National Marine Safety Committee

Transcription

1 National Marine Safety Committee Report of the Reference Group Review Public Comment on ABP Legislative Intent Discussion Paper June 2005

2 Background In 2003 the Australian Transport Council endorsed NMSC s National Standard for he Australian Builders Plate for Recreational Boats, and the drafting instructions for the development of legislation to introduce the standard around Australia. The Parliamentary Counsels Committee, in consultation with the NMSC, was asked to develop a national set of model clauses that could be used to introduce the standard into the legislation of each state and territory of Australia s marine safety legislation. Because of the interest from industry in the impact of the legislation supporting this standard the NMSC released a discussion paper on the legislative intent of the proposed model clauses in April 2005, with public comment being received until 16 June Consultation with industry The public comment phase included the following consultation forums with industry: 13 April 2005 Presentation to Marine Safety 2005 Conference 6 May 2005 BIA forum, Perth WA 19 May 2005 BIA forum, Sanctuary Cove Boatshow, QLD 6 June 2005 BIA forum, Melbourne Victoria 8 June 2005 BIA forum, Sydney NSW 16 June 2005 BIA forum Adelaide SA These forums were attended by boat manufacturers, dealers and importers. Comments received Comments were recorded from verbal submissions made at each of the consultation forums. As well written submissions were received from: Marianne and Neville Whitley Whittley Marine Industries Brian Poole Boden Yacht Designs Peter Hunt Hunts Marine Pty Ltd Many of the comments received related to technical aspects of application of the standard. These have not been dealt with in this report, but have been referred on to a technical reference group for their review. The attached table summarises the comments received regarding legislative and administrative policy matters. The Reference Group The reference group met on 21 June 2005 in Adelaide to review the public comment. The reference group comprised members of NMSC s Mutual Recognition Standing Committee (MR1). Page 2 of 15

3 Colin Finch (A/Chair) Martin Jaggs Brian Thompson Scott Porter Margaret Klass Elisabeth Howlett Frank Jarosek Mary Dean Bob Evans Sandy Allan Maurene Horder Judith Webster Marine and Safety Tasmania Marine Safety Victoria Maritime Safety Queensland Transport SA Transport SA Transport SA Department for Planning and Infrastructure WA AMSA AMSA NSW Waterways Authority NMSC Secretariat NMSC Secretariat DISCLAIMER The advice in the document is provided to the NMSC. The NMSC shall exercise judgement in determination whether to make this advice available to another person. If the advice is made available to another person, that person must rely upon their own enquiry. No representation or warranty is given in relation to the correctness or sufficiency of the advice. Page 3 of 15

4 Policy and legislative Matters Public Comment on ABP Legislative Intent Discussion Paper Kit boats 1. Craft arriving in kit form are designed to meet certain standards. Who is responsible for providing the information on the ABP in this circumstance In part this would depend on whether a kit boat is considered to be a boat at the time of sale, and also whether it was being sold to a business or to the end user (the consumer) while in its kit form. In most states a kit boat would not be considered to be a vessel prior to being put together, and therefore would not require a plate at time of sale (while in kit form) to the consumer. In the case of a consumer purchasing and building a kit boat the requirements in the model clauses relating to ownerbuilders would apply. Where the kit boat was being built and sold as part of a business then in most instances the person building the boat would be considered to be the builder and would be eligible to approve the information on the plate. However depending on the commercial arrangement between the manufacturer of the kit boat and the person putting the kit together there may be circumstances where the original designer of the boat is considered to be the builder and the person putting the boat together an agent of the builder. In this case the original designer, in the capacity of builder, would need to approve the information on the boat Jurisdictions to adopt this principle Page 4 of 15

5 Modification of boat after sale 2. A craft can be modified by a dealer after sale to the consumer, thereby avoiding the need for the dealer to have the plate changed. 3. Boat builders and dealers who make changes to existing craft should have to revalidate the ABP. Responsibilities of dealers 4. There appears to be a massive shift of responsibilities to dealers, which is causing suspicion as to the real intent of the legislation. Dealers should not be included in legislation The current model provisions allow this to happen. There is no intent to apply ABP to second hand boats, and once the boat is bought by the consumer it becomes a second hand boat. If the owner goes down this path, then the owner is knowingly modifying the boat and the warning statement on the plate should alert the owner to the fact that the information on the plate may no longer be relevant. The model provisions however will protect a person from unwittingly buying a boat that has been modified. Currently the ABP is seen as being similar to a product label that is correct at the time of sale, rather than at any point in the future. It was felt that establishing a system to ensure that the ABP is valid throughout the life of the boat would be too difficult and costly. Currently the ABP does not apply to second hand vessels. HOWEVER, a person may choose to have a plate updated if they wish using an authorised person. The model clauses only apply to dealers in the following way: It is an offence for a dealer to sell a new boat without an ABP attached, and It is an offence for a dealer to sell a new boat when the dealer knows the information on the plate is incorrect ie: o o Where the dealer has modified the boat to the extent that the information on the plate is invalid Where the dealer has been told by a marine authority that the information on a plate for a certain model/type of boat is incorrect but the dealer continues to sell that craft with the incorrect plate. Page 5 of 15 To be referred to education campaign Further communication with dealers to more carefully explain the limits of their responsibility.

6 The requirement for dealers to ensure that any modifications Further communication they make does not invalidate the information on the plate has with builders and been strongly supported by builders. dealers. 5. ABP will put dealers out of business as they add items such as bait tanks, water tanks, long range tanks, etc and cannot afford to have a new plate approved. It should be possible for builders to determine the information on the plate to allow for a generic set of Standard customisation options that reflect normal purchaser demand plus a small margin of safety. This would give the dealer the ability to confidently option up to that level without having to alter the ABP. If modifications or customisation occurred outside of the predetermined set of standard customisation options then a new ABP would need to be determined. 6. The ABP will add significant costs to the retailers and builder 7. The ABP will leave dealers vulnerable to legal action. The Regulatory Impact Statement for the ABP published in May 2003, states that loss of life through boating fatalities costs $67.9 million per annum at a cost of $1.5 million per fatality. The estimated average cost for a builder to bring a craft up to the standard would be $ per boat, however this would be much less if the boat already met minimum requirements. There is a potential cost to dealers associated with the use of authorised persons to approve information on a plate in the instance where boats have been modified. The costs are not considered to outweigh the benefits The ABP allows for only three parties to approve the information on the ABP, The Builder, An Importer, A person who is authorised by an Authority If a retailer doesn t alter the craft or the plate then no offence has been committed under the model clauses. The plate in fact helps the builder and dealer to fulfil their duty of care. Recommend that the model clauses be modified so that the person approving the information on the plate has to have a legal identity in Australia. Page 6 of 15

7 8. What constitutes a modification that Any modification that invalidates the information on the ABP would require the ABP be re would require the information on the ABP to be re calculated calculated and approved. 9. Dealers do not want to get drawn into the information side of the ABP as it is outside their competences See the response at 5. Dealers will not be drawn in to the information on the ABP unless they choose to either modify the boat, or to purchase a boat without a plate. It is important to note that the dealer is not responsible for verifying the information on the plate. In the case of modifying the boat, the dealer will be responsible for determining if the information on the plate is still valid or not. If the information is no longer valid then they will need to seek to have a new plate approved by an authorised person. If a dealer chooses to purchase a boat without a plate then the dealer is responsible for arranging for an authorised person to approve the information for a plate. Page 7 of 15

8 Responsibilities of builders 10.It should be mandatory for the builder of the boat to put a plate on the boat prior to it being sold to the dealer. 11.It should be an offence for the manufacturer to supply the boat without an ABP Registrations 12.With regard to not registering a craft that does not have and ABP attached we urge a transitional period that boats built before 1/7/2005 would still be able to be registered. The model clauses state that a builder is one of the 3 people who are authorised to approve the information on the plate. The PCC advised that because of the complexities of the businesses involved, and the number of parties in the manufacturing chain it was hard legislatively to mandate that a manufacturer must affix a plate. Complexities arose over who was the manufacturer and at what point a plate was required. In terms of the outcome required by NMSC the key points to be achieved by the legislation were: That a boat had a plate at the time of sale to the consumer The information on the plate had been determined by an appropriate person (ie: builder, importer, or authorised person) PCC felt that this could be achieved without having to mandate that the builder affix the plate. The dealer can either choose to buy a boat with a plate affixed by the builder, or have a plate fixed by an person authorised by an Authority, Keeping offences to a minimum and using market forces is in keeping with COAG principles. See above Boats built before the implementation date will still be able to be registered (unless registration is restricted for some other reason) Page 8 of 15

9 Owner built boats will require an ABP if they are sold within 5 years of first use, or of registration. 13.Owner Builders should be required to have an ABP prior to registration 14.It is not morally right to get registrations involved in the plate as this could affect young people and self funded retirees. 15.Why does the legislation an Authority MAY refuse to register a vessel without an ABP. This needs to be either they do or don t not so grey. Compliance Strategies 16.Date of Sale: Document suggests law will apply from date of sale always been considered date of manufacture. I said I believed he is correct and this needs to be corrected if we have not expressed it in these terms. His concerns relate to existing stock being inadvertently caught up. Need to ensure that the model clauses says which ever comes first in relation to first use or registration See comment on 15 As a rule Authorities do not want to disadvantage people who have innocently purchased a boat without a plate by refusing to register the vessel, however there may be circumstances where an Authority may wish to refuse registration of a vessel without an ABP where a particular problem is known to exist with that vessel. The ABP will be required to be fitted to craft built after a certain date (original intent was 1 July 2005). There was an error in the legislative intent paper that indicated that it was sale date, instead of the build date. The legislation will need to ensure that it relates to vessels built after a certain date. Ensure that model clauses pick up that it is the intent that the 5 years is from first use or registration (Which ever comes first) The legislative intent paper and the model clauses will need to include an agreed date (1 July 2006) after which time all boats built must have an ABP. Page 9 of 15

10 This is because there was never an intent to establish a compliance auditing regime around verifying the accuracy of the information on the plate. 17.ABP legislation has no requirement for documentary evidence of compliance to be made by the builder and retained. 18.Under Part 3 inspection powers how will the Marine safety authorities monitor whether the manufacturers are actually fitting the plates to craft particularly boats that don t require registration. 19.Builders and retailers should consider the possibility of a product recall if Consumer Affairs consider the information on a plate misleading even if it did comply with the ABP requirements 20.It is to easy to by pass the proposed legislation, either by a) modifying a boat after purchase, or b) simply stating that the craft has an ABP. No one is going to check the validity of the information on an ABP The information on the ABP will only be checked where there is reason to believe that an offence has been committed. In this instance it would be in the best interests of the builder to have information and records available to demonstrate how the information on the ABP had been obtained. This matter is left as a business decision for the businesses involved. This is in keeping with the COAG principles. Marine safety authorities will not be monitoring whether or not plates have been affixed by the manufacturer, as there is no legislative requirement for builders/manufacturers to affix plates. They will be monitoring whether or not boats sold to the consumer have a plate that has information that has been approved by one of the 3 persons authorised to approve the information on the plate. One method of monitoring is through the registration process. Due care should be exercised with any product, and suppliers should never mislead their customers. Particularly in relation to safety issues. The first matter is not an offence (see comment at Item 2) The second matter will only be an offence if under the regulations for registration it is an offence to supply false information on the registration application (or equivalent). [Authorities will need to determine how they wish to determine compliance for boats that don t require registration] [Jurisdictions need to develop an appropriate compliance monitoring system] Page 10 of 15

11 21.Some imported craft have what There are two issues here. The first relates to the offence of Technical reference appears to be over optimistic false information, the second is the appropriateness of a group to look at the assessment of maximum passengers referenced standard and whether or not certain international issue of safe capacity listed on their current plate. standards are providing safe capacity loading. loading. What is being done about making them comply to the ABP. When will jurisdictions check that the information on the ABP is correct? In terms of false information if a jurisdiction has reason to believe that the information on a plate is incorrect, the jurisdiction may choose to carry out enquiries to determine whether an offence (ie: false information) has been committed. The issue relating to whether or not the standard is appropriate is a technical issue rather than a compliance matter. This matter is being reviewed by the technical reference group Nationally uniform legislation and standards 22.Can it be confirmed that the ABP standard and its implementation will remain unchanged across all states and territories The NMSC is working to ensure that the standard is implemented uniformly around Australia. The legislation calls up the standard, and the standard can only be modified by the NMSC using its procedures for amending standards. This should help to prevent states from developing their own modified version of the standard. All jurisdictions to adopt the model provisions 23.Can the NMSC assist in getting all the marine laws across the states to be the same? The motor vehicle body has achieved this why can t the marine bodies do likewise. 24.Will all the states have the same penalties as far as the ABP is concerned See response above and below NMSC is trying to ensure that the offences are the same, however the penalties will be different in each state. All jurisdictions to adopt the model provisions Page 11 of 15

12 International plates 25.Some manufacturers may be placing two possibly three plates on a vessel. This could become confusing to the consumer The plates on a vessel could be a HIN, ABP and overseas plate (ie: ISO, NMMA). In terms of consumer confusion education programs will need to assist the consumer to identify the relevant plate and to interpret the information correctly. Half plates should be able to be affixed. As the standard does not specify the shape or form of a plate there is nothing stopping a person from placing a number of plates on a boat. HOWEVER it should be clearly spelt out that the person approving the information on the half plate is in effect also approving the information on the whole plate (which includes the part affixed by the OS manufacturer). Education to explain to manufacturers concept of a half plate and the fact that they will be approving the information on the whole plate including the part affixed by the overseas manufacturer. Authorised persons 26.There is a problem that there aren t enough naval architects available, or no timely availability to verify the information on the ABP The NMSC has not yet determined who a person authorised by an Authority should be. In terms of competency a naval architect will be considered to be suitably qualified for the purposes of becoming an authorised person. Other qualifications and skills may also be appropriate, however these have not yet been determined by the NMSC. MR1 group to prepare a policy paper on the competencies of an authorised person. Page 12 of 15

13 This is a business arrangement that the NMSC does not want to get behind. 27.Clause 7 provides for certain persons to approve the information on the plate and record the capacity in which they approved the information. What happens if a company commissions a group of different builders to build boats for them. In this instance who s name goes on the ABP? Should a fourth category be added to the persons authorised to approve the ABP. i.e.: authorised on behalf of XXXX Can more than 1 name go on a plate I.e.: Built by Sunraker Boats, Sydney, Plate approved by Brian Smith, Naval Architect 28.How soon will the Authorised persons be Authorised to complete the information on an ABP, and what level of training will they require to become an Authorised Person. The name on the plate is the person who wishes to claim the role of the builder and take responsibility for the information on the plate. MR 1 agreed that more than one name could go on a plate, provided that they were one of the 3 authorised persons. In this case each party would have responsibility for approving the information on the plate. This position needs to be explained further to industry. Paper to go to August NMSC meeting for their approval. Also see response at item The authorised person should be a trade qualified person in the metal fabrication or boat building field with some ABP specific training in the order of a 16 hour TAFE course. See response at item 26 above. Page 13 of 15

14 Identifying the standard 30.It should be compulsory for the standard that the boat was built to, to be printed on the ABP The ABP only requires that certain pieces of information be calculated for the ABP using a standard. It does not require that the boat as a whole be built to a standard. Stating which standard the calculations were made to may create a false impression that the boat was built to that standard. There is also nothing to stop a builder from stating which standard the boat has been built to, or the plate calculated in accordance with on the plate. HIN Number and Build date 31.We strenuously urge that the HIN, or any other indication of a build date or other non safety information, be excluded from the ABP 32.The requirement for the inclusion of the HIN is not acceptable; the CE and NMSC standards prohibit the inclusion of the HIN on the Builders Plate. A HIN or a date of build is required to determine when a craft was built, this can be used to determine whether a craft is subject to the standard or not. The ABP requires either the HIN or build date. This is for reasons of compliance, and also to provide information to the consumer about the age of a vessel. Some builders are choosing to use the HIN number on the plate as a serial number and are utilising this to track the production and sale process. In addition to this the placement of the HIN readily identifies that the ABP belongs to a particular vessel thus preventing information being placed on the wrong craft. The placement of the HIN on the ABP does not replace the requirement to place the HIN number elsewhere on the boat. The ABP standard to be modified so that the date required is only the year not the month and year. NOTE: The HIN can still be used. Page 14 of 15

15 33.The inclusion of the HIN on the ABP See above has nothing to do with safety and is considered unacceptable extraneous information. Policy issues 34.Can one single style of ABP plate be used for boats under and over 6 metres? Yes provided it is the more stringent plate for vessels less than 6 metres in length. Vessels 6 metres and more in length could place the words not applicable in the section relating to buoyancy Advise industry of this advice 35.If a boat has more than one steering position where should the ABP be affixed? 36.The Auxiliary (as a small motor icon) or second motor should be displayed in the area defining max motor weight so that there is no misunderstanding that the with of all outboards is included on the plate. The standard says the ABP shall be readily visible to the operator of the boat when getting the boat underway, preferably in the cockpit or near the steering position. In this instance the plate should be located in the primary steering position, or some other position that is readily visible to the operator when getting the boat underway. A vessel builder may decide to put a second plate at the other steering position, however this is optional and a second plate is not required by the standard or legislation Advise industry of this advice. This matter should be dealt with through education programs on the meaning of the information on the plate. Page 15 of 15