Dean Smith (WA, Liberal Party) Share this | Hansard source

I also rise this morning to make a contribution to the debate on this bill, the Marine Safety (Domestic Commercial Vessel) National Law Amendment (Improving Safety) Bill 2019. I think it's important to be very clear about a number of matters. Senator Brown's contribution reflected on how she believed something good was going to come out of the tragic circumstances of this loss of life. I'd argue that something good is already coming out of these tragic circumstances, and I add my applause and acknowledgment of the important work that Senator Sterle, from Western Australia, has done on this very, very important issue. Senator Rice was also correct: in her contribution, she said that this bill will keep people safe.

What is at dispute here is not whether or not the sentiment behind what Senator Sterle is trying to do is correct—because it is absolutely correct. I would challenge anyone in the Senate chamber to suggest that the sentiment in Senator Sterle's proposal here is incorrect; it's completely correct and is supported by everyone in this chamber. The point of difference is about what the best way is, what the more perfect way is, to deal with this particular set of very, very tragic circumstances. The government's view is that this is not a perfect bill. Senator Brown, in her contribution, said that this was a good bill. I don't dispute that. It is a good bill. But it is not a perfect bill. And so, when we're thinking about the safety of people at and on the sea, the legislative response from this chamber should be as perfect as it can be.

In the reading that I've done with regard to this debate, it's very clear that the Senate Rural and Regional Affairs and Transport Legislation Committee has done some very good work in exposing something Senator Patrick has talked about: that is, the recalcitrance—my word; I don't think anyone else has used that word—of the regulatory body that is responsible for overseeing marine safety in our country. It does appear to me that their response was too slow. Their reactions were too slow. But it's a testimony to the Senate committee process and to this chamber that AMSA has improved its response and its industry consultations around this particular issue. I think we're absolutely in agreement in this chamber; we disagree only on what is the right response.

The coroner's report has been mentioned a number of times in contributions from others, so I think it's important that we go back to it. I would like to share for the Senate chamber the detail of the coroner's report—what it actually said—rather than the paraphrasing that some Senate colleagues have used, in good faith, in their contributions. I will quote from the summary of the inquiry by the Coroner's Court of Western Australia into the death of Damien Mark Mills, delivered on 30 October 2017. At the very end, the summary states:

The Coroner noted that there was evidence that the deceased's death may have been preventable if his disappearance had been identified sooner.

That is exactly the point that Senator Sterle is making. Further:

The Coroner concluded the evidence underscored the need for simple processes, such as performing careful and orderly headcounts and supervising passengers properly while on board, which should be undertaken by the crew of a charter boat to ensure the safety of their passengers.

The Coroner found the deceased died on or about 31 October 2014 in the Indian Ocean approximately three nautical miles off Leighton Beach in circumstances consistent with immersion and found death was by way of accident.

The final paragraph states:

The Coroner did not make any recommendations but made the observation the Court had been informed by AMSA that they have understood the safety issues raised by the death of the deceased and it was AMSA's intention that steps will be taken to promote headcounts as a safety measure. The Coroner urged AMSA to ensure that safety systems be implemented and are duly carried out by operators with care and diligence.

I think this goes to Senator Patrick's point, which again I think is a fair one—and that goes to the issue of responsiveness. How responsive are our regulators, are our departments of government, in responding to what are very, very tragic circumstances? For the sake of completeness, let me go to the conclusion of the full report of the coroner. Paragraph 228, on page 47, states:

This was a particularly tragic case, involving the death of a hardworking father of a young family who went out for a simple day of socialising and networking as part of his business and never returned home. While his death was an accident, there was evidence that it may have been preventable if his disappearance had been identified sooner. The evidence underscored the need for simple processes, such as performing careful and orderly headcounts and supervising passengers properly while on board, to be undertaken by the crew of charter boats to ensure the safety of their passengers. If that had been done in this case, the deceased might still be alive today.

Paragraph 229, the final paragraph, is very important when we're considering the matter before us. That is: what is the appropriate response? There is no debate, no question, about whether there should be a response. What we are debating here is: what should be the nature, the precise form, of that response? Paragraph 229 states:

With the transition to a new national regulatory body, it is difficult to make any meaningful recommendations. However, I am informed by AMSA, who participated actively in the inquest, that they have understood the safety issues raise by the death of the deceased and it is AMSA's intention that steps will be taken, within the National Law framework, to promote headcounts as a safety measure. It is also important that AMSA do its best to ensure that safety systems implemented are duly carried out by operators with care and diligence. The knowledge gained from the tragic outcome of this case must form part of the safety message for the future, with the aim of ensuring that similar deaths are prevented.

So the government, in coming to a decision that this bill shouldn't be supported, is not arguing that the intent of what Senator Sterle is trying to achieve should not be supported—it should absolutely be supported. It's the responsibility of government, and I'm sure it would be the responsibility of an alternative government, to make sure that any legislative measure is as precise as it can be, and unfortunately this bill is not precise. It is heading in the right direction. The government has made it known that it's willing to engage with Senator Sterle on this particular matter. That's what I'm advised; if that's different, Senator Sterle, I'm happy to take that up for you. But I'm advised that the government is willing to continue to engage with Senator Sterle to make sure that a legislative response is necessary as opposed to changes to the marine order, which Senator McDonald alluded to.

But let's be clear: as drafted, the bill's proposed amendments require vessels to conduct headcounts of passengers even if they do not carry passengers and provide blanket exemptions for others such as public transport vehicles. The bill removes flexibility given to the Australian Maritime Safety Authority, the independent national safety regulator charged by this parliament to use marine orders to specify the technical safety requirements that are most effective in a given situation. This legislation could prevent or delay AMSA from implementing more robust safety requirements in future—for example, if better safety technology were to make headcounts redundant. This is a very, very important point. Some in this chamber believe this bill might remedy the situation that was characterised by Damien Mills's tragic death. The government is saying that this bill could actually prevent or delay AMSA from implementing more robust safety requirements—and I'm paraphrasing now—meaning it could imperil the safety of other people at sea in the future. It's a very heavy burden for people to carry to agree to the passage of this bill today only to find—heaven forbid that this is the case!—their actions today actually imperilled the safety of people in the future. That's a heavy burden for senators to carry.

No-one doubts the importance and significance of this particular piece of legislation. What the government is saying is that it is not as good as it needs to be. The government is saying that there is actually an alternative way to achieve the sentiment—the very, very, correct sentiment—that Senator Sterle is demonstrating through this legislation. That's a very, very heavy matter that I think Senate colleagues should be thinking about. The sentiment is not in dispute, but is this the right remedy?

Senator Patrick, if you don't mind me making these remarks, you are a senator whose contributions in this place are always very precise, whose contributions often go to what is the right way to correct or remedy an issue. I don't think this meets that high standard that you often apply in other particular areas with great care and with great precision. Unfortunately, this is not the right bill to deal with the matters that Damien Mills's tragic loss brought to the attention of the Senate. So I would caution senators greatly about whether or not it's right to mix sentiment with the precision that's necessary. They're two separate issues. The contributions from everyone—Senator Brockman, Senator Sterle, Senator Brown, Senator Rice and you, Senator Patrick—are clear. We want situations like this not to have to happen again and families not to have to deal with the tragic loss of someone that they love and care for. I don't think 'Damien's law' is the right way to do that.

The consultation process has been ongoing. The Senate committee has quite rightly put pressure on AMSA and made it accountable. The government is open to discussing these issues further so that the sentiment can be the best it can possibly be and any legislative response, if that is the right action, can be the best it can be, the most perfect it can be. At the moment, this is not a perfect bill. The safety of people, whether on land, in the air or on the sea, deserves precise bills. It deserves precise legislative responses.

So the government can't support this bill. I think the government's position might be a little bit clearer now than it might have been a few moments ago. The coroner's report is a sad but compelling record. The coroner could have been more prescriptive about what the suitable response would be, but it chose not to. It chose not to. So I think they are points that need to weigh very, very heavily on the shoulders of senators when they consider their contributions.