Seafarers Rehabilitation and Compensation Levy Collection Act 1992

Levy. The central financial obligation is a levy imposed by the Seafarers Rehabilitation and Compensation Levy Act 1992. This Act does not create the liability; it only provides for its collection, recovery, and enforcement.

Prescribed ship and seafarer berth. These terms have the same meaning as in the Compensation Act (s 3). The levy is calculated per seafarer berth. Section 4 provides that the number of berths on a prescribed ship is taken as at the first day of each quarter. That fixed point is critical: an employer cannot avoid liability by later reducing berths after that date.

Quarter. Defined in s 3 as starting from commencement and ending on the last day of March, June, September or December, whichever occurs first, and each later three month period. The return is due 14 days after the beginning of each quarter (s 6). That means an employer must lodge a return and pay levy within a single 14 day window at the start of the quarter.

Return. A prescribed form approved by the CEO of Comcare, containing a statement of the number of berths on each prescribed ship and any other information specified in the form (s 6). No statutory freedom exists to use a different format. The return must be given to the person prescribed by the regulations (s 6). The Act does not itself name that person, leaving it to delegated legislation.

Authorised person. An SES employee or acting SES employee of Comcare, or a person in classification Group 7 or 8 under the Public Service Act 1999, appointed in writing by the CEO of Comcare (ss 3, 11). These officers have powers to enter premises, search for documents, and detain ships.

Detention of ship. A unique enforcement tool: an authorised person may detain a prescribed ship if any levy remains unpaid after it becomes payable (s 9). The ship is held until the levy is paid. This creates a powerful incentive for prompt payment because a detained vessel cannot trade, generating immediate financial loss and pressure on the owner.

Debt due to the Commonwealth. Alternative to detention: the Commonwealth may sue the employer for the unpaid amount as a debt (s 8). This follows ordinary civil recovery, but the detention power is likely to be faster and more effective against a single asset.

In rem proceedings. Under s 10, the levy is deemed to be a levy in relation to a ship for the purposes of paragraph 4(3)(q) of the Admiralty Act 1988. That paragraph lists claims that may be brought as actions in rem against the ship itself, rather than merely in personam against the owner. That gives the Commonwealth another avenue to enforce the levy against the vessel.

Criminal Code application. Chapter 2 of the Criminal Code applies to all offences against this Act (s 3A). That imports the general principles of criminal responsibility, including fault elements such as intention, recklessness, and negligence unless displaced. However, several offence provisions specifically impose strict liability for certain physical elements (s 7(1B), (2B), 14(7)).

Employers. The primary duty-holders are employers who employ or engage seafarers on prescribed ships (s 3 definition). This covers shipowners, operators, or any person who engages seafarers, regardless of whether the seafarer is an employee in the strict common law sense or an independent contractor (the definition uses “employs or engages”). The employer is liable for the levy, the duty to lodge returns, and the obligation to keep records and provide information (the latter imposed by regulation under s 16(2)(c)-(d)). An employer who fails to pay faces both debt recovery and detention of its ship.

Seafarers. Although not direct obligors, seafarers are indirectly affected. The levy underpins the rehabilitation and compensation scheme under the Compensation Act, so its collection affects the funding of that scheme. If levy collection becomes burdensome or uncertain, it may affect employment opportunities or contractual terms for seafarers in the prescribed shipping sector.

Comcare. The CEO of Comcare has significant administrative and enforcement roles: approving the form of returns, appointing authorised persons (s 11), issuing identity cards (s 14), and delegating functions (s 15). Comcare staff may be authorised persons with entry and detention powers. The regulations may prescribe that returns be given to Comcare (s 6: “the person prescribed by the regulations”), so Comcare is likely to be the recipient.

Authorised persons. Those appointed under s 11 gain powers of entry, search, copying, and detention. They also bear obligations: to produce identity cards when entering without a warrant (s 14(3)), and to return the card if they cease to be authorised (s 14(4)-(5)). They must act within the limits of any warrant obtained.

The Commonwealth. The Commonwealth is the beneficiary of the levy, which it may recover as a debt (s 8) and may utilise the in rem jurisdiction under the Admiralty Act to enforce the levy against the ship itself.

Magistrates. Magistrates are called upon to issue warrants to enter premises (s 13). They must be satisfied that there are reasonable grounds to believe books, documents, or things relating to a seafarer berth where levy is or may be payable are on the premises, and that a warrant is reasonably required. The warrant must state the purpose, powers, expiry (within 7 days), entry times, and a description of the things sought.

Persons prescribed by regulations. The Act does not name the person to whom returns are given; that is left to regulations (s 6). Similarly, regulations may require information to be given to prescribed persons (s 16(2)(d)). That adds flexibility but also uncertainty for employers, who must track changes in delegated legislation.

Duty to lodge returns. Every employer must give a return within 14 days after the beginning of each quarter (s 6). The return must contain a statement of the number of seafarer berths on each prescribed ship. The form is prescribed by the CEO of Comcare and must include any other information specified. Failure to give a return or giving an incomplete return attracts penalties.

Duty to pay levy. Section 5 ties the due date for payment to the end of the return period: the levy is payable at the end of the period within which the employer must give the return. That is, payment is due at the same time as the return (within 14 days of quarter start). Unpaid levy may be recovered as a debt (s 8).

Duty to allow entry and inspection. An authorised person may enter premises with consent or under a warrant (s 12(1)). Once inside, the authorised person may search for, examine, take extracts from, and copy documents, and search for and examine things, relating to a berth on a prescribed ship where levy is or may be payable (s 12(2)). There is no express duty on the occupier to facilitate the exercise of these powers, but obstructing an authorised person could lead to separate offences, though the Act does not create an explicit obstruction offence. The entry must comply with warrant conditions and identity card requirements.

Rights of employers and occupiers. Entry without a warrant requires the occupier’s consent (s 12(1)). If consent is not given, the authorised person must obtain a warrant. An authorised person entering without a warrant must produce an identity card for inspection; if they fail, they have no right to enter (s 14(3)). That gives the occupier a clear checkpoint. A warrant must be issued by a Magistrate on oath or affirmation, specifying details such as the purpose, the things sought, and an expiry date within 7 days (s 13). This limits the scope and duration of non-consensual searches.

Privilege against self-incrimination. Section 7(3) provides a qualified protection: a person is not excused from giving a return on the ground it might tend to incriminate them, but the return and any information or thing obtained as a direct or indirect consequence of giving it is not admissible against the person in criminal proceedings except proceedings for an offence under s 7(2) (giving a false or incomplete return) or under s 137.1 or 137.2 of the Criminal Code (giving false or misleading information or documents). This is a narrow protection: the return itself can be used in a prosecution for making a false return, so the practical value of the privilege is limited.

Right to a reasonable excuse defence. The offences under s 7(1) (failure to give return) and s 7(2) (incomplete return) carry a defence of reasonable excuse (ss 7(1A), 7(2A)). The defendant bears an evidential burden on this defence, meaning the defendant must point to evidence suggesting a reasonable excuse. Similarly, the offence of failing to return an identity card (s 14(5)) has a reasonable excuse defence (s 14(6)).

Rights of authorised persons. They may detain a ship if levy is unpaid (s 9). They may apply for a warrant (s 13(1)). They may use necessary and reasonable force when entering under a warrant, with such assistance as is necessary (s 13(2)). They are entitled to be issued identity cards (s 14(1)).

Failure to give a return (s 7(1)). Maximum penalty: 5 penalty units. Strict liability applies to the element that the person is required to give a return (s 7(1B)). However, a reasonable excuse is a defence (s 7(1A)). The penalty value: under s 4AA of the Crimes Act 1914, a penalty unit is currently $313 (as at 2024), so 5 units equals $1,565. That is a modest penalty, perhaps reflecting that the real enforcement lever is ship detention and debt recovery rather than criminal fines.

Giving an incomplete return (s 7(2)). Maximum penalty: 20 penalty units ($6,260). Strict liability applies to the element that the person is required to include information in the return (s 7(2B)). Reasonable excuse is a defence (s 7(2A)). Note that this is a separate offence from knowingly giving false or misleading information, which would fall under s 137.1 or 137.2 of the Criminal Code (maximum penalties of 12 months imprisonment or 60 penalty units for s 137.1, and 5 years imprisonment for s 137.2). The Act preserves the possibility of using the return in such prosecutions (s 7(3)).

Failure to return identity card (s 14(5)). Maximum penalty: 1 penalty unit ($313). Strict liability applies (s 14(7)). Reasonable excuse defence (s 14(6)). This is a minor offence, but it ensures that former authorised persons do not retain official identification that could be misused.

Recovery of levy as a debt. Section 8 allows the Commonwealth to recover unpaid levy as a debt due to the Commonwealth. This is a straightforward civil remedy, enforceable in a court of competent jurisdiction. Interest on unpaid amounts is not provided for in the Act, though general Commonwealth debt recovery mechanisms may apply.

Detention of ship. Section 9 is the most potent enforcement tool. Any authorised person may detain the prescribed ship until the levy is paid. The Act does not spell out the procedure: presumably the authorised person physically prevents the ship from sailing, perhaps by placing a notice on the vessel or coordinating with port authorities. The ship is held as security for the debt. This power applies even before the Commonwealth has obtained a court judgment, since it is triggered by levy remaining unpaid after it becomes payable. The ships subject to levy are those on which berths are counted; likely the employer’s ship(s). This creates enormous pressure to pay quickly, as a detained ship cannot generate revenue and may attract additional costs (e.g. port fees, crew wages while idle).

Admiralty Act proceedings. Section 10 deems the levy to be a levy in relation to a ship for the purposes of paragraph 4(3)(q) of the Admiralty Act 1988. That paragraph includes within the list of maritime claims “a claim in respect of a levy in relation to a ship”. Such a claim can be brought as an action in rem against the ship, meaning the ship itself can be arrested to satisfy the claim. This complements the administrative detention power under s 9 with a court-sanctioned arrest. The in rem jurisdiction allows the claimant (the Commonwealth) to proceed directly against the vessel, irrespective of who the owner is at the time of arrest, provided the claim arose in connection with that ship. This adds a further layer of enforcement, particularly if the ship is owned by a different entity than the employer but is the ship to which the berths relate.

Regulatory offences. The Governor-General may make regulations prescribing matters, including penalties not exceeding 10 penalty units for offences against the regulations (s 16(2)(f)). That means future regulations could create additional offences with fines up to $3,130, without further parliamentary amendment to the Act.

Application of Criminal Code. Section 3A applies Chapter 2 of the Criminal Code, meaning general principles of criminal responsibility (fault elements, extensions of liability, etc.) apply to all offences. The Act overrides some elements by imposing strict liability for specific physical elements, as noted. The Code also contains the usual interpretation rules and procedural matters.

Seafarers Rehabilitation and Compensation Act 1992 (Compensation Act). This is the foundational legislation. The Collection Act borrows key definitions from it: “Authority”, “prescribed ship”, “seafarer”, “seafarer berth” (s 3). The Compensation Act presumably sets out the levy rate and the purposes to which the levy is applied (e.g. funding rehabilitation and compensation for seafarers). The Collection Act is dependent on the Compensation Act: the levy it collects is imposed by the Levy Act, which itself sits alongside the Compensation Act. The commencement of the Collection Act is linked to the commencement of section 2 of the Compensation Act (s 2). So if the Compensation Act were ever repealed or substantially amended, the Collection Act would become inoperative or require parallel amendment.

Seafarers Rehabilitation and Compensation Levy Act 1992 (Levy Act). That Act imposes the levy; this Act collects it. The levy amount per berth is not stated in the Collection Act; it must be found in the Levy Act. The two Acts are complementary, and any change to the Levy Act (e.g. increasing the levy) directly affects the sums collected under this Act.

Safety, Rehabilitation and Compensation Act 1988. Comcare is defined by reference to the body established under section 68 of that Act (s 3). Comcare’s CEO has powers under this Act. Comcare’s primary role is administering the Commonwealth workers’ compensation scheme; here it extends to the seafarers scheme as well. The definition ties the organisational structure and staffing rules into the broader Comcare framework.

Criminal Code. Section 3A applies Chapter 2 of the Code, which sets out the general principles of criminal responsibility. This means fault elements (intention, knowledge, recklessness, negligence) are presumed unless the Act displaces them. The Act displaces them for certain elements by imposing strict liability: s 7(1B), (2B), 14(7). The Code also provides for the evidential burden on the defendant for the reasonable excuse defences (as noted in the notes to those sections). This interaction is essential for interpreting the offence provisions correctly.

Admiralty Act 1988. Section 10 of the Collection Act deems the levy to be a levy in relation to a ship for the purposes of paragraph 4(3)(q) of the Admiralty Act 1988. That paragraph lists claims that may be the subject of an action in rem. Consequently, the Commonwealth can arrest a ship in the Federal Court or Supreme Court under the Admiralty Act to recover unpaid levy. This is a formal court procedure, distinct from the administrative detention under s 9, and may provide additional remedies (e.g. sale of the ship to satisfy the debt). The interaction means maritime law enforcement mechanisms are available for this statutory levy.

Public Service Act 1999. The qualifications for appointment as an authorised person include SES employee or acting SES employee, or classification levels in Groups 7 or 8 of the Classification Rules under the Public Service Act 1999 (s 11). This links the pool of authorised persons to the senior levels of the APS.

Workplace Relations Legislation Amendment Act 2002. The Act as originally enacted was amended by that amending Act, which inserted several provisions, including s 3A (application of Criminal Code), s 7(1A)-(7) (the reasonable excuse defences and strict liability provisions), s 14(5)-(7) (the identity card offence), and transitional regulation-making power. So the collection and penalty structure was significantly revised in 2002, likely to align with the Criminal Code regime that commenced earlier.

Regulations. Section 16 allows the Governor-General to prescribe matters necessary or convenient for carrying out this Act. These regulations can cover manner of payment, repayment of overpayments, record keeping, information provision, and form of warrant. The regulations may also impose penalties up to 10 penalty units. Thus, the Act’s practical operation is fleshed out by subordinate legislation, which may change without parliamentary amendment.

The Act as originally enacted (Act No. 3 of 1992) was amended by the Workplace Relations Legislation Amendment Act 2002 (No. 127, 2002). That amending Act restructured the penalty provisions, introduced the application of the Criminal Code, added strict liability and reasonable excuse defences, and created the offence for failing to return an identity card. The amending Act also included a transitional regulation-making power (Schedule 1, item 17) to allow the Governor-General to make regulations of a transitional or savings nature arising out of the amendments. Section 4 of the amending Act provides that each amendment applies to acts and omissions that take place after the amendment commences; if an act or omission spans a date before and after commencement, it is taken to have occurred before commencement. No other amendment appears in the source text (the notes refer only to Note 1 about short title, but no later amendments are listed). It is plausible that the Act has been amended by later Acts not reproduced in this extract, such as those adjusting penalty unit amounts or machinery amendments for Comcare restructuring. However, the source does not provide that information. The Act remains in force as at the compilation date reflected in the note (likely 2012 or later, based on the format of the extract). The amendment history is minimal, suggesting the Act is stable and rarely changed.

The source text does not mention any specific cases or litigation history. The Act itself contains no reference to prior judicial interpretation. Given its narrow scope and the relatively low stakes, it is unlikely to have generated extensive reported litigation. The detention power under s 9 could be challenged in admiralty or administrative law (e.g. on grounds of jurisdiction or procedural fairness), but no such cases are referenced. The interaction with the Admiralty Act may have been considered in in rem proceedings, but again the source is silent. A thorough search of Australian case law databases would be required to identify any decisions; this deep dive cannot invent any. The absence of litigation history in the source suggests that either the Act has operated without major legal disputes, or that relevant cases are not included in the extract provided. As a matter of industry practice, employers likely prefer to pay and avoid detention rather than litigate, given the commercial disruption risk.

The first day of the quarter is the counting day. Section 4 states that the number of berths is determined on the first day of each quarter. If an employer reduces berths later in the quarter, that reduction does not affect the liability for that quarter. Conversely, if berths increase after that date, the employer may be underpaying if the earlier count is used. The Act does not provide for adjustments mid-quarter. So an employer must lock in the count on day one.

Return must be given within 14 days after the beginning of each quarter. “Beginning” means the first day. That gives a fixed window. Missing this window triggers the s 7(1) penalty. The due date for payment is the end of that same 14 day period (s 5). So both the return and payment are due together. There is no grace period.

Strict liability for key elements. For the offence of refusing or failing to give a return, strict liability applies to the element that the person is required to give a return (s 7(1B)). For the incomplete return offence, strict liability applies to the element that the person is required to include information (s 7(2B)). That means the prosecution does not need to prove fault (intention or recklessness) about the requirement. The only defence is reasonable excuse. This raises the compliance burden: inadvertent failure due to administrative oversight may still attract penalty.

Reasonable excuse is an evidential burden on the defendant. The defendant must point to some evidence of a reasonable excuse; the prosecution does not need to disprove it unless raised. That is a typical reverse onus for an excuse, but it requires the employer to be ready with justification.

The incrimination protection is narrow. Section 7(3) says the return cannot be used in criminal proceedings except for proceedings under s 7(2) (incomplete return) or under s 137.1/137.2 of the Criminal Code (false or misleading information to an agency). So if an employer gives a return that understates berths, that return can be used to prosecute the employer for giving a false return. The privilege against self-incrimination is effectively hollowed out for these offences.

Entry without warrant requires consent, but only if the authorised person produces an ID card. If the occupier simply denies entry, the authorised person must get a warrant. However, if the occupier consents without requesting ID, the entry is lawful even if the authorised person fails to produce an ID? Section 14(3) provides that if the authorised person proposes to enter otherwise than under a warrant, they must produce their ID card, and if they fail to do so, they are not entitled to enter. That implies that even with consent, the ID must be produced before the entry is lawful. An occupier who fails to demand ID may be unwittingly consenting to an unlawful entry, though the authorised person’s duty is independent.

The warrant must be issued within 7 days and specify the purpose. The authorised person cannot use a warrant to conduct a general fishing expedition; the warrant must describe the book, document or thing suspected to be on the premises (s 13(4)(e)). The stop: any search must be limited to that description.

Detention of ship is a blunt remedy. Section 9 does not require a court order. An authorised person can detain the ship as soon as levy remains unpaid. There is no prescribed period of notice. A ship could be detained without warning, causing immediate demurrage and contractual issues. The Act provides no mechanism for the employer to challenge the detention other than by paying the levy or seeking a court injunction. The detention power could be used strategically; the employer’s only protection is to pay on time.

Penalties are modest but detention is severe. The maximum fines are low (5 to 20 penalty units). The real deterrent is the detention power, which can cause losses far exceeding the levy amount. An employer who is late in paying by a few days may face ship detention, not merely a fine. That is a harsh enforcement tool.

Regulations may impose additional requirements. Section 16(2) explicitly allows regulations requiring employers to keep records and give information. Employers must stay abreast of regulatory changes. The regulations can also impose penalties up to 10 penalty units for non-compliance. This means the Act’s obligations can expand without parliamentary amendment.

Delegation limited. The CEO of Comcare may delegate functions and powers under the Act, but not the power to appoint authorised persons (s 15(1) excludes s 11 powers). Only the CEO personally can appoint authorised persons. That limits the risk of unauthorised appointments but may create bottlenecks if the CEO is unavailable.

Determine whether you are an employer. An employer is a person who employs or engages one or more seafarers on a prescribed ship (s 3). The definition is broad and includes those who “engage” seafarers, capturing labour hire arrangements or manning agencies. If you fit that description, you are subject to the Act.

Identify prescribed ships and count berths. You need to know which of your ships are prescribed ships under the Compensation Act. For each prescribed ship, you must know the number of seafarer berths as at the first day of each quarter (s 4). That may require a seat count on that specific day. Maintain a register of berths per ship.

Lodge quarterly returns within 14 days of the quarter start. The due date is the same for each quarter: 14 days after 1 January, 1 April, 1 July, and 1 October. The return must be given to the person prescribed by the regulations (likely Comcare). Use the approved form from the CEO of Comcare, and include all information specified on the form. Do not omit any berths or make errors.

Pay the levy by the same date. Payment is due at the end of the return period (s 5). The amount is the levy per berth (from the Levy Act) multiplied by the number of berths. Ensure payment reaches the prescribed person within the 14 day window.

Keep records. Regulations under s 16(2)(c) require employers to keep records relating to seafarer berths on prescribed ships. Even without specific regulations, it is prudent to maintain a clear audit trail: berth counts as at first day of quarter, calculations of levy, evidence of payment, and copies of returns. Records should be retained for at least the standard seven year period for federal tax matters, though the Act does not specify a retention period.

Respond to authorised persons. If an authorised person seeks to enter premises, verify their identity (ask to see the identity card under s 14(3)). If they do not produce it, you may refuse entry. If they produce a valid ID, you may consent to entry. If you do not consent, they must obtain a warrant. If they have a warrant, you must allow entry; the warrant will specify the powers and the things sought. Cooperate to avoid obstruction allegations, but ensure the warrant is within scope.

Pay levy promptly to avoid ship detention. The detention power under s 9 does not require any court order. The only way to lift detention is to pay the levy. To avoid the commercial disruption, ensure payment is made on or before the due date. Have a system to track due dates and payment authorisation.

Train staff. Ensure that the personnel responsible for crewing, fleet management, and finance understand the quarterly cycle. The berth count on day one of a quarter must be captured accurately. Any change in ship crewing during the quarter does not affect the return, but errors can lead to penalties.

Monitor regulations. The Act grants wide regulation-making power. Check the Federal Register of Legislation for any regulations made under the Act, particularly regarding the manner of payment, repayment of overpayments, record keeping, and information provision. Compliance with regulations is mandatory, and non-compliance can attract penalties of up to 10 penalty units.

Consider professional advice. Given the potential for ship detention and the interaction with admiralty law, employers in the prescribed shipping sector should seek specialist legal and accounting advice to ensure full compliance. The Act is not complex, but the consequences of non-compliance can be severe.