Marine Enforcement Policy
Under the Marine Safety Act 2010 (Vic) (MSA), one of Maritime Safety Victoria's responsibilities is to develop and implement a state-wide Marine Enforcement Policy to guide marine safety compliance and enforcement activities across Victoria. This policy gives effect to that responsibility.
Historically, Maritime Safety Victoria and its predecessors had responsibility for safety regulation of both commercial vessel operations and recreational boating. However, with the commencement of the National System for Domestic Commercial Vessel Safety (the National System) on 1 July 2013, the Australian Maritime Safety Authority (AMSA) has assumed responsibility for the safety regulation of Victoria's commercial vessel fleet, through the administration and enforcement of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012(Cth) (National Law).
Therefore, commercial vessel safety regulation (in relation to vessel and operator certifications) is outside the scope of this policy which is primarily focused on compliance and enforcement of regulatory obligations relating to recreational boating, navigational safety and port safety.
The Marine Enforcement Policy sets out:
- the purpose and scope of the policy, including relevant legislation and the parties responsible for administering it
- the roles of the parties involved in marine safety compliance and enforcement
- an overall approach to compliance and enforcement, including general enforcement principles, a graduated and integrated approach to compliance and enforcement as well as guidance on when particular marine safety regulatory tools under the MSA and Transport (Safety Schemes Compliance and Enforcement) Act 2014 (Vic) may be used.
Maritime Safety Victoria (MSV) is a branch of Transport Safety Victoria (TSV).
When first published, this policy referenced working with divisions from the former Department of Transport, Planning and Local Infrastructure (DTPLI). This has been updated below to simply refer to 'various Victorian Government divisions'.
The purpose of this policy is to support and promote ongoing compliance and enforcement of marine safety law throughout Victoria in accordance with Part 8.3 of the MSA. Furthermore, it facilitates TSV’s vision of striving for excellence in transport safety regulation through leading and promoting a consistent regulatory approach.
This document sets out guiding principles and decision-making criteria for the use of enforcement and compliance monitoring tools by enforcement agencies and officers. More specifically, the intended objectives of this policy are to:
- document the roles of the various parties involved in marine safety enforcement
- facilitate a consistent, effective and efficient approach to marine enforcement and compliance monitoring
- guide the exercise of investigation and enforcement powers under relevant marine safety law.
This policy does not seek to cover how any substantive obligations under marine safety law should be interpreted, nor when associated information/ evidence-gathering powers should be exercised.
This policy applies to those parties responsible for enforcing relevant marine safety law, namely:
- transport safety officers (TSOs)
- members of the police force
- any person employed or engaged by port management bodies, local port managers and waterway managers
- any other parties responsible for aspects of marine safety law.
3.1 Marine safety legislation
The scope of this policy is enforcement and compliance monitoring of “relevant marine safety law” within the meaning of the MSA. This includes:
- the MSA, MSR and waterway rules made under the MSA, published as the Vessel Operating and Zoning Rules (VOZR)
- the Marine (Drug, Alcohol and Pollution Control) Act 1988 (Vic) (MDAPCA) and associated regulations
- the Port Management Act 1995 (Vic) (PMA) and regulations made under the PMA
- section 37 of the Pollution of Waters by Oil and Noxious Substances Act 1986 (Vic) or any regulations made under that Act for the purposes of that section.
The relevant marine legislation aims to provide generally for safe marine operations, including imposing a range of safety duties, regulating the ‘permissioning’ of vessels, masters, harbour masters, pilotage service providers, pilots, managing the use of and navigation of vessels, and compliance with nationally agreed standards. It also prohibits being under the influence of drugs/ alcohol and manages the response to marine pollution incidents.
However, the primary focus of this policy is the administration and enforcement of the MSA, the MSR and waterway rules made under the MSA.
As a safety regulator, TSV’s Maritime Safety Branch has no role in administering or enforcing marine pollution or port management laws. Administration of this legislation is the responsibility of a number of divisions of Victorian Government. While TSV advocates the adoption of the approach outlined in this document by all relevant agencies, the extent to which each is able to do so will vary depending on organisational and legislative constraints.
3.2 Responsible parties
Several agencies and entities are responsible for administering and enforcing Victoria’s marine safety legislation. These include:
- TSV’s Maritime Safety Branch – responsible for administering and enforcing, the MSA, MSR and waterway rules made under the MSA. TSV also exercises functions and powers relating to marine drug and alcohol regulation under the MDAPCA.
- Victoria Water Police – responsible for enforcing the MSA, MSR, waterway rules made under the MSA, and marine drug and alcohol regulation under the MDAPCA.
- Port and waterway managers – responsible for enforcing the MSA, MSR, waterway rules made under the MSA through the deployment of TSOs.
- Various Victorian Government divisions are responsible for administering the marine pollution regime under the MDAPCA.
4.1 A multi-agency approach to compliance and enforcement
Compliance and enforcement activities are carried out by a number of agencies. The combined activity of these agencies achieves sufficient treatment of marine safety risks and establishes a positive safety culture among maritime duty holders. The activities of these agencies are discussed below.
4.2 The role of TSV’s Maritime Safety Branch
The Safety Director and TSV’s Maritime Safety Branch are primarily responsible for the administration of marine safety law.
TSV’s Maritime Safety Branch carries out its regulatory activities in line with TSV’s overarching Regulatory Approach Policy, which should be read in conjunction with this policy. In general, this approach means TSV aims to use its resources to target specific, identified marine safety problems to minimise the prevalence of incidents resulting in death and serious injury on the water.
Accordingly, marine compliance and enforcement activities are driven by the public interest in safe marine transport and recreation in Victoria and are aimed at maximising:
- duty-holders’ understanding of their legislative obligations
- duty-holders’ voluntary and consistent compliance with these obligations
- a positive safety culture across the marine sector.
4.2.1 Graduated approach to compliance and enforcement
TSV’s Maritime Safety Branch utilises a graduated approach to compliance and enforcement in order to achieve the best utilisation of compliance and enforcement resources. This approach recognises that both compliance and enforcement tools are necessary to maximise duty holder understanding and compliance with obligations and to affect a positive safety culture. Therefore, in undertaking compliance and enforcement activities, TSV will utilise the most appropriate mechanism dependant on the situation. In many cases it will mean primarily focusing on providing information, guidance and education in the first instance and using the least interventionist tool to achieve the desired regulatory outcome. This minimises regulatory burden while maximising public value for regulatory resources. Further details regarding this approach are contained in section 5.3.
The approach may also mean that a suite of tools is deployed to address an identified maritime problem. This will occur where TSV considers that the tools are complementary and will achieve the most reach across duty holders. It also recognises that in many cases, the use of one tool will not, on its own, achieve the desired outcome.
TSV’s Maritime Safety Branch utilises intelligence gathering and analysis to asses risk and then target enforcement activity to achieve effective and efficient compliance outcomes.
TSV’s Maritime Safety Branch has developed a regulatory action plan process. This ensures that its enforcement activities are focused in areas where its intelligence gathering and analysis capabilities can be advantageously utilised, such as emerging risks or significant incidents. For example, compliance activity might be targeted at:
- particular high-risk activities or issues, such as fire safety, PWC use or offshore kayaking
- particular locations where high rates of non-compliance have been reported.
4.2.3 Educational programs
Educational programs have historically been very effective in achieving higher levels of compliance in the maritime safety. TSV deploys educational programs where there is a perceived lack of understanding of safe behaviour and the reason for non-compliance may relate to a person’s lack of appreciation of risk.
Educational programs are also used to support enforcement activities by aiming to build awareness of regulatory obligations.
4.2.4 Targeted compliance programs
TSV has developed capacity in its people to undertake a range of compliance activities. These people have undertaken all of the necessary training to be appointed as TSOs under the TSSCEA. TSOs have a wide range of compliance monitoring and enforcement powers under the TSSCEA.
This capacity includes a dedicated on-water team of Maritime Safety Officers as well as other members of the branch who undertake compliance activities from time to time. TSV undertakes compliance activities where it is identified that particular marine safety problems will be best treated by exercising enforcement powers. This does not mean that TSOs will only utilise enforcement actions to treat a problem, it is normal practice for these tools to be used in conjunction with providing advice and guidance in an on-water setting.
TSV also conducts a range of audits to ensure that duty holders are complying with their obligations under marine safety law. These audits are generally programmed based on risk, however, they may include an element of random audits. This program will also feed back into the intelligence gathering function and assist TSV to create a clearer picture as to safety awareness and culture within the industry.
4.3 External transport safety officers
A key mechanism by which compliance and enforcement activities are undertaken involves the Safety Director appointing external persons to act as TSOs. Enforcement staff of other government agencies, for example, Parks Victoria, port management or waterway management bodies are examples of people who can be appointed to act as TSOs.
Before appointing a person as a TSO they are required to satisfactorily complete TSV’s TSO Training Package. They must be able to demonstrate to the Safety Director that they are suitably qualified, trained and have a sound understanding of the responsibilities and limitations of the role that they are appointed to undertake.
External TSOs are delegated a limited range of powers dependent on a variety of factors, including the nature of the issues and risks on their waterway and their employing organisation’s degree of activity as a waterway manager. This ensures that they only have the powers necessary to undertake compliance functions relevant to the activities being undertaken on the waterways they manage. In relation to the commercial vessel fleet, the focus of external TSOs activities is on compliance with waterway management rules.
4.4 Victoria Water Police
Victoria Water Police’s role in marine compliance and enforcement complements that of TSV, both by providing regular state-wide coverage and also by providing efficient and effective deployment of a range of enforcement tools. In addition, Victoria Water Police officers play a critical role in marine safety more broadly, through on-water law enforcement and coordination of marine search and rescue. The Victoria Water Police provides a 24-hour first response service which patrols Port Phillip and Western Port bays and other waterways throughout Victoria including coastal, enclosed and inland waters.
The resourcing and structure of the Victoria Water Police enables the provision of state-wide operational policing in a way that other agencies cannot efficiently achieve. This typically includes:
- undertaking regular waterway patrols
- conducting compliance and enforcement activities related to the marine safety legislation including (but not limited to):
- vessel registration compliance checks
- marine licence checks
- compliance checks on operators with respect to requirements to carry certain prescribed items of safety equipment
- compliance checks on operators and occupants with respect to requirements to wear personal flotation devices
- issuing of infringement notices for identified non-compliances
- providing advice to the Safety Director on the effectiveness of vessel operating and zoning regulation
- where appropriate, participating in TSV’s maritime safety education campaigns
- collecting of marine incident data for incidents occurring in Victorian state waters.
The Victoria Water Police also maintains a Marine Intelligence Unit, which assists with investigations of stolen vessels and other criminal activity on the water.
The Water Police officers investigate boating accidents and fatalities and prepare inquest briefs for the coroner in accordance with its coronial investigation obligations. Victoria Police (normally by tasking the Water Police division) conducts investigations involving criminal offences that have occurred on-water. In many of those instances it may be that breaches of relevant marine safety law are identified. The investigations will, from time to time, result in prosecution. TSV provides assistance to Victoria Police on those matters where requested.
Note: The Safety Director is the responsible person for the administration of Marine Safety Law and is the designated administrative decision maker under the MSA. In some instances, the Safety Director may commence disciplinary action against the permissions held by a duty holder and this may occur at the same time as a Victoria Police investigation.
4.5 Port managers and waterway managers
Port management bodies, local port managers and waterway managers are key participants in Victoria’s marine safety framework. In addition to being duty-holders themselves, they are also responsible for regulating the waters under their control.
Key port and waterway managers include the Port of Melbourne Corporation, Parks Victoria (local port manager for Port Philip, Western Port and Port Campbell) and Gippsland Ports and the local port manager for the Gippsland Lakes. Staff of port or waterway managers may be appointed as TSOs for the purposes of providing effective on-water enforcement on the waters under their control.
The role of port and waterway managers in marine safety compliance and enforcement complements that of TSV’s Maritime Safety Branch and Victoria Water Police by providing a strong focus on local safety issues. Waterway managers also play a critical role in regulating the safety of boating activities and events on their waterways.
5. Compliance and enforcement
5.1 Enforcement principles
In line with good practice regulation, the Safety Director encourages enforcement functions to be exercised in accordance with the following principles:
- risk focus
- transparency and accountability.
5.2 Graduated and integrated compliance and enforcement
As set out above, the Safety Director promotes a graduated and integrated approach to marine safety compliance and enforcement. To the extent reasonably practicable, parties involved in enforcing marine safety laws should have regard to this approach.
Marine safety law provides a wide range of compliance and enforcement tools to promote marine safety.
Generally, the least interventionist measure necessary to achieve the desired regulatory objectives should be utilised first. This will help to maximise public value and provide effective use of regulatory tools. However, a graduated approach does not mean that tools must only be used sequentially or in isolation, nor that stronger enforcement tools should not be used immediately if safety requires. In each case, consideration should be given to the full range of tools available.
At a minimum, the choice of tool, or combination of tools, should take account of the following factors:
- public interest - which regulatory tool is most likely to achieve the general public’s interest to maintain safe marine transport for all Victorians, including to promote public confidence in marine safety
- immediate nature of breach - what are the nature and circumstances of the breach of relevant marine safety law (for example, the gravity of the immediate safety risks, potential/actual detriment caused)
- broader impact of breach - what are the broader repercussions of the breach (for example, the effect on other duty-holders or the public if it is not adequately addressed)
- impact of proposed action - which regulatory tool is most likely to effectively address the harm, maximise future compliance and is proportionate to the risk
- circumstances of duty-holder - what are the relevant circumstances of the duty-holder, including their:
- willingness to comply
- capacity to comply
- past history of breaches and likelihood of repeat breaches
- previous and current responses to breaches
- other mitigating or aggravating circumstances
- current risk areas identified - whether the breach falls within identified critical safety risks.
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This policy is available to download as a Word document: Marine Enforcement Policy DOC, 200.0 KB