Marine Order 1, issue 2

Link to law: https://www.comlaw.gov.au/Details/F2011L02036

AMSA MO 2011/8
Marine Order 1, issue 2 (Administration)
I, Mick Kinley, Acting Chief Executive Officer of the Australian Maritime Safety Authority, make this Order under subsection 425 (1AA) of the Navigation Act 1912, section 24 of the Protection of the Sea (Harmful Anti-fouling Systems) Act 2006 and section 34 of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983.
Mick Kinley
Acting Chief Executive Officer
4 October 2011
Division 1     Preliminary................................................................................................... 3
1       Name of Order................................................................................................. 3
2       Commencement............................................................................................... 3
3       Repeal.............................................................................................................. 3
4       Purpose............................................................................................................. 3
5       Definitions for this Order................................................................................ 3
Division 2     Interpretation of Marine Orders.................................................................. 3
6       Definitions....................................................................................................... 3
7       Survey authorities............................................................................................ 4
8       Provisions......................................................................................................... 4
9       AMSA managers.............................................................................................. 4
10     Penal provisions............................................................................................... 4
Division 3     Application and review process................................................................... 5
11     Applications to which this Division applies..................................................... 5
12     Form and content of application...................................................................... 5
13     Request for further information etc................................................................. 6
14     Notification of applicant of progress of application........................................ 6
15     Period for consideration of application............................................................ 7
16     Decision on application and notification of decision....................................... 7
17     Reviewable decisions....................................................................................... 7
18     Internal review of decisions............................................................................. 7
19     Review by AAT............................................................................................... 8
Division 4     Approved forms.......................................................................................... 8
19     Approved forms............................................................................................... 8
Schedule 1    Survey authorities........................................................................... 9
Division 1     Preliminary
 
1          Name of Order
                 This Order is Marine Order 1, issue 2.
2          Commencement
                 This Order commences on the day after it is registered.
3          Repeal
                 Marine Orders Part 1 — Incidental Marine Order, issue 1 is repealed.
4          Purpose
                 The purpose of this Order is to facilitate the consistency and shortening of Marine Orders by setting out:
(a)   rules of interpretation that generally apply to all Marine Orders; and
(b)   generic provisions that a Marine Order may adopt.
5          Definitions for this Order
                 In this Order:
Act means the Navigation Act 1912.
decision maker, for a decision, means the holder of an AMSA office mentioned in an Order as the decision maker for an application under the Order made in accordance with the application process set out in this Order.
equivalent, for an approval mentioned in an Order, has the meaning given in the Order that provides that a person may apply for the approval for an equivalent to be fitted, used or carried.
equivalent guideline, for an approval mentioned in an Order, has the meaning given in the Order that provides that a person may apply for the approval of an equivalent guideline.
IACS means the International Association of Classification Societies Ltd.
surveyor — see section 6 of the Act.
Division 2     Interpretation of Marine Orders
 
6          Definitions
                 In a Marine Order, unless otherwise provided:
AFS Act means the Protection of the Sea (Harmful Anti-fouling Systems) Act 2006.
AMSA means the Australian Maritime Safety Authority established by the Australian Maritime Safety Authority Act 1990.
AMSA Act means the Australian Maritime Safety Authority Act 1990.
General Manager, Maritime Operations Division means the person occupying the position of General Manager, Maritime Operations Division, AMSA.
IMO means the International Maritime Organization.
Manager, Marine Environment Standards means the person occupying the position of Manager, Marine Environment Standards, AMSA.
Manager, Ship Inspection and Registration means the person occupying the position of Manager, Ship Inspection and Registration, AMSA.
Manager, Ship Operations and Qualifications  means the person occupying the position of Manager, Ship Operations and Qualifications, AMSA.
Marine Order means an order made under subsection 425(1AA) of the Navigation Act, section 24 of the AFS Act or section 34 of the Pollution Prevention Act.
MARPOL — see subsection 3(1) of the Pollution Prevention Act, meaning of the Convention.
Navigation Act means the Navigation Act 1912.
Pollution Prevention Act means the Protection of the Sea (Prevention of Pollution from Ships) Act 1983.
SOLAS — see subsection 187A(1) of the Navigation Act, meaning of the Safety Convention.
USL Code — see subsection 427(1) of the Navigation Act, meaning of Code.
Note   Other terms used in Marine Orders have the same meaning as they have in the Act or Acts under which they are made  — see section 6 of the Navigation Act, section 3 of the AFS Act and section 3 of the Pollution Prevention Act.
7          Survey authorities
                 For the definition of survey authority in section 6 of the Act, each corporation or association mentioned in Schedule 1 is approved.
8          Provisions
                 A reference in a Marine Order to a section, subsection, paragraph, subparagraph, clause or subclause of another Marine Order may be taken to be a reference to a part of the other Order that is termed a ‘provision’ or described by another term.
9          AMSA managers
       9.1     A reference in a Marine Order to the Manager, Ship Inspections is taken to be a reference to the Manager, Ship Inspection and Registration.
       9.2     A reference in a Marine Order to the Manager, Environment Protection Standards is taken to be a reference to the Manager, Marine Environment Standards.
10        Penal provisions
                 A provision followed by the phrase ‘This is a penal provision’ is a penal provision under the legislation under which the provision is made.
Note 1 Subregulation 4(1) of the Navigation (Orders) Regulations 1980 provides that a person who fails to comply with a provision of an Order made under subsection 425(1AA) of the Navigation Act that is expressed to be a penal provision is guilty of an offence and is punishable by a fine not exceeding 50 penalty units. Subregulation 4(2) provides that an offence against subregulation 4(1) is an offence of strict liability. Regulation 4 of the Protection of the Sea (Prevention of Pollution from Ships) Orders Regulations 1994 is a similar provision about provisions of Orders made under the Pollution Prevention Act. Section 24 of the AFS Act provides that Orders made under that Act cannot impose penalties for contravention of the Orders.
Note 2   For an act or omission constituting an offence under 2 or more laws, see section 4C of the Crimes Act 1914.
 
Division 3     Application and review process
 
11        Applications to which this Division applies
     11.1     This Division applies if a Marine Order provides that a person may apply, in accordance with the application process set out in this Order, to AMSA for any of the following:
(a)   an approval for an equivalent to be fitted, used or carried in or on a ship;
(b)   an approval for an equivalent guideline;
(c)   an exemption of a ship or a person from a requirement of the Order;
(d)   an approval for a modification of a requirement of the Order to apply to a       ship or a person.
     11.2     This Division also applies to any other matter that a Marine Order provides is a matter for which an application must be made in accordance with this Order.
11.3     A Marine Order that provides that an application must be made in accordance with this Order may vary the process set out in this Order as it applies to the application.
Example
The period for consideration of the application may be varied.
12        Form and content of application
     12.1     An application mentioned in section 11:
(a)   must:
             (i)  be in writing; and
            (ii)  be in the approved form, if any; and
           (iii)  be accompanied by the application fee, if any; and
           (iv) include a supporting statement setting out the grounds for the application; and
            (v)  include any other information or document that an Order requires be included: and
(b)   may include any other information or document the applicant considers relevant to the application.
Example for subparagraph (a)(v)
A Marine Order may require information in accordance with an international agreement that Australia has implemented.
Note 1   AMSA may also determine fees for processing applications under Marine Orders — see section 47 of the AMSA Act.
Note 2   Giving false or misleading information in an application is an offence — see section 338 of the Criminal Code.
     12.2     An application for an approval of an equivalent guideline must also mention the guideline for which approval is sought and why the applicant considers it meets the requirements of the Order that would otherwise apply.
13        Request for further information etc
     13.1     The decision maker may, in writing, ask the applicant to provide any information or document that the decision maker reasonably considers necessary for  consideration of the application.
Note    More than 1 request may be made under this section.
     13.2     The decision maker may, in writing, ask any of the following to provide any information, document or agreement that the decision maker reasonably considers necessary for consideration of the application:
(a)   the government of another country;
(b)   an international organisation;
(c)   a Commonwealth agency or other Commonwealth body;
(d)   a State or Territory agency or other State or Territory body responsible for maritime safety or environmental protection;
(e)   a person performing maritime safety or environmental protection functions.
Examples for paragraph (e)
1        Companies that provide cargo testing services.
2        Survey authorities and surveyors.
Note   More than 1 request may be made under this section.
14        Notification of applicant of progress of application
                 If the decision maker asks for information, a document or an agreement under section 13, he or she must tell the applicant, in writing:
(a)   if the information, document or agreement has been requested under subsection 13.2 — that the information, document or agreement has been requested and from whom; and
(b)   about the effect of the request on the period for consideration of the application.
15        Period for consideration of application
                 An application must be considered:
(a)   if no request for further information or documents is made under section 13 — within 90 days after the decision maker receives the application; or
(b)   within 90 days after the decision maker receives all the information, documents or final responses requested under section 13; or
(c)   if the decision maker does not receive all the information, documents or final responses requested under section 13 within a reasonable period for the kind of request — within 90 days after that period.
16        Decision on application and notification of decision
     16.1     The decision maker must, within the period mentioned in section 15:
(a)   decide the application; and
(b)   tell the applicant, in writing:
             (i)  the decision on the application and any conditions imposed; and
            (ii)  the reasons for the decision if:
(A)    the decision is not to approve the application; or
(B)    it is an application for an exemption and the decision is not to grant the exemption.
Note    A Marine Order that provides that an application may be made to AMSA in accordance with this Order may set out criteria to be considered by the decision maker when deciding the application.
     16.2     If the decision maker does not decide the application within the period mentioned in section 15, the decision maker is taken to have decided:
(a)   not to approve the application; or
(b)   if it is an application for an exemption —not to grant the exemption.
17        Reviewable decisions
                 A decision mentioned in section 16 is a reviewable decision.
18        Internal review of decisions
     18.1     A person who is affected by a reviewable decision may apply, in writing, to AMSA for internal review of the decision before the later of the following:
(a)   90 days after:
             (i)  notification of the decision; or
            (ii)  if the decision is not notified within the period mentioned in section 15 — the end of that period;
(b)   a longer period determined by AMSA.
18.2     The General Manager, Maritime Operations Division must, on receipt by AMSA of the application, review the reviewable decision.
     18.3     The General Manager, Maritime Operations Division must:
(a)   affirm the reviewable decision; or
(b)   make any other decision that he or she considers appropriate.
     18.4     The General Manager, Maritime Operations Division must tell the applicant, in writing, of the outcome of the internal review within 28 days after the application for internal review was received.
     18.5     A notice under subsection 18.4 must include:
(a)   a statement to the effect that, if the applicant is dissatisfied with the decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for review of the decision; and
(b)   a statement to the effect that the applicant may request a statement of reasons under section 28 of that Act.
     18.6     Failure to comply with subsection 18.5 for a decision does not affect the validity of the decision.
19        Review by AAT
                 A person affected by a decision under subsection 18.3 may apply to the Administrative Appeals Tribunal for review of the decision.
Division 4     Approved forms
 
19        Approved forms
                 If AMSA approves a form for a particular purpose in an Order, the approved form must be used for that purpose.
Note   AMSA may, in writing, approve a form for a provision of an Order made under the Act or the Pollution Prevention Act — see section 6F of the Act and section 3A of the Pollution Prevention Act.  Approved forms are available on the AMSA website at http://www.amsa.gov.au.
Schedule 1          Survey authorities
(section 7)
 
Item
Corporation or association
Acronym
Website

1
 American Bureau of Shipping
ABS
http://www.eagle.org

2
 Bureau Veritas
BV
http://www.veristar.com

3
 China Classification Society
CCS
http://www.ccs.org.cn

4
 Det Norske Veritas
DNV
http://www.dnv.com

5
 Germanischer Lloyd
GL
http://www.gl-group.com

6
 Korean Register of Shipping
KR
http://www.krs.co.kr

7
 Lloyd’s Register
LR
http://www.lr.org

8
 Nippon Kaiji Kyokai
Class NK
http://www.classnk.or.jp

9
 RINA S.p.A
RINA
http://www.rina.org

 
Note   These recognised bodies are members of  IACS. AMSA has an agreement with each of these classification societies for the provision of survey and certification services for vessels registered in Australia. The websites, and the acronyms that are used by IACS for these bodies, were current on commencement of this Order.
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.
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