Glenn Sterle (WA, Australian Labor Party, Shadow Assistant Minister for Road Safety) Share this | Link to this | Hansard source

I rise today to speak to my motion for the second reading of my private senator's bill, the Marine Safety (Domestic Commercial Vessel) National Law Amendment (Improving Safety) Bill 2019. It shouldn't have been me introducing this bill, but, unfortunately, due to the inaction of the inept minister responsible for the portfolio, the member for Riverina, Michael McCormack, I had to take action. I have pleaded with Minister McCormack's office on multiple occasions during public hearings of the ongoing inquiry into the management of the Australian Maritime Safety Authority to take the lead and introduce appropriate legislation to minimise the chance of the tragedy that I will speak about from ever happening again. Sadly, the minister did not act.

The Australian Maritime Safety Authority's performance throughout this whole process has been nothing short of appalling. The complete disrespect to Damien Mills's family was astounding. Officials did not return calls, information was withheld, and they only really started engaging with the family once I initiated the inquiry in this chamber into AMSA's management—and I couldn't think of a worse word than 'management', because there was none. There is a lot more to be said of AMSA and the officials who have been in charge of this sorry saga, but we will get to that once the current inquiry has concluded. The Mills family in Western Australia deserve far better than this.

Damien Mills was born on 29 August 1979 and raised in Queens Park. He was 35 years old at the time of his death. Damien was married to Nicole, and they had three children together, Alanna, Jack and Alexis, all of whom were under nine years old at the time of Damien's death. Damien was described as a kind person and a dedicated family man. As a mark of his love for his children, he had a tattoo of his three children's names within a tree of life on his right shoulder. Tragically, on 31 October 2014, Damien fell overboard from a commercial vessel between Fremantle and Rottnest. On 1 November 2014, Damien was found deceased, about three nautical miles off Leighton Beach, around midday.

On 30 October 2017, the inquest into the death of Damien Mills was handed down. The coroner urged AMSA to ensure that safety systems be implemented and duly carried out by operators with care and diligence. Nothing was actioned by AMSA. I repeat: nothing. The coroner's report says:

If police had been notified that the deceased was missing at the time the vessel returned to the Fremantle Fishing Boat Harbour, at approximately 4.00 pm, Sergeant Wear indicated that the Water Police would have tasked helicopters to run the route taken by the charter boat from Fremantle Harbour back to Parakeet Bay as an immediate starting point.

That is the evidence from the Water Police. The report goes on:

They would also have got vessels to run that route, breaking up the route into sections for them to search, with the knowledge that he couldn't have drifted far from the track line in that space of time. The timing of the notification is important in that regard, as the closer in time the search and rescue can begin, the more confined the area that is required to be searched.

In that regard, as well as getting assets immediately on to the scene, police officers would have attended the charter boat to interview the crew and other passengers to try and ascertain the last time the deceased had been seen and any unusual events that had occurred, in order to narrow the search area and increase the probability of finding the deceased. Police officers would also have spoken to the deceased's family to try to find out information about the deceased, such as his swimming ability, general health and medications, and even any known demeanour in a fight or flight situation to ascertain a timeframe of survival. Experts such as Dr Luckin would also assist in that regard.

Based upon his own experience, Sergeant Wear expressed the opinion that notification at 4.00 pm, or even 4.30 pm—

because it was narrowed down that Damien fell overboard somewhere near the windmills, just off Rottnest, between 3.30 and 3.45 that afternoon—

would still have given the Water Police a fairly high chance that they would have found the deceased, and found him alive. Expressed another way, Sergeant Wear stated that it was "highly likely" a Search and Rescue team would have found the deceased if they had been notified when the charter boat returned to the harbour.

The whole sorry saga is why I am calling for compulsory headcounts—and not just one, as AMSA have suggested. AMSA have suggested just one—not at the beginning, not at the end, not in the middle; just any time there is a journey. If that skipper had implemented the headcount that was in his own safety management system, the alarm would have gone off that one person was missing. There's a lot more to be said about the skipper, because he couldn't even get the headcount right in the logbook when he first took off from Sardine Wharf. I have said many times, with my colleagues on the rural and regional affairs and transport committee, pleading with the minister: 'You can fix this, Minister. You can get a pen and a piece of paper and draft up some legislation to make sure that this never happens again, or, if someone does go overboard, a simple headcount will notify the appropriate authorities.'

I'll have a lot more to say, as I said. I can't say too much more because the inquiry into AMSA's performance is still going on. But there are a couple of thankyous I'd like to make. I'd like to acknowledge Nicole and Richard. Nicole is Damien's widow and Richard is Damien's father. Your strength has given me strength. I will never know what pain you are suffering, but I hope Damien's law can go some way to making sure it doesn't happen again. I'd also like to thank my colleagues on the Senate committee for helping me out in the inquiry. I'd also like to pay special thanks to Hannah Dibley, Senior Research Officer in the Procedure Office in the Department of the Senate, and of course Jackie Morris, whom we all know, the Clerk Assistant, Procedure, in the Procedure Office in the Department of the Senate, for your outstanding work in helping me craft this. I commend Damien's law to the chamber.

Slade Brockman (WA, Liberal Party) Share this | Link to this | Hansard source

I too rise to speak on the Marine Safety (Domestic Commercial Vessel) National Law Amendment (Improving Safety) Bill 2019. I wish to start by acknowledging Senator Sterle's deep interest in and commitment to this topic and to the Mills family. What happened to Mr Mills was an absolute tragedy. Obviously the flow-on impacts on his family have been extraordinary. They will go on for the rest of that family's lives. It has left a deep, deep scar on that family. In this place, I thank Senator Sterle for bringing this matter to the attention of the Senate Rural and Regional Affairs and Transport Legislation Committee and continuing to try to address this matter in a positive way. I also wish to acknowledge the initiating role that my colleague from Western Australia Minister Linda Reynolds had in bringing this matter to the attention of this place.

The Mills story, which Senator Sterle has gone through in detail, so I won't repeat it, is a tragic set of circumstances. One thing that became very clear in the self-referred inquiry on this issue to the rural and regional committee was the failure for anyone, but particularly the Maritime Safety Authority, to explain the use of a single headcount. A single headcount in a marine environment, whether it be a count on or a count off, tells you very little. It tells you how many people are or were on a boat at a particular point in time. It doesn't tell you anything else.

The marine order that's involved in this area is also drafted quite strangely. It talks about the officer in charge knowing how many people are on board the vessel at all times. I'm always wary when I see a law drafted in such a way that's almost impossible to comply with. How can a master of a vessel know how many people are on board at all times? That's impossible. What Senator Sterle described was the two headcount process, which is used widely in Australia. It's used on the Great Barrier Reef following some incidents there where divers were left behind. It at least tells you how many people got off and how many people got on, so I do have some significant sympathy with Senator Sterle's argument.

That said, the government will not be supporting this bill, and I'll go through the reasons why not. I want to make it very clear that I think it is important that the Senate inquiry from the rural and regional committee—of which I was an active member in the last parliament; unfortunately duties have dragged me away a little bit from that committee, which I do love—is taken to conclusion. I would certainly encourage the current voting members of that committee to make sure that inquiry does finalise and report.

I think that is an important part of the process here, and I think it's also important that AMSA takes the time, and the process with a variety of stakeholders, to get this right. We need to make sure that what we put in place is going to have the outcome that we all desire here, which is making sure those vessels that are taking passengers on board and going out with the aim of having a good time get everyone home safely. If they don't then the search and rescue that we do have—the quite remarkable search-and-rescue capability right around Australia—needs to be given the chance to act in the most timely way possible. That is the great tragedy of the Mills circumstance. There was a chance—and the Mills family have to live with the fact that that chance was there—to find Mr Mills alive, but it could never be acted upon because of the procedures that were undertaken.

As I say, the government doesn't support the bill in its current form due to some particular issues within the bill and due to some of the specifications it puts in place, but it absolutely does support the principle of getting these regulations right and improving passenger safety. Amending the existing marine order is the preferred option. AMSA is going through a response to recent industry consultation on passenger safety matters and looking to change marine orders, informed by that industry view. My message to AMSA is that they need to make sure they do get this right. The argument that one headcount does anything doesn't wash with me—it is a number at a point in time; it tells you nothing. So, when we see the example of commercial vehicles on the Great Barrier Reef being able to institute, seemingly successfully, a headcount on and a headcount off, I think there would need to be very good evidence provided if you were not going to go down the path that Senator Sterle proposes in this bill. However, I do think the process is important and consultation with industry is important. We need to make sure that, in this very important part of our tourism industry, marine tourism—and, obviously, passenger transportation could also potentially impact fishing and aquaculture arrangements, some of which have a dual tourist-commercial aspect to them—those concerns are examined and taken into account. We have a duty to ensure the regulatory framework supports the safe operations of all vessels so seafarers and passengers return home safely.

As I said, the Senate Rural and Regional Affairs and Transport Legislation Committee's current AMSA investigation is still on. I would certainly hope to see that conclude in some fashion and make some significant recommendations. The work that that committee has already done has been very valuable both in terms of highlighting the issue and in causing AMSA to have a good, hard look at itself. I think there were clearly some terrible failures, particularly in terms of communication with the Mills family after the event, and in the AMSA investigation of what actually happened. They need to also have a look at their internal processes to make sure that those sorts of failures do not happen again.

We as a government do support the kinds of safety improvements that the bill seeks to achieve. But they must suit the operational circumstances of a diverse range of vessels, and that is one area where this bill is a little lacking. There's very clear feedback from industry and experts that the bill's proposed amendments would require vessels to conduct headcounts even if they do not carry passengers and would provide a blanket exemption to others, such as public transport vehicles. We would not want this legislation to lead to unforeseen circumstances where vessels seek to have themselves considered as public transportation when they're not, in order to, for example, gain an exemption. It removes the flexibility given to AMSA, and I understand, Senator Sterle, that you are keen to remove flexibility. However, flexibility is actually still an important aspect of any regulation in practice. The authorities that oversee these regulations do need to be flexible enough to deal with a range of different circumstances.

I think that we need to see what AMSA develops in terms of more robust safety requirements in future. I believe that technology will actually drive us forward on this, and that we don't want to put in place regulations that would enshrine methods that don't have the best safety outcomes, when technology could potentially deal with a lot of these issues in a more effective way.

As I say, I am extraordinarily sympathetic to the Mills family. I'm extraordinarily sympathetic to the arguments Senator Sterle has put forward. I do not believe that there has ever been an adequate explanation presented to the Rural and Regional Affairs and Transport Committee as to why a single headcount achieves anything. I do not see the point of continuing in that environment; however, I do think we need to allow the process to continue and the changes to come forward, and then we will examine them. I would also encourage the Rural and Regional Affairs and Transport Committee to finalise its inquiry. I think that would be a positive step. I think inquiries are not there just to elucidate issues; they're also there to make some recommendations, and I would like to see that inquiry finalised.

In conclusion, once again, my absolute sympathy goes out to the Mills family. I want to acknowledge the work done by Senator Sterle. I want to acknowledge the work done in the origins of this debate by my colleague Senator Reynolds and the current chair of the Rural and Regional Affairs and Transport Legislation Committee, Senator McDonald. Whilst we will not be supporting this bill, I do commend Senator Sterle for his efforts.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

I want to start by acknowledging the enormous pain and suffering of the family of Damien Mills. His father-in-law said Damien was 'a great dad, good husband and mate, son-in-law and son'. To lose a loved one is incredibly hard, and my heart really just goes out to Nicole, Damien's widow, and Richard, his father. I empathise with the loss that they are feeling. Having lost my wife only five months ago, I know that the grief you feel when you lose a loved one is overwhelming. It's now five years since Damien died, but I know—people have told me—that you never get over it. Damien will be in their lives forever, and that gulf, that sense of loss, will be with them forever.

I also want to thank Senator Sterle for bringing this bill to us today. Sometimes, in this place, you really wonder whether what you're doing is actually making a difference. But there are times when you see that here is something simple and straightforward that would make a difference. It's obviously not going to bring Damien Mills back, but it will make a difference going forward by reducing the risk of similar circumstances happening again. So thank you, Senator Sterle, for your work in bringing this to us today.

In the midst of their pain, Damien Mills's family have fought to make sure that what they went through doesn't happen to anyone else. His father-in-law said, 'We'd feel shattered if we went through all of this and then the same thing happened again.' I'd like to quote from Nicole Mills's powerful evidence to our Rural and Regional Affairs and Transport Committee. She said:

I would like to get the answers as to why my husband never returned home after spending the day on charter vessel Ten Sixty Six and what the Australian Maritime Safety Authority did in investigating the circumstances surrounding Damien's death.

We're here today because, clearly, we, as a committee, and Ms Mills haven't received satisfactory answers—not from AMSA and not from the coalition government. We have the tragic loss of Damien Mills's life; there are potentially other lives at stake that could be saved because of the simple actions that are being proposed in this legislation today.

It's worth noting that Damien's father had praise for the Western Australian Police Force and the Western Australian Water Police. He said they were 'diligent and thorough in their investigation'. And we do know that, as Senator Brockman just said, AMSA have actually been given a bit of a shake-up over this and that AMSA have now belatedly responded to this issue. We, of course, welcome the positive steps that they have taken, but more is needed, and it is needed now, not who knows how long down the track, when technology, maybe, will do something so that these sorts of accidents won't happen in the future. The time to be taking this simple step is now.

The change this bill makes is a simple one. As specified in the explanatory memorandum, it requires that, in certain situations, masters of domestic commercial vessels conduct, at a minimum, two headcounts of their passengers. That's not a big thing to do. It's not hard to do. They already have to do one. Doing one at the beginning and one at the end is not a great burden to put upon the masters of these vessels.

The rational for this is very clear. In the evidence to our RRAT committee hearing, the Western Australia Water Police said that, had they known that Mr Mills was not on the vessel when it returned to shore, they would very likely have been able to find him and save his life. That's the simple reality of why we are here today with this legislation: if they had known that Mr Mills wasn't on board, they would have been able to immediately mount a search to find him and the likelihood is that he would have been alive.

I want to go to the AMSA response. As I said, they have taken a number of positive steps. They have had a bit of a shake-up to think about what needs to happen in these sorts of circumstances. AMSA accepted that introducing a requirement for two headcounts would improve things. They argued for flexibility and technology rather than requiring two headcounts. Senator Brockman just said that technology was going to save the day. With regard to flexibility, I think that this is a time when flexibility is not required. This is a simple step. You don't need flexibility; you need to know how many passengers get on board your vessel and you need to know how many passengers get off, to make sure that they are all there. It's not a case where you need flexibility. Flexibility was what ended up happening. Flexibility meant that there wasn't a second headcount taken. Flexibility meant that, very sadly, someone went overboard and was not missed and ended up losing his life.

With regard to technology, the prospect of technology making it easy to identify who is on and who is off and whether they stay on the vessel for the whole time has great promise, but, in the meantime, while we are still developing that technology, I think the legislation that requires two headcounts is a very important step. Maybe it will only be stop-gap legislation. Maybe in a year or two we can come back with an amendment to this legislation to say we don't need two headcounts anymore because we've got this fabulous new technology that will do the same thing as the two headcounts. I would look forward to that and I'd be very happy to support that amendment to this legislation when and if that occurs, but, in the meantime, this is a really simple and important measure to make sure that people are safe. Fundamentally, that's one of the basic things that we are here to do as parliamentarians, and which the government is here to do as well: keep people safe. When you've got legislation like this being proposed, which wouldn't impose a massive burden and would be simple, I think it's incumbent upon us to support the legislation. It's a really sensible change and it's an important change.

Once again, I want to commend Senator Sterle for all of his work on this issue, bringing this to us today and introducing what will become Damien's law. As you will understand, the Greens support this wholeheartedly. Despite the contribution from Senator Brockman just then, we call upon the government to see that they should support it too. I would really find it bewildering if they did not. Thank you.

Carol Brown (Tasmania, Australian Labor Party, Shadow Assistant Minister for Infrastructure and Regional Tourism) Share this | Link to this | Hansard source

I would like to make a brief contribution to what is an extremely important piece of legislation. The Marine Safety (Domestic Commercial Vessel) National Law Amendment (Improving Safety) Bill 2019 is an example of parliament at its best. Damien Mills tragically lost his life when he fell overboard while on a charter vessel between Rottnest Island and Fremantle in Western Australia on 31 October 2014. Mr Mills worked in Perth as a mortgage broker and was on a daytime cruise with 36 other people, most of whom he did not know. The cruise was organised by Hobart loans provider Pepper Group. It was a social affair with many guests drinking and the boat was quite crowded. When they were back in Fremantle, guests quickly got off the boat because many of them had felt that it was unsafe. The seas were rough and there had been very large waves hitting the boat and knocking people off their feet.

Damien's death was devastating for his wife, family and friends. It was also preventable. When inquiring into the circumstances surrounding Mr Mills's death, the Western Australian state coroner noted that, if a proper headcount of passengers when they were embarking and disembarking the vessel had been in place, Mr Mills would still be with us today. When he appeared in the Coroner's Court, the cruise-company owner and boat skipper, Daniel Lippiatt, insisted that he had done a headcount and Mr Mills had disembarked. His claims were rejected by the coroner, Sarah Linton. Ms Linton was critical of the two-person crew for not doing more to make sure that passengers who had been drinking alcohol were safe and aware of the rough conditions and that they stayed seated. When handing down her report, Ms Linton said:

This was a particularly tragic case, involving the death of a hardworking father of a young family who went out for a simple day of socialising and networking as part of his business and never returned home.

She also said she preferred headcounts be mandatory rather than recommended and that a proper supervision of passengers should occur. To quote Ms Linton again:

If that had been done in this case, the deceased might still be alive today

Following the coroner's report on Damien's death, Mr Mills's wife and father decided to take action. They want the coroner's recommendation of two compulsory headcounts enacted. As a part of their advocacy for change, Nicole and Richard met with Senator Sterle. As legislators, we have the unique capacity to effect long-lasting change. We have processes that help us gather the information we need to inform that change and expert advice that helps us convert the policy change we are seeking to legislate. Senator Sterle has done all that for the Mills family and for the safety of future passengers. As outlined in the explanatory memorandum, the purpose of this bill is to guarantee the safety of passengers on domestic commercial vessels. The bill will require masters of those vessels to conduct a minimum of two headcounts of their passengers. The two headcounts must be conducted at the beginning and the end of each voyage. At present, only one headcount is required, which can be carried out at any time. The bill does not seek to impose this requirement on class 4 vessels, vessels used for public transport or vessels that are more than 24 metres long.

By bringing the bill forward, Senator Sterle is demonstrating to the Mills family and many others like them that our parliament can work for them. The coroner's report was delivered on 30 October 2017, and in her report the coroner noted that there was evidence that Mr Mills's death may have been preventable if his disappearance had been identified sooner. The coroner concluded that the evidence underscored the need for simple processes, such as performing careful and orderly headcounts and supervising passengers properly while on board, which should have been undertaken by the crew of the charter boat to ensure the safety of their passengers.

The coroner also noted that the court had been informed by AMSA that they understand the safety issues raised by the death of Mr Mills, and that it is AMSA's intention that steps will be taken to promote headcounts as a safety measure. In her report, the coroner urged AMSA to ensure that safety systems are implemented and duly carried out by operators with care and diligence. It is now February 2020, more than two years after the release of the coroner's report, and we are yet to see any real action from AMSA. Not only have AMSA failed to act; the government has not intervened to ensure AMSA meets the undertakings they gave the Coroner's Court of Western Australia. It is quite disappointing to hear from Senator Brockman that the government will not be supporting a bill that will make a real difference—a bill that seeks to legislate a very simple but very important measure to ensure the safety of passengers.

Senator Brockman also talked about AMSA needing to take the time to get it right. Well, frankly, that time has come and gone. It's been two years since the coroner's report, and there has been no real action. Senator Brockman talked about doing things in a timely manner. It's no wonder Mr Mills's family has had enough of waiting. This is a bill that seeks to ensure people do get home safely. There's no impact, as Senator Sterle has indicated, on the fishing and agricultural industry—no impact. Those opposite talked about flexibility. Flexibility must not come at the expense of passenger safety.

This is a good bill. I urge the government to change its position and support this bill, which will give some comfort to the Mills family and, importantly, ensure that people do get home safely. As Senator Sterle said in his second reading speech, this is Damien's law. I hope that today we'll see the passing of this law as the first stage of this important legislation being enacted.

Susan McDonald (Queensland, National Party) Share this | Link to this | Hansard source

I rise today to talk about the Marine Safety (Domestic Commercial Vessel) National Law Amendment (Improving Safety) Bill 2019, an important piece of legislation that is designed to save lives and ensure Australian tour and charter operators continue to uphold the high standards expected of them. I acknowledge the Western Australian senators Senator Sterle and Senator Brockman for their interest in and attention to this matter.

At points in time we have had problems with our transport—people being left behind after the dinner break on the Brisbane to Mount Isa bus route, or something similar. But these have not been serious matters in the way that being left at sea is. The tragic death of Damien Mills off Fremantle in 2014 was the subject of a coroner's inquiry, which heard from a crew member on that fateful journey who said, 'The more headcounts, the better.' The coroner agreed with this belief but found that the Australian Maritime Safety Authority had already decided to promote headcounts. The coroner also decided to leave the implementation of such measures to AMSA.

Senator Sterle and, indeed, the entire Senate Standing Committee on Rural and Regional Affairs and Transport are united in the belief that anything government can do to protect life is worthy of support; however, creating a new law seems hasty when the Rural and Regional Affairs and Transport Legislation Committee is yet to make its findings and recommendations on this matter. The government believes it would be preferable to amend the existing marine orders. Additionally, feedback from industry and associated experts is that they support AMSA's attempts to improve passenger safety and that any federal law should include a more diverse range of vessels than what is currently being proposed. In my home state of Queensland, where in the diving industry we've had the issue of passengers being left on the reef, there was the adoption of a code of conduct, which has worked well.

This bill removes the flexibility that was given to AMSA, the independent national safety regulator, which was charged by the parliament to use marine orders to specify the technical safety requirements that are the most effective in a given situation. The change could prevent or delay AMSA implementing more robust safety requirements in the future—for example, if better safety technology were to make headcounts redundant. While the bill is aimed at improving passenger safety, it does not contemplate the safety requirements that are actually needed for the vessels it regulates or excludes; therefore, the government cannot support the bill in its current form. However, we are very keen to work with Senator Sterle to reach a conclusion that addresses his and my concerns, and those of many people associated with the maritime industry. I would add that I and the RRAT committee look forward to AMSA doing something in this space urgently. Every day that goes by is another day of risk that someone else could endure the unimaginable horror of being left behind in the ocean. The truth is that marine operators are already keenly aware of their obligations and they are willing to work with AMSA on implementing robust safety systems and improving systems the operators have already got in place. I know that there are significant operators—again, in my home state of Queensland—that do count people on and off their crafts, sometimes up to as many as 200 people.

I would like to draw the Senate's attention to a case that is similar to Mr Mills's that happened in Queensland in 1998, when American tourists Thomas and Eileen Lonergan were left in the Coral Sea off Port Douglas after a diving trip and were never seen again. The whole state's diving industry quickly responded, realising that this tragedy could never be repeated. Key reforms were introduced a year after the Lonergans' deaths requiring tour operators to carry out mandatory counts of all people on board their vessels and to have a lookout aboard to supervise before, during and after dives.

Dive Queensland has had a strong code of practice in place since 1998 that is regularly probed and updated. As at 25 January 2018, the Cairns Post reported that Queensland was 'the only Australian jurisdiction to have specific legislation and codes of practice for recreational diving and snorkelling'. Other recent changes to the code include mandating automatic external defibrillators on all vessels or dive sites and requiring at-risk snorkelers to sign a medical declaration, easily identify at-risk snorkelers and requiring them to use a floatation device. Despite millions of people visiting the reef since 1998, there has only been one other person left behind after snorkelling—in 2011—but he swam to another boat and raised the alarm.

At present, AMSA is consulting on the improvements it will make to marine order 504 to enhance safety management on passenger vessels, and its draft marine order is currently out for public consultation. After this consultation, AMSA expects to make amendments to MO504 and release further industry guidance in April this year with requirements to come into effect from 1 July. AMSA has also submitted a brief of evidence to the Commonwealth Director of Public Prosecutions in relation to this most recent fatality and advised the RRAT committee of that in September 2019.

Again, I say that protecting the lives of all people who work and play in our waters is of paramount importance, but this bill should not be rushed in at a time when so much good work is starting to take place and before the Senate committee has completed its task. I express my sincerest condolences to the Mills family, and I wish to assure them of our continued attention in this matter.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

I rise to indicate Centre Alliance's strong support for the Marine Safety (Domestic Commercial Vessel) National Law Amendment (Improving Safety) Bill 2019. The story of Damien Mills is one of tragedy, and it's actually one of unnecessary tragedy. I won't repeat the details that Senator Sterle gave to the chamber, but I will say that Senator Sterle has taken leadership on this, he's been passionate about this and he's worked hard on this. Good on him for doing that. What he's trying to do is take a tragic situation and at least get some good to come from it. I can see that there will be obstruction from the other side of the chamber in his goal today.

The story of Damien reminds me of a tragic incident that took place on 3 August 1987, where two submariners were left outside the pressure hole when HMAS Otama dived, which, unfortunately, resulted in the loss of life of both Able Seaman Hugh Marcrow and Seaman Damien Humphreys. It was a shock to the Navy. It was a shock to all submariners and all sailors right throughout the Navy. But what I will say from that is that the Navy, as an authority, acted immediately. I recall them going to sea very shortly thereafter with significant changes that dealt with making sure you counted people going out and you counted people coming back, and they were logged. They were very sensible measures and very similar to what Senator Sterle is proposing here. The Navy acted very, very quickly on that.

AMSA has not acted quickly. As Senator Brown has indicated, it's been two years since this tragic incident. It doesn't require a complex resolution. Indeed, if what Senator Brockman and Senator McDonald said is true—that this does need to be looked at—that doesn't stop an interim order being made, something that errs on the side of caution, to deal with this issue and to place a legal requirement on people to be responsible. In listening to the story, as part of the committee, I simply couldn't believe that any sensible mariner would not be doing what Senator Sterle has suggested in his bill.

This bill is only necessary because of the perfunctory response of AMSA. And, it appears now, in circumstances where AMSA hasn't acted, the minister is not acting either—so this goes unchecked by government. And now the Senate has stepped up, and Senator Sterle, in particular, has put a bill before the Senate that allows us to deal with that. While I note that Senators Brockman and McDonald understand the tragedy, I'm very saddened that there was lots of Sir Humphrey Appleby in amongst all of their rhetoric about why this bill should not go ahead. AMSA has not performed here. The minister overseeing AMSA has not performed here. The Senate is acting, and yet we have Sir Humphrey Appleby on the other side of the chamber. I urge the Senate to pass this bill.

Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source

I also rise this morning to make a contribution to the debate on this bill, the Marine Safety (Domestic Commercial Vessel) National Law Amendment (Improving Safety) Bill 2019. I think it's important to be very clear about a number of matters. Senator Brown's contribution reflected on how she believed something good was going to come out of the tragic circumstances of this loss of life. I'd argue that something good is already coming out of these tragic circumstances, and I add my applause and acknowledgment of the important work that Senator Sterle, from Western Australia, has done on this very, very important issue. Senator Rice was also correct: in her contribution, she said that this bill will keep people safe.

What is at dispute here is not whether or not the sentiment behind what Senator Sterle is trying to do is correct—because it is absolutely correct. I would challenge anyone in the Senate chamber to suggest that the sentiment in Senator Sterle's proposal here is incorrect; it's completely correct and is supported by everyone in this chamber. The point of difference is about what the best way is, what the more perfect way is, to deal with this particular set of very, very tragic circumstances. The government's view is that this is not a perfect bill. Senator Brown, in her contribution, said that this was a good bill. I don't dispute that. It is a good bill. But it is not a perfect bill. And so, when we're thinking about the safety of people at and on the sea, the legislative response from this chamber should be as perfect as it can be.

In the reading that I've done with regard to this debate, it's very clear that the Senate Rural and Regional Affairs and Transport Legislation Committee has done some very good work in exposing something Senator Patrick has talked about: that is, the recalcitrance—my word; I don't think anyone else has used that word—of the regulatory body that is responsible for overseeing marine safety in our country. It does appear to me that their response was too slow. Their reactions were too slow. But it's a testimony to the Senate committee process and to this chamber that AMSA has improved its response and its industry consultations around this particular issue. I think we're absolutely in agreement in this chamber; we disagree only on what is the right response.

The coroner's report has been mentioned a number of times in contributions from others, so I think it's important that we go back to it. I would like to share for the Senate chamber the detail of the coroner's report—what it actually said—rather than the paraphrasing that some Senate colleagues have used, in good faith, in their contributions. I will quote from the summary of the inquiry by the Coroner's Court of Western Australia into the death of Damien Mark Mills, delivered on 30 October 2017. At the very end, the summary states:

The Coroner noted that there was evidence that the deceased's death may have been preventable if his disappearance had been identified sooner.

That is exactly the point that Senator Sterle is making. Further:

The Coroner concluded the evidence underscored the need for simple processes, such as performing careful and orderly headcounts and supervising passengers properly while on board, which should be undertaken by the crew of a charter boat to ensure the safety of their passengers.

The Coroner found the deceased died on or about 31 October 2014 in the Indian Ocean approximately three nautical miles off Leighton Beach in circumstances consistent with immersion and found death was by way of accident.

The final paragraph states:

The Coroner did not make any recommendations but made the observation the Court had been informed by AMSA that they have understood the safety issues raised by the death of the deceased and it was AMSA's intention that steps will be taken to promote headcounts as a safety measure. The Coroner urged AMSA to ensure that safety systems be implemented and are duly carried out by operators with care and diligence.

I think this goes to Senator Patrick's point, which again I think is a fair one—and that goes to the issue of responsiveness. How responsive are our regulators, are our departments of government, in responding to what are very, very tragic circumstances? For the sake of completeness, let me go to the conclusion of the full report of the coroner. Paragraph 228, on page 47, states:

This was a particularly tragic case, involving the death of a hardworking father of a young family who went out for a simple day of socialising and networking as part of his business and never returned home. While his death was an accident, there was evidence that it may have been preventable if his disappearance had been identified sooner. The evidence underscored the need for simple processes, such as performing careful and orderly headcounts and supervising passengers properly while on board, to be undertaken by the crew of charter boats to ensure the safety of their passengers. If that had been done in this case, the deceased might still be alive today.

Paragraph 229, the final paragraph, is very important when we're considering the matter before us. That is: what is the appropriate response? There is no debate, no question, about whether there should be a response. What we are debating here is: what should be the nature, the precise form, of that response? Paragraph 229 states:

With the transition to a new national regulatory body, it is difficult to make any meaningful recommendations. However, I am informed by AMSA, who participated actively in the inquest, that they have understood the safety issues raise by the death of the deceased and it is AMSA's intention that steps will be taken, within the National Law framework, to promote headcounts as a safety measure. It is also important that AMSA do its best to ensure that safety systems implemented are duly carried out by operators with care and diligence. The knowledge gained from the tragic outcome of this case must form part of the safety message for the future, with the aim of ensuring that similar deaths are prevented.

So the government, in coming to a decision that this bill shouldn't be supported, is not arguing that the intent of what Senator Sterle is trying to achieve should not be supported—it should absolutely be supported. It's the responsibility of government, and I'm sure it would be the responsibility of an alternative government, to make sure that any legislative measure is as precise as it can be, and unfortunately this bill is not precise. It is heading in the right direction. The government has made it known that it's willing to engage with Senator Sterle on this particular matter. That's what I'm advised; if that's different, Senator Sterle, I'm happy to take that up for you. But I'm advised that the government is willing to continue to engage with Senator Sterle to make sure that a legislative response is necessary as opposed to changes to the marine order, which Senator McDonald alluded to.

But let's be clear: as drafted, the bill's proposed amendments require vessels to conduct headcounts of passengers even if they do not carry passengers and provide blanket exemptions for others such as public transport vehicles. The bill removes flexibility given to the Australian Maritime Safety Authority, the independent national safety regulator charged by this parliament to use marine orders to specify the technical safety requirements that are most effective in a given situation. This legislation could prevent or delay AMSA from implementing more robust safety requirements in future—for example, if better safety technology were to make headcounts redundant. This is a very, very important point. Some in this chamber believe this bill might remedy the situation that was characterised by Damien Mills's tragic death. The government is saying that this bill could actually prevent or delay AMSA from implementing more robust safety requirements—and I'm paraphrasing now—meaning it could imperil the safety of other people at sea in the future. It's a very heavy burden for people to carry to agree to the passage of this bill today only to find—heaven forbid that this is the case!—their actions today actually imperilled the safety of people in the future. That's a heavy burden for senators to carry.

No-one doubts the importance and significance of this particular piece of legislation. What the government is saying is that it is not as good as it needs to be. The government is saying that there is actually an alternative way to achieve the sentiment—the very, very, correct sentiment—that Senator Sterle is demonstrating through this legislation. That's a very, very heavy matter that I think Senate colleagues should be thinking about. The sentiment is not in dispute, but is this the right remedy?

Senator Patrick, if you don't mind me making these remarks, you are a senator whose contributions in this place are always very precise, whose contributions often go to what is the right way to correct or remedy an issue. I don't think this meets that high standard that you often apply in other particular areas with great care and with great precision. Unfortunately, this is not the right bill to deal with the matters that Damien Mills's tragic loss brought to the attention of the Senate. So I would caution senators greatly about whether or not it's right to mix sentiment with the precision that's necessary. They're two separate issues. The contributions from everyone—Senator Brockman, Senator Sterle, Senator Brown, Senator Rice and you, Senator Patrick—are clear. We want situations like this not to have to happen again and families not to have to deal with the tragic loss of someone that they love and care for. I don't think 'Damien's law' is the right way to do that.

The consultation process has been ongoing. The Senate committee has quite rightly put pressure on AMSA and made it accountable. The government is open to discussing these issues further so that the sentiment can be the best it can possibly be and any legislative response, if that is the right action, can be the best it can be, the most perfect it can be. At the moment, this is not a perfect bill. The safety of people, whether on land, in the air or on the sea, deserves precise bills. It deserves precise legislative responses.

So the government can't support this bill. I think the government's position might be a little bit clearer now than it might have been a few moments ago. The coroner's report is a sad but compelling record. The coroner could have been more prescriptive about what the suitable response would be, but it chose not to. It chose not to. So I think they are points that need to weigh very, very heavily on the shoulders of senators when they consider their contributions.

Mehreen Faruqi (NSW, Australian Greens) Share this | Link to this | Hansard source

Pursuant to order, the Senate is suspended to allow senators to attend an address in the House of Representatives by His Excellency Mr Joko Widodo, President of the Republic of Indonesia.

Sitting suspended from 11:00 to 14:30