Commonwealth Numbered Regulations - Explanatory Statements

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NAVIGATION (MARINE CASUALTY) AMENDMENT REGULATIONS 2001 (NO. 1) 2001 NO. 16

STATUTORY RULES 2001 No. 16

Issued by the Authority of the Minister for Regional Services, Territories and Local Government.

Navigation Act 1912

Navigation (Marine Casualty) Amendment Regulations 2001 (No. 1)

Subsection 425(1) of the Navigation Act 1912 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted under the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act. Paragraph 425 (1)(ea) of the Act provides for and in relation to the investigation of, and reporting on, casualties affecting ships and entailing loss of life on or from ships. The Navigation (Marine Casualty) Regulations, made pursuant to the Act, commenced on 3 September 1990 and underwent minor amendment in December 1991.

The primary purpose of the amendments to the Regulations is to provide consistency in the conduct of investigations by the Australian Transport Safety Bureau (ATSB) and to adopt, when appropriate, the International Maritime Organization (IMO) Code for the Investigation of Marine Casualties and Incidents (IMO Resolution A.849 (20)). The amendments make the marine Regulations more compatible with the legislation in relation to aviation investigation, consistent with the multi-modal role of ATSB.

The amending regulations provide:

*       powers to an investigator to remove, or take a sample of anything (such as failed components, paint samples, etc.) found on a ship or premises for technical or scientific analysis, conditional upon ensuring minimal disruption to the ship's schedule;

*       for obtaining search warrants from a magistrate in one jurisdiction for execution anywhere in Australia;

*       protection for voyage data recorder information obtained by the ATSB similar to that for cockpit voice recordings under sections 19HE to 19HH, Part 2A of the Air Navigation Act 1920. By limiting the circumstances in which such recordings might be used or further disclosed to third parties, protection of voyage data recordings would promote cooperation of people from whom the information is sought;

*       powers to the Executive Director ATSB, rather than the Minister or Secretary, to terminate an investigation; and

*       the measures necessary to promote international Cooperation in relation to marine casualty investigation consistent with IMO Resolution A.849 (20);

In addition to the substantive changes, amendments include some minor changes in accordance with recent legislative changes and current drafting styles.

New Regulation 32C provides the Executive Director with the power to deal with foreign States in the matter of determining which State should lead an investigation in the event of a foreign flag vessel being involved. This power would normally be vested in the Minister. However, as most incident investigations involve foreign flag ships, contact with foreign flag administrations is routine. This provision formalises a current routine procedure more practically dealt with at agency level.

Details of the regulations are contained in the Attachment.

The Regulations commenced on gazettal.

Attachment

Clause 1 Name of Regulations

This clause provides that the Regulations are the Navigation (Marine Casualty) Amendment Regulations 2001 (No. 1).

Clause 2 Commencement

This clause provides that these Regulations commence on gazettal.

Clause 3 Amendment of Navigation (Marine Casualty) Regulations

This clause provides that Schedule 1 amends the Navigation (Marine Casualty) Regulations.

Schedule 1 Amendments

Item 1 - Regulation 1

The proposed amendment reflects current drafting style.

Item 2 - Subregulation 3 (1)

Amends the Regulations to include definitions of terms used in the substantive amendments.

Items 3 - Subregulation 3 (2)

The proposed amendment reflects current drafting style.

Item 4 - Regulation 5 and Item 5 - Paragraph 6(a)

Amends reference of the Public Service Act 1922 to the Public Service Act 1999 as appropriate.

Item 6 - Paragraph 6 (c) and Item 7 - After paragraph 6 (c)

These items insert a new paragraph (e) to provide for the appointment of a representative of a substantially interested State as an investigator.

Item 8 - Paragraph 11 (1) (d) and Item 9 - After paragraph 11 (1) (d)

These items insert a new paragraph 11 (1) (e) to make provision for the removal a thing or sample from a ship on certain conditions.

Item 10 - After subregulation 11(5)

New Paragraphs 6 and 7 provide conditional provisions for the removal of things (broken components, paint samples, fuel samples, etc.) from a ship for the purposes of technical or scientific examination. Anything that is removed remains the property of the shipowner and returned to the shipowner if required.

Item 11. Paragraph 12 (1) (d) and Item 12 - After paragraph 12 (1)(d)

These items insert paragraph 12 (1)(e) to allow for the removal a thing or sample from a premises.

Item 12 After subregulation 13 (3)

Inserts a new subregulation 13 (4) to provide that a Magistrate of a particular State or Territory may issue a warrant in respect of the search of a ship or premises in another State or Territory.

Item 13 - After subregulation 12 (5)

Two new paragraphs refer to the conditional removal and return of anything related to a ship, for the purposes of technical or scientific analysis.

Item 14 - After subregulation 13(3)

Makes provision for a stipendiary magistrate of a State or Territory to issue a search warrant applicable to a ship in another State or Territory.

Item 15 - After regulation 13

Inserts a new regulation allowing for the application of a warrant by the Inspector or an investigator by electronic means and provides for the conditions under which a warrant may be issued under such circumstances.

Item 16 - Subregulation 15 (1)

Amends wording to ensure that the protection under subregulation 15(2) also covers material obtained under subregulations 11 (1) and 12(1).

Item 17 - Paragraph 15 (1)(a)

Inserts a new provision (aa) to allow disclosure of records copied or taken from a ship or premises for the purpose of an investigation, to a person who would normally be entitled to access to that record.

Item 18 - After subregulation 15 (1)

A new provision subregulation 15 (1A) defining the information covered by subregulation 15 (1).

Item 19 - Subregulation 15 (2)

This item replaces the reference to "a record of evidence" with the term "information" to ensure that the protection under subregulation 15(2) also covers material obtained under subregulations 11(1) and 12(1) and subsequently divulged to any of the persons referred to in subregulation 15(1).

Item 20 - After subregulation 15(2)

This item inserts the following new provisions:

A new subregulation 15 (3) provides for application to a court for an order for the disclosure of information protected by subregulation 15 (1).

A new subregulation 15(4) allows a court to authorise a person to disclose information protected by subregulation 15 (1).

A new subregulation 15(5) provides that a court may order or authorise the disclosure of information only if the public benefit outweighs the possible effect on the investigation itself or future investigations, and the disclosure is permitted by the parties specified in paragraph 15(5)(b).

A new subregulation 15 (6) provides that when making an order under subregulation 15(5), the court may specify the manner in which, or the person to whom, the information must be disclosed.

A new subregulation 15 (7) provides that an order under subregulation 15(5) must be complied with.

A new subregulation 15 (8) provides that where a court authorises a person to disclose information under subregulation 15(5), the person may disclose the information in accordance with the order.

Item 21 - After regulation 15

This item inserts the following new regulations:

A new regulation 15A provides that the voice component of a VDR, or copies or extracts thereof, obtained under subregulations 11 (1) or 12(1), is not admissible in criminal proceedings in an Australian court against a crew member in relation to an incident.

A new regulation 15B providing that the voice component, or copies or extracts thereof, of a VDR are not admissible in civil proceedings unless an application is made to a court by a party to damage proceedings, and the court orders that the copy, extract or voice component be admissible in the proceedings. "Damages proceedings" are defined as proceedings in an Australian court for damages in respect of personal injury, death or damage to property. The proposed subregulation 15B(3) provides for the conditions to be satisfied before the court may order that a copy, extract or voice component be admissible.

A new regulation 15C details who may be present when a court examines the voice component of a VDR. The court may order that the voice component examined under this regulation must not be published or communicated to any person except in accordance with any manner, or to any persons, that the court specifies.

A new regulation 15D covers situations where the voice component of a VDR is admitted as evidence in a civil court It provides that the VDR voice component cannot be used to determine liability of a crew member, but is only evidence of whether a person, who is not a crew member, has been negligent. This subregulation also provides that a voice component or copy or extract thereof that is admitted under regulation 15D, must not be published or communicated except in accordance with any manner, and to any persons, that the court specifies.

A new regulation 15 (E) provides that the above new regulations do not affect the admissibility of evidence of words spoken which is not constituted by the voice component of a VDR obtained under subregulations 11(1) or 12(2). The reference to operational control room is to cover places such as an engine control room, cargo control room, etc.

Item 22 - Paragraph 17(a) and Item 23 - Paragraph 17(c)

Amendments to regulation 17 are designed to . emphasise ATSB's independence as a safety investigation body by removing the powers of the Secretary or Minister to terminate an investigation and vest this power in the Executive Director.

Item 24 - Paragraph 23

This amendment updates the reference to the Public Service Act 1999, as in items 4 and 5 above.

Items 25 - Paragraph 25(1)(d) and Item 26 - Paragraph 25 (1)(d)

These items insert a new paragraph 25(1)(e) to allow the Inspector or an investigator to remove, or take a sample of, anything found on the ship.

Items 27 - After subregulation 25 (6)

New paragraphs make conditional provision for a Board of Marine Inquiry to remove anything from a ship, and return of anything taken to the shipowners.

Items 28 - Paragraph 26(1)(d) and Item 29 - Paragraph 26 (1)(d)

These items insert a new paragraph 26(1)(e) to allow the Inspector or an investigator to remove, or take a sample of, anything found on the premises.

Item 30 - After subregulation 25(6)

New paragraphs make conditional provision for a Board of Marine Inquiry to remove anything from premises and return anything to the occupier of the premises.

Item 31 - Subregulation 28 (1)

This amendment reflects the addition of a new schedule 1.

Item 32 - After Part 4

This item inserts a new part, Part 4A, to give affect to the provisions of the International Maritime Organization Assembly Resolution A.849 (20), Code for the Investigation of Marine Casualties and Incidents. Regulations 32A to 32F reflect the operative provisions of the Code.

The new Part 4A consists of the following provisions:

A new regulation 32A which provides for the purpose of Part 4A, which is to ensure that investigations involving other substantially interested States, as defined under amended subregulation 3 (1), are conducted in accordance with Australia's obligations under the Code.

A new regulation 32B, the effect of which is that Part 4A only applies to an incident which involves at least one other foreign State which qualifies as a substantially interested State.

A new regulation 32C which provides that the Executive Director and other substantially interested State(s) must agree as to which State should lead the investigation. While this power would normally be vested in the Minister, most incident investigations involve foreign flag ships, and direct contact between the ATSB and foreign flag administrations would be preferable for practical reasons. A new regulation 32D which provides that where Australia is the lead investigating State, the Inspector must liaise with other substantially interested States to develop a common strategy and appoint investigators in cooperation with those substantially interested State or States in accordance with Part 3.

A new regulation 32E which requires the Inspector to obtain and, as far as possible, reflect the views of each substantially interested State when preparing the final report setting out the results of an investigation.

A new regulation 32F which allows ATSB to investigate an incident or an aspect of an incident at the request of a foreign State. In so doing the Inspector and investigators are bound by the general principles under Part 3 of the Regulations. This regulation also contains provisions for the making and the disclosure of record in relation to an investigation conducted under subregulation 32F(2).

Item 33 After Regulation 34

This item inserts a new schedule 1.

This new schedule reproduces the International Maritime Organization's Code for the Investigation of Marine Casualties and Incidents, annexed to IMO Resolution A.849(20), adopted on 27 November 1997.

Item - 34 Schedule

Renumber previous Schedule as "Schedule 2".