Transport Legislation Amendment (Marine Safety and Other

Amendments) Bill 2011

Introduction Print

EXPLANATORY MEMORANDUM

General

The broad purpose of the Transport Legislation Amendment (Marine Safety and Other Amendments) Bill 2011 is to make improvements to the regulatory framework for marine safety and ports in Victoria.

The Bill makes miscellaneous amendments to the Marine Safety Act 2010, the Marine Act 1988, the Port Management Act 1995 and the Transport Integration Act 2010.

The Bill broadly aims to promote marine safety by making a number of changes to the Marine Safety Act 2010 to facilitate the operation of that Act. Some of the more significant adjustments made by the Bill to that Act include—

ensuring that operators of hire and drive vessels are covered by the same statutory duty of care as operators of recreational vessels;

allowing Victoria to recognise marine licences and certificates issued by international authorities which are recognised by the Commonwealth; and

facilitating better renewal procedures for marine licences and permissions.

The Bill also clarifies responsibilities and cost recovery provisions for marine pollution functions.

The Bill extends the scope of the hoon boating scheme so that the sanctions of embargo, impoundment and forfeiture apply to a broader range of antisocial offences, including the active pursuit of marine wildlife.

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The Bill also facilitates more efficient management and operation at Victoria's ports by—

repealing the Victorian Channels Access Regime, which has never been used;

removing the power of the Essential Services Commission to invoke highly prescriptive ports regulation;

narrowing the scope of port services regulated by the Essential Services Commission; and

repealing the three year sunset clause on the regulation of towage operations at the Port of Melbourne.

The Bill also makes amendments which align the regulatory framework for the issuing of marine and marine (drug and alcohol) infringement notices with the framework for other transport infringement schemes under the Transport (Compliance and Miscellaneous) Act 1983.

In addition, the Bill makes a number of minor, miscellaneous or machinery amendments.

Clause Notes

PART 1—PRELIMINARY

Clause 1 sets out the main purposes of the Bill which are—

to further provide for safe marine operations by amending the Marine Safety Act 2010 and the Marine Act 1988 (to be renamed the Marine (Drug and Alcohol and Pollution) Act 1988 upon the commencement of the Marine Safety Act 2010); and

to provide for management of Victorian ports by amending the Port Management Act 1995; and

to amend the Marine Safety Act 2010 to enable the enforcement of offences against the Marine Safety Act 2010, the Marine Act 1988 and the Port Management Act 1995 by infringement notice by amending the Transport (Compliance and Miscellaneous) Act 1983; and

to make consequential amendments to the Transport Integration Act 2010.

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Clause 2 deals with commencement and provides that the Bill comes into operation on a day or days to be proclaimed. The clause further provides that if a provision in the Bill has not come into operation before 1 October 2012, it comes into operation on that day.

PART 3—AMENDMENT OF MARINE SAFETY ACT 2010

Clause 3 Subclause (1) makes amendments to the definitions section in section 3(1) of the Marine Safety Act 2010.

Clause 3(1)(a) inserts a definition of accreditation in section 3(1) of the Marine Safety Act 2010 to provide that accreditation means an accreditation granted under section 271F of the Marine Safety Act 2010. New section 271F is inserted by the Bill in clause 28.

Clause 3(1)(b) inserts the words "or a certificate or other authority recognised by the Safety Director, in accordance with the regulations, as an equivalent to a certificate issued under section 78", at the end of the definition of certificate of competency. This enables certificates issued by other Australian jurisdictions and international authorities recognised in accordance with the regulations to be treated as equivalent to certificates issued under section 78 of the Marine Safety Act 2010.

Clause 3(1)(c) repeals the definition of marine infringement. The definition is no longer needed because Part 4.4 of the Marine Safety Act 2010 is being repealed. Marine infringements will instead be enforced using the infringements scheme established under the Transport (Compliance and Miscellaneous) Act 1983. This will be achieved by including "marine or port law" in the definition of transport safety infringement law in section 228S(1) of the latter Act. The term "marine or port law" is defined to include offences against the Marine Safety Act 2010, the Marine (Drug and Alcohol and Pollution Control) Act 1988, the Port Management Act 1995 and regulations made under those Acts.

Clause 3(1)(d) inserts the words "or a certificate or other authority recognised by the Safety Director, in accordance with the regulations, as an equivalent to a certificate issued under section 65" at the end of the definition of safe construction certificate. This enables certificates issued by other Australian

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jurisdictions and those issued to international operators by classification societies recognised in accordance with the regulations to be treated as equivalent to those certificates issued under section 65 of the Marine Safety Act 2010.

The term "Classification Society" is defined in clause 42(9) of the Bill as "a member of the International Association of Classification Societies recognised by the Australian Maritime Safety Authority".

Clause 3(1)(e) inserts the words "or a certificate or other authority recognised by the Safety Director, in accordance with the regulations, as an equivalent to a certificate issued under section 70" at the end of the definition of safe operation certificate. This enables certificates issued by other Australian jurisdictions and those issued to international operators by classification societies to be taken to be equivalent to those certificates issued under section 70 of the Marine Safety Act 2010.

Clause 3(2)(a) provides a new definition of permission which inserts "any endorsement on a marine licence" and "any endorsement on a certificate of competency" as separate and distinct classes of permission. The current definition does not include endorsements as separate and distinct permissions. The new definition of permission also inserts an accreditation. An accreditation is a new class of permission that is being inserted in the Marine Safety Act 2010 (new sections 271A to 271F) by clause 28 of the Bill.

Clause 3(2)(b) inserts new paragraph (ea) into the definition of vessel to provide that the definition includes a thing prescribed to be a vessel.

Clause 4 amends the heading of Part 2.5 of the Marine Safety Act 2010 to insert the words "AND HIRE AND DRIVE VESSEL" to reflect that this Part now applies to the masters and operators of these vessels.

Part 2.5 places duties on masters and other persons involved in the operation of recreational vessels. Hire and drive vessels are not defined to be recreational vessels and accordingly are not subject to the general safety duties which apply in respect of the operation of those vessels. The amendments make it clear that safety duties apply to the masters and operators of hire and drive

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vessels. Hire and drive vessels are essentially equivalent to recreational vessels in terms of use but are commercially owned.

Clause 5 Subclause (1) amends the heading to section 31 of the Marine Safety Act 2010 to insert the words "or hire and drive vessels".

Clause 5(2) amends section 31 of the Marine Safety Act 2010 to insert the words "or hire and drive vessel" after "recreational vessel" wherever these words occur, to clarify that section 31 now also applies to the masters and operators of those vessels.

Clause 6 Subclause (1) amends the heading to section 32 of the Marine Safety Act 2010 to insert the words "or hire and drive vessels".

Clause 6(2) amends section 32 of the Marine Safety Act 2010 to insert the words "or hire and drive vessel" after "recreational vessel" wherever these words occur, to clarify that section 32 now also applies to the masters and operators of those vessels.

Clause 7 inserts new paragraph (d) into section 43(1) of the Marine Safety Act 2010 to provide that the Safety Director may cancel or suspend registration of a vessel if the vessel has been exempted from registration by the regulations. The effect is to ensure that a commercially operated vessel is not registered as a recreational vessel.

Clause 8 amends the heading of Part 3.2 of the Marine Safety Act 2010 to insert the words "AND HIRE AND DRIVE VESSELS" to reflect that this Part now applies to these vessels. This clause and clauses 9-10 clarify that a licence holder is authorised to be the master of a recreational vessel and a regulated hire and drive vessel.

Clause 9 Subclause (1) amends section 53(1)(c) of the Marine Safety Act 2010 to provide that the Safety Director may impose conditions on a marine licence and vary those conditions.

Clause 9(2) amends section 53(2)(a)(i) of the Marine Safety Act 2010 to provide that if the Safety Director requires an applicant for a general licence to undertake any training about the operation of recreational vessels, the training must be of a prescribed type.

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Clause 9(3) amends section 53(3) of the Marine Safety Act 2010 to omit the word "recreational", so that a general marine licence authorises the holder to be the master of a vessel to which the licence applies.

Clause 10 Subclause (1) amends section 54(1)(c) of the Marine Safety Act 2010 to provide that the Safety Director may impose conditions on a marine licence and vary those conditions.

Clause 10(2) amends section 54(2)(a)(i) of the Marine Safety Act 2010 to provide that if the Safety Director requires an applicant for a restricted marine licence to undertake any training about the operation of recreational vessels, the training must be of a prescribed type.

Clause 10(3) amends section 54(3) of the Marine Safety Act 2010 to omit the word "recreational", so that a restricted marine licence authorises the holder to be the master of a vessel to which the licence applies.

Clause 11 amends section 55(a)(ii) of the Marine Safety Act 2010 to clarify that if the Safety Director requires an applicant for an endorsement of a marine licence to undertake training about the operation of recreational vessels, the training must be of a prescribed type.

Clause 12 substitutes the penalty provision at the foot of section 62(2) of the Marine Safety Act 2010, which currently provides a penalty for a natural person and a body corporate, with a single penalty provision. The offence applies to a natural person only and accordingly there is no need to set a penalty for a body corporate. The penalty for a natural person is unchanged.

Clause 13 amends section 64(1) of the Marine Safety Act 2010 to provide that in accordance with the regulations, a person may apply to the Safety Director for a safe construction certificate for a commercially operated vessel or a fleet of commercially operated vessels. Section 64(1) currently refers to an "owner" rather than a "person" which restricts the capacity of persons other than owners, such as prospective purchasers of vessels, to apply for certification.

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Clause 14 is consequential on clause 13 and amends section 65(1) of the Marine Safety Act 2010 to provide that if a person has made an application under section 64, the Safety Director may issue the person with a safe construction certificate for a commercially operated vessel or fleet of commercially operated vessels.

Clause 15 substitutes the penalty provision at the foot of section 67(2) of the Marine Safety Act 2010, which currently provides a penalty for a natural person and a body corporate, with a single penalty provision. The offence applies to a natural person only and accordingly there is no need to set a penalty for a body corporate. The penalty for a natural person is unchanged.

Clause 16 substitutes section 69(1) and (2) of the Marine Safety Act 2010 which provide for applications for safe operation certificates. The current provisions refer to an "owner" rather than a "person" which restricts the capacity of persons other than owners, such as prospective purchasers of vessels, to apply for certification.

Section 69(1) provides that in accordance with the regulations, a person may apply to the Safety Director for a safe operation certificate for a commercially operated vessel or a fleet of commercially operated vessels.

Section 69(2) provides that a person may apply for approval to use a commercially operated vessel or a fleet of commercially operated vessels for recreational purposes if—

the person has applied for a safe operation certificate; or

the person has been issued with a safe operation certificate.

An application for approval must be made in accordance with the regulations.

Clause 17 Subclause (1) is consequential on clause 16 and substitutes section 70(1) and (2) of the Marine Safety Act 2010 which provides for the issue of a safe operation certificate by the Safety Director.

Section 70(1) provides that the Safety Director may issue a safe operation certificate in respect of a commercially operated vessel or fleet of commercially operated vessels to a person who has made an application under section 69.

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Section 70(2) provides that the Safety Director must not issue a safe operation certificate to a person in respect of a commercially operated vessel or fleet of commercially operated vessels unless the Safety Director is satisfied that the person has the competence and capacity to operate the vessel or fleet safely.

Clause 17(2) amends section 70(6) of the Marine Safety Act 2010 to substitute the words "a person" for the words "the owner".

Clause 18 amends section 81 of the Marine Safety Act 2010 to substitute the words "types or classes of vessels specified in the notice" for the words "a vessel" in declarations published by the Safety Director in the Government Gazette declaring a part of State waters as waters in respect of which a local knowledge certificate is required in order to lawfully operate a vessel. The requirement to hold a local knowledge certificate, to which section 81 relates, is meant only to apply to specified types or classes of vessel, not to vessels generally.

Clause 19 amends section 82(1) of the Marine Safety Act 2010 to clarify that the object of an application under the subsection is a certificate of local knowledge.

Clause 20 amends section 85(3)(e) of the Marine Safety Act 2010 to insert the words "(if their identity and whereabouts are known to the Safety Director)". This enables the Safety Director to make a final order for detention of an unsafe vessel even if the owner or master's whereabouts are not known.

Clause 21 amends section 87(3) and (4) of the Marine Safety Act 2010 to provide that as well as not personally operating a vessel in a dangerous manner, a person must not cause or allow another person to operate a recreational vessel, government vessel or hire and drive vessel in a dangerous manner.

Clause 22 substitutes the definition of relevant offence in section 103(1) of the Marine Safety Act 2010 to provide that relevant offence means—

an offence against section 87(1) of the Marine Safety Act 2010 and clarifies that the offence only relates to an offence against section 87(1) and not the whole of section 87;

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an offence against section 58, 77A(1), 81(2) or 81(6) of the Wildlife Act 1983; or

an offence against regulation 7(1), 7(3), 7(4), 7(5), 7(6), 7(7), 9(1), 9(2), 9(3), 9(4), 9(5) or 14(1) of the Wildlife (Marine Mammals) Regulations 2009.

The amendment extends the operation of the hoon boating scheme in Parts 4.2 and 4.3 of the Marine Safety Act 2010 to offences relating to marine wildlife.

Clause 23 repeals Part 4.4 of the Marine Safety Act 2010. Marine infringements will now be dealt with as "transport safety infringements" under the general transport portfolio infringement scheme contained in the Transport (Compliance and Miscellaneous) Act 1983.

Clause 24 Subclause (1) amends section 165(1)(d) of the Marine Safety Act 2010 to provide that the Safety Director may take disciplinary action against a person if that person has acted incompetently, negligently or has engaged in misconduct relating to the safe navigation, management or working of a vessel.

Clause 24(2) amends section 165(3)(b) of the Marine Safety Act 2010 to substitute the reference to "marine infringement" with a reference to a "transport safety infringement". This amendment is a consequential amendment based on the repeal of Part 4.4 of the Marine Safety Act 2010 by clause 23 and the amendments being made by clauses 40 and 41 of the Bill.

Clause 25 inserts new paragraph (g) into section 166(1) of the Marine Safety Act 2010 to provide that the Safety Director may, as disciplinary action against a person holding a permission, withdraw recognition of a certificate or an authority otherwise recognised as an equivalent to a certificate issued under the Marine Safety Act 2010.

Clause 26 corrects a typographical error in section 194(3)(v)(C) of the Marine Safety Act 2010 by substituting the words "in addressing" for the words "that address".

Clause 27 corrects an incorrect item reference in section 234(2) of the Marine Safety Act 2010 so that it correctly refers to item 24 of Schedule 1, instead of item 26.

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Clause 28 inserts a new Division 3 in Part 8.1 of the Marine Safety Act 2010. The new Division establishes an accreditation scheme for persons providing quasi-regulatory services to applicants for permissions under the Act, such as conducting licensing tests and examinations.

New section 271A provides a definition of prescribed service for new Division 3 to mean a service prescribed for the purposes of the Division.

New section 271B states that a person must not provide a prescribed service unless that person is accredited under new Division 3. A penalty of 60 penalty units applies.

New section 271C provides that a person must not breach the conditions of their accreditation. The new section has a penalty of 60 penalty units.

New section 271D (1) provides that a person may apply to the Safety Director for accreditation to provide a prescribed service.

New section 271D(2) states that the application under subsection (1) must—

be in writing;

specify the name, address and contact details of the applicant; and

be accompanied by evidence of the competence and capacity of that person to provide the prescribed service; and the prescribed fee.

New section 271E provides that the Safety Director must issue guidelines specifying how an applicant may demonstrate that they have the competence and capacity to provide a prescribed services and that the guidelines must be published on the Safety Director's Internet site.

New section 271F(1) states that the Safety Director may grant an accreditation to provide a prescribed service to an applicant, subject to subsection (2).

New section 271F(2) provides that the Safety Director must not grant an accreditation to provide a prescribed service, unless he or she is satisfied that the person has the competence and capacity to provide the service.

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New section 271F(3) states that an accreditation granted may be subject to conditions imposed by the Safety Director or prescribed by regulations made under the Act.

Clause 29 paragraph (a) amends section 306(2) of the Marine Safety Act 2010 to omit the words "in accordance with the regulations (if any)", as regulations will not be made under this section.

Clause 29 paragraph (b) inserts new paragraph (aa) into section 306(2) of the Marine Safety Act 2010 to provide that the Safety Director or a relevant person may disclose information in connection with the administration of the Marine Safety Act 2010 or regulations made under that Act.

Clause 30 Clause 30(1) amends section 309(1)(b) of the Marine Safety Act 2010 to enable regulations to be made prescribing the application process for the transfer of a permission as well as the grant or issue of a permission.

Clause 30(2) amends section 309(1)(c) of the Marine Safety Act 2010 to enable regulations to be made prescribing the requirements to be complied with for the transfer of a permission as well as the grant or issue of a permission.

Clause 30(3) amends section 309(1)(j) of the Marine Safety Act 2010 to enable regulations to be made for the prohibition or regulation of government vessels and hire and drive vessels as well as recreational vessels in State waters based on the subject matter of the Prevention of Collisions Convention.

Clause 30(4) inserts new paragraph (la) into section 309(1) of the Marine Safety Act 2010 to enable regulations to be made prescribing services that can be provided by a person accredited under Division 3 of Part 8.1.

Clause 31 amends section 320 of the Marine Safety Act 2010 to clarify that the registration of a vessel granted under the Marine Act 1988 is taken to be a registration of a vessel under Part 3.1 of the Marine Safety Act 2010 from the commencement day for that Act until the registration of the vessel is transferred to another person. This will ensure the continuing validity of vessel registrations currently held by clubs and other organisations. It is necessary because from the commencement day, vessels will only be able to be registered in the name of natural persons.

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Clause 32 corrects a typographical error in section 335(1)(a) of the Marine Safety Act 2010 to refer to the cancellation of a personal watercraft endorsement under regulation 732 of the Marine Regulations.

Clause 33 amends an incorrect section reference in section 342 of the Marine Safety Act 2010 to refer to notices made under the section 15(1) or (2) in the Marine Act 1988 and not just section 15(1).

Clause 34 amends an incorrect section reference in section 360 of the Marine Safety Act 2010 to provide that a certificate of competency is taken to be a certificate of competency under section 78, not section 80.

Clause 35 Subclause (1) has the effect that the definitions of channel operator, local port, port, port of Melbourne, Port of Melbourne Corporation, port waters and Victorian Regional Channels Authority in section 3(1) of the Marine Act 1988 are no longer repealed by section 377(1)(a) of the Marine Safety Act 2010 as these terms are still used in the Marine Act 1988 and are therefore required to be continued.

Clause 35(2) substitutes section 377(1)(e) of the Marine Safety Act 2010 which makes consequential amendments to the Marine Act 1988 which will come into effect on the commencement of the Marine Safety Act 2010. The substituted provision amends the definitions of marine incident, marine licence and registered recreational vessel in section 3(1) of the Marine Act 1988 to provide that these terms have the same meaning as in the Marine Safety Act 2010. The definition of transport safety infringement is also inserted into section 3(1) of the Marine Act 1988 to provide that it has the same meaning as it has in section 228S of the Transport (Compliance and Miscellaneous) Act 1983.

Clause 36 inserts new sections 389A to 389D into the Marine Safety Act 2010.

New section 389A makes consequential amendments to section 61A of the Marine Act 1988 which relates to the effect of certain infringements. These amendments support the enforcement of infringements relating to offences involving alcohol using the infringements scheme established under the Transport (Compliance and Miscellaneous) Act 1983.

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New section 389A(1) amends the heading of section 61A of the Marine Act 1988 so that it reads "Effect of certain transport safety infringements".

New section 389A(2) amends section 61A(2) of the Marine Act 1988 to substitute the words "transport safety infringement notice" for "infringement notice".

New section 389A(3) amends section 61A(3) of the Marine Act 1988 to substitute the words "transport safety infringement notice" for "infringement notice".

New section 389A(4) amends section 61A(4) of the Marine Act 1988 to substitute the words "transport safety infringement notice" for "infringement notice".

New section 389A(5) amends section 61A(5)(a) of the Marine Act 1988 to substitute the words "transport safety infringement notice" for "infringement notice".

New section 389A(6) amends section 61A(6) of the Marine Act 1988 to substitute the words "transport safety infringement notice" for "infringement notice".

New section 389A(7) amends section 61A(7) of the Marine Act 1988 to—

substitute the words "transport safety infringement notice" for "infringement notice" wherever it occurs; and

to clarify that the infringement is a transport safety infringement prescribed for the purposes of Division 4B of Part VII of the Transport (Compliance and Miscellaneous) Act 1983.

New section 389A(8) amends section 61A(8) of the Marine Act 1988 to substitute the words "transport safety infringement notice" for "marine infringement notice".

New section 389A(9) amends section 61A(9) of the Marine Act 1988 to substitute the words "transport safety infringement" for "infringement".

New section 389B amends section 61B of the Marine Act 1988.

New section 389B(1) amends section 61B(1) of the Marine Act 1988 to substitute the words "transport safety infringement notice" for "marine infringement notice".

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New section 389B(2) amends section 61B(2) of the Marine Act 1988 to substitute the words "transport safety infringement notice" for "infringement notice".

New section 389B(3) amends section 61B(3) of the Marine Act 1988 to substitute the words "transport safety infringement notice" for "infringement notice" wherever these words occur.

New section 389B(4) amends section 61B(3A) of the Marine Act 1988 to reflect that—

the words "transport safety infringement notice" replace the words "infringement notice" wherever they occur; and

the words "marine licence" replace the words "operator licence".

New section 389C amends section 61BA of the Marine Act 1988.

New section 389C(1) amends the heading of section 61BA of the Marine Act 1988 so that it now reads "Suspension of marine licence for drink-operator transport safety infringements".

New section 389C(2) amends section 61BA(1)(a) of the Marine Act 1988 to reflect that—

in paragraph (a) the words "transport safety infringement notice" replace "marine infringement notice" and the words "registered recreational vessel" replace "regulated recreational vessel";

in paragraph (b) the words "transport safety infringement notice" replace "infringement notice" wherever they occur;

in paragraphs (c) and (d) the words "a marine licence" replace "an operator licence".

New section 389C(3) amends section 61BA(2) of the Marine Act 1988 to reflect that—

the words "transport safety infringement notice" replace the words "marine infringement notice";

the words "registered recreational vessel" replace the words "regulated recreational vessel";

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in paragraph (a), the words "marine licence" replace the words "operator licence";

in paragraph (b), the words "transport safety infringement notice" replace the words "infringement notice"; and

the words "a marine licence" replace the words "an operator licence".

New section 389C(4) amends section 61BA(4) of the Marine Act 1988 to substitute the words "marine licence" for "operator licence".

New section 389C(5) amends section 61BA(6) of the Marine Act 1988 to substitute the words "transport safety infringement notice" for "infringement notice".

New section 389C(6) amends section 61BA(7) of the Marine Act 1988 to substitute the words "marine licence" for "operator licence".

New section 389D amends 61C of the Marine Act 1988 to substitute the words "transport safety infringement notice" for "marine infringement notice".

Clause 37 inserts new subsection (3) into section 390 of the Marine Safety Act 2010 which repeals Part 7A of the Marine Act 1988. Part 7A deals with the impoundment and forfeiture of recreational vessels, which will be covered under Part 4.2 of the Marine Safety Act 2010 upon the commencement of that Act.

Clause 38 subclause (1) amends section 391(3) of the Marine Safety Act 2010. Clause 46 of this Bill repeals paragraphs (ce), (cf) and (jb) of section 65 which gives effect to the transfer of marine pollution functions from the Director, Transport Safety to the Department of Transport. Clause 38(1) repeals the balance of section 65, which will no longer be required when the Marine Safety Act 2010 comes into operation. The non-pollution functions in section 65 will then be located in the Marine Safety Act 2010. See clauses 46 and 47.

Clause 38(2) repeals section 391(4) of the Marine Safety Act 2010 which made a consequential amendment to section 65(jb) of the Marine Act 1988. The amendment is not needed because clause 37(1) provides for the repeal of the balance of section 65.

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Clause 39 makes a statute law revision to correct a typographical error in section 396(1)(a) of the Marine Safety Act to provide that in the heading to section 84 of the Transport (Compliance and Miscellaneous) Act 1983, after "matters", the words "marine safety matters" are inserted.

Clause 40 Clause 40(1) inserts a definition of marine or port law into section 228S(1) of the Transport (Compliance and Miscellaneous) Act 1983. Marine or port law is defined as—

a provision of the Marine Safety Act 2010 or any regulations made under that Act; and

a provision of the Marine (Drug and Alcohol and Pollution) Act 1988 (which the Marine Act 1988 will become upon commencement of the Marine Safety Act 2010) or any regulations made under that Act; and

a provision of regulations made under the Port Management Act 1995.

Clause 40(2) amends the definition of transport safety infringement law in section 228S(1) of the Transport (Compliance and Miscellaneous) Act 1983 to include marine or port law as a transport safety infringement law.

Clause 41 inserts new section 417A into the Marine Safety Act 2010. These new sections make amendments to the Transport (Compliance and Miscellaneous) Act 1983 that are to commence on the commencement of the Marine Safety Act 2010.

New section 417A(1) inserts new subsection (1A) into section 228ZZPA(1) of the Transport (Compliance and Miscellaneous) Act 1983 to provide that if a member of the police force has reason to believe that a person has committed a transport safety infringement in relation to a marine or port law, the member may serve a transport safety infringement notice on that person.

New section 417A(2) amends section 228ZZPA(2) of the Transport (Compliance and Miscellaneous) Act 1983 to provide that an offence under new section 228ZZPA(1A) for which a transport safety infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006.

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New section 417A(3) inserts new subsection 228ZZPA(4) into the Transport (Compliance and Miscellaneous) Act 1983. This section provides that if the transport safety infringement notice, in relation to a marine or port law, was served by a transport safety officer who is a Council staff member within the meaning of the Local Government Act 1989, the infringement penalty paid under Part 2 of the Infringements Act 2006 must be paid into the municipal fund of that Council. This section applies despite section 32(3) of the Infringements Act 2006.

Clause 42 Subclause (1) amends item 18 in Schedule 2 to the Marine Safety Act 2010 so that it provides that the issue of and the conditions which apply to exemptions from the requirement to hold safe construction and safe operation certificates can be prescribed in regulations.

Clause 42(2) amends item 20 in Schedule 2 to the Marine Safety Act 2010 to provide that the machinery and other equipment that must be carried in vessels can be prescribed in regulations.

Clause 42(3) inserts new item 20A in Schedule 2 to the Marine Safety Act 2010 to provide that the safety equipment that must be carried in vessels can be prescribed in regulations.

Clause 42(4) amends item 21 in Schedule 2 to the Marine Safety Act 2010 to provide that the use and maintenance of machinery and other equipment that must be carried in vessels can be prescribed in regulations.

Clause 42(5) amends item 22 in Schedule 2 to the Marine Safety Act 2010 to provide that requirements to ensure that machinery and other equipment that must be carried in vessels is accessible can be prescribed in regulations.

Clause 42(6) enables regulations to provide for the issue of identification marks, registration labels and plates and certificates of registration.

Clause 42(7) corrects an incorrect reference in item 42 in Schedule 2 to the Marine Safety Act 2010 to provide that regulations may be made relating to requirements concerning the disposal of obstructions to navigation removed under section 268 of the Marine Safety Act 2010 not section 811 which is currently listed in the Schedule.

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Clause 42(8) inserts new item 81A in Schedule 2 to the Marine Safety Act 2010 to provide that requirements to be met by applicants for marine licence or endorsement can be prescribed in regulations.

Clause 42(9) amends item 92 of Schedule 2 to the Marine Safety Act 2010 to provide that licences, certificates, registrations permits or authorisations granted by a recognised Classification Society may also be prescribed in regulations. Classification Society is defined in this clause as a member of the International Association of Classification Societies recognised by the Australian Maritime Safety Authority.

Clause 43 makes a statute law revision to section 419(4) of the Marine Safety Act 2010 by substituting that subsection with two new subsections. New subsection (4) substitutes "Marine Safety Act 2010" for "Marine Act 1988" in paragraph (c) of the definition of authorised person.

The clause also inserts new subsection (4A) which amends section 88A(2) of the Port Management Act 1995 to substitute "Marine Safety Act 2010" for "Marine Act 1988".

PART 3—AMENDMENT OF MARINE ACT 1988

Part 3 transfers marine pollution functions to the Secretary of the Department of Transport, and clarifies marine cost recovery provisions.

Clause 44 paragraph (a) amends section 3(1) of the Marine Act 1988 to provide definitions of Department and Secretary.

Department is defined as the Department of Transport.

Secretary is defined as the Secretary to the Department of Transport.

Paragraph (b) substitutes the definition of vessel in the Marine Act 1988 so that it has the same meaning as it has in the Marine Safety Act 2010.

Clause 45 Subclause (1)(a) amends section 38(3) of the Marine Act 1988 to put beyond doubt that costs and expenses may be recovered in incidents where pollution discharge is likely to occur and is successfully prevented.

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Clause 45(1)(b) amends paragraph (c) of section 38(3) to omit the words "used in a transfer operation" to put beyond doubt that costs may be recovered from the person in charge if a discharge occurs from any apparatus in any situation and not only if the apparatus is used in a transfer operation.

Clause 45(2) omits a reference to the Director in section 38(4). This amendment is consequential on the amendments being made by clauses 46 and 47.

Clause 46 repeals paragraphs (ce), (cf) and (jb) of section 65 of the Marine Act 1988. Clause 38 of the Bill amends the Marine Safety Act 2010 so that it revokes the balance of section 65 of the Marine Act 1988 on the commencement of the Marine Safety Act 2010.

Clause 47 inserts new Division 1A in Part 8 of the Marine Act 1988.

New section 71A details the functions of the Secretary to the Department of Transport with respect to marine pollution.

New section 71A(1) lists the functions of the Secretary to the Department of Transport. These are—

to advise the Minister on the operation and administration of marine pollution legislation; and

to ensure adequate means exist in ports to enable an effective response to marine pollution incidents within ports; and

to take action to deal with marine pollution incidents occurring in State waters which are not port waters; and

after consultation with the Environment Protection Authority, to develop, review, coordinate and administer the Victorian Marine Pollution Contingency Plan.

New section 71A(2) provides that the Secretary may do all things necessary or convenient to enable him or her to carry out functions under this Act, without derogating from any other functions or powers of the Secretary under any other Act.

New section 71B(1) gives the Secretary power to direct various bodies to participate in the Victorian Marine Pollution Contingency Plan. Participation can be by providing and maintaining equipment, training personnel and responding to marine pollution incidents as directed by the Secretary.

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The following bodies (a specified person or body) may be subjected to this power—

port management bodies, local port managers, waterway managers, channel operators, port operators, committees of management of Crown land within designated ports, oil terminal operators and chemical terminal operators; and

any other person or body, or person or body who is a member of a class of person or body, specified in an Order made by the Governor in Council. The Order must be published in the Government Gazette.

Clause 48 repeals item 22 and its heading in Schedule 4 to the Marine Act 1988. This repeal is consequential on the transfer of marine pollution functions from the Director, Transport Safety to the Secretary to the Department of Transport.

Clause 49 makes a statute law revision to the heading of section 126 of the Marine Act 1988 so that it reads "Magistrates' Court", not "Magistrate's Court".

PART 4—AMENDMENT OF PORT MANAGEMENT ACT 1995

Clause 50 substitutes section 49(c) of the Port Management Act 1995 to provide that the following are prescribed services for the purposes of Part 3 of the Essential Services Commission Act 2001—

the provision of channels for use by shipping in port of Melbourne waters, including the Shared Channels used by ships bound either for the port of Melbourne or for the port of Geelong;

the provision of berths, buoys or dolphins in connection with the berthing of vessels carrying container or motor vehicle cargoes in the port of Melbourne;

the provision of short term storage or cargo marshalling facilities in connection with the loading or unloading of vessels carrying container or motor vehicle cargoes at berths, buoys or dolphins in the port of Melbourne.

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Clause 51 inserts new subsection (3) into section 54 of the Port Management Act 1995 to provide that the Essential Services Commission may only make a determination in relation to prescribed services under section 54 with the approval of the Minister.

Clause 52 repeals the Victorian channels access regime in Division 4 of Part 3 of the Port Management Act 1995, which has never been used.

Clause 53 repeals the sunset provision in section 73R of the Port Management Act 1995 with the effect that Part 4A of that Act, which provides powers for the Port of Melbourne Corporation to regulate towage services in the Port of Melbourne continues to operate.

PART 5—AMENDMENT OF TRANSPORT INTEGRATION ACT 2010

Clause 54 repeals section 173(1)(b)(vi) of the Transport Integration Act 2010 and is consequential on the amendments made by Part 3 of the Bill, which transfer marine pollution functions from the Director, Transport Safety to the Secretary to the Department of Transport.

PART 6—REPEAL OF AMENDING ACT

Clause 55 repeals the Act on 1 October 2013. The repeal of the Act will not affect the continuing operation of the amendments made by it.

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