Ports and Marine Legislation Amendment Bill 2017

Ms PENNICUIK (Southern Metropolitan) (10:17:09) — I am pleased to rise to speak on the Ports and Marine Legislation Amendment Bill 2017. The bill does a number of things which are aimed at improving safety on Victorian waterways, including our bays, rivers and lakes et cetera, and particularly where boating activities occur. But it also goes to strengthening the ability of port authorities, particularly regional ports and smaller ports, to deal with safety risks as they may present themselves.

The bill amends some of the waterway rule-making powers and facilitates disclosure of marine licensing registration information to enforcement authorities. As I said, it provides more powers to local ports and waterway managers to deal with safety issues, including with regard to abandoned vessels, and changes licensing requirements with regard to children on vessels, particularly in relation to the ability of children — or minors, people under 16 — to be in charge of a jet ski. I will talk about some of these a bit later in my contribution. I note that the bill was debated in the lower house in March this year, so quite a long time ago, and has been sitting on the notice paper for a very long time.

In detail, part 2 of the bill makes amendments to the Marine Safety Act 2010, part 3 makes amendments to the Marine (Drug, Alcohol and Pollution Control) Act 1988, part 4 makes amendments to the Port Management Act 1995 and there is an amendment to the Road Safety Act 1986, which is consequential to the changes included in part 2 specified in part 5.

Clauses 7 and 9 of the bill extend the safety duties that currently apply to commercial ports management bodies and the managers of local ports to enable Transport Safety Victoria (TSV) to more effectively oversee safety risk management in local ports.

It is interesting that in 2016 the Victorian Auditor-General's Office did a follow-up on recreational maritime safety. Just reading from the Auditor-General's comments on that bill, in fact it was the acting Auditor-General at the time, Dr Peter Frost, who made the comment that this report was one of three follow-up audits that he would table in the years
2015–16 — this report was tabled in June 2016 — to provide Parliament and the community with information about the improvements that Transport Safety Victoria and the Department of Economic Development, Jobs, Transport and Resources have or have not made in relation to the audit recommendations in 2014 in Recreational Marine Safety. That audit found:

… that the state's regulatory framework was not being effectively or efficiently implemented. Shortcomings included the absence of arrangements within TSV for assuring the effectiveness of its regulatory approach as well as the competence and ongoing suitability of waterway managers. In addition longstanding waterway rules were not fit for purpose and did not support the efficient management of safety risks. The audit made 14 recommendations to improve recreational maritime safety.

… As Victoria's transport safety regulator, TSV must ensure that designated waterway managers are meeting their legislative obligations in helping to maintain public confidence in the marine safety system.

The Auditor-General found that:

In spite of this responsibility, TSV has no explicit function under the maritime safety act 2010 to oversee waterway managers. The safety director is reliant on the cooperation and capability of waterway managers in taking action on identified deficiencies. This limits the action TSV is able to take and this situation needs to be addressed —

this was back in 2014.

In January 2016 the department commenced a review of the governance of waterways in Victoria. This creates an opportunity to critically examine the legislative framework and address fundamental deficiencies in the regulatory scheme that were identified in our 2014 audit …

and which at the time of this report in June 2016 still remained unresolved.

Despite the commitment of the department and TSV given to the Auditor-General to action the recommendations made in 2014, the Auditor-General found in 2016 that progress had been slow and both agencies needed to continue to drive and closely monitor actions taken and planned to ensure their intended impact on improving recreational maritime safety in Victoria is achieved.

Some of the issues identified by the Auditor-General are being addressed in this bill. As I said, clauses 7 and 9 extend the safety duties that currently apply to commercial ports to the managers of local ports to effectively oversee safety risk management in local ports. Clause 8 of the bill applies to the safety duties of managers that hold events wholly or partly on state waters. I note that that particular clause as it was originally written in the bill has invited quite a lot of public comment about the duties imposed on the managers or coordinators of water-related events such as boating races and swimming carnivals et cetera held on Victorian waters. Certainly the original wording of that clause was quite vague as to who the duty holders were and what their actual duties were as the person or persons managing an event on Victorian waterways.

Overnight I received a set of amendments from the government which I have had the opportunity to look through, and we will spend some time on this in committee, I presume.

They do look to me to have a significantly improved clause 8 because, as I have said, it is quite vague as to, firstly, who was meant to be the duty holder, and what they are required to do. For example, part of the wording is 'ensure … that rescue services and first aid … services are available to participants'.

Of course if you are in charge of a boating activity such as a kayaking activity or a boat race, particularly if that involves young people, or if you are organising a swimming carnival or swimming event in open waters, then definitely you need to have first aid and rescue services available. But that is all the clause says 'ensure … that rescue services and first aid … services are available to participants'. It is an extremely broad provision that is originally in the bill, leaving those people who may be held liable if something had gone wrong with not much guidance as to what they are actually meant to be doing.

Mr Bourman — Which is never a good thing.

Ms PENNICUIK — Never a good thing, no. Thank you, Mr Bourman. Just the words used, 'Safety duties of persons who manage boating activity events', are also very broad. I note that the new provisions that the government is wishing to insert in the bill by way of the amendments circulated last night talk about duty holders and duty holder as defined under the WorkSafe act, for example. That narrows it down to the person who actually holds the duty and excludes people who are employees of the person who holds the duty and people who are volunteers. The first iteration did not do that, so it was unclear as to whether if you were a volunteer organising a swimming activity you were going to be held liable under the act. It is good to see that the government has moved in relation to clause 8 and completely re-written that clause.

There are a number of other amendments to the bill that the government has circulated. One is with regard to the definitions of vessels to which duties would apply for piloting of vessels, as I understand it, on my first reading of that amendment. Again, no doubt we will spend some time in committee on that.

Clause 11 of the bill makes an amendment that prohibits persons less than 16 years of age from having their licences endorsed so that they are not able to operate a jet ski without supervision. That is a welcome development. Certainly as a person who represents the Southern Metropolitan Region that includes suburbs that are adjacent to the bay, I know that some of those areas in my electorate are designated jet ski areas, and this has been a longstanding problem. I think if we were to do a survey of the population of Victoria we would find that a vast majority of Victorians hate jet skis and hate them being on the bay during the summer months when people are trying to enjoy themselves there and swim and enjoy the waterways with their children. I am one of those people. I love to go to the beach. I love to swim in the bay. If you are down in the Brighton area, for example, where there is a designated jet ski area, you can be down there for hours and all you will hear all day are jet skis, at full volume.

Mr Young — How dare they?

Ms PENNICUIK — I will pick up Mr Young's interjection, 'How dare they?'. Mr Young is always in favour of minority rights, which is a good thing — we are all in favour of minority rights — but he is in favour of the minority of Victorians who like to shoot our native waterbirds, and now he seems to be in favour of the minority of Victorians who like to spoil the amenity and ambience for the majority of Victorians who are trying to enjoy some peace and quiet at the beach where they can hardly hear themselves talk over the sound of the jet skis going up and down endlessly, all day.

But back to the provision. The fact that hitherto someone as young as 12 has been able to be in charge of a jet ski unsupervised is unbelievable. Jet skis are very powerful water vessels, and they are very dangerous if operated at speed. To think that up until when this bill comes into force children between the ages of 12 and 16 have been allowed to be in charge of a jet ski unsupervised is unbelieve. Of course we all know that people have been injured and killed by the operation of jet skis. The injury rate of children between the ages of 12 and 16 is particularly high, and not only do they injure themselves but they injure other people as well. Personally I think no-one who is under 18 years should be in charge of a jet ski. I do not know why the age of 16 has been chosen, but certainly it is better than 12. With this provision, anyone under the age of 16 will have to be supervised by an adult if they are going to be on a jet ski, and that is a good thing.

I have to say that, for example, in one of these designated areas in my electorate, in order to actually go out into the designated area, the jet ski operator is meant to be going — I could not quote you the exact rate of knots, but it is supposed to be a very low rate of knots — let us say very slowly. Can I say if you take an hour of time out of your day to stand next to that designated area and check how many of them are going out slowly, I think you would find there are not many. They are all racing out and racing back in again, and there are very rarely any compliance officers there to deal with that issue. It is an issue that causes danger to members of the public who are in those areas.

If I had my personal way, there would not be any jet skis except for use by lifesavers. They are certainly a great tool for that because they can get out very fast and the lifesavers can pull up a swimmer who could be in trouble in the water. I think they are fantastic for that. But in terms of the small minority of people spoiling the amenity of our waterways for everybody else by zooming up and down endlessly at a great rate of knots and very loudly, I am not in favour of that. It is good to see some action taken on the control of jet skis by young people.

Clauses 14 and 15 make some amendments to ensure that TSV has the authority to act when needed. I am presuming that some of these amendments go to the issues that were raised by the Auditor-General as to some of the gaps that were in the law allowing TSV to act in certain instances.

The issue with regard to abandoned vessels I found quite interesting, because it appeared to me quite strange that up until now there were gaps in the ability, particularly in local ports, to deal with abandoned vessels. Of course abandoned vessels can be a health and safety hazard as well, especially if they are floating around untethered or if they are upturned in a waterway, and they create a hazard to other boating vessels. I was surprised to know that was in fact the case and that it has to be ameliorated by this legislation. So it is good to see that happening.

Also, I presume by following the licence number of a vessel, the particular port authority that has to deal with removal and disposal of abandoned vessels is able to track down the owner of a vessel and recover the costs incurred to remove and dispose of that vessel. Just looking through this legislation, there have been quite a few surprises for me in terms of things that previously could not actually be done under the Marine Safety Act, and some of the amendments in this legislation go towards fixing that.

Clauses 24 and 25 of the bill include amendments that enable Transport Safety Victoria to impose conditions on pilot licences relating to competency and medical fitness and to ensure that the competency and medical fitness of pilots are tested periodically. I noticed that amongst the amendments circulated last night there are some that go towards that issue: making sure that a pilot provided to an owner of a vessel is not impaired by fatigue, alcohol or other drugs; that the pilot is medically fit and able to carry out the activity for which that pilot has been provided and is qualified and competent to carry out that activity; and also, so far as reasonably practicable, that such information, instruction, training or supervision is provided to a pilot provided by the person to an owner of a vessel as is necessary to enable the pilot to carry out an activity mentioned in the definition of marine safety work.

I know my colleague Ms Hartland will have some remarks to make about this issue because it is something she has had a lot to do with over the years, but if I could make some general remarks, pilots that board vessels, in particular those that are coming in through Port Phillip Heads, perform a very important function. They are very essential to marine safety in getting vessels in and out of the port of Melbourne but also in other ports where there can be hazardous conditions that may arise from time to time due to weather conditions, wind changes, swell et cetera that can alter the local conditions.

I would like to take this opportunity to go back to an issue I pursued in this Parliament for some years, and that is the issue of the channel deepening of Port Phillip Bay, which occurred some eight years ago now and which I was an opponent of.

Many scientists and others who are very familiar with the geography of Port Phillip Bay, with the bathymetry of Port Phillip Bay and with the hazards and the particular characteristics of Port Phillip Heads warned against the channel deepening project. There were two main aspects to it. There was the issue of the effects on Port Phillip Bay, which I will talk about in a moment, and there was the issue of the government of the day, which of course was the Brumby government, asserting that we just had to have channel deepening to allow the bigger ships — Panamax ships et cetera — to enter Port Phillip Bay. As far as I know, not one of those ships has ever entered the bay or come near Port Phillip Bay, and there are a lot of reasons for that. At the time I pointed out that if people were paying attention to the shipping news and the missives put out by the major shipping companies, that was never going to happen. They had no intention of ever coming down to Melbourne with those large ships.

Firstly, for economic reasons they were never going to do it. They have not done it in the eight years since channel deepening occurred. None of those ships has ever come down here. None of them has ever come into the bay, and another of the reasons they cannot is because of the geography of the bay. We are talking about a very shallow bay, and the channels have to be maintained by constant dredging. I can remember saying at the time to Mr Jennings, 'What keeps me awake at night is what's going to happen once you remove 5 metres of rock from Port Phillip Heads', because all the scientists said that is a very dangerous thing to do. Once you take it away, you cannot put it back. What they said was the main problems will be felt in the south of the bay because of the way the water moves in the bay. It moves in and out of the south of the bay, and it swells around in the south of the bay. It does not necessarily go up to the north where the actual port of Melbourne is or around the suburbs that surround the entrance of the Yarra River and the Maribyrnong River to Port Phillip Bay, but most of the effects will be felt in the south of the bay, and that is exactly what has happened.

We have completely lost Portsea beach. That has been washed away by ocean swell that comes into that bay every single day. It has never happened before. It has never happened in the history of Port Phillip Bay that ocean swell would be coming in. Again if you want to take an hour of your time to head down to Portsea and stand on the pier — if you can, if it is not being washed over with water — you will see this swell coming in and washing onto the now disappeared beach that is being propped up with sandbags. There is now water reaching the actual land of that area and in other places along the south of the bay as well. Only last year I was walking along the areas around Mount Martha et cetera, and you can see massive erosion happening on those beaches and all of the beaches along the south of the bay. This is going to continue on forever. It is never going to stop because the five metres is gone, the swell is coming in and the erosion will keep happening. In some areas it is going to really start impacting on the infrastructure along those beaches. Irreparable damage has been done. Millions of dollars were spent and all for no point whatsoever.

But there is a point to this in relation to the bill, and that is about pilots. It was the pilots that were piloting the ships in and out of Port Phillip Heads at the time who also warned against it, saying it would make the access and egress to Port Phillip Heads more dangerous, and that is what has occurred. I do not do it so much now, but I did watch the missives from the port of Melbourne and the notices to mariners —

Mr Dalidakis — Fish and chips on Friday evening as the sunset rolled in.

Ms PENNICUIK — For all my sins I would look at the notice to mariners and I would read the port of Melbourne's notice to mariners: 'Please do not try to enter Port Phillip Bay in the next 8 hours'. So we have now got ships lined up outside in Bass Strait and we have got ships lined up inside Port Phillip Bay waiting for tides and weather conditions to change to a suitable time when the pilot can get on and get them out safely or get them in safely because Port Phillip Heads is so much more dangerous than it ever was.

The other issue with the larger ships is that they are of course not only longer but wider and deeper, and the reason they do not come in is that if a mistake is made on entering through the narrow channel — it is not very wide — and all of a sudden there is a change in the weather, which anyone who is familiar with Port Phillip Heads would know can happen pretty quickly, and one of those ships actually turns around, it will find itself embanked on the very shallow areas that are adjacent to the shipping channel and will have a major incident there. That is why they do not come down. It is another reason why they do not come down. They are never going to come. They do not come; they are never coming. So we have just done irreparable damage to our bay. Scientists warned against it, but there it is. Not to mention that we have also still got the toxic dump in between Mordialloc and the western suburbs for the millions of tonnes of toxic sludge that were dug up from the Yarra River — Ms Hartland might want to talk about this; she has got a long history with this issue — alongside Coode Island et cetera, where even some nuclear or radioactive waste was buried in the sludge.

That was all dug up and buried in the bay under layers of sand. I tried to stop that with a bill in this Parliament to prevent the dumping of toxic waste in our Port Phillip Bay by the government of the day, the Brumby government, against the provisions of the Environment Protection Act 1970.

Mr Dalidakis interjected.

Ms PENNICUIK — We were like that! That is the history of port and marine safety in Port Phillip Bay. Perhaps some people new to the chamber might not have been aware of that and how we have arrived at the situation of the shoreline on the south of the bay, not only on the Portsea-Mount Martha side but also on the other side the bay, where parts of the landscape along there are only inches above sea level so water is now coming up at high tide and running across the roads. It is all down to the Brumby government and its terrible channel deepening project. It was a terrible waste of taxpayers money.

Mr Dalidakis — Were there any environmental outcomes that you were unhappy with?

Ms PENNICUIK — They were the ones that I have just been talking about — through you, Acting President. There were terrible environmental outcomes with regard to Port Phillip Bay.

There is a little bit of joviality happening, but this is the seriousness of having a toxic dump in the middle of your bay, which is surrounded by suburbs with people using the bay all the time. As far as I know, the Brumby government put in place an organisation called the environmental monitor, which did not do too much monitoring and then was disbanded. As far as I know, there is now no monitoring of the toxic dump in the middle of the bay. The government has basically thrown up its hands as to what to do with the ongoing erosion down in the south of the bay and has also refused to acknowledge that this had anything to do with channel deepening, even though it happened just after channel deepening. It had never happened before channel deepening and it has been happening ever since. The government tried to deny there was any link between the two, but of course they were directly linked and it was subsequently demonstrated by the CSIRO, which did a study into it, that the channel deepening was responsible for the damage to the south of the bay. In terms of pilots who help ships navigate in and out of Port Phillip Heads, their job has been made much more difficult by the channel deepening.

I would not like to let this opportunity go without going back to one of the local ports, which is a Gippsland port. Another issue that I fought quite strongly over in this place was the Bastian Point boat ramp, which was put in to make a 'safe' boat harbour and which the independent panel at the time strongly advised against because the conditions at Bastian Point near Mallacoota mean it could never be made into a safe boat harbour. And that is exactly what has come to pass. It has come to pass that very rarely can anyone safely get in and out of that area because of the conditions. In the process of putting in the boat ramp there, a beautiful beach was destroyed and completely changed forever and no safe boat harbour actually eventuated, as predicted by the independent panel that looked closely into it. But that was overridden by the minister. As I said, it is good that this bill is looking at making it easier for local ports to deal with safety issues in their areas.

Getting back to the issue of clause 8, which is in regard to —

Mr Dalidakis interjected.

Ms PENNICUIK — Through the Chair! I was of course giving a wider context to the issue of the challenges that face our pilots who need to safely get container ships in and out of the port of Melbourne.

I go back to clause 8 because it is the one that has attracted the most public comment. I mentioned before the amendments to clause 8 that were circulated by the government last night. As I said, I was very glad to see them because I thought, 'Well, I'm going to have to spend quite a lot of time in committee on clause 8 and find out from the government how they are going to actually implement this particular clause', which was so wide and vague and unspecific in imposing duties and liabilities on organisers of boating activities. As the clause still says, an example of a boating activity event could be a boat race — of course that could be a boat race involving kayaks or sailboats, which happen on the bay on a daily basis — water sports competitions or exhibitions or open water swimming races. It includes filming or promotional events.

So I would be interested to know what filming and promotional events might actually be covered by this. It could mean filming part of a film or a TV show, for example, that involves boats on the water — it could be that.

I noticed that in the amendments circulated by the government the insertion into the new clause of the phrase 'so far as is reasonably practicable'. That is a phrase I know well from the occupational health and safety legislation. I know it very well from legislation around the country that the duties imposed on employers to provide a safe workplace are 'so far as is reasonably practicable'. Of course when incidents occur in a workplace, be they death or serious injury, that end up going to court where this a prosecution by WorkSafe of an employer that phrase there can come to be quite —

Mr Dalidakis — Challenging.

Ms PENNICUIK — Well, it could be the fulcrum of the debate — what was reasonably practicable for the employer to do? It is a phrase that is inherent in the occupational health and safety legislation around the country, and one would have to say put in there at the behest of employers because they did not want a strict liability for occupational health and safety; they wanted to be able to say, 'Well, we did what was reasonably practicable to do', so that is throughout all the occupational health and safety legislation and it is now creeping into the marine safety legislation as well.

However, in terms of what I was saying before, the original clause was so open-ended and vague that it would have been difficult for anybody to know what they were meant to comply with unless there were very explicit regulations. But you cannot always overcome the faults of vaguely written legislation by trying to compensate with specific regulations. The regulations are always better if they follow on from good legislation in the first place and are not there trying to overcome legislation which could be better written. I think clause 8 is better written, but certainly we will have some questions about that when we get into the committee stage and the government moves those amendments. As I say, I will go back to the issue of the age of children on jet skis as well during the committee stage, but generally, particularly with the newly rewritten clause 8, the Greens will not be opposing this bill.