Approach to regulatory action against certificates of competency
We as the national regulator have a responsibility to undertake investigation, monitoring and enforcement activities for the purposes of the laws we regulate.
All persons holding a certificate of competency may be subject to regulatory action that may include a variation, suspension or revocation of a certificate of competency.
The purpose of this policy is to ensure a consistent and fair approach where variation, suspension and revocation of a certificate of competency may be warranted and to inform our staff and other stakeholders of the process.
Laws dealing with regulatory action of certificate of competency include:
- The Marine Safety (Domestic Commercial Vessels) National Law Act 2012
- Marine Order 505 (Certificates of competency – national law) 2022
- Marine Order 501 (Administration – national law) 2013
Our approach to variation, suspension and revocation of a certificate of competency.
AMSA may receive requests to take regulatory action against a certificate of competency as a consequence of investigations or enforcement actions conducted by (amongst others):
- Our compliance and enforcement teams.
- Regional managers.
- Relevant commonwealth and state authorities such as police.
Action taken will be proportionate to:
- The severity and risk to human life.
- Securing the safe navigation of vessels.
- The seriousness of the threat to the environment.
Under Division 5 of Marine Order 505, a range of regulatory actions are potentially available for us to take against certificates of competency, including the following:
- Warning and/or education and training.
- Requiring action using a prescribed condition on a certificate of competency.
- Varying the certificate, including to vary a condition or restriction that has been imposed by the national regulator or to impose a new condition or restriction.
- Suspending a certificate of competency.
- Revoking a certificate of competency.
These measures do not need to be sequential, for example: warning before suspension or revocation of certificate of competency. AMSA may use a combination of measures based on the severity or risk presented in the evidence.
We acknowledge the role that the maritime industry performs and recognize the challenge of balancing the need to provide certainty against the need to protect safety and the environment.
The matters that may be taken into account are:
- The severity of the issue or finding.
- The extent of the risk to the health and safety of people and the environment.
- The culpability of the certificate of competency holder or other relevant person in bringing about the issue or finding, including whether there was a bona fide mistake.
- Whether the certificate of competency holder is temporarily or permanently unable or unwilling to undertake any relevant remedial action necessary to satisfy the requirements of holding the certificate.
- The compliance history of the certificate of competency holder.
- Mitigating factors such as self-reporting or timely, voluntary steps taken to address the issue.
- The prevalence of the issue in the industry.
- The need for deterrence
Each variation, suspension or revocation activity must be considered in accordance with the relevant legislation, so that the most appropriate option (or options) for the circumstances are applied.
Any decision to take regulatory action must be supported by evidence that is sufficient to substantiate the alleged breach. Such evidence may include investigation reports, breach reports, signed statements, field notes, photographs, diagrams, interviews, observations, findings by courts, and so on. Lack of relevant evidence may delay or reduce the action we may take.
Many of the actions set out below may be subject to external review by a court or tribunal. The right to such review is determined by the relevant maritime safety legislation, and by the general administrative review rights established in commonwealth law.
To ensure the consistency, transparency, accountability, impartiality and fairness in decision making required by regulatory action, all decisions and the reasons for these decisions must be clearly documented.
Circumstances in which warnings and guidance may be appropriate
Provision of a warning accompanied by specific guidance may be appropriate in circumstances where there is a lack of awareness about, or misinterpretation of, the law or conditions associated with the certificate, and the breach or the circumstances surrounding it are minor in nature.
A warning letter may also suggest that certain education and training be undertaken by the certificate holder. However, in the absence of a condition being imposed to mandate that training, there is no legal obligation on the certificate holder to do so. Where a warning letter contains a recommendation to undertake education and training, and that recommendation is ignored, we may consider undertaking a different regulatory action against the certificate.
Warnings will generally be given in writing. They will outline the unacceptable behaviour and potential future actions if the warning is ignored.
Circumstances in which a prescribed condition may be used to require action
We may use the prescribed conditions imposed on certificates of competency to require the holder to undertake certain actions, including to undertake medical tests or to tell us about any medical conditions.
Certificates of competency are generally subject to the following prescribed conditions:
(a) the holder must tell the National Regulator, in writing, about any long term or permanent medical condition that is likely to affect the holder’s ability to perform duties under the certificate;
(b) the holder must tell the National Regulator, in writing within 21 days, if:
(i) the holder changes address; or
(ii) a matter recorded on the certificate is no longer correct;
(c) the National Regulator may require the holder to undertake medical examination or testing.
We may require the certificate holder to undertake medical examination or testing when there is suspicion of erratic behaviour caused by any drugs, alcohol or mental health condition. The purpose of such testing is to determine the certificate holder’s continued competency (or otherwise) to perform the duties and functions associated with the certificate. We may then rely upon the results of this testing to undertake further regulatory actions as the circumstances may require.
We may also require the certificate holder to undertake medical examination or testing if we become aware of any medical condition that is likely to affect the holder’s ability to perform duties under the certificate.
We are not required to give the certificate of competency holder written notice of an impending decision to take such action, or to provide reasons.
Circumstances in which a varying a certificate of competency may be appropriate
Variation of a certificate of competency may be appropriate when we have decided that the certificate of competency holder is not competent to undertake some of the duties and functions permitted by the certificate, or where the holder does not have the medical, mental or physical capacity to undertake some of those duties and functions.
In such circumstances, we may vary a certificate to impose a new condition on the certificate (including by imposing a condition requiring certain action such as undertaking education or training, or to limit or modify the duties otherwise associated with the certificate), or to revoke or vary an existing condition.
Please note: AMSA has the option of imposing a condition requiring medical testing, assessment of competence and considering the outcome placing restrictions with geographical limitations (places and kind of waters) or time limitations such as from sunrise to sunset or types and classes of vessels authorised to operate.
We may also vary a certificate of competency when we have decided that any of the information mentioned in the certificate is no longer accurate.
Before varying a certificate, we are required to give the certificate of competency holder notice in writing inviting the holder to show cause why the variation should not be made, and to consider any such representations.
Circumstances in which immediate suspension of a certificate of competency may be appropriate
We will immediately suspend a certificate of competency if we are satisfied that the suspension is necessary for the purpose of protecting human life, securing the safe navigation of vessels, or dealing with an emergency involving a serious threat to the environment.
Immediate suspension of a certificate of competency will generally not be taken unless there is no other effective means of intervention available to prevent such a threat to safety. We may undertake an investigation of the circumstances that led to the immediate suspension during the period of suspension.
The immediate suspension could therefore be followed by an action to revoke a certificate, prior to which we will give the certificate of competency holder notice in writing inviting the holder to show cause why the certificate should not be revoked, and to consider any such representations.
Circumstances that may lead us to consider immediately suspending a certificate of competency could include (but are not limited to) serious maritime incidents in which there is a prima facie case that the certificate of competency holder may be at fault; or where a certificate of competency holder has demonstrated behaviours that cause us to question their ability to secure the safe navigation of vessels.
We are not required to give the certificate of competency holder written notice of an impending decision to take such action.
Circumstances in which non-immediate suspension of a certificate of competency may be appropriate
We may suspend a certificate of competency to ensure that the competency or medical requirements of Marine Order 505 (Certificates of competency – national law) 2022 associated with the certificate are met.
We may also suspend a certificate of competency to ensure unpaid fees are recovered.
Before suspending a certificate in these circumstances, we are required to give the certificate of competency holder notice in writing inviting the holder to show cause why the certificate should not be suspended, and to consider any such representations.
Circumstances in which we may revoke a certificate of competency
We may revoke a certificate if we have decided that it is necessary in the interest of marine safety or protecting the environment or if the certificate was issued erroneously, and if we are then satisfied it is desirable to do so having regards to the objects of the national law.
Additionally, we may revoke a certificate of competency for any of the following:
- the person gave information to the National Regulator that was false or misleading; or
- the person contravened, or is contravening, a condition of the certificate; or
- the person has demonstrated incompetence or misconduct relating to the safe navigation, management or working of a vessel; or
- the person cannot, for any reason, properly perform the duties the person is permitted to perform under the certificate, and finally,
- if we are satisfied that the holder of the certificate is not a fit and proper person to hold the certificate.
In considering whether a person is a fit and proper person, we may consider:
- Any conviction of the person for an offence against the national law.
- Any conviction of the person for an offence against a law of the Commonwealth, a State or a Territory that is relevant for the purposes of deciding whether the person is suitable to hold the certificate.
- Whether the person has had a similar certificate, issued under a law of the commonwealth or a state or territory, suspended, revoked or cancelled.
- Whether the person is suffering from a medical condition or has a physical or mental incapacity that makes the person unsuitable to hold or to continue to hold the certificate.
- Whether the person had been found to be not a fit and proper person under a law.
Before revoking a certificate, we are required to give the certificate of competency holder notice in writing inviting the holder to show cause why the certificate should not be revoked, and to consider any such representations.