonwealth offence provisions. Penalties are applied to each category of offence in accordance with the Criminal Code.
Penalties and the possibility of imprisonment in the most serious cases are a key part of achieving and maintaining a credible level of deterrence to complement other types of enforcement action, such as the issuing of notices by a marine safety inspector. The maximum penalties provided in the Bill reflect the level of seriousness of the offences and have been set at levels high enough to cover the worst examples of offence.
Clause 1 – Short Title
This is a formal provision that specifies that the Act may be referred to as the Marine Safety (Domestic Commercial Vessel) National Law (Consequential Amendments) Act 2012.
This clause sets out when each provision in this Act commences, or is taken to have commenced.
Clauses 1 to 3 commence on the day on which the Bill receives Royal Assent.
The provisions relating to Schedule 1, which amends the AMSA Act, commence immediately after the commencement of the National Law.
The provisions relating to Schedule 2, which aligns the offences and penalties for the General Safety Obligations (GSOs) with the model provisions contained in the Work Health and Safety Act 2011, will commence on a single day fixed by proclamation, but not before the first day that a law of a State or Territory that substantially corresponds to Part 2 of Work Health and Safety Act 2011 is in force as a law of that State or Territory.
If a proclamation date is not made within 6 months of a law of a State or Territory that substantially corresponds to Part 2 of the Work Health and Safety Act 2011 coming into force as a law of that State or Territory, the provisions relating to Schedule 2 of this Bill will commence on the first day after this 6 month period. If the provisions commence in this way the Minister must announce by a notice in the Gazette the day the provisions commenced.
Clause 3 – Schedule(s)
This clause makes it clear that each Act that is specified in one of the schedules to this Bill is amended or repealed in accordance with the relevant provisions.
The policy basis for the National Law derives from the COAG IGA, which determined that AMSA will be the National Regulator.
The following amendments to the AMSA Act are required to give effect to the terms agreed at the IGA.
Item 1 - Subsection 3(1)
This clause introduces the defined term “domestic commercial vessel” into the AMSA Act.
Item 1 - Paragraph 13(1)(e)
This amendment increases the number of AMSA Board members from 4 to 5. This change is required to implement the agreement reached in the IGA that the AMSA Board includes a member with knowledge of, or experience in, the operation or construction of non-SOLAS-Convention commercial vessels.
Item 2 - After subsection 13(4)
This amendment reflects the IGA agreement regarding the composition of the AMSA Board. This will ensure the AMSA Board includes a member with knowledge of, or experience in, the operation or construction of Domestic Commercial Vessels.
Item 1 - Subsection 22(6)
This amendment is an adjustment that results from the increase size of the AMSA Board that is required to accommodate the agreed composition for the National Regulator’s Board. The number of Board members required to constitute a quorum has increased from 4 to 5 members.
Schedule 2 – Marine Safety (Domestic Commercial Vessels) National Law Act 2012 (National Law)
Breaches of General Safety Duties
The following consequential amendments to the National Law are required to repeal the existing offences and penalties provisions for the general safety duties contained in the National Law and replaces them with provisions that mirror the provisions contained in Part 2 of the WHS Act.
Item 1 - Section 5
The amendment provisions mirror those contained in the WHS Act and depart from the penalty unit regime provided for in the National Law.
The insertion of Clause 5A reflects that penalties for a breach of safety duties in the WHS Act are expressed in dollar amounts and not penalty units. This approach is based on recommendations of the national review into occupational health and safety and agreed by the WRMC, which identified disparity in the monetary value of penalty units among the jurisdictions and opted for penalties to be expressed in dollar terms to avoid any confusion.
Definitions
The following items are required to insert definitions into the National Law that are required as a result of the consequential amendments. These give effect to the alignment of the general safety obligations to those provided for in the WHS Act.
Item 2 – this inserts the term “conduct” into the National Law.
Item 3 – this inserts the definition of “officer”.
Item 4 – this inserts the definition of “volunteer association”.
Item 5 – this inserts the term “worker” into the National Law.
Item 6 – this inserts the definition of “conduct a business or undertaking”.
Item 7 – this inserts the definition of “worker”.
Offences and penalty provisions
The following items address the alignment of the offence framework to that contained in the WHS Act in relation to breaches of general safety duties under the National Law.
The WHS Act provides for three categories of offences against health and safety duties.
Category 1 offences are for a breach that involves reckless conduct and carries the highest penalty, including imprisonment of up to 5 years. These offences involve reckless conduct that exposes an individual to a risk of death, serious injury or illness without a reasonable excuse.
Category 2 offences are for a breach that involves intentional conduct, but is not reckless conduct that exposes an individual to a risk of death, serious injury or illness without a reasonable excuse.
Category 3 offences do not require that a breach exposes an individual to a risk of death, serious injury or illness without a reasonable excuse, only that the act or omission that contravened the general safety duty occurred.
The level of penalties imposed for each of these categories of offences is dependent on whether the person is an individual, a body corporate, or an officer or person conducting a business or undertaking.
Item 8 – Section 13
This amendment aligns the offence provision provided for in section 13 of the National Law with the WHS Act.
Sub-clause 1 provides for a Category 1 offence, requiring recklessness and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.
Sub-clause 2 makes it clear that the prosecution bears the evidential burden of proving that a person did not have a reasonable excuse for the action or inaction that led to the breach of the general safety duty.
Sub-clause 3 provides for a Category 2 offence, requiring intent and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.
Sub-clause 4 clarifies that the physical element of whether an individual was or was not exposed to a risk of death or serious injury or illness is one of strict liability.
Item 9 – Section 15
This amendment aligns the offence provision provided for in section 15 of the National Law with the WHS Act.
Sub-clause 1 provides for a Category 1 offence, requiring recklessness and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.
Sub-clause 2 makes it clear that the prosecution bears the evidential burden of proving that a person did not have a reasonable excuse for the action or inaction that led to the breach of the general safety duty.
Sub-clause 3 provides for a Category 2 offence, requiring intent and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.
Sub-clause 4 clarifies that the physical element of whether an individual was or was not exposed to a risk of death or serious injury or illness is one of strict liability.
Item 10 – Section 18
This amendment aligns the offence provision provided for in section 18 of the National Law with the WHS Act.
Sub-clause 1 provides for a Category 1 offence, requiring recklessness and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.
Sub-clause 2 makes it clear that the prosecution bears the evidential burden of proving that a person did not have a reasonable excuse for the action or inaction that led to the breach of the general safety duty.
Sub-clause 3 provides for a Category 2 offence, requiring intent and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.
Sub-clause 4 clarifies that the physical element of whether an individual was or was not exposed to a risk of death or serious injury or illness is one of strict liability.
Item 11 – Section 20
This amendment aligns the offence provision provided for in section 20 of the National Law with the WHS Act.
Sub-clause 1 provides for a Category 1 offence, requiring recklessness and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.
Sub-clause 2 makes it clear that the prosecution bears the evidential burden of proving that a person did not have a reasonable excuse for the action or inaction that led to the breach of the general safety duty.
Sub-clause 3 provides for a Category 2 offence, requiring intent and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.
Sub-clause 4 clarifies that the physical element of whether an individual was or was not exposed to a risk of death or serious injury or illness is one of strict liability.
Item 12 – Section 161
This amendment aligns the offence provision provided for in section 161 of the National Law with the WHS Act.
Sub-clause 1 provides for a Category 1 offence, requiring recklessness and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.
Sub-clause 2 makes it clear that the prosecution bears the evidential burden of proving that a person did not have a reasonable excuse for the action or inaction that led to the breach of the general safety duty.
Sub-clause 3 provides for a Category 2 offence, requiring intent and exposing an individual to a risk of death, serious injury or illness without a reasonable excuse.
Sub-clause 4 clarifies that the physical element of whether an individual was or was not exposed to a risk of death or serious injury or illness is one of strict liability.
Item 13 – Application of amendments made by Schedule 2
This amendment makes it clear that the amendments provided for in Schedule 2 of the Bill only apply to actions or inactions that occur on or after the commencement of the Schedule.
Marine Safety (Domestic Commercial Vessel) National Law (Consequential Amendments) Act 2012
1 Short title 333
2 Commencement 333
3 Schedule(s) 335
Schedule 1—Consequential amendments 336
Australian Maritime Safety Authority Act 1990 336
Schedule 2—Breaches of general safety duties 337
Marine Safety (Domestic Commercial Vessel) National Law Act 2012 337
Marine Safety (Domestic Commercial Vessel) National Law (Consequential Amendments) Act 2012
No. 122, 2012
An Act to make amendments that relate to the enactment of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 and that align that Act with work health and safety laws, and for related purposes
[Assented to 12 September 2012]
This Act may be cited as the Marine Safety (Domestic Commercial Vessel) National Law (Consequential Amendments) 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 to 3 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 12 September 2012 |
| 2. Schedule 1 | Immediately after the commencement of section 3 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012. | |
| 3. Schedule 2 | A single day to be fixed by Proclamation.<br>A Proclamation must not specify a day that occurs before the first day there are in force in each State laws of the State that the Minister is satisfied correspond substantially to Part 2 of the Work Health and Safety Act 2011.<br>However, if the provision(s) do not commence within the period of 6 months beginning on that first day, they commence on the day after the end of that period. If the provision(s) commence in this way, the Minister must announce by notice in the Gazette the day the provision(s) commenced. The notice is not a legislative instrument. | |
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 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—Consequential amendments
Australian Maritime Safety Authority Act 1990
1 Subsection 3(1)
domestic commercial vessel has the same meaning as in the Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth.
Note: For Marine Safety (Domestic Commercial Vessel) National Law of the Commonwealth, see paragraph 4(b) of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012.
2 Paragraph 13(1)(e)
Omit “4”, substitute “5”.
3 After subsection 13(4)
(4A) The Minister must use his or her best endeavours to ensure that at least one of the members referred to in paragraph (1)(e) is a person who the Minister is satisfied has knowledge of, or experience relevant to, the construction or operation of domestic commercial vessels.
4 Subsection 22(6)
Omit “4”, substitute “5”.
Schedule 2—Breaches of general safety duties
1 After section 5 of the Marine Safety (Domestic Commercial Vessel) National Law