Independent review looks at whether AMSA legislation is fit-for-purpose

In its response to a Senate Inquiry into AMSA in December 2020, the Australian Government commissioned an independent review of the national marine safety system and the National Law.

The review is being conducted by a three-person Independent Review Panel on a two-phase approach:

Phase 1 – Is the legislation fit-for-purpose?, and,

Phase 2 – What are the cost recovery arrangements for AMSA activities?

Phase 1 consultation has been completed and the Independent Review team ‘draft report’ was released in August for stakeholder comment by early October 2022.

WAFIC will be co-ordinating a broad-based response on behalf of the WA fishing, pearling and aquaculture industries.

You can find the full report here.

WAFIC summary of independent review panel findings and recommendations:

Issue 1 – Safety Outcomes

Key Finding: While there is room for improvement, there is evidence to suggest the National Law framework has improved safety outcomes. However, the legal framework has introduced unnecessary complexity and regulatory burden and is not responsive to innovation and change.

Issue 2 – Risk-based regulatory framework

Finding 1: Much of the complexity and regulatory burden would be reduced if the general safety duties in the National Law, supplemented by codes of practice developed by AMSA in consultation with industry, were used as the primary regulatory tool for the less risky segment of the DCV fleet. This would also allow AMSA to concentrate on the riskier segments.

Finding 2: The requirement for all DCVs to have Certificates of Survey and of Operation is unnecessary to achieve safety outcomes and has resulted in a complex and burdensome array of exemptions for less risky operations. 

Recommendation 1: The law should be amended to better reflect a risk-based regulatory model that is flexible and able to adapt to innovation and emerging technologies by:

  • retaining general safety duties on all parties that have a duty under the current law;
  • removing the universal requirement for all DCV’s to have Certificates of Survey and Operations;
  • providing that vessels of a type or class specified in the regulations (or Marine Orders) be required to comply with NSCV Standards and/or hold a Certificate of Survey or Certificate of Operations; and
  • requiring higher risk vessels to comply with the Navigation Act and associated international standards, including the International Dangerous Goods Code and the Standard of Training, Certification and Watchkeeping.

Issue 3 – Review grandfathering arrangements

Finding 3: Progressively withdrawing existing grandfathering arrangements to the extent the impact on safety would substantially improve safety outcomes.

Recommendation 2: The grandfathering arrangements that are a risk to safety should be wound back in accordance with a phased risk-based program.

  • All existing DCVs subject to grandfathered design and construction standards should meet acceptable baseline set of design and construction standards based on the current ‘transitional standards’ within seven years of implementation of this change.
  • DCVs that would be required to be certified under the risk-based regulatory regime proposed under Recommendation 1, and that are subject to grandfathered survey requirements or otherwise subject to grandfathered design and construction standards, should undergo survey inspection to assess gaps and requirements to the baseline design and construction standards.
    • These inspections should occur over a two to five year period, with higher risk vessels/operations given greater priority for early inspection
    • Owners should be required to rectify inspection findings within two years of inspection.
  • Grandfathered crewing and crew competency arrangements should be phased out within five years of implementation of this change.
  • The Australian Government should establish and fund an Industry Assistance Package with a suite of incentives to assist attaining these standards.

Issue 4 – Relationship between marine safety law & work health and safety law.

Finding 4: There is a high level of confusion within the industry about the relationship between the marine safety law and work health and safety (WHS) law.

Recommendation 3: AMSA should:

  • review its Memorandums of Understanding with State and Territory WHS Authorities to include principles to apply to decisions around which the regulator is to lead on safety duties held by persons in the maritime industry; and
  • reflect these in communications and guidance to industry explaining the rationale for the dual operation of the National Law and WHS Law, and how AMSA and WHS Authorities work practically to reduce any duplication of effort and regulatory burden, including reporting requirements.

Issue 5 – Offences and Penalties

Finding 5: The current framework provides a comprehensive range of enforcement powers for breaches of safety requirements. However, the formulation of the offences and penalties for breaches of general safety duties differs from similar provisions in WHS law and, as a result:

  • the low levels of penalties that can be imposed by the courts limits their deterrence effect; and,
  • undermines the effectiveness of AMSA as the safety regulator of DCVs. 

Recommendation 4: The offences and penalties in the National Law should be aligned to those in the WHS law to the extent practical.

Issue 6 – Enforcement Powers

Finding 6: AMSA’s enforcement powers should be further enhanced so that it has an effective range of powers to support a risk-based, targeted compliance and enforcement approach. 

Recommendation 5: The National Law should be amended to:

  • explicitly refer to an officer’s due diligence obligation to ensure that the owner of a DCV complies with their safety duties under the National Law;
  • allow scaling of infringement notice penalties;
  • fill a gap in the law relating to negligent navigation;
  • align the present limitation period on commencement of prosecution action with WHS law; and
  • introduce a power for the courts to suspend or revoke certificates.

Issue 7 – Expanding the Australian Transport Safety Bureau’s role to include DCV safety incidents

Finding 7: Expanding the Australian Transport Safety Bureau’s (ATSB) role to include DCV safety incidents would provide for an independent review of systemic safety issues that would support enhanced safety outcomes.

Recommendation 6: The ATSB should be funded by the Australian Government to undertake a no-blame investigation program sufficient to support the identification of systemic safety issues. The Minister should issue a statement of expectations regarding the ATSB’s DCV function.

Recommendation 7: Where a State has its own safety investigator the ATSB may engage it to undertake investigations on its behalf.

Recommendation 8: Safety incidents should be reported to one Commonwealth maritime safety authority only (AMSA or the ATSB) who will take responsibility for sharing it with each other as required.

Issue 8 – Develop and foster a safety culture within the maritime industry.

Finding 8: There is an opportunity and need for the establishment of a concerted effort by AMSA to lead, develop and foster a safety culture within the maritime industry.

Recommendation 9: AMSA should establish and support an Australian Government funded long-term safety engagement program with all sectors of the DCV industry to:

  • promote the benefits of reporting;
  • identify best data collection methods;
  • investigate the creation of a ‘white card’ scheme; and
  • develop simple and accessible guidelines for ease of compliance.

Issue 9 – Improve the marine surveyor accreditation scheme to ensure it is up to date, fit for purpose and flexible.

Finding 9: There is an opportunity for the Department of Infrastructure, Transport, Regional Development, Communications and the Arts and AMSA to improve the marine surveyor accreditation scheme to ensure it is up to date, fit for purpose and flexible.

Recommendation 10: The marine surveyor accreditation scheme should be reviewed to make it fit-for-purpose. As part of that review, consideration should be given to introducing (among other matters):

  • a tiered accreditation scheme according to size and complexity of the vessel;
  • a formal continuing professional development program;
  • regular random audits of surveyor approvals and subsequent standards applied;
  • increasing the approval powers for accredited marine surveyors;
  • greater flexibility in who can be accredited as a marine surveyor, and expanding categories of accreditation to adequately cater for new and emerging technologies; and
  • a formal rulings program to provide certainty for surveyors and operators.

The review should consider a reasonable timetable for implementation of the proposed reforms.

Issue 10Amend process to change National Laws

Finding 10: The current requirement that changes to regulations made under the National Law be agreed by all States and the Northern Territory is a barrier to flexibility and responsiveness to innovation. 

Recommendation 11: The current requirement that changes to certain regulations be unanimously agreed by the States and the Northern Territory, be removed.

Issue 11 – Future proofing National Law framework

 Finding 11: There is a need to further consider how the National Law framework can be future ready.

Recommendation 12: AMSA should set up a taskforce to consider how to optimise and future proof the National Law framework to regulate new and emerging technologies.

The taskforce should consider whether definitions in the National Law remain fit-for-purpose in the context of development, deployment and operation of new and emerging technologies.