Thursday, 18 October 2018
Maritime Legislation Amendment Bill 2018; Second Reading
This bill, the Maritime Legislation Amendment Bill 2018, seeks to clarify legal questions concerning the nature of marine orders made by the Australian Maritime Safety Authority. Its practical effect would be to ensure that marine orders have the same legal status as regulations, including that they include penalties for noncompliance. The changes make sense, and they have my support.
Where there is confusion or doubt on whether the legislation accurately reflects the intentions of the parliament, we must make whatever changes are necessary to clarify the collective will of this parliament. Indeed, we should always ensure that parliament provides the community with certainty in the law.
However, while we're considering this important issue, we should also reflect on our responsibility to provide certainty over the existence of an Australian shipping industry and certainty as to the jobs that Australians rely upon. For the past five years, this government has undermined Australian shipping, seeking to expose it to unfair competition in coastal trade from foreign-flagged vessels paying their crews third-world wages. This has created five years of uncertainty for the Australian shipping industry and Australian seafarers.
Labor will always support changes that enhance Australian shipping, create jobs or, as is the case today, amend legislation to clarify legal ambiguities. But what we won't do is undermine Australian industry and undermine Australian jobs. Put simply, those opposite want to replace the Australian flag on the back of Australian ships with the white flag of surrender when it comes to Australian jobs. That is the wrong approach. We should be nurturing the Australian shipping industry. We should be promoting job creation and job security. That's the principle behind the amendment that I will now move. I move:
That all the words after "That" be omitted with a view to substituting the following words:
"whilst not declining to give the bill a second reading, the House:
(a) despite the Government’s repeated claims, its proposed changes to coastal shipping legislation are all about eliminating Australian jobs, and ultimately the entire domestic industry; and
(b) during this Government’s period in office, 12 previously Australian-flagged vessels have been reflagged to foreign States; and
(a) it is in the national interest to ensure a level playing field between foreign and domestic shipping operators; and
(b) Australia’s vital economic, environmental and national security interests are best served when there is a viable, competitive and growing local shipping industry".
Can I outline the context of this legislation that's before the House today? The Marine Safety (Domestic Commercial Vessel) National Law Act 2012 and the Navigation Act 2012 give AMSA the ability to make what are known as marine orders. Marine orders are designed to be legislative instruments allowing AMSA, as the regulator, to keep pace with developments in a rapidly changing industry. Essentially, the idea is that these regulations can be changed at periods of time in order to ensure that the appropriate regulatory regime is kept up-to-date and that there is certainty and consistency. Indeed, when the Navigation Act 2012 was introduced, it replaced the Navigation Act 1912—for 100 years we'd sat on that legislation. It took a Labor government to modernise the legislation that covered Australian shipping.
Marine orders are generally practical in their nature. For example, marine order 15 relates to fire protection for ships. Marine order 17 concerns regulations for carrying dangerous liquids. The original intention of marine orders, as defined in the Navigation Act 2012, was that they would be legally enforceable and, particularly, would include a provision for penalties for noncompliance. However, the government has lately faced some legal questions concerning the enforcement of marine orders. This legislation clarifies the situation by giving marine orders the status of regulations, as was the original intention. The amendment to the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 inserts a definition for 'regulations' that includes marine orders, with relevant exceptions. The amendment to the Navigation Act 2012 makes the same change. Labor supports these changes. There's no room for legal ambiguity over issues such as the ones that I raise: fire protection and the carriage of dangerous liquids. These are not issues of partisan disagreement; they are issues of common sense. As the national regulator, AMSA does a very good job in this regard.
The parliament should also provide clarity over the security of the Australian coastal shipping industry, because the existence of this sector is fundamental to our national interest, given that we are an island continent. Yet, from the moment the coalition took office, and indeed before that, they have sought to undermine the industry. They want to cut costs, without any regard to whether that cost cutting is actually real. It is so dedicated to undermining the people who work in the Australian industry who happen to be members of trade unions that their solution to eliminating members of the maritime sector who are trade unionists is to eliminate the jobs that exist. That's their plan. No maritime sector? No Maritime Union of Australia. This is the logical conclusion of anyone who actually looks at the legislation that's been put forward by the government opposite. Tragically, it has been the National Party that has been in charge of this—the National Party, the party whose name implies standing up for the national interest, the party which historically arose out of an approach, in part, to protectionism and regulation of Australian industry.
Now, we don't say that there should be a protectionist model in the Australian shipping industry. We don't go the way that many countries have gone—for example, the United States with the Jones Act, where, if you want to take goods from San Francisco to Los Angeles, you have to have a US flagged ship built in the US and with US seafarers on it. It is a completely closed system for their coastal shipping. Indeed, Australia has one of the most open systems in the world. But what we don't support is the idea that an Australian flagged ship should have to compete with a foreign flagged ship with fewer regulations, less maintenance and less wages, because we know that that isn't a level playing field. That's why the 2012 reforms sought to genuinely have a level playing field through a range of measures, including taxation measures, so that the cost differential between a ship that was flagged in a Third World country or a country like Singapore that has a zero rate of taxation would not be at an advantage over an Australian ship.
The fact is that the changes that were sought in 2015 were about eliminating the Australian shipping industry. It actually said it in the regulatory impact statement, where it said that 93 per cent of the savings that were estimated to result from that legislation were a direct result of the difference between Australian wages and foreign wages. It also said that it anticipated that the Australian flag would be removed from ships and be replaced by foreign flags. We saw that in really practical and specific terms as the debate went on.
Perth businessman Bill Milby of North Star Cruises came to a seminar. In all of the seminars and launches of this policy the big hint was where the National Party ministers launched the policy. They launched it at events hosted by the foreign shippers. It was a bit of a hint. It's a bit like when Pauline Hanson moves a resolution on race: you kind of know where that's going. So you launch a policy that you say is about the Australian shipping industry and you launch it at an event hosted by foreign shippers—and, of course, foreign shippers are called Shipping Australia. That's what the foreign shipping organisation is called, because they know that it's untenable not to be seen to be supporting Australian shipping, because most Australians would think it's just a bit of common sense to have an Australian shipping industry as we are an island continent.
Bill Milby, a quite successful businessman and owner of North Star Cruises, goes along to this forum. He's listening to what these reforms are and he's a smart fellow. This business has been operating up around the Kimberley very successfully. It has been employing Australians and bringing dollars into the Australian economy from international visitors who, as Mr Milby says, actually want to hear an Australian accent while they're travelling around the pristine areas of the Kimberley and northern Australia. He has provided employment for crew, for cooks and for all the people who work for his company.
He goes up to the deputy secretary of the department and says: 'I can't see how, if these changes come in, I can compete. How can I possibly compete?' and he is told, 'Well, this is how you compete: you replace the Australian flag on the back of your vessels with a foreign flag and you replace your Australian staff with staff from the Philippines or some other nation. That's how you compete.' That's what he was told. He gave this evidence at the Senate committee into the legislation. He has said this outside of parliament as well. We know it's true because the legislation said it was in the regulatory impact statement. Quite extraordinary. Here we had an Australian government proposing legislation and providing advice to businesses that was specifically designed to put Australians out of work. In more than two decades in this place, I've never seen such a flagrant betrayal of the national interest by representatives in this chamber.
But the fact is that crossbench senators wouldn't have a bar of it. They put the national interest first. Former Senator Nick Xenophon, when I went to see him about the legislation, said, 'Well, I always vote for second readings.' In general, the crossbench has had a view that you vote for the second reading—not the amendments; the second reading—because it allows for further debate. It may well be that there are amendments that make legislation acceptable. But what happened with this legislation is it didn't even get a second reading. That's how bad it was. That doesn't happen too often in the Senate. I've dealt with a range of legislation in my portfolio, and it's the only time I can remember that they just said, 'No, go away; this is absurd.'
Just last month there was another tranche of legislation debated here in the House of Representatives. They came back. We had Minister Truss introduce the first legislation. Then we had Minister Chester introduce the second bit of legislation. We had Minister Joyce sit on the legislation. Then we had Minister Cormack. It's a revolving door. This mob speak about the parliament. I'd like to be able to say to the House that I, as shadow minister, am the best shadow minister there's ever been because I knock over a minister every few months. But I can't, in all honesty, say that this isn't self-inflicted as much as anything else. The fact is that last month we had debate on the latest tranche of legislation, maritime legislation from 2016. It took from 2016 to 2018 to get a second reading debate in this place. They'll go through another four ministers before it gets to the Senate. It's just extraordinary. The fact is, in spite of the government saying that they'll consult with Labor about shipping legislation, they essentially haven't sought to get any bipartisanship—you have one meeting, then the next time there's a new minister. Maritime Industry Australia Limited, MIAL, the peak industry body, a bunch of businessmen involved in an industry, regard the government as having treated them with contempt, because the consultation for the new legislation was all with the foreign shippers rather than with them as well.
Why do we need a shipping industry? Firstly, of course, it's clearly in our national economic interest. We are a maritime nation. Most of our exports and imports, close to 99 per cent of them, come and leave via our coast on ships. We rely on the maritime sector to train the people who become harbour masters and run our ports. It is essential for our national economy that those skills be maintained.
Secondly, there is the issue of our environment. We know that every time a major incident has occurred—Shen Neng;Pacific Adventurer—they have something in common: there's a foreign flag on the back of the ship. People aren't as familiar with our coastlines, with the pristine nature of our reefs. The accidents that have occurred have caused great damage, but the potential is there for a catastrophic event that would have enormous impact on our national economy.
The third reason is national security. There's a direct link between the defence industry and our merchant fleet. That's why, when we established an organisation to look at the maritime workforce development, we had the Navy represented on it. It was chaired by a former Public Service Commissioner. We had the Navy, we had the Australian shipping industry, we had the Maritime Union of Australia, we had the Australian Institute of Marine and Power Engineers and we had the Australian Maritime College down at Launceston. They all came up with a plan for workforce development, a common interest. They had funding of just $5 million from the government to make this plan work. What did this government do when they came to office? They scrapped it. They took the $5 million and scrapped the plan. The fact is that there is a direct link, and, in times of conflict, the merchant fleet has suffered great losses—during World War II, for example.
When this government speak about national security, when they speak about us stopping boats, we didn't think that meant stopping ships with an Australian flag on the back, but that's precisely what they've done. They've done it through abuse of the existing regulations. Take, for example, the Portland.The Portland operated from Portland in Victoria, where the refinery is, picking up the natural resources from over in Western Australia and essentially going to and fro with the natural resources, down to Portland and back again. There was nothing temporary about it. It was a permanent, two-destination voyage that had operated for many years. Yet this government allowed it to be replaced with a foreign-flagged vessel with a foreign crew. The government said that the journey and those regional jobs based in regional Victoria could be replaced by jobs offshore in the Philippines and other destinations. Somehow that was temporary. It's just a complete abuse of the legislation; it's an outrageous indictment of the government's failure to implement what is the law. Yet the government, of course, were completely determined to do that, because they don't seem to understand the synergy which is there between our naval and our merchant fleets.
Our Australian seafarers undergo very stringent background checks. They have to have an MSIC. Foreign seafarers don't have MSICs, but they operate in our ports and in our harbours. The government should think about where ships are, what they have on board and the potential issue for national security that this represents if the proper checks aren't made. I say to the government: don't say that you didn't know about it if there is an incident. Don't say it, because this is called Hansard, and I'm saying in it that there are national security interests in Australia having an Australian fleet operating around our coasts. And don't say that you don't understand the economic reasons for why we need an Australian shipping industry. Don't say that you're not aware of the Pasha Bulker, the Shandong Hai Wang, the Pacific Adventurer and, in New Zealand, the Rena, which I flew over with the New Zealand transport minister. Essentially, that incident had an enormously damaging impact on the environment and also on the economy of the region around Auckland and the north coast of the North Island of New Zealand.
The fact is that Labor does understand the importance of the shipping sector and the need to provide Australian seafarers with secure work. In government we created the Australian International Shipping Register, allowing operators of Australian-flagged vessels to employ mixed Australian and foreign crews on internationally agreed rates and conditions. We enacted the first major rewrite of the nation's maritime laws. That was consistent with the other work that we did on the National Ports Strategy. We made sure that the oil companies pay for any and all damage their ships may cause. We had to fix legislation to fix that. We replaced the myriad laws that operated separately from state to state with just one national regulator administering one set of modern nationwide laws.
By contrast, the coalition have completely undermined the Australian shipping industry. As I said at the outset, I'm all for certainty in legislation, but I'm also an advocate for job certainty for Australian seafarers and investment certainty for the Australian shipping industry. It is in Australia's economic, environmental and national security interests to maintain a vibrant Australian shipping industry. It is also the case—to give a comparison that I think is appropriate—that, if you want to take freight from Sydney to Melbourne down the highway, you use a truck that's registered in Australia; you have a truck driver with an Australian licence; and you are obligated to pay Australian wages. If you take those same goods down the blue highway, which is free from Sydney to Melbourne, you can have a foreign-flagged ship with foreign wages and foreign conditions, regardless.
What that does as well, as the Australian rail industry has pointed out, is to distort the market across transport modes towards foreign ships. That's over Australian jobs in the rail sector, in particular, but also in the roads sector. That's a distortion that, again, undermines Australian conditions and wages.
If we're going to compete in the Asian century, we can't compete on the basis of how low we can drive our wages. We need to compete on the basis of how smart we are, how innovative we are, how creative we are as a nation—creating the jobs of the future. This government doesn't seem to understand that. In spite of the Reserve Bank saying that wages being reduced in real terms is a problem for the national economy, in areas like this what we see is that they have contempt for Australian industrial conditions. There should be no difference between the blue highway and the Hume Highway. It's a very simple principle of operation.
The fact is that those opposite do want to replace the Australian flag on the back of Australian ships employing Australian seafarers with the white flag of surrender when it comes to Australian jobs, and it is much to their shame that they remain determined to pursue this course after five years of destructive attitudes towards Australian shipping.
I second the amendment.
It gives me great pleasure to rise to speak to this bill and particularly to the amendment moved by the shadow minister. I will always get to my feet whenever I can to speak on coastal trading and the maritime fleet in Australia. What's happened under this government and, indeed, under the previous Howard government with respect to our maritime fleet and our maritime workers has been a disgrace in terms of jobs and, particularly, national security and fuel security, which I'll come to a little bit later.
Australia is an island continent, surrounded by water in every direction—north, south, east, west. My own state is an island state of our island country, and we recognise our geographical peculiarity in our national anthem, noting 'Our home is girt by sea'. Unless you fly, the only way to get here is by sea. You cannot drive or walk to Australia from any other country in the world, and in this we are unique. Every other country in the world you can get to by land; this is the only country inhabiting an entire continent and it requires either a plane or a ship to get to it.
You would think that, as an island connected to other nations only by water and air, Australia would have a maritime flee the envy of the world, developed over 200 years of colonial, intercolonial, interstate and international trade. You would think that Australia would be producing the world's best maritime engineers, world-class shipbuilders, the best civilian sailors and officers, the best technicians, the best navigators not only for an Australian fleet but to send out to the world to give the world the best-trained maritime fleet officers and staff. But no. Our maritime fleet in Australia is all but in mothballs, sacrificed on the altar of neoliberalism. Our maritime self-reliance has lost out to greedy corporations and multinationals and to foolish coalition governments more interested in saving a few dollars in sailors' wages than in protecting our national security. We have a government that has absolutely destroyed our domestic shipping industry and annihilated our domestic maritime fleet. For some reason, the coalition—those opposite—has never seen the benefit that these industries offer to Australia and to our economy.
I was at a function at the parliament this week with the Maritime Industry Australia Limited representatives the shadow minister talked about earlier in his speech. At that occasion, the Minister for Defence turned up and extolled the virtues of what he was doing with the Defence program, the shipbuilding, the subs and all that. People were looking on thinking, 'What on earth is this guy talking about?' These were representatives of commercial shipbuilders, and he was going on about a naval shipbuilding program. They could only look on in wonder and think, 'We're missing out on this.' Why can't the minister and this government see that our Defence capabilities are just as important as our merchant capabilities? They just don't see it. They are blind to the implications.
Similarly, they turn a blind eye to the absolute rorting of the temporary licences for foreign vessels in Australian waters. Australia's coastal shipping industry, under various Liberal governments since Howard, has eroded and virtually disappeared. The shadow minister made reference to the Portland, a vessel that travelled the same route between Western Australia and Victoria for 27 years. It was crewed by Australians and flagged as an Australian vessel, but, under this government—under those opposite—it's been allowed to be deflagged and recrewed by foreign crews under foreign conditions, despite plying a domestic route.
If the sea route that it took was just a few kilometres inland, it wouldn't be allowed. It would be illegal to have foreign workers on foreign conditions on a foreign registered vessel adhering to foreign maintenance standards using Australian land based conditions and roads. It would be disallowed. We require that vehicles on Australian roads and Australian highways adhere to Australian conditions and Australian law, but, somehow, even though it's still in Australia but on the water, all those rules are out the window. And why? It's because you save a few dollars in wages. It's an absolute disgrace.
My own state was the sorry last resting place of the Alexander Spirit, the very last Australian crewed fuel tanker, where a crew was basically forcibly removed and told: 'That's it. We're replacing you with foreign crews.' Australia no longer has fuel delivered to Australia by Australians. What does that do to our fuel security? It means we are entirely reliant on foreign nationals and foreign crews in foreign vessels.
Labor supports this bill. As the shadow minister has said, marine orders are critical to the successful operations of ships that come to Australia, and, as such, those marine orders need to be enforceable. There need to be penalties for noncompliance and there needs to be clarity. They are critical components of the successful and safe operation of ships. As regulations made under Commonwealth legislation, marine orders are a flexible instrument that allow our laws to keep pace with the often fast-paced technical and technological change in marine safety and implement Australia's international maritime obligations.
Australia currently has two series of marine orders. One is marine order 198, which generally fulfils our international obligations and expectations and applies to Australian and foreign vessels, as well as some domestic commercial ships. We also have marine orders 500 to 507, which apply solely to domestic commercial vessels. Marine orders dictate behaviour and activity on a range of issues, including fire and emergency safety, garbage and waste disposal, working and living conditions, skill and health requirements for crew, and safe navigation and traffic processes.
All industries are governed by regulations. Whether they be specific to safety requirements or environmental management, they are important components of industry operations. Marine orders, in particular, provide flexible and responsive measures that can fill gaps not filled explicitly by legislation. Marine orders are created by the Chief Executive Officer of the Australian Maritime Safety Authority, who delegates their enforcement to a range of AMSA staff. This bill offers sensible and necessary reform. There can be no question, and there must be no question, of the legal authority or enforceability of marine orders.
I come back to the second reading amendment. This government has overseen the demise of our fleet and our capability as a merchant marine nation. I just can't believe what it's done. The shadow minister is similarly aghast at how those opposite almost take perverse pride in what they've achieved with their coastal shipping legislation.
No, no. Don't mislead the House. Your coastal trading legislation is decimating Australia's maritime capability. What we on this side of the House did in 2012 was introduce legislation that allowed for temporary licences—temporary licences—which those opposite, in government, have absolutely rorted. As the shadow minister alluded to, we had a system which was a commonsense system whereby foreign vessels importing goods into this country could, upon bringing their goods in, move from one port to another port with the same crew—without having to replace the entire crew with Australians. They were from another country, they'd dropped off their cargo, and they could make another trip on a domestic route. That was a sensible allowance under the temporary licence. What those opposite have allowed is for foreign vessels to come in and then do business, almost exclusively, around the coastal trading routes. That's a big difference, and it's killed the maritime fleet in Australia.
I want to come briefly to an exceptional speech given at the Australian Naval Institute by Lieutenant Commander Desmond Woods. He gave this speech at the Australian merchant navy day of remembrance on 8 April this year. He spoke at some length about the contribution of the merchant fleet in wartime. It's often forgotten and neglected when we come to remember those who've sacrificed everything for the nation. We often forget the contribution of the merchant fleet, and the men and women of the fleet. Lieutenant Commander Woods said:
The Merchant Navy of the whole British Empire, which included the Australian Merchant Fleet, suffered proportionately the highest casualties of any of the allied services in the Second World War. Thirty thousand two hundred and forty eight British Empire merchant seamen who served at sea under the red ensign lost their lives doing so. The Australian Department of Veterans Affairs nominal roll records 3,500 Australian merchant seamen serving in World War II in Australian registered ships. The Australian War Memorial has placed the names of 845 of them, who are known to have died on war service during World War II, on the commemorative roll.
These are men, and perhaps some women, who didn't take up arms. They were serving in the merchant fleet during wartime and they died during their service. They were absolutely some of the bravest men and women this country has ever seen. We'll never know the true number of Australians who died, because there were many who served in British and international fleets and they're not included among those 845.
The contribution of the merchant fleet is often forgotten when, on Anzac Day and Remembrance Day, we come to teach schoolchildren about the contribution of our armed services. We often forget the merchant seamen. I'm pleased to say that the War Memorial and the official records don't forget them; they are appropriately recognised in official records. But, in the national consciousness, we often forget the contribution of our merchant seamen. They have made an incredible contribution to this country, and it must never be forgotten.
The lieutenant commander goes on to say:
This omission from the national recollection is most profoundly true of the period of the campaign in New Guinea in 1942. Those brutal battles on the Kokoda track were finally won because the Japanese army was cut off from re-supply and was starved into retreating. First Australian and later also American troops in the jungle and on the northern beaches at Gona and Buna were supplied with bread and bombs, bacon and bullets and fuel in vast quantities from the sea and were therefore able to take the fight back to the Japanese. New Guinea was won back from the enemy by the combination of the matchless courage and endurance of young soldiers and airman ashore and by the merchant seamen afloat who supplied them and the RAN who escorted those ships.
A combined national effort won that iconic battle that turned the tide in that great struggle. It wouldn't have happened without the contribution of the merchant fleet. But where is that merchant fleet today? If we were to have a conflict of that magnitude on our doorstep today, would we be able to resupply our troops from an Australian maritime merchant fleet? No, we would not.
That's why I support the shadow minister's second reading amendment. We must do all we can to rebuild our merchant fleet and support the men and women of Australia's maritime industry.
The Maritime Legislation Amendment Bill 2018 makes important machinery changes to the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 and the Navigation Act 2012. These acts establish key parts of Australia's regulatory framework for maritime safety and protection of the marine environment. Primarily, the bill will insert a definition of the term 'regulations' into each act, to clarify that this term includes legislative instruments known as marine orders. This clarification is necessary to ensure the regulatory framework operates as intended. Provisions of each act rely on vessel owners and individual seafarers operating or working on vessels complying with requirements of regulations, such as requirements to hold valid safety or pollution certificates. The bill provides important legal clarity and certainty that existing obligations and requirements for individual seafarers and vessel owners include requirements set out in marine orders.
In practical terms, the machinery changes made by the bill will have no impact on maritime industries operating under these acts. Individual seafarers and vessel owners will continue to comply with the same requirements set out under the existing acts, regulations and marine orders in the same manner as today and continue to be subject to the existing compliance framework. Use of marine orders is a longstanding practice to deal with detailed technical and operational requirements and processes and to give effect to international obligations and standards. Australia's maritime industries are familiar with this practice. Marine orders are used to set out potentially complex standards and requirements in the clearest and simplest manner possible, to help the maritime industry to understand and comply with their obligations.
Use of marine orders also ensures these requirements are set out in a consistent and familiar way which is easily and freely accessible in one place on the Australian Maritime Safety Authority's website. They are also registered and freely available on the Federal Register of Legislation. Marine orders are legislative instruments for the purpose of the Legislation Act 2003, which means that they are subject to crucial parliamentary scrutiny and disallowance. Importantly, the explanatory memoranda for the Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 and Navigation Bill 2012 make clear that policymakers intended marine orders, rather than the acts or regulations, to continue to be used to set out these operational and technical matters and requirements, in line with longstanding regulatory practice. This bill gives effect to that intent.
The amendments made by this bill will ensure Australia's regulatory framework for maritime safety and the protection of the marine environment continues to function as intended—efficiently, effectively and consistent with international law. This framework is vital to ensure the safe operation of vessels in Australia's waters and to ensure seafarers and passengers aboard these vessels return home safely.
This framework is also vital for protecting Australia's pristine coastal and marine environments, including our internationally recognised areas of outstanding national significance, such as the Great Barrier Reef. I would like to thank honourable members for their constructive contributions to this debate. I commend the bill to the House.
The original question was that the bill now be read a second time. To this the honourable member for Grayndler has moved as an amendment that all words after 'That' be omitted with a view to substituting other words. So the immediate question is that the amendment be agreed to.
Original question agreed to.
Bill read a second time.