NOTICE TO MARITIME INDUSTRY ORGANISATIONS
AND OTHER INTERESTED PARTIES
NOTICE NO 06/2012
SHIPPING REFORM PACKAGE—CONSEQUENTIAL AMENDMENTS TO
SEACARE LEGISLATION
Shipping reform legislation
1.
2.
To give effect to the Government’s shipping reforms, the Australian Parliament has passed the following
legislation with effect from 1 July 2012:
•
Coastal Trading (Revitalising Australian Shipping) Act 2012 will replace Part VI of the Navigation Act
1912 and establish a new regulatory framework and licensing system for vessels engaged in coastal
trading in Australian waters.
•
Coastal Trading (Revitalising Australian Shipping)(Consequential Amendments and Transitional
Provisions) Act 2012 consequentially amends existing relevant legislation to ensure consistency with
the new regime, and to provide for transitional arrangements.
•
Shipping Reform (Tax Incentives) Act 2012 provides conditions for vessels to access the tax
exemption and other tax concessions.
•
Tax Laws Amendment (Shipping Reform) Act 2012 amends the Income Tax Assessment Acts to give
effect to the tax exemption and other tax concessions.
•
Shipping Registration Amendment (Australian International Shipping Register) Act 2012 establishes
the new international shipping register, and provides for its operation, administration and employment
conditions.
Further information regarding the shipping reform package is available from the Department of
Infrastructure and Transport on www.infrastructure.gov.au.
Impact on Seacare jurisdiction
3.
On and from 1 July 2012, Seacare legislation will be amended by the Coastal Trading (Revitalising
Australian Shipping) (Consequential Amendments and Transitional Provisions) Act 2012 to reflect the
coastal trading shipping reforms.
4.
The coverage provisions of the Seafarers Rehabilitation and Compensation Act 1992 (the Seafarers Act)
will be amended to provide that the Seafarers Act applies to vessels used to engage in coastal trading
under a general or an emergency licence if the vessels are registered in the Australian General Shipping
Register. A general licence for this purpose will include a transitional general licence.
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NOTICE TO MARITIME INDUSTRY ORGANISATIONS AND OTHER INTERESTED PARTIES
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5.
The consequential amendments will also provide that the Seafarers Act does not apply to vessels
registered in the Australian International Shipping Register that are used to engage in coastal trading.
6.The Occupational Health and Safety (Maritime Industry) Act 1993 (the OHS (MI) Act) will be amended to
provide that it applies to vessels used to engage in coastal trading under:
•
general licences
•
temporary licences if the vessels are registered under the Australian International Shipping Register;
and
•
emergency licences if the vessels are registered either under the Australian International Shipping
Register or the Australian General Shipping Register.
A general licence for this purpose will include a transitional general licence.
7.
The Seafarers Act and the OHS (MI) Act will also be amended to include new definitions to give effect to
the reform package.
8.The Coastal Trading (Revitalising Australian Shipping) (Consequential Amendments and Transitional
Provisions) Act 2012 will also amend section 10 of the Navigation Act 1912 which will impact the definition
of a ‘prescribed ship’ for the purposes of Seacare legislation.
9.
Schedule A to this notice details the relevant coverage provisions for the Seacare scheme from 1 July 2012
and provides amended coverage tests which reflect the updated provisions.
10. Any enquiries relating to this notice may be directed to the Seacare Management Section.
Seacare Management Section
Comcare
27 June 2012
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SCHEDULE A
The relevant Seacare coverage provisions from 1 July 2012 as amended:
Section 19 of the Seafarers Rehabilitation and Compensation Act 1992—Application of Act:
(1)
This Act applies to the employment of employees on a prescribed ship that is engaged in trade or
commerce:
(a) between Australia and places outside Australia; or
(aa) between 2 places outside Australia; or
(b) among the States; or
(c) within a Territory, between a State and a Territory or between 2 Territories.
Note: This Act does not apply if a prescribed ship is a ship registered in the Australian International
Shipping Register, see paragraph 61AA(b) of the Shipping Registration Act 1981.
(1AA) This Act also applies to the employment of employees on:
(a) a vessel that is used to engage in coastal trading under a general licence; or
(b) a vessel that is used to engage in coastal trading under an emergency licence if the vessel is
registered in the Australian General Shipping Register.
(1A)
This Act also applies to the employment of employees on any prescribed ship that is:
(a) an off shore industry vessel in relation to which a declaration under subsection 8A(2) of the
Navigation Act is in force; or
(b) a trading ship in relation to which a declaration under subsection 8AA(2) of that Act is in force.
(2)
This Act also has the effect it would have if:
(a) a reference to an employer were limited to a reference to a trading corporation formed within the
limits of the Commonwealth; and
(b) a reference to an employee were limited to a reference to an employee employed by a trading
corporation formed within the limits of the Commonwealth.
(3)
This Act also has the effect it would have if:
(a) a reference to an employer were limited to a reference to a financial corporation formed within the
limits of the Commonwealth; and
(b) a reference to an employee were limited to a reference to an employee employed by a financial
corporation formed within the limits of the Commonwealth.
(4)
This Act also has the effect it would have if:
(a) a reference to an employer were limited to a reference to a foreign corporation; and
(b) a reference to an employee were limited to a reference to an employee employed by a foreign
corporation.
(5)
Subsection (3) does not have the effect of applying this Act with respect to:
(a) State banking that does not extend beyond the limits of the State concerned; or
(b) State insurance that does not so extend.
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Section 6 of the Occupational Health and Safety (Maritime Industry) Act 1993—Application of Act
(1)
This Act applies in relation to a prescribed ship or prescribed unit that is engaged in trade or commerce:
(a) between Australia and places outside Australia; or
(aa) between 2 places outside Australia; or
(b) between the States; or
(c) within a Territory, between a State and a Territory or between 2 Territories.
(2)
Without limiting the operation of subsection (1), this Act applies to:
(a) the operator of a prescribed ship or prescribed unit described in subsection (1); and
(b) employees employed on a prescribed ship or prescribed unit described in subsection (1); and
(c) contractors and other persons working on a prescribed ship or prescribed unit described in
subsection (1); and
(d) manufacturers, suppliers and importers of plant used, or substances used or handled, on a
prescribed ship or prescribed unit described in subsection (1).
(3)
This Act also applies in relation to:
(a) an offshore industry vessel in relation to which a declaration under subsection 8A(2) of the
Navigation Act 1912 is in force; and
(b) a trading ship in relation to which a declaration under subsection 8AA(2) of that Act is in force.
(3A)
This Act also applies to:
(a) a vessel that is used to engage in coastal trading under a general licence; and
(b) a vessel that is used to engage in coastal trading under a temporary licence if the vessel is
registered in the Australian International Shipping Register; and
(c) a vessel that is used to engage in coastal trading under an emergency licence if the vessel is
registered in the Australian General Shipping Register or the Australian International Shipping
Register.
(4)
Without limiting the operation of subsection (3), this Act applies to:
(a) the operator of a vessel or ship described in subsection (3); and
(b) employees employed on a vessel or ship described in subsection (3); and
(c) contractors and other persons working on a vessel or ship described in subsection (3); and
(d) manufacturers, suppliers and importers of plant used, or substances used or handled on, a vessel
or ship described in subsection (3).
(5)
Without prejudice to its effect apart from this subsection, this Act also has effect as provided by
subsections (6), (7) and (8).
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(6)
This Act has, by force of this subsection, the effect it would have if:
(a) a reference to an operator were limited to a reference to a trading corporation formed within the
limits of the Commonwealth; and
(b) a reference to an employee were limited to a reference to an employee of a trading corporation
formed within the limits of the Commonwealth; and
(c) a reference to a contractor were limited to a reference to a contractor working for a trading
corporation formed within the limits of the Commonwealth; and
(d) a reference to a manufacturer were limited to a reference to a manufacturer that is a trading
corporation formed within the limits of the Commonwealth; and
(e) a reference to a supplier were limited to a reference to a supplier that is a trading corporation
formed within the limits of the Commonwealth; and
(f)
(7)
a reference to a person in sections 22, 23 and 24 were limited to a reference to a person working
for a trading corporation formed within the limits of the Commonwealth.
This Act has, by force of this subsection, the effect it would have if:
(a) a reference to an operator were limited to a reference to a financial corporation formed within the
limits of the Commonwealth; and
(b) a reference to an employee were limited to a reference to an employee of a financial corporation
formed within the limits of the Commonwealth; and
(c) a reference to a contractor were limited to a reference to a contractor working for a financial
corporation formed within the limits of the Commonwealth; and
(d) a reference to a person in sections 22, 23 and 24 were limited to a reference to a person working
for a financial corporation formed within the limits of the Commonwealth.
(8)
This Act has, by force of this subsection, the effect it would have if:
(a) a reference to an operator were limited to a reference to a foreign corporation; and
(b) a reference to an employee were limited to a reference to an employee of a foreign corporation;
and
(c) a reference to a contractor were limited to a reference to a contractor working for a foreign
corporation; and
(d) a reference to a manufacturer were limited to a reference to a manufacturer that is a foreign
corporation; and
(e) a reference to a supplier were limited to a reference to a supplier that is a foreign corporation; and
(f)
(9)
a reference to a person in sections 22, 23 and 24 were limited to a reference to a person working
for a foreign corporation.
This Act does not apply with respect to:
(a) State banking that does not extend beyond the limits of the State concerned; or
(b) State insurance that does not so extend.
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Section 10 of the Navigation Act 1912—Application of Part
Except so far as the contrary intention appears, this Part applies only to:
(a) a ship registered in Australia;
(b) a ship that is used to engage in coastal trading (within the meaning of the Coastal Trading (Revitalising
Australian Shipping) Act 2012) under a general licence (within the meaning of that Act); or
(c) a ship (other than a ship to which paragraph (a) or (b) applies) of which the majority of the crew are
residents of Australia and which is operated by any of the following (whether or not in association with any
other person, firm or company, being a person, firm or company of any description), namely:
(i)
a person who is a resident of, or has his or her principal place of business in, Australia;
(ii)
a firm that has its principal place of business in Australia; or
(iii) a company that is incorporated, or has its principal place of business, in Australia;
and to the owner, master and crew of such a ship.
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Guidance on the coverage of the Seafarers Act from 1 July 2012:
From 1 July 2012, there will be two tests for coverage of the Seafarers Act, one for vessels engaged in coastal
trading (test B) and one for vessels not engaged in coastal trading (test A).
Accordingly, to determine whether the Seafarers Act applies, it is necessary to first consider:
Are you engaged in coastal trading?
If the answer is no, go to Test A. If the answer is yes, go to Test B.
Test A
1. Is there employment of employees?
Is the person a seafarer or trainee engaged or employed in any capacity on the business of the ship?
Pilots, persons temporarily employed on the ship in port and special personnel are specifically excluded.
2. Is the vessel a prescribed ship?
A prescribed ship means a ship to which Part II of the Navigation Act applies but does not include a
Government ship.
From 1 July 2012, Part II (section 10) of the Navigation Act applies to:
(a) a ship registered in Australia
(b) a ship that is used to engage in coastal trading under a general licence or transitional general licence; or
(c) a ship of which a majority of the crew are Australian residents and which is operated by an Australian
company, person or firm.
3. Is the prescribed ship engaged in trade or commerce:
(a) between Australia and places outside Australia
(b) between two places outside Australia
(c) among the States (inter-State)
(d) within a Territory (intra-Territorial)
(e) between a State and Territory; or
(f)
between two Territories.
If the answers to 1, 2 and 3 are yes, the Seafarers Act will apply unless the seafarer is engaged on a vessel that
is registered on the Australian International Shipping Register.
If the answers to 1 and 2 are yes and 3 is no, consider 4 below:
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4. Does the Navigation Act apply?
Is the vessel:
(a) an offshore vessel with a declaration under s8A(2) of the Navigation Act; or
(b) a trading ship with a declaration under s8AA(2) of the Navigation Act?
If the answers to 1, 2 and 4 are yes, the Seafarers Act will apply unless the seafarer is engaged on a vessel that
is registered on the Australian International Shipping Register.
Test B
1. Is there employment of employees?
Is the person a seafarer or trainee engaged or employed in any capacity on the business of the ship?
Pilots, persons temporarily employed on the ship in port and special personnel are specifically excluded.
2. Is the vessel engaged in coastal trading?
Is the vessel:
(a) carrying passengers or cargo from one State or Territory to another; or
(b) carrying passengers or cargo intrastate and has a declaration under s12 of the Coastal Trading Act?
3. Does the vessel have the appropriate licence?
Is the vessel operating under:
(a) a general licence; or
(b) a transitional general licence; or
(c) an emergency licence and is registered on the Australian General Shipping Register?
If the answers to 1, 2 and 3 are yes, the Seafarers Act will apply.
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Guidance on the coverage of the OHS (MI) Act from 1 July 2012:
From 1 July 2012, there will be two tests for coverage of the OHS (MI) Act, one for vessels engaged in coastal
trading (test B) and one for vessels not engaged in coastal trading (test A).
Accordingly, to determine whether the OHS (MI) Act applies, it is necessary to first consider:
Are you engaged in coastal trading?
If the answer is no, go to Test A. If the answer is yes, go to Test B.
Test A
1. Is the vessel a prescribed ship?
A prescribed ship means a ship to which Part II of the Navigation Act applies but does not include a
Government ship.
From 1 July 2012, Part II (section 10) of the Navigation Act applies to:
(a) a ship registered in Australia
(b) a ship that is used to engage in coastal trading under a general licence or transitional general licence; or
(c) a ship of which a majority of the crew are Australian residents and which is operated by an Australian
company, person or firm.
2. Is the prescribed ship engaged in trade or commerce:
(a) between Australia and places outside Australia
(b) between two places outside Australia
(c) among the States (inter-State)
(d) within a Territory (intra-Territorial)
(e) between a State and Territory; or
(f)
between two Territories.
If the answers to 1 and 2 are yes, the OHS (MI) Act will apply.
If the answers to 1 and/or 2 are no, consider 3 below:
3. Does the Navigation Act apply?
Is the vessel:
(a) an offshore vessel with a declaration under s8A(2) of the Navigation Act; or
(b) a trading ship with a declaration under s8AA(2) of the Navigation Act?
If the answer to 3 is yes, the OHS (MI) Act will apply, regardless of tests 1 and 2.
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Test B
1. Is the vessel engaged in coastal trading?
Is the vessel:
(a) carrying passengers or cargo from one State or Territory to another; or
(b) carrying passengers or cargo intrastate and has a declaration under s12 of the Coastal Trading Act?
2. Does the vessel have the appropriate licence?
Is the vessel operating under:
(a) a general licence; or
(b) a transitional general licence; or
(c) a temporary licence and is registered in the Australian International Shipping Register; or
(d) an emergency licence and is registered in the Australian General Shipping Register or the Australian
International Shipping Register?
If the answers to 1 and 2 are yes, the OHS (MI) Act will apply.
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