Marine Navigation (Regulatory Functions) Levy Collection Regulations 2018

This instrument relies on a small set of recurring legal concepts that determine when the Collector must adjust levies and how those adjustments are quantified. The principal concepts are: levy payments under the Act (referenced to subsections of s 6 of the Act), a defined interval of time (a "3 month period" and a "quarter"), the status of a ship as "prevented from putting to sea", and the role of the Collector as the actor who refunds or remits levy.

The regulations treat levy events and their adjustment as time-bound phenomena. For refund purposes the trigger requires three elements: levy must have been paid under specified subsections of the Act, the ship must be prevented from putting to sea for more than 30 consecutive days, and at least one of those prevented days must fall within the 3 month period beginning on the day levy became payable (regulation 6(1)(a)-(c)). For remission in regulation 7 there are two separate heads: regulation 7(1) requires the ship to be prevented from putting to sea on the day the levy becomes payable and for more than 30 consecutive days up to and including the day before the levy becomes payable; regulation 7(2) deals with a different interaction between prior payments and subsequently payable levies, using a 3 month counting window that begins on the day a previous payment became payable (regulation 7(2)).

The instrument uses formulaic computation to quantify the monetary impact. Each monetary adjustment is "worked out in accordance with the formula" printed in the instrument (regulation 6(2) and regulation 7(3)). The regulations then supply the variables that feed those formulas: for refunding, A is the amount of levy paid, N is the number of prevented days falling in the relevant 3 month period, and P is the number of days in that 3 month period (regulation 6(2)). For the remission under reg 7(2), A is the amount payable, N is the number of days from the start of the day the levy becomes payable to the end of the 3 month period, and Q is the number of days in the quarter beginning on the day the levy becomes payable (regulation 7(3)). The instrument therefore embeds arithmetic proportionality as the means by which the Collector adjusts monies.

The definition of prevented from putting to sea (regulation 9) is substantive: a ship is treated as "prevented" on a day if, at any time during that day, it is moored in a harbour and not engaged in ordinary merchant employment (including loading/unloading), or it is wrecked or stranded, or laid up for repairs, or prevented as a result of an industrial dispute. The use of the phrase "at any time during that day" means the status is assessed daily, not only when an entire day is consumed by the condition.

Finally, the instrument is formal in its cascade from the Act. It recognises that a number of key expressions are defined in the Act and it explicitly repeals the 1991 regulations (Schedule 1). The Collector's duties under these regulations are mandatory , the regulations use "must" when describing the Collector's obligations (regs 6(1), 7(1), 7(2)).

This instrument affects three categories of actors directly and several others indirectly. Directly affected actors are: the Collector charged with handling levy receipts and adjustments; owners, operators or other parties liable to pay the marine navigation levy under the Act in respect of ships; and any person responsible for keeping or producing records that support a ship’s operational status (masters, port operators, repair yards). Indirectly affected parties include port authorities and insurers who may be involved in proving a ship’s status when seeking a remission or refund, and the administrative staff within the department that services the Collector function.

The regulations place mandatory operational duties on the Collector. A Collector "must refund" an amount where the statutory criteria are met (regulation 6(1)) and "must remit" in two separately specified instances (regulation 7(1) and reg 7(2)). The Collector is therefore the decision-maker who will calculate the appropriate adjusted funds using the formulas and apply refunds or remissions to accounts.

Ship operators are the economically affected party. The instrument repeatedly frames the relief mechanisms around ships that are "prevented from putting to sea" (regulations 6, 7 and 9). The definition in regulation 9 identifies concrete states that will qualify a ship as prevented: being moored in a harbour but not engaged in ordinary employment (which explicitly excludes ordinary loading and unloading), being wrecked or stranded, being laid up for repairs, or being prevented by an industrial dispute. Those conditions determine whether an operator is eligible for a refund or remission.

Payment mechanics affect payers and the Collector. Regulation 8 authorises payment by electronic funds transfer for the purposes of paragraph 7(4)(c) of the Act. That means parties who are required to make payments under the Act may use EFT in the context identified in the Act (the instrument does not expand or limit other payment methods for other paragraphs of the Act).

Administrators responsible for the prior 1991 regulations are affected by repeal. Schedule 1 repeals the entire Marine Navigation (Regulatory Functions) Levy Collection Regulations 1991. Any processes, forms or administrative practices founded on the old instrument are therefore displaced by this instrument from its commencement date (see Schedule 1 and the commencement table in regulation 2).

The instrument does not itself state who the liable legal payer is under the Act (it references s 6(1), 6(2)(d) and 6(3)(c) of the Act in the refunds provision), nor does it alter liability allocation rules in the Act. Those foundational obligations remain located in the Act; these regulations affect the mechanics of adjusting levy amounts and the Collector’s obligations once eligibility conditions are met (regulations 6 and 7).

The regulations create succinct, mandatory duties for the Collector and rights in the form of entitlements to refunds or remissions for ships meeting defined criteria. The Collector's duties are expressed in mandatory language: "must refund" (regulation 6(1)) and "must remit" (regulation 7(1) and reg 7(2)). Those duties are contingent on factual predicates about the ship's status and timing.

Rights of refund. Under regulation 6 the Collector must refund an amount if three conditions are satisfied: levy was paid under specified subsections of the Act in respect of the ship; the ship was prevented from putting to sea on more than 30 consecutive days; and at least one of those days is in the 3 month period beginning on the day the levy became payable (regulation 6(1)(a)-(c)). When those conditions are present the monetary amount to be refunded is to be "worked out in accordance with the formula" provided in the regulation and the regulation defines the variables A, N and P that feed into that formula (regulation 6(2)).

Rights of remission. Regulation 7 creates two separate remission obligations. Regulation 7(1) obliges the Collector to remit levy payable in respect of a ship for which levy has most recently been paid if the ship was prevented from putting to sea on the day the levy becomes payable and on more than 30 consecutive days up to and including the day before the levy becomes payable. Regulation 7(2) covers situations where levy is payable under subsection 6(1) of the Act and becomes payable before the end of 3 months beginning on the day levy paid in respect of the ship under subsection 6(2) or (3) of the Act became payable; where this scenario arises the Collector must remit an amount worked out using a formula (reg 7(2)-(3)). The regulation defines the formula variables A, N and Q for that computation (regulation 7(3)).

Duty to accept electronic funds transfer. Regulation 8 expressly permits payment of levy by electronic funds transfer to a Collector for the purposes of paragraph 7(4)(c) of the Act. The regulation therefore imposes an operational duty to accept EFT as an authorised payment method for at least the specified purpose in the Act.

Definition duty. Regulation 9 prescribes the circumstances in which a ship is to be treated as "prevented from putting to sea" for the purposes of the instrument: moored and not engaged in ordinary employment (excluded from ordinary loading/unloading), wrecked or stranded, laid up for repairs, or prevented due to an industrial dispute. That definitional regulation constrains the Collector’s factual assessment obligations and shapes the entitlement criteria.

Limits and gaps. The regulations do not set out a formal administrative application procedure, time limits for claims, evidentiary standards, or appeal routes. They are focused on defining when a Collector must adjust levy and how to calculate amounts. The Collector's obligation to act is mandatory where conditions are met, but the instrument leaves the practical mechanics of making a claim, proving eligibility and appealing a decision to the Act or to administrative practice not contained in these regulations.

The regulations themselves do not create new criminal offences, fines, or specific enforcement mechanisms. The instrument is procedural and prescriptive about the Collector's obligations rather than punitive. It uses mandatory language ("must refund", "must remit") when imposing duties on the Collector (regs 6(1), 7(1), 7(2)); non-compliance with those duties would consequently be a failure to perform a statutory duty conferred under these regulations and the Act, but the instrument does not specify particular sanctions or enforcement remedies for such a failure.

Because the instrument is made under the Act (regulation 3), any penalties, remedies or enforcement processes that apply to levy collection more generally are likely contained in the Act or in other legislation rather than in this instrument. The regulations do not repeat or elaborate enforcement powers, review rights, dispute resolution steps, or criminal offences. They also do not prescribe administrative timelines for the Collector to process refunds or remissions, and they do not require claim forms or documentary thresholds; these procedural details are therefore matters for the Act or administrative practice.

That absence matters for practitioners. If a Collector fails to perform a mandatory duty under these regulations (for instance, by not remitting or refunding where the specified conditions are satisfied), the available legal remedies are not identified within the regulations. Any enforcement must therefore be sought under the Act, general administrative law (for example, judicial review) or other applicable statutes. Those avenues are not set out in this instrument.

The instrument creates compliance obligations for ship operators and others who wish to secure a refund or remission, but it does not create new enforcement obligations for payers beyond adhering to levy payment rules under the Act. The only affirmative operational direction about payment methods is that payment can be made by electronic funds transfer for the purposes of paragraph 7(4)(c) of the Act (regulation 8), which reduces transactional friction but does not create enforcement consequences.

In short, the regulations impose mandatory duties on the Collector and set calculation methods for adjustments, but they do not themselves institute penalties or an enforcement machinery; enforcement depends on the Act and general law (the specific sections and remedies of which are not included in this instrument).

The instrument operates directly under the authority of the Marine Navigation (Regulatory Functions) Levy Collection Act 1991 and makes multiple explicit references to provisions of that Act. Regulation 3 states the instrument is made under the Act; regulation 5 notes that a number of expressions used in the instrument are defined in the Act, including "Australian port" and "quarter". The mechanics of refund and remission repeatedly refer to levy payments made "under subsection 6(1), or paragraph 6(2)(d) or (3)(c), of the Act" (regulation 6(1)(a)) and to levy payable "under subsection 6(1) of the Act" (regulation 7(2)(a)). Regulation 8 explicitly addresses paragraph 7(4)(c) of the Act by allowing payment by electronic transfer for the purposes of that paragraph.

Because the regulation repeatedly delegates definitional and liability matters back to the Act, it must be read together with the Act in order to identify who is liable to pay the levy in the first instance, what triggers levy becoming payable, what powers a Collector has to recover unpaid levy, and what broader administrative and enforcement procedures apply. The instrument does not attempt to displace or vary payment liability rules in the Act; it prescribes the circumstances in which a Collector must provide relief (refund or remission) and how to quantify that relief.

The instrument also effects a repeal of the earlier Marine Navigation (Regulatory Functions) Levy Collection Regulations 1991 (Schedule 1). That repeal means existing administrative and compliance frameworks, forms, and processes established under the 1991 regulations are superseded. Any cross-references in other subordinate instruments that pointed to the repealed instrument will need to be considered in the light of this repeal and the Act.

No other statutes are named or amended by this instrument. The instrument does not contain transitional provisions beyond the straightforward repeal in Schedule 1 and the commencement table indicating the whole instrument commenced on 1 October 2018 (regulation 2 and Schedule 1). The instrument’s definition of prevented from putting to sea (regulation 9) interacts substantively with maritime operations law and labour law insofar as it lists industrial dispute as a qualifying cause; however, the instrument itself does not modify industrial relations law , it simply treats industrial dispute as one factual circumstance that constitutes being prevented from putting to sea.

Because the regulations rely on definitions in the Act, any legal questions about the meaning of "quarter", the identity of a Collector, or who initially owes the levy will require reference to the Act. The instrument makes no separate attempt to re‑define those terms.

The instrument contains a single amendment history point within its own text: it was made on 13 September 2018 and the whole instrument commenced on 1 October 2018 (regulation 2 and the commencement table). The commencement table includes a note that it relates only to the provisions of the instrument as originally made and that it will not be amended in this published table to reflect later amendments, however no later amendments are included in the text provided. The instrument therefore appears as a single, original exercise of subordinate legislative power to replace the 1991 regulations.

Schedule 1 replicates the repeal action: it repeals the entire Marine Navigation (Regulatory Functions) Levy Collection Regulations 1991. The Schedule states plainly that "The whole of the instrument" is repealed. No partial repeals are recorded; the prior instrument is removed in its entirety. The regulations do not contain saving or transitional provisions for actions taken under the 1991 regulations. The commencement provision and Schedule 1 together therefore effect a simple substitution: the 2018 regulations supersede and replace the earlier 1991 instrument from 1 October 2018.

The instrument also contains a drafting note about the commencement table: regulation 2(2) explains that any information in the table's Column 3 is not part of the instrument and may be edited or inserted in published versions; that is a publication and explanatory detail rather than a legislative amendment. No other textual amendments, revocations of specific provisions, or subsequent schedules altering the 2018 instrument are present in the provided text.

Practitioners should therefore treat the instrument, as provided, as the operative regulations from 1 October 2018 forward, replacing the 1991 regulations in full. The instrument itself does not include any later amendments or historical annotations beyond those two items.

The instrument contains no references to judicial decisions, administrative determinations, appeals, or prior litigation. It names no cases and cites no decisions. There are no recorded legal challenges, declaratory judgments, or reported disputes within the text of the regulations.

Because the regulations are procedural and confine themselves to calculation rules, definitional clarifications and the Collector’s mandatory duties, any litigation that might arise would likely concern interpretation of the formulas, the factual application of the "prevented from putting to sea" definition, or disputes about whether the necessary temporal conditions (for example, "more than 30 consecutive days" and the relevant "3 month period" or "quarter") are satisfied. Those kinds of disputes would be litigated or reviewed under administrative law principles, but the instrument itself does not supply any litigation history to cite.

The repeal of the 1991 regulations is effected in Schedule 1; the instrument does not mention whether litigation concerning the 1991 instrument exists or whether any transitional disputes arose on repeal. The regulations make no mention of dispute-resolution processes or appeal mechanisms within the instrument text; remedies and review will depend on the Act and on general administrative law, neither of which are included in this instrument as a source of litigation history.

In short, there is no litigation history recorded in the instrument. Any legal practitioners researching disputes about the operation of these regulations will need to consult court or tribunal databases and the Act for records of challenges or appeals that post‑date or interpret these regulations; the regulations themselves provide no litigation citations.

Several practical and interpretative points in the instrument can create traps or unexpected outcomes if not mindfully applied. These are not normative judgments but concrete operational risks and friction points that arise from the instrument’s text.

1. "At any time during that day" aggregation. Regulation 9 states that a ship is prevented from putting to sea on a day "if, at any time during that day, the ship" meets one of the specified conditions. That formulation makes the day the atomic unit of counting: even a partial day of qualifying status makes that whole day count as "prevented" for the purposes of counting consecutive days under regs 6 and 7. Practically this can extend the count by days where only a portion of the day is affected. Collectors and operators must therefore count on a day‑by‑day basis rather than pro‑rata hourly measures.

2. Interaction of >30 consecutive days with different timing windows. Both refund and remission require "more than 30 consecutive days" but they attach that requirement to different temporal windows. For refunds (regulation 6(1)) at least one of those days must be in the 3 month period beginning on the day the levy became payable. For the remission in reg 7(1) the 30 consecutive days must include the day the levy becomes payable and include the day before the levy becomes payable. Those two constructs are similar but distinct; in practice operators must calculate which rule applies to their factual sequence (for example, whether they seek a refund of a recently paid levy that overlapped a prevented spell, or a remission of an upcoming levy because of a prior prevented spell). Misapplication of the wrong temporal test will produce incorrect accounting.

3. Moored but "engaged in the ordinary employment" carve-out. Regulation 9(a) excludes from "prevented" ships that are moored in a harbour but still engaged in the ordinary employment of a merchant ship for hire or reward, explicitly including loading and unloading passengers or cargo. That means a vessel moored but actively loading or unloading will not count as "prevented". On the other hand, a vessel moored but not engaged in ordinary employment will count as prevented. The clause therefore hinges on operational characterisation; parties need contemporaneous port and cargo handling records to show whether mooring time constitutes ordinary employment or qualifies for relief.

4. Industrial dispute as a qualifying cause. Regulation 9(d) includes industrial dispute as a separate cause qualifying a day as prevented. That broad phrasing may encompass a range of labour actions, but the instrument does not define what form or scope of industrial dispute qualifies. Evidence requirements or thresholds for industrial disputes are not specified, which can generate disputes about whether the ship was genuinely prevented by an industrial dispute or by other operational choices.

5. Formulas are included but procedural steps are not. The regulations provide formulas and define their variables (regulations 6(2) and 7(3)) but they do not describe how to lodge a claim, what proof is required, whether claims can be backdated, or what timeframes the Collector must observe. In practice that means operators might face administrative uncertainty: the legal entitlement exists, but the instrument leaves practical application to the Collector and the Act.

6. Repeal of the 1991 instrument without transitional text. Schedule 1 repeals the earlier regulations in full. The new instrument contains no transitional provisions addressing ongoing administrative affairs under the 1991 regulations. Entities relying on prior practice should therefore check records, receipts and prior adjustments as there is no transitional safety net written into these regulations.

7. Reliance on definitions in the Act. Regulation 5 notes that a number of expressions are defined in the Act (for example, "Australian port" and "quarter"). The instrument therefore imports conceptual elements that are outside its own text. That can create interpretive risk: key determinations such as the start and end of a quarter require reference to the Act.

8. Collector-centric structure. The regulations create obligations in favour of payers but place operational responsibilities with the Collector. The instrument does not give a private right of action within the regulation itself (for example, it does not specify appeal mechanisms should the Collector refuse a remission). Therefore a denied claim may require relying on the Act and general legal remedies such as judicial review.

These "gotchas" arise from textually evident features of reg 6, reg 7, reg 8, reg 9 and Schedule 1. Practitioners should anticipate evidentiary disputes about daily counts, need for contemporaneous operational records, and the absence of procedural detail about claims.

To secure the refunds and remissions that the regulations create, parties should establish documentary and operational practices that map directly to the factual predicates and variables the instrument specifies. The regulations impose mandatory duties on the Collector when conditions are satisfied (regs 6(1), 7(1), 7(2)), so compliance is primarily about ensuring the facts that trigger those duties are provable and recorded.

1. Record days of prevention precisely. Because regulation 9 counts a day as "prevented" if the ship meets any of the listed conditions at any time during that day, maintain daily logs that record whether a ship was moored and engaged in ordinary employment, wrecked or stranded, laid up for repairs, or subject to an industrial dispute. Logs should record start and stop times, nature of work, and supporting documentation such as port handling records, repair invoices, police or salvage reports for wreck/stranding, or written records of industrial action.

2. Establish continuity evidence for "more than 30 consecutive days". Both refund and remission rules require more than 30 consecutive days. To prove consecutiveness, retain unbroken records for the entire span (no gaps). This will likely include night reports, surveyor certificates, berth records and correspondence relating to industrial disputes. Because the day is the counting unit, ensure daily attestations exist for the full period.

3. Capture the relevant time windows and compute N, P and Q. The amount to be refunded or remitted is specified by formula variables set out in regulation 6(2) and regulation 7(3). Ensure accurate computation by capturing: A (amount paid or payable), N (the number of prevented days in the specific 3 month or period), P (days in the relevant 3 month period) and Q (days in the relevant quarter). Keep source documentation of how each variable was calculated, and maintain versions of computations to present to the Collector if required.

4. Keep payment and levy records aligned with Act references. The regulations refer to levy payments made under specific subsections and paragraphs of the Act (for example, subsection 6(1), paragraph 6(2)(d) and 6(3)(c)). Maintain books and receipts that link each levy payment to the precise statutory footing under the Act so that refund/remission claims can identify the referenced subsection or paragraph without ambiguity.

5. Use electronic funds transfer where authorised. Regulation 8 authorises payment by electronic funds transfer to a Collector for the purposes of paragraph 7(4)(c) of the Act. Ensure banking arrangements permit EFTs to the Collector’s account, and retain bank confirmations as proof of payment when establishing the timing of levy payments and consequent eligibility.

6. Prepare to demonstrate the nature of harbour activity. Regulation 9(a) distinguishes between being moored and being "engaged in the ordinary employment of a merchant ship for hire or reward, including the loading and unloading of passengers or cargo". To secure a remission or refund, provide contemporaneous evidence that the vessel was not engaged in ordinary employment during the relevant days. Conversely, if seeking to assert that days were not "prevented" because ordinary employment was ongoing, preserve cargo manifests, passenger lists and stevedoring records.

7. Document industrial dispute evidence. If industrial dispute is the cause of being prevented from putting to sea (reg 9(d)), document the dispute: union notices, industrial tribunal decisions, correspondence with labour providers, port notices, and any strike notices. Because the regulations do not define the contours of "industrial dispute", robust documentary grounding will reduce contestability.

8. Liaise early with the Collector’s office. The instrument creates obligations on the Collector, but does not stipulate administrative claim forms or time limits. Contact the Collector’s office proactively to confirm any preferred claims process, required documents, and internal timeframes for processing refunds and remissions. Save correspondence confirming the Collector's requested documentation.

9. Retain legacy documents from the 1991 regime. Schedule 1 repeals the 1991 regulations in full. If prior adjustments were made under the 1991 regulations or if there were ongoing disputes, keep those records to show historical positioning and to resolve any issues that overlap the transition to the 2018 instrument.

10. Anticipate administrative challenge and legal review. The instrument confers mandatory duties on the Collector but leaves procedural detail to the Act or administrative practice. Where a Collector refuses to acknowledge an entitlement, remedies will not be found in the regulations themselves; expect to rely on the Act and general administrative law for dispute resolution. Keep detailed contemporaneous records to support any subsequent review or judicial challenge.

These compliance steps derive directly from the textual requirements in regulations 6, 7, 8 and 9 and the repeal in Schedule 1. They are practical measures to create the factual trail necessary for the Collector to perform the "must" duties that the instrument imposes.