(Port Pilotage) Amendment Bill 2013 - Queensland … · 3 Fundamental le gislative principles 19...

Transport Legislation (Port Pilotage)

Amendment Bill 2013

Report No. 31Transport, Housing and Local Government CommitteeSeptember 2013

Parliamentary

Transport Legislation (Port Pilotage) Amendment Bill 2013

Report No. 31 Transport, Housing and Local Government Committee September 2013

Transport, Housing and Local Government Committee

Chair Mr Howard Hobbs MP, Member for Warrego

Deputy Chair* Mrs Desley Scott MP, Member for Woodridge

Members Mr John Grant MP, Member for Springwood

Mr Darren Grimwade MP, Member for Morayfield

Mr Carl Judge MP, Member for Yeerongpilly

Mr Anthony Shorten MP, Member for Algester

Mr Jason Woodforth MP, Member for Nudgee

Secretariat Staff Ms Kate McGuckin, Research Director

Ms Rachelle Stacey, Principal Research Officer

Ms Danielle Cooper, Principal Research Officer

Ms Kelli Longworth, Principal Research Officer

Ms Lisa Van Der Kley, Executive Assistant

Ms Amanda Parker, Executive Assistant

Technical Scrutiny of Ms Renee Easten, Research Director

Legislation secretariat Ms Marissa Ker, Principal Research Officer

Mr Karl Holden, Principal Research Officer

Ms Tamara Vitale, Executive Assistant

Contact details Transport, Housing and Local Government Committee Parliament House George Street Brisbane Qld 4000

Phone +61 7 3406 7486

Fax +61 7 3406 7070

Email [email protected]

Web www.parliament.qld.gov.au/thlgc

Acknowledgements

The Committee thanks those who participated in its inquiry. In particular, the Committee acknowledges the assistance provided by the Department of Transport and Main Roads.

* Due to the Chair’s inability to attend the Public Briefing held on 8 August 2013, Mrs Desley Scott MP acted as Chair.

mailto:[email protected]

http://www.parliament.qld.gov.au/thlgc

Transport, Housing and Local Government Committee iii

Contents

Abbreviations iv

Recommendations vi

1 Introduction 1 1.1 Role of the Committee 1 1.2 Policy objective of the Transport Legislation (Port Pilotage) Amendment 2013 1

2 Examination of the Transport Legislation (Port Pilotage) Amendment Bill 2013 3 Maritime Safety Queensland 3 Compulsory Pilotage Service 3

2.1 Policy issues 4 Port pilotage devolvement 4 Safety implications 8 Stage Two: Pricing arrangements 11 Transfer of pilots, pilot transfer crew and administrative staff 13 Transfer of assets and liabilities 15 Immunity from civil liability 16 Consultation 16

3 Fundamental legislative principles 19 3.1 Rights and liberties of individuals 19

Immunity from proceedings or prosecution without adequate justification 19 3.2 Institution of Parliament 20

Amendment of an Act only by another Act 20 3.3 Explanatory Notes 21

Appendices 22

Statement of Reservation 24

Abbreviations Transport Legislation (Port Pilotage) Amendment Bill 2013

iv Transport, Housing and Local Government Committee

Abbreviations

AMOU Australian Maritime Officers Union

AMPI Australasian Marine Pilots Institute

EBA Enterprise bargaining agreement

the Bill Transport Legislation (Port Pilotage) Amendment Bill 2013

the Committee Transport, Housing and Local Government Committee

the Department Department of Transport and Main Roads

Legislative Assembly Queensland Legislative Assembly

the Minister Minister for Transport and Main Roads

MSQ Act Maritime Safety Queensland Act 2002

TOMSA Transport Operations (Marine Safety) Act 1994

TI Act Transport Infrastructure Act 1994

Chair’s foreword Transport Legislation (Port Pilotage) Amendment Bill 2013

Transport, Housing and Local Government Committee v

Chair’s foreword This Report presents a summary of the Committee’s examination of the Transport Legislation (Port Pilotage) Amendment Bill 2013. The Committee’s task was to consider the policy outcomes to be achieved by the legislation, as well as the application of fundamental legislative principles – that is, whether it has sufficient regard to rights and liberties of individuals and to the institution of Parliament. The public examination process allows the Parliament to hear from the public and stakeholders they may not have otherwise heard from, which should make for better policy and legislation in Queensland. On behalf of the Committee I thank those individuals and organisations who lodged written submissions on the Bill; others who have informed the Committee’s deliberations; the Committee’s secretariat; officials from the Department of Transport and Main Roads; and the Technical Scrutiny of Legislation secretariat. I commend the report to the House.

Mr Howard Hobbs MP Chair September 2013

Recommendations Transport Legislation (Port Pilotage) Amendment Bill 2013

vi Transport, Housing and Local Government Committee

Recommendations

Recommendation 1 2

The Committee recommends that the Transport Legislation (Port Pilotage) Amendment Bill 2013 be passed.

Recommendation 2 7

The Committee recommends that, for future Bills, the Department of Transport and Main Roads provide an explanation in the Explanatory Notes for the urgency of a Bill or the Minister for Transport and Main Roads provide an explanation for the urgency of a Bill in the First Reading Speech.

Recommendation 3 13

The Committee recommends that during the development of Stage Two of the port pilotage devolution process, the Government consults extensively to ensure the views of all stakeholders and industry experts are taken into consideration.

Recommendation 4 18

The Committee recommends that the Department of Transport and Main Roads consult extensively on all future Bills to ensure the views of stakeholders and industry experts are taken into consideration.

Recommendation 5 21

The Committee recommends that, for future Bills, the Explanatory Notes provide a more comprehensive discussion of the proposed policy changes, detail all parties consulted and accurately detail the results of consultation.

Examination of the Bill Transport Legislation (Port Pilotage) Amendment Bill 2013

Transport, Housing and Local Government Committee 1

1 Introduction

1.1 Role of the Committee

The Transport, Housing and Local Government Committee (the Committee) was established by resolution of the Queensland Legislative Assembly (the Legislative Assembly) on 18 May 2012. The Committee comprises both government and non-government members and its primary areas of responsibility include transport, main roads, housing, public works, local government and community recovery and resilience.1

Portfolio committees are responsible for considering: • the policy to be given effect by the Bill and • the application of the fundamental legislative principles to the Bill.2

The Legislative Assembly referred the Transport Legislation (Port Pilotage) Amendment Bill 2013 (the Bill) to the Committee on 6 August 2013 and the Committee was asked to report by 5 September 2013.

Submissions were invited by directly contacting 85 stakeholders on 7 August 2013 and by emailing 595 subscribers on the Committee’s email subscriber list. The Committee received 3 submissions. See Appendix A for a list of submissions.

The Committee was briefed by the Department of Transport and Main Roads (the Department) at a Public Briefing held on Thursday, 8 August 2013. See Appendix B for a list of witnesses.

On 21 August 2013, the Committee held a Public Hearing. A list of witnesses who gave evidence at the hearing is included at Appendix C.

The Committee received a further briefing by the Department at a Public Briefing held on Friday, 30 August 2013. See Appendix D for a list of witnesses.

The transcript of the Public Briefings and the Public Hearing, as well as the submissions received are available at: http://www.parliament.qld.gov.au/work-of-committees/committees/THLGC.

1.2 Policy objective of the Transport Legislation (Port Pilotage) Amendment 2013

The Explanatory Notes state that the objective of the Bill is to devolve the responsibility for the provision and delivery of pilotage services for ports located north of Brisbane (except Abbot Point) from Maritime Safety Queensland (MSQ) to port authorities through a managed transition process.

To achieve this objective, the Bill proposes to amend sections of the following existing Queensland legislation that is responsible for the function and regulations of port pilotage:

• the Maritime Safety Qld Act 2002 (the MSQ Act)

• the Transport Infrastructure Act 1994 (the TI Act)

• the Transport Operations (Marine Safety) Act 1994 (TOMSA).

Pilotage services in Queensland are a function of MSQ as set out in the MSQ Act and are regulated under TOMSA. The TI Act sets out the functions of port authorities.3

1 Schedule 6 – Portfolio Committees, Standing Rules and Orders of the Legislative Assembly as amended 14

February 2013. 2 Section 93 of the Parliament of Queensland Act 2001. 3 Explanatory Notes, Transport Legislation (Port Pilotage) Amendment Bill 2013:2.

http://www.parliament.qld.gov.au/work-of-committees/committees/THLGC


2 Transport, Housing and Local Government Committee

The Explanatory Notes state that the Bill will facilitate the transfer of pilotage services from MSQ to port authorities by:

• providing that the provision of, or arranging for the provision of, pilotage services in specified compulsory pilotage areas is a function of port authorities

• providing a general obligation for safety in relation to the provision of piloted movement of ships

• providing that a harbour master may give a direction to particular parties to provide pilotage services in a specified way

• providing that monitoring and managing the providing and arranging for the provision of pilotage services by responsible pilotage entities is a function of MSQ

• authorising pilots to have conduct of a ship if they are employed by, or are acting under a written agreement with, the responsible pilotage entity responsible for that compulsory pilotage area

• extending the existing immunity from civil liability scheme for general employers of pilots to cover responsible pilotage entities and other parties who enter into a written agreement with them for the provision of pilotage services

• providing that MSQ may transfer funds from the Maritime Safety Queensland Fund to responsible pilotage entities

• transferring the employment of pilots and pilot transfer crew to the relevant port authority or subsidiary

• preserving key entitlements of pilots, pilot transfer crew and administrative staff who will be transferred to port authorities or a subsidiary

• transferring contracts associated with pilotage services and pilots’ employment to the relevant port authority or subsidiary

• making provision for various matters related to the transfer of pilotage services to be dealt with by transfer notice.4

Recommendation 1

The Committee recommends that the Transport Legislation (Port Pilotage) Amendment Bill 2013 be passed.

4 Explanatory Notes, Transport Legislation (Port Pilotage) Amendment Bill 2013:3.



2 Examination of the Transport Legislation (Port Pilotage) Amendment Bill 2013

Queensland has an extensive network of 20 ports along its coastline, varying in size and capacity. The ports service population centres and industries that require imports, as well as natural resources which supply global markets. Recording a total throughput of 253.4 million tonnes in 2010-11, ports play a key role in Queensland’s supply chain and economy, facilitating trade and the development of the regional, State and national economies.5

The ports are currently managed by four Government-Owned Corporations (North Queensland Bulk Ports Corporation, Port of Townsville Limited, Gladstone Port Corporation and Ports North) and one private company for the Port of Brisbane. The Department is a shareholding department providing oversight of the Queensland’s four Government-Owned Port Corporations.6

Maritime Safety Queensland

MSQ is a government agency within the Department. MSQ was created under the Maritime Safety Queensland Act 2002 (the MSQ Act) as the safety regulator of the maritime industry in Queensland. Currently, as a requirement of the MSQ Act, MSQ provides, or arranges for the provision and delivery of all pilotage services in Queensland. MSQ provides these services in all pilotage areas in Queensland except Brisbane, where the service is provided under contract by Brisbane Marine Pilots Pty Ltd.7

MSQ is also required to deliver a range of services on behalf of the national regulator (the Australian Maritime Safety Authority) under the Marine Safety (Domestic Commercial Vessel) National Law Act 2012. These arrangements are implemented together with MSQ’s state marine legislative responsibilities.8

Compulsory Pilotage Service

The Explanatory Notes explained that pilotage is a “compulsory service applied to most ships 50 metres and longer that visit Queensland ports”. 9 This service applies to a person who does not hold an approved exemption, and, therefore, is not permitted to navigate a ship in a designated compulsory pilotage area without the services of a pilot.10

A pilot is a qualified ship’s master whose role is to help the master of a ship operate safely within pilotage areas, particularly in regard to manoeuvring in potentially congested port channels, and with berthing and departures. The aim of the service is to reduce the risks to the marine environment and port infrastructure associated with ship movements. 11

Currently, MSQ employ 69 marine pilots and 14 pilot vessel transfer crew members. Legislative requirements stipulate that these pilots may only carry out their duties if they are employed by or are acting under an agreement with MSQ.12

5 TMR website, retrieved from: http://www.tmr.qld.gov.au/business-industry/Transport-sectors/Ports.aspx 6 TMR website, retrieved from: http://www.tmr.qld.gov.au/business-industry/Transport-sectors/Ports.aspx;

and www.tmr.qld.gov.au/business-industry/Transport-sectors/Ports/Port-GOCs.aspx 7 Explanatory Notes, Transport Legislation (Pilot Pilotage) Amendment Bill 2013:1. 8 TMR website, retrieved from: http://www.msq.qld.gov.au/About-us.aspx 9 Explanatory Notes, Transport Legislation (Pilot Pilotage) Amendment Bill 2013:1. 10 Explanatory Notes, Transport Legislation (Pilot Pilotage) Amendment Bill 2013:1. 11 Explanatory Notes, Transport Legislation (Pilot Pilotage) Amendment Bill 2013:1. 12 Hon. Scott Emerson MP, Minister for Transport and Main Roads, Hansard:2295.

http://www.tmr.qld.gov.au/business-industry/Transport-sectors/Ports/Port-GOCs.aspx



2.1 Policy issues

Port pilotage devolvement

The Queensland Government has determined that the provision and delivery of pilotage services is incompatible with the Department’s mandate to “deliver road, rail and port infrastructure and to regulate those who use it”.13 To better reflect the Department’s mandate, the Government has directed the Department to divest its responsibility to provide and deliver pilotage services for ports north of Brisbane (excluding Abbot Point) from MSQ to Government-Owned Port Authorities through a managed transition process. However, the important regulatory function of safety oversight of port pilotage services will remain and continue as a core departmental responsibility.14

The Explanatory Notes explained the status of the compulsory pilotage areas where MSQ will retain responsibility. In regards to the Port of Brisbane, the Explanatory Notes stated:

Port pilotage services in the Port of Brisbane will continue to be supplied under the terms of the existing contract between MSQ and Brisbane Marine Pilots Pty Ltd until it expires in December 2017. Consideration has been given during the current mid-contract review negotiations, to establishing a path for the future devolvement of the Brisbane pilotage service which will incorporate a more expansive market assessment of service delivery options in 2016, nearer the end of the current contract cycle. Any future contract for port pilotage services in Port of Brisbane will not conflict with the longer term pricing and/or supply arrangements to be pursued state wide.15

For Abbot Point:

Initially, the Department will retain the responsibility for Abbot Point and proposes to enter into an agreement with Port of Townsville to provide port pilotage service delivery for a maximum period of two years. During this time, operators of Port of Townsville, with the assistance of the Department, will determine the best pilotage service delivery mechanism in Abbot Point. The Department will work with the operator and/or relevant port management corporation to divest the responsibility for the provision of port pilotage services for the compulsory pilotage area of Abbot Point. This will ensure flexibility for future service delivery.16

The Bill proposed the transfer of responsibility for port pilotage services in a two-stage transition process:

This transition process includes giving the port corporations legal responsibility for the provision and delivery of pilotage services in designated compulsory pilotage areas. The first stage of the transition process is to transfer the legal responsibility and service delivery while the second stage, which will occur post the transfer, is for port corporations to develop and implement their long term best practice delivery mechanism and pricing structures, subject to government review and consideration of the optimal service delivery model.17

The Hon. Scott Emerson MP, Minister for Transport and Main Roads, elaborated in his Explanatory Speech on Tuesday 6 August 2013:

The Bill will facilitate the transfer of the responsibility for the provision, or to arrange provision of, pilotage services along with employees, assets and liabilities necessary to

13 TMR, Written Brief 19 August 2013:2. 14 TMR, Written Brief 19 August 2013:2. 15 Explanatory Notes, Transport Legislation (Pilot Pilotage) Amendment Bill 2013:2. 16 Explanatory Notes, Transport Legislation (Pilot Pilotage) Amendment Bill 2013:2. 17 TMR, Written Brief 19 August 2013:2.



undertake this function from MSQ to port authorities. This legislation provides the ability for port authorities to develop innovative business solutions around the delivery of service while maintaining the state’s enviable safety record. The Bill also places a general safety obligation on entities in the provision of pilotage services and ensures that this safety obligation is extended to parties who may be contracted to deliver this service.18

The Government considered the following alternative models for the delivery of pilotage services:

Option one (Status quo): MSQ continues to have responsibility for the provision and delivery of port pilotage services for all ports north of Brisbane and for setting fees and pricing structures; and

Option two: Tender the pilotage and the pilot transfer business on a regional basis and award the business to a successful party provided it could guarantee to supply the required number of competent and licensed pilots and ensure service continuity.19

However, these options were not supported and thus not recommended. It was considered that both options would “continue an inherent perceived conflict of interest between MSQ’s roles as a pilotage service provider and safety regulator”.20 Further, “consultation with stakeholders also indicated option two would be high risk, particularly in the areas of safety outcomes and service sustainability”.21

The Australasian Marine Pilots Institute (AMPI) and The Consultancy Bureau proposed alternative models in their submissions. The AMPI recommended that the provision and delivery of pilotage services be devolved to a new independent maritime authority:

… [T]he entity of MSQ be removed from its current position as a Unit within DTMR and rebadged as the “Queensland Maritime Authority”. The structure under which it will operate will be similar to that of other Government Authorities. The Pilotage Bill should be amended to transfer Pilotage to the Queensland Maritime Authority, instead of to the individual Port Authorities.22

The Consultancy Bureau proposed an integrated model of regional port pilotage, which involved:

… an independent Board with appropriate maritime expertise which could include one or two representatives of Port Authorities’ former maritime regulators / pilots to oversee a separate pilotage authority operating as a statutory body with appropriate external regulatory oversight.23

The Minister’s Explanatory Speech explained why the devolvement model as proposed in the Bill was considered the best option:

Devolving the responsibility to port authorities will also increase the opportunities for pilots and pilotage services to be better integrated into regional port management and operational arrangements. This will drive further efficiencies at a time when we are seeing an increase in shipping movements. Demands on the port network are increasing and it is important we balance commercial demands of commodity and trading interests while maintaining a high level of safety standards, managing any impact to the environment.24

18 Minister for Transport and Main Roads, Hansard, 6 August 2013:2295. 19 Explanatory Notes, Transport Legislation (Pilot Pilotage) Amendment Bill 2013:3. 20 Explanatory Notes, Transport Legislation (Pilot Pilotage) Amendment Bill 2013:3-3. 21 Explanatory Notes, Transport Legislation (Pilot Pilotage) Amendment Bill 2013:3-4. 22 AMPI, Submission No. 2:9. 23 The Consultancy Bureau, Submission No. 3:5. 24 Minister for Transport and Main Roads, Hansard, 6 August 2013:2295.



At the Public Hearing on 21 August 2013, the Australian Maritime Officers Union (AMOU) advised the Committee that while its preferred model was different to the one proposed in the Bill, their strong preference is for a devolution model based on a separation between port services delivery and regulation.25

In its written brief to the Committee, the Department explained that this devolvement model met modern public administration practices in that the roles of service delivery and regulation of pilotage services are separate.26 The Department provided further information on the benefits of separating the roles:

Modern administrative practices refers to Governments focusing on their regulatory roles and decreasing their service delivery roles. For some time now, all levels of government have increasingly adopted this approach. There are a number of reasons behind this, however, the main tenet is that efficiencies can be gained by using external suppliers whom can gain economies of scale from their size and the focus on core roles and through this consistent delivery of key activities they can more readily maintain and increase the currency of their skills. This approach is also reflected in the report recommended to government by the Independent Commission of Audit Report and is consistent with its recommendations.

Currently, in Queensland’s maritime environment there are a number of examples where the private sector is responsible for the provision of services, such as the BOATSAFE service. This is the avenue that people take to gain their recreational marine licences. In this case, the private sector undertakes the training and assessment of competency of individuals while the Government has assumed a role of regulating and auditing these providers to ensure the quality of the service provided.

At a micro level within Maritime Safety Queensland (MSQ's) there is further evidence of this occurring, such as the auditing of MSQ’s 240 volt powered sites across the State. More than a decade ago it was decided that it was safer and more efficient to engage an external contractor rather than to have a number of electricians on staff to perform this function. Similarly, MSQ's boat crew have historically done the majority of servicing on departmental vessels. However, due to the high cost of keeping industry skills and qualifications current and the desire to utilise marine officers in more efficient manner this activity has been contracted out many years ago.

More broadly, in the federal maritime sphere, the Australian Maritime Safety Authority no longer directly services its aids to navigation but engages a contractor to undertake this service.27

Further, the Department told the Committee at the Public Briefing (8 August 2013) that the Bill will bring Queensland into line with not only other Australian jurisdictions but also many international jurisdictions.28 At the Public Hearing on 21 August 2013, the Department tabled a map that showed which port authorities are responsible for the provision and organisation of service delivery in Australia. A copy of the map is at Appendix E of this report.

25 THLGC Public Hearing Transcript 21 August 2013:2-3. 26 TMR, Written Brief 19 August 2013: Appendix 1:9. 27 TMR, Correspondence, 30 August 2013:1. 28 THLGC Public Briefing Transcript 8 August 2013:3.



Committee comment

The Committee notes that the Queensland Government has made a policy decision to devolve port pilotage services to the government-owned port authorities located north of Brisbane, excluding Abbot Point (designated port authorities). The Committee is aware that the Government considered a number of alternative options before making this decision.

The Australasian Marine Pilots Institute (AMPI) and The Consultancy Bureau made submissions to the Committee arguing strongly for alternative models for administering and regulating port pilotage services in Queensland. These models differ from the options detailed in the Explanatory Notes and were presented by organisations that have industry expertise, for example the AMPI is the Australian marine pilots professional body and is heavily involved in the work of the International Maritime Organisation. The AMPI and The Consultancy Bureau were not consulted as part of the Government’s deliberations as they were not considered to be key stakeholders.29

The short timeframe provided for the Committee to examine the Bill has not allowed a thorough investigation of alternative models of port pilotage service delivery. The Committee has, therefore, been unable to determine whether the model proposed in the Bill is the best policy option.

The Committee is of the view that adequate time should be made available to the Committee to examine a Bill unless there is a stated reason explaining the urgency of the Bill. No explanation for urgency has been provided in relation to the Bill.

With regards to the devolution model proposed in the Bill, the Committee has examined the following policy issues:

• whether the proposed model aligns with other Australian and international jurisdictions • the benefits of separating the roles of regulation and service delivery • integration of regional port management and operational arrangements and the efficiencies of

delivering pilotage services through the port authorities • safety implications of removing port pilotage services from MSQ • transfer of assets, pilots, pilot transfer crew and administrative staff to the designated port

authorities • extension of the current immunity from civil liability to include other parties who may employ

pilots • the second stage of the transition process which provides for the designated port authorities to

develop and implement their long-term, best practice delivery mechanism and pricing structures. While the Committee has raised some concerns with regards to the issues listed above, it is, in general, satisfied with the responses and reassurances provided by the Department during the Inquiry process.

A more detailed discussion on a number of the issues examined by the Committee is provided below.

Recommendation 2

The Committee recommends that, for future Bills, the Department of Transport and Main Roads provide an explanation in the Explanatory Notes for the urgency of a Bill or the Minister for Transport and Main Roads provide an explanation for the urgency of a Bill in the First Reading Speech.

29 Further discussion on the consultation process can be found on page 16.



Safety implications

During the Inquiry process, the Committee raised concerns about the safety outcomes of this model. Two submissions received had also raised concerns about the safety outcomes with this model.30

At the Public Briefing (8 August 2013) the Department assured the Committee that safety was a key consideration in the development of the Bill:

Where we are devolving these services across the state, I also make a very key point in that MSQ and the department more broadly does not vacate the safety space. Indeed, really, one of the key issues about this reform is focusing MSQ and the work that we do in the department around the regulation of safety. So while we will no longer be responsible for the delivery of the port pilotage services, the work we do in a regulatory sense around safety remains and remains a very key point of what we do.31

In their Written Brief, the Department advised the Committee that MSQ will maintain its core role as the safety regulator and standards setter.32

Further reassurance was provided by the Department at the Public Briefing held on 30 August 2013:

The safety regulatory authority is not going to a commercial entity. MSQ is maintaining its role as the overall regulator. The port corporation, as the provider of the service, will have under the legislation, which is clearly outlined in the bill, a safety obligation with quite severe penalties if it tries to operate the pilot service outside of normal accepted safety requirements. So MSQ—the government—is not giving away the regulation. As I have always said, the same pilots will be piloting the same ships with the same licences under the same parameters with the same regional harbor masters.33

The Department emphasised that:

Our pilots will be engaged directly through the port corporation or by other means and with the responsible entity being the port corporation having the safety obligation.34

At the Public Briefing (8 August 2013), the Committee questioned the role of the regional Harbour Masters following the transfer, specifically the regulation and enforcing of safety standards. The Department responded:

The role of the regional Harbour Masters as it is now will not change under this legislation. They are responsible for the overall safety standards—vessel-handling characteristics, number of tugs, under-keel clearance, title conditions—for ships moving in our ports now, and they will be doing that if this legislation goes through the House. Their role will not change. There is a good relationship but a separate relationship between the pilots and the Harbour Masters. The Harbour Master is the regulator, but to date we have had a fruitful relationship between the Harbour Masters and the pilots. I see no reason why that will not continue into the future, maintaining our very high safety standards.35

AMPI and The Consultancy Bureau also raised concerns about the role of the regional Harbour Masters, specifically the regulation and enforcement of safety standards. The Department responded:

30 AMPI and The Consultancy Bureau. 31 THLGC Public Briefing Transcript 8 August 2013:2-3. 32 TMR, Written Brief 19 August 2013: Appendix 1:8. 33 THGLC Public Briefing Transcript 30 August 2013:3. 34 THGLC Public Briefing Transcript 30 August 2013:3. 35 THLGC Public Briefing Transcript 8 August 2013:4.



The Regional Harbour Masters will continue to be MSQ officers and not part of the port corporations. They will continue to have a key safety role in the port network and will continue to set the port handing safety criteria and manage the port VTS [vessel tracking service] systems. They have the power to monitor and audit the pilotage service providers and can intervene in the case of safety concerns. MSQ will continue to be the State’s marine safety regulator setting licence and professional standards in consultation with the pilots and other key stakeholders. Incidents will continue to be investigated either by MSQ or the Australian Transport Safety Bureau or both.36

At a further Public Briefing (30 August 2013), the Department advised that not only will the Harbour Master’s powers to control the pilotage operations not change, they will be enhanced.37

The Department also advised that the Act is being changed to give MSQ the powers to monitor and manage the delivery of agreements with the port corporations.

If the pilotage went across to the private port operator there is a real potential that commercial pressure could be made to bear because there is also return on assets. We are very aware of that. Even if that did happen we have our suite of regulatory measures.

….

So even though the port corporation may be private, our power over that organisation will be no less than it was if it was a government GOC. From our perspective it does not matter whether it is ‘ACME Logistics’ or the Port of Gladstone Corporation we have the same powers. We have the existing powers to licence pilots, to approve pilots, to monitor and manage, and monitor and manage the handling parameters in the ports. There is a new safety obligation on port corporations or, in the future, private sector pilotage providers, which provides us with the same leverage, the same control, we have now. So it makes no difference whether it is the state or private sector we have the same powers. Our harbour masters, our regional harbour masters which are staying with the state, have been given additional powers to monitor pilotage delivery and the general manager has extensive powers in addition to the regional harbour masters to actually regulate discrete shipping issues in ports. The safety framework is the same no matter whether it is a private sector entity providing the pilotage service or a government entity. I share your concern and it is a valid question. From our perspective it does not matter whether it is A, B, C or D, they get the same regulatory coverage.38

The Committee asked for clarification on the powers of MSQ to ensure safety during industrial action. The Department advised:

That has happened in the past and because we are currently the employer of the pilots north of Brisbane we have, through whatever industrial system we have at that time, engaged in negotiations through the industrial tribunals that may have existed at that time to resolve the issue. In my memory there has been very few issues of industrial disputation in terms of all the ports going out, although over history it has happened once or twice. In the new world where we are the safety regulator, we will have no coverage over the industrial relationship between the pilots and the ports, as we would not have over any relationship between the ports and any other employees they may have. But would we walk away when we knew there was an industrial situation developing? No. If the pilots went out and there was a proposal to bring back a team of retired pilots, I think we would not be far off the phone saying, well, you know, ‘We’re still here. Let’s go and talk about the safety

36 TMR, Written Brief 19 August 2013:Appendix 1:8 37 THLGC Public Briefing Transcript 30 August 2013:3 38 THLGC Public Briefing Transcript 30 August 2013:5



matters.’ We would not walk away from a situation which we thought in any way at all was going to compromise safety because our ports are too important.39

Previous administrative arrangements in Queensland

The Committee asked the Department why port pilotage was brought back from being under port authority control in 2002. The Department advised:

The reasoning surrounding that and what we are mindful of in terms of learning lessons from history, if you like, is around two points. One is that under previous arrangements when port pilotage was out of the government’s hands there was not a clear answer around the pricing mechanism and nor was there the clarity similar to which we are putting in this legislation around which ports have pilotage services provided by which port corporation. As I mentioned earlier, with the ports that I mentioned, we have put in legislation to be very specific around which port corporations look after which ports in terms of pilotage. Those two aspects that we have discussed we feel very confident that this will be a successful delivery of this devolvement model. 40

And:

There was a mismatch between service delivery and pricing. A contractor was engaged who was unable to supply the sufficient number of pilots. That is why in terms of this new proposal we have separated the service delivery from the pricing, so we can settle down the service delivery and then look at the pricing so there is no conflict between two important but sometimes counter issues. 41

Committee comment

The Committee has examined in detail the safety implications of the devolution of port pilotage services to the designated port authorities.

Following reassurances from the Department, the Committee is satisfied that the proposed devolution model will not compromise the enforcement of safety standards because:

• MSQ will maintain its core role as the State’s marine safety regulator, including the setting of licence and professional standards, and the ability to investigate, recommend enforcements and prosecute incidents

• MSQ will ensure that safety will not be compromised during industrial action

• the role of the regional Harbour Masters will not change under the Bill – the Harbour Masters will continue to be MSQ officers and not part of the port corporations.

The Committee is aware that any future change in government policy will require further legislative change and the safety implications of such changes can be examined more fully at that time.

39 THLGC Public Briefing Transcript 30 August 2013:5. 40 THLGC Public Briefing Transcript 8 August 2013:3. 41 THLGC Public Briefing Transcript 8 August 2013:5.



Stage Two: Pricing arrangements

The Committee asked the Department to clarify the development of the future pricing arrangements for port pilotage. The Department responded:

The second stage of the devolvement process involves each port corporation developing and implementing their best practice delivery mechanism and pricing structures. The pricing structures will be in line with the government’s policy determination on its preferred approach to this matter.

The delivery and pricing models will be undertaken with the endorsement of the Shareholding Ministers and ultimate approval of Cabinet. Maritime Safety Queensland will continue to provide safety oversight. In addition TMR will work with central government agencies to ensure that any models developed and implemented are consistent with and meet the objectives of the government’s service delivery priorities.

While there is an intent that there will a consistent framework in developing fee schedules, it must be anticipated that each port corporation’s schedule of fees will be different depending on its market conditions and commercial requirements.

Alternative pricing models proposed to government will address both port specific issues and whole of State financial management and access to service issues.42

The Committee asked the Department to clarify the process to develop the future pricing arrangements for port pilotage. The Department advised:

The key to creating a sustainable transition is to allow port corporations the opportunity to gain some detailed understanding of the cost factors that drive the business locally and which in turn need to be considered in developing a pricing schedule.

After gaining a better understanding of the port pilotage business, port corporations will be able to develop and implement a longer term delivery mechanism and supporting pricing structures that meet their specific port needs. TMR will continue to consult with port corporations, core government agencies and key stakeholders during this time to develop appropriate pricing models to allow the preparation of a Cabinet Budget Review Committee submission for government consideration by mid-2014.

This will ensure that the pricing structure will address both port specific issues and whole of State issues. Other issues to be considered by government may include the need to nurture regional and rural trade facilitation, equitable access to services and ensuring the necessary safety and industry sustainability issues.

Once the legislation endorsing the proposed transfer has been passed and the responsibility for the provision and delivery of port pilotage has been approved, discussions to develop pricing structures will commence. This will allow an appropriate period of time for port corporations to gain further operational understanding of the port pilotage delivery business and then determine the best market based delivery mechanism to meet their particular needs. The State (through TMR) will retain responsibility for pricing during the initial transitional period and will work with central agencies to develop alternative pricing models which address port specific and state strategic interests.

In devolving the pilotage services TMR has provided considerable detail on the pricing structures to each of the port corporations. In conjunction with detailed understanding of port users’ shipping projections and constraints, port corporations will use this information to develop their pricing structures.

42 TMR Correspondence, 27 August 2013:1



In addition to discussion with the ports the development of new pricing models will also require consultation with peak trade and shipping bodies and central government agencies.43

In relation to the timeline for developing the future pricing arrangements for port pilotage, the Department stated:

Pending passage of the legislation through Parliament, Port corporations begin providing pilotage services as of 2 November 2012. Following on from this date TMR will work with the port corporations and stakeholders to progress implementation of new pricing structures. It is anticipated that TMR will be seeking Cabinet Budget Review Committee approval for changes to pricing mechanisms in the second quarter of the 2014 calendar year. This is an ambitious schedule but there is a desire to give port users certainty as soon as possible. 44

The Department also clarified how the future pricing structures will be formalised:

Currently, MSQ provides port pilotage services on a user pays basis with fees set under the Transport Operations (Marine Safety) Act 1994. While pilotage fees vary from port to port, they all include a base fee plus an incremental amount calculated per metre for the length of the ship. The fees are contained in Schedule 10 of the Transport Operations (Marine Safety) Regulation 2004. Under the Maritime Safety Queensland Act 2002 revenue from pilotage fees is paid into the Maritime Safety Queensland Fund.

In the initial stage, payments to port corporations will be processed by way of service agreements based on a per movement basis. This is similar to the process used to recompense Brisbane Marine Pilots for the service they provide in the port of Brisbane.

The devolution process will endeavour to reduce legislative burdens on industry and it is hoped that revised pricing structures can be formalised by port corporations locally. While some changes to legislation may be required to amend current provisions, in the longer term it is anticipated that the legislative requirements would be reduced. No firm approach has been decided and a number of options will be considered including the use of licensing arrangements for the provision of pilotage services.

The port corporations will be able to charge the pilotage fees directly under their existing legislative powers. 45

During the Public Briefing (8 August 2013), the Committee questioned the Department about the process for recovering revenue to cover the Harbour Masters’ regulatory and safety responsibilities. The Department responded:

In terms of revenue, pilotage is on a fee-for-service basis. That fee goes to the government; that fee does not go to the Harbour Masters. Our Harbour Masters and the whole of MSQ are funded through normal government appropriations. To date, government has recognised our core safety roles and we have sufficient resources to undertake those safety roles. There is no indication that will change.46

43 TMR Correspondence, 27 August 2013:1-2. 44 TMR Correspondence, 27 August 2013:3. 45 TMR Correspondence, 27 August 2013:3-4. 46 THLGC Public Briefing Transcript 8 August 2013:4.



Committee comment

The Committee has noted that the second stage of the devolution process, which is anticipated to commence in late 2013, will allow for the designated port corporations to develop new pricing structures for port pilotage services. During the transition period, the Government will retain responsibility for pricing to allow time for the designated ports to gain further understanding of the port pilotage business and, therefore, be better placed to determine the best market-based delivery mechanisms.

The Committee notes that the new pricing structures will be finalised following the endorsement of the Shareholding Ministers and ultimate approval of the Queensland Cabinet.

The Committee is satisfied with the proposed process for developing the pricing structures. However, given the Committee’s concerns about the consultation process on Stage One (development of the Bill), the Committee recommends the Government consults with all key stakeholders on Stage Two.47

Recommendation 3

The Committee recommends that during the development of Stage Two of the port pilotage devolution process, the Government consults extensively to ensure the views of all stakeholders and industry experts are taken into consideration.

Transfer of pilots, pilot transfer crew and administrative staff

Clause 9 of the Bill proposes to insert a new part 2A ‘Pilotage Services’ into the MSQ Act, which includes provisions to transfer employment of pilots, pilot crew and administrative staff from MSQ to the relevant port authority or subsidiary. MSQ employees who are affected by the proposed transfer are 69 marine pilots, 14 pilot vessel transfer crew members and five administrative staff.

Section 12H of the MSQ Act ensures the preservation of the terms and conditions of employment and accrued leave entitlements, and for employment records to be transferred to the relevant port authority or subsidiary upon commencement.48 The Explanatory Notes state that this will ensure the affected employees:

… total remuneration will be at least equal to their current remuneration, their existing or accruing rights to superannuation or annual, sick or long service leave will not be affected, and their continuity of service will not be interrupted.49

Furthermore, the Committee notes that, following the transfer, all employees will be governed by Commonwealth industrial relations legislation, specifically the Fair Work Act 2009 (Commonwealth).50

The Explanatory Notes provide assurance that “no positions will be terminated, retrenched or made redundant”.51 Further, that “extensive and ongoing consultation has been carried out with all affected employees and their unions”. There will be no change in terms of location for the pilots and the pilot transfer crew. The AMOU, who represents the professional and employment interests of

47 See Committee comment on consultation at page 18 of this report. 48 Explanatory Notes, Transport Legislation (Pilot Pilotage) Amendment Bill 2013:4-5. 49 Explanatory Notes, Transport Legislation (Pilot Pilotage) Amendment Bill 2013:5. 50 TMR, Written Brief 19 August 2013:5. 51 Explanatory Notes, Transport Legislation (Pilot Pilotage) Amendment Bill 2013:5.



the majority of employees affected by the legislation, has indicated that it has been consulted by the Government about the matters covered in the Bill and support the transfer.52

The Bill provides for the contracts associated with pilotage services and pilots’ employment to be transferred.53 The Department and the Public Service Commission is negotiating with the relative unions and other interested parties to finalise an enterprise bargaining agreement (EBA). The Department informed the Committee that after the EBA expired in October 2012, it was extended by 12 months, which effectively maintains the pilots existing conditions - including a built-in 2.35 per cent pay rise.54 The Committee asked the Department about the impact on the EBA process if it is not finalised before the legislation is passed through the House. The Department responded:

The current enterprise agreements have expired and we have negotiated with the pilot representatives, both individually and through the union. A memorandum of understanding allows for a small salary increase, but those enterprise agreements continue on foot because it has not been replaced. In the scenario where legislation is proclaimed and the pilots move across, those enterprise agreements are still current. We are in discussions now, as Mr Fraine said, to work out the logistics of how we move the industrial framework ahead. I might add, we have great cooperation from the stakeholders involved and we are expecting a good outcome. Bear in mind there are a lot of discussions to take place yet.55

The Committee asked the Department about the degree of flexibility in the employment and movement of additional pilots, especially in terms of seasonality. The Department stated:

For ports north of Rockhampton there is certainly a degree of seasonality, particularly in the gulf in places like Karumba, Thursday Island and Cape Flattery. In summer, with the monsoon and the rain, trade decreases but in the wintertime trade increases. So it does cycle, but our major ports—Brisbane, Gladstone, Hay Point—are strong throughout the year.56

And:

There is very little flexibility in terms of transferring pilots between regions. Pilots are licensed for a particular class of ships in a particular range of ports and that is not immediately transferrable without a detailed training regime. So we keep a sufficient number of pilots that we can handle just below the peak without being overstaffed, and at times—although it is very rare—we may ask a ship to delay for a couple of hours. It is a very rare occurrence, but our pilots in Cairns spend a lot of time in aircraft flying between places like Cape Flattery, Thursday Island, Weipa and Karumba, just to service the trade as required.

The Committee questioned the Department about the options available for the five administration employees who support the provision of pilotage services. The Department responded:

For the administrative staff, if they choose to go with the ports they will [transfer]. If they choose to seek other arrangements within TMR we would obviously look to keep them in their current location if at all possible, but that would be a matter of negotiation with the individual at the time.57

52 AMOU, Submission No. 1:1. 53 Explanatory Notes, Transport Legislation (Pilot Pilotage) Amendment Bill 2013:4. 54 THLGC Public Briefing Transcript 8 August 2013:3. 55 THLGC Public Briefing Transcript 8 August 2013:6. 56 THLGC Public Briefing Transcript 8 August 2013:5. 57 THLGC Public Briefing Transcript 8 August 2013:5.



Committee comment

The Committee is satisfied that the transfer of pilots, pilot crew and administrative staff from Maritime Safety Queensland to the relevant port authority or subsidiary will not impact negatively on the terms and conditions of their employment and accrued leave entitlements.

The Committee is aware that if there are further changes to Government policy (e.g. privatisation of Ports) there may be implications for the conditions of employment of pilots and pilot crew. The Committee notes that any changes in Government policy will require further legislative change and can be examined more fully at that time.

Transfer of assets and liabilities

Clause 9 of the Bill proposes to insert a new part 2A ‘Pilotage Services’ into the MSQ Act, which includes a new section 12F that will provide for the Minister to transfer leases, instruments and other matters from the State to a port authority or subsidiary.58,59 It will allow the Minister to make a transfer notice to deal with assets, leases and other matters that are necessary for delivering the services to transfer these over to the port authorities.

In its Written Brief, the Department explained that this will have effect despite other laws. Further:

The application of transfer notices has been limited to only relate to the transfer of responsibility for pilotage services to port authorities. It is considered that these transfer notices are an appropriate mechanism to allow the Minister to deal with a large number of matters necessary to achieve the policy objectives of the Bill and reflects the approach taken in other Queensland legislation including the Queensland Rail Transit Authority Act 2013.60

And:

Although the transfer of assets, liabilities, contracts and so forth may infringe the rights of any third parties involved in these instruments, the provisions are necessary to meet the policy objectives of ensuring continuity of pilotage services after the transfer. For example, where the State has a contract with a third party who provides helicopter services to transfer pilots onto and off ships these will be transferred to port authorities or the Gladstone Ports Corporation subsidiary. These helicopter services are essential for the provision of pilotage services and it is not practical to require each port authority or the subsidiary to renegotiate contracts such as these with potential suppliers. In addition, it will allow contracts to remain on foot which will be beneficial to suppliers.61

In response to a question from the Committee about the asset value, the Department advised that:

The asset base and pilotage is really pretty small. It is about eight boats, a large number of radios and a few computers. There is no substantial asset base. I have the figure available, but I have forgotten.62

Subsequently, the Department advised the Committee that the correct asset value is approximately $5.4 million, and that the assets include:

• nine pilot vessels (and vessel equipment) – valued at approximately $4.69 million

58 Explanatory Notes, Transport Legislation (Pilot Pilotage) Amendment Bill 2013:6. 59 In the case of the Gladstone Ports Corporation Ltd, the transfer may be to a wholly owned subsidiary of the

Ports Corporation. 60 TMR, Written Brief 19 August 2013:6. 61 TMR, Written Brief 19 August 2013:5, 6. 62 THLGC Public Briefing Transcript 8 August 2013:6.



• specialist laptops (Portable Pilot Units) with navigation chart / GPS software with a 2011-12 value of approximately $872,900.63

Once transferred, replacement of assets will be at the cost of the port corporation.64

Committee comment

The Committee is satisfied with the provisions in the proposed Bill that allow the Minister for Transport and Main Roads to make a transfer notice to transfer assets, liabilities, leases, instruments, rights and other things relating to the transfer of pilotage services from the State to the relevant port authority.

Immunity from civil liability

However, in terms of liability, The Committee asked the Department if the MSQ pilots and also the Brisbane marine pilots can be liable under the Criminal Code Act 1899 or the the MSQ Act if there is recklessness or criminal action on their part.65 The Department responded:

We have a very strict overall safety regime for our pilots in Queensland—the MSQ pilots and also the Brisbane marine pilots. They operate under the same act and regulations. In terms of a liability, that personal liability protection relates to the fact that an individual pilot would be unable to get insurance for the actual risks that he or she may be facing in terms of their normal operations so they are given this exemption from civil liability, although they can be liable if there is recklessness or criminal action on their part. It is not a total absolution of their behaviours but it is a civil protection. The ship and the master of the ship pick up the actual costs if there is an incident with the ship during a pilotage operation. So that is why the civil liability is there.

We have a very strict licensing system. New pilots have to go through a number of stages before they reach the highest levels. There are regular medicals. We have a ship simulator at Eagle Farm where we actually practise manoeuvres and emergency procedures. We have codes of conduct. Once again, all pilots are always susceptible to criminal charges under our criminal act or the Maritime Safety Act. So we have a safety framework. The same pilots will be using the same licences on the same ships and the same ports post translation. We would be expecting no lowering at all in the safety outcomes. That is our first aim with this whole process.66

Consultation

The Explanatory Notes state that:

Consultation with key stakeholders and government agencies has been extensive and ongoing and all issues raised through consultation have been comprehensively addressed.67

And that:

Consultation with other community stakeholders and organisations independent of government has occurred but as the nature of the policy change is machinery in nature, consultation has been minimal.68

63 TMR, Written Brief 19 August 2013:6. 64 Explanatory Notes, Transport Legislation (Pilot Pilotage) Amendment Bill 2013:4-5; THLGC Public Briefing

Transcript 8 August 2013:5. 65 Further discussion on immunity from civil liability can be found in FLP section of the report on page 19. 66 THLGC Public Briefing Transcript 8 August 2013:6. 67 Explanatory Notes, Transport Legislation (Port Pilotage) Amendment Bill 2013:7.



The AMOU stated that they “represent the professional and employment interests of the majority of employees affected by this legislation” and advise that they and their members were consulted by the Government with respect to the Bill.69

Conversely, another submitter to this inquiry, AMPI, has expressed its strong concern and dissatisfaction that it was not consulted as a stakeholder in the development of the Bill. In its submission, AMPI refers to its credentials as being members of the Australian Marine Pilots professional association and of the International Maritime Pilots Association, and its involvement in the United Nations Maritime Agency with the drafting of Conventions, Standards and Rules for Marine Pilotage.

AMPI stated that:

It has always worked with governments and maritime agencies and organisations around Australia to ensure the profession continues to evolve in line with best practice and address issues such as national Standards of Training, Safety Management Systems, Procedures, Codes of Best Practice etc.70

….. Despite two letters to the Minister for Transport and Main Roads offering to assist and provide professional input to the process of determining a successful pilotage model for Queensland, it is curious that AMPI was never consulted as a stakeholder in the process of drafting the Pilotage Bill that was tabled in the Queensland Parliament of 6th August 2013.71

The Department responded to these concerns, stating:

This was a Queensland Government public sector reform initiative. As such there has been no prior direct consultation with industry. However peak industry bodies, employees and their representatives were fully aware that change was being considered and changes to the current arrangements would most likely take place. A number of organisations including the Australian Chamber of Shipping and the Queensland Resources Council have since received direct advice from TMR officers on potential impacts of the proposals.

The Department has consulted with all affected Port Corporations in relation to the amendments that transfer the service provision from TMR to them. Port corporations accept the proposed legislative changes and are working with the department to ensure the transition is efficient and effective.

All staff involved in the devolvement of the pilotage and pilotage transfer services have been kept informed of developments and receive weekly updates from the Executive Director of MSQ. The Chief Executive Officers of the port corporations also receive this weekly update on the Devolvement Project.

Organisations that currently provide services to MSQ through contracts have been informed of the changes and the need to transfer the contracts to the port corporations. These organisations will not be materially impacted by these changes.

TMR has actively involved the Department of the Premier and Cabinet, the Public Service Commission and Queensland Treasury and Trade.

68 Explanatory Notes, Transport Legislation (Port Pilotage) Amendment Bill 2013:7. 69 AMOU, Submission No. 1:7. 70 AMPI, Submission No. 2:2. 71 AMPI, Submission No. 2:2.



Apart from the criticism raised in the submission from the Australasian Marine Pilots Institute, TMR has received general support for the proposal.72

Committee comment

The Explanatory Notes claim that the Department has consulted with key stakeholders. However, the Committee notes that other parties, who have extensive pilotage expertise and claim to represent a group affected by the Bill, were not consulted on the proposed changes.

The Committee is of the view that consultation with these key bodies would have assisted the Government in its consideration of the best option for the devolution of port pilotages services and also would have assisted the Committee in its examination of the Bill. The Committee believes that consultation with industry experts is good practice when considering policy options.

Recommendation 4

The Committee recommends that the Department of Transport and Main Roads consult extensively on all future Bills to ensure the views of stakeholders and industry experts are taken into consideration.

72 TMR, Written Brief 19 August 2013:5.

Transport Legislation (Port Pilotage) Amendment Bill 2013 Fundamental legislative principles


3 Fundamental legislative principles

Section 4 of the Legislative Standards Act 1992 states that ‘fundamental legislative principles’ are the ‘principles relating to legislation that underlie a parliamentary democracy based on the rule of law’.

The principles include that legislation has sufficient regard to:

• the rights and liberties of individuals and • the institution of parliament.

The Committee considered the fundamental legislative principles issues stemming from the Transport Legislation (Port Pilotage) Amendment Bill 2013 and identified several potential departures from these principles which are explored below.

Issues of fundamental legislative principle sufficiently canvassed in the Bill’s Explanatory Notes have not been further raised in this report.

3.1 Rights and liberties of individuals

Immunity from proceedings or prosecution without adequate justification

Clause 21 amends section 101(5) of the Transport Operations (Marine Safety) Act 1994 to extend the definition of ‘general employer’ that applies for the purpose of conferring immunity from civil liability for responsible pilotage entities and other entities who have entered into a written agreement with a responsible pilotage entity to supply pilotage services.

In respect of this expanded definition the Explanatory Notes state:

It is an established principle of maritime law that a pilot is considered to have conduct of a ship for the purpose of navigation but the ship’s master retains command of the ship. This is reflected in section 7 and section 102 of TOMSA. Section 101 of TOMSA currently provides that conducting pilots, supervising pilots and their general employers are not liable for damage or loss caused while the pilot has conduct of the ship. This is considered essential because of the risks assumed by pilots and the vital role they play in facilitating port movements. However, the ship’s master and owner remain liable for loss or damage that occurs while the ship is under compulsory pilotage (section 102(3) TOMSA).

…

Similar liability provisions are in place in most other Australian jurisdictions, including those where the responsibility for provision and delivery of pilotage services lies with port authorities.

Committee comment

The Committee is satisfied with the proposed amendment to extend the existing definition of ‘general employer’ to provide immunity from civil liability for responsible pilotage entities and other entities which have entered into a written agreement with a responsible pilotage entity to supply pilotage services.

Fundamental legislative principles Transport Legislation (Port Pilotage) Amendment Bill 2013


3.2 Institution of Parliament

Amendment of an Act only by another Act

Clause 9 inserts, inter alia, proposed new section 12O into the Maritime Safety Queensland Act 2002 to provide that “Subject to the Fair Work Act, a thing may be done under this part [Part 2A] despite any other law or instrument.”

The substantive operative provision of Part 2A is proposed section 12F which provides that, for the purpose of the transfer of pilotage services, the Minister may by gazette notice (a transfer notice) transfer an asset or a liability of the State to a port authority, transfer a lease, easement or other right from the State to a port authority and do other related things as listed in section 12F(1)(a)-(h).

The combined operation of section 12F and section 12O serves as a Henry VIII clause by allowing an administrative instrument (gazette notice/transfer notice) to have effect despite any other law or instrument which may conflict with the transfer notices’ operative reach. The ‘any other law’ could be another State or Federal statute.

Subordinate/administrative instruments such as transfer notices should not be allowed to prevail in any conflict/inconsistency with a primary legislative instrument such as an Act, unless that is the clear intention of the Parliament. Similarly, ‘broad brush’ drafting should not be used to alleviate an authority or entity from any of the obligations it has under the criminal law, Corporations law, workplace health and safety laws or any other body of legislative protections, unless that is the Parliament’s clearly expressed intention.

The Explanatory Notes assert that the inclusion of an express statement in section 12O makes it clear that it is the intention of the Parliament to allow this power to be exercised by the Minister.73

Further, section 109 of the Commonwealth Constitution74 provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. Accordingly, an assertion by a state law that its authority will prevail despite any other law fails to acknowledge that any conflicting operation of a federal statute will render the state law invalid to the extent of its inconsistency with the federal law.

Section 12O largely acknowledges this Commonwealth constitutional issue by making its operation subject to the Fair Work Act 2009. It is possible, however, that there may be other Commonwealth legislation that conflicts with Part 2A and would render it invalid to the extent of that inconsistency.

The Committee asked the Department to clarify if it was aware of any other Commonwealth legislation that may conflict with Part 2A and would render it invalid to the extent of that inconsistency. The Department responded:

The Department is aware that any State legislation which is inconsistent with a law of the Commonwealth will be invalid to the extent of the inconsistency. It is not aware, however, of any other Commonwealth law that may conflict with Part 2A. In particular, it is not expected that the Fair Work Act would have application to any matters that may be dealt with by transfer notice.75

Committee comment

The Committee notes the advice provided by the Department of Transport and Main Roads that it is not aware of any law, other than the Fair Work Act 2009, that may conflict with Part 2A of this Bill.

73 Explanatory Notes, Transport Legislation (Port Pilotage) Amendment Bill 2013:7. 74 The Commonwealth of Australia Constitution Act. 75 TMR Correspondence 23 August 2013:1.

Transport Legislation (Port Pilotage) Amendment Bill 2013 Fundamental legislative principles


3.3 Explanatory Notes

Part 4 of the Legislative Standards Act 1992 relates to explanatory notes. It requires that an explanatory note be circulated when a Bill is introduced into the Legislative Assembly, and sets out the information an explanatory note should contain.

Committee comment

The Committee considers that a number of the provisions in the Legislative Standards Act 1992 have not been met in a clear and precise way in the Explanatory Notes.

In particular, the Committee considers that the consultation section in the Explanatory Notes does not provide details of the parties consulted, nor does it accurately detail the results of consultation. This is evidenced by the concerns raised about the consultation process in submissions.

Further, the provision of more comprehensive explanatory notes regarding the proposed policy would have assisted the Committee in its examination of the Bill.

Recommendation 5

The Committee recommends that, for future Bills, the Explanatory Notes provide a more comprehensive discussion of the proposed policy changes, detail all parties consulted and accurately detail the results of consultation.

Appendices Transport Legislation (Port Pilotage) Amendment Bill 2013


Appendices

Appendix A – List of submissions

Sub No. Submitter

1 Australian Maritime Officers Union

2 The Australasian marine Pilots Institute

3 The Consultancy Bureau Pty Ltd

Appendix B – List of witnesses at the Public Briefing held on Thursday, 8 August 2013

Witnesses

Mr Graham Fraine Deputy Director-General Customer Services, Safety and Regulation Department of Transport and Main Roads Mr Patrick Quirk Executive Director Maritime Safety Queensland Department of Transport and Main Roads Ms Kate Nuttall Principal Legislation Officer Transport Regulation Department of Transport and Main Roads

Appendix C – List of witnesses at the Public Hearing held on Wednesday, 21 August 2013

Witnesses

Mr Graham Fraine Deputy Director-General Customer Services, Safety and Regulation Department of Transport and Main Roads Mr Patrick Quirk Executive Director Maritime Safety Queensland Department of Transport and Main Roads Ms Kate Nuttall Principal Legislation Officer Transport Regulation Department of Transport and Main Roads

Transport Legislation (Port Pilotage) Amendment Bill 2013 Appendices


Appendix D – List of witnesses at the Public Briefing held on Friday, 30 August 2013

Witnesses

Mr Mike Stapleton General Manager Transport Safety Department of Transport and Main Roads Mr Patrick Quirk Executive Director Maritime Safety Queensland Department of Transport and Main Roads Ms Kate Nuttall Principal Legislation Officer Transport Regulation Department of Transport and Main Roads

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WESTERN AUSTRALIA

Esperance, Albany, Sunbury and Gerakfton, Broome. Pilotage service provided by p110ts empJoyed by the state--owned p011 corporabons.

Fremanue Pilotag e provided by priva te company under contract to tile Government owned port authori ty.

Oampier Pilotage $Otviee& provided by p riVate company - monitored and audited by sta te and p ort authority.

Port Hedland Pilotage p rovided by the Port Hedland Ptlot$.. a private company contracted by th e Port Hed land P ort A uthori ty.

Wyndham Pilotage prov id ed by c:ontraciOt& for the pon. authority.

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NORTHERN TERRITORY

Darwin Pilotage provided by pilOt$ engaged through the O arw1n Port Authority.

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South Australia

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SOU TH AUSTRALIA

Wallaroo, Pon Lincoln , Klein Point. l'hevenard , Por't Adelaide . Port Pirie and Port Giles. Pilotage provided by Flinders Ports.

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TASMANIA

Queens.land

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Hobart. Launeeston. Devenport Burnie, Triabu nna and other commun1ty potts. Pilo tage p rovided by sta te -owned por1 corporation.

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NEW PROPOSED MODEL FOR QUEENSLAND- November 2013 General provision and delivery of pilotage services across Australia

• Inform a tion gathered from websites and d irect enq uiry.

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QUEEN SLAND

Katumba, Weipa, Skardon River, Cape Flattery, Cairns, Mourilyen, Townsville. Lvclndo, Mackay and HayPoim. Pilo tag e p rovided b y p iklts emplo yed by state~owned port corporations.

Abbot Point Ag reement with the Port o f Tow nsville ltd to p rovide service deliv ery.

G ladstone , Port Alma and Bundaberg Pilotage provided by Gladstone Port C o rporation or subsid iary.

Brisban e BMP contracted for service delivery.

Southport Contrad or agreement fo r service.

NEW SOUTH WALES

Yamba, New castle, S ydney. Botany B&y. Port Kembla and Eden. P ilOtage provided by p ilOts d irectly emp loyed by state~wned port corporation.

VICTORIA

Melboumc, Hastings and Geclong. Pibtage provid ed by Po rt Phillip Sea Pitots authorised by state {le no agreement). Safety regulation by Marine Safety Victoria .

Pori land Pik>ts provided by p rivate pott eorpo ratjon.

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Carl Judge MP State Member for Yeerongpilly

4 September 2013

Howard Hobbs MP Chair of the Transport, Housing and Local Government Committee

Parliament House George Street BRISBANE QLD 4000

Dear Mr Hobbs,

Statement of Reservation re Transport legislation (Port Pilotage) Amendment Bill2013

On behalf of the United Australia Party (UAP), I wish to notify the committee of our reservations about the above mentioned Bill and advise that relevant reasons will raised upon resumption of the

second reading debate.

Yours sincerely,

Yeerongpilly Office: 3 I 116 Beau desert Road Moorooka Qld 4105 Phone: (07) 3848 4410 Fax: (07) 3892 2229

Email address: [email protected] Website: www.carljudgemp.com.au

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