Marine and Safety (Safety Manning) Regulations 2007

Marine and Safety (Safety Manning) Regulations 2007

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 .

W. J. E. COX

Governor

By His Excellency's Command,

J. G. COX

Minister for Infrastructure

PART 1 - Preliminary

1.   Short title

These regulations may be cited as the Marine and Safety (Safety Manning) Regulations 2007 .

2.   Commencement

These regulations take effect on 30 July 2007.

3.   Interpretation

In these regulations, unless the contrary intention appears –

adequate crew means the crew specified under clause 2.6 of Part D of the NSCV;

approved means approved by MAST;

certificate of competency means a certificate of competency issued by MAST, or a corresponding authority, permitting the holder to serve on a vessel as a crew member in accordance with the conditions stated in that certificate;

chairperson means the chairperson of the Committee;

Committee means the Manning Committee continued under regulation 5 ;

corresponding authority means an agency, department or authority of the Commonwealth, or of a Territory or another State of the Commonwealth, that is responsible for maritime operations and safety;

crew means the persons carried on board a vessel for the purposes of –

(a) navigating, operating and maintaining the vessel; or

(b) providing services to other persons on board the vessel;

eligible person means –

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

(b) an approved person;

fishing operation means –

(a) farming or taking fish for commercial purposes; or

(b) an operation that supports an activity referred to in paragraph (a) ;

fishing vessel mean a vessel that is –

(a) used for fishing operations; or

(b) under construction for use in fishing operations;

interstate fishing vessel means a fishing vessel that is subject to the jurisdiction of a corresponding authority;

interstate trading vessel means a trading vessel that is subject to the jurisdiction of a corresponding authority;

MAST means the Authority;

minimum crew means the minimum number of crew specified under clause 2.5 of Part D of the NSCV;

notify means notify in writing;

NSCV means the National Standard for Commercial Vessels published by the National Marine Safety Committee, as amended from time to time;

operational area means an area within the limits specified in the Marine and Safety (Definition of Operational Areas) By-laws 2003;

prescribed complement means –

(a) a minimum crew in the case of a vessel that is being navigated but not –

(i) carrying cargo, passengers or special personnel; or

(ii) conducting fishing operations; or

(iii) conducting operations for which Part D of the NSCV requires the master or a member of the crew to have undertaken additional training and possess experience relevant to the operation; or

(iv) undertaking trials; or

(b) an adequate crew in the case of any other vessel;

safety manning determination means –

(a) a determination of the prescribed complement for a trading vessel in accordance with regulation 9 , regulation 14 or regulation 17(1) ; or

(b) a determination of the prescribed complement for a fishing vessel in accordance with regulation 19 or 20 ;

special personnel means persons on board a vessel (other than crew members, passengers or children who have not attained the age of one year) who are capable of assisting the crew in the operation of the vessel if required and who  –

(a) are carried in connection with the special purpose of the vessel or because of special work being performed on board the vessel; or

(b) have knowledge of safety procedures and handling of safety equipment on board the vessel;

Tasmanian fishing vessel means a fishing vessel that is subject to MAST's jurisdiction.

4.   Application of regulations

(1)  These regulations apply to vessels used or intended to be used for navigation within MAST's jurisdiction.

(2)  These regulations do not apply to –

(a) vessels used or intended to be used for recreational purposes only; or

(b) vessels or classes of vessels that MAST exempts from these regulations or specified provisions of these regulations under regulation 27 .

PART 2 - Manning Committee

5.   Manning Committee

(1)  The Manning Committee established under regulation 5 of the Marine and Safety (Safety Manning) Regulations 1997 is continued.

(2)  The Committee consists of –

(a) the chief executive officer; and

(b) 2 persons nominated by MAST; and

(c) any other persons MAST considers appropriate.

(3)  The chief executive officer is the chairperson of the Committee.

(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.   Functions of Committee

The Committee has the following functions:

(a) to consider applications for, or the re-assessment of, safety manning determinations referred to it by MAST and make recommendations to MAST on those determinations;

(b) to review safety manning determinations referred to it by MAST and make recommendations to MAST on those determinations;

(c) to determine appeals referred to it under regulation 21(3) .

7.   Obtaining evidence

(1)  MAST, at the request of the chairperson, may –

(a) require or permit a person who is an eligible 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 at a time convenient to the owner of a vessel, in respect of which the Committee is to make a determination under these regulations, may enter and inspect the vessel.

PART 3 - Prescribed Complements for Vessels

Division 1 - Trading vessels

8.   Owners not to operate trading vessels without prescribed complement

The owner of a trading vessel must not operate the vessel or permit the vessel to operate in Tasmanian waters unless the owner provides the vessel with the prescribed complement for –

(a) the type of operation the vessel is performing; and

(b) the operational area in which the vessel is operating.

Penalty:  Fine not exceeding 20 penalty units.

9.   Prescribed complements for interstate trading vessels

The prescribed complement for an interstate trading vessel that has MAST's recognition to operate in Tasmanian waters is –

(a) an adequate crew in accordance with Chapter 2 of Part D of the NSCV, determined by MAST on an application by the owner under regulation 10 ; or

(b) a minimum crew, being the number determined by the corresponding authority that issued the vessel's certificate of competency of survey.

10.   Applications for safety manning determinations

(1)  The owner of a trading vessel is to apply to MAST for a safety manning determination for the vessel.

(2)  The application is to be –

(a) in an approved form; and

(b) accompanied by any statements or documents the owner of the trading vessel considers relevant.

(3)  MAST is to refer the application and any accompanying statements or documents to the Committee for consideration under regulation 12 .

11.   Re-assessments of existing safety manning determinations

(1)  An eligible person may in writing request the owner of a trading vessel to apply to MAST for a re-assessment of the vessel's safety manning determination.

(2)  The application is to be –

(a) in an approved form; and

(b) accompanied by any statements or documents the owner of the trading vessel considers relevant.

(3)  MAST is to refer the application and any accompanying statements or documents to the Committee for consideration under regulation 12 .

(4)  The owner of a trading vessel must comply with a request under subregulation (1) within 30 days after the date on which that request was made.

Penalty:  Fine not exceeding 20 penalty units.

12.   Consideration of applications by Committee

As soon as practicable after an application is referred to it under regulation 10(3) or regulation 11(3) , the Committee is to –

(a) consider the application taking into account the specifications of Chapter 2 of Part D of the NSCV in respect of minimum crew and adequate crew; and

(b) make a recommendation to MAST on the prescribed complement for the relevant trading vessel; and

(c) notify MAST of its recommendation as soon as practicable after it is made.

13.   Provisional consideration of applications

(1)  If the Committee cannot meet to consider an application referred to it under regulation 10(3) or regulation 11(3) before the relevant trading vessel commences operations, the chairperson together with one other member of the Committee may meet and make a provisional recommendation on the application.

(2)  The chairperson is to notify MAST and the applicant of the provisional recommendation as soon as practicable after it is made.

14.   Safety manning determinations

(1)  As soon as practicable after being notified of a recommendation under regulation 12(c) or a provisional recommendation under regulation 13(2) , MAST is to determine the relevant application and may –

(a) adopt the Committee's recommendation or provisional recommendation as its own determination of the prescribed complement for the relevant trading vessel; or

(b) reject the Committee's recommendation or provisional recommendation and make its own determination of the prescribed complement for the relevant trading vessel.

(2)  MAST is to notify the applicant of the safety manning determination made under subregulation (1)(a) or (b) as soon as practicable after it is made.

(3)  If MAST makes a safety manning determination under subregulation (1)(a) or (b) that replaces or varies an existing safety manning determination, MAST is to revoke that existing safety manning determination.

15.   Reviews of safety manning determinations

(1)  MAST may review a safety manning determination –

(a) at its discretion; or

(b) on the written request of an eligible person.

(2)  MAST is to refer a review under subregulation (1) to the Committee for a recommendation under regulation 16 .

16.   Committee to make recommendations to MAST on reviews

(1)  As soon as practicable after a review is referred to it under regulation 15(2) , the Committee is to –

(a) consider the relevant safety manning determination taking into account the requirements of Chapter 2 of Part D of the NSCV in respect of minimum crew and adequate crew; and

(b) recommend to MAST –

(i) that the safety manning determination not be varied; or

(ii) that the safety manning determination be varied, specifying the number of persons that should make up the prescribed complement for the trading vessel.

(2)  The Committee is to notify MAST of its recommendation under subregulation (1)(b)(i) or (ii) as soon as practicable after the recommendation is made.

17.   Determination of reviews of safety manning determinations

(1)  As soon as practicable after being notified of a recommendation under regulation 16(2) , MAST is to review the relevant safety manning determination and may –

(a) adopt the Committee's recommendation as its own safety manning determination for the relevant trading vessel; or

(b) reject the Committee's recommendation and make its own safety manning determination for the relevant trading vessel.

(2)  MAST is to notify the following persons of the action taken by it under subregulation (1)(a) or (b) as soon as practicable after the action is taken:

(a) the owner of the relevant trading vessel;

(b) the master of the relevant trading vessel;

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

Division 2 - Fishing vessels

18.   Owners not to operate fishing vessel without prescribed complement

The owner of a fishing vessel must not operate the vessel or permit the vessel to operate in Tasmanian waters unless the owner provides the vessel with the prescribed complement for –

(a) the type of operation the vessel is performing; and

(b) the operational area in which the vessel is operating.

Penalty:  Fine not exceeding 20 penalty units.

19.   Prescribed complement for Tasmanian fishing vessels

(1)  The minimum crew for a Tasmanian fishing vessel is the minimum crew specified in Table 4 of Chapter 2 and Annex A of Part D of the NSCV.

(2)  Despite subregulation (1) , if a voyage of a Tasmanian fishing vessel is expected to exceed 12 hours, the minimum crew is one more than that specified in subregulation (1) .

(3)  The adequate crew for a Tasmanian fishing vessel is determined by the owner in accordance with Chapter 2 of Part D of the NSCV but is in any event not to be less than the minimum crew specified under subregulation (1) .

20.   Prescribed complement for interstate fishing vessels

(1)  The adequate crew for an interstate fishing vessel that has MAST's recognition to operate in Tasmanian waters is to be determined by the owner in accordance with Chapter 2 of the NSCV but is in any event not to be less than the minimum crew required under that Chapter.

(2)  The minimum crew for an interstate fishing vessel that has MAST's recognition to operate in Tasmanian waters is the number determined by the corresponding authority that issued the vessel's certificate of competency of survey.

21.   Appeals

(1)  An eligible person may appeal against the application of Table 4 of Chapter 2 and Annex A of Part D of the NSCV to a particular fishing vessel.

(2)  The appeal is to be –

(a) in an approved form; and

(b) accompanied by any statements or documents the owner of the fishing vessel considers relevant; and

(c) provided to MAST.

(3)  MAST is to refer the appeal and any accompanying statements or documents to the Committee for consideration and determination under regulation 22 .

22.   Committee to determine appeals

(1)  After considering an appeal referred to it under regulation 21 , the Committee may determine that the provisions of Table 4 of Chapter 2 and Annex A of Part D of the NSCV apply or do not apply to the relevant fishing vessel.

(2)  If the Committee determines that the provisions of Table 4 of Chapter 2 and Annex A of Part D of the NSCV do not apply to the relevant fishing vessel, the Committee may determine the number of persons to make up the prescribed complement for the vessel in specified operational areas.

(3)  The Committee is to notify MAST of its determination under subregulation (1) or subregulation (2) as soon as practicable after the determination is made.

23.   MAST to notify persons of Committee's determination

As soon as practicable after receiving a notice under regulation 22(3) , MAST is to notify the following persons of the Committee's determination on the appeal and any decision made by the Committee as a consequence of that determination:

(a) the owner of the relevant fishing vessel;

(b) the master of the relevant fishing vessel;

(c) the person who requested the appeal, if that person is not the owner or master of the relevant fishing vessel.

Division 3 - Multiple duties

24.   Multiple duties

A person who is a member of the prescribed complement of a vessel may, with MAST's written approval, undertake multiple duties.

PART 4 - Miscellaneous

25.   Revocation of safety manning determinations

(1)  MAST may revoke a safety manning determination if it considers it appropriate to do so in particular circumstances.

(2)  On revoking a safety manning determination, MAST is to notify the owner of the relevant trading vessel or fishing vessel –

(a) of the revocation; and

(b) that he or she may apply for a new safety manning determination for the vessel.

26.   Regulations not preclude additional crew

These regulations do not preclude the provision of additional crew for a vessel in excess of the prescribed complement if that additional crew does not compromise the safety of the vessel.

27.   Exemptions

(1)  MAST may at its own discretion –

(a) exempt a vessel or class of vessels from these regulations or specified provisions of these regulations; or

(b) vary or revoke any exemptions so granted.

(2)  An exemption –

(a) is to be in writing; and

(b) may be of limited or general application; and

(c) may be granted unconditionally or on such conditions as MAST considers appropriate.

(3)  An exemption remains in force, subject to any variation, until –

(a) the date specified in the instrument of exemption as the date on which it ceases to be in force; or

(b) the person who has the benefit of the exemption is notified by MAST that the exemption has been revoked.

(4)  A person who has the benefit of an exemption under this regulation must comply with the conditions, if any, of the exemption.

Penalty:  Fine not exceeding 20 penalty units.

(5)  If MAST revokes an exemption it is to give the person who has the benefit of the exemption notice of the variation or revocation.

28.   Prescribed complement for different operational areas

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

(2)  A safety manning determination may be limited to a specified part of an operational area.

29.   Frivolous or vexatious requests for re-assessments, reviews or appeals

MAST may refuse to accept an application for a re-assessment under regulation 11 , a request for a review under regulation 15 or an appeal under regulation 21 if it is satisfied that the application, request or appeal –

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

(b) has previously been made and determined.

30.   False or misleading statements

A person must not, in giving any information under these regulations –

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

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

Penalty:  Fine not exceeding 5 penalty units.

31.   Savings and transitional provisions

The savings and transitional provisions in Schedule 3 have effect.

SCHEDULE 1 - Membership of committee

Regulation 5(4)

1.   Interpretation

In this Schedule –

member means a member of the Committee.

2.   Term of office

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

3.   Holding other office

The holder of an office who is required by the terms of his or her employment to devote the whole of his or her 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 and conditions of appointment

(1) A member is entitled to be paid such remuneration and allowances as MAST determines.

(2) A member holds office on such conditions in relation to matters not provided for by these regulations as are specified in the member's instrument of appointment.

5.   Vacation of office

(1) A member vacates office if he or she –

(a) dies; or

(b) resigns; or

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

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

(a) is absent from 3 consecutive meetings of the Committee without the permission of the other members 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 the member's creditors or makes an assign mileent of the member's remuneration or estate for their benefit; or

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

(d) is convicted of an offence under the Act.

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

(4) A member of MAST must not be removed from office otherwise than in accordance with this clause.

(5) 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, MAST 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

(1) The chairperson, after giving each member reasonable notice of a meeting –

(a) may convene a meeting at any time; and

(b) must convene a meeting when requested to do so by 2 or more other members.

(2) If the chairperson is absent from duty or otherwise unable to perform the duties of the office, a meeting may be convened, after reasonable notice of the meeting has been given by –

(a) two or more other members; or

(b) a person authorised by the Committee to do so.

(3) For the purposes of subclauses (1) and (2) , what constitutes reasonable notice is to be determined by the Committee.

3.   Presiding at meetings

(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 at the meeting is to preside.

4.   Quorum and voting at meetings

(1) Three members constitute a quorum at a meeting of the Committee.

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

(3) At a meeting of the Committee –

(a) a question is decided by a majority of votes of the members present and voting; and

(b) if there is an equality of votes of the members present and voting, the chairperson has a casting vote.

5.   Conduct of meetings

(1) Subject to these regulations, the Committee may regulate the calling of, and the conduct of business at, its meetings as it considers appropriate.

(2) The Committee may permit members to participate in a particular meeting or all meetings by –

(a) telephone; or

(b) video conference; or

(c) any other means of communication approved by the Committee.

(3) A member who participates in a meeting under a permission granted under subclause (2) is taken to be present at the meeting.

(4) Without limiting subclause (1) , the Committee may allow a person to attend a meeting for the purpose of advising or informing it on any matter.

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.   Minutes

The Committee is to keep accurate minutes of its meetings.

8.   General procedure

Except as provided by these regulations, the Committee may regulate its own proceedings.

9.   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 - Savings and transitional provisions

Regulation 31

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 and Safety (Safety Manning) Regulations 1997 .

2.   Determinations, reviews and appeals

(1) A former prescribed complement for a trading vessel that applied immediately before the commencement day is taken to be a prescribed complement for that vessel for the purposes of these regulations.

(2) A former prescribed complement for a Tasmanian fishing vessel that applied immediately before the commencement day is taken to be the minimum crew for that vessel for the purposes of these regulations.

(3) 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 were a prescribed complement.

(4) 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 27 July 2007

These regulations are administered in the Department of Infrastructure, Energy and Resources.