Marine Order 76 (Health — medical fitness) 2017

Certificate of medical fitness. This is the central document in the regime. It is defined in section 4 as a certificate issued by a medical inspector (section 13), an expert panel (section 14), or a medical practitioner in an overseas country (section 15). The certificate must evidence that the person is medically fit for the particular duties performed, not merely fit in a general sense. The distinction is important: a person might hold a certificate for deck duties but not for engineering duties, and performing duties outside the scope of the certificate would breach section 7 or 8.

Medical inspector. A person appointed by AMSA under section 12 who must be registered as a medical practitioner in an Australian state or territory. Medical inspectors are the primary assessors. They must assess fitness against the AMSA-published Standards and complete a medical examination report in an approved form. The Order does not prescribe qualifications beyond medical registration, leaving the selection criteria to AMSA’s discretion.

Expert panel. Where a person has been assessed as medically unfit, or fit for particular duties only, in consecutive assessments, the person may arrange to be assessed by an expert panel (section 14). The panel must consist of an occupational physician, a specialist physician or surgeon, and a medical inspector. The panel must be approved by AMSA, and the person arranging the assessment bears all related costs (section 14(5)). This is a significant cost imposition on the individual: there is no employer or AMSA obligation to fund the panel. The expert panel may issue a certificate of medical fitness, overriding a medical inspector’s unfitness finding, but only if the panel assesses the person as fit in accordance with the same AMSA Standards.

Medically unfit evidence. Section 10 creates a self-reporting obligation that is broader than a duty to hold a current certificate. A seafarer must not perform duties if he or she has a change in medical condition that would make the seafarer unfit. The same obligation applies to licensed pilots. This is a continuing duty: it operates between assessments, and it is not limited to conditions that would obviously prevent performance. The phrase ‘change in medical condition that would make the seafarer unfit’ is not further defined, which gives AMSA and enforcement bodies interpretive latitude. The offence is strict liability.

Aids to vision or hearing. Where a certificate states that an aid to vision or hearing was used to meet the fitness standard, the holder must use that aid while performing duties, carry a spare aid to vision, and carry spare batteries for an aid to hearing (section 9). The requirement for a spare vision aid is more onerous than for hearing aids (spare batteries only). Failure is a strict liability offence with a 50 penalty unit maximum.

Duration and expiry. A certificate may be issued for up to two years generally, or up to one year if the person is not more than 18 years old or at least 55 years old at the date of assessment (section 16(1)). Certificates may be issued for shorter periods if further examination is required to assess continued efficacy of treatment. If a certificate expires during a voyage, it continues in force until the earlier of the next port where a medical inspector is available, or three months after expiry (section 16(2)). A certificate also expires if a further certificate is issued (section 16(3)), meaning a holder cannot hold two concurrent certificates.

Revocation. AMSA may revoke a certificate if the person fails to comply with a direction to be assessed by a medical inspector following evidence of injury, illness or change in condition (section 17). Revocation is discretionary and can occur only if the failure was not reasonable in the circumstances. This gives AMSA a lever to compel reassessment, but the ‘reasonable in the circumstances’ test provides a safeguard. Decisions under section 17 are reviewable under Marine Order 1 (Administration) 2013 (section 6).

The Order applies to three categories of person under section 5: seafarers performing duties on regulated Australian vessels and the owners of those vessels; licensed pilots; and pilotage providers.

Seafarers. This term is defined in the Navigation Act and includes crew members performing functions on a regulated Australian vessel. The Order catches both Australian and foreign seafarers where they are performing duties on such a vessel. The obligation is personal: a seafarer cannot rely on an employer’s failure to arrange an assessment as a defence, because the offence is strict liability. The requirement that the certificate evidence fitness for the particular duties means that a seafarer who changes roles or vessels may need a new or amended certificate even if the old one has not expired.

Owners of regulated Australian vessels. The owner bears a positive duty not to take the vessel to sea if any seafarer on board lacks the required certificate (section 7(2)). This is a gatekeeping obligation: before departure, the owner must verify that every seafarer holds a certificate that evidences fitness for the duties to be performed. The duty is not delegable by contracting out, and the strict liability character means that a mistaken belief that a certificate is valid is not a defence.

Licensed pilots. The Order applies to pilots performing duties on regulated Australian vessels, not merely to pilots on vessels in compulsory pilotage areas. The same medical fitness standards apply as for seafarers. Pilotage providers can also direct a licensed pilot to be assessed if there is evidence of injury, illness or change in condition (section 10(4)).

Medical practitioners. Medical inspectors must be registered medical practitioners in a state or territory (section 12). The Order does not require them to have specialist qualifications in occupational medicine or maritime medicine, though the Standards document may impose additional expectations. Overseas medical practitioners may issue certificates only if they are in a country whose administration has an agreement with Australia for AMSA to recognise its certificates of competency, and if they have been appointed by that administration in accordance with the STCW Convention and Code (section 15). This restricts the pool of overseas assessors significantly.

Expert panel participants. The occupational physician, specialist physician or surgeon, and medical inspector who constitute an expert panel are affected in that they must be approved by AMSA. There is no right for a person to choose any specialist; AMSA must approve the panel (section 14(4)).

Pilotage providers. They are relevant entities under section 5(c) and can direct a licensed pilot to be assessed (section 10(4)). They also have an interest in ensuring that pilots they engage hold valid certificates, because a pilot performing duties without a certificate may expose the provider to operational and reputational risk, though the Order does not impose a direct penalty on a pilotage provider for engaging an uncertified pilot.

Core duties:

Duty to hold a certificate. Seafarers and licensed pilots must hold a certificate of medical fitness evidencing fitness for particular duties (sections 7(1) and 8(1)). The duty is ongoing and must be satisfied before any duty is performed; there is no grace period for a lapsed certificate other than the limited voyage continuation under section 16(2).

Duty not to perform duties if medically unfit. Section 10 imposes a self-reporting obligation. A seafarer or licensed pilot must not perform duties if he or she has a change in medical condition that would make the person unfit. This is not limited to conditions that have been formally diagnosed or certified. The duty is triggered by the fact of the condition, not by a third party’s knowledge. A person who suspects a change but has not yet been reassessed must cease duties until a new certificate is obtained.

Duty to use and carry aids. Where a certificate is conditional on an aid to vision or hearing, the holder must use the aid while performing duties, carry a spare vision aid, and carry spare hearing aid batteries (section 9). The asymmetry between vision (spare aid) and hearing (spare batteries only) reflects the greater risk of vision loss without a backup device.

Duty to make certificate available. A seafarer or licensed pilot must make a copy of the certificate available for inspection at all reasonable times if asked by the owner, master, or an inspector (section 11). ‘Inspector’ is not defined in this Order but is likely an authorised officer under the Navigation Act.

Owner’s duty. The owner of a regulated Australian vessel must not take the vessel to sea if any seafarer on board does not hold the required certificate (section 7(2)). This duty is non delegable: the owner cannot rely on a master’s representation without verification and still faces strict liability.

Duty to comply with direction for assessment. Sections 10(3) and 10(4) empower AMSA, the owner, or the master to direct a seafarer, and AMSA or a pilotage provider to direct a licensed pilot, to be assessed for a replacement certificate where there is evidence of injury, illness or change in condition. Failure to comply can lead to revocation of the existing certificate under section 17, though only if the failure was not reasonable.

Key rights:

Right to expert panel assessment. A person found unfit, or fit only for particular duties, in consecutive assessments may arrange to be assessed by an expert panel (section 14(1)). This is a right, not a privilege, but it is subject to the person bearing all costs (section 14(5)). The panel can issue a certificate that overrides the medical inspector’s earlier finding. The person may bring medical reports and other evidence to the panel.

Right to review. A decision by AMSA to revoke a certificate under section 17 is a reviewable decision under section 17 of Marine Order 1 (Administration) 2013 (section 6). This provides for merits review, likely by the Administrative Appeals Tribunal or its successor. The Order does not specify a right to internal review or to stay a revocation pending review.

Right to overseas assessment. A seafarer who is in a country with a relevant agreement with Australia may obtain a certificate from a local medical practitioner appointed under the STCW Convention (section 15). This right is limited to countries with such agreements; it is not a general right to use any overseas practitioner.

The Order creates a dual penalty structure: criminal prosecution (strict liability offences) and civil penalty proceedings. Each relevant offence or contravention carries a maximum of 50 penalty units. The penalty unit amount is set by section 4AA of the Crimes Act 1914 (Cth) and is currently indexed. At the 2024-25 rate of $313 per unit, 50 units equals $15,650, though this figure is not stated in the Order itself.

Strict liability offences. Sections 7(1), 7(2), 8(1), 9(1), 10(1) and 10(2) each declare the offence to be strict liability. This means no fault element (intention, knowledge, recklessness) need be proved. The only defence is a mistake of fact if the defendant held an honest and reasonable but mistaken belief about a factual element. A defendant who believes a certificate is valid when it has expired, or who does not realise a condition change makes them unfit, will not have a defence unless the belief was both honest and reasonable. Strict liability is a standard feature of Australian regulatory schemes, but it places a heavy burden on duty holders to maintain vigilance.

Civil penalties. Each of the same provisions also makes a person liable to a civil penalty of 50 penalty units. The civil penalty regime operates separately from criminal prosecution: AMSA can seek a civil penalty order from a court without proving the criminal standard of proof (beyond reasonable doubt). The standard for civil penalties is the balance of probabilities. This gives AMSA a lower burden option for enforcement.

Enforcement powers. The Order itself does not create inspection or investigation powers. Those powers come from the Navigation Act and from the role of ‘inspector’ referenced in section 11. AMSA may appoint inspectors under the Act who can require production of certificates, board vessels, and gather evidence. Failure to make a certificate available for inspection (section 11) does not carry a separate penalty but could support a prosecution for performing duties without a certificate if the certificate cannot be produced.

Revocation. Section 17 gives AMSA the power to revoke a certificate if a person fails to comply with a direction for assessment and the failure was not reasonable. Revocation is not a penalty per se but has the practical effect of preventing the person from working until a new certificate is obtained. The process for revocation is not detailed in the Order; it would be subject to general administrative law requirements of procedural fairness.

Director liability. The Order does not expressly extend liability to officers of a corporation, but the general provisions of the Navigation Act and the Regulatory Powers (Standard Provisions) Act 2014 may apply to hold officers liable where a corporate owner contravenes section 7(2). This is an exposure that corporate owners should assess separately.

Practical enforcement risk. The self reporting duty under section 10 is difficult to monitor. A seafarer who experiences a change in condition while at sea and continues working may only be detected if an incident occurs or if the condition becomes apparent during a subsequent assessment. The incentive to self report is weak when the consequence is loss of income, and the likelihood of detection is low. The strict liability character means that a seafarer who later admits to having had a condition would have no defence of ignorance.

Navigation Act 2012. This Order is made under subsection 342(1) of that Act and relies on specific heads of power: section 65 (health of seafarers), paragraph 164(2)(a) (medical fitness of pilots), paragraphs 340(1)(h) and (i) (giving effect to STCW and MLC), subsection 341(1) (penalties), and subsection 339(1) (prescribing matters necessary or convenient). The Order sits within a broader regulatory framework under the Navigation Act that covers vessel safety, crewing, certificates of competency, and operational standards. A person who contravenes this Order may also contravene other obligations under the Act, such as the general safety duties.

Marine Order 1 (Administration) 2013. This Order incorporates Marine Order 1 by reference for definitions (note 1 to section 4), for the review of decisions mechanism (section 6), and for the term ‘STCW Code’. Marine Order 1 also contains general provisions about delegations, service of documents, and approved forms that apply to this Order.

Marine Orders 70 74 (Seafarer certification). The note to section 15 cross references the certification series of Marine Orders. A certificate of medical fitness is a prerequisite for the issue, renewal or revalidation of a seafarer certificate or certificate of recognition. If a medical certificate expires, the seafarer’s certificate of competency may also be affected, even if the competency certificate has not reached its expiry date.

Marine Order 54 (Coastal pilotage) 2014. Section 15 notes that an overseas medical certificate may be used for the purpose of renewal and revalidation of a seafarer certificate or for the issue of a restricted certificate of recognition under Marine Order 54. The two Orders interact where a coastal pilot is operating under a restricted certificate.

STCW Convention and Code. The Order explicitly gives effect to regulation I/9 and sections A-I/9 and B-I/9. These international standards set minimum requirements for medical fitness standards, periods of validity, and recognition of certificates. A court or tribunal interpreting the Order may have regard to the Convention and Code as extrinsic aids, though the domestic instrument controls where there is inconsistency.

Maritime Labour Convention, 2006. Regulation 1.2 requires that seafarers hold a medical certificate attesting to fitness for their duties. The Order implements this obligation for regulated Australian vessels. The MLC also contains requirements about medical care on board and repatriation for medical reasons, which are not covered by this Order but are relevant context.

Legislation Act 2003. This Order is a legislative instrument registered on the Federal Register of Legislation. It is subject to Parliamentary scrutiny and sunsetting under that Act.

Work health and safety laws. A person conducting a business or undertaking (including a shipowner) has duties under state, territory or Commonwealth WHS laws to ensure the health and safety of workers. Compliance with this Order may be relevant to discharging that duty, but compliance does not automatically satisfy WHS obligations. A medical certificate does not immunise the owner from a WHS prosecution if a known medical condition creates a risk.

Fair Work Act 2009. A seafarer who is stood down because a medical certificate expires or is revoked may have rights under the Fair Work Act or under an enterprise agreement. The Order does not address employment consequences, but the interaction between medical fitness requirements and employment law can produce disputes about pay, duties and termination.

The source document is the original version of Marine Order 76 (Health , medical fitness) 2017. It was made on 11 December 2017 by the Acting Chief Executive Officer of AMSA, Gary Prosser, and commenced on 1 January 2018. It repealed the earlier Marine Order 9 (Health , medical fitness) 2010 in full (section 1B).

The source does not contain any subsequent amendments. Whether amendments have been made after the version provided is not ascertainable from the text. Practitioners must check the Federal Register of Legislation for the current compilation. The Order is subject to automatic repeal under the Legislation Act 2003 if not remade within 10 years of registration, which would fall in 2027 or 2028.

No explanatory statement or regulatory impact statement is included in the source. The Order itself does not record any transitional provisions for persons who held certificates under the repealed Marine Order 9. Those certificates would have continued in force under general transitional provisions in the Navigation Act or the Legislation Act unless the Order expressly provided otherwise (which it does not). This creates a potential gap: a certificate issued under the old Order might or might not be recognised under the new Order, depending on the terms of the certificate.

The source document contains no references to any court or tribunal decisions. There is no mention of appeals, judicial review applications, or infringement proceedings. This is consistent with the Order being a relatively technical, low visibility instrument that has not attracted public litigation.

However, the absence of litigation does not mean the Order is uncontroversial. Strict liability offences with significant penalties can produce disputes that are settled or dealt with by way of infringement notices without reaching a court. The civil penalty provisions have not been tested in reported case law under this Order.

The review mechanism for revocation decisions under section 6 (referring to Marine Order 1) has not been litigated in the source materials. It is possible that decisions have been reviewed by the Administrative Appeals Tribunal in unpublished matters. A researcher would need to search the AAT’s database using the instrument’s name or ‘medical fitness’ keywords.

Given that the Order replaces the 2010 version, any litigation under that earlier instrument might inform interpretation of the current Order, but the source does not reference such cases. Common law principles about medical fitness, causation and the standard of proof in civil penalty proceedings would apply from general law.

The self reporting trap. Section 10 requires a seafarer or pilot to cease duties if there is a change in medical condition that would make the person unfit. The phrase ‘would make the seafarer unfit’ is vague. A condition that is being treated but that does not currently impair function might still be caught if it would, in the opinion of an assessor, render the person unfit. The person is required to self assess at their own peril. Erring on the side of caution means stopping work; erring on the side of continuing means risking a strict liability offence. There is no obligation on the employer to have a process for this.

No grace period for certificate renewal. Except for the limited voyage continuation under section 16(2), a person whose certificate expires cannot perform duties until a new certificate is issued. The assessment process takes time and a person may be without income during that period. The owner is also prohibited from taking the vessel to sea if the person is on board, which can cause operational delays. There is no provision for interim certificates pending assessment.

Cost of expert panel falls on the individual. Section 14(5) makes the person responsible for all costs of the expert panel. This includes the fees of three specialists (occupational physician, specialist physician or surgeon, and medical inspector), plus any costs of travel and preparation of reports. For a seafarer who has been found unfit in consecutive assessments, this cost may be prohibitive. There is no mechanism for cost recovery even if the panel certifies fitness. This creates a financial barrier to challenging an adverse medical finding.

Overseas certificate limitations. Section 15 restricts recognition of overseas certificates to countries that have an agreement with Australia for recognition of certificates of competency, and to medical practitioners appointed by that administration under the STCW Convention. A seafarer who obtains a medical certificate from a doctor in a non agreement country, or from a doctor not appointed under the STCW Convention, will not hold a valid certificate under the Order, even if the doctor is qualified and the examination is thorough.

Strict liability for owners. Section 7(2) is a strict liability offence for the owner. If a seafarer’s certificate expires while at sea outside the voyage continuation period, the owner cannot take the vessel back to sea with that seafarer on board without committing an offence. If the owner is unaware of the expiry, the lack of knowledge is not a defence (except to the extent it supports a mistake of fact, which may be difficult to establish if the owner had means to check).

Certificate expires if another is issued. Section 16(3) provides that a certificate expires if a further certificate is issued. This means a person cannot hold a backup certificate. If a medical inspector issues a certificate with restrictions, and the person later obtains a less restrictive certificate from an expert panel, the earlier certificate expires automatically. The person cannot choose which certificate to rely on.

No definition of ‘change in medical condition’. Section 10 uses this term but does not define it. Does it include temporary conditions such as a cold, influenza, or a minor injury? Does it include a change in medication that might affect alertness? The lack of definition gives enforcement discretion but creates uncertainty for duty holders. A conservative approach would treat any change that could plausibly affect fitness as reportable.

Aids to vision must be spare. Section 9 requires a spare aid to vision to be available. This means a spare pair of glasses or contact lenses, not merely a copy of the prescription. A person who wears contact lenses must carry a spare pair of contacts or glasses. The spare must be available while performing duties, not left in a cabin or ashore. For someone who wears prescription glasses, this is a straightforward requirement but one that is easy to overlook when in a hurry.

No obligation on AMSA to provide reasons for refusal to appoint a medical inspector. Section 12 gives AMSA discretion to appoint medical inspectors but does not set criteria or a right of review if an application is refused. This could limit the supply of assessors particularly in regional areas, increasing travel costs and delays for seafarers.

For seafarers and licensed pilots:

1. Obtain a certificate of medical fitness from an AMSA appointed medical inspector before commencing any duties. Do not assume a general practitioner can issue the certificate; the inspector must be appointed under section 12. Check the AMSA website for a list of approved medical inspectors.

2. Ensure the certificate states the particular duties for which you are fit. If your role changes, obtain a new or amended certificate before performing the new duties. A certificate that says ‘fit for deck duties’ does not cover engineering duties.

3. Keep the original or a copy of the certificate readily accessible while on board. Produce it on request by the owner, master, or an inspector (section 11). Failure to produce it on request may trigger an investigation.

4. If your certificate states that an aid to vision or hearing was used to meet the standard, always use that aid while performing duties. Carry a spare vision aid (complete set) and spare hearing aid batteries at all times while on duty. Check these items before each voyage.

5. Monitor your own medical condition continuously. If you experience any change that could affect your fitness for your duties, stop performing duties immediately and seek a reassessment. This includes conditions that are temporary, such as an injury, infection, or change in medication. Do not rely on self diagnosis that the condition is minor. If in doubt, cease duties and consult an AMSA medical inspector.

6. Renew your certificate before it expires. The maximum validity is two years, or one year if you are under 18 or at least 55 at the date of assessment. If your certificate expires while on a voyage, it continues only until the next port where a medical inspector is available, or three months, whichever is earlier. Plan renewals to avoid expiry during voyages.

7. If a medical inspector finds you unfit or fit only for particular duties in consecutive assessments, you may arrange an expert panel assessment at your own cost. Before doing so, gather all relevant medical reports and evidence. Confirm that the proposed panel members are approved by AMSA (section 14(4)). The panel’s decision can override the earlier finding.

8. If AMSA, the owner, the master, or a pilotage provider directs you to be assessed because of evidence of injury, illness or change in condition, comply promptly. Failure to comply without a reasonable excuse may lead to revocation of your certificate (section 17). If you have a genuine reason for non compliance, document it thoroughly.

For owners of regulated Australian vessels:

1. Before taking a vessel to sea, verify that every seafarer on board holds a current certificate of medical fitness that evidences fitness for the particular duties to be performed. Do not rely solely on a seafarer’s representation; obtain and review a copy of the certificate.

2. Maintain a register of certificate expiry dates for all seafarers. Implement a system that flags upcoming expiries and monitors compliance with the voyage continuation rules under section 16(2). Ensure that a seafarer whose certificate has expired is not carried on a voyage that will extend beyond the continuation period.

3. If you become aware of evidence that a seafarer has an injury, illness or change in medical condition, consider directing the seafarer to be assessed by a medical inspector (section 10(3)). Document the evidence and the direction. Failure to act could expose you to risk if the seafarer later has a medical event.

4. Include a clause in employment contracts or crew agreements requiring seafarers to notify you of any change in medical condition and to produce their medical certificate on request. While this does not shift your statutory duty, it creates a contractual right to information.

5. Do not take the vessel to sea if any seafarer cannot produce a valid certificate, even if the seafarer claims an appointment for assessment is scheduled. The strict liability offence under section 7(2) does not have a defence of reasonable steps or due diligence.

For pilotage providers:

1. Verify that each licensed pilot you engage holds a current certificate of medical fitness for the pilotage duties to be performed. Require production of the certificate before each engagement or maintain a central register.

2. If you receive evidence that a pilot has an injury, illness or change in condition, you may direct the pilot to be assessed (section 10(4)). Consider doing so as part of your duty of care. Document the direction and the outcome.

3. Ensure that pilots assigned to vessels that require aids to vision or hearing have spares available. While the duty to carry spares is on the individual pilot, a provider that knowingly assigns a pilot without spares may face operational risk.