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Inside track: Transport, Shipping & Logistics

07 September 2021

#Transport, Shipping & Logistics

Inside track: Transport, Shipping & Logistics

In the media

Sea freight sector grapples with a shortage of container ships
Global sea freight was severely disrupted by the COVID crisis but is now recovering and prompting a boom new container ship orders as the industry grapples with a shortage of vessels. Shipping companies, buoyed by soaring freight prices, are splashing out cash on expanding their fleets (03 September 2021).  More...

China stokes anxiety with new maritime law
Under a revised maritime traffic safety law published earlier this year, certain foreign vessels sailing in Chinese-claimed waters will be required to give advance notice to China's maritime authorities starting September 1 (03 September 2021).  More...

There's a 'meltdown of container shipping market' coming as cargo piles up
The “stratospheric” freight rates and shipping lines’ huge Q2 profits have been slammed by cargo owners, and a new report claims the carrier alliances are “suppressing” cargo. Shipping Australia laid much of the blame for the industry’s problems on container ports, claiming the extra supply was being wasted by terminal congestion and poor port performance. Shipping Australia comment: Ship operating costs up 773%, demand up, supply up, congestion up, shipper propaganda up (02 September 2021).  More...

Good news/bad news: Crew change crisis stabilising; seafarer shortages reported
The percentage of seafarers who have to stay onboard ship beyond their contract has decreased slightly and the percentage of seafarers who have been vaccinated has risen slightly. However, for the first time, ship managers are reporting a shortage of seafarers (03 September 2021).  More...

Ports Australia urges governments step up efforts to vaccinating international seafarers
Ports Australia is calling on governments around Australia to consider how they can contribute to increasing vaccination rates of international seafarers after Maritime Safety Queensland and QLD Health announced a trial program to begin in coming weeks (02 September 2021).  More...

SAL marketwatch: Dry bulk shipping sector rallies, providing relief to owners and operators
Increasing demand for the carriage of dry bulk overtakes shipping supply in dry markets causing, as any armchair economist could predict, rising freight rates. But it's not a super-surge by any means (27 August 2021).  More...

Australia’s essential need: Not seaborne trade but seaborne supply
Tom Shugart’s Lowy Institute analysis of the rising maritime capabilities of China’s armed forces presents a bleak prospect for the imbalance between China’s growing offensive capabilities and Australia’s long-term ability to deter China from employing them against Australian territory and Australian shipping (03 September 2021).  More...

New Australian law makes offshore energy companies pay for cleanup
The Australian parliament passed a law to force big oil and gas producers to pay for the cost of decommissioning offshore rigs, with Keith Pitt, the federal minister for Resources and Water, stating the law was to ensure taxpayers are not left to foot the bill (27 August 2021).  More...

Australian Logistics Council welcomes infrastructure plan
The ALC welcomed the release of Infrastructure Australia’s 2021 Australian Infrastructure Plan citing it as an important tool in planning for the growth in Australia’s population and freight task, with Australia’s national freight task forecast to increase by 25 per cent to 962 billion tonne-km by 2040 (03 September 2021).  More...

The new National Location Registry
This August GS1 is launching a National Location Registry to streamline transport operations and boost supply chain efficiency. Government supported the NLR as part of its national freight and supply chain strategy (03 September 2021).  More...

FedEx strengthens cross-border e-commerce
A new FedEx e-commerce shipping service will help Australian businesses connect with the broader APAC and Middle East and Africa markets (03 September 2021).  More...

Victorian independent ports probe advice accepted
The Victorian government has accepted all 63 recommendations of the independent review of the Victorian ports system report. The state government said it had set out the three main areas of action, commercial ports strategy and ports Victoria are major action areas (31 August 2021).  More...

Victoria still avoids stevedore revenue policy questions
The Victorian government still finds itself unable to discuss why financial and support for mostly multinational stevedoring firms must be given by consumers, exporters and container haulage firms (31 August 2021).  More...

Senate report tabled, pushes for immediate government intervention
The Rural Regional Affairs and Transport References Committee has tabled its final report into the committee’s inquiry into the importance of a viable, safe, sustainable and efficient road transport industry (26 August 2021).  More...

NatRoad calls for on-road culture change following latest safety report
The National Road Transport Association is welcoming the federal government’s response to the Joint Select Committee on Road Safety’s report: Improving road safety in Australia, but says efforts to make our roads safer still need to go much further. The government has supported 18 of the 22 recommendations, noted three and rejected one (03 September 2021).  More...

Don’t tamper with your life – speed kills
The NHVR has released a targeted education campaign focused on the safety risks caused by illegal speed limiter tampering. In the past year, 70 per cent of fatalities involving articulated trucks occurred in speed zones of 100km/h or above (02 September 2021).  More...

A safer grain harvest with companies using easy nine step plan
The NHVR is urging everyone involved in this year’s grain harvest to have a heavy vehicle safety management check-up ahead of what is expected to be a bumper season (24 August 2021).  More...

Heavy vehicle charges determination: Consultation regulation impact statement
The National Road Transport Association is pleased to respond to the National Transport Commission’s consultation regulation impact statement relating to proposed heavy vehicle charges from 2022–23. Read the full submission here (03 September 2021).  More...

Multi-national logistics firm falls foul of fatigue investigation
An investigation by the National Heavy Vehicle Regulator has uncovered evidence of falsified records and insufficient fatigue management, compliance, and auditing practices by a multi-national logistics company (26 August 2021).  More...

SafeWork NSW in high-risk work licence caution
Recent workplace incidents have resulted in SafeWork NSW action on high-risk work licences, including those related to the transport and logistics industries, the watchdog reported (30 August 2021).  More...

BHP to pay damages over Linfox driver injury
A truck driver injured more than five years ago at a BHP mine site in WA's Pilbara region was awarded more than $580,000 in damages by the NSW Supreme Court (01 August 2021).  More...

Published – articles, papers, reports

NHVR: Newsletter
Fortnightly newsletter providing important information on the heavy vehicle industry, including the latest NHVR news and events, relevant law and policy changes. Click here to read On the Road Issue 122 – 24 August 2021. Read past issues here.

Practice and regulation

Senate current inquiries
Importance of a viable, safe, sustainable and efficient road transport industry
Status: Submissions closed. Date referred: 11 September 2019. Reporting date: 25 August 2021. View the report.

IFAM extension of the International Freight Assistance Mechanism to September 2021
Extension to the International Freight Assistance Mechanism (IFAM) to ensure commercially viable access to market for Australian exporters of perishable commodities to the end of September 2021. For more information about the extension, please refer to the IFAM webpage and latest fact sheet.

AMSA marine notice 4–2021: Focused Inspection Campaign – safety of navigation 
The Focused Inspection Campaign (FIC) has been initiated by AMSA and is specific to Australia. It will apply to foreign flagged ships and Regulated Australian Vessels arriving at an Australian port. The FIC will be conducted until to 30 September 2021. Click here for more information.

AMSA current marine notice 2021/01: Focused Inspection Campaign – livestock ships – port state control
This marine notice provides information to ship owners, operators and masters about the Focused Inspection Campaign (FIC) on livestock ships which will run until 31 August 2021. Click here for more information.

AMSA HF radiotelephone monitoring in Australia
From 1 January 2022, AMSA will provide 24-hour nationwide monitoring of high frequency radiotelephone distress, urgency and safety communications in Australia. Read more here.

AMSA: Domestic Commercial Vessel (DCV) safety alert
If you are currently operating under an exemption that expires on the 30 June 2020, it has now been automatically extended for 5 years, until 30 June 2025. This alert is to advise vessel owners, operators, masters, coxswains and crews that the AMSA has taken steps to extend the duration of all national law certificates of competency. Read more here.

DAWE import industry advice notices 2021

01 September 2021
182–2021 – COVID-19 impact on cat and dog imports to Australia
183–2021 – postcode reclassification – Burnside QLD 4560
184–2021 – 'have your say' on first point of entry biosecurity awareness packages
187–2021 – commencement of the 2021–22 Brown marmorated stinkbug (BMSB) risk season – 1 September
188–2021 – reminder: Plastic wrapping, impervious surfaces, and timber thickness fumigation certification requirements
191–2021 – post entry quarantine cat and dog veterinary care

 25 August 2021
178–2021 – Australian Border Force and Maritime Officer user access to the Maritime Arrivals Reporting System

Australian customs notices
2021–34 – 27 August 2021 – customs duty rates for tobacco and tobacco products – September 2021. Read more here.

Reminder
Australian Customs Notice No. 2021–25
Commencement of the Recycling and Waste Reduction (Export – Waste Plastics) Rules 2021. The commencement of the Plastic Rules on 1 July 2021 (phase two begins on 1 July 2022) ensures that Australia will only export waste plastic that has been processed and meets certain requirements. Exporters of these materials will need a licence to export by the required regulation date. Rules for tyres will come into effect on 1 December 2021; and paper and cardboard on 1 July 2024.

IFCBAA: New recycling and waste laws
Rules for plastics will come into effect on 1 July 2021 (stage 1) and 1 July 2022 (stage 2); tyres on 1 December 2021; and paper on 1 July 2024. Exporters of these materials will need a licence to export by the required date. Information on transitioning to the regulation be found here.

Cases

Adani Abbot Point Terminal Pty Limited v Lake Vermont Resources Pty Limited & Ors [2021] QCA 187
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – UNCONSCIONABLE CONDUCT – WHAT CONSTITUTES – where the respondents are the users of a coal terminal – where the appellant is the effective owner of the coal terminal – where the respondents have separate user agreements with the appellant concerning their use of the terminal – where a previous user paid the respondent to be relieved of its obligations – where charges payable by the existing users increased to account for the previous user’s exit – where the trial judge found that, in all the circumstances, the appellant had engaged in unconscionable conduct – whether the appellant’s conduct was unconscionable under s 21(1) of the Australian Consumer Law.
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – where user agreements exist between the appellant, as the owner, and the respondents, as users, of a coal terminal – where the contract provides that the appellant must demonstrate that its charges are reasonable having regard to the efficient operation of the Terminal – where the trial judge found that the appellant had not made such a demonstration as the appellant had not demonstrated that the way the Terminal was operated was, itself, efficient – whether the appellant had made the relevant demonstration.
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – where user agreements exist between the appellant, as the owner, and the respondents, as users, of a coal terminal – where the fourth respondent’s user agreement contains a clause which provides “... No other Access Holder Presenting Coal for Handling at the Terminal will be charged less than the User is charged at that time for a substantially similar commercial arrangement” – where the appellant charges another user less to handle its coal than it charges the fourth respondent – where the trial judge found that the appellants conduct was in breach of its contract with the fourth respondent – whether the trial judge’s interpretation was in error.

Tulloch Brae Pty Ltd v Environmental Protection Equipment Pty Ltd & Anor [2021] QSC 213
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – COMMERCIAL CONSTRUCTION AND INTERPRETATION – where the plaintiff and defendant entered into a carriage agreement regarding the transportation of waste – where the carriage agreement required the plaintiff to move the containers in a prompt and efficient manner – where the contractual provisions dealing with timeliness of performance were ambiguous – where the Court had regard to the circumstances external to the written contract to interpret those provisions.
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON‑PERFORMANCE – REPUDIATION – WHAT AMOUNTS TO REPUDIATION – where defendant gave notice to the plaintiff that it terminated the carriage agreement – where the plaintiff asserted that the termination was a repudiation of the carriage agreement – where the plaintiff accepted the repudiation and purported to terminate the carriage agreement itself – where breaches of the carriage agreement by the plaintiff were so persistent and frequent that defendant was entitled to terminate.
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING AND DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – Australian Consumer Law – where the plaintiff made a number of representations as to its ability to fulfil its obligations under the contract – where those representations were found to be false insofar as they related to future matters and there was no reasonable grounds upon which to make the statements – where the defendant relied on those representations in entering into the carriage agreement.
DAMAGES – ASSESSMENT OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT – where the defendant’s claim for damages for breach of contract was assessed by reference to the money it would have made had the plaintiff performed the carriage agreement according to its terms.
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – loss and damage – where the defendant pleaded that the plaintiff’s breach of contract resulted in a loss of opportunity – whether there was a contractual promise on the part of the plaintiff “to afford the [defendant] an opportunity to acquire a benefit or avoid a detriment” – whether the proceeding was properly characterised as a loss of opportunity case.
DAMAGES – ASSESSMENT OF DAMAGES IN BREACH OF CONTRACT – PARTICULAR HEADS OF LOSS – LOSS OF CHANCE OR OPPORTUNITY – Australian Consumer Law – where defendant claimed that it would not have entered into the carriage agreement were it not for the misrepresentations of the plaintiff – where the defendant claimed it lost the opportunity to make other profitable arrangements – where the defendant was required to prove causation of loss on the balance of probabilities.

SafeWork NSW v Crawfords Freightlines Pty Ltd [2021] NSWDC 442
The appropriate fine is $120,000 but that will be reduced by 25 per cent to reflect the plea of guilty.
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury.
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty.
COSTS – prosecution costs.
OTHER – workers were loading aluminium billets into a shipping container – a load on the tines of a forklift truck shifted and fell onto a worker standing inside the container – lack of adequate supervision – training gaps – unsafe shipping container loading procedures.

Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd (No 2) [2021] FCA 1040
COSTS – necessary or proper party for purposes of joinder – entitlement to costs order of necessary or proper party joint to proceeding – costs of cross-claim – whether interests of justice require party other than respondent to bear costs of cross-respondent – entitlement to recover reasonable costs of complying with subpoena.

Legislation

Commonwealth

Offshore Petroleum and Greenhouse Gas Storage Amendment (Titles Administration and Other Measures) Bill 2021
Assent Act No: 96. Ear: 2021. 02 September 2021 – introduced with the Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Amendment Bill 2021, the bill amends the: Offshore Petroleum and Greenhouse Gas Storage Act 2006 to: Provide for oversight and scrutiny of transactions involving a change of control of a petroleum or greenhouse gas titleholder, through a merger or takeover; expand existing powers to 'call back' previous titleholders to decommission infrastructure and remediate the marine environment in the title area where the current or immediate former titleholder is unable to do so (known as 'trailing liability'); provide for specific decision-making criteria and expanded information-gathering powers; and make minor and technical amendments in relation to the operation of the Act, including enabling electronic lodgement of applications. Also repeals 23 obsolete Acts.

Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Amendment Bill 2021
Assent Act No: 97. Year: 2021. 03 September 2021 – introduced with the Offshore Petroleum and Greenhouse Gas Storage Amendment (Titles Administration and Other Measures) Bill 2021, the bill amends the Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Act 2003 to: Ensure that if a person who is subject to a remedial direction submits an environment plan or a well operations management plan, that person is required to pay environment plan levy or well activity levy respectively; and provide for payment of safety case levies for safety cases that deal with activities carried out to comply with a remedial direction.

Customs Tariff Amendment (2022 Harmonized System Changes) Bill 2021
Assent Act No: 91. Year: 2021. 02 September 2021.
Introduced with the Customs Amendment (2022 Harmonized System Changes) Bill 2021 to implement changes resulting from the sixth review of the Harmonized Commodity Description and Coding, the bill amends the Customs Tariff Act 1995 to: Insert new subheading classifications for emerging technologies and product categories, such as 3D printers and edible insects, respectively; remove subheading classifications for products that are no longer traded in significant volume such as answering machines; insert new subheading classifications to improve monitoring of trade for goods of concern such as synthetic diamonds, chemicals that are controlled under the Montreal Protocol and the Chemical Weapons Convention, and environmental goods such as electronic waste; create specific classifications for flat panel displays, semiconductor-based transducers and electronic waste; and make consequential amendments.

Gazetted 02 September 2021

Victoria Class 1 4-Axle & 5-Axle All Terrain Mobile Crane Mass and Dimension Exemption Notice 2021 (No.2)
This Notice exempts the stated Class 1 heavy vehicles from the prescribed mass requirements and prescribed dimension requirements specified in the Notice, subject to the conditions specified in the Notice. Note: This version of the Notice: Adds Telematics Monitoring Application as an option for compliance with intelligent access conditions.

NSW

Regulations and other miscellaneous instruments
Road Transport (General) Regulation 2021 (2021–487) – published LW 27 August 2021.
The object of this Regulation is to remake, with substantial amendments, the Road Transport (General) Regulation 2013, which will be repealed on 1 September 2021 by the Subordinate Legislation Act 1989, section 10(2). This Regulation makes provision for the following (g) the prescribing of heavy vehicles to which the vehicle monitoring requirements under the Act, Part 6.1 apply.

Queensland

Subordinate legislation as made – 27 August 2021
No 129: Agricultural Chemicals Distribution Control Regulation 2021.
7 Classes of commercial operator’s licence – Act, section 16.

Subordinate legislation as made – reminders
No 113: Transport Operations (Road Use Management – Vehicle Registration) Regulation 2021.
This regulation commences on 1 September 2021.
Division 3 national heavy vehicle number plates.
No 114: Transport Operations (Road Use Management – Vehicle Standards and Safety) Regulation 2021.
This regulation commences on 1 September 2021.
Mass requirements; load requirements – subdivision 2 securing loads and coupling requirements.

Victoria

Date of commencement: 25 August 2021.
Transport Legislation Amendment Act 2020 (Vic)
Sections 43, 44, 46–48 of this Act came into operation on 25 August 2021 (SG460 24.8.2021).
Act Number: 41/2020.

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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