Australia is a signatory to various International Maritime Organization (IMO) and International Labour Organization (ILO) Conventions, which aim to ensure that ships are maintained and operated safely.
The Navigation Act 2012 provides powers so that in some circumstances, AMSA may direct that:
- a ship must not enter or use any port, or a specified port/s, in Australia or the exclusive economic zone (EEZ) of Australia.
- a ship must comply with specified requirements while it:
- is approaching, entering, or using any port, or a specified port or specified ports, in Australia or the EEZ of Australia
- is in or is leaving any port, or a specified port or specified ports, in Australia or the EEZ of Australia.
The power to give these directions is in section 246 of the Navigation Act 2012. This section does not specify a minimum or maximum duration for refusal of access or how long conditions need to be complied with.
AMSA’s decision to refuse access, and the period of refusal, will depend on the facts and circumstances. In making a decision to refuse access, AMSA will consider the performance of both the ship and the operator. All decisions are considered on a case by case basis and are made observing AMSA’s Statement of Regulatory Approach, Compliance Strategy and Compliance and Enforcement Policy.
Powers within the Navigation Act 2012 do allow for indefinite banning of entire fleets and failure to comply with directions carry extensive penalties.
In support of that decision making process, AMSA intends to take the following general approach to the use of this power. This information is a general guide provided for transparency. It is intended to guide consistency, fairness and proportionality in AMSA decision making. However, this guidance, including the timeframes specified, is not limiting and the final decision will be based on the circumstances posed by each case.
Port State control performance
AMSA may consider issuing a direction refusing access to Australian ports where AMSA observes that a ship has a poor port State control (PSC) record or there are concerns about the performance of the operator.
Read the refusal of access list.
With PSC performance for individual ships the following general principles will be applied:
- Refusal of access for 3 months—may be issued:
- Where a ship has been detained then released with conditions to carry out corrective action, but returns to Australia without the corrective action having been taken.
- Where a ship has incurred three detentions in a two year period and has not been previously issued a direction.
- Refusal of access for 12 months—where a ship has previously been issued a direction and is detained within two years of the expiry of the refusal period under that direction (while under the same operator). The nature of previous detentions that resulted in the initial direction may also be taken into consideration.
- Refusal of access for 24 months—where a ship has previously been issued two directions and is detained within two years of the expiry of the refusal period under the second direction (while under the same operator). The nature of previous detentions that resulted in the initial direction may also be taken into consideration.
When considering ship performance we will also look at the performance of the company as a whole. Where this is deemed unacceptable the periods detailed in these general principles may be extended.
AMSA also analyses the overall performance of companies whose ships come to Australia. The analysis of the company’s ship performance will be over a 24-month period, with a minimum of 10 PSC inspections conducted by AMSA in that period.
Where a company’s average detention rate is found to be at or above 1.5 times the preceding 12-month average detention rate for all ships, AMSA will consider the company as Poor Performing.
Once AMSA has determined that a company is poor performing, it will be formally notified and will be required to present a formal rectification plan to AMSA within 28 days of the receipt of the notification. The plan should outline steps that will be undertaken by the company to improve the performance of its ships. AMSA will publish details of companies identified as poor performing on our website.
AMSA will continue to monitor the PSC performance of a company’s ships coming to Australia for a period of 12 months. If a ship from the company is detained in that 12-month period AMSA will review the effectiveness of the rectification plan to improve performance and the company’s detention rate. AMSA may then decide to issue a direction to refuse access to Australian ports for that ship.
If after a 12-month period the poor performing company’s average detention rate in Australia has decreased below 1.5 times the average detention rate, then they shall be formally notified that they are no longer considered a poor performing company. The company’s details will be removed from the AMSA website when the company is formally notified, they are no longer a poor performing company.
Additionally, or in combination with the general principles above, a direction to refuse access may be issued where:
- A significant breach of Australian legislation has occurred.
- The effectiveness of the ship operator’s management system is considered to pose a significant risk to the welfare of seafarers, their safety or Australia’s marine environment.
- The standards of some ships managed by an operator are so poor as to cast significant doubt on the standards of other vessels managed by the same company. We may consider directions in respect to other vessels of that operator.
- A vessel owner or operator is found to have knowingly and intentionally acted in a manner to underpay or deny payment to seafarers working on their ships. Where such action is detected and it is clear the owner or operator has acted in a manner to hide this from authorities the vessel may be refused access for a period at least 12 months.
A direction resulting from a new detention in Australia will generally have effect as soon as the ship leaves the Australian port or anchorage following the clearance of the latest detainable deficiency.
We may vary the direction to allow access to a specific port in the event of force majeure or overriding safety considerations. Specific requirements may be imposed on the owner, operator or the Master of the ship to ensure safe entry in those circumstances.
Directions requiring compliance
A ship’s current circumstances or non-compliance history may result in issuing a direction requiring compliance with specific requirements while the vessel is approaching, entering, using or leaving any port, or specified port/s in Australia or its EEZ.
These requirements will be applied having given consideration to the nature and level of risk posed to the welfare and safety of seafarers, ships and the marine environment.
Such directions will be additional to port State control actions and may be applied where it is considered specific action is required by the Master and/or operator in order to address identified risks.
Examples of such situations include:
Ship Performance:
- Refusal of access for 3 months—may be issued:
- Where a ship has been detained then released with conditions to carry out corrective action, but returns to Australia without the corrective action having been taken.
- Where a ship has incurred three detentions in a two year period and has not been previously issued a direction.
- Refusal of access for 12 months—where a ship has previously been issued a direction and is detained within two years of the expiry of the refusal period under that direction (while under the same operator). The nature of previous detentions that resulted in the initial direction may also be taken into consideration.
- Refusal of access for 24 months—where a ship has previously been issued two directions and is detained within two years of the expiry of the refusal period under the second direction (while under the same operator). The nature of previous detentions that resulted in the initial direction may also be taken into consideration.
Operator performance
When considering port State control performance, AMSA will look at the performance of the operator as a whole. AMSA may refuse access to a ship or extend a period of refusal of access given to a ship where the performance of ships operated by the same operator is unacceptable. Where AMSA review operator and vessel performance and identify significant systemic failings, AMSA will write to the operator advising them of the concerns and placing them on notice that their ships calling at Australian ports may be subject to increased scrutiny. If systematic failings by an operator in relation to its vessels are serious enough, AMSA can issue a direction to the operator’s fleet. Where operators are identified as a poor performer, AMSA may implement additional compliance activities. These will be charged at AMSA's standard hourly rate as per the AMSA fees determination.
Breaches of the Maritime Labour Convention 2006
The Maritime Labour Convention 2006 provides the minimum requirements relating to the working and living conditions of seafarers. As a signatory to this convention, AMSA actively uphold these requirements. Where the rights of seafarers are denied through failings of the operator, owner or master, AMSA will consider a direction that a ship, or fleet of ships, be refused access to Australia.
While the criteria above provides an escalation in compliance approach, in cases where AMSA identifies that an operator or master, or both has acted knowingly and intentionally to underpay or deny payment to seafarers, AMSA will normally issue a direction for three to six months depending on the duration and extent of underpayment. Where such action is detected and it is clear that the owner, operator, or master has acted to deceive or hide this from authorities, the ship may be refused access for a period of not less than 12 months.
AMSA may consider a longer period of refusal where:
- systemic and repeated failings are observed, or
- where seafarers have been coerced to assist with deceiving authorities, or
- the operator, owner or master fails to acknowledge the seriousness of the situation or take appropriate action to rectify the failings, or
- a combination of factors illustrate the denial of a seafarers rights under the Maritime Labour Convention 2006.
Commencement of a direction
A section 246 direction which is given after the detention of a ship in Australia will generally have effect as soon as the ship leaves the Australian port limits following the rectification of its last detainable deficiency.
AMSA may vary a direction to allow access to a specific port in the event of force majeure or overriding safety considerations. Specific requirements may be imposed on the owner, operator or master of the ship to ensure safe entry in those circumstances.
Directions requiring compliance
A ship’s current circumstances or non-compliance history may also result in AMSA giving a direction requiring compliance with specific requirements while the vessel is approaching, entering, using or leaving any port, or specified port/s in Australia or its EEZ.
These requirements will be specified by AMSA having regard to the nature and level of risk posed to the welfare and safety of seafarers, other ships and the marine environment by the ship.
Such directions will be additional to port State control actions and may be applied where it is considered specific action is required by the master or operator, or both, in order to address identified risks.
Examples of such situations include:
- Non-compliance with the Maritime Labour Convention such as payment of wages, crew welfare or seafarer employment agreements.
- Poor management of fatigue and hours of work/rest.
- Lack of compliance with mandatory reporting requirements such as ReefREP.
- Carriage of inadequate and out-of-date nautical charts and publications.
- Failing to exercise sound navigation practices including; passage planning, identification of hazards and lack of understanding of designated shipping areas (within the Great Barrier Reef Marine Park).
- Inappropriate procedures and use of equipment required by MARPOL.
AMSA will determine the period of time that a direction requiring compliance will remain in force, depending on the severity of non-compliance. There are no limits on how long this period may be.
Where AMSA observes failings across a fleet of ships, or serious systemic failings by the operator, AMSA may issue a compliance direction for an operator’s entire fleet.
Change of ownership and management
If a ship changes its name, owner, flag or management a refusal of access or a direction that the ship comply with specified requirements is not automatically lifted.
Compliance and enforcement policy
AMSA will always take into consideration the specific circumstances that exist in relation to the ship.
The principles AMSA applies ensure that decision making is accountable, consistent, transparent, impartial, proportionate and fair. These principles are documented in our compliance enforcement policy.