Shipowners, charterers and their various agents will be affected by new requirements for non Australian crew entering Australia. The Maritime Crew Visa (MCV), which came into effect on 1 July 2007, will apply to all foreign crew (except New Zealanders and Australian permanent visa holders) working on board non-military vessels on international voyages entering Australia.
Non-military vessels include commercial vessels such as cargo vessels, cruise ships and fishing vessels, and public and/or government scientific vessels. About 130,000 foreign crew travel to Australia each year by sea, about 90% as crew of cargo ships and the rest as crew of passenger ships.
The MCV is introduced under the Migration Amendment (Maritime Crew) Act 2007. The MCV is designed to provide tough checks of foreign sea crew, to record maritime crew movement records and improve the protection of Australia’s borders from an increasing range of security threats. The MCV is the latest in a raft of legislative measures introduced by the Australian Government to prevent maritime terrorism and to strengthen Australia’s sea border security. With its huge coastline and many ports (often in or near Australia’s largest cities) Australia is a potential target for maritime terrorism and border security incursions. The Australian Government and the Australian shipping industry are sensitive to these potential risks. Earlier legislative measures adopted by the Australian Government include the introduction of the IMO’s ISPS Code pursuant to the Maritime Transport and Offshore Facilities Security Act 2003, which imposed security restrictions on passengers disembarking from cruise ships and on people entering port facilities and boarding vessels during their stay in Australian ports.
The Australian Government says that the MCV will bring vessel crew visas into line with visa arrangements for most other visitors to Australia. The MCV will replace the previous Special Purpose Visa (SPV) which is granted automatically to maritime crew on arrival in Australia. The SPV simply requires that crew members have a valid passport and a secondary form of identification connecting their employment to the ship on which they arrive. The ship's master is then responsible for suppling crew lists to Australian's Customs Service (in accordance with customs approved forms) prior to arrival and on departure in Australia. The SPV was not designed as a serious form of border security, as traditionally seafarers were allowed into Australia with minimal security checking.
The MCV requires a formal visa application to be made outside Australia either by application over the internet or application lodged by mail or courier. Maritime crew applying for the MCV will be granted an MCV before arriving in Australia. No visa application charge will apply to the MCV. The visa will be valid for three years from the date the visa is granted and will allow multiple entries by sea as a member of the ship’s crew only. The MCV does not grant the holder entry into Australia by air. Crew entering Australia by air to join a ship must hold a valid Transit visa for air travel together with the MCV and have five days from their arrival in Australia in which to sign-on to a ship. The MCV will only permit holders to carry out work associated with the duties performed as crew with the vessel. In practice it is likely that most MCVs will be applied for on the crew’s behalf by shipping agents.
The Department of Immigration and Citizenship intends to carry out a "soft implementation" of the MCV by way of parallel provisions to retain the SPV for the first six months of implementation of the MCV. From 1 January 2008, the MCV will be mandatory. Failure to comply with the MCV requirements may result in fines of AUD $5,000 against the person responsible for the crew (operator, master, charterer and/or agent) and may lead to the crew being restricted on board while the vessel is in an Australian port. It is ironic that as vessels spend less time in port due to modern loading and discharging procedures (often little more than 24 hours whether they are bulk carriers, container vessels or passenger vessels) crew movement restrictions are tougher than ever.
Although the MCV procedure has general bipartisan support, it has not been without its critics in the Parliament and also from the Maritime Union of Australia whose members include seamen. These critics consider that the MCV procedure is not sufficiently rigorous in checking foreign crew and in particular is less rigorous than the security checks undertaken for Australian crew. In an era where the Australian flag fleet and Australian crew are in rapid decline (even in relation to coastal trading) these criticisms are part of a larger shipping industry wide criticism of the failure of repeated Australian Governments (of both political persuasions) to take any real steps to reverse that decline. The Australian Government has refused to follow the path adopted by many nations (especially in Europe) of introducing a tonnage tax to attract shipping back to the Australian flag and to make Australia a more attractive flag for shipowners (whether Australian or non-Australian).
These matters have become particularly critical in the coastal trade where the lack of Australian tonnage has meant that foreign vessels are frequently engaged on the coastal trade either with single or multi-voyage permits as exemptions from the cabotage provisions under the Australian Navigation Act 1912.
In many respects it is a vicious circle perpetrating the long standing debate about competition and globalism against perceived national interests in having a well maintained Australian merchant fleet and workforce. This debate has now been complicated by security, migration and customs concerns embodied in the new MCV procedure.
Although the issue of MCVs for foreign crew in the context of maritime security may seem to have little to do with the politics and economics of Australian shipping (and especially coastal shipping), it is unlikely that we have heard the last of this issue. It may well be that future disputes will arise under say the charterparty of a vessel employed for Australian trade in relation to difficulties in obtaining MCVs or the refusal of the Government to provide MCVs which could well lead to issues under the charterparty as to whether the vessel’s crewing arrangements comply with the charterparty requirements. Similar issues under the SVP system arose in the Comandate litigation. Ultimately the case was resolved and the issue was not determined. However, along with other peculiarities facing parties involved in trading vessels to and from Australia, those involved in negotiating charterparties and other shipping contracts (and insuring and financing them) will need to have regard to the ramifications of these new maritime security requirements and in particular who is responsible and who is at risk if there are problems.
Shippers and importers of cargo may also be affected if, for instance, problems in obtaining MCVs lead to vessels being delayed, and say missing their turn at already congested bulk loading terminals. It may not just be the crew which can be affected but everybody involved in the trading, insuring and financing of the voyage may be affected. Parties involved in Australian shipping should review their contracts to ensure that these risks are properly allocated.
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