UK Club’s legal correspondent in Australia Cocks MacNish has issued an update dated September 20th.
The government has given notice to the Shipping Industry, by which it includes owners, charterers, master, exporters, importers and the shipping industry generally, of the Western Australia Government’s Expectations and “measures that might be adopted if those expectations are not met”.
Cocks MacNish said that the inescapable inference of this was that if any particular operators were to bring or threaten to bring Covid into Western Australia then they would significantly increase the chances of the WA Government introducing more stringent anti-Covid measures on top of the ones that already exist.
A. WA Government’s Expectations of Shipping Industry as a minimum is that members of the shipping industry
- Provide full, accurate and transparent reporting and disclosure, including information required prior to arrival as part of the Commonwealth’s Biosecurity processes and for compliance with individual Port Authority protocols.
- Ensure safe and well documented crew change
practices at previous ports of call and during passage to WA including:
- the vaccination of crew;
- suitable quarantine of crew overseas prior to embarking the vessel, with safe transfer to the vessel;
- use of accredited COVID-19 testing of crew for early and ongoing detections; and
- keeping records of quarantine, testing and vaccination of all crew;
- Ensure, where practicable, any vessel with positive COVID-19 infectious cases on board does not continue to WA.
- Ensure that any crewmember who reports symptoms or exhibits signs of COVID-19 follows safe practices (including isolation measures) to limit the risk of transmission to others on board the vessel.
B. WA Government’s Expectations of Shipping Industry using ports of higher risks:
The government recognized that the risk profile of some vessels was higher than others.
Whilst particular jurisdictions (other than Indonesia) have not been named, the government has said that the Chief Health Officer may identify that vessels operated by a particular company or that have visited ports of certain jurisdictions pose a higher risk.
Therefore, in addition to the expectations referred to in (A) above the government expects the Shipping Industry (but specifically importers and exporters) to make every effort to avoid interactions with higher risk jurisdictions wherever feasible and requires the following measures to be in place for a vessel seeking to enter WA waters after having been in a higher risk location:
- There be no crew changes at a higher risk location.
- There be no onshore crew visits at higher risk locations involving the disembarkation and embarkation of crew at that location.
- Maritime workers boarding the vessel at the higher risk location must wear appropriate PPE.
- PCR COVID-19 testing of any maritime workers boarding the vessel at the higher risk location will need to return a negative result.
- Second daily rapid antigen COVID-19 testing to be conducted of the entire crew from the time of arrival at higher risk locations until just before entry into WA waters and evidence of negative tests could be made a precondition of entering WA waters.
- All crewmembers disembarking in WA from a higher risk location will be required to be vaccinated.
- A declaration of adherence to the measures outlined above by the vessel’s Master prior to entry into WA waters.
C. Existing Management and Forecast Initial Management
The government has made the point that to date the Covid risk has been managed using the following:
- Directions under the Emergency Management Act prohibiting the entry of certain vessels suspected of having COVID-19 on board and prohibiting the disembarkation of crew from those vessels.
- Requiring those who have arrived on a vessel with a declared COVID-19 outbreak to comply with quarantine and other directions; and
- Legislative amendments to the Public Health Act to hold vessels accountable for costs and expenses associated with cleaning and disinfecting vessels
D. More stringent measures if the Government’s “Expectations” are not met
If the expectations are not met the government has given notice that more serious restrictions may include the following:
- Denying entry to WA ports for incoming vessels with suspected exposure to COVID-19 and the vessel instead being kept at anchor where determined appropriate by the State Emergency Coordinator on advice from the Chief Health Officer.
- Imposing temporary prohibitions on entry of vessels which have been through higher risk ports into WA waters unless they can demonstrate that all proper measures have been taken to mitigate the risks to public health.
- Preventing vessels operated by a particular company that have arrived repeatedly with COVID-19 outbreaks from subsequently being granted permission to berth.
- Introducing an offence to knowingly or recklessly bring COVID-19 into WA via a commercial vessel which carries with it a fine or potential term of imprisonment.
- Increasing penalties for providing false or misleading information.
- Pursuing maritime claims under the Admiralty Act.
- Imposing port charges under the Port Authorities Act to cover costs associated with services, provisions and equipment that is supplied to assist in the event that a vessel has a COVID-19 case on board.
- Continuing to engage with the Commonwealth Government in relation to regulation of arrivals.
- Amending legislation.
Cocks MacNish noted that there had been no amendment of legislation to date but, as can be seen from the above, digressions by an operator or a small number of operators would have “the very real potential to make it more difficult for all operators”.