Passengers’ duties and the Marine Safety (Domestic Commercial Vessel) National Law 2012 in Queensland's internal waters

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Notes on contributor

Alexander White is a solicitor with McInnes Wilson Lawyers, Brisbane, Australia.

Notes

1. Schedule 1, division 1 of Marine Order 501 (Administration – National Law) 2013 issued by AMSA pursuant to section 163(1) of the Marine Safety (Domestic Commercial Vessel) National Law prescribes that an infringement notice may only be issued for breaching subsection 22(4) of the National Law. The fine is prescribed as being 12 penalty units. Section 4AA(1) of the Crimes Act 1914 (Cth) prescribes a penalty unit as $170. Presumably, alleged breaches of the other subsections would be commenced by way of a complaint in a court of competent jurisdiction.

2. See AMSA Media Release of 28 February 2014, <www.amsa.gov.au/media/media-releases/2014/index.asp> (15 October 2014).

3. AMSA Media Release of 19 May 2014, <www.amsa.gov.au/media/media-releases/2014/index.asp> (15 October 2014).

4. Section 6 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth) and section 109 of the Constitution of the Commonwealth of Australia.

5. This article addresses one of the small areas of law not expressly addressed by Michael White in his chapter about the carriage of passengers by ships in Australian Maritime Law, 3rd edn, Federation Press, Sydney, 2014, pp. 234–57.

6. Section 3(a) of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth).

7. See sections 22(1), 22(2), 22(3) and 22(4) of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth).

8. Section 43 of the Transport Operations (Marine Safety) Act 1994 (Qld).

9. Section 190 of the Transport Operations (Marine Safety) Act 1994 (Qld) makes it an offence for a person to obstruct a master or crew member of a ship in the operation of the ship or in the performance of their duties, including by failing to obey a direction about safety.

10. The Transport Operations (Marine Safety) Regulation 2004 (Qld) imposes some specific obligations on passengers to wear lifejackets whilst on a personal watercraft or when crossing coastal bars.

11. Section 123(1) of the Transport Operations (Marine Safety) Act 1994 (Qld).

12. Section 125 of the Transport Operations (Marine Safety) Act 1994 (Qld).

13. Section 123(1)(a) of the Transport Operations (Marine Safety) Act 1994 (Qld).

14. Section 125 of the Transport Operations (Marine Safety) Act 1994 (Qld).

15. Section 188 of the Transport Operations (Marine Safety) Act 1994 (Qld).

16. Section 191 of the Transport Operations (Marine Safety) Act 1994 (Qld).

17. Section 6(2)(xii) of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth).

18. Paragraphs 17 and 18 of the Intergovernmental Agreement on Commercial Vessel Safety Reform, Council of Australian Governments, 19 August 2011.

19. On 7 May 2013, the Queensland Minister for Transport and Main Roads, the Honourable Scott Emerson, issued a press release opposing the commencement of these reforms as it would cause a significant increase in the costs of registration of commercial vessels in Queensland. The Minister noted that he would not endorse the reforms until more details concerning registration fees had been released, <http://statements.qld.gov.au/Statement/2013/5/7/commercial-boaties-face-extra-costs-under-gillard> (15 October 2014).

20. The Western Australia Department of Transport notes on its website that the regulation of domestic commercial shipping is the responsibility of the Federal Government, <http://www.transport.wa.gov.au/imarine/national-reform-of-shipping-regulations.asp> (15 October 2014).

21. Section 51(xxix) of the Constitution of Australia (the external affairs power), as decided by the High Court in the matter of New South Wales v Commonwealth (1975) 135 CLR 337.

22. Section 76 of the Constitution of Australia.

23. Section 51(xx) of the Constitution of Australia. This does not extend to businesses operating within the confines of a single state.

24. Section 51(xxix) of the Constitution of Australia.

25. Paragraph 46(b) of the Intergovernmental Agreement on Commercial Vessel Safety Reform, Council of Australian Governments, 19 August 2011.

26. Section 51(xxix) of the Constitution of Australia.

27. (1975) 135 CLR 337.

28. For a general discussion of the development of this complex area of law see Michael White, Australian Offshore Laws, Federation Press, Sydney, 2009, pp. 15–44.

29. White, Australian Offshore Laws, pp. 25–6.

30. Section 51(xxix) of the Constitution of Australia.

31. Section 211 of the Transport Operations (Marine Safety) Act 1994 (Qld).

32. Section 76 of the Constitution of Australia.

33. Section 51(xx) of the Constitution of Australia.

34. The CityCats are owned by Brisbane City Council, but operated by Transdev. The university students jumped from the Lady Brisbane which, according to the operator's website, is owned by Brisbane Cruises Pty Ltd and which is registered with ASIC (ACN 088 276 742).

35. Section 5(1)(c) of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth) extends the constitutional reach of the National Law to vessels of which the owner, or any of the owners, is a constitutional corporation. A constitutional corporation is defined in section 3 of the National Law as a corporation to which paragraph 51(xx) of the Australian Constitution applies. The Brisbane City Council is incorporated pursuant to section 10 of the City of Brisbane Act 2010 (Qld) and therefore is likely to be a constitutional corporation for these purposes. Although local governments generally are probably not trading or financial corporations: see Australian Workers' Union of Employees, Queensland v Etheridge Shire Council [2008] FCA 1268, in which the proper test to determine whether the local government authority was a trading or financial corporation (for the purposes of section 51(xx) of the Australian Constitution) turned upon whether trading in goods or services was ‘the predominant and characteristic activity of the Etheridge Shire Council’ or whether ‘the predominant and characteristic activity of the Etheridge Shire Council is in finance’, at [85] per Spender J. His Honour concluded that, on the evidence, the Council's trading activities entirely lacked the essential quality of trade and were ‘inconsequential and incidental’ to the primary functions of the Council at [151] per Spender J.

36. The corporations power.

37. Williams v Commonwealth [2014] HCA 23 at [50] per French CJ, Hayne, Keifel, Bell and Keane JJ.

38. A search of Maritime Safety Queensland's website (www.msq.qld.gov.au) does not reveal any clear indication about whether TOMSA or the National Law will be enforced in the absence of application legislation. However, the author has spoken privately with Queensland shipping inspectors who have advised that they are advising domestic commercial vessel operators that the National Law now applies in Queensland.

39. Section 44(1) of the Transport Operations (Marine Safety) Act 1994 (Qld) makes it an offence to operate a ship without the regulated safety equipment on board the ship. Section 9A of the Transport Operations (Marine Safety) Regulation 2004 prescribes EPIRBs as prescribed safety equipment. Schedule 3 of the State Penalties Enforcement Regulation 2000 prescribes the fine as 2 penalty units. One penalty unit is $110 pursuant to section 5 of the Penalties and Sentences Act 1992 (Qld).

40. Schedule 1, division 1 of Marine Order 501 prescribes the fine as 12 penalty units. Section 4AA(1) of the Crimes Act 1914 (Cth) prescribes a penalty unit as $170.