National System for Commercial Vessel Safety
Marine Safety (Domestic Commercial Vessels) Regulations 2012
Consultation submission
Background
Boating Industries Alliance Australia is the national peak body for the recreational and light commercial
boating industry in Australia. BIAA members are the state-based Boating Industry Associations in Western
Australia, South Australia, Victoria, New South Wales, Queensland and Northern Territory. Together, the
BIAA members represent over 1500 marine businesses, accounting for 85% of the industry by turnover and
employing some 28,000 people. The boating industry has a turnover of approximately $8bn and is a leading
sector of the Australian economy, encompassing manufacturing, retail, service and tourism operators.
Recreational boating is one of the most participative and inclusive recreational activities and as a lifestyle it
provides more than four million regular boaters with an opportunity to enjoy the benefits of an active,
outdoor, healthy leisure-time activity, and, as cited by many anecdotal remarks from boaters, creates an
opportunity for families to interact. The BIAA, in partnership with various stakeholders including Yachting
Australia and the Houseboat Hirers Association, believes the new National System must take full account of
this in all regulatory provisions and Marine Orders and not inadvertently capture recreational boating within
the legislation.
The Regulatory Plan
The BIAA is pleased to see that the Regulatory Plan has evolved in recent months and that a number of the
concerns expressed previously have been recognised and accommodated within the revised text. It is good
to note that various activities associated with recreational boating but which had previously been considered
to be of a commercial nature, such as sponsored vessels, promotional activity and paid crew on board a
recreational boat, have been excluded from the definition of domestic commercial vessel, as confirmed in
clause 1.6 of the draft Regulation.
However, in addition to comments and queries below, there remains the requirement to have confirmation,
by citation within a relevant regulatory instrument, that the treatment of multiple ownership boats,
specifically syndicated or share boats, will be as per various recent discussions and informal notes which
have focused on the following wording:
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“A syndicated boat is owned by a discrete group of individuals who, collectively, manage the ownership of the
boat, its use and its maintenance (often by delegating the detail of such to a professional management
company engaged by the owners): it is not available for general hire or charter and is not operated for a
commercial gain.”
The BIAA and industry members would welcome complete and final clarity on this matter by having such
wording form part of the regulatory definitions, which, as noted above re clause 1.6, does provide for
confirmation of other exclusions based on activity.
The regulatory plan also raises some queries and concerns about matters including existing vessels and
grandfathering provisions, consistency of service provision by state agencies and scales of fees. Related
matters concerning qualifications and crewing, as covered by Marine Orders, also provide some concern and
working in partnership with Yachting Australian, BIAA will comment on such as part of the Marine Orders
consultation, currently open in parallel.
Existing vessels and grandfathering
The concept of grandfathering is an important regulatory provision to ensure existing vessels and operations,
which have operated successfully and safely, in many cases for a number of years, are not inadvertently
disadvantaged by the requirement and necessity to introduce updated and modernised construction,
equipment and operational specification and requirements to the commercial vessel fleet. This is welcomed,
however there are a number of conditions attached to maintenance of grandfathering provisions which are
considered unworkable, inappropriate and potentially unenforceable, with no obvious benefit to safety.
Clause 4.1.2 defines changes that will trigger a review of grandfathering arrangements, and while
modifications to the vessel that are accompanied by an upgrade in service, leading to an increase in risk, are
accepted as a scenario where such a review would always be required, the BIAA is concerned about the
scenarios of change of operation and change of geographic location. It is accepted that not all such reviews
will result in there being a change to the grandfathering arrangements for existing vessels, however the
potential for such reviews to require that an existing vessel be subjected to ‘as new’ standards and
regulatory treatment, at times subject to the discretion of National System accredited surveyors or other
state jurisdiction officers, is of particular concern and raises questions about the national consistency of the
new regulatory system.
Many operators of commercial vessels, particularly of leisure craft as defined within NSCV F2, use vessels in
different geographic locations at different times of the year, being seasonally related operations, with vessels
transferred interstate as required depending on operational demands. There is also the scenario of inland
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waterway vessels, particularly within the houseboat industry, crossing state boundaries along the course of
the waterway with no change to risk of operation or to the vessel. In all such instances of a vessel
transferring geographic location, either within a state or interstate, the principle for considering whether a
review of any grandfathering arrangements is necessary must be based only on any consequent changes to
category of area of operation where such would impose a higher degree of risk.
Clarification is sought that in the instance of a vessel, such as a hire and drive houseboat, being sold to
another operator, whether such operates an existing fleet of similar vessels or not, that the only requirement
with regard to enjoyment of ongoing benefits of grandfathering arrangements is for the new operator to
make suitable declarations as to the safety of operation of the vessel and associated operational protocols, in
line with existing requirements of future requirements under NSCV F2 or NSCV Part E as relevant when
implemented. The requirement to review grandfathering arrangements should again only be associated with
a change of operation or operational area that would impose a higher degree of risk.
The BIAA is joined by The Houseboat Hirers Association in registering these concerns and would request that
a review of the provisions of clause 4.1.2 and instances in which is invoked in subsequent clauses, be
undertaken in consultation with industry.
Consistency of service provision
The BIAA recognises one of the principle objectives of the National System is to apply nationally consistent
standards to both vessels and their operation, and the actual delivery of service under the National System,
whether this be in regard to determinations made by survey personnel, requirements for provision of
supporting documentation, scales of fees for service or timely provision of service.
Clause 3.2 administrative arrangements covers these topics but would appear to leave to each state
maritime jurisdiction the determination of fees for services, documentation requirements and surveyor
accreditation and acceptance of reports from such. This would suggest that there may be variation in the
costs and conformity requirements of undertaking commercial vessel survey, safety inspections or other
dealings with different state survey departments acting in their capacity as service providers under the
National System.
Clause 5.2.3 providing for vessels to opt into Scheme S – which may be of interest for some operators where
risk assessments suggests having a vessel in survey would be preferred – would appear to leave to each state
maritime jurisdiction the decision to allocate resources to such instances or not. While the reality of survey
resources available in current state survey departments is understood, this should not be a barrier to
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operators wanting to bring new vessels into survey. As required, additional survey resource should be
sought from the private sector.
In considering the implications of both of the above sets of issues, it is unclear as to whether an operator
would be expected or required to deal with his home state maritime jurisdiction or whether, under the
concept of the National System being a consistently applied set of regulations and standards across the
country, a service provider from any state would be permitted to act. It would appear logical that where a
business is looking to secure the most favourable terms for cost, timeliness and ease of service delivery, then
any provider authorised to act under the National System would be engaged, regardless of the state location
of any of the parties.
Without such freedom to work with any authorised service provider as preferred, the National System would
appear to be continuing to operate on a state-by-state basis with variation, perceived or real, in the
processes, costs and requirements of survey. This should not be permitted to happen as all operators and
all vessels should receive and benefit from the same treatment nationally regardless of home state.
Operational standards
It is noted that NSCV Part E is currently under revision, in parallel with NSCV Part D, and clarification is sought
on the timetable for this revision, with particular regard to consultations and industry engagement, including
boating industry representation on any reference groups involved with this work.
It is further understood that NSCV Part F is also being reviewed, following earlier meetings with NSW RMS,
and clarification is also sought on the timetable for this revision. With this standard covering hire and drive
vessels specifically, the boating industry is most interested to understand the scope and status of this
revision and to provide active support to progress the revision.
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Conclusion and recommendation
The BIAA has been pleased to be able to work with AMSA and other government agencies during the
conception and development of the National System over the last 24+ months and will continue to do so
during the continuing development of provisions and standards specific to certain types of vessel and
operation, as identified in the regulatory plan, and those operations where there is currently still some clarity
required to eventual final treatment, as identified in this submission.
Given the wide-ranging changes being introduced in the National System and the consequent complexity of
significant elements of the regulatory documentation and other supporting materials, BIAA would strongly
encourage the development of a series of easy-to-follow guidance sheets, such as flow chart or scenario
diagrams, to provide vessel owners and operators with a clear understanding of the various provisions
applying, or not, to their vessels and operations, now, at the commencement of the National System and in
the future where any change to the vessel or operation is considered or effected.
Prepared by
Nik Parker
General Manager
Boating Industries Alliance Australia
8 October 2012
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