Marine Order 504 (Certificates of operation — national law) 2013

Link to law: https://www.comlaw.gov.au/Details/F2013L01174

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AMSA MO 2013/9
Marine Order 504 (Certificates of operation — national law) 2013
I, Graham Peachey, Chief Executive Officer of the Australian Maritime Safety Authority (the National Marine Safety Regulator under section 9 of the Marine Safety (Domestic Commercial Vessel) National Law), make this Order under subsection 163(1) of the Marine Safety (Domestic Commercial Vessel) National Law.
21 June 2013
Graham Peachey
Chief Executive Officer
Division 1     Preliminary...................................................................................................... 3
1         Name of Order.................................................................................................... 3
2         Commencement.................................................................................................. 3
3         Purpose............................................................................................................. 3
4         Power................................................................................................................ 3
5         Application of Order........................................................................................... 3
6         Definitions.......................................................................................................... 3
7         Existing vessels................................................................................................. 4
8         Applications under this Order.............................................................................. 5
Division 2     Requirements.................................................................................................. 5
9         Form of application............................................................................................ 5
10       Criteria for issue of certificate.............................................................................. 5
11       Conditions on certificate..................................................................................... 6
12       Form of certificate.............................................................................................. 7
13       Form of application for variation, suspension or revocation of certificate.............. 8
14       Criteria for variation of certificate......................................................................... 8
15       Criteria or purposes for suspension of a certificate of operation........................... 8
16       Prescribed period for suspension........................................................................ 9
17       Criteria for revocation of a certificate of operation................................................ 9
18       Notice of vessel sold, modified or sunk............................................................... 9
Division 3     Standards........................................................................................................ 9
19       Prescribed standards.......................................................................................... 9
Schedule 1  Vessels that must comply with National Standard for General Safety Requirements          10
Schedule 2  Kinds of vessels............................................................................................. 10
Schedule 3  Other vessels................................................................................................. 11
 
 
Division 1     Preliminary
1          Name of Order
                 This Order is Marine Order 504 (Certificates of operation — national law) 2013.
2          Commencement
                 This Order commences on 1 July 2013.
3          Purpose
                 This Order:
(a)   provides for certificates of operation for domestic commercial vessels; and
(b)   prescribes standards for the safe operation of domestic commercial vessels, compliance with which is a condition for certificates of operation.
4          Power
        (1)     Division 3 of Part 4 of the national law provides for regulations dealing with the certificates of operation.
        (2)     Section 80 of the national law provides for regulations dealing with the issue of certificates of operation permitting the operation of domestic commercial vessels by persons.
        (3)     Subsection 159(1) of the national law provides for regulations about matters required or permitted by the national law to be prescribed, or that are necessary or convenient to be prescribed, for carrying out or giving effect to the national law.
        (4)     Paragraph 159(2)(e) of the national law provides for regulations to prescribe standards for operation of domestic commercial vessels, paragraph 159(2)(f) provides for regulations to prescribe standards for crewing of domestic commercial domestic vessels and paragraph 159(2)(h) provides for regulations to prescribe standards for safety of domestic commercial vessels.
        (5)     Subsection 163(1) of the national law provides for the making of Marine Orders about matters that can be made by the regulations.
        (6)     Section 164 of the national law allows a Marine Order to provide for any matter by applying, adopting or incorporating any matter contained in any written instrument in force or existing from time to time including the NSCV and the USL Code.
5          Application of Order
                 This Order applies to persons who apply to the National Regulator for certificates of operation for domestic commercial vessels or for the variation, suspension or revocation of those certificates.
6          Definitions
        (1)     In this Order:
dangerous goods the goods listed in the International Maritime Dangerous Goods Code issued by the International Maritime Organization, as in force from time to time.
landing barge means a vessel designed for beaching to enable the loading and discharge of cargo or persons by foot or vehicle directly from or onto the shoreline without the use of wharfs or other shore side facilities.
National Standard for General Safety Requirements for Vessels means the standard of that name endorsed by the Standing Council on Transport and Infrastructure on 18 May 2012, as in force from time to time.
NSCV Part E means Part E — Operations of the NSCV.
Note 1   Some terms used in this Order are defined in Marine Order 501 (Administration —national law) 2013, including:
·         AMSA
·         national law
·         NSCV
·         reviewable decision
·         significantly altered.
Note 2   Other terms used in this Order have the same meaning that they have in the national law, including:
·         certificate of operation
·     domestic commercial vessel
·     National Regulator
·     owner.
        (2)     For this Order, a named qualification is the qualification of that name mentioned in NSCV Part D.
7          Existing vessels
        (1)     For this Order, a vessel is an existing vessel if a person was entitled to operate it commercially within the 2 years ending on 30 June 2013.
        (2)     However:
(a)   an existing vessel is taken to be a new vessel if the National Regulator considers that:
             (i)  it has been altered or modified to an extent that it must be reassessed against the construction, subdivision or stability standard that applies to it; or
            (ii)  its operations or area of operations have changed so that there is an increased level of risk; and
(b)   on application by the owner of an existing vessel — the National Regulator may determine that the vessel is taken to be a new vessel.
Note for subparagraph (a)(ii)   An increased level of risk may result from any of the following:
(a)     an upgrade in service category that will subject the vessel or persons on the vessel to an increase in risk;
(b)     an increase in propulsion power;
(c)     a change in displacement;
(d)     commencing overnight operations;
(e)     an increase in passenger numbers;
(f)      a modification that affects safety outcomes;
(g)     changes that require a review of stability.
8          Applications under this Order
                 An application under this Order must be made in accordance with Marine Order 501 (Administration — national law) 2013.
Note   A decision is reviewable in accordance with the review process mentioned in Marine Order 501 (Administration — national law) 2013.
Division 2     Requirements
9          Form of application
                 An application for a certificate of operation  must, in addition to complying with section 9 of Marine Order 501 (Administration — national law) 2013:
(a)   include the following:
             (i)  the name, address, phone number and email address (if any) of the applicant;
            (ii)  the kinds of operations to be conducted;
           (iii)  the vessel use category and operational area category of each vessel to which the application relates;
           (iv)  the unique identifier issued by the National Regulator for each vessel to which the application relates, or other vessel identification if no unique identifier has yet been issued; and
(b)   if it is for a vessel for which a certificate of survey must be in force — be accompanied by any of the following:
             (i)  the certificate of survey for the vessel;
            (ii)  a certified true copy of the certificate of survey for the vessel;
           (iii)  the number of the certificate of survey to be provided; and
(c)   if it is for a vessel to which Marine Safety (Certificates of survey) Exemption 2013 applies that is not an existing vessel — a declaration by the applicant that the vessel complies with any conditions mentioned in the exemption that apply to the vessel.
Note 1   Under subsection 47(1) of the national law, a person may apply to the National Regulator for a certificate of operation for 1 or more domestic commercial vessels.
Note 2   A fee may be charged — see National Law Act, s 6.
Note 3   For vessels mentioned in paragraph 9(c) — see Schedule 1.
10        Criteria for issue of certificate
                 For paragraph 48(1)(c) of the national law, the criteria for the issue of a certificate of operation by the National Regulator are as follows:
(a)   for each vessel for which the certificate is to be issued and a unique identifier is required — the vessel has a unique identifier (unless the identifier is to be issued with the certificate of operation);
(b)   for each vessel to which Marine Safety (Certificates of survey) Exemption 2013 applies that is not an existing vessel — the vessel complies with any conditions mentioned in the exemption that apply to the vessel;
 (c)  the applicant has declared in writing that a risk assessment, that includes measures to control identified risks, has been conducted;
(d)   for a class 1 vessel that is not an existing vessel — any safety management system that is required for any vessel to which the certificate applies complies with NSCV Part E;
(e)   for renewal of a certificate of operation — the applicant demonstrates compliance with NSCV Part E to the extent that it applies to the vessel.
Note 1   The applicant must also demonstrate appropriate competence and capacity for the safe operation of the vessel — see paragraph 48(1)(b) of the national law.
Note 2   For vessels mentioned in paragraph 10(b) — see Schedule 1.
11        Conditions on certificate
        (1)     For paragraph 48(4)(a) of the national law, a certificate of operation is subject to the following conditions:
(a)   for a class 2 or 3 vessel that is not an existing vessel, other than a kind of vessel mentioned in Schedule 1 or 3 — it must comply with NSCV Part E;
(b)   for a class 1 vessel that is not an existing vessel, other than a vessel mentioned in Schedule 3 — it must comply with NSCV Part E;
(c)   for a class 4 vessel that is not an existing vessel, other than a vessel mentioned in Schedule 3 — it must comply with the operational requirements of NSCV Part F;
(d)   for a kind of vessel that is mentioned in Schedule 1 and is not an existing vessel or a class 4 vessel — it must comply with NSCV Part E; and
(e)   for an existing vessel — it must comply with:
             (i)  the operational practices, emergency management requirements, crewing requirements, safety management requirements and audit requirements that applied to the kind of vessel on 30 June 2013; and
            (ii)  if it is a class 1 vessel — Part E of the NSCV by 1 July 2014;
(f)    for a vessel mentioned in Schedule 3 — the vessel must meet the outcomes of the NSCV;
(g)   each vessel to which the certificate applies must continue to meet any conditions to which the vessel is subject under:
             (i)  a certificate of survey; or
            (ii)  an exemption from the requirement to hold a certificate of survey;
(h)   each vessel to which the certificate applies must comply with all laws that apply to its operation;
(i)    each vessel to which the certificate applies must comply with any limitations on each operational area mentioned in the certificate for the vessel;
(j)    the holder of the certificate must tell the National Regulator in writing:
             (i)  at least 14 days before changing the nature of the operations of a vessel to which the certificate applies; or
            (ii)  at least 14 days before any alteration or replacement affecting the  electrical system, machinery or associated systems, stability, watertight integrity or subdivision or equipment type of a vessel to which the certificate applies; or
           (iii)  within 14 days if a matter recorded on the certificate is no longer accurate;
(k)   the certificate may be transferred to another person only if:
             (i)  the operation is transferred to another person; and
            (ii)  the National Regulator is satisfied that the criteria for the issue of the certificate of operation are met;
(l)    if the certificate is transferred — the National Regulator may impose conditions on the transfer;
(m)  a copy of the certificate must be clearly displayed on each vessel to which it relates, unless impracticable because of the size or use of the vessel;
(n)   the certificate expires at the earlier of:
             (i)  5 years after it is issued; or
            (ii)  an earlier date mentioned in the certificate.
Note 1   The National Regulator may also impose other conditions on a certificate of operation — see paragraph 48(4)(b) of the national law.
Note 2   For offences related to a certificate of operation — see sections 53 to 57 of the national law.
Note 3   A recreational user of a domestic commercial vessel (eg recreational diving from a hired vessel, recreational use of a hired houseboat) may have to comply with State or Territory legislation that applies to the activity — see Marine Safety (Domestic Commercial Vessel) National Law Act 2012, section 7.
        (2)     A requirement under this Order for a person to hold a qualification may be met if the person holds a qualification under Marine Order 3 (Seagoing qualifications) 2004, or a qualification issued in another country, that AMSA considers to be equivalent to the qualification required.
12        Form of certificate
        (1)     A certificate of operation must:
(a)   be in writing; and
(b)   include the following:
             (i)  the name of the holder of the certificate;
            (ii)  if the certificate comes into force on a day other the date of issue of the
                   certificate — the date it comes into force;
           (iii)  the date of expiry of the certificate;
           (iv)  the kinds of operations;
            (v)  the vessel use category and operational area for each kind of operation;
           (vi)  if the National Regulator considers necessary:
(A)    the unique identifier issued by the National Regulator for each vessel to which the application relates; and
(B)    the name, if any, of each vessel to which the certificate relates; and
(C)    each operational area of each vessel to which the certificate relates; and
(D)    for each vessel to which the certificate relates — if a certificate of survey must be in force for the vessel.
        (2)     A certificate of operation may include anything else the National Regulator considers relevant.
Note   For the term of a certificate of operation — see subsection 48(6) of the national law.
13        Form of application for variation, suspension or revocation of certificate
                 An application for variation, suspension or revocation of a certificate of operation for a domestic commercial vessel must, in addition to complying with section 9 of Marine Order 501 (Administration — national law) 2013, include the following:
(a)   a copy of the certificate of operation;
(b)   for an application for suspension — the period of suspension sought.
Note   Marine Order 501 (Administration — national law) 2013 requires a supporting statement setting out the grounds for the application. It also provides that if a fee is charged the application must be accompanied by the prescribed fee and, if a form is approved for the application, the approved form must be used.
14        Criteria for variation of certificate
        (1)     For paragraph 50(1)(b) of the national law, the criteria for variation of a certificate of operation by the National Regulator on application are that:
(a)   information in the certificate is no longer accurate; or
(b )  the vessel has been modified, damaged or sold.
        (2)     For subsection 50(2) of the national law, the criteria for variation of a certificate of operation by the National Regulator on the National Regulator’s initiative are:
(a)   the National Regulator becomes aware that a vessel to which the certificate applies has been significantly altered; or
(b)   the National Regulator considers that information in the certificate is no longer accurate.
15        Criteria or purposes for suspension of a certificate of operation
        (1)     For paragraph 51(1)(b) of the national law, criteria for the suspension of a certificate of operation by the National Regulator on application are:
(a)   the holder of the certificate has given the National Regulator a declaration that all the vessels mentioned in the certificate will no longer perform the operations mentioned in the certificate in the period for which the suspension is sought; and
(b)   any fees relating to the certificate have been paid.
        (2)     For paragraph 51(2)(b) of the national law, purposes for the suspension of a certificate of operation by the National Regulator on the National Regulator’s initiative are the following:
(a)   ensuring unpaid fees are recovered;
(b)   ensuring necessary repairs are made to a vessel
(c)   ensuring that a vessel is not operated in contravention of a direction, improvement notice or prohibition notice.
Note   The National Regulator may also suspend a certificate on its initiative if satisfied the suspension is necessary for other purposes (eg protecting human life) — see paragraph 51(2)(a) of the national law.
16        Prescribed period for suspension
                 For subparagraph 51(3)(b)(i) of the national law, the prescribed period of suspension is 6 months.
17        Criteria for revocation of a certificate of operation
        (1)     For paragraph 52(1)(b) of the national law, the criteria for revocation of a certificate of operation on application are that:
(a)   the holder of the certificate has given the National Regulator a declaration that all the vessels to which the certificate applies are no longer performing the operations mentioned in the certificate; and
(b)   any fees relating to the certificate have been paid.
        (2)     For subsection 52(2) of the national law, the criteria for revocation of a certificate of operation by the National Regulator on the National Regulator’s initiative are that:
(a)   the National Regulator considers it to be necessary in the interest of marine safety or protecting the environment; or
(b)   the certificate was issued erroneously.
Note   The National Regulator may also revoke a certificate of operation if satisfied that the holder is not a fit and proper person to hold the certificate — see subsection 52(3) of the national law.
        (3)     A certificate of operation may only be revoked by the National Regulator under subsection (2) if:
(a)   the National Regulator has given a show cause notice; and
(b)   within 30 days after the notice is given, the certificate holder has not given the National Regulator reasons that the National Regulator considers acceptable for not revoking the certificate.
18        Notice of vessel sold, modified or sunk
                 For paragraph 57(1)(b) of the national law, the holder of a certificate of operation must notify the National Regulator within 14 days after the sale, modification, sinking or scrapping of a vessel to which the certificate of operation applies.
Division 3     Standards
19        Prescribed standards
                 For subsection 159(2) of the national law, the National Standard for General Safety Requirements for Vessels, NSCV Parts D, E and F are prescribed standards.
Note   The NSCV is available on AMSA’s website at http://www.amsa.gov.au.
Schedule 1    Vessels that must comply with National Standard for General Safety Requirements
(paragraphs 9(b) and (c), 10(b) and 11(a) and (d))
Item
Kind of vessel

1.1
Class 2D or 2E that:
(a)   is 5 nm off the mainland
Schedule 3    Other vessels
(section 11)
       3.1     Waterski or wakeboard towing vessel, with an inboard engine
       3.2     Permanently moored vessel
       3.3     Ferry-in-chains
       3.4     Submersible or wing-in-ground effect craft
       3.5     Novel vessel for which the NSCV does not provide an appropriate technical solution
       3.6     Unpowered barge, other than a barge mentioned in clause 2.1 of Schedule 1
       3.7     Vessel used by a volunteer search, rescue, or search and rescue, organisation
Note
1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.