Fishos waiting for justice — Senate finds AMSA legislation botched

FOUR Territory fishos were run over by a 45m barge in Darwin Harbour in early 2016 but thanks to legislation botched by the nation’s maritime regulatory body the four men are still searching for justice

Dale Marshal. with wife Bronwyn and daughter Mischa. 8, is still waiting for action years after his boat was smashed by a barge. Picture: Glenn Campbell

IN MAY 2016, four Territory fishos were run over by a 45m barge in Darwin Harbour.

To this day, thanks to legislation botched by the nation’s maritime regulatory body, the Australian Maritime Safety Authority (AMSA), the four men — Dale Marshall, Jaron Early, Michael Mizen and Damien Pell — are still searching for justice.

The flawed legislation meant anyone who collided with another vessel in Australian waters could not be prosecuted.

A pattern of alleged negligence from AMSA is currently under the scrutiny of the Australian Government.

Last week, a senate committee conducting an inquiry into the performance of AMSA excoriated the statutory body as utterly incapable of regulating Australian waters and marine operators.

Since 2013, 50 people have died in Australian waters.

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“You haven’t even got to first base as a safety body,” Senator Glenn Sterle told the senate committee.

“People are dying and it looks to me like no one is being held accountable. And worse, no one thinks it’s a problem that should be fixed.”

The Territory fishos were left for dead when, a few clicks off of Charles Pt, it’s alleged the barge Jane Virgo cleaved through their eight-metre fibreglass boat.

But any hope of redress for the men was sunk before the accident even occurred when AMSA incorrectly advised legislators during the drawing up of the Navigation Act 2012.

Last Thursday, under questioning at the senate inquiry, AMSA and its lawyers conceded the Navigation Act — the legislative document enshrining Australia’s sea laws, and the thing protecting crash victims like the four fishos — was a defunct document.

Subsequently, under Australian maritime law, if a ship collided with another and was found at fault, there was no legal grounds for punishment from July 1, 2013 until December 2018, when AMSA quietly rushed to amend the legislation.

In response to a list of questions from the NT News, AMSA denied responsibility for the faults in the Navigation Act 2012.

“AMSA did not draft the Navigation Act 2012 or Marine Safety (Domestic Commercial Vessel) National Law Act 2012,” a statement from AMSA read.

“As set out in the Legislation Handbook (published by the Commonwealth Department of Prime Minister and Cabinet), all government bills are drafted by the Office of Parliamentary Counsel based on drafting instructions provided by departments.”

But during the senate inquiry, Mary Dean, AMSA’s National Manger of Compliance Strategy, conceded AMSA’s decisive role in the mishandled legislation.

“Our department is the instructing department and holds the policy responsibility for legislation,” Ms Dean told the inquiry.

“In terms of deciding matters that needed to be enshrined in the legislation … AMSA officers were involved in those discussions.”

Ms Dean told the inquiry she directly took part in the drafting of the Navigation Act 2012.

“I was involved in the drafting of the Navigation Act, yes,” Ms Dean said under questioning.

The error in the legislation stems from a legal oversight which failed to connect marine orders — the regulations which govern maritime behaviour from seafarers’ actions to operators’ preparation of vessels — to law.

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“The issue identified … was that neither Act included a definitional provision that made clear that those references included Marine Orders as well as ‘ordinary’ regulations,” an AMSA spokesman said.

During the inquiry, senators attempted to come to grips with AMSA’s inability to investigate cases like the incident in Darwin Harbour.

Senator Sterle told the NT News AMSA had been “shadowy” and at times “absolutely pathetic” in its ability to answer questions relating to its own investigations and maritime legislation during the inquiry.

“I cannot for the life of me think how the public could have any confidence in our national marine safety authority,” Senator Sterle said.

“There has been 50 deaths at sea since 2013, and AMSA can’t even tell me how many prosecutions have gone ahead.”

Nearly three years after they were hit at sea, the four Territory fishos still feel they have been let down by the maritime safety body.

After an 18 month AMSA investigation into the collision, the Commonwealth Director of Public Prosecutions laid seven charges against the owner of Shorebarge Pty Ltd, the operator of the Jane Virgo.

But due to the problems with AMSA’s legislation, charges under Sections 177 and 36 of the Navigation Act (‘Masters responsibility to comply with the international prevention of collision regulations’ and ‘Master causing or permitting a person to perform duties or functions whereby that person wasn’t appropriately qualified’) had to be dropped.

AMSA said it was extremely disappointed that the full range of potential offences could not be proceeded with but noted that the seven charges “relate to the collision in 2016 and are based on evidence that AMSA gathered during the investigation into that collision”.

“Now we feel like even (justice) has been taken away from us because of the incompetence within AMSA,” Mr Marshall said.

“But someone at some level has got to be held accountable.”

After a version of this story was printed in the Sunday Territorian, Mr Marshall said AMSA had reached out to him for the first time in years.

“ (AMSA) didn’t want to know me for three years and now suddenly they are my best mate,” Mr Marshall said.

Mr Marshall said he was still troubled by AMSA’s initial investigation into the collision and the faults in the legislation which have left himself and three others unable to be compensated as victims of crime.

“The result of AMSA messing up the legislation is that people could walk away scot-free from almost killing people while they were anchored in Australian waters,” he said.

“There has been no remorse shown to us by the people or the body responsible for the collision.”

To this day, the collision still haunts those who were on the boat when the barge hit.

“I had intense anxiety,” Mr Marshall said.

“I’ve got four kids, and the whole mortality thing — I still haven’t got my head around it.”

Mr Early said his life had changed since the incident.

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“It took a long time to sleep, months and months to get a normal sleep,” he said.

“Some people never recover from that, and I’m not sure if you ever quite can.”

With AMSA now under heavy scrutiny, and Shorebarge before the courts on charges relating to operating an unseaworthy vessel, the four fishos are still discovering more about the system that has let them down.

“All I can see is a litany of incompetence left in front of me … that’s the whole of AMSA. And none of you should feel left out,” Senator Sterle told AMSA officials during the inquiry.

“We will be looking at your marine orders, your legislation, your operation. Everything you do or don’t do. And we will fix this.”