Marine and Safety (Safety Manning) Regulations 1997

Marine and Safety (Safety Manning) Regulations 1997

I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Marine and Safety Authority Act 1997 .

G. S. M. GREEN

Governor

By His Excellency's Command,

T. JOHN CLEARY

Minister for Transport

PART 1 - Preliminary

1.   Short title

These regulations may be cited as the Marine and Safety (Safety Manning) Regulations 1997 .

2.   Commencement

These regulations take effect on 30 July 1997.

3.   Interpretation

In these regulations –

approved person means –

(a) a person who is the owner or master of a vessel; or

(b) a person approved by the Authority;

certificate means a certificate of competency;

chairperson means the chairperson of the Committee;

Committee means the Manning Committee established under regulation 5 ;

continuous rated power means the power that an engine is capable of delivering continuously at a speed and under conditions prescribed by the manufacturer;

determination means a determination referred to in Division 1 of Part 3 ;

length means measured length;

measured length means the greater of the following:

(a) the distance from the fore part of the hull of a vessel to the after part of the hull of the vessel measured –

(i) at the height of the gunwale, if the vessel is an open vessel; or

(ii) at the upperside of the uppermost weathertight deck, if the vessel is not an open vessel;

(b) 96% of the distance between a vertical line passing through a point at the foremost part of the vessel's hull, excluding appendages, and a vertical line passing through a point at the aftermost part of the vessel's hull, excluding appendages;

nm means nautical miles;

operational area means an area within the limits specified in the Marine and Safety (Limits of Operational Areas) By-laws 1997;

prescribed complement means a number of persons specified in Schedule 3 or determined under Part 3 ;

propulsion power means –

(a) in the case of a multiscrew vessel of less than 35 metres in length for use in sheltered waters or inshore, restricted offshore or offshore operations, the maximum continuous rated power in kilowatts of the largest engine provided for the propulsion of the vessel by one screw; and

(b) in the case of any other vessel, the total maximum continuous rated power in kilowatts of all the machinery provided for the propulsion of the vessel.

4.   Application of regulations

(1)  These regulations apply to vessels used or intended to be used for navigation within the jurisdiction of the Authority.

(2)  These regulations do not apply to –

(a) any vessel used for the purpose of pleasure only; or

(b) any vessel or class of vessel the Minister, by order, declares to be a vessel or class of vessel to which these regulations do not apply.

PART 2 - Manning committee

5.   Manning Committee

(1)  There is established a Manning Committee.

(2)  The Committee consists of –

(a) the chief executive officer of the Authority who is the chairperson of the Committee; and

(b) 2 persons nominated by the Authority; and

(c) any other persons the Authority considers appropriate.

(3)  The members are appointed by the Authority.

(4)  Schedule 1 has effect with respect to membership of the Committee.

(5)  Schedule 2 has effect with respect to meetings of the Committee.

6.   General functions and powers of Committee

The functions of the Committee are –

(a) to determine any matter relating to the safety manning in respect of a vessel that is referred to it by the Authority; and

(b) to review the safety manning in respect of a vessel that is referred to it by the Authority; and

(c) to determine an appeal with respect to the safety manning in respect of a fishing vessel less than 35 metres in length that is referred to it by the Authority.

7.   Deputy members

(1)  The Authority may appoint a person as the deputy of a member of the Committee.

(2)  A deputy of a member, with the member's consent, may stand in for that member at a meeting of the Committee and in doing so is to be treated as if the deputy is a member.

(3)  A deputy of the chairperson is to be treated as the chairperson of the Committee at any meeting at which the deputy stands in for the chairperson.

8.   Obtaining evidence

(1)  The Authority, at the request of the chairperson, may –

(a) require or permit a person who is an approved person to attend before the Committee; or

(b) require or permit a person to give oral or written answers to any question relating to a matter before the Committee; or

(c) require a person to produce a specified document relating to a matter before the Committee; or

(d) require information given to the Committee by a person to be verified by statutory declaration.

(2)  A member of the Committee may enter and inspect a vessel in respect of which the Committee is to make a determination under these regulations.

PART 3 - Prescribed complements for vessels

Division 1 - Trading vessels

9.   Complement for trading vessel

The owner of a trading vessel must not operate that vessel or permit that vessel to operate unless it is provided with –

(a) the prescribed complement; and

(b) a certified master.

Penalty:  Fine not exceeding 20 penalty units.

10.   Application for determination

(1)  The owner of a trading vessel is to apply to the Authority for a determination of the number of persons required to be provided on that vessel.

(2)  An application for a determination –

(a) is to be made in writing; and

(b) may be accompanied by any statements or other documents.

(3)  The Authority is to refer the application and any accompanying statements or documents to the Committee.

11.   Consideration of application for determination

(1)  The Committee, as soon as practicable, is to –

(a) consider an application for a determination; and

(b) make a recommendation to the Authority as to the number of persons required to be provided on the trading vessel specified in the application in particular operational areas.

(2)  In considering the application, the Committee is to take the following into account:

(a) the equipment and propulsion machinery on the trading vessel;

(b) the conditions under which the trading vessel is or is likely to be navigated;

(c) any other factor the Committee considers relevant.

(3)  The Committee is to forward its recommendation to the Authority in writing.

12.   Determination by Authority

(1)  In relation to an application for a determination, the Authority –

(a) may adopt or reject a recommendation made by the Committee; and

(b) is to determine the number of persons required to be provided on the trading vessel specified in the application in particular operational areas.

(2)  The Authority is to advise the applicant by notice in writing of the determination.

13.   Request for review

(1)  An approved person may request the Authority to review a determination made in respect of a trading vessel.

(2)  Subject to regulation 25 , the Authority is to refer a request for a review of a determination to the Committee.

14.   Consideration of request for review

(1)  The Committee, as soon as practicable, is to –

(a) consider a request for a review of a determination; and

(b) make a recommendation to the Authority in respect of the request.

(2)  In considering a request for a review of a determination, the Committee is to take into account the factors specified in regulation 11(2) .

(3)  The Committee may recommend to the Authority –

(a) that the determination not be varied; or

(b) that the determination be varied and the number of persons to be provided on the trading vessel.

(4)  The Committee is to forward its recommendation to the Authority in writing.

15.   Review by Authority

(1)  The Authority may adopt or reject a recommendation made by the Committee in relation to the review of a determination.

(2)  Subject to regulation 25 , the Authority is to review the determination made in respect of a trading vessel specified in a request for a review and may –

(a) confirm the determination; or

(b) set the determination aside and make a new determination in respect of the trading vessel.

(3)  The Authority is to advise the following persons, by notice in writing, of the action taken by the Authority under subregulation (2) and the terms of any new determination made:

(a) the owner of the trading vessel;

(b) the master of the trading vessel;

(c) if the person who requested the review was not the owner or master of the trading vessel, that person.

Division 2 - Fishing vessels

16.   Complement for fishing vessel

The owner of a fishing vessel must not operate that vessel or permit that vessel to operate unless it is provided with –

(a) the prescribed complement; and

(b) a certified master.

Penalty:  Fine not exceeding 20 penalty units.

17.   Number of persons

(1)  The total number of persons to be provided on a fishing vessel is the total complement specified in Schedule 3 in respect of that fishing vessel in the appropriate operational area.

(2)  If the length of a voyage of a vessel exceeds 12 hours, one person in addition to the total complement specified in Schedule 3 in respect of that vessel is required to be provided on that vessel.

18.   Appeals

(1)  An approved person may appeal against the application of Schedule 3 to a particular fishing vessel.

(2)  An appeal is to be –

(a) made in writing; and

(b) lodged with the Authority.

(3)  Subject to regulation 25 , the Authority is to refer an appeal to the Committee for decision.

19.   Decision by Committee

(1)  In determining an appeal under regulation 18 , the Committee may decide that the provisions of Schedule 3 apply or do not apply to the fishing vessel.

(2)  If the Committee decides that the provisions of Schedule 3 do not apply to the fishing vessel, the Committee is to determine the number of persons to be provided on the vessel in particular operational areas.

(3)  The Committee is to forward its decision on an appeal and any determination made under subregulation (2) to the Authority in writing.

20.   Advice of decision

The Authority is to advise the following persons, by notice in writing, of the Committee's decision on an appeal and any determination made by the Committee as a consequence of that decision:

(a) the owner of the fishing vessel;

(b) the master of the fishing vessel;

(c) if the appellant was not the owner or master of the fishing vessel, that person.

Division 3 - Prescribed certificates

21.   Certificates required

(1)  A person who is a member of the prescribed complement on –

(a) a trading vessel specified in Schedule 4 must hold a certificate of a class or grade at least as high as the certificate specified in that Schedule in respect of that person's position on the vessel; or

(b) a fishing vessel specified in Schedule 3 must hold a certificate of a class or grade at least as high as the certificate specified in that Schedule in respect of that person's position on the vessel.

(2)  A person who is part of the complement of a vessel with the approval of the Authority may hold a certificate specified in Part 1 of Schedule 3 and a certificate specified in Part 2 of that Schedule.

PART 4 - Miscellaneous

22.   Prescribed complement is minimum number

(1)  The prescribed complement for a vessel is the minimum number of certificated and other persons who must be provided on that vessel in the particular operational area.

(2)  These regulations do not preclude the provision of a number of persons on a vessel in excess of the prescribed complement for that vessel.

23.   Exemptions

(1)  The Authority may exempt a vessel or class of vessel from the operation of these regulations, in whole or in part.

(2)  An exemption under subregulation (1) may be given subject to conditions.

24.   Prescribed complements for different areas of operation

(1)  Different prescribed complements may apply to a vessel when that vessel operates in different operational areas or different parts of an operational area.

(2)  The determination of a prescribed complement in respect of a vessel by the Authority or the Committee may be limited to a specified part of an operational area.

25.   Refusal to accept requests and appeals

The Authority may refuse to accept a request for a review of a determination made in respect of a trading vessel or an appeal against the application of Schedule 3 to a particular fishing vessel if the Authority is satisfied that –

(a) the request or appeal is frivolous, vexatious or made in bad faith; or

(b) a review or an appeal has already been conducted that resulted in no change to the prescribed complement for the vessel and there has been no material alteration to the vessel or its circumstances since that review or appeal was conducted.

26.   Immunity from liability

A member of the Committee or a person acting under a direction of the Authority is not personally liable for an honest act or omission done or made in the exercise or purported exercise of a power or in the performance or purported performance of a function under these regulations.

27.   False or misleading statements

A person, in giving any information in relation to an application for a determination, a request for a review or an appeal under these regulations, must not –

(a) make a statement knowing it to be false or misleading; or

(b) omit any matter from a statement knowing that without that matter the statement is misleading.

Penalty:  Fine not exceeding 5 penalty units.

28.   Rescission

The following regulations are rescinded:

(a) the Marine (Safety Manning) Regulations 1992 (Statutory Rules 1992, No. 184);

(b) the Marine (Safety Manning) Amendment Regulations 1996 (Statutory Rules 1996, No. 95).

29.   Transitional and savings provisions

The transitional and savings provisions set out in Schedule 5 have effect.

30.   Expiry

[Regulation 30 Amended by S.R. 1999, No. 166, Applied:22 Dec 1999] These regulations cease to take effect on 31 December 2000.

SCHEDULE 1 - Membership of committee

Regulation 5(4)

1.   Interpretation

In this Schedule,

member means a member of the Committee.

2.   Period of appointment

A member, other than the member referred to in regulation 5(2)(a) , is to be appointed for the period, not exceeding 3 years, specified in the instrument of appointment.

3.   Holding other office

The holder of an office who is required under any Act to devote the whole of the time to the duties of that office is not disqualified from –

(a) holding that office and also the office of a member; or

(b) accepting any remuneration payable to a member.

4.   Remuneration

A member is entitled to be paid any remuneration (including travelling and subsistence allowances) the Authority determines.

5.   Vacation of office

(1) A member vacates office if the member –

(a) dies; or

(b) resigns; or

(c) is removed from office under subclause (2) or (3) .

(2) The Authority may remove a member from office if the member –

(a) is absent from 3 consecutive meetings of the Committee without the permission of the Committee; or

(b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of any remuneration or estate for their benefit; or

(c) is convicted, in Tasmania or elsewhere, of a crime or an offence punishable by imprisonment for 12 months or longer.

(3) The Authority may remove a member from office if satisfied that the member is unable to perform adequately or competently the duties of office.

(4) This clause does not apply to the member referred to in regulation 5(2)(a) .

6.   Filling of vacancies

If the office of a member becomes vacant, the Authority may appoint a person to the vacant office for the remainder of that member's term of office.

SCHEDULE 2 - Meetings of committee

Regulation 5(5)

1.   Interpretation

In this Schedule,

member means a member of the Committee.

2.   Convening of meetings of Committee

The chairperson or any other 2 members may convene a meeting of the Committee.

3.   Procedure at meetings

(1) The quorum at any duly convened meeting of the Committee is 3 members.

(2) Any duly convened meeting of the Committee at which a quorum is present is competent to transact any business of the Committee.

(3) A question arising at a meeting of the Committee is to be determined by a majority of votes of the members present and voting.

(4) If there is an equality of votes, the chairperson has a casting vote.

4.   Chairperson

(1) The chairperson is to preside at all meetings of the Committee.

(2) If the chairperson or the chairperson's deputy is not present at a meeting of the Committee, a member elected by the members present is to preside at that meeting.

5.   General procedure

Subject to this Schedule, the procedure for the calling of, and for the conduct of business at, meetings of the Committee is to be determined by the Committee.

6.   Validity of proceedings

(1) An act or proceeding of the Committee or of a person acting under the direction of the Committee is not invalid by reason only that at the time when the act or proceeding was done, taken or commenced there was a vacancy in the membership of the Committee.

(2) An act or proceeding of the Committee or of a person acting under the direction of the Committee is valid even if –

(a) the appointment of a member was defective; or

(b) a person appointed as a member was disqualified from acting as, or incapable of being, such a member.

7.   Presumptions

In any proceedings by or against the Committee, unless evidence is given to the contrary, proof is not required of –

(a) the constitution of the Committee; or

(b) any resolution of the Committee; or

(c) the appointment of any member; or

(d) the presence of a quorum at any meeting of the Committee.

SCHEDULE 3 - Prescribed complement and certificates for fishing vessels

Regulation 21

PART 1 - Total complement and deck personnel

PART 2 - Engine room personnel

SCHEDULE 4 - Certificates for trading vessels

Regulation 21

PART 1 - Deck personnel

PART 2 - Engine room personnel

SCHEDULE 5 - Transitional and savings provisions

Regulation 29

1.   Interpretation

In this Schedule –

commencement day means the day on which these regulations take effect;

former prescribed complement means a complement prescribed under the repealed regulations;

repealed regulations means the Marine (Safety Manning) Regulations 1992.

2.   Determination, reviews and appeals

(1) For the purposes of a review or an appeal under these regulations, a former prescribed complement that applied immediately before the commencement day is treated as if it is a prescribed complement.

(2) An application for a determination, a request for a review or an appeal submitted before the commencement day is, on that day, an application, request or appeal submitted under these regulations.

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 30 July 1997

These regulations are administered in the Department of Transport.